Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea, 11080-11103 [2010-4653]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Proposed Rules]
[Pages 11080-11103]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4653]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS- R4-ES-2010-0003]
[MO 92210-0-0009-B4]
[RIN 1018-AW55]


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Carex lutea (Golden Sedge)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the Carex lutea (golden sedge) under the 
Endangered Species Act of 1973, as amended. We propose to designate as 
critical habitat approximately 189 acres (76 hectares) in 8 units. The 
proposed critical habitat is located in Onslow and Pender Counties in 
North Carolina.

DATES: We will consider comments from all interested parties until May 
10, 2010. We must receive requests for public hearings, in writing, at 
the address shown in the FOR FURTHER INFORMATION CONTACT section by 
April 26, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R4-
ES-2010-0003.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2010-0003; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Fish and Wildlife Office, P.O. Box 
33726, Raleigh, NC 27636-3726; telephone 919-856-4520; facsimile 919-
856-4556. If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments concerning:
     (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether 
there are threats to the species from human activity, the degree of 
which can be expected to increase due to the designation, and whether 
the benefit of designation would be outweighed by threats to the 
species caused by the designation, such that the designation of 
critical habitat is not prudent.
     (2) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements for Carex lutea.
    (3) Specific information on:
 The amount and distribution of Carex lutea habitat,
 What areas occupied at the time of listing and that contain 
features essential to the conservation of the species which may require 
special management considerations or protections we should include in 
the designation and why, and
 What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
     (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
     (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities (e.g., small businesses or small governments) or families, and 
the benefits of including or excluding areas that exhibit these 
impacts.
     (6) Whether any specific areas we are proposing as critical 
habitat should be considered for exclusion under section 4(b)(2) of the 
Act, and whether the benefits of potentially excluding any specific 
area outweigh the benefits of including that area under section 4(b)(2) 
of the Act.
     (7) Information on any quantifiable economic costs or benefits of 
the proposed designation of critical habitat.
     (8) Information on the projected and reasonably likely impacts of 
climate change on Carex lutea, and any special management needs or 
protections that may be needed in the critical habitat areas we are 
proposing.
     (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If your written 
comments provide personal identifying information, you may request at 
the top of your document that we withhold this information from public 
review.

[[Page 11081]]

However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Raleigh Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on Carex lutea, refer to the final listing rule published 
in the Federal Register on January 23, 2002 (67 FR 3120).
    Carex lutea is a perennial member of the sedge family (Cyperaceae). 
Fertile culms (stems) may reach 39 in (1 m) or more in height. The 
yellowish green leaves are grass-like, with those of the culm mostly 
basal and up to 11 in (28 cm) in length, while those of the vegetative 
shoots reach a length of 25.6 in (65 cm).
    The species is endemic to Onslow and Pender Counties in the Black 
River section of the Coastal Plain Province of North Carolina. The 
North Carolina Natural Heritage Program (NCNHP) recognizes eight 
populations made up of 17 distinct locations or element occurrences. 
All of the locations occur within a 16- by 5-mile (26-by-8-kilometer) 
area, extending southwest from the community of Maple Hill.
    Carex lutea generally occurs on fine sandy loam, loamy fine sands, 
and fine sands with a pH of 5.5 to 7.2, and with a mean of 6.7. These 
soils are moist to saturated to periodically inundated. Carex lutea 
occurs in the Pine Savanna (Very Wet Clay Variant) natural community 
type (Schafale 1994, p. 136). Community structure is characterized by 
an open to sparse canopy dominated by pond pine (Pinus serotina), and 
usually with some longleaf pine (P. palustris) and pond cypress 
(Taxodium ascendens).
    Carex lutea is threatened by fire suppression; habitat alteration 
such as land conversion for residential, commercial, or industrial 
development; mining, drainage for silviculture and agriculture; highway 
expansion; and herbicide use along utility and highway rights-of-way.
Previous Federal Actions
    Carex lutea was listed as endangered under the Act on January 23, 
2002 (67 FR 3120). Designation of critical habitat had been found to be 
not prudent in the proposed listing rule (64 FR 44470, August 16, 
1999); however, following a reevaulation of information available for 
the proposal and new information that came in through the public 
comment period on the proposal, critical habitat designation was 
determined to be prudent in the final listing rule (67 FR 3120). 
However, the development of a designation was deferred due to budgetary 
and workload constraints.
    On December 19, 2007, the Center for Biological Diversity filed a 
complaint for declaratory and injunctive relief challenging the 
Service's continuing failure to timely designate critical habitat for 
this species as well as three other plant species (Center for 
Biological Diversity v. Kempthorne, C-04-3240 JL (N. D. Cal.). In a 
settlement agreement dated April 11, 2008, the Service agreed to submit 
for publication in the Federal Register a proposed designation of 
critical habitat, if prudent and determinable, on or before February 
28, 2010, and a final determination by February 28, 2011.

