Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Laguna Mountains Skipper (Pyrgus ruralis lagunae, 74592-74615 [06-9498]
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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 (Pyrgus ruralis lagunae)
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are
designating critical habitat for the
Laguna Mountains skipper (Pyrgus
ruralis lagunae) pursuant to the
Endangered Species Act of 1973, as
amended (Act). In total, approximately
6,242 acres (ac) (2,525 hectares (ha)) fall
within the boundaries of the critical
habitat designation. The critical habitat
is located in San Diego County,
California, on lands under Federal
(3,516 ac (1,423 ha)), State (381 ac (154
ha)), and private (2,345 ac (948 ha))
ownership.
SUMMARY:
This rule becomes effective on
January 11, 2007.
ADDRESSES: Comments and materials
received, as well as supporting
documentation used in the preparation
of this final rule, will be available for
public inspection, by appointment,
during normal business hours, at the
Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Carlsbad, CA
92011 (telephone 760/431–9440). The
final rule, economic analysis, and maps
are available via the Internet at https://
www.fws.gov/carlsbad/.
FOR FURTHER INFORMATION CONTACT: Jim
Bartel, Field Supervisor, Carlsbad Fish
and Wildlife Office, telephone, 760/
431–9440; facsimile, 760/431–9624.
SUPPLEMENTARY INFORMATION:
DATES:
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Role of Critical Habitat in Actual
Practice of Administering and
Implementing the Act
Attention to and protection of habitat
is paramount to successful conservation
actions. The role that designation of
critical habitat plays in protecting
habitat of listed species, however, is
often misunderstood. As discussed in
more detail below in the discussion of
exclusions under ESA section 4(b)(2),
there are significant limitations on the
regulatory effect of designation under
ESA section 7(a)(2). In brief, (1)
designation provides additional
protection to habitat only where there is
a federal nexus; (2) the protection is
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relevant only when, in the absence of
designation, destruction or adverse
modification of the critical habitat
would in fact take place (in other words,
other statutory or regulatory protections,
policies, or other factors relevant to
agency decisionmaking would not
prevent the destruction or adverse
modification); and (3) designation of
critical habitat triggers the prohibition
of destruction or adverse modification
of that habitat, but it does not require
specific actions to restore or improve
habitat.
Currently, only 475 species or 36
percent of the 1,310 listed species in the
U.S. under the jurisdiction of the
Service have designated critical habitat.
We address the habitat needs of all
1,310 listed species through
conservation mechanisms such as
listing, section 7 consultations, the
section 4 recovery planning process, the
section 9 protective prohibitions of
unauthorized take, section 6 funding to
the States, the section 10 incidental take
permit process, and cooperative,
nonregulatory efforts with private
landowners. The Service believes that it
is these measures that may make the
difference between extinction and
survival for many species.
In considering exclusions of areas
originally proposed for designation, we
evaluated the benefits of designation in
light of Gifford Pinchot Task Force v.
United States Fish and Wildlife Service.
In that case, the Ninth Circuit
invalidated the Service’s regulation
defining ‘‘destruction or adverse
modification of critical habitat.’’ In
response, on December 9, 2004, the
Director issued guidance to be
considered in making section 7 adverse
modification determinations. This
critical habitat designation does not use
the invalidated regulation in our
consideration of the benefits of
including areas in this final designation.
The Service will carefully manage
future consultations that analyze
impacts to designated critical habitat,
particularly those that appear to be
resulting in an adverse modification
determination. Such consultations will
be reviewed by the Regional Office prior
to finalizing to ensure that an adequate
analysis has been conducted that is
informed by the Director’s guidance.
On the other hand, to the extent that
designation of critical habitat provides
protection, that protection can come at
significant social and economic cost. In
addition, the mere administrative
process of designation of critical habitat
is expensive, time-consuming, and
controversial. The current statutory
framework of critical habitat, combined
with past judicial interpretations of the
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statute, make critical habitat the subject
of excessive litigation. As a result,
critical habitat designations are driven
by litigation and courts rather than
biology, and made at a time and under
a timeframe that limits our ability to
obtain and evaluate the scientific and
other information required to make the
designation most meaningful.
In light of these circumstances, the
Service believes that additional agency
discretion would allow our focus to
return to those actions that provide the
greatest benefit to the species most in
need of protection.
Procedural and Resource Difficulties in
Designating Critical Habitat
We have been inundated with
lawsuits for our failure to designate
critical habitat, and we face a growing
number of lawsuits challenging critical
habitat determinations once they are
made. These lawsuits have subjected the
Service to an ever-increasing series of
court orders and court-approved
settlement agreements, compliance with
which now consumes nearly the entire
listing program budget. This leaves the
Service with little ability to prioritize its
activities to direct scarce listing
resources to the listing program actions
with the most biologically urgent
species conservation needs.
The consequence of the critical
habitat litigation activity is that limited
listing funds are used to defend active
lawsuits, to respond to Notices of Intent
(NOIs) to sue relative to critical habitat,
and to comply with the growing number
of adverse court orders. As a result,
listing petition responses, the Service’s
own proposals to list critically
imperiled species, and final listing
determinations on existing proposals are
all significantly delayed.
The accelerated schedules of courtordered designations have left the
Service with limited ability to provide
for public participation or to ensure a
defect-free rulemaking process before
making decisions on listing and critical
habitat proposals, due to the risks
associated with noncompliance with
judicially imposed deadlines. This in
turn fosters a second round of litigation
in which those who fear adverse
impacts from critical habitat
designations challenge those
designations. The cycle of litigation
appears endless, and is very expensive,
thus diverting resources from
conservation actions that may provide
relatively more benefit to imperiled
species.
The costs resulting from the
designation include legal costs, the cost
of preparation and publication of the
designation, the analysis of the
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economic effects and the cost of
requesting and responding to public
comment, and in some cases the costs
of compliance with the National
Environmental Policy Act (NEPA).
These costs, which are not required for
many other conservation actions,
directly reduce the funds available for
direct and tangible conservation actions.
Background
It is our intent in this document to
reiterate and discuss only those topics
directly relevant to the development
and designation of critical habitat or
relevant information obtained since the
final listing. For more information on
the biology and ecology of the Laguna
Mountains skipper, refer to the final
rule listing this species as endangered
published in the Federal Register on
January 16, 1997 (62 FR 2313), and the
proposed critical habitat rule for the
Laguna Mountains skipper published in
the Federal Register on December 13,
2005 (70 FR 73699).
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Previous Federal Actions
Previous Federal actions for the
Laguna Mountains skipper can be found
in the proposed critical habitat rule
published in the Federal Register on
December 13, 2005 (70 FR 73699).
On January 10, 2003, the Center for
Biological Diversity (Center) filed a
lawsuit against the Service for violations
under the Act and the Administrative
Procedure Act (5 U.S.C. Subchapter II)
for the Service’s failure to designate
critical habitat for the species (CBD v.
USFWS Civ. No. 03–0058-BTM (NLS)).
In a stipulated settlement agreement
dated July 29, 2003, the Service agreed
to reconsider its ‘‘not prudent’’ finding
and propose critical habitat, if prudent,
on or before November 30, 2005, and to
publish a final critical habitat rule, if
prudent, on or before November 30,
2006. This final rule complies with the
settlement agreement.
Summary of Comments and
Recommendations
We requested comments from the
public on the proposed designation of
critical habitat for the Laguna
Mountains skipper during three
comment periods. The first comment
period opened on December 13, 2006,
associated with the publication of the
proposed rule (70 FR 73699) and closed
on February 13, 2006. The second
comment period opened on April 13,
2006, associated with the
announcement of a public hearing held
on April 22, 2006, in Carlsbad, CA (71
FR 19157), and closed on May 15, 2006.
We also requested comments on the
proposed rule and draft economic
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analysis (DEA) during a comment
period that opened July 7, 2006 (71 FR
38593) and closed on August 7, 2006.
We contacted appropriate Federal, State,
and local agencies; scientific
organizations; and other interested
parties and invited them to comment on
the proposed rule during these three
comment periods.
During the first comment period, we
received 8 comment letters directly
addressing the proposed critical habitat
designation: 4 from peer reviewers, 1
from a Federal agency, and 3 from
organizations or individuals. During the
second comment period, we received 1
comment letter from a Federal agency
and 1 transcribed statement from an
organization during the public hearing
directly addressing the proposed critical
habitat designation. During the final
comment period associated with the
DEA, we received 1 comment letter from
a Federal agency and 1 comment from
an organization directly addressing the
proposed critical habitat designation
and the draft economic analysis.
In total, seven commenters supported
designation (2 comments were from the
same commenter) of critical habitat for
the Laguna Mountains skipper, two
opposed designation (2 comments were
from the same commenter), and one
commenter expressed neither support
nor opposition to the proposed critical
habitat designation. Comments received
are addressed in the following summary
and incorporated into the final rule as
appropriate.
Peer Review
In accordance with our policy
published on July 1, 1994 (59 FR
34270), we solicited expert opinions
from six knowledgeable individuals
with scientific expertise that included
familiarity with the species, the
geographic region in which the species
occurs, and conservation biology
principles. We received responses from
four of the peer reviewers. Peer
reviewers generally concurred with our
methods and conclusions and provided
additional information, clarifications,
and suggestions to improve the final
critical habitat rule. Peer reviewer
comments are addressed in the
following summary and incorporated
into the final rule as appropriate.
We reviewed all comments received
from the peer reviewers and the public
for substantive issues and new
information regarding critical habitat for
the Laguna Mountains skipper, and
addressed them in the following
summary.
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Peer Reviewer Comments
(1) Comment: One peer reviewer
stated that the PCEs appear appropriate;
however use of the alternate hostplant
Potentilla glandulosa may not be
necessary or essential because its use
may be limited to special circumstances.
Our Response: We agree P. glandulosa
use appears to be limited to special
circumstances, but we believe the
scientific information available (Pratt
2006, p. 4) indicates it increases
population survival probability in
circumstances where this alternate
hostplant co-occurs with the most
commonly utilized hostplant, Horkelia
clevelandii. Under special
circumstances (e.g. dry environmental
conditions), the Laguna Mountains
skipper is likely to use this alternate
hostplant that grows more commonly in
shaded areas, and have a higher survival
rate as compared to use of H. clevelandii
under the same special circumstances.
(2) Comment: One peer reviewer
commented that we should use presence
of the hostplant, Potentilla glandulosa,
as a criterion to identify critical habitat
in addition to Horkelia clevelandii.
Our Response: As stated in our
response to Comment 1, we believe P.
glandulosa may only be a necessary or
essential hostplant for population
survival in circumstances where it cooccurs with H. clevelandii. Also, while
the use by the Laguna Mountains
skipper of P. glandulosa as a hostplant
has been documented (Pratt 1999, p. 10;
Osborne 2005), we have no occurrence
data for P. glandulosa. Therefore, we are
unable to map areas occupied by this
hostplant species as critical habitat.
(3) Comment: Two peer reviewers
suggested subunits should be connected
because areas between subunits are
essential for Laguna Mountains skipper
movement. Both reviewers stated
Laguna Mountains skippers disperse
farther than 20 meters, and cautioned
reliance on mark-release-recapture
studies because they tend to
underestimate dispersal ability. One
reviewer stated he has observed a male
Laguna Mountains skipper flying over
trees; another stated he has seen Laguna
Mountains skippers fly over 50 meters
in seconds, and into forested areas
without returning.
Our Response: We appreciate the
information and agree that connectivity
between subunits should be maintained
to provide for species’ movement.
However, we based the delineation of
critical habitat on the presence of the
species or the presence of the primary
constituent elements (PCEs) (e.g.
hostplants within forest openings). Most
areas between subunits are not known
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to contain either the species or the
PCEs. Movement areas cannot be
identified as a PCE because, as reviewer
comments indicated, areas that allow
butterfly flight are relatively allinclusive and thus cannot be
specifically described in a relevant way
that differentiates essential habitat from
non-essential habitat. Also, as a result of
movement areas being relatively allinclusive, we do not know what specific
geographic areas between subunits are
essential for movement. Although a
greater ability to disperse than
commonly hypothesized would mean
more frequent movement among habitat
patches than indicated in the proposed
critical habitat rule, it would not change
how we identified critical habitat. See
the Criteria Used To Identify Critical
Habitat section below for more
information.
(4) Comment: One peer reviewer
noted compatibility of grazing with
Laguna Mountains skipper occupancy
depends not only on cattle density, but
also environmental conditions. He
stated that while cattle do not normally
eat hostplants during larval butterfly
development, he has observed heavy
grazing on hostplants during drought
years on Laguna Mountain.
Our Response: We appreciate this
information and have incorporated it
into the Special Management
Considerations or Protection section of
this final rule. We will also consider
this information in future management
recommendations.
(5) Comment: One peer-reviewer
stated that the Laguna Mountains
skipper may be extirpated on Laguna
Mountain, and captive breeding is the
only way to ensure long-term survival of
the species.
Our Response: We acknowledge
individuals have not been detected in
this unit since 1999 (Pratt 1999, p. 7),
and any remaining populations are not
likely to be resilient enough to survive
into the foreseeable future under current
conditions. However, because
insufficient evidence exists to conclude
Laguna Mountain no longer supports an
extant population in Unit 1, a
presumption of extirpation would be
premature. Even more detectable and
highly surveyed butterfly populations
that appeared to have been extirpated
have been rediscovered, at least
temporarily (e.g. Basu 1997, p.1, Essig
Museum 2006). Surveys of varying
intensity and duration were conducted
in 8 of the 10 years between 1994 and
2003. During this 10-year period, only
four adult skippers were found: A single
individual in 1995 (Levy 1997, pp. i–
xxvi); one adult in 1996 (Levy 1997, pp.
i–xxvi); and at least two adults in 1999
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(Pratt 1999, p. 7). All observations of
adult skippers have been at the El
Prado/Laguna Campground. A single
skipper larval shelter was found in 1997
at the Meadow Kiosk, along Sunrise
Highway (Pratt 1999, p. 27). Despite
recent intensive survey efforts at
historical locations and select areas
considered to be suitable skipper habitat
(Faulkner 2000, p. 2; 2001, p. 2; 2002,
p. 1; 2003, p. 2; 2004, p. 2; Osborne
2002, p. 2; 2003, p. 2), such as Agua
Dulce campground, adult skippers have
not been seen on Laguna Mountain
since 1999. However, not all suitable
habitat has been intensively surveyed
and low density populations are
difficult to detect. We agree captive
breeding may be necessary to ensure
long-term survival of the species on
Laguna Mountain.
(6) Comment: One peer reviewer
commented that the proposed critical
habitat rule alluded to the Laguna
Mountains skipper fitting a
metapopulation distribution, while such
distribution has not been established
through research. He also stated the
critical habitat designation was based on
the species representing a
metapopulation behavior.
Our Response: We do not know what
type of population dynamics the species
exhibits and did not intend to imply
that we did understand such dynamics.
Under the Species Status and
Distribution section of the proposed
rule, our statement, ‘‘If the Laguna
Mountains skipper populations are
characterized by metapopulation
dynamics, habitat patches within the
population distribution not occupied at
any given time are still required for
population viability,’’ was intended to
convey that not all suitable habitat is
occupied at the same time and habitat
that does not appear to be occupied at
a given time is still important for
population viability. We delineated
critical habitat on Palomar and Laguna
Mountains based on the following
criteria (and not on metapopulation
behavior): (1) Meadow complexes
occupied by the Laguna Mountains
skipper at the time of listing; (2)
meadow complexes known to be
currently occupied; and (3) meadow
complexes historically, but not known
to be currently, occupied but considered
essential to the conservation of the
species. For more information see the
Criteria Used To Identify Critical
Habitat section below.
(7) Comment: One peer reviewer
stated that he agreed meadows are
essential for survival of the species, and
dependable water sources must be
available. He expressed concern that
loss of water in Laguna Mountain’s
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‘‘upper Boiling Springs survey site’’ has
greatly reduced the abundance and
diversity of skipper species in the past
3 to 4 years. He expressed the opinion
that water loss has resulted in
extirpation of the ‘‘Hilda blue butterfly’’
from Palomar Mountain and stated that
ground water monitoring is crucial for
maintaining populations of the Laguna
Mountains skipper.
Our Response: We appreciate this
information and concurrence with our
PCEs and criteria used to identify
critical habitat. We agree that water
availability is important for the species’
conservation which is why it was
included as a primary constituent
element in the proposed and this final
critical habitat rule.
(8) Comment: One peer reviewer
disagreed with our statement ‘‘few,
incomplete or no recent surveys have
been conducted at sites not known to be
occupied [Subunits 1B & 1C].’’ He stated
that most sites on Laguna Mountain
have been surveyed during the past 3 to
4 years, with negative results. He further
stated that this does not mean the
Laguna Mountains skipper is absent
from those areas, but ‘‘rather has not
been encountered during first
generation protocol surveys.’’
Our Response: We appreciate the
correction. To clarify, the majority of
high-quality habitat sites on Laguna
Mountain have been regularly surveyed
for the past 3 to 4 years; however, some
areas remain unsurveyed or only
sporadically surveyed. We also agree
this does not mean the Laguna
Mountains skipper is absent from those
areas which are adjacent to occupied
habitat or were historically occupied.
(9) Comment: One peer reviewer
questioned why subunits 1B and 1C
were proposed for designation, because
no Laguna Mountains skippers have
been recorded from these units. She
questioned why these specific areas
were selected rather than other sites on
Laguna Mountain where the hostplant
grows.
Our Response: As stated in our
response to Comment 5 we acknowledge
populations on Laguna Mountain
appear to be small; however,
insufficient evidence exists to conclude
Laguna Mountain no longer supports an
extant population. Subunits 1B and 1C
were included in the designation
because: (1) These areas were
considered to be historically occupied
by the species; (2) they are the nearest
to the occupied unit 1C where our data
indicates they contain high densities of
hostplant; and (3) they are likely to be
important future species reintroduction
sites on Laguna Mountain.
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(10) Comment: One peer reviewer
stated it was not known if all areas
proposed as critical habitat were
essential to conservation of the species.
However, she also stated it seemed
appropriate to designate patches of
meadow habitat with hostplants
between, and adjacent to, recent
sightings of the Laguna Mountains
skipper.
Our Response: As described in the
Criteria Used to Identify Critical Habitat
section of the proposed rule and this
final rule, we delineated critical habitat
to include patches of meadow habitat
with hostplants between and adjacent to
recent sightings of Laguna Mountains
skippers. We cannot determine what
geographic scale the peer reviewer was
referring to.
(11) Comment: One peer reviewer
stated she agreed that no areas outside
of our proposed designation should
have been proposed for designation.
