[Federal Register: December 12, 2006 (Volume 71, Number 238)] [Rules and Regulations] [Page 74591-74615] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr12de06-12] [[Page 74591]] ----------------------------------------------------------------------- Part II Department of the Interior ----------------------------------------------------------------------- Fish and Wildlife Service ----------------------------------------------------------------------- 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus ruralis lagunae); Final Rule [[Page 74592]] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU50 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus ruralis lagunae) AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the Laguna Mountains skipper (Pyrgus ruralis lagunae) pursuant to the Endangered Species Act of 1973, as amended (Act). In total, approximately 6,242 acres (ac) (2,525 hectares (ha)) fall within the boundaries of the critical habitat designation. The critical habitat is located in San Diego County, California, on lands under Federal (3,516 ac (1,423 ha)), State (381 ac (154 ha)), and private (2,345 ac (948 ha)) ownership. DATES: This rule becomes effective on January 11, 2007. ADDRESSES: Comments and materials received, as well as supporting documentation used in the preparation of this final rule, will be available for public inspection, by appointment, during normal business hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone 760/431-9440). The final rule, economic analysis, and maps are available via the Internet at http://www.fws.gov/carlsbad/ . FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, telephone, 760/431-9440; facsimile, 760/431- 9624. SUPPLEMENTARY INFORMATION: Role of Critical Habitat in Actual Practice of Administering and Implementing the Act Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under ESA section 4(b)(2), there are significant limitations on the regulatory effect of designation under ESA section 7(a)(2). In brief, (1) designation provides additional protection to habitat only where there is a federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decisionmaking would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat. Currently, only 475 species or 36 percent of the 1,310 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,310 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. The Service believes that it is these measures that may make the difference between extinction and survival for many species. In considering exclusions of areas originally proposed for designation, we evaluated the benefits of designation in light of Gifford Pinchot Task Force v. United States Fish and Wildlife Service. In that case, the Ninth Circuit invalidated the Service's regulation defining ``destruction or adverse modification of critical habitat.'' In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This critical habitat designation does not use the invalidated regulation in our consideration of the benefits of including areas in this final designation. The Service will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance. On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. In addition, the mere administrative process of designation of critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a timeframe that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful. In light of these circumstances, the Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection. Procedural and Resource Difficulties in Designating Critical Habitat We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs. The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed. The accelerated schedules of court-ordered designations have left the Service with limited ability to provide for public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, and is very expensive, thus diverting resources from conservation actions that may provide relatively more benefit to imperiled species. The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the [[Page 74593]] economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA). These costs, which are not required for many other conservation actions, directly reduce the funds available for direct and tangible conservation actions. Background It is our intent in this document to reiterate and discuss only those topics directly relevant to the development and designation of critical habitat or relevant information obtained since the final listing. For more information on the biology and ecology of the Laguna Mountains skipper, refer to the final rule listing this species as endangered published in the Federal Register on January 16, 1997 (62 FR 2313), and the proposed critical habitat rule for the Laguna Mountains skipper published in the Federal Register on December 13, 2005 (70 FR 73699). Previous Federal Actions Previous Federal actions for the Laguna Mountains skipper can be found in the proposed critical habitat rule published in the Federal Register on December 13, 2005 (70 FR 73699). On January 10, 2003, the Center for Biological Diversity (Center) filed a lawsuit against the Service for violations under the Act and the Administrative Procedure Act (5 U.S.C. Subchapter II) for the Service's failure to designate critical habitat for the species (CBD v. USFWS Civ. No. 03-0058-BTM (NLS)). In a stipulated settlement agreement dated July 29, 2003, the Service agreed to reconsider its ``not prudent'' finding and propose critical habitat, if prudent, on or before November 30, 2005, and to publish a final critical habitat rule, if prudent, on or before November 30, 2006. This final rule complies with the settlement agreement. Summary of Comments and Recommendations We requested comments from the public on the proposed designation of critical habitat for the Laguna Mountains skipper during three comment periods. The first comment period opened on December 13, 2006, associated with the publication of the proposed rule (70 FR 73699) and closed on February 13, 2006. The second comment period opened on April 13, 2006, associated with the announcement of a public hearing held on April 22, 2006, in Carlsbad, CA (71 FR 19157), and closed on May 15, 2006. We also requested comments on the proposed rule and draft economic analysis (DEA) during a comment period that opened July 7, 2006 (71 FR 38593) and closed on August 7, 2006. We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule during these three comment periods. During the first comment period, we received 8 comment letters directly addressing the proposed critical habitat designation: 4 from peer reviewers, 1 from a Federal agency, and 3 from organizations or individuals. During the second comment period, we received 1 comment letter from a Federal agency and 1 transcribed statement from an organization during the public hearing directly addressing the proposed critical habitat designation. During the final comment period associated with the