Critical Habitat

Background
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
     (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided underuant 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(a)(2)of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) requires consultation on Federal 
actions that may affect 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 the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by non-Federal landowners. Where a 
landowner seeks or requests Federal agency funding or authorization for 
an action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the Federal 
action agency's and the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    To be considered for inclusion in a critical habitat designation, 
the habitat within the geographical area occupied by the species at the 
time it was listed must contain the physical and biological features 
essential to the conservation of the species. Areas supporting the 
essential physical or biological features are identified, to the extent 
known using the best scientific data available, as the habitat areas 
that provide essential life cycle needs of the species. Habitat within 
the geographical area occupied by the species at the time of listing 
that contains features essential to the conservation of the species 
meets the definition of critical habitat only if these features may 
require special management consideration or protection. Under the Act 
and regulations at 50 CFR 424.12, we can designate critical habitat in 
areas outside the geographical area occupied by the species at the time 
it is listed only when we determine that the best available scientific 
data demonstrate that the designation of those areas is essential for 
the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General

[[Page 11082]]

Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines, provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may 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.
    Habitat is often dynamic, and species may move from one area to 
another over time. Climate change may lead to increased frequency and 
duration of severe storms and droughts (Golladay et al. 2004, p. 504; 
McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015). According 
to the America's Longleaf Regional Working Group (2009, p. 19), the 
U.S. Department of Agriculture concluded that longleaf pine may extend 
its range northward, but will likely lose very little of its southern 
range. The Hadley Centre model suggests that savanna and grasslands may 
expand and replace southeastern pine forests at some sites in the 
coastal plain due to increased moisture stress (America's Longleaf 
Regional Working Group 2009, p. 19). While the effects of climate 
change on longleaf ecosystem plant communities have not been well 
studied, one report concluded that while longleaf pine might perform 
well with increased carbon dioxide, the herbaceous species may not 
compete as well (America's Longleaf Regional Working Group 2009, p. 
19).
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of the location and magnitude of the effects. Nor are 
we currently aware of any climate change information specific to the 
habitat of Carex lutea that would indicate what areas may become 
important to the species in the future. Therefore, we are unable to 
determine what additional areas, if any, may be appropriate to include 
in the proposed critical habitat for this species; however, we 
specifically request information from the public on the currently 
predicted effects of climate change on Carex lutea and its habitat. 
Additionally, we recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated critical habitat area is unimportant or 
may not be required for recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Areas that support populations are also subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency 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 (HCPs), section 7 consultations, or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.
Prudency Determination
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. Our 
regulations at 50 CFR 424.12(a)(1) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
activity and the identification of critical habitat can be expected to 
increase the degree of threat to the species; or (2) the designation of 
critical habitat would not be beneficial to the species.
    There is no documentation that Carex lutea is threatened by taking 
or other human activity such as collection. In the absence of finding 
that the designation of critical habitat would increase threats to the 
species, if there are any benefits to a critical habitat designation, 
then a prudent finding is warranted. The potential benefits include: 
(1) Triggering consultation, under section 7 of the Act, in new areas 
for action in which there may be a Federal nexus where consultation 
would not otherwise occur because, for example, an area is or has 
become unoccupied or the occupancy is in question; (2) identifying the 
physical and biological features essential to the conservation of Carex 
lutea and focusing conservation activities on these essential features 
and the areas that support them; (3) providing educational benefits to 
State or county governments or private entities engaged in activities 
or long-range planning in areas essential to the conservation of the 
species; and (4) preventing people from causing inadvertent harm to the 
species. Conservation of Carex lutea and the essential features of the 
habitat will require habitat protection and restoration, which will be 
facilitated by knowledge of habitat locations and the physical and 
biological features of those habitats.
    Therefore, since we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some measure of benefit, we find that the 
designation of critical habitat for the Carex lutea is prudent.
Critical Habitat Determinability
    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (1) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (2) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act provides for an 
additional year to publish a critical habitat designation (16 U.S.C. 
1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the Carex lutea, the historical distribution of the Carex 
lutea, and the habitat characteristics where the species currently 
occurs. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Carex lutea.

[[Page 11083]]

Methods
    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining which areas within the 
geographical area occupied by the species at the time of listing 
contain the features essential to the conservation of the Carex lutea 
that may require special management considerations or protections, and 
which areas outside of the geographical area occupied at the time of 
listing are essential for the conservation of the species.
    We reviewed the available information pertaining to historical and 
current distributions, life histories, and habitat requirements of this 
species. Our sources included peer-reviewed scientific publications; 
unpublished survey reports; unpublished field observations by Service, 
State, and other experienced biologists; notes and communications from 
qualified biologists or experts; and Service publications such as the 
final listing rule for Carex lutea.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
our regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features 
essential to the conservation of the species which may require special 
management considerations or protection. These include, but are not 
limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We consider the physical and biological features to be the primary 
constituent elements PCEs laid out in the appropriate quantity and 
spatial arrangement for the conservation of the species. We derive the 
PCEs from the biological needs of Carex lutea as described in the 
Background section of this proposed rule and in the final listing rule 
(67 FR 3120). The areas included in this proposed critical habitat rule 
for Carex lutea contain the appropriate soils and associated 
vegetation, and adjacent areas necessary to maintain associated 
physical processes such as a suitable hydrological regime. The areas 
provide suitable habitat, water, minerals, and other physiological 
needs for reproduction and growth of Carex lutea.