However, she also stated that of the
areas not proposed for critical habitat
designation, the area most likely to be
essential is Dyche Valley on Palomar
Mountain, south of Mendenhall Valley.
Our Response: We appreciate this
information and concurrence with our
proposed designation. We included a
discussion in the proposed rule of
unoccupied areas that may contain
suitable habitat for the species as part of
a discussion of the species’ current
status and distribution (see Status and
Distribution section of the proposed
rule). We did not include Dyche Valley
because we had no hostplant or species
occurrence information for this area,
and therefore could not conclude it was
essential to the species’ conservation.
(12) Comment: Two peer reviewers
stated Laguna Mountains skippers use
more diverse nectar sources than
indicated in the proposed critical
habitat rule. One peer reviewer
suggested the list of nectar sources
should include Taraxacum vulgare
(common dandelion) and the hostplant
Horkelia clevelandii.
Our Response: We appreciate this
information, and will consider it in
future management recommendations.
We believe the PCEs are sufficiently
broad with regard to use of diverse
nectar sources, and already include the
hostplant H. clevelandii, therefore we
did not revise our PCEs.
(13) Comment: One peer reviewer
expressed concern that population size
estimates and comparisons given in the
proposed critical habitat rule were not
reliable. He expressed particular
concern that due to disease, parasitism,
and predation, these kind of estimates
extrapolated from immature life stages
greatly overestimate population size.
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Our Response: We agree that there is
a high amount of uncertainty inherent
in the population estimates and the
effect of factors such as disease,
parasitism, and predation on the
population may not be accurately
reflected. However, even with these
limitations, the population estimates
outlined in the proposed rule are
currently the best available information.
We appreciate this information and will
consider it in future management
recommendations.
Public Comments
(14) Comment: Two commenters
stated that U.S. Forest Service (Forest
Service or USFS) actions to date, and
land management plans addressing
conservation of Laguna Mountains
skipper habitat, should result in
exclusion of Cleveland National Forest
lands from critical habitat designation.
Our Response: We acknowledge the
Cleveland National Forest has
implemented measures to minimize
impacts to the Laguna Mountains
skipper. We also acknowledge two
existing Forest Service management
plans contain general provisions for
conservation of the Laguna Mountains
skipper: the Land Management Plan for
the Cleveland National Forest (LMP,
Forest Service 2005, pp. 1–57) and a
habitat management guide for four
sensitive plant species in mountain
meadows (Cleveland National Forest
1991, pp. 1–36). The habitat
management guide, while providing
more specific conservation measures
than the land management plan, is still
specific to ‘‘discrete [montane] meadow
communities’’ and the four sensitive
plant species. While these mapped
community areas (Cleveland National
Forest 1991, pp. 5–7) do include some
areas identified as essential for Laguna
Mountains skipper (e.g. southern
Mendenhall Valley; see unit
descriptions below), many smaller forest
openings and adjacent open-canopy
woodland areas are not included, such
as Observatory Campground and Trail.
Also, habitat management guides and
plans do not mandate conservation
measures, and therefore do not provide
adequate protection of essential habitat.
For example, the 1993 scheduled
management action for Delphinium
hesparium (Cleveland National Forest
1991 p.17), a grazing exclosure in the
Garnet Kiosk area (southern Laguna
Meadow area, also identified as
essential to the Laguna Mountains
skipper), has not yet been implemented.
Existing Forest Service measures and
management plans do not provide
specific or sufficient enough
conservation measures for Laguna
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Mountains skipper habitat, and the
benefits of including these areas within
critical habitat are not outweighed by
any potential benefits of excluding the
areas (see Exclusions Under Section
4(b)(2) of the Act section of this final
rule for a detailed discussion).
Therefore, we did not exclude Forest
Service lands from the final designation
under section 4(b)(2) of the Act.
(15) Comment: One commenter stated
that lands managed by the Cleveland
National Forest should not be excluded
from critical habitat designation based
on their Land Management Plan because
the plan provides few specific benefits
to the species.
Our Response: For reasons discussed
in the response to Comment 14 above,
we did not exclude Forest Service lands
from the final designation under section
4(b)(2) of the Act.
(16) Comment: Two commenters
asserted that the Laguna Mountains
skipper may be extirpated on Laguna
Mountain; therefore designation of
critical habitat at that location is not
appropriate.
Our Response: As discussed in our
response to Comment 5 above,
insufficient information exists to
conclude Laguna Mountain no longer
supports an extant population in Unit 1.
Therefore, we cannot agree at this time
with the commenter’s assertion. Also, if
the Laguna Mountains skipper has been
extirpated from Laguna Mountain,
reintroduction will likely to be
necessary to promote the conservation
of the subspecies, and unoccupied
habitat would still be considered
essential. Current occupancy is not
required for the designation of critical
habitat if the area is essential to the
conservation of the species.
(17) Comment: One commenter stated
that if critical habitat is designated, a
greater conservation value could be
achieved by further limiting critical
habitat designation to a ‘‘more refined
boundary’’ within proposed critical
habitat. Specific recommended refined
boundaries, primarily following the U.S.
Forest Service’s habitat model for
Laguna Mountains skipper, were
delineated on maps provided with these
comments.
Our Response: We re-evaluated the
methodology used to delineate the
proposed critical habitat unit
boundaries and have revised the final
critical habitat unit boundaries based on
information provided by this
commenter. In total, these revisions
have resulted in the removal of
approximately 420 ac (169 ha) from
final critical habitat (see Summary of
Changes from the Proposed Rule section
below for a detailed discussion).
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(18) Comment: One commenter stated
that designation of critical habitat will
‘‘further hinder or destroy all economic
activity’’ and ‘‘terminate or curtail
recreational use’’ on Forest Service land
on Laguna Mountain.
Our Response: Although designation
of critical habitat may increase the
number of Forest Service consultations
on projects in essential habitat, and
should increase conservation measures
for the species at a few key locations,
the designation should not significantly
increase restrictions on economic
activities or restrict recreational
activities relative to current levels. As
stated below (under Special
Management Considerations or
Protection), economic activities, such as
relatively low density grazing, should
not adversely modify habitat if carefully
managed to minimize or avoid
destruction of hostplants. The total
estimated future costs (loss of economic
gain due to critical habitat designation)
in the Draft Economic Analysis over the
next 20 years to grazing on Laguna
Mountain range from $42,000 to $76,000
(Industrial Economics, Incorporated,
p. ES–10). Total estimated future cost
for recreational activities is $3,305,000
(Industrial Economics, Incorporated, p.
ES–10). Total future costs to grazing and
recreation on Laguna Mountain average
from $167,350 to $169,050 per year, a
relatively low estimate. The Draft
Economic Analysis states, ‘‘While
changes in [livestock production and
recreational camping] could affect the
regional economy, the magnitude of the
expected change is insignificant (i.e.,
less than one percent for grazing and
less than 0.01 percent for camping) in
light of the total size of the regional
economy.’’ (Industrial Economics,
Incorporated, p. ES–13). Future cost
value estimates will also be reduced by
the reduction in area designated as
critical habitat relative to what was
proposed (see Summary of Changes
from Proposed Rule below).
(19) Comment: One commenter stated
that subunits 1B and 1C on Laguna
Mountain should not be designated as
critical habitat because: (1) Subunit 1A
provides substantial habitat already; (2)
subunits 1B and 1C are not contiguous
with Laguna Meadow as stated in the
proposed critical habitat rule; and (3)
designation based on potential
reintroduction is not justified.
Our Response: As stated in the
proposed rule, Subunits 1B and 1C were
proposed as critical habitat because they
are connected to occupied habitat, were
historically occupied, and contain
physical and biological features
essential to the conservation of the
species. To clarify, while not physically
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connected, these subunits are
ecologically connected to occupied
habitat (Laguna Meadow) by relatively
undisturbed forested habitat that allows
for species movement between Laguna
Meadow and Subunits 1B and 1C. We
have clarified this in the Critical Habitat
Designation section of this final rule.
We also stated in the proposed rule that
we believe that given the species’ small
population size and very limited range,
reintroduction may be necessary for
long-term persistence of the species.
Since critical habitat identifies areas
essential to species conservation, we
believe inclusion of these unoccupied
areas in final critical habitat is justified.
(20) Comment: One commenter stated
the designation of independent, nonconnected subunits within each
mountain contradicts the statement in
the proposed rule that connectivity
areas among meadows are required for
species’ survival. The commenter stated
that Laguna Mountains skippers are
‘‘highly mobile’’ and known to fly
through forested environments, and
failure to designate critical habitat
connecting subunits could reduce the
likelihood of species survival.
Our Response: See response to
Comment 3 above.
(21) Comment: One commenter stated
because hostplant mapping and
knowledge of habitat use by Laguna
Mountains skippers is incomplete, all
areas within hostplant elevation limits
on Laguna Mountain should be
designated as critical habitat.
Our Response: We acknowledge that
hostplant mapping and knowledge of
habitat use by Laguna Mountains
skippers is incomplete; however, we are
required to use the best available
information to designate habitat that
contains the primary constituent
elements required by the species and is
essential to the conservation of the
species. In the absence of more
complete hostplant mapping
information, we limited the designation
to those areas that the available
information indicates contain the PCEs
and are essential to the conservation of
the species.
(22) Comment: One commenter
wanted to make sure that critical habitat
designation would not affect the fire
safety of human and natural
communities on Laguna Mountain.
Our Response: The designation of
critical habitat will not affect fire safety
of human communities on Laguna
Mountain. Public safety is always the
first priority in the event of a fire. Also,
the local Service field office has several
biologists trained as resource advisors
who work cooperatively with
firefighters to ensure that impacts to
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natural communities are minimized to
the maximum extent practicable during
fire fighting activities. As stated below
(under Special Management
Considerations or Protection), fire
management activities, such as tree and
brush removal for fuel modification,
should not adversely modify habitat if
carefully managed to minimize or avoid
destruction of hostplants.
(23) Comment: One commenter
objected to our assertion that critical
habitat provides little benefit above that
provided by other provisions of the Act.
Our Response: As discussed in the
sections ‘‘Designation of Critical Habitat
Provides Little Additional Protection to
Species,’’ ‘‘Role of Critical Habitat in
Actual Practice of Administering and
Implementing the Act,’’ and
‘‘Procedural and Resource Difficulties in
Designating Critical Habitat’’ and other
sections of this and other critical habitat
designations, we believe that, in most
cases, other conservation mechanisms
provide greater incentives and
conservation benefits than does the
designation of critical habitat. These
other mechanisms include the section 4
recovery planning process, section 6
funding to the States, section 7
consultations, the section 9 protective
prohibitions of unauthorized take, the
section 10 incidental take permit
process, and cooperative programs with
private and public landholders and
tribal nations.
Comments Related to the Draft
Economic Analysis (DEA)
(24) Comment: One comment stated
that the DEA fails to evaluate benefits
associated with protecting critical
habitat for the Laguna Mountains
skipper. The same commenter noted
that cost savings associated with
protecting the hydrological function of
meadows and conducting fire abatement
around proposed new utility structures
throughout critical habitat should be
included in the DEA.
Our Response: Section 4(b)(2) of the
Act requires the Secretary to designate
critical habitat based on the best
scientific data available after taking into
consideration the economic impact,
impact on national security, and any
other relevant impact, of specifying any
particular area as critical habitat. The
Service’s approach for estimating
economic impacts includes both
economic efficiency and distributional
effects. The measurement of economic
efficiency is based on the concept of
opportunity costs, which reflect the
value of goods and services foregone in
order to comply with the effects of the
designation (e.g., lost economic
opportunity associated with restrictions
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on land use). Where data are available,
the economic analyses do attempt to
measure the net economic impact.
However, no data was found that would
allow for the measurement of such an
impact, nor was such information
submitted during the public comment
period.
While the Secretary must consider
economic and other relevant impacts as
part of the final decision-making
process under section 4(b)(2) of the Act,
the Act explicitly states that it is the
government’s policy to conserve all
threatened and endangered species and
the ecosystems upon which they
depend. Thus, we believe that explicit
consideration of broader social values
for the subspecies and its habitat,
beyond the more traditionally defined
economic impacts, is not necessary as
Congress has already clarified the social
importance.
We note, as a practical matter, it is
difficult to develop credible estimates of
such values, as they are not readily
observed through typical market
transactions and can only be inferred
through advanced, tailor-made studies
that are time consuming and expensive
to conduct. We currently lack both the
budget and time needed to conduct such
research before meeting our courtordered final rule deadline. In summary,
we believe that society places
significant value on conserving any and
all threatened and endangered species
and the habitats upon which they
depend and thus needs only to consider
whether the economic impacts (both
positive and negative) are significant
enough to merit exclusion of any
particular area without causing the
species to go extinct.
(25) Comment: One comment stated
that the DEA overestimates costs
associated with conserving the Laguna
Mountains skipper, because it includes
economic impacts attributable to listing
under the ESA. The comment further
stated that the costs associated with
listing of a species are separate from
critical habitat designation and therefore
should not be included in the economic
impacts analysis for critical habitat
designation.
Our Response: The economic analysis
is intended to assist the Secretary in
determining whether the benefits of
excluding particular areas from the
designation outweigh the biological
benefits of including those areas in the
designation. Also, this information
allows us to comply with direction from
the U.S. 10th Circuit Court of Appeals
that ‘‘co-extensive’’ effects should be
included in the economic analysis to
inform decision-makers regarding which
areas to designate as critical habitat
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(New Mexico Cattle Growers
Association v. U.S. Fish and Wildlife
Service (248 F.3d 1277)).
This analysis identifies those
potential activities believed to be most
likely to threaten the Laguna Mountains
skipper and its habitat and, where
possible, quantifies the economic
impact to avoid, mitigate, or compensate
for such threats within the boundaries
of the critical habitat designation.
Where critical habitat is being proposed
after a species is listed, some future
impacts may be unavoidable, regardless
of the final designation and exclusions
under section 4(b)(2) of the Act.
However, due to the difficulty in
making a credible distinction between
listing and critical habitat effects within
critical habitat boundaries, this analysis
considers all future conservation-related
impacts to be co-extensive with the
designation.
(26) Comment: One comment stated
the costs for fuel management projects
are underestimated because they do not
include increased costs associated with
additional planning and analysis as well
as higher treatment costs that might be
associated with avoiding certain areas
within proposed critical habitat areas.
Our Response: We revised the DEA to
include the costs associated with
additional planning, analysis, and
treatment required to ensure that
Laguna Mountains skipper habitat is
avoided. Cleveland National Forest staff
estimate these costs to be approximately
$2,000 per fuels management project
and three fuels management projects per
year in proposed critical habitat areas,
or approximately $6,000 per year.
(27) Comment: One comment stated
the administrative costs associated with
section 7 consultations for the
Cleveland National Forest are ‘‘very
much underestimated.’’
Our Response: Based on information
provided by the Cleveland National
Forest, we revised the DEA’s estimate of
future administrative costs associated
with section 7 consultations. As shown
in Exhibit 8–8 of the DEA,
administrative costs are forecasted to be
$1.4 million (undiscounted dollars) over
the next 20 years. In present value
terms, costs are $1.1 million, assuming
a three percent discount rate; and
$828,000, assuming a seven percent
discount rate.
Summary of Changes From Proposed
Rule
Based on information received from
Terrell (2006a, p. 3 and 4) during the
public comment periods, we reevaluated the proposed critical habitat
boundaries. Terrell (2006a, p. 3 and 4)
suggested we limit critical habitat
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designation to Cleveland National
Forest’s Laguna Mountains skipper
modeled habitat (Winter 2000, pg. 1)
within proposed critical habitat units.
Methodology in Winter (2000, pg. 1)
was described as follows:
‘‘Elevation between 4000 and 6100 feet.
Vegetation type is grassland that is within
100 meters of contact with oak woodland/
conifer forest vegetation type and conifer/
woodland type that is within 100 meters of
contact with grassland. As of 3/6 [2000], heb
(herbaceous in veg cover was limited by 3
soil types, crouch, reiff, loamy alluvial).
Additional work included incorporating
entire meadows in addition to the edges
based on the 100m contact above, and
excluding the most southern (Corta Madera)
portions of screen due to vegetation surveys
indicating no presence of Horkelia [on]
private lands.’’
This qualitative method of delineating
meadows in many areas on Laguna
Mountain is similar to the information
we used in our critical habitat proposal
(see Criteria Used to Identify Critical
Habitat section below). Terrell (2006a,
pp. 5, 6) provided a map using Winter’s
(2000) methods to map habitat within
proposed critical habitat units, and
recommended limiting critical habitat
designation to those areas. We
considered this information and agreed
that using the modeled habitat
constituted the best available scientific
information, thus justifying some unit
boundary adjustments; however
additional data on habitat type use (e.g.,
open oak woodland at Pine Hill
(Osborne 2002)) and host plant
distribution since 2000 justify including
some areas not mapped by Winter
(2000, pg.1).
We overlaid the Cleveland National
Forest’s Laguna Mountains skipper
modeled habitat (Winter 2000, pg. 1)
boundaries on the proposed critical
habitat boundaries for Unit 1 (Laguna
Mountain) and removed those areas
from proposed critical habitat which fell
outside of the modeled habitat and for
which we did not have main hostplant
(Horkelia clevelandii) occurrence data
(see the Criteria Used To Identify
Critical Habitat section below for a
detailed discussion). This re-evaluation
resulted in the removal of
approximately 420 ac (169 ha) from Unit
1 (Laguna Mountain). The areas
removed were primarily located in the
northeastern portion of Subunit 1B, the
southwestern portion of Subunit 1C,
and the southeastern portion of Subunit
1A, as well as open woodland north of
Boiling Springs Ravine in Subunit 1A.
This re-evaluation of proposed critical
habitat boundaries did not result in any
changes to lands designated in Unit 2.
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Critical Habitat
Critical habitat is defined in section 3
of the Act as—(i) the specific areas
within the geographical area occupied
by a species, at the time it is listed in
accordance with the Act, on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) that may require
special management considerations or
protection; and (ii) specific areas
outside the geographical area occupied
by a species at the time it is listed, upon
a determination that such areas are
essential for the conservation of the
species. Conservation, as defined under
section 3 of the Act means to use and
the use of all methods and procedures
which are necessary to bring any
endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Such methods
and procedures include, but are not
limited to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
prohibition against destruction or
adverse modification of critical habitat
with regard to actions carried out,
funded, or authorized by a Federal
agency. Section 7 requires consultation
on Federal actions that are likely to
result in the destruction or adverse
modification of critical habitat. The
designation of critical habitat does not
affect land ownership or establish a
refuge, wilderness, reserve, preserve, or
other conservation area. Such
designation does not allow government
or public access to private lands.
Section 7 is a purely protective measure
and does not require implementation of
restoration, recovery, or enhancement
measures.
