[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Rules and Regulations]
[Pages 28874-28916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09219]



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Vol. 88

Thursday,

No. 86

May 4, 2023

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Slickspot Peppergrass (Lepidium papilliferum); Final Rule

  Federal Register / Vol. 88 , No. 86 / Thursday, May 4, 2023 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0071; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE61


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Slickspot Peppergrass (Lepidium papilliferum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
finalize the designation of critical habitat for slickspot peppergrass 
(Lepidium papilliferum) under the Endangered Species Act of 1973 as 
amended (Act). In total, approximately 31,569 hectares (78,009 acres) 
in Ada, Elmore, Gem, Payette, and Owyhee Counties in Idaho fall within 
the boundaries of the final critical habitat designation. The effect of 
this final rule is to designate critical habitat for the slickspot 
peppergrass, which is a threatened species under the Act.

DATES: This rule is effective June 5, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov, under Docket No. FWS-R1-ES-2010-0071, and at 
https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Comments and materials we received, as well as supporting 
documentation we used in preparing this rule, are available for public 
inspection at https://www.regulations.gov under Docket No. FWS-R1-ES-
2010-0071.
    The coordinates or plot points or both from which the maps are 
generated are included in the decision file for this critical habitat 
designation and are available at https://www.regulations.gov, under 
Docket No. FWS-R1-ES-2010-0071, and at https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Additional supporting 
information that we developed for this critical habitat designation 
will be available on the Service's website (https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum), at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Lisa Ellis, State Supervisor, U.S. 
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S 
Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, any species that is 
determined to be an endangered or threatened species requires critical 
habitat to be designated, to the maximum extent prudent and 
determinable. Designations and revisions of critical habitat can only 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process. We reinstated slickspot peppergrass 
as a threatened species under the Act effective September 16, 2016 (81 
FR 55058, August 17, 2016), published an updated revised proposed rule 
to designate critical habitat on July 23, 2020 (85 FR 44584), and are 
now finalizing our designation of critical habitat for the species.
    What this rule does. This final rule designates critical habitat 
for slickspot peppergrass on approximately 31,569 hectares (ha) (78,009 
acres (ac)) in Ada, Elmore, Gem, Payette, and Owyhee Counties in Idaho.
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary) to designate critical habitat 
concurrent with listing to the maximum extent prudent and determinable. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographic area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protections; and (ii) 
specific areas outside the geographic area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat. Also, under section 4(b)(2) of the Act, the 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such an exclusion outweigh the benefits of 
specifying such areas as part of critical habitat, unless she 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.
    The critical habitat we are designating in this rule, consisting of 
four units and seven subunits comprising 31,569 ha (78,009 ac) for 
slickspot peppergrass, constitutes our current best assessment of the 
areas that meet the definition of critical habitat for the species.
    Economic analysis. In order to consider economic impacts, we 
previously prepared an analysis of the economic impacts of the proposed 
critical habitat designation and related factors. The final economic 
analysis, completed March 12, 2012, was based on the 2011 proposed 
critical habitat and concluded that critical habitat designation would 
not likely affect levels of economic activity or conservation measures 
being implemented within the proposed critical habitat area. The final 
economic analysis is available at https://www.regulations.gov under the 
docket number for this rulemaking, which is FWS-R1-ES-2010-0071.

Previous Federal Actions

    On December 7, 2009, slickspot peppergrass was listed as a 
threatened species throughout its range (74 FR 52014, October 8, 2009). 
On May 10, 2011, we published a proposed rule to designate critical 
habitat for slickspot peppergrass (76 FR 27184). On August 8, 2012, the 
District Court of Idaho vacated the final rule listing slickspot 
peppergrass as a threatened species under the Act and remanded the rule 
to the Service for further consideration consistent with the Court's 
opinion (Gov. C.L. ``Butch'' Otter, et al. v. Ken Salazar, et al., Case 
No. 1:11-cv-00358-CWD [D. Idaho]). On February 12, 2014, we 
concurrently proposed reinstatement of threatened status for the 
species and a revised proposed designation of critical habitat (79 FR 
8416 and 79 FR 8402, respectively). On August 17, 2016, we published a 
final rule reinstating threatened status for the species under the Act 
(81 FR 55058). On July 23, 2020, we published an updated revised 
proposed rule to designate critical habitat (85 FR 44584).

Summary of Changes From the Proposed Rule

    Our July 23, 2020, revised proposed critical habitat rule (85 FR 
44584) detailed changes from the previous

[[Page 28875]]

proposed and revised critical habitat rules (76 FR 27184, May 10, 2011; 
79 FR 8402, February 12, 2014). Here, we summarize changes from our 
July 23, 2020, proposed rule (85 FR 44584) to this final rule resulting 
from the comments we received during the public comment period, as 
discussed below under Summary of Comments and Recommendations.
    1. We added six new Element Occurrences (EOs) (recorded species 
locations) that were occupied at the time of listing but had not been 
evaluated in our proposed rule for physical or biological features 
(PBFs) essential to the conservation of the species. For this final 
rule, we determined that these six EOs contained one or more PBFs. See 
the Criteria and Methodology Used To Identify Critical Habitat section, 
below, for details.
    2. In our proposed rule, we did not include E.O. 57 based on 
surveys that indicated it did not meet our PBF criteria. However, we 
re-evaluated the PBFs for E.O. 57 and determined that it contained one 
or more PBFs; therefore, we are including it in our final critical 
habitat designation. See the Criteria and Methodology Used to Identify 
Critical Habitat section, below, for details.
    3. We included D-ranked EOs, which represent the lowest ranked 
occupied EOs. The E.O. alphabetical ranking system measures viability 
of a species or ecological integrity of the community and was developed 
by NatureServe (2002, 2020b). The Idaho Department of Fish and Game 
(IDFG) uses this system, and we relied on IDFG rankings to determine if 
EOs contained one or more PBFs. Our rationale for including D-ranked 
EOs is provided in the section Criteria and Methodology Used to 
Identify Critical Habitat, below.
    4. We increased the buffer around EOs from 250 meters (m) (820 feet 
(ft)) to 500 m (1,640 ft). This increase is based on foraging distances 
of most of the important pollinators of slickspot peppergrass instead 
of using the foraging distance of a single pollinator (solitary bee), 
which was how we determined the buffer size in our proposed rule. We 
provided additional citations on foraging distances of the other 
pollinator species to support this increase in the section Physical or 
Biological Features Essential to the Conservation of the Species, 
below.
    5. We excluded approximately 2,736 ha (6,761 ac) of State of Idaho 
land and 4,508 ha (11,141 ac) of private and municipal (county and 
city) land from our critical habitat designation under section 4(b)(2) 
of the Act, as detailed in Considerations of Impacts under Section 
4(b)(2) of the Act, below.
    6. We clarified our description of the PBFs to provide more context 
but did not change their meaning. A description of PBFs is in the 
section Physical or Biological Features Essential to the Conservation 
of the Species with additional discussion provided under Criteria and 
Methodology Used to Identify Critical Habitat, below.
    7. We deleted ``honeybees'' from our description of PBF 4 under the 
Summary of Essential Physical or Biological Features and from paragraph 
(2)(iv) of the rule. Please see Physical or Biological Features 
Essential to the Conservation of the Species for additional information 
and citations.
    8. We made small, nonsubstantive clarifications and corrections 
throughout this final rule to ensure consistency, clarify information, 
reduce redundancy, update scientific names of plants, and update or add 
new references.
    The combined effect of the changes we have made from our July 23, 
2020, proposed rule (85 FR 44584) to this final rule result in an 
increase from a proposed designation of critical habitat of 17,049 ha 
(42,129 ac) to a final designation of critical habitat of approximately 
31,569 ha (78,009 ac). The reasons for this increase are mentioned in 
the list above and explained more thoroughly in the following sections 
of the preamble.

Supporting Documents

    In 2011, we sought comments from five independent specialists to 
ensure that our proposed critical habitat designation was based on 
scientifically sound data and analyses regarding the 2011 proposed 
rule. We received responses from three of the individuals. In 2020, we 
completed a species status assessment (SSA) report for slickspot 
peppergrass. The SSA report represents a compilation of the best 
scientific and commercial data available concerning the status of the 
species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species.
    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 sought peer review of the SSA report. 
In August 2018, we solicited expert opinion and received responses from 
four independent specialists with scientific expertise on slickspot 
peppergrass and its habitat regarding our draft SSA report. The purpose 
of peer review is to ensure that our critical habitat designations are 
based on scientifically sound data, assumptions, and analyses. The peer 
reviewers generally concurred with our methods and conclusions, and 
provided additional information, clarifications, and suggestions to 
improve the SSA report. That information was incorporated into the 
final SSA that informed our proposed and final designation of critical 
habitat. We also considered all comments and information we received 
from the public during comment periods for previous proposals (76 FR 
27184, May 10, 2011; 79 FR 8402, February 12, 2014; 85 FR 44584, July 
23, 2020).
    The final economic analysis (dated March 12, 2012), which documents 
the potential economic effects of the designation, considered all 
public comments and any new information as of 2011 (IEc 2012).
    The final SSA report (USFWS 2020) and final economic analysis (IEc 
2012) are available at https://www.regulations.gov under Docket No. 
FWS-R1-ES-2010-0071.

Summary of Comments and Recommendations

    In our revised proposed rule published on July 23, 2020 (85 FR 
44584), we requested that all interested parties submit written 
comments on the proposal by September 21, 2020. We also stated in the 
July 23, 2020, revised proposed rule (85 FR 44584) that comments 
submitted during the previous comment periods for the May 10, 2011, 
proposed rule (76 FR 27184) and the February 12, 2014, revised proposed 
rule (79 FR 8402) would be considered. For all comment periods, we 
reached out to appropriate Federal and State agencies, Tribes, 
scientific experts and organizations, and other interested parties and 
inviting them to comment on the proposal. Newspaper legal notices 
requesting public comments were published in the Idaho Statesman. We 
did not receive any requests for a public hearing during any of our 
comment periods.
    During the first comment period (76 FR 27184, May 10, 2011), we 
received 16 comment letters addressing the proposed critical habitat 
designation for slickspot peppergrass. Of these comments, 3 were from 
peer reviewers and 13 were from public organizations or individuals. 
During the second comment period (79 FR 8402, February 12, 2014), we 
received 17 comment letters addressing the proposed critical habitat 
designation or the draft economic analysis. For the most recent comment 
period (85 FR 44584, July 23, 2020), we received 23 comment letters on 
the proposed rule to designate

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critical habitat for slickspot peppergrass; the majority of commenters 
supported the designation of critical habitat. All substantive 
information provided during these comment periods was either 
incorporated directly into this final rule or is addressed below. 
Comments that we incorporated as changes in our revised proposed rules 
(79 FR 8402, February 12, 2014; 85 FR 44584, July 23, 2020) or into 
this final rule are not presented here or are addressed briefly. In 
addition, we received comments outside the scope of this rulemaking 
action such as comments related to threats (e.g., livestock grazing, 
wildfire, Owyhee harvester ants, nonnative invasive plants, inadequate 
management practices, pesticides, and off-road vehicle use), 
conservation measures identified in conservation plans (CCA, State of 
Idaho et al. 2006; CA, BLM 2014; INRMP, U.S. Air Force 2017), and 
management actions, or the lack thereof, that commenters believed were 
a threat to the conservation of slickspot peppergrass; we did not 
respond to comments that were outside the scope of this rulemaking. 
Comments regarding threats have been addressed in the slickspot 
peppergrass final listing rule (74 FR 52014, October 8, 2009), the 
reinstatement of the listing rule (81 FR 55058, August 17, 2016), and 
the SSA (USFWS 2020). We consolidated the comments by topic and provide 
a brief response, below.

Peer Reviewer Comments

    We solicited expert opinion in 2011 from five appropriate and 
independent specialists regarding the May 10, 2011, proposed rule (76 
FR 27184). We received input from three of the individuals. Since that 
time, we have implemented a standard practice of developing an SSA as 
the scientific foundation to inform our section 4 rulemaking (e.g., 
listing determinations and recovery plans). In 2018, we initiated the 
development of an SSA for slickspot peppergrass, and in August 2018, we 
solicited expert opinion from four independent specialists with 
scientific expertise on slickspot peppergrass and its habitat regarding 
our draft SSA report. These four individuals generally concurred with 
the information and conclusions in the draft SSA report, including our 
use of data from the Idaho Department of Fish and Game (IDFG) (Kinter 
and Miller 2016, entire). These data were used extensively in the 
development of the SSA and in our proposed and final critical habitat 
rules. Peer review comments are incorporated into the SSA report and 
this final rule as appropriate.
    Comment 1: One peer reviewer and several commenters expressed 
concern that the proposed designation of critical habitat did not 
include D-ranked EOs, (representing the lowest quality extant slickspot 
peppergrass EOs). The reviewer stated that higher ranked EOs are likely 
more important to the conservation of slickspot peppergrass; however, 
the omission of the smaller EOs (which could be ranked lower) from the 
designation fails to recognize that these populations may harbor 
genetic variation important to the overall genetic variability of the 
species. This peer reviewer added that given the prospect of climate 
change and the continued deterioration of slickspot peppergrass 
habitat, maintaining and protecting the highest possible levels of 
genetic diversity may prove important to the long-term survival of the 
species. Another peer reviewer agreed that several EOs should be added 
to critical habitat.
    Our Response: After careful consideration of the comments, we are 
adding D-ranked EOs to our critical habitat designation for this final 
rule. We present our rationale for adding D-ranked EOs in the Criteria 
and Methodology Used to Identify Critical Habitat section, below.
    Comment 2: One peer reviewer recommended that we include at least a 
250-m (820-ft) area surrounding slickspot peppergrass habitat to ensure 
that pollinators are able to maintain their populations. In addition, 
multiple commenters disagreed with information in the proposed rule (85 
FR 44584, July 23, 2020) regarding using a 250-m (820-ft) pollinator 
buffer to reflect a ``reasonable mid-point'' for the foraging range of 
a solitary bee when the actual mid-point of the range cited in the 
proposed rule was 375 m (1,230 ft). Several commenters indicated that a 
larger buffer (e.g., 600-m buffer) would be necessary to include all 
potential pollinators that might benefit slickspot peppergrass. 
Conversely, one commenter stated that we should use the shortest flight 
distance (150 m (492 ft)) of a solitary bee cited in the proposed rule. 
Another commenter questioned our use of scientific literature (i.e., 
Steffan-Dewenter et al. 2002; Gathmann and Tscharntke 2002) that used 
research on solitary bees from study plots in Germany to extrapolate to 
solitary bees in southern Idaho. They went on to say that these cited 
works are not proven to be relevant to the sagebrush steppe where 
slickspot peppergrass is found and, therefore, not the ``best science'' 
relevant to the species.
    Our Response: After considering comments and reviewing additional 
literature, we determined that increasing the buffer around occupied 
EOs is appropriate. To ensure habitat of sufficient quantity and 
quality is available to support nesting and egg laying, feeding, and 
reproduction of slickspot peppergrass's pollinators, we increased the 
buffer around each EO from 250 m (820 ft) to 500 m (1,640 ft) based on 
our consideration of the foraging ranges of all important pollinators 
of slickspot peppergrass and not solely on the foraging range of a 
medium-sized solitary bee. Additional information and citations to 
support this increase in the buffer can be found in the section, 
Physical or Biological Features Essential to the Conservation of the 
Species, below.
    Regarding our use of peer-reviewed literature based on research 
conducted in Germany, we used the best available scientific information 
on pollinator foraging ranges. Although the studies were conducted in 
Germany and not in sagebrush-steppe habitat, the information pertained 
to flight distances based on bee body size, which we can extrapolate to 
similarly sized bees occurring in sagebrush-steppe habitat.
    Comment 3: One peer reviewer commented that the 250-m (820-ft) area 
around EOs may not adequately protect adjacent suitable slick spots to 
allow slickspot peppergrass populations to shift or expand as 
conditions allow within current EOs and recommended increasing the 
buffer to 500 m (1,640 ft). In addition, this reviewer and several 
commenters recommended including unoccupied slick spots that border 
proposed critical habitat areas. Another peer reviewer proposed 
including more of the identified slickspot peppergrass habitat (slick 
spots present) in the Mountain Home Area in Idaho as critical habitat. 
This same reviewer also stated their opinion that more habitat needs to 
be designated to address fragmentation, ensure pollination, and 
maintain genetic diversity.
    Our Response: Based on the best scientific information available, 
we are designating EOs that are currently occupied by slickspot 
peppergrass (i.e., EOs B-D) as well as increasing the buffer around 
each occupied EO. The increased buffer will ensure habitat of 
sufficient quantity and quality is available to support the nesting, 
feeding, and reproduction for pollinators of slickspot peppergrass in 
occupied slick spots. We are not designating any areas outside the 
geographical area occupied by the species at the time of listing 
because we did not identify any

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unoccupied areas that were essential for the conservation of the 
species.
    Comment 4: One peer reviewer recommended we include two recently 
discovered EOs as critical habitat to allow for more connectivity. In 
addition, several commenters requested that new EOs found during 
surveys from 2017-2020 and reported by the Bureau of Land Management 
(BLM) be included in our critical habitat designation.
    Our Response: After receiving several comments on newly identified 
EOs that were discovered during surveys by the BLM between 2016 and 
2018, we identified nine EOs in IDFG's Idaho Fish and Wildlife 
Information System (IFWIS) database that were unranked. At our request, 
the IDFG reviewed all nine of the EOs. Six of the EOs (EOs 122 (Unit 
3a), and 123, 124, 727, 728, 729 (Unit 4)) had enough associated 
information for the IDFG to conduct their ranking process. All six met 
our criteria for critical habitat as defined by the PBFs essential to 
the conservation of the species. EO 122 was occupied at the time of 
listing (2016). The other five EOs were found in 2017 and were likely 
occupied at the time of listing because these slick spots had not been 
surveyed prior to 2017, and slickspot peppergrass is not likely to 
colonize new areas to the extent to which these EOs were populated 
(number of plants ranged from 13 to 766 per EO) within a year. 
Therefore, all six EOs are included in our final critical habitat 
designation. We did not include the remaining three EOs (EOs 730, 731, 
and 732) in Unit 4 because they lacked enough information to be ranked 
according to IDFG's criteria, which we rely on to determine if an EO 
has one or more PBFs.