DEA, we received 1 comment letter from a Federal agency and 1 comment from an organization directly addressing the proposed critical habitat designation and the draft economic analysis. In total, seven commenters supported designation (2 comments were from the same commenter) of critical habitat for the Laguna Mountains skipper, two opposed designation (2 comments were from the same commenter), and one commenter expressed neither support nor opposition to the proposed critical habitat designation. Comments received are addressed in the following summary and incorporated into the final rule as appropriate. Peer Review In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from six knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from four of the peer reviewers. Peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the Laguna Mountains skipper, and addressed them in the following summary. Peer Reviewer Comments (1) Comment: One peer reviewer stated that the PCEs appear appropriate; however use of the alternate hostplant Potentilla glandulosa may not be necessary or essential because its use may be limited to special circumstances. Our Response: We agree P. glandulosa use appears to be limited to special circumstances, but we believe the scientific information available (Pratt 2006, p. 4) indicates it increases population survival probability in circumstances where this alternate hostplant co-occurs with the most commonly utilized hostplant, Horkelia clevelandii. Under special circumstances (e.g. dry environmental conditions), the Laguna Mountains skipper is likely to use this alternate hostplant that grows more commonly in shaded areas, and have a higher survival rate as compared to use of H. clevelandii under the same special circumstances. (2) Comment: One peer reviewer commented that we should use presence of the hostplant, Potentilla glandulosa, as a criterion to identify critical habitat in addition to Horkelia clevelandii. Our Response: As stated in our response to Comment 1, we believe P. glandulosa may only be a necessary or essential hostplant for population survival in circumstances where it co-occurs with H. clevelandii. Also, while the use by the Laguna Mountains skipper of P. glandulosa as a hostplant has been documented (Pratt 1999, p. 10; Osborne 2005), we have no occurrence data for P. glandulosa. Therefore, we are unable to map areas occupied by this hostplant species as critical habitat. (3) Comment: Two peer reviewers suggested subunits should be connected because areas between subunits are essential for Laguna Mountains skipper movement. Both reviewers stated Laguna Mountains skippers disperse farther than 20 meters, and cautioned reliance on mark-release-recapture studies because they tend to underestimate dispersal ability. One reviewer stated he has observed a male Laguna Mountains skipper flying over trees; another stated he has seen Laguna Mountains skippers fly over 50 meters in seconds, and into forested areas without returning. Our Response: We appreciate the information and agree that connectivity between subunits should be maintained to provide for species' movement. However, we based the delineation of critical habitat on the presence of the species or the presence of the primary constituent elements (PCEs) (e.g. hostplants within forest openings). Most areas between subunits are not known [[Page 74594]] to contain either the species or the PCEs. Movement areas cannot be identified as a PCE because, as reviewer comments indicated, areas that allow butterfly flight are relatively all-inclusive and thus cannot be specifically described in a relevant way that differentiates essential habitat from non-essential habitat. Also, as a result of movement areas being relatively all-inclusive, we do not know what specific geographic areas between subunits are essential for movement. Although a greater ability to disperse than commonly hypothesized would mean more frequent movement among habitat patches than indicated in the proposed critical habitat rule, it would not change how we identified critical habitat. See the Criteria Used To Identify Critical Habitat section below for more information. (4) Comment: One peer reviewer noted compatibility of grazing with Laguna Mountains skipper occupancy depends not only on cattle density, but also environmental conditions. He stated that while cattle do not normally eat hostplants during larval butterfly development, he has observed heavy grazing on hostplants during drought years on Laguna Mountain. Our Response: We appreciate this information and have incorporated it into the Special Management Considerations or Protection section of this final rule. We will also consider this information in future management recommendations. (5) Comment: One peer-reviewer stated that the Laguna Mountains skipper may be extirpated on Laguna Mountain, and captive breeding is the only way to ensure long-term survival of the species. Our Response: We acknowledge individuals have not been detected in this unit since 1999 (Pratt 1999, p. 7), and any remaining populations are not likely to be resilient enough to survive into the foreseeable future under current conditions. However, because insufficient evidence exists to conclude Laguna Mountain no longer supports an extant population in Unit 1, a presumption of extirpation would be premature. Even more detectable and highly surveyed butterfly populations that appeared to have been extirpated have been rediscovered, at least temporarily (e.g. Basu 1997, p.1, Essig Museum 2006). Surveys of varying intensity and duration were conducted in 8 of the 10 years between 1994 and 2003. During this 10-year period, only four adult skippers were found: A single individual in 1995 (Levy 1997, pp. i- xxvi); one adult in 1996 (Levy 1997, pp. i-xxvi); and at least two adults in 1999 (Pratt 1999, p. 7). All observations of adult skippers have been at the El Prado/Laguna Campground. A single skipper larval shelter was found in 1997 at the Meadow Kiosk, along Sunrise Highway (Pratt 1999, p. 27). Despite recent intensive survey efforts at historical locations and select areas considered to be suitable skipper habitat (Faulkner 2000, p. 2; 2001, p. 2; 2002, p. 1; 2003, p. 2; 2004, p. 2; Osborne 2002, p. 2; 2003, p. 2), such as Agua Dulce campground, adult skippers have not been seen on Laguna Mountain since 1999. However, not all suitable habitat has been intensively surveyed and low density populations are difficult to detect. We agree captive breeding may be necessary to ensure long-term survival of the species on Laguna Mountain. (6) Comment: One peer reviewer commented that the proposed critical habitat rule alluded to the Laguna Mountains skipper fitting a metapopulation distribution, while such distribution has not been established through research. He also stated the critical habitat designation was based on the species representing a metapopulation behavior. Our Response: We do not know