[Federal Register Volume 85, Number 5 (Wednesday, January 8, 2020)]
[Proposed Rules]
[Pages 1018-1050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28461]



[[Page 1017]]

Vol. 85

Wednesday,

No. 5

January 8, 2020

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; Threatened Species 
Status for the Hermes Copper Butterfly With 4(d) Rule and Designation 
of Critical Habitat; Proposed Rule

  Federal Register / Vol. 85 , No. 5 / Wednesday, January 8, 2020 / 
Proposed Rules  

[[Page 1018]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2017-0053; 4500030113]
RIN 1018-BC57


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for the Hermes Copper Butterfly With 4(d) Rule and Designation 
of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Hermes copper butterfly (Lycaena [Hermelycaena] hermes), a 
butterfly species from San Diego County, California, and Baja 
California, Mexico, as a threatened species and propose to designate 
critical habitat for the species under the Endangered Species Act 
(Act). If we finalize this rule as proposed, it would extend the Act's 
protections to this species as described in the proposed rule 
provisions issued under section 4(d) of the Act, and designate 
approximately 14,249 hectares (35,211 acres) of critical habitat in San 
Diego County, California. We also announce the availability of a draft 
economic analysis (DEA) of the proposed designation of critical habitat 
for the Hermes copper butterfly.

DATES: We will accept comments received or postmarked on or before 
March 9, 2020. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. 
Eastern Time on the closing date. We must receive requests for public 
hearings, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by February 24, 2020.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2017-0053, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2017-0053; U.S. Fish and Wildlife 
Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Scott Sobiech, Acting Field 
Supervisor, Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 
250, Carlsbad, CA 92008; telephone 760-431-9440. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.
    Document availability: The draft economic analysis and the Species 
Status Assessment for the Hermes Copper Butterfly are available at 
http://www.fws.gov/carlsbad, at http://www.regulations.gov at Docket 
No. FWS-R8-ES-2017-0053, and at the Carlsbad Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).
    For the proposed critical habitat designation, the coordinates or 
plot points or both from which the maps are generated are included in 
the decisional file and are available at http://www.fws.gov/carlsbad, 
http://www.regulations.gov at Docket No. FWS-R8-ES-2017-0053, and at 
the Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). Any additional tools or supporting information that we may 
develop for this critical habitat designation will also be available at 
the U.S. Fish and Wildlife Service website and Field Office set out 
above, and may also be included in the preamble and/or at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, if a species is 
determined to be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register. When we determine that a species is 
endangered or threatened, we must designate critical habitat to the 
maximum extent prudent and determinable. Listing a species as an 
endangered or threatened species and designations of critical habitat 
can only be completed by issuing a rule.
    What this document does. This rule, if finalized, would add the 
Hermes copper butterfly (Lycaena [Hermelycaena] hermes) to the List of 
Endangered and Threatened Wildlife in title 50 of the Code of Federal 
Regulations as a threatened species (50 CFR 17.11(h)) and extend the 
Act's protections to this species through specific regulations issued 
under section 4(d) of the Act (50 CFR 17.47(d)). The Hermes copper 
butterfly is currently a candidate species for which we have on file 
sufficient information on biological vulnerability and threats to 
support preparation of a listing proposal but for which development of 
a listing regulation had previously been precluded by other higher 
priority listing activities. This proposed rule reassesses all 
available information regarding the status of and threats to the Hermes 
copper butterfly.
    This document also includes a proposed rule to designate critical 
habitat for the Hermes copper butterfly. We have determined that 
designating critical habitat is both prudent and determinable for the 
Hermes copper butterfly, and we propose a total of approximately 14,249 
ha (35,211 ac) for the species in San Diego County, California.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) Overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
Disease or predation; (D) The inadequacy of existing regulatory 
mechanisms; or (E) Other natural or manmade factors affecting its 
continued existence. We have determined that the Hermes copper 
butterfly and its habitat are threatened primarily by wildfire and to a 
lesser extent by habitat fragmentation, isolation, land use change, and 
climate change and drought, and by those threats acting in concert.
    Under the Endangered Species Act, any species that is determined to 
be a threatened or endangered species shall, to the maximum extent 
prudent and determinable, have habitat designated that is considered to 
be critical habitat. 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, the impact on national security, and 
any other relevant impact of specifying any particular area as critical 
habitat. The Secretary may exclude an area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific data available, that the 
failure to designate

[[Page 1019]]

such area as critical habitat will result in the extinction of the 
species.
    Economic analysis. In order to consider economic impacts, we 
prepared an analysis of the economic impacts of the proposed critical 
habitat designation. We hereby announce the availability of the draft 
economic analysis and seek public review and comment.
    Peer review. We requested comments on the Species Status Assessment 
for the Hermes Copper Butterfly (Lycaena [Hermelycaena] hermes) (SSA) 
from independent specialists to ensure that we based our designation on 
scientifically sound data, assumptions, and analyses. Comments from our 
peer reviewers were incorporated into the SSA and informed this 
proposed rule. We invite any additional comment from the peer reviewers 
on the revised SSA during the public comment period.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from the public, other concerned governmental 
agencies, Native American Tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) The Hermes copper butterfly's biology, range, and population 
trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Information on activities or areas that might warrant being 
exempted from the section 9(a)(1) take prohibitions proposed in this 
rule under section 4(d) of the Act. The Service will evaluate ideas 
provided by the public in considering the extent of prohibitions that 
are necessary and advisable to provide for the conservation of the 
species.
    (5) Any additional conservation opportunities, such as mitigation 
banks, candidate conservation agreements with assurances, or habitat 
conservation plans that could provide for conservation and regulatory 
certainty for the development community.
    (6) Any additional information on Hermes copper butterfly 
occurrence locations or threats impacting Hermes copper butterfly 
habitat in northern Baja California, Mexico, particularly impacts of 
wildfire or development.
    (7) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including information to inform the following factors such that a 
designation of critical habitat may be determined to be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (d) No areas meet the definition of critical habitat.
    (8) Specific information on:
    (a) The amount and distribution of Hermes copper butterfly habitat;
    (b) What areas within the geographical area currently occupied by 
the species, that contain the physical or biological features essential 
to the conservation of the species, should be included in the 
designation and why;
    (c) Special management considerations or protection that may be 
needed for the physical or biological features essential to the 
conservation of the species in critical habitat areas we are proposing, 
including managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species. We particularly seek comments 
regarding:
    (i) Whether occupied areas are inadequate for the conservation of 
the species; and,
    (ii) Specific information that supports the determination that 
unoccupied areas will, with reasonable certainty, contribute to the 
conservation of the species and, contain at least one physical or 
biological feature essential to the conservation of the species.
    (9) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (10) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding areas that may 
be impacted.
    (11) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (12) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (13) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the associated documents of the 
draft economic analysis, and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    (14) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. All 
comments submitted electronically via http://www.regulations.gov will 
be presented on the website in their entirety as submitted. For 
comments submitted via hard copy, we will post your entire comment--
including your personal identifying information--on

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http://www.regulations.gov. You may request at the top of your document 
that we withhold personal information such as your street address, 
phone number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''

Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270) and our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we have sought the expert opinions of 
appropriate and independent specialists on the SSA report to ensure 
that our listing and critical habitat proposals are based on 
scientifically sound data, assumptions, and analyses. We sent the SSA 
report to eight independent peer reviewers and received six responses. 
The peer reviewers we selected have expertise in butterfly biology, 
habitat, genetics, and threats (factors negatively affecting the 
species), and their comments on the SSA helped inform our proposals. 
These comments will be available along with other public comments in 
the docket for this proposed rule.

Previous Federal Actions

    The Hermes copper butterfly was included as a Category 2 candidate 
species in our November 21, 1991 (56 FR 58804), and November 15, 1994 
(59 FR 58982), Candidate Notices of Review (CNOR). Category 2 included 
taxa for which information in the Service's possession indicated that a 
proposed listing rule was possibly appropriate, but for which 
sufficient data on biological vulnerability and threats were not 
available to support a proposed rule. In the CNOR published on February 
28, 1996 (61 FR 7596), the Service announced a revised list of plant 
and animal taxa that were regarded as candidates for possible addition 
to the Lists of Endangered and Threatened Wildlife and Plants. The 
revised candidate list included only former Category 1 species. All 
former Category 2 species were dropped from the list in order to reduce 
confusion about the conservation status of these species and to clarify 
that the Service no longer regarded these species as candidates for 
listing. Since the Hermes copper butterfly was a Category 2 species, it 
was no longer recognized as a candidate species as of the February 28, 
1996, CNOR.
    On October 26, 2004, we received a petition dated October 25, 2004, 
from the Center for Biological Diversity (CBD) and David Hogan 
requesting that Hermes copper butterfly be listed as endangered under 
the Act and that critical habitat be designated. On August 8, 2006, we 
published a 90-day finding for the Hermes copper butterfly in the 
Federal Register (71 FR 44966). The finding concluded that the petition 
and information in our files did not present substantial scientific or 
commercial information indicating that listing Hermes copper butterfly 
may be warranted. For a detailed history of Federal actions involving 
Hermes copper butterfly prior to 2004, please see the August 8, 2006, 
Federal Register document (71 FR 44966).
    On March 17, 2009, CBD and David Hogan filed a complaint for 
declaratory and injunctive relief challenging the Service's decision 
not to list Hermes copper butterfly as endangered or threatened under 
the Act. In a settlement agreement dated October 23, 2009 (Case No. 09-
0533 S.D. Cal.), the Service agreed to submit a new 90-day petition 
finding to the Federal Register by May 13, 2010, for Hermes copper 
butterfly. On May 4, 2010, we published a 90-day finding in the Federal 
Register (75 FR 23654) that found the petition did present substantial 
scientific or commercial information indicating that listing the Hermes 
copper butterfly may be warranted.
    On April 14, 2011, we published a 12-month finding stating that the 
Hermes copper butterfly was warranted for listing as threatened or 
endangered under the Act (76 FR 20918). However, we also found that 
listing the Hermes copper butterfly was precluded by higher priority 
listing actions. Based on species-level taxonomic classification and on 
high-magnitude but non-imminent threats, we assigned the Hermes copper 
butterfly a listing priority number of 5 and added it to the list of 
candidate species. Candidate species are those fish, wildlife, and 
plants for which we have on file sufficient information on biological 
vulnerability and threats to support preparation of a listing proposal, 
but for which development of a listing regulation is precluded by other 
higher priority listing activities. We reaffirmed the Hermes copper 
butterfly's candidate status in the annual CNOR in subsequent years (76 
FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 
70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, 
December 24, 2015).
    In the 2016 CNOR (81 FR 87246, December 2, 2016), we announced 
that, although listing Hermes copper butterfly continued to be 
warranted but precluded at the date of publication of the notice, we 
were working on a thorough review of all available data. This proposed 
listing rule constitutes completion of our status review for this 
candidate species.

Background

    A thorough review of the taxonomy, life history, and ecology of the 
Hermes copper butterfly is presented in the Species Status Assessment 
for the Hermes Copper Butterfly (Lycaena [Hermelycaena] hermes) Version 
1.1 (Service 2018a), which is available at https://regulations.gov/ at 
Docket No. FWS-R8-ES-2017-0053).
    The Hermes copper butterfly is a small-sized butterfly historically 
found in San Diego County, California, and northwestern Baja 
California, Mexico (Service 2018a, Figure 4). There are 95 known 
historical or extant Hermes copper butterfly occurrences in the United 
States and northwestern Baja California, Mexico; 45 are extant or 
presumed extant (all in the United States), 40 are presumed extirpated, 
and 10 are permanently extirpated (Table 1).
    While most recent scientific studies support recognition of Hermes 
copper butterfly as belonging to the monotypic

[[Page 1021]]

genus Hermelycaena, Hermes copper butterfly was recognized as Lycaena 
hermes (subgenus Hermelycaena) in the most recent peer-reviewed 
taxonomic treatment (Pelham 2008, p. 191). Therefore, we recognize 
Hermes copper butterfly as Lycaena hermes throughout the SSA (Service 
2018a), this proposed rule, and subsequent documents.
    Hermes copper butterfly individuals diapause (undergo a low 
metabolic rate resting stage) as eggs during the late summer, fall, and 
winter (Deutschman et al. 2010, p. 4). Adults are active May through 
July, when females deposit single eggs exclusively on Rhamnus crocea 
shrubs (spiny redberry; Thorne 1963, p. 143; Emmel and Emmel 1973, p. 
62) in coastal sage scrub and chaparral vegetation. Adult occupancy and 
feeding are also associated with presence of their primary nectar 
source, the shrub Eriogonum fasciculatum (California buckwheat), 
although other nectar sources may provide equivalent or supplemental 
adult nutrition. Hermes copper butterflies are considered poor 
dispersers, but they appear to have limited directed movement ability 
and have been recaptured up to 0.7 mi (1.1 km) from the point of 
release (Marschalek and Klein 2010, pp. 727-728). More information is 
needed to fully understand movement patterns of Hermes copper 
butterfly, especially across vegetation types; however, dispersal is 
likely aided by winds but inhibited by lack of dispersal corridor-
connectivity areas in many areas (Deutschman et al. 2010, p. 17).
    There are two types of ``habitat connectivity'' important to the 
Hermes copper butterfly. Hermes copper butterflies need within-habitat 
patch connectivity--an unfragmented habitat patch where reproduction 
occurs. Habitat patches are a collection of host plants and host plant 
patches among which adult butterflies readily and randomly move during 
a flight season (any given butterfly is just as likely to be found 
anywhere within that area). Butterflies must be free and likely to move 
among individual host plants and patches of host plants within a 
habitat patch. They also require dispersal corridor-connectivity areas, 
which are undeveloped wildlands with suitable vegetation structure 
between habitat patches close enough that recolonization of a formerly 
occupied habitat patch is likely. We refer to both types of 
connectivity in this proposed rule.

