Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Taylor's Checkerspot Butterfly and Streaked Horned Lark, 61505-61589 [2013-23552]
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Vol. 78
Thursday,
No. 192
October 3, 2013
Part III
Department of the Interior
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Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Taylor’s Checkerspot Butterfly and Streaked Horned Lark; Final
Rule
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
by appointment, at the Washington Fish
and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT). Any additional
tools or supporting information that we
developed for this critical habitat
designation will also be available at the
Fish and Wildlife Service Web site and
field office set out above, and may also
be included at https://
www.regulations.gov.
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R1–ES2013–0009;
4500030114]
RIN 1081–AZ36
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for Taylor’s Checkerspot
Butterfly and Streaked Horned Lark
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service, designate critical
habitat for the Taylor’s checkerspot
butterfly (Euphydryas editha taylori)
and streaked horned lark (Eremophila
alpestris strigata) under the Endangered
Species Act of 1973, as amended (Act).
In total, approximately 1,941 acres (786
hectares) in Island, Clallam, and
Thurston Counties in Washington, and
in Benton County in Oregon, fall within
the boundaries of the critical habitat
designation for Taylor’s checkerspot
butterfly. Approximately 4,629 acres
(1,873 hectares) in Grays Harbor,
Pacific, and Wahkiakum Counties in
Washington, and in Clatsop, Columbia,
Marion, Polk, and Benton Counties in
Oregon, fall within the boundaries of
the critical habitat designation for
streaked horned lark. The effect of this
regulation is to designate critical habitat
for the Taylor’s checkerspot butterfly
and streaked horned lark under the Act
for the conservation of the species.
DATES: This rule is effective on
November 4, 2013.
ADDRESSES: This final rule is available
on the Internet at https://
www.regulations.gov and at the
Washington Fish and Wildlife Office.
Comments and materials we received, as
well as supporting documentation used
in preparing this final rule, are available
for public inspection, by appointment,
during normal business hours, at: U.S.
Fish and Wildlife Service, Washington
Fish and Wildlife Office, 510 Desmond
Drive SE., Suite 102, Lacey, WA 98503–
1263. The office can be reached by
telephone at 360–753–9440 or by
facsimile at 360–753–9008.
The coordinates or plot points or both
from which the maps are generated are
included in the administrative record
for this critical habitat designation and
are available at https://
www.regulations.gov at Docket No.
FWS–R1–ES–2013–0009 and at https://
www.fws.gov/wafwo/TCBSHL.html, or,
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SUMMARY:
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Ken
Berg, Manager, U.S. Fish and Wildlife
Service, Washington Fish and Wildlife
Office, 510 Desmond Drive, Suite 102,
Lacey, WA 98503–1263; by telephone
360–753–9440; or by facsimile 360–
753–9405. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Executive Summary
Why We Need to Publish a Rule.
Under the Endangered Species Act
(Act), any species that is determined to
be an endangered or threatened species
requires critical habitat to be designated,
to the maximum extent prudent and
determinable. Elsewhere in today’s
issue of the Federal Register, we list the
Taylor’s checkerspot butterfly as an
endangered species and the streaked
horned lark as a threatened species.
Designations and revisions of critical
habitat can only be completed by
issuing a rule.
Section 4(b)(2) of the Act states that
the Secretary shall designate critical
habitat on the basis of the best available
scientific data after taking into
consideration the economic impact,
national security impact, and any other
relevant impact of specifying any
particular area as critical habitat.
Additionally, the Act sets forth the
requirement to finalize rules within 1
year of proposal.
This rule designates critical habitat for
the Taylor’s checkerspot butterfly and
streaked horned lark. On October 11,
2012, we published in the Federal
Register (77 FR 61937) a proposed rule
to list the Taylor’s checkerspot butterfly
and streaked horned lark and to
designate critical habitat for these
subspecies. The critical habitat areas we
are designating in this final rule
constitute our current best assessment of
the areas that meet the definition of
critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark. We are designating as
critical habitat:
• Approximately 1,941 acres (ac) (786
hectares (ha)) in three units for the
Taylor’s checkerspot butterfly in Island,
Clallam, and Thurston Counties in
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Washington; and in Benton County in
Oregon.
• Approximately 4,629 ac (1,873 ha)
in two units for the streaked horned lark
in Grays Harbor, Pierce, Pacific, and
Wahkiakum Counties in Washington;
and in Clatsop, Columbia, Marion, Polk,
and Benton Counties in Oregon.
We have prepared an economic
analysis of the designation of critical
habitat. We have prepared an analysis
of the probable economic impacts of the
critical habitat designations and related
factors. We announced the availability
of the draft economic analysis (DEA) in
the Federal Register on April 3, 2012
(78 FR 20074), allowing the public to
provide comments on our analysis. We
have incorporated the comments and
have completed the final economic
analysis (FEA) concurrently with this
final determination.
Peer review and public comment. We
sought comments from independent
specialists to ensure that our
designation is based on scientifically
sound data and analyses. We obtained
opinions from two knowledgeable
individuals with scientific expertise to
review our technical assumptions and
analysis, and to determine whether or
not we had used the best available
information. These peer reviewers
concurred with our methods and
conclusions, and provided additional
information, clarifications, and
suggestions to improve this final rule.
Information we received from peer
review is incorporated in this final
designation. We also considered all
comments and information we received
from the public during the comment
period.
Previous Federal Actions
All previous Federal actions are
described in the listing determination
for the Taylor’s checkerspot butterfly
and streaked horned lark, which is
published elsewhere in today’s Federal
Register.
Background
For information related to the listing
of the species, see the final rule listing
Taylor’s checkerspot butterfly as an
endangered species and the streaked
horned lark as a threatened species,
which is published elsewhere in today’s
Federal Register.
Summary of Comments and
Recommendations
We requested written comments from
the public on the proposed designation
of critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark during two comment
periods. The first comment period,
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associated with the publication of the
proposed rule (77 FR 61937; October 11,
2012), opened on October 11, 2012, and
closed on December 10, 2012. We then
made available the draft economic
analysis (DEA) of the proposed critical
habitat designation and reopened the
comment period on the proposed rule
for an additional 30 days from April 3,
2013, to May 3, 2013 (78 FR 20074;
April 3, 2013). We also contacted
appropriate Federal, State, tribal,
county, and local agencies; scientific
organizations; and other interested
parties and invited them to comment on
the proposed rule and the draft
economic analysis. We held three public
information workshops and a public
hearing in April 2013, on the proposed
rule to list the subspecies and the
associated critical habitat designations.
During the two public comment
periods, we received close to 100
comment letters and emails from
individuals and organizations, as well
as speaker testimony at the public
hearing held on April 18, 2013. These
comments addressed the proposed
critical habitat or proposed listing (or
both) for Taylor’s checkerspot butterfly
and streaked horned lark. We received
comment letters from two peer
reviewers for Taylor’s checkerspot
butterfly and three peer reviewers for
streaked horned lark, and also received
comment letters from three State
agencies, one Native American tribe,
and seven Federal agencies, including
the Department of the Army and
Department of the Air Force. We
coordinated the proposed critical
habitat with the federally recognized
Shoalwater Bay Tribe on a governmentto-government basis in accordance with
the President’s memorandum of April
29, 1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951); Executive
Order 13175; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2).
We contacted the only tribe
potentially affected by the proposed
designation (the Shoalwater Bay Tribe)
and coordinated with them to discuss
their ongoing or future management
strategies for the Taylor’s checkerspot
butterfly and streaked horned lark.
All substantive information provided
during comment periods has either been
incorporated directly into this final
designation or is addressed below.
Comments we received are grouped into
general issues specifically relating to the
proposed critical habitat designation for
the Taylor’s checkerspot butterfly and
streaked horned lark, and are addressed
in the following summary and
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incorporated into the final rule as
appropriate.
Comments From Peer Reviewers
In accordance with our peer review
policy published on July 1, 1994 (59 FR
34270), we solicited expert opinion
from four knowledgeable individuals
with scientific expertise that included
familiarity with the Taylor’s
checkerspot butterfly and its habitats,
biological needs, and threats, and from
three knowledgeable individuals with
scientific expertise that included
familiarity with the streaked horned lark
and its habitats, biological needs, and
threats. We received responses from two
of the peer reviewers for the Taylor’s
checkerspot butterfly. Both peer
reviewers felt that the proposed rule
was a thorough description of the status
of Taylor’s checkerspot butterfly. Both
reviewers commented that they
considered the proposed rule well
researched and well written, and one
commenter found the rule
comprehensively represented the
current scientific knowledge for the
taxon. The two peer reviewers made no
substantive comments relevant to the
critical habitat designation for the
Taylor’s checkerspot butterfly.
We received responses from three of
the peer reviewers for the streaked
horned lark. Two of the peer reviewers
felt that the proposed rule was a
thorough description of the status of the
streaked horned lark, and that our
assessment of the primary constituent
elements of critical habitat was correct.
Two peer reviewers made several
substantive comments relevant to the
proposed critical habitat designation for
the streaked horned lark, which we
respond to below and also in the
Comments from the Public section in
cases where we received a similar
comment from the public. Our requests
for peer review are limited to a request
for review of the merits of the scientific
information in our documents; if peer
reviewers have volunteered their
personal opinions on matters not
directly relevant to the science of our
designation, we do not respond to those
comments here.
Streaked Horned Lark
(1) Comment: One peer reviewer
stated that the proposed designation of
critical habitat was lacking formal
agreements for lark conservation with
land owners and managers of sites
proposed for critical habitat, or at sites
the peer reviewer believes should have
been proposed as critical habitat.
Our Response: Our requests for peer
review are limited to a request for
review of the scientific information in
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our documents. In this case the peer
reviewer has offered his opinion on a
non-scientific issue; however,
management agreements are not a
requirement for critical habitat
designation. We will seek agreements
with land owners and managers on
lands designated as critical habitat and
on other lands that are important to
conservation of the streaked horned lark
as we initiate a recovery program for the
bird, but such agreements are not
relevant to the designation of critical
habitat unless we are considering
whether to exclude an area from the
designation pursuant to section 4(b)(2)
of the Act. We did consider the
additional sites the peer reviewer
suggested should have been proposed as
critical habitat; however, we concluded
that the areas suggested did not meet
our definition of critical habitat for the
streaked horned lark.
(2) Comment: One peer reviewer
commented on our lack of discussion of
wintering habitat requirements for the
streaked horned lark. The peer reviewer
suggested that if wintering habitats are
the same as habitats used for breeding,
we should state that explicitly. The peer
reviewer also commented on the fact
that all of the proposed critical habitat
sites were identified as either breeding
habitats or breeding and wintering
habitats, but there were no sites
identified as solely wintering sites.
Our Response: Our current knowledge
of habitat use by the streaked horned
lark indicates that there are no sites that
are used solely for wintering habitat.
There are sites in Washington that have
breeding populations in the spring and
summer, but that are then abandoned by
the streaked horned lark in the fall and
winter. Other breeding sites on the
Washington coast, in the Columbia
River, and in the Willamette Valley are
also used as wintering habitats. We have
amended the description of critical
habitat selection criteria to be clearer, as
requested by the peer reviewer.
(3) Comment: Two peer reviewers and
several commenters expressed concern
about relying on airports for streaked
horned lark recovery because although
airports harbor populations of larks, the
sites may act as ‘‘population sinks’’ due
to the constant habitat disturbance,
hazing, and threat of aircraft strikes.
Our Response: We share this concern.
Streaked horned larks occur on airports
because management to control
hazardous wildlife and to maintain safe
conditions for aviation has incidentally
created suitable habitat for the
subspecies; however, airports are not
ideal locations for focusing recovery
efforts for the streaked horned lark.
First, the birds are at risk of mortality
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from plane collisions, and have
frequently been documented in bird
strikes at airports (Cleary and Dolbeer
2005, p. 101). Secondly, Federal
Aviation Administration (FAA)
regulations require airports to take
immediate action to alleviate wildlife
hazards whenever they are detected (14
CFR 139.337). This requirement to
maintain airfields free of wildlife
hazards would severely limit the
potential to increase streaked horned
lark populations on airports. Streaked
horned larks at airports are therefore
subject to the combined threats of plane
strikes and constant management to
minimize bird populations; although
airports currently support some
relatively large populations of the
subspecies, airports are clearly not ideal
for conservation and recovery efforts
aimed at further increasing abundance
of the bird. Airports will continue to be
important for the consistent habitats
they provide for some populations of
the streaked horned lark, and we will
work with airports to maintain stable
populations of the subspecies. Our main
recovery efforts for the streaked horned
lark, however, will need to focus on
establishing new populations and
managing for the subspecies at locations
where population growth is an
acceptable management goal for the site.
(4) Comment: One peer reviewer
asked if industrial lands may be
population sinks (i.e., they provide
attractive locations for breeding but do
not contribute to population growth),
given their frequent disturbance without
regard to the effect on the streaked
horned lark, and further inquired if we
had considered the possible long-term
effects of the activities exempted in the
special rule. The peer reviewer
suggested that perhaps we should not
encourage maintenance of sink habitats.
Our Response: At this point, we do
not know whether industrial lands
function as sink habitats for breeding
streaked horned larks; we will focus on
gaining a better understanding of lark
population dynamics in these habitats
in the recovery program for the bird. We
agree that this will be an important
issue as we identify habitats that have
the potential for contributing to the
long-term conservation of the
subspecies. We acknowledged this
concern in response to another
comment as well (see our response to
Comment 3, above).
(5) Comment: One peer reviewer and
one commenter stated the designation of
Coffeepot Island as critical habitat for
the streaked horned lark is inconsistent
with the rationale for other habitats
proposed for designation (i.e., it is
currently an unoccupied site), and
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believed this provided it with special
recognition not warranted relative to
many other sites where the streaked
horned lark has occurred in the past or
could occur in the future, or even more
importantly, many other sites not being
proposed as critical habitat where the
streaked horned lark currently does
occur.
Our Response: We proposed critical
habitat on a portion of Coffeepot Island
based on indications that the U.S. Army
Corps of Engineers (Corps) might add
this area to their list of authorized
dredge deposit sites (thus potentially
creating suitable habitat for the streaked
horned lark) and its proximity to other
occupied deposit sites on the Columbia
River. As such, we believed that even
though it may be currently unoccupied,
it could play an essential role in the
conservation of the subspecies in the
future. However, to date we have no
indications that the Corps is actively
pursuing inclusion of this island into
their dredging and navigation channel
maintenance program. Therefore, the
site is unlikely to support streaked
horned larks anytime within the
foreseeable future. Based upon this
information and input from peer
reviewers, we have determined this
unoccupied area is not essential to the
conservation of the subspecies, and thus
does not meet the definition of critical
habitat. Coffeepot Island is not included
in the final designation of critical
habitat for the streaked horned lark.
(6) Comment: One peer reviewer and
several commenters recommended that
we designate critical habitat on sites
that are not known to be currently
occupied by streaked horned lark, but
could be managed to provide suitable
habitat. These sites include privately
owned agricultural lands in the
Willamette Valley, industrial and
restoration sites in the Portland area,
and islands and mainland sites along
the lower Columbia River.
Our Response: Recovery of the
streaked horned lark will likely require
the restoration or creation of new
habitat on some currently unoccupied
sites. As described in the proposed rule,
streaked horned larks require habitat
with both a specific landscape context
(flat and wide-open) and structure (lowstature vegetation with abundant bare
ground). Given the appropriate
landscape context, the structure is easy
to create, which has fostered the hope
of establishing new habitats for streaked
horned larks at sites with conservation
management as their main objective.
There have recently been some attempts
to create habitat for and to attract
streaked horned larks to suitable but
unoccupied habitats. An experimental
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approach, initially implemented by
Metro (the Portland, Oregon, area
regional government body) and later
joined by the Center for Natural Lands
Management (CNLM), a
nongovernmental organization, has
attempted to create habitat and attract
streaked horned larks to the St. Johns
Landfill in North Portland, Oregon, and
to two sites at Joint Base LewisMcChord (JBLM) in Washington; the
effort at St. Johns Landfill began in
2009, and at JBLM in 2012. These efforts
have combined habitat creation and the
use of conspecific attraction techniques
(streaked horned lark decoys and audio
playback of recorded calls). The concept
holds great promise, but so far has not
been successful in establishing a new
population of streaked horned larks at
any of the three experimental sites. As
we embark on recovery efforts for the
streaked horned lark, we intend to
continue to refine this approach and to
work to create new habitats in areas
with the proper landscape context, but
it is clear that we do not yet know
which sites will succeed in attracting
and supporting new populations of
streaked horned larks. Designating
critical habitat at this time on sites that
do not yet support use by streaked
horned larks would be premature, since
we cannot be sure that streaked horned
larks will colonize sites that have been
recommended as potential critical
habitat, and the designation of
unoccupied areas requires a
determination that such areas are
essential to the conservation of the
subspecies. We may revisit the issue of
critical habitat designation when we
have better information about how to
attract streaked horned larks to
currently unoccupied sites. In addition,
we will look to the guidance provided
by the recovery plan that will be
developed for the streaked horned lark
to make future determinations regarding
those unoccupied areas, if any, that may
be essential for the conservation of the
subspecies.
Comments From States
Section 4(i) of the Act states, ‘‘the
Secretary shall submit to the State
agency a written justification for his
failure to adopt regulations consistent
with the agency’s comments or
petition.’’ Comments we received from
State agencies regarding the proposal to
designate critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark are addressed below. We
received comments from the
Washington Department of Fish and
Wildlife (WDFW) and Washington
Department of Natural Resources
(WDNR) related to biological
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information, threats, critical habitat
exclusions, the inadequacy of regulatory
mechanisms, and recommendations for
the management of habitat. We did not
receive any comments regarding critical
habitat for the Taylor’s checkerspot
butterfly or streaked horned lark from
agencies in the State of Oregon.
Both agencies (WDFW and WDNR)
provided a number of recommended
technical corrections or edits to the
proposed critical habitat designation for
the Taylor’s checkerspot butterfly and
streaked horned lark. We have evaluated
and incorporated this information into
this final rule where appropriate to
clarify the final critical habitat
designation. In instances where the
Service may have disagreed with an
interpretation of the technical
information that was provided, we have
responded in separate communication
with the agency.
(7) Comment: WDFW noted that the
critical habitat designation for Taylor’s
checkerspot butterfly in the Bald Hill
area did not appear to include some
historical Taylor’s checkerspot butterfly
locations with suitable habitat. WDFW
believes both Fossil Rock and Bald Hill
1176 Spur A Bald should have been
included in proposed critical habitat.
Our Response: We considered the
WDFW’s suggestion, but concluded the
contiguous area proposed for
designation as critical habitat in this
area for Taylor’s checkerspot butterfly
would provide better management
opportunities for the subspecies than
would designating multiple, isolated
patches. The focus of conservation work
in the Bald Hill area has been in the
vicinity of the State’s Natural Area
Preserve, and not on disjunct patches
that are likely inaccessible to Taylor’s
checkerspot butterflies unless they were
introduced (translocated) specifically
into these isolated habitat patches.
(8) Comment: WDFW encouraged the
Service to not only ensure that the
conservation measures provided for in
the integrated natural resources
management plan (INRMP) for JBLM are
sufficient to preclude the need to
designate critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark, but also that
implementation of the plan can be
assured. WDFW also requested we
consider excluding WDFW properties
addressed by their draft wildlife area
habitat conservation plan (HCP).
Our Response: Section 4(a)(3)(B)(i) of
the Act specifically states that the
Secretary shall not designate critical
habitat on Department of Defense lands
if the area is subject to an INRMP that
provides a benefit to the species for
which critical habitat is proposed. As
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discussed under the section Exemptions
in this final rule, the Secretary has
determined, in writing as required by
the Act, that JBLM’s INRMP provides
such a benefit for Taylor’s checkerspot
butterfly and streaked horned lark under
the endangered species management
plans (ESMPs) developed specifically
for these subspecies under their INRMP;
therefore JBLM lands are not included
in this final designation of critical
habitat. Our experience with JBLM is
that, when they commit to conservation
actions, they have the funding required
to ensure that implementation of the
action will occur.
When deciding whether to exclude an
area from designation of critical habitat
under section 4(b)(2) of the Act, the
Service needs to assess not only the
conservation measures outlined within
management plans regardless of agency
or organization, but also the level of
assurance an agency can provide of
actually funding and implementing the
conservation measures identified within
the plan. The same process would hold
true when evaluating the WDFW
wildlife area HCP. As described in the
Exclusions section of this document, we
have excluded the Wildlife Areas
owned and managed by WDFW because
of the management plans in place for
these State Wildlife Areas (Scatter Creek
and West Rocky Prairie Wildlife Areas)
The exclusion of these Wildlife Areas
was not based on WDFW’s draft HCP
because we have not received a
complete draft HCP document to
review, and furthermore, the HCP in
question is not finalized. We would not
be able to exclude the areas in question
based on assurances for funding and
implementation that may be provided
through a future HCP process.
(9) Comment: WDFW was concerned
that, with the new helicopter brigade
stationed at JBLM, the airstrip on TA 14
on 13th Division Prairie is now used
almost daily during streaked horned
lark breeding season, with many lowelevation flights and ‘‘touch-and-go’’
exercises occurring in the highest
density occupied habitat. This is also a
concern for adult Taylor’s checkerspot
butterflies at this site. They were also
concerned with impacts associated with
off-road training conducted in the 13th
Division Prairie.
Our Response: Activities conducted
on JBLM, including air operations at
13th Division Prairie, the military
airfields, and other areas, will be
addressed in section 7 consultations
after the subspecies are listed. The
Service is currently coordinating with
the Environmental and Natural
Resource Division and staff from Range
Control on training activities that
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impact the Taylor’s checkerspot
butterfly and streaked horned lark, and
we are in negotiations on ways to
further reduce impacts to these two
subspecies specifically at this location.
JBLM is aware that they will need to
implement timing restrictions and avoid
conducting training activities in certain
locations or during the most sensitive
time of year to minimize or avoid take
of the subspecies after they are listed.
This will include the areas adjacent to
the Pacemaker runway and other
portions of the 13th Division Prairie
where the Taylor’s checkerspot butterfly
and streaked horned lark occur.
(10) Comment: WDNR was concerned
that the safe use of pesticides to control
nonnative, invasive insects, such as
gypsy moth, may be impacted by the
listing and designation of critical habitat
for Taylor’s checkerspot butterfly.
Our Response: We do not see
pesticide use in general to pose an
adverse impact to Taylor’s checkerspot
butterflies unless individuals are
directly exposed to the pesticides. The
Service does not anticipate the need for
pesticide spraying on habitat occupied
by Taylor’s checkerspot butterflies, as
the subspecies does not occupy forested
areas where such pesticides are
generally applied. However, if pesticide
were to be sprayed in areas where
pesticide drift would expose Taylor’s
checkerspot butterflies to the
pesticide(s), then we would be
concerned with their application in
these situations. The Service
acknowledges the use of pesticides as
harmful to Taylor’s checkerspot
butterfly at all life stages. We
specifically discourage the use of
insecticides such as Bacillus
thuringiensis var. kurstaki (BtK) in
forested areas adjacent to Taylor’s
checkerspot butterfly habitat. This
insecticide, which is used for harmful
defoliators like gypsy moth and spruce
budworm, has been implicated in the
loss of three populations of Taylor’s
checkerspot butterfly in Pierce County,
Washington, during the early 1990s,
when it was applied adjacent to Taylor’s
checkerspot butterfly habitat.
Comments From Federal Agencies
Department of Energy, Bonneville
Power Administration
(11) Comment: The Service should
remove those portions of the Bonneville
Power Administration’s (BPA) rights-ofway that are composed of access roads
and transmission towers and their
related infrastructure from the critical
habitat proposal, as the roads and
structures do not exhibit the biological
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features required for recovery of
Taylor’s checkerspot butterfly.
Our Response: We agree that some
portions of the BPA rights-of-way in
areas formerly occupied by Taylor’s
checkerspot butterfly do not contain
biological features that are important for
the subspecies; therefore we have made
minor changes to the critical habitat
boundaries to remove those areas that
do not meet our definition of critical
habitat. Furthermore, as explicitly
described in this rule, critical habitat
does not include manmade structures
(such as buildings, aqueducts, runways,
roads, and other paved areas) and the
land on which they are located existing
within the legal boundaries on the
effective date of this rule (see DATES).
Therefore, access roads and
transmission towers and their related
infrastructure are not considered critical
habitat. Powerline rights-of-way are
excellent areas to manage and support
butterflies as the structure and
composition of vegetation for the
Taylor’s checkerspot butterfly is
compatible with right-of-way
management.
(12) Comment: BPA believes the
geographic footprints of access roads
and transmission structures do not
contain the biological features essential
for the conservation of Taylor’s
checkerspot butterfly, since they differ
in character from the open meadow
space more generally located within the
rights-of-way that provide high-quality
habitat for the butterfly. Therefore, they
should not be designated as critical
habitat.
Our Response: The critical habitat
unit referred to by BPA (Unit 4–D) is
currently occupied by Taylor’s
checkerspot butterfly and provides
several of the physical or biological
features essential to the conservation of
the species. Open areas that provide
flight corridors between patches of
suitable habitat are important for
Taylor’s checkerspot butterflies. In
addition to the relative quality of
habitat, there needs to be an avenue for
movement, including movement
between areas that may not provide
high-quality habitat features. Access
roads and other areas cleared of woody
vegetation can provide important flight
corridors used by Taylor’s checkerspot
butterflies, although roads and other
structures are not consistent with
critical habitat and are specifically not
included in critical habitat by text, as
described in our response to Comment
11, above.
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Department of Transportation, Federal
Aviation Administration
(13) Comment: The Federal Aviation
Administration (FAA) does not believe
habitat on airports should be considered
critical for the recovery of either the
Taylor’s checkerspot butterfly or
streaked horned lark given that airport
property encompasses only 2,948 ac
(1,193 ha) out of 21,393 ac (8,657 ha)
proposed for critical habitat designation,
or approximately 14 percent of the total
proposed acreage.
Our Response: The Act defines
critical habitat as those specific areas
within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features essential to the
conservation of the species, and which
may require special management
considerations or protection. The test
for whether an area is essential to the
conservation of the species is applied to
areas that are not occupied by the
species at the time of listing. All airport
lands proposed for critical habitat
designation for the streaked horned lark
are currently occupied by the
subspecies and provide the essential
physical or biological features, which
may require special management
considerations or protection. Therefore,
all airport lands proposed meet the
Act’s definition of critical habitat for the
streaked horned lark. However, our
analysis under section 4(b)(2) of the Act
indicates that the benefits of including
airport lands in critical habitat are
outweighed by the benefits of excluding
these areas. Therefore, all airport lands
are excluded from this final designation
of critical habitat for the streaked
horned lark. Please see additional
discussion under Exclusions.
We did not propose any critical
habitat on airport lands for the Taylor’s
checkerspot butterfly.
Department of the Air Force
(14) Comment: The Department of the
Air Force believes the designation of
streaked horned lark critical habitat on
military airfields is counter to Air Force
instructions and could increase the risk
to aircrews, aircraft, and the streaked
horned lark; therefore, they requested
that military airfields be excluded from
critical habitat designation for the lark.
Our Response: The military airfields
proposed for critical habitat designation
for the streaked horned lark are
currently occupied by the species.
Ongoing airfield maintenance activities
that are conducted at both the military
and non-federal airports have created
suitable habitat for the streaked horned
lark that provides the essential physical
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or biological features for the subspecies.
It is our understanding that these
maintenance activities would take place
regardless of the presence of the
streaked horned lark. We are aware that
FAA regulations required for public
safety are in direct conflict with
increasing bird populations on airports,
and as discussed in our 4(b)(2)
exclusion analysis for civilian airports,
we do not intend to focus on airfields
as part of the recovery efforts for the
streaked horned lark (see Exclusions).
Section 4(a)(3)(B)(i) of the Act
specifically states that the Secretary
shall not designate critical habitat on
Department of Defense lands if the area
is subject to an INRMP that provides a
benefit to the species for which critical
habitat is proposed for designation. As
discussed in the Exemptions section
below, the Secretary has determined
that the endangered species
management plan for the streaked
horned lark developed under JBLM’s
INRMP provides adequate protection for
the subspecies on the military airfields.
Therefore, the military airfields are not
included in the final critical habitat
designation.
(15) Comment: The Department of the
Air Force and several other commenters
were concerned that critical habitat
designations at airports would restrict
essential activities, including military
training and hazardous wildlife control.
Our Response: As described above in
our responses to Comments 13 and 14,
we have excluded airports from the final
critical habitat designation for the
streaked horned lark under section
4(b)(2) of the Act and exempted all DOD
lands at Joint Base Lewis-McChord
(JBLM) under section 4(a)(3) of the Act,
so the potential effects of critical habitat
designation are moot. However, any
activity by a Federal agency that may
affect the streaked horned lark or any
other listed species at an airport would
be subject to consultation under section
7 of the Act. Under section 7(a)(2) of the
Act, it is the duty of all Federal agencies
to ensure that any actions they fund,
authorize, or carry out are not likely to
jeopardize the continued existence of a
listed species. Review under section 7
may result in some changes to an
agency’s proposed action, consistent
with their mandates, to advance the
conservation of listed species.
Department of the Army, Joint Base
Lewis-McChord
(16) Comment: The Department of the
Army believes the northern portion of
the Range 72–79 unit for Taylor’s
checkerspot butterfly on JBLM should
be excluded due to the fact that this area
is of lower quality than the remainder
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of the proposed unit and is used
extensively for off-road vehicle
maneuvers.
Our Response: As described in the
Exemptions section of this document,
all JBLM lands have been removed from
the final designation of critical habitat
for both species under section 4(a)(3) of
the Act.
(17) Comment: The Range 50 subunit
extends beyond the current and
previous areas occupied by Taylor’s
checkerspot butterfly.
Our Response: Range 50 is a site
where introduced (translocated)
Taylor’s checkerspot butterflies have
been placed since 2009. The
translocation has taken hold, the
population is increasing, and individual
butterflies are dispersing to new food
plants east and west of Range 50;
therefore we consider this area to be
currently occupied by the subspecies.
Where the butterfly becomes
established, it will be critical to provide
areas of suitable habitat for dispersing
individuals, and to allow for the
establishment of meta-population
structure that takes place on areas
sufficiently large to allow for some local
populations to ‘‘blink on’’ and ‘‘blink
off’’ over time. This shift is typical and
follows changes to habitat as the
vegetation suitability (structure and
composition) shifts between periods of
restoration, or in the case of JBLM,
inadvertent fires that periodically
disturb the habitat, returning it to the
early seral condition that provides
suitable habitat for the Taylor’s
checkerspot butterfly.
(18) Comment: The Department of the
Army requests that the Service exempt
those portions of the proposed critical
habitat designations for the Taylor’s
checkerspot butterfly and streaked
horned lark on JBLM.
Our Response: Under section 4(a)(3)
of the Act, we are required to not
designate any lands or other
geographical areas owned or controlled
by the Department of Defense, or
designated for its use, that are subject to
a current INRMP, if the Secretary
determines that such plan provides a
benefit to the species for which critical
habitat is proposed for designation. We
have reviewed and approved the JBLM’s
endangered species management plans
(ESMP) under their INRMP for the
Taylor’s checkerspot butterfly and
streaked horned lark, and accordingly
have exempted JBLM lands from our
final critical habitat designations. Please
see Exemptions for more information.
Natural Resources Conservation Service
(19) Comment: The Natural Resources
Conservation Service (NRCS) believes
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that continuation of the current level of
grazing management by the Colvin
Ranch has resulted in healthy native
prairie populations and will continue to
provide benefits to the native prairie
populations, which exceed benefits
provided by a critical habitat
designation. Therefore, NRCS supports
the request by the Colvin Ranch to
exclude their property from critical
habitat under section 4(b)(2) of the Act.
Our Response: We considered the
potential exclusion of Colvin Ranch
from the final designation of critical
habitat. Our evaluation under section
4(b)(2) of the Act led us to the
conclusion that this private land should
be excluded from the final designation
of critical habitat, as the benefits of
exclusion outweigh the benefits of
inclusion in critical habitat. Please see
Exclusions for more information.
(20) Comment: NRCS and another
commenter recommended that we
withdraw the proposed designation of
critical habitat for the streaked horned
lark at M–DAC Farms in Oregon because
the site no longer provides the primary
constituent elements (PCEs) identified
for critical habitat. M–DAC Farms is a
privately owned property with a
Wetlands Reserve Program easement,
which is held by NRCS. NRCS
expressed concern that M–DAC’s
designation as critical habitat could
affect the agency’s ability to accomplish
the wetland restoration goals for which
the conservation easement was
originally purchased on the site.
Our Response: Prior to NRCS’s
purchase of a conservation easement at
M–DAC, the site was a perennial rye
grass farm. The goals for the site include
restoration of 100 (40 ha) acres of
seasonal wetland, over 100 (40 ha) acres
of bottomland hardwood forest, and
over 300 acres (120 ha) of wet prairie
habitat. Though streaked horned larks
used the site in large numbers when the
ground was originally cleared to prepare
for habitat restoration, we agree with the
commenter that the vegetation at the site
has since matured and no longer
provides suitable habitat for the
streaked horned lark, with the exception
of limited areas along a road and
perhaps in the seasonal mudflats
adjacent to the wetlands. The site may
continue to provide habitat for a few
breeding pairs of streaked horned larks;
however, the long-term goals for the site
do not include increasing the area of
suitable habitat for streaked horned
larks. The site will not be a focus of
active recovery for the streaked horned
lark, and very little of the 601 acres (240
ha) will provide suitable habitat for the
subspecies.
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We have removed M–DAC Farms
from the final designation of critical
habitat based on information we
received during the public comment
period indicating that it does not meet
the definition of critical habitat for the
streaked horned lark. The site does not
provide the requisite physical or
biological features, and therefore does
not meet our criteria for designation.
U.S. Forest Service, Olympic National
Forest
(21) Comment: The U.S. Forest
Service believes that areas within
Olympic National Forest proposed for
critical habitat designation should be
excluded under section 4(b)(2) of the
Act due to ongoing management for
Taylor’s checkerspot butterfly habitat.