To be included in a critical habitat
designation, the habitat within the area
occupied by the species must first have
features that are essential to the
conservation of the species. Critical
habitat designations identify, to the
extent known using the best scientific
data available, habitat areas that provide
essential life cycle needs of the species
(i.e., areas on which are found the
primary constituent elements, as
defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing
may be included in critical habitat only
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if the essential features thereon may
require special management
considerations or protection. Thus, we
do not include areas where existing
management is sufficient to conserve
the species. (As discussed below, such
areas may also be excluded from critical
habitat pursuant to section 4(b)(2)).
Areas outside of the geographic area
occupied by the species at the time of
listing may only be included in critical
habitat if they are essential for the
conservation of the species.
Accordingly, when the best available
scientific data do not demonstrate that
the conservation needs of the species
require additional areas, we will not
designate critical habitat in areas
outside the geographical area occupied
by the species at the time of listing. An
area currently occupied by the species
but not known to be occupied at the
time of listing will likely, but not
always, be essential to the conservation
of the species and, therefore, typically
included in the critical habitat
designation.
The Service’s Policy on Information
Standards Under the Endangered
Species Act, published in the Federal
Register on July 1, 1994 (59 FR 34271),
and Section 515 of the Treasury and
General Government Appropriations
Act for Fiscal Year 2001 (Pub. L. 106–
554; H.R. 5658) and the associated
Information Quality Guidelines issued
by the Service, provide criteria,
establish procedures, and provide
guidance to ensure that decisions made
by the Service represent the best
scientific data available. They require
Service biologists to the extent
consistent with the Act and with the use
of the best scientific data available, to
use primary and original sources of
information as the basis for
recommendations to designate critical
habitat. When determining which areas
are critical habitat, a primary source of
information is generally the listing
package for the species. Additional
information sources include the
recovery plan for the species, articles in
peer-reviewed journals, conservation
plans developed by States and counties,
scientific status surveys and studies,
biological assessments, or other
unpublished materials and expert
opinion or personal knowledge. All
information is used in accordance with
the provisions of Section 515 of the
Treasury and General Government
Appropriations Act for Fiscal Year 2001
(Pub. L. 106–554; H.R. 5658) and the
associated Information Quality
Guidelines issued by the Service.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific data available. Habitat
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is often dynamic, and species may move
from one area to another over time.
Furthermore, we recognize that
designation of critical habitat may not
include all of the habitat areas that may
eventually be determined to be
necessary for the recovery of the
species. For these reasons, critical
habitat designations do not signal that
habitat outside the designation is
unimportant or may not be required for
recovery.
Areas that support populations, but
are outside the critical habitat
designation, will continue to be subject
to conservation actions implemented
under section 7(a)(1) of the Act and to
the regulatory protections afforded by
the section 7(a)(2) jeopardy standard, as
determined on the basis of the best
available information at the time of the
action. Federally funded or permitted
projects affecting listed species outside
their designated critical habitat areas
may still result in jeopardy findings in
some cases. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
designation will not control the
direction and substance of future
recovery plans, habitat conservation
plans, or other species conservation
planning efforts if new information
available to these planning efforts calls
for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12, in determining which areas to
designate as critical habitat within areas
occupied by the species at the time of
listing, we consider those physical and
biological features (PCEs) that are
essential to the conservation of the
species and that may require special
management considerations or
protection. These include, but are not
limited to space for individual and
population growth and for normal
behavior; food, water, air, light,
minerals, or other nutritional or
physiological requirements; cover or
shelter; sites for breeding, reproduction,
and rearing (or development) of
offspring; and habitats that are protected
from disturbance or are representative of
the historical geographical and
ecological distributions of a species.
The specific primary constituent
elements required for the Laguna
Mountains skipper are derived from the
biological needs of the Laguna
Mountains skipper as described in the
Background section of the proposed rule
(70 FR 73699).
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Food, Water, or Other Nutritional or
Physiological Requirements
Laguna Mountains skippers require
sunlight provided in the open meadows,
open woodlands, or other forest
openings. Butterflies are exothermic
(i.e., they remain at the same
temperature as their environment) and,
like most insects, body temperature is of
overriding importance in limiting flight
(Chapman 1982, p. 217–272). Butterfly
flight activity is limited by light
intensity. Therefore, they require areas
for basking in the sun in order to raise
their body temperature for flight
(Chapman 1982, p. 217–272).
Additionally, surface moisture such as
puddles and seeps (not flowing water)
provide water and minerals for adults.
Adult Laguna Mountains skippers need
annual or perennial nectar sources
including meadow and woodlandassociated herbaceous annual
wildflowers, and perennial herbs (e.g.
Horkelia clevelandii, Lasthenia spp.
(goldfields), Pentachaeta aurea (goldenrayed pentachaeta), Ranunculus spp.
(buttercups), and Sidalcea spp.
(checkerbloom)).
Sites for Breeding and Reproduction
Laguna Mountains skippers require
Horkelia clevelandii to lay eggs on and
for the caterpillars to eat and construct
their pupal shelters. The species has
also been documented on Potentilla
glandulosa (Pratt 1999, p. 10; Osborne
2005). However, P. glandulosa may only
be used as a hostplant for population
survival in special circumstances (e.g.,
dry environmental conditions) where it
occurs near H. clevelandii. Hostplant
patches must be dense enough to
support breeding (provide multiple and
diverse sites for depositing eggs),
although the exact host-plant patch size
and density required for breeding is not
known. A ‘‘patch’’ of hostplants may
consist of one to several clumps of H.
clevelandii or P. glandulosa growing
together, as well as numerous
individual plants that are growing in
close proximity to each other.
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Space for Individual and Population
Growth, and for Normal Behavior
The species’ current geographic range
is fragmented and small, population
densities are relatively low, and the
quality of most breeding habitat has
been compromised to some degree by
grazing, recreation impacts, or alien
plants. Therefore, all landscape
connectivity areas among occupied
meadows and forest openings that adult
Laguna Mountains skippers can move
through are required for the
conservation of the species. To facilitate
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the use of connectivity areas for adult
movement between breeding sites,
maintenance of populations of
hostplants and adult nectar sources is
important, even if they are not likely to
be used for breeding.
Historical and Geographic Distribution
of the Species
The occupied areas designated as
critical habitat are representative of the
historical and geographical distribution
of the species. Areas included in the
final designation that are not known to
be occupied were all historically
occupied and will restore a portion of
the historical geographic distribution of
the Laguna Mountains skipper.
Connectivity is required for
recolonization of habitat to occur (e.g.,
after extirpation by fire) and for genetic
diversity to be maintained.
Primary Constituents for the Laguna
Mountains Skipper
Pursuant to our regulations, we are
required to identify the known physical
and biological features (PCEs) essential
to the conservation of the Laguna
Mountains skipper. All areas designated
as critical habitat for the Laguna
Mountains skipper are within the
species’ historical geographic range and
contain sufficient PCEs to support at
least one life history function.
Based on our current knowledge of
the life history, biology, and ecology of
the species and the requirements of the
habitat to sustain the essential life
history functions of the species, we have
determined that the Laguna Mountains
skipper’s PCEs are:
(1) The hostplants, Horkelia
clevelandii or Potentilla glandulosa, in
meadows or forest openings needed for
reproduction.
(2) Nectar sources suitable for feeding
by adult Laguna Mountains skippers,
including Lasthenia spp., Pentachaeta
aurea, Ranunculus spp., and Sidalcea
spp. found in woodlands or meadows.
(3) Wet soil or standing water
associated with features such as seeps,
springs, or creeks where water and
minerals are obtained during the adult
flight season.
This designation is designed for the
conservation of areas supporting PCEs
necessary to support the life history
functions which were the basis for the
proposal. In general, critical habitat
units are designated based on sufficient
PCEs being present to support one or
more of the species’ life history
functions. In this instance, all units
contain all PCEs and support multiple
life processes. Because not all life
history functions require all the PCEs,
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74599
not all critical habitat will uniformly
contain all the PCEs.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(1)(A) of
the Act, we use the best scientific data
available in determining areas that
contain the features that are essential to
the conservation of the Laguna
Mountains skipper. We have also
reviewed available information that
pertains to the habitat requirements of
this species. Information sources
include data from field surveys for
Horkelia clevelandii, regional
Geographic Information System (GIS)
vegetation and species coverages, data
compiled in the California Natural
Diversity Database (CNDDB), and survey
data for the Laguna Mountains skipper
from reports submitted by biologists
holding section 10(a)(1)(A) recovery
permits. We identified critical habitat
based on the assessment of those
physical and biological components
identified above, the known and
historical occurrences of Laguna
Mountains skipper, and available
information on the distribution of H.
clevelandii. We designated no areas
outside the individual mountains
presently occupied by the species.
To delineate critical habitat, we
identified meadow complexes
(meadows and forest openings
connected by open forest canopy) on
Palomar and Laguna Mountains
occupied by the Laguna Mountains
skipper at the time of listing and known
to be currently occupied. The species
was known to occupy only one meadow
complex (Laguna Meadow) on Laguna
Mountain at the time of listing, but we
also identified two meadow complexes
on Laguna Mountain that contain
habitat with features essential to the
conservation of the species. These
meadow complexes were not known to
be occupied at the time of listing,
however, they have not been extensively
surveyed, and Laguna Mountain as a
whole was historically considered to be
occupied by the skipper. These areas are
important for expansion and
enhancement of populations in Laguna
Meadow and are therefore considered
essential to the conservation of the
species.
Using infrared satellite imagery, we
visually outlined meadows and forest
openings that contained species or
hostplant occurrence data. Maps were
produced by overlaying a 328 square ft
(100 square m) grid on the initial handdrawn polygons and selecting those grid
cells that fell within the hand drawn
polygons. Specifically, on Palomar
Mountain (Unit 2) we defined subunits
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based on the selected grid cells because
meadows were more clearly defined and
species occupancy and distribution
information was more clearly defined.
On Laguna Mountain (Unit 1), where
meadows were not as clearly defined
and species distribution information
and occupancy was less certain, we then
overlaid the Cleveland National Forest’s
Laguna Mountains skipper modeled
habitat boundaries and removed areas
outside of the modeled habitat for
which we did not have occurrence data
for the species or its main hostplant
(Horkelia clevelandii). Specifically, we
removed: (1) All grid cells more than
328 ft (100 m) distant from species
occurrence locations, hostplant
occurrence locations, or Forest Service
modeled habitat; (2) remaining grids
cells not connected to the three subunits
of Unit 1; and (3) all grid cells with over
97 percent of their area more than 328
ft (100 m) distant from species
occurrence locations, hostplant
occurrence locations habitat.
When determining critical habitat
boundaries, we made every effort to
avoid including within the boundaries
of the map contained within this final
rule developed areas such as buildings,
paved areas, and other structures that
lack PCEs for the Laguna Mountains
skipper. The scale of the maps prepared
under the parameters for publication
within the Code of Federal Regulations
may not reflect the exclusion of such
developed areas. Any such structures
and the land under them inadvertently
left inside critical habitat boundaries
shown on the maps of this final rule
have been excluded by text in the final
rule and are not designated as critical
habitat. Therefore, Federal actions
limited to these areas would not trigger
section 7 consultation, unless they may
affect the species or primary constituent
elements in adjacent critical habitat.
We are designating critical habitat on
lands that we have determined were
occupied at the time of listing and
contain sufficient primary constituent
elements to support life history
functions essential for the conservation
of the species. We are also designating
lands that were not known to be
occupied at the time of listing but have
been determined to be essential for the
conservation of the Laguna Mountains
skipper.
Special Management Considerations or
Protection
When designating critical habitat, we
assess whether the areas determined to
be occupied at the time of listing
support the primary constituent
elements that may require special
management considerations or
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protection. Threats to those essential
features that define critical habitat
(PCEs) for the Laguna Mountains
skipper include the direct and indirect
impacts of human development and
recreation, surface and groundwater
management practices, and grazing
intensity.
Areas identified as critical habitat are
composed of 38 percent private land
holdings, where habitat is subject to
rural development and overgrazing,
potential stream and groundwater
diversions, and recreational activities.
State and Federal landholdings (6 and
56 percent, respectively) are also subject
to grazing and recreational activities.
While designation of critical habitat
does not impose any management
requirements, particularly on State or
private land, the following are measures
that could be undertaken to benefit the
species.
Grazing can cause direct mortality of
larvae and eggs by trampling and
consumption. The density of cattle
grazed in meadow habitat should be
monitored and managed as well as
levels of habitat degradation resulting
from existing levels of grazing.
Environmental conditions should also
be considered when determining
appropriate cattle density in meadow
habitat occupied by the Laguna
Mountains skipper. While cattle do not
normally eat hostplants while larvae are
developing, they have been observed
grazing on hostplants during drought
years on Laguna Mountain (Pratt 2006,
p. 4). Adaptive management may be
needed to adjust cattle grazing intensity,
and protection measures may include
exclosures to prevent grazing of
hostplants. Monitoring of potential
changes in hydrology caused by stream
and groundwater diversions should be
undertaken and any necessary
management to prevent habitat
conversion from wet to dry meadows, or
open woody canopy to closed.
On Palomar Mountain, commercial
drinking water projects and stream
alterations on private lands are
currently diverting stream and
groundwater to an unknown extent.
Drying of meadows results in vegetation
changes (for a general discussion see
Naumburg et al. 2005) that could
eliminate primary constituent elements
within Laguna Mountains skipper
habitat (e.g. hostplants and surface
moisture, PCEs 1 and 3). Recreational
activities such as camping and
horseback riding can cause direct
mortality of Laguna Mountains skipper
larvae by trampling, and may increase
encroachment of exotic vegetation
affecting the availability of hostplants
(PCE 1) and nectar sources (PCE 2).
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Changes in surface and groundwater
availability due to disturbance by cattle
and humans can also result in meadow
habitat conversion (PCE 1).
The provisions within two Forest
Service management documents
promote the conservation of the Laguna
Mountains skipper. The Land
Management Plan provides long-term
management direction for National
Forest Service lands (Terrell 2006a, pg.
1; and b, pp. 1–2). In addition, the
Cleveland National Forest has a habitat
management guide for four sensitive
plant species in mountain meadows
habitat (Cleveland National Forest 1991,
pp.1–36). While the USFS has
completed some conservation actions
for the species, the avoidance and
mitigation standards in both
management plans are general and do
not specify what actions are needed, or
what is considered essential habitat.
Therefore, habitat essential to the
Laguna Mountains skipper where
special management actions may be
needed to minimize impacts resulting
from recreation, grazing, and exotic
plant invasion needs to be identified.
Areas designated as critical habitat
contain physical and biological features
essential for the conservation of the
Laguna Mountains skipper that may
require some level of management or
protection to address current and future
threats to the Laguna Mountains
skipper. Subunits 2A, 2B, and 2C may
require special management due to all
threats described above. All subunits in
Unit 1 may require special management
due to all threats described above except
diverting stream and groundwater.
Subunit 2D may require management
primarily of recreation impacts. Fire
management activities, such as logging,
fuel modification, or relatively low
density grazing, should not adversely
modify habitat if carefully and
adaptively managed to minimize or
avoid destruction of hostplants.
Critical Habitat Designation
We are designating 2 units, further
divided into 7 subunits, as critical
habitat for the Laguna Mountains
skipper. Unit 1, Laguna Mountain,
consists of subunits 1A, 1B, and 1C.
Unit 2, Palomar Mountain, consists of
subunits 2A, 2B, 2C, and 2D. Lands
being designated are under Federal
(3,516 ac (1,423 ha)), private (2,361 ac
(954 ha)), and State (381 ac (154 ha))
ownership. Table 1 outlines the acreage
and landownership of the areas
designated as critical habitat for the
Laguna Mountains skipper. The critical
habitat areas described below constitute
our best assessment at this time of areas
determined to be occupied at the time
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of listing, containing the primary
constituent elements essential for the
conservation of the species that may
require special management
considerations or protection, and those
additional areas found to be essential to
the conservation of the Laguna
Mountains skipper. All three PCEs are
generally distributed throughout all the
subunits: Nectar sources are the most
evenly distributed PCE (PCE 2); host
plants (PCE 1) are generally
74601
concentrated near the edges of larger
meadows, streams, and in forest
openings; wet areas are the most
localized (PCE 3), found in association
with natural seeps, cattle troughs,
streams, and ponds or lakes.
TABLE 1.—AREA, IN ACRES (AC) AND HECTARES (HA), AND LANDOWNERSHIP OF THE AREAS DESIGNATED AS CRITICAL
HABITAT FOR THE LAGUNA MOUNTAINS SKIPPER
Total area ac
(ha)
Critical habitat unit/subunit
Federal 1 ac (ha)
Private ac (ha)
State 2 ac (ha)
Unit 1—Laguna Mountain
Subunit 1A (Laguna Meadow) .........................................................
Subunit 1B (Filaree Flat) .................................................................
Subunit 1C (Agua Dulce Campground and Horse Meadow) ..........
2,610 (1,056)
233 (94)
500 (202)
2,531 (1,024)
233 (94)
374 (151)
79 (32)
0
126 (51)
0
0
0
Unit 1 Total ...............................................................................
3,343 (1,352)
3,138 (1,269)
205 (83)
0
Unit 2—Palomar Mountain
Subunit 2A (Mendenhall Valley and Observatory Campground) ....
Subunit 2B (Upper French Valley, Observatory Trail, and Palomar
Observatory Meadows) ................................................................
Subunit 2C (Upper Doane Valley and Girl Scout Camp) ................
Subunit 2D (Lower French Valley and Lower Doane Valley) .........
1,092 (442)
231 (94)
861 (348)
0
998 (404)
547 (221)
262 (106)
93 (38)
40 (16)
14 (6)
905 (366)
316 (128)
58 (23)
0
191 (77)
190 (77)
Unit 2 Total ...............................................................................
2,899 (1,173)
378 (154)
2,140 (865)
381 (154)
Total of Units 1 and 2 ...............................................................
6,242 (2,525)
3,516 (1,423)
2,345 (948)
381 (154)
1 Federal
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lands = U.S. Forest Service.
2 State Lands = California State Parks.
Unit 1: Laguna Mountain
Unit 1 encompasses approximately
3,343 ac (1,352 ha) (Table 1), and is
approximately centered on Laguna
Mountain peak located in south-central
San Diego County, east of the
community of Alpine, California. This
unit is divided into three subunits
which each contain all of the primary
constituent elements. This unit is
crucial to 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 to
extirpate 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 (2,610 ac (1,056 ha)) is
currently occupied and was known to
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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). Until 2000, adult skippers were
consistently found in this area. The
Cleveland National Forest lands in this
unit are subject to grazing and
recreational activities, and special
management considerations such as
grazing density adjustments or
exclosures to protect hostplants may be
required to maintain the PCEs. This
subunit contains 2,531 (1,024 ha) of
Forest Service managed lands and 79 ac
(32 ha) of privately owned land (Table
1).
