Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Laguna Mountains Skipper, 73699-73717 [05-23691]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 238 (Tuesday, December 13, 2005)]
[Proposed Rules]
[Pages 73699-73717]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23691]


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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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Laguna Mountains skipper (Pyrgus 
ruralis lagunae), pursuant to the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 6,662 acres (ac) (2,696 hectares 
(ha)) fall within the boundaries of the proposed critical habitat in 
two units that are divided into a total of seven subunits on Laguna and 
Palomar Mountains in San Diego County, California. Five subunits are 
occupied. Two subunits are not known to be currently occupied or 
occupied at the time of listing, but are connected to occupied habitat, 
were historically occupied, and also contain physical and biological 
features essential to the conservation of the species.

DATES: We will accept comments from all interested parties until 
February 13, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by January 27, 
2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials--identified by RIN 1018-AU50--concerning this proposal by any 
one of several methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office, 6010 Hidden Valley Rd., Carlsbad, CA 92011.
    2. You may hand-deliver written comments to our Office, at the 
above address.
    3. You may fax your comments to 760-431-9624.
    4. You may send comments by electronic mail (e-mail) to 
FW8pchskipper@fws.gov. Please see the Public Comments Solicited section 
below for file format and other information about electronic filing.
    5. Federal Rulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Rd., 
Carlsbad, CA 92011 (telephone 760-431-9440).

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office, 6010 Hidden Valley Rd., Carlsbad, CA 92011, (telephone 
760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of Laguna 
Mountains skipper habitat, and which areas should be included in the 
designations that were occupied at the time of listing that contain the 
features that are essential for the conservation of the species and 
why, and which areas not occupied at the listing are essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas

[[Page 73700]]

and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES). 
Please submit Internet comments to FW8pchskipper@fws.gov in ASCII file 
format and avoid the use of special characters or any form of 
encryption. Please also include ``Attn: Laguna Mountains skipper'' in 
your e-mail subject header and your name and return address in the body 
of your message. If you do not receive a confirmation from the system 
that we have received your Internet message, contact us directly by 
calling our Carlsbad Fish and Wildlife Office at phone number 760-431-
9440. Please note that the Internet address FW8pchskipper@fws.gov will 
be closed out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

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 section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. 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 decision-
making 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 471 species, or 37 percent of the 1,272 listed 
species in the United States under the jurisdiction of the Service, 
have designated critical habitat. We address the habitat needs of all 
1,272 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 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 proposed 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 time frame 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

[[Page 73701]]

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 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 to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the Laguna Mountains skipper, refer to the final rule 
listing the species as endangered, published in the Federal Register on 
January 16, 1997 (62 FR 2313).

Species Description

    The Laguna Mountains skipper is a member of the family Hesperiidae 
(skippers), and is one of two recognized subspecies of Pyrgus ruralis. 
Skippers are generally small bodied with a fast, erratic flight 
pattern. Adult Laguna Mountains skippers have a wingspan of 
approximately one inch (two and a half centimeters) (Garth and Tilden 
1986; Osborne in litt. 2004) and are distinguished from other co-
occurring skipper species by their checkered dark brown and white 
appearance (Osborne in. litt. 2004). The submarginal spots on the hind 
wing form a distinguishing ``X'' shape, and the dark bands on the 
marginal fringe of the hind wing extend prominently across the fringe 
(Levy 1994).
    Adult females lay their eggs on the outer leaves of their hostplant 
(i.e., a plant on which the larvae feed and develop). In many species 
of butterfly, the hostplants are limited to one or two species. The 
main hostplant for the Laguna Mountains skipper is Horkelia clevelandii 
(Cleveland's horkelia). Eggs of the Laguna Mountains skipper develop 
and hatch in approximately 12 to14 days (Mattoni and Longcore 1998; 
Pratt 1999), with some variation likely due to habitat microsite 
conditions and local weather. Development from egg to pupa takes 
approximately 7 weeks.