Space for Individual and Population Growth and for Normal Behavior

Clonal Growth
    Carex lutea is a caespitose, or clumping, perennial. New shoots 
develop from a central point, forming a tufted clump of vegetation that 
is genetically identical to the parent plant. The full extent to which 
a plant can expand has not been determined.
    Therefore, based on the information above, we identify bare soil 
areas immediately adjacent to existing clumps of mature Carex lutea 
plants to allow room for expansion of the clump to be a PCE for this 
species.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

Water
    Although the specific water needs of the species are unknown, Carex 
lutea is found in wet to saturated to periodically inundated soils. The 
largest populations are found in the wet to saturated ecotones of 
savannas and hardwood forests. At a few sites, the plants are most 
abundant in wet to saturated soils adjacent to drainage ditches, and in 
the saturated to inundated ditches themselves. The occurrence of 
individuals in ditches is likely due to the wetter soils of the 
ditches, or the washing of seeds into the ditches from adjacent habitat 
or both. Sometimes Carex lutea occurs in very wet soil in areas of 
savanna habitat characterized by an open to absent canopy, suggesting 
that its abundance in the savanna-wet hardwood ecotone is strongly 
influenced by hydrologic conditions as well as by edaphic (influenced 
by factors inherent in the soil rather than by climatic factors) or 
light conditions or both. The annual average precipitation in 
Wilmington, NC, (approximately 25 miles (40 kilometers) south-southwest 
of the epicenter of Carex lutea) is 54.3 inches (138 centimeters). 
(https://www.weatherpages.com/variety/precip.html).
Light
    Most Carex lutea plants occur in the partially tree-shaded ecotone 
between savannas and hardwood swamps, with scattered shrubs and a 
moderate to dense herb layer. The savanna/hardwood swamp ecotone is 
subject to frequent fires, which favor an herbaceous ground layer and 
suppress shrub dominance. There is evidence that increased shading and 
shrub competition from fire suppression has resulted in the reduction 
in the number of individuals observed.
Soil
    Carex lutea occurs on a wide variety of mapped soil types, 
including fine sands (Baymeade, Mandarin, and Pactolus), loamy sands 
(Stallings), loamy fine sands (Foreston and Grifton), fine sandy loams 
(Torhunta and Woodington), and loams (Muckalee). The soils are formed 
from marine sediments and have a range of permeability (from rapid to 
moderately rapid) and drainage class (from well drained to very poorly 
drained). Soil tests at the type site (The Neck Savanna) indicate that 
microsites not supporting Carex lutea regularly test at lower pH levels 
than those supporting Carex lutea, with values at inhabited sites 
ranging from a pH of 5.5 to 7.2, with a mean of 6.7 (Glover 1994, p. 
7). This finding may indicate a preference to soils with a high base 
saturation or low aluminum saturation or both. The extent of the soils 
with these chemical characteristics is usually limited within the 
Coastal Plain and, therefore, are normally not mapped as separate soil 
map units due to the scale of mapping.
Temperature
    The outer southeastern coastal plain of North Carolina experiences 
hot and humid subtropical summers and cool temperate winters with 
subfreezing periods. Persistent snow accumulation is rare. The average 
crop growing season (daily minimum temperature higher than 32 degrees 
Fahrenheit (0 degrees Celsius)) for Onslow County is 162 days (Barnhill 
1992, p. 99) and for Pender County is 185 days (Barnhill 1990, p. 105). 
We have no information about the tolerance of Carex lutea to 
temperature extremes.
    Therefore, based on the information above, we identify wet to 
completely saturated loamy fine sands, fine sands, fine sandy loams, 
and loamy sands soils with a pH of 5.5 to 7.2, in sunny to partially 
tree-shaded areas or ecotones between savannas and hardwood forests to 
be a PCE for this species.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    The reproductive biology of Carex lutea is unknown; however, due to 
the observation of ample mature seed production, we can confidently 
surmise that Carex lutea reproduces both

