Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Carex lutea, 11086-11111 [2011-4036]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 40 (Tuesday, March 1, 2011)]
[Rules and Regulations]
[Pages 11086-11111]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-4036]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Carex lutea (golden sedge) under the 
Endangered Species Act of 1973, as amended. In total, approximately 202 
acres (82 hectares) in 8 units located in Onslow and Pender Counties, 
North Carolina fall within the boundaries of the critical habitat 
designation.

DATES: This final rule becomes effective on March 31, 2011.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at https://www.regulations.gov. Comments 
and materials received, as well as supporting documentation used in 
preparing this final rule, are available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Raleigh Fish and Wildlife Office, 551-F Pylon Drive, 
Raleigh, NC 27636; telephone 919-856-4520; facsimile 919-856-4556.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Fish and Wildlife Office (see 
ADDRESSES). If you use a telecommunications device for the deaf (TDD), 
call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss in this final rule only those topics 
directly relevant to the development and designation of critical 
habitat for Carex lutea under the Act (16 U.S.C. 1531 et seq.). For 
more information on the taxonomy, biology, and ecology of Carex lutea, 
refer to the final listing rule published in the Federal Register on 
January 23, 2002 (67 FR 3120). Information on the associated draft 
economic analysis (DEA) for the proposed rule to designate critical 
habitat was published in the Federal Register on August 3, 2010 (75 FR 
45592).

Species Description, Life History, Distribution, Ecology and Habitat

    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.

[[Page 11087]]

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 reevaluation 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.
    We affirmed that designation of critical habitat for Carex lutea is 
prudent and determinable, and we published a proposal to designate 
critical habitat for this species in the Federal Register on March 10, 
2010 (75 FR 11080). We accepted public comments on this proposal for 60 
days, ending May 10, 2010. On August 3, 2010 (75 FR 45592), we 
announced the reopening of the public comment period for an additional 
30 days (ending September 2, 2010); the availability of a DEA; our 
proposal to enlarge two previously proposed subunits of critical 
habitat because we discovered that Carex lutea occupies an area at 
these two subunits that is greater than what we believed when we were 
preparing the March 10, 2010, proposed rule; and an amended required 
determinations section of the proposal (75 FR 45592).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Carex lutea during two comment 
periods. The first comment period, following publication of the 
proposed rule, opened March 10, 2010 (75 FR 11080), and closed May 10, 
2010. The second comment period, associated with the availability of 
the DEA and our revised proposal, opened August 3, 2010 (75 FR 45592), 
and closed September 2, 2010. We contacted appropriate Federal, State, 
County, and local agencies; scientific organizations; and other 
interested parties, and invited them to comment on the proposed rule 
and the associated DEA.
    During the first comment period (March 10 through May 10, 2010), we 
received two comment letters directly addressing the proposed critical 
habitat designation. During the second comment period (August 3 through 
September 2, 2010), we received one comment letter addressing the 
proposed critical habitat designation and the DEA. We did not receive 
any requests for a public hearing, so no public hearing was held. 
Comments we received, including comments from peer reviewers (see 
below), are addressed in the following summary and incorporated into 
the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we solicited expert opinions 
from three knowledgeable individuals with scientific expertise 
including familiarity with the species, the geographic region in which 
the species occur, and conservation biology principles pertinent to the 
species. We received responses from all three peer reviewers.
    We reviewed all comments we received from peer reviewers for 
substantive issues and new information regarding critical habitat for 
Carex lutea. With a few exceptions, the peer reviewers generally 
concurred with our methods and conclusions, indicating the Service had 
used the most current scientific information available; had accurately 
described the species, their habitat requirements, the primary 
constituent elements (PCEs) for the species, the reasons for their 
decline, and threats to their habitat; and had done a thorough job of 
delineating critical habitat using the best available scientific 
information.

