[Federal Register Volume 80, Number 125 (Tuesday, June 30, 2015)]
[Rules and Regulations]
[Pages 37404-37430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15947]



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Vol. 80

Tuesday,

No. 125

June 30, 2015

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis); Final Rule

  Federal Register / Vol. 80 , No. 125 / Tuesday, June 30, 2015 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0105; 4500030114]
RIN 1018-AZ91


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Mount Charleston Blue Butterfly (Icaricia 
(Plebejus) shasta charlestonensis)

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 the Mount Charleston blue butterfly (Icaricia 
(Plebejus) shasta charlestonensis) under the Endangered Species Act of 
1973, as amended (Act). In total, approximately 5,214 acres (2,110 
hectares) in the Spring Mountains of Clark County, Nevada, fall within 
the boundaries of the critical habitat designation. The effect of this 
rule is to extend the Act's protections to the butterfly's critical 
habitat.

DATES: This rule is effective July 30, 2015.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/Nevada. 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. All of the comments, materials, and 
documentation that we considered in this rulemaking are available by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Southern Nevada Fish and Wildlife Office, 4701 North Torrey 
Pines Drive, Las Vegas, NV 89130-7147; telephone 702-515-5230; 
facsimile 702-515-5231.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2013-0105 and at the Southern Nevada Fish and 
Wildlife Office at http://www.fws.gov/Nevada (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: Michael J. Senn, Field Supervisor, 
U.S. Fish and Wildlife Service, Southern Nevada Fish and Wildlife 
Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130-7147; 
telephone 702-515-5230; facsimile 702-515-5231. If you use a 
telecommunications device for the deaf (TDD), 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 endangered Mount Charleston blue butterfly 
(Icaricia (Plebejus) shasta charlestonensis). Under the Endangered 
Species 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 listed the Mount Charleston blue butterfly as an endangered 
species on September 19, 2013 (78 FR 57750). On July 15, 2014, we 
published in the Federal Register a proposed critical habitat 
designation for the Mount Charleston blue butterfly (79 FR 41225). 
Section 4(b)(2) of the Endangered Species Act states that the Secretary 
of the Interior shall designate critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat.
    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 Mount Charleston blue butterfly. 
In this rule, we are designating approximately 5,214 acres (2,110 
hectares) in the Spring Mountains of Clark County, Nevada, as critical 
habitat for the Mount Charleston blue butterfly.
    This rule consists of a final rule designating critical habitat for 
the Mount Charleston blue butterfly. The Mount Charleston blue 
butterfly is listed as an endangered species under the Endangered 
Species Act.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we prepared an 
incremental effects memorandum (IEM) and screening analysis, which 
together with our narrative and interpretation of effects we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation and related factors (IEc 2014). The analysis, dated May 20, 
2014, was made available for public review from July 15, 2014, through 
September 15, 2014 (79 FR 41225). The DEA addressed probable economic 
impacts of critical habitat designation for the Mount Charleston blue 
butterfly. Following the close of the comment period, 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. We summarize and respond 
to the comments in this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from four knowledgeable 
individuals with scientific expertise to review our technical 
assumptions and analysis, and to help us determine whether or not we 
had used the best available information. These peer reviewers provided 
additional information, clarifications, and suggestions to improve this 
final rule. Information we received from peer review is incorporated 
into this final designation. We also considered all comments and 
information we received from the public during the comment period.

Previous Federal Actions

    All previous Federal actions are described in the final rule 
listing the Mount Charleston blue butterfly as an endangered species 
(78 FR 57750; September 19, 2013).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Mount Charleston blue butterfly 
during one comment period. The comment period associated with the 
publication of the proposed critical habitat rule (79 FR 41225) opened 
on July 15, 2014, and closed on September 15, 2014. We also requested 
comments on the associated draft economic analysis during the same 
comment period. We did not receive any requests for a public hearing. 
We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and draft economic analysis during the 
comment period.
    During the comment period, we received comment letters directly

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addressing the proposed critical habitat designation. Overall, we 
received 706 comment letters addressing the proposed critical habitat 
designation or the draft economic analysis. All substantive information 
provided during the comment period has either been incorporated 
directly into this final determination or is addressed below. Comments 
we received were grouped into general issues specifically relating to 
the proposed critical habitat designation for the Mount Charleston blue 
butterfly and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
butterfly biology and ecology, conservation biology, and natural 
resource management. We received responses from all four of the peer 
reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Mount Charleston blue butterfly. Two peer reviewers agreed with our 
analyses in the proposed rule. A third peer reviewer, while not 
disagreeing with the designation of critical habitat itself, disagreed 
with some analyses or application of information. The fourth peer 
reviewer did not state a position. We received no peer review responses 
on the DEA. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer commented that our references in the 
proposed rule to Astragalus lentiginosus var. kernensis from Andrew et 
al. (2013) were a misidentification of the plant Oxytropis oreophila 
var. oreophila.
    Our Response: We agree. We erroneously sent peer reviewers a draft 
copy of the proposed critical habitat designation that referenced 
Astragalus lentiginosus var. kernensis from Andrew et al. (2013). 
However, based on a correction to this plant identification (Andrew et 
al. 2013, Errata Sheet; Thompson et al. 2014), the proposed critical 
habitat designation that published in the Federal Register (79 FR 
41225; July 15, 2014) contained the correct plant identification of 
Oxytropis oreophila var. oreophila. This correction is also reflected 
in this final critical habitat designation.
    (2) Comment: One peer reviewer did not agree with our depicting 
Astragalus platytropis and Oxytropis oreophila var. oreophila to 
Astragalus calycosus var. calycosus as functionally equivalent larval 
host plants for the Mount Charleston blue butterfly. The reviewer 
commented that numerous observations have been made of oviposition by 
the Mount Charleston blue butterfly in association with A. c. var. 
calycosus, and A. c. var. calycosus is present at all locations where 
Mount Charleston blue butterflies have been detected, suggesting this 
plant species is a required feature of habitat. The reviewer also 
commented that little reliable evidence exists that A. platytropis and 
O. o. var. oreophila function as commonly used host plants, and that 
the Service's assumption appeared to be based on an observation of one 
oviposition event by one female of one egg on each of A. platytropis 
and O. o. var. oreophila. Lastly, the peer reviewer commented on the 
difficulty of identifying butterfly eggs to species and questioned 
whether the observers had the expertise to do so.
    Our Response: We agree that the plant species Astragalus calycosus 
var. calycosus functions as an important biological feature and is the 
most common host plant present throughout the range of the Mount 
Charleston blue butterfly; thus, we have included it as a primary 
constituent element. A. c. var. calycosus is more abundant through a 
broader elevation range and occurs in more plant communities than 
Astragalus platytropis and Oxytropis oreophila var. oreophila, in the 
Spring Mountains as well as within the range of the Mount Charleston 
blue butterfly (Nachlinger and Reese 1996, Table 6; Niles and Leary 
2007, pp. 36 and 38; Andrew et al. 2013, p. 5). A. c. var. calycosus is 
the only host plant documented in lower elevation Lee Canyon locations 
(NewFields 2008, pp. 1-198 plus Appendices; Andrew et al. 2013, p. 5), 
where greater survey efforts to observe the butterfly have occurred, 
because of ease of access which has resulted in more frequent and 
consistent observations of the butterfly (Boyd 2006, p. 1; DataSmiths 
2007, pp. 1-9; Boyd and Murphy 2008, p. 2-3). Therefore, prior to 2012, 
the emphasis and life-history knowledge of Mount Charleston blue 
butterfly host plants in the Spring Mountains of Nevada has focused on 
A. c. var. calycosus. Subsequent observations reported by Andrew et al. 
(2013, pp. 1-93) and Thompson et al. (2014, pp. 97-158) have 
demonstrated that additional host plants for the Mount Charleston blue 
butterfly exist, which is consistent with documented use of multiple 
host plants by other Shasta blue butterfly subspecies (Emmel and 
Shields 1980, Table I). However, numerous observations and a longer 
history of knowledge of A. c. var. calycosus as a host plant do not 
negate the biological importance and functional equivalence of A. 
platytropis and O. o. var. oreophila as host plants important to the 
conservation of the Mount Charleston blue butterfly.
    The evidence that was used to infer that Astragalus platytropis and 
Oxytropis oreophila var. oreophila are host plants for the Mount 
Charleston blue butterfly is consistent with much of the Lepidoptera 
science, which may include observations of adult associations (for 
example, female concentration areas, pre-oviposition behavior by 
females on plants (Shields et al. 1969, pp. 28-29; Scott 1992, p. 2; 
Austin and Leary 2008, p. 1)); oviposition by females; and larval 
feeding and subsequent survival (Shields et al. 1969, pp. 28-29; Scott 
1992, p. 2; Austin and Leary 2008, p. 1). We recognize that observation 
of a female butterfly ovipositing on a plant is not equivalent to 
actual observations of feeding on a particular plant species and 
survival of butterfly larvae. There are instances in Lepidoptera 
literature where adult female butterflies were documented ovipositing 
on plants, and hatched larvae fed on the plants but did not 
subsequently survive (Shields et al. 1969, p. 29; Chew and Robbins 
1984, p. 68; Austin and Leary 2008, p. 1). Some genera, and even large 
proportions of some subfamilies, are known to oviposit haphazardly; 
however, the Shasta blue butterfly and its higher taxonomic 
classification groups have not been identified as species that oviposit 
haphazardly (Scott 1992, p. 2). The Mount Charleston blue butterfly is 
a member of the family Lycaenidae, subfamily Polyommatinae, for which 
host plants are more easily determined than for other lycaenid species, 
based on obvious behavior by females and frequent, unequivocal 
association of females with host plants (Austin and Leary 2008, p. 58).
    The evidence to support the conclusion that Astragalus calycosus 
var. calycosus, Astragalus platytropis, or Oxytropis oreophila var. 
oreophila function as host plants is based on observations and reports 
of: (1) Oviposition by Mount Charleston blue butterflies on A. c. var. 
calycosus, A. platytropis, and O. o. var. oreophila (Austin and Leary 
2008, p. 86; Thompson et al. 2014, pp. 122-125); (2) pre-oviposition 
behavior by Mount Charleston blue butterflies associated

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with all host plant species (Austin and Leary 2008, p. 86; Thompson et 
al. 2014, pp. 122-125); (3) observations of Mount Charleston blue 
butterfly eggs on all three host plant species (Thompson et al. 2014, 
pp. 122-125); (4) other Shasta blue butterfly apparently having close 
associations and ovipositing on A. c. var. calycosus and A. platytropis 
outside of the Spring Mountains (Emmel and Shields 1980, Table I) or 
other Oxytropis spp. (Austin and Leary 2008, p. 85); and (5) close 
association or oviposition on more than one host plant species by other 
subspecies of Shasta blue butterflies (Emmel and Shields 1980, Table I; 
Scott 1992, p. 100; Austin and Leary 2008, pp. 85-86) (note that some 
observations reported in Austin and Leary 2008 and Scott 1992 are the 
same as those originally reported by Emmel and Shields 1980). The 
Service does not have information or reported observations of feeding 
and subsequent survival or death of any Shasta blue butterfly 
subspecies on A. c. var. calycosus, A. platytropis, or O. o. var. 
oreophila. Such observations would provide additional evidence to 
confirm or refute these plant species as larval hosts for the Shasta 
blue butterfly.
    In regard to evidence of egg observations of Mount Charleston blue 
butterflies, we agree with the peer reviewer and Scott (1986, p. 121) 
that identifying butterfly eggs is difficult, and reported observations 
should be critically evaluated. However, it is possible to identify 
eggs of various butterfly species to subfamily, genus, or even species 
(Scott 1986, p. 121). In addition, the context of how the egg is 
deposited on the plant and the context of where it is found should be 
considered. We believe observations of Mount Charleston blue butterfly 
eggs as reported by Thompson et al. (2014, pp. 122-131, Appendix F) are 
credible because: (1) Eggs deposited by Mount Charleston blue 
butterflies were directly observed, recorded, and photographed, which 
allowed for further comparison between and review by field observers; 
(2) eggs depicted (Thompson et al. 2014, pp. 129-130 and Appendix F) 
are deposited in a manner consistent with reports for other Shasta blue 
butterflies (Emmel and Shields 1980, pp. 132-138); (3) the South Loop 
locations of egg observations occurred in areas where and at times when 
the Mount Charleston blue butterfly was the predominant Lycaenid 
butterfly present (at least 95 percent of all Lycaenid butterflies 
observed) (Andrew et al. 2014, Table 2); (4) the other butterfly 
species reported at the South Loop location or in close proximity to 
where eggs were observed have different reported host plants (for 
example, Southwestern azure butterfly (Celastrina echo cinerea) in 
Austin and Leary 2008, pp. 63-64), or deposit their eggs primarily on 
locations of the plant (for example, Reakirt's blue butterfly 
(Echinargus isola) on or near parts of flowers (Scott 1992, pp. 102-
103; Austin and Leary 2008, pp. 90-91)) substantially different than 
those reported for the Mount Charleston blue butterfly (for example, 
leaves, petioles, and stems (Emmel and Shields 1980, pp. 132-138; 
Thompson et al. 2014, pp. 129-130 and Appendix F)); and (5) reviews by 
field experts and subject matter experts did not provide specific 
information to disprove the observations. Thus, the eggs that were 
observed were most likely Mount Charleston blue butterfly eggs, and not 
eggs of other butterfly species.
    Based on the preceding discussion, the Service determines that 
Astragalus calycosus var. calycosus, Astragalus platytropis, and 
Oxytropis oreophila var. oreophila are functionally equivalent host 
plants for the Mount Charleston blue butterfly, and, thus, are retained 
as primary biological features.
    (3) Comment: One peer reviewer did not agree that the Mount 
Charleston blue butterfly has been documented using for nectar 
Antennaria rosea (rosy pussy toes), Cryptantha spp., Ericameria 
nauseosa (rubber rabbitbrush), Erigeron flagellaris (trailing daisy), 
Gutierrezia sarothrae (broom snake weed), Monardella odoratissima 
(horsemint), Petradoria pumila var. pumila (rock-goldenrod), and 
Potentilla concinna var. concinna (Alpine cinquefoil).
    Our Response: We reexamined the references we cited for 
observations of nectaring Mount Charleston blue butterflies on various 
plant species, and we have determined the references suggest the Mount 
Charleston blue butterfly has been observed to nectar on all of the 
above species. Thompson et al. 2014 (pp. 117) report observations of 
Mount Charleston blue butterflies nectaring on Gutierrezia sarothrae. 
Boyd and Murphy (2008, p. 9) clearly state the Mount Charleston blue 
butterfly has been observed to nectar on Hymenoxys spp. and Erigeron 
spp., and they go on to state that 10 plant species (p. 13 and Figure 
2a on p. 16) ``were considered as likely `higher quality' [potential] 
resources--reflecting observations of use by the Mount Charleston blue 
in previous years.'' We recognize Boyd and Murphy (2008) do not provide 
documentation of these 10 species being used by nectaring Mount 
Charleston blue butterflies; rather, we infer it is likely, based on 
Boyd and Murphy's (2008, p. 13) observations of Mount Charleston blue 
butterflies using the plant species, and the flowers of these plant 
species having the appropriate morphological characteristics for nectar 
use. Therefore, we are not including plant species as potential nectar 
sources for the Mount Charleston blue butterfly without reported 
observations of use.
    (4) Comment: One peer reviewer commented that the primary 
constituent elements were not determined based on scientifically sound 
data and analyses, and are not defensible, because the reports the 
Service relied on to develop the primary constituent elements were 
either qualitative or did not provide range values with means and 
variances for several of the elements.
    Our Response: We used the best scientific and commercial data 
available to determine the primary constituent elements essential to 
the conservation of the Mount Charleston blue butterfly. We focused on 
available data from areas occupied by the Mount Charleston blue 
butterfly at the time of listing, and any new information available or 
provided by peer reviewers and commenters since the proposed critical 
habitat designation was published (79 FR 41225; July 15, 2014). We used 
minimum quantity values or quality descriptions for several primary 
constituent elements from areas occupied by Mount Charleston blue 
butterflies, because they represent our current understanding of the 
minimum habitat or features necessary to support the life-history 
processes of the subspecies. We believe using this approach identifies 
the physical and biological features that are essential to the 
conservation and recovery of the Mount Charleston blue butterfly.
    (5) Comment: One peer reviewer suggested horses in the Spring 
Mountains are feral, rather than wild, and should be referred to as 
such.
    Our Response: We agree, because horses are not native to the Spring 
Mountains, let alone North America, and escaped from domestication 
(Matthew 1926, p. 149); we have replaced ``wild'' with ``feral'' in 
this final rule.
    (6) Comment: One peer reviewer commented that citations were 
minimal within the Primary Constituent Elements for Mount Charleston 
Blue Butterfly section.
    Our Response: We provide citations for information used to identify 
the primary constituent elements (PCEs) in the section immediately 
preceding Primary Constituent Elements for Mount Charleston Blue 
Butterfly, in the discussion of Physical or Biological Features. The 
PCEs are a concise list of the elements, and the pertinent