[[Page 11084]]

sexually, involving gravity and wind-dispersed pollen, as well as 
vegetatively (LeBlond 1996, p. 19). Perigynia (a special bract that 
encloses the achene of a Carex species) are dispersed when rigid 
fertile culms fall to the ground, thereby depositing the fruits on the 
substrate adjacent to, but at some distance from, the maternal parent 
(LeBlond 1996, p. 19). Seeds have been observed in ditches adjacent to 
colonies, indicating dispersal by precipitation sheet flow. Animals may 
also be seed dispersers; the perigynia beaks are minutely serrulate 
(minutely serrated), perhaps for attachment to fur (LeBlond 1996, p. 
19). Survival rates of individual plants are unknown. Based on 
observation of the larger known populations, it appears that Carex 
lutea is a successful colonizer of suitable newly disturbed areas 
(LeBlond 1996, p. 19).
    Therefore, based on the information above, we identify areas of 
bare soil immediately adjacent [within 12 inches (30 cm)] to mature 
Carex lutea plants where seeds may fall and germinate to be a PCE for 
this species.
Habitats Protected from Disturbance or Representative of the Historic, 
Geographical, and Ecological Distributions of the Species
    The area supporting the Carex lutea populations is located in the 
Black River section of the Coastal Plain Province, and within the 
Northeast Cape Fear River watershed. The land surface is characterized 
by large areas of broad, level flatlands and shallow stream basins. The 
broad flatlands support longleaf pine forests, pond pine woodlands, 
shrub swamp pocosins, pine plantations, and cropland. The geology is 
characterized by unconsolidated sand overlying layers of clayey sand 
and weakly consolidated marine shell deposits (coquina limestone). 
These sediments were deposited and reshaped during several cycles of 
coastal emergence and submergence from the Cretaceous period to the 
present (LeBlond et al. 1994, p. 159).
    More specifically, Carex lutea occurs in the Very Wet Clay Variant 
of the Pine Savanna community (Schafale 1994, p. 136) or its ecotones. 
Community structure is characterized by an open to sparse canopy 
dominated by pond pine (Pinus serotina), and usually with some longleaf 
pine (Pinus palustris) and pond cypress (Taxodium ascendens). The shrub 
layer typically is sparse to patchy, with wax myrtle (Morella 
carolinensis), ti-ti (Cyrilla racemiflora), Ink berry (Ilex glabra), 
myrtle dahoon (Ilex myrtifolia), and black highbush blueberry 
(Vaccinium fuscatum) prominent. Juvenile red maple (Acer rubrum var. 
trilobum) and swamp tupelo (Nyssa biflora) are often present. The herb 
layer is dense, and dominated by combinations of Ctenium aromaticum 
(toothache grass), Carolina dropseed (Sporobolus pinetorum), and 
several Rhynchospora taxa [e.g., globe beaksedge (R. globularis var. 
pinetorum), sandswamp whitetop (R. latifolia), and Thorne's beakrush 
(R. thornei)]. National vegetation type classification places this 
natural community in the Pinus palustris - Pinus serotina / Sporobolus 
pinetorum - Ctenium aromaticum - Eriocaulon decangulare var. 
decangulare (Tenangle pipewort) Woodland association of the Pinus 
palustris - Pinus (P. elliottii, P. serotina) Saturated Woodland 
Alliance (NatureServe 2010). This association is equivalent to the Pine 
Savanna (Very Wet Clay Variant), a natural community type with fewer 
than 10 occurrences globally (Schafale 1994, p. 136). The Pine Savanna 
Very Wet Clay Variant is known only from the Maple Hill area near the 
Onslow/Pender County line and north and west of Holly Shelter Game 
Land, and from the Old Dock area of the Waccamaw River watershed along 
the Brunswick/Columbus County line.
    Therefore, based on the information above, we identify areas 
containing the natural plant community that would be identified as the 
Pine Savanna (Very Wet Clay Variant) according to methodology used in 
Schafale (1994, p. 136) to be a PCE for this species. The structure of 
this community is characterized by an open to sparse canopy dominated 
by pond pine, and usually with some longleaf pine and pond cypress.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species and the habitat 
requirements for sustaining the essential life history functions of the 
species, we have determined that the PCEs for Carex lutea is Pine 
Savanna (Very Wet Clay Variant) natural plant community or ecotones 
that contain:
    1. Moist to completely saturated loamy fine sands, fine sands, fine 
sandy loams, and loamy sands soils with a pH of 5.5 to 7.2;
    2. Open to relatively open canopy that allows full to part sun to 
penetrate to the herbaceous layer between savannas and hardwood 
forests; and
    3. Areas of bare soil immediately adjacent [within 12 inches (30 
cm)] to mature Carex lutea plants where seeds may fall and germinate or 
existing plants may expand in size.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain physical and biological features that are essential 
to the conservation of the species and whether those features may 
require special management considerations or protection.
    As stated in the final listing rule, threats to Carex lutea include 
habitat alteration; conversion of its limited habitat for residential, 
commercial, or industrial development; mining; drainage activities 
associated with silviculture and agriculture; suppression of fire; 
highway expansion; and herbicide use along utility and highway rights-
of-way (67 FR 3120). Through our review of the existing data on Carex 
lutea, we conclude that the threats listed in the final listing rule 
continue to impact this species and its essential physical and 
biological features.
    The destruction of habitat or conversion of habitat for 
residential, commercial, or industrial development can change the 
topography, soils, and general character of the site, making it 
uninhabitable for Carex lutea. These activities can remove the PCEs by 
removing soil (by grading) and changing Carex lutea habitat to 
developed land, which is unsuitable for the species.
    Drainage activities associated with silviculture and agriculture 
may alter the hydrology, which can change the groundwater levels and 
the amount of moisture in the soil, creating conditions under which 
Carex lutea may not be able to survive. Further, removal of existing 
vegetation or the planting of trees for silviculture may change the 
existing conditions such that Carex lutea plants no longer receive 
optimal amounts of sunlight.
    The close proximity of roadways and power line corridors to 
populations of Carex lutea may affect the species. Herbicide treatment 
to maintain vegetation in rights-of-ways has the potential to kill non-
target plant species such as Carex lutea. Highway expansion may change 
the local topography and affect water runoff making the site drier or 
wetter than is optimal for Carex lutea.
    Mining has been documented in close proximity to one Carex lutea 
population. Mining activities may alter many aspects of Carex lutea 
habitat. Heavy equipment can compact or remove the appropriate soils. 
The grading of areas adjacent to Carex lutea habitat can change the 
hydrology of those areas and make them more