Our Response: We have worked
closely with the U.S. Forest Service, and
Taylor’s checkerspot butterfly has
benefitted immensely from the
conservation actions that have been
implemented on the Olympic National
Forest. We inadvertently indicated that
we may exclude Olympic National
Forest lands from the final designation
of critical habitat. However, such an
exclusion would run counter to the
Congressional intent of the Act (stated
in sections 2(c)(1) and 7(a)(1)) that
Federal agencies have obligations to
conserve endangered and threatened
species and to carry out programs for
the conservation of endangered and
threatened species. In consideration of
the explicit congressional direction that
Federal agencies exercise their
authorities to conserve listed species,
we expect Federal agencies to contribute
to conservation through the designation
of critical habitat. Therefore, we have
not excluded any Federal lands from
critical habitat. Please see the section
Federal Lands for more information.
Comments From Native American
Tribes
(22) Comment: The Shoalwater Bay
Tribe requested that habitat on their
reservation be excluded from the final
critical habitat designation for the
streaked horned lark. The Tribe is
currently working with the Service and
the Corps to develop an ecological
restoration plan for the Tribal tidelands.
This restoration plan will focus on
maintaining and protecting habitat for
listed species (including the streaked
horned lark and western snowy plover
(Charadrius nivosus nivosus)) and
coastal resources important to the Tribe.
Our Response: Based on our ongoing
partnership with the Tribe and
assurance that habitat will be protected
at this site, we have excluded the
Shoalwater Bay Indian Reservation from
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the final critical habitat designation
based on our discretionary 4(b)(2)
exclusion analysis. Based on our
evaluation, we found that the benefits of
exclusion outweigh those of inclusion.
See the Exclusions section of this
document for details.
Comments From the Public
Several commenters provided minor
technical corrections or edits to the
proposed critical habitat designation for
Taylor’s checkerspot butterfly and
streaked horned lark. We have evaluated
and incorporated this information into
this final rule where appropriate to
clarify the final critical habitat
designation. In instances where the
Service may have disagreed with an
interpretation of the technical
information that was provided, we have
responded under separate comments.
(23) Comment: One property owner in
Subunit 1–D disputed the Service’s
authority to designate critical habitat on
their lands for Taylor’s checkerspot
butterfly, arguing that the PCEs must be
found on an area as a prerequisite to
designation, and that the Act leaves no
room for designation of land that may in
the future contain the physical or
biological features. The owner
acknowledges that the property is
currently unoccupied by the subspecies,
but disagrees with the Service’s
conclusion that the available evidence
indicates it was likely historically
occupied by Taylor’s checkerspot
butterfly. The owner further claims that
their property does not contain any of
the specific physical or biological
features that the Service has identified
for Taylor’s checkerspot butterfly at any
stage of its development.
Our Response: The Act provides two
definitions for critical habitat: one
applies to areas occupied by the species
at the time of listing, the other applies
to areas not occupied by the species at
the time of listing. In the first case, the
Act specifies that critical habitat means,
‘‘the specific areas within the
geographical area occupied by the
species, at the time it is listed in
accordance with the provisions of
section 4 of this Act, on which are
found those physical or biological
features (I) essential to the conservation
of the species and (II) which may
require special management
considerations or protection.’’ This
requirement that the physical or
biological features be found does not
apply in this particular situation,
because the property in question is not
presently occupied by Taylor’s
checkerspot butterfly. The lands in
question were initially identified in the
proposed rule as meeting our criteria for
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critical habitat under the second part of
the definition of critical habitat in the
Act, which adds that critical habitat
includes, ‘‘specific areas outside the
geographical area occupied by the
species at the time it is listed in
accordance with the provisions of
section 4 of this Act, upon a
determination by the Secretary [of the
Interior] that such areas are essential for
the conservation of the species.’’ We
therefore re-evaluated the unoccupied
private property in question. We
evaluated its context in relation to other
occupied areas supporting the Taylor’s
checkerspot butterfly, and other
protected areas where habitat has been
improved sufficiently to support
translocated Taylor’s checkerspot
butterflies. Based upon our analysis, we
have determined the unoccupied
property in question is not essential to
the conservation of Taylor’s checkerspot
butterfly; therefore it is not included in
the final designation.
(24) Comment: One landowner stated
that the designation of their property as
critical habitat for Taylor’s checkerspot
butterfly is improper because the record
does not contain evidence that shows
specifically where the PCEs are located.
To the contrary, they believe there is
evidence that the property contains
physical features that the proposed rule
identifies as rendering habitat unusable
for the butterfly. The commenter states
that any designation of critical habitat
by the Service must be limited to those
areas that actually contain the physical
or biological features essential to the
conservation of the Taylor’s checkerspot
butterfly.
Our Response: The property in
question was proposed as unoccupied
but essential critical habitat for the
Taylor’s checkerspot butterfly. As noted
in various responses above, the
standards for designation of critical
habitat differ depending on whether the
area in question is occupied at the time
of listing or not. If the area is occupied
at the time of listing, the PCEs for the
species must be found on that area
(however, the Service is not required to
detail all the specific locations where
each PCE may exist on an area proposed
for designation). If the area is not
occupied at the time of listing, it may be
designated as critical habitat upon a
determination by the Secretary that such
area is essential for the conservation of
the species. The reference to the
presence of the essential physical or
biological features does not appear in
the definition of unoccupied areas, thus
the commenter is incorrect in stating
that the designation of critical habitat
must be limited to those areas that
contain such features in cases such as
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this where the area in question is not
occupied by the species at the time of
listing. In this case, we had proposed
the lands in question as critical habitat
believing they were essential to the
conservation of the subspecies, based on
similar habitats known to support
Taylor’s checkerspot butterfly found at
other locations and from evidence of
these habitat conditions being present
on similar adjacent properties; the
Service is particularly limited in
specifying locations of the necessary
habitat features on private property,
where access is often not freely granted.
Upon further examination, however,
and in response to the information
provided by the commenter, we
determined that this property (located
in subunit 1–D in the proposed rule,
subunit 1–A Rocky Prairie in this
document) is not essential to the
conservation of the subspecies, and it is
not included in the final designation.
(25) Comment: One commenter
suggested we remove the gravel pit in
TA 7S, subunit 1–A, currently in use on
JBLM, from the critical habitat
delineated for Taylor’s checkerspot
butterfly. They state the gravel pit does
not currently provide suitable habitat
and would take enormous effort to
restore to quality habitat, while the
remaining extent of TA 7S prairie is
relatively intact and could more easily
be restored to create suitable habitat.
Our Response: It is our understanding
that, in the past, Taylor’s checkerspot
butterfly was observed utilizing the
puddles in the gravel pit. We
understand the gravel pit is marginal
habitat at best, but as a formerly
occupied site containing some of the
PCEs for the subspecies (Plantago and
topographic diversity) and its location
adjacent to TA 7S, we considered that
the area could potentially be restored to
support Taylor’s checkerspot butterfly
(although critical habitat does not
specifically require restoration).
However, since the area in question is
on JBLM, it has been exempted from the
final designation. Under section 4(a)(3)
of the Act, we are required to not
designate any lands or other
geographical areas owned or controlled
by the Department of Defense, or
designated for its use, that are subject to
a current INRMP, if the Secretary
determines that such plan provides a
benefit to the species for which critical
habitat is proposed for designation. We
have reviewed and approved the JBLM
ESMP for Taylor’s checkerspot butterfly
under the INRMP and accordingly have
exempted any proposed critical habitat
areas on JBLM from our final critical
habitat designations under section
4(3)(a) of the Act. Please see the
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Exemptions section of this document for
more information.
(26) Comment: One commenter asked
the Service to consider excluding
subunit 1–J Bald Hills, since they
believe the Taylor’s checkerspot
butterfly is likely extirpated at the site
and the landowner has committed to
implementing a wildlife management
plan at that site.
Our Response: We do not disagree
that the Taylor’s checkerspot butterfly
may have been extirpated from this site.
Subunit 1–J Bald Hill was identified in
the proposed rule as meeting our criteria
for critical habitat under the second part
of the definition of critical habitat in the
Act, which states that critical habitat
includes, ‘‘specific areas outside the
geographical area occupied by the
species at the time it is listed in
accordance with the provisions of
section 4 of this Act, upon a
determination by the Secretary [of the
Interior] that such areas are essential for
the conservation of the species.’’ We
were unable to consider these lands for
exclusion under section 4(b)(2) of the
Act because the Service had not
received a management plan for this
property; therefore, we were unable to
assess the value of the conservation
planning efforts being proposed or
implemented on this private property.
Without a management plan for
evaluation, we have no potential basis
for exclusion; therefore this property is
included in the final designation of
critical habitat.
(27) Comment: One commenter
recommended the Army Aviation
Support Facility #1 (AASF1) in Salem
be excluded from critical habitat
because of the national security
importance of the installation.
Our Response: The AASF1, while it
contributes to maintaining troop
readiness for the National Guard, is not
a Federal entity. This facility is a
private/State holding with a military
lease. The Secretary weighed the
benefits of including versus excluding
non-Federal airports from critical
habitat for the streaked horned lark, and
concluded that the benefits of exclusion
outweighed the benefits of inclusion;
thus all non-Federal airport lands are
excluded from the final designation of
critical habitat (see the Exclusions
section of this document). AASF1, being
a non-Federal entity, is already
excluded from critical habitat based on
this analysis; therefore we did not
consider the potential national security
implications of the designation.
(28) Comment: Several commenters
suggested that the designation of critical
habitat may act as a regulatory
disincentive, and may discourage
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private landowners and others from
cooperative, voluntary conservation
efforts. Some commenters suggested that
the Service pursue alternative forms of
conservation, such as safe harbor
agreements or habitat conservation
plans. WDNR and WDFW encouraged
the Service to fully consider the
advantages and disadvantages of
designating critical habitat where
cooperative, nonregulatory approaches
are in place to conserve the species and
its habitat.
Our Response: Section 4(a)(3)(A) of
the Act requires us to designate critical
habitat to the maximum extent prudent
and determinable. The Act permits us to
exclude areas that meet the definition of
critical habitat only where we determine
that the benefits of exclusion outweigh
the benefits of designation. The
regulatory consequence of critical
habitat designation is the requirement
that Federal agencies consult on actions
that they may fund, authorize, or carry
out to ensure that such actions do not
result in the destruction or adverse
modification of critical habitat. We
recognize that in many cases there may
not be a Federal nexus that invokes the
protections afforded to designated
critical habitat on non-Federal lands,
and that other instruments such as safe
harbor agreements or habitat
conservation plans have the potential to
provide conservation measures that
effect positive results for the species and
its habitat. The conservation and
recovery of endangered and threatened
species, and the ecosystems upon which
they depend, is the ultimate objective of
the Act, and the Service recognizes the
vital importance of voluntary,
nonregulatory conservation measures in
achieving that objective. To that end, we
fully support and encourage the
development of voluntary conservation
agreements such as safe harbor
agreements or habitat conservation
plans with non-Federal landowners.
Furthermore, where cooperative
agreements are in place for the
conservation of the species and its
habitat, the Secretary gives full
consideration to the relative benefits of
excluding those lands from the final
critical habitat designation, provided
such exclusion would not result in the
extinction of the species, in accordance
with section 4(b)(2) of the Act.
(29) Comment: One commenter
suggested that the Service pursue
conservation programs to provide
economic incentives to private
landowners to create or maintain
suitable habitat for the streaked horned
lark on agricultural lands, especially
grass seed farms.
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Our Response: We appreciate the
suggestion, and we will consider this
and other creative ideas for achieving
the conservation of the subspecies as we
develop the recovery plan for the
streaked horned lark. Such conservation
measures are outside of the scope of the
present rulemaking, however, which is
restricted to the identification of those
areas that meet the definition of critical
habitat for the streaked horned lark.
(30) Comment: One commenter stated
the proposal fails to address private
lands, which are likely to be key habitat
for the persistence of the streaked
horned lark. Positive incentives need to
be proposed that will lead to recovery
of the streaked horned lark.
Our Response: In our proposed rule,
we recognize the importance that
private agricultural lands will play in
the conservation and recovery of
streaked horned lark, particularly in the
Willamette Valley of Oregon (April 3,
2013; 78 FR 20074). However, we
additionally explain that we cannot
designate critical habitat in the
agricultural fields in the Willamette
Valley, most of which are privately
owned, because we are unable to
determine which areas within the large
agricultural matrix in the valley will
meet the definition of critical habitat at
any time. Critical habitat, once
designated, is static on the landscape
until such time as it may be revised
through an additional rulemaking
process. Agricultural habitats on private
lands can provide appropriate habitat
conditions for streaked horned lark, but
these conditions (large, open landscape
context; low-stature vegetation; bare
ground) occur unpredictably and vary in
location from year to year. Because of
the unpredictable and ephemeral nature
of streaked horned lark habitat on
private agricultural lands, we have no
basis for concluding that any specific
areas are essential for conservation,
because we have no way of knowing
where or how long the appropriate
conditions will persist. Therefore, we
have not designated critical habitat for
the streaked horned lark on private
lands in the Willamette Valley.
As noted earlier, the consideration of
recovery instruments such as incentive
programs is outside of the scope of the
present rulemaking, which is limited to
the identification of those areas that
meet the definition of critical habitat for
the streaked horned lark.
(31) Comment: One commenter stated
that the Service failed to designate
critical habitat on private agricultural
lands in the Willamette Valley, despite
the fact that a majority of breeding and
wintering streaked horned larks rely on
those areas. The commenter disagreed
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with the Service’s position that it was
unable to determine which areas within
the large agricultural matrix in the
valley will meet the definition of critical
habitat at any time. The commenter
pointed to the Service’s designation of
large areas of critical habitat for the
northern spotted owl and marbled
murrelet across millions of acres of
forest even though only a portion of the
habitat is suitable for either bird at any
time. The commenter recommended
that the Service take a similar approach
for streaked horned larks on agricultural
lands in the Willamette Valley,
recognizing that only a portion of those
lands will be suitable at any given time.
Our Response: The commenter’s
comparison to the critical habitat
designations for the northern spotted
owl (Strix occidentalis caurina) and
marbled murrelet (Brachyramphus
marmoratus) is not an apt one. The
northern spotted owl and marbled
murrelet rely primarily on Federal lands
for their conservation, and their oldgrowth habitat takes decades to develop
on those lands. In contrast, the habitat
of the streaked horned lark can develop
and disappear on farm lands in the
space of a few weeks, and its
appearance typically depends on human
intervention, not natural processes.
Designating large swaths of the
Willamette Valley as critical habitat
would not provide any useful
information regarding the presence of
the streaked horned lark or its habitat to
landowners. We maintain that our
concern about the ability to identify
critical habitat for the streaked horned
lark on private farm lands is valid, and
the situation is not analogous to the
critical habitat designations of other
listed species found in old-growth
forests.
(32) Comment: One commenter stated
the primary constituent elements (PCEs)
and characteristics for habitat suitability
for the streaked horned lark are fairly
specific, yet noted habitat will change
over time, and perhaps be suitable for
only a limited period of time due to
vegetation growth. Therefore, they asked
if critical habitat designations will be
time-limited or adjusted periodically.
Our Response: Critical habitat is a
designation that does not vary
seasonally or over time, and is only
subject to change through a rulemaking
process to revise the designation. This
relatively static nature of critical habitat
is the very reason that we find we
cannot identify critical habitat on the
unpredictable and ephemeral habitats
used by streaked horned larks in the
agricultural areas of Oregon.
(33) Comment: One commenter
recommended that documented
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occupancy in any season during any life
stage be the basis for determining
critical habitat for the streaked horned
lark. They believe the Service’s
definition of occupancy as occurrence
only during the breeding season is too
narrow. Occupancy should include
documented presence of the subspecies
outside of the breeding season as well.
Uses of non-breeding areas are
important to the subspecies’ survival,
such as areas used for foraging and
overwintering, as these sites may also
become breeding sites in the future.
Our Response: We do not know of any
areas that are used only for wintering
(most sites that are used during the
winter are also used during the breeding
season); however, we have modified our
definition of occupancy to include
usage by streaked horned larks during
any season.
(34) Comment: One commenter stated
the economic and social factors driving
conversion of Willamette Valley
farmland to vineyards are likely to
continue in the foreseeable future, and
may accelerate as large California
wineries are reportedly investing in
Willamette Valley farmlands as a hedge
against global climate change. As a
result, the likelihood of a changing
agricultural landscape should be
recognized in the listing and critical
habitat designation for the streaked
horned lark.
Our Response: The Service does not
consider the acquisition of lands by the
viticulture industry to be a significant
factor in the reduction of breeding and
nesting habitat for the streaked horned
lark. We contacted Dr. William Boggess
at Oregon State University’s Oregon
Wine Research Institute, and he
described the ideal lands for viticulture
as being 300 to 800 feet (ft) (91 to 244
meters (m)) in elevation, on a slope with
a southern or western aspect. These
optimal viticulture soils are shallow and
nutrient poor, above the flood plain or
on eroded rocky soils. These ideal
conditions for grapes are not similar in
characteristic to the primary constituent
elements for streaked horned lark
habitat. As such, we do not consider
viticulture a factor affecting habitat loss
for the streaked horned lark.
(35) Comment: One commenter stated
that it is important to designate critical
habitat on Willamette Valley
agricultural lands to ‘‘ensure that habitat
is not converted to uses that will never
be suitable for streaked horned lark,
such as row crops or urban
development, but rather are maintained
as agriculture that at least part of the
time supports streaked horned lark.’’
Our Response: Critical habitat
designation only has a regulatory effect
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in instances where there is a Federal
action (i.e., a Federal agency funds,
authorizes, or carries out an action) that
may affect designated critical habitat;
this action is then reviewed through
interagency consultation under section
7 of the Act between the Federal action
agency and the Service. Designation of
critical habitat on private lands will
have no effect on a private landowner’s
ability to convert to another crop or to
sell out completely if there is no Federal
action involved. Contrary to the
commenter’s perception, critical habitat
designation does not create a wildlife
preserve or require any sort of response
or management from a private
landowner.
(36) Comment: We received multiple
conflicting comments suggesting that
connectivity both is and is not a
necessary consideration when
designating critical habitat for the
streaked horned lark.
Our Response: We rely on the
expertise of our Service staff biologists,
as well as the peer review of our
proposed rule by species experts who
either support or refute our assertions.
In this instance, both our staff biologists
and our peer reviewers support the need
for connectivity of critical habitat units
to ensure the potential for genetic
exchange and colonization by streaked
horned larks.
(37) Comment: Several commenters
expressed great concern about the
implications to public safety from
designating critical habitat for the
streaked horned lark at airports, and
requested that we exclude airports from
the critical habitat designation due to
safety concerns.
Our Response: Although we do not
see a direct connection between the
designation of critical habitat, which
results in the requirement that Federal
action agencies consult with us on
activities that involve Federal funding,
authorization, or implementation, and
public safety, all airport lands have been
excluded from our designation under
section 4(b)(2) of the Act for other
reasons. Please see additional
discussion under Exclusions.
(38) Comment: Several commenters
stated that critical habitat should not be
designated for the streaked horned lark
at airports, because airports are not
suitable as sites for recovery of the
subspecies.
Our Response: We concur with these
commenters that airports should not be
focal points for streaked horned lark
recovery. In section 3 of the Act,
‘‘critical habitat’’ is defined, in part, as
the specific areas within the
geographical area occupied by the
species at the time it is listed on which
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are found those physical and biological
features essential to the conservation of
the species. ‘‘Conservation’’ is further
defined in the Act as the use of all
methods and procedures which are
necessary to bring any endangered or
threatened species to the point at which
the measures provided pursuant to the
Act are no longer necessary. These
definitions clearly demonstrate that the
purpose of critical habitat designation is
to identify locations for recovery efforts
for listed species. Airport managers
have expressed great concern about the
implied recovery purpose of critical
habitat units; management to encourage
increasing populations of birds at
airports is untenable to airport
managers. Airports unquestionably
provide important habitat for streaked
horned larks, and some of these sites
have demonstrated the ability to sustain
small, persistent populations of streaked
horned larks; indeed, without airports
there would be very few sites
consistently managed to maintain the
habitat conditions used by the streaked
horned lark within the needed
landscape context. Therefore, although
airports clearly provide a benefit to the
subspecies, and will likely continue to
provide important habitat for small
populations, recovery will require
restoration and management of new
sites that can sustain increasing
populations of streaked horned larks in
the long term, in more natural locations
appropriate for conservation and that do
not pose a heightened risk of mortality
to the streaked horned lark from
airstrikes. We have excluded civilian
(non-Federal) airports from critical
habitat designation for the reasons
outlined in the Exclusions section of
this document.
(39) Comment: One commenter
expressed concern that our proposed
designation of critical habitat for the
streaked horned lark relied almost
exclusively on public lands. This
commenter believes that private lands
in the Willamette Valley will hold the
key to the streaked horned lark’s
survival.
Our Response: As we stated above, we
do not yet know which unoccupied sites
will be essential for the recovery of the
streaked horned lark, and the
unpredictable and highly variable
occurrence of PCEs for streaked horned
larks on private lands in the Willamette
Valley precludes our ability to designate
critical habitat in that area. The public
lands included in the critical habitat
designation (State Parks and the Willapa
National Wildlife Refuge on the
Washington coast; three units of the
Willamette Valley National Wildlife
Refuge Complex in Oregon (WVNWRC))
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have a clear conservation mandate and
are already working to conserve
streaked horned lark populations on
those sites. Many other sites will likely
be needed to achieve recovery, but
again, we do not yet know where those
sites will be. As we begin to develop a
recovery plan, and identify goals for
population numbers and distribution of
the streaked horned lark, we will
identify areas to focus on for recovery.
These areas will undoubtedly include
many areas on private agricultural
lands, for which we will seek
partnerships with willing landowners to
manage for streaked horned lark
conservation. Finally, we note that the
regulatory effect of critical habitat is
limited to actions with a Federal nexus–
activities that are funded, authorized, or
carried out by a Federal agency. The
conservation value of critical habitat is
thus often the greatest on Federal lands,
which always have a Federal nexus. The
designation of critical habitat has no
regulatory effect on private lands
lacking a Federal connection. Critical
habitat designation itself does not
prevent development or alteration of the
land, create a wildlife preserve, or
require any sort of response or
management from a private landowner.
(40) Comment: One commenter stated
that Ankeny National Wildlife Refuge in
the Willamette Valley is not an
appropriate site for designation of
critical habitat for the streaked horned
lark. The commenter asserted that, ‘‘. . .
Ankeny is not recognized among
knowledgeable local birders as having
any significant population’’ of streaked
horned larks, and is unlikely to serve as
an ‘‘anchor site’’ for the bird’s recovery.
Our Response: Recent surveys have
found up to five breeding pairs of
streaked horned larks at Ankeny;
therefore the site is occupied at the time
of listing, and the refuge clearly
provides the essential physical or
biological features for the subspecies.
Therefore, it meets the definition of
critical habitat for the streaked horned
lark. The WVNWRC included
conservation measures in its
comprehensive conservation plan for
the streaked horned lark at each of the
three refuge units, including Ankeny.
We believe that Ankeny provides
consistently available habitat for a small
population of breeding streaked horned
larks, and future management may
increase the population. The WVNWRC
is Federal land and has a clear
conservation mandate, and so makes a
good choice for critical habitat
designation.
(41) Comment: One commenter
questioned our proposed designation of
critical habitat for the streaked horned
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lark on the three units of the Willamette
Valley National Wildlife Refuge
Complex. These refuges were originally
established as habitat for wintering
dusky Canada geese (Branta canadensis
occidentalis), and the commenter stated
that the refuges cannot successfully
manage for the two bird species at once.
Our Response: Research at the three
refuge units has shown that streaked
horned larks breed successfully in fields
that have been heavily grazed by
wintering geese (Moore 2009, p. 12).
The WVNWRC has a long history of
managing for wintering geese, and has
recently updated its comprehensive
conservation plan to integrate streaked
horned lark conservation into the goals
for the three refuge units. We believe
that the WVNWRC provides excellent
habitat for streaked horned larks, and
adaptive management of the sites will
likely increase the numbers of streaked
horned larks breeding at each of the
refuge units.
(42) Comment: Several commenters
criticized the Service’s failure to
designate critical habitat on many sites
that have had recent detections of
streaked horned larks, primarily on
privately owned agricultural lands in
the Willamette Valley, and a few
locations in the lower Columbia River.
The commenters are concerned that the
current critical habitat designation will
not be adequate to recover the
subspecies.
Our Response: Streaked horned larks
evolved to use a shifting mosaic of very
early successional habitats, for which
the primary requirement was the
appropriate landscape context (large,
relatively flat, and wide open). The
streaked horned lark is unusual among
species in that it does not now occur on
remnants of its native habitats; indeed,
most of the streaked horned lark’s
naturally occurring habitats no longer
exist because the natural processes that
historically created those early
successional habitats, such as flooding
and wildfire, no longer operate on the
landscape. With the exception of sites
on the Washington coast, where natural
disturbance processes still operate to
create habitat, nearly all of the sites
currently used by streaked horned larks
have been inadvertently created by
humans and are industrial in nature.
These sites are agricultural landscapes,
dredge spoil deposition sites, and
airports. These ‘‘working landscapes’’
are managed with little or no
consideration for streaked horned lark
conservation, and lark use of these sites
seems to be highly opportunistic.
Although streaked horned larks
currently occur on these sites, given
their intensive industrial uses, these
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locations may have limited potential to
support increased populations of
streaked horned larks in the future, and
may be inappropriate sites on which to
establish a recovery program for the
subspecies. For the streaked horned
lark, we do not have obvious core sites
of pristine, natural habitats on which to
focus recovery efforts. In essence, the
streaked horned lark persists in the
Pacific Northwest, even though its
natural habitats are all but gone.
The sites that streaked horned larks
currently use are highly fragmented and
scattered. Developing a recovery
program for the streaked horned lark
will require identifying areas that have
the essential landscape characteristics
and which can be managed for
conservation and recovery of the
subspecies. Few of these areas have
been determined thus far. In the
Willamette Valley, large landscapes
managed for native prairies will be
needed, although it is very likely that
some ‘‘working lands’’ in agricultural
production will also be identified as
interested landowners step up to
implement practices to protect the
streaked horned lark on their lands.
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. We are not
designating critical habitat on every
small and fragmented location recently
known to be occupied or potentially
occupied by streaked horned larks,
because we do not consider all of these
sites to meet the definition of critical
habitat for the streaked horned lark.
That is, we do not consider all of these
sites to provide physical or biological
features essential to the conservation of
the species, because not all of these sites
have the potential to make a substantial
contribution to the recovery of the
species. In addition, section 3(5)(C) of
the Act specifically mandates that,
except in those circumstances
determined by the Secretary of the
Interior, critical habitat shall not
include the entire geographical area
which can be occupied by the listed
species. We are not suggesting that the
sites currently used by streaked horned
larks are unimportant; rather, recovery
is more likely to be successful and cost-
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effective if we can focus our resources
on larger, more permanent sites.
Therefore, it is these larger, more
permanent occupied sites that we
consider to provide the physical or
biological features that are truly
essential to the conservation of the
subspecies, and these are the areas that
we are designating as critical habitat at
this time. We do not contend that these
sites will necessarily be sufficient to
recover the subspecies, nor does the Act
require that they do so. In the future,
when we have better information on
sites that will attract and support large,
stable populations of streaked horned
larks, and that can be managed for the
long-term conservation of the
subspecies, we may revisit this critical
habitat designation, as appropriate.
(43) Comment: One commenter
recommended re-drawing the
boundaries of proposed streaked horned
lark critical habitat at Portland
International Airport to exclude paved
runways, taxiways, and runway safety
areas.
Our Response: All non-Federal airport
lands are excluded under section 4(b)(2)
of the Act from this final designation of
critical habitat for the streaked horned
lark; please see additional discussion
under Exclusions. For the lands that we
are designating as critical habitat, when
determining critical habitat boundaries,
we make every effort to avoid including
developed areas such as lands covered
by buildings, pavement (such as roads),
and other structures because such lands
lack the essential physical or biological
features for streaked horned larks. Any
such lands have been excluded by the
text of this rule and are not included in
critical habitat.
(44) Comment: One commenter stated
the PCE requiring only a minimum of 16
percent open ground would not support
occupation of the known nesting sites
for streaked horned larks on dredge
sand islands in the Columbia River and
may only be relevant for other sites
(such as the Puget Prairie or Willamette
Valley).
Our Response: The PCE identifying 16
percent minimum open ground is a
description of the habitat conditions, or
physical or biological features, essential
to the conservation of the streaked
horned lark, not a management
requirement. Based on research studies,
streaked horned larks need areas with a
minimum of 16 percent bare ground.
Most of the currently occupied sites
have much more bare ground than this,
and many of the dredge deposit sites
have more than 60 percent bare ground.
The habitat description is based on
research studies across the range of the
subspecies. We do not expect land
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owners to manage sites for streaked
horned larks to criteria that represent
the minimum observed in the field.
(45) Comment: One commenter
suggested the limited number of
territories and nesting pairs observed
annually at Sanderson Field indicates
this area provides only marginal habitat
for the streaked horned lark and should
not be designated as critical habitat.
Our Response: The fact that streaked
horned larks have consistently nested at
Sanderson Field is an indication that
the airport does provide suitable habitat.
There are many occupied sites in
Washington and throughout the range of
the subspecies where the number of
nesting territories is low (fewer than 10),
and this is not considered an indication
of marginal habitat. The smaller size of
Sanderson Field, compared to the
Olympia Airport, and the rapidly
declining population of streaked horned
larks in Washington are contributing
factors to the number of territories at the
Shelton Airport and other locations. It
should be noted that Sanderson Field is
the northernmost location within the
current range of the subspecies where
the streaked horned lark nests. As such,
this particular airport serves an
important role in maintaining the
distribution of the subspecies. However,
as described in the Exclusions section of
this document, airport lands have been
excluded from critical habitat for the
streaked horned lark.
(46) Comment: One commenter was
concerned that the designation of
critical habitat for the streaked horned
lark at certain locations within the
Columbia River would attract streaked
horned larks to adjacent or nearby areas
not proposed for designation and could
limit operational and development
activities of the Port of Kalama in these
areas.
Our Response: Sandy Island is
currently occupied habitat, and the
streaked horned lark has already been
documented at the Port of Kalama’s
upland dredge deposit site. The
designation of critical habitat on Sandy
Island, or other islands in the Columbia
River, will not affect existing streaked
horned lark movements or limit
operational and development activities
on port property. The fact that the
streaked horned lark has been
documented on the Port of Kalama is an
indication that the upland dredge
deposit site is currently suitable habitat.
Under the listing (see the final rule to
list the Taylor’s checkerspot butterfly
and streaked horned lark published
elsewhere in today’s Federal Register),
the port will be subject to take
prohibitions under section 9 of the Act
for activities conducted by the port that
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adversely impact streaked horned larks,
regardless of whether critical habitat is
designated on Sandy Island. We
recommend that the Port of Kalama
work with the Service on the
development of a habitat conservation
plan under section 10 of the Act for
activities that affect the subspecies or
suitable habitat, including upland
disposal and use of dredge material.
Comments on Economic Analysis
Please note that the draft economic
analysis (DEA) for the proposed
designation addressed multiple species
proposed for listing that occupy prairie
habitats of Oregon and Washington, and
included an analysis of the potential
economic impacts stemming from the
proposed critical habitat designation for
Taylor’s checkerspot butterfly, streaked
horned lark, and four subspecies of the
Mazama pocket gopher (Thomomys
mazama ssp.). The proposed listing and
critical habitat for the Mazama pocket
gophers are addressed in separate
rulemakings.
(47) Comment: Several commenters
took issue with the characterization of
the baseline in the DEA concerning
airport operations. For example, one
commenter asserted that critical habitat
may engender incremental impacts even
when the streaked horned lark is
present. In addition, the comment notes
that favorable habitat at airports,
containing the PCEs, is the result of
voluntary activities by airport managers,
which could be discontinued (i.e., as a
result of lost Federal funding), in which
case the PCEs could disappear, the sites
would become unoccupied, and any
subsequent consultation would result
solely from critical habitat.
Our Response: The U.S. Office of
Management and Budget’s (OMB)
guidelines for best practices concerning
the conduct of economic analysis of
Federal regulations direct agencies to
measure the costs of a regulatory action
against a baseline, which it defines as
the ‘‘best assessment of the way the
world would look absent the proposed
action.’’ The baseline utilized in the
DEA is the existing state of regulation,
prior to the designation of critical
habitat, which provides protection to
the species under the Act, as well as
under other Federal, State, and local
laws and guidelines. To characterize the
‘‘world without critical habitat,’’ the
DEA also endeavors to forecast these
conditions into the future over the time
frame of the analysis, recognizing that
such projections are subject to
uncertainty. This baseline projection
presumes that the species will be listed
(as critical habitat would not be
designated absent a listing) and
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therefore recognizes that the streaked
horned lark will be subject to a variety
of Federal, State, and local protections
throughout most of its ranges, due to its
listed status under the Act and
regardless of the designation of critical
habitat.
We note that significant debate has
occurred regarding whether assessing
the impact of critical habitat
designations using this baseline
approach is appropriate, with several
courts issuing divergent opinions.
Courts in several parts of the country,
including the U.S. Court of Appeals for
the Ninth Circuit, which has
jurisdiction in Washington, Oregon, and
California, have ruled that the decision
about whether to exclude areas from
critical habitat should be based on the
incremental impacts of the rule. The
Ninth Circuit cases were appealed to the
Supreme Court, which declined to hear
them.
(48) Comment: Several commenters
asserted that the DEA does not fully
account for, or sufficiently
acknowledge, potential impacts to
airport development activities,
revenues, and related opportunity costs.