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information and sources that led us to identify them are explained in 
detail and cited in the discussion of physical or biological features.
    (7) Comment: One peer reviewer commented that the Pinyon (2011) 
work that we referenced was ``qualitative work and could not be 
repeated, and was therefore not highly defensible.''
    Our Response: We respectfully disagree and maintain that 
consideration of the information in Pinyon (2011) is consistent with 
our policy to use the best scientific and commercial data available to 
determine critical habitat. Our use of the information is described in 
Criteria Used To Identify Critical Habitat. We agree that some work 
performed and described by Pinyon 2011 is qualitative. For example, 
Pinyon (2011, p. 11) assigned areas of Mount Charleston blue butterfly 
habitat to either good, moderate, poor, or none based on the ``presence 
of larval host plants, nectar plants, ground cover, and canopy density 
(visual estimate),'' which may not be repeatable, to the extent that 
boundaries would coincide precisely, as with other investigators. While 
the precise boundaries could vary, the general areas where Pinyon 
(2011, Figure 8 and 9) identified and delineated moderate and high-
quality habitat are in close proximity, or correlate closely, to 
concentrations of Mount Charleston blue butterfly locations and other 
investigator habitat delineations (Weiss et al. 1997, Map 3.1; SWCA 
2008, Figure 1; Andrew et al. 2013, Figure 17, 20, and 22; Thompson et 
al. 2014, pp. 97-158). Thus, information from Pinyon (2011) is 
repeatable to some extent and defensible in the manner we applied it to 
determine critical habitat. (Also see our response to Comment 9, 
below.)
    (8) Comment: One peer reviewer commented that unobserved nectar 
sources cannot be assumed to be present at locations the Mount 
Charleston blue butterfly has been observed, particularly given the 
uncertainty of the distances that the Mount Charleston blue butterfly 
can move.
    Our Response: We respectfully disagree, because the Mount 
Charleston blue butterfly is typically observed moving short distances 
in the same area where its nectar (food for adults) and larval hosts 
occur; thus, unobserved (that is, unreported) nectar plants can be 
assumed to be present with a high degree of certainty at locations 
where the butterfly has been observed. (See also our response to 
Comment 3.)
    (9) Comment: We received suggested changes from two peer reviewers 
on the general description of Mount Charleston butterfly occurrence, 
which we stated is ``on relatively flat ridgetops [and] gently sloping 
hills.'' One peer reviewer referenced additional explanations provided 
by Boyd and Murphy (2008, p. 19). The other peer reviewer provided 
terrain slope data for plot points within areas where Mount Charleston 
blue butterfly adults have been observed.
    Our Response: We incorporated the reference provided by the peer 
reviewer in the Physical or Biological Features section of this final 
rule. The terrain slope data from the second peer reviewer do not 
affect the general description of areas where Mount Charleston blue 
butterflies occur; thus, we did not include them in this final rule. 
However, we anticipate using the information during the recovery 
planning process for the subspecies.
    (10) Comment: We received one peer review comment suggesting our 
analysis of potential climate change impacts would be helped by 
considering mechanisms by which the Mount Charleston blue butterfly or 
its resources may be affected directly or indirectly by changes in 
temperature and extreme precipitation.
    Our Response: Because site- and species-specific information 
regarding impacts to the Mount Charleston blue butterfly and its 
resources from climate change is unavailable, we updated our discussion 
to include a description of general mechanisms that may be impacted by 
increasing temperatures and patterns of extreme drought and 
precipitation (see the ``Habitats That are Protected from Disturbance 
or are Representative of the Historical, Geographical, and Ecological 
Distributions of the Subspecies'' section, below). Also see our 
response to Comment 14.

Comments From Peer Reviewers and the Public

    (11) Comment: We received peer review and public comments stating 
that the Service did not use, or misapplied, the best scientific and 
commercial data available. Commenters suggested that information from 
Andrew et al. (2013) and Thompson et al. (2014) was inaccurate or 
unreliable because of the inexperience of the researchers and the 
errors that were made by them.
    Our Response: We respectfully disagree with these comments. In 
accordance with section 4 of the Endangered Species Act of 1973, as 
amended (Act; 16 U.S.C. 1531 et seq.), we are required to designate 
critical habitat on the basis of the best scientific and commercial 
data available. We used information from many different sources, 
including articles in peer-reviewed journals, scientific status surveys 
and studies completed by qualified individuals, experts' opinions or 
personal knowledge, and other sources, to designate critical habitat 
for the Mount Charleston blue butterfly. In accordance with our peer 
review policy, published on July 1, 1994 (59 FR 34270), we solicited 
peer review from knowledgeable individuals with scientific expertise 
that included familiarity with the species, the geographic region in 
which the species occurs, and conservation biology principles. 
Additionally, we requested comments or information from other concerned 
governmental agencies, the scientific community, industry, and any 
other interested parties concerning the proposed rule. All comments and 
information we received on the proposed rule and the draft economic 
analysis, along with the best scientific data available, were evaluated 
and taken into consideration to inform the critical habitat designation 
in this final rule.
    (12) Comment: We received two peer review comments and public 
comments on locations of potential removal of critical habitat within 
Lee Canyon Unit 2. One peer reviewer stated that areas within Unit 2, 
``should not be considered for removal until the current distribution, 
abundance, and condition of larval hosts, nectar sources, and other 
environmental characteristics consistent with occupancy have been 
assessed.'' In addition, the peer reviewer stated that areas diminished 
by recreation or other treatments may be able to recover with ``special 
management considerations and protection.'' Similarly, one public 
comment stated that the areas should not be removed from critical 
habitat, and should be restored and managed for occupancy by the Mount 
Charleston blue butterfly. One peer reviewer commented that additional 
habitat outside the Mount Charleston blue butterfly's current range in 
lower elevations should be designated.
    Our Response: As described in the proposed rule, we considered 
campgrounds and day-use areas that have high levels of public 
visitation and associated recreational disturbance for removal from 
critical habitat, because these activities have resulted in degraded 
habitat, or the level of recreational activity limits or precludes the 
presence of the Mount Charleston blue butterfly and its primary 
constituent elements. In this rule, we refer to these as ``removal 
areas.'' The Act and our regulations require us to base our decisions 
on the best available information. In our proposed rule, we stated that 
we may remove from designation locations referred to as

[[Page 37408]]

Dolomite Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic 
Area, Foxtail Snow Play Area, Lee Canyon Guard Station, Lee Meadows 
(extirpated Mount Charleston blue butterfly location), McWilliams 
Campground, and Old Mill Picnic Area and Youth Camp, because they have 
extremely high levels of public visitation and associated recreational 
disturbance. We did not receive specific information from peer 
reviewers or commenters that changed our understanding of the current 
habitat conditions and recreational use that occurs at Lee Meadows. 
Furthermore, Lee Meadows is not considered to be occupied habitat, 
because of habitat loss or degradation from past and ongoing recreation 
disturbance, and observations of the Mount Charleston blue butterfly 
have not been documented there since 1965 (see 78 FR 57750, September 
19, 2013; Boyd and Murphy 2008, p. 6; and Andrew et al. 2013, pp. 51-52 
for more details). While the Service would support efforts to restore 
and protect portions of the Lee Meadows area for the Mount Charleston 
blue butterfly, this management decision is outside the scope of the 
Service's authority. Based on the above, we have determined the 
criteria we established for removal areas apply to Lee Meadows, and we 
have removed Lee Meadows from this critical habitat designation.
    (13) Comment: We received one peer review and one public comment 
that suggested fuel treatment, recreation development, and 
infrastructure projects were not included or identified as threats. In 
addition, the peer reviewer stated that butterfly habitat was being 
adversely affected by ongoing or planned projects, including the Old 
Mill Wildland Urban Interface Hazardous Fuels Reduction Project; 
McWilliams, Old Mill, Dolomite Recreation Sites Reconstruction Project; 
and Foxtail Group Picnic Area Reconstruction Project. The public 
commented that their recommendations for the Old Mill Wildland Urban 
Interface Hazardous Fuels Reduction Project were not being implemented.
    Our Response: We identified threats from the implementation of 
recreational development projects and fuels reduction projects 
described by the commenter in the proposed rule for designation of 
critical habitat (79 FR 41234, 41237, and 41238; July 15, 2014). 
Additional information on threats to the species was considered in the 
final rule determining the status of the subspecies as endangered (78 
FR 57750; September 19, 2013). Since the listing of the Mount 
Charleston blue butterfly, the U.S. Forest Service (Forest Service) has 
consulted with the Service on actions they intend to implement, 
authorize, or fund that might affect the Mount Charleston blue 
butterfly, including the Old Mill Wildland Urban Interface Hazardous 
Fuels Reduction (Old Mill WUI) Project. When this final designation of 
critical habitat becomes effective (see DATES, above), the Forest 
Service has been notified that further consultation may be needed if 
ongoing or future projects affect designated critical habitat. Section 
7 requires Federal agencies to ensure that any action authorized, 
funded, or carried out by the agency is not likely to jeopardize the 
continued existence of listed species, or adversely modify or destroy 
their critical habitat, which may be accomplished by avoiding, 
minimizing, or mitigating take and adverse effects to critical habitat. 
Nondiscretionary measures associated with such formal consultations can 
be developed accordingly during future consultations; however, a 
Federal action agency (for example, Forest Service) has the discretion 
and authority to implement conservation recommendations received from 
the public on any given project.
    (14) Comment: We received one peer review and one public comment on 
climate change. The peer reviewer provided additional references, and 
recommended we describe the functional effects of climate change on the 
Mount Charleston blue butterfly. The public comment provided additional 
general references and requested that additional areas be included in 
the critical habitat designation to provide for adaptations to climate 
change.
    Our Response: We agree that climate change will likely affect the 
Mount Charleston blue butterfly and its critical habitat. However, 
site-specific information on climate change and its effects on the 
Mount Charleston blue butterfly and its habitat are not available at 
this time. We received additional information on climate change; 
however, this information did not provide enough specificity on areas 
that likely will be impacted by climate change. Thus, we are not 
identifying additional areas to include in the critical habitat 
designation based on this information.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' We did 
not receive official comments or positions on the proposed designation 
of critical habitat for the Mount Charleston blue butterfly from State 
of Nevada agencies. One peer reviewer worked for the State of Nevada, 
Department of Agriculture, and concurred that the proposed critical 
habitat designation was supported by the data and conclusions.

Public Comments

    (15) Comment: One public comment suggested that critical habitat is 
not determinable because of uncertainties of Mount Charleston blue 
butterfly habitat, location, and life history. Similarly, other 
commenters thought that critical habitat should not be designated until 
additional survey work is performed, because more information is needed 
on the distribution of butterfly and its host and nectar resources, and 
because once critical habitat is designated, it is difficult to change. 
One commenter stated that a thorough assessment of the designated 
wilderness area was needed to map the extent of habitat.
    Our Response: We believe sufficient information exists (1) to 
perform the required analyses of the impacts of the critical habitat 
designation; and (2) to identify critical habitat based on the 
biological needs of the Mount Charleston blue butterfly. Based on our 
review, we have determined there is sufficient information available to 
identify critical habitat in accordance with sections 3(5)(A) and 
4(b)(2) of the Act. Extensive, but not comprehensive, surveys for 
butterflies, and specifically the Mount Charleston blue butterfly and 
its habitat, have occurred across the subspecies' range and throughout 
the Mount Charleston Wilderness. As is generally the case with natural 
history, existing studies of the Mount Charleston butterfly have not 
been able to evaluate or address all possible variables associated with 
the subspecies. We recognize that future research will likely enhance 
our current understanding of the subspecies' biology, and additional 
survey work could provide a better understanding of the distribution of 
the Mount Charleston blue butterfly and its habitat. Nonetheless, the 
Act requires us to base our decisions on the best available scientific 
and commercial information at the time of designation, which is often 
not complete, and the scientific information about a species generally 
continues to grow and improve with time. Based on this, we utilized the 
best available information to determine areas of critical habitat for 
the Mount Charleston blue butterfly. We will review and consider new 
information as it becomes available.
    (16) Comment: We received one comment that the Service selects peer 
reviewers that agree with our decision,