Peer Reviewer Comments

    Comment 1: One reviewer pointed out that, for those sites that 
occur on land currently owned by the North Carolina Division of Parks 
and Recreation (NCDPR) or lands expected to be transferred to it in the 
near future (Sandy Run Savannas and Haws Run), the savanna restoration 
plans are unclear because of funding and on-site personnel 
uncertainties; however prescribed burning has been initiated on the 
parcels.
    Our Response: The Service appreciates the work that the NCDPR has 
done to protect and enhance Carex lutea and its habitat, such as the 
prescribed burns. NCDPR will continue to manage the habitat as 
resources allow. Additionally, the Service will continue to work with 
NCDPR to help protect, manage, and enhance Carex lutea and its habitat 
that occurs on the lands as funding becomes available.
    Comment 2: One reviewer stated that sea level rise, as a 
consequence of climate change, could have significant long-term impacts 
on these populations because the elevation range is only 6.0 ft (1.83 
m) to 14.0 ft (4.27 m) for all Sandy Run and Haws Run properties. 
Additionally, rising water tables may result in shifts of savanna 
species to higher landscape positions within the natural area.
    Our Response: The Service is concerned about global climate change 
and how sea level rise will affect federally listed species. We will 
continue to monitor rising water tables and consider actions to protect 
Carex lutea.
    Comment 3: Another reviewer summarized that the greatest threats 
are inadequate fire and the consequences thereof to Carex lutea habitat 
at protected sites. The reviewer further stated that climate change may 
exacerbate some of the problems associated with this threat.
    Our Response: The Service will continue to monitor threats to Carex 
lutea and its habitat and will work with land owners, as appropriate, 
to encourage prescribed fires and other beneficial management 
activities. We are not aware of any populations that have been affected 
by or may be affected by climate change in the future. We will also 
monitor and work to address potential effects if they occur.
    Comment 4: One reviewer commented that fire suppression allows 
critical habitat to be invaded by nonindigenous plants and animals that 
are not fire-adapted.
    Our Response: The Service agrees with the reviewer's statement, and 
we included a sentence stating this in the Special Management 
Considerations or Protections section of this rule.
    Comment 5: One reviewer pointed out that Baymeade and possibly 
Mandarin soils are too dry for Carex lutea and indicated that if Carex 
lutea is known from an area mapped as Baymeade that it likely occurs on 
a wetter soil type that is too small to map.
    Our Response: The Service reviewed the characteristics for Baymeade 
and Mandarin soils. Baymeade soil is considered a well-drained soil 
with rapid permeability, and Mandarin soil is considered somewhat 
poorly drained. We agree with the commenter and have

[[Page 11088]]

