Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Fender's blue butterfly (Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette daisy), 63862-63977 [06-8809]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 210 (Tuesday, October 31, 2006)]
[Rules and Regulations]
[Pages 63862-63977]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8809]



[[Page 63861]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Fender's blue butterfly (Icaricia icarioides fenderi), 
Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron 
decumbens var. decumbens (Willamette daisy); Final Rule

Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / 
Rules and Regulations

[[Page 63862]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT91


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Fender's blue butterfly (Icaricia icarioides 
fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and 
Erigeron decumbens var. decumbens (Willamette daisy)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Fender's blue butterfly (Icaricia 
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's 
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) 
pursuant to the Endangered Species Act of 1973, as amended (Act). 
Approximately 3,010 acres (ac) (1,218 hectares (ha)) for Fender's blue 
butterfly in Benton, Lane, Polk, and Yamhill Counties, Oregon; 585 ac 
(237 ha) for L. sulphureus ssp. kincaidii in Benton, Lane, Polk, and 
Yamhill Counties, Oregon, and Lewis County, Washington; and 718 ac (291 
ha) for E. decumbens var. decumbens in Benton, Lane, Linn, Marion, and 
Polk Counties, Oregon, fall within the boundaries of the critical 
habitat designation.

DATES: This rule becomes effective on November 30, 2006.

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 U.S. Fish and Wildlife Service, Portland Fish and 
Wildlife Office, 2600 SE 98th Ave., Suite 100, Portland, OR 97266 
(telephone (503) 231-6179). The final rule, economic analysis, and map 
will also be available via the Internet at  https://www.fws.gov/
oregonfwo/Species/ESA-Actions/WillValleyPage.asp.

FOR FURTHER INFORMATION CONTACT: Kemper McMaster, Field Supervisor, 
U.S. Fish and Wildlife Service, Portland Fish and Wildlife Office, 2600 
SE 98th Ave., Suite 100, Portland, OR 97266 (telephone 503/231-6179; 
facsimile 503/231-6195).

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 critical habitat 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 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.
    As of September 22, 2006, 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 
1,311 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 designating 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

[[Page 63863]]

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 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

    In this rule, it is our intent to discuss only those topics 
directly relevant to the designation of critical habitat. For more 
information on the Fender's blue butterfly, Lupinus sulphureus ssp. 
Kincaidii, and Erigeron decumbens var. decumbens, refer to the final 
listing rule published in the Federal Register on January 25, 2000 (65 
FR 3875), or the proposed critical habitat rule published in the 
Federal Register on November 2, 2005 (70 FR 66492). Provided below is a 
general overview of the habitat requirements of Fender's blue 
butterfly, L. sulphureus ssp. Kincaidii, and E. decumbens var. 
decumbens.
    These species occur in wet prairie, upland prairie, and oak savanna 
habitats (collectively referred to as prairie habitat) that were once 
more widely distributed across western Oregon and southwestern 
Washington (Clark 1996, p. 8; Schultz et al. 2003, p. 69; Wilson et al. 
2003, p. 79). Prairie habitat has been reduced to less than one percent 
of pre-settlement distribution (Hammond and Wilson 1993, p. 2), making 
the ecosystem among the most endangered in the United States (Noss et 
al. 1995, p. 67). The decline in these habitats and their increased 
fragmentation have led to the decline of many native prairie plants and 
animals (Wilson 1998a, p. 2 and 1998b, p. 1). Fender's blue butterfly, 
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var. 
decumbens are among the rarest of the native species dependent on this 
unique habitat type and are known to co-occur within the boundaries of 
some remnant prairie locations.
    Various descriptions of prairie habitats have been published over 
the years and they usually vary in their division of communities and 
the dominant species present in each community (Jackson 1996, p. 2). We 
describe two habitat types, wet prairie and upland prairie, and define 
these by describing the plant communities reported co-occurring with 
the Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens.
    Upland prairie (including oak savanna) habitat occurs on well-
drained soils and is characterized by a short grass stature dominated 
by native bunch grasses and forbs (Wilson 1998a, p. 2; Wilson et al. 
2003, p. 79). Wet prairies are seasonally flooded ecosystems occurring 
on both poorly drained soil types and well-drained soils where shallow 
bedrock impedes drainage (Wilson 1998b, p. 1). Although wet prairie 
soils dry out during typical summer droughts, they have soils with 
hydric characteristics (i.e., soils formed under conditions of water 
saturation, flooding, or ponding long enough to develop anaerobic 
conditions) that support facultative or obligate wetland plant species 
(Wilson 1998b, p. 1).