Unit 1B: Filaree Flat
Subunit 1B (233 ac (94 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: (1) It contains habitat features
essential to the conservation of any
populations occupying Subunit 1A (2)
provides for population expansion and
enhancement; (3) minimizes habitat
fragmentation; and (4) is representative
of the historical geographical and
ecological distribution of the species.
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This subunit contains 233 ac (94 ha) of
Forest Service managed lands (Table 1).
Unit 1C: Agua Dulce Campground and
Horse Meadow
Subunit 1C (500 ac (202 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: (1) It contains habitat features
essential to the conservation of any
populations occupying Subunit 1A; (2)
provides for population expansion and
enhancement; (3) minimizes habitat
fragmentation; and (4) is representative
of the historical geographical and
ecological distribution of the species.
This subunit contains 374 ac (151 ha) of
Forest Service managed lands and 126
ac (51 ha) of privately owned land
(Table 1).
Unit 2: Palomar Mountain
Unit 2 encompasses approximately
2,899 ac (1,173 ha) (Table 1), 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 four
subunits which each contain all of 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
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separate units (i.e., Laguna and Palomar
Mountains) and multiple subunits limits
the potential for a catastrophic event to
extirpate 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 conservation 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. Lands in this subunit
are subject to grazing activities, and
special management considerations
such as hostplant distribution
monitoring, exclosure maintenance, and
grazing density adjustments may be
required to maintain the PCEs. This
subunit contains 231 ac (94 ha) of Forest
Service managed lands and 861 ac (348
ha) of privately owned land (Table 1).
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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 occurrence
records along the Observatory Trail,
indicate historical occupancy of Laguna
Mountains skipper populations in
unsurveyed portions of Upper French
Valley. Lands in this subunit are subject
to grazing and recreational activities,
and special management considerations
such as hostplant distribution
monitoring, grazing and recreation
exclosure maintenance, and grazing
density adjustments may be required to
maintain the PCEs. This subunit
contains 93 ac (38 ha) of Forest Service
managed lands and 905 ac (366 ha) of
privately owned land (Table 1).
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 essential because:
(1) It contains habitat features essential
to the conservation of the species; (2)
allows for population expansion and
enhancement; and (3) minimizes habitat
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fragmentation. This subunit contains 40
ac (16 ha) of Forest Service managed
lands, 316 ac (128 ha) of privately
owned land, and 191 ac (77 ha) of Stateowned land (i.e., California State Parks)
(Table 1).
Unit 2D: Lower French Valley and Lower
Doane Valley
Subunit 2D (262 ac (106 ha)) is known
to be currently occupied and was
occupied at the time of listing. Reports
of multiple Laguna Mountains skipper
observations in this subunit in 2005
(Walker 2006) indicate relatively high
current densities in these valleys, and
has confirmed the importance of this
subunit for species conservation. Lands
in this subunit are subject to grazing
activities, and special management
considerations such as hostplant
distribution monitoring, exclosure
maintenance, and grazing density
adjustments may be required to
maintain the PCEs. This subunit
contains 14 (6 ha) of Federal land (i.e.,
Forest Service), 58 ac (23 ha) of
privately owned land, and 190 ac (77
ha) of State-owned land (i.e., California
State Parks) (Table 1).
Effects of Critical Habitat Designation
Section 7
Consultation
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 species
proposed for listing 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
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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.
Once 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. Recent
decisions by the 5th and 9th Circuit
Courts of Appeals have invalidated our
regulatory definition of ‘‘adverse
modification’’ at 50 CFR 402.02 (see
Gifford Pinchot Task Force v. U.S. Fish
and Wildlife Service, 378 F.3d 1059 (9th
Cir. 2004) and Sierra Club v. U.S. Fish
and Wildlife Service et al., 245 F.3d 434,
442F (5th Cir. 2001)). Pursuant to
current national policy and the statutory
provisions of the Act, we determine
destruction or adverse modification
based on 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 its
intended conservation role for the
species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. 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
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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 a project is likely to result
in jeopardy to a listed species or
destruction or adverse modification of
critical habitat, we also provide
reasonable and prudent project
alternatives, 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.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in certain instances, including
where a new species is listed or critical
habitat is subsequently designated that
may be affected by the Federal action,
where the Federal agency has retained
discretionary involvement or control
over the action or such discretionary
involvement or control is authorized by
law. Consequently, some Federal
agencies may request reinitiation of
consultation with us on actions for
which formal consultation has been
completed, if those actions may affect
subsequently listed species or
designated critical habitat or adversely
modify or destroy proposed critical
habitat.
Federal activities that may affect the
Laguna Mountains skipper or its
designated critical habitat will require
section 7 consultation under the Act.
Activities on State, Tribal, local or
private lands requiring a Federal permit
(such as a permit from the Corps under
section 404 of the Clean Water Act or a
permit under section 10(a)(1)(B) of the
Act from the Service) or involving some
other Federal action (such as funding
from the Federal Highway
Administration, Federal Aviation
Administration, or the Federal
Emergency Management Agency) will
also be subject to the section 7
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consultation process. Federal actions
not affecting listed species or critical
habitat, and actions on State, Tribal,
local or private lands that are not
federally-funded, authorized, or
permitted, do not require section 7
consultations.
Application of the Jeopardy and
Adverse Modification Standards for
Actions Involving Effects to the Laguna
Mountains Skipper and Its Critical
Habitat
Jeopardy Standard
When performing jeopardy analyses
for the Laguna Mountains skipper, the
Service applies an analytical framework
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 proposed
Federal action is incompatible with the
viability of the affected core area
population(s), inclusive of associated
habitat conditions, a jeopardy finding is
considered to be warranted, because of
the relationship of each core area
population to the survival and recovery
of the species as a whole.
Adverse Modification Standard
The analytical framework described
in the Director’s December 9, 2004,
memorandum is used to complete
section 7(a)(2) analyses for Federal
actions affecting Laguna Mountains
skipper critical habitat. The key factor
related to the adverse modification
determination is 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 its intended
conservation role for the species.
Generally, the conservation role of
Laguna Mountains skipper critical
habitat units is to support viable core
area populations.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe in any
proposed or final regulation that
designates critical habitat those
activities involving a Federal action that
may destroy or adversely modify such
habitat, or that may be affected by such
designation. Activities that may destroy
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or adversely modify critical habitat may
also jeopardize the continued existence
of the species.
Activities that may destroy or
adversely modify critical habitat are
those that alter the PCEs to an extent
that the conservation value of critical
habitat for the Laguna Mountains
skipper is appreciably reduced.
Activities that, when carried out,
funded, or authorized by a Federal
agency, may affect critical habitat and
therefore result in consultation for the
Laguna Mountains skipper include, but
are not limited to:
(1) Actions that destroy Laguna
Mountains skipper hostplants and
immature life stages of the species. Such
activities could include, but are not
limited to overgrazing by livestock,
vegetation removal, and recreational
activities. These activities could
eliminate breeding and nectaring
resources for the adults, and directly
destroy eggs, pupae, or larvae.
(2) Actions that would, over the longterm or permanently destroy habitat
containing primary constituent
elements. Such activities could include,
but are not limited to: removal or
destruction of hostplants and nectar
sources by paving or piling logs;
erection of permanent structures or
cultivation of large shrubs or trees that
impede adult movement; manipulation
of seeps, springs, or creeks that
eliminates surface moisture; paved road
construction in occupied habitat; and
rural development that eliminates or
fragments habitat. These activities
reduce the amount of available habitat
and directly and indirectly increase the
extirpation probability of associated
Laguna Mountains skipper populations.
(3) Actions that would alter the
vegetation of meadow habitat, for
example invasion of exotic species or
forest encroachment. Such activities
could include, but are not limited to,
stream or groundwater diversion. These
activities could decrease the area of
open meadow and soil moisture content
and eliminate suitable Laguna
Mountains skipper oviposition sites.
Fire management activities, such as
tree and brush removal for fuel
modification, or relatively low density
grazing should not adversely modify
habitat if carefully managed to minimize
or avoid destruction of hostplants.
All of the units identified as critical
habitat contain features essential to the
conservation of the Laguna Mountains
skipper. All units are within the
geographic range of the species. Federal
agencies already consult with us on
activities in areas currently occupied by
the Laguna Mountains skipper, or if the
species may be affected by the action, to
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ensure that their actions do not
jeopardize the continued existence of
the Laguna Mountains skipper.
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Exclusions Under Section 4(b)(2) of the
Act
Section 4(b)(2) of the Act states that
critical habitat shall be designated, and
revised, on the basis of the best
available scientific data after taking into
consideration the economic impact,
national security impact, and any other
relevant impact, of specifying any
particular area as critical habitat. The
Secretary may exclude an area from
critical habitat if [s]he determines that
the benefits of such exclusion outweigh
the benefits of specifying such area as
part of the critical habitat, unless [s]he
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the Secretary is afforded broad
discretion and the Congressional record
is clear that in making a determination
under the section the Secretary has
discretion as to which factors and how
much weight will be given to any factor.
Under section 4(b)(2), in considering
whether to exclude a particular area
from the designation, we must identify
the benefits of including the area in the
designation, identify the benefits of
excluding the area from the designation,
and determine whether the benefits of
exclusion outweigh the benefits of
inclusion. If an exclusion is
contemplated, then we must determine
whether excluding the area would result
in the extinction of the species.
Forest Service actions, completed and
ongoing, contribute to the conservation
of the Laguna Mountains skipper and its
habitat. The Cleveland National Forest
has implemented measures to minimize
impacts to the Laguna Mountains
skipper, pursuant to consultation with
the Service under section 7 of the Act
(Service Biological Opinions 1–6–05–F–
773.9, 1–6–99–F–22, and 1–6–01–F–
1694). Implemented post-listing impact
minimization measures include: (1) An
exclosure to reduce recreation impacts
and tree thinning to enhance habitat in
1997 at Observatory Campground; (2)
grazing exclosures to study grazing
effects in 1996, 1999, and 2000, at
Mendenhall Valley, Little Laguna
Meadow, and Laguna Meadow; (3)
visitor impact monitoring and visitor
capacity reduction to minimize
recreation impacts at Laguna
Campground; and (4) habitat studies
and surveys from 2000 to 2006 to
increase biological knowledge of the
species.
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Provisions within two Forest Service
management documents also promote
conservation of the Laguna Mountains
skipper. The Cleveland National Forest
has a habitat management guide for four
sensitive plant species in mountain
meadows habitat (Cleveland National
Forest 1991, pp. 1–36). While the
habitat management guide is designed
to facilitate conservation of meadow
habitat and protection of sensitive plant
species affected by grazing and
recreation, it does not specifically
provide for conservation of the Laguna
Mountains skipper. In addition, the
2005 Land Management Plan for the
Cleveland National Forest (LMP)
provides long-term strategic
management direction for Forest Service
lands (Terrell 2006a, pp. 1; 2006b, pp.
1–2). According to the Forest Service
Land Management Plan Part 1: Southern
California National Forests Vision
(Forest Service 2005, p. 3):
The purpose of the [LMP] is to articulate
the long-term vision and strategic
management direction for each southern
California national forest and to facilitate the
development of management activities . . . It
is important to emphasize that the revised
forest plans are completely strategic. They do
not make project level decisions nor do they
compel managers to implement specific
actions or activities. Current uses are carried
forward. Any changes made to existing uses
or new proposals will be determined at the
project level according to the requirements of
the National Environmental Policy Act.
New hostplant and Laguna Mountains
skipper locations have been recorded
since the Cleveland National Forest
developed a model (map) of Laguna
Mountains skipper habitat (Winter 2000,
pg. 1). Although Forest Service modeled
habitat (Winter 2000, pg. 1) comprised
67 percent (4,464 of 6,662 acres (1,807
of 2,696 ha)) of Laguna Mountains
skipper proposed critical habitat, some
areas of proposed critical habitat where
hostplant occurrence data were
concentrated fell outside of Forest
Service modeled habitat (e.g., at the
southern end of subunit 1A).
The Forest Service LMP provides
some species-specific directions for
protecting the Laguna Mountains
skipper, including the standard,
‘‘[a]void or mitigate, following
consultation, activities resulting in
direct trampling or erosion problems to
Laguna Mountains Skipper suitable and
occupied habitat and adjacent areas.’’
Because there are relatively large areas
of habitat not known to be occupied on
Laguna and Palomar Mountains,
designation of critical habitat will help
identify where consultation and
conservation is needed for the Laguna
Mountains skipper. Because the benefits
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of exclusion of the areas identified as
critical habitat within the Cleveland
National Forest do not outweigh the
benefits of inclusion of these areas, we
did not exclude Forest Service lands
from the final designation under section
4(b)(2) of the Act.
Based on the best available
information including the prepared
economic analysis, we believe that all of
the units known to occupied at the time
of listing contain the features essential
for conservation of the species and that
the units not known to be currently
occupied are essential for the
conservation of the species. Our
economic analysis indicates an overall
low cost resulting from the designation.
Therefore, we have found no areas for
which the benefits of exclusion
outweigh the benefits of inclusion, and
have not excluded any areas from this
designation of critical habitat for the
Laguna Mountains skipper based on
economic impacts.
Pursuant to section 4(b)(2) of the Act,
we must consider other relevant impacts
in addition to economic ones. We are
not aware of any habitat conservation
plans currently being developed for
Laguna Mountains skipper on any lands
included in this final designation. Also,
this designation does not include any
Tribal lands or trust resources.
Therefore, we anticipate no impact to
national security, Tribal lands,
partnerships, or habitat conservation
plans from this critical habitat
designation. As such, we have
considered these potential impacts but
are not excluding any lands from this
designation under section 4(b)(2).
Economic Analysis
Section 4(b)(2) of the Act requires us
to designate critical habitat on the basis
of the best scientific information
available and to consider the economic
and other relevant impacts of
designating a particular area as critical
habitat. We may exclude areas from
critical habitat upon a determination
that the benefits of such exclusions
outweigh the benefits of specifying such
areas as critical habitat. We cannot
exclude such areas from critical habitat
when such exclusion will result in the
extinction of the species concerned.
Following the publication of the
proposed critical habitat designation,
we conducted an economic analysis to
estimate the potential economic effect of
the designation. The draft analysis was
made available for public review on July
7, 2006 (71 FR 38593). We accepted
comments on the draft analysis until
August 7, 2006. We respond to the
comments we received on the draft
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analysis in the Summary of Comments
and Recommendations section above.
The primary purpose of the economic
analysis is to estimate the potential
economic impacts associated with the
designation of critical habitat for the
Laguna Mountains skipper. This
information is intended to assist the
Secretary in making decisions about
whether the benefits of excluding
particular areas from the designation
outweigh the benefits of including those
areas in the designation. This economic
analysis considers the economic
efficiency effects that may result from
the designation, including habitat
protections that may be co-extensive
with the listing of the species. It also
addresses distribution of impacts,
including an assessment of the potential
effects on small entities and the energy
industry. This information can be used
by the Secretary to assess whether the
effects of the designation might unduly
burden a particular group or economic
sector.
This analysis focuses on the direct
and indirect costs of the rule. However,
economic impacts to land use activities
can exist in the absence of critical
habitat. These impacts may result from,
for example, local zoning laws, State
and natural resource laws, and
enforceable management plans and best
management practices applied by other
State and Federal agencies. Economic
impacts that result from these types of
protections are not included in the
analysis as they are considered to be
part of the regulatory and policy
baseline.
Laguna Mountains skipper
conservation activities are likely to
primarily impact recreational camping
and utility maintenance activities. The
draft economic analysis estimates the
potential total future impacts to range
from $6.5 million to $8.9 million
(undiscounted) over 20 years.
Discounted future costs are estimated to
be $3.7 million to $5.1 million over this
same time period ($351,000 to $480,000
annually) using a real rate of 7 percent,
or $5.0 million to $6.9 million ($337,000
to $461,000 annually) using a real rate
of 3 percent. Differences in the low and
high impact estimates result primarily
from uncertainty regarding the potential
impacts to utility companies conducting
maintenance activities and making
repairs in proposed critical habitat. The
low-end estimate of costs assumes
grazing on private lands is not affected
and biologists’ time on site during
utility repairs and maintenance is
limited to one day per project. Costs
under this estimate are dominated (88
percent) by welfare losses to campers in
Subunits 1A and 1C. The high-end
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estimate of costs assumes grazing
activities on private lands in proposed
critical habitat will be restricted and
that utility projects will last longer than
a single day. Costs under this estimate
are dominated by lost camping
opportunities (64 percent) and to a
lesser extent costs to utilities (22
percent). In the low-end estimate, 95
percent of the costs are associated with
Subunits 1A and 1C. In the high-end
estimate, Subunits 1A and 1C again
dominate total costs, accounting for 83
percent of total estimated impacts.
A copy of the final economic analysis
with supporting documents is included
in our administrative record and may be
obtained by contacting U.S. Fish and
Wildlife Service, Branch of Endangered
Species (see ADDRESSES section) or for
downloading from the Internet at
https://www.fws.gov/carlsbad/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order
12866, this document is a significant
rule in that it may raise novel legal and
policy issues, but will not have an
annual effect on the economy of $100
million or more or affect the economy
in a material way. Due to the tight
timeline for publication in the Federal
Register, the Office of Management and
Budget (OMB) has not formally
reviewed this rule. As explained above,
we prepared an economic analysis of
this action. We used this analysis to
meet the requirement of section 4(b)(2)
of the Act to determine the economic
consequences of designating the specific
areas as critical habitat. We also used it
to help determine whether to exclude
any area from critical habitat, as
provided for under section 4(b)(2), if we
determine that the benefits of such
exclusion outweigh the benefits of
specifying such area as part of the
critical habitat, unless we determine,
based on the best scientific data
available, that the failure to designate
such area as critical habitat will result
in the extinction of the species.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA) (as amended by the Small
Business Regulatory Enforcement
Fairness Act (SBREFA) of 1996),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small government
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jurisdictions). However, no regulatory
flexibility analysis is required if the
head of an agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
statement of factual basis for certifying
that the rule will not have a significant
economic impact on a substantial
number of small entities. The SBREFA
also amended the RFA to require a
certification statement.