State Comments

    Comment 5: The State of Idaho commented that in 2019 the IDFG 
relocated slickspot peppergrass at EO 114 and mapped additional plants 
about 3 kilometers (km) (1.9 miles (mi)) to the southeast based on a 
1911 herbarium collection. Another commenter stated that the proposed 
critical habitat polygons imply that slickspot peppergrass populations 
do not exist in significant numbers outside the defined area. They went 
on to cite examples where additional occupied slick spots were found 
during IDFG surveys (Miller and Kinter 2018, pp. 5, 7; Miller and 
Kinter 2019, p. 5). The commenter further stated that unless we use 
supporting research to delineate critical habitat boundaries, any 
boundaries we designate would be arbitrary.
    Our Response: For this final rule, we used the most current EO data 
from the IDFG (IFWIS July 2021). As discussed above in our response to 
Comment 4 and in Criteria and Methodology Used To Identify Critical 
Habitat, we also added six new EOs to our critical habitat designation 
that were in the IDFG database but had not been ranked by IDFG 
biologists. And while some uncertainty will always exist, the 
information used in this final rule represents the best available 
scientific information upon which to make a critical habitat 
designation for slickspot peppergrass. Further, survey and monitoring 
work for this species and its habitat will continue into the future and 
is not limited to critical habitat boundaries. Additional occupied 
habitat identified during future surveys would be considered during 
section 7 consultations if there is a Federal nexus (i.e., any action 
funded, authorized (permitted), or carried out by a Federal agency) and 
in our recovery efforts for the species. Please refer to the Background 
section, below, for further discussion.
    Comment 6: The State and one other commenter remarked that the 
proposed rule (85 FR 44584, July 23, 2020) states that for an EO to 
fulfill the criteria described in PBF 1, both the slick spot geological 
feature needs to be present (PBF 1(a)), and the site needs to contain 
sparse vegetation with absent, or limited to low to moderate, invasive 
nonnative plant cover (PBF 1(b)). The commenters stated that based on 
the habitat description associated with EOs ranked C and below, we are 
proposing to include some EOs that do not meet PBF 1(b). Without both 
of these features, the EO does not meet PBF 1 in its entirety and, 
therefore, does not meet our definition of an ecologically functional 
slick spot. In addition, the commenters stated that providing ``one'' 
PBF is not sufficient and if, for example, the slick spot is 
ecologically functional (PBF 1a and 1b) but is not surrounded by 
relatively intact sagebrush (PBF 2), then the interdependent habitat 
requirements are also not met.
    Our Response: The IDFG EO rankings do not necessarily correlate 
directly to the PBFs. For example, as described in the Summary of 
Essential Physical or Biological Features, below, PBF 1(b) states that 
ecologically functional microsites or ``slick spots'' are characterized 
by sparse vegetation, with introduced, invasive, nonnative plant 
species cover absent or limited to low to moderate levels. However, the 
IDFG EO rankings do not directly measure invasive, nonnative plant 
cover within the actual slick spot. The assessments of condition were 
based mostly on the EO habitat surrounding the slick spots, which 
tended to be more invaded than the slick spots. So, even if a habitat 
ranking was characterized as being moderately to highly invaded, the 
slick spots themselves often had very low amounts of invasive species 
(Kinter 2020, pers. comm.). Therefore, we used the IDFG EO rankings, 
which constitute the best available information that we have, as 
surrogates to help us determine which EOs provide the PBFs essential to 
the conservation of the species that may require special management 
considerations or protections. In addition, although some of the EOs 
with lower ranks (CD- and D-ranked EOs) often have PBFs with degraded 
conditions and may require special management considerations or 
protection, we determined that including these lower ranked EOs is 
essential to the conservation of the species. The Criteria and 
Methodology Used To Identify Critical Habitat section, below, of this 
final rule has been revised to reflect these clarifications.
    As stated in the proposed rule (85 FR 44584, July 23, 2020), and in 
this final rule, areas are included in critical habitat if they contain 
one or more of the PBFs; PBFs do not have to occur simultaneously to 
constitute critical habitat for slickspot peppergrass.
    Comment 7: The State and two commenters (Owyhee County 
Commissioners and a private landowner) stated that all EOs and sub-EOs 
that were assigned a condition or landscape factor rank of C, CD, or D 
based on either Miller and Kinter's Snake River Plain and Adjacent 
Foothills 2018 report or Miller and Kinter's Jarbidge Geographic Area 
2019 report should not be designated as critical habitat. They added 
that the EO assessments in the 2018 and 2019 reports provide context to 
the 2016 rankings in many EOs and that these assessments should be used 
to determine whether an EO meets the PBF criteria. They further state 
that the 2018 and 2019 documents support the need to eliminate more 
areas of proposed critical habitat as not meeting PBFs. They also state 
that population size is not described as a PBF but is still one of 
three factors determining an EO rank in the IDFG assessment with some 
EOs most likely having a higher rating due to the population size, and 
not because of the quality of the habitat itself. The State of Idaho 
questioned if these habitats are essential for the conservation of the 
species, noting that the occupied status of these EOs is not in 
question, but whether the habitat truly meets the PBF criteria based on 
site conditions detailed in the 2018 and

[[Page 28878]]

2019 reports (Miller and Kinter 2018 and 2019, entire).
    Our Response: For our July 23, 2020, revised proposed rule (85 FR 
44584) for slickspot peppergrass, we relied on information provided by 
the IDFG that provided their most up-to-date assessments for slickspot 
EOs, including updated EO ranks (Kinter and Miller 2016, entire). 
Information contained in the 2016 report was from field surveys 
conducted from 2012 through 2016. Miller and Kinter's 2018 report 
includes the details of their field surveys from 2012 through 2016 for 
the Foothills and Snake River Plain Geographic Areas. Miller and 
Kinter's 2019 report also includes the details of their field surveys 
during the period 2014-2015 for the Jarbidge Geographic Area. The 2016 
report was a summary of all field surveys and contained the updated EO 
ranks that were derived from data collected during the above-mentioned 
survey periods. While supplemental information was considered, the EO 
ranks reported in the 2016 report represent the best available 
scientific data from which we made our final critical habitat 
determination.
    As the commenters noted, a portion of the EO ranking score was 
based on the EO/sub-EO size. While EO size is not identified as a 
specific PBF, population size does contribute to the resiliency of a 
species; therefore, we clarified in the Criteria and Methodology Used 
To Identify Critical Habitat section, below, that we used the IDFG 
rankings as surrogates to help us determine which EOs provide the PBFs 
essential to the conservation of the species that may need special 
management. Also, please see our response to Comment 7.
    With respect to the State's comment regarding which EOs meet our 
definition of critical habitat, based on comments received during the 
public comment period on our revised proposed critical habitat rule (85 
FR 44584, July 23, 2020), we reevaluated our criteria for determining 
which EOs contain PBFs and meet our definition of critical habitat. The 
proposed rule did not include EOs ranked D or lower; however, in this 
final rule we included all areas that were occupied at the time of 
listing that are ranked B-D (there are currently no EOs ranked A or 
AB). Our rationale for including D-ranked EOs is provided in the 
Criteria and Methodology Used To Identify Critical Habitat section, 
below.
    Comment 8: The State of Idaho commented that, because private lands 
cannot be subject to management actions and conservation measures 
through the Endangered Species Act unless there is a Federal nexus 
resulting in section 7 consultation, the proposed critical habitat rule 
(85 FR 44584, July 23, 2020) provides no new conservation measures 
across any of the sites, whether Federal, State, or privately owned. 
They also stated that management actions through section 7 consultation 
will not effectively address the threats of wildfires and invasive 
species on private lands. Lastly, they commented that designation of 
critical habitat on private land can lead to decreased land values and 
possibly expose slickspot peppergrass to threats that cannot be 
addressed by a section 7 consultation. Given these reasons, the State 
believes that the benefits of exclusion (from critical habitat 
designation) outweigh the benefits of inclusion on private land.
    Our Response: As detailed in the Considerations of Impacts Under 
Section 4(b)(2) of the Act section of this document, below, based on 
our evaluation of the available information, we determined that the 
benefits of excluding private lands outweighed the benefits of 
including them in our critical habitat designation; therefore, we 
excluded private land from the final designation. Activities with a 
Federal nexus that may affect slickspot peppergrass plants on private 
land will still require section 7 consultation under the Act. Actions 
that may affect slickspot peppergrass plants on private lands without a 
Federal nexus do not require section 7 consultation with the Service.
    As a conservation tool, a critical habitat designation ensures that 
when actions with a Federal nexus are proposed within critical habitat, 
the Federal action agency reviews the proposed action and, if needed, 
consults with the Service to determine if the action will adversely 
modify critical habitat. Critical habitat does not require a Federal 
agency or a private landowner proposing an action with a Federal nexus 
to perform any conservation actions, although the Service and the 
Federal action agency may identify conservation recommendations that 
can be voluntarily implemented.
    Comment 9: The State of Idaho and multiple commenters stated that 
there are additional administrative costs of section 7 consultation 
that are incurred under critical habitat designation, including land-
value depreciation. In addition, the State commented that the economic 
analysis did not consider economic impacts to livestock permittees from 
delaying the spring grazing season, indirectly eliminating grazing by 
lowering turnout and, therefore, opportunity costs to private and State 
endowment lands. Several other commenters urged the Service to 
undertake an in-depth consideration of the potential impacts of the 
critical habitat designation on the economy of the affected areas. One 
commenter expressed concern that the economic analysis did not capture 
the potential significant impacts on affected livestock permittees of 
the implementation of existing livestock-grazing conservation measures.
    Our Response: According to section 4(b)(1)(A) of the Act, the 
listing of a species as threatened or endangered is a decision made 
based ``solely on the basis of the best scientific and commercial data 
available.'' However, in the case of designating critical habitat, the 
Act requires additional considerations under section 4(b)(2) including 
the economic, national security, and other impacts of designating a 
particular area as critical habitat. Because of this distinction, we 
must analyze the effects of a critical habitat designation separate 
from any effects that may result from the listing of a species. To do 
so, our guidelines for economic analyses of proposed critical habitat 
designations, developed in accordance with the recommendations set 
forth in Executive Order 12866 (``Regulatory Planning and Review''), 
describe the need to measure the benefits and costs of a rule against a 
baseline.
    The analysis of economic impacts of a critical habitat designation 
involves evaluating the baseline condition under two scenarios: one 
with critical habitat and one without critical habitat. The impacts of 
critical habitat equal the difference, or ``increment,'' between these 
two scenarios. This is known as an ``incremental analysis.'' Measured 
differences may include changes in land or resource use, environmental 
quality, or time and effort expended on administrative and other 
activities by Federal landowners, Federal action agencies, State and 
local governments, or private third parties. Any differences that are 
attributable solely to critical habitat are considered an incremental 
impact of the designation. Most of the examples of impacts offered by 
commenters were effects attributable to other conservation measures for 
slickspot peppergrass that are already in place because of the listing 
of the species (e.g., delaying turnout of cattle when soils are 
saturated) and not due to critical habitat; such effects cannot be 
considered an impact of critical habitat.
    Currently, and as described in our final economic analysis, we do 
not foresee a circumstance in which designation of critical habitat 
will change the outcome or alter the timing

[[Page 28879]]

of future Federal agency section 7 consultations. Any conservation 
measures implemented to minimize impacts to the species would likely be 
sufficient to also minimize impacts to critical habitat.
    Comment 10: The State of Idaho commented that the Idaho Department 
of Lands (IDL) was part of the 2006 Candidate Conservation Agreement 
(CCA) for slickspot peppergrass ensuring habitat is protected on Idaho 
endowment lands, which negates the need for critical habitat 
designation. In addition, the State commented that even though the CCA 
has expired, the IDL continues to implement conservation measures 
outlined in the 2006 CCA.
    Our Response: As described in our response to Comment 9, above, we 
have a statutory obligation to designate critical habitat for listed 
species, based on the identification of those areas occupied by the 
species at the time of listing, that provide the PBFs essential to the 
conservation of the species, and that may require special management 
considerations or protection. However, the Act additionally provides 
the Secretary discretion to exclude areas from the final designation if 
the benefits of excluding those areas outweigh those of including them 
(and if such exclusion will not result in the extinction of the 
species). As detailed in Considerations of Impacts Under Section 
4(b)(2) of the Act below, following our review and evaluation of the 
best available information, including the new 2021 conservation 
agreement between the Service and the State of Idaho, we agree that the 
benefits of excluding areas on State of Idaho lands outweigh the 
benefits of including those areas in critical habitat, and we have 
excluded all State-owned lands from this final designation of critical 
habitat. This includes the State of Idaho endowment trust lands, 
management of which is entrusted to the State Board of Land 
Commissioners. The IDL is the administrative arm of the Board and 
carries out the executive directives of the Board to meet the 
constitutional trust mandate under article IX section 8 of the Idaho 
Constitution to use the trust lands for the support of State 
institutions.
    Comment 11: The State of Idaho commented that several areas along 
Idaho Department of Transportation rights-of-way (ROWs) are critical to 
reduce the potential for fire starts from Interstate 84. They further 
stated that the proposed designated critical habitat within these ROWs 
puts large areas that have slickspot peppergrass outside of the ROW at 
risk by potentially affecting the ability to implement mowing and other 
preventative measures needed to halt fire starts from the Interstate.
    Our Response: Rights-of-way (ROW) on Federal lands are not excluded 
from critical habitat designation if they contain one or more of the 
PBFs described within the final rule and are part of an EO ranked B, 
BC, C, CD, or D or are within 500 m (1,640 ft) of those EOs. If an area 
is designated as critical habitat, and there is a Federal nexus 
associated with an ROW project, a section 7 consultation in this area 
would evaluate the presence of any PBFs and note whether there are 
effects from the action that may affect critical habitat. During 
emergency events, the primary objective of the responding agency must 
be to protect human life and property, and this objective takes 
precedence over normal consultation requirements. In such events, 
agencies can engage in emergency section 7 consultation with the 
Service to expedite recommendations for minimizing adverse effects to 
listed species and designated critical habitat areas that may be 
adversely affected by emergency response activities.

Tribal Comments

    Comment 12: The Shoshone-Bannock Tribes asked that the Service 
consider ecological range characteristics, rather than simply presence 
of slickspot peppergrass, when designating critical habitat and cited 
examples (e.g., climate, elevation, soil characteristics, solar 
irradiance, and community species composition characteristics), as 
drivers for potential and occupied habitat. They indicated that this 
type of scientific analysis would not result in the small and highly 
fragmented critical habitat unit maps being proposed, and the analysis 
may help the Service identify new EOs. They added that slickspot 
peppergrass needs additional critical habitat outside the proposed 
critical habitat units to facilitate spread and colonization. Further, 
the Tribes and one additional commenter stated that surveys for 
additional habitat should continue, as well as high-quality and 
experimentally designed monitoring programs.
    Our Response: Please see our responses to Comments 1-3. In response 
to the comment regarding more survey, monitoring, and analysis being 
needed, 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. We must 
make this designation on the basis of the information available at this 
time, and we may not delay our decision until more information about 
the species and its habitat is available. This final rule expands on 
the proposed critical habitat by including areas with D-ranked EOs, 
which represent the lowest ranked occupied EOs, and increasing the 
buffer around EOs from 250 meters (m) (820 feet (ft)) to 500 m (1,640 
ft) in order to provide habitat for all of the important pollinators of 
slickspot peppergrass.
    While some uncertainty will always exist, the information used in 
this final rule represents the best available information upon which to 
make a critical habitat designation for slickspot peppergrass. It also 
does not preclude future survey, monitoring, and analyses for this 
species and its habitat, and it is not limited to critical habitat 
boundaries. We will be developing a recovery plan with input from 
stakeholders and partners that will establish priorities and measures 
to recover the species, and which will consider ecological range 
characteristics and address habitat fragmentation. During the recovery 
planning process, a range of conservation tools, data, and analyses 
will be used to determine how best to recover the species.
    Comment 13: The Shoshone-Bannock Tribes commented that grazing 
should not be allowed within occupied habitat if necessary to protect 
the species from extinction. They stated that the best way to manage 
grazing use on public lands is to implement strong management goals and 
objectives that maintain high-quality biological soil crust communities 
and enhance degraded biological soil crust communities where they have 
been impacted from grazing and surface disturbances.
    Our Response: We will be developing a recovery plan with input from 
stakeholders and partners that will establish priorities and measures 
to recover the species. These priorities will include measures to 
prevent or reduce habitat degradation and will set goals to facilitate 
the recovery of the species. Furthermore, the BLM's conservation 
agreement (BLM 2014) outlines conservation measures for ongoing actions 
authorized by the BLM including livestock grazing, rights-of-way 
activities, and military training. These conservation measures 
currently apply to slickspot peppergrass EOs and the surrounding area 
out to 805 m (2,641 ft).

Public Comments

    Comment 14: One commenter stated that the Service failed to 
describe how many plants are present in each EO.
    Our Response: We did not include the number of plants in the 
proposed rule (85 FR 44584, July 23, 2020) because we

[[Page 28880]]

did not rely solely on the number of plants in an EO. Instead, we 
followed an EO ranking method developed by NatureServe (NatureServe 
2020b, entire) and used by the IDFG to rank EOs that combined measures 
of population size and habitat quality; therefore, we did not provide 
the number of plants in the EO descriptions.
    Comment 15: One commenter expressed concern that designating 
slickspot peppergrass critical habitat for those EOs with rankings of 
CD or better continues to set the stage for additional habitat loss in 
future assessments. They followed with this example, ``if an EO with a 
C ranking now is found to have a D rank in 3-5 years, it is not clear 
whether the USFWS would strip the critical habitat designation from the 
particular EO.''
    Our Response: In this final rule, we are designating all occupied 
EOs ranked B-D as critical habitat. If, in subsequent years, an EO is 
no longer found to be occupied, and it no longer contains the essential 
PBFs, it would still be part of the critical habitat designation. A 
future section 7 consultation in this area would evaluate the presence 
of any PBFs and note whether or not there are effects from the action 
that may affect the critical habitat. If we revise the critical habitat 
designation in the future, we would take into consideration where the 
species is present (occupied habitat) and whether any PBFs are present 
in any area at the time of that revision.
    Comment 16: One commenter stated that the 250-m (820-ft) area be a 
guideline rather than a fixed rule so that it could be reduced when it 
would include unsuitable habitat, such as roads, cropland, or 
ecological sites without slick spots. The commenter also remarked that 
crossing allotment boundaries when slick spots are not present in 
adjacent allotments needlessly complicates the management of the 
adjacent allotment.
    Our Response: As described in this final rule, the designation of 
critical habitat does not include roads or other developed sites such 
as cropland, airports, and buildings. When determining critical habitat 
boundaries within this final rule, we made every effort to avoid 
including these types of developed areas because such lands lack the 
PBFs for slickspot peppergrass. The scale of the maps we prepared under 
the parameters for publication within the Code of Federal Regulations 
may not perfectly reflect the exclusion of such developed lands. 
However, any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been excluded by 
text in the rule and are not designated as critical habitat.
    In reference to grazing allotment management, areas are included in 
critical habitat if they are occupied by slickspot peppergrass (i.e., 
EOs B-D) or are within the additional 500-m (1,640-ft) pollinator 
buffer area of those EOs. Furthermore, we do not anticipate or foresee 
any changes to conservation measures currently in place for livestock 
use. When projects proposed on BLM lands may affect listed species or 
critical habitat, consultation with us is required under section 
7(a)(2) of the Act. Currently, we do not foresee a circumstance in 
which critical habitat will change the outcome of future section 7 
consultations as all areas designated as critical habitat are also 
included in BLM section 7 consultations addressing the effects of 
actions on the species.
    Comment 17: One commenter stated that the polygons associated with 
Unit 2, Subunit 2a in Ada County are widely dispersed, covering 
multiple Sections, Townships, and Ranges and that designating the 
entire subunit as critical habitat made little sense considering the 
wide distribution of plant EOs and the significant amount of 
residential and commercial development that occupied the spaces between 
populations.
    Our Response: The critical habitat units are based on 
geographically clustered EOs that meet our definition of critical 
habitat. Only occupied EOs and their associated buffers are being 
designated as critical habitat. In our proposed rules, we displayed 
critical habitat surrounded by rectangular polygons on our unit and 
subunit maps, which led to confusion about what was actually the 
designated critical habitat. In our final rule, we updated our maps by 
eliminating the rectangular polygons so that only critical habitat is 
displayed.
    Comment 18: One commenter responded that the Service recently 
issued a proposed rule on defining habitat due, in part, to a decision 
by the U.S. Supreme Court in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 
361 (2018) and was concerned that this proposed definition of habitat 
was not included in our July 23, 2020, revised proposed rule (85 FR 
44584) for slickspot peppergrass.
    Our Response: As stated in the revised regulations regarding the 
definition of habitat (85 FR 81411, December 16, 2020), these 
regulations apply only to critical habitat rulemakings for which a 
proposed rule is published after January 15, 2021. We published our 
revised proposed critical habitat rule for slickspot peppergrass on 
July 23, 2020 (85 FR 44584). Therefore, the revised regulations 
regarding the definition of habitat do not apply to this final critical 
habitat rule for slickspot peppergrass. Furthermore, we rescinded the 
habitat definition on June 24, 2022 (87 FR 37757) with an effective 
date of July 25, 2022.
    Comment 19: One commenter stated that critical habitat should not 
be designated for slickspot peppergrass because any ``official 
designation'' is meaningless for the preservation of the species in the 
face of its primary threats: fire and invasive species. The commenter 
added that slickspot peppergrass is a BLM- and State of Idaho-sensitive 
species and that areas containing slickspot peppergrass already receive 
priority status for fire-fighting activities; therefore, the 
designation of critical habitat will not increase BLM's (and others') 
ability or willingness to extinguish fires. The commenter concluded 
that because there would be no change in how the primary threats are 
managed, section 7 consultation is meaningless.
    Our Response: We designate critical habitat by identifying the 
areas that are essential to the conservation of the species based on 
our understanding of the range of the species and the species' 
essential PBFs. If an area meets those criteria for designating 
critical habitat, we develop proposed critical habitat unit 
designations. In addition, even if the designation of critical habitat 
will not increase an action agency's ability to conserve the species, 
the designation itself is still prudent because the areas meet the 
definition of critical habitat and there are habitat-based threats 
within the critical habitat boundaries.
    Comment 20: One commenter stated that the rulemaking should include 
a provision, to the extent permitted by the Act, that any EOs that are 
burned by wildfire, so that they no longer contain the necessary 
combinations of habitat PBFs, are automatically not considered to be 
critical habitat from the date of the fire and continuing until further 
rulemaking on the subject.
    Our Response: Section 3 of the Act defines critical habitat, in 
part, as having PBFs that are essential to the conservation of the 
species, which may require special management considerations or 
protection. If an area is designated as critical habitat and is 
subsequently burned by wildfire such that it no longer contains the 
essential PBFs, it would still be part of the critical habitat 
designation but may need special management to restore some of the 
PBFs.
    Comment 21: One commenter stated that there is no science 
demonstrating that any management considerations or methods of 
protections will significantly