Fender's blue butterfly and Lupinus sulphureus ssp. kincaidii

    The Fender's blue butterfly and Lupinus sulphureus ssp. kincaidii 
populations primarily occur on early seral (one stage in a sequential 
progression) upland prairie habitat with plant species including but 
not limited to: Achillea millefolium (common yarrow), Aster hallii 
(Hall's aster), Brodiaea congesta (Brodiaea), Bromus carinatus 
(California brome), Calochortus tolmiei (Cat's ear, Tolmie star-tulip), 
Carex tumulicola (splitawn sedge), Cirsium callilepis (fewleaf 
thistle), Danthonia californica (California oatgrass), Elymus glaucus 
(blue wildrye), Eriophyllum lanatum (common woolly sunflower, Oregon 
sunshine), Festuca californica (California fescue), Festuca roemeri 
(Roemer's fescue), Fragaria virginiana (Virginia strawberry), Geranium 
oreganum (Oregon geranium), Grindelia integrifolia (gumweed), Lomatium 
nudicaule (barestemmed desert parsley), Luzula campestris (wood rush), 
Prunella vulgaris (common selfheal), Sanicula crassicaulis (Pacific 
blacksnakeroot), Sidalcea virgata (rose checkermallow and dwarf 
checkerbloom), Silene hookeri (Hooker's silene), and Wyethia 
angustifolia (California compassplant) (Wilson 1998b, pp. 2-7; Kaye in 
litt.a, p. 2). Many of these associated species are considered 
indicators for upland prairie habitat (Schultz et al. 2003, p. 65; 
Wilson et al. 2003, p. 79).
    The Fender's blue butterfly habitat requirements include a larval 
host plant (i.e., Lupinus sulphureus ssp. kincaidii, L. arbustus 
(spurred lupine), and L. albicaulis (sickle-keeled lupine), native 
forbs for adult nectar sources, and native grasses that comprise short-
grass upland prairies (Wilson et al. 1997, p. 3; Schultz 2001, p. 
1008). These requirements are considered essential to the survival and 
conservation of these species (Wilson et al. 2003, p. 79). Lupinus 
sulphureus ssp. kincaidii is a primary larval host plant for the 
Fender's blue butterfly and is utilized by the butterfly for 
oviposition (laying eggs) and as a larval food source (Schultz et al. 
2003, p. 64; Wilson et al. 2003, pp. 73, 77). Adult Fender's blue 
butterflies use nectar sources in wet prairie habitat that occur near 
their host plant habitat. The Fender's blue butterfly is more vigorous 
in full sun conditions (Schultz et al. 2003, p. 68), which are 
important for adult butterflies to seek out nectar, search for a mate, 
oviposit, and disperse (Severns in prep. Manuscript, pp. 1, 3, 13-19). 
The Fender's blue butterfly appears to have limited dispersal ability, 
with most dispersing adults likely remaining within approximately 1.2 
miles (mi) (2 kilometers (km)) of their natal lupine patch (Schultz 
1998, p. 284). The maximum dispersal distance reported for the Fender's 
blue butterfly is 2 mi (3.2 km) (Severns 2004, p. 4).
    Lupinus sulphureus ssp. kincaidii habitat is generally described as 
prairie or open areas, and this species is typically unable to survive 
prolonged periods of shade (Wilson et al. 2003, p. 79). However, 
populations of L. sulphureus ssp. kincaidii occurring in Douglas 
County, Oregon, have been documented as occurring in atypical habitat 
for the species (Barnes 2004, p. 102). The Douglas County populations 
are in wooded areas with canopy cover ranging from 50 to 80 percent 
(Barnes 2004, p. 102) and dominated by species such as: Arbutus 
menziesii (Pacific madrone), Arctostaphylos columbiana (hairy 
manzanita), Calocedrus decurrens (incense cedar), Calochortus tolmiei 
(Cat's ear, Tolmie star-tulip), Canadanthus modestus (giant mountain 
aster), Ceanothus cuneatusa (buckbrush), Cerastium arvense (field 
chickweed), Cynosurus echinatus (bristly dogstail grass), Daucus carota 
(Queen Anne's Lace, wild carrot), Dichelostemma capitatum (bluedicks), 
Festuca californica (California fescue),

[[Page 63864]]

Festuca roemeri (Roemer's fescue), Fragaria vesca (woodland 
strawberry), Hieracium albiflorum (white hawkweed), Holodiscus discolor 
(oceanspray), Lathyrus polyphyllus (leafy pea), Lonicera hispidula 
(pink honeysuckle), Pinus ponderosa (ponderosa pine), Pseudotsuga 
menziesii (Douglas fir, Doug fir), Quercus kelloggii (California black 
oak), Rubus ursinus (California blackberry), Sanicula crassicaulis 
(Pacific blacksnakeroot), Symphoricarpos albus (snowberry), Torilis 
arvensis (spreading hedgeparsley), Toxicodendron diversilobum (poison 
oak), Vicia americana (American vetch), and Whipplea modesta (common 
whipplea) (Friedman in litt.a, p.1; Friedman in litt.b, p.1).
    Lupinus sulphureus ssp. kincaidii is a low-growing herbaceous 
perennial with large individual plant clones (Wilson et al. 2003, p. 
73). Excavation efforts indicate that above-ground vegetation 33 feet 
(10 m) or more apart can be interconnected by below-ground stems. The 
species is long-lived with lateral growth rates, suggesting that some 
plants could be several decades old (Wilson et al. 2003, p. 73). 
Lupinus sulphureus ssp. kincaidii clones are scattered in patches 
across the prairie habitat and intermixed with several other prairie-
associated plant species. Lupinus sulphureus ssp. kincaidii is a 
primary larval host plant for the Fender's blue butterfly and is 
utilized by the butterfly for oviposition (laying eggs) and as a larval 
food source (Schultz et al. 2003, p. 64; Wilson et al. 2003, pp. 73, 
77).

Erigeron decumbens var. decumbens

    Erigeron decumbens var. decumbens grows in wet prairies occurring 
on relatively impermeable soils. Wet prairie habitat supporting 
Erigeron decumbens var. decumbens is typically defined by the plant 
species co-occurring with the plant including, but not limited to: 
Anthoxanthum odoratum (sweet vernalgrass), Aster curtus (white-top 
aster), Aster hallii (Hall's aster), Brodiaea coronaria (crown 
brodiaea), Camassia quamash (common camas), Danthonia californica 
(California oatgrass), Deschampsia caespitosa (tufted hairgrass), 
Festuca arundinacea (tall fescue), Grindelia integrifolia (gumweed), 
Holcus lanatus (velvet grass), Horkelia congesta (Sierra horkelia), 
Saxifraga integrifolia (bog saxifrage), Lomatium bradshawii (Bradshaw's 
lomatium), Luzula campestris (wood rush), Panicum capillare 
(witchgrass), Potentilla gracilis (slender cinquefoil), Prunella 
vulgaris (common selfheal) and Sisyrinchium angustifolium (narrowleaf 
blue-eyed grass) (Clark et al. 1993, p. 18; Clark et al. 1995a, p. 1, 
1995b, p. 1; Jackson 1996, p. 14; Clark 2000, p. 3). Erigeron decumbens 
var. decumbens also grows in upland prairies as previously described 
(Clark et al. 1993, p. 18; Clark et al. 1995a, p. 1; Jackson 1996, p. 
18; Clark 2000, p. 3).
    Erigeron decumbens var. decumbens typically occurs where woody 
cover is nearly absent and where herbaceous vegetation cover is low in 
stature relative to the surrounding areas (Clark et al. 1993, pp. 21, 
22). Erigeron decumbens var. decumbens is a low-growing (6-24 inches 
(in) (15-60 centimeters (cm))) herbaceous perennial occurring in clumps 
of genetically identical ramets (i.e., a vegetatively reproduced copy 
of the parent plant) that are typically patchy in distribution across 
the prairie habitat (Clark et al. 1993, p. 23). These plants are 
intermixed with several associated species which are considered 
indicator species for the prairie habitat (Clark et al. 1993, p. 18).
    Fender's blue butterfly, Lupinus sulphureus ssp. Kincaidii, and 
Erigeron decumbens var. decumbens populations historically functioned 
as metapopulations in the more widespread prairie habitat (Jackson 
1996, p. 20; Liston et al. 1995, p. 318; Schultz 1998, p. 285; and 
Severns 2003a, p. 221). Currently, most populations of these species 
are isolated from neighboring populations, and interactions between 
populations are thought to be rare events (Jackson 1996, p. 6; Schultz 
1998, p. 286; Severns 2003a, p. 222). Recovery will require 
reestablishing connected populations by restoring habitat networks 
(Kaye, in litt.b, 2005, p. 1; Schultz et al. 2003, p. 61; Severns 
2003a, p. 227). In this document, we define ``habitat networks'' as 
prairie habitat that can support connected populations and function as 
metapopulations.