made changes in the Food, Water, Air, Light, Minerals, or Other 
Nutritional or Physiological Requirements (Soil) section. We removed 
Baymeade from the list of soil types where Carex lutea may occur. 
Because Mandarin soils are somewhat poorly drained, we made no changes 
to this soil type in this final rule.
    Comment 6: One reviewer clarified that perigynia frequently detach 
individually or a few together from the spikes and rarely, if ever, 
reach the ground while still attached to the spike and culm.
    Our Response: The Service agrees with the reviewer's statement, and 
we made the appropriate changes in the Sites for Breeding, 
Reproduction, or Rearing (or Development) of Offspring section.
    Comment 7: One reviewer commented that while drainage ditches may 
have suitable wetland soils and are able to support Carex lutea, their 
hydrologic regimes are not natural and it is likely that seeds produced 
from ditch populations are transported off site to unsuitable habitat 
during precipitation events.
    Our Response: The Service agrees with this statement, and we 
included a sentence clarifying this in the Food, Water, Air, Light, 
Minerals, or Other Nutritional or Physiological Requirements (Water) 
section.
    Comment 8: One reviewer asked if it was possible for the final rule 
to refer to the U.S. Department of Agriculture's (USDA) National 
Agriculture Imagery Program aerial photos that would show the critical 
habitat as it existed on the date the photos were taken in order to 
resolve any conflicts regarding the beginning date of any development 
within the critical habitat area's boundaries.
    Our Response: Our regulations require us to provide textual 
descriptions of the boundaries of critical habitat for a species. These 
descriptions are most commonly provided using latitude-longitude or 
Universal Transverse Mercator (UTM) coordinate pairs. The USDA National 
Agriculture Imagery Program maps do not satisfy this requirement. 
However, the USDA National Agriculture Imagery Program aerial photos 
will be made available for viewing at the office listed in the 
ADDRESSES section of this rule.
    Comment 9: One reviewer noted that Unit 6, subunit A, The Neck 
Savanna has the additional significance of being the type locality for 
Carex lutea.
    Our Response: The Service agrees with this statement, and we have 
added language in the unit description to acknowledge this.
    Comment 10: One reviewer pointed out that the locations of subunits 
within Unit 7 were not adequately described.
    Our Response: We agree and have amended the location description in 
the Final Critical Habitat Designation section of this final rule.
    Comment 11: One reviewer mentioned that the map for Unit 7 is 
unclear as subunits 7A and 7B appear as only one polygon.
    Our Response: The Service agrees with this comment; however, it is 
difficult to show subunits 7A and 7B as separate polygons at the 
resolution required for Federal Register publication. Subunits 7A and 
7B are only separated by approximately 25 feet (7.6 meters), the width 
of a gravel road through the site. The boundaries are properly 
identified in the Final Critical Habitat Designation and Regulation 
Promulgation sections of this rule. More detailed maps that show the 
separation of subunits 7A and 7B are available from the Raleigh Fish 
and Wildlife Office. See the ADDRESSES section of this final rule for 
contact information.

Public Comments

    Comment 12: One commenter asked that his family property not be 
considered a part of the critical habitat area because the family's 
intent is to continue farming and provide the family's dependent 
children the opportunity to develop the property as desired.
    Our Response: We carefully inspected updated aerial imagery of the 
proposed critical habitat area. We also conducted a site visit to the 
commenter's property to determine if the area in question provides the 
essential physical and biological features for Carex lutea. We 
determined that a small area along the edge of the commenter's property 
does contain the essential physical and biological features for Carex 
lutea and a small population occurs in the critical habitat area. We 
are not able to exclude areas that currently provide the essential 
physical and biological features for the species from critical habitat 
designation on the basis of anticipated future development, nor do such 
development plans form the basis for an exclusion from critical habitat 
under the provisions of the Act. The total amount of designated 
critical habitat in this subunit is 0.1 acre (ac) (0.04 hectare (ha)). 
The designation of critical habitat, in and of itself, has no legal 
effect on property rights or constitutes a physical or regulatory 
``taking'' of real estate property. See the ``Takings--Executive Order 
12630'' discussion below.
    Comment 13: One commenter mentioned that Muhlenbergia expansa 
(cutover muhly) is the most abundant grass in relatively undisturbed, 
specific locations of Carex lutea.
    Our Response: The Service agrees with this statement, and we 
incorporated this species in the habitat description in the Habitats 
Protected from Disturbance or Representative of the Historic, 
Geographical, and Ecological Distributions of the Species section.
    Comment 14: One commenter noted that Shaken Creek Savanna is owned 
and managed by The Nature Conservancy (TNC) and that hunting rights are 
separately owned by private individuals and are tied to a hunt club.
    Our Response: We made the appropriate clarification in the Final 
Critical Habitat Designation section.
    Comment 15: One commenter noted that he is aware of populations of 
Carex lutea at subunits 7A and 7B, but that he is not aware of any 
Carex lutea population at subunit 7C.
    Our Response: We contacted the species expert at North Carolina 
Natural Heritage Program and confirmed that Carex lutea and the 
necessary physical and biological features for this species do occur in 
subunit 7C. Therefore, we did not make any changes to this part of the 
critical habitat designation.
    Comment 16: One commenter noted that subunit 8C appears to have 
many acres (hectares) of suitable habitat for Carex lutea and suggested 
that this subunit should be greatly expanded.
    Our Response: We conducted a site visit to the property to 
determine if the area in question provides the essential physical and 
biological features for Carex lutea. Our findings concur with the 
commenter's suggestions. The actual extent of Carex lutea at this site 
was greater than we previously believed. Based on this new information, 
we expanded the critical habitat area to incorporate a larger area that 
contains the essential physical and biological features for Carex 
lutea. On August 3, 2010, we published in the Federal Register (75 FR 
45592) our proposal to increase the area of subunit 8C, as well as the 
area of subunit 5D. The total amount of proposed critical habitat in 
subunit 8C increased by 8.2 ac (3.3 ha), from 1.6 ac (0.6 ha) in our 
March 10, 2010, proposed rule (75 FR 11080) to 9.8 ac (4.0 ha) in our 
August 3, 2010, revised proposed rule (75 FR 45592).
    Comment 17: One commenter expressed concern over the potential 
negative impacts of listing the Maple Hill School Road Savanna (Unit 3) 
as critical habitat. He mentioned that the site consists of several 
small parcels