     Table 1--Hermes Copper Butterfly Occurrences in the United States and Mexico. Year Is Given for Any Known Megafire That Impacted an Occurrence.
                       Approximate Percent of Occurrence Affected by Last Fire Is Given if Occurrence Is Extant or Presumed Extant
                                                           [See also service 2018a, Figure 12]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Accuracy
     Map No.         Occurrence name     EU \1\    Size \2\  Last record      \3\         Status \4\           Megafire year (%)       Reason extirpated
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................  Bonsall...........  WGF        NC                1963           3  Presumed            ..........................  Development
                                                                                       Extirpated.                                     Isolation.
2................  East San Elijo      CH         NC                1979           2  Presumed            ..........................  Development
                    Hills.                                                             Extirpated.                                     Isolation.
3................  San Elijo Hills...  CH         NC                1957           3  Extirpated........  ..........................  Development
                                                                                                                                       Isolation.
4................  Elfin Forest......  CH         NC                2011           1  Extant............  ..........................  ..................
5................  Carlsbad..........  CH         NC            Pre-1963           3  Extirpated........  ..........................  Development.
6................  Lake Hodges.......  CH         NC                1982           3  Presumed            2007......................  Development
                                                                                       Extirpated.                                     Isolation Fire.
7................  Rancho Santa Fe...  CH         NC                2004           1  Presumed            2007......................  Development
                                                                                       Extirpated.                                     Isolation Fire.
8................  Black Mountain....  CH         NC                2004           1  Presumed Extant...  ..........................  ..................
9................  South Black         CH         NC            Pre-1963           3  Extirpated........  ..........................  Development.
                    Mountain.
10...............  Van Dam Peak......  CH         NC                2011           1  Extant............  ..........................  ..................
11...............  Sabre Springs.....  CH         NC                2001           1  Presumed            ..........................  Development
                                                                                       Extirpated.                                     Isolation.
12...............  Lopez Canyon......  CT         Core              2011           1  Extant............  ..........................  ..................
13...............  Mira Mesa.........  CT         NC            Pre-1963           3  Extirpated........  ..........................  Development.
14...............  West Mira Mesa....  CT         NC            Pre-1963           3  Extirpated........  ..........................  Development.
15...............  Northeast Miramar.  CH         Core              2000           1  Presumed            2003......................  Fire.
                                                                                       Extirpated.
16...............  Southeast Miramar.  CH         NC                1998           2  Presumed            2003......................  Fire.
                                                                                       Extirpated.
17...............  Miramar...........  CH         Core              2000           1  Presumed            2003......................  Fire.
                                                                                       Extirpated.
18...............  West Miramar......  CT         NC                1998           2  Presumed            2003......................  Fire.
                                                                                       Extirpated.
19...............  Miramar Airfield..  CT         NC            Pre-1963           3  Presumed            2003......................  Fire.
                                                                                       Extirpated.
20...............  South Miramar.....  CH         NC                2000           1  Presumed            2003......................  Fire.
                                                                                       Extirpated.
21...............  Sycamore Canyon...  WGF        Core              2003           1  Presumed            2003......................  Fire.
                                                                                       Extirpated.
22...............  South Sycamore      WGF        NC                2000           1  Presumed            2003......................  Fire.
                    Canyon.                                                            Extirpated.
23...............  North Santee......  CH         Core              2005           1  Presumed Extant...  2003 (60%)................  ..................
24...............  Santee............  CH         NC                1967           3  Extirpated........  ..........................  Development.
25...............  Santee Lakes......  CH         NC                2001           1  Presumed            2003......................  Development Fire.
                                                                                       Extirpated.
26...............  Mission Trails....  CH         Core              2010           1  Extant............  2003 (60%)................  Fire (pre-2003,
                                                                                                                                       recolonized).
27...............  North Mission       CH         NC                2003           1  Presumed            2003......................  Fire.
                    Trails.                                                            Extirpated.
28...............  Cowles Mountain...  CH         NC                1973           2  Presumed Extant...  ..........................  ..................
29...............  South Mission       CH         NC                1978           3  Presumed            ..........................  Development
                    Trails.                                                            Extirpated.                                     Isolation.
30...............  Admiral Baker.....  CH         NC                2015           1  Extant............  ..........................  ..................
31...............  Kearny Mesa.......  CT         NC                1939           3  Extirpated........  ..........................  Development.
32...............  Mission Valley....  CT         NC            Pre-1963           3  Extirpated........  ..........................  Development.
33...............  West Mission        CT         NC                1908           3  Extirpated........  ..........................  Development.
                    Valley.
34...............  San Diego State     CT         NC            Pre-1963           3  Presumed            ..........................  Development.
                    University.                                                        Extirpated.
35...............  La Mesa...........  CH         NC            Pre-1963           3  Presumed            ..........................  Development.
                                                                                       Extirpated.
36...............  Mt. Helix.........  CH         NC            Pre-1963           3  Presumed            ..........................  Development.
                                                                                       Extirpated.
37...............  East El Cajon.....  CH         NC            Pre-1963           3  Presumed            ..........................  Development.
                                                                                       Extirpated.
38...............  Dictionary Hill...  CT         NC                1962           2  Presumed Extant...  ..........................  ..................
39...............  El Monte..........  CH         NC                1960           2  Presumed            2003......................  Development Fire.
                                                                                       Extirpated.
40...............  BLM Truck Trail...  WGF        Core              2006           1  Presumed extant...  2003 (90%)................  Fire
                                                                                                                                       (recolonized?).
41...............  North Crestridge..  WGF        NC                1981           2  Presumed            1970, 2003................  Fire.
                                                                                       Extirpated.
42...............  Northeast           WGF        NC                1963           2  Presumed Extant...  2003 (25%)................  ..................
                    Crestridge.
43...............  East Crestridge...  WGF        NC                2003           1  Presumed Extant...  1970, 2003 (50%)..........  ..................

[[Page 1022]]

 
44...............  Crestridge........  WGF        Core              2014           1  Extant............  1970, 2003 (80%)..........  ..................
45...............  Boulder Creek Road  PC         Core              2017           1  Extant............  2003 (100%)...............  Fire
                                                                                                                                       (recolonized?).
46...............  North Guatay        PC         NC                2004           1  Presumed Extant...  2003 (10%)................  ..................
                    Mountain.
47...............  South Guatay        PC         NC                2010           1  Extant............  1970......................  ..................
                    Mountain.
48...............  Pine Valley.......  PC         NC            Pre-1963           3  Presumed Extant...  ..........................  ..................
49...............  Descanso..........  PC         Core              2017           1  Extant............  1970, 2003 (50%)..........  ..................
50...............  Japutal...........  WGF        Core              2012           1  Extant............  1970......................  ..................
51...............  East Japutal......  WGF        NC                2010           1  Extant............  1970......................  ..................
52...............  South Japutal.....  WGF        Core              2010           1  Extant............  1970......................  ..................
53...............  Corte Madera......  PC         NC            Pre-1963           3  Presumed Extant...  1970......................  ..................
54...............  Alpine............  WGF        Core              2011           1  Extant............  1970......................  ..................
55...............  East Alpine.......  WGF        NC            Pre-1963           3  Presumed Extant...  1970......................  ..................
56...............  Willows (Viejas     WGF        NC                2003           1  Presumed            2003......................  Fire.
                    Grade Road).                                                       Extirpated.
57...............  Dehesa............  CH         NC            Pre-1963           3  Presumed Extant...  1970......................  ..................
58...............  Loveland Reservoir  WGF        Core              2012           1  Extant............  1970......................  ..................
59...............  East Loveland       WGF        NC                2011           1  Extant............  1970......................  ..................
                    Reservoir.
60...............  West Loveland       CH         NC                2009           1  Extant............  1970......................  ..................
                    Reservoir.
61...............  Hidden Glen.......  WGF        NC                2010           1  Extant............  1970......................  ..................
62...............  McGinty Mountain..  CH         Core              2014           1  Extant............  1970......................  ..................
63...............  East McGinty        WGF        NC                2001           2  Presumed Extant...  1970......................  ..................
                    Mountain.
64...............  North Rancho San    CH         NC            Pre-1963           3  Extirpated........  1970......................  Development
                    Diego.                                                                                                             Isolation.
65...............  Rancho San Diego..  CH         Core              2011           1  Extant............  1970, 2007 (5%)...........  ..................
66...............  South Rancho San    CH         NC                2007           1  Presumed Extant...  1970, 2007 (50%)..........  ..................
                    Diego.
67...............  San Miguel          CH         Core              2007           1  Presumed            1970, 2007................  Fire.
                    Mountain.                                                          Extirpated.
68...............  South San Miguel    CH         NC                2004           1  Presumed Extant...  1970, 2007 (50%)..........  ..................
                    Mountain.
69...............  North Jamul.......  CH         Core              2004           1  Presumed Extant...  1970, 2003 (5%)...........  ..................
70...............  North Rancho Jamul  CH         NC                2007           1  Presumed            2003, 2007................  Fire.
                                                                                       Extirpated.
71...............  Rancho Jamul......  CH         Core              2003           1  Presumed            2003, 2007................  Fire.
                                                                                       Extirpated.
72...............  East Rancho Jamul.  CH         NC                2007           1  Presumed Extant...  1970, 2003, 2007 (5%).....  ..................
73...............  Sycuan Peak.......  WGF        Core              2016           1  Extant............  1970......................  ..................
74...............  Skyline Truck       WGF        Core              2017           1  Extant............  1970......................  ..................
                    Trail.
75...............  Lyons Peak........  WGF        NC                2003           1  Presumed Extant...  1970, 2007 (50%)..........  ..................
76...............  Gaskill Peak......  WGF        NC                2010           1  Extant............  1970......................  ..................
77...............  Lawson Valley.....  WGF        Core              2017           1  Extant............  1970, 2007 (40%)..........  ..................
78...............  Bratton Valley....  WGF        NC            Pre-1963           3  Presumed            1970, 2007................  Fire.
                                                                                       Extirpated.
79...............  Hollenbeck Canyon.  WGF        Core          \5\ 2016           1  Presumed            1970, 2007................  Fire.
                                                                                       Extirpated \5\.
80...............  Southeast           WGF        NC                2007           1  Presumed            1970, 2007................  Fire.
                    Hollenbeck Canyon.                                                 Extirpated.
81...............  South Hollenbeck    CH         NC            Pre-1963           3  Presumed            1970, 2003, 2007..........  Fire.
                    Canyon.                                                            Extirpated.
82...............  West Hollenbeck     CH         NC                2007           1  Presumed            1970, 2007................  Fire.
                    Canyon.                                                            Extirpated.
83...............  Otay Mountain.....  WGF        NC                1979           2  Presumed            2003, 2007................  Fire.
                                                                                       Extirpated.
84...............  South Otay          WGF        NC            Pre-1963           3  Presumed            2003, 2007................  Fire.
                    Mountain.                                                          Extirpated.
85...............  Dulzura...........  WGF        NC                2005           1  Presumed            2007......................  Fire.
                                                                                       Extirpated.
86...............  Deerhorn Valley...  WGF        NC                1970           3  Presumed            2007......................  Fire.
                                                                                       Extirpated.
87...............  North Hartley Peak  WGF        NC                2010           1  Extant............  2007 (100%)...............  Fire
                                                                                                                                       (recolonized?).
88...............  South Hartley Peak  WGF        NC                2010           1  Extant............  2007 (50%)................  ..................
89...............  North Portrero....  WGF        Core              2010           1  Extant............  2007 (25%)................  ..................
90...............  South Portrero....  WGF        Core              2012           1  Extant............  ..........................  ..................
91...............  Tecate Peak.......  WGF        NC                1980           3  Presumed            2007......................  Fire.
                                                                                       Extirpated.
92...............  Otay Mesa.........  CT         NC            Pre-1920           3  Presumed            ..........................  Development
                                                                                       Extirpated.                                     Isolation.
                   Mexico \6\........  .........  .........  ...........  ..........  ..................  ..........................  ..................
93...............  Salsipuedes.......  n/a        NC                1983           3  Presumed            2014......................  Fire.
                                                                                       Extirpated.
94...............  Santo Tomas.......  n/a        NC            Pre-1920           3  Presumed            2003......................  Fire.
                                                                                       Extirpated.
95...............  North Ensenada....  n/a        NC                1936           3  Presumed            2005, 2014................  Fire.
                                                                                       Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ California Ecological Units: CH = Coastal Hills; CT = Coastal Terraces; WGF = Western Granitic Foothills; PC = Palomar-Cuyamaca Peak.
\2\ NC means ``non-core.'' ``Core''/large geographic footprint defined by a total area within \1/2\ km of Hermes copper butterfly records greater than
  176 hectares (435 acres).
\3\ Geographic accuracy categories: 1 means recorded GPS coordinates or accurate map; 2 means relatively accurate specimen collection site label or map;
  3 means site name record or map only accurate enough for determining species' range (not used to determine size, or in mapping if within 1.5 km of a
  higher accuracy record).
\4\ ``Extirpated'' means associated habitat has all been developed. ``Presumed extirpated'' means the record location is developed but there is a
  significant amount of remaining undeveloped habitat, or all records within a 2003 or later fire footprint and no post-fire butterfly records.
  ``Presumed extant'' means unburned or post-fire record >10 years old. ``Extant'' means there is a record <10 years old in unburned habitat.
\5\ At least one adult observed after 2015 translocation, may not represent breeding.
\6\ Although records are low accuracy, extirpation of populations in Mexico is presumed due to numerous large fires in the area between 2003 and 2014
  (NASA imagery).


[[Page 1023]]

Summary of Analysis

    To assess Hermes copper butterfly viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (together, the 3Rs) (Shaffer and Stein 2000, pp. 306-
310). Briefly, resiliency supports the ability of the species to 
withstand environmental stochasticity (for example, wet or dry, warm or 
cold years); representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes); and redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, hurricanes). In 
general, the more redundant, representative, and resilient a species 
is, the more likely it is to sustain populations over time, even under 
changing environmental conditions. Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The assessment process used to develop the SSA (Service 2018a) can 
be categorized into three sequential stages. During the first stage, we 
used the principles of resiliency, redundancy, and representation to 
evaluate the Hermes copper butterfly's life-history needs. The next 
stage involved an assessment of the historical and current condition of 
the species' demographics and habitat characteristics, including an 
explanation of how the Hermes copper butterfly arrived at its current 
condition. The final stage involved making predictions about the 
species' response to positive and negative environmental and 
anthropogenic influences. This process used the best scientific and 
commercial data available to characterize viability as the ability of 
the Hermes copper butterfly to sustain populations in the wild over 
time.
    In the SSA (Service 2018a), we describe the ecological needs of the 
Hermes copper butterfly at the hierarchical levels of individual, 
population, and species. There are also spatial and temporal components 
to hierarchical resource needs, reflected in the average area occupied 
by and ``life expectancy'' of each ecological entity. Individual needs 
are met and resource availability should be assessed at the adult male 
territory scale on an annual basis, reflecting the life span of an 
individual (from egg to adult). Population-level resilience needs are 
met and resource availability should be assessed on the habitat patch 
or metapopulation (interconnected habitat patches) scale over a period 
of decades. Populations or subpopulations persist in intact habitat 
until they are extirpated by stochastic events such as wildfire, to 
eventually be replaced as habitat is recolonized (18 years is the 
estimated time it took for the Mission Trails occurrence 
recolonization). Species-level viability needs are assessed and must be 
met at a range-wide scale if the species is to avoid extinction. The 
following list describes the Hermes copper butterfly's ecological 
needs:
    (1) Individual Resource Needs:
    (a) Egg: Suitable spiny redberry stems for substrate.
    (b) Larvae: Suitable spiny redberry leaf tissue for development.
    (c) Pupae: Suitable leaves for pupation.
    (d) Adults: Suitable spiny redberry stem tissue for oviposition; 
nectar sources (primarily California buckwheat); mates.
    (2) Population Needs:
    (a) Resource needs and/or circumstances: Habitat elements required 
by populations include spiny redberry bushes (quantity uncertain, but 
not isolated individuals) and associated stands of California buckwheat 
or similar nectar sources.
    (b) Population-level redundancy: Populations must have enough 
individuals (population growth) in ``good years'' that after 
reproduction is limited by poor environmental conditions such as 
drought in intervening ``bad years,'' individuals can still find mates. 
Alternatively, there need to be enough diapausing eggs to wait out a 
bad year and restore the average population size or greater in the 
subsequent year. That is, populations are always large enough to 
persist through expected periods of population decline.
    (c) Population-level representation: It is unclear how susceptible 
the Hermes copper butterfly is to inbreeding depression. A mix of open, 
sunny areas should be present within habitat patches and stands of 
California buckwheat for nectar in the vicinity of spiny redberry host 
plants. Additionally, individuals must be distributed over a large 
enough area (population footprint/distribution) that not all are likely 
to be killed by stochastic events such as wildfire.
    (3) Species Needs:
    (a) Resource needs and/or circumstances: Dispersal corridor-
connectivity areas among subpopulations to maintain metapopulation 
dynamics. For Hermes copper butterfly, this means suitable corridor 
habitat with suitable intervening vegetation structure and topography 
between habitat patches that are close enough so that recolonization of 
habitat patches where a subpopulation was extirpated is likely. 
Apparent impediments to dispersal include forested, riparian, and 
developed areas.
    (b) Species-level redundancy: 95 known historical or extant Hermes 
copper butterfly occurrences have been documented in southern 
California, United States, and northwestern Baja California, Mexico: 45 
are extant or presumed extant (all in the United States), 40 are 
presumed extirpated, and 10 are permanently extirpated (Table 1). In 
order to retain the species-level redundancy required for species 
viability, populations and temporarily unoccupied habitats must be 
distributed throughout the species' range in sufficient numbers and in 
a geographic configuration that supports dispersal corridor-
connectivity areas described in (a) above.
    (c) Species-level representation: Populations must be distributed 
in a variety of habitats (including all four California Ecological 
Units; Service 2018a, p. 58) so that there are always some populations 
experiencing conditions that support reproductive success. In 
especially warm, dry years, populations in wetter habitats should 
experience the highest population growth rates within the species' 
range, and in colder, wetter years populations in drier habitats should 
experience the highest growth rates. Populations should be represented 
across a continuum of elevation levels from the coast to the mountain 
foothills. There is currently only one known extant occurrence 
remaining with marine climate influence, four with montane climate 
influence, and the remainder at intermediate elevations with a more 
arid climate (Service 2018a, p. 55). Those populations in higher 
elevation, cooler habitats, and coastal habitats with more marine 
influence are less susceptible to a warming climate and are, therefore, 
most important to maintain.