Previous Federal Actions

    On April 23, 2003, a complaint was filed against the Service (CV 03 
513 JE (D. Or.)) for failure to designate critical habitat for the 
Fender's blue butterfly, Lupinus sulphureus ssp. Kincaidii, and 
Erigeron decumbens var. decumbens. In December 2003, a settlement 
agreement resulted in a schedule for the Service to submit a proposed 
critical habitat rule to the Federal Register by October 15, 2005, and 
a final rule by October 15, 2006.
    On November 2, 2005, a proposed rule to designate critical habitat 
for the Fender's blue butterfly, Lupinus sulphureus ssp. Kincaidii, and 
Erigeron decumbens var. decumbens was published in the Federal Register 
(70 FR 66492). The initial comment period closed on January 3, 2006. On 
April 21, 2006, we published a notice in the Federal Register 
announcing the reopening of the comment period and the public hearing 
for the proposed critical habitat for the Fender's blue butterfly, 
Lupinus sulphureus ssp. Kincaidii, and Erigeron decumbens var. 
decumbens (71 FR 20636). On June 15, 2006, we published a notice in the 
Federal Register announcing the availability of the draft economic 
analysis of the proposed designation of critical habitat for these 
species and a reopening of the public comment period (71 FR 34566). The 
third public comment period closed on June 30, 2006. For more 
information on previous Federal actions concerning Fender's blue 
butterfly, L. sulphureus ssp. Kincaidii, and E. decumbens var. 
decumbens refer to the November 2, 2005, proposed rule (70 FR 66492).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Fender's blue butterfly, Lupinus 
sulphureus ssp. Kincaidii, and Erigeron decumbens var. decumbens in the 
proposed rule published on November 2, 2005 (70 FR 66492). We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. In addition, we held a public hearing on May 9, 
2006, in Corvallis, Oregon. No comments were received during the public 
hearing.
    During the comment period that opened on November 2, 2005, and 
closed on January 3, 2006, we received 72 comments directly addressing 
the proposed critical habitat designation: 5 from peer reviewers, 3 
from Federal agencies, and 64 from organizations or individuals. During 
the comment period that opened on April 21, 2006, and closed on May 19, 
2006, we received an additional 11 comments directly addressing the 
proposed critical habitat designation: one from a peer reviewer, one 
from a Federal agency, and nine from organizations or individuals. 
During the comment period that opened on June 15, 2006, and closed on 
June 30, 2006, we received 12 comments directly addressing the proposed 
critical habitat designation and the draft economic analysis. Of these 
latter comments, one was from a peer reviewer and 11 were from 
organizations or individuals. The received comments were grouped into

[[Page 63865]]

six general categories specifically relating to the proposed critical 
habitat designation or draft economic analysis for Fender's blue 
butterfly, L. sulphureus ssp. Kincaidii, and E. decumbens var. 
decumbens. The comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from eight knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occur, and 
conservation biology principles. Five of the eight peer reviewers 
responded. The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final critical habitat rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the Fender's blue butterfly, Lupinus sulphureus ssp. 
Kincaidii, and Erigeron decumbens var. decumbens. Peer review comments 
are addressed in the following summary and incorporated into the final 
rule as appropriate.

Peer Review Comments Related to Life History, Habitat Characteristics, 
and Ecological Considerations