Small entities include small
organizations, such as independent
nonprofit organizations; small
governmental jurisdictions, including
school boards and city and town
governments that serve fewer than
50,000 residents; as well as small
businesses. Small businesses include
manufacturing and mining concerns
with fewer than 500 employees,
wholesale trade entities with fewer than
100 employees, retail and service
businesses with less than $5 million in
annual sales, general and heavy
construction businesses with less than
$27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts to these
small entities are significant, we
consider the types of activities that
might trigger regulatory impacts under
this rule, as well as the types of project
modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
To determine if the rule could
significantly affect a substantial number
of small entities, we consider the
number of small entities affected within
particular types of economic activities
(e.g., housing development, grazing, oil
and gas production, timber harvesting).
We apply the ‘‘substantial number’’ test
individually to each industry to
determine if certification is appropriate.
However, the SBREFA does not
explicitly define ‘‘substantial number’’
or ‘‘significant economic impact.’’
Consequently, to assess whether a
‘‘substantial number’’ of small entities is
affected by this designation, this
analysis considers the relative number
of small entities likely to be impacted in
an area. In some circumstances,
especially with critical habitat
designations of limited extent, we may
aggregate across all industries and
consider whether the total number of
small entities affected is substantial. In
estimating the number of small entities
potentially affected, we also consider
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whether their activities have any
Federal involvement.
Designation of critical habitat only
affects activities conducted, funded, or
permitted by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
fund, permit, or implement that may
affect the Laguna Mountains skipper.
Federal agencies also must consult with
us if their activities may affect critical
habitat. Designation of critical habitat,
therefore, could result in an additional
economic impact on small entities due
to the requirement to reinitiate
consultation for ongoing Federal
activities.
Our economic analysis determined
that costs involving conservation
measures for the Laguna Mountains
skipper would be incurred for activities
involving: (1) Grazing activities; (2)
recreational camping activities; (3)
recreational hiking activities; (4) utility
activities; (5) rural development; (6)
other activities on Federal lands; and,
(7) Laguna Mountains skipper
management activities on State lands.
As explained in our draft economic
analysis, impacts of skipper
conservation are not anticipated to
affect small entities in five of these
seven categories: hiking; utilities; rural
development; other activities on Federal
lands; and management activities on
State lands. Since neither Federal nor
State governments are defined as small
entities by the Small Business
Administration (SBA), the economic
impacts borne by the Forest Service and
the California Department of Fish and
Game (CDFG) resulting from
implementation of skipper conservation
activities or modifications to activities
on Federal lands are not relevant to this
analysis. Likewise, neither of the major
utility companies involved (SDG&E and
AT&T) would fit the SBA definition of
small entities. Accordingly, the small
business analysis focuses on economic
impacts to grazing and recreational
camping activities.
The designation includes areas of
USFS and private lands that are used for
livestock grazing. On some Federal
allotments that contain Laguna
Mountains skipper habitat, meadow
areas have been excluded from grazing,
thus reducing the carrying capacity, or
permitted Animal Unit Months (AUMs),
on those allotments. Historically,
returns to cattle operations have been
low throughout the West. In recent
years, these returns have been lower due
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to the recent wildfires and droughts in
California. As a result, any reductions in
grazing effort for the Laguna Mountains
skipper may affect the sustainability of
ranching operations in these areas. The
analysis assumes that in the future,
grazing efforts on proposed critical
habitat areas will be reduced, or in the
high-end estimate, eliminated on private
land due to skipper concerns. Private
ranchers could be affected either by
reductions in federally permitted AUMs
that they hold permits to, or by
reductions on grazing efforts on private
property to avoid adverse impacts on
Laguna Mountains skipper habitat. The
expected reduction in AUMs is based on
an examination of historical grazing
levels, section 7 consultations, and
discussions with range managers,
wildlife biologist, and permittees. Based
on this analysis, the high-end impact on
grazing activities is estimated at an
annual reduction of 1,979 AUMs, of
which 1,363 are federally permitted and
618 are private. The majority of these
AUM reductions fall on two ranchers:
one operating in Subunit 1A and
another operating in Subunit 2A.
Therefore, cumulatively over 20 years,
two ranchers could be affected by total
reductions in AUMs due to Laguna
Mountains skipper conservation
activities.
The economic analysis considers
lower- and upper-bounds of potential
economic impact on recreational
camping activities. The lower-bound
equals no economic impact. In the
upper-bound, economic impacts are
estimated for recreational campers
whose activities may be interrupted by
Laguna Mountains skipper conservation
activities resulting in a decrease in the
number of camping trips. Scenario 2
concludes that camping trips may
decrease by as many as 5,352 trips per
year. If fewer camping trips were to
occur within proposed critical habitat
areas, local establishments providing
services to campers may be indirectly
affected by Laguna Mountains skipper
conservation activities. Decreased
visitation may reduce the amount of
money spent in the region across a
variety of industries, including food and
beverage stores, food service and
drinking places, accommodations,
transportation and rental services.
The economic analysis uses regional
economic modeling—in particular a
software package called IMPLAN—to
estimate the total economic effects of
the reduction in economic activity in
camping-related industries in the one
county (San Diego County) associated
with Laguna Mountains skipper
conservation activities. Commonly used
by State and Federal agencies for policy
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planning and evaluation purposes,
IMPLAN translates estimates of initial
trip expenditures (e.g., food, lodging,
and gas) into changes in demand for
inputs to affected industries. Changes in
output and employment are calculated
for all industries and then aggregated to
determine the regional economic impact
of reduced recreational camping-related
expenditures potentially associated with
Laguna Mountains skipper conservation
activities.
This analysis uses the average
expenditures reported by the 2001
National Survey of Fishing, Hunting,
and Wildlife-Associated Recreation for
California for fishing, hunting and
wildlife-associated recreation, or
approximately $26.23 per trip. This pertrip estimate of expenditures is then
combined with the number of camping
trips potentially lost due to Laguna
Mountains skipper conservation
activities (a 1-year loss of 5,352 trips per
year) to estimate the regional economic
impacts. When compared to the $192
billion dollar regional economy of San
Diego County, the potential loss
generated by a decrease in camping trips
is a relatively small impact (i.e., less
than 0.01 percent). Therefore based on
these results, this analysis determines
no significant effect on camping-related
industries due to Laguna Mountains
skipper conservation activities in San
Diego County.
In general, two different mechanisms
in section 7 consultations could lead to
additional regulatory requirements for
the approximately four small
businesses, on average, that may be
required to consult with us each year
regarding their project’s impact on
Laguna Mountains skipper and its
habitat. First, if we conclude, in a
biological opinion, that a proposed
action is likely to jeopardize the
continued existence of a species or
adversely modify its critical habitat, we
can offer ‘‘reasonable and prudent
alternatives.’’ Reasonable and prudent
alternatives are alternative actions that
can be implemented in a manner
consistent with the scope of the Federal
agency’s legal authority and
jurisdiction, that are economically and
technologically feasible, and that would
avoid jeopardizing the continued
existence of listed species or result in
adverse modification of critical habitat.
A Federal agency and an applicant may
elect to implement a reasonable and
prudent alternative associated with a
biological opinion that has found
jeopardy or adverse modification of
critical habitat. An agency or applicant
could alternatively choose to seek an
exemption from the requirements of the
Act or proceed without implementing
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the reasonable and prudent alternative.
However, unless an exemption were
obtained, the Federal agency or
applicant would be at risk of violating
section 7(a)(2) of the Act if it chose to
proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed
action is not likely to jeopardize the
continued existence of a listed animal,
we may identify reasonable and prudent
measures designed to minimize the
amount or extent of take and require the
Federal agency or applicant to
implement such measures through nondiscretionary terms and conditions. We
may also identify discretionary
conservation recommendations
designed to minimize or avoid the
adverse effects of a proposed action on
listed species or critical habitat, help
implement recovery plans, or to develop
information that could contribute to the
recovery of the species.
Based on our experience with
consultations pursuant to section 7 of
the Act for all listed species, virtually
all projects—including those that, in
their initial proposed form, would result
in jeopardy or adverse modification
determinations in section 7
consultations—can be implemented
successfully with, at most, the adoption
of reasonable and prudent alternatives.
These measures, by definition, must be
economically feasible and within the
scope of authority of the Federal agency
involved in the consultation. We can
only describe the general kinds of
actions that may be identified in future
reasonable and prudent alternatives.
These are based on our understanding of
the needs of the species and the threats
it faces, as described in the final listing
rule and this critical habitat designation.
Within the final critical habitat units,
the types of Federal actions or
authorized activities that we have
identified as potential concerns are:
(1) Regulation of activities affecting
waters of the United States by the Corps
under section 404 of the Clean Water
Act;
(2) Regulation of water flows,
damming, diversion, and channelization
implemented or licensed by Federal
agencies;
(3) Regulation of timber harvest,
grazing, mining, and recreation by the
USFS and BLM;
(4) Road construction and
maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Hazard mitigation and postdisaster repairs funded by the FEMA;
and
(6) Activities funded by the EPA, U.S.
Department of Energy, or any other
Federal agency.
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It is likely that a developer or other
project proponent could modify a
project or take measures to protect the
Laguna Mountains skipper. The kinds of
actions that may be included if future
reasonable and prudent alternatives
become necessary include conservation
set-asides, management of competing
nonnative species, restoration of
degraded habitat, and regular
monitoring. These are based on our
understanding of the needs of the
species and the threats it faces, as
described in the final listing rule and
proposed critical habitat designation.
These measures are not likely to result
in a significant economic impact to
project proponents.
In summary, we have considered
whether this would result in a
significant economic effect on a
substantial number of small entities.
Federal involvement, and thus section 7
consultations, would be limited to a
subset of the area designated. Only two
potential small entities engaged in
grazing may be impacted by the
designation of critical habitat for the
Laguna Mountains skipper, and the
potential economic loss attributable to
impacts to recreational activities is
small (i.e., less than 0.01 percent).
Therefore, for the above reasons and
based on currently available
information, we certify that the rule will
not have a significant economic impact
on a substantial number of small
entities, and a regulatory flexibility
analysis is not required.
Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 801 et seq.)
Under SBREFA, this rule is not a
major rule. Our detailed assessment of
the economic effects of this designation
is described in the economic analysis.
Based on the effects identified in the
economic analysis, we believe that this
rule will not have an annual effect on
the economy of $100 million or more,
will not cause a major increase in costs
or prices for consumers, and will not
have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises. Refer to
the final economic analysis for a
discussion of the effects of this
determination.
Executive Order 13211
On May 18, 2001, the President issued
Executive Order 13211 on regulations
that significantly affect energy supply,
distribution, and use. Executive Order
13211 requires agencies to prepare
Statements of Energy Effects when
undertaking certain actions. This final
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74607
rule to designated critical habitat for the
Laguna Mountains skipper is not
expected to significantly affect energy
supplies, distribution, or use. Therefore,
this action is not a significant energy
action and no Statement of Energy
Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(a) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local,
Tribal governments, or the private sector
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or Tribal
governments’’ with two exceptions. It
excludes ‘‘a condition of federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and Tribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
Government’s responsibility to provide
funding’’ and the State, local, or Tribal
governments ‘‘lack authority’’ to adjust
accordingly. (At the time of enactment,
these entitlement programs were:
Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation
State Grants; Foster Care, Adoption
Assistance, and Independent Living;
Family Support Welfare Services; and
Child Support Enforcement.) ‘‘Federal
private sector mandate’’ includes a
regulation that ‘‘would impose an
enforceable duty upon the private
sector, except (i) a condition of Federal
assistance; or (ii) a duty arising from
participation in a voluntary Federal
program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities who receive Federal
funding, assistance, permits or
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otherwise require approval or
authorization from a Federal agency for
an action may be indirectly impacted by
the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply; nor would critical habitat
shift the costs of the large entitlement
programs listed above on to State
governments.
(b) We do not believe that this rule
will significantly or uniquely affect
small governments because it will not
produce a Federal mandate of $100
million or greater in any year, that is, it
is not a ‘‘significant regulatory action’’
under the Unfunded Mandates Reform
Act. The designation of critical habitat
imposes no obligations on State or local
governments. As such, Small
Government Agency Plan is not
required.
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Federalism
In accordance with Executive Order
13132, the rule does not have significant
Federalism effects. A Federalism
assessment is not required. In keeping
with DOI and Department of Commerce
policy, we requested information from,
and coordinated development of, this
final critical habitat designation with
appropriate State resource agencies in
California. The designation of critical
habitat for the Laguna Mountains
skipper may impose nominal additional
regulatory restrictions to those currently
in place and, therefore, may have an
incremental impact on State and local
governments and their activities. The
designation may have some benefit to
these governments in that the areas that
contain the features essential to the
conservation of the species are more
clearly defined, and the primary
constituent elements of the habitat
necessary to the conservation of the
species are specifically identified. While
making this definition and
identification does not alter where and
what federally sponsored activities may
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occur, it may assist these local
governments in long-range planning
(rather than waiting for case-by-case
section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that the rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the Order. We are
designating critical habitat in
accordance with the provisions of the
Endangered Species Act. This final rule
uses standard property descriptions and
identifies the primary constituent
elements within the designated areas to
assist the public in understanding the
habitat needs of the Laguna Mountains
skipper.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act. This rule will not
impose recordkeeping or reporting
requirements on State or local
governments, individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
It is our position that, outside the
Tenth Circuit, we do not need to
prepare environmental analyses as
defined by the NEPA in connection with
designating critical habitat under the
Endangered Species Act of 1973, as
amended. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
assertion was upheld in the courts of the
Ninth Circuit (Douglas County v.
Babbitt, 48 F. 3d 1495 (9th Cir. Ore.
1995), cert. denied 116 S. Ct. 698
(1996).)
Government-to-Government
Relationship with Tribes
In accordance with the President’s
memorandum of April 29, 1994,
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‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951), Executive
Order 13175, and the Department of
Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. We
have determined that there are no Tribal
lands supporting Laguna Mountains
skipper habitat that meets the definition
of critical habitat. Therefore, critical
habitat for the Laguna Mountains
skipper has not been designated on
Tribal lands.
References Cited
A complete list of all references cited
in this rulemaking is available upon
request from the Field Supervisor,
Carlsbad Fish and Wildlife Office (see
ADDRESSES section).
Author(s)
The primary authors of this package
are staff from the Carlsbad Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
I
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
I
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.11(h), revise the entry for
‘‘Laguna Mountains skipper’’ under
‘‘INSECTS’’ to read as follows:
I
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
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*
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Species
Vertebrate
population where
endangered or
threatened
Historic range
Common name
*
INSECTS
*
*
Skipper, Laguna
Mountains.
*
Scientific name
*
*
Pyrgus ruralis
lagunae.
*
U.S.A. (CA) ...........
*
*
3. In § 17.95(i), add an entry for
Laguna Mountains Skipper (Pyrgus
ruralis lagunae) under ‘‘INSECTS’’ in
the same alphabetical order as this
species appears in the table in § 17.11(h)
to read as follows:
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
(i) Insects.
*
*
*
*
*
Laguna Mountains Skipper (Pyrgus
ruralis lagunae)
(1) Critical habitat units are depicted
for San Diego County, California, on the
maps below.
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*
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Status
*
*
Entire ....................
*
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*
604
*
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Critical
habitat
*
*
E ............
(2) The primary constituent elements
of critical habitat for the Laguna
Mountains skipper are the habitat
components that provide:
(i) The hostplants, Horkelia
clevelandii or Potentilla glandulosa,
which are needed for reproduction, in
meadows or forest openings.
(ii) 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.
(iii) Wet soil or standing water
associated with features such as seeps,
springs, or creeks where water and
PO 00000
When listed
*
Special rules
*
17.95(i)
*
NA
*
minerals are obtained during the adult
flight season.
(3) Critical habitat does not include
man-made structures existing on the
effective date of this rule and not
containing one or more of the primary
constituent elements, such as buildings,
aqueducts, airports, and roads, and the
land on which such structures are
located.
(4) Data layers defining map units
were created on a base of USGS 1:24,000
quadrangle maps, and critical habitat
units were then mapped using Universal
Transverse Mercator (UTM) coordinates.
(5) Note: Map 1 (index map) follows:
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(6) Unit 1: Laguna Mountain, San
Diego County, California. From USGS
1:24,000 quadrangle maps Monument
Peak and Mount Laguna.