what type of population dynamics the species exhibits and did not intend to imply that we did understand such dynamics. Under the Species Status and Distribution section of the proposed rule, our statement, ``If the Laguna Mountains skipper populations are characterized by metapopulation dynamics, habitat patches within the population distribution not occupied at any given time are still required for population viability,'' was intended to convey that not all suitable habitat is occupied at the same time and habitat that does not appear to be occupied at a given time is still important for population viability. We delineated critical habitat on Palomar and Laguna Mountains based on the following criteria (and not on metapopulation behavior): (1) Meadow complexes occupied by the Laguna Mountains skipper at the time of listing; (2) meadow complexes known to be currently occupied; and (3) meadow complexes historically, but not known to be currently, occupied but considered essential to the conservation of the species. For more information see the Criteria Used To Identify Critical Habitat section below. (7) Comment: One peer reviewer stated that he agreed meadows are essential for survival of the species, and dependable water sources must be available. He expressed concern that loss of water in Laguna Mountain's ``upper Boiling Springs survey site'' has greatly reduced the abundance and diversity of skipper species in the past 3 to 4 years. He expressed the opinion that water loss has resulted in extirpation of the ``Hilda blue butterfly'' from Palomar Mountain and stated that ground water monitoring is crucial for maintaining populations of the Laguna Mountains skipper. Our Response: We appreciate this information and concurrence with our PCEs and criteria used to identify critical habitat. We agree that water availability is important for the species' conservation which is why it was included as a primary constituent element in the proposed and this final critical habitat rule. (8) Comment: One peer reviewer disagreed with our statement ``few, incomplete or no recent surveys have been conducted at sites not known to be occupied [Subunits 1B & 1C].'' He stated that most sites on Laguna Mountain have been surveyed during the past 3 to 4 years, with negative results. He further stated that this does not mean the Laguna Mountains skipper is absent from those areas, but ``rather has not been encountered during first generation protocol surveys.'' Our Response: We appreciate the correction. To clarify, the majority of high-quality habitat sites on Laguna Mountain have been regularly surveyed for the past 3 to 4 years; however, some areas remain unsurveyed or only sporadically surveyed. We also agree this does not mean the Laguna Mountains skipper is absent from those areas which are adjacent to occupied habitat or were historically occupied. (9) Comment: One peer reviewer questioned why subunits 1B and 1C were proposed for designation, because no Laguna Mountains skippers have been recorded from these units. She questioned why these specific areas were selected rather than other sites on Laguna Mountain where the hostplant grows. Our Response: As stated in our response to Comment 5 we acknowledge populations on Laguna Mountain appear to be small; however, insufficient evidence exists to conclude Laguna Mountain no longer supports an extant population. Subunits 1B and 1C were included in the designation because: (1) These areas were considered to be historically occupied by the species; (2) they are the nearest to the occupied unit 1C where our data indicates they contain high densities of hostplant; and (3) they are likely to be important future species reintroduction sites on Laguna Mountain. [[Page 74595]] (10) Comment: One peer reviewer stated it was not known if all areas proposed as critical habitat were essential to conservation of the species. However, she also stated it seemed appropriate to designate patches of meadow habitat with hostplants between, and adjacent to, recent sightings of the Laguna Mountains skipper. Our Response: As described in the Criteria Used to Identify Critical Habitat section of the proposed rule and this final rule, we delineated critical habitat to include patches of meadow habitat with hostplants between and adjacent to recent sightings of Laguna Mountains skippers. We cannot determine what geographic scale the peer reviewer was referring to. (11) Comment: One peer reviewer stated she agreed that no areas outside of our proposed designation should have been proposed for designation. However, she also stated that of the areas not proposed for critical habitat designation, the area most likely to be essential is Dyche Valley on Palomar Mountain, south of Mendenhall Valley. Our Response: We appreciate this information and concurrence with our proposed designation. We included a discussion in the proposed rule of unoccupied areas that may contain suitable habitat for the species as part of a discussion of the species' current status and distribution (see Status and Distribution section of the proposed rule). We did not include Dyche Valley because we had no hostplant or species occurrence information for this area, and therefore could not conclude it was essential to the species' conservation. (12) Comment: Two peer reviewers stated Laguna Mountains skippers use more diverse nectar sources than indicated in the proposed critical habitat rule. One peer reviewer suggested the list of nectar sources should include Taraxacum vulgare (common dandelion) and the hostplant Horkelia clevelandii. Our Response: We appreciate this information, and will consider it in future management recommendations. We believe the PCEs are sufficiently broad with regard to use of diverse nectar sources, and already include the hostplant H. clevelandii, therefore we did not revise our PCEs. (13) Comment: One peer reviewer expressed concern that population size estimates and comparisons given in the proposed critical habitat rule were not reliable. He expressed particular concern that due to disease, parasitism, and predation, these kind of estimates extrapolated from immature life stages greatly overestimate population size. Our Response: We agree that there is a high amount of uncertainty inherent in the population estimates and the effect of factors such as disease, parasitism, and predation on the population may not be accurately reflected. However, even with these limitations, the population estimates outlined in the proposed rule are currently the best available information. We appreciate this information and will consider it in future management recommendations. Public Comments (14) Comment: Two commenters stated that U.S. Forest Service (Forest Service or USFS) actions to date, and land management plans addressing conservation of Laguna Mountains skipper habitat, should result in exclusion of Cleveland National Forest lands from critical habitat designation. Our