[[Page 28881]]

affect the survivability of slickspot peppergrass populations. They 
stated that we lack information on the essential features to support 
slickspot peppergrass, and, without knowledge of the soil chemistry at 
a specific location, designation of critical habitat will be arbitrary 
since that area (i.e., slick spot) may or may not contain the essential 
features.
    The commenter also questioned what science there is to demonstrate 
that slickspot peppergrass pollination and seed production is different 
between adjacent sagebrush habitat and non-sagebrush habitat and 
requested information that substantiates the necessity to include 
adjacent sagebrush habitat in the critical habitat designation.
    Our Response: As required by section 4(b)(2) of the Act, we used 
the best scientific data available in determining those specific areas 
within the geographic area occupied at the time of listing that contain 
the features essential to the conservation of slickspot peppergrass and 
that may require special management considerations or protection. We 
have reviewed and considered scientific and commercial data contained 
in numerous technical reports, peer-reviewed published journal 
articles, and other documents and based our determination of slickspot 
peppergrass PBFs (including ecologically functioning microsites) on the 
best available data regarding the plant's currently known habitat 
requirements (See Physical or Biological Features Essential to the 
Conservation of the Species, below, for more information). We 
acknowledge that not all slick spots contain slickspot peppergrass. 
Therefore, based on the best scientific information available to us at 
this time, we limited the critical habitat designation to areas known 
to be occupied by the species (including some adjacent sagebrush-steppe 
habitat to provide for ecosystem function). While we also acknowledge 
that slickspot peppergrass has been infrequently documented outside of 
slick spots, the vast majority of plants documented over the past 25 
years of surveys and monitoring for the species are documented within 
slick spot microsite habitats. For more information on slick spot 
microsites, please see the 2009 listing rule (74 FR 52014, October 8, 
2009) and the slickspot peppergrass SSA report (USFWS 2020, pp. 4, 6).
    Comment 22: One commenter stated that the Service has not 
adequately considered a broad body of current data (including GIS data 
for native and nonnative vegetation, soils, development, etc.) 
available on the degree and severity of habitat degradation that 
currently exists (citing information used by the BLM in their Land Use 
Plans), or used site-specific information on the current road, 
livestock, energy, or other infrastructure and management schemes that 
are being applied within the critical habitat designation. The 
commenter stated that the proposed rule designates ``bits and pieces'' 
of critical habitat, which the commenter states will promote additional 
fragmentation, make management of critical habitat difficult and less 
economically feasible, and encourage more harmful fences and other 
developments.
    Our Response: Regarding the ecological setting of slickspot 
peppergrass, the species' habitat is inherently fragmented because it 
relies on isolated and non-contiguous slick spot habitats. We 
identified areas within the geographic range of slickspot peppergrass 
that were occupied at the time of listing and contain the PBFs 
essential to the conservation of the species that may require special 
management considerations or protection. Please see Criteria and 
Methodology Used to Identify Critical Habitat, below, for more details 
on how critical habitat was determined. Regarding the comment that we 
did not use site-specific information on the current road, livestock, 
energy, or other infrastructure and management schemes that are being 
applied within the critical habitat designation, and the commenter's 
statements regarding the BLM Land Use Plans, we will work with the BLM 
to avoid or minimize these potential impacts during future section 7 
consultations, as appropriate, and recommend the BLM take these 
potential impacts into consideration when developing their management 
plans.
    On Federal land, it is the responsibility of the appropriate land 
management agency to develop and implement resource management plans. 
Projects with a Federal nexus would require section 7 consultation 
under the adverse modification standard if they affected designated 
critical habitat (see the Section 7 Consultation section, below, for 
more discussion of this process). However, if project-related effects 
may occur, areas occupied by slickspot peppergrass would require 
section 7 consultation whether the area is designated as critical 
habitat or not. In addition, as part of developing and implementing a 
recovery strategy for a listed species, we consider site-specific 
management strategies important to the conservation of the species, and 
we also work with landowners, managers, researchers, and others to 
develop and implement them, as appropriate, as part of the recovery 
process.
    Comment 23: One commenter stated that projected and reasonably 
likely impacts of climate change on slickspot peppergrass are unknown, 
as is the response to climate change by slickspot peppergrass. The 
commenter added that future climate change is only a hypothesis based 
on non-validated models, which cannot be proven. Conversely, two other 
commenters stated that climate change is expected to exacerbate several 
of the primary threats to slickspot peppergrass, and it is essential 
that a much greater area (including occupied and unoccupied habitat and 
areas located at the highest elevations available) be protected to 
ensure the species' viability and aid efforts to buffer the species 
from adverse climate change impacts. They also stated that it is 
hypothesized that slick spots were created during the Pleistocene and 
are no longer being formed and, therefore, all remaining slick spots 
should be protected. The commenter also noted that climate change is 
not mentioned in the body of the July 23, 2020, revised proposed 
critical habitat rule (85 FR 44584).
    Our Response: As described in our February 2020 slickspot 
peppergrass SSA report (USFWS 2020, pp. 79-83), it is possible that 
climate change has contributed to the downward trend in slickspot 
peppergrass population numbers observed over the past decade and the 
projected consequences of climate change could act to further 
exacerbate the primary threats of frequent wildfire and invasive, 
nonnative annual grasses on slickspot peppergrass throughout its range. 
After considering the best available information as well as the 
comments received, we are now including all occupied EOs ranked B-D and 
extending the buffer around EOs from 250 m (820 ft) to 500 m (1,640 
ft)). In addition, we are including six newly ranked EOs; five are 
located in the Jarbidge geographic area, which contains the highest 
elevation habitat. In Criteria and Methodology Used to Identify 
Critical Habitat, below, we provide our rationale for making these 
changes.
    Regarding the comment about climate change not being addressed in 
our July 23, 2020, revised proposed rule (85 FR 44584), we have 
included a brief discussion in our Criteria and Methodology Used to 
Identify Critical Habitat section, below. Information identified in the 
SSA indicates that climate change has already amplified the effects of 
wildfire and invasive,

[[Page 28882]]

nonnative plants on slickspot peppergrass and may have been a factor in 
the continuing downward trend in slickspot peppergrass population 
numbers observed over the past decade. Habitat is often dynamic and 
species may move from one area to another over time, but most plant 
species cannot naturally shift their geographic ranges fast enough to 
keep up with predicted high projected rates of climate change. The 
Intergovernmental Panel on Climate Change (IPCC) projects changes to 
the global climate system in the 21st century will likely be greater 
than those observed in the 20th century (IPCC 2007, p. 45; IPCC 2014, 
pp. 10, 60). However, by designating critical habitat in all three 
geographic areas (Foothills, Snake River Plain, and Jarbidge) where the 
species occurs, including all B-D ranked EOs as well as the 500-m 
(1,640-ft) pollinator buffer around designated EOs, we determined that 
these areas will help support slickspot peppergrass under potential 
climate change scenarios in the future. A complete description of the 
potential effects from climate change and our evaluation of this threat 
is found in the October 8, 2009, final listing rule (74 FR 52014), the 
August 17, 2016, listing reinstatement rule (81 FR 55058), and our 
February 2020 slickspot peppergrass SSA report (USFWS 2020, pp. 79-83).
    In addition, 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 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 
required for recovery of the species. Areas that are important to the 
conservation of slickspot peppergrass, both inside and outside a 
critical habitat designation, would 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) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species.
    Comment 24: Two commenters did not support the section 
4(a)(3)(B)(i) exemptions for the Mountain Home Air Force Base Juniper 
Butte Range and the Idaho National Guard Army OCTC due to the growing 
presence of military activity in southern Idaho, increasing threats 
from military uses, and potential spread of weeds from personnel 
accessing sites. One of the commenters stated that the OCTC and the 
Juniper Butte Range should be included in the critical habitat 
designation.
    Our Response: The National Defense Authorization Act for Fiscal 
Year 2004 (Pub. L. 108-136, 117 Stat. 1392) amended the Act, 
specifically, section 4(a)(3)(B)(i) (16 U.S.C. 1533(a)(3)(B)(i)) to 
provide that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense (DoD), 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.'' Both the 
Mountain Home Air Force Base Juniper Butte Range (and associated 
emitter sites and rights-of-way) and the Idaho Army National Guard OCTC 
facilities have INRMPs prepared under section 101 of the Sikes Act. We 
determined that conservation efforts identified in these INRMPs are 
being implemented, are effective, and will provide a conservation 
benefit to slickspot peppergrass occurring in habitats within or 
adjacent to the identified lands. Examples of slickspot peppergrass 
conservation benefit within these INRMPs can be found in the 
Exemptions, Application of Section 4(a)(3) of the Act section below. 
Therefore, lands within these two installations are exempt from 
critical habitat designation under section 4(a)(3)(B)(i) of the Act, 
and we do not have the discretion to include them as the commenter 
recommends.
    Comment 25: One commenter stated that the monetary and security 
costs to the Idaho Army National Guard and U.S. Air Force from 
designating slickspot peppergrass critical habitat in their training 
ranges is not captured in the 2012 final economic analysis.
    Our Response: We exempted, under section 4(a)(3)(B)(i) of the Act, 
the Idaho Army National Guard's Orchard Combat Training Center (OCTC) 
and U.S. Air Force's Juniper Butte Range from the critical habitat 
designation based on development and implementation of approved INRMPs. 
Given these areas are exempt from critical habitat designation, there 
are no associated incremental costs of critical habitat designation to 
consider in the economic analysis. Therefore, any costs to the Idaho 
Army National Guard and U.S. Air Force are due to the listing of 
slickspot peppergrass, not designation of critical habitat, and thus 
will not be discussed in this final rule. Please see the Exemptions, 
Application of Section 4(a)(3) of the Act, section of this final rule 
for further information.
    Comment 26: One commenter stated that the economic analysis 
completed in March 2012 does not reflect accurate, timely, or most 
recently available data. The commenter recommended that we conduct a 
current economic analysis that takes a growing population, increased 
development, climate change, and the economics of restricting livestock 
grazing in and around critical habitat EOs into consideration. Our 
Response: In the 2020 revised proposed critical habitat rule and in the 
Exclusions Based on Economic Impacts section of this rule, we 
articulate the reason why the incremental economic impacts of our 
current revised proposed designation of critical habitat for slickspot 
peppergrass will be similar to levels described in the 2012 final 
economic analysis. The BLM indicated that any increase in cost 
associated with critical habitat section 7 compliance would be limited 
to increases in BLM staff costs, which have been minimal since 2012 
when the economic analysis was completed, but not an increase in time 
needed to conduct section 7 compliance (Kershaw 2020, pers. comm.). 
Unless unforeseen changes occur to existing conservation measures or 
the management of land-use activities, the incremental impacts of 
critical habitat designation described in the 2012 final economic 
analysis would continue to be limited to additional administrative 
costs of section 7 consultations for Federal agencies, primarily BLM, 
associated with considering the potential for adverse modification of 
critical habitat.
    In this final rule, we are also excluding State and private lands 
from designation of critical habitat. Therefore, there are no section 7 
critical habitat consultation requirements on those lands, although 
they will still be subject to section 7 consultation on the species if 
there is a Federal nexus. Therefore, we still find that the conclusion 
of the 2012 final economic analysis applies to this final rule.
    Comment 27: One commenter stated that Federal oversight is required 
to conserve slickspot peppergrass, and that State of Idaho or private 
lands should not be excluded given that the agreements typically relied 
upon are voluntary and unenforceable. This commenter also said that 
reluctance by private landowners to allow access to slickspot 
peppergrass habitat will only further ensure that no oversight is 
possible.
    Our Response: The Act provides the Secretary with discretion to 
exclude

[[Page 28883]]

areas from the final designation if the benefits of excluding those 
areas outweigh those of including them (and if such exclusion will not 
result in the extinction of the species). As detailed in the 
Considerations of Impacts Under Section 4(b)(2) of the Act section, 
below, based on our review and evaluation of the best available 
information, we conclude that the benefits of excluding areas on State 
of Idaho and private lands outweigh the benefits of including those 
areas in critical habitat. We therefore excluded all State and private 
lands from the final critical habitat designation.
    Comment 28: Two commenters stated that our revised proposed rule 
cited several documents (e.g., Gathmann and Tscharntke 2002; Steffan-
Dewenter et al. 2002; Kinter and Miller 2016) to support our findings, 
but our document did not provide a list of references. They recommended 
that these references be added when the revised proposed rule is 
finalized.
    Our Response: All references cited in our revised proposed rules 
and our final rule are available on the internet at https://www.regulations.gov in Docket No. FWS-R1-ES-2010-0071 and upon request 
from the Idaho Fish and Wildlife Office. All references for our July 
23, 2020, revised proposed rule (85 FR 44584), including the three 
references cited as examples in the comment above, can be found by 
going to https://www.regulations.gov/document/FWS-R1-ES-2010-0071-0065 
and downloading the ``Download File''. However, Gathmann and Tscharntke 
(2002) was incorrectly cited as ``Achim Gathmann, A. and T. 
Tscharntke'' and, therefore, was out of alphabetical order in our list 
of references. We corrected this mistake in our final rule references 
list.
    Comment 29: Several commenters questioned whether the Service was 
following its own Information Quality Act procedures.
    Our Response: We have reviewed and considered scientific and 
commercial data contained in numerous technical reports, published 
journal articles, and other documents. We must base our critical 
habitat designation for slickspot peppergrass on the best available 
scientific data. We acknowledge that uncertainties exist; however, 
section 4 of the Act mandates that we make our designation based on the 
best scientific information available at the time of our determination. 
We have designated critical habitat for slickspot peppergrass 
consistent with 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, to ensure that our decision is based on the best scientific 
data available.

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 which are necessary to bring 
any endangered species 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 also 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 Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must 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 PBFs that are essential 
to the conservation of the species (such as space, food, cover, and 
protected habitat).
    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.
    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

[[Page 28884]]

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 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 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) the prohibitions found in section 9 of the Act. 
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, or 
other species conservation planning efforts if new information 
available at the time of these planning efforts calls for a different 
outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the PBFs that are essential 
to the conservation of the species and that may require special 
management considerations or protection. The regulations at 50 CFR 
424.02 define ``physical or biological features essential to the 
conservation of the species'' as the features that occur in specific 
areas and that are essential to support the life-history needs of the 
species, including, but not limited to, water characteristics, soil 
type, geological features, sites, 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. For example, physical features essential 
to the conservation of the species might include gravel of a particular 
size required for spawning, alkaline 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 essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we 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 characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    With rare exception, slickspot peppergrass occurs only in slick 
spot microsites scattered within the greater, semiarid, sagebrush-
steppe ecosystem of southwestern Idaho. Slick spots provide habitats 
that are representative of the historical, geographical, and ecological 
distribution of slickspot peppergrass, and provide nutrients and water 
for reproduction, germination, and seed dispersal. The restricted 
distribution of slickspot peppergrass is likely due to its adaptation 
to the specific conditions within these slick spot habitats. Slick 
spots are distinguished from the surrounding sagebrush habitat as 
having the following characteristics: microsites where water pools when 
rain falls (Fisher et al. 1996, pp. 2, 4); sparse native vegetation; 
distinct soil layers with a columnar or prismatic structure, higher 
alkalinity and clay content, and natric (sodic, high sodium) properties 
(Fisher et al. 1996, pp. 15-16; Meyer and Allen 2005, pp. 3-5, 8; 
Palazzo et al. 2008, p. 378); and reduced levels of organic matter and 
nutrients due to lower biomass production (Meyer and Quinney 1993, pp. 
3, 6; Fisher et al. 1996, p. 4). Although the low permeability of slick 
spots appears to help hold moisture (Moseley 1994, p. 8), once the thin 
crust dries out, the survival of slickspot peppergrass seedlings 
depends on the ability of the plant to extend the taproot into the 
argillic horizon (soil layer with high clay content) to extract 
moisture from the deeper natric zone (Fisher et al. 1996, p. 13).
    Ecologically functional slick spots have the following three 
primary layers: the surface silt layer, the middle restrictive layer, 
and an underlying moist clay layer. Although slick spots can appear 
homogeneous on the surface, the actual depth of the silt and 
restrictive layer can vary throughout the slick spot (Meyer and Allen 
2005, Tables 9, 10, and 11). The top two layers (surface silt and 
restrictive) of slick spots are normally very thin; the surface silt 
layer varies in thickness from a 0.25 to 3 centimeters (cm) (0.1 to 1.2 
inches (in)) in slick spots known to support slickspot peppergrass, and 
the restrictive layer varies in thickness from 1 to 3 cm (0.4 to 1.2 
in) (Meyer and Allen 2005, p. 3). Fisher et al. (1996, p. 4) describe 
the smooth surface layer of slick spots as crustlike, with prominent 
vesicular pores. Below the surface layer, the soil clay content 
increases abruptly and creates a strongly structured, finely textured 
boundary (horizon) formed by the concentration of silicate clay 
materials, known as an argillic horizon.
    Slick spot soil profiles are distinctive and distinguished from the 
surrounding

[[Page 28885]]

soil matrix by very thin surface layers that form prominently vesicular 
crusts, natric-like argillic horizons that occur just below the soil 
surface, and by increasingly saline and sodic conditions with depth 
(Fisher et al. 1996, pp. 11, 16). Disturbances that alter the physical 
properties of slick spot soil layers, such as deep disturbance and the 
addition of organic matter, may lead to destruction and permanent loss 
of slick spots. Slick spot soils are especially susceptible to 
mechanical disturbances when wet (Rengasamy et al. 1984, p. 63; Seronko 
2004, in litt., entire). Such disturbances disrupt the soil layers 
important to slickspot peppergrass seed germination and seedling growth 
and alter hydrological function.
    The biological soil crust, also known as a microbiotic crust or 
cryptogamic crust, is another component of quality habitat for 
slickspot peppergrass. Such crusts are commonly found in semiarid and 
arid ecosystems, and are formed by living organisms, primarily 
bryophytes (mosses), lichens, algae, and cyanobacteria (blue-green 
algae), that bind together surface soil particles (Moseley 1994, p. 9; 
Johnston 1997, p. 4). Microbiotic crusts play an important role in 
stabilizing the soil and preventing erosion, increasing the 
availability of nitrogen and other nutrients in the soil, and 
regulating water infiltration and evaporation levels (Johnston 1997, 
pp. 8-10). In addition, an intact crust appears to aid in preventing 
the establishment of invasive plants (Brooks and Pyke 2001, p. 4; Serpe 
et al. 2006, pp. 174, 176). These crusts are sensitive to disturbances 
that disrupt crust integrity, such as compression due to livestock 
trampling or off-road vehicle use and are also vulnerable to damage by 
fire. Recovery from disturbance is possible but occurs very slowly 
(Johnston 1997, pp. 10-11).
    The native, semiarid sagebrush-steppe habitat of southwestern Idaho 
where slickspot peppergrass is found can be divided into two plant 
associations, each dominated by the shrub Wyoming big sagebrush 
(Artemisia tridentata ssp. wyomingensis): (1) Wyoming big sagebrush--
Thurber's needlegrass (Achnatherum thurberianum); and (2) Wyoming big 
sagebrush--bluebunch wheatgrass (Pseudoroegneria spicatum) habitat 
types. The perennial bunchgrasses Sandberg's bluegrass (Poa secunda) 
and bottlebrush squirreltail (Elymus elymoides) are commonly found in 
the understory of these habitats, and basin big sagebrush (Artemisia 
tridentata ssp. tridentata), gray or rubber rabbitbrush (Ericameria 
nauseosus), yellow rabbitbrush (Chrysothamnus viscidiflorus), strict 
buckwheat (Eriogonum strictum), bitterbrush (Purshia tridentata), and 
little-leafed horsebrush (Tetradymia glabrata) form a lesser component 
of the shrub community. Under relatively undisturbed conditions, the 
understory is populated by a diversity of perennial bunchgrasses and 
forbs, including species such as Indian ricegrass (Achnatherum 
hymenoides), common yarrow (Achillea millefolium), varileaf phacelia 
(Phacelia heterophylla), Pursh's milkvetch (Astragalus purshii), 
longleaf phlox (Phlox longifolia), and purple threeawn (Aristida 
purpurea var. longiseta).
    Slickspot peppergrass is primarily an outcrossing species requiring 
pollen from separate plants for more successful fruit production; it 
exhibits low seed set in the absence of insect pollinators (Robertson 
2003, p. 9; Robertson and Klemash 2003, p. 338; Robertson and Ulappa 
2004, p. 1707; Billinge 2006, p. 40; Robertson et al. 2006, p. 40; 
Billinge and Robertson 2008, pp. 1005-1006). Insects from 25 families 
have been observed on slickspot peppergrass flowers (Robertson and 
Klemash, 2003, pp. 335-336). Of those 25 insect families, the primary 
slickspot peppergrass pollinators include several families of bees 
(Anthophoridae, Apidae, Colletidae, Halictidae, Sphecidae, and 
Vespidae), flies (Bombyliidae, Syrphidae, Calliphoridae, and 
Tachinidae), beetles (Cerambycidae, Dermestidae, Melyridae), and moths 
(Gelechiidae) (Robertson and Hannon 2003, p. 6; Robertson and Klemash 
2003, p. 336; Robertson and Leavitt 2011, p. 384).
    Pollinators need a diversity of native plants with overlapping 
bloom times to provide flowers for foraging throughout their active 
season; nesting and egg-laying sites (e.g., bare ground, hollow stems, 
bunchgrasses); sheltered, undisturbed places for overwintering; and 
connected habitat patches (The Xerces Society 2018, pp. 15-17). In our 
proposed rule, we used a 250-meter (m) (820-foot (ft)) pollinator use 
area around each E.O. based on a foraging range of the solitary bee. 
However, we received several comments supporting an expansion of the 
pollinator-use buffer area to 500-m (1,640 ft) to account for the 
foraging range of all the associated pollinators noted in the above 
paragraph. After a thorough review of all the pollinator species for 
slickspot peppergrass, we agreed that each E.O. should be surrounded by 
a 500-m (1,640-ft) pollinator-use area to ensure that sufficient 
habitat and a diversity of native flowering plants are available to 
support the pollinator community required for the viability of 
slickspot peppergrass populations.
    To determine the size of the pollinator-use area or buffer, we 
evaluated the pollinators of slickspot peppergrass and the distance 
that those pollinators were likely to fly in search of food. Although 
slickspot peppergrass is pollinated by a variety of insects, its 
primary pollinators are composed of families of small- to medium-sized 
solitary bees and flies, and larger, thread-waisted sphecid wasps 
(Sphecidae), meloid beetles, moths, and butterflies (Robertson and 
Leavitt 2011, pp. 384-385; Robertson 2020, pers. comm.). Flight 
distances are generally correlated with body size in bees; larger bees 
can fly farther than smaller bees (Gathmann and Tscharntke 2002, 
entire; Greenleaf et al. 2007, pp. 592-594; Kendall et al. 2022, p. 4). 
While researchers have reported that some solitary bee species, 
particularly larger bodied ones, are capable of foraging greater than 1 
kilometer (km) (0.6 mile (mi)) (Zurbuchen et al. 2010, pp. 671-672), 
the majority of these species are central-place foragers (i.e., remain 
close to their nest), thus foraging distances tend to be 500 m (1,640 
ft) or less (Steffan-Dewenter 2003, p. 1041; BLM 2012, p. 19; Danforth 
et al. 2019, p. 207; O'Neill 2019, pp. 108-109; Antoine and Forrest 
2021, p. 152). Syrphid flies, which are not central-place foragers, 
have been documented carrying pollen up to 400 m (1,312 ft) (Rader et 
al. 2011, pp. 522-525). Other noncentral-place foragers like moths and 
butterflies are capable of foraging over larger areas and could use 
areas within EOs and their associated buffers and beyond. Therefore, we 
find that a 500-m (1,640-ft) buffer is adequate for flies, moths, and 
butterflies, as well as the solitary bee pollinators of slickspot 
peppergrass.
    In addition, honeybees were identified as a pollinator of slickspot 
peppergrass in our 2020 proposed rule (85 FR 44584). However, they are 
a nonnative species and compete for floral resources with native insect 
pollinators and spread diseases to native bees (Cane and Tepedino 2017, 
entire; Wojcik et al. 2018, pp. 827-829; Alger et al. 2019, pp. 5-7; 
Iwasaki and Hogendoorn 2022, pp. 7-8). Because of the potential 
negative impact they may have on the diverse native pollinator 
community associated with slickspot peppergrass, we do not consider 
them essential to the conservation of the species in this final rule.
    The areas designated as critical habitat will ensure maintenance 
and continuity of foraging and nesting habitats for insect pollinators 
adjacent to occupied slick spots, thus promoting

[[Page 28886]]

a healthy pollinator community. This healthy pollinator community, in 
turn, helps to increase seed viability and production of slickspot 
peppergrass and is essential for maintaining genetic diversity in the 
species over the long term. In addition, the provision of sufficient 
native sagebrush-steppe habitat protects slickspot peppergrass from 
wildfire, nonnative plant invasions, and colonization by Owyhee 
harvester ants (see our final listing rule (74 FR 52014, October 8, 
2009), the reinstatement of the listing rule (81 FR 55058, August 17, 
2016), and the SSA (USFWS 2020) for a description of these threats), 
and it helps to maintain local ecosystem characteristics within the 
larger landscape, which are crucial for protecting the species and its 
persistent seed bank. The seed bank is an essential feature of 
slickspot peppergrass's biology because it provides the species with 
resilience in the face of stochastic impacts and variation in 
environmental conditions.