Habitat

    The Laguna Mountains skipper has specialized habitat requirements 
within a narrow geographic distribution. The Laguna Mountains skipper 
is known to occur in a matrix of pine and mixed conifer/oak forests, 
meadows, small forest openings, and forest edges that support larval 
host plants between 3,800 and 6,000 feet (ft) (1,158 and 2,000 meters 
(m)) in elevation (Emmel and Emmel 1973; Levy 1997; Mattoni and 
Longcore 1998; Pratt 1999; Osborne 2002).
    Habitat has been primarily identified by the presence or abundance 
of the species' main larval host plant, Horkelia clevelandii. However, 
habitat also consists of all resources, such as nectar-producing plants 
and surface moisture, or puddles, that provide feeding, breeding and 
sheltering for adult butterflies. One scientific study of Laguna 
Mountains skipper habitat has been conducted. Williams and Bailey 
(2004) investigated geographic variation in presumed habitat 
characteristics among geographic locations, and differences in habitat 
characteristics between sites with and without a known history of 
Laguna Mountains skipper observations. Research indicates that sites 
with a known history of Laguna Mountains skipper sightings had more 
bare ground, larger host plant patches, and larger, taller H. 
clevelandii plants than sites where Laguna Mountains skippers had not 
been seen.
    Until recently, Horkelia clevelandii was thought to be the only 
host plant species used by the Laguna Mountains skipper. However, the 
use of Potentila glandulosa as a host plant in the wild was first 
documented on Palomar Mountain by Pratt (1999). This was later 
confirmed in 2004 in Mendenhall Valley (Ken Osborne, pers. comm. 2004). 
Both host plant species grow in clusters low to the ground and are 
relatively small, long-lived, non-woody (herbaceous) plants in the rose 
family (Rosacae).

Status and Distribution

    When the Laguna Mountains skipper was listed in 1997, the species 
was known from Palomar and Laguna Mountains in San Diego County (62 FR 
2313). However, its primary host plant, Horkelia clevelandii, has a 
much wider distribution, extending from the San Jacinto, Palomar, 
Cuyamaca, and Laguna Mountains of southwestern California, south to 
Sierra San Pedro Martir, in Baja, California, Mexico (Keck 1938; 
Hickman 1993). Within the Laguna Mountains, the surrounding forests are 
dominated by Jeffery pine (Pinus jefferii) and black oak (Quercus 
kelloggii), while the Palomar Mountains are dominated by a mixed forest 
comprised of Jeffery pine, white fir (Abies concolor), incense cedar 
(Calocedrus decurrens), and black oak.
    During the 1950s and 1960s, Laguna Mountains skippers were commonly 
recorded from several locations on Laguna Mountain, including Big 
Laguna, Boiling Springs, East Laguna, Horse Haven Springs, Laguna Lake 
and Little Laguna Meadow (Levy 1994). Surveys conducted since 1994 have 
detected adult Laguna Mountains skippers only near Little Laguna 
Meadow, at the El Prado/Laguna Campground (Pratt 1999). Although 
historic records of the species in the Laguna Mountains with specific 
location descriptions are all in the vicinity of the greater Laguna 
Meadow, this is likely an artifact of access and where sites were known 
to collectors (Levy 1994). Other areas, such as Horse Meadow to the 
south, also contain features identified as essential for sustaining 
Laguna Mountains skipper populations (Levy 1994).
    The Laguna Mountains skipper was first recorded on Palomar Mountain 
in 1947, at an unspecified location (San Diego Natural History Museum, 
in Levy 1994). In 1991 Dan Lindsley collected two specimens in ``the 
last small meadow before the Palomar Observatory'' (Levy 1994). Since 
its discovery, the Laguna Mountains skipper has been recorded at 
several Palomar Mountain locations on Federal, State, and private 
lands, but only one site (Mendenhall Valley) exists where adults can be 
reliably found (Levy 1994, 1996, 1997; Pratt 1999; Faulkner in litt. 
2000; Osborne 2002, 2003). New sightings in 2001 in the Pine Hills area 
(a location not known at the time of listing) provide the lowest 
elevation observation record of this species, recorded at 3,840 ft 
(1,170 m) (Osborne 2002).
    The listing rule (62 FR 2313) stated that the Laguna Mountains 
skipper had been reported from four (unspecified) sites on Palomar 
Mountain. Upon evaluation of GIS data available at the time of listing, 
and other data available at time of listing (e.g., Levy 1994), we 
identified these sites as lower French Valley, Palomar Observatory 
Campground, Palomar Observatory Meadow, and Mendenhall Valley. The more 
recent Observatory Trail locations are in a meadow/woodland transition 
area at the southeastern end of Upper French Valley, and the campground 
location is between Mendenhall Valley and Upper French Valley. The 
campground and trail sites are small