Response: We acknowledge the Cleveland National Forest has implemented measures to minimize impacts to the Laguna Mountains skipper. We also acknowledge two existing Forest Service management plans contain general provisions for conservation of the Laguna Mountains skipper: the Land Management Plan for the Cleveland National Forest (LMP, Forest Service 2005, pp. 1-57) and a habitat management guide for four sensitive plant species in mountain meadows (Cleveland National Forest 1991, pp. 1-36). The habitat management guide, while providing more specific conservation measures than the land management plan, is still specific to ``discrete [montane] meadow communities'' and the four sensitive plant species. While these mapped community areas (Cleveland National Forest 1991, pp. 5-7) do include some areas identified as essential for Laguna Mountains skipper (e.g. southern Mendenhall Valley; see unit descriptions below), many smaller forest openings and adjacent open-canopy woodland areas are not included, such as Observatory Campground and Trail. Also, habitat management guides and plans do not mandate conservation measures, and therefore do not provide adequate protection of essential habitat. For example, the 1993 scheduled management action for Delphinium hesparium (Cleveland National Forest 1991 p.17), a grazing exclosure in the Garnet Kiosk area (southern Laguna Meadow area, also identified as essential to the Laguna Mountains skipper), has not yet been implemented. Existing Forest Service measures and management plans do not provide specific or sufficient enough conservation measures for Laguna Mountains skipper habitat, and the benefits of including these areas within critical habitat are not outweighed by any potential benefits of excluding the areas (see Exclusions Under Section 4(b)(2) of the Act section of this final rule for a detailed discussion). Therefore, we did not exclude Forest Service lands from the final designation under section 4(b)(2) of the Act. (15) Comment: One commenter stated that lands managed by the Cleveland National Forest should not be excluded from critical habitat designation based on their Land Management Plan because the plan provides few specific benefits to the species. Our Response: For reasons discussed in the response to Comment 14 above, we did not exclude Forest Service lands from the final designation under section 4(b)(2) of the Act. (16) Comment: Two commenters asserted that the Laguna Mountains skipper may be extirpated on Laguna Mountain; therefore designation of critical habitat at that location is not appropriate. Our Response: As discussed in our response to Comment 5 above, insufficient information exists to conclude Laguna Mountain no longer supports an extant population in Unit 1. Therefore, we cannot agree at this time with the commenter's assertion. Also, if the Laguna Mountains skipper has been extirpated from Laguna Mountain, reintroduction will likely to be necessary to promote the conservation of the subspecies, and unoccupied habitat would still be considered essential. Current occupancy is not required for the designation of critical habitat if the area is essential to the conservation of the species. (17) Comment: One commenter stated that if critical habitat is designated, a greater conservation value could be achieved by further limiting critical habitat designation to a ``more refined boundary'' within proposed critical habitat. Specific recommended refined boundaries, primarily following the U.S. Forest Service's habitat model for Laguna Mountains skipper, were delineated on maps provided with these comments. Our Response: We re-evaluated the methodology used to delineate the proposed critical habitat unit boundaries and have revised the final critical habitat unit boundaries based on information provided by this commenter. In total, these revisions have resulted in the removal of approximately 420 ac (169 ha) from final critical habitat (see Summary of Changes from the Proposed Rule section below for a detailed discussion). [[Page 74596]] (18) Comment: One commenter stated that designation of critical habitat will ``further hinder or destroy all economic activity'' and ``terminate or curtail recreational use'' on Forest Service land on Laguna Mountain. Our Response: Although designation of critical habitat may increase the number of Forest Service consultations on projects in essential habitat, and should increase conservation measures for the species at a few key locations, the designation should not significantly increase restrictions on economic activities or restrict recreational activities relative to current levels. As stated below (under Special Management Considerations or Protection), economic activities, such as relatively low density grazing, should not adversely modify habitat if carefully managed to minimize or avoid destruction of hostplants. The total estimated future costs (loss of economic gain due to critical habitat designation) in the Draft Economic Analysis over the next 20 years to grazing on Laguna Mountain range from $42,000 to $76,000 (Industrial Economics, Incorporated, p. ES-10). Total estimated future cost for recreational activities is $3,305,000 (Industrial Economics, Incorporated, p. ES-10). Total future costs to grazing and recreation on Laguna Mountain average from $167,350 to $169,050 per year, a relatively low estimate. The Draft Economic Analysis states, ``While changes in [livestock production and recreational camping] could affect the regional economy, the magnitude of the expected change is insignificant (i.e., less than one percent for grazing and less than 0.01 percent for camping) in light of the total size of the regional economy.'' (Industrial Economics, Incorporated, p. ES-13). Future cost value estimates will also be reduced by the reduction in area designated as critical habitat relative to what was proposed (see Summary of Changes from Proposed Rule below). (19) Comment: One commenter stated that subunits 1B and 1C on Laguna Mountain should not be designated as critical habitat because: (1) Subunit 1A provides substantial habitat already; (2) subunits 1B and 1C are not contiguous with Laguna Meadow as stated in the proposed critical habitat rule; and (3) designation based on potential reintroduction is not justified. Our Response: As stated in the proposed rule, Subunits 1B and 1C were proposed as critical habitat because they are connected to occupied habitat, were historically occupied, and contain physical and biological features essential to the conservation of the species. To clarify, while not physically connected, these subunits are ecologically connected to occupied habitat (Laguna Meadow) by relatively undisturbed forested habitat that allows for species movement between Laguna Meadow and Subunits 1B and 1C. We have clarified this in the Critical Habitat Designation section of this final rule. We also stated in the proposed rule that we believe that