[[Page 37409]]

but we do not select peer reviewers that will disagree.
    Our Response: Requests for peer reviewers were based on their 
availability and capacity as independent specialists with subject 
matter expertise. In selecting peer reviewers, we followed our joint 
policy on peer review published in the Federal Register on July 1, 1994 
(59 FR 34270), the guidelines for Federal agencies as described in the 
Office of Management and Budget (OMB) ``Final Information Quality 
Bulletin for Peer Review,'' released December 16, 2004, and the 
Service's ``Information Quality Guidelines and Peer Review,'' revised 
June 2012. The peer review plan and peer review comments have been 
posted on our Web site at http://www.fws.gov/cno/science/peerreview.html.
    (17) Comment: Multiple commenters expressed concern that the 
proposed critical habitat designation would prohibit or limit the 
expansion and development of additional recreational opportunities 
within areas proposed as critical habitat. In particular, commenters 
identified existing plans for development that would add hiking, 
mountain biking, and ski trails, some of which occur within the 
authorized special use permit area (SUPA) held by the Las Vegas Ski and 
Snowboard Resort (LVSSR).
    Our Response: The act of designating critical habitat does not 
summarily preclude any activities on the lands that have been 
designated. 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. Furthermore, designation of critical 
habitat does not (1) affect land ownership; (2) establish any closures 
or restrictions on use of or access to areas designated as critical 
habitat; or (3) establish specific land management standards or 
prescriptions. However, Federal agencies are prohibited from carrying 
out, funding, or authorizing actions that would destroy or adversely 
modify critical habitat.
    The Service is committed to working with the Forest Service and 
LVSSR to implement conservation efforts that protect the Mount 
Charleston blue butterfly, while also allowing for reasonable expansion 
and development of the LVSSR compatible with the Mount Charleston blue 
butterfly, including skiing and snowboarding in the winter and mountain 
biking and hiking in the summer. The Mount Charleston blue butterfly 
can coexist with managed recreation when such recreational activities 
are properly sited, and operation and maintenance of the infrastructure 
needed to support these activities is appropriately managed. For 
example, the Mount Charleston blue butterfly historically occurred and 
currently exists on active ski runs within the LVSSR. In addition, only 
part of the proposed LVSSR expansion area occurs within the critical 
habitat designation; future development and expansion of the LVSSR 
outside of these areas would likely be unaffected by this final rule.
    (18) Comment: One commenter asserts that the screening analysis 
does not adequately address the potential economic effects of critical 
habitat designation and any resulting prohibitions or limitations to 
the future LVSSR expansion or development of recreational activities.
    Our Response: In compliance with section 7 of the Act, the Forest 
Service has consulted with the Service on projects affecting the Mount 
Charleston blue butterfly since the subspecies was listed (78 FR 57750; 
September 19, 2013). During section 7 consultation, the Forest Service 
has proposed minimization measures designed to avoid or minimize 
impacts to the Mount Charleston blue butterfly and its habitat, such as 
pre-development site planning, effective oversight during 
implementation and development, and proper management of operations and 
maintenance activities. We anticipate that activities occurring within 
designated critical habitat also would have the potential to affect the 
subspecies and would require consultation regardless of the presence of 
designated critical habitat. That is, the designation of critical 
habitat is not anticipated to generate additional minimization or 
conservation measures for the Mount Charleston blue butterfly beyond 
those already generated by the listing. As such, the screening analysis 
limits the future incremental costs of designating critical habitat 
associated with the LVSSR to the administrative costs of analyzing and 
avoiding adverse modification of critical habitat during section 7 
consultations. (Also see our response to Comment 17, above, for further 
discussion.)
    (19) Comment: Some commenters state that areas of recreational 
development or expansion in the LVSSR Master Development Plan should be 
excluded from the designation because of the associated economic 
benefits, and because commenters believe the development plan will 
benefit the butterfly and its habitat.
    Our Response: In accordance with section 4(b)(2) of the Act, the 
Secretary may exclude any area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of inclusion. 
The Service did not consider areas for exclusion under section 4(b)(2) 
where future recreational development is planned, because to our 
knowledge, the recreational development plans in place now do not 
identify benefits provided to the Mount Charleston blue butterfly. 
While it is possible that some benefits (see our response to Comment 
17, above) for the Mount Charleston blue butterfly and its habitat may 
occur as a result of future development, specificity on future 
development plans or expected conservation benefits has not been 
provided. Therefore, areas of recreational development or expansion in 
the LVSSR Master Development Plan are not excluded from critical 
habitat designation.
    (20) Comment: We received many comments from the public that the 
designation of critical habitat for Mount Charleston blue butterfly 
should not include the LVSSR Special Use Permit Area (SUPA), because 
other greater threats are affecting the butterfly than would occur from 
expansion of the ski area and associated recreational opportunities.
    Our Response: We do not consider threats to a species or subspecies 
when determining areas to designate as critical habitat. Threats to the 
Mount Charleston blue butterfly were considered and analyzed during the 
determination of its status as endangered (78 FR 57750; September 19, 
2013). We determined critical habitat for the Mount Charleston blue 
butterfly based on the definition in the Act as follows: The specific 
areas within the geographical area occupied by the [subspecies] at the 
time it [was] listed . . . on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protections (16 
U.S.C. 1532(5)(A)).
    We recognize concerns exist regarding future development plans for 
the LVSSR SUPA. Areas of the LVSSR SUPA have provided habitat for the 
Mount Charleston blue butterfly for decades, as described in the final 
listing of the subspecies (78 FR 57750; September 19, 2013). The 
Service is committed to working with the Forest Service and LVSSR to 
allow for reasonable expansion and development of recreational 
opportunities, including skiing and snowboarding in the winter and 
mountain biking and hiking in the

[[Page 37410]]

summer, within the SUPA that are compatible with the Mount Charleston 
blue butterfly and its habitat.
    (21) Comment: One commenter asserts the screening analysis is 
flawed because it contradicts existing case law by using ``the 
functional equivalence approach when considering the economic impact of 
[critical habitat] designation on the LVSSR property [= SUPA] by 
concluding that any economic impact occurred as a result of the listing 
of the species.''
    Our Response: Section 4(b)(2) of the Act requires the consideration 
of potential economic impacts associated with the designation of 
critical habitat. However, as we have explained elsewhere (see our 
response to Comment 17, above), 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 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 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 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, as is the case for the Mount 
Charleston blue butterfly, 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. Therefore, 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 regulatory effect of critical habitat is the requirement 
that Federal agencies avoid destruction or adverse modification of 
critical habitat, the 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 the 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 do not generally experience 
substantial economic impacts as a direct result of the designation of 
critical habitat.
    (22) Comment: We received several comments that the Las Vegas Ski 
and Snowboard Resort Area should be excluded from critical habitat in 
accordance with the Ski Area Recreational Opportunity Enhancement Act 
of 2011 (Pub. L. 112-46), or the designation of critical habitat should 
give credence to the Act ``. . . which aims to bolster summer tourism 
and stir year-round economic activity in mountain towns.''
    Our Response: The Ski Area Recreational Opportunity Enhancement Act 
of 2011 (SAROEA), which amends the National Forest Ski Area Permit Act 
of 1986 (16 U.S.C. 497b), does not supersede the requirements of the 
Endangered Species Act. Section 3 of SAROEA provides the Secretary of 
Agriculture authority to authorize a ski area permittee to provide 
other recreational opportunities determined to be appropriate. The 
SAROEA requires that authorizations by the Secretary of Agriculture be 
in accordance with ``applicable land and resource management plan[s]'' 
and ``applicable laws (including regulations).'' Furthermore, section 4 
of SAROEA states, ``Nothing in the amendments made by this Act 
establishes a legal preference for the holder of a ski area permit to 
provide activities and associated facilities authorized by section 3(c) 
of the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b(c)) 
(as amended by section 3).'' There is no legal direction or requirement 
that stems from the SAROEA for the Service to modify critical habitat. 
As described in our response to Comment 17, above, we expect that 
properly planned, designed, managed, and implemented recreation may 
occur in close proximity to Mount Charleston blue butterfly habitat.
    (23) Comment: We received many public comments that the critical 
habitat area was too large, and the use of the quarter-quarter sections 
to encompass areas of primary constituent elements was arbitrary and 
capricious, or illogical. Public comments suggested that of the 702 
acres (ac) (284 hectares (ha)) authorized in the LVSSR SUPA that occur 
within proposed critical habitat, only 3.6 ac (1.5 ha) are known to be 
occupied by the Mount Charleston blue butterfly, and essentially are 
surrounded by a barrier of forest. One public comment stated the Mount 
Charleston blue butterfly has never been observed far from its habitat 
by leading experts, and suggested that designating areas between 
patches of habitat was overly broad and resulted in proposed 
designation of areas of unoccupied habitat not essential to the 
conservation of the Mount Charleston blue butterfly, and that such 
areas should not be designated as critical habitat.
    Our Response: We used quarter-quarter sections (generally 40 ac (16 
ha)) to delineate the boundaries of critical habitat units because, as 
stated in the proposed designation, they provide a readily available 
systematic method to identify areas that encompass the physical and 
biological features essential to the conservation of the Mount 
Charleston blue butterfly, and they provide boundaries that are easy to 
describe and interpret for the general public and land management 
agencies. The selection of any given quarter-quarter section was 
systematically selected based on our understanding of the best 
scientific and commercial data available on the occurrence of the 
physical and biological features essential to the conservation of the 
Mount Charleston blue butterfly. We recognize that there are areas 
within the critical habitat unit boundaries that do not possess the 
primary constituent elements, such as buildings, pavement, and other 
structures, and these areas are excluded by text in the final critical 
habitat rule (see section Criteria Used To Identify Critical Habitat). 
In the quarter-quarter sections that are included, suitable habitat is 
distributed across the area.
    Reported acres of habitat in previous Federal Register documents do 
not reflect the best available science currently available. In the 90-
day and 12-month findings (72 FR 29935-29936, May 30, 2007; 76 FR 
12670, March 8, 2011), we reported some of the first patches of habitat 
for the Mount Charleston blue butterfly to be 3.7 ac (1.5 ha), and two 
areas of 2.4 ac (0.97 ha) and 1.3 ac (0.53 ha) at the LVSSR. As a 
result of additional survey work in 2012, we identified the area of 
known occupied habitat at LVSSR as 25.7 ac (10.4 ha) in the final rule 
listing the

[[Page 37411]]

Mount Charleston blue butterfly as endangered (78 FR 57754; September 
19, 2013). Additional habitat has been mapped (Forest Service 2013, 
Figure 2) within the LVSSR SUPA, and more may be present in areas that 
have not been adequately surveyed. There are small areas with primary 
constituent elements distributed across the entire area of the LVSSR 
SUPA within Unit 2, which overlaps with approximately 60 percent of the 
LVSSR SUPA. The ability of the Mount Charleston blue butterfly to move 
among or between close patches of habitat within each critical habitat 
unit is necessary and essential for the conservation and recovery of 
the subspecies. Movements between patches of habitat to restore a 
functioning metapopulation (hypothesized to have failed because of 
reduced landscape permeability, as described in Boyd and Murphy 2008, 
p. 25) are necessary for recovery of the Mount Charleston blue 
butterfly.
    We recognize that habitat is dynamic, the extent of habitat may 
shift, surveys have not occurred in every area, and butterflies move 
between patches of habitat. Therefore, we adjusted some of the 
methodology we used to identify critical habitat in this final rule. We 
used a 1,000-meter (3,300-foot) distance to approximate potential Mount 
Charleston blue butterfly movements within critical habitat units. We 
believe the use of quarter-quarter sections provides an effective 
boundary and scale that encompasses likely butterfly movements within 
and between habitat patches, and is easily recognizable by land 
management agencies and the general public. Therefore, this methodology 
resulted in the three separate occupied critical habitat units 
essential to the conservation and recovery of the Mount Charleston blue 
butterfly that are identified in this final rule.
    (24) Comment: We received comments that feral horses were affecting 
the Mount Charleston blue butterfly and its habitat, and they should be 
removed.
    Our Response: Threats to the Mount Charleston blue butterfly were 
evaluated in the final rule for listing the subspecies as endangered 
(78 FR 57750; September 19, 2013). Management of feral horses is 
outside the scope of the Service's authority, and comments on this 
matter should be directed to the appropriate land manager. The Service 
will continue to advocate for appropriate management levels of feral 
horses to avoid or minimize potential conflicts with the Mount 
Charleston blue butterfly.
    (25) Comment: We received many public comments that the Service 
should assemble a recovery team and have a collaborative and inclusive 
recovery planning process.
    Our Response: We agree that we should have a collaborative and 
inclusive recovery planning process, and will work to fulfill our 
statutory mandate under section 4 of the Act, which requires us to 
develop and implement a recovery plan for the Mount Charleston blue 
butterfly now that the species is listed and critical habitat is 
designated.
    (26) Comment: We received several public comments suggesting that 
LVSSR SUPA should be excluded from critical habitat because more Mount 
Charleston blue butterflies were observed in Unit 1 than Unit 2, better 
habitat was present in Unit 1 than in Unit 2, and the Carpenter 1 Fire 
will likely improve habitat in Unit 1.
    Our Response: Exclusions to critical habitat are considered in 
accordance with section 4(b)(2) of the Act (see our response to Comment 
19), which does not allow consideration or comparison of population 
numbers between critical habitat units. We agree that Unit 1 likely has 
better habitat, has higher densities of Mount Charleston blue 
butterflies, and is more likely to improve in some areas as a result of 
the Carpenter 1 Fire. The critical habitat for the Mount Charleston 
blue butterfly in Unit 2 at LVSSR is essential to the conservation and 
recovery of the subspecies, because of the subspecies' restricted 
range, overall low numbers, and occupancy of few locations, which we 
described in the final listing rule (78 FR 57750; September 19, 2013). 
Additionally, the population of Mount Charleston blue butterflies in 
Unit 2 and at LVSSR is one of three known occupied locations. While 
other presumed occupied locations exist outside of designated critical 
habitat, the location within LVSSR is important because it is known 
occupied habitat with primary constituent elements essential to the 
conservation and recovery of the subspecies. Also see our responses to 
Comments 18 and 21, above.
    (27) Comment: We received many public comments that critical 
habitat should include historical, but unoccupied, areas.
    Our Response: We reviewed all areas where the Mount Charleston blue 
butterfly has been documented, as described in the final listing rule 
(78 FR 57750; September 19, 2013). For species listed under the Act, we 
may designate critical habitat in unoccupied areas when these areas are 
essential for the conservation of a species. However, with the 
exception of the removal areas (see our response to Comment 12), we 
have determined that the three occupied critical habitat units 
identified in this rule contain the physical and biological features 
essential to the conservation of the Mount Charleston blue butterfly, 
and no unoccupied areas are necessary for designation.
    (28) Comment: We received public comments that there was no 
evidence the Mount Charleston blue butterfly was unique, and, 
therefore, it should not be listed as endangered. In addition, we 
received comments that requested us to list the Mount Charleston blue 
butterfly under the Act.
    Our Response: We evaluated and described the taxonomy of the Mount 
Charleston blue butterfly during the listing process of the subspecies, 
and it was determined to be a valid taxonomic entity for considering 
listing under the Act. The listing process required us to publish a 
proposed rule in the Federal Register (77 FR 59518; September 27, 2012) 
and solicit public comments on the rule (see Previous Federal Actions 
section for more details). Information we received during the 60-day 
comment period for the proposed rule informed the final rule 
determining endangered species status for the subspecies (78 FR 57750; 
September 19, 2013). Listing of the Mount Charleston blue butterfly as 
endangered was effective October 21, 2013.
    (29) Comment: One commenter stated that the proposed rule to 
designate critical habitat relies too much on the use of linguistically 
uncertain or vague wording (for example, ``presumed to,'' ``suspected 
of,'' ``likely to be,'' and ``anticipated to'') to support its 
conclusions.
    Our Response: The language in the proposed and final rules reflects 
the uncertainty that exists in natural history studies, and we have 
attempted to be transparent and explicitly characterize that 
uncertainty where applicable. Under the Act, we base our decision on 
the best available scientific and commercial information, even if that 
information includes some level of uncertainty.
    (30) Comment: We received one public comment proposing an 
additional removal area from Unit 2 within the LVSSR SUPA because of 
intensive levels of recreational activities.
    Our Response: We reviewed and evaluated information on the 
additional proposed removal area within the LVSSR SUPA. Some of the 
proposed removal area contains concentrations of buildings, roads, ski 
lift structures, and recreation facilities (developed

[[Page 37412]]

infrastructure) that receive high levels of public recreation and 
facilities management. These areas lack physical or biological features 
necessary for the Mount Charleston blue butterfly, and because of the 
high concentrations of disturbance from public use and management, are 
not likely to be suitable in the future. Therefore, we do not include 
in this critical habitat designation a portion of the area mentioned by 
this commenter because its omission from the designation is consistent 
with the rationale for the removal areas we named in the July 15, 2014, 
proposed rule (see our response to Comment 12).