Summary of Factors Affecting the Species

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. We completed a comprehensive 
assessment of the biological status of the Hermes copper butterfly and 
prepared a report of the assessment, which provides a thorough account 
of the species' overall viability. We generally define viability as the 
ability of the species to sustain

[[Page 1024]]

populations in the natural ecosystem for the foreseeable future.
    The SSA (Service 2018a) documents the results of our comprehensive 
biological status review for the Hermes copper butterfly, including an 
assessment of the potential threats to the species. The SSA does not 
represent a decision by the Service on whether the Hermes copper 
butterfly should be proposed for listing as an endangered or threatened 
species under the Act. The SSA does, however, provide the scientific 
basis that informs our regulatory decision, which involves the further 
application of standards within the Act and its implementing 
regulations and policies. In this section, we summarize the conclusions 
of the SSA report, which can be accessed at Docket No. FWS-R8-ES-2017-
0053 on http://www.regulations.gov and at http://www.fws.gov/carlsbad.
    To evaluate the current and future viability of the Hermes copper 
butterfly, we assessed a range of conditions to allow us to consider 
the species' resiliency, redundancy, and representation. We use the 
terms ``stressor'' and ``threat'' interchangeably as any action or 
condition that is known to or is reasonably likely to negatively affect 
individuals of a species. This includes those actions or conditions 
that have a direct impact on individuals, as well as those that affect 
individuals through alteration of their habitat or required resources. 
The mere identification of ``threats'' is not sufficient to compel a 
finding that listing is warranted. Describing the negative effects of 
the action or condition (i.e., ``threats'') in light of the exposure, 
timing, and scale at the individual, population, and species levels 
provides a clear basis upon which to make our determination. In 
determining whether a species meets the definition of an ``endangered 
species'' or a ``threatened species,'' we have considered the factors 
under section 4(a)(1) and assessed the cumulative effect that the 
threats identified within the factors--as ameliorated or exacerbated by 
any existing regulatory mechanisms or conservation efforts--will have 
on the species now and in the foreseeable future.
    The following sections include summary evaluations of five threats 
impacting the Hermes copper butterfly or its habitat, including 
wildfire (Factor A), land use change (Factor A), habitat fragmentation 
and isolation (Factor A), climate change (Factor E), and drought 
(Factor E); as well as evaluating the cumulative effect of these on the 
species, including synergistic interactions between the threats and the 
vulnerability of the species resulting from small population size. We 
also consider the impacts of existing regulatory mechanisms (Factor D) 
on all existing threats (Service 2018a, pp. 33-54). We also note that 
potential impacts associated with overutilization (Factor B), disease 
(Factor C), and predation (Factor C) were evaluated but found to have 
minimal to no impact on the species (Service 2018a, pp. 33-54).
    For the purpose of this analysis, we generally define viability as 
the ability of the species to sustain populations in the natural 
ecosystem for the foreseeable future--in this case, 30 years. We chose 
30 years because it is within the range of the available hydrological 
and climate change model forecasts, fire hazard period calculations, 
and the fire-return interval estimates for habitat-vegetation 
associations that support the Hermes copper butterfly.

Current Condition

Wildfire
    Wildfire impacts both Hermes copper butterfly and its habitat. The 
vegetation types that support Hermes copper butterfly--chaparral and 
coastal sage scrub--are prone to relatively frequent wildfire 
ignitions, and many plant species that characterize those habitat types 
are fire-adapted. The Hermes copper butterfly's host plant, spiny 
redberry, resprouts after fires and is relatively resilient to frequent 
burns (Keeley 1998, p. 258). The effect of wildfire on Hermes copper 
butterfly's primary nectar source California buckwheat is more 
complicated. California buckwheat is a facultative seeder that has 
minimal resprouting capability (approximately 10 percent) for young 
individuals (Keeley 2006, p. 375). Wildfires cause high mortality in 
California buckwheat, and densities are reduced the following year 
within burned areas (Zedler et al. 1983, p. 814); however, California 
buckwheat recolonizes relatively quickly (compared to other coastal 
sage scrub species) if post-fire conditions are suitable.
    The historical fire regime in southern California likely was 
characterized by many small, lightning-ignited fires in the summer and 
a few infrequent large fires in the fall (Keeley and Fotheringham 2003, 
pp. 242-243). These infrequent, large, high-intensity wildfires, so-
called ``megafires'' (defined in the SSA as those fires greater than 
16,187 hectares (ha) (40,000 acres (ac)) in size) (Service 2018a, p. 
33), burned the landscape long before Europeans settled the Pacific 
coast (Keeley and Zedler 2009, p. 90). As such, the current pattern of 
small, low-intensity fires with large infrequent fires is consistent 
with that of historical regimes (Keeley and Zedler 2009, p. 69). 
Therefore, habitat that supports Hermes copper butterfly is naturally 
adapted to fire and has some natural resilience to impacts from 
wildfire.
    However, in recent decades, wildfire has been increasing in both 
frequency and magnitude (Safford and Van de Water 2014, pp. i, 31-35). 
Annual mean area under extreme fire risk has increased steadily in 
California since 1979, and 2014 ranked highest in the history of the 
State (Yoon et al. 2015, p. S5).
    For the historical range of the Hermes copper butterfly, the fire 
rotation interval decreased from 68 (1910-2000) to 49 years (1925-2015) 
(Service 2017, entire). In other words, the amount of time it took for 
all burned areas to add up to the total range decreased when the last 
15 years of data were added to the analysis. A change in only 17 
percent of the time period analyzed resulted in a 28 percent decrease 
in fire rotation interval (Service 2017, entire).
    Increasing fire frequency and size is of particular concern for the 
Hermes copper butterfly because of how long it can take for habitat to 
be recolonized after wildfire. For example, in Mission Trails Park the 
2,596-ha (7,303-ac) ``Assist #59'' Fire in 1981 and the smaller 51-ha 
(126-ac) ``Assist #14'' Fire in 1983 (no significant overlap between 
acreages burned by the fires), resulted in an approximate 18-year 
extirpation of the Mission Trails Park Hermes copper butterfly 
occurrence (Klein and Faulkner 2003, pp. 96, 97).
    To assess the impacts of fire on the Hermes copper butterfly, we 
examined maps of recent high-fire-hazard areas in San Diego County 
(Service 2018a, Figure 8). Almost all remaining habitat within mapped 
Hermes copper butterfly occurrences falls within the ``very high'' fire 
hazard severity zone for San Diego County (Service 2018a, Figure 8). 
Areas identified in our analysis as most vulnerable to extirpation by 
wildfire include most occupied and potentially occupied Hermes copper 
butterfly habitats in San Diego County within the southern portion of 
the range. Twenty-eight potential source occurrences for recolonization 
of recently burned habitat fall within a contiguous area that has not 
recently burned (Service 2018a, Figure 7), and where the fire hazard is 
considered high (Service 2018a, Figure 8).
    Although habitat that supports Hermes copper butterfly is adapted 
to fire, increased fire frequency can still

[[Page 1025]]

have detrimental effects. Frequent fires open up the landscape, making 
the habitat more vulnerable to invasive, nonnative plants and 
vegetation type-conversion (Keeley et al. 2005, p. 2117). The extent of 
invasion of nonnative plants and type conversion in areas specifically 
inhabited by Hermes copper butterfly is unknown. However, wildfire 
clearly results in at least temporary reductions in suitable habitat 
for Hermes copper butterfly and may result in lower densities of 
California buckwheat (Zedler et al. 1983, p. 814; Keeley 2006, p. 375; 
Marschalek and Klein 2010, p. 728). Although Keeley and Fotheringham 
(2003, p. 244) indicated that continued habitat disturbance, such as 
fire, will result in conversion of native shrublands to nonnative 
grasslands, Keeley (2004, p. 7) also noted that invasive, nonnative 
plants will not typically displace obligate resprouting plant species 
in mesic shrublands that burn once every 10 years. Therefore, while 
spiny redberry resprouts, the quantity of California buckwheat as a 
nectar source necessary to support a Hermes copper butterfly occurrence 
may be temporarily unavailable due to recent fire impacts, and 
nonnative grasses commonly compete with native flowering plants that 
would otherwise provide abundant nectar after fire.
    Extensive and intense wildfire events are the primary recent cause 
of direct mortality and extirpation of Hermes copper butterfly 
occurrences. The magnitude of this threat appears to have increased due 
to an increased number of recent megafires created by extreme ``Santa 
Ana'' driven weather conditions of high temperatures, low humidity, 
strong erratic winds, and human-caused ignitions (Keeley and Zedler 
2009, p. 90; Service 2018a, pp. 33-41). The 2003 Otay and Cedar fires 
and the 2007 Harris and Witch Creek fires in particular have negatively 
impacted the species, resulting in or contributing to the extirpation 
of 33 occurrences (Table 1). Only 3 of the 31 U.S. occurrences thought 
to have been extirpated in whole or in part by fire since 2003 appear 
to have been naturally re-established, or were not entirely extirpated 
(Table 1; Service 2018a, Figure 7; Winter 2017, pers. comm.).
    Wildfires that occur in occupied Hermes copper butterfly habitat 
result in direct mortality of Hermes copper butterflies (Klein and 
Faulkner 2003, pp. 96-97; Marschalek and Klein 2010, pp. 4-5). 
Butterfly populations in burned areas rarely survive wildfire because 
immature life stages of the butterfly inhabit host plant foliage, and 
spiny redberry typically burns to the ground and resprouts from stumps 
(Deutschman et al. 2010, p. 8; Marschalek and Klein 2010, p. 8). This 
scenario results in at least the temporal loss of both the habitat 
(until the spiny redberry and nectar source regrowth occurs) and the 
presence of butterflies (occupancy) in the area.
    Wildfires can also leave patches of unburned occupied habitat that 
are functionally isolated (further than the typical dispersal distance 
of the butterfly) from other occupied habitat. Furthermore, large fires 
can eliminate source populations before previously burned habitat can 
be recolonized, and can result in long-term or permanent loss of 
butterfly populations. Historically, Hermes copper butterfly persisted 
through wildfire by recolonizing extirpated occurrences once the 
habitat recovered. However, as discussed below, ongoing loss and 
isolation of habitat has resulted in smaller, more isolated populations 
than existed historically. This isolation has likely reduced or removed 
the ability of the species to recolonize occurrences extirpated by 
wildfire.
    Our analysis of current fire danger and fire history illustrates 
the potential for catastrophic loss of the majority of remaining 
butterfly occurrences should another large fire occur prior to 
recolonization of burned habitats. As discussed by Marschalek and Klein 
(2010, p. 9) and Deutschman et al. (2010, p. 42), one or more wildfires 
could extirpate the majority of extant Hermes copper butterfly 
occurrences. Furthermore, no practical measures are known that could 
significantly reduce the impact of megafires on the Hermes copper 
butterfly and its habitat. In a 2015 effort to mitigate the impact of 
wildfires on Hermes copper butterfly, Marschalek and Deutschman (2016c) 
initiated a translocation study, funded by the San Diego Association of 
Governments (SANDAG), to assist recolonization of habitat formerly 
occupied by the large Hollenbeck Canyon occurrence. While it is not 
clear that this attempt was successful, in 2016 there were signs of 
larval emergence from eggs and at least one adult was observed, 
indicating some level of success (Marschalek and Deutschman 2016c, p. 
10). Regulatory protections, such as ignition-reduction measures, do 
exist to reduce fire danger; however, large megafires are considered 
resistant to control (Durland, pers. comm., in Scauzillo 2015).
    The current fire regime in Mexico is not as well understood. Some 
researchers claim chaparral habitat in Mexico within the Hermes copper 
butterfly's range is not as affected by megafires because there has 
been less fire suppression activity than in the United States (Minnich 
and Chou 1997, pp. 244-245; Minnich 2001, pp. 1,549-1,552). In 
contrast, Keeley and Zedler (2009, p. 86) contend the fire regime in 
Baja California mirrors that of Southern California, similarly 
consisting of ``small fires punctuated at periodic intervals by large 
fire events.'' Local experts agree the lack of fire suppression 
activities in Mexico has reduced the fuel load on the landscape, 
subsequently reducing the risk of megafire in Mexico (Oberbauer 2017, 
pers. comm.; Faulkner 2017, pers. comm.). However, examination of 
satellite imagery from the 2000s indicates impacts from medium-sized 
wildfire in Mexico are similar to those in San Diego County, as 
evidenced by two large fires in 2014 that likely impacted habitats 
associated with the Hermes copper butterfly records near Ensenada (NASA 
2017a; 2017b; Service 2018a p. 37).
    Although the level of impact may vary over time, wildfires cause 
ongoing degradation, destruction, fragmentation, and isolation of 
Hermes copper butterfly habitat as well as direct losses of Hermes 
copper butterfly that have contributed to the extirpation of numerous 
populations. As discussed above, only 3 of the 31 U.S. occurrences 
thought to have been extirpated in whole or in part by fire since 2003 
appear to have been naturally re-established. This threat affects all 
Hermes copper butterfly populations and habitat across the species' 
entire range.
Land Use Change
    Urban development within San Diego County has resulted in the loss, 
fragmentation, and isolation of Hermes copper butterfly habitat 
(CalFlora 2010; Consortium of California Herbaria 2010; San Diego 
County Plant Atlas 2010) (see the Habitat Isolation section below). Of 
the 50 known Hermes copper butterfly occurrences confirmed or presumed 
extirpated, loss, fragmentation, and isolation of habitat as a result 
of development contributed to 23 of those (46 percent; Table 1). In 
particular, habitat isolation is occurring between the northern and 
southern portions of the species' range and in rural areas of the 
southeastern county; this loss of dispersal corridor-connectivity areas 
is of greatest concern where it would impact core occurrences in these 
areas (Service 2018a, p. 41).
    To quantify the remaining land at risk of development, we analyzed 
all existing habitat historically occupied by the Hermes copper 
butterfly based on specimens and observation records. We

