Federal Register, Volume 79 Issue 68 (Wednesday, April 9, 2014)

[Federal Register Volume 79, Number 68 (Wednesday, April 9, 2014)]
[Rules and Regulations]
[Pages 19712-19757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-07415]

[[Page 19711]]

Vol. 79

Wednesday,

No. 68

April 9, 2014

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Mazama Pocket Gophers; Final Rule

Federal Register / Vol. 79 , No. 68 / Wednesday, April 9, 2014 /
Rules and Regulations

[[Page 19712]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2013-0021; 4500030113]
RIN 1018-AZ37

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Mazama Pocket Gophers

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for three subspecies of the Mazama pocket gopher (the
Olympia pocket gopher, Thomomys mazama pugetensis; the Tenino pocket
gopher, T. m. tumuli; and the Yelm pocket gopher, T. m. yelmensis)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,607 acres (650 hectares) in Thurston County,
Washington, fall within the boundaries of the critical habitat
designation for the Olympia, Tenino, and Yelm pocket gophers. All
critical habitat proposed for the Roy Prairie pocket gopher (T. m.
glacialis) in Pierce County, Washington, is exempted under section
4(a)(3)(B)(i) of the Act; as a consequence, there is no final critical
habitat for this subspecies. The effect of this regulation is,
therefore, to designate critical habitat for the Olympia, Tenino, and
Yelm subspecies of the Mazama pocket gopher found in Thurston County,
Washington, under the Act.

DATES: This rule is effective on May 9, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/wafwo/mpg.html. Comments and
materials we received, as well as some supporting documentation we used
in preparing this final rule, are available for public inspection at
http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0021. All of
the comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at: http://www.regulations.gov
under Docket No. FWS-R1-ES-2013-0021, at http://www.fws.gov/wafwo/mpg.html, and, by appointment, at the Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we developed for this critical habitat
designation will also be available at the Fish and Wildlife Service Web
site and Field Office set out above, and may also be included in the
preamble and at http://www.regulations.gov.

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

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. This is a final rule to designate
critical habitat for the following three subspecies of the Mazama
pocket gopher endemic to the State of Washington: The Olympia pocket
gopher (Thomomys mazama pugetensis); the Tenino pocket gopher (T. m.
tumuli); and the Yelm pocket gopher (T. m. yelmensis). We also set
forth our reasons for not designating critical habitat for a fourth
subspecies: The Roy Prairie pocket gopher (T. m. glacialis). Under the
Endangered Species Act of 1973, as amended (Act), any species that is
determined to be an endangered or threatened species requires critical
habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule.
We published a proposed rule to list as threatened and designate
critical habitat for the Olympia, Roy Prairie, Tenino, and Yelm pocket
gophers (collectively, we refer to these as the four Thurston/Pierce
subspecies of the Mazama pocket gopher throughout this rule) on
December 11, 2012 (77 FR 73770). The final rule listing the Olympia,
Roy Prairie, Tenino, and Yelm pocket gophers as threatened species
under the Act is published elsewhere in today's Federal Register.
Section 4(b)(2) of the Act states that the Secretary shall designate
critical habitat on the basis of the best available scientific data
available 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 the four Thurston/Pierce subspecies
of the Mazama pocket gopher. This rule:
Designates as critical habitat approximately 1,607 ac (650
ha) of land for the Olympia, Tenino, and Yelm subspecies of the Mazama
pocket gopher, including 676 ac (273 ha) for the Olympia pocket gopher,
399 ac (162 ha) for the Tenino pocket gopher, and 532 ac (215 ha) for
the Yelm pocket gopher. All of the critical habitat areas for these
three subspecies are in Thurston County, Washington.
Exempts, under section 4(a)(3)(B)(i) of the Act, all 4,840
ac (1,958 ha) of critical habitat proposed for the Roy Prairie pocket
gopher (T. m. glacialis) on Department of Defense lands in Pierce
County, Washington; as a consequence, there is no final critical
habitat for this subspecies.
This rule consists of: A final designation of critical habitat for
the Olympia, Tenino, and Yelm subspecies of the Mazama pocket gopher.
These three subspecies of the Mazama pocket gopher are endemic to the
State of Washington and found only in Thurston County, and have been
assigned the status of threatened under the Act elsewhere in today's
Federal Register. This rule designates critical habitat necessary for
the conservation of three of the four Thurston/Pierce subspecies of the
Mazama pocket gopher. Although critical habitat was proposed for the
Roy Prairie subspecies of the Mazama pocket gopher, which occurs in
Pierce and Thurston Counties, all of the area proposed for that
subspecies was on Department of Defense lands and has been exempted
from critical habitat in this final rule under section 4(a)(3) of the
Act.
We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
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 Federal Register on April 3, 2013
(78 FR 20074), and requested public comments on our DEA. We have
incorporated the comments and have completed the final economic
analysis (FEA). Additional economic analysis conducted in response to
public comments is captured in the final memorandum to the economic
analysis (IEc 2014). Both documents are available at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0021.

[[Page 19713]]

Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from two knowledgeable
individuals with scientific expertise to review our technical
assumptions and analysis, and whether or not we had used the best
available information. These peer reviewers generally concurred with
our methods and conclusions, and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final revised
designation. We also considered all comments and information received
from the public during our three open comment periods, which were open
a total of 135 days. We also held two public information workshops and
a public hearing in April 2013.

Previous Federal Actions

The full candidate history and previous Federal actions for the
four Thurston/Pierce subspecies are described in the proposed rule to
list and designate critical habitat for four subspecies of the Mazama
pocket gopher, published December 11, 2012 (77 FR 73770). We published
a notice of availability of the DEA and announcement of public
information meetings and a public hearing on April 3, 2013 (78 FR
20074), and a 6-month extension of the final determination for the
proposed listing and determination of critical habitat for the four
subspecies of the Mazama pocket gopher on September 3, 2013 (78 FR
54218). Details regarding the comment periods on the proposed
rulemaking are provided below.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed
designation of critical habitat for the four Thurston/Pierce subspecies
of the Mazama pocket gopher during three comment periods. The first
comment period, announced in association with the publication of the
proposed rule on December 11, 2012 (77 FR 73770), was open for 60 days
and closed on February 11, 2013. We then made available the DEA of the
proposed critical habitat designation and reopened the comment period
on the proposed rule for an additional 30 days, from April 3, 2013, to
May 3, 2013 (78 FR 20074; April 3, 2013). We also contacted appropriate
Federal, State, tribal, county, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule and the DEA. During this open comment period, we
held three public information workshops (two in Lacey, Washington, and
one in Salem, Oregon) and a public hearing (in Olympia, Washington) in
April 2013, on the proposed rule to list the four Thurston/Pierce
subspecies of the Mazama pocket gopher and the associated proposed
critical habitat designations. On September 3, 2013, we announced a 6-
month extension of the final determination on the proposed listing and
designation of critical habitat for the four Thurston/Pierce subspecies
of the Mazama pocket gopher (78 FR 54218) and reopened the comment
period for an additional 45 days, ending October 18, 2013.
During the three public comment periods, we received approximately
220 comment letters and emails from individuals and organizations, as
well as individual comments received as speaker testimony at the public
hearing held on April 18, 2013. These comments addressed the proposed
critical habitat or proposed listing (or both) for the four Thurston/
Pierce subspecies of the Mazama pocket gopher. Comments relevant to the
listing of the Mazama pocket gophers are addressed in a separate
rulemaking, published elsewhere in today's issue of the Federal
Register. We received comment letters from two peer reviewers, one
State agency, and two Federal agencies. No Native American tribes are
potentially affected by the proposed designation.
All substantive information provided during comment periods has
either been incorporated directly into this final designation or is
addressed below. Comments we received are grouped into general issues
specifically relating to the proposed critical habitat designation for
the four Thurston/Pierce subspecies of the Mazama pocket gopher, and
are addressed in the following summary and incorporated into the final
rule as appropriate.

Comments From Peer Reviewers

In accordance with our peer review policy published July 1, 1994
(59 FR 34270), we solicited expert opinion from six knowledgeable
individuals with scientific expertise that included familiarity with
the four Thurston/Pierce subspecies of the Mazama pocket gopher and
their habitats, biological needs, and threats. Two peer reviewers
responded, and both were supportive of the Service's evaluation of the
best scientific and commercial data available in proposing to list the
four Thurston/Pierce subspecies of the Mazama pocket gopher and
designate critical habitat for these subspecies. We received responses
from one of the peer reviewers on the proposed critical habitat
designation. Our requests for peer review were limited to a request for
review of the merits of the scientific information in our documents; if
peer reviewers volunteered their personal opinions on matters not
directly relevant to the science of our designation, we do not respond
to those comments here.
(1) Comment: One peer reviewer recommended that peripheral areas
that support pocket gopher populations, or could provide that support,
should be included in the designation of critical habitat. The reviewer
stated that the existence of peripheral populations, along with larger,
core populations, is a reflection of overall population health, as
those peripheral populations provide the evolutionarily important
stepping-stone opportunities for gene exchange between core areas.
These peripheral populations are likely to be ephemeral, because of
poor or limited resources and overall size of the patch, but they are
also likely to be recolonized on a regular basis.
Our Response: Although we are aware of the potential importance of
peripheral populations, because of the size of the area these
individual populations occupy (i.e., below the 50-ac (20-ha) minimum
patch size identified in our primary constituent elements (PCEs)), they
did not meet our definition of critical habitat for the subspecies. In
addition, because of the inherent uncertainty of the long-term
persistence of individual peripheral populations and their contribution
to core populations, we did not believe we had sufficient justification
to propose these areas as critical habitat in this case, as we do not
consider them to provide the physical or biological features essential
to the conservation of the species. However, this does not mean that
these undesignated areas are unimportant or will not contribute to the
long-term conservation of the Mazama pocket gopher. During the recovery
planning process, we anticipate the areas occupied by these peripheral
populations to be evaluated for their potential contribution to the
subspecies' conservation. Although these areas are not included in the
critical habitat designation, individuals in these peripheral
populations are still protected under the Act (16 U.S.C. 1531 et seq.),
and these protections from ``take'' of the species under section 9 and
section 7 of the Act extend to the avoidance of harming the habitat on
which these peripheral populations depend. Information regarding the
role of peripheral populations was added to

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the final listing rule for the four Thurston/Pierce subspecies of the
Mazama pocket gopher, which is published elsewhere in today's Federal
Register
(2) Comment: One peer reviewer recommended that all soils that may
be occupied or vegetative cover that may be used by any one of the
subspecies be listed as ``suitable'' for the other subspecies.
Our Response: In our PCEs, vegetative cover was discussed as being
the same for all subspecies. We have revised the soils discussion to
more broadly include soil types (describing soil qualities) as well as
including the soil series names which the various subspecies may
occupy. However, not all soil series in which the four subspecies have
been found occur within the presumed range of each of the four
subspecies, and furthermore not all soil series occur within each of
the units designated as critical habitat. Note that the PCEs only apply
to areas identified as critical habitat; the regulatory effect of
critical habitat does not apply anywhere outside of the designated
units. Given the current level of uncertainty regarding the absolute
ranges of the four Thurston/Pierce subspecies of the Mazama pocket
gopher, it is prudent to acknowledge the collective list of soil types
known to be used by Mazama pocket gophers could be suitable for any of
the four Thurston/Pierce subspecies. We have revised our final listing
rule (published elsewhere in today's Federal Register), as well as the
Physical or Biological Features section of this rule, to acknowledge
the potential broader use of soil types by each of the four Thurston/
Pierce subspecies of the Mazama pocket gopher. We have retained our
more specific identification of the soil types known to be used by each
of the Mazama pocket gopher subspecies for the purposes of describing
the PCEs for each subspecies and identification of those specific areas
that provide the PCEs.

Comments From State Agencies

Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments we received from State agencies regarding the proposal to
designate critical habitat for the four Thurston/Pierce subspecies are
addressed below.
We received critical habitat comments from the Washington
Department of Fish and Wildlife (WDFW) related to biological
information, PCEs, critical habitat exclusions, and recommendations for
the management of habitat.
WDFW provided a number of recommended technical corrections or
edits to the proposed critical habitat designation for the Mazama
pocket gopher. We have evaluated and incorporated this information into
this final rule where appropriate to clarify the final critical habitat
designation. In instances where the Service may have disagreed with an
interpretation of the technical information that was provided, we have
responded in separate communication with the agency.
(3) Comment: WDFW and another commenter observed that four proposed
critical habitat subunits (1-A, 1-B, 1-C, and 1-D) had more than one
subspecies name associated with each subunit. The other commenter
asserted that because critical habitat subunits l-A, l-B, l-C and l-D
appear to be occupied by two subspecies of the Mazama pocket gopher,
this implies that at least some populations of these subspecies are not
isolated by geography and should probably not be defined as separate
subspecies.
Our Response: The critical habitat proposed for each of the
subspecies of the Mazama pocket gopher drew heavily on species
occurrence records compiled in the WDFW Heritage Database. A graduate
student presented work suggesting that the four Thurston/Pierce
subspecies of the Mazama pocket gopher should be considered a single
clade and collapsed under the subspecies name ``yelmensis.'' However,
that presentation did not result in revision or annulment of the
subspecies' taxonomy. Regardless, some detection sites and voucher
specimens were erroneously labeled with the name ``Thomomys mazama
yelmensis.'' This resulted in erroneous collection records of ``T. m.
yelmensis'' within the range of other subspecies, which was codified in
the 2005 Status Report for the Mazama pocket gopher (Stinson 2005) and
the WDFW Heritage Database. Due to this error, the appropriate way to
label these proposed critical habitat subunits was not entirely clear
at the time the proposed rule was published, and we included the name
T. m. yelmensis on the subunits where collection records for them
existed. However, upon further review, we do not believe that more than
one subspecies was ever naturally present in the same place, nor does
our error mean that the subspecies' taxonomy has been changed; the
artifact of two subspecies names in a single polygon reflects a mistake
based on an erroneous assumption that the taxonomy had been changed.
Our final critical habitat designation no longer reflects this error.
In fact, there is no overlap between the subspecies for this
designation, and as reflected in this final rule, we have changed our
final critical habitat units to reflect the fact that only a single
subspecies occurs within each unit. WDFW has similarly revised their
most recent draft recovery plan for the Mazama pocket gopher to reflect
this correction (Stinson 2013).
(4) Comment: WDFW stated that determining occupancy of an area by
Mazama pocket gopher should not be based on a single survey year. On a
similar subject, we received a public comment disputing the occupancy
of a portion of a subunit proposed as critical habitat.
Our Response: The Service agrees that occupancy of any site by
Mazama pocket gophers is likely subject to fluctuations in population
size and forage availability; therefore pocket gophers may not
necessarily be detected at occupied sites every year. The Service takes
a conservative approach to habitat evaluation when determining
occupancy for the designation of critical habitat. Since occupancy is
linked to the Mazama pocket gopher's ability to disperse into suitable
habitat, we consider a site likely occupied at the time of listing if
Mazama pocket gophers are detected in some years, but not others (an
``intermittently'' occupied site), or if a site has both suitable
habitat and is near enough to a source population that it is likely
occupied. If intermittently occupied sites were not considered
``occupied'' in those years when Mazama pocket gophers were not
detected, there is a very real possibility that development or other
irreversible land uses might permanently convert that suitable habitat
to another form of landscape, within which Mazama pocket gophers will
not be able to breed and across which gophers will not be able to
disperse, effectively reducing available suitable habitat and limiting
dispersal capacity at the same time.
In our proposed designation, occupancy of critical habitat was
determined at the subunit level based on a positive detection during a
survey conducted within the previous 5 years on at least a portion of
the subunit. Occupancy determinations were not made at less
biologically relevant scales below the subunit level (e.g., at the
individual ownership/parcel scale), so it is possible that a portion of
a unit or a subunit may not be currently occupied, but is part of a
larger unit or subunit that is considered occupied. However, even if
pocket gophers are not detected in some portion of a subunit in any
given year, because the PCEs are present

[[Page 19715]]

(e.g., requisite soil and vegetation types, barriers to dispersal
absent or permeable) and the area is adjacent or contiguous to an
occupied portion of the subunit, we consider the whole subunit as
likely occupied. This is the likely dynamic state of occupancy for the
majority of areas included in critical habitat as units and subunits.
It is known that some areas where Mazama pocket gophers are documented
to occur in one year may not appear to be occupied the next, but the
gophers then reappear in subsequent years, as they move about the
landscape (for example, at the Rocky Prairie Natural Area Preserve
(NAP)). For this reason, we determined that occupancy is most
reasonably evaluated at the scale of the unit or subunit.
As described in our listing rule (published elsewhere in today's
Federal Register), Mazama pocket gophers are not colonial, but are
relatively solitary and highly territorial; therefore juveniles are
likely to disperse from their natal sites into nearby suitable habitat.
Such movements result in apparent changes of the occupancy status of a
specific site over time, as juveniles disperse and colonize new sites,
or conversely, as territorial individuals die and specific sites become
unoccupied. In addition, since vegetation structure varies spatially
and temporally, yielding a mosaic of suitable habitat patches at any
given time, it is likely that any Mazama pocket gophers existing in the
context of an expanse of habitat with contiguous suitable soil types
(e.g., subunit level) shift their location in response to available
resources; thus habitat that is occupied at some times may not be
occupied at others. We also note that in some cases portions of a
subunit may appear to be intermittently occupied, when in actuality it
may just be that gophers are only intermittently detected on the site
due to factors such as differences in level of survey effort, survey
conditions, survey timing, and overall gopher abundance. Information
regarding this aspect of occupancy has been added to the final listing
rule for the four Thurston/Pierce subspecies of the Mazama pocket
gopher, which is published elsewhere in today's Federal Register, and
in the Physical or Biological Features and Critical Habitat sections of
this rule. As noted above, we consider all such habitat to be likely
occupied by the species, as we do not consider it biologically relevant
to determine occupancy at a scale below that of the unit or subunit.
However, in the context of critical habitat, even if such an
intermittently occupied area were considered to be ``unoccupied'' at
the time of listing, for the reasons described above and in the
Critical Habitat section of this document, to be conservative we have
evaluated such areas as if they were unoccupied, and all such areas
included in this final critical habitat rule have been determined to be
essential for the conservation of the species.
(5) Comment: WDFW pointed out that the expert panel cited in the
proposed critical habitat rule did not have the empirical data
necessary to make an informed decision about minimum habitat patch size
that would provide a high likelihood for long-term persistence of the
Mazama pocket gopher, implying that the panel decision should not be
used in estimating the area size necessary for persistence.
Our Response: The Service relies upon the best available scientific
and commercial data to inform the decisions necessary for creating
listing and critical habitat rules. In this case, we drew on the
knowledge of a team of experts who were assembled to assist with the
construction of a habitat modeling exercise. In the absence of studies
demonstrating the minimum possible patch size for persistence of the
Mazama pocket gopher, we used the 50-ac (20-ha) size as the smallest
area necessary for recovery of Mazama pocket gopher populations, which
was the agreed-upon estimate of the expert panel. We acknowledge the
uncertainty with this estimate, but there are currently no studies
regarding minimum patch size available for the Mazama pocket gopher,
nor are there any obvious means by which a better answer can be
obtained. Thus, the best scientific data available in this case is the
opinion of an informed expert panel. We also note that areas ultimately
identified as critical habitat should not necessarily be interpreted as
the sole areas necessary for species recovery; areas outside of
designated critical habitat can play an important role in the
conservation of the species as well. See also response to Comment (1).
(6) Comment: WDFW stated that genetics and population dynamics of
gophers suggest that the maintenance of networks of smaller habitat
patches may be as important as preserving larger patches of isolated
habitat.
Our Response: The Service agrees that both small and large habitat
patches may be important to the recovery of the Mazama pocket gopher
and does not feel that the decision to identify only larger habitat
patches as critical habitat disregards the importance of networked
smaller patches. Successfully maintaining smaller patches may be much
more difficult than maintaining or restoring large patches. See also
our response to Comment (1).

Comments From Federal Agencies

Department of Transportation, Federal Aviation Administration
(7) Comment: The Federal Aviation Administration (FAA) and another
commenter stated that if the Service had considered the full range of
economic impacts associated with the designation of critical habitat at
the Olympia Airport from restricted aviation development and lost
revenue opportunity, a justified economic case could be made to exclude
airport property from critical habitat designation. They believe that
by considering only the incremental impact from additional consultation
with the Service imposed by the designation of critical habitat, the
economic analysis is incomplete. Furthermore, the FAA expressed concern
that restrictions on land use that may be associated with critical
habitat could interfere with the ability of airport operators to
maintain specific design criteria and safety standards, or to schedule
timely repair when safety standards are altered. The FAA requested
exclusion of airport properties from critical habitat designation,
based on potential economic impacts and safety considerations.
Our Response: The baseline utilized in the DEA is the existing
state of regulation, prior to the designation of critical habitat,
which provides protection to the species under the Act, as well as
protection under other Federal, State, and local laws and guidelines.
To characterize the ``world without critical habitat,'' the DEA also
endeavors to forecast these conditions into the future over the time
frame of the analysis (20 years in this case), recognizing that such
projections are subject to uncertainty. This baseline projection
presumes that the species will be listed (as critical habitat would not
be designated absent a listing) and therefore recognizes that the four
Thurston/Pierce subspecies of the Mazama pocket gopher will be subject
to a variety of Federal, State, and local protections throughout most
of their ranges, due to their listed status under the Act and
regardless of the designation of critical habitat. The DEA then
considers the incremental effects of critical habitat, above and beyond
this baseline. Based on the incremental impacts of the rule, we were
unable to conclude that the Olympia Airport warranted exclusion as a
result of economic impacts. Please refer to the Exclusions Based on
Economic Impacts

[[Page 19716]]

discussion in the Exclusions section of this document for further
details on this analysis specific to the Olympia Airport.
The Olympia Airport Unit contains the largest known area occupied
by the Olympia pocket gopher in Washington State. As it is occupied by
the subspecies, any activities with a Federal nexus at this site that
may affect the Olympia pocket gopher, such as actions funded by the
FAA, will be subject to consultation under section 7 of the Act. This
requirement is in effect due to the presence of the listed species,
regardless of the designation of critical habitat. The regulatory
effect of a critical habitat designation is that Federal agencies must
ensure that their actions avoid ``adverse modification'' of critical
habitat. Where the habitat in question is already occupied by the
listed species, if there is a Federal nexus, the action agency already
consults with the Service to ensure its actions will not jeopardize the
continued existence of the species. In this case, any actions
associated with safety procedures with a Federal nexus will already be
subject to consultation under the jeopardy standard. In our experience,
it is unlikely that the additional consideration of adverse
modification due to the designation of critical habitat would result in
any significant project modifications beyond those already recommended
or necessary to avoid jeopardy to the subspecies. Furthermore, if the
action was found likely to destroy or adversely modify critical
habitat, or to jeopardize the subspecies, the Service is required, to
the extent feasible, to provide reasonable and prudent alternatives
(RPAs) that would allow the action to proceed and comply with section
7(a)(2) of the Act. RPAs must be technologically and economically
feasible, must allow for the intended purpose of the action to be met,
must avoid jeopardy or adverse modification, and must be within the
authority of the action agency to implement. In our experience, in the
vast majority of cases the Service is able to work with the action
agency to successfully avoid adverse modification. For these reasons,
we do not anticipate that the designation of critical habitat at the
Olympia Airport will interfere with the ability of the airport operator
to comply with safety standards or impair aviation safety.
Natural Resources Conservation Service, U.S. Department of Agriculture
(8) Comment: The U.S. Department of Agriculture (USDA) Natural
Resources Conservation Service (NRCS) stated they support exclusion of
the Colvin Ranch property under section 4(b)(2) of the Act as a result
of ongoing management under a Grasslands Reserve Program agreement.
NRCS believes the current level of grazing management on this property
has resulted in healthy native prairie populations, and will continue
to provide benefits to the native prairie populations, including the
Mazama pocket gopher, which exceed benefits provided by a critical
habitat designation. The landowner also commented that he believes
Colvin Ranch's current management plan exceeds the benefits that may be
realized from designation of critical habitat on their property.
Our Response: The Service concurs with this assessment and has
excluded this property from the final critical habitat designation for
Mazama pocket gopher (see Exclusions section of this document).