given the species' small population size and very limited range, reintroduction may be necessary for long-term persistence of the species. Since critical habitat identifies areas essential to species conservation, we believe inclusion of these unoccupied areas in final critical habitat is justified. (20) Comment: One commenter stated the designation of independent, non-connected subunits within each mountain contradicts the statement in the proposed rule that connectivity areas among meadows are required for species' survival. The commenter stated that Laguna Mountains skippers are ``highly mobile'' and known to fly through forested environments, and failure to designate critical habitat connecting subunits could reduce the likelihood of species survival. Our Response: See response to Comment 3 above. (21) Comment: One commenter stated because hostplant mapping and knowledge of habitat use by Laguna Mountains skippers is incomplete, all areas within hostplant elevation limits on Laguna Mountain should be designated as critical habitat. Our Response: We acknowledge that hostplant mapping and knowledge of habitat use by Laguna Mountains skippers is incomplete; however, we are required to use the best available information to designate habitat that contains the primary constituent elements required by the species and is essential to the conservation of the species. In the absence of more complete hostplant mapping information, we limited the designation to those areas that the available information indicates contain the PCEs and are essential to the conservation of the species. (22) Comment: One commenter wanted to make sure that critical habitat designation would not affect the fire safety of human and natural communities on Laguna Mountain. Our Response: The designation of critical habitat will not affect fire safety of human communities on Laguna Mountain. Public safety is always the first priority in the event of a fire. Also, the local Service field office has several biologists trained as resource advisors who work cooperatively with firefighters to ensure that impacts to natural communities are minimized to the maximum extent practicable during fire fighting activities. As stated below (under Special Management Considerations or Protection), fire management activities, such as tree and brush removal for fuel modification, should not adversely modify habitat if carefully managed to minimize or avoid destruction of hostplants. (23) Comment: One commenter objected to our assertion that critical habitat provides little benefit above that provided by other provisions of the Act. Our Response: As discussed in the sections ``Designation of Critical Habitat Provides Little Additional Protection to Species,'' ``Role of Critical Habitat in Actual Practice of Administering and Implementing the Act,'' and ``Procedural and Resource Difficulties in Designating Critical Habitat'' and other sections of this and other critical habitat designations, we believe that, in most cases, other conservation mechanisms provide greater incentives and conservation benefits than does the designation of critical habitat. These other mechanisms include the section 4 recovery planning process, section 6 funding to the States, section 7 consultations, the section 9 protective prohibitions of unauthorized take, the section 10 incidental take permit process, and cooperative programs with private and public landholders and tribal nations. Comments Related to the Draft Economic Analysis (DEA) (24) Comment: One comment stated that the DEA fails to evaluate benefits associated with protecting critical habitat for the Laguna Mountains skipper. The same commenter noted that cost savings associated with protecting the hydrological function of meadows and conducting fire abatement around proposed new utility structures throughout critical habitat should be included in the DEA. Our Response: Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Service's approach for estimating economic impacts includes both economic efficiency and distributional effects. The measurement of economic efficiency is based on the concept of opportunity costs, which reflect the value of goods and services foregone in order to comply with the effects of the designation (e.g., lost economic opportunity associated with restrictions [[Page 74597]] on land use). Where data are available, the economic analyses do attempt to measure the net economic impact. However, no data was found that would allow for the measurement of such an impact, nor was such information submitted during the public comment period. While the Secretary must consider economic and other relevant impacts as part of the final decision-making process under section 4(b)(2) of the Act, the Act explicitly states that it is the government's policy to conserve all threatened and endangered species and the ecosystems upon which they depend. Thus, we believe that explicit consideration of broader social values for the subspecies and its habitat, beyond the more traditionally defined economic impacts, is not necessary as Congress has already clarified the social importance. We note, as a practical matter, it is difficult to develop credible estimates of such values, as they are not readily observed through typical market transactions and can only be inferred through advanced, tailor-made studies that are time consuming and expensive to conduct. We currently lack both the budget and time needed to conduct such research before meeting our court-ordered final rule deadline. In summary, we believe that society places significant value on conserving any and all threatened and endangered species and the habitats upon which they depend and thus needs only to consider whether the economic impacts (both positive and negative) are significant enough to merit exclusion of any particular area without causing the species to go extinct. (25) Comment: One comment stated that the DEA overestimates costs associated with conserving the Laguna Mountains skipper, because it includes economic impacts attributable to listing under the ESA. The comment further stated that the costs associated with listing of a species are separate from critical habitat designation and therefore should not be included in the economic impacts analysis for critical habitat designation. Our Response: The economic analysis is intended to assist the Secretary in determining whether the benefits of excluding particular areas from the designation outweigh the biological benefits of including those areas in the designation. Also, this information allows us to comply with direction from the U.S. 10th Circuit Court of Appeals that ``co-extensive'' effects should be included in the economic analysis to inform decision-makers regarding which areas to designate as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service (248 F.3d 1277)). This analysis identifies those potential activities believed to be most likely to threaten the