    1. Comment: During the 2005 field season, one peer reviewer 
reported finding a Fender's blue butterfly population that has become 
successfully established at the Deer Creek County Park in Yamhill 
County within a large patch of Lupinus sulphureus ssp. Kincaidii, and 
has been growing and expanding rapidly over the past few years. The 
peer reviewer recommended adding this site to the critical habitat 
designation in association with the Gopher Valley metapopulation since 
the site is only 1 mile (1.6 kilometers) south of units FBB-2 and KL-3.
    Our Response: At the time we proposed critical habitat, the best 
scientific information available identified 0.2 acre (ac) (0.1 hectare 
(ha)) of Lupinus sulphureus ssp. kincaidii habitat occuring in Deer 
Creek County Park. We did not have information describing available 
surrounding prairie habitat; therefore, it did not meet our criteria at 
the time of our proposal. We have been unable to verify that these 
sites meet our criteria.
    2. Comment: One peer reviewer recommended deleting the critical 
habitat unit on Monmouth Highway (FBB-6B) within unit FBB-6 in Polk 
County. This peer reviewer stated that this Fender's blue butterfly 
population is located on a disturbed agricultural field, which has been 
replanted with young conifer trees. The reviewer believes that 
eventually the trees will out-compete the existing lupine species and 
eliminate the butterfly from the site.
    Our Response: FBB-6B meets our criteria for inclusion because it is 
the largest known population of Fender's blue butterfly in this portion 
of the species' range and contains primary constituent elements 
essential to the conservation of the species. We do not know the extent 
of tree planting on the site or how much habitat may be affected; 
however the site does provide PCEs despite the fact it has been planted 
to some degree. Other sites that were planted with young conifers for 
commercial Christmas tree farms in the early 1990's still support 
butterflies with recently reported increasing populations. Periodic 
Christmas tree harvest may act as a disturbance that opens the habitat 
and allows the lupine to spread back into these areas with butterfly 
populations increasing in response to the additional available habitat. 
These are disturbance dependent species. Since butterfly numbers at 
this site have been estimated at substantially higher numbers from 2003 
to 2005, we feel that this site should remain in the designation. 
During the development of the proposed rule, another peer reviewer 
stated that this site could serve as an important stepping-stone 
habitat (see Schultz 1998, p. 291) and enhance the genetic exchange 
among Fender's blue butterfly populations at other sites. Additionally, 
FBB-6A provides Lupinus sulphureus ssp. kincaidii habitat within the 
butterfly's average dispersal distance, which may serve as a stepping 
stone between FBB-6 and FBB-5. This unit has the features that are 
essential to the conservation of the butterfly and is, therefore, 
included in this final designation.
    3. Comment: One peer reviewer recommended that the maximum 
dispersal distance for Fender's blue butterfly be changed to 1.9 mi 
(3.0 km) based on an observed colonization event.
    Our Response: We are using a Fender's blue butterfly average adult 
lifetime movement distance of 1.2 mi (2 km) based on a behavioral study 
by Schultz (1998, pp. 287-290). We acknowledge that the Fender's blue 
butterfly is capable of moving greater distances, but data with which 
to determine how frequently such movements may occur is currently 
lacking. Therefore, based on the above study, we retained the use of 
the 1.2 mi (2 km) distance as a more typical and conservative estimate 
of adult butterfly movement.
    4. Comment: One peer reviewer wanted us to clarify actions that 
would further isolate populations of Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens as 
discussed under Section 7 Consultation in the proposed rule. The peer 
reviewer stated that current habitats for these species are essentially 
isolated and data for the two plants species are unavailable to 
determine how the listed actions would cause further isolation, 
especially associated with pollinator travel and seed dispersal 
distances.
    Our Response: In the proposed rule, we stated that if critical 
habitat units for the plants are located more than 5 mi (8 km) apart, 
or if critical habitat units for Fender's blue butterfly are located 
more than 1.2 mi (2 km) apart, then actions in the areas separating the 
units would not be considered to further isolate the species.
    5. Comment: One peer reviewer stated that we should include the 
pollinators for Erigeron decumbens var. decumbens as a primary 
constituent element similar to what we did for Lupinus sulphureus ssp. 
kincaidii.
    Our Response: There is very little data that has been published or 
reported in the literature on this species, including requirements for 
reproduction. Although insect pollination has been documented as 
facilitating sexual reproduction, it has not been reported as essential 
to the reproduction of Erigeron decumbens var. decumbens. Therefore, 
because we were not able to determine the specific pollinator essential 
to the conservation of the species, we did not include the presence of 
insect outcrossing pollinators as a primary constituent element for the 
species.

Comments From the Public Related to Life History, Habitat 
Characteristics, and Ecological Considerations

    6. Comment: An increase in urbanization within the West Eugene area 
could create barriers to dispersal for the Fender's blue butterfly 
between core and satellite areas.
    Our Response: We agree that increased urbanization may have direct 
and indirect effects (e.g., mortality from vehicle collisions and 
increased habitat loss) on Fender's blue butterfly dispersal, but 
specific scientific studies addressing the effects of urbanization on 
Fender's blue butterfly dispersal are not available. We will evaluate 
potential

[[Page 63866]]

future impacts to the designated critical habitat on specific projects 
through the section 7 consultation process.
    7. Comment: A number of commenters stated that the effects of 
climate variability, natural flooding, and water management are not 
taken into consideration in the designation. Specifically, these events 
may result in hydrologic changes; accordingly, the critical habitat 
designation should cover a broader range of topographic elevation. 
Specific recommendations were made to include additional habitat for 
Erigeron decumbens var. decumbens to address a variety of concerns, 
such as elevation, topography, and slope.
    Our Response: While we agree that climate variability could play a 
role in future distributions of the Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens, we 
are not aware of scientific information that specifically addresses the 
effects of these events on these species or how to modify the 
designation to address these potential threats. We worked with local 
land managers and scientific experts to identify the extent of prairie 
habitat that supported E. decumbens var. decumbens populations, and 
that also met our criteria for designation.
    8. Comment: Forest succession between core populations of Fender's 
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron 
decumbens var. decumbens could create smaller genetically isolated 
populations that would put them at a greater risk of local extirpation 
from the lack of genetic diversity. To address this concern, the 
commenter recommended designating lupine patches for butterfly core 
areas with recovery management criteria to reduce intervening forest or 
ensure open prairie corridors are available through the forest. 
Additionally, the commenter was concerned about the uncertainty of lake 
bays as barriers to butterfly dispersal.
    Our Response: Gene flow among populations of the Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens could be partially or completely restricted depending on 
the degree of intervening forest and the size of a given lake bay. The 
commenter cited a personal communication with peer reviewer Paul 
Severns, documenting Severns' observation of Fender's blue butterflies 
flying over tall oak trees, which further shows the uncertainty of this 
potential risk. To our knowledge, there are no currently available 
scientific studies that have been completed for these species to 
further our understanding of this potential gene flow issue. For the 
Fender's blue butterfly, McIntire et al. (2006, p. 27) states that they 
do not know butterfly response to barriers such as woodlands, light 
industrial development, and roads. Therefore, they do not know the 
effects these elements may have on dispersal. McIntire et al. (2006, p. 
27) notes that if elements such as woodlands or topography change 
butterfly movement or mortality, then connectivity would likely be 
affected. For these reasons, researchers are currently undertaking 
field studies to estimate these potential effects. However, as these 
studies are not yet complete, we cannot rely on them for this 
designation.
    9. Comment: The proposed critical habitat stated that land within 
the Willamette Valley was ``subjected to fire suppression,'' which 
assumes that naturally occurring fires routinely burned in the valley 
and were suppressed by humans. To the contrary, the commenter believes 
that Native Americans converted the valley to agricultural lands when 
they began routinely burning to enhance the growth of harvestable food 
crops. This commenter stated that without human intervention, Fender's 
blue butterfly habitat would not have existed to any great extent and 
wanted to know what scientific evidence is available to prove that the 
butterfly was once more widely distributed in the Willamette Valley.
    Our Response: Based on information in the final listing rule for 
the Fender's blue butterfly (65 FR 3875), the precise historic 
distribution of the butterfly is unknown due to limited information 
collected on this species prior to its description in 1931. However, 
early records indicate that before European settlement, the landscape 
of the Willamette Valley was largely an open expanse of prairie and 
savannah habitat (Altman et al. 2001, p. 262; Franklin and Dyrness 
1973, p. 119). Given the greater amount of upland prairie patches, we 
assumed that the butterfly and Lupinus sulphureus ssp. kincaidii were 
also more widely distributed (Schultz 1998, p. 290-291; Wilson et al. 
2003, p. 79). However, as stated previously, we do not know the 
historic distribution of these species, and it is possible that 
distribution was always patchy. This assumption is independent of 
whether prairie habitats were created or maintained under natural or 
human-induced conditions.