Comments From the Public

(9) Comment: One commenter asserted that the Service has not
demonstrated that the Rocky Prairie Unit for the Tenino pocket gopher
(formerly identified as subunit 1-D in the proposed rule) has the
necessary PCEs to meet the criteria as critical habitat, and cited
Alaska Oil and Gas Association v. Salazar (Nos. 3:11-cv-0025-RRB, 3:11-
cv-0036-RRB, 3:11-cv-0106-RRB, Jan. 11, 2013) as support for their
comment.
Our Response: In determining what areas meet the definition of
critical habitat for the Mazama pocket gopher, we first identified
those areas occupied by the subspecies at the time of listing and that
provide the essential physical or biological features, which may
require special management considerations or protection. The most
important considerations in delineating the areas to include in the
proposed critical habitat subunits were occupancy and the extent of the
appropriate soil type. The majority of the private land designated as
critical habitat for the Tenino pocket gopher in the Rocky Prairie Unit
is identified in the USDA NRCS Geographic Information Systems (GIS)
soils data layer as the Spanaway-Nisqually soil type. This soil type is
a well-drained, prairie-associated soil known to be suitable for the
Tenino pocket gopher, as evidenced by the persistence of a population
intermittently detected at the Rocky Prairie NAP, which is contiguous
with the critical habitat unit along the western perimeter. In the
Alaska Oil and Gas Association v. Salazar case, the Court ruled that
the Service's record did not adequately support the presence of all
components of one of the PCEs in areas designated as critical habitat.
The proposal and designation of the Rocky Prairie Unit for the Tenino
pocket gopher is based on an expanse of appropriate soil and
vegetation. We recognize that the habitat is somewhat degraded and not
optimally suitable across the majority of the unit; however this area
does contain the PCEs for the Tenino pocket gopher, and the habitat
could easily be enhanced and maintained in such a way that the Tenino
pocket gopher populations could be recovered there. Restoration work
conducted by Joint Base Lewis McChord (JBLM), the Center for Natural
Lands Management (CNLM), and WDFW on south Puget Sound prairies has
shown that native prairie vegetative communities can be reestablished
on even heavily degraded prairies over a short period of years.
(10) Comment: One commenter stated that the Service should not
designate any private property as habitat for the Mazama pocket gopher.
Another commenter asserted that the designation of critical habitat on
private lands in the Rocky Prairie Unit for the Tenino pocket gopher
was not warranted.
Our Response: According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. As directed by the Act, we proposed as
critical habitat those areas that we believe are occupied by the
species at the time of listing and that contain the physical or
biological features essential for the conservation of the species,
which may require special management considerations or protection. To
the extent that those areas may not, in fact, be occupied, we conclude
that they are nonetheless essential for conservation of the species.
The Act does not provide for any distinction between landownerships
in those areas that meet the definition of critical habitat. However,
the Act does allow the Secretary to consider whether certain areas may
be excluded from final critical habitat. An area may be excluded under
section 4(b)(2) of the Act if the benefits of excluding it outweigh the
benefits of including it in critical habitat, unless that exclusion
would result in the extinction of the species. In this case, as
directed by the statute, the Secretary has considered whether any areas
should be excluded from the final designation based on economic
impacts, national security impacts, or other relevant impacts. In the
case of private landowners, the Secretary has excluded private lands

[[Page 19717]]

from the final designation of critical habitat in cases where she has
determined that the benefits of excluding areas with conservation
agreements or other partnerships outweighs the benefits of including
those areas in critical habitat (see Exclusions section of this
document).
The area known as Rocky Prairie was proposed as a single critical
habitat subunit (1-D in the proposed rule) made up of properties
belonging to three different landowners (although the portion of
proposed Subunit 1-D owned by the State is excluded from the final
designation, leaving two private landowners in what is now called the
Rocky Prairie Unit for the Tenino pocket gopher). Rocky Prairie is the
source location for the subspecies Thomomys mazama tumuli (the Tenino
pocket gopher); the subspecies is known from no other location, making
this entire unit critical to the recovery of the subspecies. The Rocky
Prairie NAP portion of the proposed subunit, owned by WDNR and found
along the western edge of the privately held land, is documented as
being intermittently occupied, most recently verified through live
trapping by WDFW in 2012, and visual confirmation of mounding activity
by Service biologists in 2013. The appearance of intermittent occupancy
may be due to an interaction between the small size of the property and
the territorial nature of the Mazama pocket gopher, causing the site to
undergo intermittent extinctions and recolonizations from a nearby
source population, or possibly, but less likely, it could be due to a
lack of detection on the part of the surveying biologists. While the
Rocky Prairie NAP is the only site in the proposed Subunit 1-D with
confirmed, if intermittent, occupancy, it is too small to be considered
sufficient for the conservation of the species over time. We determined
50 ac (20 ha) to be the minimum patch size necessary for a population
of Mazama pocket gophers to persist. The proposal of critical habitat
in Rocky Prairie, which included private property, was predicated on
the following: (1) Subunit 1-D, as proposed, was documented as occupied
by T. m. tumuli; (2) all areas within the proposed subunit provide the
PCEs for T. m. tumuli; (3) Rocky Prairie is the only location from
which T. m. tumuli is known, and therefore the conservation of this
subspecies within its historical range is entirely dependent on this
area; (4) within the proposed Subunit 1-D, the State-owned NAP
comprises only 35 ac (14 ha) of habitat, which alone does not meet the
minimum patch size of 50 ac (20 ha) established for Mazama pocket
gophers, and does not comprise enough acreage to ensure recovery of the
subspecies; (5) suitable habitat for T. m. tumuli is relatively
continuous between the NAP and the adjacent private properties, and
dispersal between these areas is possible; and (6) the perception of
intermittent occupancy of the NAP indicates that there is a nearby
source population adjacent to the NAP (although there have been some
years when gophers were not detected at the NAP, they subsequently
reappeared in later years. These individuals must have entered the NAP
from a nearby source population, which, given the relatively limited
dispersal distances of pocket gophers, most logically would have come
from the large areas of suitable habitat on the private lands
immediately adjacent to the NAP). Based on all of these considerations,
we find it reasonable to conclude that all of the areas within the
Rocky Prairie Unit are likely occupied by the Tenino pocket gopher, and
as all of these areas provide the PCEs for the subspecies, they are all
appropriately identified as critical habitat. However, even if some
portions of the unit were considered to be unoccupied at the time of
listing, because this is the only known location for T. m. tumuli and
the area on the NAP is insufficient to provide for the conservation of
this subspecies, we consider the entire unit, which provides the
requisite physical or biological features for T. m. tumuli, to be
essential to the conservation of the species.
According to documents submitted to the Service, the privately held
portion of the Rocky Prairie Unit was surveyed on June 4, 2012.
However, the Service does not believe that the survey effort was
adequate to establish absence of the subspecies, as the survey was
conducted across 590 acres over a period of approximately 9 hours and
did not adhere to the established WDFW survey protocol. The survey was
never submitted to WDFW for validation, and WDFW biologists indicate it
was inconsistent with their established survey protocol for the Mazama
pocket gopher based on the contractor's description of the survey
methods and would not have been validated. Considering the factors
above, the Service concludes that the identification of proposed
Subunit 1-D (referred to in this final rule as the Rocky Prairie Unit
for the Tenino pocket gopher), in its entirety, as critical habitat is
appropriate because the unit, as designated, is likely occupied at the
time of listing and provides the PCEs for T. m. tumuli. However, even
if portions of the unit were not occupied at the time of listing, for
the reasons described above, we have determined that this unit, in its
entirety, is essential to the recovery of the subspecies T. m. tumuli,
the Tenino pocket gopher; therefore this area still meets the statutory
definition of critical habitat and is appropriately designated.
(11) Comment: One commenter stated that designating critical
habitat on lands that will require maintenance or restoration of the
PCEs is not appropriate. Another commenter stated that the designation
of critical habitat would require special management of the habitat
under section 7 of the Act, based on the requirement for individuals or
organizations who receive Federal funds to consult on any alterations
to known occupied habitat, such as construction, grading, and
activities as simple as mowing.
Our Response: By definition under section 3(5)(A)(i) of the Act,
the essential physical or biological features associated with occupied
critical habitat ``may require special management considerations or
protection.'' The prairies of western Washington were anthropogenically
maintained through the practice of burning by the first peoples for
millennia. Mazama pocket gophers in and around the south Puget Sound
evolved in areas kept free of woody vegetation through burning and, as
such, have been dependent upon human processes to maintain their
habitat. It is impractical to expect that any area designated as
critical habitat would maintain itself in the state necessary to
conserve Mazama pocket gophers; thus all areas designated as critical
habitat will likely require some level of management to maintain
appropriate habitat. Since pocket gophers are restricted to the soil
types to which they are adapted, and there is a finite amount of
acreage of those soils, the soil type and its continued accessibility
to the Mazama pocket gopher for burrowing and foraging is of greater
importance than vegetation for the conservation of the species, as
vegetation can be relatively easily restored but soils cannot.
Critical habitat may require special management to maintain optimal
condition for listed species, but the designation of critical habitat
does not, by itself, impose a duty on the landowner to engage in those
special management activities. Anywhere a Federal nexus exists, any
Federal agency activity that may affect the species or its designated
critical habitat is subject to consultation under section 7. In these
cases, a Federal agency proposing an action that may affect the listed
species or its designated critical habitat would be required to conduct
an

[[Page 19718]]

evaluation to determine whether or not it may affect the species, and
if critical habitat is designated, whether or not it may affect that
habitat.
(12) Comment: Some commenters questioned whether it was necessary
to designate critical habitat for the four Thurston/Pierce subspecies
of the Mazama pocket gopher within Urban Growth Areas (UGAs) which they
believe creates an unnecessary regulatory burden in those areas, if
there are alternate areas available outside of those boundaries where
the subspecies could be recovered.
Our Response: The Act requires that we designate critical habitat
for listed species on the basis of the best scientific data available
and after taking into consideration the economic impact, the impact on
national security, and any other relevant impact, of specifying any
particular area as critical habitat. In our proposed rule, it is our
practice to identify all areas that meet our definition of critical
habitat for the species. In the case of the Mazama pocket gopher, we
identified all areas occupied by the four Thurston/Pierce subspecies at
the time of listing, and that provide the physical or biological
features essential to their conservation, which may require special
management considerations or protection. As described in the final rule
listing the four Thurston/Pierce subspecies of the Mazama pocket gopher
as threatened under the Act (published elsewhere in today's Federal
Register), one of the primary threats to the four Thurston/Pierce
subspecies is the consequence of past and ongoing degradation and
permanent destruction of their habitat. For the four Thurston/Pierce
subspecies of the Mazama pocket gopher, those specific geographic areas
that meet our definition of critical habitat include areas occupied by
Mazama pocket gophers within UGA boundaries, and which provide the
essential physical or biological features for their conservation, such
as specific soil types utilized by the pocket gophers. The Secretary
may exclude some areas from the final critical habitat after
considering the economic impact, impact on national security, or any
other relevant impact of the designation. As our final economic
analysis did not indicate any disproportionate economic impacts
resulting from the designation, and no impacts to national security or
other relevant impacts were identified that outweighed the benefits of
including these areas in critical habitat, any areas that meet our
definition of critical habitat for the Mazama pocket gopher within the
UGA are included in this final critical habitat designation.
(13) Comment: One commenter suggested that Washington State
reclamation requirements for a gravel mining site located within the
proposed designation of critical habitat would result in improved
suitable habitat conditions for Mazama pocket gophers at this site
after being mined, compared to if mining were prohibited at this site.
Our Response: The Service has no data to support the commenter's
conclusion, but careful consideration of Mazama pocket gopher habitat
characteristics suggest that while the vegetative aspect of the habitat
may be improved, the net result would be detrimental. Mazama pocket
gophers evolved in structured soils associated with glacial outwash.
These soils have deep underlying beds of gravel, which quickly drains
away any water that may accumulate on the surface. Moving or removing
the soil from the surface would change the soil structure, while
extracting the gravel from below the soil would change the drainage
characteristics of the soil at the surface. Since the underlying gravel
formation is what provides the well-drained feature of these soils
necessary for pocket gopher survival (i.e., largely prevents burrows
and tunnels from being persistently inundated by water), any changes in
soil characteristics caused by mining will likely result in an
unrecoverable loss of a large amount of existing and restorable
habitat. In this particular instance, the subspecies (the Tenino pocket
gopher) represented at the mining site has the smallest known range of
any of the four Thurston/Pierce subspecies, and the removal of
significant acres of existing and restorable habitat from within its
range could have a detrimental impact on recovery of the subspecies.
(14) Comment: One commenter noted that the proposed rule
specifically identifies modification of soil profiles or composition
and structure of vegetation, including actions such as grading and
mowing, as actions that would adversely modify critical habitat. The
commenter interprets this to mean that a landowner would essentially be
prohibited from grading or mowing his or her property because such
activities would put the property owner at risk of violating the
``take'' prohibitions in the Act. The commenter also states that a
citizen suit could be brought under the Act asserting such a take has
occurred or been wrongfully permitted by the Washington Department of
Natural Resources or other regulatory body authorizing ongoing mining
operations. For these reasons, the commenter disputes the conclusion
that only Federal agencies are directly affected by designation of
critical habitat and that no small business entities or private
property owners are directly affected.
Our Response: We believe the commenter is confusing the regulatory
effects that may be associated with the listing of the species under
the Act, and the automatic protections associated with listing itself,
with the regulatory effects separately attributable to the designation
of critical habitat. The prohibition against ``take'' of a listed
species under section 9 of the Act applies to individuals of the listed
species. Therefore, if the listed species is present, it is accurate
that the landowner risks violation of section 9 of the Act if they
should implement some action that results in take of that species (the
Act defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct''), but section 9 is not attributable to the designation of
critical habitat. Although in most cases ``take'' refers to a direct
effect on an individual of the species, ``take'' may also apply to
actions that result in modification of the habitat of the species, in
cases where such modification may be considered to constitute ``harm''
to the listed species. Once a species is listed under the Act, the
provisions prohibiting take come into effect. These prohibitions are,
however, completely independent of the designation of critical habitat.
That is, the prohibition against take of the listed species applies
regardless of whether critical habitat is designated.
It is possible that there could be some economic impact associated
with actions required to avoid take of a listed species; however,
section 4(b)(1)(A) of the Act is clear that listing decisions are to be
made solely on the basis of the best scientific and commercial data
available. The Act does not provide for the consideration of potential
economic impacts in association with a listing determination; therefore
such impacts are not factored into our economic analysis.
Section 4(b)(2) of the Act, on the other hand, requires the
consideration of potential economic impacts associated with the
designation of critical habitat. However, as we have explained
elsewhere, the regulatory effect of critical habitat under the Act
directly impacts only Federal agencies, as a result of the requirement
that those agencies avoid ``adverse modification'' of critical habitat.
Specifically, section 7(a)(2) of the Act states that, ``Each Federal
agency shall, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried out by

[[Page 19719]]

such agency . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species which is
determined by the Secretary . . . to be critical . . .'' This then, is
the direct regulatory impact of a critical habitat designation, and
serves as the foundation of our economic analysis. We define it as an
``incremental impact'' because it is an economic impact that is
incurred above and beyond the baseline impacts that may stem from the
listing of the species (for example, costs associated with avoiding
take under section 9 of the Act, mentioned by the commenter), thus it
``incrementally'' adds to those baseline costs. However, in most cases,
and especially where the habitat in question is already occupied by the
listed species, if there is a Federal nexus, the action agency already
consults with the Service to ensure its actions will not jeopardize the
continued existence of the species; thus the additional costs of
consultation to further ensure the action will not destroy or adversely
modify critical habitat are usually relatively minimal. Because the Act
provides for the consideration of economic impacts associated only with
the designation of critical habitat, and because the direct regulatory
effect of critical habitat is the requirement that Federal agencies
avoid destruction or adverse modification of critical habitat, the
direct economic impacts of a critical habitat designation in occupied
areas are generally limited to the costs of consultations on actions
with a Federal nexus, and are primarily borne by Federal action
agencies. As described in our final economic analysis, in some cases
private individuals may incur some costs as third-party applicants in
an action with a Federal nexus. Beyond this, while small business
entities may possibly experience some economic impacts as a result of a
listing of a species as endangered or threatened under the Act, small
businesses generally do not experience any economic impacts as a direct
result of the designation of critical habitat.
We encourage any landowner concerned about potential take of listed
species on their property to contact the Service (see FOR FURTHER
INFORMATION CONTACT) to explore options for developing a safe harbor
agreement or habitat conservation plan that can provide for the
conservation of the species and offer management options to landowners,
associated with a permit for protect the party from violations under
section 9 of the Act.
(15) Comment: One commenter stated that the designation of critical
habitat on agricultural lands would be a ``death blow'' for many
members of the agricultural community. Another commenter had specific
questions about the effects of critical habitat designation on property
values and how potential loss of value might be mitigated or
compensated to the owner.
Our Response: The Service proposed to designate 775 acres (ac) (314
hectares (ha)) of active agricultural land as critical habitat in the
proposed rule, wholly owned by three individual landowners. One
landowner had a long-standing conservation agreement that allowed us to
exclude his entire property, totaling 378 ac (153 ha), due to
demonstrable benefit to the Mazama pocket gopher and its habitat (see
Exclusions section of this document). This benefit has been provided
through the landowner's conscientious stewardship, which outweighed the
conservation benefit of designation of critical habitat on his
property. This means that only two private landowners who are part of
the agricultural community may be affected by the designation of
critical habitat, rather than the ``many'' referenced in the comment
above. The designation of critical habitat is intended to highlight the
value of a particular area to the recovery of an endangered or
threatened species, since critical habitat is only identified if it is
considered essential to the recovery of a species. The Service
carefully considered the areas necessary to recover each subspecies of
the Mazama pocket gopher we deemed to be threatened before designating
critical habitat. We encourage any member of the public whose land has
been designated as critical habitat to contact the Service about
potential partnerships and ways to continue using the land that are
compatible with the conservation of the Mazama pocket gopher and its
habitat. Also see our responses to Comments (11) and (14) for an
explanation of the Federal nexus limitations of critical habitat. There
are many kinds of conservation agreements available through the Service
(contact the person listed under FOR FURTHER INFORMATION CONTACT) or
our partner agencies that may provide greater regulatory certainty for
a guarantee of conservation benefit to the species or habitat.
(16) Comment: One commenter stated that there is enough conserved
habitat upon which to recover the four subspecies of the Mazama pocket
gopher found in Thurston and Pierce Counties without the designation of
critical habitat.
Our Response: The designation of critical habitat is not an
optional exercise. According to section 4(a)(3)(A) of the Act, the
Secretary of the Interior shall, to the maximum extent prudent and
determinable, concurrently with making a determination that a species
is an endangered species or a threatened species, designate critical
habitat for that species. We have determined that critical habitat is
both prudent and determinable for the four Thurston/Pierce subspecies
of the Mazama pocket gopher. Therefore, as required by the Act, we
proposed for critical habitat those areas occupied by the species at
the time of listing and that contain the physical or biological
features essential for the conservation of the species, which may
require special management considerations or protection.
The Service acknowledges that there are conserved prairies that
superficially appear to have potential Mazama pocket gopher habitat,
but are currently unoccupied by Mazama pocket gophers. At this time,
there are insufficient data to enable us to conclude with confidence
that these areas provide suitable habitat. While recent efforts to
improve survivorship during translocation of Mazama pocket gophers into
unoccupied habitat have resulted in the multi-year persistence of an
experimental population, it is impossible to speak to the long-term
success of these efforts. Absent better data, the most reasonable
conclusion is that the optimal places to conserve the species are where
each subspecies currently exists, or has been known to exist, on the
landscape; that is, where habitat is undeniably suitable. There may be
opportunities to expand recovery efforts to include unoccupied
conserved prairies in the future, but at this time, the Service has
outlined the areas we believe are essential to the recovery of the
subspecies by highlighting the critical habitat identified in this
rule. We focused our identification of the proposed critical habitat on
areas with documented occupancy by the four Thurston/Pierce subspecies
of the Mazama pocket gopher and that provide the PCEs for those
subspecies, as we consider these areas to be key to the recovery of the
pocket gophers. However, as detailed further in our response to Comment
(10), above, due to the life history strategy of the pocket gophers and
the tendency for occupancy of some specific sites to appear to be
intermittent in some cases, it is possible that portions of some of the
areas we identified as occupied at the time of listing may be
considered unoccupied. As discussed in

[[Page 19720]]

the Critical Habitat section of this document, we have further
evaluated any such areas as if they were unoccupied at the time of
listing, and determined that all areas in this final critical habitat
rule are essential to the conservation of the species.

Comments on Economic Analysis

(17) Comment: One commenter said the Service must factor the
economic impact of the critical habitat designation into account when
assessing whether to exclude areas from critical habitat designations,
and decide whether the benefits of including the area outweigh the
benefits of excluding it. They further stated that this in turn
requires an assessment of whether any additional regulatory benefits
will come from critical habitat designation that can outweigh the
burdens the designation imposes.
Our Response: Our economic analysis identifies those economic
impacts that are attributable specifically to the designation of
critical habitat, for the purposes of considering whether the benefits
of excluding those areas (for example, to avoid disproportionate
economic impacts) may outweigh the benefit of including them in
critical habitat. It is the Service's position that, at a minimum,
critical habitat almost always carries with it at least some
educational value for landowners, in terms of clearly identifying those
areas that we consider to provide physical or biological features
essential for the conservation of the species. In addition, critical
habitat carries with it the requirement under section 7(a)(2) of the
Act that Federal agencies avoid actions that will destroy or adversely
modify critical habitat; this is a benefit that is not conveyed by
existing regulatory mechanisms absent a formal Federal rulemaking to
designate critical habitat. In our analyses, as described in detail in
the Exclusions section of this document, we weigh the benefits that
come with critical habitat against the burdens or costs that may be
associated with it.
In the case of the four Thurston/Pierce subspecies of the Mazama
pocket gopher, since each area proposed as critical habitat is also
currently occupied by one of the subspecies, many regulatory
protections will already be in place as a result of their listed status
under the Act, and these protections would exist regardless of whether
critical habitat were designated. Therefore, as explained in our DEA,
the incremental impact of the designation that is attributable to
critical habitat is relatively limited, and is primarily represented by
the administrative costs of Federal agencies conducting section 7
consultations under the adverse modification standard, above and beyond
the costs of consultations under the jeopardy standard (which must
always occur in areas occupied by the listed species, or occupied areas
that may be affected by the proposed action, regardless of critical
habitat). Further, it is possible that in some areas, an action may
occur in a unit or subunit of critical habitat designated in this final
rule that, as a result of exclusion, will take place in an area where
occupancy has not necessarily been definitively documented (for
example, where all remaining critical habitat within a unit or subunit
is on private lands, and access has not been granted to survey for the
presence of the Mazama pocket gopher). In such cases, if an action with
a Federal nexus that may affect critical habitat were to be proposed,
it is possible that the incremental economic impact of critical habitat
would be higher than estimated in the DEA. We have considered the
potential economic impact that may be expected in such a case, to the
extent permitted by the available data. This information is included in
the addendum to our final economic analysis, available at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0021.
(18) Comment: One commenter stated that the Draft Economic Analysis
failed to address the impact of the designation of critical habitat in
an area that contains a gravel mining operation.
Our Response: The proposed critical habitat acreage in the area
mentioned by the commenter is considered to be occupied by the Mazama
pocket gopher. As noted in the DEA and related incremental effects
memorandum, once a species is formally listed under the Act, its
presence within critical habitat will require implementation of certain
conservation efforts to avoid jeopardy concerns. In occupied critical
habitat, section 7 consultation (which is conducted only for actions
with a Federal nexus) would therefore consider not only the potential
for jeopardy to the continued existence of the species, but also the
potential for destruction or adverse modification of critical habitat.
In practice, however, we note that because the ability of these species
to exist is very closely tied to the quality of their habitats,
significant alterations of their occupied habitat may result in
jeopardy as well as adverse modification. Therefore, we anticipate that
recommendations to avoid jeopardy as a result of section 7 consultation
analyses will likely be similar to recommendations to avoid adverse
modification in occupied areas of habitat. Additional detail concerning
potential gravel mining activities in proposed critical habitat, along
with related consultation requirements, has been added to the final
memorandum to our economic analysis (IEc 2014). Due to uncertainty
regarding the timing of gravel extraction activities and uncertainty
surrounding the potential for a Federal nexus, we do not quantify a
specific number of consultations that may occur or any related
administrative burden. However, were a Federal nexus to exist for
gravel mining, because all units with potential gravel mining
activities are considered occupied by one or more of the species, no
incremental project modifications are expected to occur beyond what may
be required to avoid jeopardy of the species, and any incremental
impacts would be limited to the administrative burden of the portion of
consultations considering adverse modification. Such an administrative
burden would be unlikely to exceed $5,000 (in undiscounted dollars) per
consultation, and no more than one consultation per gravel mining
action is expected to occur. Therefore, should consultation occur,
incremental administrative impacts attributable to the designation of
critical habitat would be small.
In addition, to be conservative, we considered the potential
economic impacts of the designation on the gravel mining operation in
question as if the area were not occupied by the Mazama pocket gopher.
Details are available in the addendum to our final economic analysis,
but here we briefly summarize our findings in this regard: The gravel
mining operation in question occurs in what was proposed Subunit 1-D
(439 ac (178 ha) total), and is now the Rocky Prairie Unit for the
Tenino pocket gopher (399 ac (162 ha) total). Following the exclusion
of 35 ac (14 ha) of State lands at Rocky Prairie NAP, the area within
the proposed subunit that was surveyed on a regular basis and where
occupancy by the pocket gopher was definitively documented is no longer
included within the final critical habitat unit (see also our Response
to Comment (10), above). Approximately 380 ac (154 ha) of the 399 ac
(162 ha) of the critical habitat in the Rocky Prairie Unit is within
the bounds of privately owned lands where gravel mining or other
mineral extraction is planned; this area contains suitable habitat and
is within the historical range of the only known location of the Tenino
pocket gopher. Although we consider this site likely occupied by the
Tenino pocket gopher, even if the parcel were not presently occupied by
the listed species, we have