Our Response: During the preparation
of the DEA, its authors reached out to
management officials at each of the
seven airports affected by the proposed
designations and collected available
planning documents. Chapter 3 of the
DEA discusses a variety of airportrelated projects and maintenance
activities that would result in section 7
consultation, and considers how these
consultations might be affected by the
presence of critical habitat. Based on the
best available information and the
incremental effects memorandum
prepared by the Service, the DEA
concludes that, for areas that are
occupied by the subspecies, critical
habitat designation will not result in
incremental impacts beyond
administrative costs incurred to
consider adverse modification during
consultation.
(49) Comment: The Port of Portland
states that their economic assessment
concerning this proposed designation
was not included in the DEA, and notes
certain other issues, including: a
clarification concerning airport
development activities that receive
funding through the U.S. Department of
Transportation (USDOT) FAA; a
typographical error regarding unit
labeling; and an assertion that the
estimated number of consultations is
inaccurate.
Our Response: The identified
economic assessment was reviewed and
utilized during the development of the
DEA, and is cited in chapter 3 of the
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report. In the final economic analysis
(FEA), we added clarification
concerning the USDOT FAA-funded
source and fixed the unit numbering
error. In addition, further detail
concerning the number of consultations
and analytic timeframe for the Port of
Portland has been added to the FEA.
(50) Comment: One submission
expressed concern that critical habitat
designation will constrain dredging
activities and alter placement sites
related to the Port of Kalama.
Our Response: The DEA discusses
potential effects of critical habitat
designation on dredging activities,
including those related to the Port of
Kalama and Sandy Island. As noted in
chapter 3 of the DEA, dredging activities
occur on 8 of the 10 islands proposed
for streaked horned lark critical habitat
in the Columbia River. Deposition of
dredge materials can create flat, open
habitat that streaked horned larks prefer,
but dredging activities that occur during
the nesting season have the potential to
increase individual mortality and cause
nest failure. Based on the review of
historical and projected conservation
actions for the streaked horned lark
concerning dredging activities, and
given that these areas are considered
occupied by the subspecies, the analysis
concluded that critical habitat will not
result in incremental economic impacts
to dredging activities, beyond the
administrative costs associated with
consultation with the Service.
(51) Comment: Two commenters
expressed concern that the listing and
designation of critical habitat for the
Taylor’s checkerspot butterfly and
Mazama pocket gophers (which will be
addressed in separate rules) may
constrain gravel mining activities in
Pierce and Thurston Counties,
Washington. One comment expressed
specific concern about impacts to
planned gravel extraction in Subunit 1–
D Rocky Prairie.
Our Response: The proposed critical
habitat acreage in these areas is
considered to be occupied by at least
one of the prairie species noted. As
noted in the DEA and related
incremental effects memorandum,
should the six subspecies be formally
listed under final rules, their presence
within critical habitat will require
implementation of certain conservation
efforts to avoid jeopardy concerns. In
occupied critical habitat, consultation
would therefore consider not only the
potential for jeopardy to the continued
existence of the species, but also the
potential for destruction or adverse
modification of critical habitat. Because
the ability of these subspecies to exist is
very closely tied to the quality of their
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habitats, significant alterations of their
occupied habitat may result in jeopardy
as well as adverse modification.
Therefore, we anticipate that section 7
consultation analyses will likely result
in no difference between
recommendations to avoid jeopardy or
adverse modification in occupied areas
of habitat. The analysis concludes that
incremental economic impacts of
critical habitat designation will be
limited to additional administrative
costs of additionally considering critical
habitat as part of section 7 consultation
to the Service, other Federal agencies,
and private third parties. Note, however,
that additional detail concerning
potential gravel mining activities in
proposed critical habitat, along with
related consultation requirements, has
been added to the FEA.
In addition, the specifically identified
subunit, Subunit 1–D Rocky Prairie, was
proposed as unoccupied critical habitat
for Taylor’s checkerspot butterfly. This
subunit has been removed from the final
designation upon a determination that
this area is not essential to the
conservation of the species.
(52) Comment: One commenter stated
that, in the DEA, economic costs are
overstated and that many economic
benefits have not been included in the
analysis. Specifically, the comment
asserted that there is no basis to
determine that the designation of
critical habitat for the streaked horned
lark will have an additional economic
impact beyond the listing itself, and
notes that birdwatching and related
livability amenities due to outdoor
opportunities are important to
Portland’s social vitality.
Our Response: A primary conclusion
of the economic analysis is that, in areas
of proposed designation occupied by the
species, limited incremental impacts
will occur beyond those administrative
costs associated with consultation.
Further, in chapter 3, the DEA does
provide a qualitative discussion of
potential ancillary benefits (including
recreational use) attributable to the
conservation of these species.
(53) Comment: One commenter stated
that the DEA dismisses the need to
describe impacts in economic terms and
instead focuses on biological benefits
only, citing paragraph 4 in the Executive
Summary of the DEA as an example.
Our Response: This comment
misconstrues the language of this
paragraph. The DEA endeavors to
provide a full rendering of the
designation’s potential economic
impacts, including defining a baseline
and assessing incremental effects, both
direct and indirect. In the context of
weighing these costs against the
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‘‘benefits’’ of the designation, however,
the benefits component focuses on the
primary ‘‘biological’’ benefit related to
species conservation, and puts less
emphasis on ancillary, or secondary,
benefits flowing from species
conservation (e.g., improved
environmental quality yielding human
health or recreational use benefits).
(54) Comment: One commenter noted
that, concerning potential ancillary
benefits of the designation, airports are
secure facilities with limited and
controlled public access. Thus, none of
the potential ancillary benefits cited in
the DEA, such as recreational
opportunities, is relevant to the airport
environment.
Our Response: We agree that, given
the security environment at airports,
human use benefits are limited at
airports. We note, however, that the
direct biological benefit of species
conservation may still be attributable to
airport locations, and that certain
ancillary benefits (improved
environmental quality due to landscape
management) may also still accrue. As
previously mentioned, all non-Federal
airport lands are excluded from this
final designation of critical habitat for
the streaked horned lark. Please see
additional discussion under Exclusions.
(55) Comment: One commenter
expressed concern that, even when care
is taken in the review of projects and
actions that are unlikely to harm the
long-term viability of the Taylor’s
checkerspot butterfly, streaked horned
lark, and Mazama pocket gopher,
allowance of new development could
leave the community subject to
potential lawsuits.
Our Response: Chapter 2 of the DEA
discusses the issue of indirect impacts
potentially related to critical habitat,
including the triggering of other State
and local laws, time delays, regulatory
uncertainty, and stigma. Within this
context, the effect of third-party
litigation can represent an indirect
effect. We note, however, that
forecasting the likelihood of third-party
litigation and related project delays or
other constraints is considered too
speculative for the economic analysis.
In addition, the DEA attributes most
economic effects to the presence of the
species and jeopardy concerns, as
opposed to the designation of critical
habitat.
Summary of Changes From Proposed
Rule
We are designating a total of 1,941 ac
(786 ha) of critical habitat for the
Taylor’s checkerspot butterfly and a
total of 4,629 ac (1,873 ha) of critical
habitat for the streaked horned lark. We
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received a number of site-specific
comments related to critical habitat for
these two subspecies; completed our
analysis of areas considered for
exclusion under section 4(b)(2) of the
Act or for exemption under section
4(a)(3) of the Act; reviewed the
application of our criteria for identifying
critical habitat across the range of these
two subspecies to refine our
designations; and completed the final
economic analysis of the designation as
proposed. We fully considered all
comments from the public and peer
reviewers on the proposed rule and the
associated economic analysis to develop
this final designation of critical habitat
for the Taylor’s checkerspot butterfly
and streaked horned lark. This final rule
incorporates changes to our proposed
critical habitat based on the comments
that we received and have responded to
in this document, and considers
completed final management plans to
conserve the subspecies under
consideration. Although we received
additional distribution data for the
streaked horned lark on agricultural
lands in the Willamette Valley, this
information did not necessitate the
designation of additional critical
habitat. Because of the fragmented and
ephemeral nature of those areas on
private lands, we determined they do
not meet our definition of critical
habitat for the streaked horned lark.
We have made some technical
corrections to the document, and our
final designation of critical habitat
reflects the following changes from the
proposed rule:
(1) We added one additional adult
nectar resource to the list of plants in
the primary constituent elements for
Taylor’s checkerspot butterfly: wild
strawberry (Fragaria virginiana).
(2) Based on our analysis of the total
area necessary for the conservation of
Taylor’s checkerspot butterfly in
Washington and Oregon, we determined
that approximately 447 ac (181 ha) of
the unoccupied critical habitat that we
proposed are not essential for the
conservation of the subspecies based on
comments and information received.
This finding of ‘‘not essential’’ did not
result in the removal of entire subunits
for the Taylor’s checkerspot butterfly, as
it did for the streaked horned lark (see
below), but did reduce the area of
several subunits for the subspecies, both
in Washington and Oregon.
Our analysis of the proposed critical
habitat for the streaked horned lark
determined that two of proposed critical
habitat subunits (in their entirety) do
not meet the definition of critical
habitat; therefore these subunits were
removed from the final designation. The
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first of these two critical habitat
subunits was identified as subunit 3–J
in the proposed critical habitat rule and
is commonly known as Coffeepot Island.
This small island of approximately 25
ac (10 ha) in the Columbia River is not
occupied by the streaked horned lark,
and although it presently supports some
of the physical or biological features
utilized by the lark, without ongoing
management it will not maintain these
characteristics into the foreseeable
future. (Please note, in this final rule,
the critical habitat units have been
renumbered sequentially and the
designation of critical habitat subunit 3–
J is now assigned to Whites/Brown
Island (see Table 2)). As we find it
unlikely that Coffeepot Island will
provide suitable habitat for the streaked
horned lark in the future, we
determined that this subunit is not
essential to the conservation of the
subspecies, and does not meet our
definition of critical habitat.
In the second case, we determined
that the subunit identified as 4–G in the
proposed critical habitat rule, M–DAC
Farms in Oregon, does not meet our
definition of critical habitat for the
streaked horned lark. Although
occupied at the time of listing, the PCEs
at this site are in a state of steady
decline due to a conservation agreement
that focuses on restoring the landscape
to wetland, a vegetative structure
unsuitable to maintaining habitat for the
streaked horned lark. This site is
therefore unlikely to contribute to the
recovery of the streaked horned lark,
and as it lacks the PCEs for the streaked
horned lark, it does not meet our
definition of critical habitat for the
subspecies. M–DAC Farms (601 ac (243
ha) was therefore removed from the
final designation of critical habitat for
the streaked horned lark.
(3) The Service approved the DOD’s
endangered species management plans
(ESMPs) under the INRMP for military
installation JBLM for the Taylor’s
checkerspot butterfly and streaked
horned lark. The ESMPs are speciesspecific, and contain site-specific
conservation actions that will be
implemented as a component of the
larger INRMP for the installation. The
Secretary has exempted lands at JBLM
from critical habitat under section
4(a)(3) of the Act, based on the approval
of these ESMPs. Lands exempted
include approximately 2,324 ac (940 ha)
for the Taylor’s checkerspot butterfly
and 2,813 ac (1,138 ha) for the streaked
horned lark on JBLM. The area
exempted represents approximately 34
percent of the area proposed as critical
habitat for Taylor’s checkerspot
butterfly and 23 percent of the area
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proposed as critical habitat for the
streaked horned lark. For Taylor’s
checkerspot butterfly, the exemption of
military lands from critical habitat
resulted in the removal of three critical
habitat subunits within Unit 1 and
sequential renumbering of the
remaining subunits designated in this
final rule (see Table 1). Training Area 7
South (TA7S), 91st Division Prairie, and
13th Division Prairie were numbered 1–
A, 1–B, and 1–C in the proposed rule,
respectively. For the streaked horned
lark, the exemption of military lands
combined with the exclusion under
section 4(b)(2) of the Act for nonFederal airports (see below) resulted in
the removal of Unit 1 in its entirety.
Subunits in Unit 4 for the streaked
horned lark were sequentially
renumbered due to the exclusion of
non-Federal airports in Oregon (see
Table 2 and Exclusions section of this
document).
(4) We carefully considered the
benefits of inclusion and the benefits of
exclusion of specific areas in proposed
critical habitat under section 4(b)(2) of
the Act, particularly in areas where
management plans specific to the
Taylor’s checkerspot butterfly and
streaked horned lark are in place, and
where the maintenance and fostering of
important conservation partnerships
were a consideration. Based on the
results of our analysis, we are excluding
approximately 2,184 ac (885 ha) from
our final critical habitat designation for
Taylor’s checkerspot butterfly and 4,114
ac (1,664 ha) for the streaked horned
lark (see Exclusions, below). For
Taylor’s checkerspot butterfly, two
entire subunits of proposed critical
habitat in Oregon were excluded based
on the Benton County Prairie Species
HCP; these include Fort Hoskins
Historic Park (proposed critical habitat
subunit number 4–1) and Beazell
Memorial Forest (proposed critical
habitat subunit number 4–2). The area
excluded represents approximately 32
percent of the area proposed as critical
habitat for the Taylor’s checkerspot
butterfly and 32 percent of the area
proposed as critical habitat for the
streaked horned lark.
Exclusion from critical habitat should
not be interpreted as a determination
that these areas are unimportant, that
they do not provide physical or
biological features essential to the
conservation of the species (for
occupied areas), or are not otherwise
essential for conservation (for
unoccupied areas); exclusion merely
reflects the Secretary’s determination
that the benefits of excluding those
particular areas outweigh the benefits of
including them in the designation.
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Due to these changes in our final
critical habitat designation, we have
updated our subunit numbering,
descriptions, and critical habitat maps,
all of which can be found later in this
document. This final designation of
critical habitat represents a reduction of
4,934 ac (1,996 ha) from our proposed
critical habitat for the Taylor’s
checkerspot butterfly and 7,530 ac
(3,047 ha) for the streaked horned lark,
for the reasons detailed above.
Additional minor differences between
proposed and final critical habitat for
both subspecies on the order of roughly
20 ac (8 ha) beyond those detailed above
are due to minor boundary adjustments
and simple rounding error.
Critical Habitat
It is our intent to discuss below only
those topics directly relevant to the
designation of critical habitat for the
Taylor’s checkerspot butterfly and
streaked horned lark in this section of
the rule.
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
pursuant to the Act are no longer
necessary. Such methods and
procedures include, but are not limited
to, all activities associated with
scientific resources management such as
research, census, law enforcement,
habitat acquisition and maintenance,
propagation, live trapping, and
transplantation, and, in the
extraordinary case where population
pressures within a given ecosystem
cannot be otherwise relieved, may
include regulated taking.
Critical habitat receives protection
under section 7 of the Act through the
requirement that Federal agencies
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ensure, 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 nonFederal landowners. Where a landowner
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.
Under the first prong of the Act’s
definition of critical habitat, areas
within the geographical area occupied
by the species at the time it was listed
are included in a critical habitat
designation if they contain physical or
biological features (1) which are
essential to the conservation of the
species and (2) which may require
special management considerations or
protection. For these areas, critical
habitat designations identify, to the
extent known using the best scientific
and commercial data available, those
physical or biological features that are
essential to the conservation of the
species (such as space, food, cover, and
protected habitat). In identifying those
physical or biological features within an
area, we focus on the principal
biological or physical constituent
elements (primary constituent elements
such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide,
soil type) that are essential to the
conservation of the species. Primary
constituent elements are those specific
elements of the physical or biological
features that provide for a species’ lifehistory processes and are essential to
the conservation of the species.
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in 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. Our regulations direct us to
designate critical habitat in areas
outside the geographical area occupied
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by a species only when a designation
limited to its range would be inadequate
to ensure the conservation of the
species. Furthermore, except in certain
circumstances determined by the
Secretary, critical habitat is not to
include the entire geographical area
which can be occupied by the listed
species.
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.
Habitat is dynamic, and species may
move from one area to another over
time. 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 needed 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) section 9
of the Act’s prohibitions on taking any
individual of the species, including
taking caused by actions that affect
habitat. 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 listed
species. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
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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 or 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 by the species at the time of
listing to designate as critical habitat,
we consider the physical or 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 or
biological features essential for the
Taylor’s checkerspot butterfly and
streaked horned lark from studies of
each subspecies’ habitat, ecology, and
life history as described in detail in the
Critical Habitat section of the proposed
rule to designate critical habitat
published in the Federal Register on
October 11, 2012 (77 FR 61937).
Additional information can also be
found in the final listing rule for the
Taylor’s checkerspot butterfly and
streaked horned lark, which is
published elsewhere in today’s Federal
Register. We have determined that the
physical and or biological features
described in the proposed rule (October
11, 2012; 77 FR 61937) are essential to
the conservation of the Taylor’s
checkerspot butterfly and streaked
horned lark, and have further
determined that these features may
require special management
considerations or protection.
The designation of critical habitat is
an authority restricted to the boundaries
of the United States; critical habitat
cannot be designated in a foreign
country (50 CFR 424.12(h)). Both
Taylor’s checkerspot butterfly and
streaked horned lark range into Canada
or historically occurred there. In the
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final listing rule, published elsewhere in
the Federal Register today, we discuss
the population in Canada for the
purpose of evaluating the viability of the
species and to inform our determination
of those areas within the United States
that are essential for the conservation of
the subspecies. We do not have the
authority to designate critical habitat in
Canada.
Taylor’s Checkerspot Butterfly
Primary Constituent Elements for the
Taylor’s Checkerspot Butterfly—Under
the Act and its implementing
regulations, we are required to identify
the physical or biological features
essential to the conservation of Taylor’s
checkerspot butterfly 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
or biological features that provide for
the subspecies’ life-history processes
and are essential to the conservation of
the subspecies.
Based on our current knowledge of
the physical or biological features and
habitat characteristics required to
sustain the subspecies’ life-history
processes, we determine that the
primary constituent elements specific to
the Taylor’s checkerspot butterfly are:
(i) Patches of early seral, shortstatured, perennial bunchgrass plant
communities composed of native grass
and forb species in a diverse
topographic landscape ranging in size
from less than 1 ac up to 100 ac (0.4 to
40 ha) with little or no overstory forest
vegetation that have areas of bare soil
for basking that contain:
(a) In Washington and Oregon,
common bunchgrass species found on
northwest grasslands include Festuca
roemeri (Roemer’s fescue), Danthonia
californica (California oat grass),
Koeleria cristata (prairie Junegrass),
Elymus glaucus (blue wild rye), Agrostis
scabra (rough bentgrass), and on cooler,
high-elevation sites typical of coastal
bluffs and balds, Festuca rubra (red
fescue).
(b) On moist grasslands found near
the coast and in the Willamette Valley,
there may be Bromus sitchensis (Sitka
brome) and Deschampsia cespitosa
(tufted hairgrass) in the mix of prairie
grasses. Less abundant forbs found on
the grasslands include, but are not
limited to, Trifolium spp. (true clovers),
narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja
hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly
sunshine (Eriophyllum lanatum), nineleaved desert parsley (Lomatium
triternatum), fine-leaved desert parsley
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(Lomatium utriculatum), common
camas (Camassia quamash), showy
fleabane (Erigeron speciosus), Canada
thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie
lupine (Lupinus lepidus), and sicklekeeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants
(narrow-leaved plantain and harsh
paintbrush) and at least one of the
secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora),
sea blush (Plectritis congesta), or dwarf
owl-clover (Triphysaria pusilla) or one
of several species of speedwell (marsh
speedwell (Veronica scutella), American
speedwell (V. beccabunga var.
americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding
that include several species found as
part of the native (and one nonnative)
species mix on northwest grasslands,
including, but not limited to: narrowleaved plantain; harsh paintbrush; Puget
balsam root; woolly sunshine; nineleaved desert parsley; fine-leaved desert
parsley or spring gold; common camas;
showy fleabane; Canada thistle;
common yarrow; prairie lupine; sicklekeeled lupine, and wild strawberry
(Fragaria virginiana).
(iv) Aquatic features such as
wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide
moisture during periods of drought,
particularly late in the spring and early
summer. These features can be
permanent, seasonal, or ephemeral.
With this designation of critical
habitat, we intend to identify the
physical or biological features essential
to the conservation of the subspecies,
through the identification of the primary
constituent elements essential to
support the life-history processes of the
subspecies. We are designating critical
habitat within the geographical area
occupied by the subspecies at the time
of listing. In addition, we are
designating some specific areas outside
the geographical area occupied by the
subspecies at the time of listing that
were historically occupied, but are
presently unoccupied, because we have
determined that these areas are essential
for the conservation of the subspecies.
Streaked Horned Lark
Primary Constituent Elements for the
Streaked Horned Lark—Under the Act
and its implementing regulations, we
are required to identify the physical or
biological features essential to the
conservation of the streaked horned lark
in areas occupied at the time of listing,
focusing on the features’ primary
constituent elements. We consider
primary constituent elements to be the
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elements of physical or biological
features that provide for the subpecies’
life-history processes and are essential
to the conservation of the subspecies.
Based on our current knowledge of
the physical or biological features and
habitat characteristics required to
sustain the subspecies’ life-history
processes, we determine that the
primary constituent elements specific to
the streaked horned lark are areas
having a minimum of 16 percent bare
ground that have sparse, low-stature
vegetation composed primarily of
grasses and forbs less than 13 in (33 cm)
in height found in:
(1) Large (300-ac (120-ha)), flat (0–5
percent slope) areas within a landscape
context that provides visual access to
open areas such as open water or fields,
or
(2) Areas smaller than described in
(1), but that provide visual access to
open areas such as open water or fields.
With this designation of critical
habitat, we intend to identify the
physical or biological features essential
to the conservation of the subspecies,
through the identification of the primary
constituent elements sufficient to
support the life-history processes of the
subspecies. All of the units designated
as critical habitat are currently occupied
by the streaked horned lark and contain
the primary constituent elements to
support the life-history needs of the
subspecies.
Special Management Considerations
or Protections—All areas we are
designating as critical habitat will
require some level of management to
address the current and future threats to
the Taylor’s checkerspot butterfly and
streaked horned lark and to maintain or
restore the PCEs. A detailed discussion
of activities influencing the Taylor’s
checkerspot butterfly and streaked
horned lark and their habitats can be
found in the final listing rule published
elsewhere in today’s Federal Register.
Threats to the physical or biological
features that are essential to the
conservation of these subspecies and
that may warrant special management
considerations or protection include,
but are not limited to: (1) Loss of habitat
from conversion to other uses; (2)
control of nonnative, invasive species;
(3) development; (4) construction and
maintenance of roads and utility
corridors; and (5) habitat modifications
brought on by succession of vegetation
from the lack of disturbance, both small
and large scale. These threats also have
the potential to affect the PCEs if they
are conducted within or adjacent to
designated units.
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Taylor’s Checkerspot Butterfly
The physical or biological features
essential to the conservation of the
Taylor’s checkerspot butterfly may
require special management
considerations or protection to improve
the viability and distribution of habitat
suitable for the subspecies. These
include preventing the establishment of
invasive, nonnative and native woody
species, and hastening restoration by
actively managing sites to establish
native plant species and the structure of
the plant community that is suitable for
the Taylor’s checkerspot butterfly.
Restoration and maintenance of
occupied Taylor’s checkerspot butterfly
sites will require active management to
plan, restore, enhance, and manage
habitat using an approach that resets the
vegetation composition and structure to
an early seral stage. Management actions
that produce suitable conditions for
Taylor’s checkerspot butterflies and
reset the ecological clock to early seral
conditions favored by the butterfly
include prescribed fires, mechanical
harvesting of trees, activities such as
hand planting or mechanical planting of
grasses and forbs, and the judicious use
of herbicides for nonnative, invasive
species control.
These early-seral conditions favor the
production and maintenance of
plantain, paintbrush, and other larval
host plants in a short-structure
vegetation community that allows
utilization of the plants by the Taylor’s
checkerspot butterfly. Areas where the
Taylor’s checkerspot butterfly occupies
a site should have limited soil and
vegetation disturbance at times when
the larvae are active, which extends
from late February when post-diapause
larvae are active to late June when prediapause larvae are on site. Other
activities that could cause trampling or
impacts to the larvae and that should be
minimized, reduced, or restricted
during larval feeding include use of the
site by off-road vehicles, military
training using vehicles or impacts
caused by large infantry (foot soldiers),
or activities that transport or spread
nonnative plants, and the risk of
wildfire or prescribed fire. We
reemphasize here the acknowledgement
that Taylor’s checkerspot butterfly,
while most obvious during the flight
period and when larvae are active, are
year-round residents and may be
vulnerable to most types of direct
disturbance throughout the year.
Streaked Horned Lark
The physical or biological features
essential to the conservation of the
streaked horned lark may require
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special management considerations or
protection to ensure the provision of
early seral conditions and landscape
context of sufficient quantity and
quality for long-term conservation and
recovery of the subspecies. Activities
such as mowing, burning, grazing,
tilling, herbicide treatment, grading,
beach nourishment, or placement of
dredge material can be used to maintain
or restore nesting and wintering
habitats. Regular disturbance is
necessary to create and maintain
suitable habitat, but the timing of
management is important. The
management actions should be
conducted outside of the breeding
season to avoid the destruction of nests
and young, or if habitat management
must be done during the breeding
season, it should be done in a way that
minimizes destruction of nests or
harassment of individuals. Nesting
success is highest in locations with
restricted public use or entry such as
military facilities, airports, islands,
wildlife refuges, or sites that are remote
or difficult to access.
Criteria Used To Identify Critical
Habitat
As required by section 4(b)(1)(A) of
the Act, we use the best scientific and
commercial data available to designate
critical habitat. We review available
information pertaining to the habitat
requirements of the species, and begin
by assessing the specific geographic
areas occupied by the species at the
time of listing. If such areas are not
sufficient to provide for the
conservation of the species, in
accordance with the Act and its
implementing regulation at 50 CFR
424.12(e), we then consider whether
designating additional areas outside the
geographic areas occupied at the time of
listing may be essential to ensure the
conservation of the species. We consider
unoccupied areas for critical habitat
when a designation limited to the
present range of the species may be
inadequate to ensure the conservation of
the species. In this case, since we are
listing simultaneously with the
designation of critical habitat, all areas
presently occupied by Taylor’s
checkerspot butterfly or streaked horned
lark are presumed to constitute those
areas occupied at the time of listing;
those areas currently occupied by the
subspecies are identified as such in each
of the unit or subunit descriptions
below. These descriptions similarly
identify which of the units or subunits
are believed to be unoccupied at the
time of listing. Our determination of the
areas occupied at the time of listing and
our rationale for how we determined
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specific unoccupied areas to be essential
the conservation of the subspecies are
provided below.
We plotted the known locations of the
Taylor’s checkerspot butterfly and
streaked horned lark where they occur
in Washington and Oregon using 2011
National Agriculture Imagery Program
(NAIP) digital imagery in ArcGIS,
version 10 (Environmental Systems
Research Institute, Inc.), a computer
geographic information system program.
To determine if the currently
occupied areas contain the primary
constituent elements, we assessed the
life-history components and the
distribution of the subspecies through
element occurrence records in State
natural heritage databases and natural
history information on each of the
subspecies as they relate to habitat. We
first considered whether the presently
occupied areas were sufficient to
conserve the subspecies. If not, to
determine if any unoccupied sites met
the criteria for critical habitat, we then
considered: (1) The importance of the
site to the overall status of the
subspecies to prevent extinction and
contribute to future recovery of the
subspecies; (2) whether the area
presently provides the essential
physical or biological features, or could
be managed and restored to contain the
necessary physical or biological features
to support the subspecies; and (3)
whether individuals were likely to
colonize the site. We also considered
the potential for reintroduction of the
subspecies, where anticipated to be
necessary (for Taylor’s checkerspot
butterfly only).
As required by section 4(b)(2) of the
Act, we used the best scientific data
available to designate critical habitat.
We reviewed available information
pertaining to the habitat requirements of
these subspecies. In accordance with the
Act and its implementing regulation 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 subspecies. We are designating
critical habitat in areas within the
geographical area occupied by the
subspecies at the time of listing in 2013.
For Taylor’s checkerspot butterfly only,
we also are designating specific areas
outside the geographical area occupied
by the subspecies at the time of listing
that were historically occupied, but may
be presently unoccupied, based on the
Secretary’s determination that these
areas are essential for the conservation
of the subspecies.
When we are determining which areas
should be designated as critical habitat,
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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, other unpublished
materials, or experts’ opinions or
personal knowledge. In this case we
used existing occurrence data for each
subspecies and identified the habitat
and ecosystems upon which they
depend. These sources of information
included, but were not limited to:
(1) Data used to prepare the proposed
and final rules to list the subspecies;
(2) Information from biological
surveys;
(3) Peer-reviewed articles, various
agency reports, and databases;
(4) Information from the U.S.
Department of Defense—Joint Base
Lewis-McChord (JBLM) and other
cooperators;
(5) Information from species experts;
(6) Data and information presented in
academic research theses; and
(7) Regional Geographic Information
System (GIS) data (such as species
occurrence data, land use, topography,
aerial imagery, soil data, and land
ownership maps) for area calculations
and mapping.
The critical habitat designation is
defined by the maps, as modified by any
accompanying regulatory text, presented
at the end of this document in the
Regulation Promulgation section. We
include more detailed information on
the boundaries of the critical habitat
designation in the preamble of this
document. We will make the
coordinates or plot points or both on
which each map is based available to
the public on https://
www.regulations.gov at Docket No.
FWS–R1–ES–2013–0009, on our Web
site at https://www.fws.gov/wafwo/
TCBSHL.html/, and, by appointment, at
the Service’s Washington Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT, above).
In all cases, when determining critical
habitat boundaries, we made every
effort to avoid including developed
areas such as lands covered by
buildings, pavement (such as roads),
and other structures because such lands
lack the essential physical or biological
features for the Taylor’s checkerspot
butterfly and streaked horned lark. 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
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inside critical habitat boundaries shown
on the maps of this rule have been
excluded by text in the rule and are not
designated as critical habitat. Therefore,
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 or biological features in the
adjacent critical habitat.
Taylor’s Checkerspot Butterfly
Occupied Areas—For the Taylor’s
checkerspot butterfly, we are
designating critical habitat within the
geographical area occupied by the
subspecies at the time of listing, as well
as in unoccupied areas that we have
determined to be essential for the
conservation of the subspecies
(described below). These presently
occupied areas provide the physical or
biological features essential to the
conservation of the subspecies, which
may require special management
considerations or protection. We
determined occupancy in these areas
based on recent survey information. All
sites occupied by Taylor’s checkerspot
butterfly have survey data as recently as
2011, except for the U.S. Forest Service
sites on the north Olympic Peninsula
where data are as recent as 2010 (Potter
2011; Linders 2011; Ross 2011; Holtrop
2010; Severns and Grossboll 2011). In
addition, there have been some recent
experimental translocations of Taylor’s
checkerspot butterflies to sites where it
had been extirpated within its historical
range. If translocated populations have
been documented as successfully
reproducing, we considered those sites
to be presently occupied by the
subspecies. Areas designated as critical
habitat for Taylor’s checkerspot
butterfly are representative of the
known historical geographic
distribution for the subspecies, outside
of Canada.
We are designating three units of
critical habitat based on sufficient
elements of physical or biological
features being present to support lifehistory processes for the Taylor’s
checkerspot butterfly. These 3 units are
further divided into 11 subunits. Some
subunits within the units contain all of
the identified elements of physical and
biological features and support multiple
life-history processes; some subunits
contain at least one or more elements of
the physical and biological features
necessary to support the Taylor’s
checkerspot butterfly’s particular use of
that habitat. Because we determined
that the areas presently occupied by
Taylor’s checkerspot butterfly are not
sufficient to provide for the
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61523
conservation of the subspecies, we have
additionally identified some subunits
that are presently unoccupied, but that
the Secretary has determined to be
essential to the conservation of the
subspecies. Therefore, we are also
designating these unoccupied areas as
critical habitat for the Taylor’s
checkerspot butterfly, as explained
below.
Unoccupied Areas—We are
designating six subunits as critical
habitat for the Taylor’s checkerspot
butterfly that are not presently occupied
by the subspecies, but that the Secretary
has determined essential for the
conservation of the subspecies. There
has been a rapid decline in the spatial
distribution of prairies (grassland
habitat) throughout the range of the
Taylor’s checkerspot butterfly; as a
result, the present distribution of
Taylor’s checkerspot butterfly is
disjunct and isolated throughout the
subspecies’ historical range. If the
Taylor’s checkerspot butterfly is to
recover, there must be sufficient suitable
habitat available for population
expansion and growth that is potentially
connected in such a way as to allow for
dispersal, and these sites must receive
routine and sustained management to
maintain the early seral conditions
essential to the conservation of the
subspecies. We therefore evaluated
areas outside the presently occupied
patches to identify unoccupied habitat
areas essential for the conservation of
the subspecies. We are designating as
critical habitat some areas adjacent to
known occurrences of the Taylor’s
checkerspot butterfly but that may
currently be unoccupied to provide for
population expansion and growth,
which is essential for the conservation
of the subspecies.
We have identified these unoccupied
areas as essential for the conservation of
the Taylor’s checkerspot butterfly
because they are located strategically
between, and in some cases, adjacent to,
occupied areas from which the butterfly
may disperse; these areas contain one or
more of the PCEs for the Taylor’s
checkerspot butterfly (although the
presence of one or more PCEs is not a
statutory requirement for unoccupied
critical habitat), and are all receiving or
are slated to receive restoration
treatments that will increase the amount
of suitable habitat available.
Streaked Horned Lark
Occupied Areas—We are designating
two units of critical habitat for the
streaked horned lark based on sufficient
elements of physical or biological
features being present to support lifehistory processes during the breeding or
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winter seasons. These 2 units are further
divided into 16 subunits. All of the
units designated as critical habitat are
presently occupied by the streaked
horned lark. Some subunits within the
units contain all of the identified
elements of physical or biological
features and support multiple lifehistory processes; some subunits
contain at least one or more elements of
the physical or biological features
necessary to support the streaked
horned lark’s particular use of that
habitat.
Unoccupied Areas—There are no
unoccupied subunits designated as
critical habitat for the streaked horned
lark.
assessment at this time of areas that
meet the definition of critical habitat for
these subspecies. Those four units are:
(1) The South Sound Unit (Unit 1),
which has critical habitat subunits for
only the Taylor’s checkerspot butterfly.