Comments From the Public Related to Critical Habitat, Primary 
Constituent Elements, and Methodology

    10. Comment: Several commenters recommended that we designate 
multiple stepping-stone pathways for Fender's blue butterflies to 
ensure connectivity among critical habitat units and that we designate 
additional large core areas to ensure that some of the areas achieve 
stable butterfly populations. Additionally, commenters were concerned 
about the habitat condition of specific units designated in West 
Eugene. One commenter suggested specific sites for inclusion in West 
Eugene to address the following concerns: Stepping-stone redundancy, 
climatic variability, connectivity, elevation diversity, and population 
expansion. The commenters also suggested using a rule set for selecting 
habitats based on fine scale sub-watersheds.
    Our Response: We used the best available scientific information and 
included occupied Fender's blue butterfly habitat identified as having 
the features that are essential for re-establishing a viable, connected 
metapopulation in the Eugene, Oregon area (McIntire et al. 2006, in 
review, pp. 20-22). Although we recognize that additional habitat may 
further contribute to recovery, our best available information 
(McIntire et al. 2006, in review, p. 20-22) does not identify the 
commenter's suggested areas as appropriate for designation as critical 
habitat for the Fender's blue butterfly. Outside of Eugene, Oregon, the 
best available information is not sufficient to identify stepping-stone 
pathways, thus, none were designated. Additional Lupinus sulphureus 
ssp. kincaidii habitat will likely be needed for recovery; however, we 
are unaware of any additional lupine patches that meet the minimum 
patch size within the pollinator distance criteria. The best available 
scientific information (Gisler et al., in litt., 2005, pp. 4, 5) 
defines criteria without regard to sub-watershed.
    11. Comment: Several commenters stated that designated Lupinus 
sulphureus ssp. kincaidii patches should be closer together (1.2 mi (2 
km)) to allow for more frequent cross-pollination between patches by 
native pollinators.
    Our Response: We included occupied Lupinus sulphureus ssp. 
kincaidii sites that are within 5 mi (8 km) (based on the maximum 
flight distance of the non-native honeybee) of a lupine core area and 
that met our minimum patch size of 0.25 ac (0.1 ha). By using the 5 mi 
(8 km) distance, we included lupine patches that are within 1.2 mi (2 
km) of each other.
    12. Comment: We failed to designate sufficient critical habitat 
that would provide Lupinus sulphureus ssp.

[[Page 63867]]