[[Page 19721]]

no evidence to suggest that there is a probable Federal nexus for any
action at this site; therefore there would be no direct economic impact
of critical habitat. Possible indirect effects of critical habitat, if
any, are too speculative to quantify. Furthermore, if there were a
Federal nexus and the action was found likely to destroy or adversely
modify critical habitat, the Service is required, where possible, to
provide reasonable and prudent alternatives (RPAs) that would allow the
action to proceed; such alternatives must be technologically and
economically feasible. In our experience, in the vast majority of cases
the Service is able to work with the action agency to successfully
avoid adverse modification.
(19) Comment: Several commenters stated that areas where subspecies
of the Mazama pocket gopher were determined to be threatened would bear
a greater economic burden than areas where subspecies of the Mazama
pocket gopher were not determined to need Federal protection.
Our Response: The Act, as it was written, does not allow the
economic effects of listing a species as an endangered species or
threatened species to be considered when making a status determination.
Potential economic impacts are allowable for consideration only in
association with the designation of critical habitat. The mandate of
the Act is to examine the evidence of threats to a species (or
subspecies) in an unbiased way, based on the best scientific and
commercial data available, and determine whether or not it is in danger
of extinction (endangered) or likely to become so within the
foreseeable future (threatened). We have determined that the Olympia,
Roy Prairie, Tenino, and Yelm subspecies of the Mazama pocket gopher
are threatened and warrant protection under the Act (see the final
listing rule published elsewhere in today's Federal Register).
Regardless of the Federal listing process, all eight subspecies of the
Mazama pocket gopher in the State of Washington are listed as
threatened by the State and, as such, will continue to require
compliance with State regulations.
The Act only provides for the consideration of economic impacts in
association with critical habitat, and not in association with the
listing of a species; therefore our analysis of potential economic
impacts is limited to the consideration of those impacts that are
attributable solely to the designation of critical habitat. As
previously stated, determinations regarding the status of the species
are to be made ``solely on the basis of the best scientific and
commercial data available'' to the Secretary. Therefore, any actual or
perceived ``burdens'' imposed by the listing of the species (for
example, actions that may be necessary to avoid violating section 9 of
the Act) are not considered in the weighing process for evaluating the
relative benefits of including an area in critical habitat versus the
benefits of excluding it from the final designation, as the regulatory
consequences of listing the species will be incurred regardless of
whether critical habitat is designated.
(20) Comment: One local Chamber of Commerce (Chamber) stated that
limiting the economic analysis to the anticipated costs of section 7
consultation and compliance, as was done in the DEA, omits necessary
analysis of the incremental impacts under section 9 of the Act of
critical habitat designation on these private landowners. Further, the
Chamber believes that the DEA should be expanded to include anticipated
costs to Thurston County jurisdictions and property owners associated
with changes to Thurston County land use plans and associated zoning
that Washington State's Growth Management Act (GMA) will require,
either in the short term, or in future planning update cycles,
resulting from critical habitat designation of resource lands and
properties located within cities and urban growth areas. The Chamber
also notes that protections stemming from critical habitat designation
may extend to ``buffering'' properties to support the population in the
area immediately around the Olympia Airport, with associated extended
impact of the proposal to an expanded group of properties. These costs
are expected to be substantial.
Our Response: Again, we believe the commenter is confusing the
regulatory effects that may be associated with the listing of the
species under the Act, and the associated automatic protections of the
listing, with the regulatory effects separately attributable to the
designation of critical habitat (see response to Comment (14), above).
In this case, we believe the commenter has erred by attributing
potential costs under section 9 of the Act to critical habitat
designation. Section 9 addresses acts that are prohibited with respect
to any endangered or threatened species of fish or wildlife listed
pursuant to section 4 of the Act; there is no prohibited act under
section 9 that would occur as a consequence of critical habitat
designation. As described in our response to Comment (14), the
regulatory effect of critical habitat is the requirement under section
7 of the Act that Federal agencies insure that any action they
authorize, fund, or carry out is not likely to destroy or adversely
modify critical habitat. As a result, the greatest economic impact of
critical habitat is most frequently associated with the additional
costs of section 7 consultation and compliance above and beyond the
jeopardy standard (in occupied areas), under the standard of adverse
modification.
We do not anticipate significant additional costs to be incurred on
adjacent properties as a result of critical habitat designation at the
Olympia Airport. We are not sure what the commenter is referring to by
``buffering'' of the critical habitat to support future expansion of
the population at the Olympia Airport. The final designation of
critical habitat is limited to those boundaries identified in this
final rule; critical habitat does not extend beyond those boundaries,
and the boundaries cannot change without engaging in rulemaking to
revise the critical habitat.
(21) Comment: Several commenters expressed concern that the
designation of Mazama pocket gopher critical habitat would result in
economic impacts to municipalities and development in general,
including delaying or precluding public works projects such as public
school facilities, utilities, and other services like wastewater
treatment. Another commenter asked what the expected reduction in
property values and loss in local property tax revenue would be from
the critical habitat designation, as well as asked what the economic
impacts would be from any resulting reduction in the amount of
productive land that could be used by ranchers and farmers.
Our Response: Chapter 3 of the DEA states that potential project
modifications for all activities, including development projects, in
critical habitat areas occupied by the four Thurston/Pierce subspecies
of the Mazama pocket gopher are likely to occur due to the presence of
the subspecies themselves, not because of the designation of critical
habitat. As each of the critical habitat units and subunits designated
for the Mazama pocket gopher are considered occupied by one of the
subspecies, all impacts to public works activities are baseline impacts
(i.e., impacts realized due to the listing of the subspecies, not to
designation of critical habitat). Thus, the DEA does not forecast any
increase in costs related to transportation projects or other public
works projects as a result of critical habitat designation.
Accordingly, the DEA also does not

[[Page 19722]]

forecast any diminution of property values or property tax revenues as
a result of designation, nor does the DEA forecast a reduction in land
available for productive use in farming or ranching applications. This
conclusion follows from the fact that each unit and subunit designated
is considered occupied by one of the subspecies. Thus, any of these
potential impacts would be considered baseline effects (also see
response to Comment (14), above).
(22) Comment: One commenter requested substantiated data
demonstrating a positive benefit (e.g., to economic growth, to the
ecosystem) from listing the four Thurston/Pierce subspecies of the
Mazama pocket gopher, and asked whether there had been an evaluation of
the economic impact of the pending action.
Our Response: As detailed in our response to Comment (19), above,
in making a determination as to whether a species meets the Act's
definition of an endangered species or threatened species, under
section 4(b)(1)(A) of the Act, the Secretary is to make that
determination based solely on the basis of the best scientific and
commercial data available (emphasis added). Producing a positive
benefit to the listing, cannot by law enter into the determination. The
evaluation of economic impacts comes into play only in association with
the designation of critical habitat under section 4(b)(2) of the Act,
as described in detail in our response to Comment (14). Chapter 3 of
the DEA does provide a qualitative discussion of potential benefits
attributable to the conservation of the species. Specifically, the DEA
focuses on potential benefits related to critical habitat designation.
It concludes that, because material changes in land or water management
are not envisioned as a result of critical habitat designation, no
incremental economic benefits are forecast to result from designation
of critical habitat. There may be ancillary benefits related to species
conservation resulting from the listing of the species. For example,
species conservation efforts may result in improved environmental
quality, which in turn may have collateral human health or recreational
use benefits. In addition, conservation efforts undertaken for the
benefit of an endangered or threatened species may enhance shared
habitat for other wildlife.
(23) Comment: One commenter requested that a portion of the
proposed critical habitat designation on the Olympia Airport be removed
from critical habitat due to future anticipated development at that
specific location.
Our Response: All areas proposed as critical habitat at the Olympia
Airport were identified as critical habitat because they are occupied
by the Olympia pocket gopher and those areas provide the essential
physical or biological features, which may require special management
considerations or protection. Such areas may be removed from the final
designation if we should determine that they do not, in fact, meet our
criteria for critical habitat (for example, they do not provide the
essential features), or if they are excluded by the Secretary. Section
4(b)(2) of the Act provides the Secretary with the discretion to
exclude certain areas upon a determination that excluding such areas
provides a greater benefit than including them in critical habitat. In
this case, since the Airport anticipates potentially developing the
area that is presently occupied by the listed species, we cannot
conclude that there is a greater benefit to exclusion from critical
habitat than from inclusion. However, we note that, as described in
detail in earlier responses, since the area in question is presently
occupied by the listed species, the Olympia Airport would be required
to consult on any anticipated development activity with a Federal nexus
under the jeopardy standard of section 7, regardless of whether the
area is included in critical habitat.

Summary of Changes From Proposed Rule

In our proposed rule, published December 11, 2012 (77 FR 73770), we
proposed 9,234 ac (3,737 ha) of critical habitat for the four Thurston/
Pierce subspecies of the Mazama pocket gopher in one unit comprised of
eight subunits in Thurston and Pierce Counties, Washington. The
proposed critical habitat represented 6,345 ac (2,567 ha) on Federal
lands, 820 ac (331 ha) on State lands, 1,258 ac (509 ha) on private
lands, and 811 ac (329 ha) on lands owned by local municipalities or
nonprofit conservation organizations.
We received a number of site-specific comments related to critical
habitat for the four Thurston/Pierce subspecies of the Mazama pocket
gopher; completed our analysis of areas considered for exemption under
section 4(a)(3)(B)(i) of the Act and for exclusion under section
4(b)(2) of the Act; reviewed the application of our criteria for
identifying critical habitat across the range of these four subspecies
to refine our designation; and completed the final economic analysis of
the designation as proposed. We fully considered all comments from peer
reviewers and the public on the proposed critical habitat rule and the
associated economic analysis to develop this final designation of
critical habitat for the four Thurston/Pierce subspecies of the Mazama
pocket gopher. This final rule incorporates changes to our proposed
critical habitat based on the comments that we received and have
responded to in this document, and considers completed final management
plans to conserve the subspecies under consideration.
As described in our Response to Comment (3), above (see Summary of
Comments and Recommendations), in our proposed rule we inadvertently
perpetuated an error reflecting the range of the Yelm pocket gopher.
That error began when detection sites and voucher specimens were
erroneously labeled with the name ``Thomomys mazama yelmensis,''
apparently based on the mistaken understanding that the taxonomy of the
subspecies had been revised and amended. This error was carried forward
into the 2005 Status Report for the Mazama pocket gopher (Stinson 2005)
and the WDFW Heritage Database, which we relied on, in part, to
determine the distribution of the Mazama pocket gopher subspecies in
our critical habitat proposal. Consequently, in some cases we
identified the Yelm pocket gopher as sympatric (overlapping in range)
with other subspecies of the Mazama pocket gopher, and as a result,
four of the subunits were mistakenly identified as proposed critical
habitat for more than one subspecies of the Mazama pocket gopher
(proposed Subunit 1-A, 91st Division Prairie--Roy Prairie and Yelm
pocket gophers; proposed Subunit 1-B, Marion Prairie--Roy Prairie and
Yelm pocket gophers; proposed Subunit 1-C, Olympia Airport--Olympia and
Yelm pocket gophers; proposed Subunit 1-D, Rocky Prairie--Tenino and
Yelm pocket gophers). Upon further review, however, we do not believe
that more than one subspecies was ever naturally present in the same
place, and the artifact of two subspecies' names in a single polygon
reflects an erroneous assumption that the taxonomy had been changed.
This resulted in collection records inaccurately showing the Yelm
pocket gopher as co-occurring with other subspecies within the four
subunits identified above. Our final critical habitat no longer
reflects this error; there is no overlap between the subspecies within
the critical habitat units delineated in this designation.
As we have now determined that only one subspecies occurs in each
of the critical habitat subunits that were initially proposed, it no
longer makes sense to amalgamate the critical habitat

[[Page 19723]]

for all four subspecies of the Mazama pocket gopher into a single unit
with multiple subunits. Each subspecies of the Mazama pocket gopher is
listed separately as a threatened species based on its own status (see
the final listing rule published elsewhere in today's Federal
Register), and critical habitat is determined separately for each
subspecies. Therefore, we believe it makes sense to designate critical
habitat in separate units specific to each subspecies. As a result, in
this final rule, we are designating critical habitat in three units for
the Olympia, Tenino, and Yelm pocket gophers as follows:
Critical habitat for the Olympia pocket gopher is
designated in one unit, the Olympia Airport Unit (Subunit 1-C in the
proposed rule).
Critical habitat for the Tenino pocket gopher is
designated in one unit, the Rocky Prairie Unit (Subunit 1-D in the
proposed rule).
Critical habitat for the Yelm pocket gopher is designated
in one unit composed of two subunits: the Tenalquot Prairie Subunit
(Subunit 1-E in the proposed rule) and the Rock Prairie Subunit
(Subunit 1-H in the proposed rule).
As described elsewhere, although critical habitat was identified
for the Roy Prairie pocket gopher in two of the proposed critical
habitat subunits, those subunits are exempted from this final
designation under section 4(a)(3) of the Act.
In addition to the changes described above, our final designation
of critical habitat reflects the following changes from the proposed
rule:
(1) As directed by section 4(a)(3)(B)(i) of the Act, we have
exempted 6,345 ac (2,567 ha) of Department of Defense lands at JBLM
based on the completion of an endangered species management plan (ESMP)
under their 2006 Integrated Natural Resources Management Plan (INRMP)
that we have determined, in writing, provides a conservation benefit to
the Mazama pocket gopher. The areas proposed included lands occupied by
the Roy Prairie pocket gopher in two subunits and the Yelm pocket
gopher in a third subunit. The exemption of JBLM lands resulted in the
elimination of two proposed subunits in their entirety (proposed
subunits 1-A and 1-B, 91st Division Prairie and Marion Prairie,
respectively) from the critical habitat designation. These two subunits
were the only proposed subunits occupied by the Roy Prairie pocket
gopher and represented all critical habitat proposed in Pierce County,
Washington. Therefore, as a result of this exemption, there is no final
critical habitat designated in Pierce County, Washington, and no
critical habitat is designated for the Roy Prairie pocket gopher. We
also exempted JBLM lands in Thurston County where they were proposed,
which resulted in the reduction of proposed critical habitat Subunit 1-
E (in this final rule, Tenalquot Prairie Subunit for the Yelm pocket
gopher). See the Exemptions section of this document for details.
(2) As indicated for consideration in our proposed rule, we have
excluded 1,281 ac (518 ha) of State and private lands under section
4(b)(2) of the Act, based on existing land management plans and
conservation partnerships that the Secretary deemed to provide greater
conservation benefit to the four Thurston/Pierce subspecies of the
Mazama pocket gopher than would inclusion in designated critical
habitat (see the Exclusions section of this document). These exclusions
resulted in the elimination of two subunits in their entirety (proposed
subunits 1-F and 1-G, West Rocky Prairie and Scatter Creek,
respectively). In addition, proposed subunits 1-D and 1-H (now Rocky
Prairie Unit for the Tenino pocket gopher and Rock Prairie Subunit for
the Yelm pocket gopher, respectively) have both been reduced in size.
(3) We note that the proposed West Rocky Prairie Subunit 1-F has
been excluded under section 4(b)(2) based on a beneficial management
plan for the Mazama pocket gopher and the ongoing partnership between
the Service and our State counterparts at WDFW. The West Rocky Prairie
subunit was originally proposed for the Olympia pocket gopher (Thomomys
mazama pugetensis) because this area provides the PCEs and is presently
occupied by the Olympia pocket gopher. However, the Olympia pocket
gopher occurs at West Rocky Prairie only because the subspecies was
experimentally translocated into the historical range of the Tenino
pocket gopher (T. m. tumuli), which is restricted to this area and
therefore recovery of the Tenino pocket gopher may require its use.
While West Rocky Prairie has been excluded from critical habitat, we
continue to consider it important to the conservation of the Tenino
pocket gopher.
(4) All subunits proposed as critical habitat were occupied by the
Mazama pocket gopher at the time of the proposed listing (December
2012). As described in our proposed rule, we identified critical
habitat from determinations of occupancy based on recent surveys,
within the previous 5 years, and the presence of one or more of the
physical or biological features essential to the conservation of the
species. For the Mazama pocket gopher, occupancy was thus determined
based on the documented presence of the subspecies in association with
the soil types, area, and vegetative cover type required, in
association with lack of barriers to dispersal. However, in this final
designation, due to exclusions in portions of proposed subunits 1-D
(Rocky Prairie) and 1-H (Rock Prairie), the specific areas where we had
the most definitive documentation of occupancy are no longer included
within the final unit and subunit in this designation. We wish to
emphasize that we still consider the Rocky Prairie Unit for the Tenino
pocket gopher (proposed Subunit 1-D), and Rock Prairie Subunit for the
Yelm pocket gopher, to be likely occupied, because we have documented
occupancy of the subspecies in the area directly adjacent to the
remaining the unit and subunit designated, the physical or biological
features essential to the subspecies are present and continuous with
the area of documented occupancy, and any potential barriers to
dispersal are permeable. Mazama pocket gophers are relatively solitary
and highly territorial; therefore, juveniles must disperse to establish
their own territories, meaning that individuals are expected to move
across the landscape if suitable habitat is present. Considering all of
these factors, it is reasonable to conclude that the subspecies is
likely present in the Rocky Prairie Unit and Rock Prairie Subunit.
However, we also considered the importance of the final Rocky Prairie
Unit and Rock Prairie Subunit as if they were unoccupied, and have
determined that they are essential to the conservation of the listed
subspecies (see the Critical Habitat section of this document for
details). Therefore, as designated, both the Rocky Prairie Unit for the
Tenino pocket gopher and the Rock Prairie Subunit for the Yelm pocket
gopher continue to meet our definition of critical habitat.
(5) Due to the exemption and exclusion of proposed critical habitat
subunits in their entirety, and due to the clarification of the range
of each subspecies, as described above, the critical habitat that
remains has been renamed and renumbered to make it clear that each unit
is designated for a single subspecies of the Mazama pocket gopher
within that subspecies' respective range (see Table 1). We are
designating three critical habitat units, one for each subspecies; two
subunits comprise critical habitat for the Yelm pocket gopher, and the
Olympia and Tenino pocket gophers each have one single unit of critical
habitat.

[[Page 19724]]

Table 1--Summary of Changes From Proposed Rule in Critical Habitat Unit Identification and Subspecies Occupancy of Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proposed rule Final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corrected
Subspecies subspecies present
Subunit Name identified at time Critical habitat Location name at time of final Status of critical
of proposed listing unit listing and habitat
and designation designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-A................... 91st Division Roy Prairie, Yelm NA.................. NA.................. Roy Prairie pocket Exempted.
Prairie. pocket gophers. gopher.
1-B................... Marion Prairie...... Roy Prairie, Yelm NA.................. NA.................. Roy Prairie pocket Exempted.
pocket gophers. gopher.
1-C................... Olympia Airport..... Olympia, Yelm pocket Olympia Pocket Olympia Airport Unit Olympia pocket Designated.
gophers. Gopher Critical gopher.
Habitat.
1-D................... Rocky Prairie....... Tenino, Yelm pocket Tenino Pocket Gopher Rocky Prairie Unit.. Tenino pocket Designated (some
gophers. Critical Habitat. gopher. areas excluded).
1-E................... Tenalquot Prairie... Yelm pocket gopher.. Yelm Pocket Gopher Tenalquot Prairie Yelm pocket gopher. Designated (some
Critical Habitat. Subunit. areas exempted).
1-F................... West Rocky Prairie.. Olympia pocket NA.................. NA.................. Olympia pocket Excluded.
gopher. gopher.
1-G................... Scatter Creek....... Yelm pocket gopher.. NA.................. NA.................. Yelm pocket gopher. Excluded.
1-H................... Rock Prairie........ Yelm pocket gopher.. Yelm Pocket Gopher Rock Prairie Subunit Yelm pocket gopher. Designated (some
Critical Habitat. areas excluded).
--------------------------------------------------------------------------------------------------------------------------------------------------------

(6) Based on information received from our Federal and State
partners and from the public during our three open comment periods, we
have made numerous technical corrections and clarifications throughout
the rule. We specifically clarified the language referencing the
primary constituent elements (PCEs) in relation to soils, and we
specified the application of those PCEs to make it clear that PCEs only
exist within the boundaries of the final critical habitat units
(Olympia, Tenino) or subunits (Yelm), not within the interstitial,
undesignated areas that were encompassed by the larger unit boundary in
the proposed rule. We added this clarifying language due to feedback
received on our proposed rule, where Unit 1-South Sound broadly
encompassed a number of smaller subunits proposed for the Thurston/
Pierce subspecies of the Mazama pocket gopher.
(7) We updated the Physical or Biological Features section and PCEs
in the preamble of this document to specify the soil series and soil
series complexes that define the critical habitat of each subspecies
and to accurately reflect the PCEs as described in the Regulation
Promulgation section of this rule, including a more thorough
description of barriers.
(8) As noted under (1), above, the exemption of critical habitat on
JBLM under section 4(a)(3)(B)(i) of the Act resulted in the elimination
of all critical habitat that was proposed for the Roy Prairie pocket
gopher (Thomomys mazama glacialis). We include information about the
Roy Prairie pocket gopher in the preamble discussion and define the
PCEs used to delineate critical habitat for the subspecies, since we
believe this information provides valuable information to the public,
but do not include the Roy Prairie pocket gopher in the Regulation
Promulgation section of this rule because no critical habitat is
designated for this subspecies as a result of this exemption.
In this final rule, we are designating 1,607 ac (650 ha) in
Thurston County, Washington, as critical habitat for the Olympia,
Tenino, and Yelm subspecies of the Mazama pocket gopher. The Olympia
pocket gopher has a single unit of critical habitat (Olympia Airport),
the Tenino pocket gopher has a single unit of critical habitat (Rocky
Prairie), and two separate subunits (Tenalquot Prairie and Rock
Prairie) comprise a single critical habitat unit for the Yelm pocket
gopher. Following exclusions and exemptions, this final designation of
critical habitat is composed of 796 ac (322 ha) of private land and 811
ac (329 ha) of land owned by municipal corporations or nonprofit
conservation organizations.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resource management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement

[[Page 19725]]

reasonable and prudent alternatives to avoid destruction or adverse
modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time, and may use only small portions of designated critical
habitat at any given time. We recognize that critical habitat
designated at a particular point in time may not include all of the
habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated area is
unimportant or may not be needed for recovery of the species. Areas
that are important to the conservation of the species, both inside and
outside the critical habitat designation, will continue to be subject
to: (1) Conservation actions implemented under section 7(a)(1) of the
Act, (2) regulatory protections afforded by the requirement in section
7(a)(2) of the Act for Federal agencies to insure their actions are not
likely to jeopardize the continued existence of any endangered or
threatened species, and (3) section 9 of the Act's prohibitions on
taking any individual of the species, including taking caused by
actions that affect habitat. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. These
protections and conservation tools will continue to contribute to
recovery of this species. Similarly, critical habitat designations made
on the basis of the best scientific data available at the time of
designation will not control the direction and substance of future
recovery plans, habitat conservation plans (HCPs), or other species
conservation planning efforts if new information available at the time
of these planning efforts calls for a different outcome.

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the four Thurston/Pierce subspecies of the Mazama pocket gopher
from studies of their habitat, ecology, and life history as described
in the Habitat and Life History section of the final listing rule,
published elsewhere in today's Federal Register, and in the information
below. We have determined that the four Thurston/Pierce subspecies of
the Mazama pocket gopher require the following physical or biological
features:

Space for Individual and Population Growth and for Normal Behavior

Pocket gophers have low vagility, meaning they have a limited
dispersal range (Williams and Baker 1976, p. 303). Thomomys mazama
pocket gophers are smaller in size than other sympatric (occurring
within the same geographic area; overlapping in distribution) or
parapatric (immediately adjacent to each other but not significantly
overlapping in distribution) Thomomys species (Verts and Carraway 2000,
p. 1). Both dispersal distances and home range size are therefore
likely to be smaller than for other Thomomys species. Dispersal
distances may vary based on surface or soil conditions and size of the
animal. For other, larger, Thomomys species, dispersal distances
average about 131 ft (40 m) (Barnes 1973, pp. 168-169; Williams and
Baker 1976, p. 306; Daly and Patton 1990, pp. 1286, 1288). Initial
results from dispersal research being conducted on JBLM indicate that
juvenile Mazama

[[Page 19726]]

pocket gophers in Washington usually make movements from 13.1-32.8 ft
(4-10 m) over a period of 1 to 56 days, though these may not be
dispersal movements. One juvenile made a distinct dispersal movement of
525 ft (160m) in 1 day (Olson 2012b, p. 5). Suitable dispersal habitat
is free of barriers to gopher movement, and may need to contain
foraging habitat if an animal is required to make a long-distance
dispersal move. Potential barriers include, but are not limited to,
forest edges, roads (paved and unpaved), abrupt elevation changes,
Scot's broom (Cytisus scoparius) thickets, (Olson 2012b, p. 3), highly
cultivated lawns, inhospitable soil types (Olson 2008, p. 4) or
substrates, development and buildings, slopes greater than 35 percent,
and open water. Barriers may be permeable, meaning that they may impede
movement from place to place without completely blocking it, or they
may be impermeable, meaning they cannot be crossed. Permeable barriers,
as well as lower-quality dispersal habitats, may present an intensified
risk of mortality to animals that use them (e.g., open areas where
predation risk is increased during passage or a paved area where
vehicular mortality is high).
The home range of a Mazama pocket gopher is composed of suitable
breeding and foraging habitat (described below, under ``Food, water,
air, light, minerals, or other nutritional or physiological
requirements''). Home range size varies based on factors such as soil
type, climate, and density and type of vegetative cover (Cox and Hunt
1992, p. 133; Case and Jasch 1994, p. B-21; Hafner et al. 1998, p.
279). Little research has been conducted regarding home range size for
individual Mazama pocket gophers. Witmer et al. (1996, p. 96) reported
an average home range size of about 1,076 square feet (ft\2\) (100
square meters (m\2\)) for Mazama pocket gophers in one location in
Thurston County, Washington. Gopher density varies greatly due to local
climate, soil suitability, and vegetation types (Case and Jasch 1994,
p. B-21; Howard and Childs 1959, pp. 329-336), and densities are likely
to be higher when habitat quality is better. Therefore, this one report
on the Mazama pocket gopher (Witmer et al. 1996) is unlikely to
represent the average density across all soil types, vegetation types,
and other unique site characteristics across the ranges of the four
Thurston/Pierce subspecies of the Mazama pocket gopher. Research on
other species of Thomomys pocket gophers in other states showed a wide
range of home range sizes from approximately 80-14,370 ft\2\ (7.4-335
m\2\). Some of these are estimates based on density of gophers trapped
per acre, and some are based on measurements of individual gopher
territory sizes.
Work done by Converse et al. (2010, pp. 14-15) estimated that a
local population of Mazama pocket gophers could persist for at least 50
years if it occurred on a habitat patch that was equal to or greater
than 50 ac (20 ha) in size. We acknowledge the uncertainty with this
estimate, but there are currently no studies regarding minimum patch
size available for the Mazama pocket gopher, nor are there any obvious
means by which a better answer can be obtained. Thus, the best
available scientific data in this case is the opinion of an informed
expert panel. We also acknowledge that the existence of peripheral,
perhaps smaller, habitat patches can provide important stepping-stone
opportunities for gene exchange between core areas. These peripheral
areas are likely to be intermittently occupied, because of poor or
limited resources and overall size of the patch, but they are also
likely to be recolonized on a regular basis, particularly if such areas
are close (i.e., well within dispersal distance), of an occupied site.
Therefore, based on the information above, we identify patches of
breeding and foraging habitat that are equal to or greater than 50 ac
(20 ha) in size or within dispersal distance of each other, as well as
corridors of suitable dispersal habitat, as physical or biological
features essential to the conservation of the four Thurston/Pierce
subspecies of the Mazama pocket gopher.

Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements and Sites for Breeding, Reproduction, or
Rearing (or Development) of Offspring

The four Thurston/Pierce subspecies are associated with glacial
outwash prairies in western Washington, an ecosystem of conservation
concern (Hartway and Steinberg 1997, p. 1). Steinberg and Heller (1997,
p. 46) found that Mazama pocket gophers are even more patchily
distributed than are the prairie habitats they inhabit. That is, there
are some seemingly high quality prairies within the species' range
where pocket gophers have not been detected. Prairie habitats have a
naturally patchy distribution, and within them, there is a patchy
distribution of soil rockiness (Steinberg and Heller 1997, p. 45; WDFW
2009a), which may further restrict the total area that gophers can
utilize since they avoid areas of excessive rockiness. Other habitat
characteristics gophers required for successful burrowing and foraging
may also be patchily distributed (e.g., micro-site locations of
impermeable soils and substrates, or seasonal water table depth that
affects suitability of soils for burrowing) or ephemerally available
(e.g., forage vegetation), causing gophers to avoid or not use some
areas.
Of the glacial outwash prairie soils or prairie-like soils present
in western Washington, the four Thurston/Pierce subspecies of the
Mazama pocket gopher are most often found in deep, well-drained,
friable soils capable of supporting the forbs, bulbs, and grasses that
are the preferred forage for gophers (Stinson 2005, pp. 22-23).
In order to support typical Mazama pocket gopher forage plants,
areas supporting Mazama pocket gophers tend to be largely free of
shrubs and trees. Woody plants shade out the forbs, bulbs, and grasses
that gophers prefer to eat, and high densities of woody plants make
travel both below and above the ground difficult for gophers. The
probability of Mazama pocket gopher occupancy is much higher in areas
with less than 10 percent woody vegetation cover (Olson 2011, p. 16).
Although some soils used by Mazama pocket gophers are relatively
sandy, gravelly, or silty, those most frequently associated with the
four Thurston/Pierce subspecies are loamy and deep, have slopes
generally less than 15 percent, based on a comparison of gopher
occurrence data with soil series slope information. These soils also
tend to have good drainage or permeability. These soil types
additionally provide the essential physical and biological features of
cover or shelter, as well as sites for breeding, reproduction, or
rearing of offspring. Soil series or soil series complexes where
individuals of the four Thurston/Pierce subspecies of the Mazama pocket
gopher may be found include, but are not limited to Alderwood, Cagey,
Everett, Everett-Spanaway complex, Everett-Spanaway-Spana complex,
Godfrey, Indianola, Kapowsin, McKenna, Nisqually, Norma, Spana, Spana-
Spanaway-Nisqually complex, Spanaway, Spanaway-Nisqually complex, and
Yelm. These soil series and soil series complex names were derived from
a GIS overlay of gopher locations with NRCS soil survey maps. These
soil type names are very broad-scale soil series names, and don't
include the more specific soil characteristics that come with a full
soil map unit name, such as ``Spanaway gravelly sandy loam, 0 to 3
percent slopes.'' We are purposely not using specific map unit names
because we know that there are imperfections in soil

[[Page 19727]]

mapping. Mapped soil survey information may be imperfect for a variety
of reasons. First, maps are based on the technology, standards, and
tools that were available at the time soil surveys were conducted,
sometimes up to 50 years ago. We recognize that soil survey boundaries
may be adjusted in the future, and that soil series names may be added
or removed on the NRCS's soil survey maps database. As a result, the
overlap of gopher locations with soil series names may be different in
the future. The soils information presented here is based on best
scientific data available at the time of this rulemaking. We also
recognize that some of these soil series are not typically either deep
or well-drained. For a variety of reasons, a specific mapped soil type
may or may not have all of the characteristics of that soil type as
described by NRCS, and the actual soil that occurs on the ground may
have characteristics that make it inhabitable by Mazama pocket gophers.
These reasons may include map boundary or transcription errors, map
projection errors or differences, map identification or typing errors,
soil or hydrological manipulations that have occurred since mapping
took place, small-scale inclusions in the mapped soil type that are
different from the mapped soil, etc. Nevertheless, based on best
available data, these are the areas where Mazama pocket gopher
locations and mapped soils have been found to overlap when mapped in
GIS. All of these soils could potentially be suitable for any of the
four Thurston/Pierce subspecies of the Mazama pocket gopher. In
addition, the four Thurston/Pierce subspecies of the Mazama pocket
gopher may be able to forage or burrow in soil series not on the above
list. For these reasons, our list of soils may be incomplete or appear
to be overly inclusive. Despite this, we have only designated critical
habitat for each subspecies within its known historical range.
Encroachment of woody vegetation into the habitat of the four
Thurston/Pierce subspecies of the Mazama pocket gopher continues to
further reduce the size of the remaining prairies and prairie-type
areas, thus reducing the amount of habitat available for gophers to
burrow, forage, and reproduce. Historically these areas would have been
maintained by natural or human-caused fires. Fire suppression allows
Douglas-fir and other woody plants to encroach on and overwhelm prairie
habitat (Stinson 2005, p. 7). Mazama pocket gophers require areas where
natural disturbance or management prevents the encroachment of woody
vegetation into their preferred prairie or meadow habitats.
Therefore, based on the information above, we identify soil series
and soil series complexes that are known to support the Mazama pocket
gopher in Washington (listed above), and vegetative habitat with less
than 10 percent woody plant cover, that provides for breeding,
foraging, and dispersal as physical or biological features essential to
the conservation of the Mazama pocket gopher.

Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of a Species

Predation, specifically feral and domestic cat and dog predation,
is a threat to the four Thurston/Pierce subspecies of the Mazama pocket
gopher. Urbanization exacerbates this threat with the addition of feral
and domestic cats and dogs into the matrix of pocket gopher habitat.
Many pets are not controlled by their owners in the semi-urban and
rural environments that the four Thurston/Pierce subspecies of the
Mazama pocket gopher currently inhabit, leading to uninhibited
predation of native animals. Where local populations of native wild
animals are small or declining, predation can drive populations farther
toward extinction (Woodworth 1999, pp. 74-75). Due to their solitary
and territorial nature, many sites occupied by one of the four
Thurston/Pierce subspecies of the Mazama pocket gopher may contain a
small number of individuals and occur in a matrix of residential and
agricultural development, with feral and domestic pets in the vicinity.
Some occupied areas may also occur in places where people recreate with
their dogs, bringing these potential predators into environments that
may otherwise be relatively free of them. As described in the final
listing rule, published elsewhere in today's Federal Register, Mazama
pocket gophers need areas free of the threat of predation by feral and
domestic cats and dogs.
In Washington it is currently illegal to trap or poison Mazama
pocket gophers (WAC 232-12-011, RCW 77.15.194), but not all property
owners are aware of these laws, nor are most citizens capable of
differentiating between mole and pocket gopher soil disturbance. In
light of this, it is reasonable to believe that mole trapping and
poisoning efforts have the potential to adversely impact pocket gopher
populations within the range of the four Thurston/Pierce subspecies of
the Mazama pocket gopher. Mazama pocket gophers require areas free of
human disturbance from trapping and poisoning.
Therefore, based on the information above, we identify areas where
gophers are protected from predation by feral or domestic animals, as
well as from human disturbance in the form of trapping and poisoning,
as physical or biological features essential to the conservation of the
Mazama pocket gopher.

Primary Constituent Elements for the Four Thurston/Pierce Subspecies of
the Mazama Pocket Gopher

Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the four Thurston/Pierce subspecies of the Mazama
pocket gopher in areas occupied at the time of listing, focusing on the
features' primary constituent elements. Primary constituent elements
are those specific elements of the physical or biological features that
provide for a species' life-history processes and are essential to the
conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
subspecies' life-history processes, we determine that the primary
constituent elements specific to the four Thurston/Pierce subspecies of
the Mazama pocket gopher are:
(1) Soils that support the burrowing habits of the Mazama pocket
gopher, and where the four Thurston/Pierce subspecies of the Mazama
pocket gopher may be found. These are usually friable, loamy, and deep
soils, some with relatively greater content of sand, gravel, or silt,
all generally on slopes less than 15 percent. Most are moderately to
well-drained, but some are poorly drained. The range of each subspecies
of the Mazama pocket gopher overlaps with a subset of potentially
suitable soil series or soil series complexes. Here we describe the
suitable soil series or soil series complexes that may occur within the
range of each subspecies. As we state above, all of the soil series or
soil series complexes listed in the Physical or Biological Features
section could potentially be suitable for any of the four Thurston/
Pierce subspecies of the Mazama pocket gopher:
a. Olympia pocket gopher (Thomomys mazama pugetensis) soils include
the following soil series or soil series complex:

i. Alderwood;
ii. Cagey;
iii. Everett;
iv. Godfrey;

[[Page 19728]]

v. Indianola;
vi. Kapowsin;
vii. McKenna;
viii. Nisqually;
ix. Norma;
x. Spana;
xi. Spanaway;
xii. Spanaway-Nisqually complex; and
xiii. Yelm.

b. Roy Prairie pocket gopher (Thomomys mazama glacialis) soils
include the following soil series or soil series complexes:
i. Alderwood;
ii. Everett;
iii. Everett-Spanaway complex;
iv. Everett-Spanaway-Spana complex;
v. Nisqually;
vi. Spana-Spanaway-Nisqually complex; and
vii. Spanaway.

c. Tenino pocket gopher (Thomomys mazama tumuli) soils include the
following soil series or soil series complex:
i. Alderwood;
ii. Cagey;
iii. Everett;
iv. Indianola;
v. Kapowsin;
vi. Nisqually;
vii. Norma;
viii. Spanaway;
ix. Spanaway-Nisqually complex; and
x. Yelm.

d. Yelm pocket gopher (Thomomys mazama yelmensis) soils include the
following soil series or soil series complex:

i. Alderwood;
ii. Cagey;
iii. Everett;
iv. Godfrey;
v. Indianola;
vi. Kapowsin;
vii. McKenna;
viii. Nisqually;
ix. Norma;
x. Spanaway;
xi. Spanaway-Nisqually complex; and
xii. Yelm.

(2) Areas equal to or larger than 50 ac (20 ha) in size that
provide for breeding, foraging, and dispersal activities, found in the
soil series or soil series complexes listed in (1), above, that have:
a. Less than 10 percent woody vegetation cover;
b. Vegetative cover suitable for foraging by gophers. Pocket
gophers' diet includes a wide variety of plant material, including
leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs
and grasses that Mazama pocket gophers are known to eat include, but
are not limited to: Achillea millefolium (common yarrow), Agoseris spp.
(agoseris), Cirsium spp. (thistle), Bromus spp. (brome), Camassia spp.
(camas), Collomia linearis (tiny trumpet), Epilobium spp. (several
willowherb spp.), Eriophyllum lanatum (woolly sunflower), Gayophytum
diffusum (groundsmoke), Hypochaeris radicata (hairy cat's ear),
Lathyrus spp. (peavine), Lupinus spp. (lupine), Microsteris gracilis
(slender phlox), Penstemon spp. (penstemon), Perideridia gairdneri
(Gairdner's yampah), Phacelia heterophylla (varileaf phacelia),
Polygonum douglasii (knotweed), Potentilla spp. (cinquefoil), Pteridium
aquilinum (bracken fern), Taraxacum officinale (common dandelion),
Trifolium spp. (clover), and Viola spp. (violet); and
c. Few, if any, barriers to dispersal within the unit or subunit.
Barriers to dispersal may include, but are not limited to, forest
edges, roads (paved and unpaved), abrupt elevation changes, Scot's
broom thickets, (Olson 2012b, p. 3), highly cultivated lawns,
inhospitable soil types (Olson 2008, p. 4) or substrates, development
and buildings, slopes greater than 35 percent, and open water.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the four Thurston/Pierce subspecies of the Mazama pocket gopher through
the identification of the primary constituent elements sufficient to
support the life-history processes of the subspecies. We have
determined that the final unit designated as critical habitat for the
Olympia pocket gopher and the Tenalquot Prairie subunit for the Yelm
pocket gopher are currently occupied by the listed subspecies and
contain one or more of the primary constituent elements essential to
the conservation of the species. We have determined that the final
critical habitat unit for the Tenino pocket gopher and the Rock Prairie
Subunit for the Yelm pocket gopher are likely occupied by the
subspecies and contain one or more of the primary constituent elements
essential to the conservation of the species; however, due to
exclusions from the proposed subunits, we do not at this time have
definitive evidence of occupancy at that scale. Therefore, to be
conservative, we have also evaluated the Rocky Prairie Unit and Rock
Prairie Subunit identified here as critical habitat under the standard
of section 3(5)(a)(ii) of the Act, and determined that they are
essential to the conservation of the species, as described in Criteria
Used to Identify Critical Habitat, below. We have further determined
that the physical or biological features essential to the conservation
of the Olympia, Tenino, and Yelm subspecies of the Mazama pocket gopher
require special management considerations or protection, as described
below.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. Here we describe the type of special management
considerations or protections that may be required to protect the
physical or biological features identified as essential for Mazama
pocket gophers.
All areas designated as critical habitat will require some level of
management to address the current and future threats to the four
Thurston/Pierce subspecies of the Mazama pocket gopher and to maintain
or enhance the PCEs present. A detailed discussion of activities
influencing the four Thurston/Pierce subspecies of the Mazama pocket
gopher and their habitats can be found in the final listing rule,
published elsewhere in the Federal Register today. Threats to the
physical or biological features that are essential to the conservation
of these subspecies and that may warrant special management
considerations or protection include, but are not limited to: (1) Loss
of habitat from conversion to other uses; (2) use of heavy equipment in
suitable habitat that may compact soils in the control of nonnative,
invasive species; (3) development; (4) construction and maintenance of
roads and utility corridors; (5) predation by feral or domestic
animals; and (6) habitat modifications brought on by succession of
vegetation due to lack of disturbance, both small- and large-scale; and
(7) control as a pest species. These threats also have the potential to
affect the PCEs if they occur within or adjacent to designated units.
The physical or biological features essential to the conservation
of the four Thurston/Pierce subspecies of the Mazama pocket gopher may
require special management considerations or protection to control or
prevent the establishment of invasive woody plants, which create shade
and compete for light, food and nutrients otherwise utilized by the
forb, bulb, and grass species that the gophers require for forage.
Management may be implemented using hand tools or mechanical methods,
prescribed fire,

[[Page 19729]]

and the judicious use of herbicides. Although several management
techniques are being implemented on public lands, we may need to
improve our outreach to educate private landowners on controlling their
pets and appropriately managing grazing on their properties, as well as
to developing incentives for landowners who agree to conserve habitat.
Incentives would create protected areas, through agreements or
acquisitions. These would include corridors between existing protected
habitat areas that may require management, enhancement actions, and
long-term maintenance.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species and identify occupied areas at the time of listing that
contain the features essential to the conservation of the species. If
after identifying currently occupied areas, a determination is made
that those areas are inadequate to ensure conservation of the species,
in accordance with the Act and our implementing regulations at 50 CFR
424.12(e) we then consider whether designating additional areas--
outside those currently occupied--is essential for the conservation of
the species.
We plotted the known locations of the four Thurston/Pierce
subspecies of the Mazama pocket gopher where they occur in the south
Puget Sound lowlands using 2011 NAIP digital imagery in ArcGIS, version
10 (Environmental Systems Research Institute, Inc.), a computer
geographic information system program. We additionally examined the
USDA NRCS GIS soils data layer to determine the extent of suitable soil
formation underlying occupied areas (accessed June 20, 2008 for
Thurston County; received from JBLM May 30, 2013 for Pierce County).
To determine if the currently occupied areas contain the primary
constituent elements, we assessed the life history components and the
distribution of the subspecies through element occurrence records in
State Natural Heritage Databases and natural history information on
each of the subspecies as they relate to habitat.

Occupied Areas

For all of the Thurston/Pierce subspecies of the Mazama pocket
gopher we proposed critical habitat only in areas within the
geographical area we consider likely occupied at the time of listing.
All units and subunits that were proposed as critical habitat for the
Olympia, Tenino, and Yelm subspecies of the Mazama pocket gopher were
currently occupied as determined by recent surveys, within 5 years
prior to the publication of the proposed rule (JBLM 2012; Krippner
2011, pp. 25-29; WDFW 2012a), and all provide one or more of the
physical or biological features that may require special management
considerations or protection, as described in the unit and subunit
descriptions that follow. As the result of exclusions under section
4(b)(2) of the Act, the areas that best met our criterion for
documented occupancy in two of the proposed subunits (proposed Subunit
1-D and 1-H) are no longer included in this final designation;
therefore the occupancy of the remaining critical habitat is more
uncertain. Although we conclude the areas in question are likely
occupied, as described below in the section Potentially Unoccupied
Areas, to be conservative we have additionally evaluated these
remaining areas as if they are not occupied at the time of listing, and
determined that they are nonetheless essential to the conservation of
the species. Finally, although critical habitat proposed for the Roy
Prairie pocket gopher also met these fundamental criteria for
occupancy, as explained below in the section Application of Section
4(a)(3) of the Act, critical habitat proposed for the Roy Prairie
pocket gopher has been exempted from this final designation.
As described in the Physical or Biological Features section, above,
although some areas utilized by the Mazama pocket gopher may be used
intermittently and therefore may not be detected in every year, we
consider such sites to be occupied by the species for the purposes of
determining critical habitat. In such cases, if the PCEs are present
(e.g., requisite soil and vegetation types, permeable or no barriers to
dispersal) and the area is adjacent to a site of known occupancy, we
conclude that such sites are likely to be occupied, as this is the
probable dynamic state of occupancy for the majority of areas included
in critical habitat units and subunits. Since vegetation structure may
vary spatially and temporally, yielding a mosaic of suitable habitat
patches at any given time, it is likely that any Mazama pocket gophers
existing in the context of an expanse of suitable habitat (i.e., the
subunit level) may shift their location in response to available
resources, thus habitat that is occupied at some times may not be
occupied at others. As long as a source population is nearby, the
essential physical or biological features are present, and there are no
impermeable barriers to dispersal, there is no reason to believe that
pocket gophers would not make use of such areas when conditions are
favorable, and thus occupancy of such areas is likely. For these
reasons, we consider all such habitat to be occupied by the species.

Potentially Unoccupied Areas

If an intermittently occupied site were not considered ``occupied''
in years when Mazama pocket gophers are not detected, development or
other irreversible land uses might permanently convert that suitable
and intermittently utilized habitat to another form of landscape,
within which Mazama pocket gophers will not be able to breed and across
which gophers will not be able to disperse, effectively reducing
available suitable habitat and limiting dispersal capacity at the same
time. However, for the purposes of critical habitat, to be conservative
we assessed the importance of all such areas designated as critical
habitat as if they were ``unoccupied'' at the time of listing. Because
the historical range of each of the Mazama pocket gopher subspecies
considered here is already greatly restricted in extent, thereby
limiting the scope of the potential area for recovery, and because the
destruction or degradation of suitable habitat is one of the primary
threats to each of the subspecies, we consider any areas within the
historical range of each of the subspecies that provide the essential
physical or biological features identified within the critical habitat
units and subunits identified here to be essential for the conservation
of the four Thurston/Pierce subspecies of the Mazama pocket gopher.
In the specific case of the Rocky Prairie Unit for the Tenino
pocket gopher, Rocky Prairie is the only location from which the
subspecies is known, therefore the conservation of this subspecies
within its historical range is entirely dependent on this area. The
area of best documented occupancy is limited to the State-owned NAP,
which comprises only 35 ac (14 ha) of habitat, and alone does not meet
the minimum patch size of 50 ac (20 ha) to ensure recovery of the
subspecies, therefore the area definitively known to be occupied by
this subspecies is insufficient to provide for its conservation (the
NAP was excluded from final critical habitat under section 4(b)(2) of
the Act). Finally, the

[[Page 19730]]

remaining area on private lands within critical habitat provides the
most extensive contiguous areas containing the PCEs for the Tenino
pocket gopher and is directly adjacent to an area of known occupancy.
If currently unoccupied, this area provides for potential dispersal and
expansion of the population, which is essential to the conservation of
the subspecies. Therefore, even if the Rocky Prairie Unit were
considered unoccupied at the time of listing, because this is the only
known location for the Tenino pocket gopher and the area on the NAP is
insufficient to provide for the conservation of this subspecies, we
consider the Rocky Prairie Unit, which provides the requisite physical
or biological features for the Tenino pocket gopher to be essential to
the conservation of the species.
We have also determined that the Rock Prairie Subunit of Yelm
pocket gopher critical habitat is essential to the conservation of the
subspecies. As proposed, this 621 ac (251 ha) subunit contained lands
owned by two private residential and commercial landowners. As a result
of exclusion under section 4(b)(2) of the Act, the area with the best
documented occupancy by the Yelm pocket gopher is no longer included in
critical habitat. However, the remaining area of critical habitat
within the Rock Prairie Subunit provides the physical or biological
features essential to the conservation of the Yelm pocket gopher, is
directly adjacent to an area of known occupancy with no impermeable
barrier between the two areas, is part of the same soil extent
(Spanaway and Spanaway-Nisqually complex) occurring on the known-
occupied lands adjacent, and contains similar vegetation to the area of
known occupancy. The Service considers the Rock Prairie Subunit as
likely to be occupied, but because there have been no recent surveys on
the Subunit, this can't be confirmed at this time. However, even if
currently unoccupied, this area provides for potential dispersal and
expansion of the population, which is essential to the conservation of
the subspecies. The historical range of each of the four Thurston/
Pierce Mazama pocket gopher subspecies is already greatly restricted in
extent, thereby limiting the scope of the potential area for recovery.
Of the four Thurston/Pierce subspecies considered in this rulemaking,
the Yelm pocket gopher is the most widespread. Because the destruction
or degradation of suitable habitat is one of the primary threats to the
Yelm pocket gopher, we consider any areas within the historical range
that provide the essential physical or biological features to be
essential for the conservation of the subspecies. Successful
conservation relies on redundancy in populations; therefore maintaining
multiple populations of endangered or threatened species across their
range is a desirable component of recovery. For this reason, we
conclude that limiting critical habitat designation to the Tenalquot
Prairie Subunit would not be adequate to ensure the conservation of the
Yelm pocket gopher. Based on all of these considerations, even if the
Rock Prairie Subunit were considered unoccupied at the time of listing,
we consider the Rock Prairie Subunit that is directly adjacent to areas
of known occupancy and that provides the requisite physical or
biological features for the Yelm pocket gopher to be essential to the
conservation of the subspecies.
We further conclude that, for each of the subspecies, if the
critical habitat designations were strictly limited to parcels with
documented occurrence within the subunits delineated in the proposed
rule, they would be inadequate to ensure the subspecies' conservation.
Because of the extremely limited geographic range of each of the Mazama
pocket gopher subspecies and their restricted requirements for specific
soil and vegetation types, as described above, we conclude that each of
the areas identified here as critical habitat is essential for the
conservation of the species.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement (such as roads and airport
runways), and other structures because such lands lack physical or
biological features for the Mazama pocket gopher. The scale of the maps
we prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We will make the coordinates or plot
points or both on which each map is based available to the public on
http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0021, at http://www.fws.gov/wafwo/mpg.html, and, by appointment, at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT
above).
Units and subunits are designated based on sufficient elements of
physical or biological features being present to support life processes
of the Olympia, Tenino, and Yelm subspecies of the Mazama pocket
gopher. This applies whether the units are considered occupied or
unoccupied by the subspecies at the time of listing. Some units and
subunits contained all of the identified elements of physical or
biological features and supported multiple life processes. Some units
or subunits contain only some elements of the physical or biological
features necessary to support the particular use of that habitat by any
of these subspecies of the Mazama pocket gopher.

Final Critical Habitat Designation

We are designating three units, totaling 1,607 ac (650 ha) as
critical habitat for the Olympia, Tenino, and Yelm subspecies of the
Mazama pocket gopher (critical habitat for the Roy Prairie subspecies
is exempted, as described below under Exemptions). Each unit is
presently likely occupied by the subspecies for which it is designated,
and contains one or more of the PCEs to support essential life-history
processes for that subspecies. Some areas designated as final critical
habitat may not be considered occupied at the time of listing. In these
cases, we have evaluated each of these areas applying the standard
under section 3(5)(A)(ii) of the Act, and have determined that all such
areas included in this designation are essential to the conservation of
the species. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the Olympia, Tenino, and Yelm pocket gophers. The
three units we designate as critical habitat are: (1) Olympia Pocket
Gopher Critical Habitat--Olympia Airport Unit; (2) Tenino Pocket Gopher
Critical Habitat--Rocky Prairie Unit; and (3) Yelm Pocket Gopher
Critical Habitat--Tenalquot Prairie Subunit and Rock Prairie Subunit.
The approximate area and landownership for each critical habitat unit
and subunit is shown in Table 2.