[[Page 11085]]

susceptible to invasion by nonnative plant species.
    Regular fire in areas where Carex lutea occurs helps to maintain 
the open savanna habitat that is conducive to Carex lutea growth. Fire 
reduces competition and allows seeds to germinate in open, bare soil 
areas. Fire suppression in areas where Carex lutea occurs may result in 
the growth of shrubs and trees that will eventually shade out 
herbaceous species such as Carex lutea.
    All of these activities may in turn lead to the disruption of the 
growth and reproduction of Carex lutea.
    In summary, we find that the areas we are proposing as critical 
habitat contain the features essential to the conservation of Carex 
lutea, and that these features may require special management 
considerations or protection. Special management considerations or 
protection may be required to eliminate, or reduce to negligible level, 
the threats affecting each unit or subunit and to preserve and maintain 
the essential features that the proposed critical habitat units and 
subunits provide to Carex lutea. Additional discussions of threats 
facing individual sites are provided in the individual unit and subunit 
descriptions.
    The designation of critical habitat does not imply that lands 
outside of critical habitat may not play an important role in the 
conservation of Carex lutea. In the future, and with changed 
circumstances, these lands may become essential to the conservation of 
Carex lutea. Activities with a Federal nexus that may affect areas 
outside of critical habitat, such as development, agricultural 
activities, and road construction, are still subject to review under 
section 7 of the Act if they may affect Carex lutea because Federal 
agencies must consider both effects to the plant and effects to 
critical habitat independently. The prohibitions of section 9 of the 
Act applicable to Carex lutea under 50 CFR 17.61 also continue to apply 
both inside and outside of designated critical habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining areas within the 
geographical area occupied at the time of listing that contain the 
physical and biological features essential to the conservation of Carex 
lutea, and areas outside of the geographical area occupied at the time 
of listing that are essential for the conservation of Carex lutea. In 
order to determine which sites were occupied at the time of listing, we 
used the NCNHP database of rare species (NCNHP 2009). If an element 
occurrence (EO) record or site was first observed after the species was 
listed (effective on February 22, 2002), then we considered that those 
sites were unknown at the time of listing. Five subunits had first 
observed dates after February 22, 2002. However, given what we know 
about the biology of this species and the habitats where it occurs, 
those five subunits were likely occupied at the time the species was 
listed. The occurrence at Watkins Savannah (O'Berry Tract C) (EO 5.19) 
was found during surveys for Carex lutea in 2006. The two sites on 
Ashes Creek at the Southwest Ridge Savanna (EO 11) were found during 
surveys for Carex lutea in 2002, just 3 months after the species was 
listed. In 2007, surveys for Carex lutea at the McLean Savanna yielded 
two new subpopulations of Carex lutea (EOs 24.22 and 24.23). Carex 
lutea was already known from a site nearby, and all three of these 
subpopulations are now considered to be part of one population. To the 
best of our knowledge, these areas had not been surveyed for Carex 
lutea previously, and we have no reason to believe that the plant was 
imported or had dispersed into these areas from other areas after Carex 
lutea was listed in 2002. Based on the biology of this species and its 
limited ability for the seeds to move and colonize new areas, the 
occurrences identified since listing likely were in existence for many 
years prior to listing and were only recently detected due to increased 
awareness of this species.
    We have also reviewed available information that pertains to the 
habitat requirements of this species including NCNHP data, the original 
species description (LeBlond et al 1994, pp. 159-160), the status 
survey (LeBlond 1996, pp. 11-13), the Service's draft Recovery Plan and 
the 5-Year Review, regional Geographic Information System (GIS) 
coverages, survey reports, and other relevant information.
    The only criterion that we used to identify proposed critical 
habitat was that the areas are currently occupied by Carex lutea. These 
areas occur on rare or unique habitat (the Very Wet Clay Variant of the 
Pine Savanna community, remnant savannas, or ecotones thereof) within 
the species' range and contain all of the PCEs identified as necessary 
for the conservation of the species. Since so few populations are known 
to exist, they are all important to the long-term survival and recovery 
of the species. Eight units (19 subunits) are proposed for designation 
based on sufficient quantity and arrangement of the PCEs being present 
to support Carex lutea's life processes.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas, such as lands covered 
by buildings, roads, and other structures, because such lands lack PCEs 
for Carex lutea. The scale of the maps we prepared under the parameters 
for publication within the Code of Federal Regulations may not reflect 
the exclusion of such developed lands. Any such lands inadvertently 
left inside critical habitat boundaries shown on the maps of this 
proposed rule have been excluded by text in the proposed rule and are 
not proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical and biological features 
in the adjacent critical habitat.
    To the best of our knowledge, there are no unoccupied areas that 
contain one or more of the PCEs for Carex lutea. All of the areas 
proposed as critical habitat for Carex lutea are currently occupied by 
the species and contain the PCEs. All of the areas proposed as critical 
habitat are also within the known historical range of the species. 
Therefore, we are not proposing to designate any areas outside the 
geographical area occupied by the species at the time of listing. We 
believe that the occupied areas are sufficient for the conservation of 
the species.