Comments From Federal Agencies

    (31) Comment: The Forest Service commented that the benefits of 
designating critical habitat were negligible because they must consult 
with the Service as a result of the listed status of the Mount 
Charleston blue butterfly in areas that contain habitat for the 
butterfly, whether it is occupied or not. The Forest Service stated 
they assume that areas with suitable habitat are occupied by the Mount 
Charleston blue butterfly and have developed protocols and designed 
criteria, in coordination with the Service, which will ``provide all 
the benefits listed in the Service's proposal to designate critical 
habitat.''
    Our Response: Under section 4(a)(3)(A) of the Act, the Service is 
required to designate critical habitat for species or subspecies listed 
as endangered or threatened, if prudent and determinable. The Service 
is not relieved of this statutory obligation when a Federal agency is 
already complying with section 7 obligations to consult if an action 
may affect a listed species or subspecies. While we appreciate the 
Forest Service's previous and ongoing efforts to develop effective 
conservation and management strategies to protect the Mount Charleston 
blue butterfly and its habitat, section 4 of the Act requires the 
Service to identify areas that provide the physical or biological 
features essential to the conservation of the subspecies and designate 
these areas as critical habitat. We will continue to work with the 
Forest Service to implement conservation efforts that protect the Mount 
Charleston blue butterfly and its habitat while also consulting on 
projects that may affect the Mount Charleston blue butterfly.
    (32) Comment: The Forest Service commented that they were concerned 
with the methods the Service used to define occupancy, particularly the 
inclusion of Unit 3 (North Loop, Mummy Springs location), where the 
Mount Charleston blue butterfly has not been observed since 1995. The 
Forest Service indicated that because they presume occupancy in 
suitable habitat, they initiate section 7 consultations and the 
benefits of designating critical habitat are negligible.
    Our Response: The Mount Charleston blue butterfly was last observed 
in the North Loop Unit 3 in 1995 by Weiss et al. (1997), who determined 
its presence and occupancy within this unit. Surveys have been 
insufficient to determine that the Mount Charleston blue butterfly has 
been extirpated from Unit 3. The last surveys for the Mount Charleston 
blue butterfly in Unit 3 occurred in 2006 (3 visits) and 2012 (2 
visits) (Boyd 2006, p. 1; Kingsley 2007, p. 6; Andrew et al. 2013, p. 
28), and some of these surveys occurred early in the season (mid-June 
and early July) making the likelihood of detecting adults to be low. 
Furthermore, Thompson et al. (2014, p. 156) indicate that, based on 
their experience performing extensive surveys for the Mount Charleston 
blue butterfly, it may persist at a location (for example, LVSSR and 
Bonanza), but be nearly undetectable with typical survey effort. For 
example, Boyd and Murphy (2008, p. 3) hypothesized that the failure to 
observe the Mount Charleston blue butterfly for 3 consecutive years and 
after intensive surveys in 2008, was ``strong evidence'' of its 
extirpation in Lee Canyon. However Thompson et al. observed an adult 
female at the same location surveyed at LVSSR on July 23, 2010. Thus, 
the Mount Charleston blue butterfly could be present at a location and 
remain undetected in areas with suitable habitat even with intensive 
surveys as exemplified by the preceding surveys during a 5-year time 
period. Therefore, it is appropriate to consider critical habitat in 
Unit 3 occupied.
    We appreciate the work that the Forest Service has done to conserve 
the Mount Charleston blue butterfly, and we will continue to work with 
them to implement conservation efforts that protect the Mount 
Charleston blue butterfly while also consulting on projects that may 
affect the Mount Charleston blue butterfly in the future.
    (33) Comment: The Forest Service suggested that the 2,440-meter (m) 
(8,000-foot (ft)) buffer proposed by the Service as needed for movement 
corridors was greater than the ``known limits'' of the Mount Charleston 
blue butterfly; therefore, the Forest Service recommended a 200-m (660-
ft) buffer. The Forest Service suggested that movements by Mission blue 
butterflies (which are Boisduval's blue butterflies) were not 
appropriate to use as a ``surrogate'' for movement by the Mount 
Charleston blue butterfly, because it was larger, ranked among the most 
vagile species of Lycaenidae, and had a hill-topping mating behavior 
that suggests higher flight heights than the Mount Charleston blue 
butterfly.
    Our Response: We have reviewed information on Lepidoptera movements 
emphasizing information on sedentary lycaenid butterflies, and revised 
the criteria for connectivity to provide an approximation based on a 
range of documented distances (300-1500 m) (see Criteria Used To 
Identify Critical Habitat section).
    In general, we reexamined the criteria used to identify critical 
habitat as they relate to dispersal for butterflies and the 2,440-m 
(8,000-ft) buffer distance applied for connectivity and corridors. We 
originally used dispersal distances reported for the Mission blue 
butterfly (Plebejus icarioides missionensis), because of its close 
taxonomic relation to the Mount Charleston blue butterfly and the 
availability of measured dispersal distances for the Mission blue 
butterfly. The commenter is correct that the Boisduval's blue butterfly 
is reported as ``the largest blue'' butterfly in North America. Scott 
(1986, p. 409) and Arnold et al. (1983, pp. 47-48) describe the Mission 
blue butterfly (P. i. missionensis) to ``. . . rank among the most 
vagile species of Lycaeninae'' because of long movements outside the 
study site (Scott 1975; Shreeve 1981). However, we are unaware of 
information to support the comment that the Boisduval's blue or Mission 
blue butterfly is a hill-topping species or subspecies (Scott 1968, 
Table 2; Arnold et al. 1983, p. 32) or of information relating hill-
topping or flight height to dispersal distance.
    Based on reports and descriptions of its movements, we agree that 
the vagility of the Mount Charleston blue butterfly is likely similar 
to other related Lycaenidae, and its mobility can be characterized as 
sedentary or low (10-100 m (33-330 ft)) (Cushman and Murphy 1993, p. 
40; Weiss et al. 1997, Table 2; Fleishman et al. 1997, Table 2; Boyd 
and Murphy 2008, pp. 3, 9; Thompson et al. 2013, pp. 118-121). However, 
studies of a butterfly's mobility and short-distant movements observed 
in mark-release-recapture do not accurately detect the longest 
movements of individuals, and thus are likely not reliable estimates of 
a species' dispersal distances (Wilson and Thomas 2002, pp. 259 and 
264; Stevens et al. 2010, p. 625). In addition, the maximum distances 
obtained from mark-release-recapture studies underestimate how far 
butterflies may disperse. These studies also underestimate the number 
of

[[Page 37413]]

individuals which will move long distances, because individuals that 
leave a habitat patch or study area and do not reach another patch 
often go undetected (Cushman and Murphy 1993, p. 40; Wilson and Thomas 
2002, p. 261).
    Limited estimates of Mount Charleston blue butterfly movements are 
available. Distances between patches of habitat for Mount Charleston 
blue butterfly locations delineated by Andrew et al. 2013 and Thompson 
et al. 2014 in Unit 2 (measured in Geographic Information System (GIS)) 
range between 300 m and 700 m (990 ft and 2300 ft), suggesting the 
butterfly is capable of movements greater than the commenter's 
recommended 200 m (660 ft). Aside from characterizations of the Mount 
Charleston blue butterfly's within-patch movements, we are unaware of 
data describing its maximum dispersal distance. Therefore, any 
approximation of dispersal for the Mount Charleston blue butterfly must 
be inferred from other sources or species for which we do have 
available movement data. We recognize that there are numerous 
interacting factors, both intrinsic (for example, genetics, size, 
health, life history) and extrinsic (for example, habitat quality and 
configuration, weather, population density), that may affect dispersal 
estimates of butterfly species. As such, we have revised the criteria 
for connectivity to reflect the range of documented distances, as 
described above.
    (34) Comment: The Forest Service requested that areas be removed 
from critical habitat designation that are within a 25-m (83-ft) buffer 
surrounding existing waterlines and administrative roads associated 
with previously removed recreation facilities, in Unit 2. The Forest 
Service stated the areas receive periodic maintenance, lack primary 
constituent elements, and are ``within the bounds of justification used 
for excluding [sic] the initial recreation areas.'' In addition, the 
Forest Service requested that an area be removed from the proposed 
critical habitat designation in Unit 1, where radio repeaters with 
required annual maintenance occur. The Forest Service states that the 
area was surveyed for habitat and only the host plant Astragalus 
platytropis was present, and they stated that the nearest documented 
citing of a Mount Charleston blue butterfly was 200 m (660 ft) away.
    Our Response: 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, and other 
structures, because such lands lack the physical or biological features 
for Mount Charleston blue butterfly. However, the Mount Charleston blue 
butterfly and its habitat have been documented in close proximity to 
trails and administrative roads (Weiss et al. 1997, p. 10 and Map 3.1; 
Boyd and Murphy 2008, pp. 4-7; Thompson 2014b) near some of the areas 
that the Forest Service requested we remove from critical habitat 
designation in Unit 2. In addition, the Mount Charleston blue butterfly 
and its habitat have been documented within the area near radio 
repeaters in Unit 1 (Andrew et al. 2013, Figure 17). Therefore, the 
areas the Forest Service requested for removal are designated as 
critical habitat in this rule.

Summary of Changes From Proposed Rule

    Based on information we received during the comment period, we made 
the following changes to the proposed rule:
    (1) We have updated the genus from Plebejus to Icaricia for the 
Mount Charleston blue butterfly to reflect more current scientific 
studies and use. The Service will now use Icaricia shasta 
charlestonensis for the Mount Charleston blue butterfly. This includes 
amending the scientific name we set forth in the List of Endangered and 
Threatened Wildlife at 50 CFR 17.11(h).
    (2) In response to the comments we received from peer and public 
reviewers, we have updated the following sections to incorporate 
literature and information provided or to clarify language based on 
suggestions made: Species Information, Physical or Biological Features, 
and Primary Constituent Elements for the Mount Charleston Blue 
Butterfly (see updated sections in this final rule).
    (3) We have modified critical habitat boundaries to account for the 
areas initially proposed for removal, public comments on these proposed 
removals, and our subsequent review of the data on the proposed 
removals. In addition to the initial proposed removal areas, we have 
removed an area within the LVSSR SUPA to be consistent with the 
criteria, in that the areas are highly disturbed and receive high 
concentrations of public recreation or recreation management. We have 
modified the description of the areas removed from critical habitat. We 
have made changes to maps, units, and the text of this final rule. We 
have removed 267 ac (108 ha) from proposed Unit 2 and 80 ac (32 ha) 
from proposed Unit 1. In total, the final critical habitat designation 
has decreased from the proposed designation by 347 ac (140 ha). The 
final area of critical habitat designated for the Mount Charleston blue 
butterfly is approximately 2,228 ac (902 ha) in Unit 1, 2,573 ac (1,041 
ha) in Unit 2, and 413 ac (167 ha) in Unit 3, which amounts to a total 
of 5,214 ac (2,110 ha).

Changes From the Background Section of the Proposed Rule

Species Information

Taxonomy and Species Description
    The Mount Charleston blue butterfly is a subspecies of the wider 
ranging Shasta blue butterfly (Icaricia shasta), which is a member of 
the family Lycaenidae. Pelham (2014) recognized six subspecies of 
Shasta blue butterflies. Discussion of previous taxonomic treatments 
and subspecies description may be found in the final rule to list the 
Mount Charleston blue butterfly and proposed rule to designate critical 
habitat (78 FR 57751 and 79 FR 41227).
    We listed the Mount Charleston blue butterfly as Plebejus shasta 
charlestonensis as endangered effective on October 21, 2013 (see 78 FR 
57750; September 19, 2013). We cited Pelham (2008, p. 265) as 
justification for using the name Plebejus shasta charlestonensis. Opler 
and Warren (2003, p. 30) used the name Plebejus shasta in their list of 
scientific names of butterflies, but did not list subspecies.
    Based on more recent published scientific data and in keeping with 
regulations at 50 CFR 17.11(b) to use the most recently accepted 
scientific name, we will use the name Icaricia shasta charlestonensis 
for the Mount Charleston blue butterfly throughout this document. We 
are recognizing and accepting here the change in the scientific name 
for the Mount Charleston blue butterfly. Icaricia has previously been 
treated as a genus closely related to Plebejus (Nabokov 1945, pp. 1-61) 
or as a subgenus of Plebejus (Tilden 1973, p. 13).
    Data-driven studies undertaken just prior to and just after our 
listing of the butterfly (Vila et al. 2011 and Talavera et al. 2013, 
pp. 166-192 (first published online September 2012)) support and 
confirm recognition of Icaricia as a genus distinct from Plebejus for a 
group of species that includes the Mount Charleston blue butterfly. The 
studies are based on analyses of mitochondrial and nuclear DNA of a 
broad array of New World species. This recognition and delineation of 
Icaricia is accepted and followed by Grishin (2012, pp. 117-120), who 
provides descriptions of morphological features to distinguish the 
Mount Charleston blue butterfly

[[Page 37414]]