[[Page 73702]]

woodland openings that are unlikely to support an isolated population 
long-term. Mark-release-recapture studies of a related skipper species 
(the grizzled skipper, Pyrgus malvae) occupying similar habitat 
recorded adult movement among forest openings of more than 0.62 mi (1 
km) (M. Brereton in Levy 1994). Therefore, small forest openings create 
landscape connectivity (habitat the species is capable of occupying and 
moving through) among larger meadows. The distributions of small 
occupied forest openings and meadows (meadow complexes) indicate 
historic occupancy of Laguna Mountains skipper populations throughout 
the northern Palomar Mountains meadow system, including unsurveyed 
portions of Upper French Valley.
    Based on the findings of the mark-release recapture study (M. 
Brereton in Levy 1994), grizzled skipper adults are sedentary most of 
the time, rarely moving further than 20 m, but do move distances 
greater than 1 km. This movement pattern and the distribution of 
observations among several small forest openings and meadows are 
characteristic of local alpine butterfly populations belonging to a 
greater metapopulation distribution (e.g., Boughton 1999). 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.
    No repeated, systematic population status studies of the Laguna 
Mountains skipper have been conducted. While individuals can regularly 
be found in the Mendenhall Valley on Palomar Mountain, the long-term 
viability of the species on Laguna Mountain is uncertain. Surveys 
suggest the species has declined in the Laguna Mountains, although very 
little is known regarding the species' population status or dynamics 
throughout its range. The Laguna Mountains skipper has never been 
recorded outside of Laguna or Palomar Mountains; however, the species 
may have been more widespread historically throughout the higher 
elevations of San Diego County (Brown in litt. 1991). The species could 
potentially occupy the Cuyamaca Mountains north of Laguna Mountain and 
the San Jacinto Mountains in Riverside County, as these areas all 
contain meadows and host plants (Keck 1938) at appropriate elevations, 
and are proximal to occupied mountains. However, few survey data exist 
for mountains where the Laguna Mountains skippers were not known to 
historically occur.
    Historically, Palomar Mountain populations were considered small 
compared to Laguna Mountain populations, with only 5 specimens reported 
prior to 1991 (Brown in litt. 1991). Today, Palomar Mountain appears to 
sustain the largest known population of the Laguna Mountains skipper. 
The number of individuals occupying Mendenhall Valley has been 
estimated between approximately 240 individuals in 1994 (Levy 1994) and 
approximately 1,470 individuals in 1998 (Mattoni and Longcore 1998). 
Levy (1994) based his estimate on adult surveys and stated that his 
estimate of approximately 240 adult butterflies could be much higher 
than the actual number. Mattoni and Longcore (1998) based their 
estimate on the number of eggs and larvae found on host plants within a 
specific area. From this they extrapolated to an adult population 
estimate based on the abundance of host plants, average fecundity, and 
equal sex ratios. These estimates differ significantly, at least in 
part due to differences in methodology.
    Populations in the Laguna Mountains appear to be small, and 
possibly bordering on extirpation. Surveys of varying intensity and 
duration were conducted in 8 of the 10 years between 1994 and 2003. 
During this 10-year period, only 4 adult skippers were found: a single 
individual in 1995 (Levy 1997), 1 adult in 1996 (Levy 1997), and 2 
adults in 1999 (Pratt 1999). 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 the Sunrise Highway (Pratt 
1999), documenting a new location of occupied habitat. However, no 
adults were observed at this location. Adult skippers have not been 
documented in the Laguna Mountains since 1999.