Proposed Critical Habitat Designation

    We are proposing 8 units (19 subunits) totaling approximately 189 
acres (ac) (75.6 hectares (ha)) as critical habitat for Carex lutea. 
The areas we describe below constitute our current best assessment of 
areas that meet the definition of critical habitat for Carex lutea. The 
eight areas we propose as critical habitat are: (1) Unit 1: Watkins 
Savanna, (2) Unit 2: Haws Run Mitigation Site, (3) Unit 3: Maple Hill 
School Road Savanna, (4) Unit 4: Southwest Ridge Savanna, (5) Unit 5: 
Sandy Run Savannas, (6) Unit 6: The Neck Savanna, (7) Unit 7: Shaken 
Creek Savanna, and (8) Unit 8: McLean Savanna. All units are now 
occupied by Carex lutea, but five subunits in three units were unknown 
at the time of listing. However, based on the biology of this species 
and its limited ability for the seeds to move and colonize new areas, 
the occurrences identified since listing likely were in existence for 
many years prior to listing and were only

[[Page 11086]]

recently detected due to increased awareness of this species. 
Therefore, we are considering them to be occupied at the time of 
listing. Table 1 identifies the occupancy status for each subunit.

                      TABLE 1. Occupancy of Carex lutea by Proposed Critical Habitat Units.
----------------------------------------------------------------------------------------------------------------
                                                                  Occupied at Time of
                 Unit                          Subunit                  Listing?           Currently Occupied?
----------------------------------------------------------------------------------------------------------------
1                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
1                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
1                                      C                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
2                                      Not applicable (N/A)     Yes                      Yes
----------------------------------------------------------------------------------------------------------------
3                                      N/A                      Yes                      Yes
----------------------------------------------------------------------------------------------------------------
4                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
4                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
5                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
5                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
5                                      C                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
5                                      D                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
5                                      E                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
6                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
6                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
6                                      C                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
7                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
7                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
7                                      C                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
8                                      A                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
8                                      B                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------
8                                      C                        Yes                      Yes
----------------------------------------------------------------------------------------------------------------

    Table 2 includes the name, ownership information, and size of each 
unit and subunit we are proposing as critical habitat.

                                         TABLE 2. Ownership of Proposed Critical Habitat Units for Carex lutea.
                                       [Area estimates reflect all land within critical habitat unit boundaries.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                       Land Ownership by
                Unit                         Subunit                  Name                    Type            Size of Unit Acres   Size of Unit Hectares
--------------------------------------------------------------------------------------------------------------------------------------------------------
1                                    A                       Watkins Savanna,        NCDPR                  1.2                    0.5
                                                              O'Berry, Tract A
--------------------------------------------------------------------------------------------------------------------------------------------------------
1                                    B                       Watkins Savanna,        Private, NCDPR         2.0                    0.8
                                                              Unnamed Tract
--------------------------------------------------------------------------------------------------------------------------------------------------------
1                                    C                       Watkins Savanna,        NCDPR                  0.6                    0.2
                                                              O'Berry, Tract C
--------------------------------------------------------------------------------------------------------------------------------------------------------
2                                    N/A                     Haws Run Mitigation     NCDOT                  27.1                   11.0
                                                              Site
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                    N/A                     Maple Hill School       Private                27.7                   11.2
                                                              Road, Savanna
--------------------------------------------------------------------------------------------------------------------------------------------------------
4                                    A                       Southwest Ridge         NCWRC with Progress    2.3                    0.9
                                                              Savanna, Ashes Creek,   Energy, ROW
                                                              Carex lutea Survey
                                                              Site, Southwest of
                                                              Ashes Creek
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 11087]]