Summary of Essential Physical or Biological Features

    Based on our current knowledge of habitat characteristics required 
to sustain the species' life-history processes, we determine that the 
PBFs essential to the conservation of slickspot peppergrass are:
    (1) Ecologically functional microsites or ``slick spots'' that are 
characterized by:
    (a) A high sodium and clay content, and a three-layer soil profile, 
which allows for successful seed germination, seedling growth, and 
maintenance of the seed bank. The surface horizon consists of a thin, 
silty, vesicular, pored (small cavity) layer that forms a physical 
crust (the silt layer). The subsoil horizon is a restrictive clay layer 
with an abruptic (referring to an abrupt change in texture) boundary 
with the surface layer, that is natric or natric-like in properties (a 
type of argillic (clay-based) horizon with distinct structural and 
chemical features) (the restrictive layer). The second argillic subsoil 
layer (that is less distinct than the upper argillic horizon) retains 
moisture through part of the year (the moist clay layer); and
    (b) Sparse vegetation with invasive, nonnative plant species cover 
absent or limited to low to moderate levels.
    (2) Relatively intact, native Wyoming big sagebrush (Artemisia 
tridentata ssp. wyomingensis) vegetation assemblages, represented by 
native bunchgrasses, shrubs, and forbs, within 500 m (1,640 ft) of 
slickspot peppergrass element occurrences to protect slick spots and 
slickspot peppergrass from disturbance from wildfire, slow the invasion 
of slick spots by nonnative plant species and native harvester ants, 
and provide the habitats needed by slickspot peppergrass' pollinators.
    (3) A diversity of native plants whose blooming times overlap to 
provide pollinator species with flowers for foraging throughout the 
seasons and to provide nesting and egg-laying sites; appropriate 
nesting materials; and sheltered, undisturbed places for hibernation 
and overwintering of pollinator species. In order for genetic exchange 
of slickspot peppergrass to occur, pollinators must be able to move 
freely between slick spots. Alternative pollen and nectar sources 
(other plant species within the surrounding sagebrush vegetation) are 
needed to support pollinators during times when slickspot peppergrass 
is not flowering, when distances between slick spots are long, and in 
years when slickspot peppergrass is not a prolific flowerer.
    (4) Sufficient pollinators for successful fruit and seed 
production, particularly pollinator species of the sphecid and vespid 
wasp families, species of the bombyliid and tachnid fly families, and 
halictid bee species, most of which are solitary insects that nest 
outside of slick spots in the surrounding sagebrush-steppe vegetation, 
both in the ground and within the vegetation.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. A detailed discussion of the threats affecting the PBFs 
essential to the conservation of slickspot peppergrass, and that may 
require special management consideration or protection, can be found in 
the final listing rule published in the Federal Register on October 8, 
2009 (74 FR 52014), the 2016 final rule reinstating threatened status 
for the species under the Act (81 FR 55058, August 17, 2016), in the 
recently completed SSA report (USFWS 2020, pp. 59-83, 85-103), and in 
the latest 5-year review (USFWS 2021).
    The primary threats to the PBFs for slickspot peppergrass include 
the following direct and indirect effects: the current wildfire regime 
(i.e., increasing frequency, size, and duration), invasive, nonnative 
plant species (e.g., cheatgrass), and habitat loss and fragmentation 
due to agricultural and urban development. One of the indirect threats 
experienced by slickspot peppergrass is the negative impact on insect 
pollinators caused by conversion and fragmentation of native habitats 
due to invasive, nonnative plant species and various forms of 
development. Another indirect threat is the potential increase in seed 
predation by Owyhee harvester ants resulting from the conversion of 
sagebrush-steppe to grasslands. Livestock pose a threat to slickspot 
peppergrass, primarily through mechanical damage to individual plants 
and slick spot habitats; however, current livestock management 
conditions and associated conservation measures address this potential 
threat such that it does not pose a significant risk to the viability 
of the species as a whole.
    In the 2009 listing rule (74 FR 52014, October 8, 2009), climate 
change in and of itself was not considered to represent a significant 
range-wide threat to slickspot peppergrass; however, it was 
acknowledged that climate change potentially plays an important 
supporting role in intensifying the primary threats to the species. 
Information identified in the SSA (USFWS 2020, pp. 79-82) indicated 
that climate change has already amplified the effects of wildfire and 
invasive, nonnative plants on slickspot peppergrass, and through its 
influence on invasive, nonnative annual grass spread, climate change 
may have been a factor in the continuing downward trend in slickspot 
peppergrass population numbers observed over the past decade. Other, 
less significant factors that have the potential to impact the species 
include the effects from rangeland revegetation projects, wildfire 
management practices, recreation, and military use.
    All areas of critical habitat may require some level of management 
to address current and future threats to slickspot peppergrass and to 
maintain or restore the PBFs. Special management to protect the 
features essential to the conservation of slickspot peppergrass from 
the effects of the current wildfire regime may include preventing or 
restricting the establishment of invasive, nonnative plant species, 
post-wildfire restoration with native plant species, and reducing the 
likelihood of wildfires affecting the nearby plant community 
components. Rapid response to wildfires from local and government fire 
agencies can potentially limit the size of wildfires and the spread of 
wildfire into slickspot peppergrass habitat. For fires that do occur in 
critical habitat, post-fire restoration plans can identify ways to 
limit invasive, nonnative vegetation and restore habitat using native 
plants.
    Special management to protect the features essential to the 
conservation of

[[Page 28887]]

slickspot peppergrass from the effects of invasive, nonnative unseeded 
plant species and seeded nonnative plants (also referred to as ``highly 
competitive nonnative seeded plants'' (USFWS 2020, p. 68)) may include 
the following: (1) protecting remnant blocks of native vegetation, (2) 
educating the public about invasive, nonnative species, (3) supporting 
research and funding for nonnative plant species control and native 
species restoration, (4) preventing or restricting the establishment of 
nonnative plant species, (5) washing vehicles prior to travel into 
areas containing slickspot peppergrass, and (6) reducing the likelihood 
of wildfires.
    Special management to protect the features essential to the 
conservation of slickspot peppergrass from the effects of livestock use 
may include conservation measures and actions to minimize the effects 
of livestock use on these lands. Existing conservation plans and land 
use plans contain numerous measures to avoid, mitigate, and monitor the 
effects of livestock use on slickspot peppergrass. For example, 
livestock-grazing conservation measures are implemented through the 
conservation agreement between the Bureau of Land Management (BLM) and 
the Service (BLM 2014, pp. 8-12) and the Mountain Home Air Force Base 
Integrated Natural Resources Management Plan (INRMP; U.S. Air Force 
2017, p. 192). Existing conservation measures include prescribing a 
minimum distance for the placement of salt and water troughs, 
identifying livestock use restrictions to reduce trampling of slick 
spots during wet periods, constructing fences, or potentially modifying 
current livestock use. We recognize the potential for negative impacts 
to slickspot peppergrass populations and slick spots that may result 
from seasonal, localized trampling events. However, under current 
management conditions, we do not consider livestock use to pose a 
significant threat to slickspot peppergrass. We encourage the continued 
implementation of conservation measures and associated monitoring to 
ensure potential impacts of livestock trampling to slickspot 
peppergrass are avoided or minimized.
    Special management to protect the features essential to the 
conservation of slickspot peppergrass from the effects of residential 
and agricultural development may include the following: (1) creating 
managed plant reserves and open spaces, (2) limiting disturbances to 
and within suitable habitats, (3) increasing compliance inspections 
with livestock grazing permit holders, (4) requiring project fencing 
with adjacent construction activities, (5) disallowing new roads, and 
(6) evaluating the need for, and conducting, restoration efforts or 
revegetation of native plants in open spaces, plant preserves, or 
disturbed areas.
    Special management to protect the features essential to the 
conservation of slickspot peppergrass from the effects of Owyhee 
harvester ant seed predation are addressed under the special management 
considerations for the current wildfire regime and invasive nonnative 
plants.
    Finally, the protection of pollinators and their habitat is 
essential to the conservation of slickspot peppergrass. General 
pollinator management practices include: (1) maintaining a diversity of 
native plants with overlapping bloom times to provide flowers for 
foraging throughout the pollinators' active season, (2) nesting and 
egg-laying sites (e.g., bare ground, hollow stems, bunchgrasses, and 
larval host plants), (3) sheltered, undisturbed places for 
overwintering, (4) a landscape free of pesticides and high levels of 
pathogens, and (5) connected habitat patches (The Xerces Society 2018, 
pp. 15-17).
    The designation of critical habitat does not imply that lands 
outside of critical habitat do not play an important role in the 
conservation of slickspot peppergrass. Activities with a Federal nexus 
that may affect those areas outside of critical habitat, such as 
development, agricultural, or road construction activities, are still 
subject to review under section 7 of the Act if they may affect 
slickspot peppergrass.

Criteria and Methodology 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 designating any areas 
outside the geographical area occupied by the species at the time of 
listing because we did not identify any unoccupied areas that were 
essential for the conservation of the species and, therefore, met the 
definition of critical habitat.
    We delineated critical habitat units within the three geographic 
areas where slickspot peppergrass occurs in order to represent genetic 
variability across the species' range. These areas include the 
Foothills, the Snake River Plain, and the Jarbidge (USFWS 2020, p. 5). 
Each critical habitat unit contains polygons of critical habitat 
consisting of slickspot peppergrass populations known as Element 
Occurrences (EO) and associated pollinator buffers that extend 500 m 
(1,640 ft) from the outer edge of the EOs. EOs are based on the 
standards and methods developed by NatureServe (NatureServe 2002, 
entire; NatureServe 2020a, entire; NatureServe 2020b, entire) and 
adopted by the Idaho Department of Fish and Game (IDFG). Slickspot 
peppergrass EOs are groups of plants that occur within 1 km (0.6 mi) of 
each other. Therefore, an EO can consist of one occupied slick spot or 
several occupied slick spots aggregated into one EO providing they are 
within the 1-km (0.6 mi) distance of one another. IDFG botanists track 
EOs and enter them into the Idaho Fish and Wildlife Information System 
(IFWIS), which is managed by the IDFG. The IDFG uses NatureServe 
guidance (NatureServe 2020b) to rank slickspot peppergrass EOs. 
Information used to inform the rankings was based on a systematic 
assessment of field data collected from summer 2012 through spring 2016 
(Kinter and Miller 2016), plus data provided to the IDFG by the BLM for 
surveys from 2016 to 2018.
    As per the NatureServe guidance, IDFG botanists ranked slickspot 
peppergrass EOs based on three factors: size, condition, and landscape 
context (Kinter and Miller 2016, p. 3). Possible EO ranks include A, B, 
C, D, E, F, H, or X; higher rankings (the highest rank is A) indicate 
sites with greater habitat quality and larger population sizes, which 
we infer are more likely to persist and sustain the species. Rankings 
of B, BC, C, CD, and D refer to states of decreased abundance and 
quality of detectable plants, native plant community, habitat 
condition, and overall landscape context within 1 km (0.6 mi) of 
occupied slick spots. Areas ranked E are those records with confirmed 
slickspot peppergrass presence but for which no additional habitat 
information is available. Rankings of F indicate areas where slickspot 
peppergrass was previously found, but no individuals were found when 
last visited by a qualified surveyor. Areas ranked H indicate 
historical occurrences where old location information is too vague to 
allow the EO to be found again. Rankings of X denote extirpated 
occurrences due to habitat destruction associated with development or 
agricultural conversion.

[[Page 28888]]

    We based our criteria for the identification of critical habitat on 
IDFG's EO rankings. EO rankings are used for assessing estimated 
viability or probability of persistence as well as for prioritizing 
conservation planning or actions (NatureServe 2020b, p. 2, 12). IDFG 
botanists ranked each EO and sub-EO (a smaller, distinct area within 
the EO that is delineated for localized management) based on measures 
of habitat quality (EO and sub-EO condition and surrounding landscape 
context) and species abundance. Weighted calculations used by the IDFG 
to determine the ranking of each EO and sub-EO were as follows:
     33 percent of the EO ranking score was based on the EO/
sub-EO size (highest number of plants observed in at least 1 of up to 
the past 6 years of available IDFG data);
     45 percent of the EO ranking score was based on habitat 
condition within EOs/sub-EOs as documented during IDFG recent field 
reviews; and
     22 percent of the EO ranking score was based on habitat 
condition of the landscape within 1 km (0.6 mi) of EOs/sub-EOs as 
documented during IDFG recent field reviews.
    These IDFG rankings do not necessarily correlate directly to the 
PBFs. For example, as described above in Summary of Essential Physical 
or Biological Features, PBF 1(b) states that ecologically functional 
microsites or ``slick spots'' are characterized by sparse vegetation, 
with introduced, invasive, nonnative plant species cover absent or 
limited to low to moderate levels. However, the IDFG rankings do not 
directly measure invasive, nonnative plant cover within the actual 
slick spot. The assessments of condition were based mostly on the EO 
habitat surrounding the slick spots, which tended to be more invaded 
than the slick spots. So, even if a habitat ranking was characterized 
as moderately to highly invaded, the slick spots themselves often had 
very low amounts of invasive species (Kinter 2020, pers. comm.). 
Therefore, we used the IDFG rankings, which constitute the best 
available information, as surrogates to help us determine which EOs 
provided the PBFs essential to the conservation of the species (i.e., 
the EOs most likely to provide for populations of slickspot peppergrass 
that will contribute to the conservation and recovery of the species).
    Based on comments received during the public comment period on our 
revised proposed critical habitat rule (85 FR 44584, July 23, 2020), we 
reevaluated our criteria for determining which EOs contain PBFs and 
meet our definition of critical habitat. The proposed rule included 
slickspot peppergrass EOs with IDFG rankings of B, BC, C, and CD as 
designated critical habitat. However, in this final rule, we also 
included all areas that were occupied at the time of listing that are 
ranked D. Although some of the EOs with D rankings often have PBFs with 
degraded conditions and may need special management, we determined that 
including these lower ranked EOs is essential to the conservation of 
the species in part because we no longer have any excellent (A-ranked) 
or excellent to good (AB ranked) EOs, and we need these lower ranked 
EOs to increase the redundancy of populations across the species' 
range. Since 2006, there have been no A- or AB-ranked EOs of slickspot 
peppergrass (Kinter and Miller 2016, p. 8; Colket et al. 2006, p. 11; 
IFWIS database (IDFG Database 2021)). Ultimately, we conclude that 
every EO included in critical habitat was occupied at the time of 
listing and has one or more of the PBFs sufficient to justify 
designation.
    Slickspot peppergrass is a species endemic to southwest Idaho with 
a relatively small geographic range and limited, finite habitat. Slick 
spot microsites are believed to have formed during the Pleistocene, and 
current climate conditions may not allow for the formation of new slick 
spots; therefore, the loss of slick spot microsites within the range of 
slickspot peppergrass seems to be permanent (USFWS 2020, pp. 6-7). A 
statistical analysis of 11 years of range-wide monitoring data 
demonstrated that across all three geographic areas, slickspot 
peppergrass is declining (Bond 2017, p. 11), and without new tools and 
management to reduce or ameliorate the primary threats (increased 
wildfire and invasive plants) to the species, slickspot peppergrass is 
predicted to continue to decline into the future (USFWS 2020, pp. 121, 
124-130).
    In addition, we expect climate change to magnify the severity and 
scope of the primary threats of changing wildfire regimes and invasive 
nonnative plants to slickspot peppergrass, thereby reducing resiliency, 
representation, and redundancy of slickspot peppergrass populations 
rangewide (USFWS 2020, pp. 79-82). In the 2009 listing rule (74 FR 
52014, October 8, 2009), we did not consider climate change to 
represent a significant range-wide threat to slickspot peppergrass. 
However, information identified in the SSA indicates that climate 
change has already amplified the effects of wildfire and invasive, 
nonnative plants on slickspot peppergrass. Through its influence on the 
spread of invasive, nonnative annual grasses, climate change may have 
been a factor in the continuing downward trend in slickspot peppergrass 
population numbers observed over the past decade.
    Elevations for slickspot peppergrass populations range from a low 
of 756 m (2,480 ft) at EO 68 south of New Plymouth, Idaho, in the 
Foothills geographic area to a high of 1,654 m (5,425 ft) at EO 97 
south of the Juniper Butte Range in the Jarbidge geographic area. Both 
extremes of low- and high-elevation areas contain slickspot peppergrass 
populations assessed by IDFG as having good population viability (B-
ranked), although the lower elevation populations of the Foothills 
geographic area are smaller in area and more isolated, likely due to 
more fragmented habitats. The current higher fragmentation levels and 
projected future increased risk for wildfire and invasive, nonnative 
plants (particularly cheatgrass) make lower elevation populations more 
vulnerable to the effects of climate change than the higher elevation 
populations in the Jarbidge geographic area because these threats are 
likely to be amplified in lower elevation areas as temperatures 
increase. Most plant species cannot naturally shift their geographic 
ranges fast enough to keep up with predicted high projected rates of 
climate change in most landscapes. However, by designating critical 
habitat in all three geographic areas (Foothills, Snake River Plain, 
and Jarbidge) where the species occurs, including all B-D ranked EOs as 
well as the 500-m (1,640-ft) pollinator buffer around designated EOs, 
we have determined that these areas will help support slickspot 
peppergrass under potential climate change scenarios in the future.
    We also continue to include areas that may have been partially 
degraded in the past by threats such as wildfire. The Act defines 
critical habitat as the specific areas within the geographical area 
occupied by the species, at the time it is listed, on which are found 
those physical or biological features essential to the conservation of 
the species and which may require special management considerations or 
protections. A combination of special management activities such as 
habitat enhancement or threat-reduction actions may be appropriate to 
maintain (and possibly increase) slickspot-peppergrass population 
resiliency and species persistence over time. Including lower ranked 
EOs (CD and D) will help ensure we retain the flexibility to consider 
various paths to recovery. In summary, after considering the best 
available information, we determined that all