[[Page 19731]]

Table 2--Designated Critical Habitat for the Olympia, Tenino, and Yelm Subspecies of the Mazama Pocket Gopher
[Area estimates reflect all land within critical habitat unit boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Private Other *
Critical habitat unit Location name Subunit as identified in ---------------------------------------------------
proposed rule Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Olympia Pocket Gopher Critical Habitat... Olympia Airport Unit....... 1-C......................... 0 0 0 676 (274)
Tenino Pocket Gopher Critical Habitat.... Rocky Prairie Unit......... 1-D......................... 0 0 399 (162) 0
Yelm Pocket Gopher Critical Habitat...... Tenalquot Prairie Subunit.. 1-E......................... 0 0 154 (62) 135 (55)
Rock Prairie Subunit....... 1-H......................... 0 0 243 (98) 0
������������������������������������������
Totals............................... ........................... ............................ 0 0 796 (322) 811 (329)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Local municipalities and nonprofit conservation organization.
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all critical habitat units and
subunits and reasons why they meet the definition of critical habitat
for the Olympia, Tenino, or Yelm subspecies of the Mazama pocket gopher
below.
All critical habitat units are occupied by the subspecies at the
time of listing (see the final listing rule for the four subspecies of
the Mazama pocket gopher, published elsewhere in today's Federal
Register), and all contain the physical or biological features
essential to the conservation of these subspecies, which may require
special management considerations or protection. All units are subject
to some or all of the following threats: Development on or adjacent to
the unit; incompatible management practices; predation; and habitat
degradation or destruction as the result of the inadequacy of existing
regulatory mechanisms. The threats of loss of ecological disturbance
processes, invasive species and succession, and control as a pest
species are threats to the Tenino pocket gopher in the Rocky Prairie
Unit and the Yelm pocket gopher in the Tenalquot Prairie and Rock
Prairie Subunits. In all units, the physical or biological features
essential to the conservation of each subspecies may require special
management considerations or protection to restore, protect, and
maintain the essential features found there. Special management
considerations or protection may be required to address: Direct or
indirect habitat loss due to conversion to other uses; invasion of
woody plant species; use of equipment that may compact soils;
development; construction and maintenance of roads and utility
corridors; habitat modifications; predation by feral or domestic
animals; or use of trapping or poisoning techniques by landowners or
land managers of the units themselves or adjacent landowners or land
managers.
Olympia Pocket Gopher Critical Habitat--Olympia Airport Unit. This
unit consists of 676 ac (274 ha) and is made up of land owned by the
Port of Olympia, a municipal corporation. The Olympia Airport Unit is
located south of the cities of Olympia and Tumwater, in Thurston
County, Washington. This unit is occupied by the Olympia pocket gopher
and contains the physical or biological features essential to the
conservation of the subspecies due to the underlying soil series
(Cagey, Everett, Indianola, and Nisqually), suitable forb and grass
vegetation present onsite, and its large size. The physical or
biological features in this subunit are threatened by: Loss of habitat
through conversion to incompatible uses, such as development;
predation; and the habitat degradation or destruction due to the
inadequacy of existing regulatory mechanisms.
Tenino Pocket Gopher Critical Habitat--Rocky Prairie Unit. This
unit consists of 399 ac (162 ha) and is owned by one commercial land
owner and Burlington Northern Santa Fe Railroad. The Rocky Prairie Unit
is located north of the city of Tenino, Thurston County, Washington; is
likely occupied by the Tenino pocket gopher; and contains the physical
or biological features essential to the conservation of the species due
to the underlying soil series or soil series complex (Everett,
Nisqually, Spanaway, and Spanaway-Nisqually complex), suitable forb and
grass vegetation present onsite, and its large size. The physical or
biological features in this subunit are threatened by: Loss of habitat
through conversion to incompatible uses, such as pit mining;
development on adjacent or surrounding areas; the loss of natural
disturbance processes and invasion by woody plants; predation; small or
isolated populations as a result of habitat fragmentation; habitat
degradation or destruction as the result of the inadequacy of existing
regulatory mechanisms; and control as a pest species. We additionally
evaluated this area as if it were presently unoccupied by the Tenino
pocket gopher, and have determined that it is nonetheless essential to
the conservation of the species (see Potentially Unoccupied Areas for
details).
Yelm Pocket Gopher Critical Habitat--Tenalquot Prairie Subunit.
This subunit consists of 289 ac (117 ha) and contains lands owned by
one commercial landowner and The Nature Conservancy. This subunit is
located northwest of the city of Rainier, Thurston County, Washington.
As proposed, subunit 1-E (now the Tenalquot Prairie Subunit) included
1,505 ac (609 ha) of JBLM land, which has been exempted based on a
completed ESMP. This 4(a)(3)(B)(i) exemption, based on this species-
specific management plan, has been determined to provide a conservation
benefit to the Yelm pocket gopher. The Tenalquot Prairie Subunit is
occupied by the Yelm pocket gopher and contains the physical or
biological features essential to the conservation of the species due to
the underlying soil series (Spanaway), suitable forb and grass
vegetation present onsite, and its large size. The physical or
biological features in this subunit are threatened by: Loss of habitat
through conversion to incompatible uses, such as development; the loss
of natural disturbance processes and invasion by woody plants;
inadequacy of existing regulatory mechanisms; and control as a pest
species.

[[Page 19732]]

Yelm Pocket Gopher Critical Habitat--Rock Prairie Subunit. This
subunit consists of 243 ac (98 ha) and contains lands owned by one
private residential and commercial landowner. As proposed (subunit 1-
H), this subunit included 378 ac (153 ha) of private ranch land, which
has been excluded under section 4(b)(2) of the Act (see Exclusions for
details). The Rock Prairie Subunit is likely occupied by the Yelm
pocket gopher and contains the physical or biological features
essential to the conservation of the species due to the underlying soil
series or soil series complex (Spanaway and Spanaway-Nisqually
complex), suitable forb and grass vegetation present onsite, and its
size. The physical or biological features in this subunit are
threatened by: Loss of habitat through conversion to incompatible uses,
such as development; the loss of natural disturbance processes and
invasion by woody plants; predation; inadequacy of existing regulatory
mechanisms; and control as a pest species. We additionally evaluated
this area as if it were presently unoccupied by the Yelm pocket gopher,
and have determined that it is nonetheless essential to the
conservation of the species (see Potentially Unoccupied Areas for
details).

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species listed or proposed to
be listed under the Act or result in the destruction or adverse
modification of proposed or finalized critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Olympia, Tenino, and
Yelm subspecies of the Mazama pocket gopher. As discussed above, the
role of critical habitat is to support life-history needs of the
species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Olympia, Tenino, and Yelm subspecies of the Mazama
pocket gopher. These activities include, but are not limited to:
(1) Actions that restore, alter, or degrade habitat features
through development, agricultural activities, burning, mowing,
herbicide use or other means in suitable habitat for the

[[Page 19733]]

Olympia, Tenino, or Yelm subspecies of the Mazama pocket gopher.
(2) Actions that would alter the physical or biological features of
critical habitat including modification of soil profiles or the
composition and structure of vegetation in suitable habitat for the
Olympia, Tenino, or Yelm subspecies of the Mazama pocket gopher. Such
activities could include, but are not limited to, construction, grading
or other development, mowing, conversion of habitat, recreational use,
off-road vehicles on Federal, State, or private lands). These
activities may affect the physical or biological features of critical
habitat for the Olympia, Tenino, or Yelm subspecies of the Mazama
pocket gopher by crushing burrows, removing forage, or impacting
habitat essential for completion of life history.
(3) Activities within or adjacent to critical habitat that affect
or degrade the conservation value or function of the physical or
biological features of critical habitat for the Olympia, Tenino, or
Yelm subspecies of the Mazama pocket gopher.

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an Integrated Natural Resources Management Plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the Roy Prairie and Yelm subspecies of
the Mazama pocket gopher to determine if they meet the criteria for
exemption from critical habitat under section 4(a)(3) of the Act. The
following areas are Department of Defense lands with completed,
Service-approved INRMPs within the critical habitat designation as
proposed: (1) 91st Division Prairie (proposed subunit 1-A), (2) Marion
Prairie (proposed subunit 1-B), and (3) Tenalquot Prairie (proposed
subunit 1-E). All of these areas are part of JBLM, except for two
portions of Tenalquot Prairie known as the Morgan property and Silver
Springs Cattle Ranch.

Approved INRMPs

U.S. Army Joint Base Lewis-McChord (JBLM) (formerly known as Fort
Lewis Army Base and McChord Air Force Base) is a military complex in
western Washington that presently encompasses approximately 91,000 ac
(36,825 ha). JBLM is composed of both native and degraded prairies;
shrub-dominated vegetation; conifer, conifer-oak, oak-savannah, oak
woodland and pine woodland/savannah forests; riverine, lacustrine, and
palustrine wetlands; ponds and lakes; as well as other unique habitat,
such as Mima mounds. Portions of JBLM are currently occupied by the Roy
Prairie and Yelm subspecies of the Mazama pocket gopher. There are
6,345 ac (2,567 ha) of lands within the boundary of JBLM that were
proposed as critical habitat for these two subspecies; these lands
included the following subunits from the proposed rule (77 FR 73770;
December 11, 2012): proposed subunit 1-A, 91st Division Prairie
(occupied by the Roy Prairie pocket gopher); proposed subunit 1-B,
Marion Prairie (occupied by the Roy Prairie pocket gopher); and a
portion of proposed subunit 1-E, Tenalquot Prairie (occupied by the
Yelm pocket gopher). This large Federal landholding includes the
largest contiguous block of prairie in the State of Washington. Actions
on this property include military training, recreation, transportation,
utilities (including dedicated corridors), and land use.
The mission of JBLM is to maintain trained and ready forces for
Army and Air Force commanders worldwide, by providing them with
training support and infrastructure. This includes a land base capable
of supporting current and future training needs through good
stewardship of the Installation's natural and cultural resources, as
directed by Federal statutes, DOD directives, directives and programs
such as ACUB (Army Compatible Use Buffer Program), and Army, Air Force,
and JBLM regulations.
Mazama pocket gophers exist on prairies on JBLM lands where
vehicular traffic is currently restricted to established roads, but
prior to their proposed listing, JBLM had not implemented any specific
restrictions on military training to protect Mazama pocket gophers.
Currently, efforts to maintain and increase Mazama pocket gopher
populations on the installation focus on restoring or managing the
overall condition of suitable habitat. Although only military actions
are covered by the INRMP and its associated Endangered Species
Management Plans (ESMPs), several additional actions occurring on JBLM
could pose substantial threats to the Roy Prairie and Yelm subspecies
of the Mazama pocket gopher (e.g., increased risk of accidental fires;
habitat destruction and degradation through construction of training
infrastructure; vehicle use, dismounted training, bivouac activities,
digging; and predation related to recreational activities such as dog
trials), and are restricted to a few prairie properties. Many of the
avoidance measures for military training action subgroups are
implemented through environmental review and permitting programs
related to a specific action. Timing of actions and education of users
are important avoidance measures for the other activities.
JBLM actively manages prairie habitat as part of its INRMP (US Army
2006). The purpose of the plan is to ``provide guidance for effective
and efficient management of the prairie landscape to meet military
training and ecological conservation goals.'' There are three overall
goals including: (1) No net loss of open landscapes for military
training; (2) no net reduction in the quantity or

[[Page 19734]]

quality of moderate- and high-quality grassland; and (3) viable
populations of all prairie-dependent and prairie-associated species.
These goals are conducted in concert with JBLM's stewardship
responsibility that includes five primary requirements for compliance
with the Act:
(1) Requirement to conserve listed species;
(2) Requirement not to jeopardize listed species;
(3) Requirement to consult and confer;
(4) Requirement to conduct a biological assessment; and
(5) Requirement to not take listed fish and wildlife species or to
remove or destroy listed plant species (DOD 1995, p. 19-20).
Two regional programs managed under the INRMP and its associated
ESMPs and funded by the DOD are currently underway on many of the lands
where Mazama pocket gophers occur. The JBLM ACUB program is a proactive
effort to prevent ``encroachment'' at military installations.
Encroachment includes current or potential future restrictions on
military training associated with currently listed and candidate
species under the Act. The JBLM ACUB program focuses on management of
non-Federal conservation lands in the vicinity of JBLM that contain, or
can be restored to, native prairie. Some of the ACUB efforts include
improving habitats on JBLM property for prairie-dependent species,
including the Mazama pocket gopher. It is implemented by means of a
cooperative agreement between the Army and Center for Natural Lands
Management (formerly The Nature Conservancy), and includes WDFW and
WDNR as partners, as well as others. To date, a total of $14.7 million
has been allocated to this program (Anderson 2014, pers. comm.). This
funds conservation actions such as invasive plant control on occupied
sites and the restoration of unoccupied habitat.
The JBLM Legacy program is dedicated to ``protecting, enhancing,
and conserving natural and cultural resources on DOD lands through
stewardship, leadership, and partnership.'' The Legacy program supports
conservation actions that have regional or DOD-wide significance, and
that support military training or fulfill legal obligations (DOD 2011,
p. 2). In recent years, substantial effort and funding have gone toward
projects, both on and off JBLM, related to the Mazama pocket gopher.
JBLM has an INRMP in place that was approved in 2006, which JBLM is
in the process of updating. In 2014, JBLM amended their existing INRMP
to specifically include the Mazama pocket gopher by completing an ESMP
that includes guidelines for protecting, maintaining, and enhancing
habitat essential to protect the Roy Prairie and Yelm subspecies on
JBLM, as well as participating in recovery efforts for all four
Thurston/Pierce subspecies off-base through their ACUB program and
other funding programs. The ESMP provides specific prescriptions for
protection of occupied Mazama pocket gopher habitat on JBLM, including
expansion and enhancement of gopher habitat in ``priority habitat''
areas; required permitting before disturbance of occupied areas;
monitoring of and reporting on population status; compliance,
implementation, and effectiveness monitoring and reporting; avoidance
and minimization measures for specific training activities and areas;
and coordination between the Service and JBLM when consultation is
required. The Service has found, in writing, that the ESMP under the
JBLM INRMP provides a conservation benefit to the Mazama pocket
gophers.
In accordance with section 4(a)(3)(B)(i) of the Act, we have
determined that the identified lands are subject to the JBLM INRMP and
that conservation efforts identified in the ESMP under the INRMP will
provide a conservation benefit to the Mazama pocket gopher subspecies
that occur on DOD lands in Thurston and Pierce Counties. Therefore,
lands within this installation are exempt from critical habitat
designation under section 4(a)(3)(B)(i) of the Act. We are not
including approximately 6,345 ac (2,567 ha) of habitat in this final
critical habitat designation for the Roy Prairie and Yelm pocket
gophers because of this exemption. The lands exempted under section
4(a)(3)(B)(i) are identified in Table 3.

Table 3--Areas Exempted From the Designation of Critical Habitat for the Roy Prairie Pocket Gopher and Yelm
Pocket Gopher Under Section 4(a)(3)(B)(i) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the Areas exempted
definition of under section
Subunit as proposed Area of subunit Subspecies present critical habitat 4(a)(3)(B)(i) of
exempted in acres the act in acres
(hectares) (hectares)
----------------------------------------------------------------------------------------------------------------
1-A, 91st Division Prairie...... entire............ Roy Prairie pocket 4,120 (1,667) 4,120 (1,667)
gopher (T. m.
glacialis).
1-B, Marion Prairie............. entire............ Roy Prairie pocket 720 (291) 720 (291)
gopher (T. m.
glacialis).
1-E, Tenalquot Prairie.......... partial........... Yelm pocket gopher 1,793 (726) 1,505 (609)
(T. m. yelmensis).
---------------------------------------
Total....................... .................. .................. 6,633 (2,684) 6,345 (2,567)
----------------------------------------------------------------------------------------------------------------

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In

[[Page 19735]]

considering whether to exclude a particular area from the designation,
we identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
evaluate whether the benefits of exclusion outweigh the benefits of
inclusion. If the analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, the Secretary may exercise his
discretion to exclude the area only if such exclusion would not result
in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of the Mazama pocket gopher, the benefits of critical
habitat include promotion of public awareness of the presence of the
Olympia, Tenino, and Yelm pocket gophers and the importance of habitat
protection, and in cases where a Federal nexus exists, potentially
greater habitat protection for the Olympia, Tenino, and Yelm pocket
gophers due to the protection from adverse modification or destruction
of critical habitat.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we evaluated whether
certain lands in the proposed critical habitat were appropriate for
exclusion from this final designation pursuant to section 4(b)(2) of
the Act. We are excluding the following areas from critical habitat
designation for the Olympia, Tenino, and Yelm subspecies of the Mazama
pocket gopher: Rocky Prairie Natural Area Preserve (NAP); West Rocky
Prairie Wildlife Area (WLA); Scatter Creek WLA and adjacent private
inholding; and Colvin Ranch. Table 4 below provides approximate areas
of lands that meet the definition of critical habitat but are being
excluded under section 4(b)(2) of the Act from the final critical
habitat rule.

TABLE 4--Areas Excluded From Critical Habitat Designation Under Section 4(b)(2) of the Act
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of Areas excluded
Subunit as proposed Unit as named in Specific area critical habitat, from critical
final rule in acres habitat, in acres
(hectares) (hectares)
----------------------------------------------------------------------------------------------------------------
1-D, Rocky Prairie.............. Tenino Pocket Rocky Prairie NAP. 43 (178) 38 (16)
Gopher Critical
Habitat--Rocky
Prairie Unit.
1-F, West Rocky Prairie......... NA (occupied by West Rocky Prairie 134 (54) 134 (54)
Olympia pocket WLA.
gopher, but
excluded in
entirety).
1-G, Scatter Creek.............. NA (occupied by Scatter Creek WLA. 730 (296) 730 (296)
Yelm pocket
gopher, but
excluded in
entirety).
1-H, Rock Prairie............... Yelm Pocket Gopher Colvin Ranch...... 621 (251) 378 (153)
Critical Habitat--
Rock Prairie
Subunit.
-------------------
Total Area Excluded......... .................. .................. .................. 1,280 (518)
----------------------------------------------------------------------------------------------------------------

Consideration of Economic Impacts

Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis (DEA)
of the proposed critical habitat designation and related factors (IEc
2013a). The draft analysis, dated March 22, 2013, was made available
for public review from April 3, 2013, through May 3, 2013 (78 FR 20074;
April 3, 2013). The DEA addressed potential economic impacts of
critical habitat designation for multiple prairie species of Western
Washington and Oregon, including not only the Mazama pocket gopher, but
also Taylor's checkerspot butterfly and streaked horned lark
(Eremophila alpestris strigata). Following the close of the comment
period, a final analysis of the potential economic effects of the
designation (FEA) was developed taking into consideration the public
comments and any new information; this analysis was dated September 30,
2013 (IEc 2013b). The final rule designating critical habitat for
Taylor's checkerspot butterfly and streaked horned lark published on
October 3, 2013 (78 FR 61506). On September 3, 2013, we announced a 6-
month extension of the final determination on the proposed listing and
designation of critical habitat for the four Thurston/Pierce subspecies
of the Mazama pocket gopher (78 FR 54218) and reopened the comment
period for an additional 45 days, ending

[[Page 19736]]

October 18, 2013. Additional information relevant to the potential
economic impacts of critical habitat designation for the Mazama pocket
gopher is captured in the final memorandum to the economic analysis
(IEc 2014), available at http://www.regulations.gov and at http://www.fws.gov/wafwo/mpg.html.
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for the four
Thurston/Pierce subspecies of the Mazama pocket gopher; some of these
costs will likely be incurred regardless of whether we designate
critical habitat (baseline). The economic impact of the final critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.'' The ``without
critical habitat'' scenario represents the baseline for the analysis,
considering protections already in place for the species (e.g., under
the Federal listing and other Federal, State, and local regulations).
The baseline, therefore, represents the costs incurred regardless of
whether critical habitat is designated. The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat above and beyond the baseline costs;
these are the costs we consider in the final designation of critical
habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA considers those costs that may
occur in the 20 years following the designation of critical habitat,
which was determined to be the appropriate period for analysis because
limited planning information was available for most activities to
forecast activity levels for projects beyond a 20-year timeframe.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the Olympia, Tenino, or Yelm subspecies of the Mazama
pocket gopher. Federal agencies also must consult with us if their
activities may affect critical habitat. Designation of critical
habitat, therefore, could result in an additional economic impact due
to the requirement to reinitiate consultation for ongoing Federal
activities (see Application of the ``Adverse Modification'' Standard
section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential for economic impacts related to: Military
activities; recreation and habitat management; airport operations and
agricultural activities; transportation, electricity distribution, and
forestry activities; and dredging, gravel mining, and other activities.
The analysis is based on the estimated impacts associated with the
rulemaking as described in Appendix A of the analysis (IEc 2013b, pp.
A-1--A-11). The estimated incremental impacts are primarily
attributable to the administrative costs of section 7 consultation. The
present value of total incremental cost of critical habitat designation
is $793,574 over the next 20 years assuming a 7 percent discount rate,
or $70,007 on an annualized basis. Airport and agricultural activities
are subject to incremental impacts estimated at $550,000; recreation
and habitat management at $110,000; military activities at $55,000;
transportation at $34,000; and electricity distribution and forestry
activities at $9,300 (present values over 20 years assuming a 7 percent
discount rate. Of these total costs, it is estimated that approximately
51 percent will be borne by the Service, 31 percent by Federal action
agencies, and 18 percent by third parties. It is important to note that
these total costs represent all six prairie taxa addressed in the FEA
(Taylor's checkerspot butterfly, streaked horned lark, and four
Thurston/Pierce subspecies of the Mazama pocket gopher), therefore the
potential economic impacts specific to the Mazama pocket gopher are
less than these totals.
In addition, in response to public comments, here we further
consider the potential incremental impacts of the designation
specifically on the Olympia Airport and gravel mining operations. These
potential impacts are described in detail below.
Airport operations (Olympia Airport). As noted above, our economic
analysis addressed the potential impacts of critical habitat
designation for several different prairie taxa of western Washington
and Oregon: the streaked horned lark, the Taylor's checkerspot
butterfly, and the four Thurston/Pierce subspecies of the Mazama pocket
gopher. Most of the airports considered in our economic analysis were
in critical habitat proposed for the streaked horned lark (a separate
final critical habitat rule published for the streaked horned lark and
the Taylor's checkerspot butterfly on October 3, 2013; 78 FR 61506).
Chapter 3 of the FEA (IEc 2013b), Airport Operations and Agriculture,
discusses the potential for this critical habitat designation to affect
airports and agricultural activities. Overall, 198 consultations are
expected in relation to operations at 7 airports over the next 20
years; most of these are related to the streaked horned lark. The cost
per airport, per consultation, to participate in forecast consultations
is approximately $875 to $8,750 in any given year. The only airport
specific to the designation of critical habitat for the Mazama pocket
gopher is the Olympia Airport in Thurston County, Washington (the
Olympia Airport Unit, which is the only unit of critical habitat
designated for the Olympia pocket gopher in this final rule). Here we
consider any economic impacts specific to the Olympia Airport in
connection with critical habitat designation for the Olympia pocket
gopher.
As noted in our FEA (IEc 2013b, p. 3-23), all airports considered
in our analysis receive Federal funding through the Federal Aviation
Administration (FAA). This creates a Federal nexus for any projects
that utilize this funding. Any projects at the Olympia Airport that
receive such funding may therefore require a section 7 consultation
regarding potential effects to listed species and their critical
habitat. Potential project modifications recommended by the Service for
the Mazama pocket gopher may include minimizing paving and development
within habitat, or mitigating impacts with land set-aside or off-site
conservation. These modifications could potentially limit airport
development opportunities or require the hiring of additional
maintenance staff or biologists to ensure that maintenance

[[Page 19737]]

practices do not harm the subspecies or its critical habitat. However,
because the Olympia Airport is presently occupied by the Mazama pocket
gopher, all such project modifications described above would likely be
recommended based on the presence of the species regardless of critical
habitat designation. Any such costs associated with such modifications
would therefore be attributable to the listed status of the Mazama
pocket gopher, which is considered part of the baseline for our
economic analysis, since these costs would be incurred just the same
with or without critical habitat. The only costs directly attributable
to critical habitat would therefore be the additional administrative
costs of considering the standard of destruction or adverse
modification of critical habitat, above and beyond the consideration of
the jeopardy standard.
For the Olympia Airport, we estimated 8 formal consultations over
the next 20 years associated with the realignment of Taxiway F, the
construction of a helipad and final approach/takeoff area, building/
parking construction, and runway and taxiway construction. In addition,
one formal consultation a year is anticipated in association with
routine maintenance activities (IEc 2013b, Exhibit 3-7, p. 3-26). As
noted earlier, since the Olympia Airport is occupied by the listed
species, these consultations will be required regardless of the
presence of critical habitat. The incremental impact of critical
habitat is therefore limited to the additional cost of considering
effects to critical habitat in these consultations. For the Olympia
Airport, this cost is estimated at a total of $43,000 over the years
2013 through 2032, or an annualized value of $3,800 (IEc 2013b, Exhibit
3-8, p. 3-28). As noted in our FEA (IEc 2013b, p. ES-11), the majority
of these administrative costs are borne by the Service (51 percent) or
Federal action agencies (31 percent).
Gravel mining. We additionally specifically considered the
potential economic impacts of critical habitat on gravel mining
activities within the proposed designation. Critical habitat was
proposed for the Tenino pocket gopher on a portion of a 685-ac (277-ha)
parcel of private lands that support sand and gravel extraction
activities on approximately 50 ac (20 ha) of this landholding.
Approximately 385 ac (156 ha) surrounding the current extraction area
is identified as critical habitat for the Tenino Pocket Gopher (Rocky
Prairie Unit, which is the only unit of critical habitat designated for
the Tenino pocket gopher in this final rule). As described in this
rule, the area in question supports the only known population of the
Tenino pocket gopher, and we consider these lands to be occupied by the
subspecies. However, to be conservative, we have additionally
considered what the incremental impacts of the designation would be if
the property in question were not in fact occupied by the listed
species.
First, we consider the potential incremental impacts of the
designation under the scenario of occupancy by the listed species. The
direct regulatory effect of critical habitat impacts only Federal
agencies, and only applies when there is a Federal nexus. If a Federal
nexus presence triggers consultation under section 7, the presence of a
listed species will require implementation of certain conservation
efforts to avoid jeopardy concerns. If the action in question may
additionally affect designated critical habitat, consultation would
consider not only the potential for jeopardy to the continued existence
of the species, but also the potential for destruction or adverse
modification of critical habitat. Because the ability of the Tenino
pocket gopher to exist is very closely tied to the quality of its
habitat, significant alterations of their occupied habitat may result
in jeopardy as well as adverse modification. Therefore, we anticipate
that section 7 consultation analyses will likely result in no
difference between recommendations to avoid jeopardy or adverse
modification in occupied areas of habitat.
In the case at hand, because we consider the area of mineral
extraction to be occupied by the Tenino pocket gopher, potential
project modifications would be recommended based on the presence of the
species to avoid jeopardy concerns, and would be recommended regardless
of critical habitat. Any costs associated with such modifications would
therefore be attributable to the listed status of the Tenino pocket
gopher, which is considered part of the baseline for our economic
analysis, since these costs would be incurred just the same with or
without critical habitat. The only costs directly attributable to
critical habitat would therefore be the additional administrative costs
of considering the standard of destruction or adverse modification of
critical habitat, above and beyond the consideration of the jeopardy
standard.
We did not have information to suggest a likely Federal nexus in
regard to mineral or gravel extraction activities on private lands
within the designation. Due to uncertainty regarding the timing of
gravel extraction activities and uncertainty surrounding the potential
for a Federal nexus, our economic analysis did not quantify a specific
number of consultations that may occur or any related administrative
burden. As the likelihood of a Federal nexus is small, it is most
likely that critical habitat designation will not result in any
economic impact to the landowner. However, were there a Federal nexus
for the action in question, and if the Tenino pocket gopher is present
on the property, no incremental project modifications are expected to
occur as a consequence of critical habitat. That is, there are unlikely
to be any project modifications above and beyond those that would be
required to avoid jeopardy to the continued existence of the species,
due to the presence of the listed species on the property. Therefore,
any incremental impacts directly attributable to the designation of
critical habitat will be limited to the administrative burden of the
portion of consultations considering adverse modification. Such an
administrative burden would be unlikely to exceed $5,000 (in
undiscounted dollars) per consultation, and no more than one
consultation per gravel mining action is expected to occur.
Furthermore, most of these costs would likely be borne by the Service
and the Federal action agency. Therefore, we anticipate that should
consultation occur on gravel mining operations in critical habitat
occupied by the Tenino pocket gopher, the incremental administrative
impacts attributable to critical habitat will be small, and the
business owner will not be likely to suffer a significant economic
impact as the result of the designation.
We additionally considered the potential incremental impact of the
designation on mineral extraction interests if the lands in question
were considered to be unoccupied by the Tenino pocket gopher. If there
should be an action with a Federal nexus that may affect the designated
critical habitat, consultation under section 7 would be required.
However, in this case, there would be no requirement to analyze the
effects of the action under the jeopardy standard absent the listed
species; therefore all costs associated with consultation and any
project modifications would be attributable solely to critical habitat.
Any such costs would only be incurred should there be a Federal nexus
associated with the proposed action, if the action agency concludes
that the action may affect the designated critical habitat. We have no
evidence of any prior Federal nexus associated with the mineral
extraction activities on these lands, nor do we have any evidence to
suggest that such a

[[Page 19738]]

Federal nexus is likely to occur within the foreseeable future.
Therefore, absent such a Federal nexus, the presence of unoccupied
critical habitat will not trigger consultation, and there will not be
any economic impacts to the landowners as a result of critical habitat
designation.
Should there be an unforeseen Federal nexus for a proposed action,
however, and if the Federal action agency determines that their
proposed action may affect or is likely to adversely affect unoccupied
critical habitat, that agency is required to enter into formal
consultation with the Service. A formal consultation concludes with the
Service's issuance of a biological opinion. In conducting formal
consultation, the Service works with the action agency and the
applicant to consider project modifications to avoid, minimize, or
mitigate adverse effects to critical habitat. To the extent adverse
effects are likely to destroy or adversely modify its critical habitat,
the Service is required to develop, in coordination with the Federal
action agency and any applicant, a reasonable and prudent alternative
(RPA) that avoids those outcomes.
In our experience, in most cases we are able to successfully work
with the action agency to develop project modifications that avoid
jeopardy or adverse modification, and no RPAs are necessary. In those
cases, the consultation is concluded with the Service's issuance of a
non-jeopardy, non-adverse modification biological opinion. In those
cases where the Federal agency is unwilling or unable to make such
modifications, the final biological opinion includes RPAs. The
implementing regulations for section 7 of the Act define RPAs as
alternatives that are economically and technologically feasible, are
capable of being implemented in a manner consistent with the intended
purpose of the proposed Federal action, and are consistent with the
scope of the Federal action agency's legal authority and jurisdiction.
Although some project modifications may be required, the designation of
critical habitat will not prevent the action agency from proceeding,
and although critical habitat may limit mineral extraction activities
to some extent, in our experience it is unlikely to entirely preclude
such operations on the property in question.
As there is no consultation history available for potential project
modifications associated with Mazama pocket gopher habitat in
association with mineral extraction activities, it is not possible to
quantify the costs that may be incurred as the result of any project
modifications that may be recommended. The property owner asserts that
designation of critical habitat on this parcel will have an economic
impact on the claimed value of $750 million of aggregate deposit; such
impacts, they assert, could come from limiting or preventing extraction
activities on the site. However, based on the considerations discussed
above and in more detail in the final memorandum to the economic
analysis (IEc 2014), it appears unlikely that the designation will
produce such an impact; most likely activities will continue with some
potential project modifications. Further, for the reasons given here,
we believe it is highly unlikely for the designation of critical
habitat to prohibit mining on the parcel in question in its entirety.
We must acknowledge, however, that such an outcome is not beyond the
realm of possibility, particularly since the parcel in question
provides the largest area of suitable habitat within the range of the
only known population of the Tenino pocket gopher. Finally, we
considered the potential for indirect effects of critical habitat. Due
to considerable uncertainty, we were unable to quantify any such
effects.