[[Page 11089]]

owned by approximately 12 private individuals. He is concerned that the 
critical habitat designation may result in reactive actions by these 
landowners that may destroy good habitat and the small population that 
was known to occur there at the time of listing.
    Our Response: The Service respects the commenter's opinions on this 
matter because of his extensive involvement with the protection of many 
of the conservation lands associated with Carex lutea. However, we are 
not able to exclude areas that currently provide the essential physical 
and biological features for the species from critical habitat 
designation on this basis. Further, when we published the proposed rule 
in March 2010, we contacted all of the property owners that might be 
affected by the designation. In our correspondence we included a letter 
that explained the proposed rule and provided a copy of the Federal 
Register notice along with information about how to provide public 
comments. We did not receive any public comments from any property 
owner in the vicinity of Unit 3.

Summary of Changes From the Proposed Rule

    We thoroughly evaluated all comments received on the proposed 
designation of critical habitat. As a result of the comments we 
received on the proposed rules, as well as additional field 
observations during the 2010 field season, we have made the following 
changes to our proposed designation.
     We adjusted the boundary of Unit 5, subunit D (Sandy Run 
Savannas), in Onslow County. We expanded the critical habitat area from 
0.3 ac (0.1 ha) to 4.9 ac (2.0 ha), an increase of 4.6 ac (1.9 ha). 
Unit 5 is in conservation ownership by the NCDPR and managed as the 
Sandy Run Savannas State Natural Area. The proposed expansion of Unit 
5, subunit D (Sandy Run Savannas), was described in our August 3, 2010, 
revised proposed rule (75 FR 45592).
     We adjusted the boundary of Unit 8, subunit C (McLean 
Savanna) in Pender County. We expanded the critical habitat area from 
1.6 ac (0.6 ha) to 9.8 ac (4.0 ha), for an increase of 8.2 ac (3.3 ha). 
Subunit 8C is owned by TNC and a private company; however, TNC 
anticipates acquiring the privately owned section in the next 12 months 
and managing the entire site as a nature preserve. The proposed 
expansion of Unit 8, subunit C (McLean Savanna), was described in our 
August 3, 2010, revised proposed rule (75 FR 45592).
    All of the additional areas included within the critical habitat 
boundaries contain all of the PCEs that were identified in the March 
10, 2010, proposed rule (75 FR 11080) to designate critical habitat for 
Carex lutea. Because the areas where we increased the size of the 
critical habitat units are in current or impending conservation 
ownership, we determined that including these areas within the critical 
habitat designation will not impact any development, silviculture, or 
other activities of economic importance; therefore, this decision will 
not alter the economic analysis of the designation.
    With the inclusion of these additional areas, the Service is 
designating 8 units (21 subunits) totaling approximately 201.8 ac (81.7 
ha) in Onslow and Pender Counties, North Carolina, as critical habitat 
for Carex lutea.
    We are finalizing the following critical habitat designation in 
accordance with section 4 of the Act.