[[Page 28889]]

occupied slickspot peppergrass EOs ranked B-D contain one or more of 
the physical or biological features essential to the conservation of 
the species and, therefore, meet our definition of critical habitat.
    We have determined that 113 EOs (42 B-ranked, 2 BC-ranked, 33 C-
ranked, 7 CD-ranked, and 29 D-ranked) meet our criteria for critical 
habitat designation. These 113 EOs reflect the merging of 2 C-ranked 
EOs (EOs 19 and 41) into B-ranked EO 18, the addition of CD-ranked EOs 
23 and 57 that were not included in the proposed rule (85 FR 44584, 
July 23, 2020), and the addition of 6 new EOs. These six EOs include EO 
122 (Unit 3a; C rank) and EOs 123, 124, 727, 728, and 729 (Unit 4, B 
rank). These EOs were ranked by the IDFG after publication of our July 
23, 2020, revised proposed rule (85 FR 44584) and meet our definition 
of critical habitat. EO 122 was occupied at the time of listing (2016). 
The other five EOs were found in 2017 and were likely occupied at the 
time of listing because these slick spots had not been surveyed prior 
to 2017, and slickspot peppergrass is not likely to colonize new areas 
to the extent to which these EOs were populated (number of plants 
ranged from 13 to 766 per EO) within a year. Therefore, all six EOs are 
included in our final critical habitat designation.
    In the 2009 final listing rule (74 FR 52014, October 8, 2009), we 
described the total area of known EOs (that is, area covered by the EOs 
themselves) as being approximately 6,500 hectares (ha) (16,000 acres 
(ac)). This area reflected only the known locations of individuals of 
the plant, as recognized in the IDFG IFWIS database as of 2009, and is 
a small portion of the overall geographic range of the species. In the 
May 10, 2011, proposed critical habitat rule (76 FR 27184), we 
described in detail the criteria used to identify critical habitat, 
including a 250-m (820-ft) buffer around EO polygons to provide areas 
for pollinator support and to minimize disturbance to the plant's 
habitat. We have since reassessed the size of the pollinator buffer 
and, in this final rule, we are increasing the buffer around EOs to 500 
m (1,640 ft) (see the section Physical or Biological Features Essential 
to the Conservation of the Species, above, for details).
    In this final rule, we used Geographic Information System (GIS) 
software (ESRI ArcGIS 10.7.1) to more precisely map areas that meet the 
definition of critical habitat rather than the mapping methodology we 
used in our 2011 and 2014 proposed rules (76 FR 27184, May 10, 2011; 79 
FR 8402, February 12, 2014), which used the Public Land Survey System 
Quarter-Quarter section method. The GIS-based method involves 
delineation of B- through D-ranked slickspot peppergrass EOs surrounded 
by 500-m (1,640-ft) pollinator buffers to create polygons of slickspot 
peppergrass critical habitat. In contrast, critical habitat maps in 
2011 and 2014 were created by selecting all Quarter-Quarter sections 
that intersected with B- through CD-ranked EOs or their surrounding 
250-m (820-ft) pollinator buffers. The use of Quarter-Quarter sections, 
which represent land survey boundaries rather than biologically based 
boundaries, resulted in large areas outside of the GIS-generated 
polygons being included as proposed critical habitat in the 2011 
proposed critical habitat rule (76 FR 27184, May 10, 2011) and the 2014 
revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014). Use 
of GIS-based information represents a more precise method of 
delineating critical habitat that does not include extraneous areas.
    The use of B- through D-ranked EO polygons and their surrounding 
500-m (1,640-ft) pollinator buffers to create a more biologically sound 
critical habitat designation method is feasible, and is consistent with 
current Service regulations (77 FR 25611, May 1, 2012; 81 FR 7414, Feb. 
11, 2016; 84 FR 45020, August 27, 2019) as well as with other Service 
critical habitat rules (e.g., White Bluffs bladderpod (78 FR 76995, 
December 20, 2013), Webber's ivesia (79 FR 32126, June 3, 2014), 
beardless chinchweed (86 FR 31830, June 15, 2021)).
    When determining final 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 PBFs 
necessary for slickspot peppergrass. These areas lacking PBFs were 
identified in GIS using aerial imagery from the ArcGIS World Imagery 
layer, aerial imagery from Google Earth Pro, and the 2019 National 
Agricultural Imagery Program (NAIP) Idaho layer, which has a spatial 
resolution of a 60-centimeter ground sample distance. Areas that lacked 
PBFs were then manually clipped out of our critical habitat polygons. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the final rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands will not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification, unless the specific action will 
affect the PBFs in the adjacent critical habitat.
    Therefore, we are designating as critical habitat lands that we 
determined were occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the PBFs that are essential 
to support life-history processes of the species, and that may require 
special management considerations or protections. The four units each 
contain one or more of the physical or biological features that support 
multiple life-history processes for slickspot peppergrass.
    The final critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, and presented at 
the end of this document under Regulation Promulgation. We will make 
the coordinates or plot points or both on which each map is based 
available to the public on https://www.regulations.gov at Docket No. 
FWS-R1-ES-2010-0071, and on our internet site here: https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum.

Final Critical Habitat Designation

    We are designating approximately 31,569 ha (78,009 ac) of critical 
habitat in four units and seven subunits for slickspot peppergrass. The 
four units are the: (1) Payette and Gem Counties Unit, (2) Gem and Ada 
Counties Unit, (3) Ada and Elmore Counties Unit, and (4) Owyhee County 
Unit. Table 1 shows the critical habitat units and the approximate area 
of each unit. All units are considered occupied at the time of listing. 
The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for slickspot peppergrass.

[[Page 28890]]



                            Table 1--Critical Habitat Units for Slickspot Peppergrass
        [Area estimates reflect all critical habitat within critical habitat unit or subunit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                           Federal land in hectares (acres)
                                                        --------------------------------------   Total land in
               Unit                       Subunit          Bureau of Land       Bureau of       hectares (acres)
                                                             Management        Reclamation
----------------------------------------------------------------------------------------------------------------
1-Payette and Gem Counties.......  ....................        695 (1,718)             9 (23)        704 (1,741)
----------------------------------------------------------------------------------------------------------------
2-Gem and Ada Counties...........  2a..................        874 (2,160)                  0        874 (2,160)
                                   2b..................     5,423 (13,401)                  0     5,423 (13,401)
                                   2c..................        657 (1,623)                  0        657 (1,623)
                                   2d..................      1,689 (4,173)            18 (45)      1,707 (4,218)
                                                        --------------------------------------------------------
                                   Unit 2 Total........     8,643 (21,357)            18 (45)     8,661 (21,402)
----------------------------------------------------------------------------------------------------------------
3-Ada and Elmore Counties........  3a..................      1,502 (3,711)           52 (128)      1,554 (3,839)
                                   3b..................      1,821 (4,502)            32 (80)      1,854 (4,582)
                                   3c..................      2,453 (6,062)            32 (80)      2,485 (6,142)
                                                        --------------------------------------------------------
                                   Unit 3 Total........     5,777 (14,275)          117 (288)     5,894 (14,563)
----------------------------------------------------------------------------------------------------------------
4-Owyhee County..................  ....................    16,310 (40,303)                  0    16,310 (40,303)
                                                        --------------------------------------------------------
    Total........................  ....................    31,424 (77,652)          144 (356)    31,569 (78,009)
----------------------------------------------------------------------------------------------------------------
Notes: Area sizes may not sum due to rounding.

    We present brief descriptions of all final critical habitat units, 
identify the EOs included in each, and provide the reasons why they 
meet the definition of critical habitat for slickspot peppergrass, 
below.

Unit 1: Payette and Gem Counties

    Critical habitat in Unit 1 (Payette and Gem Counties Unit) consists 
of 704 ha (1,741 ac) located in portions of Payette and Gem Counties 
within the Foothills geographic area. The northern boundary of Unit 1 
is approximately 7.0 km (4.3 mi) south of New Plymouth, Idaho. This 
unit contains five slickspot peppergrass EOs: 66, 68, 69, 70, and 114, 
all of which were occupied at the time of the species' listing. All 
designated critical habitat is federally managed by either the BLM Four 
Rivers Field Office area (695 ha (1,718 ac)) or the Bureau of 
Reclamation (BOR) (9 ha (23 ac)). We have excluded 76 ha (188 ac) of 
private land from portions of all five EOs in this unit (see Exclusions 
Based on Other Relevant Impacts, below). Unit 1 critical habitat 
polygons contain all PBFs: slick spot microsites, suitable vegetation 
composition and structure, sufficient habitat components to support 
insect pollinators, and insect pollinators to allow for sufficient 
fruit and seed production. Unit 1 is important to the conservation of 
the species because it contains the northernmost occurrences for 
slickspot peppergrass and potentially has the highest numbers of 
individual plants. This unit helps to maintain the geographic range of 
the species and provide opportunity for population growth. In Unit 1, 
special management considerations or protection of the PBFs may be 
required to address the threats posed by the current wildfire regime, 
invasive nonnative plant species, and incompatible livestock use. These 
threats are being addressed or coordinated with our partners, including 
the BLM and BLM livestock permittees, to implement needed actions for 
species recovery.

Unit 2: Gem and Ada Counties

    Critical habitat in Unit 2 (Gem and Ada Counties Unit) consists of 
8,661 ha (21,402 ac) divided into four subunits: 2a, 2b, 2c, and 2d. 
This unit contains 26 slickspot peppergrass EOs split among the 4 
subunits. All designated critical habitat in this unit is federally 
managed by the BLM (8,643 ha (21,357 ac)) and BOR (18 ha (45 ac)). All 
subunits contain the PBFs essential to the conservation of the species, 
as described in more detail below. This unit is important to the 
conservation of slickspot peppergrass because it contains a large 
remaining intact area of sagebrush-steppe habitat that has experienced 
little impact from wildfire.
Subunit 2a
    Subunit 2a lies within the Foothills geographic area and contains 
the city of Eagle, Idaho, and the southern boundary of the subunit is 
approximately 1.8 km (1.1 mi) northwest of Boise, Idaho. Subunit 2a 
contains five EOs: 52, 56, 76, 108 and 118, all of which were occupied 
at the time of the species' listing. Approximately 874 ha (2,160 ac) of 
subunit 2a are federally managed by the BLM. We have excluded 1,572 ha 
(3,886 ac) of private land and 41 ha (102 ac) of State land from 
portions of EOs 52, 56, 76, 108, and 118 and wholly from EOs 12, 23, 
36, 38, 65, and 107 (see Exclusions Based on Other Relevant Impacts, 
below). Subunit 2a is important to the conservation of the species 
because it contains several large populations of slickspot peppergrass 
in the Foothills area. This subunit helps to maintain the geographic 
range of the species and provide opportunity for population growth. 
Subunit 2a critical habitat polygons contain one or more PBFs: slick 
spot microsites, suitable vegetation composition and structure, 
sufficient habitat components to support insect pollinators, and insect 
pollinators to allow for sufficient fruit and seed production. In 
Subunit 2a, special management considerations or protection of the PBFs 
may be required to address the threats posed by the current wildfire 
regime, invasive nonnative plant species, and incompatible livestock 
use. These threats are being addressed or coordinated with our 
partners, including the BLM and BLM livestock permittees, to implement 
needed actions for species recovery.
Subunit 2b
    The northern boundary of Subunit 2b is approximately 3.2 km (2.0 
mi) south of Kuna, Idaho, within the Snake River Plain geographic area. 
Critical habitat in Subunit 2b comprises 5,423 ha (13,401

[[Page 28891]]

ac) of federally managed BLM land and contains eight EOs: 18, 24, 25, 
42, 43, 57, 58, and 105, all of which were occupied at the time of the 
species' listing. We have excluded 64 ha (159 ac) of private land and 
171 ha (423 ac) of State land from portions of EOs 18 and 25 (see 
Exclusions Based on Other Relevant Impacts, below). BLM lands in 
Subunit 2b are within the Morley Nelson Snake River Birds of Prey 
National Conservation Area. This subunit is important to the 
conservation of the species because it contains EO 18, which supports 
high numbers of individual plants. Subunit 2b helps to maintain the 
geographic range of the species and provide opportunity for population 
growth. Although impacted from past fires, Subunit 2b critical habitat 
polygons contain one or more PBFs: slick spot microsites, suitable 
vegetation composition and structure, sufficient habitat components to 
support insect pollinators, and insect pollinators to allow for 
sufficient fruit and seed production. In Subunit 2b, special management 
considerations or protection of the PBFs may be required to address the 
threats posed by the current wildfire regime, invasive nonnative plant 
species, and incompatible livestock use. These threats are being 
addressed or coordinated with our partners, including the BLM and BLM 
livestock permittees, to implement needed actions for species recovery.
Subunit 2c
    The northern boundary of Subunit 2c is approximately 6.0 km (3.7 
mi) southwest of Boise, Idaho, within the Snake River Plain geographic 
area. It contains four EOs: 32, 48, 49, and 102, all of which were 
occupied at the time of the species' listing. Critical habitat in 
Subunit 2c consists of approximately 657 ha (1,623 ac) of BLM land 
within the Four Rivers Field Office area. We have excluded 793 ha 
(1,959 ac) of private land and 149 ha (367 ac) of State land from 
portions of EOs 32, 48, 49, and 102 and wholly from EOs 22, 64, and 101 
(see Exclusions Based on Other Relevant Impacts, below). Subunit 2c is 
important to the conservation of the species because it provides for 
connectivity between the species' populations at the eastern and 
western portions of the species' range. This subunit helps to maintain 
the geographic range of the species and provide opportunities to expand 
populations. Subunit 2c critical habitat polygons contain one or more 
PBFs: slick spot microsites, suitable vegetation composition and 
structure, sufficient habitat components to support insect pollinators, 
and insect pollinators to allow for sufficient fruit and seed 
production. In Subunit 2c, special management considerations or 
protection of the PBFs may be required to address the threats posed by 
the current wildfire regime, invasive nonnative plant species, and 
incompatible livestock use. These threats are being addressed or 
coordinated with our partners, including the BLM and BLM livestock 
permittees, to implement needed actions for species recovery.
Subunit 2d
    The northern boundary of subunit 2d is approximately 23.0 km (14.3 
mi) southeast of Boise, Idaho, within the Snake River Plain geographic 
area. Subunit 2d contains nine EOs: 27, 28, 54, 67, 72, 77, 103, 104, 
and 119, all of which were occupied at the time of the species' 
listing. Critical habitat in Subunit 2d consists of approximately 1,707 
ha (4,218 ac) of land managed by the BLM (1,689 ha (4,173 ac)) and the 
BOR (18 ha (45 ac)). We have excluded 112 ha (277 ac) of private land 
and 1,182 ha (2,921 ac) of State land from portions of EOs 27, 54, 67, 
72, 77, 103, and 104 (see Exclusions Based on Other Relevant Impacts, 
below).
    Subunit 2d is located, in part, within the boundary of the BLM 
Morley Nelson Snake River Birds of Prey National Conservation Area. 
This subunit helps to maintain the geographic range of the species and 
provide an opportunity to expand slickspot peppergrass populations. 
Subunit 2d critical habitat polygons contain one or more PBFs: slick 
spot microsites, suitable vegetation composition and structure, 
sufficient habitat components to support insect pollinators, and insect 
pollinators to allow for sufficient fruit and seed production. In 
Subunit 2d, special management considerations or protection of the PBFs 
may be required to address the threats posed by the current wildfire 
regime, invasive nonnative plant species, and incompatible livestock 
use. These threats are being addressed or coordinated with our 
partners, including the BLM and BLM livestock permittees, to implement 
needed actions for species recovery.

Unit 3: Ada and Elmore Counties

    Critical habitat in Unit 3 (Ada and Elmore Counties Unit) consists 
of 5,996 ha (14,816 ac) within the Snake River Plain geographic area 
that is managed by the BLM (5,845 ha (14,444 ac)) and the BOR (150 ha 
(372 ac)). It contains three subunits: 3a, 3b, and 3c. This unit is 
composed of 26 slickspot peppergrass EOs. All subunits contain the PBFs 
essential to the conservation of the species, as described in more 
detail below. Unit 3 is important to the conservation of the species 
because it contains EOs with higher quality habitat, represents a 
substantial portion of the species' range, and contains several EOs 
with high numbers of slickspot peppergrass plants.
Subunit 3a
    The northern boundary of Subunit 3a is approximately 6.3 km (3.9 
mi) south of Mayfield, Idaho, while the southern boundary is 
approximately 19.6 km (12.2 mi) northwest of Mountain Home, Idaho. 
Subunit 3a is composed of seven EOs: 15, 20, 30, 31, 60, 112, and 122, 
all of which were occupied at the time of the species' listing. 
Critical habitat in Subunit 3a consists of approximately 1,554 ha 
(3,839 ac) of land managed by the BLM (1,502 ha (3,711 ac)) and the BOR 
(52 ha (128 ac)). We have excluded 1,059 ha (2,618 ac) of private land 
from portions of all seven EOs in this unit (see Exclusions Based on 
Other Relevant Impacts, below). Subunit 3a is bisected by Interstate 84 
and old Highway 30; past burns and associated drill-seeding of crested 
wheatgrass (Agropyron cristatum) are evident in portions of this 
subunit. This subunit contains PBFs essential to the conservation of 
slickspot peppergrass. Subunit 3a is important to the conservation of 
the species because it contains some EOs supporting high numbers of 
slickspot peppergrass plants. This subunit helps to maintain the 
geographic range of the species and provide opportunity for population 
growth. Subunit 3a critical habitat polygons contain one or more PBFs: 
slick spot microsites, suitable vegetation composition and structure, 
sufficient habitat components to support insect pollinators, and insect 
pollinators to allow for sufficient fruit and seed production. Special 
management considerations or protection of the PBFs may be required in 
Subunit 3a to address the threats posed by the current wildfire regime, 
invasive nonnative plant species, incompatible livestock use, and off-
road vehicle use. These threats are being addressed or coordinated with 
partners, including the BLM and BLM livestock permittees, to implement 
needed actions for species recovery.
Subunit 3b
    The boundaries of Subunit 3b include the city of Mountain Home, 
Idaho, while the northern boundary is approximately 55.7 km (34.6 mi) 
southeast of Boise, Idaho. Subunit 3b is composed of 14 EOs: 10, 21, 
29, 50, 51,

[[Page 28892]]

61, 62, 111, 113, 115, 116, 117, 120, and 121, all of which were 
occupied at the time of the species' listing. Critical habitat in 
Subunit 3b consists of approximately 1,957 ha (4,835 ac) of land 
managed by the BLM (1,890 ha (4,671 ac)) and the BOR (66 ha (164 ac)). 
We have excluded 185 ha (458 ac) of private land and 134 ha (330 ac) of 
State land from portions of EOs, 21, 50, 61, 62, 115, and 121 (see 
Exclusions Based on Other Relevant Impacts, below). BLM lands within 
Subunit 3b are located within both the Four Rivers Field Office area 
and the Morley Nelson Birds of Prey National Conservation Area. Subunit 
3b is important to the conservation of the species because it provides 
connectivity between other units across the range of the species. This 
subunit helps to maintain the geographic range of the species and 
provide opportunity for population growth. Subunit 3b critical habitat 
polygons contain one or more PBFs: slick spot microsites, suitable 
vegetation composition and structure, sufficient habitat components to 
support insect pollinators, and insect pollinators to allow for 
sufficient fruit and seed production. Subunit 3b contained substantial 
biological soil crust cover and relatively low cheatgrass cover; 
however, a wildfire that occurred in the area in 2012 (USFWS 2013, p. 
3) likely reduced habitat quality in the subunit. In Subunit 3b, 
special management considerations or protection of the PBFs may be 
required to address the threats posed by the current wildfire regime, 
invasive nonnative plant species, and incompatible livestock use. These 
threats are being addressed or coordinated with our partners, including 
the BLM and BLM livestock permittees, to implement needed actions for 
species recovery.
Subunit 3c
    The southern boundary of Subunit 3c is approximately 1.6 km (1.0 
mi) northeast of Hammett, Idaho, while the western boundary is 19.6 km 
(12.2 mi) southeast of Mountain Home, Idaho. This subunit is composed 
of four EOs: 8, 26, 63, and 106, all of which were occupied at the time 
of the species' listing. Critical habitat in Subunit 3c consists of 
approximately 2,485 ha (6,142 ac) of land managed by the BLM (2,453 ha 
(6,062 ac)) and the BOR (32 ha (80 ac)). We have excluded 643 ha (1,589 
ac) of private land from portions of EOs 8, 26, and 63 (see Exclusions 
Based on Other Relevant Impacts, below). BLM lands in Subunit 3c are 
primarily within the Four Rivers Field Office area. Subunit 3c is 
important to the conservation of the species because it contains the 
most northeastern occurrences for slickspot peppergrass and has two EOs 
(8 and 26) with large numbers of plants. This subunit helps to maintain 
the geographic range of the species and provide opportunity for 
population growth. Subunit 3c critical habitat polygons contain one or 
more PBFs: slick spot microsites, suitable vegetation composition and 
structure, sufficient habitat components to support insect pollinators, 
and insect pollinators to allow for sufficient fruit and seed 
production. Biological soil crust cover is high in some areas of the 
subunit. In Subunit 3c, special management considerations or protection 
of the PBFs may be required to address the threats posed by the current 
wildfire regime, invasive nonnative plant species, incompatible 
livestock use, and recreational use. These threats are being addressed 
or coordinated with our partners, including the BLM and BLM livestock 
permittees, to implement needed actions for species recovery.