Previous Federal Actions

    For information on previous Federal actions for the Laguna 
Mountains skipper, refer to the final rule listing for this species and 
the Quino Checkerspot Butterfly (Euphydryas editha quino) as endangered 
(62 FR 2313). At the time of listing, the Service determined that 
critical habitat was not prudent, citing that the publication of 
precise maps and descriptions of critical habitat could result in 
additional habitat destruction through trampling, discing, and grading 
as well as collection (62 FR 2313). 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 
proposed rule complies with the settlement agreement. We have 
reconsidered our not prudent finding, and now believe that 
identification of primary constituent elements and essential areas 
(critical habitat designation) may provide educational information to 
individuals, local and State governments, and other entities. Because 
this species is so limited in geographic range, most landowners and 
collectors have been aware of its presence since listing. Unlike the 
Quino checkerspot butterfly listed in the same rule, collectors have 
always known where to find the Laguna Mountains skipper, however, 
access to the best site is restricted because it can only be reached 
through private land (Mendenhall Valley).

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

[[Page 73703]]

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 when the essential features thereon may require special 
management 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).) In addition, when the best available scientific data 
do not demonstrate that the conservation needs of the species so 
require, we will not designate critical habitat in areas outside the 
geographical area occupied by the species at the time of listing. 
However, an area currently occupied by the species that was not known 
to be occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, may therefore, be 
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.

Methods

    As required by section 4(b)(2) the Act we use the best scientific 
data available in determining areas that contain features that are 
essential to the conservation of the Laguna Mountains skipper. These 
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. Based on the 
assessment of those physical and biological components identified 
above, the known and historic occurrences of Laguna Mountains skipper, 
and available information on the distribution of H. clevelandii, we 
identified proposed critical habitat.

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 propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (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 historic 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 species 
as described in the Background section of this proposal and the final 
listing rule.

Food, Water, or other Nutritional or Physiological Requirements

    Laguna Mountain skippers require sunlight provided in the open 
meadows, open woodlands, or other forest openings. Butterflies are 
exothermic and, like most insects, body temperature is of overriding 
importance in limiting flight (Chapman 1982). 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). 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.

[[Page 73704]]

Lasthenia spp. (goldfields), Pentachaeta aurea (golden-rayed 
pentachaeta), Ranunculus spp. (buttercups), and Sidalcea spp. 
(checkerbloom)).

Sites for Breeding and Reproduction

    The Laguna Mountains skippers requires Horkelia clevelandii host 
plants to lay eggs on and for the caterpillars to eat and construct 
pupal shelters, and may also require Potentila glandulosa. Host plant 
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 
host plants 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.

Space for Individual and Population Growth, and for Normal Behavior

    Because the 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 exotic plant invasion, all landscape 
connectivity areas among occupied meadows and forest openings that 
adult Laguna Mountains skippers can move through are required for 
survival of the species. In order to facilitate the use of connectivity 
areas for adult movement between breeding sites, it is important to 
maintain populations of hostplants and adult nectar sources, even if 
they are not likely to be used for breeding.

Historic and Geographic Distribution of the Species

    The occupied areas proposed for designation are representative of 
the historic and geographical distribution of the species. Areas 
proposed for designation that are not known to be occupied were all 
historically occupied and will restore a portion of the historic 
geographic distribution of 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 Constituent Elements for the Laguna Mountains skipper