(2) The Strait of Juan de Fuca Unit
(Unit 2), which has critical habitat
subunits for only the Taylor’s
checkerspot butterfly.
(3) The Washington Coast and
Columbia River Unit (Unit 3), which has
critical habitat subunits for only the
streaked horned lark.
(4) The Willamette Valley Unit (Unit
4), which has critical habitat subunits
for both the Taylor’s checkerspot
butterfly and streaked horned lark.
Final Critical Habitat Designation
We are designating four units total as
critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark. The critical habitat areas
described below constitute our best
Taylor’s Checkerspot Butterfly—Units
1, 2, and 4
We are designating three units as
critical habitat for the Taylor’s
checkerspot butterfly. The critical
habitat areas we describe below
constitute our current best assessment of
areas that meet the definition of critical
habitat for the subspecies. The three
units we designate as critical habitat are:
Unit 1, South Sound—1,143 ac (462 ha)
in Washington State (545 ac (220 ha) of
County ownership, 420 ac (170 ha) of
private ownership, and 178 ac (72 ha) of
lands owned by a Port, local
municipality, or nonprofit conservation
organization); Unit 2, Strait of Juan de
Fuca—779 ac (315 ha) in Washington
State (160 ac (65 ha) of Federal
ownership, 188 ac (76 ha) of State
ownership, 201 ac (81) of private
ownership, and 229 ac (93 ha) of land
owned by a Port, local municipality, or
nonprofit organization); and Unit 4–D,
Willamette Valley—20 ac (8 ha) of
privately owned lands in Oregon. The
approximate area of each critical habitat
unit and its relevant subunits, as well as
land ownership within each unit, is
shown in Table 1.
TABLE 1—CRITICAL HABITAT UNITS DESIGNATED FOR TAYLOR’S CHECKERSPOT BUTTERFLY. NOTE: AREA SIZES MAY NOT
SUM DUE TO ROUNDING. AREA ESTIMATES REFLECT ALL LAND WITHIN CRITICAL HABITAT UNIT BOUNDARIES
Unit 1: South Sound
Federal
1–A
1–B
1–C
1–D
1–E
...............
...............
..............
..............
...............
Rocky Prairie .............................
Tenalquot Prairie .......................
Glacial Heritage .........................
Rock Prairie ...............................
Bald Hill .....................................
Unit 1 Totals ..............................
County
Private
Other *
Currently
occupied
Ac(Ha)
Subunit Name
State
Ac-(Ha)
Ac(Ha)
Ac(Ha)
Ac(Ha)
Y/N
0
0
0
0
0
0 (0)
0
0
0
0
0
0 (0)
0
0
545 (220)
0
0
545 (220)
0
0
0
244 (99)
176 (71)
420 (170)
43 (17)
135 (55)
0
0
0
178 (72)
N
N
Y
N
N
......................
0
0
0
0
160 (65)
160 (65)
149 (60)
39 (16)
0
0
0
188 (76)
0
0
0
0
0
0
0
0
51 (20)
151 (61)
0
201 (81)
0
190 (77)
39 (16)
0
0
229 (93)
N
N
Y
Y
Y
......................
Fitton Green-Cardwell Hill .........
Unit 4 Totals ..............................
0
0
0
0
0
0
20 (8)
20 (8)
0 (0)
0 (0)
Y
......................
Grand Total—all Units ...............
160 (65)
188 (76)
545 (220)
642 (259)
407 (166)
......................
GRAND TOTAL ALL UNITS,
ALL OWNERSHIP.
......................
......................
1,941 (786)
......................
......................
......................
Unit 2: Strait of Juan De Fuca:
2–A ...............
2–B ...............
2–C ..............
2–D ..............
2–E ...............
.................
Deception Pass State Park .......
Central Whidbey ........................
Elwha .........................................
Sequim ......................................
Dungeness ................................
Unit 2 Totals ..............................
Unit 4: Willamette Valley:
4–D .......
* Other = Ports, local municipalities, and nonprofit conservation organizations.
entirely in Thurston County,
Washington.
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We present brief descriptions of all
units, and reasons why they meet the
definition of critical habitat for the
Taylor’s checkerspot butterfly, below.
Unit 1: South Sound—Taylor’s
Checkerspot Butterfly
The South Sound Unit consists of
1,143 acres (462 ha) of land designated
for the Taylor’s checkerspot butterflies
in five subunits. This unit is found
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Subunit Descriptions
1–A Rocky Prairie—(Thurston
County, Washington). The Rocky Prairie
critical habitat subunit is composed of
two disjunct habitat patches comprising
a total of 43 ac (17 ha). The first patch
is a linear strip of prairie under private
ownership. It is approximately 15 ac (6
ha) in size and bounded on the north by
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residential homes, on the east by the
Burlington Northern railroad line, the
south by forest (approximately 443 ft
(135 m) north of where the Burlington
Northern rail line intersects Old Hwy
99), and on the west by the Washington
Department of Natural Resources Rocky
Prairie Natural Area Preserve (NAP).
The second prairie patch of this subunit
is 29 ac (12 ha) of property owned by
a conservation organization known as
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Wolf Haven International. It is located
southeast of the Burlington Northern
habitat patch. Wolf Haven is bounded
on the north by Offut Lake Road, and
bounded by a service road in all but the
extreme northeastern corner of the
property. The landscape on the east,
west, and south boundaries of the
prairie at Wolf Haven is delineated by
mixed Garry oak and conifer forest
(east), or conifer forest (west and south).
Both habitat patches within this subunit
are unoccupied at the time of listing.
This subunit is within a matrix of
historically occupied patches from
which Taylor’s checkerspot butterfly
has been completely extirpated. We
have determined this subunit is
essential for the conservation of the
Taylor’s checkerspot butterfly because it
has the potential for restoration of the
physical or biological features sufficient
to enable the reintroduction of Taylor’s
checkerspot butterfly. In addition,
although currently unoccupied, this
area presently provides many of the
essential features to support long-term
conservation and recovery of the
Taylor’s checkerspot butterfly. The
subunit is composed of grasslands and
includes oak woodland margins, and
some transitional, colonization (first
growth) Douglas-fir forest within the
greater prairie landscape. Several PCEs,
including landscape heterogeneity and
diverse and abundant larval and adult
plants resources, are present.
1–B Tenalquot Prairie—(Thurston
County, Washington). The Tenalquot
Prairie subunit is a privately owned
conservation area of approximately 135
ac (55 ha) in size and part of the larger,
historically contiguous Tenalquot
Prairie, the majority of which occurs on
JBLM. The northern boundary of this
subunit is a fenceline boundary, which
separates South Weir prairie on JBLM
from the adjacent private land. The
western boundary of this subunit is a
large pasture clearly delineated by a
fence line, and it is bordered on the
southeast by Military Road. This
subunit is unoccupied at the time of
listing.
We have determined this subunit is
essential for the conservation of the
Taylor’s checkerspot butterfly because it
would provide for the reintroduction
and reestablishment of Taylor’s
checkerspot butterfly. Although
currently unoccupied, this area
presently provides many of the physical
or biological features necessary to
support the long-term conservation and
recovery of Taylor’s checkerspot
butterfly and has the potential to serve
as metapopulation center within a larger
prairie landscape context (∼2,000 ac
(810 ha) in the south region of Thurston
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County. The physical or biological
features present at this site include
landscape heterogeneity, bare ground
for basking, and diverse and abundant
larval and adult plant resources. This
subunit is periodically managed using
prescribed burning as well as with
mechanical methods to remove Scot’s
broom (Cytisus scoparius) and to sustain
early seral conditions.
1–C Glacial Heritage—(Thurston
County, Washington). Glacial Heritage is
a large, County-owned property
managed with conservation, research,
and education as its primary objectives.
The property consists of more than
1,200 acres, with approximately 545 ac
(220 ha) designated as critical habitat.
The northwestern boundary is an
abandoned railroad line, and to the
direct north are rural residential
properties; the eastern boundary of the
preserve is the Black River, and the
southern boundary is owned by two
private landowners: one is a large
industrial tree farm where conifer
seedlings are grown, and the other is
dominated by pasture grown for haying.
The southern border is clearly defined
by the land use change along the
fenceline. This subunit is occupied at
the time of listing, and provides the
essential physical or biological features
for the Taylor’s checkerspot butterfly,
including diverse topography, abundant
and diverse larval and adult nectar plant
resources, a water course, and areas of
bare ground for basking due to ongoing,
active management.
Threats to the physical or biological
features that are essential to the
conservation of this species and may
warrant special management
considerations or protections include,
but are not limited to, the inadvertent
short-term negative impacts of
restoration activities, such as burning,
mowing, and the use of herbicides;
control of native and nonnative invasive
woody species such as Scot’s broom and
Douglas fir (Pseudotsuga menziesii), as
well as control of invasive
Mediterranean grasses; habitat
modifications brought on by succession
of vegetation from the lack of
disturbance, at a small and large scale;
disease affecting larval host plants; and
the effects of climate change. Special
management considerations may be
required to provide protection to larval
and adult food resources by reducing
human disturbance during the flight
season, and when eggs and early instar
larvae are present.
1–D Rock Prairie—(Thurston County,
Washington). We are designating
approximately 244 ac (99 ha) of critical
habitat on the northern portion of Rock
Prairie, a large, privately owned
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property in south Thurston County. The
subunit has diverse landscape features
with mounded prairie, old field pasture,
oak woodland, and conifer forest. The
northern boundary is delineated by
dense conifer forests, the southern
border is State Highway 99 (referred to
as old 99), the western boundary is
clearly delineated by rural residential
lots, and the eastern border is the urban
growth boundary for the town of
Tenino, Washington. This subunit is
unoccupied at the time of listing.
This historically occupied subunit is
essential for the conservation of the
Taylor’s checkerspot butterfly as it
presently provides many of the features
necessary to support long-term
conservation and recovery of the
Taylor’s checkerspot butterfly. These
include diverse topography with swales
and terraces, abundant and diverse
larval and adult food resources, and a
location close to a water course formed
by Scatter Creek.
1–E Bald Hill—(Thurston County,
Washington). The Bald Hill subunit is a
collection of balds (shallow-soil areas
without typical conifer vegetation) and
former clearcut areas that have not
regenerated and now maintain features
of open habitat that produce larval and
adult food resources that can be utilized
by the Taylor’s checkerspot butterfly.
All independent, isolated habitat
patches are surrounded by conifer
forests on all sides. Some patches are
bordered by WDNR roads, and others
are bordered by private roads used for
fire control and to access the forested
property. The Bald Hill subunit
comprises a total of 176 ac (71 ha)
(rounded up). The western habitat patch
of this subunit is approximately 110 ac
(45 ha), and the eastern patch is
approximately 65 ac (26 ha); both are
unoccupied at the time of listing.
The Taylor’s checkerspot butterfly
was recently extirpated from this
historically occupied subunit. We have
determined it is essential for the
conservation of the Taylor’s checkerspot
butterfly because it has the potential to
provide for the reintroduction and
reestablishment of Taylor’s checkerspot
butterfly and to support recovery of the
subspecies. This area presently contains
many of the features to support longterm conservation and recovery of the
Taylor’s checkerspot butterfly,
including a diverse topography of balds,
steep slopes, canyons, oak glades, a rich
diversity of larval and adult food
resources, and patches of bare soil for
basking and resting. This particular
critical habitat subunit is unique in that
it provides the only bald habitat for
Taylor’s checkerspot butterfly at low
elevation within Thurston County.
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Unit 2: Strait of Juan de Fuca—Taylor’s
Checkerspot Butterfly
The Strait of Juan de Fuca Unit is
composed of 779 acres (315 ha) made up
of balds, former clearcuts, coastal bluffs,
coastal back dunes, and prairie in five
subunits located in Clallam County and
Island County, Washington.
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Subunit descriptions
2–A Deception Pass State Park—
(Island County, Washington). Deception
Pass State Park is owned and managed
by Washington State Parks. The subunit
contains approximately 149 ac (60 ha) of
designated critical habitat found along
low-lying beaches (coastal dunes) and
on balds along high, south-facing slopes
within the park. These areas include the
shoreline along Bowman Bay, Bowman
Hill and Beach, Reservation Head, Pass
Island, Goose Rock, and West Beach, all
within the park. Deception Pass State
Park is divided by Highway State 20,
and bordered by the portion of Puget
Sound that forms Deception Pass to the
north, and to the south by private rural
residential properties. This park was
historically occupied by Taylor’s
checkerspot butterfly, but at this time
the subunit is unoccupied.
We have determined this subunit is
essential for the conservation of the
subspecies because it has the potential
for reintroduction and reestablishment
of the Taylor’s checkerspot butterfly to
support recovery. In addition, although
currently unoccupied, this area
presently provides many of the features
to support a reintroduced population of
Taylor’s checkerspot butterfly,
including diverse topography with balds
and beaches, abundant larval and adult
food resources, areas of bare soil for
basking of larvae and adults, and water
sources made up of saltwater along the
western shoreline and a freshwater
wetland.
2–B Central Whidbey—(Island
County, Washington). This subunit is
located on Whidbey Island in
Washington, and comprises a total of
229 ac (92 ha), and includes Ebey’s
Landing (∼87 ac (35 ha)), the NaasAdmiralty Inlet Conservation Area (∼8
ac (3 ha)), and the former Smith Prairie
(∼134 ac (54 ha)). The Central Whidbey
subunit is made up of two distinct
patches: one is located along the centralwest coast on coastal bluffs of the island
(Ebey), and the second (Smith Prairie) is
located on relatively flat prairie located
centrally-north on the island. The
coastal area is bordered by Puget Sound
to the west, and rural residential
property and farmland to the east. The
Smith Prairie is surrounded by rural
residential properties on all sides;
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Parker Road runs along the western
border of the property, and Morse Road
is found along the south boundary. This
subunit was historically occupied but is
currently unoccupied.
We have determined this subunit is
essential for the conservation of the
subspecies because it has the potential
for reintroduction and reestablishment
of Taylor’s checkerspot butterfly to
support recovery. In addition, although
currently unoccupied, this area
presently provides many of the features
to support a reintroduced population of
Taylor’s checkerspot butterfly,
including diverse topography with
coastal bluffs and beaches, abundant
larval and adult food resources, areas of
bare soil, and water sources made up of
a freshwater wetland, and saltwater
along the western shoreline.
2–C Elwha—(Clallam County,
Washington). The Elwha critical habitat
subunit is composed of private lands in
Clallam County made up of balds, and
former clear cut areas within a
landscape of conifer forests. The subunit
polygons adjoin occupied patches
owned and managed by the WDNR, one
is owned and managed by a
nongovernmental conservation
organization, the Center for Natural
Lands Management, and the other small
parcel is owned by a private timber
company. These two patches are found
primarily on the south slope of Dan
Kelly Ridge, and they are separated by
essential habitat owned by WDNR that
has been excluded due to an HCP
providing for species-specific habitat
management.
The habitat patches at both locations
are bounded by conifer forests. The
balds at each of these locations are
presently occupied by the Taylor’s
checkerspot butterfly, which has been
observed flying up and down the steep
slopes and onto private lands. Both of
these locations contain essential
physical or biological features,
including topographic heterogeneity,
abundant and diverse larval and adult
food resources, and bare soil for basking
and resting. Puddles on the road
provide a water source during the adult
flight season.
Threats to the physical or biological
features that are essential to the
conservation of this species and may
warrant special management
considerations or protections include,
but are not limited to, development; the
inadvertent short-term negative impacts
of restoration activities, such as control
of native and nonnative, invasive,
woody species such as Scot’s broom,
snowberry (Symphoricarpos albus), and
Douglas fir; the use of herbicides;
habitat modifications brought on by
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succession of vegetation from lack of
disturbance, at a small and large scale;
disease affecting larval host plants; and
the effects of climate change. The
physical or biological features essential
to the conservation of the species may
require special management
considerations or protection to sustain
the open conditions that are needed to
manage for and sustain the larval and
adult food resources. Special
management considerations may be
required to provide protection to larval
and adult food resources by reducing
human disturbance during the flight
season, and when eggs and early instar
larvae are present.
2–D Sequim—(Clallam County,
Washington). Sequim is a private
property estate and farm of low-lying
stabilized dune habitat of approximately
151 ac (61 ha). The subunit includes
stabilized dunes and beach habitat
adjacent to the Strait of Juan de Fuca; it
is approximately 20 ft (6 m) above sea
level. The landowner has been working
cooperatively with the WDFW to
manage their property for multiple uses,
including the conservation of Taylor’s
checkerspot butterfly. The subunit is
occupied at the time of listing.
The Sequim subunit contains several
essential physical or biological features,
including landscape heterogeneity with
fore and back dune areas and terraces;
rich and abundant larval and adult food
resources; a marsh; and bare soil for
basking and resting.
Threats to the physical or biological
features that are essential to the
conservation of this species and may
warrant special management
considerations or protections include,
but are not limited to, development; the
inadvertent short-term negative impacts
of restoration activities; habitat
modifications brought on by succession
of vegetation from lack of disturbance,
at a small and large scale; disease
affecting larval host plants; and the
effects of climate change. The physical
or biological features essential to the
conservation of the species may require
special management considerations or
protection to sustain the open
conditions that are needed to manage
for and sustain the larval and adult food
resources. Special management
considerations may be required to
provide protection to larval and adult
food resources by reducing human
disturbance during the flight season,
and when eggs and early instar larvae
are present.
2–E Dungeness—(Clallam County,
Washington). The Dungeness subunit is
found entirely on U.S. Forest Service
(USFS) land on the northeast Olympic
Peninsula. This subunit comprises a
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total of 160 ac (65 ha) and is composed
of bald habitat, and former clearcuts that
function similarly to balds. The three
occupied areas within this subunit and
are known as Bear Mountain (low
elevation), 3 O’Clock Ridge (middle
elevation) (which is composed of two
habitat patches), and the upper
Dungeness (highest elevation). These
locations on USFS lands are the highest
elevations known to be occupied by
Taylor’s checkerspot butterflies. The
Bear Mountain location is entirely
surrounded by conifer forests and
originated as a small harvest unit that
functions similar to a bald. 3 O’Clock
ridge is bounded by the upper
Dungeness Road on the northwest
boundary, Cougar Creek to the
northeast, Bungalow creek to the
southwest, and conifer forests to the
southeast of the occupied unit. Upper
Dungeness is bounded by an unnamed
creek to the northeast and Mueller Creek
to the southwest, and by conifer forests
to the southeast of the occupied unit.
All habitat patches within this subunit
are presently occupied by the Taylor’s
checkerspot butterfly.
The subunit contains several essential
physical or biological features,
including landscape heterogeneity,
abundant larval and adult food
resources, nearby streams, and plentiful
areas of bare ground for basking and
resting. Early restoration work
conducted by USFS has included tree
harvesting and removal, which has
resulted in the expansion of larval and
adult food resources in this habitat.
Threats to the physical or biological
features that are essential to the
conservation of this species and may
warrant special management
considerations or protections include,
but are not limited to, the inadvertent
short-term negative impacts of
restoration activities and control of
native and nonnative, woody species;
the use of herbicides that my impact
larval and adult nectar resources;
habitat modification brought on by
succession of vegetation from lack of
disturbance, at a small and large scale;
disease affecting larval host plants; and
the effects of climate change. The
physical or biological features essential
to the conservation of the species may
require special management
considerations or protection to sustain
the open conditions that are needed to
manage for and sustain the larval and
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adult food resources. Special
management considerations may be
required to provide protection to larval
and adult food resources by reducing
human disturbance during the flight
season, and when eggs and early instar
larvae are present.
Unit 4: Willamette Valley—Taylor’s
Checkerspot Butterfly
Unit 4, located in the Willamette
Valley, is the only critical habitat unit
that includes critical habitat for both the
streaked horned lark and Taylor’s
checkerspot butterfly. Unit 4 includes
four subunits in the State of Oregon;
three for the streaked horned lark (4–A,
4–B, and 4–C; described below), and a
single subunit (4–D) for the Taylor’s
checkerspot butterfly in Benton County.
Unit 4–D Fitton Green-Cardwell Hill—
(Benton County, Oregon). Fitton GreenCardwell Hill is located in the eastern
foothills of the Coastal Range on the
western edge of the Willamette Valley.
The habitat is composed of multiple
small natural openings of approximately
3 ac (1 ha) in size within a conifer-oak
forest landscape. These habitat patches
collectively comprise the 20 ac (8 ha)
that constitute Subunit 4–D. The
northern patch of this subunit is a BPA
right-of-way that passes through a large
occupied patch of county-owned habitat
that provides conservation benefit to the
Taylor’s checkerspot butterfly through
the Benton County Prairie Species HCP.
This subunit is currently occupied by
the Taylor’s checkerspot butterfly.
This subunit contains several of the
essential physical or biological features
for the Taylor’s checkerspot butterfly,
including native perennial bunchgrass
plant communities with abundant larval
and adult food resources, landscape
heterogeneity, and bare soil for basking
and resting.
Threats to the physical or biological
features that are essential to the
conservation of this species and may
warrant special management
considerations or protections include,
but are not limited to, the inadvertent
short-term negative impacts of
restoration activities such as control of
native and nonnative, invasive, woody
species and invasive Mediterranean
grasses through mechanical means and
with herbicide; habitat modification due
to succession of vegetation in the
absence of disturbance, at a small and
large scale; impacts of disease on larval
food plants; and climate change. The
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61527
physical or biological features essential
to the conservation of Taylor’s
checkerspot butterfly may require
special management considerations or
protection to sustain short-statured
vegetation structure and to reduce
human disturbance during the flight
season or when eggs and early instar
larvae are present. The physical or
biological features of this site may be
particularly vulnerable to the effects of
recreational use, such as trampling of
vegetation.
Streaked Horned Lark—Units 3 and 4
We are designating as critical habitat
areas that we have determined are
occupied at the time of listing and
contain sufficient elements of physical
or biological features to support lifehistory processes essential to the
conservation of the streaked horned
lark. We are designating two units as
critical habitat for the streaked horned
lark. The critical habitat areas we
describe below constitute our current
best assessment of areas that meet the
definition of critical habitat for the
subspecies. The two units we designate
as critical habitat are: Unit 3—
Washington Coast and Columbia River
(with 13 subunits), and Unit 4—
Willamette Valley (with 3 subunits).
The Washington Coast and Columbia
River Unit (Unit 3) totals 2,900 ac (1,173
ha) and includes 564 ac (228 ha) of
Federal ownership, 2,209 ac (894 ha) of
State-owned lands, and 126 ac (51 ha)
of private lands. The Willamette Valley
Unit (Unit 4) totals 1,729 ac (700 ha)
and is entirely composed of Federal
lands. We are designating a total of
4,629 ac (1,873 ha) of critical habitat for
the streaked horned lark rangewide.
The streaked horned lark has been
documented nesting on all of the
subunits within the last few years, and
all subunits are therefore considered
occupied at the time of listing. All of the
subunits currently have one or more of
the physical or biological features
essential to the conservation of the
streaked horned lark, and which may
require special management
considerations or protection.
The critical habitat areas described
below constitute our best assessment of
areas that meet the definition of critical
habitat for the streaked horned lark. The
approximate area and landownership of
each critical habitat unit and associated
subunit is shown in Table 2.
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TABLE 2—Critical Habitat Units for Streaked Horned Lark. NOTE: AREA SIZES MAY NOT SUM DUE TO ROUNDING. AREA
ESTIMATES REFLECT ALL LAND WITHIN CRITICAL HABITAT UNIT BOUNDARIES
Unit 3: Washington Coast and Columbia River
Islands
Federal
3–A ...............
3–B ...............
3–C ..............
3–D ..............
3–E ...............
3–F ...............
3–G ..............
3–H ..............
3–I ................
3–J ...............
3–K ...............
3–L ...............
3–M ..............
Private
Tribal
Other*
Currently
occupied
Ac (Ha)
Subunit name
State
Ac (Ha)
Ac (Ha)
Ac (Ha)
Ac (Ha)
Y/N
Damon Point ..........................
Midway Beach .......................
Shoalwater Spit .....................
Leadbetter Point ....................
Rice Island .............................
Miller Sands ...........................
Pillar Rock/Jim Crow .............
Welch Island ..........................
Tenasillahe Island .................
Whites/Brown ........................
Wallace Island .......................
Crims Island ..........................
Sandy Island ..........................
0
0
0
564 (228)
0
0
0
0
0
0
0
0
0
456 (185)
611 (247)
377 (152)
101 (41)
224 (91)
123 (50)
44 (18)
43 (18)
23 (9)
98 (39)
13 (5)
60 (24)
37 (15)
24 (10)
0
102 (41)
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Y
Y
Y
Y
Y
Y
Y
Y
Y
Y
Y
Y
Y
Unit 3 Totals ..........................
564 (228)
2,209 (894)
126 (51)
0
0
Baskett Slough NWR ............
Ankeny NWR .........................
William L Finley NWR ...........
1,006 (407)
264 (107)
459 (186)
0
0
0
0
0
0
0
0
0
0
0
0
Y
Y
Y
Unit 4 Totals ..........................
Grand Total—all Units ...........
1,729 (700)
2,293 (928)
0
2,209 (894)
0
126 (51)
0
0
0
0
Y
....................
GRAND TOTAL OF ALL
UNITS, ALL OWNERSHIP.
........................
........................
4,629 (1,873)
....................
....................
....................
Unit 4: Willamette Valley:
4–A ...............
4–B ...............
4–C ..............
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* Other = Ports, local municipalities, and nonprofit conservation organizations.
Unit 3: Washington Coast and Columbia
River—Streaked Horned Lark
On the Washington coastal sites, the
streaked horned lark occurs on sandy
beaches and breeds in the sparsely
vegetated, low dune habitats of the
upper beach. We are designating four
subunits (Subunits 3–A, 3–B, 3–C, and
3–D) and a total of 2,235 ac (904 ha) as
critical habitat on the Washington coast.
The coastal sites are owned and
managed by Federal, State, and private
entities. The physical or biological
features essential to the conservation of
the streaked horned lark may require
special management considerations or
protection to reduce human disturbance
during the nesting season, and the
continued encroachment of invasive,
nonnative plants requires special
management to restore or retain the
open habitat preferred by the streaked
horned lark. Subunits 3–A, 3–B, 3–C,
and 3–D overlap areas that are
designated as critical habitat for the
western snowy plover. The snowy
plover nesting areas are posted and
monitored during the spring and
summer to keep recreational beach users
away from the nesting areas; these
management actions also benefit the
streaked horned lark.
In the lower Columbia River, we are
designating nine island subunits
(Subunits 3–E through 3–M) for a total
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of 665 ac (269 ha). The island subunits
are owned by the States of Oregon and
Washington. On the Columbia River
island sites, only a small portion of each
island is designated as critical habitat
for the streaked horned lark; most of the
areas mapped are used by the Corps for
dredge material deposition in its
channel maintenance program. Within
any deposition site, only a portion is
likely to be used by the streaked horned
lark in any year, as the area of habitat
shifts within the deposition site over
time as new materials are deposited and
as older deposition sites become too
heavily vegetated for use by streaked
horned larks. All of the island subunits
are small, but are adjacent to open
water, which provides the open
landscape context needed by streaked
horned larks.
The main threats to the essential
features in the critical habitat subunits
designated on the Columbia River
islands are invasive vegetation and
direct impacts associated with
deposition of dredge material onto
streaked horned lark nests during the
nesting season. In all subunits, the
physical or biological features essential
to the conservation of each subspecies
may require special management
considerations or protection to manage,
protect, and maintain the PCEs
supported by the subunits. For those
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threats that are common to all subunits,
special management considerations or
protections may be required to address
direct or indirect habitat loss due to the
location and timing of dredge material
placement to areas that have become
unsuitable for streaked horned lark
nesting and wintering habitat.
Subunit 3–A: Damon Point—(Grays
Harbor County, Washington). This
critical habitat subunit is about 481 ac
(194 ha) in size; of this, 456 ac (185 ha)
are owned by the State, and 24 ac (10
ha) are under private ownership. It
extends from the Ocean Shores
wastewater treatment plant on the
western edge through the Oyhut wildlife
management unit and Damon Point spit
(also called Protection Island). The vast
majority of this area (∼95 percent) is
managed by the State of Washington
(WDFW, WDNR, and Washington State
Parks). This subunit is currently
occupied and provides the physical or
biological features essential to the
conservation of the subspecies. The site
has both the open landscape context
and sparse, low-growing vegetation that
make up the physical or biological
features essential to the conservation of
the subspecies. Streaked horned larks
currently nest and winter on Damon
Point and have also been documented
nesting along the beach just west of the
treatment plant. The physical or
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biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to reduce
human disturbance during the nesting
season and encroachment by invasive,
nonnative plants that render the habitat
too dense for use by streaked horned
larks.
Subunit 3–B: Midway Beach—(Pacific
County, Washington). This subunit is
about 611 ac (247 ha) in size. The
northern edge of the subunit starts at
Grayland Beach State Park and extends
south to the Warrenton Cannery road.
The landward extent is defined by the
vegetation and ownership line in the
mid-dune area. This site is owned by
the State of Washington (Washington
State Parks and Recreation Department).
This subunit is currently occupied and
provides the physical or biological
features essential to the conservation of
the subspecies. Both open landscape
context and the sparse, low-growing
vegetation that make up the physical or
biological features essential to the
conservation of the subspecies are
present at the site, and Midway Beach
is used by streaked horned larks for both
nesting and wintering. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to reduce
human disturbance during the nesting
season and encroachment by invasive,
nonnative plants that render the habitat
too dense for use by streaked horned
larks.
Subunit 3–C: Shoalwater/Graveyard
Spit—(Pacific County, Washington).
This subunit is about 479 ac (194 ha);
of this, 377 ac (152 ha) are owned by the
State, and 102 ac (41 ha) are under
private ownership. The central portion
of the subunit (182 ac; 74 ha) is within
the Shoalwater Bay Indian Reservation
and has been excluded under section
4(b)(2) (see Exclusions), dividing the
subunit into northwest and southeast
sections. Streaked horned larks have
been documented off and on at this site
during the breeding season since 2000.
Although the site has been unoccupied
for the past couple of years, singing
male streaked horned larks were
documented at this site during surveys
in June 2012; therefore, we consider this
site to be currently occupied. As with
the other areas along the Washington
coast, streaked horned larks use this site
for both nesting and wintering. The
subunit is a dynamic area and has a
constantly changing sand spit that
supports the essential features for
nesting and wintering habitat. The
physical or biological features essential
to the conservation of the streaked
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horned lark may require special
management considerations or
protection to reduce human disturbance
during the nesting season and
encroachment by invasive, nonnative
plants that render the habitat too dense
for use by streaked horned larks.
Subunit 3–D: Leadbetter Point—
(Pacific County, Washington). This
subunit contains about 665 ac (269 ha)
at the northern tip of the Long Beach
Peninsula. This subunit is on the
Willapa National Wildlife Refuge and
the Seashore Conservation Area
(managed by Washington State). This
site is occupied and provides the
physical or biological features essential
to the conservation of the subspecies.
Most of the streaked horned larks at this
site nest within the habitat restoration
area and in ponded swales landward of
the restoration area that go dry in the
summer (Ritchie 2012, pers. comm.).
The site has the open landscape context
and sparse, low-growing vegetation that
make up the physical or biological
features essential to the conservation of
the subspecies. The Willapa National
Wildlife Refuge completed its
comprehensive conservation plan in
August 2011, and manages habitat at the
tip of Leadbetter Spit for the western
snowy plover, streaked horned lark, and
other native coastal species. These
management activities are compatible
with streaked horned lark conservation.
As with the other coastal sites,
Leadbetter is used by streaked horned
larks year-round. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Subunit 3–E: Rice Island—(Clatsop
County, Oregon, and Wahkiakum
County, Washington). This subunit is
about 224 ac (91 ha) in size. The island
is located at river mile (RM) 21,
approximately 7 mi (11 km) upstream of
the Astoria-Megler Bridge near the
mouth of the Columbia River. Although
the island is within the planning
boundary of the Julia Butler Hansen
National Wildlife Refuge, Rice Island is
owned by the Oregon Department of
State Lands. A very small portion of the
subunit is in Wahkiakum County and on
Washington State lands. The Corps uses
this site for dredge material disposal as
part of its maintenance of the Columbia
River shipping channel. This subunit is
occupied and provides the features
essential to the conservation of the
subspecies. Streaked horned larks
currently nest and winter on Rice
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Island. The physical or biological
features essential to the conservation of
the streaked horned lark may require
special management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3–F: Miller Sands Spit—
(Clatsop County, Oregon). Miller Sands
Spit is across the shipping channel from
Rice Island at RM 24. The subunit is a
sand spit 2 mi (1.2 km) long and about
123 ac (50 ha) in size on the northern
shore of the island. The subunit is
currently occupied and provides the
physical or biological features essential
to the conservation of the subspecies for
nesting and wintering habitat. The
island is owned by the Oregon
Department of State Lands, but is also
within the planning unit boundary for
the Julia Butler Hansen National
Wildlife Refuge. The Corps uses this site
for dredge material disposal as part of
its maintenance of the Columbia River
shipping channel. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Subunit 3–G: Pillar Rock/Jim Crow
Sands—(Clatsop County, Oregon). This
island is located at about RM 27 on the
Columbia River. The subunit is about 44
ac (18 ha) in size. Pillar Rock is
currently occupied and provides the
physical or biological features essential
to the conservation of the subspecies.
Streaked horned larks nest and winter at
the site. The island is owned by the
Oregon Department of State Lands and
is within the planning unit boundary for
the Julia Butler Hansen National
Wildlife Refuge. The Corps uses this site
for dredge material disposal as part of
its maintenance of the Columbia River
shipping channel. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Subunit 3–H: Welch Island—(Clatsop
County, Oregon). This island is at RM
34 and is owned by the Oregon
Department of State Lands. The critical
habitat subunit is about 43 ac (18 ha) on
the northeastern shore of the island.