(i) Subunit 1A: lands bounded by the
following UTM NAD27 coordinates
(E,N): 551900, 3635400; 551900,
3635600; 551800, 3635600; 551800,
3635300; 552000, 3635300; 552000,
3634900; 551800, 3634900; 551800,
3635000; 551600, 3635000; 551600,
3634900; 551400, 3634900; 551400,
3635300; 551300, 3635300; 551300,
3635600; 551200, 3635600; 551200,
3635700; 551100, 3635700; 551100,
3636000; 551000, 3636000; 551000,
3636100; 550900, 3636100; 550900,
3636200; 550800, 3636200; 550800,
3636100; 550700, 3636100; 550700,
3636000; 550800, 3636000; 550800,
3635800; 550600, 3635800; 550600,
3635700; 550500, 3635700; 550500,
3635500; 550400, 3635500; 550400,
3635400; 550300, 3635400; 550300,
3635300; 550100, 3635300; 550100,
3635500; 550000, 3635500; 550000,
3636200; 549800, 3636200; 549800,
3636500; 549900, 3636500; 549900,
3636600; 549800, 3636600; 549800,
3636700; 549700, 3636700; 549700,
3637000; 549800, 3637000; 549800,
3637100; 549900, 3637100; 549900,
3637600; 550200, 3637600; 550200,
3637900; 550100, 3637900; 550100,
3638500; 550000, 3638500; 550000,
3638600; 549900, 3638600; 549900,
3638500; 549800, 3638500; 549800,
3638000; 549700, 3638000; 549700,
3637700; 549500, 3637700; 549500,
3638000; 549600, 3638000; 549600,
3638100; 549500, 3638100; 549500,
3638200; 549100, 3638200; 549100,
3638400; 549200, 3638400; 549200,
3638500; 549300, 3638500; 549300,
3638800; 549400, 3638800; 549400,
3638900; 549300, 3638900; 549300,
3639000; 549600, 3639000; 549600,
3638600; 549700, 3638600; 549700,
3638700; 549800, 3638700; 549800,
3638900; 549900, 3638900; 549900,
3639000; 549700, 3639000; 549700,
3639200; 549600, 3639200; 549600,
3639300; 549500, 3639300; 549500,
3639500; 549400, 3639500; 549400,
3639600; 549300, 3639600; 549300,
3640000; 549400, 3640000; 549400,
3640100; 549700, 3640100; 549700,
3640000; 549800, 3640000; 549800,
3640100; 549900, 3640100; 549900,
3640200; 549700, 3640200; 549700,
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3640300; 549600, 3640300; 549600,
3640500; 549800, 3640500; 549800,
3640600; 550100, 3640600; 550100,
3640500; 550200, 3640500; 550200,
3640400; 550300, 3640400; 550300,
3640000; 551000, 3640000; 551000,
3639900; 551100, 3639900; 551100,
3639700; 550500, 3639700; 550500,
3639400; 550400, 3639400; 550400,
3639300; 550500, 3639300; 550500,
3639200; 550600, 3639200; 550600,
3639100; 550700, 3639100; 550700,
3639000; 550800, 3639000; 550800,
3638900; 551000, 3638900; 551000,
3639300; 551100, 3639300; 551100,
3639500; 551300, 3639500; 551300,
3639700; 551700, 3639700; 551700,
3639400; 551800, 3639400; 551800,
3639300; 551900, 3639300; 551900,
3639100; 551800, 3639100; 551800,
3639000; 551900, 3639000; 551900,
3638900; 551800, 3638900; 551800,
3638800; 551900, 3638800; 551900,
3638700; 552100, 3638700; 552100,
3638800; 552200, 3638800; 552200,
3638700; 552500, 3638700; 552500,
3638300; 552300, 3638300; 552300,
3638400; 552200, 3638400; 552200,
3638300; 551900, 3638300; 551900,
3638100; 551500, 3638100; 551500,
3637900; 551700, 3637900; 551700,
3637800; 551800, 3637800; 551800,
3637700; 552100, 3637700; 552100,
3637600; 552200, 3637600; 552200,
3637500; 552500, 3637500; 552500,
3637700; 552600, 3637700; 552600,
3637800; 553000, 3637800; 553000,
3638000; 553100, 3638000; 553100,
3638100; 553600, 3638100; 553600,
3638000; 553800, 3638000; 553800,
3637900; 553700, 3637900; 553700,
3637600; 553800, 3637600; 553800,
3637400; 553700, 3637400; 553700,
3637500; 553500, 3637500; 553500,
3637200; 553100, 3637200; 553100,
3637100; 553200, 3637100; 553200,
3636900; 552900, 3636900; 552900,
3637000; 552800, 3637000; 552800,
3637100; 552700, 3637100; 552700,
3637000; 552600, 3637000; 552600,
3637100; 552400, 3637100; 552400,
3637200; 552300, 3637200; 552300,
3637100; 552200, 3637100; 552200,
3637000; 552000, 3637000; 552000,
3637100; 551900, 3637100; 551900,
3637300; 551500, 3637300; 551500,
3637200; 551400, 3637200; 551400,
3637100; 551200, 3637100; 551200,
3636700; 551300, 3636700; 551300,
3636600; 551400, 3636600; 551400,
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3636500; 551600, 3636500; 551600,
3636400; 551700, 3636400; 551700,
3636300; 551800, 3636300; 551800,
3636200; 552000, 3636200; 552000,
3636100; 552100, 3636100; 552100,
3636000; 552200, 3636000; 552200,
3635900; 552300, 3635900; 552300,
3635500; 552200, 3635500; 552200,
3635400; 551900, 3635400.
(ii) Subunit 1B: lands bounded by the
following UTM NAD27 coordinates
(E,N): 549300, 3642300; 549400,
3642300; 549400, 3642400; 549600,
3642400; 549600, 3642300; 549800,
3642300; 549800, 3642200; 549900,
3642200; 549900, 3641900; 550000,
3641900; 550000, 3641400; 550100,
3641400; 550100, 3640900; 549600,
3640900; 549600, 3641000; 549300,
3641000; 549300, 3642300.
(iii) Subunit 1C: lands bounded by the
following UTM NAD27 coordinates
(E,N): 553000, 3634400; 553000,
3634500; 552900, 3634500; 552900,
3634900; 552800, 3634900; 552800,
3635600; 553100, 3635600; 553100,
3635400; 553300, 3635400; 553300,
3635300; 553400, 3635300; 553400,
3635200; 553300, 3635200; 553300,
3635100; 553200, 3635100; 553200,
3635000; 553300, 3635000; 553300,
3634900; 553400, 3634900; 553400,
3634800; 553600, 3634800; 553600,
3634600; 553700, 3634600; 553700,
3634200; 553600, 3634200; 553600,
3634100; 553500, 3634100; 553500,
3634000; 553400, 3634000; 553400,
3633800; 553300, 3633800; 553300,
3633600; 553200, 3633600; 553200,
3633300; 553300, 3633300; 553300,
3633200; 553500, 3633200; 553500,
3633300; 553600, 3633300; 553600,
3633000; 553700, 3633000; 553700,
3632300; 553600, 3632300; 553600,
3632200; 553300, 3632200; 553300,
3632300; 553200, 3632300; 553200,
3633000; 553100, 3633000; 553100,
3633200; 553000, 3633200; 553000,
3633300; 552900, 3633300; 552900,
3632800; 552600, 3632800; 552600,
3633000; 552700, 3633000; 552700,
3633400; 552800, 3633400; 552800,
3633800; 552700, 3633800; 552700,
3634300; 552800, 3634300; 552800,
3634400; 553000, 3634400.
(iv) Note: Map of Unit 1 (Map 2,
Subunits 1A, 1B, and 1C) follows:
BILLING CODE 4310–55–P
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(7) Unit 2: Palomar Mountain, San
Diego County, California. From USGS
1:24,000 quadrangle maps Boucher Hill
and Palomar Observatory.
(i) Subunit 2A: lands bounded by the
following UTM NAD27 coordinates (E,
N): 511300, 3689300; 511400, 3689300;
511400, 3689200; 511600, 3689200;
511600, 3689100; 511700, 3689100;
511700, 3689000; 511800, 3689000;
511800, 3688900; 512300, 3688900;
512300, 3688800; 512400, 3688800;
512400, 3689000; 512900, 3689000;
512900, 3688900; 513200, 3688900;
513200, 3688800; 513400, 3688800;
513400, 3688700; 513700, 3688700;
513700, 3688600; 513900, 3688600;
513900, 3688500; 514000, 3688500;
514000, 3688400; 514100, 3688400;
514100, 3688300; 514400, 3688300;
514400, 3688200; 514500, 3688200;
514500, 3688100; 515300, 3688100;
515300, 3688000; 515400, 3688000;
515400, 3687900; 515500, 3687900;
515500, 3687800; 515700, 3687800;
515700, 3687600; 515900, 3687600;
515900, 3687300; 515800, 3687300;
515800, 3687200; 515900, 3687200;
515900, 3687100; 516000, 3687100;
516000, 3687000; 516300, 3687000;
516300, 3686900; 516400, 3686900;
516400, 3686800; 516500, 3686800;
516500, 3686700; 516600, 3686700;
516600, 3686600; 517000, 3686600;
517000, 3686300; 517200, 3686300;
517200, 3686200; 517300, 3686200;
517300, 3686000; 517100, 3686000;
517100, 3685800; 517200, 3685800;
517200, 3685700; 516700, 3685700;
516700, 3685800; 516600, 3685800;
516600, 3686000; 516500, 3686000;
516500, 3686100; 516400, 3686100;
516400, 3686200; 516300, 3686200;
516300, 3686300; 516200, 3686300;
516200, 3686400; 516000, 3686400;
516000, 3686600; 515900, 3686600;
515900, 3686700; 515800, 3686700;
515800, 3686800; 515700, 3686800;
515700, 3686900; 515500, 3686900;
515500, 3687000; 515200, 3687000;
515200, 3687100; 514900, 3687100;
514900, 3687200; 514800, 3687200;
514800, 3687300; 514500, 3687300;
514500, 3687500; 514400, 3687500;
514400, 3687600; 514300, 3687600;
514300, 3687700; 514200, 3687700;
514200, 3687800; 514100, 3687800;
514100, 3687900; 514000, 3687900;
514000, 3688000; 513700, 3688000;
513700, 3688100; 513500, 3688100;
513500, 3688000; 513400, 3688000;
513400, 3687700; 513300, 3687700;
513300, 3687400; 513200, 3687400;
513200, 3687300; 513000, 3687300;
513000, 3687600; 512900, 3687600;
512900, 3688000; 512800, 3688000;
512800, 3688100; 512500, 3688100;
512500, 3688200; 512400, 3688200;
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512400, 3688400; 512300, 3688400;
512300, 3688500; 512000, 3688500;
512000, 3688600; 511900, 3688600;
511900, 3688500; 511700, 3688500;
511700, 3688800; 511500, 3688800;
511500, 3688900; 511400, 3688900;
511400, 3689000; 511300, 3689000;
511300, 3689100; 511200, 3689100;
511200, 3689200; 511300, 3689200;
511300, 3689300.
(ii) Subunit 2B: lands bounded by the
following UTM NAD27 coordinates
(E,N): 513000, 3690900; 513000,
3690800; 513200, 3690800; 513200,
3690600; 513100, 3690600; 513100,
3690400; 513200, 3690400; 513200,
3690300; 513300, 3690300; 513300,
3690000; 513200, 3690000; 513200,
3689900; 513300, 3689900; 513300,
3689600; 512900, 3689600; 512900,
3689400; 512700, 3689400; 512700,
3689500; 512600, 3689500; 512600,
3689300; 512300, 3689300; 512300,
3689400; 512200, 3689400; 512200,
3689500; 512000, 3689500; 512000,
3689700; 511900, 3689700; 511900,
3689900; 511800, 3689900; 511800,
3690200; 511700, 3690200; 511700,
3690300; 511600, 3690300; 511600,
3690500; 511500, 3690500; 511500,
3690600; 511200, 3690600; 511200,
3690700; 511100, 3690700; 511100,
3690800; 510800, 3690800; 510800,
3690900; 510700, 3690900; 510700,
3690800; 510600, 3690800; 510600,
3690900; 510500, 3690900; 510500,
3691000; 510200, 3691000; 510200,
3690900; 510300, 3690900; 510300,
3690600; 510400, 3690600; 510400,
3690300; 510200, 3690300; 510200,
3690400; 509800, 3690400; 509800,
3690500; 509700, 3690500; 509700,
3690600; 509500, 3690600; 509500,
3690700; 509400, 3690700; 509400,
3690800; 509300, 3690800; 509300,
3690900; 509100, 3690900; 509100,
3691000; 509000, 3691000; 509000,
3691200; 509200, 3691200; 509200,
3691100; 509400, 3691100; 509400,
3691300; 509300, 3691300; 509300,
3691500; 509500, 3691500; 509500,
3691400; 510000, 3691400; 510000,
3691500; 510100, 3691500; 510100,
3691600; 510200, 3691600; 510200,
3691700; 510700, 3691700; 510700,
3691600; 511000, 3691600; 511000,
3691500; 511100, 3691500; 511100,
3691400; 511400, 3691400; 511400,
3691200; 511600, 3691200; 511600,
3691100; 511700, 3691100; 511700,
3691000; 511900, 3691000; 511900,
3690900; 512000, 3690900; 512000,
3690700; 511800, 3690700; 511800,
3690600; 511900, 3690600; 511900,
3690500; 512000, 3690500; 512000,
3690400; 512100, 3690400; 512100,
3690300; 512200, 3690300; 512200,
3690200; 512500, 3690200; 512500,
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3690300; 512700, 3690300; 512700,
3690400; 512600, 3690400; 512600,
3690600; 512500, 3690600; 512500,
3690700; 512400, 3690700; 512400,
3690800; 512300, 3690800; 512300,
3691100; 512500, 3691100; 512500,
3691200; 513100, 3691200; 513100,
3691300; 513200, 3691300; 513200,
3691200; 513300, 3691200; 513300,
3690900; 513000, 3690900; excluding
lands bounded by the following UTM
NAD27 coordinates (E,N): 509900,
3691000; 510100, 3691000; 510100,
3690900; 510000, 3690900; 510000,
3690800; 509900, 3690800; 509900,
3691000; and 512800, 3691000; 513000,
3691000; 513000, 3690900; 512800,
3690900; 512800, 3691000.
(iii) Subunit 2C: lands bounded by the
following UTM NAD27 coordinates (E,
N): 509200, 3689100; 509400, 3689100;
509400, 3689000; 509700, 3689000;
509700, 3688700; 509800, 3688700;
509800, 3688600; 510200, 3688600;
510200, 3688900; 510800, 3688900;
510800, 3688800; 511100, 3688800;
511100, 3688600; 511200, 3688600;
511200, 3688500; 511300, 3688500;
511300, 3688400; 511200, 3688400;
511200, 3688300; 511500, 3688300;
511500, 3688200; 511600, 3688200;
511600, 3687900; 511300, 3687900;
511300, 3687600; 511200, 3687600;
511200, 3687500; 511100, 3687500;
511100, 3687400; 511200, 3687400;
511200, 3687100; 511000, 3687100;
511000, 3687200; 510900, 3687200;
510900, 3687300; 510600, 3687300;
510600, 3687500; 510500, 3687500;
510500, 3687400; 510400, 3687400;
510400, 3687500; 510300, 3687500;
510300, 3687600; 510400, 3687600;
510400, 3687700; 510500, 3687700;
510500, 3687800; 510400, 3687800;
510400, 3687900; 510300, 3687900;
510300, 3687800; 510100, 3687800;
510100, 3687900; 509900, 3687900;
509900, 3688200; 509800, 3688200;
509800, 3688300; 509700, 3688300;
509700, 3688400; 509500, 3688400;
509500, 3688500; 509300, 3688500;
509300, 3688600; 509200, 3688600;
509200, 3689100.
(iv) Subunit 2D: lands bounded by the
following UTM NAD27 coordinates
(E,N): 507700, 3690800; 508000,
3690800; 508000, 3690700; 508100,
3690700; 508100, 3690800; 508300,
3690800; 508300, 3690600; 508400,
3690600; 508400, 3690500; 508500,
3690500; 508500, 3690300; 508400,
3690300; 508400, 3690100; 508500,
3690100; 508500, 3690000; 508600,
3690000; 508600, 3689900; 508700,
3689900; 508700, 3689700; 508800,
3689700; 508800, 3689600; 508900,
3689600; 508900, 3689100; 508700,
3689100; 508700, 3689200; 508600,
3689200; 508600, 3689300; 508400,
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3689300; 508400, 3689400; 508200,
3689400; 508200, 3689800; 508000,
3689800; 508000, 3690000; 507900,
3690000; 507900, 3690200; 507800,
3690200; 507800, 3690400; 507500,
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Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations
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David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
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Agencies
[Federal Register Volume 71, Number 238 (Tuesday, December 12, 2006)]
[Rules and Regulations]
[Pages 74592-74615]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9498]
[[Page 74591]]
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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 Laguna Mountains Skipper (Pyrgus ruralis lagunae);
Final Rule
Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 /
Rules and Regulations
[[Page 74592]]
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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 (Pyrgus ruralis
lagunae)
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 Laguna Mountains skipper (Pyrgus
ruralis lagunae) pursuant to the Endangered Species Act of 1973, as
amended (Act). In total, approximately 6,242 acres (ac) (2,525 hectares
(ha)) fall within the boundaries of the critical habitat designation.
The critical habitat is located in San Diego County, California, on
lands under Federal (3,516 ac (1,423 ha)), State (381 ac (154 ha)), and
private (2,345 ac (948 ha)) ownership.
DATES: This rule becomes effective on January 11, 2007.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011 (telephone 760/431-9440). The final rule,
economic analysis, and maps are available via the Internet at https://
www.fws.gov/carlsbad/.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, telephone, 760/431-9440; facsimile, 760/431-
9624.
SUPPLEMENTARY INFORMATION:
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under ESA section 4(b)(2), there are significant limitations
on the regulatory effect of designation under ESA section 7(a)(2). In
brief, (1) designation provides additional protection to habitat only
where there is a federal nexus; (2) the protection is relevant only
when, in the absence of designation, destruction or adverse
modification of the critical habitat would in fact take place (in other
words, other statutory or regulatory protections, policies, or other
factors relevant to agency decisionmaking would not prevent the
destruction or adverse modification); and (3) designation of critical
habitat triggers the prohibition of destruction or adverse modification
of that habitat, but it does not require specific actions to restore or
improve habitat.
Currently, only 475 species or 36 percent of the 1,310 listed
species in the U.S. under the jurisdiction of the Service have
designated critical habitat. We address the habitat needs of all 1,310
listed species through conservation mechanisms such as listing, section
7 consultations, the section 4 recovery planning process, the section 9
protective prohibitions of unauthorized take, section 6 funding to the
States, the section 10 incidental take permit process, and cooperative,
nonregulatory efforts with private landowners. The Service believes
that it is these measures that may make the difference between
extinction and survival for many species.
In considering exclusions of areas originally proposed for
designation, we evaluated the benefits of designation in light of
Gifford Pinchot Task Force v. United States Fish and Wildlife Service.
In that case, the Ninth Circuit invalidated the Service's regulation
defining ``destruction or adverse modification of critical habitat.''
In response, on December 9, 2004, the Director issued guidance to be
considered in making section 7 adverse modification determinations.
This critical habitat designation does not use the invalidated
regulation in our consideration of the benefits of including areas in
this final designation. The Service will carefully manage future
consultations that analyze impacts to designated critical habitat,
particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a timeframe that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the
[[Page 74593]]
economic effects and the cost of requesting and responding to public
comment, and in some cases the costs of compliance with the National
Environmental Policy Act (NEPA). These costs, which are not required
for many other conservation actions, directly reduce the funds
available for direct and tangible conservation actions.
Background
It is our intent in this document to reiterate and discuss only
those topics directly relevant to the development and designation of
critical habitat or relevant information obtained since the final
listing. For more information on the biology and ecology of the Laguna
Mountains skipper, refer to the final rule listing this species as
endangered published in the Federal Register on January 16, 1997 (62 FR
2313), and the proposed critical habitat rule for the Laguna Mountains
skipper published in the Federal Register on December 13, 2005 (70 FR
73699).
Previous Federal Actions
Previous Federal actions for the Laguna Mountains skipper can be
found in the proposed critical habitat rule published in the Federal
Register on December 13, 2005 (70 FR 73699).
On January 10, 2003, the Center for Biological Diversity (Center)
filed a lawsuit against the Service for violations under the Act and
the Administrative Procedure Act (5 U.S.C. Subchapter II) for the
Service's failure to designate critical habitat for the species (CBD v.
USFWS Civ. No. 03-0058-BTM (NLS)). In a stipulated settlement agreement
dated July 29, 2003, the Service agreed to reconsider its ``not
prudent'' finding and propose critical habitat, if prudent, on or
before November 30, 2005, and to publish a final critical habitat rule,
if prudent, on or before November 30, 2006. This final rule complies
with the settlement agreement.