    The specific primary constituent elements required for the Laguna 
Mountains skipper are derived from the biological needs as described in 
the Background section of this proposal. These include all areas within 
Palomar and Laguna Mountains that sustain the main host plant of the 
Laguna Mountains skipper, Horkelia clevelandii, and associated habitat 
containing Potenetila gandulosa, including movement areas between 
meadows and forest openings. The specific biological and physical 
habitat features identified as essential for sustaining Laguna 
Mountains skipper populations are:
    1. The host plants, Horkelia clevelandii or Potentila glandulosa, 
in meadows or forest openings needed for reproduction.
    2. Nectar sources suitable for feeding by adult Laguna Mountains 
skipper, 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 proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions which were the basis 
for the proposal. Because not all life history functions require all 
the PCEs, not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the Laguna Mountains skipper. In some cases, the PCEs 
exist as a result of ongoing Federal actions. As a result, ongoing 
Federal actions at the time of designation will be included in the 
baseline in any consultation conducted subsequent to this designation.

Criteria Used To Identify Critical Habitat

    To delineate proposed critical habitat, we identified meadow 
complexes (meadows and forest openings connected by open forest canopy) 
on Palomar and Laguna Mountains known to be occupied by the Laguna 
Mountains skipper at the time of listing and known to be currently 
occupied. The species is currently known to occupy only one meadow 
complex (Laguna Meadow) on Laguna Mountain, but we also identified two 
other meadow complexes on Laguna Mountain that contain habitat with 
features essential to the conservation of the species. These meadow 
complexes have not been extensively surveyed and are not currently 
known to be occupied. However, Laguna Mountain as a whole was known to 
be historically 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 delineated the proposed 
critical habitat boundaries by outlining identified meadow complexes. 
In delineating proposed critical habitat boundaries, we included areas 
within meadow complexes containing relatively dense Horkelia 
clevelandii observations. Finally, maps were produced by fitting a 100 
meter grid outline to the initial hand-drawn outlines.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including within the boundaries of the map 
contained within this proposed 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 proposed rule have been excluded by text in the 
proposed rule and are not proposed for designation as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.
    We are proposing to designate 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 
proposing subunits 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. Occupied subunits were designated 
based on sufficient PCEs being present to support Laguna Mountains 
skipper life processes. All subunits contain all of the PCEs and 
support multiple life processes.
    At this time, based on the best available information, we have 
determined that without management and protection for the habitat of 
the Laguna Mountains skipper in the areas not known to be occupied at 
the time of listing or known to be currently occupied, conservation of 
the species will not be possible in the foreseeable future, and these 
areas are accordingly essential to the conservation of the species.

Special Management Considerations or Protections

    As we undertake the process of designating critical habitat for a 
species, we first evaluate lands defined by those

[[Page 73705]]

physical and biological features essential to the conservation of the 
species pursuant to section 3(5)(A) of the Act. Secondly, we evaluate 
lands defined by those features to assess whether they may require 
special management considerations or protection. Threats to those 
essential features that define critical habitat (primary constituent 
elements) 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 proposed as critical habitat are composed of 36 percent 
private land holdings, where habitat is subject to rural development 
and other land use changes, overgrazing, potential stream and 
groundwater diversions, and recreational activities. State and Federal 
landholdings (6 and 36 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 regulated, as well as levels of habitat degradation 
resulting from existing grazing. Adaptive management may be needed to 
adjust cattle grazing intensity, and protection measures may include 
exclosures to prevent grazing. Monitoring of potential changes in 
hydrology caused by stream and groundwater diversions should be 
undertaken as well as any necessary management to prevent habitat 
conversion.
    On Palomar Mountain, commercial drinking water projects and private 
stream alterations 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. host plants and surface moisture, PCEs 1 and 3). Recreational 
activities such as camping and horseback riding increase encroachment 
of exotic vegetation and can cause direct mortality of Laguna Mountains 
skipper larvae by trampling (Pratt 1999). Alteration of host plant 
distribution and availability, plant canopy closure, and availability 
of resources such as nectar and moisture (all PCEs) can result from 
disturbance by cattle and humans, and habitat conversion due to changes 
in surface and groundwater availability.
    Pursuant to a consultation with the Service under section 7 of the 
Act, the Cleveland National Forest has implemented some measures on 
their land to minimize impacts to the Laguna Mountains skipper. 
However, no management plan exists that addresses conservation of this 
species in the Cleveland National Forest. Therefore, special management 
may be needed to minimize impacts to the skipper resulting from 
recreation and exotic plant invasion.
    We believe areas proposed for designation as critical habitat 
contain physical and biological features essential for the conservation 
of the Laguna Mountains skipper, and may require some level of 
management and/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 
primarily management of recreation impacts. Economic or fire management 
activities, such as logging, fuel modification, and relatively low 
density grazing, should not adversely modify habitat if carefully 
managed to minimize or avoid destruction of host plants.