                   Table 1--Critical Habitat Unit Changes in Acres (Hectares) for Carex lutea
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                          Proposed rule ac    Final rule ac
                Unit                       Subunit              (ha)               (ha)          Change ac (ha)
----------------------------------------------------------------------------------------------------------------
1..................................                  A          1.2 (0.5)          1.2 (0.5)
1..................................                  B          2.0 (0.8)          2.0 (0.8)
1..................................                   C         0.6 (0.2)          0.6 (0.2)
2..................................                N/A         27.1 (11.0)        27.1 (11.0)
3..................................                N/A         27.7 (11.2)        27.7 (11.2)
4..................................                  A          2.3 (0.9)          2.3 (0.9)
4..................................                  B          1.0 (0.4)          1.0 (0.4)
5..................................                  A          2.6 (1.1)          2.6 (1.1)
5..................................                  B          4.3 (1.7)          4.3 (1.7)
5..................................                   C         0.3 (0.1)          0.3 (0.1)
5..................................                  D          0.3 (0.1)          4.9 (2.0)        + 4.6 (1.9)
5..................................                  E         13.1 (5.3)         13.1 (5.3)
6..................................                  A          3.6 (1.5)          3.6 (1.5)
6..................................                  B          0.7 (0.3)          0.7 (0.3)
6..................................                   C         0.1 (0.04)         0.1 (0.04)
7..................................                  A          6.9 (2.8)          6.9 (2.8)
7..................................                  B         24.7 (10.0)        24.7 (10.0)
7..................................                   C        26.1 (10.6)        26.1 (10.6)
8..................................                  A         42.3 (17.1)        42.3 (17.1)
8..................................                  B          0.5 (0.2)          0.5 (0.2)
8..................................                   C         1.6 (0.6)          9.8 (4.0)        + 8.2 (3.3)
                                    ----------------------------------------------------------------------------
    Total *........................  ..................       189.0 (76.5)       201.8 (81.7)      + 12.8 (5.2)
----------------------------------------------------------------------------------------------------------------
* Note: Area sizes may not sum due to rounding.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) 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
    (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 a 
species at the time it is listed, upon a

[[Page 11090]]

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 under 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 requirement that Federal agencies insure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 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) of the Act would apply, but even in the event of a destruction 
or adverse modification finding, the obligation of the Federal action 
agency and the landowner 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 included 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 or biological features essential to 
the conservation of the species, and be included only if those features 
may require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical and biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat), focusing on the principal 
biological or physical constituent elements (primary constituent 
elements) within an area that are essential to the conservation of the 
species (such as roost sites, nesting grounds, seasonal wetlands, water 
quality, tide, soil type). Primary constituent elements are the 
elements of physical and biological features that, when laid out in the 
appropriate quantity and spatial arrangement to provide for a species' 
life-history processes, are essential to the conservation of the 
species.
    Under the Act, we can designate critical habitat in areas outside 
the geographical area occupied by the species at the time it is listed 
only upon a determination that such areas are essential for the 
conservation of the species. We designate critical habitat in areas 
outside the geographical area occupied by a species only when a 
designation limited to its range would be inadequate to ensure the 
conservation of the species. When the best available scientific data do 
not demonstrate that the conservation needs of the species require such 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species. An area 
currently occupied by the species but that was not occupied at the time 
of listing may, however, be essential to the conservation of the 
species and may be included in the critical habitat designation.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial 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 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 dynamic, and species may move from one area to another 
over time. Climate change will be a particular challenge for 
biodiversity because the interaction of additional stressors associated 
with climate change and current stressors may push species beyond their 
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic 
implications of climate change and habitat fragmentation are the most 
threatening facet of climate change for biodiversity (Hannah et al. 
2005, p. 4). Current climate change predictions for terrestrial areas 
in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 
1181). 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, as explained in our 
March 10, 2010, proposed rule (75 FR 11080), we are unable to determine 
what additional areas, if any, may be appropriate to include in the 
final