[[Page 1026]]

then removed lands that have been developed and examined the ownership 
of remaining, undeveloped land. Currently, approximately 64 percent of 
the remaining undeveloped habitat is protected from destruction by 
development because it is conserved (Service 2018a, p. 41).
    The County of San Diego has two ordinances in place that restrict 
new development or other proposed projects within sensitive habitats. 
The Biological Mitigation Ordinance of the County of San Diego Subarea 
Plan and the County of San Diego Resource Protection Ordinance regulate 
development within coastal sage scrub and mixed chaparral habitats that 
currently support extant Hermes copper butterfly populations on non-
Federal land within the County's jurisdiction (for example, does not 
apply to lands under the jurisdiction of the City of Santee or the City 
of San Diego). Additionally, County regulations mandate surveys for 
Hermes copper butterfly occupancy and habitat, and to the extent it is 
a significant impact under the California Environmental Quality Act 
(Cal. Pub. Res. Code 21000 et seq.), mitigation may be required. These 
local resource protection ordinances may provide some regulatory 
measures of protection for the remaining 36 percent of extant Hermes 
copper butterfly habitat throughout the species' occupied range, when 
occurring within the County's jurisdiction. Additionally, presence of 
Hermes copper butterflies has on occasion been a factor within San 
Diego County for prioritizing land acquisitions for conservation from 
Federal, State, and private funding sources due to the focus of a local 
conservation organization. However, there is no coordinated effort to 
prioritize Hermes copper butterfly conservation efforts within the 
species' range. SANDAG has provided funding for Hermes copper butterfly 
surveys and research since 2010, as well as grants for acquisition of 
two properties that have been (or are) occupied by Hermes copper 
butterfly.
    There is uncertainty regarding the Hermes copper butterfly's 
condition within its southernmost known historical range in Mexico; 
however, one expert estimated that development pressure in known 
occupied areas near the city of Ensenada was similar to that in the 
United States (Faulkner 2017, pers. comm.).
    We conclude that development is a current, ongoing threat 
contributing to reduction and especially isolation of remaining Hermes 
copper butterfly habitat in limited areas on non-Federal lands at this 
time. However, some regulatory protections are in place, and 64 percent 
of historically occupied habit is on conserved lands. Therefore, 
although the rate of habitat loss has been reduced relative to 
historical conditions, regulations have not served to protect some key 
populations or dispersal corridor-connectivity areas, and development 
continues to increase isolation of the northern portion from the 
southern portion of the species' range (Service 2018a, pp. 40-44).
Habitat Isolation
    Habitat isolation directly affects the likelihood of Hermes copper 
butterfly population persistence in portions of its range, and 
exacerbates other effects from fire and development. Hermes copper 
butterfly populations have become isolated both permanently (past and 
ongoing urban development) and more temporarily (wildfires). Habitat 
isolation separates extant occurrences and inhibits movement by 
creating a gap that Hermes copper butterflies are not likely to 
traverse. Any loss of resources on the ground that does not affect 
butterfly movement, such as burned vegetation, may degrade but not 
fragment habitat. Therefore, in order for habitat to be isolated, 
movement must either be inhibited by a barrier, or the distance between 
remaining suitable habitat must be greater than adult butterflies will 
typically move to mate or to deposit eggs. Thus, a small fire that 
temporarily degrades habitat containing host plants is not likely to 
support movement between suitable occupied habitat patches and could 
cause temporary isolation. It is important to note that, although 
movement may be possible, to ensure successful recolonization, habitat 
must be suitable at the time Hermes copper butterflies arrive.
    Effects from habitat isolation in the northern portion of the 
species' range have resulted in extirpation of at least four Hermes 
copper butterfly occurrences (see Table 1 above). A historical Hermes 
copper butterfly occurrence (Rancho Santa Fe) in the northern portion 
of the range has been lost since 2004. This area is not expected to be 
recolonized because it is mostly surrounded by development and the 
nearest potential ``source'' occurrence is Elfin Forest, 2.7 mi (4.3 
km) away, where at least one adult was last detected in 2011 
(Marschalek and Deutschman 2016a, p. 8). Farther to the south, Black 
Mountain, Lopez Canyon, Van Dam Peak, and the complex of occurrences 
comprising Mission Trails Park, North Santee, and Lakeside Downs are 
isolated from other occurrences by development. Because a number of 
populations have been lost, and only a few isolated and mostly 
fragmented ones remain, the remaining populations in the northern 
portion of the range are particularly vulnerable to the effects of 
further habitat isolation. These populations may already lack the 
dispersal corridor-connectivity areas needed to recolonize should 
individual occurrences be extirpated. Reintroduction or augmentation 
may be required to sustain the northern portion of the species' range. 
No information is available on the potential impacts of habitat 
isolation in the species' range in Mexico.
    Overall, habitat isolation is a current, ongoing threat that 
continues to degrade and isolate Hermes copper butterfly habitat across 
the species' range.
Climate Change and Drought
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring, and that the rate of change has 
increased since the 1950s. Global climate projections are informative, 
and, in some cases, the only or the best scientific information 
available. However, projected changes in climate and related impacts 
can vary across and within different regions of the world (IPCC 2013, 
pp. 15-16). To evaluate climate change for the region occupied by the 
Hermes copper butterfly, we used climate projections ``downscaled'' 
from global projection models, as these provided higher resolution 
information that is more relevant to spatial scales used for analyses 
of a given species (Glick et al. 2011, pp. 58-61).
    Southern California has a typical Mediterranean climate. Summers 
are typically dry and hot while winters are cool, with minimal rainfall 
averaging about 25 centimeters (10 inches) per year. The interaction of 
the maritime influence of the Pacific Ocean combined with inland 
mountain ranges creates an inversion layer typical of Mediterranean-
like climates. These conditions also create microclimates, where the 
weather can be highly variable within small geographic areas at the 
same time.
    We evaluated the available historical weather data and the species' 
biology to determine the likelihood of effects assuming the climate has 
been and will continue to change. The typical effect of a warmer 
climate, as observed with Hermes copper butterfly in lower, warmer 
elevation habitats compared to higher, cooler elevations, is an earlier 
flight season by several days (Thorne 1963, p. 146; Marschalek and 
Deutschman 2008, p. 98). Marschalek and Klein (2010, p. 2) noted that 
past records suggest a slightly earlier flight

[[Page 1027]]

season in recent years compared to the 1960s. The historical 
temperature trend in Hermes copper butterfly habitats for the month of 
April (when larvae are typically developing and pupating) from 1951 to 
2006 can be calculated with relatively high confidence (p values from 
0.001 to 0.05). The mean temperature change in occupied areas ranged 
from 0.07 to 0.13 [deg]F (0.04 to 0.07 [deg]C) per year (Climate Wizard 
2016), which could explain the earlier than average flight seasons. 
Nevertheless, given the temporal and geographical availability of their 
widespread perennial host plant, and exposure to extremes of climate 
throughout their known historical range (Thorne 1963, p. 144), Hermes 
copper butterfly and its host and nectar plants are not likely to be 
negatively affected throughout the majority of the species' range by 
phenological shifts in development of a few days.
    Drought has been a major factor affecting southern California 
ecosystems, starting with the driest 12-month period on record in 2013-
2014 (Swain et al. 2014, p. S3) extending through 2016. The exact 
mechanism by which drought impacts Hermes copper butterflies is not 
known. However, other butterfly species in southern California have 
shown declines caused by drought stress on their perennial host plants 
(Ehrlich et al. 1980, p. 105). Spiny redberry shows decreased health 
and vegetative growth during drought years (Marschalek 2017, pers. 
comm.).
    Though limited, existing data suggest that drought is contributing 
to the decline of Hermes copper butterflies. Systematic monitoring of 
adult abundance at five sentinel sites indicates that the past 4 years 
of warm, dry drought conditions negatively affected habitat suitability 
and suppressed adult population sizes. At the Sycuan Peak occurrence, 
where the highest ever maximum adult daily count was recorded in 2013 
(41), the population dropped in number with decreased precipitation and 
has remained at record low numbers for the past 4 years (1, 1, 0, and 
0; Service 2018a, Figure 10; Marschalek and Deutschman 2017, p. 9; 
Marschalek 2018 pers. comm.). The highest elevation occurrence (Boulder 
Creek Road) was the largest of the monitored sites in 2017 following 
years of drought and high temperatures with a maximum daily count of 14 
(down from 20 in 2013; Service 2018a, Figure 10; Marschalek and 
Deutschman 2017, p. 9). This higher elevation site received more rain 
than lower sites. Therefore, though population data are limited, 
drought appears to negatively impact Hermes copper butterfly 
populations.
    The Hermes copper butterfly is a rare species with limited 
abundance at all sites across its range, many of which are also 
isolated by habitat isolation, and population counts have gone down at 
all sites where surveys are occurring. Temperatures have significantly 
increased from 1951 to 2016; these changes may be influencing the 
timing of the Hermes copper butterfly's flight season as well as their 
phenology (Service 2018a, pp. 47-48). Through increased 
evapotranspiration and soil drying, high temperatures increase the 
indirect negative effects of drought on average quality of the host 
plant and nectar resources. Still, we are unaware of any direct 
negative impacts on Hermes copper butterfly life history due to these 
temperature changes. Drought appears to be having a more pronounced 
indirect negative effect, as the mean maximum daily adult counts have 
decreased in recent years with a decrease in precipitation that may be 
more of a concern at low-elevation sites.
Combined Effects
    Threats working in concert have a much greater effect than threats 
working individually; for example, habitat loss and isolation due to 
land use change combined with wildfire together have a greater impact 
on the species than wildfire alone. Multiple threats at a given 
hierarchical level have combined effects that emerge at the next higher 
level. For example, at the population level, habitat loss significantly 
reducing the resilience of one population combined with wildfire 
affecting resilience of another has a greater effect on Hermes copper 
butterfly species-level redundancy and, therefore, species viability 
than either threat would individually.
    Threats that alone may not significantly reduce species viability 
have at least additive, if not synergistic, effects on species 
viability. For example, wildfire and habitat modification (type 
conversion) typically have a synergistic effect on habitat suitability 
in Mediterranean-type climate zones (Keeley and Brennon 2012, entire; 
California Chaparral Institute 2017, entire). Wildfire increases the 
rate of nonnative grass invasion, a component of the habitat 
modification threat, which in turn increases fire frequency. Overall, 
these factors increase the likelihood of megafires on a landscape/
species range-wide scale.
    The relationship between habitat fragmentation and type conversion 
is in part synergistic, particularly for Hermes copper butterflies, 
which are typically sedentary with limited direct movement ability. 
Fragmentation increases the rate of nonnative plant species invasion 
and type conversion through increased disturbance, nitrogen deposition, 
and seed dispersal, and type conversion itself reduces habitat 
suitability and, therefore, habitat contiguity and dispersal corridor-
connectivity areas (increasing both habitat fragmentation and 
isolation). Another example of combined impacts is climate change. 
Although not a significant threat on its own, the increased temperature 
resulting from climate change significantly exacerbates other threats, 
especially wildfire and drought.
    Small population size, low population numbers, and population 
isolation are not necessarily independent factors that threaten a 
species. Typically, it is the combination of small size and number and 
isolation of populations in conjunction with other threats (such as the 
present or threatened destruction and modification of the species' 
habitat or range) that may significantly increase the probability of 
species' extinction. Considering reduced numbers in recent surveys and 
historically low population numbers relative to typical butterfly 
population sizes, the magnitude of effects due to habitat fragmentation 
and isolation, drought, and wildfire are likely exacerbated by small 
population size.
    Therefore, multiple threats are acting in concert to fragment, 
limit, and degrade Hermes copper butterfly habitat and decrease species 
resiliency, redundancy, and representation. The effects of these 
threats are evidenced by the loss and isolation of many populations 
throughout the range; those remaining extant populations fall within 
very high fire-hazard areas.

Future Condition

    To analyze species' viability, we consider the current and future 
availability or condition of resources. The consequences of missing 
resources are assessed to describe the species' current condition and 
to project possible future conditions.
    As discussed above, we generally define viability as the ability of 
the species to sustain populations in the natural ecosystem for the 
foreseeable future, in this case, 30 years. We chose 30 years because 
it is within the range of the available hydrological and climate change 
model forecasts, fire hazard period calculations, habitat-vegetation 
association, and fire-return intervals.