Laguna Mountains skipper and its habitat and, where possible, quantifies the economic impact to avoid, mitigate, or compensate for such threats within the boundaries of the critical habitat designation. Where critical habitat is being proposed after a species is listed, some future impacts may be unavoidable, regardless of the final designation and exclusions under section 4(b)(2) of the Act. However, due to the difficulty in making a credible distinction between listing and critical habitat effects within critical habitat boundaries, this analysis considers all future conservation-related impacts to be co-extensive with the designation. (26) Comment: One comment stated the costs for fuel management projects are underestimated because they do not include increased costs associated with additional planning and analysis as well as higher treatment costs that might be associated with avoiding certain areas within proposed critical habitat areas. Our Response: We revised the DEA to include the costs associated with additional planning, analysis, and treatment required to ensure that Laguna Mountains skipper habitat is avoided. Cleveland National Forest staff estimate these costs to be approximately $2,000 per fuels management project and three fuels management projects per year in proposed critical habitat areas, or approximately $6,000 per year. (27) Comment: One comment stated the administrative costs associated with section 7 consultations for the Cleveland National Forest are ``very much underestimated.'' Our Response: Based on information provided by the Cleveland National Forest, we revised the DEA's estimate of future administrative costs associated with section 7 consultations. As shown in Exhibit 8-8 of the DEA, administrative costs are forecasted to be $1.4 million (undiscounted dollars) over the next 20 years. In present value terms, costs are $1.1 million, assuming a three percent discount rate; and $828,000, assuming a seven percent discount rate. Summary of Changes From Proposed Rule Based on information received from Terrell (2006a, p. 3 and 4) during the public comment periods, we re-evaluated the proposed critical habitat boundaries. Terrell (2006a, p. 3 and 4) suggested we limit critical habitat designation to Cleveland National Forest's Laguna Mountains skipper modeled habitat (Winter 2000, pg. 1) within proposed critical habitat units. Methodology in Winter (2000, pg. 1) was described as follows: ``Elevation between 4000 and 6100 feet. Vegetation type is grassland that is within 100 meters of contact with oak woodland/ conifer forest vegetation type and conifer/woodland type that is within 100 meters of contact with grassland. As of 3/6 [2000], heb (herbaceous in veg cover was limited by 3 soil types, crouch, reiff, loamy alluvial). Additional work included incorporating entire meadows in addition to the edges based on the 100m contact above, and excluding the most southern (Corta Madera) portions of screen due to vegetation surveys indicating no presence of Horkelia [on] private lands.'' This qualitative method of delineating meadows in many areas on Laguna Mountain is similar to the information we used in our critical habitat proposal (see Criteria Used to Identify Critical Habitat section below). Terrell (2006a, pp. 5, 6) provided a map using Winter's (2000) methods to map habitat within proposed critical habitat units, and recommended limiting critical habitat designation to those areas. We considered this information and agreed that using the modeled habitat constituted the best available scientific information, thus justifying some unit boundary adjustments; however additional data on habitat type use (e.g., open oak woodland at Pine Hill (Osborne 2002)) and host plant distribution since 2000 justify including some areas not mapped by Winter (2000, pg.1). We overlaid the Cleveland National Forest's Laguna Mountains skipper modeled habitat (Winter 2000, pg. 1) boundaries on the proposed critical habitat boundaries for Unit 1 (Laguna Mountain) and removed those areas from proposed critical habitat which fell outside of the modeled habitat and for which we did not have main hostplant (Horkelia clevelandii) occurrence data (see the Criteria Used To Identify Critical Habitat section below for a detailed discussion). This re- evaluation resulted in the removal of approximately 420 ac (169 ha) from Unit 1 (Laguna Mountain). The areas removed were primarily located in the northeastern portion of Subunit 1B, the southwestern portion of Subunit 1C, and the southeastern portion of Subunit 1A, as well as open woodland north of Boiling Springs Ravine in Subunit 1A. This re- evaluation of proposed critical habitat boundaries did not result in any changes to lands designated in Unit 2. [[Page 74598]] Critical Habitat Critical habitat is defined in section 3 of the Act as--(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act means to use and the use of all methods and procedures 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 prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7 is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures. To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)). Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management considerations or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2)). Areas outside of the geographic area occupied by the species at the time of listing may only be included in critical habitat if they are essential for the conservation of the species. Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but not known to be occupied at the time of listing will likely, but not always, be essential to the conservation of the species and, therefore, typically included in the critical habitat designation. The Service's Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service 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 determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. 