[[Page 11091]]

critical habitat for this species to address the effects of climate 
change.
    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 area is unimportant or may not be required for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of this species. 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), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to designate as 
critical habitat, we consider the physical and biological features 
essential to the conservation of the species and 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 historical, geographical, and ecological 
distributions of a species.
    We derived the specific physical and biological features required 
for Carex lutea from studies of this species' habitat, ecology, and 
life history as described in the proposed rule to designate critical 
habitat published in the Federal Register on March 10, 2010 (75 FR 
11080), the Background section of this final rule, and the information 
presented below. Additional information can also be found in the final 
listing rule published in the Federal Register on January 23, 2002 (67 
FR 3120).
    We have determined that Carex lutea requires the following physical 
and biological features.

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 physical and 
biological feature required 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. It should be noted that seeds produced from populations 
located in ditches may be transported to unsuitable habitat during 
precipitation events.
    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, 
(which is approximately 25 mi (40 km) south-southwest of the epicenter 
of Carex lutea) is 54.3 inches (138 cm) (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 (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, is 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

[[Page 11092]]

tolerance of Carex lutea to temperature extremes.
    In summary, 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 physical and biological feature required 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 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 they detach individually or a few at a time 
from the spikes, thereby depositing the fruits on the substrate 
adjacent to the maternal parent (LeBlond 1996, p. 19; LeBlond pers. 
comm. 2010). 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).
    In summary, 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 physical 
and biological feature required 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 toothache grass 
(Ctenium aromaticum), cutover muhly (Muhlenbergia expansa), 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.
    In summary, 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 essential 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.
Primary Constituent Element for Carex lutea
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of Carex lutea in areas occupied at the time of listing, 
focusing on the features' primary constituent elements. We consider 
primary constituent elements to be the elements of physical and 
biological features that, when laid out in the appropriate quantity and 
spatial arrangement to provide for a species' vital life-history 
functions, are essential to the conservation of the species. Areas 
designated as critical habitat for Carex lutea contain only occupied 
areas within the species' historical geographic range, and contain the 
primary constituent element which supports the species' life-history 
functions.
    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 single primary constituent element 
for Carex lutea is a 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 partial 
sunlight to penetrate to the herbaceous layer between savannas and 
hardwood forests; and
    (3) Areas of bare soil immediately adjacent (within 12 inches (30 
centimeters)) to mature Carex lutea plants where seeds may fall and 
germinate or existing plants may expand in size.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific and commercial data available to designate critical habitat. 
We reviewed available information pertaining to the habitat 
requirements of this species. In accordance with the Act and its 
implementing regulations at 50 CFR 424.12(e), we considered whether 
designating additional areas--outside those currently occupied as well 
as those occupied at the time of listing--are necessary to ensure the 
conservation of the species.
    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

[[Page 11093]]

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 were first 
observed 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) (Element Occurrence 
(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. 
Subunits 5D and 8C were expanded after field work in 2010 indicated 
that the populations were larger than previously believed. 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.
    We identified critical habitat based on areas that 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. Because so few populations are known to exist, they 
are all important to the long-term survival and recovery of the 
species. We are designating eight units (21 subunits) based on 
sufficient quantity and arrangement of the PCEs being present to 
support Carex lutea's life processes.
    When determining 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 the physical and 
biological features 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 rule have been excluded by text in the rule and are 
not designated. Therefore, if the critical habitat is finalized, 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 areas that were not 
occupied by the species at the time it was listed that are essential to 
the conservation of Carex lutea. All of the areas designated as 
critical habitat for Carex lutea are currently occupied by the species 
and contain the essential physical and biological features. All of the 
areas designated as critical habitat are also within the known 
historical range of the species. Therefore, we are not designating 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.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    The major threats to the features in the areas identified as 
critical habitat for 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. Through our 
review of the existing data on Carex lutea, we conclude that these 
threats, which were also listed in the final listing rule (67 FR 3120, 
January 23, 2002), 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 primary 
constituent element 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 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. Fire suppression also allows 
the invasion of nonindigenous plants and animals that are not fire-
adapted.
    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 designating as critical 
habitat contain the features essential to the conservation of Carex 
lutea, and that these features may require special management 
considerations or