This site is currently occupied and
provides the physical or biological
features essential to the conservation of
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the subspecies. The Corps uses this site
for dredge material disposal as part of
its maintenance of the Columbia River
shipping channel. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Subunit 3–I: Tenasillahe Island—
(Columbia County, Oregon). This island
is at RM 38; the subunit is on a small
unnamed spit at the southern tip of
Tenasillahee Island. The subunit is
about 23 ac (9 ha) in size. This site is
currently occupied and provides the
physical or biological features essential
to the conservation of the subspecies.
The site is owned by the Oregon
Department of State Lands. The Corps
uses this site for dredge material
disposal as part of its maintenance of
the Columbia River shipping channel.
The physical or biological features
essential to the conservation of the
streaked horned lark may require
special management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3–J: Whites/Brown Island—
(Wahkiakum County, Washington).
Whites/Brown Island is connected to
the southern end of Puget Island at RM
46 and is owned by WDFW. The subunit
is a small spit at the southern end of
Whites/Brown Island and is about 98 ac
(39 ha) in size. The site is used by the
Corps for dredge material disposal as
part of its maintenance of the Columbia
River shipping channel. This site is
currently occupied and provides the
physical or biological features essential
to the conservation of the subspecies.
Whites/Brown Island supports one of
the largest populations of streaked
horned larks in the lower Columbia
River islands. The physical or biological
features essential to the conservation of
the streaked horned lark may require
special management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3–K: Wallace Island—
(Columbia County, Oregon). Wallace
Island is located across the channel
from Whites/Brown Island at RM 47.
Streaked horned larks were detected at
the site in 2012, which is about 13 ac
(5 ha) in size; therefore we consider the
subunit presently occupied. The area is
owned by the Oregon Department of
State Lands. This site is not a dredge
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material disposal site. This subunit
currently contains the physical or
biological features essential to the
conservation of the species, but may
require special management to maintain
the low vegetative structure required by
streaked horned larks.
Subunit 3–L: Crims Island—
(Columbia County, Oregon). This island
is located upstream of Wallace Island at
RM 57. The subunit is about 60 ac (24
ha) in size. The subunit is currently
occupied and provides the physical or
biological features essential to the
conservation of the subspecies. The area
is owned by the Oregon Department of
State Lands, but is also within the
planning unit boundary for the Julia
Butler Hansen National Wildlife Refuge.
Crims Island is an approved Corps
dredge material disposal site. The
physical or biological features essential
to the conservation of the streaked
horned lark may require special
management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3–M: Sandy Island—
(Columbia County, Oregon). This island,
at RM 76, is the island farthest upstream
that is known to be used by streaked
horned lark for nesting. The subunit is
about 37 ac (15 ha) in size on the
southern end of Sandy Island and is
owned by the Oregon Department of
State Lands. This subunit is currently
occupied and provides the physical or
biological features essential to the
conservation of the subspecies. The
Corps uses this site for dredge material
disposal as part of its maintenance of
the Columbia River shipping channel.
The physical or biological features
essential to the conservation of the
streaked horned lark may require
special management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Unit 4: Willamette Valley—Streaked
Horned Lark
Unit 4 (Willamette Valley) includes
critical habitat subunits for both the
Taylor’s checkerspot butterfly and
streaked horned lark, all in the State of
Oregon. We are designating three
subunits for the streaked horned lark in
the Willamette Valley, all on the
Willamette Valley National Wildlife
Refuge Complex. The total acreage is
1,729 ac (700 ha). All of the subunits are
occupied at the time of listing and
contain the physical or biological
features essential to the conservation of
the subspecies that may require special
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management considerations or
protection. These subunits are managed
mainly to provide forage for wintering
dusky Canada geese, and this
management is compatible with
maintaining the essential features for
the streaked horned lark. The refuge
complex has incorporated management
for streaked horned lark into its recently
completed comprehensive conservation
plan, and streaked horned lark habitat
conservation is being implemented in
the refuge units.
Subunit 4–A: Baskett Slough National
Wildlife Refuge—(Polk County, Oregon).
There are two parts to this critical
habitat subunit, the area of which totals
1,006 ac (407 ha). Subunit 4–A North is
181 ac (73 ha) and is in the North
Morgan Reservoir area of the refuge.
Subunit 4–A South is 825 ac (334 ha)
and is the South Baskett Slough
Agricultural area of the refuge; State
Route 22 forms the southeast boundary
of the south subunit. Both of the
subunits are agricultural fields that are
heavily grazed by dusky Canada geese
in the winter. This subunit is currently
occupied and contains the physical or
biological features essential to the
conservation of the subspecies. Baskett
Slough National Wildlife Refuge has
large areas of agricultural lands and
restored native prairies, which provide
the landscape context and vegetation
structure required by streaked horned
larks. The refuge manages primarily for
wintering dusky Canada geese, which
also provides suitable management for
streaked horned larks. This subunit is
consistently used by streaked horned
larks in the breeding season. The
physical or biological features essential
to the conservation of the streaked
horned lark may require special
management considerations or
protection to maintain the early seral
vegetation required by the subspecies
and to minimize nest destruction and
disturbance during the breeding season.
Subunit 4–B: Ankeny National
Wildlife Refuge—(Marion County,
Oregon). This site is in the middle of the
Ankeny Refuge, in the Field 6 Complex;
the northeast boundary of the subunit is
formed by the Sydney Ditch. The
critical habitat subunit is 264 ac (107
ha). The site is composed of agricultural
fields that are heavily grazed by dusky
Canada geese in the winter. The subunit
is currently occupied and has consistent
use by streaked horned larks in the
breeding season. This subunit contains
all of the physical or biological features
essential to the conservation of the
subspecies. Ankeny National Wildlife
Refuge has both agricultural lands and
restored native prairies, which provide
the landscape context and vegetation
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structure required by streaked horned
larks. The refuge manages primarily for
wintering dusky Canada geese, which
also provides suitable management for
streaked horned larks. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Subunit 4–C: William L. Finley
National Wildlife Refuge—(Benton
County, Oregon). This critical habitat
subunit is on Fields 11 and 12 in the
South Finley Agricultural Lands area of
the refuge; Bruce Road bisects the
subunit, and McFarland Road forms the
southern boundary of the site. The
subunit is 459 ac (186 ha) in size. This
subunit is currently occupied and
contains the physical or biological
features essential to the conservation of
the subspecies. The site is composed of
agricultural fields that are heavily
grazed by dusky Canada geese in the
winter, and it has consistent use by
streaked horned larks in the breeding
season; streaked horned larks also
winter at the refuge. Finley National
Wildlife Refuge has large areas of
agricultural lands and restored native
prairies, which provide the landscape
context and vegetation structure
required by streaked horned larks. The
refuge manages primarily for wintering
dusky Canada geese, which also
provides suitable management for
streaked horned larks. The physical or
biological features essential to the
conservation of the streaked horned lark
may require special management
considerations or protection to maintain
the early seral vegetation required by
the subspecies and to minimize nest
destruction and disturbance during the
breeding season.
Effects of Critical Habitat Designation
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Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they fund,
authorize, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action which
is likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
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destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit
Courts of Appeals have invalidated our
regulatory definition of ‘‘destruction or
adverse modification’’ (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d
1059 (9th Cir. 2004) and Sierra Club v.
U.S. Fish and Wildlife Service et al., 245
F.3d 434, 442 (5th Cir. 2001)), and we
do not rely on this regulatory definition
when analyzing whether an action is
likely to destroy or adversely modify
critical habitat. Under the statutory
provisions of the Act, we determine
destruction or adverse modification on
the basis of whether, with
implementation of the proposed Federal
action, the affected critical habitat
would continue to serve its intended
conservation role for the species.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of actions that are
subject to the section 7 consultation
process are actions on State, tribal,
local, or private lands that require a
Federal permit (such as a permit from
the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act (33
U.S.C. 1251 et seq.) or a permit from the
Service under section 10 of the Act) or
that involve some other Federal action
(such as funding from the Federal
Highway Administration, Federal
Aviation Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat, and actions
on State, tribal, local, or private lands
that are not federally funded or
authorized, do not require section 7
consultation.
As a result of section 7 consultation,
we document compliance with the
requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
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61531
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Director’s opinion,
avoid the likelihood of jeopardizing the
continued existence of the listed species
and/or avoid the likelihood of
destroying or adversely modifying
critical habitat.
Reasonable and prudent alternatives
can vary from slight project
modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require
Federal agencies to reinitiate
consultation on previously reviewed
actions in instances where we have
listed a new species or subsequently
designated critical habitat that may be
affected and the Federal agency has
retained discretionary involvement or
control over the action (or the agency’s
discretionary involvement or control is
authorized by law). Consequently,
Federal agencies sometimes may need to
request reinitiation of consultation with
us on actions for which formal
consultation has been completed, if
those actions with discretionary
involvement or control may affect
subsequently listed species or
designated critical habitat.
Application of the ‘‘Adverse
Modification’’ Standard
The key factor related to the adverse
modification determination is whether,
with implementation of the proposed
Federal action, the affected critical
habitat would continue to serve its
intended conservation role for the
species. Activities that may destroy or
adversely modify critical habitat are
those that alter the physical or
biological features to an extent that
appreciably reduces the conservation
value of critical habitat for the Taylor’s
checkerspot butterfly or the streaked
horned lark. As discussed above, the
role of critical habitat is to support lifehistory needs of the species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
destroy or adversely modify such
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habitat, or that may be affected by such
designation.
Activities that may affect critical
habitat, when carried out, funded, or
authorized by a Federal agency, should
result in consultation for the Taylor’s
checkerspot butterfly or streaked horned
lark. These activities include, but are
not limited to:
(1) Actions that restore, alter, or
degrade habitat features through
development, agricultural activities,
burning, mowing, herbicide use or other
means in suitable habitat for the
Taylor’s checkerspot butterfly or the
streaked horned lark.
(2) Actions that would alter the
physical or biological features of critical
habitat including modification of the
composition and structure of vegetation
in suitable habitat for the Taylor’s
checkerspot butterfly or the streaked
horned lark. Such activities could
include, but are not limited to,
construction, grading or other
development, mowing, conversion of
habitat, or use of herbicides to remove
vegetation (recreational use, off-road
vehicles on Federal, State, private, or
Tribal lands). These activities may affect
the physical or biological features of
critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark, by removing sources of
food, shelter, nesting or oviposition
sites, or otherwise impacting habitat
essential for completion of life history.
(3) Actions that would reduce the
open landscape context required by the
streaked horned lark, such as
construction of buildings or planting tall
trees adjacent to a suitable site.
(4) Deposition of dredge materials on
occupied streaked horned lark habitats
during the breeding season.
(5) Installation of shoreline
stabilization structures or modification
of beaches and open shorelines where
occupied by the streaked horned lark or
where critical habitat occurs for the
streaked horned lark.
Exemptions
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Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of
1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that
includes land and water suitable for the
conservation and management of
natural resources to complete an
integrated natural resources
management plan (INRMP) by
November 17, 2001. An INRMP
integrates implementation of the
military mission of the installation with
stewardship of the natural resources
found on the base. Each INRMP
includes:
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(1) An assessment of the ecological
needs on the installation, including the
need to provide for the conservation of
listed species;
(2) A statement of goals and priorities;
(3) A detailed description of
management actions to be implemented
to provide for these ecological needs;
and
(4) A monitoring and adaptive
management plan.
Among other things, each INRMP
must, to the extent appropriate and
applicable, provide for fish and wildlife
management; fish and wildlife habitat
enhancement or modification; wetland
protection, enhancement, and
restoration where necessary to support
fish and wildlife; and enforcement of
applicable natural resource laws.
The National Defense Authorization
Act for Fiscal Year 2004 (Pub. L. 108–
136) amended the Act to limit areas
eligible for designation as critical
habitat. Specifically, section 4(a)(3)(B)(i)
of the Act (16 U.S.C. 1533(a)(3)(B)(i))
now provides: ‘‘The Secretary shall not
designate as critical habitat any lands or
other geographical areas owned or
controlled by the Department of
Defense, or designated for its use, that
are subject to an integrated natural
resources management plan prepared
under section 101 of the Sikes Act (16
U.S.C. 670a), if the Secretary determines
in writing that such plan provides a
benefit to the species for which critical
habitat is proposed for designation.’’
We consult with the military on the
development and implementation of
INRMPs for installations with listed
species. We analyzed INRMPs
developed by military installations
located within the range of the critical
habitat designation for the Taylor’s
checkerspot butterfly and streaked
horned lark to determine if they meet
the criteria for exemption from critical
habitat under section 4(a)(3) of the Act.
The following areas are Department of
Defense lands with completed, Serviceapproved INRMPs within the critical
habitat designation.
Approved INRMPs
U.S. Army Joint Base LewisMcChord—JBLM, formerly known as
Fort Lewis, is an 86,500-ac (35,000-ha)
U.S. Army military reservation in
western Washington, south of Tacoma
and east of the Puget Sound. JBLM
contains some of the largest remaining
intact prairies in the south Puget Sound
basin, with approximately 20,352 ac
(8,236 ha) of prairies, one of the rarest
ecosystems in the United States, which
also supports both the Taylor’s
checkerspot butterfly and streaked
horned lark. Since 2003, JBLM has
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managed the prairies located on the base
according to their Prairie Management
Plan, which was collaboratively
prepared by Robert Altman of the
American Bird Conservancy (ABC), the
Environmental and Natural Resources
Division of JBLM’s Wildlife Branch, and
The Nature Conservancy (TNC) of
Washington. The prairies found on
JBLM are currently managed by JBLM’s
Fish and Wildlife Program and the
primary mission for the JBLM prairies is
to provide an open environment for
military training. JBLM has a history of
applying an ecosystem management
strategy to their prairies to provide for
multiple conservation goals, which have
included promoting native biological
diversity, maintaining and restoring
unique plant communities, and
providing habitat for several rare prairie
species. There are 2,324 ac (941 ha) of
lands within the boundary of JBLM that
were identified in the proposed critical
habitat designation for the Taylor’s
checkerspot butterfly; these lands
included all of subunits 1–A, 1–B, 1–C,
and 1–E in the proposed rule (77 FR
61937; October 11, 2012). JBLM has the
largest naturally occurring population of
the Taylor’s checkerspot butterfly
anywhere in its range. This significant
Federal landholding provides the largest
contiguous block of prairie in
Washington as well.
JBLM has an INRMP in place that was
approved in 2006, which JBLM is in the
process of updating. In 2012, JBLM
amended their existing INRMP with
specific regard to the Taylor’s
checkerspot butterfly by completing an
ESMP that includes guidelines for
protecting, maintaining, and enhancing
habitat essential to support the Taylor’s
checkerspot butterfly on JBLM. The
Service has found, in writing, that the
ESMP under the JBLM INRMP provides
a conservation benefit to the Taylor’s
checkerspot butterfly.
JBLM’s ESMPs identify management
objectives for the conservation of
Taylor’s checkerspot butterfly and
streaked horned lark. For the Taylor’s
checkerspot butterfly, the ESMP
specifically includes nine proposed
‘‘priority habitat’’ focus areas on JBLM
for management of the Taylor’s
checkerspot butterfly and its associated
habitat. The management objective is to
improve the populations of Taylor’s
checkerspot butterflies both on and off
JBLM. JBLM’s Fish and Wildlife
Program proposes several management
objectives to attain this goal: (1) They
will coordinate with the Service and
WDFW on increasing the number of
populations and expand their
distribution on and off the base; (2) the
JBLM Fish and Wildlife Program will
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monitor occupied Taylor’s checkerspot
butterfly populations to detect habitat
degradation, weather, and climate
factors that influence populations
dynamics; and (3) they will evaluate the
efficacy of their ESMP, and adapt their
management if required. JBLM has also
committed to restore and sustain
priority habitat areas through a number
of management efforts. This will be
accomplished by controlling invasive,
nonnative plant species and
encroaching conifers, and as land is
cleared they will replant with the larval
host and adult nectar plants for Taylor’s
checkerspot butterfly. Restoration
actions to enhance and maintain
suitable habitat conditions includes
ecological prescribed burning, mowing,
application of herbicides where needed,
girdling of encroaching conifers, manual
removal, and biological control using
integrated pest management. Another
objective is to purchase lands off JBLM
for the express purpose of managing the
locations for Taylor’s checkerspot
butterfly habitat and translocation. To
date, over 4,000 ac (1,620 ha) have been
acquired using Area Compatible Use
Buffer (ACUB) program funding.
There are 2,813 ac (1,138 ha) of lands
within the boundary of JBLM that were
identified in the proposed critical
habitat designation for the streaked
horned lark; these lands included all of
subunits 1–B, 1–C, 1–D, and 1–E in the
proposed rule (77 FR 61937; October 11,
2012). The ESMP for the streaked
horned lark identifies management
objectives that are applied in specific
locations on JBLM where this
subspecies nests, including McChord
Airfield, Gray Army Airfield, 13th
Division Prairie (Training Area 14), and
the eastern portion of the 91st Division
Prairie. The management objectives that
are applied for the protection of
streaked horned larks include: (1)
Scheduled mowing regimes to minimize
impacts to streaked horned lark at the
military airfields during the nesting
season. The mowing restrictions are
done in coordination with the FAA to
meet airport safety requirements for
vegetation management; (2) limiting offroad vehicle use in areas where streaked
horned larks are nesting; (3) annual
surveys for streaked horned larks in
coordination with the CNLM and the
WDFW at all of the known occupied
sites. Protection buffers will be applied
around the nesting areas at 13th
Division Prairie and all training
activities will be seasonally restricted in
61533
these areas; and (4) evaluating the
efficacy of their ESMP, and adapt their
management if required. As described
above, JBLM maintains and restores the
prairie areas on base, including areas
used by the streaked horned lark. The
Service has found, in writing, that the
ESMP under the JBLM INRMP provides
a conservation benefit to the streaked
horned lark.
Based on the above considerations,
and in accordance with section
4(a)(3)(B)(i) of the Act, we have
determined that the identified
Department of Defense lands are subject
to the JBLM INRMP and that
conservation efforts identified in the
ESMPs under the INRMP will provide a
conservation benefit to the Taylor’s
checkerspot butterfly and streaked
horned lark. Therefore, lands within
this installation are exempt from critical
habitat designation under section 4(a)(3)
of the Act. We are not including
approximately 2,324 ac (941 ha) of
habitat for the Taylor’s checkerspot
butterfly and 2,813 ac (1,138 ha) for the
streaked horned lark in this final critical
habitat designation because of this
exemption. The lands exempted under
section 4(a)(3) are identified in Tables 3
and 4.
TABLE 3—AREAS EXEMPTED FROM THE DESIGNATION OF CRITICAL HABITAT FOR THE TAYLOR’S CHECKERSPOT
BUTTERFLY UNDER SECTION 4(a)(3) OF THE ACT BY CRITICAL HABITAT UNIT
Unit
1
1
1
1
Areas meeting the definition of critical habitat in
acres (hectares)
Specific area
Areas exempted in
acres (hectares)
............................................
............................................
............................................
............................................
TA7S ....................................................................................
91st Division Prairie .............................................................
13th Division Prairie .............................................................
Tenalquot Prairie ..................................................................
78 (32)
1,377 (557)
647 (262)
222 (90)
78 (32)
1,377 (557)
647 (262)
222 (90)
Total ...............................
...............................................................................................
2,324 (941)
2,324 (941)
TABLE 4—AREAS EXEMPTED FROM THE DESIGNATION OF CRITICAL HABITAT FOR THE STREAKED HORNED LARK UNDER
SECTION 4(a)(3) OF THE ACT BY CRITICAL HABITAT UNIT
Unit
1
1
1
1
Areas meeting the definition of critical habitat in
acres (hectares)
Specific area
............................................
............................................
............................................
............................................
McChord Airforce Base ........................................................
Gray Army Airfield ................................................................
91st Division Prairie .............................................................
13th Division Prairie .............................................................
Total ...............................
..........................................................................................
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Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat on the basis
of the best available scientific data after
taking into consideration the economic
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impact, national security impact, and
any other relevant impact of specifying
any particular area as critical habitat.
The Secretary may exclude an area from
critical habitat if s/he determines that
the benefits of such exclusion outweigh
the benefits of specifying such area as
part of the critical habitat, unless s/he
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759
347
888
819
(307)
(140)
(359)
(331)
2,813 (1,138)
Areas exempted in
acres (hectares)
759
347
888
819
(307)
(140)
(359)
(331)
2,813 (1,138)
determines, based on the best scientific
data available, that the failure to
designate such area as critical habitat
will result in the extinction of the
species. In making that determination,
the statute on its face, as well as the
legislative history, are clear that the
Secretary has broad discretion regarding
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which factor(s) to use and how much
weight to give to any factor.
In considering whether to exclude a
particular area from the designation, we
identify the benefits of including the
area in the designation, identify the
benefits of excluding the area from the
designation, and evaluate whether the
benefits of exclusion outweigh the
benefits of inclusion. If the analysis
indicates that the benefits of exclusion
outweigh the benefits of inclusion, the
Secretary may exercise her discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species.
When identifying the benefits of
inclusion for an area, we consider the
additional regulatory benefits that area
would receive from the protection from
adverse modification or destruction as a
result of actions with a Federal nexus;
the educational benefits of mapping
essential habitat for recovery of the
listed species; and any benefits that may
result from a designation due to State or
Federal laws that may apply to critical
habitat.
When identifying the benefits of
exclusion, we consider, among other
things, whether exclusion of a specific
area is likely to result in conservation;
the continuation, strengthening, or
encouragement of partnerships; or
implementation of a management plan
that provides equal to or more
conservation than a critical habitat
designation would provide.
In the case of the Taylor’s checkerspot
butterfly and streaked horned lark, the
benefits of critical habitat include
public awareness of the presence of
Taylor’s checkerspot butterflies and
streaked horned larks and the
importance of habitat protection, and, in
cases where a Federal nexus exists,
increased habitat protection for these
species due to the protection from
adverse modification or destruction of
critical habitat.
When we evaluate the existence of a
conservation or management plan when
considering the benefits of exclusion,
we consider a variety of factors,
including but not limited to, whether
the plan is finalized; how it provides for
the conservation of the essential
physical or biological features; whether
there is a reasonable expectation that
the conservation management strategies
and actions contained in a management
plan will be implemented into the
future; whether the conservation
strategies in the plan are likely to be
effective; and whether the plan contains
a monitoring program or adaptive
management to ensure that the
conservation measures are effective and
can be adapted in the future in response
to new information.
After identifying the benefits of
inclusion and the benefits of exclusion,
we carefully weigh the two sides to
evaluate whether the benefits of
exclusion outweigh those of inclusion.
If our analysis indicates that the benefits
of exclusion outweigh the benefits of
inclusion, we then determine whether
exclusion would result in extinction. If
exclusion of an area from critical habitat
will result in extinction, we will not
exclude it from the designation.
Based on the information provided by
entities seeking exclusion, as well as
any additional public comments
received and information in our files,
we evaluated whether certain lands in
the proposed critical habitat were
appropriate for exclusion from this final
designation pursuant to section 4(b)(2)
of the Act. We considered the areas
discussed below for exclusion under
section 4(b)(2) of the Act, and present
our detailed analysis below. For those
areas in which the Secretary has
exercised her discretion to exclude, we
conclude that:
(1) Their value for conservation will
be preserved in the near future by
existing protective actions; or
(2) The benefits of excluding the
particular area outweigh the benefits of
their inclusion, based on the ‘‘other
relevant factor’’ provisions of section
4(b)(2) of the Act.
Taylor’s Checkerspot Butterfly
Table 5 shows the areas we are
excluding from critical habitat for the
Taylor’s checkerspot butterfly.
TABLE 5—AREAS EXCLUDED FROM THE DESIGNATION OF CRITICAL HABITAT FOR THE TAYLOR’S CHECKERSPOT
BUTTERFLY UNDER SECTION 4(b)(2) OF THE ACT BY CRITICAL HABITAT UNIT
Unit
Specific area
Areas excluded
in acres
(hectares)
............................................
............................................
............................................
............................................
............................................
............................................
............................................
............................................
............................................
............................................
Rocky Prairie NAP ...............................................................
Mima Mounds NAP ..............................................................
Scatter Creek .......................................................................
Rock Prairie ..........................................................................
Bald Hill ................................................................................
West Rocky Prairie ..............................................................
Elwha ....................................................................................
Fort Hoskins .........................................................................
Beazell Memorial Forest ......................................................
Fitton Green—Cardwell Hill .................................................
38 (16)
406 (164)
731 (296)
621 (251)
422 (171)
134 (54)
235 (95)
6 (3)
61 (25)
59 (24)
38 (16)
406 (164)
731 (296)
378 (153)
247 (100)
134 (54)
143 (58)
6 (3)
61 (25)
40 (16)
Total ...............................
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1
1
1
1
1
1
2
4
4
4
Areas meeting
the definition
of critical
habitat in
acres
(hectares)
...............................................................................................
2,713 (1,098)
2,184 (885)
Streaked Horned Lark
Table 6 shows the areas we are
excluding from critical habitat for the
streaked horned lark.
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61535
TABLE 6—AREAS EXCLUDED FROM THE DESIGNATION OF CRITICAL HABITAT FOR THE STREAKED HORNED LARK UNDER
SECTION 4(b)(2) OF THE ACT BY CRITICAL HABITAT UNIT
Unit
Specific area
............................................
............................................
............................................
............................................
............................................
............................................
............................................
............................................
Sanderson Field ...................................................................
Olympia Airport ....................................................................
Shoalwater Spit ....................................................................
Portland International Airport ...............................................
McMinnville Municipal Airport ..............................................
Salem Municipal Airport .......................................................
Corvallis Municipal Airport ...................................................
Eugene Airport .....................................................................
Total ...............................
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1
1
3
3
4
4
4
4
Areas meeting
the definition
of critical
habitat in acres
(hectares)
...............................................................................................
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we
consider the economic impacts of
specifying any particular area as critical
habitat. In order to consider economic
impacts, we prepared an economic
analysis of the proposed critical habitat
designation and related factors (April 3,
2013; 78 FR 20074). This economic
analysis addressed a total of six prairie
taxa proposed for listing under the Act.
In addition to the Taylor’s checkerspot
butterfly and streaked horned lark, the
economic analysis included four
subspecies of the Mazama pocket
gopher (Thomomys mazama ssp.). The
Mazama pocket gophers are being
addressed in separate rulemakings.
The intent of the final economic
analysis (FEA) (IEc 2013) is to quantify
the economic impacts of all potential
conservation efforts for the six prairie
taxa, including the Taylor’s checkerspot
butterfly and streaked horned lark; some
of these costs will likely be incurred
regardless of whether we designate
critical habitat (we consider such costs
to be ‘‘baseline’’ costs). The economic
impact of the final critical habitat
designation is analyzed by comparing
scenarios both ‘‘with critical habitat’’
and ‘‘without critical habitat.’’ The
‘‘without critical habitat’’ scenario
represents the baseline for the analysis,
considering protections already in place
for the species (e.g., under the Federal
listing and other Federal, State, and
local regulations). The baseline,
therefore, represents the costs incurred
regardless of whether critical habitat is
designated. The ‘‘with critical habitat’’
scenario describes the incremental
impacts associated specifically with the
designation of critical habitat for the
species. The incremental conservation
efforts and associated impacts are those
not expected to occur absent the
designation of critical habitat for the
species. In other words, the incremental
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costs are those attributable solely to the
designation of critical habitat above and
beyond the baseline costs; these are the
costs we consider in the final
designation of critical habitat.
The FEA also addresses how potential
economic impacts are likely to be
distributed, including an assessment of
any local or regional impacts of habitat
conservation and the potential effects of
conservation activities on government
agencies, private businesses, and
individuals. The FEA measures lost
economic efficiency associated with
residential and commercial
development and public projects and
activities, such as economic impacts on
water management and transportation
projects, Federal lands, small entities,
and the energy industry. Decisionmakers can use this information to
assess whether the effects of the
designation might unduly burden a
particular group or economic sector.
The FEA considers those costs that may
occur in the 20 years following the
designation of critical habitat, which
was determined to be the appropriate
period for analysis because limited
planning information was available for
most activities to reasonably forecast
activity levels for projects beyond a 20year timeframe. The FEA quantifies the
economic impacts of Taylor’s
checkerspot butterfly, streaked horned
lark, and Mazama pocket gopher
conservation efforts associated with the
following categories of activity: military
activities; recreation and habitat
management; airports and agricultural
activities; transportation; electricity
distribution and forestry activities; and
dredging and other activities, including
private gravel mining operations and
development.
As noted above, the FEA identifies
and analyzes the potential economic
impacts associated with critical habitat
designations proposed for six prairie
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376
575
661
431
600
534
1,103
313
Areas excluded
in acres
(hectares)
(152)
(233)
(267)
(174)
(243)
(216)
(446)
(126)
376 (152)
575 (233)
182 (74)
431 (174)
600 (243)
534 (216)
1,103 (446)
313 (126)
4,593 (1,857)
4,114 (1,664)
taxa: Taylor’s checkerspot butterfly and
streaked horned lark, as well as four
subspecies of Mazama pocket gopher
(the Roy Prairie, Olympia, Tenino, and
Yelm pocket gophers). The Mazama
pocket gopher subspecies are addressed
in separate rulemakings. All estimates
in the FEA are for all six taxa; therefore,
estimates for individual taxa are less
than the totals estimated in the FEA and
summarized here.
The total present value impact
anticipated to result from the
designation of all areas proposed as
critical habitat for the Taylor’s
checkerspot butterfly, streaked horned
lark, and the four subspecies of Mazama
pocket gophers is $800,000 over the
next 20 years, assuming a 7 percent
discount rate, or $70,000 on an
annualized basis. The greatest
incremental impacts of critical habitat
apply to airports and agricultural
activities at $600,000 over the next 20
years, followed by recreation and
habitat management at $100,000,
military activities at $55,000,
transportation at $34,000, and electricity
distribution and forestry activities at
$9,300 (present values over 20 years
assuming a 7 percent discount rate). For
the most part, the incremental impacts
of the critical habitat designation are
limited to the additional administrative
costs of consultations within occupied
areas. In addition, some incremental
project modifications may occur on
unoccupied subunits for the Taylor’s
checkerspot butterfly on JBLM; these
costs are expected to be relatively small.
Of the total costs, the analysis estimates
that approximately 51 percent will be
incurred by the Service, 31 percent by
Federal action agencies, and 18 percent
by third parties. The impacts estimated
in the FEA apply to the proposed
critical habitat in its entirety, and do not
reflect final exclusions or exemptions.
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We have not excluded any areas from
the final designation of critical habitat
based on economic impacts. A copy of
the FEA with supporting documents
may be obtained by contacting the
Service’s Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION
CONTACT) or by downloading from
https://www.regulations.gov at docket
number FWS–R1–ES–2013–0009.
Exclusions Based on National Security
Impacts
In preparing this final rule, we have
exempted from the designation of
critical habitat those DOD lands with
completed INRMPS that have been
determined to provide a benefit to the
Taylor’s checkerspot butterfly and
streaked horned lark. We have
subsequently determined that the
remaining lands within the designation
of critical habitat for the Taylor’s
checkerspot butterfly and streaked
horned lark are not owned or managed
by the Department of Defense; therefore
we anticipate no impact on national
security. Consequently, the Secretary is
not exercising her discretion to exclude
any areas from this final designation
based on impacts on national security.
Exclusions Based on Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security. We
consider a number of factors, including
whether the landowners have developed
any HCPs or other species specific
management plans for the area that
would benefit the Taylor’s checkerspot
butterfly or streaked horned lark, or
whether there are conservation
partnerships that would be encouraged
by designation of, or exclusion from,
critical habitat. In addition, we look at
any tribal issues, and consider the
government-to-government relationship
of the United States with tribal entities.
We also consider any social impacts that
might occur because of the designation.
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Land and Resource Management Plans,
Conservation Plans, or Agreements
Based on Conservation Partnerships
We consider a current land
management or conservation plan (HCPs
as well as other types) to provide
adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides
the same or better level of protection
from adverse modification or
destruction than that provided through
a consultation under section 7 of the
Act;
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(2) There is a reasonable expectation
that the conservation management
strategies and actions will be
implemented for the foreseeable future,
based on past practices, written
guidance, or regulations; and
(3) The plan provides conservation
strategies and measures consistent with
currently accepted principles of
conservation biology.
We find that the Rocky Prairie, Mima
Mounds, and Bald Hill Natural Area
Preserves (NAPs), as well as WDNRowned parcels on Dan Kelly Ridge and
in Eden Valley (all of which are covered
under the WDNR State Trust Lands
HCP); the WDFW Scatter Creek Wildlife
Area Management Plan (which also
covers the adjacent private land); the
WDFW West Rocky Prairie Wildlife
Area Management Plan; the Merrill and
Ring Voluntary Habitat Conservation
Plan; the NRCS Colvin Ranch Grassland
Reserve Program Management Plan; and
the Benton County Prairie Species HCP,
all fulfill the above criteria. We are
excluding these non-Federal lands
covered by these plans because the
plans adequately provide for the longterm conservation of the Taylor’s
checkerspot butterfly and the Secretary
has determined that the benefits of
excluding such areas outweigh the
benefits of including them in critical
habitat.
As a result of considering other
relevant impacts, we have additionally
excluded non-Federal airports from
final critical habitat for the streaked
horned lark, based upon the Secretary’s
determination that the benefit of
excluding such areas outweighs the
benefit of including them in critical
habitat, as described below.
Washington Department of Natural
Resources State Trust Lands HCP
The WDNR State Trust Lands HCP
covers approximately 1.7 million
(730,000 ha) of State lands in
Washington. The permit associated with
this HCP, issued January 30, 1997, was
announced in the Federal Register on
April 5, 1996 (61 FR 15297), has a term
of 70 to 100 years, and covers activities
primarily associated with commercial
forest management, but also includes
limited nontimber activities such as
some recreational activities. The HCP
covers all species, including the
Taylor’s checkerspot butterfly and other
listed and unlisted species. We are
excluding Washington State lands
totaling approximately 823 ac (334 ha)
that are covered and managed by the
WDNR under their State Trust Lands
HCP from Units 1 and 2 of this critical
habitat designation under section 4(b)(2)
of the Act.