[[Page 1028]]

Threats
    To consider the possible future viability of Hermes copper 
butterfly, we first analyzed the potential future conditions of ongoing 
threats. Possible development still in the preliminary planning stage 
(Service and CDFW 2016) could destroy occupied or suitable habitat on 
private land within the North Santee occurrence. Similar concerns apply 
to habitat in the Lyons Valley, Skyline Truck Trail area. Habitat 
isolation is a continuing concern for Hermes copper butterfly as lack 
of dispersal corridor-connectivity areas among occupied areas limits 
the ability of the species to recolonize extirpated habitat. 
Development outside of occupied habitat can also negatively affect the 
species by creating dispersal corridor-connectivity barriers throughout 
the range.
    Anticipated severity of effects from future habitat development and 
isolation varies across the range of the species. Within U.S. Forest 
Service (USFS) lands (2,763 ha (6,829 ac)), we anticipate future 
development, if any, will be limited. As it implements specific 
activities within its jurisdiction, the USFS has incorporated measures 
into the Cleveland National Forest Plan to address threats to Hermes 
copper butterfly and its habitat (USFS 2005, Appendix B, p. 36). The 
limited number of Hermes copper butterfly occurrences within BLM lands 
is also unlikely to face future development pressure. Based on our 
analysis, we conclude land use change, while significant when combined 
with the stressor of wildfire, will not be the most significant future 
source of Hermes copper butterfly population decline and loss. Some 
habitat areas vulnerable to development are more important than others 
to species' viability. Of particular concern are potential extirpations 
due to development of the North Santee, Loveland Reservoir, Skyline 
Truck Trail, North Jamul, and South Japutal core occurrences (26 
percent of the core occurrences considered or presumed extant; Service 
2018a, pp. 23-28, 41). Absent additional conservation of occupied 
habitat and dispersal corridor-connectivity areas, effects of habitat 
loss, fragmentation, and isolation will continue to extirpate 
occurrences, degrade existing Hermes copper butterfly habitat, and 
reduce movement of butterflies among occurrences, which reduces the 
likelihood of natural recolonizations following extirpation events 
(Service 2018a, p. 53 and Figure 9).
    As discussed above, wildfire can permanently affect habitat 
suitability. If areas are reburned at a high enough frequency, 
California buckwheat may not have the time necessary to become 
reestablished, rendering the habitat unsuitable for Hermes copper 
butterfly (Marschalek and Klein 2010, p. 728). Loss of nectar plants is 
not the only habitat effect caused by wildfire; habitat type conversion 
increases flammable fuel load and fire frequency, further stressing 
Hermes copper butterfly populations. Therefore, habitat modification 
due to wildfire is cause for both short- and long-term habitat impact 
concerns.
    We expect that wildfire will continue to cause direct mortality of 
Hermes copper butterflies. In light of the recent drought-influenced 
wildfires in southern California, a future megafire affecting most or 
all of the area burned by the Laguna Fire in 1970 (40-year-old 
chaparral) could encompass the majority of extant occurrences and 
result in significantly reduced species viability (Service 2018a, 
Figures 7 and 8).
    In the case of Hermes copper butterfly, the primary limiting 
species-level resource is dispersal corridor-connectivity areas of 
formerly occupied to currently occupied habitats, on which the 
likelihood of post-fire recolonization depends, is a limiting factor. 
We further analyzed fire frequency data to determine the effect on 
occurrence status and the likelihood of extirpation over the next 30 
years. Our analysis concluded that the probability of a megafire 
occurring in Hermes copper butterfly's range has significantly 
increased. During the past 15 years (2002-2017), there were six 
megafires within Hermes copper butterfly's possible historical range 
(Poomacha, Paradise, Witch, Cedar, Otay Mine, and Harris; all prior to 
2008), a significant increase compared to none during the two previous 
15 years (1987-2001 and 1972-1986), and only one during the 15-year 
period prior to 1972 (Laguna). This represents a more than six-fold 
increase in the rate of megafire occurrence over the past 15 years. 
While fires meeting our megafire definition of greater than 16,187 ha 
(40,000 ac) have not occurred in the past 10 years, several relatively 
large fires occurred in the Hermes copper butterfly's range in 2014 and 
2017. The Cocos and Bernardo fires burned approximately 809 ha (2,000 
ac) and 607 ha (1,500 ac) of potentially occupied Hermes copper 
butterfly habitat near the Elfin Forest and the Black Mountain 
occurrences (Service 2018a, Figure 5). A smaller unnamed fire burned 
approximately 38 ha (95 ac) of potential habitat near the extant core 
Mission Trails occurrence (Burns et al., 2014; City News Source 2014). 
In 2017, the Lilac Fire burned 1,659 ha (4,100 ac) of potentially 
occupied habitat between the Bonsall and Elfin Forest occurrences. At 
the current large-fire return rate, multiple megafires could impact 
Hermes copper butterfly over the next 30 years, and that assumes no 
further increase in rate. If the trend does not at least stabilize, the 
frequency of megafires could continue to increase with even more 
devastating impacts to the species.
    Combined effects increase the likelihood of significant and 
irreversible loss of populations, compared to individual effects. If 
fewer source populations are available over time to recolonize burned 
habitat when host and nectar plants have sufficiently regenerated, the 
combined effects of these threats will continue to reduce resiliency, 
redundancy, and representation, resulting in an increase in species 
extinction risk.

Species Viability Index

    In order to quantify population viability for the Hermes copper 
butterfly, we calculated a viability index in our SSA (Service 2018a, 
pp. 58-62). In our index calculations, the contribution of a population 
to species-level redundancy depends on population-level resiliency, and 
contribution to species-level representation depends on how rare 
populations are in the habitat type (California Ecological Unit) it 
occupies (Service 2018a, Figure 12). Species redundancy and 
representation are assumed to equally influence species' viability. We 
assign a 100 percent species viability index value to the baseline 
state of all known historical population occurrences in the United 
States. For this index calculation, we do not consider Mexican 
occurrences, because there are only 3 (possibly 2) out of a total of 
95, and all are presumed extirpated.
    Our index of species viability is proportional to, but not equal 
to, the ability of a species to sustain populations in the wild (in 
other words, it is an index that should change proportionally with the 
likelihood of persistence, but is not itself a probability value). As 
such, our viability index uses population resilience, species 
redundancy, and species representation to quantify changes in species 
viability, but does not predict probability of persistence. For a 
detailed description of our methodology and of viability index results, 
see the Species Viability Index section of the SSA (Service 2018a, pp. 
58-62).

[[Page 1029]]

    To estimate species viability, we first estimated species 
redundancy and species representation. To estimate a current species 
redundancy value, we ranked each occurrence's resiliency value using a 
scale of 0-4, with 0 being extirpated, and 4 being connected core 
occurrences (Service 2018a, p. 53; Appendix III). We estimate there are 
currently 18 presumed extant occurrences (rank sum of 18), 3 extant 
non-core isolated (rank sum of 6), 11 extant non-core connected or core 
isolated (rank sum of 33), and 13 extant core connected (rank sum of 
52) occurrences for a total current species redundancy value of 109 
(Service 2018a, p. 57). Based on our calculations, the species 
currently retains 30 percent of its historical population redundancy.
    In order to model species representation, we used California 
Ecological Units (Goudey and Smith 1994 [2007]; see Table 1 above) as a 
measure of habitat diversity (Service 2018a, Figure 10). Using those 
units, occupancy in the Coastal Terraces (CT) ecological unit has been 
reduced to 18 percent (2/11 occurrences not extirpated), in the Coastal 
Hills (CH) unit to 40 percent (16/40 not extirpated), in the Western 
Granitic Foothills (WGF) unit to 63 percent (22/35 not extirpated), 
while the Palomar-Cuyamaca Peak Coastal Terraces (PC) unit remains at 
100 percent (none extirpated). Based on these proportional values, the 
species retains 55 percent of its historical species representation 
(Service 2018a, p. 57).
    Species viability was calculated by summing the results of the 
redundancy and representation calculations (Service 2018a, p. 57); we 
estimate the species currently retains no more than 43 percent of its 
estimated historical viability.
Future Scenarios
    Given climate change predictions of more extreme weather, less 
precipitation, and warmer temperatures, and the recent trend of 
relatively frequent and large fires, we can assume the primary threats 
of drought and wildfire will continue to increase in magnitude. If land 
managers work to conserve and manage all occupied and temporarily 
unoccupied habitat, and maintain habitat contiguity and dispersal 
corridor-connectivity, this should prevent further habitat loss. 
Although fire and drought are difficult to control and manage for, 
natural recolonization and assisted recolonization through 
translocation in higher abundance years (e.g., Marschalek and 
Deutschman 2016b) should allow recolonization of extirpated 
occurrences.
    All scenarios described below incorporate some change in 
environmental conditions. However, it is important to keep in mind that 
even if environmental conditions remain unchanged, the species may 
continue to lose populations so that viability declines by virtue of 
maintaining the current trend. Given that there is uncertainty as to 
exact future trends of many threats, these future scenarios are meant 
to explore the range of uncertainty and examine the species' response 
across the range of likely future conditions. For more detailed 
discussions of the future scenarios, see the Possible Future Conditions 
section of the SSA (Service 2018a, pp. 60-62).
    Scenario 1: Conditions worsen throughout the range, resulting in 
increased extinction risk.
    Due to a combination of increased wildfire and drought frequency 
and severity, no habitat patches are recolonized, and all Hermes copper 
butterfly occurrences with a resilience score of less than 4 are 
extirpated (without reducing the redundancy weight of remaining 
occurrences based on changed size or isolation status). These losses 
would reduce the species redundancy value from 109 to 52. Based on the 
resulting redundancy value ratio of 52/368, the species would retain 14 
percent of its historical baseline population redundancy. There would 
be no occupancy remaining in the CT ecological unit (0 percent), CH 
ecological unit occupancy would be reduced from 40 to 8 percent (3/40 
not extirpated), WGF unit from 63 to 26 percent (9/35 not extirpated), 
and PC unit from 100 to 17 percent (1/6 not extirpated). Based on these 
proportional values, the species would retain approximately 13 percent 
of its historical representation. Resulting changes to the population 
redundancy and representation values would cause an approximate drop 
from 43 to 14 percent species viability relative to historical 
conditions. We judge this scenario about as likely as not to occur in 
the next 30 years.
    Scenario 2: A megafire comparable to the 1970 Laguna Fire increases 
extinction risk.
    If there was a megafire comparable to the 1970 Laguna Fire, many 
occurrences would likely be extirpated, and, due to the number of 
occurrences already lost, the likelihood of any being recolonized would 
be low. With regard to redundancy, these losses would result in the 
additional loss of four unknown status occurrences; no small isolated 
occurrences; three small, connected or large, isolated occurrences; and 
five large, connected occurrences.
    In this scenario, the species would retain 18 percent of its 
historical baseline redundancy and 30 percent of its historical 
representation. These changes to population redundancy and 
representation values would result in an approximate drop in species 
viability relative to historical conditions from the current 43 percent 
to 24 percent. We judge this scenario more likely than not to occur in 
the next 30 years.
    Scenario 3: Conditions stay the same, resulting in extinction risk 
staying the same.
    While environmental conditions never stay the same, changes that 
negatively affect populations may be offset by positive ones--for 
example, continued habitat conservation and management actions such as 
translocations to recolonize burned habitats. In this scenario, the 
risk of wildfire remains high. Occurrence extirpations and decreased 
resiliency of some populations in this scenario are balanced by habitat 
recolonizations and increased resiliency in others. Species viability 
would thus remain at approximately 43 percent relative to historical 
conditions. Even if environmental conditions remain unchanged, the 
species may continue to lose populations so that viability declines by 
virtue of maintaining the current trend. We judge this scenario about 
as likely as not to occur in the next 30 years.
    Scenario 4: Conditions improve, resulting in decreased extinction 
risk.
    In this scenario, environmental threats such as fire and drought 
decrease in frequency and magnitude relative to the past 30 years, and 
management actions such as continued conservation and translocation 
efforts are successful. Due to favorable climate conditions and 
proactive management and conservation, all fire-extirpated occurrence 
habitats are recolonized, no further occurrences are extirpated, and at 
least half the ``unknown status'' occurrences are determined to be 
extant. This scenario would result in an increase to 62 percent species 
viability relative to historical conditions. We judge this scenario 
unlikely to occur in the next 30 years.

Determination of Hermes Copper Butterfly Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species

[[Page 1030]]

that is ``in danger of extinction throughout all or a significant 
portion of its range,'' and a ``threatened species'' as a species that 
is ``likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range.'' The Act 
requires that we determine whether a species meets the definition of 
``endangered species'' or ``threatened species'' because of any of the 
following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) The inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Hermes copper butterfly, and we have determined the following 
factors are impacting the resiliency, redundancy, and representation of 
the species: wildfire (Factor A), land use change (Factor A), habitat 
fragmentation and isolation (Factor A), climate change (Factor E), and 
drought (Factor E); as well as the cumulative effect of these on the 
species, including synergistic interactions between the threats and the 
vulnerability of the species resulting from small population size. We 
also considered the effect of existing regulatory mechanisms (Factor D) 
on the magnitude of existing threats. We also note that potential 
impacts associated with overutilization (Factor B), disease (Factor C), 
and predation (Factor C) were evaluated but found to have little to no 
impact on species viability (Service 2018a, p. 50); thus, we did not 
discuss them in this document.
    Individually, land use change (Factor A), habitat fragmentation and 
isolation (Factor A), climate change (Factor A), and drought (Factor E) 
are impacting the Hermes copper butterfly and its habitat. Although 
most impacts from land use change have occurred in the past, and some 
existing regulations are in place to protect remaining occurrences, 36 
percent of historically occupied habitat is not protected and remains 
at risk from land use change. As a result of past development, which 
has contributed to the loss of 23 occurrences (Table 1), species 
representation has been reduced through loss of most occurrences in 
ecological units closest to the coast, while redundancy has decreased 
through loss of overall numbers of occurrences. Remaining habitat has 
been fragmented, decreasing species resiliency by removing habitat 
corridors and thus decreasing the species' ability to recolonize 
previously extirpated occurrences. Climate change is currently having 
limited effects on the species; however, drought is a significant 
threat resulting in degradation of habitat and decreased numbers of 
Hermes copper butterflies at all monitored occurrences, with the 
exception of the highest elevation occurrence that receives the most 
rainfall.
    Wildfire (Factor A) is the most substantial threat currently 
impacting Hermes copper butterfly and is the most significant source of 
ongoing population decline and loss of occurrences. Large fires can 
eliminate source populations before previously burned habitat can be 
recolonized, and can result in long-term or permanent loss of butterfly 
populations. Since 2003, wildfire is estimated to have caused or 
contributed to the extirpation of 31 U.S. occurrences (and 3 in 
Mexico), only 3 of those are known to have been apparently repopulated. 
Wildfire frequency has significantly increased in Hermes copper 
butterfly habitat since 1970, and the likelihood of additional 
megafires occurring over the next 30 years is high. Frequent wildfire 
degrades available habitat through conversion of suitable habitat to 
nonnative grasslands, and we anticipate that fire will continue to 
modify and degrade Hermes copper butterfly habitat into the foreseeable 
future. Furthermore, though fuel-reduction activities are ongoing 
throughout much of the species' range, megafires cannot be controlled 
through regulatory mechanisms. We expect the ongoing effects of 
wildfire will continue to result in substantial reductions of species 
resiliency, redundancy, and representation for the Hermes copper 
butterfly.
    Combined effects of threats have a greater impact on the Hermes 
copper butterfly than each threat acting individually. Wildfire 
increases the rate of nonnative grass invasion, which in turn increases 
fire frequency. Overall, these factors increase the likelihood of 
megafires on a range-wide scale now and in the foreseeable future. The 
combination of habitat fragmentation and isolation (as a result of past 
and potential limited future urban development), existing dispersal 
barriers, and megafires (that encompass vast areas and are increasing 
in frequency) that limit, and degrade Hermes copper butterfly habitat, 
results in substantial reduction in species resiliency, redundancy, and 
representation. Furthermore, remaining extant populations fall within 
very high fire-hazard areas, increasing the risk that a single megafire 
could result in the extirpation of the majority of extant occurrences. 
Additionally, effects from habitat fragmentation and isolation, 
megafire, and drought are exacerbated by the small population size and 
isolated populations of the Hermes copper butterfly. Overall, the 
combined effects of threats are currently decreasing the resiliency, 
redundancy, and representation of the Hermes copper butterfly, and we 
expect that they will continue to decrease species viability into the 
foreseeable future.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that that the Hermes copper butterfly meets the definition of a 
threatened species. Multiple threats are impacting Hermes copper 
butterfly across its range, and the most probable future scenarios 
predict that species viability will either remain at 43 percent of 
historical levels, or decrease to 24 percent or 14 percent of 
historical viability within the foreseeable future. Thus, after 
assessing the best available information, we conclude that the Hermes 
copper butterfly is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. We find that the Hermes 
copper butterfly is not currently in danger of extinction, because 
although a megafire has the potential to extirpate a high number of 
occurrences, it is not likely that a single megafire would impact all 
occurrences, particularly given the urban area separating the most 
northern and southern occurrences. Furthermore, even the future 
scenarios resulting in the lowest species viability do not predict that 
the species is currently in danger of extinction. Therefore, threatened 
status is the most appropriate for the species.