from 4 of the other 13 blue butterflies that occur in the Spring 
Mountains of Nevada. Pelham's online Catalogue of butterflies of the 
United States and Canada, revised June 22, 2014, lists the Mount 
Charleston blue butterfly as a subspecies of Icaricia shasta. The 
format of Pelham's Catalogue does not include reference to supportive 
data (e.g., Vila et al. 2011 or Talavera et al. 2013). The Integrated 
Taxonomic Information System (ITIS) database (ITIS 2015) follows 
Pelham's Catalogue, but as yet has not been updated to the 2014 revised 
version and likewise does not cite supportive data.
    We are recognizing the change in the scientific name of the Mount 
Charleston blue butterfly to Icaricia shasta charlestonensis, based on 
data presented by Vila et al. (2011) and Talavera et al. (2013) and 
accepted by Grishin (2012) and Pelham (2014). Updating the 
nomenclature, which is reflective of its current taxonomic status, does 
not impact the animal's description, distribution, or listing status.
Habitat and Biology
    Weiss et al. (1997, pp. 10-11) describe the natural habitat for the 
Mount Charleston blue butterfly as relatively flat ridgelines above 
2,500 m (8,200 ft), but isolated individuals have been observed as low 
as 2,000 m (6,600 ft). Boyd and Murphy (2008, p. 19) indicate that 
areas occupied by the subspecies feature exposed soil and rock 
substrates, with limited or no canopy cover or shading.
    Other than observations by surveyors, little information is 
available regarding most aspects of the subspecies' biology and the key 
determinants for the interactions among the Mount Charleston blue 
butterfly's life history and environmental conditions. Observations 
indicate that above- or below-average precipitation, coupled with 
above- or below-average temperatures, influence the phenology of this 
subspecies (Weiss et al. 1997, pp. 2-3 and 32; Boyd and Austin 1999, p. 
8), and are likely responsible directly or indirectly for the 
fluctuation in population numbers from year to year, because they 
affect host and nectar plants (Weiss et al. 1997, pp. 2-3 and 31-32). 
More research is needed to understand the functional relationship 
between the Mount Charleston blue butterfly and its habitat and 
weather.
    Like most butterfly species, the Mount Charleston blue butterfly is 
dependent on available and accessible nectar plant species for the 
adult butterfly flight period, when breeding and egg-laying occurs, and 
for larval development (described under Physical or Biological 
Features, below (Weiss et al. 1994, p. 3; Weiss et al. 1997, p. 10; 
Boyd 2005, p. 1; DataSmiths 2007, p. 21; Boyd and Murphy 2008, p. 9; 
Andrew et al. 2013, pp. 4-12; Thompson et al. 2014, pp. 97-158)). The 
typical flight and breeding period for the butterfly is early July to 
mid-August, with a peak in late July, although the subspecies has been 
observed as early as mid-June and as late as mid-September (Austin 
1980, p. 22; Boyd and Austin 1999, p. 17; Thompson et al. 2014, pp. 
105-116).
    Like all butterfly species, both the phenology (timing) and number 
of Mount Charleston blue butterfly individuals that emerge and fly to 
reproduce during a particular year appear to be reliant on the 
combination of many environmental factors that may constitute a 
successful (``favorable'') or unsuccessful (``poor'') year for the 
subspecies. Specific information regarding diapause of the Mount 
Charleston blue butterfly is lacking, and while geographic and 
subspecific variation in life histories can vary, we presume 
information on the diapause of other Shasta blue butterflies is similar 
to that of the Mount Charleston blue butterfly. The Shasta blue 
butterfly is generally thought to diapause at the base of its larval 
host plant or in the surrounding substrate (Emmel and Shields 1980, p. 
132) as an egg the first winter and as a larva near maturity the second 
winter (Ferris and Brown 1981, pp. 203-204; Scott 1986, p. 411); 
however, Emmel and Shields (1980, p. 132) suggested that diapause was 
passed as partly grown larvae, because freshly hatched eggshells were 
found near newly laid eggs (indicating that the eggs do not 
overwinter). More recent observations of late summer hatched and 
overwintering unhatched eggs of the Mount Charleston blue butterfly 
eggs laid in the Spring Mountains may indicate that it has an 
environmentally cued and mixed diapause life cycle; however, further 
observations supporting egg viability are needed to confirm this 
(Thompson et al. 2014, p. 131).
    Prolonged or multiple years of diapause has been documented for 
several butterfly families, including Lycaenidae (Pratt and Emmel 2010, 
p. 108). For example, the pupae of the variable checkerspot butterfly 
(Euphydryas chalcedona, which is in the Nymphalid family) are known to 
persist in diapause up to 5 to 7 years (Scott 1986, p. 28). The number 
of years the Mount Charleston blue butterfly can remain in diapause is 
unknown. Boyd and Murphy (2008, p. 21) suggest the Mount Charleston 
blue butterfly ``may be able to delay maturation during drought or the 
shortened growing seasons that follow winters with heavy snowfall and 
late snowmelt by remaining as eggs through one or more years, or 
returning to diapause as larvae, perhaps even more than once.'' Experts 
have hypothesized and demonstrated that, in some species of 
Lepidoptera, a prolonged diapause period may be possible in response to 
unfavorable environmental conditions (Scott 1986, pp. 26-30; Murphy 
2006, p. 1; DataSmiths 2007, p. 6; Boyd and Murphy 2008, p. 22), and 
this has been hypothesized for the Mount Charleston blue butterfly as 
well (Thompson et al. 2014, p.157). Little has been confirmed regarding 
the length of time or life stage in which the Mount Charleston blue 
butterfly diapauses.
    Most butterfly populations exist as regional metapopulations 
(Murphy et al. 1990, p. 44). Boyd and Murphy (2008, p. 23) suggest this 
is true of the Mount Charleston blue butterfly. Small habitat patches 
tend to support smaller butterfly populations that are frequently 
extirpated by events that are part of normal variation (Murphy et al. 
1990, p. 44). According to Boyd and Austin (1999, p. 17), smaller 
colonies of the Mount Charleston blue butterfly may be ephemeral in the 
long term, with the larger colonies of the subspecies more likely than 
smaller populations to persist in ``poor'' years, when environmental 
conditions do not support the emergence, flight, and reproduction of 
individuals. The ability of the Mount Charleston blue butterfly to move 
between habitat patches has not been studied; however, field 
observations indicate the subspecies has low vagility (capacity or 
tendency of a species to move about or disperse in a given 
environment), on the order of 10 to 100 m (33 to 330 ft) (Weiss et al. 
1995, p. 9), and nearly sedentary behavior (DataSmiths 2007, p. 21; 
Boyd and Murphy 2008, pp. 3 and 9). Furthermore, movement of lycaenid 
butterflies, in general, is limited and on the order of hundreds of 
meters (Cushman and Murphy 1993, p. 40); however, there are small 
portions of a population that can make substantially long movements 
(Arnold 1983, pp. 47-48).
    Based on this information, the likelihood of dispersal more than 
hundreds of meters (yards) is low for the Mount Charleston blue 
butterfly, but it may occur. It is hypothesized that the Mount 
Charleston blue butterfly could diapause for multiple years (more than 
2) as larvae and pupae until vegetation conditions are favorable to 
support emergence, flight, and reproduction

[[Page 37415]]

(Boyd and Murphy 2008, pp. 12, 21). This could account in part for 
periodic high numbers (as was documented by Weiss et al. in 1995) of 
butterflies observed at more sites in years with favorable conditions 
than in years with unfavorable conditions. Additional future research 
regarding diapause patterns of the Mount Charleston blue butterfly is 
needed to further our understanding of this subspecies.

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 resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. 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. 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 available

[[Page 37416]]

information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Mount Charleston blue butterfly from studies of this 
subspecies' habitat, ecology, and life history as described below. 
Additional information can be found in the final listing rule published 
in the Federal Register on September 19, 2013 (78 FR 57750). We have 
determined that the Mount Charleston blue butterfly requires the 
following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    The Mount Charleston blue butterfly is known to occur only in the 
high elevations of the Spring Mountains, located approximately 40 
kilometers (km) (25 miles (mi)) west of Las Vegas in Clark County, 
Nevada (Austin 1980, p. 20; Scott 1986, p. 410). Historically, the 
Mount Charleston blue butterfly was detected at elevations as low as 
1,830 m (6,000 ft) in the Spring Mountains (Austin 1980, p. 22; Austin 
1981, p. 66; Weiss et al. 1995, p. 5). Currently, the Mount Charleston 
blue butterfly is presumed or known to occupy habitat occurring between 
2,500 m (8,200 ft) elevation and 3,500 m elevation (11,500 ft) (Austin 
1980, p. 22; Weiss et al. 1997, p. 10; Boyd and Austin 1999, p. 17; 
Pinyon 2011, p. 17; Andrew et al. 2013, pp. 20-61; Thompson et al. 
2014, pp. 97-158). Dominant plant communities between these elevation 
bounds are variable (Forest Service 1998, pp. 11-12), but locations 
that support the Mount Charleston blue butterfly are characterized by 
open areas bordered, near, or surrounded by forests composed of 
ponderosa pine (Pinus ponderosa), Great Basin bristlecone pine (Pinus 
longaeva), and white fir (Abies concolor) (Andrew et al. 2013, p. 5). 
These open forest conditions are often created by disturbances such as 
fire and avalanches (Weiss et al. 1995, p. 5; DataSmiths 2007, p. 21; 
Boyd and Murphy 2008, pp. 23-24; Thompson et al. 2014, pp. 97-158), but 
the open-forest or non-forest conditions also exist as a function of 
occurring in higher subalpine elevations (i.e., above treeline) (for 
example, Nachlinger and Reese 1996, Appendix I-64-72).
    The Mount Charleston blue butterfly is described to occur on 
relatively flat ridgetops, gently sloping hills, or meadows, where tree 
cover is absent to less than 50 percent (Austin 1980, p. 22; Weiss et 
al. 1995, pp. 5-6; Weiss et al. 1997, pp. 10, 32-34; Boyd and Austin 
1999, p. 17; Boyd and Murphy 2008, p. 19; Andrews et al. 2013, p. 3; 
Thompson et al. 2014, p. 138). Boyd and Murphy (2008, p. 19) go on to 
suggest general descriptions of Mount Charleston blue butterfly habitat 
may have resulted because of the areas where ``collectors and observers 
disproportionately target . . . [to increase] opportunities to 
encounter'' the Mount Charleston blue butterfly. However, until 
observations are made in areas that would alter our understanding of 
where Mount Charleston blue butterflies generally occur, we assume 
these locations and characteristics are likely correlated with the 
ecological requirements of the Mount Charleston blue butterfly's larval 
host plants (Weiss et al. 1997, p. 22) and adult nectar plants 
(described below).
    Therefore, based on the information above, we identify flat or 
gently sloping areas between 2,500 m (8,200 ft) and 3,500 m (11,500 ft) 
elevation in the Spring Mountains as a physical or biological feature 
essential to the Mount Charleston blue butterfly for space for 
individual and population growth and for normal behavior.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The best scientific information available regarding food, water, 
air, light, minerals, and other nutritional or physiological 
requirements of the Mount Charleston blue butterfly's life stages (egg, 
larva, pupa, adult) result from observations by surveyors, and research 
to determine the requirements and environmental conditions essential to 
the Mount Charleston blue butterfly. In general, resources that are 
thought to fulfill these requirements occur in open areas with exposed 
soil and rock substrates with short, widely spaced forbs and grasses. 
These areas allow light to reach the ground in order for adult nectar 
and larval host plants to grow.
    Adult Mount Charleston blue butterflies have been documented 
feeding on nectar from a number of different flowering plants, but most 
frequently the species reported are Erigeron clokeyi (Clokey's 
fleabane), Eriogonum umbellatum var. versicolor (sulphur-flower 
buckwheat), Hymenoxys cooperi (Cooper rubberweed), and Hymenoxys 
lemmonii (Lemmon bitterweed) (Weiss et al. 1997, p. 11; Boyd and Murphy 
2008, pp. 13, 16; Pinyon 2011, p. 17; Andrew 2013, pp. 8; Thompson et 
al. 2014, pp. 117-118). Densities of nectar plants generally occur at 
more than 2 per square meter (m\2\) (0.2 per square foot (ft\2\)) for 
smaller plants such as E. clokeyi and more than 0.1 per m\2\ (0.01 per 
ft\2\) for larger and taller plants such as Hymenoxys sp. and E. 
umbellatum (Thompson et al. 2014, p. 138). Nectar plants typically 
occur within 10 m (33 ft) of larval host plants and, in combination, 
provide nectar during the adult flight period between mid-July and 
early August (Thompson et al. 2014, p. 138). Other species that adult 
Mount Charleston blue butterflies have been documented using as nectar 
plants include Antennaria rosea (rosy pussy toes), Cryptantha species 
(cryptantha; the species C. angustifolia originally reported is likely 
a misidentification because this species occurs in much lower elevation 
desert habitat (Niles and Leary 2007, p. 26)), Ericameria nauseosa 
(rubber rabbitbrush), Erigeron flagellaris (trailing daisy), 
Gutierrezia sarothrae (broom snake weed), Monardella odoratissima 
(horsemint), Petradoria pumila var. pumila (rock-goldenrod), and 
Potentilla concinna var. concinna (Alpine cinquefoil) (Boyd and Murphy 
2008, pp. 13, 16; Thompson et al. 2014, pp. 117-118).
    Based on surveyors' observations, several species appear to be 
important food plants for the larval life stage of the Mount Charleston 
blue butterfly. Therefore, we consider those plants on which surveyors 
have documented Mount Charleston blue butterfly eggs to be larval host 
or food plants (hereafter, referred to as larval host plants). Based on 
this, Astragalus calycosus var.

[[Page 37417]]

calycosus, Oxytropis oreophila var. oreophila, and Astragalus 
platytropis are all considered larval host plants for the Mount 
Charleston blue butterfly (Weiss et al. 1997, p. 10; Austin and Leary 
2008, p. 86; Andrew et al. 2013, pp. 7-8; Thompson et al. pp. 121-131) 
(see ``Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring,'' below, for more details). Note that in the final listing 
rule for the Mount Charleston blue butterfly (78 FR 57750; September 
19, 2013), we reported Astragalus lentiginosus var. kernensis (Kern 
plateau milkvetch) as a larval host plant (Andrew et al. 2013, p. 3); 
however, this host plant was subsequently determined to be Oxytropis 
oreophila var. oreophila (mountain oxytrope) (Thompson et al. 2014, pp. 
97-158), and has been described as such in this final rule. Future 
surveys and research may document the importance of other plant species 
as food resources for Mount Charleston blue butterfly larvae. Densities 
of host plants are generally greater than two per m\2\ (0.2 per ft\2\) 
(Weiss 1997, p. 34; Andrew et al. 2013, p. 9; Thompson et al. 2014, p. 
138).
    In addition, the Mount Charleston blue butterfly requires open 
canopy cover (open forest). Specifically, the Mount Charleston blue 
butterfly requires areas where tree cover is absent or low. This may be 
due to ecological requirements of the larval host plants or adult 
nectar plants or due to the flight behavior of the Mount Charleston 
blue butterfly. As with most butterflies, the Mount Charleston blue 
butterfly typically flies during sunny conditions, which are 
particularly important for this subspecies given the cooler air 
temperatures at high elevations in the Spring Mountains of Nevada 
(Weiss et al. 1997, p. 31).
    The areas where the Mount Charleston blue butterfly occurs often 
have shallow exposed soil and rock substrates with short, widely spaced 
forbs and grasses (Weiss et al. 1997, pp. 10, 27, and 31; Boyd 2005, p. 
1; Service 2006a, p. 1; Kingsley 2007, pp. 9-10; Boyd and Murphy 2008, 
p. 19; Pinyon 2011, pp. 17, 21; Andrew et al. 2013, pp. 9-13; Thompson 
et al. 2014, pp. 137-143). These vegetative characteristics may be 
important because they would not impede the Mount Charleston blue 
butterfly's low flight behavior (Weiss et al. 1997, p. 31) (reported to 
be 15 centimeters (cm) (5.9 inches (in)) or less (Thompson et al. 2014, 
p. 118)). Some taller grass or forb plants may be present when their 
density is less than five per m\2\ (Thompson et al. 2014, pp. 138-139).
    Therefore, based on the information above, we identify open habitat 
that permits light to reach the ground, nectar plants for adults and 
host plants for larvae, and exposed soil and rock substrates with 
short, widely spaced forbs and grasses to be physical or biological 
features for this subspecies that provide food, water, air, light, 
minerals, or other nutritional or physiological requirements.
Cover or Shelter
    The study and delineation of habitat for many butterflies has often 
been associated with larval host plants, breeding resources, and nectar 
sources for adults (Dennis 2004, p. 37). Similar to other butterfly 
species (Dennis 2004, p. 37), there is little to no information 
available about the structural elements required by the Mount 
Charleston blue butterfly for cover or shelter. However, we infer that, 
because of their low vagility, cover or shelter used by any life stage 
of the Mount Charleston blue butterfly will be in close association or 
proximity to larval or adult food resources in its habitat.
    For larvae, diapause is generally thought to occur at the base of 
the larval host plant or in the surrounding substrate (Emmel and 
Shields 1980, p. 132). Mount Charleston blue butterfly larvae feed 
after diapause. Like other butterflies, after larvae become large 
enough, they pupate (Scott 1986, p. 24). Pupation most likely occurs in 
the ground litter near a main stem of the larval host plant (Emmel and 
Shields 1980, p. 132). After pupation, adults feed and mate in the same 
areas where larvae diapause and pupation occurs. In addition, no 
specific areas for overnight roosting by adult Mount Charleston blue 
butterflies have been reported. However, adults have been observed 
using areas in moderately dense forest stands immediately adjacent to 
low-cover areas with larval host and nectar plants (Thompson et al. 
2014, p. 120).
    Therefore, based on the information above, we identify areas with 
larval host plants and adult nectar plants, and areas immediately 
adjacent to these plants, to be a physical or biological feature for 
this subspecies that provides cover or shelter.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    The adult Mount Charleston blue butterfly has specific site 
requirements for its flight period when breeding and reproduction 
occur, and these requirements may be correlated to its limited vagility 
and short adult life stage. The typical flight and breeding period for 
the Mount Charleston blue butterfly is early July to mid-August with a 
peak in late July, although the subspecies has been observed as early 
as mid-June and as late as mid-September (Austin 1980, p. 22; Boyd and 
Austin 1999, p. 17; Thompson et al. 2014, pp. 104-116). Breeding 
opportunities for individual Mount Charleston blue butterflies are 
presumably short in duration during its adult life stage, which may 
range from 2 to 12 days, as has been reported for other closely related 
species (Arnold 1983, Plebejinae in Table 44). Therefore, the Mount 
Charleston blue butterfly may generally be constrained to areas where 
adult nectar resources are in close proximity to plants on which to 
breed and lay eggs. Researchers have documented Mount Charleston blue 
butterfly breeding behavior in close spatial association with larval 
host and adult nectar plants (Thompson et al. 2014, pp. 121-125).
    The presence of Mount Charleston blue butterfly adult nectar 
plants, such as Erigeron clokeyi, appears to be strongly associated 
with its larval host plants (Andrew et al. 2013, p. 9). Female Mount 
Charleston blue butterflies have been observed ovipositing a single egg 
per host plant, which appears to weakly adhere to the host plant 
surface; this has been observed most typically within basal leaves 
(Thompson et al. 2014, p. 129). Ovipositing by butterflies on plants is 
not absolute evidence of larval feeding or survival (Austin and Leary 
2008, p. 1), but may provide a stronger inference in combination with 
close adult associations and repeated observations. Presuming the Mount 
Charleston blue butterfly's diapause behavior is similar to other 
Shasta blue butterflies, the Mount Charleston blue butterfly diapauses 
as an egg or as a larva at the base of its egg and larval host plants 
or in the surrounding substrate (Emmel and Shields 1980, p. 132; Ferris 
and Brown 1981, pp. 203-204; Scott 1986, p. 411).
    In 1987, researchers documented two occasions when Mount Charleston 
blue butterflies oviposited on Astragalus calycosus var. calycosus (= 
var. mancus) (Austin and Leary 2008, p. 86). Based on this reported 
documentation and subsequent observations of adult Mount Charleston 
blue butterflies associations with the plant, Astragalus calycosus var. 
calycosus was the only known larval host plant for the Mount Charleston 
blue butterfly (Austin and Leary 2008, p. 86). In 2011 and 2012, 
researchers from the University of Nevada Las Vegas observed female 
Mount Charleston blue butterflies landing on and ovipositing on 
Oxytropis oreophila var. oreophila (mountain oxytrope) and Astragalus