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The HCP addresses multiple species
through a combination of strategies. The
HCP includes a series of NAPs and
Natural Resource Conservation Areas
(NRCAs), including Rocky Prairie NAP,
Mima Mounds NAP, and Bald Hill NAP.
These preserves are managed consistent
with the Natural Areas Preserve Act,
forever protecting the highest quality
examples of native ecosystems and rare
plant and animal species, in addition to
other natural features of State, regional
or national significance. These preserves
are used for education, scientific
research, and to maintain Washington’s
native biological diversity. This network
of preserves includes nearly 31,000 ac
(12,550 ha) throughout the State, which
range in size from 8 ac (3.2 ha) to 3,500
ac (1,416 ha). Management plans are
developed for each NAP, which guide
the actions necessary to protect each
area’s natural features, including
research, monitoring, restoration, and
other active management. In addition,
there are approximately 132 ac (23 ha)
in the Elwha drainage at Dan Kelly
Ridge and Eden Valley that are also
owned by WDNR and managed for
Taylor’s checkerspot butterfly under a
separate plan. WDNR actively manages
these three NAPs and the two additional
sites (Dan Kelly and Eden Valley) to
maintain high-quality prairie and bald
habitats. All of these locations contain
many of the essential physical or
biological features to support the
Taylor’s checkerspot butterfly. Although
these sites are not currently occupied by
the Taylor’s checkerspot butterfly, they
have the potential to serve as the site of
future translocations to re-establish the
subspecies.
The NAP properties at Rocky Prairie,
Mima Mounds, and Bald Hill, and the
sites at Dan Kelly Ridge and Eden
Valley (these last two are managed
under a single plan), each have speciesspecific management plans that provide
for the conservation of the Taylor’s
checkerspot butterfly, and these sites
have been managed for the conservation
of prairie species, including Taylor’s
checkerspot butterfly specifically. This
ongoing practice of habitat management
and conservation has fostered a diverse
variety of larval and adult nectar
resources for Taylor’s checkerspot
butterfly that complement the wide
range of topographic variation within
and between sites. The management
planning for each of these areas has
established a decades-long track record
of activity focused on enhancing prairie
composition and structure at each
location: Rocky Prairie NAP
Management Plan (WDNR 1989b), Mima
Mounds NAP Management Plan (WDNR
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1989a), Bald Hill NAP Management
Plan (WDNR 1988), and WDNR Olympic
Taylor’s Checkerspot Butterfly
Management Plan (Horton, 2010). The
conservation measures applied at the
three NAPs have more recently been
refocused through the development of
site-specific restoration plans for each
location to benefit the Taylor’s
checkerspot butterfly and other rare
prairie butterflies. These restoration
plans (Wilderman and Davenport 2011a,
2011b, 2011c) provide for the needs of
Taylor’s checkerspot butterfly by
protecting and managing all the WDNR
NAPs in Thurston County, and
implementing species-specific
conservation measures designed to
avoid and minimize impacts to the
Taylor’s checkerspot butterfly. The
management guidelines were developed
for areas that are currently occupied as
well as areas that have suitable habitat
but that are not known to be currently
occupied by the Taylor’s checkerspot
butterfly. Because of the high success
rate of recent Taylor’s checkerspot
butterfly translocations, the planning
group that oversees the schedule for
translocation would give weighted
consideration to each of these highquality prairie locations for future
introductions of the Taylor’s
checkerspot butterfly.
Although both Dan Kelly Ridge and
Eden Valley lack established, long-term,
site-specific restoration plans, they are
subject to an adaptive management
restoration strategy implemented by
WDFW rare species experts who are
focused on the maintenance and
expansion of appropriate habitat at and
around the occupied areas. These
restoration efforts at Dan Kelly Ridge
and Eden Valley have been supported
through a number of funding streams,
including monies from the Service and
DOD. Additionally, WDNR provides
work crews to conduct tree and shrub
removal which reflects an ongoing and
increasing investment on the part of the
land owner. Support provided in crew
hours totaled $5,000 in years past and
has more than doubled that amount in
2013, indicating a significant
investment in and commitment to the
ongoing stewardship of these occupied
properties.
Benefits of Inclusion—Rocky Prairie,
Mima Mounds, and Bald Hill Natural
Area Preserves, and the Dan Kelly Ridge
and Eden Valley sites under the WDNR
State Trust Lands HCP—The primary
effect of designating any particular area
as critical habitat is the requirement for
Federal agencies to consult with us
under section 7 of the Act to ensure
actions they carry out, authorize, or
fund do not adversely modify
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designated critical habitat. Absent
critical habitat designation in occupied
areas, Federal agencies remain obligated
under section 7 of the Act to consult
with us on actions that may affect a
federally listed species to ensure such
actions do not jeopardize the species’
continued existence. All three of the
NAPs are currently unoccupied by the
Taylor’s checkerspot butterfly; therefore,
a jeopardy analysis would not be
triggered by a Federal agency action for
Rocky Prairie, Mima Mounds, or Bald
Hill NAPs. If the NAPs were designated
as critical habitat, such an action would
trigger consultation solely under the
adverse modification standard of section
7. The WDNR-owned Dan Kelly Ridge
and Eden Valley sites are both occupied
and have been undergoing restoration
through a federally-funded program
(Wildlife and Sport Fish Restoration
Program), thus any proposed actions for
habitat restoration would trigger section
7 consultation for both the subspecies
and the designated critical habitat. The
benefits of inclusion in critical habitat at
these sites would be minimized since
they are occupied by Taylor’s
checkerspot butterfly, as any potential
consultation under section 7 of the Act
will evaluate the effects of the action on
the conservation or functionality of the
habitat for the subspecies regardless of
whether critical habitat is designated for
these lands. The analytical requirements
to support a jeopardy determination on
excluded land are similar, but not
identical, to the requirements in an
analysis for an adverse modification
determination on included land. The
additional benefit of consultation under
the adverse modification standard at
these occupied sites would therefore be
reduced.
The inclusion of these areas as critical
habitat could therefore provide some
additional Federal regulatory benefits
for the species consistent with the
conservation standard based on the
Ninth Circuit Court’s decision in Gifford
Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th
Cir. 2004). As noted above, a potential
benefit of inclusion would be the
requirement of a Federal agency to
ensure that their actions on these nonFederal lands would not likely result in
the destruction or adverse modification
of critical habitat. Any Federal nexus on
these lands would likely result from
actions to restore or maintain favorable
habitat conditions, carried out under the
HCP or granting of Federal funds for
beneficial management of prairieassociated species, such as Taylor’s
checkerspot butterfly. The incremental
benefit to the Taylor’s checkerspot
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61537
butterfly from the small amount of
resultant section 7 consultation required
by this habitat management funding is
likely minimal, especially considering
that the action being consulted on is
itself intended to benefit prairieassociated species.
The Service has coordinated with
WDNR on conservation actions to be
implemented for the Taylor’s
checkerspot butterfly at the three NAPs
located in Thurston County,
Washington, as well as the two sites at
Dan Kelly Ridge and Eden Valley in
Clallam County, Washington. An NAP is
a land designation used by the State of
Washington to protect the best examples
of rare and vanishing flora, fauna, plant
and animal communities, geological,
and natural historical value, consistent
with the Washington Natural Areas
Preserves Act of 1972 (RCW 79.70). The
two other sites (Dan Kelly Ridge and
Eden Valley) are managed separately
under their own plan, but are not
designated as NAPs. Management of the
NAPs in Thurston County is guided in
large part by the South Puget Sound
Prairie Landscape Working Group. The
Service is a charter member of this
partnership group, which was
established in 1994, to promote and
improve the management and planning
of conservation actions on south Puget
Sound prairies and associated habitats.
The Working Group includes WDNR,
JBLM, NRCS, WDFW, CNLM, the
Washington Department of
Transportation (WSDOT), as well as
other Federal, State, county, city,
nongovernmental, and private group
entities, each with knowledge and
expertise in prairie ecosystem
management. The Working Group
coordinates regularly, meeting twiceyearly to share information and discuss
priorities, and making significant
improvements on the ground in prairies
and oak woodlands. At one of our south
Puget Sound locations, volunteers
implement restoration and recovery
actions for prairie species every
Tuesday throughout the year. This is a
well-established group that is expected
to continue its coordination efforts into
the foreseeable future, regardless of the
designation of critical habitat.
Management of the Dan Kelly Ridge and
Eden Valley sites receive oversight from
the Taylor’s Checkerspot Butterfly
Working Group, a multi-agency working
group that has been in existence since
2004. Participants in the working group
include JBLM, NRCS, USFS, WDNR,
WDFW, WSDOT, University of
Washington researchers, CNLM, and
other Federal, State, county, city,
nongovernmental, private entities and
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individuals, each with knowledge and
expertise on the Taylor’s checkerspot
butterfly, its conservation, habitat, and
restoration needs. Designation of these
areas as critical habitat would therefore
likely yield no additional benefit to the
outputs of the working groups, their
members, or their ease of coordination.
The active, long-term restoration efforts
already in place at these sites thus
reduce the potential benefit of critical
habitat.
Another potential benefit of including
lands in a critical habitat designation is
that it serves to educate landowners,
State and local governments, and the
public regarding the potential
conservation value of an area. This
helps focus and promote conservation
efforts by identifying areas of high
conservation value for the Taylor’s
checkerspot butterfly. The designation
of critical habitat informs State agencies
and local governments about areas that
could be conserved under State laws or
local ordinances. Any additional
information about the needs of the
Taylor’s checkerspot butterfly or its
habitat that reaches a wider audience
can be of benefit to future conservation
efforts. During the spring of 2013 alone,
the Service hosted two prairie
workshops, one public hearing, and two
local Thurston County events attended
by nearly 1,000 people to publicize and
educate local community members of
the subspecies’ declining distribution,
and the threat to the native flora and
fauna found on western Washington
prairies. An important conservation
measure that is gained through these
outreach networks is the ability to
educate the public about the historical
role and current importance of prairies
to our local community and economy.
Included among the outreach measures
is the distribution of educational
material, and encouraging landowners
to conduct prairie restoration activities
on their properties. At least two
presentations resulting from research
conducted at the Dan Kelly Ridge and
Eden Valley sites have been given and
additional work for these two sites is
expected to be concluded in the near
future that may further elevate public
awareness in Clallam County about the
conservation needs of the Taylor’s
checkerspot butterfly on the north
Olympic Peninsula. Additional events
are expected to occur in the future, and
designation of the NAPs or the WDNRowned Dan Kelly Ridge and Eden Valley
sites as critical habitat is not expected
to increase the number of such meetings
or improve their outcomes; the
additional educational value of critical
habitat is therefore minimized.
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The incremental benefit of inclusion
is reduced because of the long-standing
management planning and
implementation efforts for each site, as
discussed above. In addition, the NAP
restoration plans provide greater
protection to Taylor’s checkerspot
butterfly habitat than would the
designation of critical habitat, since the
planning effort is intended to actively
improve the structure and composition
of the habitat (critical habitat does not
carry any requirement for habitat
restoration or improvement). Although
both Dan Kelly Ridge and Eden Valley
lack established, long-term, site-specific
restoration plans, they are subject to an
adaptive management restoration
strategy implemented by WDFW rare
species experts focused on the
maintenance and expansion of
appropriate habitat at and around the
occupied areas. These restoration efforts
at Dan Kelly Ridge and Eden Valley
have been supported through a number
of funding streams, including monies
from the Service. Therefore, designation
of critical habitat on these areas would
not provide any additional management
focus that is not already occurring at
these locations under Washington State
management authority, through plans
developed through our recovery
program, or through the DOD ACUB
funding authority, which has provided
funding support for many of our local
protected prairies, including the NAPs,
Dan Kelly Ridge, and Eden Valley sites.
Benefits of Exclusion—Rocky Prairie,
Mima Mounds, Bald Hill Natural Area
Preserves, and the Dan Kelly Ridge and
Eden Valley sites under the WDNR State
Trust Lands HCP—The benefits of
excluding these areas from critical
habitat are relatively greater. A benefit
of excluding lands within this HCP from
critical habitat designation is that it
would encourage the State and other
parties to continue to work toward
Taylor’s checkerspot butterfly
conservation. Since issuance of this
HCP, a number of land transactions and
land exchanges within the HCP area
have occurred. These transactions have
included creation of additional NRCAs
and NAPs (land designations with high
degree of protection), and have also
included large land exchanges and
purchases that have changed the
footprint of the HCP. These land-based
adjustments have facilitated better
management on many important parcels
and across larger landscapes than would
otherwise have been possible. If lands
within HCP plan areas are designated as
critical habitat, it would likely have a
negative effect on the willingness of
various groups and funding sources to
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accomplish these land-ownership
adjustments because of a reluctance to
acquire lands designated as critical
habitat as well as a reduced willingness
on the part of WDNR to accommodate
the Service’s goals. This HCP is located
in key landscapes across the State, and
the NAPs at Rocky Prairie, Mima
Mounds, and Bald Hill, as well as the
two sites at Dan Kelly Ridge and Eden
Valley—which are covered by the
HCP—contribute meaningfully to the
recovery of the Taylor’s checkerspot
butterfly.
If lands within the WDNR HCP plan
area are designated as critical habitat, it
would also likely have a negative effect
on our ability to establish new
partnerships to develop HCPs,
particularly large, regional HCPs that
involve numerous participants or
address landscape-level conservation of
species and habitats. This HCP has
served as a model for several completed
and ongoing HCP efforts, including the
Washington State Forest Practices HCP.
By excluding these lands, we preserve
our current private and local
conservation partnerships and
encourage additional conservation
actions in the future because other
parties see our exclusion as a sign that
the Service will not impose duplicative
regulatory burdens on landowners who
have developed an HCP.
HCPs typically provide for greater
conservation benefits to a covered
species than section 7 consultations
because HCPs ensure the long-term
protection and management of a covered
species and its habitat. In addition,
funding for such management is
ensured through the Implementation
Agreement. Such assurances are
typically not provided by section 7
consultations, which, in contrast to
HCPs, often do not commit the project
proponent to long-term, special
management practices or protections.
Thus, a section 7 consultation typically
does not afford the lands it covers
similar extensive benefits as an HCP.
The development and implementation
of HCPs provide other important
conservation benefits, including the
development of biological information
to guide the conservation efforts and
assist in species conservation, and the
creation of innovative solutions to
conserve species while meeting the
needs of the applicant. In this case,
substantial information has been
developed from the research,
monitoring, and surveys conducted by
WDNR. Therefore, exclusion is a benefit
because it maintains and fosters the
development of biological information
and innovative solutions.
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Exclusion of these areas will
additionally help us maintain an
important and successful partnership
with other Washington State
conservation partners (via the South
Puget Sound Prairie Landscape Working
Group and the Taylor’s Checkerspot
Butterfly Working Group) who made a
commitment more than a decade ago to
include the Taylor’s checkerspot
butterfly in their management and
restoration plans, as well as encouraging
others to join in this and other
conservation partnerships.
Benefits of Exclusion Outweigh
Benefits of Inclusion—Rocky Prairie,
Mima Mounds, Bald Hill Natural Area
Preserves, and the Dan Kelly Ridge and
Eden Valley sites under the WDNR State
Trust Lands HCP—The Secretary has
determined that the benefits of
excluding the WDNR-managed Rocky
Prairie, Mima Mounds, and Bald Hill
NAPs found in Thurston County, and
the Dan Kelly Ridge and Eden Valley
sites in Clallam County, from the
designation of critical habitat for
Taylor’s checkerspot butterfly outweigh
the benefits of including these areas in
critical habitat. Any Federal nexus on
these lands would likely result from
actions to restore or maintain favorable
habitat conditions, undertaken under
the HCP or granting of Federal funds for
beneficial management of prairieassociated species, such as Taylor’s
checkerspot butterfly. If one were to
occur, it would most likely be with the
Service or DOD, and their actions will
be geared toward the conservation
benefits of restoring and enhancing
habitat specifically for the Taylor’s
checkerspot butterfly, or other rare
butterflies. This type of management
would benefit Taylor’s checkerspot
butterfly if focused on the maintenance
of open, short-statured vegetative
conditions that Taylor’s checkerspot
butterfly typically occupies. The
incremental benefit to the Taylor’s
checkerspot butterfly from the small
amount of resultant section 7
consultation required by this habitat
management funding is likely minimal,
especially considering that the action
being consulted on is itself intended to
benefit prairie-associated species.
The South Puget Sound Prairie
Landscape Working Group partnership,
which contributes to management
planning on the NAPs, and the Taylor’s
Checkerspot Butterfly Working Group,
which provides guidance for the sites at
Dan Kelly Ridge and Eden Valley,
would not be additionally benefitted
due to inclusion of these areas in critical
habitat, as these working groups are
well-established, cohesive, and
productive groups that have yielded and
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will continue to yield positive
conservation outcomes for the Taylor’s
checkerspot butterfly on south Puget
Sound prairies and the north Olympic
Peninsula, including these sites,
regardless of the designation of critical
habitat. The conservation strategies of
each NAP restoration plan and the
ongoing adaptive habitat restoration
strategies for are designed to protect and
enhance habitat for the Taylor’s
checkerspot butterfly. These strategies
include species-specific management
actions to support Taylor’s checkerspot
butterflies, avoidance and minimization
measures, and monitoring requirements
to ensure proper implementation, which
further minimizes the benefits of
including these areas in a designation of
critical habitat.
The WDNR State Trust Lands HCP
provides for significant conservation
and management within geographical
areas that contain the physical or
biological features essential to the
conservation of Taylor’s checkerspot
butterfly, and helps achieve recovery of
this subspecies through the
conservation measures of the HCP.
Exclusion of these lands from critical
habitat will help foster the partnership
we have developed with WDNR,
through the development and
continuing implementation of the HCP
and the area management plans. It will
also help us maintain and foster an
important and successful partnership
with our Washington State conservation
partners in the South Puget Sound
Prairie Landscape Working Group as
well as with the species-specific
Taylor’s Checkerspot Butterfly Working
Group, which shares significant overlap
with the South Puget Sound Prairie
Landscape Working Group and, by
doing so, bridges between ecosystem
management strategies and speciesspecific conservation actions. Both
WDNR and the working groups have
encouraged others to join in
conservation partnerships as well, and
exclusion of these lands will encourage
the future development of such
beneficial conservation partnerships.
For these reasons, we have determined
that the benefits of exclusion outweigh
the benefits of inclusion in this case.
Exclusion Will Not Result in the
Extinction of the Species—Rocky
Prairie, Mima Mounds, Bald Hill
Natural Area Preserves, and the Dan
Kelly Ridge and Eden Valley sites under
the WDNR State Trust Lands HCP—We
have determined that exclusion of
approximately 38 ac (16 ha) for the
Rocky Prairie NAP (Unit 1–Rocky
Prairie), 406 ac (164 ha) for the Mima
Mounds NAP (Unit 1–Mima Mounds/
Glacial Heritage), 247 ac (100 ha) for the
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Bald Hill NAP (Unit 1–Bald Hills), 109
ac (44 ha) for the Dan Kelly Ridge site
(Unit 2–Elwha), and 23 ac (9 ha) for the
Eden Valley site (Unit 2–Elwha), all of
which are covered under the WDNR
State Trust Lands HCP, will not result
in the extinction of Taylor’s checkerspot
butterfly. Actions covered by the HCP
will not result in extinction of Taylor’s
checkerspot butterfly because: (1) the
NAPs are not currently occupied by the
subspecies, and; (2) and the occupied
sites (Dan Kelly Ridge and Eden Valley)
both have special dispensation from site
designation as a source of merchantable
timber, which allows for the removal of
otherwise merchantable trees in favor of
enhancing Taylor’s checkerspot
butterfly habitat. In all of these areas the
State Trust Lands HCP provides for the
future needs of the Taylor’s checkerspot
butterfly by restoring, maintaining, and
creating habitat within these areas, and
supporting management of Taylor’s
checkerspot butterfly habitat and that of
other rare species through HCP
compliance. Additionally, each of the
areas operates under a specific
management plan to guide long-term
site management, and more recently
developed restoration plans to direct the
habitat enhancement activities at each
location. For these reasons, we find that
exclusion of these lands covered by the
WNDR State Trust Lands HCP will not
result in extinction of the Taylor’s
checkerspot butterfly. Based on the
above discussion, the Secretary is
exercising her discretion under section
4(b)(2) of the Act to exclude from this
final critical habitat designation
portions of the proposed critical habitat
units or subunits that are within the
WDNR State Trust Lands HCP-covered
lands as identified above, totaling about
823 ac (334 ha).
Scatter Creek Wildlife Area and
Adjacent Private Land, and the West
Rocky Prairie Wildlife Area
We are excluding 767 ac (310 ha) of
Washington State lands designated as
Wildlife Areas, and 98 ac (40 ha) of
private land inholding from this critical
habitat designation under section 4(b)(2)
of the Act. These Wildlife Areas are
known as the Scatter Creek Wildlife
Area (633 ac (256 ha)) (Unit 1–Scatter
Creek) and West Rocky Prairie Wildlife
Area (134 ac (54 ha)) (Unit 1–West
Rocky Prairie), both owned and
managed by WDFW. The private
inholding is associated with the Scatter
Creek Wildlife Area (Unit 1–Scatter
Creek) and is managed by WDFW
identically to the Wildlife Area itself.
Wildlife Areas provide a variety of
habitat for endangered and threatened
species, including the Taylor’s
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checkerspot butterfly, and are managed
for that purpose, among others. Each
Wildlife Area operates under a Wildlife
Area Management Plan specific to the
unique management needs of that area.
Species-specific management plans
have been written for a subset of the
Wildlife Areas, including Scatter Creek
and West Rocky Prairie. WDFW’s land
acquisition strategy for Wildlife Areas
requires their purchases provide the
highest benefit to fish, wildlife, and the
public. In addition, WDFW is currently
developing an HCP for lands in Wildlife
Areas with the help of the Service,
which will incorporate a landscapelevel approach to managing at-risk
species, including Taylor’s checkerspot
butterfly.
WDFW developed a management plan
for the Scatter Creek Wildlife Area and
adjacent private land in 2010 that
specifically details the habitat needs of
Taylor’s checkerspot butterfly and
continues to refine habitat conservation
measures through collaboration with
local conservation partners from the
Service, WDNR, the University of
Washington, and CNLM (Hays 2010).
WDFW also has a draft management
plan to guide prairie management at the
West Rocky Prairie Wildlife Area
(WDFW 2011), which will be this area’s
guiding document until finalized. Prior
to the management plan being
developed, the site was managed for an
array of species and recreational
activities, including restoration actions
designed to improve the prairie
conditions for the Taylor’s checkerspot
butterfly, mardon skipper butterfly
(Polites mardon), and Mazama pocket
gopher. The Scatter Creek Wildlife Area
and adjacent private lands are currently
occupied by the Taylor’s checkerspot
butterfly; the West Rocky Prairie
Wildlife Area is not known to be
occupied by the subspecies.
Benefits of Inclusion—Scatter Creek
Wildlife Area and Adjacent Private
Land; West Rocky Prairie Wildlife
Area—The primary effect of designating
any particular area as critical habitat is
the requirement for Federal agencies to
consult with us under section 7 of the
Act to ensure actions they carry out,
authorize, or fund do not adversely
modify designated critical habitat.
Absent critical habitat designation in
occupied areas, Federal agencies remain
obligated under section 7 of the Act to
consult with us on actions that may
affect a federally listed species to ensure
such actions do not jeopardize the
species’ continued existence.
The analysis of effects to critical
habitat is a separate and different
analysis from that of the effects to the
species. Therefore, the difference in
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outcomes of these two analyses
represents the regulatory benefit of
critical habitat. The regulatory standard
is different, as the jeopardy analysis
investigates the action’s impact on the
survival and recovery of the species,
while the adverse modification analysis
focuses on the action’s effects on the
designated habitat’s contribution to
conservation. This will, in many
instances, lead to different results and
different regulatory requirements. Thus,
critical habitat designations have the
potential to provide greater benefit to
the recovery of a species than would
listing alone.
The inclusion of these covered lands
as critical habitat could provide some
additional Federal regulatory benefits
for the species consistent with the
conservation standard based on the
Ninth Circuit Court’s decision in Gifford
Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th
Cir. 2004). As noted above, a potential
benefit of inclusion would be the
requirement of a Federal agency to
ensure that their actions on these nonFederal lands would not likely result in
the destruction or adverse modification
of critical habitat. However, this
additional analysis to determine
whether a Federal action is likely to
result in destruction or adverse
modification of critical habitat is not
likely to be significant because these
covered lands are not under Federal
ownership, making the application of
section 7 less likely. As often as not, any
actions required to restore or maintain
favorable habitat conditions are not
associated with a Federal action, and
thus would not trigger any protections
afforded by the designation of critical
habitat. The granting of Federal funds
for beneficial management of prairieassociated species such as Taylor’s
checkerspot butterfly would provide the
only foreseeable Federal nexus for these
non-Federal lands. WDFW has received
funding specifically to improve habitat
features such as vegetation composition,
and structure to support rare and
threatened butterflies, including the
Taylor’s checkerspot butterfly, mardon
skipper butterfly, and valley silverspot
butterfly (Speyeria zerene bremnerii).
This funding will support activities
through 2017. Funding is also provided
to WDFW from the DOD ACUB
program, which is a high priority
program for DOD. Leadership at DOD
has confirmed that the program will
continue into the future (Jeff Foster,
pers. comm. 2013). The small amount of
resultant section 7 consultation required
by this habitat management funding is
not likely to provide much added
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benefit to the species, as one of the
primary threats to the Taylor’s
checkerspot butterfly is the loss and
degradation of its habitat, therefore
habitat considerations will already play
into the jeopardy determination for the
subspecies in the currently occupied
area at Scatter Creek, and the additional
consideration of adverse modification of
critical habitat is unlikely to result in a
different outcome. In addition, for both
Scatter Creek and West Rocky Prairie,
the action most likely to be consulted on
is itself intended to benefit prairieassociated species, therefore the
outcome of consultation is unlikely to
provide a significant additional benefit
to the species as a result of critical
habitat designation.
The Service has coordinated with
WDFW on conservation actions to be
implemented for the Taylor’s
checkerspot butterfly at the Scatter
Creek Wildlife Area and West Rocky
Prairie Wildlife Area in south Thurston
County, Washington. As with the NAPs
in Thurston County, management of the
prairie Wildlife Areas in Thurston
County is guided in large part by the
South Puget Sound Prairie Landscape
Working Group, which was established
in 1994, to promote and improve the
management and planning of
conservation actions on south Puget
Sound prairies and associated habitats.
This is a well-established group that is
expected to continue its coordination
efforts into the foreseeable future.
Designation of these Wildlife Areas as
critical habitat would yield no
additional benefit to the outputs of the
Working Group, its members, or their
ease of coordination, as the active, longterm efforts of this group are expected
to continue regardless of the designation
of critical habitat. The incremental
benefit from designating critical habitat
for Taylor’s checkerspot butterfly in
these areas is further minimized because
of the long-standing management
planning efforts that have been
implemented and planned for the two
Wildlife Areas and the associated
private land inholding, which is
managed using the same management
methods as the Wildlife Areas. These
properties have implemented
management for the conservation of
prairie habitat and prairie associated
species. Each Wildlife Area focuses
their management to promote the
production of larval host and adult
nectar food resources for the Taylor’s
checkerspot butterfly, and these areas
contain several of the essential physical
or biological features to support the
subspecies. Management planning for
each of the Wildlife Areas has
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established a track record of activity
focused on enhancing prairie
composition and structure. The
conservation measures regularly
implemented at the Wildlife Areas have
recently been refocused through the
development of site specific restoration
plans for each location to benefit the
Taylor’s checkerspot butterfly and other
rare prairie butterflies (Hays 2013). The
restoration being implemented and the
guidance from the management plan
provides greater protection to Taylor’s
checkerspot butterfly habitat than the
designation of critical habitat, since the
planning effort is intended to actively
improve the structure and composition
of the habitat (the designation of critical
habitat does not require any active
management). Therefore, the existing
management at this site will provide
greater benefit than the regulatory
designation of critical habitat, which
only requires the avoidance of adverse
modification and does not require the
creation, improvement, or restoration of
habitat.
Another potential benefit of including
Wildlife Area lands in a critical habitat
designation is that it serves to educate
landowners, State and local
governments, and the public regarding
the potential conservation value of an
area. This helps focus and promote
conservation efforts by other parties by
identifying areas of high conservation
value for the Taylor’s checkerspot
butterfly. The designation of critical
habitat informs State agencies and local
governments about areas that could be
conserved under State laws or local
ordinances. Any additional information
about the needs of the Taylor’s
checkerspot butterfly or its habitat that
reaches a wider audience can be of
benefit to future conservation efforts.
During the spring of 2013 alone, the
Service hosted two prairie workshops,
one public hearing, and two local
Thurston County events attended by
nearly 1,000 people to publicize and
educate local community members of
the species’ declining distribution, and
the threat to the native flora and fauna
found on western Washington prairies.
An important conservation measure that
is gained through these outreach
networks is the ability to educate the
public about the historical role and
current importance of prairies to our
local community and economy.
Included among the outreach measures
is the distribution of educational
material, and encouraging landowners
to conduct prairie restoration activities
on their properties. Additional events
are expected to occur in the future, and
designation of the Wildlife Areas as
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critical habitat is not expected to
increase the number of such meetings or
improve their outcomes. Therefore, the
incremental benefit of critical habitat in
terms of education value is negligible.
The incremental benefit of inclusion
is minimized because of the longstanding management planning efforts
for each Wildlife Area, and the
associated private inholding, as
discussed above. In addition, the
restoration plans provide greater
protection to Taylor’s checkerspot
butterfly habitat than the designation of
critical habitat, since the planning effort
is intended to actively improve the
structure and composition of the
habitat. Therefore, designation of
critical habitat on these areas would not
provide any additional management
focus that is not already occurring at
these locations under Washington State
management authority, through plans
developed through the Service’s
recovery program, or through the DOD
ACUB funding authority which has
provided funding support for many of
our local protected prairies, including
these Wildlife Areas.
Benefits of Exclusion—Scatter Creek
Wildlife Area and Adjacent Private
Land; West Rocky Prairie Wildlife
Area—The benefits of excluding these
two Wildlife Areas and the associated
private inholding from designated
critical habitat are substantial. We have
worked to sustain a close partnership
with WDFW through regular
coordination and the development of
the Wildlife Area management plans.
The management plans contain
provisions that will improve the
conservation status of the Taylor’s
checkerspot butterfly. Measures
contained in the management plans are
consistent with recommendations from
the Service for the conservation of the
Taylor’s checkerspot butterfly, and will
afford benefits to the subspecies and its
habitat.
Excluding these Wildlife Areas and
associated private inholding from
critical habitat designation will provide
significant benefits in terms of
sustaining and enhancing the excellent
partnership between the Service,
WDFW, and the private landowner, as
well as other partners who participate in
prairie management decision-making,
with positive consequences for
conservation. The willingness of WDFW
and the private landowner to undertake
conservation efforts for the benefit of the
Taylor’s checkerspot butterfly and to
work with the Service to develop new
management plans for the species will
continue to reinforce those conservation
efforts and our partnership, which will
support the recovery process for
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Taylor’s checkerspot butterfly. We
consider this voluntary partnership in
conservation vital to our understanding
of the status of Taylor’s checkerspot
butterfly on WDFW lands and
throughout western Washington, and
necessary for us to implement recovery
actions such as habitat protection,
restoration, and beneficial management
actions for the subspecies. Furthermore,
exclusion from critical habitat could
have the benefit of encouraging other
landowners to engage in similar
conservation partnerships and efforts,
with positive outcomes for the
conservation of listed species.
The designation of critical habitat
could have an unintended negative
effect on our relationship with nonFederal landowners due to the
perceived imposition of redundant
government regulation. If lands within
the area managed by WDFW for the
benefit of the Taylor’s checkerspot
butterfly are designated as critical
habitat, it could have a dampening
effect on our continued ability to seek
new partnerships with future
participants including States, counties,
local jurisdictions, conservation
organizations, and private landowners,
which together can implement various
conservation actions (such as safe
harbor agreements (SHAs), HCPs, and
other conservation plans, particularly
large, regional conservation plans that
involve numerous participants or
address landscape-level conservation of
species and habitats) that we would be
unable to accomplish otherwise. Our
WDFW conservation partners made a
commitment more than a decade ago to
include the Taylor’s checkerspot
butterfly in their Wildlife Area
implementation plan, and they have
engaged with and encouraged others to
join in conservation partnerships, such
as the South Puget Sound Prairie
Landscape Working Group. In addition,
the private landowner serves as a model
of voluntary conservation and may aid
in fostering future voluntary
conservation efforts by other private
parties in other locations for the benefit
of listed species; this is a significant
benefit, since the majority of listed
species occur on private lands. We
consider the positive effect of excluding
proven conservation partners from
critical habitat to be a significant benefit
of exclusion.
Benefits of Exclusion Outweigh
Benefits of Inclusion—Scatter Creek
Wildlife Area and Adjacent Private
Land; West Rocky Prairie Wildlife
Area—We have determined that the
benefits of excluding these prairie
Wildlife Areas (Scatter Creek and
adjacent private land, and West Rocky
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Prairie) from the designation of critical
habitat for the Taylor’s checkerspot
butterfly outweigh the benefits of
including these areas in critical habitat.
The regulatory and informational
benefits of inclusion will be minimal.