[[Page 11094]]

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 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.

Final Critical Habitat Designation

    We are designating 8 units (21 subunits) totaling approximately 202 
ac (82 ha) as critical habitat for Carex lutea. They constitute our 
current best assessment of areas that meet the definition of critical 
habitat for Carex lutea. The eight areas designated as critical 
habitat, which are described below, 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 were occupied at the 
time of listing and are currently occupied.
    The name, ownership information, and approximate size of each 
designated critical habitat unit and subunit are shown in Table 2. As 
described above, we assessed all areas we are designating as critical 
habitat to ensure that they provide the requisite primary constituent 
element as defined in this final rule.

   Table 2--Designated Critical Habitat Units for Carex lutea--Area Estimates Reflect All Land Within Critical
                                             Habitat Unit Boundaries
----------------------------------------------------------------------------------------------------------------
                                                                                             Size of unit acres
                 Unit                         Subunit           Land ownership by type           (hectares)
----------------------------------------------------------------------------------------------------------------
1.....................................                  A   NCDPR.........................             1.2 (0.5)
1.....................................                  B   Private, NCDPR................             2.0 (0.8)
1.....................................                   C  NCDPR.........................             0.6 (0.2)
2.....................................                N/A   NCDOT.........................           27.1 (11.0)
3.....................................                N/A   Private.......................           27.7 (11.2)
4.....................................                  A   NCWRC with Progress Energy,                2.3 (0.9)
                                                             Right-of-way (ROW).
4.....................................                  B   NCWRC with Progress Energy,                1.0 (0.4)
                                                             ROW.
5.....................................                  A   NCDPR with Progress Energy,                2.6 (1.1)
                                                             ROW.
5.....................................                  B   NCDPR.........................             4.3 (1.7)
5.....................................                   C  NCDPR.........................             0.3 (0.1)
5.....................................                  D   NCDPR.........................             4.9 (2.0)
5.....................................                  E   NCDPR with Progress Energy,               13.1 (5.3)
                                                             ROW.
6.....................................                  A   NCDPR.........................             3.6 (1.5)
6.....................................                  B   Private.......................             0.7 (0.3)
6.....................................                   C  Private with Powerline ROW....            0.1 (0.04)
7.....................................                  A   Private (TNC).................             6.9 (2.8)
7.....................................                  B   Private (TNC).................           24.7 (10.0)
7.....................................                   C  Private (TNC).................           26.1 (10.6)
8.....................................                  A   Private (TNC).................           42.3 (17.1)
8.....................................                  B   Private.......................             0.5 (0.2)
8.....................................                   C  Private (TNC), Private........             9.8 (4.0)
                                       -------------------------------------------------------------------------
    Total *...........................  ..................  ..............................          201.8 (81.7)
----------------------------------------------------------------------------------------------------------------
* 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 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. 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. All three subunits contain the primary constituent element 
identified for Carex lutea; however, they are all very fire-suppressed 
and have been altered by timber management. The 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 the primary 
constituent element 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. 
The population at this site appears to be stable and not vulnerable to 
extirpation. Managers are

[[Page 11095]]

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. This site contains the primary constituent element 
identified for Carex lutea.

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 February 22, 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 the primary constituent element 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 (0.4 ha) in size and is located northeast