Summary of Comments and Recommendations
We requested comments from the public on the proposed designation
of critical habitat for the Laguna Mountains skipper during three
comment periods. The first comment period opened on December 13, 2006,
associated with the publication of the proposed rule (70 FR 73699) and
closed on February 13, 2006. The second comment period opened on April
13, 2006, associated with the announcement of a public hearing held on
April 22, 2006, in Carlsbad, CA (71 FR 19157), and closed on May 15,
2006. We also requested comments on the proposed rule and draft
economic analysis (DEA) during a comment period that opened July 7,
2006 (71 FR 38593) and closed on August 7, 2006. We contacted
appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule during these three comment periods.
During the first comment period, we received 8 comment letters
directly addressing the proposed critical habitat designation: 4 from
peer reviewers, 1 from a Federal agency, and 3 from organizations or
individuals. During the second comment period, we received 1 comment
letter from a Federal agency and 1 transcribed statement from an
organization during the public hearing directly addressing the proposed
critical habitat designation. During the final comment period
associated with the DEA, we received 1 comment letter from a Federal
agency and 1 comment from an organization directly addressing the
proposed critical habitat designation and the draft economic analysis.
In total, seven commenters supported designation (2 comments were
from the same commenter) of critical habitat for the Laguna Mountains
skipper, two opposed designation (2 comments were from the same
commenter), and one commenter expressed neither support nor opposition
to the proposed critical habitat designation. Comments received are
addressed in the following summary and incorporated into the final rule
as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from six knowledgeable individuals
with scientific expertise that included familiarity with the species,
the geographic region in which the species occurs, and conservation
biology principles. We received responses from four of the peer
reviewers. Peer reviewers generally concurred with our methods and
conclusions and provided additional information, clarifications, and
suggestions to improve the final critical habitat rule. Peer reviewer
comments are addressed in the following summary and incorporated into
the final rule as appropriate.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the Laguna Mountains skipper, and addressed them in the
following summary.
Peer Reviewer Comments
(1) Comment: One peer reviewer stated that the PCEs appear
appropriate; however use of the alternate hostplant Potentilla
glandulosa may not be necessary or essential because its use may be
limited to special circumstances.
Our Response: We agree P. glandulosa use appears to be limited to
special circumstances, but we believe the scientific information
available (Pratt 2006, p. 4) indicates it increases population survival
probability in circumstances where this alternate hostplant co-occurs
with the most commonly utilized hostplant, Horkelia clevelandii. Under
special circumstances (e.g. dry environmental conditions), the Laguna
Mountains skipper is likely to use this alternate hostplant that grows
more commonly in shaded areas, and have a higher survival rate as
compared to use of H. clevelandii under the same special circumstances.
(2) Comment: One peer reviewer commented that we should use
presence of the hostplant, Potentilla glandulosa, as a criterion to
identify critical habitat in addition to Horkelia clevelandii.
Our Response: As stated in our response to Comment 1, we believe P.
glandulosa may only be a necessary or essential hostplant for
population survival in circumstances where it co-occurs with H.
clevelandii. Also, while the use by the Laguna Mountains skipper of P.
glandulosa as a hostplant has been documented (Pratt 1999, p. 10;
Osborne 2005), we have no occurrence data for P. glandulosa. Therefore,
we are unable to map areas occupied by this hostplant species as
critical habitat.
(3) Comment: Two peer reviewers suggested subunits should be
connected because areas between subunits are essential for Laguna
Mountains skipper movement. Both reviewers stated Laguna Mountains
skippers disperse farther than 20 meters, and cautioned reliance on
mark-release-recapture studies because they tend to underestimate
dispersal ability. One reviewer stated he has observed a male Laguna
Mountains skipper flying over trees; another stated he has seen Laguna
Mountains skippers fly over 50 meters in seconds, and into forested
areas without returning.
Our Response: We appreciate the information and agree that
connectivity between subunits should be maintained to provide for
species' movement. However, we based the delineation of critical
habitat on the presence of the species or the presence of the primary
constituent elements (PCEs) (e.g. hostplants within forest openings).
Most areas between subunits are not known
[[Page 74594]]
to contain either the species or the PCEs. Movement areas cannot be
identified as a PCE because, as reviewer comments indicated, areas that
allow butterfly flight are relatively all-inclusive and thus cannot be
specifically described in a relevant way that differentiates essential
habitat from non-essential habitat. Also, as a result of movement areas
being relatively all-inclusive, we do not know what specific geographic
areas between subunits are essential for movement. Although a greater
ability to disperse than commonly hypothesized would mean more frequent
movement among habitat patches than indicated in the proposed critical
habitat rule, it would not change how we identified critical habitat.
See the Criteria Used To Identify Critical Habitat section below for
more information.
(4) Comment: One peer reviewer noted compatibility of grazing with
Laguna Mountains skipper occupancy depends not only on cattle density,
but also environmental conditions. He stated that while cattle do not
normally eat hostplants during larval butterfly development, he has
observed heavy grazing on hostplants during drought years on Laguna
Mountain.
Our Response: We appreciate this information and have incorporated
it into the Special Management Considerations or Protection section of
this final rule. We will also consider this information in future
management recommendations.
(5) Comment: One peer-reviewer stated that the Laguna Mountains
skipper may be extirpated on Laguna Mountain, and captive breeding is
the only way to ensure long-term survival of the species.
Our Response: We acknowledge individuals have not been detected in
this unit since 1999 (Pratt 1999, p. 7), and any remaining populations
are not likely to be resilient enough to survive into the foreseeable
future under current conditions. However, because insufficient evidence
exists to conclude Laguna Mountain no longer supports an extant
population in Unit 1, a presumption of extirpation would be premature.
Even more detectable and highly surveyed butterfly populations that
appeared to have been extirpated have been rediscovered, at least
temporarily (e.g. Basu 1997, p.1, Essig Museum 2006). Surveys of
varying intensity and duration were conducted in 8 of the 10 years
between 1994 and 2003. During this 10-year period, only four adult
skippers were found: A single individual in 1995 (Levy 1997, pp. i-
xxvi); one adult in 1996 (Levy 1997, pp. i-xxvi); and at least two
adults in 1999 (Pratt 1999, p. 7). All observations of adult skippers
have been at the El Prado/Laguna Campground. A single skipper larval
shelter was found in 1997 at the Meadow Kiosk, along Sunrise Highway
(Pratt 1999, p. 27). Despite recent intensive survey efforts at
historical locations and select areas considered to be suitable skipper
habitat (Faulkner 2000, p. 2; 2001, p. 2; 2002, p. 1; 2003, p. 2; 2004,
p. 2; Osborne 2002, p. 2; 2003, p. 2), such as Agua Dulce campground,
adult skippers have not been seen on Laguna Mountain since 1999.
However, not all suitable habitat has been intensively surveyed and low
density populations are difficult to detect. We agree captive breeding
may be necessary to ensure long-term survival of the species on Laguna
Mountain.
(6) Comment: One peer reviewer commented that the proposed critical
habitat rule alluded to the Laguna Mountains skipper fitting a
metapopulation distribution, while such distribution has not been
established through research. He also stated the critical habitat
designation was based on the species representing a metapopulation
behavior.
Our Response: We do not know what type of population dynamics the
species exhibits and did not intend to imply that we did understand
such dynamics. Under the Species Status and Distribution section of the
proposed rule, our statement, ``If the Laguna Mountains skipper
populations are characterized by metapopulation dynamics, habitat
patches within the population distribution not occupied at any given
time are still required for population viability,'' was intended to
convey that not all suitable habitat is occupied at the same time and
habitat that does not appear to be occupied at a given time is still
important for population viability. We delineated critical habitat on
Palomar and Laguna Mountains based on the following criteria (and not
on metapopulation behavior): (1) Meadow complexes occupied by the
Laguna Mountains skipper at the time of listing; (2) meadow complexes
known to be currently occupied; and (3) meadow complexes historically,
but not known to be currently, occupied but considered essential to the
conservation of the species. For more information see the Criteria Used
To Identify Critical Habitat section below.
(7) Comment: One peer reviewer stated that he agreed meadows are
essential for survival of the species, and dependable water sources
must be available. He expressed concern that loss of water in Laguna
Mountain's ``upper Boiling Springs survey site'' has greatly reduced
the abundance and diversity of skipper species in the past 3 to 4
years. He expressed the opinion that water loss has resulted in
extirpation of the ``Hilda blue butterfly'' from Palomar Mountain and
stated that ground water monitoring is crucial for maintaining
populations of the Laguna Mountains skipper.
Our Response: We appreciate this information and concurrence with
our PCEs and criteria used to identify critical habitat. We agree that
water availability is important for the species' conservation which is
why it was included as a primary constituent element in the proposed
and this final critical habitat rule.
(8) Comment: One peer reviewer disagreed with our statement ``few,
incomplete or no recent surveys have been conducted at sites not known
to be occupied [Subunits 1B & 1C].'' He stated that most sites on
Laguna Mountain have been surveyed during the past 3 to 4 years, with
negative results. He further stated that this does not mean the Laguna
Mountains skipper is absent from those areas, but ``rather has not been
encountered during first generation protocol surveys.''
Our Response: We appreciate the correction. To clarify, the
majority of high-quality habitat sites on Laguna Mountain have been
regularly surveyed for the past 3 to 4 years; however, some areas
remain unsurveyed or only sporadically surveyed. We also agree this
does not mean the Laguna Mountains skipper is absent from those areas
which are adjacent to occupied habitat or were historically occupied.
(9) Comment: One peer reviewer questioned why subunits 1B and 1C
were proposed for designation, because no Laguna Mountains skippers
have been recorded from these units. She questioned why these specific
areas were selected rather than other sites on Laguna Mountain where
the hostplant grows.
Our Response: As stated in our response to Comment 5 we acknowledge
populations on Laguna Mountain appear to be small; however,
insufficient evidence exists to conclude Laguna Mountain no longer
supports an extant population. Subunits 1B and 1C were included in the
designation because: (1) These areas were considered to be historically
occupied by the species; (2) they are the nearest to the occupied unit
1C where our data indicates they contain high densities of hostplant;
and (3) they are likely to be important future species reintroduction
sites on Laguna Mountain.
[[Page 74595]]
(10) Comment: One peer reviewer stated it was not known if all
areas proposed as critical habitat were essential to conservation of
the species. However, she also stated it seemed appropriate to
designate patches of meadow habitat with hostplants between, and
adjacent to, recent sightings of the Laguna Mountains skipper.
Our Response: As described in the Criteria Used to Identify
Critical Habitat section of the proposed rule and this final rule, we
delineated critical habitat to include patches of meadow habitat with
hostplants between and adjacent to recent sightings of Laguna Mountains
skippers. We cannot determine what geographic scale the peer reviewer
was referring to.
(11) Comment: One peer reviewer stated she agreed that no areas
outside of our proposed designation should have been proposed for
designation. However, she also stated that of the areas not proposed
for critical habitat designation, the area most likely to be essential
is Dyche Valley on Palomar Mountain, south of Mendenhall Valley.
Our Response: We appreciate this information and concurrence with
our proposed designation. We included a discussion in the proposed rule
of unoccupied areas that may contain suitable habitat for the species
as part of a discussion of the species' current status and distribution
(see Status and Distribution section of the proposed rule). We did not
include Dyche Valley because we had no hostplant or species occurrence
information for this area, and therefore could not conclude it was
essential to the species' conservation.
(12) Comment: Two peer reviewers stated Laguna Mountains skippers
use more diverse nectar sources than indicated in the proposed critical
habitat rule. One peer reviewer suggested the list of nectar sources
should include Taraxacum vulgare (common dandelion) and the hostplant
Horkelia clevelandii.
Our Response: We appreciate this information, and will consider it
in future management recommendations. We believe the PCEs are
sufficiently broad with regard to use of diverse nectar sources, and
already include the hostplant H. clevelandii, therefore we did not
revise our PCEs.
(13) Comment: One peer reviewer expressed concern that population
size estimates and comparisons given in the proposed critical habitat
rule were not reliable. He expressed particular concern that due to
disease, parasitism, and predation, these kind of estimates
extrapolated from immature life stages greatly overestimate population
size.
Our Response: We agree that there is a high amount of uncertainty
inherent in the population estimates and the effect of factors such as
disease, parasitism, and predation on the population may not be
accurately reflected. However, even with these limitations, the
population estimates outlined in the proposed rule are currently the
best available information. We appreciate this information and will
consider it in future management recommendations.
Public Comments
(14) Comment: Two commenters stated that U.S. Forest Service
(Forest Service or USFS) actions to date, and land management plans
addressing conservation of Laguna Mountains skipper habitat, should
result in exclusion of Cleveland National Forest lands from critical
habitat designation.
Our Response: We acknowledge the Cleveland National Forest has
implemented measures to minimize impacts to the Laguna Mountains
skipper. We also acknowledge two existing Forest Service management
plans contain general provisions for conservation of the Laguna
Mountains skipper: the Land Management Plan for the Cleveland National
Forest (LMP, Forest Service 2005, pp. 1-57) and a habitat management
guide for four sensitive plant species in mountain meadows (Cleveland
National Forest 1991, pp. 1-36). The habitat management guide, while
providing more specific conservation measures than the land management
plan, is still specific to ``discrete [montane] meadow communities''
and the four sensitive plant species. While these mapped community
areas (Cleveland National Forest 1991, pp. 5-7) do include some areas
identified as essential for Laguna Mountains skipper (e.g. southern
Mendenhall Valley; see unit descriptions below), many smaller forest
openings and adjacent open-canopy woodland areas are not included, such
as Observatory Campground and Trail. Also, habitat management guides
and plans do not mandate conservation measures, and therefore do not
provide adequate protection of essential habitat. For example, the 1993
scheduled management action for Delphinium hesparium (Cleveland
National Forest 1991 p.17), a grazing exclosure in the Garnet Kiosk
area (southern Laguna Meadow area, also identified as essential to the
Laguna Mountains skipper), has not yet been implemented. Existing
Forest Service measures and management plans do not provide specific or
sufficient enough conservation measures for Laguna Mountains skipper
habitat, and the benefits of including these areas within critical
habitat are not outweighed by any potential benefits of excluding the
areas (see Exclusions Under Section 4(b)(2) of the Act section of this
final rule for a detailed discussion). Therefore, we did not exclude
Forest Service lands from the final designation under section 4(b)(2)
of the Act.
(15) Comment: One commenter stated that lands managed by the
Cleveland National Forest should not be excluded from critical habitat
designation based on their Land Management Plan because the plan
provides few specific benefits to the species.
Our Response: For reasons discussed in the response to Comment 14
above, we did not exclude Forest Service lands from the final
designation under section 4(b)(2) of the Act.
(16) Comment: Two commenters asserted that the Laguna Mountains
skipper may be extirpated on Laguna Mountain; therefore designation of
critical habitat at that location is not appropriate.
Our Response: As discussed in our response to Comment 5 above,
insufficient information exists to conclude Laguna Mountain no longer
supports an extant population in Unit 1. Therefore, we cannot agree at
this time with the commenter's assertion. Also, if the Laguna Mountains
skipper has been extirpated from Laguna Mountain, reintroduction will
likely to be necessary to promote the conservation of the subspecies,
and unoccupied habitat would still be considered essential. Current
occupancy is not required for the designation of critical habitat if
the area is essential to the conservation of the species.
(17) Comment: One commenter stated that if critical habitat is
designated, a greater conservation value could be achieved by further
limiting critical habitat designation to a ``more refined boundary''
within proposed critical habitat. Specific recommended refined
boundaries, primarily following the U.S. Forest Service's habitat model
for Laguna Mountains skipper, were delineated on maps provided with
these comments.
Our Response: We re-evaluated the methodology used to delineate the
proposed critical habitat unit boundaries and have revised the final
critical habitat unit boundaries based on information provided by this
commenter. In total, these revisions have resulted in the removal of
approximately 420 ac (169 ha) from final critical habitat (see Summary
of Changes from the Proposed Rule section below for a detailed
discussion).
[[Page 74596]]
(18) Comment: One commenter stated that designation of critical
habitat will ``further hinder or destroy all economic activity'' and
``terminate or curtail recreational use'' on Forest Service land on
Laguna Mountain.
Our Response: Although designation of critical habitat may increase
the number of Forest Service consultations on projects in essential
habitat, and should increase conservation measures for the species at a
few key locations, the designation should not significantly increase
restrictions on economic activities or restrict recreational activities
relative to current levels. As stated below (under Special Management
Considerations or Protection), economic activities, such as relatively
low density grazing, should not adversely modify habitat if carefully
managed to minimize or avoid destruction of hostplants. The total
estimated future costs (loss of economic gain due to critical habitat
designation) in the Draft Economic Analysis over the next 20 years to
grazing on Laguna Mountain range from $42,000 to $76,000 (Industrial
Economics, Incorporated, p. ES-10). Total estimated future cost for
recreational activities is $3,305,000 (Industrial Economics,
Incorporated, p. ES-10). Total future costs to grazing and recreation
on Laguna Mountain average from $167,350 to $169,050 per year, a
relatively low estimate. The Draft Economic Analysis states, ``While
changes in [livestock production and recreational camping] could affect
the regional economy, the magnitude of the expected change is
insignificant (i.e., less than one percent for grazing and less than
0.01 percent for camping) in light of the total size of the regional
economy.'' (Industrial Economics, Incorporated, p. ES-13). Future cost
value estimates will also be reduced by the reduction in area
designated as critical habitat relative to what was proposed (see
Summary of Changes from Proposed Rule below).
(19) Comment: One commenter stated that subunits 1B and 1C on
Laguna Mountain should not be designated as critical habitat because:
(1) Subunit 1A provides substantial habitat already; (2) subunits 1B
and 1C are not contiguous with Laguna Meadow as stated in the proposed
critical habitat rule; and (3) designation based on potential
reintroduction is not justified.
Our Response: As stated in the proposed rule, Subunits 1B and 1C
were proposed as critical habitat because they are connected to
occupied habitat, were historically occupied, and contain physical and
biological features essential to the conservation of the species. To
clarify, while not physically connected, these subunits are
ecologically connected to occupied habitat (Laguna Meadow) by
relatively undisturbed forested habitat that allows for species
movement between Laguna Meadow and Subunits 1B and 1C. We have
clarified this in the Critical Habitat Designation section of this
final rule. We also stated in the proposed rule that we believe that
given the species' small population size and very limited range,
reintroduction may be necessary for long-term persistence of the
species. Since critical habitat identifies areas essential to species
conservation, we believe inclusion of these unoccupied areas in final
critical habitat is justified.
(20) Comment: One commenter stated the designation of independent,
non-connected subunits within each mountain contradicts the statement
in the proposed rule that connectivity areas among meadows are required
for species' survival. The commenter stated that Laguna Mountains
skippers are ``highly mobile'' and known to fly through forested
environments, and failure to designate critical habitat connecting
subunits could reduce the likelihood of species survival.