As noted above, a potential benefit of
inclusion would be the requirement of
a Federal agency to ensure that their
actions on these non-Federal lands
would not likely result in the
destruction or adverse modification of
critical habitat. However, this additional
analysis to determine whether a Federal
action is likely to result in destruction
or adverse modification of critical
habitat is not likely to be significant
because these covered lands are not
under Federal ownership, making the
application of section 7 less likely. Any
additional benefits of inclusion on the
section 7 process are therefore relatively
unlikely because a Federal nexus on
these lands would rarely occur. If a
Federal nexus were to occur, it would
most likely be with the Service or DOD,
and the proposed actions would be
geared toward the conservation benefits
of restoring and enhancing habitat
specifically for the Taylor’s checkerspot
butterfly, or other rare butterflies. This
type of proactive management, if
focused on the maintenance of open,
short-statured vegetative conditions that
the Taylor’s checkerspot butterfly
typically occupies, will outweigh any
benefit from the regulatory designation
of critical habitat, which only requires
the avoidance of adverse modification
and does not require the creation,
improvement, or restoration of habitat.
The South Puget Sound Prairie
Landscape Working Group partnership,
which assists with guiding management
on the Wildlife Areas, would not be
additionally benefitted due to inclusion
of the Wildlife Areas in critical habitat,
as this is a well-established, cohesive,
and productive group that has and will
continue to yield positive conservation
outcomes for Taylor’s checkerspot
butterfly on south Sound prairies,
including these Wildlife Areas,
regardless of critical habitat. The
conservation strategies of each Wildlife
Area management plan are crafted to
protect and enhance habitat for the
Taylor’s checkerspot butterfly. These
plans includes species-specific
management actions to support Taylor’s
checkerspot butterfly, avoidance and
minimization measures, and monitoring
requirements to ensure proper
implementation, which further
minimizes the benefits of including
these areas in a designation of critical
habitat.
A significant benefit of excluding
these lands is that it will help us
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maintain and foster an important and
successful partnership with our
Washington State conservation partners
who made a decision to include the
Taylor’s checkerspot butterfly in their
Wildlife Area implementation plan in
2007, when it was a State endangered
species (and a Federal candidate
species). They have encouraged others
to join in conservation partnerships as
well. Recognizing the important
contributions of our conservation
partners through exclusion from critical
habitat helps to preserve these
partnerships, and helps foster future
partnerships for the benefit of listed
species, the majority of which do not
occur on Federal lands; we consider this
to be a substantial benefit of exclusion.
For these reasons, we have determined
that the benefits of exclusion outweigh
the benefits of inclusion in this case.
Exclusion Will Not Result in the
Extinction of the Species—Scatter Creek
Wildlife Area and Adjacent Private
Land; West Rocky Prairie Wildlife
Area—We have determined that
exclusion of approximately 633 ac (256
ha) in the Scatter Creek Wildlife Area
owned by WDFW, 98 ac (40 ha) of
private land that is managed by WDFW
in the same way as Scatter Creek
Wildlife Area, and 134 ac (54 ha) of the
West Rocky Prairie Wildlife Area, lands
covered by management plans vetted by
several conservation partners working
in south Puget Sound, will not result in
the extinction of Taylor’s checkerspot
butterfly. Actions covered by the
Wildlife Area management plans will
not result in extinction of Taylor’s
checkerspot butterfly because the plans
provide for the needs of the species by
protecting, restoring, and enhancing all
the known occupied and potentially
suitable Taylor’s checkerspot butterfly
habitat under the jurisdiction of the
State; committing to the enhancement
and recruitment of additional habitat
through management on each Wildlife
Area to support meta-population
structure within the Wildlife Areas; and
implementing species-specific
conservation measures designed to
avoid and minimize impacts to the
Taylor’s checkerspot butterfly. Further,
for projects having a Federal nexus and
potentially affecting the Taylor’s
checkerspot butterfly in occupied areas,
the jeopardy standard of section 7 of the
Act, coupled with protection provided
by the voluntary Taylor’s checkerspot
butterfly conservation plans that are
available to landowners if they so
choose, would provide a level of
assurance that this subspecies will not
go extinct as a result of excluding these
lands from the critical habitat
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designation. Additionally, each of the
Wildlife Areas has a specific
management plan to guide long-term
management to direct the habitat
enhancement activities at each location.
The subspecies is also protected from
take under section 9 of the Act on all
properties where the subspecies is
found. Federal agencies would be
required to minimize the effects of
incidental take, and would be
encouraged to avoid incidental take
through the section 7 consultation
process. For these reasons, we find that
exclusion of these lands covered by
these specific Wildlife Area
management plans will not result in
extinction of the Taylor’s checkerspot
butterfly. Based on the above
discussion, the Secretary is exercising
her discretion under section 4(b)(2) of
the Act to exclude from this final
critical habitat designation portions of
the proposed critical habitat units or
subunits that are owned or managed by
WDFW, totaling about 865 ac (350 ha).
Merrill and Ring Company Voluntary
Habitat Conservation Plan
Private lands totaling 10 ac (4 ha) in
Unit 2 (Elwha) and covered under the
Merrill and Ring Company voluntary
habitat conservation plan are excluded
from this critical habitat designation
under section 4(b)(2) of the Act. Merrill
and Ring Company is a private forest
landowner whose property abuts
occupied Taylor’s checkerspot butterfly
habitat. Merrill and Ring Company has
collaboratively developed a voluntary
habitat conservation plan for the
Taylor’s checkerspot butterfly (Schaaf
and Davis 2010) in partnership with
WDFW, which was approved and
signed by WDFW and Merrill and Ring
Company on February 10, 2010, and
was recently extended from an
expiration date of December 31, 2014, to
December 31, 2020 (Schaff and Carlson
2013). The portion of WDFW’s Taylor’s
checkerspot butterfly management site
on Merrill and Ring Company property
is approximately 7 ac (3 ha) in size and
is situated on the south side of the ridge
which separates Eden Valley from
Indian Creek Valley. Despite the small
actual acreage of the management area
for Taylor’s checkerspot owned by
Merrill and Ring, the voluntary habitat
conservation plan covers 100 ac (40 ha)
of their property and acknowledges the
potential for Taylor’s checkerspot
butterfly habitat to change in extent and
quality over time. The management plan
commits to actions focused on
protecting available habitat from various
types of traffic and ground disturbance,
and the corporation has no plan to
implement any logging within the
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occupied Taylor’s checkerspot butterfly
management area at any time. Merrill
and Ring’s voluntary habitat
conservation plan defers all logging
actions through 2020, and at that time,
tree harvesting will only be
implemented in the adjacent
commercial forests, where a thinning
operation may be considered. The
voluntary habitat conservation plan
provides assurances for the restriction of
pesticides (which will not be applied
aerially within 1 mile (1.6 kilometers) of
the site) and herbicides (which will be
applied through ground-based methods
only and provides greater selectivity in
the application process). Merrill and
Ring Company has cooperated with
WDFW to allow ongoing surveys of
Taylor’s checkerspot butterflies, which
will serve as the foundation for the
monitoring of populations and habitat
conditions.
Benefits of Inclusion—Merrill and
Ring Company Voluntary Habitat
Conservation Plan—The primary effect
of designating any particular area as
critical habitat is the requirement for
Federal agencies to consult with us
under section 7 of the Act to ensure
actions they carry out, authorize, or
fund do not adversely modify
designated critical habitat. Absent
critical habitat designation in occupied
areas, Federal agencies remain obligated
under section 7 of the Act to consult
with us on actions that may affect a
federally listed species to ensure such
actions do not jeopardize the species’
continued existence.
The analysis of effects to critical
habitat is a separate and different
analysis from that of the effects to the
species. Therefore, the difference in
outcomes of these two analyses
represents the regulatory benefit of
critical habitat. The regulatory standard
is different, as the jeopardy analysis
investigates the action’s impact on the
survival and recovery of the species,
while the adverse modification analysis
focuses on the action’s effects on the
designated habitat’s contribution to
conservation. This will, in many
instances, lead to different results and
different regulatory requirements. Thus,
critical habitat designations have the
potential to provide greater benefit to
the recovery of a species than would
listing alone.
The inclusion of these private lands
as critical habitat could provide some
additional Federal regulatory benefits
for the species consistent with the
conservation standard addressed in the
Ninth Circuit Court’s decision in Gifford
Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th
Cir. 2004). As noted above, a potential
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benefit of inclusion would be the
requirement of a Federal agency to
ensure that their actions on these nonFederal lands would not likely result in
the destruction or adverse modification
of critical habitat. However, this
additional analysis to determine
whether a Federal action is likely to
result in destruction or adverse
modification of critical habitat is not
likely to be significant because these
covered lands are not under Federal
ownership, making the application of
section 7 less likely. The granting of
Federal funds for beneficial
management of Taylor’s checkerspot
butterfly habitat would provide the only
possibility for a Federal nexus covering
these lands. Although this forest
landowner may apply for a Forest
Practices permit from the State of
Washington to harvest timber, it is
unlikely to trigger a section 7
consultation, as they would not require
Federal funding or authorization for this
operation. Merrill and Ring’s proposed
management actions that may be slated
for this location are expected to involve
tree removal, which would not likely
expose Taylor’s checkerspot butterfly to
actions that would cause harm or take
of the species. The action of removing
trees has the potential to improve
conditions that would be favorable to
Taylor’s checkerspot butterflies by
reducing shade, increasing open areas,
and stimulating the establishment and
growth of host plant seeds stored in the
soil (e.g., Castilleja hispida, Plantago
lanceolata), thereby providing a benefit
to the Taylor’s checkerspot butterfly.
Another benefit of including lands in
a critical habitat designation is that it
serves to educate landowners, State and
local governments, private landowners,
and the public regarding the potential
conservation value of an area. This
helps focus and promote conservation
efforts by all parties by identifying areas
of high conservation value for the
Taylor’s checkerspot butterfly. The
designation of critical habitat informs
State agencies and local governments
about areas that could be conserved
under State laws or local ordinances.
Any additional information about the
needs of the Taylor’s checkerspot
butterfly or its habitat that reaches a
wider audience can be of benefit to
future conservation efforts and the
designation of critical habitat increases
our ability to educate private
landowners and the public during
outreach events concerning the
historical role and current importance of
grassland balds. We notified the general
public about outreach events and
hearings through a Federal Register
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notice on April 3, 2013 (78 FR 20074).
Our outreach measures included the
distribution of educational material, and
encouragement of landowners to
conduct Taylor’s checkerspot habitat
restoration activities on their own
properties. Additional events are
expected to occur in the future, and
designation of this property as critical
habitat is not expected to increase the
number of such meetings or improve
their outcomes, therefore the potential
educational value of critical habitat is
minimized.
The incremental benefit from
designating critical habitat for Taylor’s
checkerspot butterfly is further reduced
due to the long-standing management
planning efforts for the adjacent WDNR
land and the recently acquired
conservation property managed by
CNLM. These properties have been
managed for the conservation of baldassociated species and each property
provides larval host plants and adult
nectar resources for Taylor’s
checkerspot butterflies. For this reason,
they contain many of the PCEs to
support the butterfly. The management
planning for each of these properties has
established a track record of positive
conservation actions focused on
enhancing grassland bald composition
and structure at each location. All of
these lands have benefited from the
conservation measures implemented by
WDFW (Hays 2011 p. 53), the planning
efforts for WDNR managed lands, and
the voluntary habitat conservation plan
for Merrill and Ring Company. These
conservation plans provide greater
protection to Taylor’s checkerspot
butterfly habitat than the designation of
critical habitat since the planning effort
is intended to improve the structure and
composition of the habitat, and as often
as not this work may not be associated
with a Federal action.
The voluntary habitat conservation
plan from Merrill and Ring provides for
the needs of Taylor’s checkerspot
butterfly by protecting and managing
the grassland balds and implements
species-specific conservation measures
designed to avoid and minimize impacts
to Taylor’s checkerspot butterfly.
The voluntary habitat conservation
plan developed by Merrill and Ring
Company specifies that no roads would
be constructed within 400 feet (ft) (122
meters (m)) of currently occupied balds
and access to the property is restricted
by a gate. Merrill and Ring Company has
committed to no timber harvest on the
lands covered by the voluntary habitat
conservation plan through the year
2020, at which time they may consider
a thinning operation. There are plans to
conduct a regeneration harvest of the
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forested stands in 2033, and Merrill and
Ring Company agrees to buffer their
managed lands from Taylor’s
checkerspot butterfly habitat after
consultation with WDFW and the
Service.
Because of the recent success of
Taylor’s checkerspot butterfly
translocations, the planning group who
oversees the schedule for translocations
would give priority consideration to this
location for future introductions of
Taylor’s checkerspot butterfly onto high
quality bald habitat. Therefore,
designation of critical habitat would not
provide any additional management
planning effort that is not already
occurring at these locations under
WDFW management authority,
voluntary conservation planning efforts,
or restoration actions developed through
our recovery program, or through DOD
ACUB funding authority, which
provided the funding support for CNLM
to purchase the adjacent property
located at Dan Kelly Ridge.
Benefits of Exclusion—Merrill and
Ring Company Voluntary Habitat
Conservation Plan—The benefits of
excluding this private property from
designated critical habitat are
substantial. We have worked to sustain
a close partnership with WDFW and the
landowner through regular coordination
and the development of the Merrill and
Ring Company voluntary habitat
conservation plan. The voluntary
habitat conservation plan contains
provisions that will improve the
conservation status of the Taylor’s
checkerspot butterfly. Measures
contained in the plan are consistent
with recommendations from the Service
for the conservation of the Taylor’s
checkerspot butterfly, and will afford
benefits to the subspecies and its
habitat.
Excluding this private property from
critical habitat designation will provide
significant benefit in terms of sustaining
and enhancing the ongoing partnership
between the Service, WDFW, and the
private landowner, with positive
consequences for conservation. The
willingness of the private landowner to
undertake conservation efforts for the
benefit of the Taylor’s checkerspot
butterfly and to work with WDFW and
the Service to develop and employ
species conservation actions will
continue to reinforce those conservation
efforts and our partnership, which
contribute toward achieving recovery of
the Taylor’s checkerspot butterfly. We
consider this voluntary partnership in
conservation vital to our understanding
of the status of the Taylor’s checkerspot
butterfly on agricultural lands in
western Washington, and necessary for
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us to implement recovery actions such
as habitat protection and restoration,
and beneficial management actions for
this subspecies.
The designation of critical habitat
could have an unintended negative
effect on our relationship with nonFederal landowners due to the
perceived imposition of redundant
government regulation. If these private
lands, which have been managed under
preexisting conservation plans for the
benefit of Taylor’s checkerspot butterfly,
are designated as critical habitat, it
could have a dampening effect on our
continued ability to seek new
partnerships with future participants
including States, counties, local
jurisdictions, conservation
organizations, and private landowners,
which together can implement various
conservation actions (such as SHAs,
HCPs, and other conservation plans,
particularly large, regional conservation
plans that involve numerous
participants and address landscapelevel conservation of species and
habitats) that we would be unable to
accomplish otherwise. This private
landowner made a commitment to
conserve Taylor’s checkerspot
butterflies and their habitat in their
voluntary habitat conservation plan.
This private landowner serves as a
model of voluntary conservation and
may aid in fostering future voluntary
conservation efforts by other parties in
other locations for the benefit of listed
species. We consider the positive effect
of excluding proven conservation
partners from critical habitat to be a
significant benefit of exclusion.
Benefits of Exclusion Outweigh
Benefits of Inclusion—Merrill and Ring
Company Voluntary Habitat
Conservation Plan—In summary, we
determine that the benefits of excluding
the private land parcel owned and
managed by Merrill and Ring Company,
situated adjacent to lands conserved for
Taylor’s checkerspot managed by the
WDNR and the CNLM, outweigh the
benefits of including this property in
critical habitat. As described above, the
regulatory and informational benefits of
inclusion will be minimal, as these
lands are already being managed for the
conservation of Taylor’s checkerspot
butterfly under a voluntary habitat
conservation plan. Any additional
benefits of inclusion in critical habitat
based on the section 7 process are
unlikely because a Federal nexus on
these lands is not expected to occur.
In addition, the conservation
strategies of Merrill and Ring Company
voluntary habitat conservation plan for
the Taylor’s checkerspot butterfly are
designed to protect, restore, and
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enhance habitat for the subspecies. This
plan includes species-specific
management actions to support the
Taylor’s checkerspot butterfly,
avoidance and minimization measures,
and annual monitoring requirements to
ensure proper implementation, which
further minimizes the benefits that
would be provided as a result of a
critical habitat designation.
The benefit of excluding this private
land parcel is that it will help us
maintain an important and successful
conservation partnership with private
and non-governmental partners, as well
as with our State conservation partners,
WDFW, and WDNR, all of whom have
made a commitment to manage for this
subspecies and work cooperatively and
collaboratively with the Service. We
further believe that by recognizing the
voluntary habitat conservation plan
negotiated by WDFW and Merrill and
Ring Company, this voluntary plan can
serve as a model for other landowners
in developing conservation partnerships
for the benefit of endangered or
threatened species, whether that
partnership is with the Service, the
State, or another entity. As the majority
of listed species occur on private lands,
we consider these partnerships with
private landowners to be a significant
benefit for conservation. For these
reasons, we have determined that the
benefits of exclusion outweigh the
benefits of inclusion in this case.
Exclusion Will Not Result in the
Extinction of the Species—Merrill and
Ring Company Voluntary Habitat
Conservation Plan—We have
determined that exclusion of
approximately 10 ac (4 ha) of private
timber lands covered by a voluntary
habitat conservation plan by Merrill and
Ring Company will not result in the
extinction of the Taylor’s checkerspot
butterfly. Although Taylor’s checkerspot
butterfly is known to occupy an
adjacent property, it is not known to
occur at present on the Merrill and Ring
lands in question. Actions covered by
the voluntary habitat conservation plan
will not result in extinction of the
Taylor’s checkerspot butterfly because
the voluntary habitat conservation plan
provides for the needs of the butterfly
primarily by avoiding any actions that
may perpetuate take of the species or its
habitat by deferring any actions in the
vicinity of Taylor’s checkerspot
butterfly habitat for the next decade.
Any action taken at that time would be
in the form of forest thinning (e.g., tree
removal on the margins of the bald
habitat), which could contribute to the
restoration and enhancement of the
currently known occupied and
potentially suitable Taylor’s checkerspot
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butterfly habitat under the jurisdiction
of the State. There is little likelihood of
this timber company project having a
Federal nexus and therefore having an
adverse effect to Taylor’s checkerspot
butterfly in occupied areas, which
would trigger the jeopardy standard of
section 7 of the Act. Additionally, the
voluntary habitat conservation plan for
Taylor’s checkerspot butterfly entered
into by the company would provide a
level of assurance that this subspecies
will not go extinct as a result of
excluding these lands from the critical
habitat designation. The subspecies is
protected from take under section 9 of
the Act on all properties where the
subspecies is found. For these reasons,
we find that exclusion of these private
lands covered by the voluntary habitat
conservation plan for the Taylor’s
checkerspot butterfly will not result in
extinction of the Taylor’s checkerspot
butterfly. Based on the above
discussion, the Secretary is exercising
her discretion under section 4(b)(2) of
the Act to exclude from this final
critical habitat designation portions of
the proposed critical habitat unit or
subunit that are owned and managed by
the private timber company, Merrill and
Ring.
Colvin Ranch Grassland Reserve
Program Management Plan
Private lands totaling 378 ac (153 ha)
that are covered under an NRCS
Grassland Reserve Program Management
Plan are excluded from Unit 1–Rock
Prairie in this critical habitat
designation under section 4(b)(2) of the
Act. The Service has coordinated
directly with NRCS regarding
conservation actions that are being
implemented on the portion of Rock
Prairie that lies south of Old Hwy 99
(hereafter known as Colvin Ranch).
Colvin Ranch has been managed for
approximately 10 years under a longterm Grassland Reserve Program
Management Plan (GRP plan), and 530
ac (215 ha) of the property is conserved
in perpetuity by a conservation
easement held by NRCS, of which a
portion (378 ac (153 ha)) is excluded
from critical habitat. Under the GRP
plan, the landowners manage their land
using a livestock grazing guideline for
western Washington prairies developed
in partnership with NRCS. The GRP
plan uses intensive livestock grazing as
the primary tool to minimize the
invasion of prairies by Douglas fir and
other woody native and nonnative shrub
species. Additionally, pasture grasses
that are often in competition for
resources with the native prairie species
are consumed by the livestock, which
makes room for native prairie species in
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the process of restoring prairie
composition, structure and function. All
of these practices provide a positive
conservation benefit for the Taylor’s
checkerspot butterfly and its habitat.
The Service has been coordinating with
the landowners regarding the potential
use of Colvin Ranch for the
reintroduction of the Taylor’s
checkerspot butterfly to Rock Prairie.
Benefits of Inclusion–Colvin Ranch
Grassland Reserve Program
Management Plan—The primary effect
of designating any particular area as
critical habitat is the requirement for
Federal agencies to consult with us
under section 7 of the Act to ensure
actions they carry out, authorize, or
fund do not adversely modify
designated critical habitat. Absent
critical habitat designation in occupied
areas, Federal agencies remain obligated
under section 7 of the Act to consult
with us on actions that may affect a
federally listed species to ensure such
actions do not jeopardize the species’
continued existence. Colvin Ranch is
not currently occupied by the Taylor’s
checkerspot butterfly; therefore a
Federal action would not trigger a
jeopardy analysis, but would only
trigger an analysis of adverse
modification should critical habitat be
designated. The benefits derived from
including critical habitat for this
property would most likely be derived
from the potential Federal nexus
resulting from the granting of Federal
funds intended to manage the lands to
benefit prairie associated species, such
as the Taylor’s checkerspot butterfly.
However, we anticipate that section 7
consultation related to habitat
management funding is not likely to
provide much added benefit to the
species, since the action being consulted
on is itself intended to benefit prairieassociated species, including the
Taylor’s checkerspot butterfly.
Another benefit of including lands in
a critical habitat designation is that it
serves to educate landowners, State and
local governments, and the public
regarding the potential conservation
value of an area. This helps focus and
promote conservation efforts by other
parties by identifying areas of high
conservation value for Taylor’s
checkerspot butterfly. Designation of
critical habitat informs State agencies
and local governments about areas that
could be conserved under State laws or
local ordinances. Any additional
information about the needs of the
Taylor’s checkerspot butterfly or its
habitat that reaches a wider audience
can be of benefit to future conservation
efforts.
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During the spring of 2013 alone, the
Service hosted four prairie focused
workshops and one public hearing
specifically related to the proposed
listing and designation of critical
habitat. We also participated in two
local prairie education events in
Thurston County attended by nearly
1,000 people to publicize and educate
local community members of the
declining distributions and threats to
the native flora and fauna found on the
west-side prairies. One of these events
was hosted and held at Colvin Ranch.
An important conservation measure
gained through these outreach networks
is our ability to educate the public about
the historical role and current
importance of prairies to our local
community and economy. Included
among the outreach measures is the
distribution of educational material and
the benefit derived from encouraging
landowners to conduct prairie
restoration activities on their own
properties. Additional events are
expected to occur in the future, and
designation of Colvin Ranch as critical
habitat is not expected to increase the
number of such meetings or improve
their outcomes. As Colvin Ranch is
already serving as a center of
educational information regarding the
conservation of prairie habitats and
their associated species, including
Taylor’s checkerspot butterfly, any
potential additional benefit stemming
from the designation of critical habitat
on this property is negligible.
The incremental benefit from
designating critical habitat for the
Taylor’s checkerspot butterfly is further
minimized due to the long-standing
management planning efforts
implemented on Colvin Ranch. The
property owner has implemented
management for the conservation of
prairie habitat that provides larval host
and adult nectar foods for the Taylor’s
checkerspot butterfly, and the land itself
contains many of the essential physical
or biological features to support the
butterfly. The implementation of the
GRP plan for Colvin Ranch has
established a track record of activity
focused on enhancing prairie plant
composition and structure. The
conservation measures applied at Colvin
Ranch have more recently been
refocused through the development of
site-specific implementation plans for
each location to benefit Taylor’s
checkerspot butterflies and other rare
prairie butterflies. The implementation
of Colvin Ranch GRP plan provides
greater protection to Taylor’s
checkerspot butterfly habitat than the
designation of critical habitat since the
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management is intended to improve the
habitat structure and composition of the
several native prairie dominated
paddocks on Colvin Ranch (critical
habitat designation does not require
active management). In many cases, this
work is accomplished without Federal
funding, which highlights the
landowner’s willingness to continue the
partnership.
Colvin Ranch has been an active
working ranch in Thurston County since
1865. Originally over 3,000 ac (1,214 ha)
in size, it is now approximately 1,000 ac
(405 ha) and located in southern
Thurston County. Grazing systems have
been modified dramatically during this
time period. Colvin Ranch required an
improvement to the infrastructure in
order to accomplish the goal of
improving native prairie composition on
the ranch through intensive grazing, a
practice of grazing greater numbers of
cows on specific pastures (paddocks) for
shorter time periods. Miles of fencing
were erected to partition the fields into
intensively managed paddocks, and in
each paddock a water source was made
available. The intensive management
regime requires that livestock be moved
often according to vegetation height or
soil condition changes specified in the
GRP management plan. The Colvin
Ranch has been partitioned into 35
paddocks, with nearly 300 ac (120 ha)
managed for the production of native
prairie plant composition. Colvin Ranch
is presently being managed for the
benefit of the Taylor’s checkerspot
butterfly and its habitat; we have no
information to suggest that the
designation of critical habitat on this
property would generate any added
benefit to the already positive
management efforts being implemented.
Benefits of Exclusion—Colvin Ranch
Grassland Reserve Program
Management Plan—The benefits of
excluding this private property from
designated critical habitat are
substantial. We have developed a close
partnership with the landowner and
NRCS through regular coordination and
outreach activities, using Colvin Ranch
as an example of land uses that are
compatible with prairie conservation.
The GRP plan provisions that will
improve the conservation status of the
Taylor’s checkerspot butterfly include
novel grazing practices which have
resulted in the dramatic increase and
maintenance of diverse larval and adult
food resources for the subspecies.
Measures contained in the GRP plan are
consistent with recommendations from
the Service for the conservation of the
Taylor’s checkerspot butterfly, and will
afford benefits to the subspecies and its
habitat.
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Excluding this private property from
critical habitat designation will provide
a significant benefit in terms of
sustaining and enhancing the excellent
partnership between the Service, NRCS,
and the private landowner, as well as
other partners who participate in prairie
management decision-making, with
positive consequences for conservation.
The willingness of the private
landowner to undertake conservation
efforts for the benefit of the Taylor’s
checkerspot butterfly and work with
NRCS and the Service to develop and
employ conservation actions, will
continue to reinforce those conservation
efforts and our partnership, which
contribute toward achieving recovery of
the Taylor’s checkerspot butterfly. We
consider this voluntary partnership in
conservation vital to the development of
our understanding of the status of
Taylor’s checkerspot butterfly on
agricultural lands in western
Washington, and necessary for us to
implement recovery actions such as
habitat protection, restoration, and
beneficial management actions for this
subspecies.
The designation of critical habitat
could have an unintended negative
effect on our relationship with nonFederal landowners due to the
perceived imposition of government
redundant regulation. Designation of
critical habitat on private lands that are
managed for the benefit of prairie
species, including the Taylor’s
checkerspot butterfly, could have a
dampening effect on our continued
ability to seek new partnerships with
future participants including States,
counties, local jurisdictions,
conservation organizations, and private
landowners. Together, these parties can
implement various cooperative
conservation actions (such as SHAs,
HCPs, and other conservation plans,
particularly large, regional conservation
plans that involve numerous
participants and/or address landscapelevel conservation of species and
habitats) that we would be unable to
accomplish otherwise. This private
landowner made a commitment almost
a decade ago to develop and implement
this GRP management plan, which has
restored much of Rock Prairie to habitat
favorable to the reintroduction of the
Taylor’s checkerspot butterfly, and they
have engaged with and encouraged
other parties, both public and private, to
join in conservation partnerships.
Further, we have been coordinating
with this landowner about the potential
for using Rock Prairie as a
reintroduction site for the Taylor’s
checkerspot butterfly. We believe Colvin
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Ranch would be less likely to
participate in the reintroduction of the
Taylor’s checkerspot butterfly to Rock
Prairie or to encourage others to
participate in similar grazing intensive
ranching practices that restore Taylor’s
checkerspot butterfly habitat if critical
habitat were to be designated on this
property. This private landowner serves
as a model of voluntary conservation
and may aid in fostering future
voluntary conservation efforts by other
parties in other locations for the benefit
of listed species. Most endangered or
threatened species do not occur on
Federal lands. As the recovery of these
species will therefore depend on the
willingness of non-Federal landowners
to partner with us to engage in
conservation efforts, we consider the
positive effect of excluding proven
conservation partners from critical
habitat to be a significant benefit of
exclusion.
Benefits of Exclusion Outweigh
Benefits of Inclusion—Colvin Ranch
Grassland Reserve Program
Management Plan—In summary, we
determine that the benefits of excluding
the NRCS GRP managed prairies at
Colvin Ranch from the designation of
critical habitat for the Taylor’s
checkerspot butterfly outweigh the
benefits of including these areas in
critical habitat. The regulatory and
informational benefits of inclusion will
be minimal. Furthermore, any potential
additional benefits of inclusion on the
section 7 process are relatively unlikely
because a Federal nexus on these lands
would rarely occur. If one were to occur,
it would most likely be with the Service
or NRCS, and their actions will be
geared toward the conservation benefits
of restoring and enhancing habitat
specifically for the Taylor’s checkerspot
butterfly, or other rare butterflies. This
type of management is focused on the
maintenance of open, short statured
vegetative conditions that Taylor’s
checkerspot butterflies typically occupy.
Since any action likely to be the subject
of consultation under the adverse
modification standard on this
unoccupied area would be focused on
providing positive habitat benefits for
the Taylor’s checkerspot butterfly, we
find it unlikely that critical habitat
would result in any significant
additional benefit to the subspecies.
Furthermore, the benefits of including
this area in critical habitat are reduced
since significant management actions
are already underway to restore the
prairie habitat in this area for the benefit
of rare butterflies, including Taylor’s
checkerspot butterfly. In this instance,
the GRP plan for Colvin Ranch contains
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provisions for protecting and restoring
prairie habitat for the Taylor’s
checkerspot butterfly on Rock Prairie
that exceed the conservation benefits
that would be afforded through section
7 consultation.
A significant benefit of excluding
these lands is that it will help us
maintain and foster an important and
successful partnership with this private
landowner partner and NRCS. They
have consistently supported
stewardship of prairie habitat beneficial
to the conservation of the Taylor’s
checkerspot butterfly and have
consistently encouraged others to join in
conservation partnerships as well. The
exclusion of Colvin Ranch will serve as
a positive conservation model, and
encourage other private landowners to
partner with the Service for the purpose
of conserving listed species. For these
reasons, we have determined that the
benefits of exclusion outweigh the
benefits of inclusion in this case.
Exclusion Will Not Result in the
Extinction of the Species—Colvin Ranch
Grassland Reserve Program
Management Plan—We have
determined that exclusion of
approximately 378 ac (153 ha) for the
portion of Rock Prairie managed under
the GRP management plan implemented
at Colvin Ranch will not result in
extinction of the Taylor’s checkerspot
butterfly. Presently, Rock Prairie is
unoccupied by the Taylor’s checkerspot
butterfly, but it was previously known
to fly in great abundance on Rock
Prairie. Actions covered by the GRP
management plan will not result in the
extinction of the Taylor’s checkerspot
butterfly because: (i) The butterfly is not
present on Colvin Ranch at this time; (ii)
the management implemented on
Colvin Ranch has continually improved
the prairie habitat during the 9 years it
has been practiced; and (iii)
management of the prairie paddocks
will continue and be modified over time
as new information is gained through
systematically monitoring the results of
their intensive grazing system.
Benton County Prairie Species HCP,
Oregon
Approximately 106 ac (43 ha) of lands
owned by Benton County (Oregon) and
proposed as critical habitat for the
Taylor’s checkerspot butterfly are
covered under the Benton County
Prairie Species HCP and are excluded
from Unit 4 of this critical habitat
designation under section 4(b)(2) of the
Act. The Benton County Prairie Species
HCP has a 50-year term and addresses
lands owned or managed by Benton
County and any private lands in the
County that contain wet or upland
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prairie habitat in Benton County. This
HCP includes provisions for long-term
planning, avoiding and minimizing
impacts to habitat for the species that
are covered under the HCP, and
mitigating for habitat losses when it is
unavoidable. The Benton County Prairie
Species HCP covers a total of roughly
11,700 ac (4,734 ha) of lands and rightsof-way within Benton County with
prairie habitat, of which Benton County
owns approximately 1,182 ac (478 ha).
On January 14, 2011, a section
10(a)(1)(B) permit was issued to the
County under the Act. The seven
species covered under this HCP
exclusively occupy prairie and prairielike habitats and include the Taylor’s
checkerspot butterfly, Fender’s blue
butterfly (Icaricia icarioides fenderi),
Bradshaw’s lomatium (Lomatium
bradshawii), Kincaid’s lupine (Lupinus
oreganus), peacock larkspur
(Delphinium pavonaceum), Nelson’s
checkermallow (Sidalcea nelsoniana),
and Willamette daisy (Erigeron
decumbens).
Covered activities include grounddisturbing construction activities
associated with home building, farming,
and forestry practices; management of
public lands and lands owned or
managed by conservation organizations;
and activities providing essential public
services in the County (e.g.,
transportation and water system
management, and utilities construction
and maintenance). Cooperators under
the HCP include: the City of Corvallis,
Oregon Department of Transportation,
Oregon State University, Greenbelt Land
Trust, Pioneer Telephone Cooperative,
and NorthWest Natural Gas.
The overall biological goal of this HCP
is to achieve sustainable populations of
covered species, while maintaining
local populations and fostering habitat
connectivity. The County and
cooperators will support sustainable
population numbers through
conservation measures designed to
enhance existing populations of covered
species, support their habitat, and
increase the distribution and
connectivity of their populations in
Benton County.
The Benton County Prairie Species
HCP has management goals and
objectives for sites that currently
support Taylor’s checkerspot butterflies
(Fitton Green and Beazell Memorial
Forest), and Fort Hoskins, which has
suitable habitat but has not had a
documented occurrence of Taylor’s
checkerspot butterfly for several years.
The Benton County Prairie Species HCP
will undertake prairie habitat
restoration and enhancement in the
above locations.