Unit 4: Owyhee County

    Critical habitat in Unit 4 (Owyhee County Unit) consists of 16,310 
ha (40,303 ac) of land managed by the BLM within the Jarbidge 
geographic area. The northern boundary of Unit 4 is approximately 83.8 
km (52.1 mi) south of Mountain Home, Idaho, while the eastern boundary 
is 52.0 km (32.3 mi) west of Rogerson, Idaho. This unit is important to 
the conservation of slickspot peppergrass because it contains the 
largest amount of contiguous habitat with little fragmentation or 
development, helps to maintain the geographic range of the species, and 
provides an opportunity for population growth. In addition, it contains 
the most high-elevation habitat, which will be more resilient to 
climate change. This unit is composed of 24 EOs (EOs 73, 74, 75, 78, 
79, 80, 81, 83, 84, 85, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 
123, 124) and 22 sub-EOs (sub-EOs 700, 701, 702, 703, 704, 705, 706, 
708, 709, 712, 715, 716, 717, 719, 720, 721, 722, 725, 726, 727, 728, 
729), which are components of the EO 16 metapopulation. The EO 16 
metapopulation is a ``parent'' EO to all sub-EOs numbered 700 or 
greater. Each of these EOs and sub-EOs were occupied at the time of the 
species' listing. We have excluded 3 ha (7 ac) of private land and 
1,059 ha (2,618 ac) of State land from portions of EOs 74, 75, 80, 83, 
84, 85, 96, 97, 124, and sub-EOs 700-729 (see Exclusions Based on Other 
Relevant Impacts, below). Unit 4 critical habitat polygons contain all 
PBFs: slick spot microsites, suitable vegetation composition and 
structure, sufficient habitat components to support insect pollinators, 
and insect pollinators to allow for sufficient fruit and seed 
production. In Unit 4, special management considerations or protection 
of the PBFs may be required to address the threats posed by the current 
wildfire regime, invasive nonnative plant species, and incompatible 
livestock use. These threats are being addressed or coordinated with 
our partners, including the BLM and BLM livestock permittees, to 
implement needed actions for species recovery (portions of Unit 4 
contain past drill-seedings of crested wheatgrass and other highly 
competitive nonnative species).

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.
    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 Act's 
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. The Bureau of Land Management has conducted 
section 7 compliance on slickspot peppergrass

[[Page 28893]]

proposed critical habitat since it was initially proposed in 2011.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for 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: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    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 ``Destruction or 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 PBFs 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 section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to: Actions that would remove a 
significant number of slick spot microsites, a significant portion of 
remnant native sagebrush steppe habitat, or a significant amount of 
pollen and nectar source plants, and actions that would result in 
significant ground disturbance. Such activities could include, but are 
not limited to, residential and commercial development, infrastructure 
projects, and conversion to agricultural fields. These activities could 
permanently eliminate or reduce the habitat necessary for the growth 
and reproduction of slickspot peppergrass.

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 (DoD), or designated for its 
use, that are subject to an INRMP prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
proposed critical habitat designation for slickspot peppergrass to 
determine if they met the criteria for exemption from critical habitat 
under section 4(a)(3) of the Act. The following areas are designated 
for the use of DoD with completed, Service-approved INRMPs.

Approved INRMPs

    Military activities within the range of slickspot peppergrass 
include ordnance-impact areas, training activities, and military 
development. Military-training activities occur at, or near, four EOs: 
three at the OCTC in the Snake River Plain area, and a portion of one 
EO at the U.S. Air Force Juniper Butte Range

[[Page 28894]]

in the Jarbidge area. INRMPs have been developed and implemented for 
both the Juniper Butte Range and the OCTC that include conservation 
measures for a suite of species including slickspot peppergrass. The 
INRMPs provide management direction and conservation measures to 
address or eliminate the effects from military-training exercises on 
slickspot peppergrass and its habitat. Both the Idaho Army National 
Guard (Kinter et al. 2014, p. i) and the U.S. Air Force (Conley 2018, 
p. 3) conduct annual monitoring to ensure impacts to the species due to 
training activities are either avoided or minimized. In addition, the 
Sikes Act requires that INRMPs and its effects be regularly reviewed 
every five years by the Service and appropriate state agencies.
Idaho Army National Guard--Orchard Combat Training Center
    The Idaho Army National Guard's OCTC on the Snake River Plain has 
had an INRMP in place since 1991. Subsequent revisions and reviews were 
completed in 1997, 2004, and 2013 and included conservation benefits 
for slickspot peppergrass. Because the last INRMP revision was in 2013, 
the Idaho Army National Guard is in the process of reviewing and 
renewing the INRMP. In the meantime, OCTC is currently managed under an 
Operational INRMP that includes continued implementation of all 
slickspot peppergrass conservation measures from the 2013 INRMP until 
the INRMP revision and review is completed (Stitt 2022, in litt., 
entire).
    In addition, the Idaho Army National Guard is adding approximately 
11,505 ha (28,430 ac) of land to the OCTC under the revised INRMP 
(Stitt 2022, in litt., entire; IDARNG 2021, p. 1). This new area is 
called the Simco Training Area and contains 124 ha (307 ac) of land 
that meets the definition of slickspot peppergrass critical habitat but 
is exempted under the Operational INRMP (Stitt 2022, in litt., entire). 
These lands will be managed to avoid or minimize impacts on slickspot 
peppergrass, slick spot microsites, and sagebrush-steppe habitats.
    With the addition of the Simco Training Area land, the OCTC 
contains 4,898 ha (12,102 ac) of occupied slickspot peppergrass habitat 
and represents a majority of the highest quality, occupied slickspot 
peppergrass habitat in the Snake River Plain area. The continuing high 
quality of this habitat indicates the conservation measures are 
effective in maintaining generally intact, native-plant vegetation and 
limiting anthropogenic disturbances on the OCTC (Sullivan and Nations 
2009, p. 91).
    The INRMP for the OCTC provides a framework for managing natural 
resources. Conservation measures included in the INRMP help the Idaho 
Army National Guard avoid or minimize impacts on slickspot peppergrass, 
slick spot microsites, and sagebrush-steppe habitat, while allowing for 
the continued implementation of the Idaho Army National Guard's 
mission. These measures include management actions such as restricting 
off-road motorized vehicle use, intensive wildfire suppression efforts, 
and the restriction of ground-operated military training to areas where 
the plants are not found. For example, the INRMP includes objectives 
for maintaining and improving slickspot peppergrass habitat and 
restoring areas damaged by wildfire. The plan specifies that the OCTC 
will use native species and broadcast seeding, collecting, and planting 
small amounts of native seed not commercially available, and will 
monitor the success of seeding efforts (Idaho Army National Guard 
(IDARNG) 2013, pp. 104, 107-108). Since 1991, the OCTC, using 
historical records, has restored several areas using native seed and 
vegetation that was present prior to past wildfires.
    The Idaho Army National Guard continues to use restoration methods 
that avoid or minimize impacts to slickspot peppergrass or its habitat, 
with an emphasis on maintaining representation of species that were 
present in presettlement times (IDARNG 2013, p. 34). Since 1987, the 
Idaho Army National Guard has demonstrated that efforts to suppress 
wildfire, along with the use of native species with minimal ground-
disturbing activities, are effective in reducing the wildfire threat, 
as well as in reducing rates of spread of nonnative, invasive species 
associated with wildfire management activities (IDARNG 2013, p. 34). In 
2008, the Idaho Army National Guard also initiated maintenance on a 
series of identified fuel breaks on the OCTC. These fuel breaks are 
designed to act as barriers to prevent fires ignited by military 
training activities from spreading into adjacent slickspot peppergrass 
habitat (BLM 2008, p. 20).
    Based on 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 Idaho Army National Guard's OCTC INRMP and that 
conservation efforts identified in the INRMP are being actively 
implemented, are effective, and will provide a benefit to slickspot 
peppergrass occurring in habitats within or adjacent to the OCTC. 
Therefore, lands within this installation are exempt from critical 
habitat designation under section 4(a)(3)(B)(i) of the Act. Through use 
of GIS-based critical habitat designation methodology, we determined 
that 4,898 ha (12,102 ac) of habitat within the OCTC currently meet our 
definition of critical habitat; however, we are not including these 
4,898 ha (12,102 ac) of habitat in the final critical habitat 
designation because of this exemption.
Mountain Home Air Force Base--Juniper Butte Range
    The U.S. Air Force, Mountain Home Air Force Base, which includes 
the Juniper Butte Range in the Jarbidge area, has an INRMP that has 
been in place for this military training facility since 2004. The 
Mountain Home Air Force Base 2017 INRMP remains active (Echeverria 
2022, pers. comm.). The U.S. Air Force manages occupied slickspot 
peppergrass habitat within the Juniper Butte Range. Conservation 
measures and implementation actions for slickspot peppergrass include 
reseeding disturbed areas with native vegetation, eradicating noxious 
weeds prior to their spreading, cleaning vehicles and equipment to 
remove nonnative invasive plants, avoiding pesticide use within 8 m (25 
ft) of slick spots, and delaying livestock turnout onto the range if 
slick spot microsites are saturated (U.S. Air Force 2017, pp. 183-185, 
189, 191-192, 200). The INRMP contains specific measures developed to 
minimize the impacts from military training at the local level, or 
general measures designed to improve the ecological condition of 
native, sagebrush-steppe vegetation at a landscape scale, inclusive of 
areas supporting slickspot peppergrass, while allowing for the 
continued implementation of the Air Force mission. For example, the 
U.S. Air Force has a number of ongoing efforts to address wildfire 
prevention and suppression on the entire 4,913 ha (12,141 ac) Juniper 
Butte Range. Prevention measures that are implemented on the Juniper 
Butte Range include reducing standing fuels and weeds, planting fire-
resistant vegetation in areas with a higher potential for ignition 
sources, such as along roads, and using wildfire indices to determine 
when to restrict military activities when the wildfire hazard rating is 
extreme (U.S. Air Force 2017, pp. 215-218). As a result of implementing 
these measures, the threat from wildfire to slickspot peppergrass 
associated with U.S. Air Force training activities has been effectively 
reduced within the Juniper Butte Range.
    Based on the above considerations, and in accordance with section

[[Page 28895]]

4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the U.S. Air Force INRMP for the Juniper Butte Range 
(Mountain Home Air Force Base) and that conservation efforts identified 
in the INRMP are being implemented, are effective, and will provide a 
conservation benefit to slickspot peppergrass occurring in habitats 
within or adjacent to the Juniper Butte Range. Therefore, lands within 
this installation are exempt from critical habitat designation under 
section 4(a)(3)(B)(i) of the Act. Through use of our current GIS-based 
critical habitat mapping methodology, 4,150 ha (10,256 ac) within the 
Juniper Butte Range currently meet our definition of critical habitat; 
however, we are not including these 4,150 ha (10,256 ac) of habitat in 
the final critical habitat designation because of this exemption.

Considerations 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 based on economic 
impacts, impacts on national security, or any other relevant impacts. 
Exclusion decisions are governed by the regulations at 50 CFR 424.19 
and the Policy Regarding Implementation of Section 4(b)(2) of the 
Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--both 
of which were developed jointly with the National Marine Fisheries 
Service (NMFS). We also refer to a 2008 Department of the Interior 
Solicitor's opinion entitled ``The Secretary's Authority to Exclude 
Areas from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act'' (M-37016). We explain each decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable. The Secretary may exclude an area from critical 
habitat if she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines, based on the best scientific data available, 
that the failure to designate such area as critical habitat will result 
in the extinction of the species. In making the determination to 
exclude a particular area, 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 describe below the process that we undertook for taking into 
consideration each category of impacts and our analyses of the relevant 
impacts.

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and the implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (Industrial Economics (IEc) 2011). We made the draft analysis, 
dated July 22, 2011, available for public review and comment from 
October 26, 2011, through December 12, 2011 (76 FR 66250). Following 
the close of the comment period, we developed a final analysis (FEA, 
dated March 12, 2012) of the potential economic effects of the 
designation, taking into consideration the public comments and any new 
information (IEc 2012). In developing this final revised critical 
habitat designation, we found that the economic impacts will be similar 
to levels described in the 2012 FEA. Our rationale regarding the 
applicability of the 2012 FEA to this final critical habitat 
designation is described in further detail below.
    The intent of the FEA is to evaluate the potential economic impacts 
associated with the designation of critical habitat for slickspot 
peppergrass. The analysis first describes existing conservation plans 
and other provisions that provide protection to slickspot peppergrass 
and its habitat. We consider these existing protections and 
conservation measures already in place--whether due to the listed 
status of the species, other statutory or regulatory provisions, or 
ongoing voluntary efforts--to be ``baseline'' protections for slickspot 
peppergrass that would contribute to both costs and conservation of the 
species even absent the designation of critical habitat. We analyze the 
incremental economic impact of the final critical habitat designation 
by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario is the 
``baseline'' for the incremental analysis. The baseline, therefore, 
represents the impacts that would occur regardless of whether or not 
critical habitat is designated. The ``with critical habitat'' scenario 
describes the incremental impacts associated specifically with the 
designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts are those not expected to 
occur absent the designation of critical habitat for the species. In 
other words, the incremental costs are those attributable solely to the 
designation of critical habitat above and beyond the baseline costs; 
these are the costs we consider in the final designation of critical 
habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation, and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures the extent to which the designation may 
reduce economic efficiency associated with residential and commercial 
development and public projects and activities, such as economic 
impacts on transportation projects, Federal lands, small entities, and 
the energy industry. Decisionmakers can use this information to assess 
whether the effects of the designation might unduly burden a particular 
group or economic sector. Finally, the FEA considers potential economic 
impacts to activities from 2012 through 2031 (IEc 2012, p. 4-1). The 
FEA focuses analysis of the potential impacts on the following 
categories of activity:
    (1) Wildfire and invasive nonnative species management;
    (2) Commercial and residential development;
    (3) Utility and transportation activities; and
    (4) Livestock use.
    The analysis concludes that critical habitat designation of 
slickspot peppergrass is not likely to affect levels of economic 
activity or conservation measures being implemented within the proposed 
critical habitat areas. The incremental impacts of critical habitat 
designation for slickspot peppergrass will likely be limited to 
additional administrative costs of section 7 consultations associated 
with considering the potential for adverse modification of critical 
habitat. The total value incremental impacts of critical habitat for 
slickspot peppergrass were estimated to be $161,000 (IEc 2012, p. 4-1). 
Therefore, the incremental costs associated with critical habitat are 
unlikely to exceed $100 million in any single year and, therefore, 
would not be significant (see Executive Order (E.O.) 12866 Regulatory 
Planning and Review).

[[Page 28896]]

    The primary reason critical habitat is unlikely to generate 
economic impacts beyond administrative costs of consultation is that 
approximately 99 percent of the critical habitat is Federal land 
managed by the BLM, which is a party to a binding conservation 
agreement established for the purpose of slickspot peppergrass 
conservation. All projects and activities on these public lands within 
the critical habitat designation are already subject to section 7 
consultation for slickspot peppergrass. The BLM currently consults for 
slickspot peppergrass on projects within 805 m (2,641 ft) around 
occupied slickspot peppergrass areas and implements conservation 
measures within these areas. As such, the BLM is currently implementing 
conservation within an area larger than the 500-m (1,640-ft) buffer 
area around occupied EOs that are included in the final critical 
habitat designation (IEc 2012, p. 3-3). Even though our final 
designation has changed since the FEA was published in 2012, we do not 
expect the changes to have any meaningful practical effect on 
consultation costs because the BLM, as the primary Federal action 
agency, continues to conduct section 7 consultation on the potential 
effects of their actions on the species to an additional 302 m (991 ft) 
beyond the 500-m (1,640-ft) final critical habitat buffer. As stated in 
the FEA, we do not expect additional conservation efforts as a result 
of designation of critical habitat since the conservation measures 
currently specified in the BLM's conservation agreement are being 
applied across BLM lands and are sufficiently protective to avoid 
adverse modification of slickspot peppergrass habitat (IEc 2012, p. ES-
6). The BLM has indicated that any increase in cost associated with 
critical habitat section 7 compliance would be limited to increases in 
BLM staff costs, which have been minimal since 2012 when the economic 
analysis was completed, but not an increase in time needed to conduct 
section 7 compliance (Kershaw 2020, pers. comm.). Therefore, the 
conclusions of the 2012 final economic analysis still apply to the 
final designation of critical habitat.
    In addition, the FEA notes that across the entire area proposed for 
critical habitat designation, project proponents and land managers are 
already aware of the presence of the listed slickspot peppergrass EOs 
and the requirement to consult on projects with a Federal nexus that 
may affect the species or its habitat. The IDFG IFWIS database has 
mapped slickspot peppergrass habitat, and this information is made 
available to landowners and project proponents. In addition, previous 
proposed slickspot peppergrass critical habitat rules, which included 
maps of occupied EOs, along with a current range map, are available on 
the Service's website at https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Proponents of activities with a 
Federal nexus are, therefore, already undertaking section 7 
consultations that consider potential impacts on slickspot peppergrass 
(IEc 2012, p. ES-6).
    Non-Federal lands are excluded from the final critical habitat 
designation. Therefore, section 7 consultation of slickspot peppergrass 
critical habitat is not required on these lands, and thus there is no 
incremental impact of the designation of slickspot peppergrass critical 
habitat on non-Federal lands. Potential impacts from projects with a 
Federal nexus that may affect slickspot peppergrass plants on non-
Federal land will continue to be subject to section 7 consultation to 
ensure that those projects do not jeopardize the continued existence of 
the species. Given that all projects and activities occurring on public 
lands within critical habitat are already subject to section 7 
consultation for the species, and non-Federal lands have been excluded 
from final critical habitat designation, we conclude that the 
incremental impacts of our final designation of critical habitat for 
slickspot peppergrass will similarly be limited to the additional 
administrative costs of section 7 consultations associated with 
considering the potential for adverse modification of critical habitat, 
and that administrative costs of section 7 consultations will not 
appreciably change from levels described in the 2012 final economic 
analysis.
    We considered the economic impacts of the critical habitat 
designation. The Secretary is not exercising her discretion to exclude 
any areas from this designation of critical habitat for slickspot 
peppergrass based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Idaho Fish and Wildlife Office (see ADDRESSES) or by 
downloading from the internet at https://www.regulations.gov (search 
for docket number FWS-R1-ES-2010-0071).

Exclusions Based on Impacts on National Security and Homeland Security

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), national-security or 
homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
Nevertheless, when designating critical habitat under section 4(b)(2), 
we must consider impacts on national security, including homeland 
security, on lands or areas not covered by section 4(a)(3)(B)(i). 
Accordingly, we will always consider excluding from the designation 
areas for which DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns. All lands within the 
designation of critical habitat for slickspot peppergrass owned or 
managed by DoD or DHS are already exempted from the designation under 
section 4(a)(3)(B)(i). Consequently, the designation of critical 
habitat for the slickspot peppergrass will not have an impact on 
national security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. Other relevant impacts may include, but are 
not limited to, impacts to Tribes, States, local governments, public 
health and safety, community interests, the environment (such as 
increased risk of wildfire or pest and invasive species management), 
Federal lands, and conservation plans, agreements, or partnerships. To 
identify other relevant impacts that may affect the exclusion analysis, 
we consider a number of factors, including whether there are permitted 
conservation plans covering the species in the area, such as habitat 
conservation plans, safe harbor agreements, or candidate conservation 
agreements with assurances (CCAAs), 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 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.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive due to the 
protection

[[Page 28897]]

from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, or in the continuation, strengthening, or 
encouragement of partnerships. In addition, continued implementation of 
an ongoing management plan that provides equal to or more conservation 
than a critical habitat designation would reduce the benefits of 
including that specific area in the critical habitat designation.
    We evaluate the existence of a conservation plan when considering 
the benefits of inclusion. We consider a variety of factors, including, 
but not limited to, whether the plan is finalized; how it provides for 
the conservation of the essential PBFs; whether there is a reasonable 
expectation that the conservation management strategies and actions 
contained in a management plan will be implemented into the future; 
whether the conservation strategies in the plan are likely to be 
effective; and whether the plan contains a monitoring program or 
adaptive management to ensure that the conservation measures are 
effective and can be adapted in the future in response to new 
information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    Based on the information provided by entities seeking exclusion, as 
well as additional public comments we received, and the best scientific 
data available, we evaluated whether certain lands in our four final 
critical habitat units are appropriate for exclusion from the final 
designation under section 4(b)(2) of the Act. If the analysis indicates 
that the benefits of excluding lands from the final designation 
outweigh the benefits of designating those lands as critical habitat, 
then the Secretary may exercise her discretion to exclude the lands 
from the final designation. In the paragraphs below, we provide a 
detailed balancing analysis of the areas being excluded under section 
4(b)(2) of the Act.