Our Response: See response to Comment 3 above.
(21) Comment: One commenter stated because hostplant mapping and
knowledge of habitat use by Laguna Mountains skippers is incomplete,
all areas within hostplant elevation limits on Laguna Mountain should
be designated as critical habitat.
Our Response: We acknowledge that hostplant mapping and knowledge
of habitat use by Laguna Mountains skippers is incomplete; however, we
are required to use the best available information to designate habitat
that contains the primary constituent elements required by the species
and is essential to the conservation of the species. In the absence of
more complete hostplant mapping information, we limited the designation
to those areas that the available information indicates contain the
PCEs and are essential to the conservation of the species.
(22) Comment: One commenter wanted to make sure that critical
habitat designation would not affect the fire safety of human and
natural communities on Laguna Mountain.
Our Response: The designation of critical habitat will not affect
fire safety of human communities on Laguna Mountain. Public safety is
always the first priority in the event of a fire. Also, the local
Service field office has several biologists trained as resource
advisors who work cooperatively with firefighters to ensure that
impacts to natural communities are minimized to the maximum extent
practicable during fire fighting activities. As stated below (under
Special Management Considerations or Protection), fire management
activities, such as tree and brush removal for fuel modification,
should not adversely modify habitat if carefully managed to minimize or
avoid destruction of hostplants.
(23) Comment: One commenter objected to our assertion that critical
habitat provides little benefit above that provided by other provisions
of the Act.
Our Response: As discussed in the sections ``Designation of
Critical Habitat Provides Little Additional Protection to Species,''
``Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act,'' and ``Procedural and Resource Difficulties in
Designating Critical Habitat'' and other sections of this and other
critical habitat designations, we believe that, in most cases, other
conservation mechanisms provide greater incentives and conservation
benefits than does the designation of critical habitat. These other
mechanisms include the section 4 recovery planning process, section 6
funding to the States, section 7 consultations, the section 9
protective prohibitions of unauthorized take, the section 10 incidental
take permit process, and cooperative programs with private and public
landholders and tribal nations.
Comments Related to the Draft Economic Analysis (DEA)
(24) Comment: One comment stated that the DEA fails to evaluate
benefits associated with protecting critical habitat for the Laguna
Mountains skipper. The same commenter noted that cost savings
associated with protecting the hydrological function of meadows and
conducting fire abatement around proposed new utility structures
throughout critical habitat should be included in the DEA.
Our Response: Section 4(b)(2) of the Act requires the Secretary to
designate critical habitat based on the best scientific data available
after taking into consideration the economic impact, impact on national
security, and any other relevant impact, of specifying any particular
area as critical habitat. The Service's approach for estimating
economic impacts includes both economic efficiency and distributional
effects. The measurement of economic efficiency is based on the concept
of opportunity costs, which reflect the value of goods and services
foregone in order to comply with the effects of the designation (e.g.,
lost economic opportunity associated with restrictions
[[Page 74597]]
on land use). Where data are available, the economic analyses do
attempt to measure the net economic impact. However, no data was found
that would allow for the measurement of such an impact, nor was such
information submitted during the public comment period.
While the Secretary must consider economic and other relevant
impacts as part of the final decision-making process under section
4(b)(2) of the Act, the Act explicitly states that it is the
government's policy to conserve all threatened and endangered species
and the ecosystems upon which they depend. Thus, we believe that
explicit consideration of broader social values for the subspecies and
its habitat, beyond the more traditionally defined economic impacts, is
not necessary as Congress has already clarified the social importance.
We note, as a practical matter, it is difficult to develop credible
estimates of such values, as they are not readily observed through
typical market transactions and can only be inferred through advanced,
tailor-made studies that are time consuming and expensive to conduct.
We currently lack both the budget and time needed to conduct such
research before meeting our court-ordered final rule deadline. In
summary, we believe that society places significant value on conserving
any and all threatened and endangered species and the habitats upon
which they depend and thus needs only to consider whether the economic
impacts (both positive and negative) are significant enough to merit
exclusion of any particular area without causing the species to go
extinct.
(25) Comment: One comment stated that the DEA overestimates costs
associated with conserving the Laguna Mountains skipper, because it
includes economic impacts attributable to listing under the ESA. The
comment further stated that the costs associated with listing of a
species are separate from critical habitat designation and therefore
should not be included in the economic impacts analysis for critical
habitat designation.
Our Response: The economic analysis is intended to assist the
Secretary in determining whether the benefits of excluding particular
areas from the designation outweigh the biological benefits of
including those areas in the designation. Also, this information allows
us to comply with direction from the U.S. 10th Circuit Court of Appeals
that ``co-extensive'' effects should be included in the economic
analysis to inform decision-makers regarding which areas to designate
as critical habitat (New Mexico Cattle Growers Association v. U.S. Fish
and Wildlife Service (248 F.3d 1277)).
This analysis identifies those potential activities believed to be
most likely to threaten the Laguna Mountains skipper and its habitat
and, where possible, quantifies the economic impact to avoid, mitigate,
or compensate for such threats within the boundaries of the critical
habitat designation. Where critical habitat is being proposed after a
species is listed, some future impacts may be unavoidable, regardless
of the final designation and exclusions under section 4(b)(2) of the
Act. However, due to the difficulty in making a credible distinction
between listing and critical habitat effects within critical habitat
boundaries, this analysis considers all future conservation-related
impacts to be co-extensive with the designation.
(26) Comment: One comment stated the costs for fuel management
projects are underestimated because they do not include increased costs
associated with additional planning and analysis as well as higher
treatment costs that might be associated with avoiding certain areas
within proposed critical habitat areas.
Our Response: We revised the DEA to include the costs associated
with additional planning, analysis, and treatment required to ensure
that Laguna Mountains skipper habitat is avoided. Cleveland National
Forest staff estimate these costs to be approximately $2,000 per fuels
management project and three fuels management projects per year in
proposed critical habitat areas, or approximately $6,000 per year.
(27) Comment: One comment stated the administrative costs
associated with section 7 consultations for the Cleveland National
Forest are ``very much underestimated.''
Our Response: Based on information provided by the Cleveland
National Forest, we revised the DEA's estimate of future administrative
costs associated with section 7 consultations. As shown in Exhibit 8-8
of the DEA, administrative costs are forecasted to be $1.4 million
(undiscounted dollars) over the next 20 years. In present value terms,
costs are $1.1 million, assuming a three percent discount rate; and
$828,000, assuming a seven percent discount rate.
Summary of Changes From Proposed Rule
Based on information received from Terrell (2006a, p. 3 and 4)
during the public comment periods, we re-evaluated the proposed
critical habitat boundaries. Terrell (2006a, p. 3 and 4) suggested we
limit critical habitat designation to Cleveland National Forest's
Laguna Mountains skipper modeled habitat (Winter 2000, pg. 1) within
proposed critical habitat units. Methodology in Winter (2000, pg. 1)
was described as follows:
``Elevation between 4000 and 6100 feet. Vegetation type is
grassland that is within 100 meters of contact with oak woodland/
conifer forest vegetation type and conifer/woodland type that is
within 100 meters of contact with grassland. As of 3/6 [2000], heb
(herbaceous in veg cover was limited by 3 soil types, crouch, reiff,
loamy alluvial). Additional work included incorporating entire
meadows in addition to the edges based on the 100m contact above,
and excluding the most southern (Corta Madera) portions of screen
due to vegetation surveys indicating no presence of Horkelia [on]
private lands.''
This qualitative method of delineating meadows in many areas on Laguna
Mountain is similar to the information we used in our critical habitat
proposal (see Criteria Used to Identify Critical Habitat section
below). Terrell (2006a, pp. 5, 6) provided a map using Winter's (2000)
methods to map habitat within proposed critical habitat units, and
recommended limiting critical habitat designation to those areas. We
considered this information and agreed that using the modeled habitat
constituted the best available scientific information, thus justifying
some unit boundary adjustments; however additional data on habitat type
use (e.g., open oak woodland at Pine Hill (Osborne 2002)) and host
plant distribution since 2000 justify including some areas not mapped
by Winter (2000, pg.1).
We overlaid the Cleveland National Forest's Laguna Mountains
skipper modeled habitat (Winter 2000, pg. 1) boundaries on the proposed
critical habitat boundaries for Unit 1 (Laguna Mountain) and removed
those areas from proposed critical habitat which fell outside of the
modeled habitat and for which we did not have main hostplant (Horkelia
clevelandii) occurrence data (see the Criteria Used To Identify
Critical Habitat section below for a detailed discussion). This re-
evaluation resulted in the removal of approximately 420 ac (169 ha)
from Unit 1 (Laguna Mountain). The areas removed were primarily located
in the northeastern portion of Subunit 1B, the southwestern portion of
Subunit 1C, and the southeastern portion of Subunit 1A, as well as open
woodland north of Boiling Springs Ravine in Subunit 1A. This re-
evaluation of proposed critical habitat boundaries did not result in
any changes to lands designated in Unit 2.
[[Page 74598]]
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
data available, habitat areas that provide essential life cycle needs
of the species (i.e., areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management considerations or protection. Thus, we do not include areas
where existing management is sufficient to conserve the species. (As
discussed below, such areas may also be excluded from critical habitat
pursuant to section 4(b)(2)). Areas outside of the geographic area
occupied by the species at the time of listing may only be included in
critical habitat if they are essential for the conservation of the
species. Accordingly, when the best available scientific data do not
demonstrate that the conservation needs of the species require
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but not known to be
occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, therefore, typically
included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and Section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of Section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat within areas occupied by the species at the time of listing, we
consider those physical and biological features (PCEs) that are
essential to the conservation of the species and that may require
special management considerations or protection. These include, but are
not limited to space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historical geographical and ecological distributions of a species.
The specific primary constituent elements required for the Laguna
Mountains skipper are derived from the biological needs of the Laguna
Mountains skipper as described in the Background section of the
proposed rule (70 FR 73699).
[[Page 74599]]
Food, Water, or Other Nutritional or Physiological Requirements
Laguna Mountains skippers require sunlight provided in the open
meadows, open woodlands, or other forest openings. Butterflies are
exothermic (i.e., they remain at the same temperature as their
environment) and, like most insects, body temperature is of overriding
importance in limiting flight (Chapman 1982, p. 217-272). Butterfly
flight activity is limited by light intensity. Therefore, they require
areas for basking in the sun in order to raise their body temperature
for flight (Chapman 1982, p. 217-272). Additionally, surface moisture
such as puddles and seeps (not flowing water) provide water and
minerals for adults. Adult Laguna Mountains skippers need annual or
perennial nectar sources including meadow and woodland-associated
herbaceous annual wildflowers, and perennial herbs (e.g. Horkelia
clevelandii, Lasthenia spp. (goldfields), Pentachaeta aurea (golden-
rayed pentachaeta), Ranunculus spp. (buttercups), and Sidalcea spp.
(checkerbloom)).
Sites for Breeding and Reproduction
Laguna Mountains skippers require Horkelia clevelandii to lay eggs
on and for the caterpillars to eat and construct their pupal shelters.
The species has also been documented on Potentilla glandulosa (Pratt
1999, p. 10; Osborne 2005). However, P. glandulosa may only be used as
a hostplant for population survival in special circumstances (e.g., dry
environmental conditions) where it occurs near H. clevelandii.
Hostplant patches must be dense enough to support breeding (provide
multiple and diverse sites for depositing eggs), although the exact
host-plant patch size and density required for breeding is not known. A
``patch'' of hostplants may consist of one to several clumps of H.
clevelandii or P. glandulosa growing together, as well as numerous
individual plants that are growing in close proximity to each other.
Space for Individual and Population Growth, and for Normal Behavior
The species' current geographic range is fragmented and small,
population densities are relatively low, and the quality of most
breeding habitat has been compromised to some degree by grazing,
recreation impacts, or alien plants. Therefore, all landscape
connectivity areas among occupied meadows and forest openings that
adult Laguna Mountains skippers can move through are required for the
conservation of the species. To facilitate the use of connectivity
areas for adult movement between breeding sites, maintenance of
populations of hostplants and adult nectar sources is important, even
if they are not likely to be used for breeding.
Historical and Geographic Distribution of the Species
The occupied areas designated as critical habitat are
representative of the historical and geographical distribution of the
species. Areas included in the final designation that are not known to
be occupied were all historically occupied and will restore a portion
of the historical geographic distribution of the Laguna Mountains
skipper. Connectivity is required for recolonization of habitat to
occur (e.g., after extirpation by fire) and for genetic diversity to be
maintained.
Primary Constituents for the Laguna Mountains Skipper
Pursuant to our regulations, we are required to identify the known
physical and biological features (PCEs) essential to the conservation
of the Laguna Mountains skipper. All areas designated as critical
habitat for the Laguna Mountains skipper are within the species'
historical geographic range and contain sufficient PCEs to support at
least one life history function.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the Laguna Mountains skipper's PCEs are:
(1) The hostplants, Horkelia clevelandii or Potentilla glandulosa,
in meadows or forest openings needed for reproduction.
(2) Nectar sources suitable for feeding by adult Laguna Mountains
skippers, including Lasthenia spp., Pentachaeta aurea, Ranunculus spp.,
and Sidalcea spp. found in woodlands or meadows.
(3) Wet soil or standing water associated with features such as
seeps, springs, or creeks where water and minerals are obtained during
the adult flight season.
This designation is designed for the conservation of areas
supporting PCEs necessary to support the life history functions which
were the basis for the proposal. In general, critical habitat units are
designated based on sufficient PCEs being present to support one or
more of the species' life history functions. In this instance, all
units contain all PCEs and support multiple life processes. Because not
all life history functions require all the PCEs, not all critical
habitat will uniformly contain all the PCEs.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific data available in determining areas that contain the
features that are essential to the conservation of the Laguna Mountains
skipper. We have also reviewed available information that pertains to
the habitat requirements of this species. Information sources include
data from field surveys for Horkelia clevelandii, regional Geographic
Information System (GIS) vegetation and species coverages, data
compiled in the California Natural Diversity Database (CNDDB), and
survey data for the Laguna Mountains skipper from reports submitted by
biologists holding section 10(a)(1)(A) recovery permits. We identified
critical habitat based on the assessment of those physical and
biological components identified above, the known and historical
occurrences of Laguna Mountains skipper, and available information on
the distribution of H. clevelandii. We designated no areas outside the
individual mountains presently occupied by the species.
To delineate critical habitat, we identified meadow complexes
(meadows and forest openings connected by open forest canopy) on
Palomar and Laguna Mountains occupied by the Laguna Mountains skipper
at the time of listing and known to be currently occupied. The species
was known to occupy only one meadow complex (Laguna Meadow) on Laguna
Mountain at the time of listing, but we also identified two meadow
complexes on Laguna Mountain that contain habitat with features
essential to the conservation of the species. These meadow complexes
were not known to be occupied at the time of listing, however, they
have not been extensively surveyed, and Laguna Mountain as a whole was
historically considered to be occupied by the skipper. These areas are
important for expansion and enhancement of populations in Laguna Meadow
and are therefore considered essential to the conservation of the
species.
Using infrared satellite imagery, we visually outlined meadows and
forest openings that contained species or hostplant occurrence data.
Maps were produced by overlaying a 328 square ft (100 square m) grid on
the initial hand-drawn polygons and selecting those grid cells that
fell within the hand drawn polygons. Specifically, on Palomar Mountain
(Unit 2) we defined subunits
[[Page 74600]]
based on the selected grid cells because meadows were more clearly
defined and species occupancy and distribution information was more
clearly defined. On Laguna Mountain (Unit 1), where meadows were not as
clearly defined and species distribution information and occupancy was
less certain, we then overlaid the Cleveland National Forest's Laguna
Mountains skipper modeled habitat boundaries and removed areas outside
of the modeled habitat for which we did not have occurrence data for
the species or its main hostplant (Horkelia clevelandii). Specifically,
we removed: (1) All grid cells more than 328 ft (100 m) distant from
species occurrence locations, hostplant occurrence locations, or Forest
Service modeled habitat; (2) remaining grids cells not connected to the
three subunits of Unit 1; and (3) all grid cells with over 97 percent
of their area more than 328 ft (100 m) distant from species occurrence
locations, hostplant occurrence locations habitat.
When determining critical habitat boundaries, we made every effort
to avoid including within the boundaries of the map contained within
this final rule developed areas such as buildings, paved areas, and
other structures that lack PCEs for the Laguna Mountains skipper. The
scale of the maps prepared under the parameters for publication within
the Code of Federal Regulations may not reflect the exclusion of such
developed areas. Any such structures and the land under them
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule have been excluded by text in the final rule and are
not designated as critical habitat. Therefore, Federal actions limited
to these areas would not trigger section 7 consultation, unless they
may affect the species or primary constituent elements in adjacent
critical habitat.
We are designating critical habitat on lands that we have
determined were occupied at the time of listing and contain sufficient
primary constituent elements to support life history functions
essential for the conservation of the species. We are also designating
lands that were not known to be occupied at the time of listing but
have been determined to be essential for the conservation of the Laguna
Mountains skipper.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing support the primary
constituent elements that may require special management considerations
or protection. Threats to those essential features that define critical
habitat (PCEs) for the Laguna Mountains skipper include the direct and
indirect impacts of human development and recreation, surface and
groundwater management practices, and grazing intensity.
Areas identified as critical habitat are composed of 38 percent
private land holdings, where habitat is subject to rural development
and overgrazing, potential stream and groundwater diversions, and
recreational activities. State and Federal landholdings (6 and 56
percent, respectively) are also subject to grazing and recreational
activities. While designation of critical habitat does not impose any
management requirements, particularly on State or private land, the
following are measures that could be undertaken to benefit the species.
Grazing can cause direct mortality of larvae and eggs by trampling
and consumption. The density of cattle grazed in meadow habitat should
be monitored and managed as well as levels of habitat degradation
resulting from existing levels of grazing. Environmental conditions
should also be considered when determining appropriate cattle density
in meadow habitat occupied by the Laguna Mountains skipper. While
cattle do not normally eat hostplants while larvae are developing, they
have been observed grazing on hostplants during drought years on Laguna
Mountain (Pratt 2006, p. 4). Adaptive management may be needed to
adjust cattle grazing intensity, and protection measures may include
exclosures to prevent grazing of hostplants. Monitoring of potential
changes in hydrology caused by stream and groundwater diversions should
be undertaken and any necessary management to prevent habitat
conversion from wet to dry meadows, or open woody canopy to closed.
On Palomar Mountain, commercial drinking water projects and stream
alterations on private lands are currently diverting stream and
groundwater to an unknown extent. Drying of meadows results in
vegetation changes (for a general discussion see Naumburg et al. 2005)
that could eliminate primary constituen