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 to these planning efforts calls for a different outcome. Primary Constituent Elements In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat within areas occupied by the species at the time of listing, we consider those physical and biological features (PCEs) that are essential to the conservation of the species and that may require special management considerations or protection. These 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, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distributions of a species. The specific primary constituent elements required for the Laguna Mountains skipper are derived from the biological needs of the Laguna Mountains skipper as described in the Background section of the proposed rule (70 FR 73699). [[Page 74599]] Food, Water, or Other Nutritional or Physiological Requirements Laguna Mountains skippers require sunlight provided in the open meadows, open woodlands, or other forest openings. Butterflies are exothermic (i.e., they remain at the same temperature as their environment) and, like most insects, body temperature is of overriding importance in limiting flight (Chapman 1982, p. 217-272). Butterfly flight activity is limited by light intensity. Therefore, they require areas for basking in the sun in order to raise their body temperature for flight (Chapman 1982, p. 217-272). Additionally, surface moisture such as puddles and seeps (not flowing water) provide water and minerals for adults. Adult Laguna Mountains skippers need annual or perennial nectar sources including meadow and woodland-associated herbaceous annual wildflowers, and perennial herbs (e.g. Horkelia clevelandii, Lasthenia spp. (goldfields), Pentachaeta aurea (golden- rayed pentachaeta), Ranunculus spp. (buttercups), and Sidalcea spp. (checkerbloom)). Sites for Breeding and Reproduction Laguna Mountains skippers require Horkelia clevelandii to lay eggs on and for the caterpillars to eat and construct their pupal shelters. The species has also been documented on Potentilla glandulosa (Pratt 1999, p. 10; Osborne 2005). However, P. glandulosa may only be used as a hostplant for population survival in special circumstances (e.g., dry environmental conditions) where it occurs near H. clevelandii. Hostplant patches must be dense enough to support breeding (provide multiple and diverse sites for depositing eggs), although the exact host-plant patch size and density required for breeding is not known. A ``patch'' of hostplants may consist of one to several clumps of H. clevelandii or P. glandulosa growing together, as well as numerous individual plants that are growing in close proximity to each other. Space for Individual and Population Growth, and for Normal Behavior The species' current geographic range is fragmented and small, population densities are relatively low, and the quality of most breeding habitat has been compromised to some degree by grazing, recreation impacts, or alien plants. Therefore, all landscape connectivity areas among occupied meadows and forest openings that adult Laguna Mountains skippers can move through are required for the conservation of the species. To facilitate the use of connectivity areas for adult movement between breeding sites, maintenance of populations of hostplants and adult nectar sources is important, even if they are not likely to be used for breeding. Historical and Geographic Distribution of the Species The occupied areas designated as critical habitat are representative of the historical and geographical distribution of the species. Areas included in the final designation that are not known to be occupied were all historically occupied and will restore a portion of the historical geographic distribution of the Laguna Mountains skipper. Connectivity is required for recolonization of habitat to occur (e.g., after extirpation by fire) and for genetic diversity to be maintained. Primary Constituents for the Laguna Mountains Skipper Pursuant to our regulations, we are required to identify the known physical and biological features (PCEs) essential to the conservation of the Laguna Mountains skipper. All areas designated as critical habitat for the Laguna Mountains skipper are within the species' historical geographic range and contain sufficient PCEs to support at least one life history function. Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the Laguna Mountains skipper's PCEs are: (1) The hostplants, Horkelia clevelandii or Potentilla glandulosa, in meadows or forest openings needed for reproduction. (2) Nectar sources suitable for feeding by adult Laguna Mountains skippers, including Lasthenia spp., Pentachaeta aurea, Ranunculus spp., and Sidalcea spp. found in woodlands or meadows. (3) Wet soil or standing water associated with features such as seeps, springs, or creeks where water and minerals are obtained during the adult flight season. This designation is designed for the conservation of areas supporting PCEs necessary to support the life history functions which were the basis for the proposal. In general, critical habitat units are designated based on sufficient PCEs being present to support one or more of the species' life history functions. In this instance, all units contain all PCEs and support multiple life processes. Because not all life history functions require all the PCEs, not all critical habitat will uniformly contain all the PCEs. Criteria Used To Identify Critical Habitat As required by section 4(b)(1)(A) of the Act, we use the best scientific data available in determining areas that contain the features that are essential to the conservation of the Laguna Mountains skipper. We have also reviewed available information that pertains to the habitat requirements of this species. Information sources include data from field surveys for Horkelia clevelandii, regional Geographic Information System (GIS) vegetation and species coverages, data compiled in the California Natural Diversity Database (CNDDB), and survey data for the Laguna Mountains skipper from reports submitted by biologists holding section 10(a)(1)(A) recovery permits. We identified critical habitat based on the assessment of those physical and biological components identified above, the known and historical occurrences of Laguna Mountains skipper, and available information on the distribution of H. clevelandii. We designated no areas outside the individual mountains presently occupied by the species. To delineate critical habitat, we identified meadow complexes (meadows and forest openings connected by open forest canopy) on Palomar and Laguna Mountains occupied by the Laguna Mountains skipper at the time of listing and known to be currently occupied. The species was known to occupy only one meadow complex (Laguna Meadow) on Laguna Mountain at the time of listing, but we also identified two meadow complexes on Laguna Mountain that contain habitat with features essential to the conservation of the species. These meadow complexes were not known to be occupied at the time of listing, however, they have not been extensively surveyed, and Laguna Mountain as a whole was historically considered to be occupied by the skipper. These areas are important for expansion and enhancement of populations in Laguna Meadow and are therefore considered essential to the conservation of the species. Using infrared satellite imagery, we visually outlined meadows and forest openings that contained species or hostplant occurrence data. Maps were produced by overlaying a 328 square ft (100 square m) grid on the initial hand-drawn polygons and selecting those grid cells that fell within the hand drawn polygons. Specifically, on Palomar Mountain (Unit 2) we defined subunits [[Page 74600]] based on the selected grid cells because meadows were more clearly defined and species occupancy and distribution information was more clearly defined. On Laguna Mountain (Unit 1), where meadows were not as clearly defined and species