[[Page 37418]]

platytropis (broadkeeled milkvetch), which presumably also function as 
larval host plants (Andrew et al. 2013, pp. 4-12; Thompson et al. 2014, 
pp. 122-134). Andrew et al. (2013, p. 5) also documented Mount 
Charleston blue butterfly eggs on all three plant species. Other 
subspecies of Shasta blue butterflies have been reported to use more 
than one plant during larval development, including Astragalus 
platytropis (Austin and Leary 2008, pp. 85-86). Because the subspecies 
has been documented ovipositing on these three plant species and other 
subspecies of Shasta blue butterflies are known to use multiple larval 
host plants, we consider Astragalus calycosus var. calycosus, Oxytropis 
oreophila var. oreophila, and Astragalus platytropis to be the host 
plants used during Mount Charleston blue butterfly larval development.
    Therefore, based on the information above, we identify areas with 
larval host plants, especially Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, or Astragalus platytropis, and 
adult nectar plants, especially Erigeron clokeyi, Eriogonum umbellatum 
var. versicolor, Hymenoxys cooperi, and Hymenoxys lemmonii, during the 
flight period of the Mount Charleston blue butterfly to be a physical 
or biological feature for this subspecies that provides sites for 
breeding, reproduction, or rearing (or development) of offspring.
Habitats That Are Protected From Disturbance or Are Representative of 
the Historical, Geographical, and Ecological Distributions of the 
Subspecies
    Habitat for the Mount Charleston blue butterfly that is protected 
from disturbance or representative of the historical, geographical, and 
ecological distributions of the subspecies occurs in locations with 
limited canopy cover that comprise the appropriate species of larval 
host and adult nectar plants. Although some of these open locations 
occur due to wind and other environmental stresses that inhibit tree 
and shrub growth, fire is one of the most prevalent disturbances across 
the landscape of the Mount Charleston blue butterfly. To better 
understand the fire frequency and severity as it relates to historic 
and current conditions at Mount Charleston blue butterfly locations, we 
characterized locations using biophysical setting (BPS) with associated 
fire regime groups and fire regime condition developed by Provencher 
(2008, pp. 1-25 and Appendix II; Barrett et al. 2010, p. 15). Fire 
regime groups are classified by fire frequency, which is the average 
number of years between fires, and fire severity, which represents the 
percent replacement of dominant overstory vegetation (Barrett et al. 
2010, p. 15). Fire regime condition is ``. . . landscape-level measure 
of ecological departure between the pre-settlement and current 
distributions of vegetation succession classes and fire regimes for a 
given area'' (Provencher 2008, p. 3 citing Hann and Bunnell 2001). Fire 
regimes groups can be broadly categorized for Mount Charleston blue 
butterfly locations based on elevation. Higher elevation locations, 
generally above 2,740 m (9,000 ft) elevation, occur in fire regime 
groups 4 and 5 (Provencher 2008, Appendix II; e.g., BPS Rocky Mountain 
Alpine Fell-Field and Inter-Mountain Basins Subalpine Limber-
Bristlecone Pine Woodland). Lower elevation locations, generally below 
2,740 m (9,000 ft), occur in fire regime groups 2 and 3 (Provencher 
2008, Appendix II; e.g., BPS Inter-Mountain Basins Aspen-Mixed Conifer 
Forest and Woodland, and Rocky Mountain Mesic Montane Mixed Conifer 
Forest and Woodland).
    In higher elevation locations where the Mount Charleston blue 
butterfly is known or presumed to occur (South Loop Trail, Mummy 
Springs (North Loop Trail), upper Bonanza Trail, and Griffith Peak), 
disturbance from fire is relatively infrequent, with variable severity 
(fire regime groups 4 and 5 in Provencher 2008, Appendix II; see 
example BPS above), occurring every 35 to 200 years at a high severity, 
or occurring more frequently than every 200 years with a variable but 
generally high severity (Barrett et al. 2010, p. 15). Other 
disturbances likely to occur at the high-elevation Mount Charleston 
blue butterfly locations are from wind and other weather phenomena 
(Provencher 2008, Appendix II). At these high-elevation habitats, fire 
regime conditions are relatively similar to historic conditions 
(Provencher 2008, Table 4, 5 and Appendix II), so vegetation succession 
should be within the normal range of variation. Vegetation succession 
at some high-elevation areas that currently lack trees may cause these 
areas to become more forested, but other areas that are scoured by wind 
or exposed to other severe environmental stresses may remain non-
forested (for example, South Loop Trail; Andrew et al. 2013, pp. 20-27) 
(Provencher and Anderson 2011, pp. 1-116; NVWAP 2012, p. 177). Thus, we 
expect higher elevation locations will be able to continue to provide 
open areas with the appropriate vegetation necessary to support 
individuals and populations of Mount Charleston blue butterflies.
    In contrast, at lower elevation locations where the Mount 
Charleston blue butterfly is known or presumed to occur (Las Vegas Ski 
and Snowboard Resort (LVSSR), Foxtail, Youth Camp, Gary Abbott, Lower 
LVSSR Parking, Lee Meadows, Bristlecone Trail, and lower Bonanza 
Trail), disturbance from fire is likely to occur less than every 35 
years with more than 75 percent being high-severity fires, or is likely 
to occur more than every 35 years at mixed-severity and low-severity 
(fire regime group 2 and 3 in Provencher 2008, Appendix II; see example 
BPS above). At these lower elevation habitats, fire regime conditions 
have departed further from historic conditions (Provencher 2008, Table 
4, 5 and Appendix II). Lack of fire due to fire exclusion or reduction 
in natural fire cycles, as has been demonstrated in the Spring 
Mountains (Entrix 2008, p. 113) and other proximate mountain ranges 
(Amell 2006, pp. 2-3), has likely resulted in long-term successional 
changes, including increased forest area and forest structure (higher 
canopy cover, more young trees, and more trees intolerant of fire) 
(Nachlinger and Reese 1996, p. 37; Amell 2006, pp. 6-9; Boyd and Murphy 
2008, pp. 22-28; Denton et al. 2008, p. 21; Abella et al. 2012, pp. 
128, 130) at these lower elevation locations. Without fire in some of 
these locations, herbs and small forbs may be nearly absent as the 
vegetation moves towards later successional classes with increasing 
tree overstory cover (Provencher 2008, Appendix II). Therefore, habitat 
at the lower elevation Mount Charleston blue butterfly locations is 
more dissimilar from what would be expected based on historic fire 
regimes (Provencher 2008, Table 4, 5 and Appendix II). Thus, in order 
for Mount Charleston blue butterfly individuals and populations to be 
maintained at lower elevation locations, active habitat management will 
likely be necessary.
    The Carpenter 1 Fire in July 2013 burned into habitat of the Mount 
Charleston blue butterfly along the ridgelines between Griffith Peak 
and South Loop spanning a distance of approximately 3 miles (5 km). 
Within this area, low-, moderate-, or high-quality patches of Mount 
Charleston blue butterfly habitat intermixed with non-habitat have been 
documented (Pinyon 2011, Figure 8 and 9). The majority of Mount 
Charleston blue butterfly moderate- or high-quality habitat through 
this area was classified as having a very low or low soil-burn severity 
(Kallstrom 2013, p. 4). The characteristics of Mount Charleston blue

[[Page 37419]]

butterfly habitat in this area of widely spaced grass and forbs, 
exposed soil and rocks, and low tree canopy cover result in lower fuel 
loading and continuity, which likely contributed to its low burn 
severities.
    The effects of the Carpenter 1 Fire on Mount Charleston blue 
butterfly habitat ranged from low or no apparent effects to nearly 
complete elimination of plant cover (Herrmann 2014, p. 18). Based on a 
description of monitoring in 2014, the negative effects of the fire on 
the Mount Charleston blue butterfly and its habitat appear to be 
inversely related to the quality of habitat, where patches of high-
quality habitat with low tree canopy cover were likely less affected 
(Herrmann 2014, pp. 3-21). Overall, host and nectar plants were 
diminished in cover and abundance within the burn perimeter but are 
still present and recovering with new growth (Herrmann 2014, pp. 17-
19). Habitat within the burn perimeter will likely improve based upon 
habitat conditions in a nearby historic burn area (Herrmann 2014, pp. 
17-19). Surveys in 2014 have confirmed that the Mount Charleston blue 
butterfly survived and is present within and adjacent areas outside the 
fire perimeter (Herrmann 2014, p. 3).
    Recreational activities, trail-associated erosion, and the 
introduction of weeds or invasive grasses are likely the greatest 
threats that could occur within areas of Mount Charleston blue 
butterfly habitat burned by the Carpenter 1 Fire. Other potential 
threats to the Mount Charleston blue butterfly habitat associated with 
the fire may include trampling or grazing of new larval host or nectar 
plants by feral horses (Equus ferus) and elk (Cervus elaphus). However, 
use of this Mount Charleston blue butterfly habitat in these watersheds 
by feral horses and elk is currently very low.
    We are unaware of site- or species-specific analyses of climate 
change for the Spring Mountains in Nevada or impacts to the Mount 
Charleston blue butterfly; therefore, we rely on general predictions of 
climate change for alpine areas in the Southwest and predictions of 
climate change impacts to other invertebrate species to assess 
potential impacts of climate change to the Mount Charleston blue 
butterfly and its habitat. The Intergovernmental Panel on Climate 
Change (IPCC) has high confidence in predictions that extreme weather 
events, warmer temperatures, and regional drought are very likely to 
increase in the northern hemisphere as a result of climate change (IPCC 
2007, pp. 15-16). Climate models show the southwestern United States 
has transitioned into a more arid climate of drought that is predicted 
to continue into the next century (Seager et al. 2007, p. 1181). Garfin 
et al. (2013, p. 3) indicate that average daily temperatures have been 
higher and drought has been more severe from 2001 to 2010, when 
compared to average decadal occurrences from 1901 to 2010; however, 
``multiple drought events in the preceding 2,000 years . . . exceeded 
the most severe and sustained droughts from 1901 to 2010'' (Garfin et 
al. 2013, p. 3). In the past 60 years, the frequency of storms with 
extreme precipitation has increased in Nevada by 29 percent (Madsen and 
Figdor 2007, p. 37). These trends are anticipated to continue and 
include warmer summer and fall temperatures; more frequent and intense 
winter precipitation; decreased late-season snowpack; and hotter, more 
severe, and more frequent droughts (Garfin et al. p. 6).
    Changes in local southern Nevada climatic patterns cannot be 
definitively tied to global climate change; however, they are 
consistent with IPCC-predicted patterns of extreme precipitation, 
warmer than average temperatures, and drought (Redmond 2007, p. 1), and 
Garfin et al. (2013, p. 448) concurred with the 2009 National Climate 
Assessment (Karl et al. 2009, p. 131) that ``increasing temperatures 
and shifting precipitation patterns will drive declines in high-
elevation ecosystems [of the Southwest] such as alpine forests and 
tundra.'' In general, we expect these same trends to occur in the 
Spring Mountains, but effects on the Mount Charleston blue butterfly or 
its habitat from climate change will vary across the subspecies' range 
because of topographic heterogeneity (Luoto and Heikkinen 2008, p. 
487).
    Analyses of climate change impacts to other invertebrate species 
suggest different aspects of a species' biology may be affected, 
including physiological and morphological responses (Roy and Sparks 
2000; Altermatt 2012); shifts in spatial patterns and availability of 
refugia (Beaumont and Hughes 2002; Peterson et al. 2004; Heikkinen et 
al. 2010; Mattila et al. 2011; Oliver et al. 2012); shifts in temporal 
patterns (for example, flight periods) (Aldridge et al. 2011; Altermatt 
2012); and shifts in host and nectar plant phenology and availability. 
Because the magnitude and duration of different aspects of climate 
change are expected to be seasonally variable (Garfin et al. 2013, pp. 
5-6), impacts to microhabitats and, therefore, different butterfly life 
stages also are expected to be variable (Kingsolver et al. 2011; 
Radchuk et al. 2013). Results from Kingsolver et al. 2011 and Radchuk 
et al. 2013 indicate species and life-stage responses to increasing 
temperatures in field and lab settings are variable, so specific 
predictions of how climate change will impact the various microhabitats 
needed for the Mount Charleston blue butterfly's life stages are 
unknown. However, based on predicted increases in temperatures and 
patterns of extreme precipitation and drought for alpine areas of the 
Southwest, we believe that climate change will impact some biological 
aspects of the Mount Charleston blue butterfly and its high-elevation 
habitat. A negative response to such climate change patterns may 
exacerbate threats already facing the subspecies as a result of its 
small population size and threats to its habitat.
    Based on the information above, we identify habitat where natural 
disturbance, such as fire that creates and maintains openings in the 
canopy (fire regime groups 2, 3, 4, and 5), to be a physical or 
biological feature for this subspecies that provides habitats that are 
representative of the historical, geographical, and ecological 
distributions of the subspecies.