kincaidii the ability to colonize other areas, especially in response 
to threats from predation, parasites, and invasive plant species. One 
of the commenters made specific recommendations for the inclusion of 
unoccupied and occupied L. sulphureus ssp. kincaidii patches in the 
critical habitat designation to allow for increased lupine succession, 
regeneration, population stabilization, topographic relief, and 
improved pollination.
    Our Response: We included the prairie habitat occupied by Lupinus 
sulphureus ssp. kincaidii that met our selection criteria and believe 
that we have provided for the concerns listed in the comment. We agree 
that additional areas not included in this designation that did not 
meet our selection criteria for critical habitat may also be needed to 
recover the species. However, information currently available does not 
suggest that these specific areas have the features that are essential 
to the conservation of the species.
    13. Comment: No apparent biological reason exists for gaps between 
critical habitat units in the narrow waterway corridors for the 
Fender's blue butterfly in Eugene, Oregon. This commenter and eight 
others made recommendations for the inclusion of additional Fender's 
blue butterfly areas in the West Eugene area to address this issue and 
provide for species recovery.
    Our Response: We did not include waterways between critical habitat 
units because the distance between lupine patches supporting Fender's 
blue butterflies exceeded the 1.2-m (2 km) average adult butterfly 
movement distance (Schultz 1998, pp. 288-290). Each unit includes all 
populations that are believed to be connected and functioning as a 
larger metapopulation given the current landscape. Schultz (1998, p. 
291) documented that stepping-stones would be more beneficial to the 
butterfly than corridors, and McIntire et al. (2006, in review, pp. 20-
22) identified necessary butterfly stepping-stone habitat in Eugene, 
Oregon. Refer to the Summary of Changes from Proposed Rule section in 
this rule for more information on changes to the critical habitat 
designation for the butterfly.
    14. Comment: The inclusion of an additional habitat patch to unit 
KL-12B would allow for a more stable population of smaller Lupinus 
sulphureus ssp. kincaidii patches along the Amazon Channel. The U.S. 
Army Corps of Engineers (Corps) recommended including specific occupied 
sites they manage for L. sulphureus ssp. kincaidii.
    Our Response: We have not had enough time to evaluate all of the 
information regarding potential critical habitat sites that we received 
during the public comment periods to determine if these sites meet our 
criteria.
    15. Comment: The Eugene District of the Bureau of Land Managemnt 
(BLM) recommended including two newly discovered (June 2005) sites for 
Fender's blue butterfly and Lupinus sulphureus ssp. kincaidii within 
their District's upper Willamette resource area (Oak Basin).
    Our Response: We appreciate the BLMs' recognition of the value of 
these sites; however, they did not meet our criteria for selection.
    16. Comment: Several commenters stated that the proposed critical 
habitat designation for the Fender's blue butterfly or Lupinus 
sulphureus ssp. kincaidii included areas that overrepresent the extent 
of the habitat for these species.
    Our Response: We revised the critical habitat boundaries, as 
appropriate, based on information received during the comment period. 
Prairie habitat that contains one or more of the Fender's blue 
butterfly primary constituent elements within 1.2 mi (2 km) of a 
butterfly population is considered occupied by the butterfly. 
Contiguous prairie habitat surrounding known populations of L. 
sulphureus ssp. kincaidii and E. decumbens var. decumbens is also 
considered occupied if it contained one or more of the species-specific 
primary constituent elements (see the Primary Constituent Elements and 
Criteria Used To Identify Critical Habitat sections).
    17. Comment: We erroneously excluded areas of Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens, including historic sites that are no longer extant, 
from the critical habitat designation. Additionally, the Army Corp of 
Engineers recommended including potential habitat sites they manage for 
L. sulphureus ssp. kincaidii and E. decumbens var. decumbens.
    Our Response: We recognize that areas outside of this designation 
will contribute to the recovery of Lupinus sulphureus ssp. kincaidii 
and Erigeron decumbens var. decumbens and appreciate the Army Corp of 
Engineers' on-going efforts to manage for the species. However, not all 
sites that historically supported these species are considered to have 
the features that are essential to the conservation of the species. 
Some sites did not meet our criteria to be included in the final 
designation.
    18. Comment: The Roseburg District of the BLM stated that the 
atypical habitat conditions where Lupinus sulphureus ssp. kincaidii 
occurs in Douglas County is described inconsistently with regard to the 
shade tolerance of the species, and that the first lupine primary 
constituent element does not apply in Douglas County.
    Our Response: We agree, and have clarified the information in the 
Background, Primary Constituent Elements, and Criteria Used To Identify 
Critical Habitat sections of this rule to address BLM's concerns 
associated with the atypical habitat conditions for Lupinus sulphureus 
ssp. kincaidii in Douglas County. Individual critical habitat units for 
L. sulphureus ssp. kincaidii do not have to contain all of the species-
specific primary constituent elements, but must contain at least one of 
the primary constituent elements to support a portion of the species' 
life history. The second primary constituent element for L. sulphureus 
ssp. kincaidii is associated with the critical habitat designation in 
Douglas County. We proposed critical habitat in Douglas County using 
the same criteria as in other areas, with the addition of atypical 
habitat conditions found in the county. Refer to the Primary 
Constituent Elements and Criteria Used To Identify Critical Habitat 
sections in this rule for more information on how we defined the 
critical habitat criteria for L. sulphureus ssp. kincaidii.
    19. Comment: The proposed critical habitat rule, including primary 
constituent elements, is too narrowly focused to protect the habitat 
essential for the long-term survival and recovery of the Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens. In addition, the designation should include low quality 
areas.
    Our Response: Most populations of the Fender's blue butterfly, 
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var. 
decumbens have not been studied adequately to determine how best to 
restore functioning metapopulations in the highly fragmented prairie 
habitats within the Willamette Valley. We used the best available 
scientific information to determine primary constituent elements and 
critical habitat criteria for each species. We recognize that critical 
habitat designations, based on the species' primary constituent 
elements and other criteria, may not include all areas that may be 
necessary for species recovery. Future research and recovery planning 
will likely identify other areas that will aid in recovery. We only 
included areas of sufficient quality that

[[Page 63868]]

are able to sustain the species and have the features that are 
essential to the conservation of the species. (see the Criteria Used To 
Identify Critical Habitat section).

Comments From the Public Related to the Act and Implementing 
Regulations

    20. Comment: The City of Eugene's West Eugene Wetlands Plan and 
Bureau of Land Management's West Eugene Wetlands Restoration Schedule 
do not include the level of special management considerations and 
protections provided under a critical habitat designation, and it would 
be inappropriate to exclude any area covered under these plans that 
would otherwise qualify as critical habitat.
    Our Response: We agree, while the City of Eugene's West Eugene 
Wetlands Plan and Bureau of Land Management's West Eugene Wetlands 
Restoration Schedule include general planning schedules for the area, 
they did not provide the specificity of management that we needed to 
evaluate under our section 4(b)(2) process. As these and other planning 
efforts progress, we will work with involved entities to address the 
conservation of the Fender's blue butterfly, Lupinus sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens. If we revise critical 
habitat in the future, we will revaluate the status of planning 
efforts.
    21. Comment: The Eugene District of the BLM requested that we 
consider (1) exempting all BLM-administered lands within the West 
Eugene Wetlands from the final critical habitat rule, or (2) exempting 
all actions under their 10-year schedule for restoration from further 
section 7 consultation on effects to critical habitat designations for 
the Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens.
    Our Response: Biological opinions resulting from a consultation are 
not in and of themselves a basis for exclusion. However, management 
plans that commit to specific appropriate management criteria, whether 
associated with a biological opinion or not, are considered for 
exclusion. We do not anticipate that further minimization measures on 
the West Eugene Wetlands Schedule Environmental Assessment (No. OR090-
EA-05-03) will be required due to this final rule.
    22. Comment: The Eugene District of the BLM stated that the 
development of a wetland education center is planned for the Danebo 
site. BLM and several other commenters believe that the positive 
effects of public education on the values and vulnerability of wetland 
species outweigh the benefits of designating critical habitat at this 
site.
    Our Response: We agree that public outreach and voluntary 
conservation on wetlands and associated species in West Eugene is 
important. However, we have not been provided any project documention 
associated with a potential education center and are unable to assess 
whether the area has conservation in place that is comparable to 
designation as critical habitat.
    23. Comment: Several commenters stated that they are willing to 
voluntarily manage the habitat on their property for the Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, or Erigeron decumbens 
var. decumbens, but do not want to be included in the critical habitat 
designation because of increased regulatory burdens. Some commenters 
specifically suggested not designating private agricultural lands, and 
requested a description of proper prairie habitat management to 
understand how it would affect agricultural operations.
    Our Response: We support and appreciate the efforts that are being 
made by organizations and individuals to conserve listed species on 
their lands. When undertaking the process of designating critical 
habitat for a species, we evaluate lands defined by physical and 
biological features essential to the conservation of the species 
without regard to land ownership or land use. We will gladly evaluate 
conservation plans and efforts to determine if areas can be excluded 
because conservation is in place. At the time of this rule, we did not 
have conservation plans or other documents that would allow us to 
assess the adequacy of conservation on these specific lands. For a 
general description of proper management of prairie habitat, refer to 
the Special Management Considerations or Protections section of this 
rule. The specifics of management can vary from site to site, and we 
offer technical assistance to landowners in establishing management 
plans for conserving species.
    24. Comment: Commenters disagree with our statement that ``the 
designation of statutory critical habitat provides little additional 
protection to most listed species.'' Commenters also note several court 
decisions that have invalidated this position, which violates 
Congressional intent and the plain language of the Endangered Species 
Act.
    Our Response: In most cases, conservation mechanisms provided 
through section 7 consultations, section 4 recovery planning process, 
section 9 protective prohibitions of unauthorized take, section 6 
funding to the States, section 10 incidental take permits, and 
cooperative programs with private and public landholders and tribal 
nations provide greater incentives and conservation benefits than 
designation of critical habitat.
    25. Comment: The City of Eugene identified several conservation 
accomplishments achieved through implementation of the West Eugene 
Wetlands Plan, including the outgrowth of the West Eugene Wetlands 
Partnership. The City provided suggestions for reducing the regulatory 
requirements associated with critical habitat designation on their 
property in order to increase their ability to effectively manage their 
lands.
    Our Response: We agree that the City of Eugene and its partners 
have significantly contributed to wetland conservation through the 
implementation of their wetland mitigation plan. The mitigation plan, 
however, is not specifically designed to protect and manage habitat for 
the Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens, and does not provide the specific 
management details needed to meet our section 4(b)(2) requirements.