distribution information and occupancy was less certain, we then overlaid the Cleveland National Forest's Laguna Mountains skipper modeled habitat boundaries and removed areas outside of the modeled habitat for which we did not have occurrence data for the species or its main hostplant (Horkelia clevelandii). Specifically, we removed: (1) All grid cells more than 328 ft (100 m) distant from species occurrence locations, hostplant occurrence locations, or Forest Service modeled habitat; (2) remaining grids cells not connected to the three subunits of Unit 1; and (3) all grid cells with over 97 percent of their area more than 328 ft (100 m) distant from species occurrence locations, hostplant occurrence locations habitat. When determining critical habitat boundaries, we made every effort to avoid including within the boundaries of the map contained within this final rule developed areas such as buildings, paved areas, and other structures that lack PCEs for the Laguna Mountains skipper. The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them 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, Federal actions limited to these areas would not trigger section 7 consultation, unless they may affect the species or primary constituent elements in adjacent critical habitat. We are designating critical habitat on lands that we have determined were occupied at the time of listing and contain sufficient primary constituent elements to support life history functions essential for the conservation of the species. We are also designating lands that were not known to be occupied at the time of listing but have been determined to be essential for the conservation of the Laguna Mountains skipper. Special Management Considerations or Protection When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing support the primary constituent elements that may require special management considerations or protection. Threats to those essential features that define critical habitat (PCEs) for the Laguna Mountains skipper include the direct and indirect impacts of human development and recreation, surface and groundwater management practices, and grazing intensity. Areas identified as critical habitat are composed of 38 percent private land holdings, where habitat is subject to rural development and overgrazing, potential stream and groundwater diversions, and recreational activities. State and Federal landholdings (6 and 56 percent, respectively) are also subject to grazing and recreational activities. While designation of critical habitat does not impose any management requirements, particularly on State or private land, the following are measures that could be undertaken to benefit the species. Grazing can cause direct mortality of larvae and eggs by trampling and consumption. The density of cattle grazed in meadow habitat should be monitored and managed as well as levels of habitat degradation resulting from existing levels of grazing. Environmental conditions should also be considered when determining appropriate cattle density in meadow habitat occupied by the Laguna Mountains skipper. While cattle do not normally eat hostplants while larvae are developing, they have been observed grazing on hostplants during drought years on Laguna Mountain (Pratt 2006, p. 4). Adaptive management may be needed to adjust cattle grazing intensity, and protection measures may include exclosures to prevent grazing of hostplants. Monitoring of potential changes in hydrology caused by stream and groundwater diversions should be undertaken and any necessary management to prevent habitat conversion from wet to dry meadows, or open woody canopy to closed. On Palomar Mountain, commercial drinking water projects and stream alterations on private lands are currently diverting stream and groundwater to an unknown extent. Drying of meadows results in vegetation changes (for a general discussion see Naumburg et al. 2005) that could eliminate primary constituent elements within Laguna Mountains skipper habitat (e.g. hostplants and surface moisture, PCEs 1 and 3). Recreational activities such as camping and horseback riding can cause direct mortality of Laguna Mountains skipper larvae by trampling, and may increase encroachment of exotic vegetation affecting the availability of hostplants (PCE 1) and nectar sources (PCE 2). Changes in surface and groundwater availability due to disturbance by cattle and humans can also result in meadow habitat conversion (PCE 1). The provisions within two Forest Service management documents promote the conservation of the Laguna Mountains skipper. The Land Management Plan provides long-term management direction for National Forest Service lands (Terrell 2006a, pg. 1; and b, pp. 1-2). In addition, the Cleveland National Forest has a habitat management guide for four sensitive plant species in mountain meadows habitat (Cleveland National Forest 1991, pp.1-36). While the USFS has completed some conservation actions for the species, the avoidance and mitigation standards in both management plans are general and do not specify what actions are needed, or what is considered essential habitat. Therefore, habitat essential to the Laguna Mountains skipper where special management actions may be needed to minimize impacts resulting from recreation, grazing, and exotic plant invasion needs to be identified. Areas designated as critical habitat contain physical and biological features essential for the conservation of the Laguna Mountains skipper that may require some level of management or protection to address current and future threats to the Laguna Mountains skipper. Subunits 2A, 2B, and 2C may require special management due to all threats described above. All subunits in Unit 1 may require special management due to all threats described above except diverting stream and groundwater. Subunit 2D may require management primarily of recreation impacts. Fire management activities, such as logging, fuel modification, or relatively low density grazing, should not adversely modify habitat if carefully and adaptively managed to minimize or avoid destruction of hostplants. Critical Habitat Designation We are designating 2 units, further divided into 7 subunits, as critical habitat for the Laguna Mountains skipper. Unit 1, Laguna Mountain, consists of subunits 1A, 1B, and 1C. Unit 2, Palomar Mountain, consists of subunits 2A, 2B, 2C, and 2D. Lands being designated are under Federal (3,516 ac (1,423 ha)), private (2,361 ac (954 ha)), and State (381 ac (154 ha)) ownership. Table 1 outlines the acreage and landownership of the areas designated as critical habitat for the Laguna Mountains skipper. The critical habitat areas described below constitute our best assessment at this time of areas determined to be occupied at the time [[Page 74601]] of listing, containing the primary constituent elements essential for the conservation of the species that may require special management considerations or prote