Exclusions Based on Economic Impacts

Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for the Roy Prairie, Olympia, Tenino,
or Yelm pocket gopher based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Washington Fish and Wildlife Office (see ADDRESSES) or
by downloading from the Internet at http://www.regulations.gov or
http://www.fws.gov/wafwo/mpg.html.

Exclusions Based on National Security Impacts

In preparing this final rule, we have exempted from the designation
of critical habitat those Department of Defense lands with completed
INRMPs determined to provide a benefit to the Mazama pocket gopher. We
have also determined that the remaining lands within the designation of
critical habitat for the four Thurston/Pierce subspecies of Mazama
pocket gopher are not owned or managed by the Department of Defense,
and, therefore, we anticipate no impact on national security.
Consequently, the Secretary is not exercising her discretion to exclude
any areas from this final designation based on impacts on national
security.

Exclusions Based on Other Relevant Factors

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts to national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships or relationships
that would be encouraged by designation of, or exclusion from, critical
habitat. We also consider any other relevant impacts that might occur
because of the designation. Our weighing of the benefits of inclusion
versus exclusion considers all relevant factors in making a final
determination as to what will result in the greatest conservation
benefit to the listed species. Depending on the specifics of each
situation, there may be cases where the designation of critical habitat
will not necessarily provide enhanced protection, and may actually lead
to a net loss of conservation benefit. Here we provide our analysis of
areas proposed for the designation of critical habitat that may provide
a greater conservation benefit to the Mazama pocket gopher by exclusion
from the designation.
Benefits of Designating Critical Habitat
The process of designating critical habitat as described in the Act
requires that the Service identify those lands within the geographical
area occupied by the species at the time of listing on which are found
the physical or biological features essential to the conservation of
the species that may require special management considerations or
protection, and those areas outside the geographical area occupied by
the species at the time of listing that are essential for the
conservation of the species.
The identification of areas that contain the features essential to
the conservation of the species, or are otherwise essential for the
conservation of the species if outside the geographical area occupied
by the species at the time of listing, is a benefit resulting from the
designation. The critical habitat designation process includes peer
review and public comment on the identified physical and biological
features and areas, and provides a mechanism to educate landowners,
State and local governments, and the public regarding the potential
conservation value of an area. This may help focus and promote
conservation

[[Page 19739]]

efforts by other parties by clearly delineating areas of high
conservation value for the species, and can be valuable to land owners
and managers in developing conservation management plans by describing
the essential physical and biological features and special management
actions or protections that are needed for identified areas. Including
lands in critical habitat also informs State agencies and local
governments about areas that could be conserved under State laws or
local ordinances.
The prohibition on destruction or adverse modification under
Section 7(a)(2) of the Act constitutes the primary regulatory benefit
of critical habitat designation. As discussed above, Federal agencies
must consult with the Service on actions that may affect critical
habitat and must avoid destroying or adversely modifying critical
habitat. Federal agencies must also consult with us on actions that may
affect a listed species and refrain from undertaking actions that are
likely to jeopardize the continued existence of such species. The
analysis of effects to critical habitat is a separate and different
analysis from that of the effects to the species. Therefore, the
difference in outcomes of these two analyses also represents the
regulatory benefit of critical habitat. For some species, and in some
locations, the outcome of these analyses will be similar because
effects on habitat will often result in effects on the species.
However, these two regulatory standards are different. The jeopardy
analysis evaluates how a proposed action is likely to influence the
likelihood of a species' survival and recovery. The adverse
modification analysis evaluates how an action affects the capability of
the critical habitat to serve its intended conservation role (USFWS, in
litt. 2004). Although these standards are different, it has been the
Service's experience that in many instances proposed actions that
affect both a listed species and its critical habitat and that
constitute jeopardy also constitute adverse modification. In some
cases, however, application of these different standards results in
different section 7(a)(2) determinations, especially in situations
where the affected area is mostly or exclusively unoccupied critical
habitat. Thus, critical habitat designations may provide greater
benefits to the recovery of a species than would listing alone.
There are two limitations to the regulatory effect of critical
habitat. First, a section 7(a)(2) consultation is required only where
there is a Federal nexus (an action authorized, funded, or carried out
by any Federal agency)--if there is no Federal nexus, the critical
habitat designation of non-Federal lands itself does not restrict any
actions that destroy or adversely modify critical habitat. Aside from
the requirement that Federal agencies ensure that their actions are not
likely to result in destruction or adverse modification of critical
habitat under section 7, the Act does not provide any additional
regulatory protection to lands designated as critical habitat.
Second, designating critical habitat does not create a management
plan for the areas, does not establish numerical population goals or
prescribe specific management actions (inside or outside of critical
habitat), and does not have a direct effect on areas not designated as
critical habitat. Specific management recommendations for critical
habitat are addressed in recovery plans, management plans, and in
section 7 consultation. The designation only limits destruction or
adverse modification of critical habitat, not all adverse effects. By
its nature, the prohibition on adverse modification ensures that the
conservation role and function of those areas designated as critical
habitat are not appreciably reduced as a result of a Federal action.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs in writing that the proposed Federal action is not
likely to adversely affect the species or critical habitat. However, if
we determine through informal consultation that adverse impacts are
likely to occur, then formal consultation is initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of listed species or result in destruction or
adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may recommend
additional conservation measures to minimize adverse effects to primary
constituent elements, but such measures would be discretionary on the
part of the Federal agency.
The designation of critical habitat does not require that any
management or recovery actions take place on the lands included in the
designation. Even in cases where consultation has been initiated under
section 7(a)(2) of the Act because of effects to critical habitat, the
end result of consultation is to avoid adverse modification, but not
necessarily to manage critical habitat or institute recovery actions on
critical habitat. On the other hand, voluntary conservation efforts by
landowners can remove or reduce known threats to a species or its
habitat by implementing recovery actions. We believe that in many
instances the regulatory benefit of critical habitat is minimal when
compared to the conservation benefit that can be achieved through
implementing HCPs under section 10 of the Act, or other voluntary
conservation efforts or management plans. The conservation achieved
through implementing HCPs or other habitat management plans can be
greater than what we achieve through multiple site-by-site, project-by-
project, section 7(a)(2) consultations involving project effects to
critical habitat. Management plans can commit resources to implement
long-term management and protection to particular habitat for at least
one and possibly other listed or sensitive species. Section 7(a)(2)
consultations commit Federal agencies to preventing adverse
modification of critical habitat caused by the particular project;
consultation does not require Federal agencies to provide for
conservation or long-term benefits to areas not affected by the
proposed project. Thus, implementation of any HCP or management plan
that incorporates enhancement or recovery as the management standard
may often provide as much or more benefit than a consultation for
critical habitat designation. The potential benefits of a critical
habitat designation are therefore reduced when an effective
conservation plan is in place. The Secretary places great value on the
maintenance and encouragement of conservation partnerships with non-
Federal landowners that enable the development of such voluntary
measures for the benefit of listed species and species of conservation
concern, for the reasons detailed below.
Considerations Specific to Non-Federal Lands With Conservation
Agreements
As noted above, the Secretary may exclude areas from critical
habitat if she determines that the benefits of exclusion outweigh the
benefits of including those areas as part of the critical habitat
(unless exclusion of those areas will result in the extinction of the
species). We believe that in some cases designation can negatively
impact the working relationships and conservation partnerships we have
formed with private landowners, and may serve as a disincentive for the
formation of future partnerships or relationships that would have the
potential to provide conservation benefits.

[[Page 19740]]

The Service recognizes that most federally listed species in the
United States will not recover without the cooperation of non-Federal
landowners. More than 60 percent of the United States is privately
owned (Lubowski et al. 2006, p. 35), and at least 80 percent of
endangered or threatened species occur either partially or solely on
private lands (Crouse et al. 2002, p. 720). Groves et al. (2000, pp.
280-281) reported that about one-third of populations of federally
listed species are found on Federal lands; private lands were found to
provide for at least one population of more than two-thirds of
federally listed species (Groves et al. 2000, p. 283).
Given the distribution of listed species with respect to
landownership, the successful conservation of listed species in many
parts of the United States will clearly depend upon working
partnerships with a wide variety of entities and the voluntary
cooperation of many non-Federal landowners (Wilcove and Chen 1998, p.
1407; Crouse et al. 2002, p. 720; James 2002, p. 271). Building
partnerships and promoting the willing cooperation of landowners is
essential to understanding the status of species on non-Federal lands
and necessary to implement recovery actions, such as the reintroduction
of listed species, habitat management, and habitat protection.
Many non-Federal landowners derive satisfaction from voluntarily
participating in the recovery of endangered or threatened species.
Conservation agreements with non-Federal landowners, Habitat
Conservations Plans, Safe Harbor Agreements, other conservation
agreements, easements, and State and local regulations enhance species
conservation by extending species protections beyond those available
through section 7 consultations. We encourage non-Federal landowners to
enter into conservation agreements based on a view that we can achieve
greater species conservation on non-Federal land through such
partnerships than we can through regulatory methods (61 FR 63854;
December 2, 1996). The Service realizes this benefit through
partnerships not only with private landowners, but with our State
partners, Counties, and local municipalities as well.
We acknowledge that private landowners are often wary of the
possible consequences of encouraging endangered species conservation on
their property, and of regulatory action by the Federal government
under the Act. Social science research has demonstrated that, for many
private landowners, government regulation under the Act is perceived as
a loss of individual freedoms, regardless of whether that regulation
may in fact result in any actual impact to the landowner (Brook et al.
2003, pp. 1644-1648; Conley et al. 2007, p. 141). Furthermore, in a
recent study of private landowners who have experience with regulation
under the Act, only 2 percent of respondents believed the Federal
Government rewards private landowners for good management of their
lands and resources (Conley et al. 2007, pp. 141, 144). According to
some researchers, the designation of critical habitat on private lands
significantly reduces the likelihood that landowners will support and
carry out conservation actions (Main et al.1999, p. 1263; Bean 2002, p.
412; Brook et al. 2003, pp. 1644-1648). The magnitude of this negative
outcome is greatly amplified in situations where active management
measures (such as reintroduction, fire management, or control of
invasive species) are necessary for species conservation (Bean 2002,
pp. 412-413).
Since Federal actions such as the designation of critical habitat
on private lands may reduce the likelihood that landowners will support
and carry out conservation actions for the benefit of listed species,
based on the research described above, we believe that in some cases
the judicious exclusion of non-federally owned lands from critical
habitat designations can contribute to species recovery and provide a
greater level of species conservation than critical habitat designation
alone. In addition, we believe that States, counties, and communities
will be more likely to develop conservation agreements such as HCPs,
SHAs, CCAAs, or other plans that benefit listed species if they are
relieved of any potential additional regulatory burden that might be
imposed as a result of critical habitat designation. A benefit of
exclusion from critical habitat is thus the unhindered, continued
ability to maintain existing and seek new partnerships with future
participants in the development of beneficial conservation plans,
including States, Counties, local jurisdictions, conservation
organizations, and private landowners. Together these entities can
implement conservation actions that we would be unable to accomplish
otherwise.
We believe that acknowledging the positive contribution non-Federal
landowners are currently making to the conservation of the Mazama
pocket gopher, and maintaining good working relationships with these
landowners by excluding these areas, may provide a significant benefit
to the conservation of the Mazama pocket gopher in areas where non-
Federal lands will play an essential role in the recovery of the
species. The exclusion of these areas may encourage these landowners to
continue their positive management practices without fear of further
government regulation. In addition, the exclusion of such lands may lay
the foundation for building additional conservation partnerships and
relationships with other non-Federal landowners, with conservation
benefit not only for the Mazama pocket gopher, but other endangered or
threatened species or species of conservation concern as well.
In contrast, we believe there may be relatively little benefit to
be gained by the designation of non-Federal lands with adequate
conservation agreements in place. A potential benefit of designation
would be the regulatory protections afforded to critical habitat under
section 7(a)(2) of the Act. However, as described earlier, on non-
Federal lands the regulatory protections of critical habitat only apply
when there is a Federal nexus (actions funded, permitted, or otherwise
carried out by the Federal government). All of the lands in this
critical habitat designation are occupied by the Mazama pocket gopher.
Thus, even if these lands are excluded from the final critical habitat
designation, if the Mazama pocket gopher is present and may be
affected, actions with Federal involvement require consultation to
review the effects of management activities that might adversely affect
listed species under a jeopardy standard; this assessment includes
effects to the species from habitat modification. Overall, given the
low likelihood of a Federal nexus occurring on these lands, we believe
the regulatory benefit of a critical habitat designation on these
lands, if any, may be limited. As described above, the presence of a
beneficial conservation plan on these lands further reduces this
benefit. However, in all cases we carefully weigh and consider the
potential benefits of exclusion versus inclusion for each specific area
under consideration for exclusion under section 4(b)(2), as detailed
below.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation is to trigger
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act. Where there is
little likelihood of

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a Federal action, the benefits of this protection can be low. On the
other hand, the benefits of excluding areas that are covered by
voluntary conservation efforts can, in specific circumstances, be high.
With the considerations described above in mind, here we describe our
weighing of the benefits of exclusion versus inclusion of specific non-
Federal lands with existing land and resource management plans,
conservation plans, or agreements based on conservation partnerships
from the final designation of critical habitat for the Mazama pocket
gopher.

Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships

We consider a current land management or conservation plan (HCPs as
well as other types) to provide adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
We find that the Rocky Prairie Natural Area Preserve (NAP) (which
is covered under the WDNR State Trust Lands HCP), the WDFW Scatter
Creek Wildlife Area Management Plan (which also covers the adjacent
private land), and the NRCS Colvin Ranch Grassland Reserve Program
Management Plan all fulfill the above criteria. We are excluding these
non-Federal lands covered by these plans because the plans adequately
provide for the long-term conservation of the Mazama pocket gopher;
such exclusion is likely to result in the continuation, strengthening,
or encouragement of important conservation partnerships; and the
Secretary has determined that the benefits of excluding such areas
outweigh the benefits of including them in critical habitat, as
detailed here.
Washington Department of Natural Resources State Trust Lands HCP
The WDNR State Trust Lands HCP covers approximately 1.7 million ac
(730,000 ha) of State lands in Washington. The permit associated with
this HCP, issued January 30, 1997, was announced in the Federal
Register on April 5, 1996 (61 FR 15297), has a term of 70 to 100 years,
and covers activities primarily associated with commercial forest
management, but also includes limited non-timber activities such as
some recreational activities. The HCP covers all species, including the
Mazama pocket gophers and other listed and unlisted species. We are
excluding Washington State lands totaling approximately 38 ac (16 ha)
that are covered and managed by the WDNR under its State Trust Lands
HCP from critical habitat proposed as Subunit 1-D under section 4(b)(2)
of the Act.
The HCP addresses multiple species through a combination of
strategies. The HCP includes a series of NAPs and Natural Resource
Conservation Areas (NRCAs), including the Rocky Prairie NAP. These
preserves are managed consistent with the Natural Areas Preserve Act,
and is a land designation used by the State of Washington to protect
the best examples of rare and vanishing flora, fauna, plant and animal
communities, geological, and natural historical value, consistent with
the Washington Natural Areas Preserves Act of 1972 (RCW 79.70). These
preserves are used for education, scientific research, and to maintain
Washington's native biological diversity. This network of preserves
includes nearly 31,000 ac (12,550 ha) throughout the State, which range
in size from 8 ac (3.2 ha) to 3,500 ac (1,416 ha). Management plans are
developed for each NAP, which guide the actions necessary to protect
each area's natural features, including research, monitoring,
restoration, and other active management. WDNR actively manages the
Rocky Prairie NAP to maintain high-quality prairie habitat. This
location contains many of the essential physical or biological features
to support the Mazama pocket gopher, and is currently occupied by the
Tenino pocket gopher within the only known range of this subspecies.
The NAP property at Rocky Prairie has a species-specific management
plan that provides for the conservation of the Tenino pocket gopher,
and this site has been managed for the conservation of prairie species,
including Mazama pocket gophers specifically. This ongoing practice of
habitat management and conservation has fostered a diverse variety of
native food plants that complement the friable well-drained soil. The
management planning for each of these areas has established a decades-
long track record of activity focused on enhancing prairie composition
and structure at the Rocky Prairie NAP (WDNR 1989b). The conservation
measures applied at the NAP has more recently been refocused through
the development of a site-specific restoration plan that will benefit
the Tenino pocket gopher. This restoration plan (Wilderman and
Davenport 2011c) provides for the needs of the Tenino pocket gopher by
protecting and managing the Rocky Prairie NAP and implementing species-
specific conservation measures designed to avoid and minimize impacts
to pocket gophers.
Benefits of Inclusion--Rocky Prairie Natural Area Preserve under
the WDNR State Trust Lands HCP--We find there are minimal benefits to
including the Rocky Prairie Natural Area Preserve in critical habitat.
As discussed above, the primary effect of designating any particular
area as critical habitat is the requirement for Federal agencies to
consult with us under section 7 of the Act to ensure actions they carry
out, authorize, or fund do not adversely modify designated critical
habitat. Absent critical habitat designation in occupied areas, Federal
agencies remain obligated under section 7 of the Act to consult with us
on actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence. Rocky
Prairie NAP is currently occupied and has been undergoing restoration
through a federally-funded program (the Department of Defense's (DOD)
Army Compatible Use Buffer program (ACUB)), thus any proposed ACUB
actions for habitat restoration would trigger section 7 consultation
for both the Tenino pocket gopher and its designated critical habitat.
The benefits of inclusion in critical habitat at this site would be
minimized since it is occupied by the Tenino pocket gopher. Because the
primary threats to the Tenino pocket gopher include habitat loss and
degradation, any potential formal consultations under section 7 of the
Act will evaluate the effects of the action on the capability of the
habitat to support the life history requirements for the species
regardless of whether critical habitat is designated for these lands.
The analytical requirements to support a jeopardy determination on
excluded land are similar, but not identical, to the requirements in an
analysis for an adverse modification determination on land included in
critical habitat. The additional benefit of consultation under the
adverse modification standard at this occupied site would therefore be
reduced.
The inclusion of Rocky Prairie NAP as critical habitat could
potentially provide some additional Federal regulatory benefits for the
species consistent with the conservation standard based on the

[[Page 19742]]

Ninth Circuit Court's decision in Gifford Pinchot Task Force v. United
States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As
noted above, a potential benefit of inclusion would be the requirement
of a Federal agency to ensure that their actions on this non-Federal
land would not likely result in the destruction or adverse modification
of critical habitat. Any Federal nexus on this land would likely result
from actions to restore or maintain favorable habitat conditions,
carried out under the HCP or granting of Federal funds for beneficial
management of prairie-associated species, such as the Mazama pocket
gophers. As the action being consulted on is itself intended to benefit
prairie-associated species, including the Tenino pocket gopher, the
incremental benefit to the Tenino pocket gopher would likely be
minimal, as we would not expect additional conservation measures to be
recommended as the result of section 7 consultation required by this
habitat management funding.
The Service has coordinated with WDNR on conservation actions to be
implemented for the Tenino pocket gopher at Rocky Prairie NAP.
Management of NAPs in Thurston County, Washington, is guided in large
part by the South Puget Sound Prairie Landscape Working Group. The
Service is a charter member of this partnership group, which was
established in 1994, to promote and improve the management and planning
of conservation actions on south Puget Sound prairies and associated
habitats. The Working Group includes WDNR, JBLM, NRCS, WDFW, CNLM, the
Washington Department of Transportation (WSDOT), as well as other
Federal, State, county, city, nongovernmental, and private group
entities, each with knowledge and expertise in prairie ecosystem
management. The Working Group coordinates regularly, meeting twice-
yearly to share information and discuss priorities, and making
significant improvements on the ground in prairies and oak woodlands.
At one south Puget Sound location, volunteers implement restoration and
recovery actions for prairie species every Tuesday throughout the year.
This is a well-established group that is expected to continue its
coordination efforts into the foreseeable future, regardless of the
designation of critical habitat. Management of the Rocky Prairie NAP
site receives oversight from the Mazama Pocket Gopher Working Group, a
multi-agency working group that has been in existence since 2009.
Participants in the working group include JBLM, NRCS, USFS, WDNR, WDFW,
WSDOT, University of Washington researchers, CNLM, and other Federal,
State, county, city, nongovernmental, private entities and individuals,
each with knowledge and expertise on the Mazama pocket gopher, its
conservation, habitat, and restoration needs. Designation of the Rocky
Prairie NAP as critical habitat would therefore likely yield no
additional benefit to the outputs of the working groups, their members,
or their ease of coordination. The active, long-term restoration
efforts already in place at this site thus reduce the potential benefit
of critical habitat.
Another potential benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This can help focus and promote conservation efforts by
identifying areas of high conservation value for the Tenino pocket
gopher. The designation of critical habitat informs State agencies and
local governments about areas that could be conserved under State laws
or local ordinances. Any additional information about the needs of the
Tenino pocket gopher or its habitat that reaches a wider audience can
be of benefit to future conservation efforts. During the spring of 2013
alone, the Service hosted two prairie workshops, one public hearing,
and two local Thurston County events attended by nearly 1,000 people to
publicize and educate local community members of the species' declining
distribution, and the threat to the native flora and fauna found on
western Washington prairies. An important conservation measure that is
gained through these outreach networks is the ability to educate the
public about the historical role and current importance of prairies to
our local community and economy. Included among the outreach measures
is the distribution of educational material, and encouraging landowners
to conduct prairie restoration activities on their properties. In early
2013 the Service also held two workshops specifically to answer
questions about the proposed listing of the Mazama pocket gopher and
proposed critical habitat designation; one designed for Federal, State,
and County partners and one for private parties. Additional events are
expected to occur in the future, and designation of the site as
critical habitat is not expected to increase the number of such
meetings or improve their outcomes; the additional educational value of
critical habitat is therefore minimized.
The incremental benefit of inclusion is reduced because of the
long-standing management planning and implementation efforts for the
site, which presently benefit the conservation of the Tenino pocket
gopher and its habitat, as discussed above. In addition, the NAP
restoration plan provides greater protection to Tenino pocket gopher
habitat than would the designation of critical habitat, since the
planning effort is intended to actively improve the structure and
composition of the habitat (critical habitat does not carry any
requirement for habitat restoration or improvement, only the avoidance
of destruction or adverse modification). Therefore, designation of
critical habitat at Rocky Prairie NAP would not provide any additional
management focus or benefits for the species or its habitat that is not
already occurring at this location under Washington State management
authority, through plans developed through our recovery program, or
through the DOD ACUB funding authority, which has provided funding
support for many of our local protected prairies, including Rocky
Prairie NAP.
Benefits of Exclusion--Rocky Prairie Natural Area Preserve under
the WDNR State Trust Lands HCP--The benefit of excluding Rocky Prairie
NAP from critical habitat is relatively greater. The WDNR HCP has
served as a model for several completed and ongoing HCP efforts,
including the Washington State Forest Practices HCP. The Service
accrues a significant benefit from encouraging the development of such
HCPs and other voluntary conservation agreements in cooperation with
non-Federal partners. Since issuance of the WDNR State Trust Lands HCP,
a number of land transactions and land exchanges within the HCP area
have occurred. These transactions have included creation of additional
NRCAs and NAPs (land designations with a high degree of protection),
and have also included large land exchanges and purchases that have
changed the footprint of the HCP. These land-based adjustments have
facilitated better management on many important parcels and across
larger landscapes than would otherwise have been possible.
HCPs typically provide for greater conservation benefits to a
covered species than section 7 consultations because HCPs ensure the
long-term protection and management of a covered species and its
habitat. In addition, funding for such management is ensured through
the Implementation Agreement. Such assurances are typically not
provided by section 7 consultations, which, in contrast to