Comments From States Related to Critical Habitat, Primary Constituent 
Elements, and Methodology

    26. Comment: The Washington Department of Natural Resources (WDNR) 
recommended that the Lewis County, Washington Lupinus sulphureus ssp. 
kincaidii parcels be excluded from the critical habitat designation. 
WDNR believes that the willingness of landowners to cooperate with the 
WDNR on species conservation may be negatively affected if landowners 
view the designation as a restriction on their ability to use the land.
    Our Response: We are excluding unit KL-1A from critical habitat 
designation based on the Lupinus sulphureus ssp. kincaidii conservation 
provisions documented in the landowner's management plan with U.S. 
Department of Agriculture Natural Resources Conservation Service. For 
more information, see the ``Application of Section 3(5)(A) and 4(a)(3) 
and Exclusions Under Section 4(b)(2) of the Act'' section of the rule. 
Unit KL-1B is not eligible for exclusion because there is no current 
management or conservation plan for the species or the features 
essential to its conservation at this site.

[[Page 63869]]

Comments Related to Economic Analysis; and Other Relevant Impacts

    27. Comment: We received a comment stating that the draft economic 
analysis does not consider the impact of critical habitat designation 
on the conservation market (i.e., the supply, demand, and exchange of 
habitat through decisions by buyers and sellers); that designating 
critical habitat removes both the option for development and the appeal 
of the area for potential conservation land. The commenter believes the 
draft economic analysis only quantifies the former cost, and not the 
latter.
    Our Response: If landowners forgo the development of their land to 
conserve the habitat, their value for conservation is equal to or 
greater than the value of the development opportunity. The draft 
economic analysis measured this opportunity cost. The cost of acquiring 
conservation easements is captured in Section 4.0, which includes 
estimates of the cost of land use restrictions imposed on landowners by 
conservation efforts associated with the species. The lost land value 
(i.e., growth premium and option value) calculated in Section 4.0 
represents the underlying value of conservation easements that could be 
purchased in order to remove the development opportunity from the land 
and to protect the habitat. This same concept applies if the land is 
sold for conservation purposes (presumably at some market price). The 
market price for conservation would be set by the highest valued use 
for the land. The extent that critical habitat designation reduces the 
appeal of an area for potential conservation land, and results in a 
reduction in land value beyond the option for development measured by 
the draft economic analysis, is understated in the draft economic 
analysis. However, no evidence was provided indicating that critical 
habitat designation makes land less attractive for conservation.
    28. Comment: We should include the value of ecosystems in analyzing 
economic issues associated with the designation of critical habitat 
designations.
    Our Response: We recognize that the various functions of an 
ecosystem have value, but we are unable to meaningfully place an 
economic value on the biological attributes that function to make a 
viable ecosystem. The benefits of critical habitat are best expressed 
in biological terms, e.g., the conservation benefit provided to a 
species, which can then be weighed against the expected economic 
impacts of the rulemaking. The purpose of a critical habitat economic 
analysis is to assist the Secretary in deciding whether the benefits of 
exclusion outweigh the benefits of inclusion, and if areas should be 
excluded under section 4(b)(2) of the Act. We may not be able to 
quantitatively account for the value of ecosystems in analyzing 
economic issues related to the designation of critical habitat, but we 
have done so qualitatively in a manner that supports the Secretary's 
exclusion analysis through the 4(b)(2) process.
    29. Comment: The economic analysis can not reasonably weigh the 
biological benefits of critical habitat designation without weighing 
its biological costs, such as habitat losses brought on as a result of 
the landowners' beliefs that they have disincentives to maintain the 
habitat. The economic analysis dismisses these biological costs as 
rare, but the commenter believes they are potentially substantial.
    Our Response: In the proposed rule and draft economic analysis, we 
indicated that we did not expect the designation of critical habitat to 
provide significant additional regulatory or economic burdens or 
restrictions beyond those afforded the species pursuant to the Act. 
This assertion is based on the regulatory protections afforded to 
Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens as a result of their existing listed 
status, and the protections that status affords. Since all the lands 
designated as critical habitat are already occupied by one or more of 
species, there is little additional regulatory burden placed on private 
landowners.
    30. Comment: Other commenters stated the draft economic analysis 
does not assess the potential impacts to them as landowners if a 
vintner is discouraged from leasing or they are discouraged from 
developing a vineyard on their land in Polk County due to the critical 
habitat designation.
    Our Response: As described in Section 4.1 of the draft economic 
analysis, if development of a parcel of agriculture land is restricted, 
it will be worth less than its value in the previously unrestricted 
state. This loss of value is a cost to the landowner; with the 
magnitude of loss depending on the type of land use restriction 
imposed. Specifically, if a piece of land is restricted from any kind 
of use, all of its economic value will be lost. Based on recent sales 
transactions obtained from Farm Credit Services of agriculture land 
similar to the proposed critical habitat in Polk County (i.e., 49 sales 
during the period 2000 to 2005), a complete loss of economic value to 
the commenter's land in Polk County could approach $8,000 per acre.
    However, as stated in Section 4.0 of the draft economic analysis, 
this analysis assumes the agriculture use of privately owned land will 
be unrestricted, and the draft economic analysis only presents economic 
impacts to the commenter's land related to the loss of development 
opportunity. In this case, the development impact measured in the draft 
economic analysis is nearly $6,600 per acre, 93 percent of their 
estimated land value. If a vineyard opportunity is restricted on 
private property in order to conserve species, there may be an 
additional loss in property value above that quantified in the draft 
economic analysis.
    31. Comment: The draft economic analysis does not calculate the 
lost farm and forest values associated with land development. 
Development destroys the farm or forest potential, eliminating a stream 
of economic benefits. This income and benefit stream is associated with 
land conservation and should be included among the economic benefits of 
critical habitat designation.
    Our Response: As described in Section 4.0 of the of the draft 
economic analysis, the existing agricultural use of the private land 
within the proposed critical habitat designation is assumed to remain 
unrestricted. While critical habitat designation may restrict 
development opportunities, depending on the existence of a Federal 
nexus, the ongoing use of the land for farming and forestry is expected 
to continue, is embedded in the land value, and is included in the 
economic analysis.
    32. Comment: The economic cost of recovering very small populations 
or populations that lack adequate habitat will be significantly greater 
than the cost of recovering populations with adequate habitat. 
Conserving rare plant species through the designation of critical 
habitat will also conserve other species. The effort to recover rare 
species should be considered when performing an economic analysis 
pursuant to the designation of critical habitat.
    Our Response: The economic costs of future recovery actions for 
species not addressed in the designation are independent of the 
economic impacts caused by the critical habitat designation, which is 
the focus of this economic analysis. It would be inappropriate for us 
to speculate on how an unknown suite of future recovery actions for 
other species might be made more or less costly as a result of the 
designation.
    33. Comment: The economic analysis exaggerated the economic costs 
of the