Determination of Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Because we have determined that the Hermes copper butterfly 
is likely to become an endangered species within the foreseeable future 
throughout all of its range, we find it unnecessary to proceed to an 
evaluation of potentially significant portions of the range. Where the 
best available information allows the Services to determine a status 
for the species rangewide, that determination should be given 
conclusive weight because a rangewide determination of status more 
accurately reflects the

[[Page 1031]]

species' degree of imperilment and better promotes the purposes of the 
Act. Under this reading, we should first consider whether the species 
warrants listing ``throughout all'' of its range and proceed to conduct 
a ``significant portion of its range'' analysis if, and only if, a 
species does not qualify for listing as either an endangered or a 
threatened species according to the ``throughout all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Hermes copper butterfly meets the 
definition of a threatened species. Therefore, we propose to list the 
Hermes copper butterfly as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

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.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as: An area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    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 that occur in specific areas, we focus 
on the specific features that are essential to the life-history needs 
of the species, including but not limited to, water characteristics, 
soil type, geological features, prey, vegetation, symbiotic species, or 
other features. A feature may be a single habitat characteristic, or a 
more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    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. When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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 from the species status assessment (SSA) report and 
information developed during the listing process for the species. 
Additional information sources may include any generalized conservation 
strategy, criteria, or outline that may

[[Page 1032]]

have been developed for the species, 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 ensure 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 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    We did not identify any of the factors above to apply to the Hermes 
copper butterfly. Therefore, we find designation of critical habitat is 
prudent for the species.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the Hermes 
copper butterfly is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where the species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Hermes copper butterfly.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), 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 that 
are essential to the conservation of the species and which may require 
special management considerations or protection. For example, physical 
features might include gravel of a particular size required for 
spawning, alkali soil for seed germination, protective cover for 
migration, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic needed to 
support the life history of the species. In considering whether 
features are essential to the conservation of the species, the Service 
may consider an appropriate quality, quantity, and spatial and temporal 
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. 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 historic geographical and ecological 
distributions of a species.
    As discussed above, we conducted a Species Status Assessment (SSA) 
for Hermes copper butterfly, which is an evaluation of the best 
available scientific and commercial data on the status of the species. 
The SSA provides the scientific information upon which this proposed 
critical habitat determination is based (Service 2018a).
Space for Individual and Population Growth and for Normal Behavior
    Patches of spiny redberry host plants, including post-fire stumps 
that can resprout, are required to support Hermes copper butterfly 
populations and subpopulations; the number of plants in a patch 
required to support a subpopulation is unknown. Because we know that 
Hermes copper butterflies are periodically extirpated from patches of 
host plants by wildfire, and subsequently re-colonize these patches 
(Table 1), we can assume functional metapopulation dynamics are 
important

[[Page 1033]]

for species viability. The time-scale for recolonization from source 
subpopulations may be 10-30 years. Spiny redberry is often associated 
with the transition between sage scrub and chaparral vegetation 
associations, but may occur in a variety of vegetation associations. 
Such host plant patches occur between 30-1,341 m (100-4,400 ft) above 
sea level.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Adults require relatively abundant nectar sources associated with 
patches of their host plants, spiny redberry. Plants specifically 
identified as significant nectar sources include Eriogonum fasciculatum 
(California buckwheat) and Eriophylum confirtiflorum (golden yarrow). 
Any other butterfly nectar source (short flower corolla) species found 
associated with spiny redberry that together provide nectar similar in 
abundance to that typically provided by California buckwheat would also 
meet adult nutritional requirements. Larvae feed on the leaves of the 
host plant.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    All immature life-cycle stages develop on the host plant, spiny 
redberry. Eggs are deposited on branches, caterpillars are sheltered on 
and fed by leaves, and chrysalides are attached to live host plant 
leaves.
Habitats That Are Protected From Disturbance and Representative of the 
Historic Geographical and Ecological Distributions of a Species
    Corridor (connective) habitat areas containing adult nectar sources 
are required among occupied (source subpopulations) and formerly 
occupied host plant patches, in order to maintain long-term the number 
and distribution of source subpopulations required to support resilient 
metapopulation species viability.
    Protected spiny redberry host plants must be distributed in four 
California Ecological Units to maintain species representation.
Summary of Essential Physical or Biological Features
    We derive the specific physical or biological features essential to 
the conservation of the Hermes copper butterfly from studies of this 
species' habitat, ecology, and life history as described above and in 
the Species Status Assessment for the Hermes Copper Butterfly (Service 
2018a).
    We have determined that the physical or biological features 
essential to the conservation of the Hermes copper butterfly consist of 
the following components when found between 30 m and 1,341 m above sea 
level, and located in habitat providing an appropriate quality, 
quantity, and spatial and temporal arrangement of these habitat 
characteristics in the context of the life-history needs, condition, 
and status of the species (see Criteria Used to Identify Critical 
Habitat below):
    (1) Spiny redberry host plants.
    (2) Nectar sources for adult butterflies.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    The features essential to the conservation of this species may 
require special management considerations or protection to reduce or 
mitigate the following threats: Wildfire, land use change, habitat 
fragmentation and isolation, and climate change and drought. In 
particular, habitat that has at any time supported a subpopulation will 
require protection from land use change that would permanently remove 
host plant patches and nectar sources, and habitat containing adult 
nectar sources that connects such host plant patches through which 
adults are likely to move. These management activities will protect 
from losses of habitat large enough to preclude conservation of the 
species.
    Additionally, when considering the conservation value of areas 
proposed as critical habitat within each unit, especially among 
subpopulations within the same California Ecological Unit, maintenance 
of dispersal corridor-connectivity among them should be a conservation 
planning focus for stakeholders and regulators (such connectivity was 
assumed by the criteria used to delineate proposed critical habitat 
units).

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species.
    Sources of data for this species and its habitat requirements 
include multiple databases maintained by universities and by State 
agencies in San Diego County and elsewhere in California, white papers 
by researchers involved in conservation activities and planning, peer-
reviewed articles on this species and relatives, agency reports, and 
numerous survey reports for projects throughout the species' range.
    The current distribution of the Hermes copper butterfly is much 
reduced from its historical distribution. We anticipate that recovery 
will require continued protection of existing subpopulations and 
habitat, protection of dispersal corridor connectivity areas among 
subpopulations, as well as re-establishing subpopulations where they 
have been extirpated within the species' current range in order to 
ensure adequate numbers of subpopulations to maintain metapopulations. 
This activity will help to ensure future catastrophic events, such as 
wildfire, cannot simultaneously affect all known populations.
Geographical Area Occupied at the Time of Listing
    The following meets the definition of the geographical area 
currently occupied by the Hermes copper butterfly in the United States: 
Between approximately 33[deg] 20' 0'' North latitude and south to the 
international border with Mexico, and from approximately 30 m (100 ft) 
in elevation near the coast, east up to 1,340 m (4,400 ft) in elevation 
near the mountains (Service 2018a, Figure 5). This includes those 
specific areas within the geographical area occupied by the species at 
this time or the currently known range of the species.
    The proposed critical habitat designation does not include all 
areas within the geographical area occupied by the species at this 
time. Rather, it includes those lands with physical and biological 
features essential to the conservation of the species which may require 
special management or protections. We also limited the proposal to 
specific areas historically or currently known to support the species. 
This proposal focuses on maintaining areas that are known to have 
supported those known occurrences we consider

[[Page 1034]]

required for survival and recovery of the species. That is, areas 
required to maintain species' viability by virtue of occurrence 
contribution to species' redundancy (core status, or subpopulation 
contribution to metapopulation dynamics/resilience), and contribution 
to continued species representation within all California Ecological 
Units. Hermes copper butterflies may be found in areas without 
documented populations (and perhaps even some areas slightly beyond 
that range), and would likely be important to the conservation of the 
species.
    In summary, we delineated critical habitat unit boundaries using 
the following criteria:
    (1) We started by considering all high-accuracy record-based 
occurrences mapped in the SSA (accuracy codes 1 and 2 in Table 1; 
Service 2018a, p. 20) within the geographical area currently occupied 
by the species. Occurrences were mapped as intersecting areas within 
0.5 km (0.3 mi) of high geographic accuracy records, and areas within 
0.5 km (0.3 mi) of any spiny redberry record within 1 km (0.6 mi) of 
these butterfly records. These distances are based on the maximum 
recapture distance of 1.1 km (0.7 mi) recorded by Marschalek and 
Klein's (2010, p. 1) intra-habitat movement study.
    (2) We removed seven non-core occurrences that were more than 3 km 
(1.9 mi) from a core occurrence, or otherwise deemed not-essential for 
metapopulation resilience or continued species representation within 
all California Ecological Units.
    (3) We added habitat contiguity areas between occurrences that were 
0.5 km (0.3 mi) or less apart that are likely to be within a single 
subpopulation distribution. To do this, we included the area within 0.5 
km (0.3 mi) of the midpoint of the tangent between the two closest 
butterfly records in each occurrence (to capture likely unrecorded 
physical or biological features).
    (4) Using the best available vegetation association GIS database, 
we removed areas within 95 sub-categories (out of 177) not likely to 
contain host plants, such as those associated with streams.
    (5) We removed by visual review of the best available satellite 
imagery all clearly developed areas, areas of disturbed vegetation such 
as nonnative grasslands, and granitic formations not likely to contain 
host plants, at the scale of approximately 1.2 ha (3 ac).
    When determining proposed 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 the Hermes copper 
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 proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification within 
mapped areas unless the land contained Hermes copper butterfly physical 
or biological features, or the specific action would affect the 
physical or biological features in adjacent critical habitat.
    We are proposing for designation of critical habitat lands that we 
have determined are within the geographical area currently occupied by 
the species and contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. Three units are proposed for designation.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the Proposed Regulation Promulgation section. We 
include more detailed information on the boundaries of the critical 
habitat designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-
2017-0053, on our internet sites http://www.fws.gov/carlsbad, and at 
the field office responsible for the designation (see FOR FURTHER 
INFORMATION CONTACT).

Proposed Critical Habitat Designation

    We are proposing three units as critical habitat for the Hermes 
copper butterfly. The critical habitat areas described below constitute 
our current best assessment of areas that meet the definition of 
critical habitat for the Hermes copper butterfly. The three units we 
propose as critical habitat are: (1) Lopez Canyon; (2) Miramar/Santee; 
and (3) Southeast San Diego. Table 2 shows the land ownership and 
approximate areas of the proposed designated areas for Hermes copper 
butterfly.

  Table 2--Proposed Critical Habitat Units for Hermes Copper Butterfly
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                  Land ownership by     Approximate size
     Critical habitat unit        type  in hectares        of unit in
                                       (acres)         hectares  (acres)
------------------------------------------------------------------------
1. Lopez Canyon...............  Federal: 0; State: 0;          166 (410)
                                 Local Jurisdiction:
                                 88 (218); Private:
                                 77 (191).
2. Miramar/Santee.............  Federal: 0; State:         2,870 (7,092)
                                 111 (275); Local
                                 Jurisdiction: 1,113
                                 (2,750); Private:
                                 1,646 (4,068).
3. Southeast San Diego........  Federal: 4,213           11,213 (27,709)
                                 (10,411); State:
                                 2,074 (5,124); Local
                                 Jurisdiction: 1,162
                                 (2,871); Private:
                                 3,765 (9,303).
                               -----------------------------------------
Total.........................  Federal: 4,213           14,249 (35,211)
                                 (10,411); State:
                                 2,185 (5,399); Local
                                 Jurisdiction: 2,363
                                 (5,839); Private:
                                 5,488 (13,562).
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding or unit conversion.

    We present brief descriptions of all proposed critical habitat 
units, and reasons why they meet the definition of critical habitat for 
the Hermes copper butterfly, below. Although conservation and 
management of dispersal corridor connectivity areas among occurrences 
proposed for designation as critical habitat will also be required for 
species

[[Page 1035]]

survival and recovery (occurrence isolation was a factor that 
eliminated occurrences in Criterion (2) above), the best available data 
do not provide sufficient information to identify the specific location 
of these lands at this time. Therefore, we did not include dispersal 
corridor connectivity areas among occurrences in the proposed critical 
habitat units.

Unit 1: Lopez Canyon

    Unit 1 consists of 166 ha (410 ac) within the geographical area 
currently occupied by the species and contains all of the essential 
physical or biological features. The physical or biological features 
may require special management to protect them from wildfire and land 
use change, although the latter is less likely in this unit (see 
Special Management Considerations and Protection above). This area 
encompasses the core Lopez Canyon occurrence, the only known extant 
occurrence that falls within the Coastal Terraces Ecological Unit 
(Table 1), and is therefore required to maintain species 
representation. Unit 1 is within the jurisdiction of the City of San 
Diego, associated with the communities of Sorrento Valley and Mira 
Mesa. This unit is surrounded by development. Habitat consists 
primarily of canyon slopes. The majority of this unit falls within the 
Los Pe[ntilde]asquitos Canyon Preserve jointly owned and managed by the 
City and County of San Diego. The primary objective of Los 
Pe[ntilde]asquitos Canyon Preserve is the preservation and enhancement 
of natural and cultural resources. The preserve master plan states that 
recreational and educational use by the public is a secondary 
objective, development should be consistent with these objectives, and 
public use should not endanger the unique preserve qualities. Land use 
in this unit is almost entirely recreation and conservation.

Unit 2: Miramar/Santee

    Unit 2 consists of 2,870 ha (7,092 ac) within the geographical area 
currently occupied by the species and contains all of the essential 
physical or biological features. The physical or biological features 
may require special management to protect them from land use change and 
wildfire, although wildfire will be challenging to manage for in this 
unit because of its size and risk of megafire (see Special Management 
Considerations and Protection above). This area encompasses the core 
Sycamore Canyon, North Santee, and Mission Trails occurrences, as well 
as non-core occurrences connected to core occurrences also required for 
metapopulation resilience and continued species representation in two 
California Ecological Units (Coastal Hills and Western Granitic 
Foothills). This unit includes half of the extant/presumed extant core 
occurrences in the Coastal Hills California Ecological Unit (the other 
half are in Unit 3). Unit 2 mostly surrounds the eastern portion of 
Marine Corps Air Station Miramar (lands encompassing areas that also 
meet the definition of critical habitat and would be included in this 
unit but are exempt from designation), falling primarily within the 
jurisdictions of the City of San Diego, but also within the City of 
Santee and unincorporated areas of San Diego County. In this unit, the 
City of San Diego owns and manages the over 2,830-ha (7,000-ac) Mission 
Trails Regional Park (887 ha (2,192 ac) in this unit) and the County 
owns and manages the 919-ha (2,272-ac) Gooden Ranch/Sycamore Canyon 
County preserve (198 ha (488 ac) included in this unit).