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HCPs, often do not commit the project proponent to long-term, special
management practices or protections. Thus, a section 7 consultation
typically does not afford the lands it covers similar extensive
benefits as an HCP. The development and implementation of HCPs provide
other important conservation benefits, including the development of
biological information to guide the conservation efforts and assist in
species conservation, and the creation of innovative solutions to
conserve species while meeting the needs of the applicant. In this
case, substantial information has been developed from the research,
monitoring, and surveys conducted by WDNR. Therefore, exclusion is a
benefit because it maintains and fosters the development of biological
information and innovative solutions.
The Washington DNR has requested that the lands covered by this HCP
be excluded from critical habitat. This HCP is located in key
landscapes across the State, and the NAP at Rocky Prairie--which is
covered by the HCP--contributes meaningfully to the recovery of the
Tenino pocket gopher. We consider the acknowledgement of the State's
positive contributions by relieving them of any additional regulatory
burden associated with critical habitat, whether real or perceived, to
be a significant benefit of exclusion. Excluding the area covered by
the WDNR State Trust Lands HCP provides significant benefit in terms of
sustaining and enhancing the partnership between the Service and the
State of Washington, with positive consequences for conservation of the
Tenino pocket gopher as well as other species that may benefit from
such partnerships in the future. Because the majority of occurrences of
endangered or threatened species are on non-Federal lands, partnerships
with non-Federal landowners and land managers are vital to the
conservation of listed species. Therefore, the Service is committed to
maintaining and encouraging such partnerships through the recognition
of positive conservation contributions.
By excluding these lands, we preserve our current private and local
conservation partnerships and encourage additional conservation such
partnerships in the future. Exclusion of these areas will additionally
help us maintain an important and successful partnership with other
Washington State conservation partners (via the South Puget Sound
Prairie Landscape Working Group and the Mazama Pocket Gopher Working
Group) who collectively organized themselves in 2009 to include the
Mazama pocket gopher in their management and restoration plans, as well
as encouraging others to join in these and other conservation
partnerships. We consider the positive effect of excluding proven
conservation partners from critical habitat to be a significant benefit
of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Rocky Prairie
Natural Area Preserve under the WDNR State Trust Lands HCP--The
Secretary has determined that the benefits of excluding the WDNR-
managed Rocky Prairie NAP from the designation of critical habitat for
the Tenino pocket gopher outweigh the benefits of including these areas
in critical habitat. The benefits of including the 38 ac (16 ha) of
Washington State lands at the Rocky Prairie NAP and covered under the
State Trust Lands HCP in critical habitat are relatively small. Any
Federal nexus on this land would likely result from actions to enhance
or maintain favorable habitat conditions, undertaken under the HCP or
granting of Federal funds for beneficial management of prairie-
associated species, such as the Tenino pocket gopher. If a Federal
nexus were to occur, it would most likely be with the Service or DOD,
and their actions will be geared toward the conservation benefits of
restoring and enhancing habitat specifically for the Tenino pocket
gopher, or other prairie-associated species. This type of management
would benefit the Tenino pocket gopher if focused on the maintenance of
open, short-statured vegetative conditions that the pocket gopher
typically occupies. As the action being consulted on is itself intended
to benefit prairie-associated species, including the Tenino pocket
gopher, the incremental benefit to the Tenino pocket gopher would
likely be minimal, as we would not expect additional conservation
measures to be recommended as the result of section 7 consultation
required by this habitat management funding.
The South Puget Sound Prairie Landscape Working Group partnership,
which contributes to management planning on the NAP, and the Mazama
Pocket Gopher Working Group, which also provides further species
management guidance, would not be additionally benefitted due to
inclusion of these areas in critical habitat. These working groups are
well-established, cohesive, and productive groups that have yielded and
will continue to yield positive conservation outcomes for the Mazama
pocket gopher on south Puget Sound prairies including Rocky Prairie
NAP, regardless of the designation of critical habitat. The
conservation strategies of the NAP restoration plan and the ongoing
adaptive habitat restoration strategies are designed to protect and
enhance habitat for the Mazama pocket gopher and other prairie-
associated species. These strategies include species-specific
management actions to support the Tenino pocket gopher, avoidance and
minimization measures, and monitoring requirements to ensure proper
implementation, which further minimizes the benefits of including these
areas in a designation of critical habitat.
In contrast, the benefits derived from excluding areas covered the
Washington State Trust Lands HCP and Rocky Prairie NAP management plan,
thus enhancing our partnership with the State of Washington and other
Washington State conservation partners, are substantial. The WDNR State
Trust Lands HCP provides for significant conservation and management
within geographical areas that contain the physical or biological
features essential to the conservation of the Tenino pocket gopher, and
helps achieve recovery of this species through the conservation
measures of the HCP. Exclusion of these lands from critical habitat
will help foster the partnership we have developed with WDNR, through
the development and continuing implementation of the HCP and the area
management plans. It will also help us maintain and foster important
and successful partnerships with our Washington State conservation
partners in the South Puget Sound Prairie Landscape Working Group and
the species-specific Mazama Pocket Gopher Working Group, which share
significant overlap and, by doing so, bridge ecosystem management
strategies and species-specific conservation actions. Both WDNR and the
working groups have encouraged others to join in conservation
partnerships as well, and exclusion of these lands will encourage the
future development of such beneficial conservation partnerships. The
recognition of the positive contributions made through the Washington
State Trust Lands HCP through exclusion from critical habitat will
likely encourage the development of future HCPs for the benefit of
additional listed species and their habitats, with far-reaching
benefits for conservation. The positive conservation benefits that may
be realized through the maintenance of these existing partnerships, as
well as through the encouragement of future such partnerships, and the
importance of developing such partnerships on non-

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Federal lands for the benefit of listed species, are such that we
consider the positive effect of excluding proven conservation partners
from critical habitat to be a significant benefit of exclusion. For
these reasons, we have determined that the benefits of exclusion
outweigh the benefits of inclusion for Rocky Prairie NAP.
Exclusion Will Not Result in the Extinction of the--Rocky Prairie
Natural Area Preserve under the WDNR State Trust Lands HCP--We have
determined that exclusion of approximately 38 ac (16 ha) of the Rocky
Prairie NAP, which is covered under the WDNR State Trust Lands HCP,
will not result in the extinction of the Tenino pocket gopher. Actions
covered by the HCP will not result in extinction of the Tenino pocket
gopher because the NAP is set aside as a conservation site expressly
for the purpose of preserving and restoring the native prairie
ecosystem. The State Trust Lands HCP provides for the future needs of
the Tenino pocket gopher by restoring, maintaining, and creating
habitat within these areas, and supporting management of Mazama pocket
gopher habitat and that of other rare species through HCP compliance.
Additionally, the NAP operates under a specific management plan to
guide long-term site management, and a more recently developed
restoration plan to direct the habitat enhancement activity. For these
reasons, we find that exclusion of the Rocky Prairie NAP covered by the
WNDR State Trust Lands HCP will not result in extinction of the Tenino
pocket gopher. Based on the above discussion, the Secretary is
exercising her discretion under section 4(b)(2) of the Act to exclude
from this final critical habitat designation a portion of the proposed
critical habitat Subunit 1-D that is covered by the WDNR State Trust
Lands HCP as identified above, totaling about 38 ac (16 ha).
Scatter Creek Wildlife Area and Adjacent Private Land, and the West
Rocky Prairie Wildlife Area
We are excluding 767 ac (310 ha) of Washington State lands
designated as Wildlife Areas, and 98 ac (40 ha) of private land
inholding, from this critical habitat designation under section 4(b)(2)
of the Act. These Wildlife Areas are known as the Scatter Creek
Wildlife Area (633 ac (256 ha)) (proposed subunit 1-G, Scatter Creek,
critical habitat for the Yelm pocket gopher) and West Rocky Prairie
Wildlife Area (134 ac (54 ha)) (proposed subunit 1-F, West Rocky
Prairie, critical habitat for the Olympia pocket gopher), both owned
and managed by WDFW. The private inholding is associated with the
Scatter Creek Wildlife Area (proposed subunit 1-G, Scatter Creek) and
is managed by WDFW identically to the Wildlife Area itself. Wildlife
Areas provide a variety of habitat for endangered and threatened
species, including the Mazama pocket gopher, and are managed for that
purpose, among others. Each Wildlife Area operates under a Wildlife
Area Management Plan specific to the unique management needs of that
area. Species-specific management plans have been written for a subset
of the Wildlife Areas, including Scatter Creek and West Rocky Prairie.
Wildlife Areas are purchased to provide the highest benefit to fish,
wildlife, and the public. In addition, WDFW is currently developing an
HCP for lands in Wildlife Areas with the help of the Service, which
will incorporate a landscape-level approach to managing at-risk
species, including the Mazama pocket gopher.
WDFW developed a management plan for the Scatter Creek Wildlife
Area and the adjacent private land in 2010 that specifically details
the habitat needs of the Mazama pocket gopher and continues to refine
habitat conservation measures through collaboration with local
conservation partners from the Service, WDNR, the University of
Washington, and CNLM (Hays 2010). WDFW also has a draft management plan
to guide prairie management at the West Rocky Prairie Wildlife Area
(WDFW 2011), which will be this area's guiding document until
finalized. Prior to the management plan being developed, the site was
managed for an array of species and recreational activities, including
restoration actions designed to improve the prairie conditions for the
Mazama pocket gopher, mardon skipper butterfly (Polites mardon), and
Taylor's checkerspot butterfly (Euphydryas editha taylori). The Scatter
Creek Wildlife Area, the adjacent private lands, and the West Rocky
Prairie Wildlife Area are currently occupied by Mazama pocket gophers,
the Yelm pocket gopher at Scatter Creek and Olympia pocket gopher at
West Rocky Prairie. The West Rocky Prairie Wildlife Area was the
recipient site for a translocation study conducted using the Olympia
pocket gopher, despite being within the historical range of the Tenino
pocket gopher.
Benefits of Inclusion--Scatter Creek Wildlife Area and Adjacent
Private Land; West Rocky Prairie Wildlife Area--We find there are
minimal benefits to including these areas in critical habitat. As
discussed above, the primary effect of designating any particular area
as critical habitat is the requirement for Federal agencies to consult
with us under section 7 of the Act to ensure actions they carry out,
authorize, or fund do not adversely modify designated critical habitat.
Absent critical habitat designation in occupied areas, Federal agencies
remain obligated under section 7 of the Act to consult with us on
actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence.
The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. The regulatory standard is
different, as the jeopardy analysis investigates the action's impact on
the survival and recovery of the species, while the adverse
modification analysis focuses on the action's effects on the designated
habitat's contribution to conservation. This may, in some instances,
lead to different results and different regulatory requirements. Thus,
critical habitat designations have the potential to provide greater
benefit to the recovery of a species than would listing alone.
The inclusion of these covered lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a
potential benefit of inclusion would be the requirement of a Federal
agency to ensure that their actions on these non-Federal lands would
not result in the destruction or adverse modification of critical
habitat. The granting of Federal funds for beneficial management of
prairie-associated species such as the Mazama pocket gopher would
provide the only foreseeable Federal nexus for these non-Federal lands.
WDFW has received funding specifically to improve habitat features at
these sites such as vegetation composition, and structure to support
native prairie associated species. These improvements to native prairie
vegetative structure and composition also benefit the Mazama pocket
gopher. This funding will support activities through 2017. Funding is
also provided to WDFW from the DOD ACUB program, which is a high
priority program for DOD. Leadership at DOD has confirmed that the
program will continue into the future (Jeff Foster, pers. comm. 2013).
Because the primary threats to the

[[Page 19745]]

Mazama pocket gophers include habitat loss and degradation, any
potential formal consultations under section 7 of the Act will evaluate
the effects of the action on the capability of the habitat to support
the life history requirements for the listed pocket gophers regardless
of whether critical habitat is designated for these lands. The
analytical requirements to support a jeopardy determination on excluded
land are similar, but not identical, to the requirements in an analysis
for an adverse modification determination on land included in critical
habitat. The additional consideration of adverse modification of
critical habitat is therefore unlikely to result in a different
outcome. In addition, for Scatter Creek, the adjoining private land,
and West Rocky Prairie, the action most likely to be consulted on is
itself intended to benefit prairie-associated species, therefore the
outcome of consultation is unlikely to provide a significant additional
benefit to the Mazama pocket gopher as a result of critical habitat
designation. Thus, for the reasons described above, the potential
regulatory benefits of critical habitat in this case are limited.
The Service has coordinated with WDFW on conservation actions to be
implemented for the Mazama pocket gopher at the Scatter Creek Wildlife
Area, the adjoining private land, and West Rocky Prairie Wildlife Area
in south Thurston County, Washington. As with the NAPs in Thurston
County, management of the prairie Wildlife Areas in Thurston County is
guided in large part by the South Puget Sound Prairie Landscape Working
Group, which was established in 1994, to promote and improve the
management and planning of conservation actions on south Puget Sound
prairies and associated habitats. This is a well-established group that
is expected to continue its coordination efforts into the foreseeable
future. We conclude that designation of these Wildlife Areas as
critical habitat would yield no additional benefit to the outputs of
the South Puget Sound Prairie Landscape Working Group, its members, or
their ease of coordination, as the active, long-term efforts of this
group are expected to continue regardless of the designation of
critical habitat. Management of Scatter Creek Wildlife Area and
adjacent private land receives oversight from the Mazama Pocket Gopher
Working Group, a multi-agency working group that has been in existence
since 2009. Participants in the working group include JBLM, NRCS, USFS,
WDNR, WDFW, WSDOT, University of Washington researchers, CNLM, and
other Federal, State, county, city, nongovernmental, private entities
and individuals, each with knowledge and expertise on the Mazama pocket
gopher, its conservation, habitat, and restoration needs. The
incremental benefit from designating critical habitat for the Mazama
pocket gopher in these areas is further minimized because of the long-
standing management planning efforts that have been implemented and
planned for the two Wildlife Areas and the associated private land
inholding, which is managed using the same management methods as the
Wildlife Areas. These properties have implemented management for the
conservation of prairie habitat and prairie-associated species. Each
Wildlife Area focuses their management to promote the improvement of
native prairie vegetative composition, which provides ample food
resources for the Mazama pocket gopher as well as all of the essential
physical or biological features to support the species.
Management planning for each of the Wildlife Areas has established
a track record of activity focused on enhancing native prairie
composition and structure. The conservation measures regularly
implemented at the Wildlife Areas have recently been refocused through
the development of site specific restoration plans for each location to
benefit the Mazama pocket gopher and other prairie-associated species
(Hays 2013). The restoration being implemented and the guidance from
the management plan provides greater protection to Mazama pocket gopher
habitat than would the designation of critical habitat, since the
planning effort is intended to actively improve the composition and
structure of the habitat (the designation of critical habitat does not
require any active management). Therefore, the existing management at
this site will provide greater benefit than the regulatory designation
of critical habitat, which only requires the avoidance of destruction
or adverse modification, and does not require the creation,
improvement, or restoration of habitat.
Another potential benefit of including Wildlife Area lands and the
adjacent private inholding in a critical habitat designation is that it
serves to educate landowners, State and local governments, and the
public regarding the potential conservation value of an area. This can
help focus and promote conservation efforts by other parties by
identifying areas of high conservation value for the Mazama pocket
gopher. The designation of critical habitat informs State agencies and
local governments about areas that could be conserved under State laws
or local ordinances. Any additional information about the needs of the
Mazama pocket gopher or its habitat that reaches a wider audience can
be of benefit to future conservation efforts. During the spring of 2013
alone, the Service hosted two prairie workshops, one public hearing,
and two local Thurston County events attended by nearly 1,000 people to
publicize and educate local community members of the species' declining
distribution, and the threat to the native flora and fauna found on
western Washington prairies. An important conservation measure that is
gained through these outreach networks is the ability to educate the
public about the historical role and current importance of prairies to
our local community and economy. Included among the outreach measures
is the distribution of educational material, and encouraging landowners
to conduct prairie restoration activities on their properties. In early
2013 the Service also held two workshops specifically to answer
questions about the proposed listing of the Mazama pocket gopher and
proposed critical habitat designation; one designed for Federal, State,
and County partners and one for private parties. Additional events are
expected to occur in the future, and designation of the Wildlife Areas
as critical habitat is not expected to increase the number of such
meetings or improve their outcomes. Therefore, in this case the
incremental benefit of critical habitat in terms of education value is
negligible.
The incremental benefit of inclusion is minimized because of the
long-standing management planning efforts for each Wildlife Area, and
the associated private inholding, as discussed above. In addition, the
restoration plans provide greater protection to Mazama pocket gopher
habitat than does the designation of critical habitat, since the
planning effort is intended to actively improve the native prairie
vegetative component of the habitat. Therefore, designation of critical
habitat on these areas would not provide any additional management
focus that is not already occurring at these locations under Washington
State management authority, through plans developed through the
Service's recovery program, or through the DOD ACUB funding authority
which has provided financial support for many of our local protected
prairies, including these Wildlife Areas. For these reasons, we find
that the benefit of including these particular areas in critical
habitat is relatively small.
Benefits of Exclusion--Scatter Creek Wildlife Area and Adjacent
Private

[[Page 19746]]

Land; West Rocky Prairie Wildlife Area--The benefits of excluding these
two Wildlife Areas and the associated private inholding from designated
critical habitat are relatively greater. We have worked to create and
maintain a close partnership with WDFW through regular coordination and
the development of the Wildlife Area management plans, not only for
Scatter Creek and West Rocky Prairie Wildlife Areas, but other Wildlife
Areas as well, and we are currently collaborating with WDFW to develop
an HCP that would cover all of their Wildlife Areas. The management
plans contain provisions that will improve the conservation status of
the Mazama pocket gopher. Measures contained in the management plans
are consistent with recommendations from the Service for the
conservation of the Mazama pocket gopher, and will afford benefits to
these subspecies and their habitat.
Excluding these Wildlife Areas and associated private inholding
from critical habitat designation will provide significant benefits in
terms of sustaining and enhancing the excellent partnership between the
Service, WDFW, and the private landowner, as well as other partners who
participate in prairie management decision-making, resulting in
positive and ongoing consequences for conservation. The willingness of
WDFW and the private landowner to undertake conservation efforts for
the benefit of the Mazama pocket gopher and to work with the Service to
develop new management plans for the species will continue to reinforce
those conservation efforts and our partnership, which will support the
recovery process for the Mazama pocket gopher. We consider this
voluntary partnership in conservation vital to our understanding of the
status of the Mazama pocket gopher on WDFW lands in Thurston County,
and necessary for us to implement recovery actions such as habitat
protection, restoration, and beneficial management actions for the
species. Furthermore, exclusion from critical habitat could have the
benefit of encouraging other landowners to engage in similar
conservation partnerships and efforts with positive outcomes for the
conservation of listed species.
In addition, our understanding of the historical range of each the
Mazama pocket gopher subspecies has grown as a result of the
collaboration with WDFW biologists, highlighting the potential effects
of the translocation study that moved the Olympia pocket gopher into
the historical range of the Tenino pocket gopher. Although the West
Rocky Prairie Wildlife Area was proposed as critical habitat for the
Olympia pocket gopher because the subspecies presently occupies that
area, the site is not within the historical range of that subspecies,
nor is there currently any intent by the Service to utilize that site
as part of the recovery effort for the Olympia pocket gopher.
Therefore, we do not consider this area, even though technically
occupied by the Olympia pocket gopher, to be essential to the
conservation of the subspecies. Exclusion of the West Rocky Prairie
Wildlife Area from critical habitat will allow us greater flexibility
in exercising future recovery actions at this site. If the West Rocky
Prairie Wildlife Area were included as a critical habitat subunit for
the Olympia pocket gopher, in an area outside of its historical range
but within that of the Tenino pocket gopher, our ability to recover the
Tenino pocket gopher at the site would be constrained. Exclusion of the
West Rocky Prairie Wildlife Area would allow a wider range of recovery
options for the Tenino pocket gopher, a subspecies for which a single
isolated population is currently known to exist, and which is therefore
highly dependent upon successful recovery efforts at appropriate sites
within its historical range.
As described above, the designation of critical habitat could have
an unintended negative effect on our relationship with non-Federal
landowners due to the perceived imposition of redundant government
regulation. If lands within the area managed by WDFW for the benefit of
the Mazama pocket gopher are designated as critical habitat, it could
have a dampening effect on our continued ability to seek new
partnerships with future participants including States, counties, local
jurisdictions, conservation organizations, and private landowners,
which together can implement various conservation actions (such as
SHAs, HCPs, and other conservation plans, particularly large, regional
conservation plans that involve numerous participants or address
landscape-level conservation of species and habitats) that we would be
unable to accomplish otherwise.
Excluding these areas from critical habitat designation provides
significant benefit in terms of sustaining and enhancing the
partnership between the Service, the State of Washington, and the
private landowner, with positive consequences for conservation for the
Mazama pocket gopher as well as other species that may benefit from
such partnerships in the future. Because the majority of occurrences of
endangered or threatened species are on non-Federal lands, conservation
partnerships with non-Federal landowners and land managers are vital to
the conservation of listed species. Therefore, the Service is committed
to maintaining and encouraging such partnerships through the
recognition of positive conservation contributions. Our WDFW
conservation partners made a commitment by including the Mazama pocket
gopher in their Wildlife Area implementation plan, and they have
engaged with and encouraged others to join in conservation
partnerships, such as the South Puget Sound Prairie Landscape Working
Group and the Mazama Pocket Gopher Working Group. In addition, the
private landowner serves as a model of voluntary conservation and may
aid in fostering future voluntary conservation efforts by other private
parties in other locations for the benefit of listed species; this is a
significant benefit, since the majority of listed species occur on
private lands. We consider the positive effect of excluding proven
conservation partners from critical habitat to be a significant benefit
of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion-Scatter Creek
Wildlife Area and Adjacent Private Land; West Rocky Prairie Wildlife
Area--The Secretary has determined that the benefits of excluding these
prairie Wildlife Areas (Scatter Creek and the adjacent private land,
and West Rocky Prairie) from the designation of critical habitat for
the Yelm and Olympia pocket gopher outweigh the benefits of including
these areas in critical habitat. The regulatory and informational
benefits of including these 767 ac (310 ha) of Washington State
Wildlife Areas and associated 98 ac (40 ha) of private land inholding
are minimal. As noted above, a potential benefit of inclusion would be
the requirement that Federal agencies ensure that their actions on
these non-Federal lands would not likely result in the destruction or
adverse modification of critical habitat. However, this potential
benefit is limited because if a Federal nexus were to occur, it would
most likely be with the Service or DOD, and the proposed actions would
be geared toward the conservation benefits of restoring and enhancing
habitat specifically for the Mazama pocket gopher, or other prairie-
associated species from which the Mazama pocket gopher would benefit.
This type of proactive management, if focused on the maintenance of
open, short-statured vegetative conditions that the Mazama pocket
gopher typically occupies, will outweigh any benefit from the
regulatory designation of critical habitat,