Proposed Critical Habitat Designation

    We are proposing 2 units made up of 7 subunits, totaling 6,662 ac 
(2,696 ha) 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 of listing, 
contain the primary constituent elements and may require special 
management, and those additional areas that were not known to be 
occupied at the time of listing but found to be essential to 
conservation of the Laguna Mountains skipper. Proposed critical habitat 
areas encompass approximately 3,887 ac (1,574 ha; 58 percent) of 
Federal land ownership, 381 ac (154 ha; 6 percent) of State land 
ownership, and 2,394 ac (968 ha; 36 percent) of private land ownership. 
No Tribal lands were included in this proposed designation.
    The 2 units proposed as critical habitat are: (1) Palomar Mountain; 
and, (2) Laguna Mountain. Brief descriptions of the units are presented 
below. Four subunits (1A, 2A, 2B, 2D) were known to be occupied at the 
time of listing, one subunit was not known to be occupied at the time 
of listing but is known to be currently occupied (2C), and two subunits 
(1B and 1C) were not known to be occupied at the time of listing and 
are not known to be currently occupied, but are connected to occupied 
habitat, were historically occupied, and contain physical and 
biological features essential to the conservation of the species and 
are themselves essential to the conservation of the species.
    All subunits not currently known to be occupied are contiguous with 
occupied subunits and ensure representation of the historic 
geographical distribution not otherwise represented by the occupied 
subunits. There is potential for current occupancy in subunits not 
currently known to be occupied, as survey efforts in these areas have 
been limited. No conclusive evidence is available to indicate complete 
absence of Laguna Mountains skipper at any of these sites; few, 
incomplete, or no recent surveys have been conducted at sites not 
currently known to be occupied. Species detectability is generally low 
(e.g. Pratt 1999), particularly if the population occurs in low 
numbers. Surveys may have missed sightings, as shown by repeated 
collections near Little Laguna Lake where historically there were many 
observations, followed by repeated reports of no occurrences, with 
subsequent population ``re-discovery'' (Pratt 1999). The current, 
overall population size of the Laguna Mountains skipper is at such a 
low level that it was thought to have possibly been extirpated in the 
Laguna Mountains at the time of listing (Levy 1994; 62 FR 2313).
    While occupied subunits provide some habitat for current 
populations, unoccupied subunits would provide habitat for population 
augmentation either through natural means, or by re-introduction. 
(Note: We believe that given the species' small population size and 
very limited range, reintroduction may be necessary for long-term 
persistence of the species. We are not currently developing a 
reintroduction plan. However, we've identified the potential need for a 
propagation and reintroduction program as a recovery task in the draft 
recovery plan citing that such a program may be necessary for recovery 
of the species, especially in the Laguna Mountains where the species 
has been documented to occur in one meadow area. We do not anticipate 
that section 10(j) would apply to any reintroduction (or augmentation) 
of Laguna Mountains skipper on either the Palomar or Laguna Mountains 
since they would not be separated geographically from the existing 
populations.) As stated in the final rule

[[Page 73706]]

listing the species as endangered (62 FR 2313), one of several 
naturally occurring events could extirpate the existing population due 
to its very restricted range and extremely localized distribution. The 
inclusion of unoccupied subunits in critical habitat would reduce the 
threat that catastrophic naturally occurring events such as the Cedar 
Fire that burned part of Laguna Mountain in 2003 (e.g., IBAERT 2003) 
would extirpate the population by providing additional available 
habitat that the species could expand into. Therefore, we have 
determined that expansion of the species into habitat not currently 
known to be occupied and connectivity with existing occupied habitat is 
necessary to conserve the species. Based on the best available 
information, we have determined that management and protection for the 
Laguna Mountains skipper in areas historically occupied and known to be 
currently occupied on Laguna Mountain is necessary.