[[Page 63870]]

critical habitat designation through sheer speculation.
    Our Response: To ensure that all possible potential economic 
impacts were given adequate consideration, we contacted all appropriate 
State and Federal agencies, Tribes, county governments, elected 
officials, and other interested parties and invited them to comment. In 
addition, we invited public comment through the publication of notices 
in several local newspapers. We provided notification of the draft 
economic analysis through telephone calls, letters, and news releases 
faxed or mailed to affected elected officials, local jurisdictions, and 
interest groups. We also published the draft economic analysis and 
associated material on our internet site (https://www.fws.gov/oregonfwo/
Species/ESA-Actions/WillValleyPage.asp) following the draft's release 
on June 15, 2006. In addition to inviting public comment on the 
proposed designation, the later notices announced the dates and times 
of a public hearing on the proposed designation. Any economic impacts 
described in the draft economic analysis are a direct result of this 
extensive effort to collect data on the actual potential impacts. While 
some potential impacts are less likely than others, all impacts 
described result from following a consistent approach to gathering this 
information.
    34. Comment: The economic analysis illegally attributed costs 
associated with the species listing to costs of critical habitat 
designation.
    Our Response: The primary purpose of the economic analysis is to 
estimate the potential economic impacts associated with the designation 
of critical habitat for these three species. We interpret the Act to 
require that the economic analysis include all of the economic impacts 
associated with the conservation of the species, which may include some 
of the effects associated with listing. We note that the Act generally 
requires critical habitat to be designated at the time of listing, and 
if we had conducted an economic analysis at that time, the impacts 
associated with listing would not be readily distinguishable from those 
associated with critical habitat designation.
    35. Comment: The draft economic analysis first suggests that the 
costs arising from the potential loss of development opportunity on 
private lands in Benton County will be borne by the existing 
landowners, and then suggests that the acquisition of conservation 
easements under the Benton County Habitat Conservation Plan (HCP) will 
be borne by the County (i.e., public).
    Our Response: Private owners of critical habitat in Benton County 
could sell the development opportunity (i.e., conservation easement) on 
their land to the County if their land is a desired acquisition 
identified in the HCP. Under this scenario, the development impact 
would be to the public, because the development opportunity would be 
purchased from the private landowner with public funds. The conclusions 
in final economic analysis will be corrected.
    36. Comment: The economic costs in the draft economic analysis are 
overstated because the critical habitat designation is assumed to 
result in a complete loss of all development potential for all private 
lands within the critical habitat designation, even though there are no 
direct regulatory impacts on privately owned lands within the critical 
habitat designation. Further, the draft economic analysis does not 
consider wetland and rural zoning constraints that already limit 
development. Most of the privately owned critical habitat is located 
outside the urban growth boundaries (UGBs) and would not be developed 
within the 20 year scope of the draft economic analysis.
    Our Response: As described in Section 4.0, Federal regulations do 
not usually constrain development on private lands, and Federal 
endangered species laws generally do not apply to listed plants on 
private lands. However, much of the Lupinus sulphureus ssp. kincaidii 
and Erigeron decumbens var. decumbens habitat overlaps with Fender's 
blue butterfly habitat, is classified as wet prairie grassland habitat 
(E. decumbens var. decumbens), or oc