 
4                                    B                       Southwest Ridge         NCWRC with Progress    1.0                    0.4
                                                              Savanna, Ashes Creek,   Energy, ROW
                                                              Carex lutea Survey
                                                              Site, Northeast of
                                                              Ashes Creek
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    A                       Sandy Run Savannas      NCDPR with Progress    2.6                    1.1
                                                                                      Energy, ROW
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    B                       Sandy Run Savannas      NCDPR                  4.3                    1.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    C                       Sandy Run Savannas      NCDPR                  0.3                    0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    D                       Sandy Run Savannas      NCDPR                  0.3                    0.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
5                                    E                       Sandy Run Swamp         NCDPR with Progress    13.1                   5.3
                                                                                      Energy, ROW
--------------------------------------------------------------------------------------------------------------------------------------------------------
6                                    A                       The Neck Savanna        NCDPR                  3.6                    1.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
6                                    B                       The Neck Savanna,       Private                0.7                    0.3
                                                              Thorne's Beaksedge
                                                              Road
--------------------------------------------------------------------------------------------------------------------------------------------------------
6                                    C                       The Neck Savanna,       Private with           0.1                    0.1
                                                              former Sandy Run        Powerline ROW
                                                              Savanna
--------------------------------------------------------------------------------------------------------------------------------------------------------
7                                    A                       Shaken Creek Savanna,   TNC                    6.9                    2.8
                                                              East Population, East
                                                              of Patterson Road
--------------------------------------------------------------------------------------------------------------------------------------------------------
7                                    B                       Shaken Creek Savanna,   TNC                    24.7                   10.0
                                                              West Population, East
                                                              of Patterson Road
--------------------------------------------------------------------------------------------------------------------------------------------------------
7                                    C                       Shaken Creek Savanna,   TNC                    26.1                   10.6
                                                              West Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
8                                    A                       McLean Savanna          TNC                    42.3                   17.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
8                                    B                       McLean Savanna          Private                0.5                    0.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
8                                    C                       McLean Savanna          TNC, Private           1.6                    0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total*                                                                                                      189.0                  76.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Note: Area sizes may not sum due to rounding.

    We present brief descriptions of each unit, and reasons why they 
meet the definition of critical habitat for Carex lutea, below

Unit 1: Watkins Savanna, Pender County, North Carolina

    Unit 1 consists of 3.8 ac (1.5 ha) and includes three subunits in 
Pender County, NC. It contains all of the PCEs for Carex lutea. This 
critical habitat unit includes habitat for Carex lutea that is under 
private and State ownership. This unit contains three element 
occurrences, two of which were known at the time of listing. The 
subunits contain all of the PCEs identified for Carex lutea; however, 
they are all very fire suppressed and have been altered by timber 
management. The NC Division of Parks and Recreation (NCDPR) is 
currently negotiating with the NCNHP to designate this site as a 
Dedicated Nature Preserve.
    Subunit A (EO 5.12) consists of 1.2 ac (0.5 ha) and was known to be 
occupied at the time of listing. It is owned by NCDPR and is managed as 
part of the Sandy Run Savannas State Natural Area.
    Subunit B (EO 5.13) consists of 2.0 ac (0.8 ha) and was known to be 
occupied at the time of listing. It is owned by private entities and 
NCDPR. NCDPR plans to manage their portion of the subunit as part of 
the Sandy Run Savannas State Natural Area.
    Subunit C (EO 5.19) consists of 0.6 ac (0.2 ha) and was not known 
to be occupied at the time of listing. This Carex lutea site was 
discovered in 2006; however, based on the habitat conditions at this 
site and the biology of the species, we believe that this site was 
occupied in 2002, when the species was listed. It is in conservation 
ownership by NCDPR and is managed as part of the Sandy Run Savannas 
State Natural Area.

Unit 2: Haws Run Mitigation Site, Onslow County, North Carolina

    Unit 2 (EO 7) consists of 27.1 ac (11.0 ha) in Onslow County, NC. 
This critical habitat unit includes habitat for Carex lutea and was 
occupied at the time of listing. It is owned by the NC Department of 
Transportation and is managed by the NC Ecosystem Enhancement Program. 
This site was purchased as mitigation for wetland impacts from nearby 
transportation projects. Although the site is somewhat fire suppressed 
and has been altered by timber management, it contains all of the PCEs 
identified for Carex lutea. The land managers conducted a prescribed 
fire in the vicinity of the Carex lutea plants during the summer of 
2009 and will continue restoration efforts there.

[[Page 11088]]

The population at this site appears to be stable and not vulnerable to 
extirpation. Managers are considering designating this site as a 
Dedicated Nature Preserve by the NCNHP.