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships, in General

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement or in partnership with the 
Service.
    We evaluate a variety of factors to determine how the benefits of 
any exclusion and the benefits of inclusion are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list 
of factors that we will consider for non-permitted plans or agreements 
is shown below. These factors are not required elements of plans or 
agreements, and all items may not apply to every plan or agreement.
    (i) The degree to which the plan or agreement provides for the 
conservation of the species or the essential physical or biological 
features (if present) for the species.
    (ii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (iii) The demonstrated implementation and success of the chosen 
conservation measures.
    (iv) The degree to which the record of the plan supports a 
conclusion that a critical habitat designation would impair the 
realization of benefits expected from the plan, agreement, or 
partnership.
    (v) The extent of public participation in the development of the 
conservation plan.
    (vi) The degree to which there has been agency review and required 
determinations (e.g., State regulatory requirements), as necessary and 
appropriate.
    (vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) compliance was required.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    For the slickspot peppergrass, we have evaluated these factors with 
respect to Idaho State Endowment Lands and to private lands.
    Idaho State Endowment Lands: In the July 23, 2020, revised proposed 
rule (85 FR 44584), we identified approximately 1,200 ha (2,965 ac) of 
State of Idaho Endowment (State) lands as critical habitat in Units 2, 
3, and 4. In this final rule, we considered comments received on the 
proposed rule and used the best available science to identify critical 
habitat, which resulted in 2,736 ha (6,761 ac) of State land meeting 
our definition of critical habitat.
    In response to our May 10, 2011, proposed critical habitat rule (76 
FR 27184), we received a request from the State of Idaho to exclude 
State lands covered by their candidate conservation agreement (CCA). 
The BLM, State of Idaho Governor's Office of Species Conservation 
(OSC), IDFG, IDL, Idaho National Guard, and several nongovernmental 
cooperators signed a CCA in 2003 (State of Idaho et al. 2003, entire) 
and renewed the plan in 2006 (State of Idaho et al. 2006, entire). The 
Service did not sign the CCA but provided technical advice towards its 
development (State of Idaho et al. 2006, entire). Finally, this 2006 
CCA should not be confused with CCAs developed between the Service and 
Federal partners, or with a candidate conservation agreement with 
assurances that is developed between the Service and non-Federal 
entities.
    The CCA as signed in 2006 included range-wide efforts intended to 
achieve the following goals: address the need to maintain and enhance 
slickspot peppergrass habitat; reduce intensity, frequency, and size of 
natural- and human-caused wildfires; minimize loss of habitat 
associated with wildfire suppression activities; reduce the potential 
for invasion by nonnative plant species after wildfire; minimize 
habitat loss associated with rehabilitation and restoration techniques; 
minimize the establishment of invasive nonnative species; minimize 
habitat loss or degradation from off-highway vehicle use; mitigate the 
negative effects of military training and other associated activities 
on the OCTC; and minimize the impact of ground disturbances caused by 
livestock trampling saturated soils (State of Idaho et al. 2006, p. 3). 
Some specific conservation measures the BLM and

[[Page 28898]]

State of Idaho have implemented to help reduce, and continue to reduce, 
the risk of livestock-related disturbances include working with 
livestock permittees to place salt and supplements to draw livestock 
away from EOs, avoiding livestock trailing through EOs when soils are 
saturated, delaying livestock turnout when soils are saturated, and 
confining vehicle use to established roads and tracks within EOs (USFWS 
2020, p 101).
    In the July 23, 2020, revised proposed critical habitat rule (85 FR 
44584), we requested information with respect to the ongoing 
implementation of the 2006 CCA and the performance or completion of any 
additional activities that provide for the conservation of slickspot 
peppergrass under the CCA. Based on current information and any 
information submitted during the comment period, we stated we would 
consider whether to exclude under section 4(b)(2) of the Act State 
lands that are covered by the CCA. During the comment period, the State 
of Idaho (OSC and IDL) stated that IDL continues to implement 
conservation measures outlined in the 2006 CCA on State lands 
designated as revised proposed critical habitat (OSC 2020, p. 6). To 
memorialize the State of Idaho's commitment to implementing ongoing 
conservation measures on State lands, the State of Idaho (IDL and OSC) 
and the Service entered into a new conservation agreement in 2021 for 
the continued conservation of slickspot peppergrass on State lands 
managed by IDL (USFWS et al. 2021, entire).
    The purpose of the new conservation agreement is to ``provide a 
framework for communication, coordination, cooperation, and 
implementation of conservation actions between the Service, OSC and IDL 
for the conservation of slickspot peppergrass and its habitat on State 
endowment lands managed by IDL'' (USFWS et al. 2021, p. 1). Roles and 
responsibilities of IDL under this conservation agreement include 
addressing the primary threats of wildfire and invasive annual grasses 
to slickspot peppergrass through the support of Rangeland Fire 
Protection Associations (RFPA) and the implementation of fuel-
management activities, such as through grazing, fuel breaks, and post-
fire restoration activities; including terms and conditions in grazing 
leases within slickspot peppergrass habitat to minimize impacts from 
livestock grazing; and working adaptively with the Service, OSC, and 
other partners to address habitat and management concerns for the 
species. The OSC has committed to continue addressing the primary 
threats to slickspot peppergrass through supporting RFPA's fuel 
management activities; working with grazing permittees, private 
landowners, and citizens of Idaho; and working adaptively with IDL, the 
Service, and other partners to support slickspot peppergrass recovery 
efforts. We have committed to assist OSC and IDL with monitoring as 
staffing and funding allows; to maintain close communication to share 
management concerns, latest science, and funding opportunities; and to 
continue working adaptively with IDL, OSC, and other partners to 
support slickspot peppergrass recovery efforts. The agreement will be 
reviewed by all parties at least once every five years, and the parties 
will sign an addendum to document their review.
    Benefits of Inclusion--Idaho State Lands: As discussed above, the 
primary benefit that the species receives when the Service includes 
State lands in critical habitat is the statutory mandate that Federal 
actions must avoid the destruction or adverse modification of critical 
habitat. In the case of slickspot peppergrass, we found it unlikely 
that activities outside of Federal lands (e.g., development on State, 
local, or private lands) will have a Federal nexus to trigger section 7 
consultation (IEc 2012, p. 4-4). In addition, since all habitat 
proposed for designation is occupied by the species, even if section 7 
consultation were to occur, we anticipate critical habitat will not 
affect the outcome of these consultations. Because such a consultation 
would not change the conservation measures requested, any conservation 
measures would be required as a result of the species' listing status 
and the critical habitat designation would require no additional 
measures (IEc 2012, p. 4-4). Therefore, we find there is limited, if 
any, regulatory benefit to the species from inclusion of State lands 
due to protection from adverse modification or destruction as a result 
of actions with a Federal nexus.
    The educational benefit of mapping the habitat essential for the 
recovery of slickspot peppergrass on State lands is limited. The 
economic analysis on the proposed designation reports, ``As the 
location of occupied habitat for the species on private lands is well-
known, having been mapped by the Idaho Natural Heritage Program, it is 
unlikely that critical habitat will provide new information to local 
land managers and developers regarding the presence of the species'' 
(IEc 2012, p. 4-14). Because the State is already aware of the presence 
of slickspot peppergrass and its conservation needs on their lands and 
is already implementing positive conservation actions for the benefit 
of the species, we conclude there is little, if any, educational 
benefit from designating critical habitat for this species on State 
lands. Furthermore, we are not aware of any additional State, County, 
or Federal conservation benefits to the species that would be triggered 
by the critical habitat designation. Based on the above, we conclude 
there is, at best, a very limited conservation benefit to including the 
2,736 ha (6,761 ac) of Idaho State lands within the designation of 
critical habitat for slickspot peppergrass.
    Benefits of Exclusion--Idaho State Lands: The State of Idaho 
requested that we exclude lands owned and managed by the IDL. They 
stated that the proposed critical habitat designation for slickspot 
peppergrass has the potential to negatively impact the ability of the 
Department of Lands to achieve its mission (which per their website is 
to manage Idaho's endowment assets to maximize long-term financial 
returns to public schools and other trust beneficiaries and to provide 
professional assistance to the citizens of Idaho to use, protect, and 
sustain their natural resources (IDL 2022, no pagination). They argue 
that their mission would be affected by reducing the current economic 
activities of State endowment trust lands and limiting future 
opportunities for activities. The State further claims that, because 
all of the State endowment lands within the critical habitat area are 
leased for grazing, the State would realize a loss of revenue from the 
impacted lands based on an assumption that the BLM would ban or 
restrict grazing by requiring additional fencing or limiting turnout, 
resulting in an inability to lease their trust lands at their current 
value (OSC 2011, pp. 3, 14-15). The State was a signatory to the now-
expired 2006 CCA for slickspot peppergrass and has affirmed that it is 
carrying out conservation actions outlined in the 2006 CCA for the 
benefit of the species on their lands (IEc 2012, p. 3-6; OSC 2020, p. 
6). The State of Idaho (IDL and OSC) entered into a new conservation 
agreement with the Service in 2021 to further conservation for 
slickspot peppergrass on land under the jurisdiction of the IDL (USFWS 
et al. 2021, entire); the new agreement is similar to the 2006 CCA.
    Our economic analysis of the proposed designation of critical 
habitat for slickspot peppergrass does not support the State's argument 
in full. The State was a signatory to the CCA for slickspot peppergrass 
and has affirmed that it is carrying out the conservation

[[Page 28899]]

measures provided therein on their lands (IEc 2012, p. 3-6; OSC 2020, 
p. 6). The CCA provides livestock management measures that we 
considered adequate to offset the threat that grazing might pose to the 
species (74 FR 52014, October 8, 2009, p. 52040). As noted above, we 
found it is unlikely that activities outside of Federal lands would 
trigger a section 7 consultation. However, in the event that such a 
nexus should occur, we note that any recommended measures would be made 
for the conservation of the species regardless of the critical habitat 
designation and would thus be considered baseline protections for the 
species. In other words, any such measures would not be attributable to 
effects of critical habitat but on the listed species itself (IEc 2012, 
p. 3-14). In contrast to the assertion of the State regarding potential 
lost revenue due to grazing restrictions as a result of critical 
habitat, the economic analysis confirmed that the BLM is in agreement 
that including within the critical habitat designation lands managed by 
the State's Department of Lands would not affect the types of 
conservation measures implemented to avoid impacts of livestock use on 
slickspot peppergrass and its habitat (IEc 2012, p. 3-13). Examples of 
negative impacts of critical habitat provided by the State, such as 
delayed turnout of cattle, are impacts that are attributable to 
conservation measures already in place for the protection of the 
species and, therefore, are not attributable to critical habitat. The 
economic analysis indicated that the costs of critical habitat 
designation are limited to the additional administrative costs of 
section 7 consultations associated with considering the potential for 
adverse modification of critical habitat and does not identify any 
impact on the economic activities of State trust lands or revenues 
associated with grazing leases that may be attributable to the 
designation (IEc 2012, p. ES-5).
    We do agree, however, that there is some potential for reduction in 
value of the State's trust lands for future exchange, due to the 
perception that such lands may be encumbered by additional regulatory 
restrictions due to the designation of critical habitat. The final 
economic analysis of the designation states, ``In some cases, the 
public may perceive that critical habitat designation may result in 
limitations on private property uses above and beyond those associated 
with anticipated conservation efforts and regulatory uncertainty 
described above. Public attitudes about the limits or restrictions that 
critical habitat may impose can cause real economic effects to property 
owners, regardless of whether such limits are actually imposed'' (IEc 
2012, p. 2-10). The avoidance of any potential reduction in the value 
of State trust lands could be a benefit of exclusion from critical 
habitat.
    In addition, in weighing the benefits of inclusion versus 
exclusion, we considered the value of our conservation partnership with 
the State of Idaho. They have demonstrated success by partnering with 
public and private entities to further conservation in Idaho for a 
variety of fish and wildlife species (Uriarte 2021, pers. comm.). These 
efforts include, but are not limited to, helping to develop a CCA and 
conservation agreement for slickspot peppergrass (State of Idaho et al. 
2006, entire; USFWS et al. 2021, entire); leading the Sage-grouse 
Actions Team to strategically put State legislative funding and partner 
funding on the ground for the conservation of the greater sage-grouse 
(Centrocercus urophasianus); and working closely with IDL and nine 
RFPAs to provide State legislative funding to ensure these 
organizations have the necessary equipment for early, initial attack 
and wildfire suppression efforts.
    The State was an active signatory to the CCA for slickspot 
peppergrass between the State (IDL and OSC), BLM, Idaho National Guard, 
and private landowners (State of Idaho et al. 2006, entire). This 2006 
CCA contains measures intended to address the need to maintain and 
enhance slickspot peppergrass habitat by minimizing the impact to the 
species from wildfires, implementing rehabilitation and restoration 
techniques, managing invasive nonnative species, and limiting off-
highway vehicle use and livestock use (State of Idaho et al. 2006, p. 
3). Since 2006, the CCA appears to have reduced the impacts of 
livestock use on slickspot peppergrass (USFWS 2020, pp. 100-101) but 
has been less effective at reducing or eliminating the most significant 
threats to the species from wildfire and invasive annual grasses (USFWS 
2020, p. 165). The State of Idaho confirms that they continue to 
implement conservation measures of the CCA on State lands proposed for 
critical habitat designation (IEc 2012, p. 3-6; OSC 2020, p. 6). In 
addition, in the State's comments submitted on the proposed rule (85 FR 
44584, July 23, 2020), they highlight the importance of the 
conservation measures implemented through the CCA, particularly 
regarding livestock management.
    In 2021, OSC, IDL, and the Service entered into a conservation 
agreement to further conservation for slickspot peppergrass on IDL 
lands (USFWS et al. 2021, entire). This conservation agreement contains 
conservation measures targeted to reduce threats to slickspot 
peppergrass that would not be implemented if not for this conservation 
agreement or a Federal nexus requiring section 7 consultation. This 
conservation agreement also builds upon conservation measures in the 
2006 CCA by identifying additional roles and responsibilities for IDL, 
OSC, and the Service to more effectively address the primary threats of 
wildfire and annual invasive grasses to slickspot peppergrass (USFWS et 
al. 2021, entire). Lastly, the conservation agreement emphasizes 
continued communication, coordination, cooperation, and implementation 
of slickspot peppergrass conservation measures by the Service, OSC, and 
IDL. On State lands, these protections are equal to or better than what 
the designation of critical habitat would provide, as described above 
under ``Benefits of Inclusion.'' Exclusion of these State lands from 
critical habitat will help maintain and strengthen our conservation 
partnership with the State of Idaho and may foster future partnerships 
for the benefit of other species as well.
    Based on the above, we find that the exclusion of State lands from 
the final designation would have the following benefits:
     Avoidance of any possible reduction in the value of State 
trust lands due to public perception of increased potential for 
regulatory restrictions due to critical habitat;
     Continued implementation of conservation measures provided 
in the 2021 conservation agreement for slickspot peppergrass, including 
but not limited to minimizing the impact of ground disturbance by 
livestock, minimizing the establishment of nonnative plant species, and 
reducing the intensity, frequency, and size of natural and human-caused 
fires;
     The opportunity to build upon a positive conservation 
partnership with the State, by recognizing the efforts the State 
contributes to the conservation of slickspot peppergrass;
     Laying the foundation for future partnerships with the 
State that would benefit other listed or candidate species, such as the 
greater sage-grouse; and
     Increasing the potential for understanding and acceptance 
of proposed critical habitat designations for other species in the 
State of Idaho.
    Based on the above considerations, we conclude there are important 
benefits to be gained by excluding the 2,736 ha (6,761 ac) of State 
lands within

[[Page 28900]]

the designation of critical habitat for slickspot peppergrass.
    Benefits of Exclusion Outweigh the Benefits of Inclusion--Idaho 
State Lands: We reviewed and evaluated the benefits of inclusion and 
the benefits of exclusion of State lands identified in the proposed 
designation of critical habitat for slickspot peppergrass; the benefits 
of inclusion for the species are minimal. As noted in Exclusions Based 
on Economic Impacts, we do not anticipate additional regulatory 
protections from critical habitat designation through a Federal nexus 
on these State lands (IEc 2012, pp. 4-4, C-2). As the State is already 
aware of the presence of slickspot peppergrass on their lands, the 
educational value of critical habitat is minimal (IEc 2012, p. 4-4), 
particularly since the State participates in conservation measures for 
the protection of the species through the conservation agreement (USFWS 
et al. 2021, entire). We do not find evidence of any significant 
benefits to inclusion of State lands in the designation.
    We find that the benefits of exclusion, on the other hand, are 
significant. The benefits that would stem from the exclusion of State 
lands would be to alleviate any concerns that State trust lands could 
decline in value due to perceived regulatory restrictions, as well as 
to strengthen our conservation partnership with the State by 
recognizing their efforts toward conservation of slickspot peppergrass 
through implementation of the conservation measures provided in the 
conservation agreement. The exclusion of State trust lands could lay 
the groundwork for future partnerships for the benefit of other species 
in conservation need. Because of the importance of State trust lands to 
the State of Idaho, and the relevant impact of critical habitat to our 
relationship with the State and other current and future conservation 
partnerships, we have determined that the benefits of excluding these 
State lands outweigh the benefits of including them in the designation 
of critical habitat.
    Exclusion Will Not Result in Extinction of the Species--Idaho State 
Lands: We have determined that the exclusion of 2,736 ha (6,761 ac) of 
habitat from the final designation of critical habitat for slickspot 
peppergrass will not result in extinction of the species. Although 
these lands were identified as critical habitat because they contain 
PBFs essential to the conservation of the species, State lands 
comprised approximately 7 percent of the proposed designation and the 
remaining land in the final designation is sufficient for the 
conservation of the species. Furthermore, critical habitat is one tool 
in the suite of tools that together provide for conservation of listed 
species under the Act. Most of the current and ongoing interagency 
conservation efforts for the species are focused on management of 
Federal lands, which contain the vast majority of occupied slickspot 
peppergrass habitat. The consultation requirements of section 7(a)(2) 
and the attendant requirement to avoid jeopardy to slickspot 
peppergrass for projects with a Federal nexus will provide significant 
protection to the species, particularly since approximately 86 percent 
of its occupied habitat is on Federal lands managed by the BLM. In 
addition, the State of Idaho is a signatory to the 2021 conservation 
agreement, which provides protective measures to the species on their 
lands regardless of critical habitat. Therefore, based on the above 
discussion, the Secretary is exercising her discretion to exclude 
approximately 2,736 ha (6,761 ac) of habitat from this final critical 
habitat designation.
    Private Lands: In our July 23, 2020, revised proposed critical 
habitat rule (FR 85 44584), we identified 1,122 ha (2,773 ac) of 
private land, including municipal land (county and city), that met the 
definition of critical habitat. In this final rule, we considered 
comments received on the proposed rule and used the best scientific 
information available to identify critical habitat, which resulted in 
identification of 4,508 ha (11,141 ac) of privately owned land that 
meets the definition of critical habitat. The majority of the land that 
met the definition of critical habitat (approximately 86 percent) was 
under Federal ownership. In our July 23, 2020, revised proposed 
critical habitat rule (85 FR 44584), we considered applying section 
4(b)(2) of the Act to exclude currently occupied private and municipal 
lands (hereafter private lands). We also requested specific information 
concerning any current signed conservation or management plans on 
private lands that we should consider to inform an exclusion analysis 
under section 4(b)(2).
    During the public comment period for our July 23, 2020, revised 
proposed critical habitat rule (85 FR 44584), the State of Idaho 
commented that a critical habitat designation provides no new 
conservation measures across any land ownership. In addition, they 
stated that designating private land as critical habitat can cause land 
values to decrease and possibly expose slickspot peppergrass to threats 
that cannot be addressed by a section 7 consultation. For these 
reasons, the State of Idaho expressed the view that the benefits of 
exclusion outweigh the benefits of including private land in the final 
critical habitat designation for slickspot peppergrass (OSC 2020, p. 
2).
    Since publication of our July 23, 2020, revised proposed rule (85 
FR 44584) to designate critical habitat for slickspot peppergrass, we 
entered into a Memorandum of Understanding (MOU) with the State of 
Idaho's OSC to provide non-Federal landowners (private and municipal) 
an opportunity to enter into voluntary conservation agreements for 
slickspot peppergrass (USFWS and OSC 2021, entire). These conservation 
agreements can serve to memorialize existing conservation efforts and 
outline commitments to maintain suitable habitat for the species on 
specified lands into the future.
    Benefits of Inclusion--Private Lands: The primary benefit that 
slickspot peppergrass would receive from inclusion of private lands in 
the critical habitat designation is the statutory mandate that Federal 
actions (or actions with a Federal nexus) avoid the destruction or 
adverse modification of critical habitat. However, in the case of 
slickspot peppergrass, we found it unlikely that activities outside of 
Federal lands (e.g., development on State, local, or private lands) 
will have a Federal nexus to trigger section 7 consultation (IEc 2012, 
p. 4-4). Given that there has been only one section 7 consultation on 
private lands associated with Federal permitting and we have no 
information to indicate a projected increase in federally funded 
activities on these lands, we anticipate that there is a low likelihood 
of section 7 consultations concerning slickspot peppergrass on private 
lands in the future. Should additional section 7 consultations occur 
after this final critical habitat designation, we expect that critical 
habitat would not likely affect the outcome of future consultations as 
we do not foresee any differences in recommended conservation measures 
for units designated as critical habitat and those occupied by the 
species (IEc 2012, pp. 4-4 and 4-5). Therefore, we find there is little 
regulatory benefit to the species on private lands from inclusion due 
to protection from adverse modification or destruction of critical 
habitat as a result of actions with a Federal nexus.
    Any educational benefit of mapping the habitat essential for the 
recovery of slickspot peppergrass on private lands is likely minimal 
and may in fact serve as a conservation disincentive. The economic 
analysis on the proposed designation reports, ``As the location of 
occupied habitat for the species on private lands is well-known, having