Unit Descriptions

Unit 1: Laguna Mountain

    Unit 1 encompasses approximately 3,763 ac (1,523 ha), and is 
approximately centered on Laguna Mountain peak located in south-central 
San Diego County east of the community of Alpine. This unit is divided 
into three subunits containing all the primary constituent elements. 
This unit is crucial to the species the species primarily because the 
species was first described from this unit and represents the 
southernmost portion of the species range. Maintaining two widely 
separate units (i.e., Laguna and Palomar Mountains) and multiple 
subunits limits the potential for a catastrophic event from extirpating 
all remaining populations. Because the number of known occupied sites 
and low population densities are not sufficient to overcome the threat 
of extirpation, connectivity and expansion into unoccupied meadow 
complexes is necessary for the conservation of the Laguna Mountains 
skipper. Connectivity is important for recolonization of habitat to 
occur (e.g. after extirpation by fire) and genetic diversity to be 
maintained among local populations.

Unit 1A: Laguna Meadow

    Unit 1A (2,829 ac (1,145 ha)) is currently occupied and was known 
to be occupied at the time of listing. This subunit contains habitat 
features essential to the conservation of the species and is the site 
where the species was first described (i.e., northern Laguna Meadow, 
near Little Laguna Lake), and is where adults could be reliably found 
historically. The Cleveland National Forest lands in this unit is 
subject to grazing and recreational activities and may require special 
management such as grazing density adjustments or additional exclosures 
to protect host plants. This subunit contains 2,724 (1,102 ha) of 
Federal land (i.e., U.S. Forest Service) and 105 ac (43 ha) of 
privately owned land.

Unit 1B: Filaree Flat

    Subunit 1B (388 ac (157 ha)) is not currently known to be occupied, 
and was not known to be occupied at the time of listing, but was 
historically occupied. This subunit is essential because it (1) 
contains habitat features essential to the conservation of populations 
known to occupy Subunit 1A, (2) provides for population expansion and 
enhancement, (3) minimizes habitat fragmentation, and (4) is 
representative of the historic geographical and ecological distribution 
of the species. Lands in this subunit are subject to grazing and 
recreational activities and may require special management such as 
grazing density adjustments or additional exclosures to protect host 
plants. This subunit contains 368 ac (149 ha) of Federal land (i.e., 
U.S. Forest Service) and 20 ac (8 ha) of privately owned land.

Unit 1C: Agua Dulce Campground and Horse Meadow

    Subunit 1C (546 ac (221 ha)) is not currently known to be occupied 
and was not known to be occupied at the time of listing. This subunit 
is essential because it (1) contains habitat features essential to the 
conservation of populations known to occupy Subunit 1A; (2) provides 
for population expansion and enhancement; (3) minimizes habitat 
fragmentation; and, (4) is representative of the historic geographical 
and ecological distribution of the species. Habitat in this subunit is 
subject to grazing and recreational activities and may require special 
management such as grazing density adjustments or additional exclosures 
to protect host plants. This subunit contains 417 ac (169 ha) of 
Federal land (i.e., U.S. Forest Service) and 129 ac (52 ha) of 
privately owned land.

Unit 2: Palomar Mountain

    Unit 2 encompasses approximately 2,899 ac (1,173 ha), and is 
approximately centered on Palomar Mountain peak located in north-
central San Diego County near the border of Riverside County. Unit 2 
consists of subunits containing all the primary constituent elements. 
Unit 2 includes the most densely populated area in the species' range 
and encompasses the northernmost portion of the range. Maintaining two 
widely separate units (i.e., Laguna and Palomar Mountains) and multiple 
subunits limits the potential for a catastrophic event from extirpating 
all remaining populations.