Unit 3: Southeast San Diego

    Unit 3 consists of 11,213 ha (27,709 ac) within the geographical 
area currently occupied by the species and contains all of the 
essential physical or biological features. The physical or biological 
features may require special management to protect them from land use 
change and wildfire, although wildfire will be challenging to manage in 
this unit because of its size and risk of megafire (see Special 
Management Considerations and Protection above). This unit 
configuration would conserve the essential contiguous habitat patches 
and dispersal corridor connectivity among the occurrences. This area 
encompasses the majority of extant and connected occurrences within the 
species' current range that are required for metapopulation resilience 
and continued species representation in two California Ecological 
Units. This unit includes all of the extant/presumed extant core 
occurrences in the Western Granitic Foothills and Palomar-Cuyamaca Peak 
California Ecological Units. The majority of the Crestridge core 
occurrence falls within the Crestridge Ecological Reserve jointly 
managed by the Endangered Habitats Conservancy and the California 
Department of Fish and Wildlife. The majority of the Alpine core 
occurrence falls within the Wright's Field preserve owned and managed 
by the Back Country Land Trust. Thirty-eight percent of this unit 
(4,213 ha (10,411 ac)) is owned and managed by the U.S. Fish and 
Wildlife Service, the U.S. Forest Service, and the Bureau of Land 
Management.

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.
    We published a final regulation with a revised definition of 
destruction or adverse modification on August 27, 2019 (84 FR 44976). 
Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal Agency, 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

[[Page 1036]]

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 
formal consultation on previously reviewed actions. These requirements 
apply when the Federal agency has retained discretionary involvement or 
control over the action (or the agency's discretionary involvement or 
control is authorized by law) and, subsequent to the previous 
consultation, we have listed a new species or designated critical 
habitat that may be affected by the Federal action, or the action has 
been modified in a manner that affects the species or critical habitat 
in a way not considered in the previous consultation. In such 
situations, Federal agencies sometimes may need to request reinitiation 
of consultation with us, but the regulations also specify some 
exceptions to the requirement to reinitiate consultation on specific 
land management plans after subsequently listing a new species or 
designating new critical habitat. See the regulations for a description 
of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed 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 violate 7(a)(2) 
of the Act by destroying or adversely modifying such designation.
    Activities that the Services may, during a consultation under 
section 7(a)(2) of the Act, find are likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    Actions that would remove spiny redberry host plants or a 
significant amount of nectar source plants. Such activities could 
include, but are not limited to, residential and commercial 
development, and conversion to agricultural orchards or fields. These 
activities could permanently eliminate or reduce the habitat necessary 
for the growth and reproduction of Hermes copper butterflies.

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) 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 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. Marine Corps Air 
Station Miramar is the only military installation located within the 
range of the proposed critical habitat designation for the Hermes 
copper butterfly that has a completed, Service-approved INRMP. As 
discussed below, we analyzed the INRMP to determine if it meets the 
criteria for exemption from critical habitat under section 4(a)(3) of 
the Act.

Approved INRMP

Marine Corps Air Station Miramar--Unit 2 (967 ha (2,389 ac))
    Marine Corps Air Station (MCAS) Miramar has an approved INRMP 
completed in June 2018. The U.S. Marine Corps is committed to working 
closely with the Service and California Department of Fish and Wildlife 
to continually refine the existing INRMP as part of the Sikes Act's 
INRMP review process. The MCAS Miramar INRMP overall strategy for 
conservation and management is to: (1) Limit activities, minimize 
development, and perform mitigation actions in areas supporting high 
densities of vernal pool habitat, threatened or endangered species, and 
other wetlands; and (2) manage activities and development in areas of 
low densities, or no regulated resources, with site-specific measures 
and programmatic instructions.
    The MCAS Miramar INRMP contains elements that benefit the Hermes 
copper butterfly, such as mitigation guidance for projects which may 
impact Hermes copper butterfly or its habitat (MCAS Miramar 2018, p. 6-
13) and natural resources management goals and objectives which support 
both Hermes copper butterfly conservation and military operational 
requirements. Identified management actions within the INRMP include 
restoring degraded sites, restricting access to sensitive

[[Page 1037]]

areas, training military personnel to recognize and avoid sensitive 
areas, invasive species removal, surveys to identify areas suitable for 
habitat restoration or enhancement, and long-term ecosystem monitoring 
(MCAS Miramar 2018, p. 7-17). The INRMP also includes measures to avoid 
or minimize the effects of planned actions, such as limiting training 
and land management activities during flight season, as well as 
minimizing off-road activities to avoid damage to host plants and 
crushing eggs and larval butterflies (MCAS Miramar 2018, p. 5-7). It 
further provides guidance for project planners on required impact 
avoidance, minimization, and compensation of occupied and unoccupied 
habitat. Overall, these measures will protect Hermes copper butterflies 
from impacts such as loss of spiny redberry and nectar plants from 
direct and indirect effects of planned actions and will minimize 
conflicts with military operational needs. In total, 967 ha (2,389 ac) 
on MCAS Miramar meet the definition of critical habitat for the Hermes 
copper butterfly.
    Based on our review of the Hermes copper butterfly habitat on MCAS 
Miramar, the MCAS Miramar INRMP, and the above considerations, and in 
accordance with section 4(a)(3)(B)(i) of the Act, we have determined 
that the identified lands are subject to the Marine Corps Air Station 
Miramar INRMP and that conservation efforts identified in the INRMP 
will provide a benefit to the Hermes copper butterfly. Therefore, lands 
within this installation are exempt from critical habitat designation 
under section 4(a)(3) of the Act. We are not including approximately 
967 ha (2,389 ac) of habitat in this proposed critical habitat 
designation because of this exemption.

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 he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    We have not considered any areas for exclusion from critical 
habitat. However, the final decision on whether to exclude any areas 
will be based on the best scientific data available at the time of the 
final designation, including information obtained during the comment 
period and information about the economic impact of designation. 
Accordingly, we have prepared a draft economic analysis concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.'' The ``without 
critical habitat'' scenario represents the baseline for the analysis, 
which includes the existing regulatory and socio-economic burden 
imposed on landowners, managers, or other resource users potentially 
affected by the designation of critical habitat (e.g., under the 
Federal listing as well as other Federal, State, and local 
regulations). The baseline, therefore, represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    For this particular designation, we developed an Incremental 
Effects Memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat (Service 2018b). The information contained in our IEM was then 
used to develop a screening analysis of the probable effects of the 
designation of critical habitat for the Hermes copper butterfly (IEc 
2018, entire). We began by conducting a screening analysis of the 
proposed designation of critical habitat in order to focus our analysis 
on the key factors that are likely to result in incremental economic 
impacts. The purpose of the screening analysis is to filter out the 
geographic areas in which the critical habitat designation is unlikely 
to result in probable incremental economic impacts. In particular, the 
screening analysis considers baseline costs (i.e., absent critical 
habitat designation), including probable economic impacts where land 
and water use may be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species. 
The screening analysis filters out particular areas of critical habitat 
that are already subject to such protections and are, therefore, 
unlikely to incur incremental economic impacts. Ultimately, the 
screening analysis allows us to focus our analysis on evaluating the 
specific areas or sectors that may incur probable incremental economic 
impacts as a result of the designation. The screening analysis also 
assesses whether units are unoccupied by the species and, as a result 
of the critical habitat designation for the species, may require 
additional management or conservation efforts that may incur 
incremental economic impacts. This screening analysis and the 
information contained in our IEM are what we consider our draft 
economic analysis of the proposed critical habitat designation for the 
Hermes copper butterfly and are summarized in the narrative below.
    Executive Orders 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

[[Page 1038]]

analysis requirements, our effects analysis under the Act may take into 
consideration impacts to both directly and indirectly affected 
entities, where practicable and reasonable. If sufficient data are 
available, we assess to the extent practicable the probable impacts to 
both directly and indirectly affected 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 proposed designation of 
critical habitat for the Hermes copper butterfly, first we identified 
probable incremental economic impacts associated with the following 
categories of activities: (1) Agriculture, (2) development; (3) forest 
management; (4) grazing; (5) mining; (6) recreation; (7) renewable 
energy; (8) transportation; and (9) utilities (Service 2018b, p. 2). We 
considered each industry or category individually. Additionally, we 
considered whether their activities have any Federal involvement. 
Critical habitat designation only requires consideration of potential 
project effects when there is an action conducted, funded, permitted, 
or authorized by Federal agencies. If listed, in areas where the Hermes 
copper butterfly is present, Federal agencies would already be required 
to consult with the Service under section 7 of the Act on activities 
they fund, permit, or implement that may affect the species.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Hermes 
copper butterfly's critical habitat. Because the designation of 
critical habitat for Hermes copper butterfly is proposed concurrently 
with the listing, it is difficult to discern which conservation efforts 
are attributable to the species being listed and those which will 
result solely from the designation of critical habitat. The essential 
physical or biological features identified for Hermes copper butterfly 
critical habitat are the same features essential for the life 
requisites of the species. In particular, because the Hermes copper 
butterfly is closely associated with the plant species essential for 
its conservation, and because it is a non-migratory species that 
remains on spiny redberry plants during all immature stages, and on the 
plant as an adult, reasonable and prudent alternatives needed to avoid 
jeopardy from impacts to the species' life-requisite habitat features 
would also likely serve to avoid destruction or adverse modification of 
critical habitat resulting from those impacts. Additionally, measures 
to avoid or minimize take of the species (attributable to listing) 
would also likely serve to address impacts to critical habitat.
    The proposed critical habitat designation for the Hermes copper 
butterfly totals approximately 14,249 ha (35,211 ac) in three units, 
all of which are occupied by the species. The screening memo found that 
incremental costs associated with section 7 consultations would likely 
be low for the Hermes copper butterfly for several reasons (IEc 2018, 
p. 9). First, the majority of the critical habitat designation is on 
State, private, and local lands where a Federal nexus is unlikely 
(although there are a few areas where the Army Corps of Engineers has 
jurisdiction). Secondly, given that all the proposed units are 
occupied, should a Federal nexus exist, any proposed projects would 
need to undergo some form of consultation due to the presence of the 
butterfly regardless of critical habitat designation.
    Additionally, as previously stated, we expect that any project 
modifications identified to avoid jeopardy that would result from 
project-related effects to habitat features required by the species 
would be similar to those identified to avoid destruction or adverse 
modification of the critical habitat's physical or biological features 
essential to the conservation of the species. Furthermore, all critical 
habitat units overlap to some degree with critical habitat for other 
listed species or with various conservation plans, State plans, or 
Federal regulations. These protections may also benefit the Hermes 
copper butterfly, even in the absence of critical habitat for the 
species.
    When an action is proposed in an area of occupied designated 
critical habitat, and the proposed activity has a Federal nexus, the 
need for consultation is triggered. Any incremental costs associated 
with consideration of potential effects to the critical habitat are a 
result of this consultation process. Overall, we expect that agency 
administrative costs for consultation, incurred by the Service and the 
consulting Federal agency, would be minor (less than $6,000 per 
consultation effort) and, therefore, would not be significant (IEc 
2018, p. 10). In addition, based on the non-inclusion of lands likely 
to have a Federal nexus (such as riparian vegetation associations), and 
coordination efforts with State and local agencies, we expect the 
overall incremental costs will be minor.
    Therefore, incremental costs would be limited to additional 
administrative efforts by the Service and consulting Federal agencies 
to include consideration of potential effects to the designated 
critical habitat in otherwise needed consultations. These future costs 
are unknown, but expected to be relatively small given the projections 
by affected entities and are unlikely to exceed $100,000 in any given 
year. Consequently, future probable incremental economic impacts are 
not likely to exceed $100 million in any single year and would 
therefore not be significant.

Consideration of National Security Impacts or Homeland Security Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the impact to national security that may result from a 
designation of critical habitat. For this proposed rule, we considered 
whether there are lands owned or managed by the Department of Defense 
within proposed critical habitat where a national security impact might 
exist. In this case, we are exempting under section 4(a)(3) of the Act 
all lands that meet the definition of critical habitat owned by the 
Department of Defense. Additionally, in preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for Hermes copper butterfly are not owned or managed 
by the Department of Homeland Security. Therefore, we anticipate no 
impact on national security.

Consideration of Other Relevant Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we also consider any other relevant impacts that may result from a 
designation of critical habitat. In conducting that analysis, we 
consider a number of factors including whether there are permitted 
conservation plans covering the species in the area such as HCPs, safe 
harbor agreements, or candidate conservation agreements with 
assurances, or whether there are non-permitted conservation agreements 
and partnerships that would be encouraged by designation of, or 
exclusion from, critical habitat. In addition, we look at the existence 
of any Tribal conservation plans and partnerships 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.

[[Page 1039]]

    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for the Hermes copper 
butterfly, and the proposed designation does not include any Tribal 
lands or trust resources. We anticipate no impact on Tribal lands, 
partnerships, or HCPs from this proposed critical habitat designation.
    As we stated earlier, we are soliciting data and comments from the 
public on the draft economic analysis, as well as all aspects of the 
proposed rule and our required determinations. We may revise the 
proposed rule or supporting documents to incorporate or address 
information we receive during the public comment period. In particular, 
we may exclude an area from critical habitat if we determine that the 
benefits of excluding the area outweigh the benefits of including the 
area, provided the exclusion will not result in the extinction of this 
species.

Exclusions

    At this time, the Secretary does not intend to exercise his 
discretion to exclude any areas from the final designation of critical 
habitat under section 4(b)(2) of the Act. During the development of the 
final designation, we will consider any additional information related 
to the economic impacts, national security impacts, or any other 
relevant impacts of specifying any particular area as critical habitat 
that is received through the public comment period, and as such areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
in conservation by Federal, State, Tribal, and local agencies, as well 
as private organizations and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies and the prohibitions against certain activities are 
discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan for the Hermes copper butterfly, if listed, will be 
available on our website (http://www.fws.gov/endangered), or from our 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of California would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Hermes copper butterfly. Information 
on our grant programs that are available to aid species recovery can be 
found at: http://www.fws.gov/grants.
    Although the Hermes copper butterfly is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include activities that may affect the species, land 
management, and any other landscape-altering activities that may affect 
the physical or biological features essential to the conservation of 
the species.