Primary Constituent Elements for the Mount Charleston Blue Butterfly

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Mount Charleston blue butterfly 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 species' 
life-history processes, we determine that the primary constituent 
elements specific to the Mount Charleston blue butterfly are:
    (i) Primary Constituent Element 1: Areas of dynamic habitat between 
2,500 m (8,200 ft) and 3,500 m (11,500 ft) elevation with openings or 
where disturbance provides openings in the canopy that have no more 
than 50 percent tree cover (allowing sunlight to reach the ground); 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses; and exposed soil and rock substrates. When taller grass and 
forb plants greater than or equal to 15 cm (0.5 ft) in height are 
present, the density is less than five per m\2\ (50 per ft\2\).
    (ii) Primary Constituent Element 2: The presence of one or more 
species of host plants required by larvae of the

[[Page 37420]]

Mount Charleston blue butterfly for feeding and growth. Known larval 
host plants are Astragalus calycosus var. calycosus, Oxytropis 
oreophila var. oreophila, and Astragalus platytropis. Densities of host 
plants must be greater than two per m\2\ (0.2 per ft\2\).
    (iii) Primary Constituent Element 3: The presence of one or more 
species of nectar plants required by adult Mount Charleston blue 
butterflies for reproduction, feeding, and growth. Common nectar plants 
include Erigeron clokeyi, Hymenoxys lemmonii, Hymenoxys cooperi, and 
Eriogonum umbellatum var. versicolor. Densities of nectar plants must 
occur at more than two per m\2\ (0.2 per ft\2\) for smaller plants, 
such as E. clokeyi, and more than 0.1 per m\2\ (0.01 per ft\2\) for 
larger and taller plants, such as Hymenoxys sp. and E. umbellatum. 
Nectar plants typically occur within 10 m (33 ft) of larval host plants 
and, in combination, provide nectar during the adult flight period 
between mid-July and early August. Additional nectar sources that could 
be present in combination with the common nectar plants include 
Antennaria rosea, Cryptantha sp., Ericameria nauseosa ssp., Erigeron 
flagellaris, Guitierrezia sarothrae, Monardella odoratissima, 
Petradoria pumila var. pumila, and Potentilla concinna var. concinna.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the subspecies at the 
time of listing contain features which are essential to the 
conservation of the subspecies and which may require special management 
considerations or protection. Special management considerations or 
protection may be necessary to eliminate or reduce the magnitude of 
threats that affect the subspecies. Threats to the Mount Charleston 
blue butterfly and its features identified in the final listing rule 
for the Mount Charleston blue butterfly (78 FR 57750; September 19, 
2013) include: (1) Loss and degradation of habitat due to changes in 
natural fire regimes and succession; (2) implementation of recreational 
development projects and fuels reduction projects; (3) increases of 
nonnative plants; (4) collection; (5) small population size and few 
occurrences; and (6) exacerbation of other threats from the impacts of 
climate change, which is anticipated to increase drought and extreme 
precipitation events. In addition to these threats, feral horses 
present an additional threat by causing the loss and degradation of 
habitat resulting from trampling of host and nectar plants as well as 
the direct mortality of Mount Charleston blue butterfly where it is 
present (Boyd and Murphy 2008, pp. 7 and 27; Andrew et al. 2013, pp. 
37-66; Thompson et al. 2014, pp. 150-152).
    Threats to the Mount Charleston blue butterfly and its habitat and 
recommendations for ameliorating them have been described for each 
location and the subspecies in general (Boyd and Murphy 2008, pp. 1-41; 
Andrew et al. 2013 pp. 1-93; Thompson et al. 2014, pp. 97-158, 267-
288). Management activities that could facilitate ameliorating these 
threats include (but are not limited to): (1) Reestablishment and 
maintenance of habitat and landscape connectivity within and between 
populations; (2) habitat restoration and control of invasive nonnative 
species; (3) monitoring of ongoing habitat loss and nonnative plant 
invasion; (4) management of recreational activities to protect and 
prevent disturbance of Mount Charleston blue butterflies to reduce loss 
or deterioration of habitat; (5) maintenance of the Forest Service 
closure order prohibiting collection of the Mount Charleston blue 
butterfly and other blue butterfly species without a permit, in order 
to minimize the detrimental effects of collecting rare species; (6) 
removal or exclusion of feral horses in Mount Charleston blue butterfly 
habitat; and (7) providing educational and outreach opportunities to 
inform the public regarding potential adverse impacts to the species or 
sensitive habitat from disturbance caused by recreational activities in 
the summer or winter. These management activities will protect the 
physical and biological features by avoiding or minimizing activities 
that negatively affect the Mount Charleston blue butterfly and its 
habitat while promoting activities that are beneficial to them. 
Additionally, management of critical habitat lands will help maintain 
or enhance the necessary environmental components, foster recovery, and 
sustain populations currently in decline.
    All of the areas designated as critical habitat occur within the 
Spring Mountains National Recreation Area, and are covered by the 1998 
Spring Mountains National Recreation Area (SMNRA) Conservation 
Agreement. To date, the Conservation Agreement has not always been 
effective in protecting existing habitat for the Mount Charleston blue 
butterfly or yielding significant conservation benefits for the 
species. The Forest Service is currently in the process of revising the 
SMNRA Conservation Agreement, and the Service is a cooperator in this 
process. However, as the Conservation Agreement is currently under 
revision, and completion has not occurred prior to publication of this 
final rule, it is unclear what level of protection or conservation 
benefit the final SNMRA Conservation Agreement will provide for the 
Mount Charleston blue butterfly.

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. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside of the geographical area currently occupied--are necessary to 
ensure the conservation of the species. We are designating critical 
habitat in areas within the geographical area occupied by the 
subspecies at the time of listing in October 2013 because such areas 
contain the physical or biological features that are essential to the 
conservation of the subspecies. We are not designating areas outside 
the geographical area occupied by the subspecies at the time of listing 
because they would provide limited benefit and are not needed to 
conserve the species.
    When determining the possible distribution of areas that meet the 
definition of critical habitat for the Mount Charleston blue butterfly, 
we considered all known suitable habitat patches remaining within the 
subspecies' historical range from Willow Creek, south to Griffith Peak 
within the SMNRA. For the Mount Charleston blue butterfly, we included 
locations of known populations and suitable habitat immediately 
adjacent to, or areas between, known populations that provide 
connectivity between these locations.
    This section provides the details of the process we used to 
delineate the critical habitat for the Mount Charleston blue butterfly. 
The areas designated as critical habitat in this final rule are areas 
where the Mount Charleston blue butterfly occur and that contain the 
physical and biological features essential to the conservation of the 
species. These areas have been identified through incidental 
observations and systematic surveys or studies occurring over a period 
of several years. This information comes from multiple sources, such as 
reports, journal articles, and Forest Service project information. 
Based on this

[[Page 37421]]

information, we are designating critical habitat in specific areas 
within the geographical area currently occupied by the Mount Charleston 
blue butterfly that contain the physical and biological features 
essential to the conservation of the species.
    We delineated the final critical habitat boundaries using the 
following steps:
    (1) We compiled and mapped Mount Charleston blue butterfly 
observation locations (points) and polygons of habitat that included 
larval host and nectar plants, or only larval host plants delineated in 
previous studies or surveys from Austin (1980), Weiss et al. (1997), 
Service (2006b), DataSmiths (2007), Newfields (2008), SWCA (2008), 
Carsey et al. (2011), Holthuijzen et al. (2011), Pinyon (2011), Andrew 
et al. (2013), Herrmann (2014), and Thompson et al. (2014). The 
location information from the data sources used provided enough 
information to identify specific geographic areas by corroborating 
narratively described locations and mapped locations. These surveys are 
the best available data on the current distribution, habitat, and 
features that provide the basis for identifying areas of critical 
habitat for the Mount Charleston blue butterfly.
    (2) Observed locations of Mount Charleston blue butterflies 
described above were used to create larger polygons of suitable habitat 
by buffering observed locations by 100 m (330 ft). These polygons 
assumed that suitable habitat was present up to 100 m (330 ft) around 
an observed location, because it is estimated that individual Mount 
Charleston blue butterflies can utilize areas between 10 to 100 m (33 
to 330 ft; Weiss et al. 1995, Table 1) from observed locations.
    (3) Polygons of suitable habitat were identified from previously 
delineated habitat (described above) and were considered suitable if 
the habitat polygon contained: (a) Observed locations of Mount 
Charleston blue butterflies; (b) larval host and nectar plants; (c) 
delineated habitat that was rated by the investigator (Pinyon 2011, pp. 
1-39) as either ``moderate'' or ``good'' quality; or (d) larval host 
plants. It was assumed that nectar plants would also be present in 
areas where larval host plants were detected and butterflies were 
observed because both larval host and nectar plants must be in close 
proximity for Mount Charleston blue butterflies to be present (Boyd and 
Murphy 2008, pp. 1-31; Thompson et al. 2014, p. 138).
    (4) We evaluated connectivity corridors of butterfly populations 
between or adjacent to areas of suitable habitat because these areas 
are likely important for butterfly dispersal. In contrast to distances 
moved within a single patch of habitat, which has been estimated to be 
between 10 to 100 m (33 to 330 ft), dispersal can be defined as 
movement between patches of habitat (Bowler and Benton 2005, p. 207). 
Studies suggest that closely related butterfly taxa have more similar 
mobility than distantly related butterfly taxa (Burke et al. 2011, p. 
2284). We determined the approximate maximum dispersal distance of the 
Mount Charleston blue butterfly to be 1,000 m (3,281 ft) based on 
documented movement distances observed during mark-and-recapture 
studies of lycaenid butterflies described to be sedentary. Of the 
studies using mark-and-recapture studies that we examined, we found 
that the furthest distances ranged between 300 and 1,500 m (987 and 
4,920 ft) (Bink 1992 as referenced in Sekar 2012, Table 2; Saarinen 
1993 as cited in Komonen et al. 2008, p. 132; Peterson 1996, p. 1990; 
Lewis et al. 1997, pp. 283, 288-289; Peterson 1997, p. 175; Fischer et 
al. 1999, pp. 43 and 46; Baguette et al. 2000, p. 103; Bourn and Warren 
2000, p. 9; Franz[eacute]n and Ranius 2004, p. 130; Krauss et al. 2004, 
p. 358; Binzenh[ouml]fer et al. 2008, p. 267; Chuluunbaatar et al. 
2009, p. 60; Barua et al. 2011, p. 44; Hovestadt et al. 2011, p. 1073; 
COSEWIC 2012, p. 30). Therefore, we approximated connectivity corridors 
by buffering polygons of suitable habitat by 500 m (2,461 ft), which 
allowed us to determine if polygons of suitable habitat were within the 
approximate 1,000 m (3,281 ft) dispersal distance of each other. Areas 
that did not contain surveyed habitat or were rated as ``poor'' quality 
or ``inadequate'' habitat by investigators were not considered. 
Quarter-quarter sections (see below for description of quarter-quarter 
section) that were bounded on all sides by other quarter-quarter 
sections meeting the above criteria were included to avoid creating 
``doughnut holes'' within corridors.
    (5) Observed locations, suitable habitat, and connectivity 
corridors, as described above, are all considered to be within the 
present geographic range of the subspecies.
    (6) Critical habitat boundaries were delineated using a data layer 
of the Public Land Survey System (PLSS), which includes quarter-quarter 
sections (16 ha (40 ac)). Quarter-quarter sections are designated as 
critical habitat if they contain observed locations, suitable habitat, 
or connectivity corridors. Quarter-quarter sections were used to 
delineate critical habitat boundaries because they provide a readily 
available systematic method to identify areas that encompass the 
physical and biological features essential to the conservation of the 
Mount Charleston blue butterfly and they provide boundaries that are 
easy to describe and interpret for the general public and land 
management agencies. Critical habitat boundaries were derived from the 
outer boundary of the polygons selected from the PLSS quarter-quarter 
sections in the previous steps.
    (7) We removed locations from the critical habitat designation 
based on information received through the notice-and-comment process on 
the proposed rule. Some of these locations overlap slightly with Mount 
Charleston blue butterfly habitat previously mapped by DataSmiths 2007. 
These locations are at the fringe of previously mapped habitat and most 
of these areas lack one or more of the physical or biological features 
or are heavily impacted by public recreation and facilities management. 
We removed a 25-m (82-ft) perimeter distance around established 
boundaries or developed infrastructure that is consistent with the 
conclusions of a study on the Karner blue butterfly (Lycaeides melissa 
samuelis), which indicated that habitat within short distances of 
recreational features may be insufficient to offset recreational 
impacts on butterfly behavior (Bennett et al. 2010, p. 27; Bennett et 
al. 2013, pp. 1794-1795). This distance also is consistent with 
observations that impacts associated with the campgrounds, day-use 
areas, and roads tend to be concentrated within a 25-m (82-ft) buffer 
(Cole 1993, p. 111; Cole 2004, p. 55; Monz et al.2010, p. 556; Swick 
2013).
    Specifically, we removed locations referred to as Dolomite 
Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic Area, Foxtail 
Snow Play Area, Lee Canyon Guard Station, Lee Meadows (extirpated Mount 
Charleston blue butterfly location), McWilliams Campground, Old Mill 
Picnic Area, Youth Camp, and LVSSR base facilities and lift terminals. 
These locations are within the established boundaries or developed 
infrastructure (for example, buildings, roads, parking areas, fire 
pits, base ski lift terminals, etc.) for the above-listed campgrounds, 
day-use areas, and ski area facilities, which have extremely high 
levels of public visitation and associated recreational disturbance. 
High levels of recreational disturbance in these areas have either 
severely degraded available habitat, including host and nectar plants, 
or the intense level of recreational activity severely limits or 
precludes the use of these areas by the Mount Charleston blue 
butterfly. Additionally, small

[[Page 37422]]

``doughnut holes'' and slivers of land encircled by the buffered areas 
are not included the final designation, because these fragments do not 
meet the definition of critical habitat for this subspecies.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for Mount Charleston blue butterfly. 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 would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification, unless the specific action 
would affect the physical or biological features in the adjacent 
critical habitat.
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain the physical 
or biological features to support life-history processes that we have 
determined are essential to the conservation of Mount Charleston blue 
butterfly. Three units are designated, based on the physical or 
biological features being present to support the Mount Charleston blue 
butterfly's life-history processes. All units contain all of the 
identified physical or biological features and support multiple life-
history processes.
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. The coordinates or plot 
points or both on which the map is based are available to the public on 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105, on our 
Internet site http://www.fws.gov/nevada/nv_species/mcb_butterfly.html, 
and at the field office responsible for the designation (see FOR 
FURTHER INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating three units as critical habitat for the Mount 
Charleston blue butterfly. The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat. Those three units are: (1) South Loop, 
(2) Lee Canyon, and (3) North Loop. All three units are occupied. The 
approximate area of each critical habitat unit and the land ownerships 
are listed in Table 1.

 Table 1--Critical Habitat Units for the Mount Charleston Blue Butterfly
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                Land ownership    Size of unit in acres
    Critical habitat unit           by type             (hectares)
------------------------------------------------------------------------
1. South Loop................  Federal.........          2,228.0 (901.6)
                               State...........                        0
                               Local...........                        0
                               Private.........                        0
2. Lee Canyon................  Federal.........        2,569.3 (1,039.7)
                               State...........                        0
                               Local...........                2.2 (0.9)
                               Private.........                1.2 (0.5)
3. North Loop................  Federal.........            412.9 (167.1)
                               State...........                        0
                               Local...........                        0
                               Private.........                        0
                                                ------------------------
    Total....................  Federal.........        5,210.2 (2,108.5)
                               State...........                        0
                               Local...........                2.2 (0.9)
                               Private.........                1.2 (0.5)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Mount Charleston blue 
butterfly, below.