Unit 2A: Mendenhall Valley and Observatory Campground

    Subunit 2A (1,092 ac (442 ha)) is known to be currently occupied 
and was occupied at the time of listing. Subunit 2A supports the 
largest known population of Laguna Mountains skipper and represents the 
best opportunity for the survival of this species. This unit is 
composed of a large amount of private land holdings with habitat 
potentially subject to future rural development and other land use 
changes, overgrazing, stream diversion, and private recreational use. 
This subunit is the only meadow complex (i.e., Mendenhall Valley and 
associated forest openings) where multiple adults have been 
consistently detected since the time of listing. Subunit 2A (1) 
contains habitat features essential for conservation of the species; 
(2) conserves at least part of the only relatively stable, highest 
density local population; and (3) minimizes habitat fragmentation. This 
area may require special management such as host plant distribution 
monitoring, exclosure maintenance, and grazing density adjustments. 
This subunit contains 231 (94 ha) of Federal land (i.e., U.S. Forest 
Service) and 861 (348 ha) of privately owned land.

Unit 2B: Upper French Valley, Observatory Trail, and Palomar 
Observatory Meadows

    Subunit 2B (998 ac (404 ha)) is known to be currently occupied and 
was occupied at the time of listing. The distribution of small forest 
openings and meadows and the five observation locations along the 
Observatory Trail indicate historic occupancy of Laguna Mountains 
skipper populations in unsurveyed portions of Upper French Valley. 
Subunit 2B: (1) Contains habitat features essential for conservation of 
the species; (2) provides for population expansion and enhancement; 
and, (3) minimizes habitat fragmentation. This area may require special 
management such as host plant distribution monitoring, grazing and 
recreation exclosure maintenance, and grazing density adjustments. This 
subunit contains 93 (38 ha) of Federal land (i.e.,

[[Page 73707]]

U.S. Forest Service) and 905 ac (366 ha) of privately owned land.

Unit 2C: Upper Doane Valley and Girl Scout Camp

    Subunit 2C (547 ac (221 ha)) is known to be currently occupied, but 
was not known to be occupied at the time of listing. Subunit 2C is also 
essential to the conservation of this species because it (1) contains 
habitat features essential to the conservation of populations known to 
occupy Subunit 2A, (2) allows population expansion and enhancement, and 
(3) minimizes habitat fragmentation. This area may require special 
management such as host plant distribution monitoring, exclosure 
maintenance, and grazing density adjustments. This subunit contains 40 
(16 ha) of Federal land (i.e., U.S. Forest Service), 316 ac (128 ha) of 
privately owned land, and 191 ac (77 ha) of State owned land (i.e. 
California State Parks).

Unit 2D: Lower French Valley and Lower Doane Valley

    Subunit 2D (547 ac (221 ha)) is known to be currently occupied and 
was occupied at the time of listing. Subunit 2C (1) contains habitat 
features essential to the conservation of populations known to occupy 
Subunit 2A, (2) allows population expansion and enhancement, and (3) 
minimizes habitat fragmentation. This area may require special 
management such as hostplant distribution monitoring, exclosure 
maintenance, and grazing density adjustments. This subunit contains 14 
(6 ha) of Federal land (i.e., U.S. Forest Service), 58 ac (23 ha) of 
privately owned land, and 190 ac (77 ha) of State owned land (i.e. 
California State Parks).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. 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. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's 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, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of 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.
    Federal activities that may affect the Laguna Mountain skipper or 
their designated critical habitat will require section 7 consultation. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal

[[Page 73708]]

Emergency Management Agency funding), will also continue to be subject 
to the section 7 consultation process. Federal actions not affecting 
listed species or critical habitat and actions on non-Federal and 
private lands that are not federally funded, authorized, or permitted 
do not require section 7 consultation.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Laguna Mountains Skipper and Its 
Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for Laguna Mountains skipper 
jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of the Laguna Mountains 
skipper. The section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the Laguna Mountains skipper in a qualitative fashion without 
making distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a