Proposed Rule Provisions

    Under section 4(d) of the Act, the Service has discretion to issue 
regulations that we find necessary and advisable to provide for the 
conservation of threatened species

[[Page 1040]]

(hereafter referred to as a ``4(d) rule''). Through a 4(d) rule, we may 
prohibit by regulation with respect to threatened wildlife any act 
prohibited by section 9(a)(1) of the Act for endangered wildlife. 
Exercising this discretion, the Service has developed a 4(d) rule for 
the Hermes copper butterfly containing all the general prohibitions and 
exceptions to those prohibitions that is tailored to the specific 
threats and conservation needs of this species.
    As discussed above in the Summary of Factors Affecting the Species 
section of this proposed listing rule and the SSA (Service 2018a, pp. 
15 and 16), factors limiting the distribution of Hermes copper 
butterfly are not entirely understood, since the species' distribution 
is much more restricted than its host plant. The highest magnitude 
threats to the Hermes copper butterfly include extirpation of 
populations by wildfire and loss and isolation of populations due to 
development.
    This 4(d) rule describes how and where the prohibitions of section 
9(a)(1) of the Act will be applied. As described in more detail later 
in this section, this proposed 4(d) rule identifies a certain portion 
of the species' range that would not be subject to the take 
prohibitions under section 9(a)(1) of the Act (Figure 1). Outside of 
the area delineated in Figure 1, this proposed 4(d) rule would prohibit 
all acts described under section 9(a)(1) of the Act, except take 
resulting from the activities listed below when conducted within 
habitats occupied by the Hermes copper butterfly. All of the activities 
listed below must be conducted in a manner that (1) maintains 
contiguity of suitable habitat for the species within and dispersal 
corridor connectivity among populations, allowing for maintenance of 
populations and recolonization of unoccupied, existing habitat; (2) 
does not increase the risk of wildfire in areas occupied by the Hermes 
copper butterfly while preventing further habitat fragmentation and 
isolation, or degradation of potentially suitable habitat; and (3) does 
not preclude efforts to augment or reintroduce populations of the 
Hermes copper butterfly within its historical range with management of 
the host plant. Some exempted activities must be coordinated with and 
reported to the Service in writing and approved to ensure accurate 
interpretation of exemptions (for example, that activities do not 
adversely affect the species' conservation and recovery). Questions 
regarding the proposed application of these requirements should be 
directed to the Carlsbad Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).
    This proposed 4(d) rule would exempt from the prohibitions in 
section 9(a)(1) of the Act take resulting from any of the following 
activities when conducted within habitats occupied by the Hermes copper 
butterfly:
    (1) Survey and monitoring work in coordination with and reported to 
the Service as part of scientific inquiry involving quantitative data 
collection (such as population status determinations).
    (2) Habitat management or restoration activities, including removal 
of nonnative, invasive plants, expected to provide a benefit to Hermes 
copper butterfly or other sensitive species of the chaparral and 
coastal sage scrub ecosystems, including removal of nonnative, invasive 
plants. These activities must be coordinated with and reported to the 
Service in writing and approved the first time an individual or agency 
undertakes them.
    (3) Activities necessary to maintain the minimum clearance 
(defensible space) requirement of 30 m (100 ft) from any occupied 
dwelling, occupied structure, or to the property line, whichever is 
nearer, to provide reasonable fire safety and comply with State of 
California fire codes to reduce wildfire risks.
    (4) Fire management actions on protected/preserve lands to 
maintain, protect, or enhance coastal sage scrub and chaparral 
vegetation. These activities must be coordinated with and reported to 
the Service in writing and approved the first time an individual or 
agency undertakes them.
    (5) Maintenance of existing fuel breaks identified by local fire 
authorities to protect existing structures.
    (6) Firefighting activities associated with actively burning fires 
to reduce risk to life or property.
    (7) Collection, transportation, and captive-rearing of Hermes 
copper butterfly for the purpose of population augmentation or 
reintroduction, maintaining refugia, or as part of scientific inquiry 
involving quantitative data collection (such as survival rate, larval 
weights, and post-release monitoring) approved by, in coordination 
with, and reported to the Service. This does not include activities 
such as personal ``hobby'' collecting and rearing intended for 
photographic purposes and re-release.
    (8) Research projects involving collection of individual fruits, 
leaves, or stems of the Hermes copper butterfly host plant, spiny 
redberry, approved by, in coordination with, and reported to the 
Service.
    We believe these actions and activities, while they may result in 
some minimal level of mortality, harm, or disturbance to the Hermes 
copper butterfly, are not expected to adversely affect the species' 
conservation and recovery. In fact, we expect they would have a net 
beneficial effect on the species. Across the species' range, suitable 
habitat has been degraded or fragmented by development and wildfire, 
including megafires. The activities covered by this proposed 4(d) rule 
will address some of these problems, creating more favorable habitat 
conditions for the species and helping to stabilize or increase 
populations of the species. Like the proposed listing rule, this 
proposed 4(d) rule will not be finalized until we have reviewed 
comments from the public and peer reviewers.
    Additionally, we are proposing under section 4(d) of the Act to 
delineate a certain portion of the species' range that would not be 
subject to the take prohibitions under section 9(a)(1) of the Act 
(Figure 1). Areas inside this portion of the species' range capture all 
remnant habitat areas where there is any possibility of Hermes copper 
butterfly occupancy and where we are confident they would not 
contribute significantly to species' recovery because of limited 
available habitat and connectivity. They are unlikely to contribute to 
recovery because any occupied areas within the boundary are too small 
and isolated to support a population in the long term. The intent is to 
provide regulatory relief to those who might otherwise be affected by 
the species being listed as threatened, and to encourage and strengthen 
conservation partnerships among Federal, State, and local agencies; and 
other partners and other public we serve.
    The areas where the section 9(a)(1) prohibitions would not apply 
are shown in Figure 1. These areas were designed in the following way: 
The southern edge is the Mexican border and the western edge is the 
Pacific coast. The eastern and northern edges of the boundary follow 
the development that would isolate any extant populations found within 
the boundaries. We did not include areas where we believed there was 
any chance of future dispersal corridor connectivity among extant 
populations, including habitat that could potentially be managed or 
restored to act as suitable connecting habitat. For a more detailed map 
of the areas where the section 9(a)(1) prohibitions would not apply, 
please contact the Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

[[Page 1041]]

[GRAPHIC] [TIFF OMITTED] TP08JA20.001

    Based on the rationale above, the provisions included in this 
proposed 4(d) rule are necessary and advisable to provide for the 
conservation of the Hermes copper butterfly. Nothing in this proposed 
4(d) rule would change in any way the recovery planning provisions of 
section 4(f) of the Act, the consultation requirements under section 7 
of the Act, or the ability of the Service to enter into partnerships 
for the management and protection of the Hermes copper butterfly.

Activities Subject to Take Prohibitions

    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. There are also certain 
statutory exemptions from the prohibitions, which are found in sections 
9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing regulations and permit 
requirements or within the portion of the species' range

[[Page 1042]]

described above that would not be subject to the take prohibitions; 
this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
pesticide use, which are carried out in accordance with any existing 
regulations, permit and label requirements, and best management 
practices;
    (2) Normal residential and urban landscape activities, such as 
mowing, edging, fertilizing, etc.; and
    (3) Recreation and management at National Forests that is conducted 
in accordance with existing USFS regulations and policies.
    Based on the best available information, the following activities 
may potentially result in violation of section 9 of the Act; this list 
is not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species (adults, eggs, 
larvae, or pupae), including transport across State lines and 
international boundaries, except for properly documented antique 
specimens of these taxa at least 100 years old, as defined by section 
10(h)(1) of the Act;
    (2) Unauthorized modification, removal, or destruction of spiny 
redberry within the species' range that is known to be occupied by 
Hermes copper butterfly and that may result in death or injury of 
adults, eggs, larvae, or pupae; and
    (3) Illegal pesticide applications (i.e., in violation of label 
restrictions) in or adjacent to (due to spray drift concerns) habitat 
known to be occupied by Hermes copper butterfly that may result in 
death or injury of adults, eggs, larvae, or pupae.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Carlsbad 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

Clarity of the Rule

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

Executive Order 13771

    We do not believe this proposed rule is an E.O. 13771 (``Reducing 
Regulation and Controlling Regulatory Costs'') (82 FR 9339, February 3, 
2017) regulatory action because we believe this rule is not significant 
under E.O. 12866; however, the Office of Information and Regulatory 
Affairs has waived their review regarding their E.O. 12866 significance 
determination of this proposed rule.

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 waived their review regarding 
their significance determination of this proposed rule.
    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 out 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

[[Page 1043]]

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 the 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 proposed 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.

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. In our economic analysis, we did not find that the 
designation of this proposed critical habitat will significantly affect 
energy supplies, distribution, or use. Furthermore, although it does 
include areas where powerlines and power facility construction and 
maintenance may occur in the future, it will not produce a Federal 
mandate of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. 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 this rule would significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Hermes copper butterfly in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures, or restrictions on 
use of or access to the designated areas. Furthermore, the designation 
of critical habitat 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. However, Federal agencies are prohibited from carrying out, 
funding, or authorizing actions that would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
and concludes that this designation of critical habitat for the Hermes 
copper butterfly does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we request information from, and coordinated 
development of this proposed critical habitat designation with, 
appropriate State resource agencies in California. 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 or 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

[[Page 1044]]

(because these local governments no longer have to wait for case-by-
case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would 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 requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed 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 species. 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 listing a species 
as an endangered or threatened species or 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)).]

References Cited

    A complete list of references cited in this proposed rulemaking is 
available on the internet at http://www.regulations.gov and upon 
request from the Carlsbad Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Carlsbad Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11(h) by adding an entry for ``Butterfly, Hermes 
copper'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under ``Insects'' to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name                Scientific name        Where listed      Status       applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Insects
 
                                                  * * * * * * *
Butterfly, Hermes copper.........  Lycaena hermes......  Wherever found.....        T   [Federal Register
                                                                                         citation when published
                                                                                         as a final rule]; 50
                                                                                         CFR 17.47(d) 4d; 50 CFR
                                                                                         17.95(i) CH.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.47 by adding paragraph (d) to read as follows:


Sec.  17.47  Special rules--insects.

* * * * *
    (d) Hermes copper butterfly (Lycaena hermes)--(1) Prohibitions. 
Except as noted in paragraph (d)(2) of this section, all prohibitions 
and provisions of 16 U.S.C. 1538(a)(1) and 50 CFR 17.32 apply to the 
Hermes copper butterfly.
    (2) Exceptions from prohibitions. (i) All of the activities listed 
in paragraph (d)(2)(ii) of this section occurring outside the area 
delineated in paragraph (d)(2)(iii) of this section must be conducted 
in a manner that:
    (A) Maintains contiguity of suitable habitat for the species within 
and dispersal corridor connectivity among populations, allowing for 
maintenance of populations and recolonization of unoccupied, existing 
habitat;
    (B) Does not increase the risk of wildfire in areas occupied by the 
Hermes copper butterfly while preventing further habitat fragmentation 
and isolation, or degradation of potentially suitable habitat; and
    (C) Does not preclude efforts to augment or reintroduce populations 
of the Hermes copper butterfly within its historical range with 
management of the host plant.
    (ii) Take of the Hermes copper butterfly outside the area 
delineated in paragraph (d)(2)(iii) of this section will

[[Page 1045]]

not be considered a violation of section 9 of the Act if the take 
results from any of the following activities when conducted within 
habitats occupied by the Hermes copper butterfly:
    (A) Survey and monitoring work in coordination with and reported to 
the Service as part of scientific inquiry involving quantitative data 
collection (such as population status determinations).
    (B) Habitat management or restoration activities, including removal 
of nonnative, invasive plants, expected to provide a benefit to Hermes 
copper butterfly or other sensitive species of the chaparral and 
coastal sage scrub ecosystems, including removal of nonnative, invasive 
plants. These activities must be coordinated with and reported to the 
Service in writing and approved the first time an individual or agency 
undertakes them.
    (C) Activities necessary to maintain the minimum clearance 
(defensible space) requirement of 30 m (100 ft) from any occupied 
dwelling, occupied structure, or to the property line, whichever is 
nearer, to provide reasonable fire safety and comply with State of 
California fire codes to reduce wildfire risks.
    (D) Fire management actions on protected/preserve lands to 
maintain, protect, or enhance coastal sage scrub and chaparral 
vegetation. These activities must be coordinated with and reported to 
the Service in writing and approved the first time an individual or 
agency undertakes them.
    (E) Maintenance of existing fuel breaks identified by local fire 
authorities to protect existing structures.
    (F) Firefighting activities associated with actively burning fires 
to reduce risk to life or property.
    (G) Collection, transportation, and captive-rearing of Hermes 
copper butterfly for the purpose of population augmentation or 
reintroduction, maintaining refugia, or as part of scientific inquiry 
involving quantitative data collection (such as survival rate, larval 
weights, and post-release monitoring) in coordination with and reported 
to the Service. This does not include activities such as personal 
``hobby'' collecting and rearing intended for photographic purposes and 
re-release.
    (H) Research projects involving collection of individual fruits, 
leaves, or stems of the Hermes copper butterfly host plant, spiny 
redberry, in coordination with and reported to the Service.
    (iii) A portion of the range of the Hermes copper butterfly is 
exempt from all take prohibitions under section 9(a)(1) of the Act.
    (A) The southern edge is the Mexican border, and the western edge 
is the Pacific coast. The eastern and northern edges of the boundary 
follow the development that would isolate any extant populations found 
within the boundaries.
    (B) Note: The map of areas exempted from take prohibitions follows:

[[Page 1046]]

[GRAPHIC] [TIFF OMITTED] TP08JA20.002

    (3) Contact information. To contact the Service, see 50 CFR 2.2 for 
a list of the addresses for the Service regional offices.
0
4. Amend Sec.  17.95(i) by adding an entry for ``Hermes copper 
butterfly (Lycaena hermes),'' in alphabetical order to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *

Hermes Copper Butterfly (Lycaena hermes)

    (1) Critical habitat units are depicted for San Diego County, 
California, on the maps below.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Hermes copper butterfly consist of 
the following components when found between 30 m and 1,341 m above sea 
level:
    (i) Spiny redberry host plants.
    (ii) Nectar sources for adult butterflies.
    (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 
[EFFECTIVE DATE OF THE FINAL RULE].
    (4) Critical habitat was mapped using GIS analysis tools and 
refined using 2016 NAIP imagery and/or the World Imagery layer from 
ArcGIS Online. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at http://www.regulations.gov at 
Docket

[[Page 1047]]

No. FWS-R8-ES-2017-0053 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) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP08JA20.003
    
    (6) Unit 1: Lopez Canyon, San Diego County, California.
    (i) Unit 1 consists of 166 ha (410 ac) in San Diego County and is 
composed of lands jointly owned and managed by the City and County of 
San Diego (88 ha (218 ac)) and private or other ownership (77 ha (191 
ac)).
    (ii) Note: Map of Unit 1, Lopez Canyon, follows:

[[Page 1048]]

[GRAPHIC] [TIFF OMITTED] TP08JA20.004

    (7) Unit 2: Miramar/Santee, San Diego County, California.
    (i) Unit 2 consists of 2,870 ha (7,092 ac) in San Diego County and 
is composed of lands owned and managed by the State of California (111 
ha (275 ac)), local jurisdictions (primarily the County of San Diego; 
1,113 ha (2,750 ac)), and private or other ownership (1,646 ha (4,068 
ac)).
    (ii) Note: Map of Unit 2, Miramar/Santee, follows:

[[Page 1049]]

[GRAPHIC] [TIFF OMITTED] TP08JA20.005

    (8) Unit 3: Southeast San Diego, San Diego County, California.
    (i) Unit 3 consists of 11,213 ha (27,709 ac) in San Diego County 
and is composed of lands owned by the Federal Government (4,213 ha 
(10,411 ac)), the State of California (2,074 ha (5,124 ac)), local 
jurisdictions (primarily the City and County of San Diego; 1,162 ha 
(2,871 ac)), and private or other ownership (3,765 ha (9,303 ac)).
    (ii) Note: Map of Unit 3, Southeast San Diego, follows:

[[Page 1050]]

[GRAPHIC] [TIFF OMITTED] TP08JA20.006

* * * * *

    Dated: November 26, 2019.
Margaret E. Everson,
Principal Deputy Director, Exercising the Authority of the Director, 
for the U.S. Fish and Wildlife Service.
[FR Doc. 2019-28461 Filed 1-7-20; 8:45 am]
 BILLING CODE 4333-15-P