[[Page 19747]]

which only requires the avoidance of adverse modification and does not
require the creation, improvement, or restoration of habitat. The
incremental benefit to the Mazama pocket gopher from the small amount
of resultant section 7 consultation required by this habitat management
funding is likely minimal, especially considering that the action being
consulted on is itself intended to benefit prairie-associated species,
including the Mazama pocket gopher.
The South Puget Sound Prairie Landscape Working Group partnership
and the Mazama Pocket Gopher Working Group, which assists with guiding
management on the Wildlife Areas, would not be additionally benefitted
due to inclusion of the Wildlife Areas in critical habitat, as this is
a well-established, cohesive, and productive group that has yielded,
and will continue to yield, positive conservation outcomes for the
Mazama pocket gopher on south Sound prairies, including these Wildlife
Areas, regardless of critical habitat. The conservation strategies of
each Wildlife Area management plan are crafted to protect and enhance
habitat for the Mazama pocket gopher. These plans include species-
specific management actions to support the Mazama pocket gopher,
avoidance and minimization measures, and monitoring requirements to
ensure proper implementation, which further minimizes the benefits of
including these areas in a designation of critical habitat.
In contrast, the benefits accrued from excluding areas within the
Scatter Creek Wildlife Area, West Rocky Prairie Wildlife Area, and the
associated private inholding, are substantial. Excluding the West Rocky
Prairie Wildlife Area will improve recovery options for the Tenino
pocket gopher by allowing greater flexibility in selecting which
subspecies is ultimately best conserved at the West Rocky Prairie
Wildlife Area, while inclusion of West Rocky Prairie Wildlife Area
would imply that the Service intends to recover the Olympia pocket
gopher at that site; an area within the historical range of the Tenino
pocket gopher, the subspecies with the most highly restricted range of
the four subspecies listed.
A significant benefit of excluding these lands is that it will help
us maintain and foster an important and successful partnership with our
Washington State conservation partners who have already chosen to
include the Mazama pocket gopher in Wildlife Area management plans.
They have encouraged others to join in conservation partnerships as
well such as the Mazama Pocket Gopher Working Group. Recognizing the
important contributions of our conservation partners through exclusion
from critical habitat helps to preserve these partnerships, and helps
foster future partnerships for the benefit of listed species, the
majority of which do not occur on Federal lands; we consider this to be
a substantial benefit of exclusion. For these reasons, we have
determined that the benefits of exclusion outweigh the benefits of
inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Scatter
Creek Wildlife Area and Adjacent Private Land; West Rocky Prairie
Wildlife Area--We have determined that exclusion of approximately 633
ac (256 ha) of the Scatter Creek Wildlife Area owned by WDFW and 98 ac
(40 ha) of private land that is managed by WDFW in the same way as
Scatter Creek Wildlife Area, and 134 ac (54 ha) of the West Rocky
Prairie Wildlife Area, lands covered by management plans vetted by
several conservation partners working in south Puget Sound, will not
result in the extinction of the Yelm or Olympia pocket gophers,
respectively. Actions covered by the Wildlife Area management plans
will not result in extinction of the Yelm or Olympia pocket gophers
because the plans provide for the needs of the species by protecting,
restoring, and enhancing all the known occupied Mazama pocket gopher
habitat under the jurisdiction of the State; committing to the
enhancement and recruitment of additional habitat through management on
each Wildlife Area to support meta-population structure within the
Wildlife Areas; and implementing species-specific conservation measures
designed to avoid and minimize impacts to Mazama pocket gophers.
Further, for projects having a Federal nexus and potentially affecting
the Mazama pocket gopher in occupied areas, the jeopardy standard of
section 7 of the Act, coupled with protection provided by the voluntary
Mazama pocket gopher conservation plans that are available to
landowners if they so choose, would provide a level of assurance that
this species will not go extinct as a result of excluding these lands
from the critical habitat designation. Additionally, each of the
Wildlife Areas has a specific management plan to guide long-term
management to direct the habitat enhancement activities at each
location. The species is also protected from take under section 9 of
the Act on all properties where the species is found. Federal agencies
would be required to minimize the effects of incidental take, and would
be encouraged to avoid incidental take through the section 7
consultation process. For these reasons, we find that exclusion of
these lands covered by these specific Wildlife Area management plans
will not result in extinction of the Yelm or Olympia pocket gophers.
Based on the above discussion, the Secretary is exercising her
discretion under section 4(b)(2) of the Act to exclude from this final
critical habitat designation portions of the proposed critical habitat
Subunits 1-F and 1-G that are owned or managed by WDFW, totaling about
865 ac (350 ha).
Colvin Ranch Grassland Reserve Program Management Plan
Private lands totaling 378 ac (153 ha) that are covered under an
NRCS Grassland Reserve Program Management Plan are excluded from
proposed Subunit 1-H in this critical habitat designation under section
4(b)(2) of the Act. The Service has coordinated directly with NRCS
regarding conservation actions that are being implemented on the
portion of Rock Prairie that lies south of Old Hwy 99 (hereafter known
as Colvin Ranch). Colvin Ranch has been managed for approximately 10
years under a long-term Grassland Reserve Program Management Plan (GRP
management plan), and 530 ac (215 ha) of the property is conserved in
perpetuity by a conservation easement held by NRCS, of which a portion
(378 ac (153 ha)) is excluded from critical habitat. Under the GRP
management plan, the landowners manage their land using a livestock
grazing guideline for western Washington prairies developed in
partnership with NRCS. The GRP management plan uses intensive livestock
grazing as the primary tool to minimize the invasion of prairies by
Douglas fir and other woody native and nonnative shrub species.
Additionally, pasture grasses that are often in competition for
resources with the native prairie species are consumed by the
livestock, which makes room for native prairie species and restores
prairie composition, structure and function. All of these practices
provide a positive conservation benefit for the Yelm pocket gopher and
its habitat. Colvin Ranch is currently occupied by the Yelm pocket
gopher.
Benefits of Inclusion--Colvin Ranch Grassland Reserve Program
Management Plan--We find there are minimal benefits to including Colvin
Ranch in critical habitat. As discussed above, the primary effect of
designating any particular area as critical habitat is

[[Page 19748]]

the requirement for Federal agencies to consult with us under section 7
of the Act to ensure actions they carry out, authorize, or fund do not
adversely modify designated critical habitat. Absent critical habitat
designation in occupied areas, Federal agencies remain obligated under
section 7 of the Act to consult with us on actions that may affect a
federally listed species to ensure such actions do not jeopardize the
species' continued existence. Colvin Ranch is currently occupied by the
Yelm pocket gopher; therefore a Federal action with potential adverse
effects would trigger both a jeopardy analysis and an analysis of
adverse modification, should critical habitat be designated. The
benefits derived from including critical habitat for this property
would most likely be derived from the potential Federal nexus resulting
from the granting of Federal funds intended to manage the lands to
benefit prairie associated species, such as the Yelm pocket gopher.
However, we anticipate that section 7 consultation related to habitat
management funding is not likely to provide much added benefit to the
species, since the action being consulted on is itself intended to
benefit prairie-associated species, including the Yelm pocket gopher.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This can help focus and promote conservation efforts by
other parties by identifying areas of high conservation value for the
Yelm pocket gopher. Designation of critical habitat informs State
agencies and local governments about areas that could be conserved
under State laws or local ordinances. Any additional information about
the needs of the Yelm pocket gopher or its habitat that reaches a wider
audience can be of benefit to future conservation efforts.
In this case, however, the potential educational benefit of
critical habitat is reduced due to the extensive community outreach
that is already taking place. During the spring of 2013 alone, the
Service hosted four prairie focused workshops and one public hearing
specifically related to the proposed listing and designation of
critical habitat. We also participated in two local prairie education
events in Thurston County attended by nearly 1,000 people to publicize
and educate local community members of the declining distributions and
threats to the native flora and fauna found on the west-side prairies.
One of these events is an annual event that was again hosted in 2013 at
Colvin Ranch, as it is each year. An important conservation measure
gained through these outreach networks is our ability to educate the
public about the historical role and current importance of prairies to
our local community and economy. Included among the outreach measures
is the distribution of educational material and the benefit derived
from encouraging landowners to conduct prairie restoration activities
on their own properties. In early 2013 the Service also held two
workshops specifically to answer questions about the proposed listing
of the Mazama pocket gopher and proposed critical habitat designation;
one designed for our Federal, State, and County partners and one for
private parties. Additional events are expected to occur in the future,
and designation of Colvin Ranch as critical habitat is not expected to
increase the number of such meetings or improve their outcomes. As
Colvin Ranch is already serving as a center of educational information
regarding the conservation of prairie habitats and their associated
species, including the Yelm pocket gopher, any potential additional
benefit stemming from the designation of critical habitat on this
property is negligible.
The incremental benefit from designating critical habitat for the
Yelm pocket gopher is further minimized due to the long-standing
management planning efforts implemented on Colvin Ranch. The property
owner has implemented management for the conservation of prairie
habitat that provides a diversity of native prairie vegetation for the
Yelm pocket gopher, and the land itself contains all of the essential
physical or biological features to support the Yelm pocket gopher. The
implementation of the GRP management plan for Colvin Ranch has
established a track record of activity focused on enhancing prairie
plant composition and structure. The implementation of Colvin Ranch GRP
management plan provides greater protection to Yelm pocket gopher
habitat than the designation of critical habitat since the management
is intended to improve the habitat structure and composition of the
several native prairie-dominated paddocks on Colvin Ranch (critical
habitat designation does not require active management, only avoidance
of destruction or adverse modification). In many cases, this work is
accomplished without Federal funding, which highlights the landowner's
willingness to continue the partnership.
Colvin Ranch has been an active working ranch in southern Thurston
County since 1865. Originally over 3,000 ac (1,214 ha) in size, it is
now approximately 1,000 ac (405 ha). Grazing systems have been modified
dramatically during this time period. Colvin Ranch required an
improvement to the infrastructure in order to accomplish the goal of
improving native prairie composition on the ranch through intensive
grazing, a practice of grazing greater numbers of cows on specific
pastures (paddocks) for shorter time periods. Miles of fencing were
erected to partition the fields into intensively managed paddocks, and
in each paddock a water source was made available. The intensive
management regime requires that livestock be moved often according to
vegetation height or soil condition changes specified in the GRP
management plan. The Colvin Ranch has been partitioned into 35
paddocks, with nearly 300 ac (120 ha) managed for the production of
native prairie plant composition. Colvin Ranch is presently being
managed for the benefit of prairie species, including the Yelm pocket
gopher and its habitat; we have no information to suggest that the
designation of critical habitat on this property would generate any
appreciable added benefit to the already positive management efforts
being implemented.
Benefits of Exclusion--Colvin Ranch Grassland Reserve Program
Management Plan--The benefits of excluding this private property from
designated critical habitat are relatively greater. We have developed a
close partnership with the landowner and NRCS through regular
coordination and outreach activities, using Colvin Ranch as an example
of land uses that are compatible with prairie conservation. The GRP
management plan provisions that will improve the conservation status of
the Yelm pocket gopher include novel grazing practices which have
resulted in the dramatic increase and maintenance of native prairie
vegetation. Measures contained in the GRP management plan are
consistent with recommendations from the Service for the conservation
of the Yelm pocket gopher, and will afford benefits to the species and
its habitat. The Service accrues a significant benefit from encouraging
the development of such voluntary conservation agreements in
cooperation with non-Federal partners. Because the majority of
occurrences of endangered or threatened species are on non-Federal
lands, partnerships with non-Federal landowners and land managers are
vital to the conservation of listed species. Therefore, the Service is
committed to maintaining and encouraging such partnerships through

[[Page 19749]]

the recognition of positive conservation contributions.
Excluding this private property from critical habitat designation
will provide a significant benefit in terms of sustaining and enhancing
the excellent partnership between the Service, NRCS, and the private
landowner, as well as other partners who participate in prairie
management decision-making, with positive consequences for
conservation. The willingness of the private landowner to undertake
conservation efforts for the benefit of the Yelm pocket gopher, and
work with NRCS and the Service to develop and employ conservation
actions, will continue to reinforce those conservation efforts and our
partnership, which contribute toward achieving recovery of the Yelm
pocket gopher. We consider this voluntary partnership in conservation
vital to the development of our understanding of the status of the Yelm
pocket gopher on agricultural lands in western Washington, and
necessary for us to implement recovery actions such as habitat
protection, restoration, and beneficial management actions for this
species. In addition, exclusion will provide the landowner with relief
from any potential additional regulatory burden associated with the
designation of critical habitat, whether real or perceived, which we
consider to be a significant benefit of exclusion in acknowledging the
positive contributions of our proven conservation partners.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of redundant regulation. Designation of
critical habitat on private lands that are managed for the benefit of
prairie species, including the Yelm pocket gopher, could have a
dampening effect on our continued ability to seek new partnerships with
future participants including States, counties, local jurisdictions,
conservation organizations, and private landowners. Together, these
parties can implement various cooperative conservation actions (such as
SHAs, HCPs, and other conservation plans, particularly large, regional
conservation plans that involve numerous participants and/or address
landscape-level conservation of species and habitats) that we would be
unable to accomplish otherwise. This private landowner made a
commitment almost a decade ago to develop and implement this GRP
management plan, which has restored much of Rock Prairie to habitat
favorable to the Yelm pocket gopher, and they have engaged with and
encouraged other parties, both public and private, to join in
conservation partnerships. We believe Colvin Ranch would be less likely
to encourage others to participate in similar grazing intensive
ranching practices that restore habitat for Mazama pocket gophers if
critical habitat were to be designated on this property. This private
landowner serves as a model of voluntary conservation and may aid in
fostering future voluntary conservation efforts by other parties in
other locations for the benefit of listed species. Most endangered or
threatened species do not occur on Federal lands. As the recovery of
these species will therefore depend on the willingness of non-Federal
landowners to partner with us to engage in conservation efforts, we
consider the positive effect of excluding proven conservation partners
from critical habitat to be a significant benefit of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch
Grassland Reserve Program Management Plan--The Secretary has determined
that the benefits of excluding the NRCS GRP managed prairies at Colvin
Ranch from the designation of critical habitat for the Yelm pocket
gopher outweigh the benefits of including these areas in critical
habitat. The regulatory and informational benefits of including Colvin
Ranch in critical habitat are minimal. Furthermore, any potential
limited benefits of inclusion on the section 7 process are relatively
unlikely to be realized, because a Federal nexus on these lands would
rarely occur. If one were to occur, it would most likely be with the
Service or NRCS, and their actions will be geared toward the
conservation benefits of restoring and enhancing habitat specifically
for the Yelm pocket gopher and other prairie-associated species. This
type of management is focused on the maintenance of open, short
statured vegetative conditions that the Yelm pocket gopher requires to
persist. Since any action likely to be the subject of consultation
under the adverse modification standard on this area would be focused
on providing positive habitat benefits for the Yelm pocket gopher, we
find it unlikely that critical habitat would result in any significant
additional benefit to the species. Furthermore, the benefits of
including this area in critical habitat are reduced since significant
management actions are already underway to restore the prairie habitat
in this area for the benefit of rare prairie-associated species,
including the Yelm pocket gopher. In this instance, the GRP management
plan for Colvin Ranch contains provisions for protecting and restoring
prairie habitat on Rock Prairie on which the Yelm pocket gopher relies
and those provisions exceed the conservation benefits that would be
afforded through section 7 consultation.
In contrast, the benefits derived from excluding Colvin Ranch are
substantial. Excluding these lands will help us maintain and foster an
important and successful partnership with this private landowner
partner and NRCS. They have consistently supported stewardship of
prairie habitat beneficial to the conservation of the Yelm pocket
gopher and have consistently encouraged others to join in conservation
partnerships as well. The exclusion of Colvin Ranch will serve as a
positive conservation model, and provides encouragement for other
private landowners to partner with the Service for the purpose of
conserving listed species. The positive conservation benefits that may
be realized through the maintenance of this existing partnership, as
well as through the encouragement of future such partnerships, and the
importance of developing such partnerships on non-Federal lands for the
benefit of listed species, are such that we consider the positive
effect of excluding proven conservation partners from critical habitat
to be a significant benefit of exclusion. For these reasons, we have
determined that the benefits of exclusion outweigh the benefits of
inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Colvin
Ranch Grassland Reserve Program Management Plan--We have determined
that exclusion of approximately 378 ac (153 ha) for the portion of the
Rock Prairie critical habitat subunit managed under the GRP management
plan implemented at Colvin Ranch will not result in extinction of the
Yelm pocket gopher. Actions covered by the GRP management plan will not
result in the extinction of the Yelm pocket gopher because the
management implemented on Colvin Ranch has continually improved Yelm
pocket gopher habitat during the time it has been practiced and
management of the prairie paddocks will continue and be modified over
time as new information is gained through systematically monitoring the
results of their intensive grazing system. Based on the above
discussion, the Secretary is exercising her discretion under section
4(b)(2) of the Act to exclude from this final critical habitat the 378
ac (153 ha) that are covered

[[Page 19750]]

under an NRCS Grassland Reserve Program Management Plan at Colvin Ranch
identified in proposed Subunit 1-H.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated 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, under these circumstances 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. Federal Agencies are not small entities and to this end,
there is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Therefore, because no small entities
are directly regulated by this rulemaking, the Service certifies that,
if promulgated, the final critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.

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

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis finds that none of
these criteria are relevant to this analysis. Thus, based on
information in the economic analysis, energy-related impacts associated
with Mazama pocket gopher conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or

[[Page 19751]]

otherwise decrease, the Federal Government's responsibility to provide
funding,'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement. ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance
or (ii) a duty arising from participation in a voluntary Federal
program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments. The designation of critical habitat does not
impose a legally binding duty on non-Federal Government entities or
private parties. Under the Act, the only regulatory effect is that
Federal agencies must ensure that their actions do not destroy or
adversely modify critical habitat under section 7. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Therefore, this rule does not place an enforceable duty upon State,
local, or Tribal governments, or on the private sector.
Consequently, we do not believe that the critical habitat
designation will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Olympia, Tenino, and Yelm
subspecies of the Mazama pocket gopher in a takings implications
assessment. Based on the best available information, the takings
implications assessment concludes that this designation of critical
habitat for the Olympia, Tenino, and Yelm subspecies of the Mazama
pocket gopher does not pose significant takings implications.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Washington State. We received
comments from WDFW and WDNR and have addressed them in the Summary of
Comments and Recommendations section of the rule. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the Olympia, Roy Prairie,
Tenino, and Yelm subspecies of the Mazama pocket gopher, although final
critical habitat is not designated for the Roy Prairie pocket gopher as
a consequence of the exemption of DOD lands. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.

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

This rule does not contain any collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule does not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. We may not conduct or sponsor and you are
not required to respond to a collection of information unless it
displays a currently valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental

[[Page 19752]]

Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands occupied by any of the four Thurston/Pierce subspecies of the
Mazama pocket gopher at the time of listing that contain the physical
or biological features essential to conservation of the species, and no
tribal lands unoccupied by the four Thurston/Pierce subspecies of the
Mazama pocket gopher that are essential for the conservation of the
species. Therefore, we are not designating critical habitat for any
subspecies of the Mazama pocket gopher on tribal lands.

References Cited

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

Authors

The primary authors of this rulemaking 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, Transportation.

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

0
2. In Sec. 17.95, amend paragraph (a) by adding entries for the
Olympia pocket gopher (Thomomys mazama pugetensis), Tenino pocket
gopher (Thomomys mazama tumuli), and Yelm pocket gopher (Thomomys
mazama yelmensis), in the same order that the species appear in the
table at Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

(a) Mammals.
* * * * *

Olympia pocket gopher (Thomomys mazama pugetensis)
(1) Critical habitat for the Olympia pocket gopher in Thurston
County, Washington, is depicted on the map below.
(2) Within this area, the primary constituent elements of the
physical or biological features essential to the conservation of the
Olympia pocket gopher consist of two components:
(i) Friable, loamy, and deep soils, some with relatively greater
content of sand, gravel, or silt, all generally on slopes less than 15
percent in the following soil series or soil series complex:
(A) Alderwood;
(B) Cagey;
(C) Everett;
(D) Godfrey;
(E) Indianola;
(F) Kapowsin;
(G) McKenna;
(H) Nisqually;
(I) Norma;
(J) Spana;
(K) Spanaway;
(L) Spanaway-Nisqually complex; and
(M) Yelm.
(ii) Areas equal to or larger than 50 ac (20 ha) in size that
provide for breeding, foraging, and dispersal activities, found in the
soil series listed in paragraph (2)(i) of this entry that have:
(A) Less than 10 percent woody vegetation cover;
(B) Vegetative cover suitable for foraging by gophers. Pocket
gophers' diets include a wide variety of plant material, including
leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs
and grasses that Mazama pocket gophers eat are known to include, but
are not limited to: Achillea millefolium (common yarrow), Agoseris spp.
(agoseris), Cirsium spp. (thistle), Bromus spp. (brome), Camassia spp.
(camas), Collomia linearis (tiny trumpet), Epilobium spp. (several
willowherb spp.), Eriophyllum lanatum (woolly sunflower), Gayophytum
diffusum (groundsmoke), Hypochaeris radicata (hairy cat's ear),
Lathyrus spp. (peavine), Lupinus spp. (lupine), Microsteris gracilis
(slender phlox), Penstemon spp. (penstemon), Perideridia gairdneri
(Gairdner's yampah), Phacelia heterophylla (varileaf phacelia),
Polygonum douglasii (knotweed), Potentilla spp. (cinquefoil), Pteridium
aquilinum (bracken fern), Taraxacum officinale (common dandelion),
Trifolium spp. (clover), and Viola spp. (violet); and
(C) Few, if any, barriers to dispersal. Barriers to dispersal may
include, but are not limited to, forest edges, roads (paved and
unpaved), abrupt elevation changes, Scot's broom thickets, highly
cultivated lawns, inhospitable soil types or substrates, development
and buildings, slopes greater than 35 percent, and open water.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, railroad tracks, and other paved
areas) and the land on which they are located existing within the legal
boundaries on May 9, 2014.
(4) Critical habitat map unit. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps using ArcMap
(Environmental Systems Research Institute, Inc.), a computer geographic
information system (GIS) program. The map in this entry, as modified by
any accompanying regulatory text, establishes the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which the map is based are available to the public at the Service's
Internet site at http://www.fws.gov/wafwo/mpg.html, at http://www.regulations.gov (Docket No. FWS-R1-ES-2013-0021), and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.

[[Page 19753]]

(5) Olympia Airport Unit, Thurston County, Washington. Map follows:
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[GRAPHIC] [TIFF OMITTED] TR09AP14.000

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Tenino Pocket Gopher (Thomomys mazama tumuli)

(1) Critical habitat for the Tenino pocket gopher in Thurston
County, Washington, is depicted on the map below.
(2) Within this area, the primary constituent elements of the
physical or biological features essential to the conservation of Tenino
pocket gopher consist of two components:
(i) Friable, loamy, and deep soils, some with relatively greater
content of sand, gravel, or silt, all generally on slopes less than 15
percent in the following soil series or soil series complex:
(A) Alderwood;
(B) Cagey;
(C) Everett;

[[Page 19754]]

(D) Indianola;
(E) Kapowsin;
(F) Nisqually;
(G) Norma;
(H) Spanaway;
(I) Spanaway-Nisqually complex; and
(J) Yelm.
(ii) Areas equal to or larger than 50 ac (20 ha) in size that
provide for breeding, foraging, and dispersal activities, found in the
soil series listed in paragraph (2)(i) of this entry that have:
(A) Less than 10 percent woody vegetation cover;
(B) Vegetative cover suitable for foraging by gophers. Pocket
gophers' diets include a wide variety of plant material, including
leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs
and grasses that Mazama pocket gophers are known to eat include, but
are not limited to: Achillea millefolium (common yarrow), Agoseris spp.
(agoseris), Cirsium spp. (thistle), Bromus spp. (brome), Camassia spp.
(camas), Collomia linearis (tiny trumpet), Epilobium spp. (several
willowherb spp.), Eriophyllum lanatum (woolly sunflower), Gayophytum
diffusum (groundsmoke), Hypochaeris radicata (hairy cat's ear),
Lathyrus spp. (peavine), Lupinus spp. (lupine), Microsteris gracilis
(slender phlox), Penstemon spp. (penstemon), Perideridia gairdneri
(Gairdner's yampah), Phacelia heterophylla (varileaf phacelia),
Polygonum douglasii (knotweed), Potentilla spp. (cinquefoil), Pteridium
aquilinum (bracken fern), Taraxacum officinale (common dandelion),
Trifolium spp. (clover), and Viola spp. (violet); and
(C) Few, if any, barriers to dispersal. Barriers to dispersal may
include, but are not limited to, forest edges, roads (paved and
unpaved), abrupt elevation changes, Scot's broom thickets, highly
cultivated lawns, inhospitable soil types or substrates, development
and buildings, slopes greater than 35 percent, and open water.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
May 9, 2014.
(4) Critical habitat map unit. Data layers defining the map unit
were created on 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. The map in this entry
establishes the boundaries of the critical habitat designation. The
coordinates or plot points or both on which the map is based are
available to the public at the Service's Internet site at http://www.fws.gov/wafwo/, at http://www.regulations.gov (Docket No. FWS-R1-
ES-2013-0021), and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Rocky Prairie Unit, Thurston County, Washington. Map follows:
BILLING CODE 4310-55-P

[[Page 19755]]

[GRAPHIC] [TIFF OMITTED] TR09AP14.001

BILLING CODE 4310-55-C

Yelm Pocket Gopher (Thomomys mazama yelmensis)

(1) Critical habitat for the Yelm pocket gopher in Thurston County,
Washington, is depicted on the map below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Yelm pocket gopher consist of two components:
(i) Friable, loamy, and deep soils, some with relatively greater
content of sand, gravel, or silt, all generally on slopes less than 15
percent in the following soil series or soils series complex:
(A) Alderwood;
(B) Cagey;
(C) Everett;
(D) Godfrey;
(E) Indianola;
(F) Kapowsin;
(G) McKenna;
(H) Nisqually;
(I) Norma;
(J) Spanaway;
(K) Spanaway-Nisqually complex; and
(L) Yelm.
(ii) Areas equal to or larger than 50 ac (20 ha) in size that
provide for breeding, foraging, and dispersal activities, found in the
soil series listed in paragraph (2)(i) of this entry that have:

[[Page 19756]]

(A) Less than 10 percent woody vegetation cover;
(B) Vegetative cover suitable for foraging by gophers. Pocket
gophers' diets include a wide variety of plant material, including
leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs
and grasses that Mazama pocket gophers are known to eat include, but
are not limited to: Achillea millefolium (common yarrow), Agoseris spp.
(agoseris), Cirsium spp. (thistle), Bromus spp. (brome), Camassia spp.
(camas), Collomia linearis (tiny trumpet), Epilobium spp. (several
willowherb spp.), Eriophyllum lanatum (woolly sunflower), Gayophytum
diffusum (groundsmoke), Hypochaeris radicata (hairy cat's ear),
Lathyrus spp. (peavine), Lupinus spp. (lupine), Microsteris gracilis
(slender phlox), Penstemon spp. (penstemon), Perideridia gairdneri
(Gairdner's yampah), Phacelia heterophylla (varileaf phacelia),
Polygonum douglasii (knotweed), Potentilla spp. (cinquefoil), Pteridium
aquilinum (bracken fern), Taraxacum officinale (common dandelion),
Trifolium spp. (clover), and Viola spp. (violet); and
(C) Few, if any, barriers to dispersal. Barriers to dispersal may
include, but are not limited to, forest edges, roads (paved and
unpaved), abrupt elevation changes, Scot's broom thickets, highly
cultivated lawns, inhospitable soil types or substrates, development
and buildings, slopes greater than 35 percent, and open water.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
May 9, 2014.
(4) Critical habitat map units. Data layers defining the map units
were created on 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. The map in this entry
establishes the boundaries of the critical habitat designation. The
coordinates or plot points or both on which the map is based are
available to the public at the Service's Internet site at http://www.fws.gov/wafwo/, at http://www.regulations.gov (Docket No. FWS-R1-
ES-2013-0021), and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Tenalquot Prairie and Rock Prairie Subunits, Thurston County,
Washington.
Map follows:
BILLING CODE 4310-55-P

[[Page 19757]]

[GRAPHIC] [TIFF OMITTED] TR09AP14.002

* * * * *

Dated: March 27, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-07415 Filed 4-8-14; 8:45 am]
BILLING CODE 4310-55-C