[[Page 28901]]

been mapped by the Idaho Natural Heritage Program, it is unlikely that 
critical habitat will provide new information to local land managers 
and developers regarding the presence of the species'' (IEc 2012, p. 4-
14). Therefore, we expect very little educational benefit to result 
from the designation of critical habitat on private lands.
    Based on the above, we conclude there is little, if any, 
conservation benefit to including the 4,508 ha (11,141 ac) of privately 
owned lands within the designation of critical habitat for slickspot 
peppergrass.
    Benefits of Exclusion--Private Lands: Slickspot peppergrass was the 
subject of a CCA between the State of Idaho, BLM, the Idaho Army 
National Guard, and private landowners (State of Idaho et al. 2006, 
entire). The CCA was developed prior to the listing of the species to 
provide the opportunity for adaptive management for slickspot 
peppergrass on Federal, State, and private lands, with the goal of 
maintaining and enhancing slickspot peppergrass habitat; reducing the 
intensity, frequency, and size of fires; reducing the potential for 
invasion from nonnative plant species; minimizing the impact of ground 
disturbance caused by livestock trampling events when soils are 
saturated; and other provisions.
    This CCA garnered interest from private landowners. Twenty 
individual nongovernmental cooperators/permittees were signatories to 
this CCA, along with representatives from the BLM, State of Idaho, and 
Idaho National Guard (State of Idaho et al. 2006, pp. 138-141). Six 
individual private landowners signed on through Memorandum of 
Agreements (MOAs) under the CCA covering 6,898 ha (17,045 ac). These 
MOAs detailed specific conservation measures to implement on enrolled 
private lands (State of Idaho et al. 2006, p. 162), which included 
monitoring, livestock and pasture management, and invasive weed control 
(State of Idaho et al. 2006, pp. 282-285). The CCA and its conservation 
measures, since expired, were developed in an effort to preclude the 
need to list slickspot peppergrass.
    As stated above, the Service and State of Idaho recently entered 
into a new MOU in 2021 whose purpose is to provide non-Federal 
landowners (private and municipal) the opportunity to enter into 
voluntary conservation agreements for slickspot peppergrass that can 
serve to memorialize existing conservation efforts and outline 
commitments to maintain suitable habitat for slickspot peppergrass on 
specified lands into the future. This MOU contains roles and 
responsibilities for the Service and the State of Idaho, including 
outreach, providing technical assistance to landowners, maintaining 
membership on the slickspot peppergrass Technical Team, and exploring 
funding sources to obtain financial assistance to implement 
conservation actions on private and municipal lands. The MOU also 
contains responsibilities for monitoring to document and report 
success, along with adaptive management that ensures current science is 
incorporated into management. In addition, there is a non-exhaustive 
list of proven and effective Best Management Practices for conserving 
slickspot peppergrass and its habitat that can be included in 
individual conservation agreements with private and municipal 
landowners (USFWS and OSC 2021, entire; USFWS 2020, p. 101). Therefore, 
we find that a conservation benefit would accrue to slickspot 
peppergrass over time by encouraging voluntary participation in the 
measures provided in the MOU and landowner-specific conservation 
agreements.
    In addition, we considered the value of our conservation 
partnership with private landowners within the range of the slickspot 
peppergrass in our weighing of the benefits of inclusion versus 
exclusion. Private landowners have demonstrated success by partnering 
with public and private entities to further conservation in Idaho for a 
variety of wildlife and fish species (Uriarte 2021, pers. comm.).
    In addition, we considered the value of our conservation 
partnership with the State of Idaho in our weighing of benefits of 
inclusion versus exclusion of private lands. The State of Idaho has 
been instrumental in working with private landowners on various 
conservation efforts throughout Idaho. These partnering efforts 
include, but are not limited to, helping to develop the 2006 CCA for 
slickspot peppergrass; leading the Sage-grouse Actions Team to 
strategically put State legislative funding and partner funding on the 
ground for the conservation of the greater sage-grouse; and working 
closely with IDL and nine RFPAs to provide State legislative funding to 
ensure these organizations have the necessary equipment and 
coordination for initial attack and wildfire suppression efforts 
(Uriarte 2021, pers. comm.).
    The final economic analysis of the designation states, ``In some 
cases, the public may perceive that critical habitat designation may 
result in limitations on private property uses above and beyond those 
associated with anticipated conservation efforts and regulatory 
uncertainty described above. Public attitudes about the limits or 
restrictions that critical habitat may impose can cause real economic 
effects to property owners, regardless of whether such limits are 
actually imposed'' (IEc 2012, p. 2-10). Although the economic analysis 
concluded that any real economic impacts to private landowners are 
unlikely given the low probability of a Federal nexus occurring on 
their lands, it is clear from comments we received that critical 
habitat is nonetheless perceived as an example of Federal Government 
intrusion into private property rights in the State of Idaho. As 
described above, we find that successful conservation partnerships with 
private landowners are integral to the achievement of recovery for the 
slickspot peppergrass and designation of critical habitat could be 
detrimental to those efforts. Therefore, we conclude that the exclusion 
of private lands from slickspot peppergrass critical habitat will 
achieve greater benefits than designating critical habitat by 
encouraging continued conservation of the species as well as future 
conservation efforts due to the perceived avoidance of a regulatory 
burden.
    Based on the above, we have determined that the exclusion of 
private lands from the final designation would have several potentially 
significant benefits:
     Demonstrating the Service's good-faith effort to recognize 
the value of voluntary conservation partnerships by excluding private 
lands from critical habitat, and encouraging future partnerships that 
would benefit other listed or candidate species, such as the greater 
sage grouse;
     The conservation benefit that would accrue to slickspot 
peppergrass over time by encouraging voluntary participation in the 
measures provided in the MOU;
     The opportunity to maintain and build positive 
conservation partnerships with private landowners, by recognizing the 
efforts these parties may contribute to the conservation of slickspot 
peppergrass; and
     Improving the perception of the Service as not imposing 
unnecessary regulatory burdens on private landowners, potentially 
increasing the understanding and acceptance of proposed critical 
habitat designations for other species in the State of Idaho.
    We conclude that there are important conservation benefits that may 
be gained by excluding the 4,508 ha (11,141 ac) of privately owned 
lands within the designation of critical habitat for slickspot 
peppergrass, stemming

[[Page 28902]]

primarily from the encouragement of future conservation partnerships.
    Benefits of Exclusion Outweigh the Benefits of Inclusion--Private 
Lands: We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of privately owned lands identified in the 
proposed designation of critical habitat for slickspot peppergrass. As 
articulated above, the benefits of inclusion for the species are 
minimal at best. We expect that critical habitat would not likely 
affect the outcome of future consultations as we do not foresee any 
differences in recommended conservation measures for units designated 
as critical habitat and those occupied by the species. Therefore, we do 
not anticipate any regulatory protections stemming from a Federal nexus 
on private lands through designation of critical habitat. As most 
landowners likely are already aware of the presence of slickspot 
peppergrass on their lands, the educational value of critical habitat 
is minimal. In addition, as many private landowners view the presence 
of a listed species on their property as a liability, information to 
this effect may even be a conservation disincentive. Therefore, we 
consider any possible benefits of inclusion to be minimal.
    The benefits of exclusion, on the other hand, are significant. 
Exclusion of these private lands would help build landowner trust, 
encourage increased cooperation with private landowners, encourage 
implementation of any ongoing and new voluntary measures identified in 
the MOU for the conservation of slickspot peppergrass, and potentially 
enable us to pursue future conservation partnerships on privately owned 
lands--not only for slickspot peppergrass, but for other candidate or 
listed species in the State of Idaho as well.
    Some of the comments received during the public comment period 
indicated strong support for the exclusion of these lands from the 
final critical habitat designation. We are committed to fostering 
working relationships with communities, including these private 
landowners, to foster the conservation of slickspot peppergrass and 
other threatened and endangered species. Therefore, in consideration of 
the relevant impact to our relationship with these private landowners 
and other current and future conservation partnerships, and for other 
reasons mentioned above, we determined that the benefits of excluding 
these lands outweigh the benefit of including them in the designation 
of critical habitat for the slickspot peppergrass.
    Exclusion Will Not Result in Extinction of the Species--Private 
Lands: We determined that the exclusion of 4,508 ha (11,141 ac) of 
habitat from the final designation of critical habitat for slickspot 
peppergrass will not result in the extinction of the species. Although 
these lands were identified as critical habitat because they contain 
PBFs essential to the conservation of the species, private lands 
comprise less than 12 percent of the areas that meet the definition of 
critical habitat. Most of the current and ongoing interagency 
conservation efforts for the species are focused on management of 
Federal lands, where approximately 86 percent of the habitat occupied 
by slickspot peppergrass occurs. The consultation requirements of 
section 7(a)(2) and the attendant requirement to avoid jeopardy to 
slickspot peppergrass for projects with a Federal nexus will provide 
significant protection to the species even after excluding these areas. 
In addition, conservation of slickspot peppergrass through 
implementation of the MOU with the State of Idaho and private 
landowners will provide more effective conservation for the species 
than a critical habitat designation. Therefore, based on the discussion 
above, the Secretary is exercising her discretion to exclude 
approximately 4,508 ha (11,141 ac) of habitat from this final critical 
habitat designation.

Summary of Exclusions

    As discussed above, based on the information provided by entities 
seeking exclusion, as well as any additional public comments received, 
we evaluated whether certain lands in the proposed critical habitat 
were appropriate for exclusion from this final designation pursuant to 
section 4(b)(2) of the Act. We have determined that certain areas 
totaling 7,265 hectares, or 17,956 acres, within the critical habitat 
units were appropriate for exclusion from this final designation. Table 
2 shows the areas we are excluding from critical habitat designation 
for slickspot peppergrass.

               Table 2--Areas Excluded From Critical Habitat Designation for Slickspot Peppergrass
----------------------------------------------------------------------------------------------------------------
                                            Critical         Ownership in hectares (acres)
         Critical habitat unit               habitat    --------------------------------------       Totals
                                             subunit       State of Idaho        Private
----------------------------------------------------------------------------------------------------------------
1-Payette and Gem Counties.............  ..............                  0           76 (188)           76 (188)
2-Gem and Ada Counties.................              2a           41 (102)      1,573 (3,886)      1,614 (3,988)
                                                     2b          171 (423)           64 (159)          235 (582)
                                                     2c          149 (367)        793 (1,959)        942 (2,326)
                                                     2d      1,182 (2,921)          112 (277)      1,294 (3,198)
3-Ada and Elmore Counties..............              3a                  0      1,059 (2,618)      1,059 (2,618)
                                                     3b          134 (330)          185 (458)          319 (788)
                                                     3c                  0        643 (1,589)        643 (1,589)
4-Owyhee County........................  ..............      1,059 (2,618)              3 (7)      1,062 (2,625)
                                        ------------------------------------------------------------------------
    Total..............................  ..............      2,736 (6,761)     4,508 (11,141)     7,244 (17,902)
----------------------------------------------------------------------------------------------------------------
Notes: Area sizes may not sum due to rounding. All excluded areas meet the definition of critical habitat.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order (E.O.) 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

[[Page 28903]]

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.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself; in other words, the RFA does not require agencies 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 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 
will be directly regulated by this rulemaking, we certify that this 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period on the 
July 23, 2020, proposed rule (85 FR 44584) that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects when undertaking 
certain actions. In our economic analysis, we did not find that the 
designation of this critical habitat would 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

[[Page 28904]]

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 will 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 slickspot peppergrass in a takings implications assessment. 
The Act does not authorize us 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 slickspot 
peppergrass 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 rule does not have 
significant federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies in Idaho. 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, this 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 critical habitat 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 PBFs 
of the habitat necessary for 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 State 
and local governments in long-range planning because they 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) of the Act will be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the final 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 are designating critical 
habitat in accordance with the provisions of the Act. To assist the 
public in understanding the habitat needs of the species, this rule 
identifies the elements of PBFs 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 information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

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

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and

[[Page 28905]]

to make information available to Tribes. We have determined that no 
Tribal lands fall within the boundaries of the final critical habitat 
for slickspot peppergrass, so no Tribal lands would be affected by the 
critical habitat designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov in Docket No. FWS-R1-ES-
2010-0071 and upon request from the Idaho Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Idaho Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby 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; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. Amend Sec.  17.12, in paragraph (h) in the List of Endangered and 
Threatened Plants, by revising the entry for ``Lepidium papilliferum'' 
to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name        Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Lepidium papilliferum...........  Slickspot           Wherever found....  T              74 FR 52014, 10/8/2009;
                                   peppergrass.                                           81 FR 55058, 8/17/
                                                                                          2016; 50 CFR
                                                                                          17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96(h), by adding an entry for ``Family Brassicaceae: 
Lepidium papilliferum (slickspot peppergrass)'' after the entry for 
``Family Brassicaceae: Leavenworthia texana (Texas golden gladecress)'' 
to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Brassicaceae: Lepidium papilliferum (Slickspot Peppergrass)

    (1) Critical habitat units are depicted for Ada, Elmore, Gem, 
Owyhee, and Payette, Counties, Idaho, on the maps in this entry.
    (2) Within these areas, the specific physical or biological 
features (PBFs) essential to the conservation of slickspot peppergrass 
consist of four components:
    (i) Ecologically functional microsites or ``slick spots'' that are 
characterized by:
    (A) A high sodium and clay content, and a three-layer soil profile, 
which allows for successful seed germination, seedling growth, and 
maintenance of the seed bank. The surface horizon consists of a thin, 
silty vesicular, pored (small cavity) layer that forms a physical crust 
(the silt layer). The subsoil horizon is a restrictive clay layer, with 
an abruptic (referring to an abrupt change in texture) boundary with 
the surface layer, that is natric or natric-like in properties (a type 
of argillic (clay-based) horizon with distinct structural and chemical 
features); this is the restrictive layer. The second argillic subsoil 
layer (that is less distinct than the upper argillic horizon) retains 
moisture through part of the year (the moist clay layer).
    (B) Sparse vegetation, with invasive, nonnative plant species cover 
absent or limited to low to moderate levels.
    (ii) Relatively intact, native Wyoming big sagebrush (Artemisia 
tridentata ssp. wyomingensis) vegetation assemblages, represented by 
native bunchgrasses, shrubs, and forbs, within 500 m (1,640 ft) of 
slickspot peppergrass element occurrences to protect slick spots and 
slickspot peppergrass from disturbance from wildfire, slow the invasion 
of slick spots by nonnative plant species and native harvester ants, 
and provide the habitats needed by slickspot peppergrass' pollinators.
    (iii) A diversity of native plants whose blooming times overlap to 
provide pollinator species with flowers for foraging throughout the 
seasons and to provide nesting and egg-laying sites; appropriate 
nesting materials; and sheltered, undisturbed places for hibernation 
and overwintering of pollinator species. In order for genetic exchange 
of slickspot peppergrass to occur, pollinators must be able to move 
freely between slick spots. Alternative pollen and nectar sources 
(other plant species within the surrounding sagebrush vegetation) are 
needed to support pollinators during times when slickspot peppergrass 
is not flowering, when distances between slick spots are long, and in 
years when slickspot peppergrass is not a prolific flowerer.
    (iv) Sufficient pollinators for successful fruit and seed 
production, particularly pollinator species of the sphecid and vespid 
wasp families, species of the bombyliid and tachnid fly families, and 
halictid bee species, most of which are solitary insects that nest 
outside of slick spots in the surrounding sagebrush-steppe vegetation, 
both in the ground and within the vegetation.
    (3) Critical habitat does not include human-made structures (such 
as buildings, aqueducts, runways, roads, and other paved areas), 
cultivated agricultural fields, areas dominated by turf grass such as 
parks, and the land on which they are located existing within the legal 
boundaries on June 5, 2023.
    (4) Data layers defining map units were developed using ESRI ArcGIS 
10.7.1 mapping software along with various spatial layers. Feature 
class data for element occurrences (EOs) were derived from the Idaho 
Department of Fish and Game's Idaho Fish and Wildlife Information 
System (IFWIS) database (July 2021). EOs were depicted as points or 
polygons in the IFWIS database, and an E.O. could consist of one or 
more points or polygons. For ArcGIS analyses, we dissolved a 500-m 
(1,640-ft) exterior insect pollinator buffer on each point or polygon 
that comprised an E.O. and calculated acreages based on these 
dissolved, buffered polygons. Overlapping polygons were merged to 
prevent a double count of critical habitat hectares. Critical habitat 
polygon outlines are exaggerated (using 1- or 2-point size,

[[Page 28906]]

depending on map scale) to allow for better visibility. The critical 
habitat polygons were then overlaid upon aerial imagery, including the 
ArcGIS World Imagery layer, aerial imagery from Google Earth Pro, and 
the 2019 National Agricultural Imagery Program Idaho layer, which has a 
spatial resolution of a 60-centimeter ground sample distance.
    (i) Lands that visually lacked the necessary PBFs were manually 
removed from the critical habitat polygons; any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule are excluded by this text and are not designated as 
critical habitat. Areas that lack PBFs include land covered in human-
made structures (such as buildings, roads, runways, and other paved 
areas), cultivated farmland, and riparian areas.
    (ii) 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 the Service's internet site at 
https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum, at https://www.regulations.gov at Docket No. FWS-R1-ES-
2010-0071, and at the Idaho Fish and Wildlife Office. 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) Index map follows:

BILLING CODE 4333-15-P

[[Page 28907]]

Figure 1 to Lepidium papilliferum (slickspot peppergrass) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR04MY23.103

    (6) Unit 1: Payette and Gem Counties, Idaho.
    (i) General Description: Unit 1 contains 704 ha (1,741 ac) of 
critical habitat in Payette and Gem Counties, Idaho, consisting of 
Bureau of Land Management (BLM) land in the Four Rivers Field Office 
area (695 ha (1,718 ac)) and Bureau of Reclamation (BOR) land (9 ha (23 
ac)).
    (ii) Map of Unit 1 follows:

Figure 2 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(6)(ii)

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    (7) Unit 2: Gem and Ada Counties, Idaho.
    (i) Subunit 2a General Description: Subunit 2a contains 874 ha 
(2,160 ac) of critical habitat on BLM land in Gem and Ada Counties, 
Idaho.
    (ii) Map of Unit 2, Subunit 2a follows:

Figure 3 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(7)(ii)

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    (iii) Subunit 2b General Description: Subunit 2b contains 5,423 ha 
(13,401 ac) of critical habitat in Ada County, Idaho, within the BLM's 
Morley Nelson Snake River Birds of Prey National Conservation Area 
south of Kuna, Idaho.
    (iv) Map of Unit 2, Subunit 2b follows:

Figure 4 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(7)(iv)

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    (v) Subunit 2c General Description: Subunit 2c contains 657 ha 
(1,623 ac) of critical habitat in Ada County, Idaho, on BLM land within 
the Four Rivers Field Office area.
    (vi) Map of Unit 2, Subunit 2c follows:

Figure 5 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(7)(vi)

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    (vii) Subunit 2d General Description: Subunit 2d contains 1,707 ha 
(4,218 ac) of critical habitat in Ada County, Idaho, consisting of BLM 
land (1,689 ha (4,173 ac)) and BOR land (18 ha (45 ac)). Critical 
habitat within Subunit 2d is adjacent to the Idaho Army National Guard-
administered Orchard Combat Training Center (formerly known as the 
Orchard Training Area).
    (viii) Map of Unit 2, Subunit 2d follows:

Figure 6 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(7)(viii)

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    (8) Unit 3: Ada and Elmore Counties, Idaho.
    (i) Subunit 3a General Description: Subunit 3a contains 1,554 ha 
(3,839 ac) of critical habitat in Ada and Elmore Counties, Idaho, 
consisting of BLM, Four Rivers Field Office area land (1,502 ha (3,711 
ac)) and BOR land (52 ha (128 ac)).
    (ii) Map of Unit 3, Subunit 3a follows:

Figure 7 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(8)(ii)

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    (iii) Subunit 3b General Description: Subunit 3b contains 1,957 ha 
(4,835 ac) of critical habitat in Elmore County, Idaho, consisting of 
BLM land (1,890 ha (4,671 ac)) and BOR land (66 ha (164 ac)). BLM land 
includes the Four Rivers Field Office area and the Morley Nelson Birds 
of Prey National Conservation Area.
    (iv) Map of Unit 3, Subunit 3b follows:

Figure 8 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(8)(iv)

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    (v) Subunit 3c General Description: Subunit 3c contains 2,485 ha 
(6,142 ac) of critical habitat in Elmore County, Idaho consisting of 
consisting of BLM land (2,453 ha (6,062 ac)) and BOR land (32 ha (80 
ac)).
    (vi) Map of Unit 3, Subunit 3c follows:

Figure 9 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(8)(vi)

[[Page 28915]]

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    (9) Unit 4: Owyhee County, Idaho.
    (i) General description: Unit 4 contains 16,310 ha (40,303 ac) of 
critical habitat in Owyhee County, Idaho, within the BLM Jarbidge Field 
Office area.
    (ii) Map of Unit 4 follows:

Figure 10 to Lepidium papilliferum (slickspot peppergrass) paragraph 
(9)(ii)

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* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-09219 Filed 5-3-23; 8:45 am]
BILLING CODE 4333-15-C