Unit 3: Maple Hill School Road Savanna, Pender County, North Carolina

    Unit 3 (EO 10) consists of 27.7 ac (11.2 ha) in Pender County, NC. 
This site is privately owned and has not been revisited since it was 
discovered in 1998. It was occupied at the time of listing. Although 
three clumps of Carex lutea were discovered here in 1998, the full 
extent of the population is unknown and the habitat is vulnerable to 
land use changes.

Unit 4: Southwest Ridge Savanna, Pender County, North Carolina

    Unit 4 (EO 11) consists of 3.3 ac (1.3 ha) in two subunits in 
Pender County, NC. This unit is owned by NC Wildlife Resources 
Commission and is managed for conservation purposes. These two 
subpopulations were discovered in May 2002, shortly after the species 
was listed as endangered (effective on February 2002). Because the 
species is nearly impossible to identify unless it is flowering and 
plants less than 3 months old would not be expected to flower in May, 
it seems reasonable to assume that the plants discovered in May 2002 
were present prior to the 2002 growing season and that the site was 
occupied at the time of listing. The Carex lutea plants occur in a 
power line right-of-way easement that is managed by Progress Energy. 
The utility company entered into a Registry Agreement with the NCNHP 
and agreed not to use herbicides or mow during critical Carex lutea 
growth periods. This population is relatively small in size compared to 
some of the other populations, but appears to be stable. The subunits 
contain all of the PCEs identified for Carex lutea.
    Subunit A is 2.3 ac (0.9 ha) in size and is located southwest of 
Ashes Creek.
    Subunit B is 1.0 ac (0.48 ha) in size and is located northeast of 
Ashes Creek.

Unit 5: Sandy Run Savannas, Onslow County, North Carolina

    Unit 5 consists of 20.6 ac (8.3 ha) in Onslow County, NC, and is 
divided into five subunits. This critical habitat unit is owned by 
NCDPR and managed as part of the Sandy Run Savannas State Natural Area. 
All five Carex lutea sites were known at the time of listing. This unit 
is a remnant pine savanna, and the subunits contain all of the PCEs 
identified for Carex lutea; however, the subunits are all fire 
suppressed and have been altered by timber management including bedding 
and ditching. The NCDPR is currently negotiating the designation of a 
Dedicated Nature Preserve with the NCNHP.
    Subunit A (EO 15.3) consists of 2.6 ac (1.1 ha) and occurs on the 
east side of NC 50. Progress Energy has a transmission line right-of-
way through this subunit and has entered into a Registry Agreement with 
the NCNHP in which they have agreed not to use herbicides or mow during 
critical Carex lutea growth periods.
    Subunit B (EO 15.4) consists of 4.3 ac (1.7 ha) and occurs 
contiguous to and along the north side of a private sand road through 
the property.
    Subunit C (EO 15.4) consists of 0.3 ac (0.1 ha) and occurs along 
the south side of a private sand road through the property and on the 
west side of a small stream swamp. The plants are growing in an old, 
wet road bed.
    Subunit D (EO 15.4) consists of 0.3 ac (0.1 ha) and occurs along 
the south side of a private sand road through the property and on the 
east side of a small stream swamp. The Carex lutea plants are growing 
in a roadside ditch.
    Subunit E (EO 15.14) consists of 13.1 ac (5.3 ha) and occurs 
contiguous to and on the west side of NC 50. Progress Energy has a 
transmission line right-of-way through this subunit and has entered 
into a Registry Agreement with the NCNHP in which they have agreed not 
to use herbicides or mow during critical Carex lutea growth periods.

Unit 6: The Neck Savanna, Pender County, North Carolina

    Unit 6 consists of 4.4 ac (1.8 ha) in Pender County, NC, and is 
divided into three subunits. This critical habitat unit includes 
habitat for Carex lutea that is under private and State ownership. This 
unit contains three element occurrences, two of which were known at the 
time of listing. The subunits contain all of the PCEs identified for 
Carex lutea; however, they are all very fire suppressed and have been 
altered by timber management. The NCDPR is currently negotiating the 
designation of a Dedicated Nature Preserve with the NCNHP. Privately 
owned portions of this property are threatened by fire suppression, 
timber harvesting, and herbicide use. Drainage ditches impact the 
hydrology of the soils in this area.
    Subunit A (EO 18.1) consists of 3.6 ac (1.5 ha) and was known to be 
occupied at the time of listing. It is owned by NCDPR and private 
entities, some of which will become part of the Sandy Run Savannas 
State Natural Area.
    Subunit B (EO 18.16) consists of 0.7 ac (0.3 ha) and is privately 
owned. It is currently threatened by fire suppression, but the managers 
are hopeful that they will be able to burn this tract within the next 
year or two.
    Subunit C (EO 18.17) consists of 0.1 ac (0.1 ha), is privately 
owned, and occurs in a small power-line corridor along a roadside. It 
is vulnerable to woody growth and herbicide u