Unit 1: South Loop

    Unit 1 consists of approximately 2,228 ac (902 ha) and is located 
in Clark County, Nevada. This unit extends south and southeast from 
near the summit of Charleston Peak along high-elevation ridges to 
Griffith Peak. The unit likely represents the largest population of 
Mount Charleston blue butterflies and is the southernmost area 
identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies, including: Elevations between 2,500 m (8,200 ft) and 3,500 
m (11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses, with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to minimize impacts resulting from this 
threat (see Special Management Considerations or Protection, above).
    A portion of this unit was burned in July 2013, as part of the 
Carpenter 1 Fire, which burned into habitat of the Mount Charleston 
blue butterfly along the ridgelines between Griffith Peak and South 
Loop, spanning a distance of approximately 3 mi (5 km). Within this

[[Page 37423]]

area, there are low-, moderate-, or high-quality patches of Mount 
Charleston blue butterfly habitat intermixed with non-habitat. The 
majority of Mount Charleston blue butterfly habitat of moderate or high 
quality in this area was classified as having a very low burn-severity 
or low soil burn-severity (Kallstrom 2013, p. 4). Areas with the 
highest observed concentrations of Mount Charleston blue butterflies 
within moderate- and high-quality habitat were outside the fire 
perimeter. Areas of lower quality habitat appear to have had higher 
tree canopy cover and generally experienced low to moderate soil burn-
severity.
    Although the burn in this unit may have had short-term impacts to 
larval host or nectar plants, it is likely that the burn may have long-
term benefits to Mount Charleston blue butterfly habitat by reducing 
canopy cover, thereby providing additional areas for larval host and 
nectar plants to grow, and releasing nutrients (Brown and Smith 2000, 
p. 26) into the soil, improving overall plant health and vigor, 
depending upon successional conditions such as soil types and moisture, 
and seed sources (Kallstrom 2013, p. 4). Therefore, we are designating 
as critical habitat areas that contained the physical or biological 
features essential to the conservation of the Mount Charleston blue 
butterfly prior to the Carpenter 1 Fire, but may have been burned by 
the fire, because we expect that these areas continue to contain the 
physical or biological features essential to conservation of the 
subspecies.
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. The entire unit is within the Mount 
Charleston Wilderness, and southwestern portions of the unit overlap 
with the Carpenter Canyon Research Natural Area. This unit is within 
the area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

Unit 2: Lee Canyon

    Unit 2 consists of approximately 2,569 ac (1,040 ha) of Federal 
land, 2.2 ac (0.9 ha) of local land, and 1.2 ac (0.5 ha) of private 
land, and is located in Clark County, Nevada. This unit extends south 
and southeast from McFarland Peak and along the Bonanza Trail through 
Lee Canyon to slopes below the north side of the North Loop Trail and 
the west side of Mummy Mountain. This unit represents the northernmost 
area identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses, with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by: Loss and degradation of 
habitat due to changes in natural fire regimes and succession; 
implementation of recreational development projects and fuels reduction 
projects; increases of nonnative plants; and the exacerbation of other 
threats from the impacts of climate change, which is anticipated to 
increase drought and extreme precipitation events. Therefore, the 
features essential to the conservation of the species in this unit 
require special management considerations or protection to minimize 
impacts resulting from these threats (see Special Management 
Considerations or Protection, above).
    This unit is completely within the administrative boundaries of the 
U.S. Department of Agriculture, Humboldt-Toiyabe National Forest, 
Spring Mountains National Recreation Area, with less than 1 percent 
owned by private landowners or Clark County. Approximately 33 percent 
of the west side of the unit is within the Mount Charleston Wilderness. 
This unit is within the area addressed by the Spring Mountains National 
Recreation Area Conservation Agreement.

Unit 3: North Loop

    Unit 3 consists of approximately 413 ac (167 ha) and is located in 
Clark County, Nevada. This unit extends northeast from an area between 
Mummy Spring and Fletcher Peak along high-elevation ridges down to an 
area above the State Highway 158. The unit represents the easternmost 
area identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the features essential to the conservation of the 
species in this unit require special management considerations or 
protection to minimize impacts resulting from this threat (see Special 
Management Considerations or Protection, above).
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. Approximately 92 percent of the 
unit is within the Mount Charleston Wilderness. This unit is within the 
area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 434 (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 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

[[Page 37424]]

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 Mount Charleston blue 
butterfly. 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 Mount Charleston blue butterfly. These activities 
include, but are not limited to, actions that would cause the quality, 
quantity, functionality, accessibility, or fragmentation of habitat or 
features to change unfavorably for Mount Charleston blue butterfly. 
Such activities could include, but are not limited to: Ground or soil 
disturbance, either mechanically or manually; clearing or grading; 
erosion control; silviculture; fuels management; fire suppression; 
development; snow management; recreation; feral horse or burro 
management; and herbicide or pesticide use. These activities could 
alter: Invasion rates of invasive or nonnative species, habitat 
necessary for the growth and reproduction of these butterflies and 
their host or nectar plants, and movement of adults between habitat 
patches. Such alterations may directly or cumulatively cause adverse 
effects to Mount Charleston blue butterflies and their life cycles.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] 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.'' There are no 
Department of Defense lands with a completed INRMP within the critical 
habitat designation.

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 she 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. We have not excluded any areas from critical habitat 
under section 4(b)(2) of the Act.

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 an incremental effects 
memorandum (IEM) and screening analysis which together with our 
narrative and interpretation of effects we consider our draft economic 
analysis (DEA) of the proposed critical habitat designation and related 
factors

[[Page 37425]]

(IEc 2014). The analysis, dated May 20, 2014, was made available for 
public review from July 15, 2014, through September 15, 2014 (79 FR 
41225; IEc 2014). The DEA addressed probable economic impacts of 
critical habitat designation for the Mount Charleston blue butterfly. 
Following the close of the comment period, we reviewed and evaluated 
all information submitted during the comment period that pertained to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the the Mount Charleston blue butterfly is summarized below and 
available in the screening analysis for the the Mount Charleston blue 
butterfly (IEc 2014), available at http://www.regulations.gov.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess to the extent practicable, the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the designation of 
critical habitat for the Mount Charleston blue butterfly, first we 
identified, in the IEM dated February 10, 2014, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Federal lands management (Forest Service); (2) fire 
management; (3) forest management; (4) recreation; (5) conservation/
restoration; and (6) development. We considered each industry or 
category individually. Additionally, we considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat affects only activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
the Mount Charleston blue butterfly is present, Federal agencies 
already are required to consult with the Service under section 7 of the 
Act on activities they fund, permit, or implement that may affect the 
species. Consultations to avoid the destruction or adverse modification 
of critical habitat will be incorporated into the existing consultation 
process. Therefore, disproportionate impacts to any geographic area or 
sector are not likely as a result of this critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that can result from the species being listed and those 
attributable to the critical habitat designation (i.e., the difference 
between the jeopardy and adverse modification standards) for the Mount 
Charleston blue butterfly. Because the designation of critical habitat 
for Mount Charleston blue butterfly was proposed shortly after the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those that can result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case helped to inform our evaluation: (1) The essential physical and 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Mount Charleston blue butterfly would also 
likely adversely affect the essential physical and biological features 
of critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
designation of critical habitat.
    The critical habitat designation for the Mount Charleston blue 
butterfly totals approximately 5,214 acres (2,110 hectares) in three 
units, all of which were occupied at the time of listing and contain 
the physical and biological features essential to the conservation of 
the species. In these areas, any actions that may affect the species or 
its habitat would also affect designated critical habitat, and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the Mount Charleston blue butterfly. Therefore, only administrative 
costs are expected in all of the critical habitat designation. While 
this additional analysis will require time and resources by both the 
Federal action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant.
    The Forest Service has administrative oversight of 99.9 percent of 
the critical habitat area and, as the primary Federal action agency in 
section 7 consultations, would incur incremental costs associated with 
the critical habitat designation. In some cases third parties may be 
involved in areas such as Unit 2 in Lee Canyon, particularly where the 
Las Vegas Ski and Snowboard Resort special-use-permit area overlaps. 
However, consultation is expected to occur even in the absence of 
critical habitat, and incremental costs would be limited to 
administrative costs resulting from the potential for adverse 
modification. It is unlikely that there will be any incremental costs 
associated with the 0.1 percent of non-Federal land, for which we do 
not foresee any Federal nexus and thus is outside of the context of 
section 7 of the Act.
    The probable incremental economic impacts of the Mount Charleston 
blue butterfly critical habitat designation are expected to be limited 
to additional administrative effort, as well as minor costs of 
conservation efforts resulting from a small number of future section 7 
consultations. This is due to two factors: (1) All the critical habitat 
units are considered to be occupied by the species, and incremental 
economic impacts of critical habitat designation, other than 
administrative costs, are unlikely; and (2) the majority of critical 
habitat is in designated Wilderness Areas where actions are currently 
limited and few actions are anticipated that will result in section 7 
consultation or associated project modifications. Section 7 
consultations for critical habitat are estimated to range between $410 
and $9,100 per consultation. No more than 12 consultations are 
anticipated to occur in a year. Based upon these estimates, the maximum 
estimated incremental cost is estimated to be no greater than $109,200 
in a given year. Thus, the annual administrative burden is unlikely to 
reach $100 million. Therefore, future probable incremental economic 
impacts are not likely to exceed $100 million in any single year, and 
disproportionate impacts to any geographic area or sector are not 
likely as a result of this critical habitat designation.

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

[[Page 37426]]

exercising her discretion to exclude any areas from this designation of 
critical habitat for the Mount Charleston blue butterfly based on 
economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Southern Nevada Fish and Wildlife 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
Mount Charleston blue butterfly are owned or managed by the Department 
of Defense or Department of Homeland Security, and, therefore, we 
anticipate no impact on national security or homeland security. 
Consequently, the Secretary is not exercising her discretion to exclude 
any areas from this final designation based on impacts on national 
security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we also consider any other 
relevant impacts resulting from the designation of critical habitat. 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 that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that the Clark 
County HCP is the only permitted HCP or other approved management plan 
for the Mount Charleston blue butterfly, and the final designation does 
not include any tribal lands or tribal trust resources. We did not 
receive comments on the designation of critical habitat for the Mount 
Charleston blue butterfly as it relates to the Clark County HCP. We 
anticipate no impact on tribal lands, partnerships, or HCPs from this 
critical habitat designation. Accordingly, the Secretary is not 
exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

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 destroy or adversely modify 
critical habitat. Therefore, under section 7 only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. 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

[[Page 37427]]

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 is relevant to this analysis. Thus, based on information 
in the economic analysis, energy-related impacts associated with Mount 
Charleston blue butterfly 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 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 because because minimal critical habitat is 
within the jurisdiction of small governments. Consequently, we do not 
believe that the critical habitat designation would 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 Mount Charleston blue butterfly in 
a takings implications assessment. As discussed above, the designation 
of critical habitat affects only Federal actions. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. Due 
to current public knowledge of the protections for the subspecies and 
the prohibition against take of the subspecies both within and outside 
of the critical habitat areas, we do not anticipate that property 
values will be affected by the critical habitat designation. Based on 
the best available information, the takings implications assessment 
concludes that this designation of critical habitat for the Mount 
Charleston blue butterfly does not pose significant takings 
implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 Nevada. We did not receive 
official comments or positions on the proposed designation of critical 
habitat for the Mount Charleston blue butterfly from State of Nevada 
agencies. 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).

[[Page 37428]]

    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 Mount Charleston blue 
butterfly. The designated areas of critical habitat are presented on 
maps, and the rule provides several options for the interested public 
to obtain more detailed location information, if desired.

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no tribal 
lands occupied by the Mount Charleston blue butterfly 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 
Mount Charleston blue butterfly that are essential for the conservation 
of the species. Therefore, we are not designating critical habitat for 
the Mount Charleston blue butterfly 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 
Southern Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Pacific Southwest Regional Office and the Southern Nevada 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; and 4201-4245, 
unless otherwise noted.


0
2. Amend Sec.  17.11(h) by revising the entry for ``Butterfly, Mount 
Charleston blue'' under INSECTS in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             INSECTS
 
                                                                      * * * * * * *
Butterfly, Mount Charleston blue.  Icaricia (Plebejus)   U.S.A. (Clark        Entire.............  E                       820     17.95(i)           NA
                                    shasta                County, NV; Spring
                                    charlestonensis.      Mountains).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 37429]]


0
3. In Sec.  17.95, amend paragraph (i) by adding an entry for ``Mount 
Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis),'' in the same order that the species appears in the 
table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
    Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis)
    (1) Critical habitat units are depicted for Clark County, Nevada, 
on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Mount Charleston blue butterfly consist of three components:
    (i) Areas of dynamic habitat between 2,500 meters (m) (8,200 feet 
(ft)) and 3,500 m (11,500 ft) elevation with openings or where 
disturbance provides openings in the canopy that have no more than 50 
percent tree cover (allowing sunlight to reach the ground); widely 
spaced, low (less than 15 centimeters (cm) (0.5 ft) in height) forbs 
and grasses; and exposed soil and rock substrates. When taller grass 
and forb plants greater than or equal to 15 cm (0.5 ft) in height are 
present, the density is less than five per square meter (m\2\) (50 per 
square foot (ft\2\)).
    (ii) The presence of one or more species of host plants required by 
larvae of the Mount Charleston blue butterfly for feeding and growth. 
Known larval host plants are Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, and Astragalus platytropis. 
Densities of host plants must be greater than two per m\2\ (0.2 per 
ft\2\).
    (iii) The presence of one or more species of nectar plants required 
by adult Mount Charleston blue butterflies for reproduction, feeding, 
and growth. Common nectar plants include Erigeron clokeyi, Hymenoxys 
lemmonii, Hymenoxys cooperi, and Eriogonum umbellatum var. versicolor. 
Densities of nectar plants must occur at more than two per m\2\ (0.2 
per ft\2\) for smaller plants, such as E. clokeyi, and more than 0.1 
per m\2\ (0.01 per ft\2\) for larger and taller plants, such as 
Hymenoxys sp. and E. umbellatum. Nectar plants typically occur within 
10 m (33 ft) of larval host plants and, in combination, provide nectar 
during the adult flight period between mid-July and early August. 
Additional nectar sources that could be present in combination with the 
common nectar plants include Antennaria rosea, Cryptantha sp., 
Ericameria nauseosa ssp., Erigeron flagellaris, Guitierrezia sarothrae, 
Monardella odoratissima, Petradoria pumila var. pumila, and Potentilla 
concinna var. concinna.
    (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 
July 30, 2015.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of Bureau of Land Management Public Land Survey 
System quarter-quarter sections. Critical habitat units were then 
mapped using Universal Transverse Mercator (UTM) Zone 11 North, North 
American Datum (NAD) 1983 coordinates. 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/nevada/nv_species/mcb_butterfly.html, at http://www.regulations.gov at Docket No. FWS-R8-
ES-2013-0105, 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) Map of critical habitat units for the Mount Charleston blue 
butterfly follows:
BILLING CODE 4310-55-P

[[Page 37430]]

[GRAPHIC] [TIFF OMITTED] TR30JN15.000

* * * * *

    Dated: June 15, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-15947 Filed 6-29-15; 8:45 am]
 BILLING CODE 4310-55-C