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Benefits of Inclusion–Benton County
Prairie Species HCP—We find that there
is minimal benefit from designating
critical habitat for the Taylor’s
checkerspot butterfly within the area
covered by the Benton County Prairie
Species HCP because, as explained
above, these covered lands are already
managed for the conservation of the
subspecies over the term of the HCP.
The Benton County Prairie Species HCP
includes a species-specific management
plan for the Taylor’s checkerspot
butterfly; avoidance and minimization
measures; and monitoring requirements
to ensure proper implementation. The
Benton County Prairie Species HCP
provides for the needs of the Taylor’s
checkerspot butterfly by protecting and
managing all current and former known
habitat areas on County owned lands
and implementing conservation
measures designed to avoid and
minimize impacts to individual Taylor’s
checkerspot butterflies. Management
guidelines were developed for areas
currently occupied by the subspecies as
well as areas that have suitable habitat
conditions but that are not known to be
currently occupied. The conservation
measures provided by the HCP will
provide greater protection to Taylor’s
checkerspot butterfly habitat than the
designation of critical habitat since they
are intended to improve habitat
conditions (critical habitat only requires
the avoidance of adverse modification;
it does not require actions to improve
habitat). Therefore, the HCP contains
provisions for protecting and
maintaining Taylor’s checkerspot
butterfly habitat that exceed the
conservation benefits that would be
afforded through section 7 consultation.
The inclusion of these covered lands
as critical habitat could provide some
additional Federal regulatory benefits
for the species consistent with the
conservation standard based on the
Ninth Circuit Court’s decision in Gifford
Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th
Cir. 2004). Because one of the primary
threats to Taylor’s checkerspot butterfly
is habitat loss and degradation, the
consultation process under section 7 of
the Act for projects in occupied areas
(Beazell Forest and Fitton Green) with a
Federal nexus will, in evaluating effects
to Taylor’s checkerspot butterfly under
the jeopardy standard, evaluate the
effects of the action on the conservation
or functionality of the habitat for the
subspecies regardless of whether critical
habitat is designated on these lands. The
analytical requirements to support a
jeopardy determination on excluded
land are similar, but not identical, to the
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requirements in an analysis for an
adverse modification determination on
included land. In unoccupied areas
(Fort Hoskins), a potential benefit of
inclusion would be the requirement of
a Federal agency to ensure that their
actions on these non-Federal lands
would not likely result in the
destruction or adverse modification of
critical habitat. The Bonneville Power
Administration (BPA) does have a
transmission line corridor right-of-way
across the northern portion of Fitton
Green that falls within the boundaries of
County-owned lands covered under the
Benton County Prairie Species HCP.
BPA conducts limited activities within
the right-of-way that are intended to
maintain the integrity of the powerlines
to deliver electrical power. Routine
maintenance activities are mostly
related to removing trees that may come
in contact with the powerlines. Tree
removal is likely to assist in maintaining
the open, short-statured vegetation
communities that Taylor’s checkerspot
butterflies require, and most often use.
Section 7 consultation related to BPA
right-of-way maintenance is not likely to
provide much benefit in reducing
impacts to critical habitat since the
nature of routine maintenance activities
that would be consulted on should be
beneficial to the long-term maintenance
of suitable habitat for the Taylor’s
checkerspot butterfly. In addition, as
noted above, as this area is occupied by
the subspecies, the effects of any
Federal action will already be analyzed
under the jeopardy standard in section
7 consultation, including effects to the
conservation value of the habitat. In
general, any Federal agency authorizing,
funding, or carrying out an action on
these HCP-covered lands would have to
consider the conservation restrictions
on these lands and incorporate
measures necessary to ensure the
conservation of these resources, thereby
reducing any incremental benefit
critical habitat may have.
Another benefit of including lands in
a critical habitat designation is that it
serves to educate landowners, State and
local governments, and the public
regarding the potential conservation
value of an area. This helps focus and
promote conservation efforts by other
parties by identifying areas of high
conservation value for the Taylor’s
checkerspot butterfly. Designation of
critical habitat informs State agencies
and local governments about areas that
could be conserved under State laws or
local ordinances. Any additional
information about the needs of the
Taylor’s checkerspot butterfly or its
habitat that reaches a wider audience
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can be of benefit to future conservation
efforts. However, the Benton County
Prairie Species HCP has already gone
through public review and included
public meetings about the prairie
conservation strategy. An important
conservation measure that is
implemented under the HCP is public
outreach. Included among the outreach
measures is the distribution of
educational materials, holding prairie
conservation workshops, and
encouraging landowners to conduct
prairie restoration activities on their
own properties. Additional educational
and informational benefits that might
arise from critical habitat designation
have already largely occurred through
public meetings and review of the draft
HCP and are going to continue to occur
through implementation of the
conservation measures of the final HCP.
The potential educational value of
critical habitat in this instance is
therefore further reduced.
Benefits of Exclusion–Benton County
Prairie Species HCP—Compared to the
minimal benefits of inclusion of this
area in critical habitat, the benefits of
excluding from designated critical
habitat the approximately 106 ac (43 ha)
of lands currently managed under the
HCP are considerable.
HCP conservation measures that
provide a benefit to the Taylor’s
checkerspot butterfly and its habitat
have been implemented since its
approval in 2011. Excluding the lands
managed under the Benton County
Prairie Species HCP from critical habitat
designation will sustain and enhance
the working relationship between the
Service and the County.
Excluding lands within HCPs from
critical habitat designation can also
facilitate our ability to seek new
partnerships with future HCP
participants including States, counties,
local jurisdictions, non-governmental
conservation organizations, and private
landowners, which together can
implement conservation actions that we
would be unable to accomplish
otherwise. If lands within the HCP plan
areas are designated as critical habitat,
it would likely have a negative effect on
our ability to establish new partnerships
to develop HCPs, particularly larger
HCPs that involve numerous
participants and address the necessary
landscape-level conservation of species
and habitats. By excluding these lands,
we preserve and enhance our current
partnerships and encourage additional
conservation actions in the future for
the Taylor’s checkerspot butterfly and
other listed species.
Benefits of Exclusion Outweigh the
Benefits of Inclusion–Benton County
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Prairie Species HCP—In summary, we
determine that the benefits of excluding
areas covered by the Benton County
Prairie Species HCP from the
designation of critical habitat for the
Taylor’s checkerspot butterfly outweigh
the benefits of including this area in
critical habitat. The regulatory and
informational benefits of inclusion will
be minimal. In areas occupied by the
Taylor’s checkerspot butterfly, any
potential consultation under section 7 of
the Act will evaluate the effects of the
action on the conservation or
functionality of the habitat for the
species regardless of whether critical
habitat is designated for these lands.
The analytical requirements to support
a jeopardy determination on excluded
land are similar, but not identical, to the
requirements in an analysis for an
adverse modification determination on
included land. The most likely Federal
nexus would be with BPA, and their
actions are generally limited to
maintaining the right-of-way to be free
of encroaching trees that may eventually
come in contact with the powerlines.
This type of right-of-way maintenance
should also maintain the open, short
statured vegetative conditions that the
Taylor’s checkerspot butterfly typically
occupies, and so benefits the
subspecies. The additional benefit of
consultation under the adverse
modification standard is therefore
minimal.
In addition, the conservation
strategies of the Benton County Prairie
Species HCP are designed to protect and
enhance habitat for the Taylor’s
checkerspot butterfly. The HCP includes
a species-specific management plan for
the Taylor’s checkerspot butterfly,
avoidance and minimization measures,
and monitoring requirements to ensure
proper implementation, which further
minimizes the benefits that would be
provided as a result of a critical habitat
designation.
The benefit of excluding these lands
is that it will help us maintain an
important and successful conservation
partnership with a county government
that voluntarily included the Taylor’s
checkerspot butterfly in its HCP when it
was a Federal candidate species, and
exclusion of these areas may encourage
others to join in conservation
partnerships as well. For these reasons,
we have determined that the benefits of
exclusion outweigh the benefits of
inclusion in this case.
Exclusion Will Not Result in
Extinction of the Species–Benton
County Prairie Species HCP—We have
determined that exclusion of
approximately 106 ac (43 ha) of lands
covered under the Benton County
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Prairie Species HCP will not result in
extinction of the Taylor’s checkerspot
butterfly because the HCP provides for
the needs of the butterfly by: protecting,
restoring, and enhancing all the known
occupied and potentially suitable
Taylor’s checkerspot butterfly habitat
under the jurisdiction of the County;
committing to the enhancement and
recruitment of additional habitat over
the term of the HCP; and, implementing
species-specific conservation measures
designed to avoid and minimize impacts
to the Taylor’s checkerspot butterfly.
Further, for projects having a Federal
nexus and affecting Taylor’s
checkerspot butterfly in occupied areas,
the jeopardy standard of section 7 of the
Act, coupled with protection provided
by the Benton County Prairie Species
HCP, would provide a level of assurance
that this species will not go extinct as
a result of excluding these lands from
the critical habitat designation. The
species is also protected from take
under section 9 of the Act on all
properties where the species is found.
Federal agencies would be required to
minimize the effects of incidental take,
and would be encouraged to avoid
incidental take through the section 7
consultation process. For these reasons,
we find that exclusion of these lands
covered by the Benton County Prairie
Species HCP will not result in
extinction of the Taylor’s checkerspot
butterfly. Based on the above
discussion, the Secretary is exercising
her discretion under section 4(b)(2) of
the Act to exclude from this final
critical habitat designation portions of
the proposed critical habitat units or
subunits that are within the Benton
County Prairie Species HCP covered
lands totaling about 106 ac (43 ha).
Non-Federal Airports
The streaked horned lark occurs on
airports because management to control
hazardous wildlife has incidentally
created suitable habitat for the
subspecies. Airports create the large,
open landscape context preferred by
streaked horned larks, and mowing and
other management practices to maintain
short-statured vegetation for aviation
safety similarly inadvertently provides
the type of vegetation utilized by the
subspecies. However, airports are not
ideal locations for focusing recovery
efforts for the streaked horned lark.
First, larks are at risk of mortality from
aircraft collisions, and have been
documented as a hazardous species at
airports (Cleary and Dolbeer 2005, p.
101). Secondly, Federal Aviation
Administration (FAA) regulations
require airports to take immediate
action to alleviate wildlife hazards
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whenever they are detected (14 CFR
139.337). This requirement to maintain
airfields free of wildlife hazards would
severely limit the potential to increase
streaked horned lark populations on
airports. Given the combined threats of
aircraft strikes and constant
management to minimize bird
populations, airports do not provide
ideal conditions for the long-term
conservation of the streaked horned
lark.
We received comments from the FAA,
airports, and airport operators
associations expressing concern that
designating critical habitat for the
streaked horned lark on airports implies
that airports are desired locations to
provide for conservation and recovery of
the streaked horned lark, which is in
conflict with their requirements to
provide safe conditions for aviation.
Several commenters recommended that
airports should be excluded from
critical habitat in favor of sites with the
potential for long-term conservation
management. This is also consistent
with comments received from one of the
proposed rule’s peer reviewers: ‘‘… bird
conservation is not and should not be a
desired component of airport
management’’ (Altman 2013, p. 6). We
agree. Although airports currently
support some of the largest populations
of streaked horned larks, we consider
airports to provide transitory suitable
habitat for the subspecies, and we have
no intention of encouraging an increase
in populations of streaked horned larks
on airports as part of our long-term
recovery strategy. Although the
development of a recovery plan will
come subsequent to the listing of the
streaked horned lark, it is our intention
that the conservation and recovery of
the subspecies will rely on the
restoration and maintenance of more
suitable natural habitats or habitats with
more compatible land uses for the
streaked horned lark.
Benefits of Inclusion–Non-Federal
Airports—We find there are minimal
benefits to including non-Federal
airport lands in critical habitat for the
streaked horned lark. As discussed
above, the designation of critical habitat
invokes the provisions of section 7.
Since the non-Federal airport lands in
question are all occupied by the
streaked horned lark, if a Federal nexus
were to occur, section 7 consultation
would be triggered by the presence of
the listed subspecies and the Federal
agency would consider the effects of its
actions on the subspecies through a
jeopardy analysis. Because one of the
primary threats to the streaked horned
lark is habitat loss and degradation, the
consultation process under section 7 of
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the Act for projects with a Federal nexus
will, in evaluating effects to the streaked
horned lark, evaluate the effects of the
action on the conservation or
functionality of the habitat for the
subspecies regardless of whether critical
habitat is designated for these lands.
The analytical requirements to support
a jeopardy determination on excluded
lands are similar, but not identical, to
the requirements in an analysis for an
adverse modification determination on
lands designated as critical habitat.
However, the additional conservation
value that could be attained through the
adverse modification analysis for
critical habitat under section 7 would
likely not be significant, and would be
triggered only in the event of a Federal
action.
Another benefit of including lands in
a critical habitat designation is that it
serves to educate landowners, State and
local governments, and the public
regarding the potential conservation
value of an area. This helps focus and
promote conservation efforts by other
parties by identifying areas of high
conservation value for the streaked
horned lark. The designation of critical
habitat at airports would highlight the
stable habitats that have been
unintentionally created on non-Federal
airport lands, and which are known to
be used by streaked horned larks as
breeding and wintering habitats.
However, airport managers are already
aware of the presence of the streaked
horned lark, and some airports have
already incorporated management for
the streaked horned lark into their
operating plans (for example, Olympia
Regional Airport; see Benefits of
Exclusion–Non-Federal Airports,
below); this existing knowledge reduces
the benefits of including these nonFederal airport lands in the critical
habitat designation. Since airport
managers are already aware of the
presence of the streaked horned lark on
their lands, and in some cases existing
management already benefits the
streaked horned lark and would not be
altered by the designation of critical
habitat, we believe the potential
educational benefit of critical on nonFederal airports will be extremely
limited.
The Service has no intention of
promoting increased populations of
streaked horned larks on airports as part
of the long-term recovery and
conservation strategy for the subspecies.
Although non-Federal airports
inadvertently provide suitable habitat
for streaked horned larks, we consider
airport habitats to be of relatively low
conservation value over the long term.
Our conservation strategy for the
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streaked horned lark will focus on the
restoration and management of natural
habitats for the subspecies, free of the
risks and disturbance associated with
air traffic; the designation of critical
habitat on airports would thus run
counter to our overall conservation
strategy for the streaked horned lark.
Therefore, while we find some benefits
of including non-Federal airport lands
in the designation of critical habitat for
the streaked horned lark, we find these
benefits are reduced due to the known
presence of streaked horned larks on
their lands and existing management
already benefiting the streaked horned
lark. As described above, we believe the
potential educational benefit of critical
habitat on non-Federal airports will
therefore be extremely limited. In
addition, the benefits of including nonFederal airport lands are further
reduced because all of these lands are
presently occupied by the streaked
horned lark, therefore should a project
having a Federal nexus take place,
section 7 consultation would occur
under the jeopardy standard—
including the consideration of potential
effects to habitat for the streaked horned
lark—regardless of the designation of
critical habitat. Finally, the benefits to
the streaked horned lark of designating
non-Federal airport lands as critical
habitat are relatively minimal because,
for reasons described above, we do not
intend to focus conservation and
recovery efforts on these lands over the
long term.
Benefits of Exclusion–Non-Federal
Airports— Compared to the minimal
benefits of including non-Federal
airport lands in critical habitat, the
benefits of excluding non-Federal
airport lands from designated critical
habitat are more substantial.
As mentioned above, managers of
non-Federal airport lands occupied by
streaked horned larks are generally
aware of the presence of the subspecies,
and in some cases airport managers
have already developed management
plans that provide benefits to the
streaked horned lark. The exclusion of
non-Federal airport lands from the
designation of critical habitat would
allow us to foster a positive
conservation partnership with airport
entities in the future, and encourage the
development of beneficial management
plans such as that developed for the
Olympia Regional Airport in
Washington. These conservation
partnerships have the potential to
produce tangible conservation results
for the streaked horned lark as
evidenced by the development of
management plans that consider the
needs of streaked horned larks and other
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prairie-dependent species. For example,
the Olympia Regional Airport Master
Plan (Airport Master Plan) and Sensitive
Species and Priority Habitats Inventory
and Management Plan that the Olympia
Regional Airport is implementing will
provide long-term protection for the
streaked horned lark, and serves as a
model that the Service will use in the
development of partnership agreements
with other airports after the subspecies
is listed. Fostering these positive
conservation partnerships is a
significant benefit of exclusion from
critical habitat. Below we present
specific details of the conservation
partnership with the Olympia Regional
Airport as a model that we will use in
discussions with other non-Federal
airports in partnering for the
conservation of the streaked horned
lark.
The conservation partnership
developed between the Service, WDFW,
and the Olympia Regional Airport over
many years has resulted in positive
actions to address and minimize
impacts or potential conflicts to prairiedependent species, including the
streaked horned lark, from activities
conducted on airport property. As
evidence of the positive benefits that
have accrued from this partnership, and
that could be gained from the pursuit of
other similar partnerships, the Port of
Olympia has agreed to protect the
streaked horned lark at the Olympia
Regional Airport and to inventory,
manage and maintain habitat for the
streaked horned lark and other prairiedependent species on the airport. The
Airport Master Plan outlines State,
county, and city regulations and
ordinances related to critical areas, as
well as FAA safety regulations and
compliance responsibilities, and
strategies for the protection of Statelisted and sensitive species while
meeting the needs of the airport as an
Essential Public Facility (Port Of
Olympia 2013, pp. 7–12). The June 2013
Update to the Airport Master Plan
includes commitments to follow
recommendations provided by WDFW
for the protection of State-listed and
sensitive species present on the airport,
including: (1) Minimizing the amount of
impervious surfaces; (2) maintaining
and/or creating suitable habitat
(sparsely vegetated areas with annual
and native grasses, less than 10 percent
woody shrubs, and high percent of bare
ground); (3) avoiding activities such as
mowing, special events, and off-road
driving and recreational activities in or
near the areas used by streaked horned
larks during the nesting season (March
15 to August 15); (4) working
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cooperatively with the State on annual
streaked horned lark surveys; and (5)
avoiding development or construction
of permanent buildings within
approximately 330 ft (100 m) of streaked
horned lark nesting areas (Port of
Olympia 2013, pp. 15–17). The sensitive
species management plan that the
Olympia Regional Airport is
implementing will provide long-term
protection for the streaked horned lark
and can serve as an example that other
airports could use or follow in the
development of partnership agreements
with the Service after the subspecies is
listed. Designating critical habitat on
airports could negatively impact our
ability to pursue and develop such
beneficial conservation partnerships
with other airports and would not
provide any additional conservation
benefits to the subspecies; therefore we
have determined that fostering these
positive conservation partnerships is a
significant benefit of exclusion from
critical habitat.
An additional benefit of exclusion is
signaling that we intend to direct the
focus of recovery efforts for the streaked
horned lark on other, more natural
prairie or grassland habitats or habitats
with more compatible uses with greater
long-term conservation value, and
avoiding the misperception that the
Service wishes to concentrate on
airports as sites essential for the
recovery of the streaked horned lark.
Section 3(5)(A) of the Act defines
‘‘critical habitat’’ as the specific areas
within the geographical area occupied
by the species at the time it is listed on
which are found those physical or
biological features essential to the
conservation of the species.
‘‘Conservation’’ is further defined in
section 3(3) of the Act as the use of all
methods and procedures which are
necessary to bring any endangered or
threatened species to the point at which
the measures provided pursuant to the
Act are no longer necessary. These
definitions clearly demonstrate that the
purpose of critical habitat designation is
to serve as locations of recovery efforts
for listed species. However, as noted
above, streaked horned larks face a risk
of mortality from airstrikes as a result of
occupying airport lands. Although
airports currently support some
relatively large populations of the
subspecies, airports are clearly not ideal
for conservation and recovery efforts
aimed at further increasing the
abundance of streaked horned larks.
Recovery efforts would be more
effectively concentrated on areas
capable of supporting long-term viable
populations of streaked horned larks
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with the potential for increases in
population size. Although airports
clearly provide an interim benefit to the
subspecies (and will likely continue to
provide habitat for small populations),
recovery will require restoration and
management of new sites that can
sustain increasing populations of
streaked horned larks in the long term,
in locations that do not pose a
heightened risk of mortality to streaked
horned larks. The Service does not
intend to focus on increasing
populations of the streaked horned lark
on airport lands as part of the
subspecies’ long-term recovery strategy.
The exclusion of non-Federal airport
lands would thus align with our longterm conservation strategy that we are
likely to develop for the streaked horned
lark, and more appropriately signal our
intention to direct recovery efforts to the
restoration and maintenance of more
natural habitats for the subspecies; we
consider this to be a significant benefit
of exclusion as well.
Benefits of Exclusion outweigh the
Benefits of Inclusion–Non-Federal
Airports—The benefits of including
non-Federal airport lands in the
designation are small. Because one of
the primary threats to the streaked
horned lark is habitat loss and
degradation, the consultation process
under section 7 of the Act for projects
with a Federal nexus will, in evaluating
effects to the streaked horned lark,
evaluate the effects of the action on the
conservation or functionality of the
habitat for the subspecies regardless of
whether critical habitat is designated for
these lands. The analytical requirements
to support a jeopardy determination on
excluded land are similar, but not
identical, to the requirements in an
analysis for an adverse modification
determination on lands designated as
critical habitat. Although not
specifically intended to provide for the
conservation of the streaked horned
lark, management for aviation safety at
airports already inadvertently results in
actions that create and maintain
streaked horned lark habitat, benefits
that exceed the conservation benefits
afforded through section 7 consultation.
Since designation as critical habitat
would not change these already positive
management efforts, the benefits of
including these lands in critical habitat
are small, and are reduced by other
considerations, as described below.
The educational benefit of critical
habitat is minimal in this case; since all
non-Federal airport lands in question
are occupied by streaked horned larks,
any potential educational benefit of
critical habitat is reduced by the fact
that airport managers are already aware
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of the presence of the subspecies and its
habitat needs. In fact, in some cases,
airport managers have already
incorporated conservation provisions
for streaked horned larks and other
prairie species into their management
plans. Importantly, it is not the Service’s
intention to focus on airport lands as
essential sites for recovery; although
airports provide important interim
habitat, they also carry an associated
risk of mortality to the birds through
airstrikes, and regulations requiring the
minimization of wildlife hazards at
airports are not compatible with efforts
to increase populations of birds in these
areas. The Service intends to focus longterm recovery efforts for the streaked
horned lark on other, more natural areas
of prairie or grassland habitat or habitat
with more compatible land uses of
higher conservation value. The
designation of non-Federal airport lands
as critical habitat would be at odds with
our long-term recovery strategy that we
are likely to develop for the streaked
horned lark, thereby further reducing
any benefit from including these lands
in critical habitat.
On the other hand, the benefits of
exclusion are relatively substantial.
Excluding airports would allow the
Service to develop conservation
partnerships with airport managers, and
potentially result in the implementation
of management plans at airports
designed to benefit the conservation of
the streaked horned lark. As we have
seen through the example set at the
Olympia Regional Airport, airport
management plans have the potential to
provide for significant conservation and
management of streaked horned larks, to
help maintain populations of this
subspecies in the interim pending
restoration of more natural habitats with
compatible uses to achieve recovery of
this subspecies. Exclusion of these lands
from critical habitat will help foster
partnerships we have developed with
airport entities such as the Port of
Olympia, which has developed an
impressive management plan for the
benefit of the streaked horned lark and
other prairie species. Furthermore, this
partnership may aid in fostering future
cooperative relationships with other
airport entities in other locations for the
benefit of streaked horned larks.
Another significant benefit of
exclusion is signaling our intention to
focus recovery efforts more
appropriately on the restoration and
management of other, more natural
habitats with compatible uses for
increasing populations of the streaked
horned lark over the long term. Streaked
horned larks are at risk of mortality from
airstrikes at airports. Although airports
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may serve as interim habitat for the
streaked horned lark, the inclusion of
airports in critical habitat would be
contrary to our long-term conservation
strategy for the subspecies. As we do not
wish to create the impression that we
consider airport lands as sites essential
for the recovery and conservation of
streaked horned larks, exclusion of
these lands would benefit the
subspecies by directing recovery efforts
to other natural areas with greater longterm conservation value.
Based on our evaluation of the
benefits of inclusion versus the benefits
of exclusion, we determine that the
benefits of excluding non-Federal
airport lands from the designation of
critical habitat for the streaked horned
lark outweigh the benefits of including
these areas in critical habitat. The
Secretary is therefore exercising her
discretion under section 4(b)(2) of the
Act to exclude the following airports
from critical habitat for the streaked
horned lark:
(1) Sanderson Field in Unit 1—376 ac
(152 ha).
(2) Olympia Airport in Unit 1— 575
ac (233 ha).
(3) Portland International Airport and
Broughton Beach in Unit 3—431 ac (174
ha).
(4) McMinnville Municipal Airport in
Unit 4—600 ac (243 ha).
(5) Salem Municipal Airport in Unit
4—534 ac (216 ha).
(6) Corvallis Municipal Airport in
Unit 4—1,103 ac (446 ha).
(7) Eugene Airport in Unit 4—313 ac
(126 ha).
A small portion of land proposed for
critical habitat is adjacent to Portland
International Airport at Broughton
Beach on the Columbia River; this
parcel is owned by Metro (the regional
government). The concerns discussed
above also apply to this portion of the
Portland International Airport;
therefore, we are also excluding
Broughton Beach from critical habitat
designation. The total acreage of the
exclusions described above is
approximately 3,932 ac (1,590 ha).
Occupied lands excluded under
section 4(b)(2) of the Act are still
considered essential to the conservation
of the species. Such areas were
proposed as critical habitat because they
provide the essential physical or
biological features to support the life
history of the streaked horned lark.
Exclusion should never be interpreted
as meaning that such areas are
unimportant to the conservation of the
species. Exclusion is based upon a
determination by the Secretary that the
benefit of excluding these essential
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areas outweighs the benefit of including
them in critical habitat.
Exclusion Will Not Result in the
Extinction of the Species—Non-Federal
Airports—Exclusion will not result in
extinction of the streaked horned lark
because each of the airports proposed as
critical habitat is occupied by the
subspecies; therefore Federal agency
actions that require section 7
consultation will be required to meet
the jeopardy standard for any actions
that may affect the streaked horned lark
at those sites. This consultation
requirement will safeguard the streaked
horned lark from extinction, regardless
of the area’s designation as critical
habitat.
Tribal Lands—Exclusions Under
Section 4(b)(2) of the Act
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951); Executive
Order 13175; and the relevant provision
of the Departmental Manual of the
Department of the Interior (512 DM 2),
we coordinate with federally-recognized
tribes on a government-to-government
basis. Further, Secretarial Order 3206,
‘‘American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Endangered Species Act’’ (1997)
states that (1) critical habitat shall not be
designated in areas that may impact
tribal trust resources, may impact
tribally-owned fee lands, or are used to
exercise tribal rights unless it is
determined essential to conserve a listed
species; and (2) in designating critical
habitat, the Service shall evaluate and
document the extent to which the
conservation needs of the listed species
can be achieved by limiting the
designation to other lands.
We proposed 182 ac (74 ha) of critical
habitat in an area currently occupied by
the streaked horned lark and that
provides one or more of the essential
physical or biological features for the
subspecies on lands reserved for the
Shoalwater Bay Tribe (included in Unit
3—Shoalwater Spit); these lands are
directly adjacent to other occupied
streaked horned lark habitat along the
Washington Coast. Because the streaked
horned lark moves between coastal sites
and sites on the Columbia River Islands,
based on site condition and season,
connectivity among and within these
habitats is essential for long-term
persistence and recovery of streaked
horned larks. Beach and intertidal
habitat on and adjacent to the
Shoalwater Bay Indian Reservation were
determined to be important to maintain
nesting, foraging, and wintering habitat,
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and to maintain connectivity between
occupied breeding sites on the
Washington Coast. The longstanding
and distinctive relationship between
Federal and tribal governments is
defined by treaties, statutes, executive
orders, judicial decisions, and
agreements, which differentiate tribal
governments from the other entities that
deal with, or are affected by, the Federal
government.
This relationship has given rise to a
special Federal trust responsibility
involving the legal responsibilities and
obligations of the United States toward
Native American tribes and the
application of fiduciary standards of
due care with respect to Indian lands,
tribal trust resources, and the exercise of
tribal rights. Accordingly, we are
obligated to consult with tribes based on
their unique relationship with the
Federal government. In addition, we
evaluate tribes’ past and ongoing efforts
for species conservation and the benefits
of including or excluding tribal lands in
the designation under section 4(b)(2) of
the Act.
We contacted the Shoalwater Bay
Tribe and discussed their ongoing and
future management strategies for the
streaked horned lark. During the
revision of critical habitat for the Pacific
Coast population of the western snowy
plover, we received a letter from the
Tribe describing ongoing tribal
management, conservation efforts, and
coordination with the Corps, WDFW,
and the Service to protect habitat for
snowy plover and other coastal species
important to the Tribe, including the
streaked horned lark. The Tribe
coordinates closely with the Service,
Corps, and WDFW on western snowy
plover and streaked horned lark surveys
in conjunction with their coastal
restoration project. In April, 2013, the
Shoalwater Bay Tribe submitted a
comment letter stating that they wish to
be excluded from critical habitat
designation for the streaked horned lark
(or any other species). The Tribe is
working with their legal counsel and
State and Federal agencies (Corps,
WDFW, Service) in partnership on the
development of an Ecological
Restoration Plan for the coastal beaches
and tidelands on the reservation.
We determined that approximately
182 ac (74 ha) of lands owned by, or
under the jurisdiction of, the Tribe
contained biological features essential to
the conservation of the streaked horned
lark, and therefore meet the definition of
critical habitat under the Act. These
tribal lands are located in the subunit
identified as Shoalwater Spit of Unit 3
(the Washington Coast and Columbia
River Islands). In making our final
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decision with regard to the designation
of critical habitat for the streaked
horned lark on these tribal lands, we
considered several factors, including
Secretarial Order 3206, Executive Order
13175, the President’s memorandum on
‘‘Government-to-Government Relations
with Native American Tribal
Governments’’ (59 FR 22951; April 29,
1994), conservation measures in place
on these lands that may benefit the
streaked horned lark, economic impacts
to tribes, our relationship with the
Tribe, and impacts to current and future
partnerships with the Shoalwater Bay
Tribe and other tribes we coordinate
with on endangered and threatened
species issues. Under section 4(b)(2) of
the Act, the Secretary is exercising her
discretion to exclude approximately 182
ac (74 ha) of land composed entirely of
reservation lands. We further exclude
from this final critical habitat
designation lands that develop by
accretion, which we anticipate may
become reservation lands in the near
future. As described in our analysis
below, this conclusion was reached after
considering the relevant impacts of
specifying this area as critical habitat.
Shoalwater Bay Tribe
The Shoalwater Bay Tribe (Tribe) is a
Federally-recognized Native American
tribe with a relatively small
(approximately one square mile)
reservation in Pacific County,
Washington. Lands within the
Shoalwater Bay Indian Reservation
boundary include upland forested
terrestrial habitats, a small residential
and commercial area, and coastal
marine habitats. Critical habitat for the
streaked horned lark was proposed in
the portion of the reservation with
coastal beaches. Through our ongoing
coordination with the Tribe, we have
established a partnership that has
benefitted natural resource management
on tribal lands. For our section 4(b)(2)
balancing analysis we considered our
partnership with the Tribe in our
analysis of the benefits of including and
excluding those lands under the
sovereign control of the Tribe that met
the definition of critical habitat.
Benefits of Inclusion—Shoalwater Bay
Tribe—The principal benefit of any
designated critical habitat is that
Federal activities will require section 7
consultations to ensure that adequate
protection is provided to avoid adverse
modification or destruction of critical
habitat. This would provide an
additional benefit beyond that provided
under the jeopardy standard. In
evaluating project effects on critical
habitat, the Service must be satisfied
that the PCEs and, therefore, the
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essential features of the critical habitat
likely will not be altered or destroyed by
proposed activities to the extent that the
conservation of the affected species
would be appreciably reduced. If critical
habitat were designated in areas of
unoccupied habitat or currently
occupied areas subsequently become
unoccupied, different outcomes or
requirements are also likely because
effects to unoccupied areas of critical
habitat are not likely to trigger the need
for a jeopardy analysis.
In Sierra Club v. Fish and Wildlife
Service, 245 F.3d 434 (5th Cir. 2001),
the Fifth Circuit Court of Appeals stated
that the identification of habitat
essential to the conservation of the
species can provide informational
benefits to the public, State and local
governments, scientific organizations,
and Federal agencies. The court also
noted that critical habitat designation
may focus and heighten public
awareness of the plight of listed species
and their habitats. Designation of
critical habitat may contribute to
conservation efforts by other parties by
delineating areas of high conservation
value for streaked horned lark. While
we believe this educational outcome is
important for streaked horned lark
conservation, we believe it has already
been achieved to some extent through
the existing management, education,
and public outreach efforts carried out
by the Tribe. Designation of critical
habitat on the aforementioned tribal
lands would simply affirm the
recognized conservation value of these
lands, which is already widely accepted
by conservationists, public agencies,
and most of the public.
The principal benefit of including an
area in a critical habitat designation is
the requirement for Federal agencies to
ensure that actions they fund, authorize,
or carry out are not likely to result in the
destruction or adverse modification of
any designated critical habitat, the
regulatory standard of section 7(a)(2) of
the Act under which consultation is
completed. Federal agencies must also
consult with us on actions that may
affect a listed species and refrain from
undertaking actions that are likely to
jeopardize the continued existence of
such species. The analysis of effects of
a proposed project on critical habitat is
separate and different from that of the
effects of a proposed project on the
species itself. The jeopardy analysis
evaluates the action’s impact to survival
and recovery of the species, while the
destruction or adverse modification
analysis evaluates the action’s effects to
the designated habitat’s contribution to
conservation. Therefore, the difference
in outcomes of these two analyses
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represents the regulatory benefit of
critical habitat. This will, in many
instances, lead to different results and
different regulatory requirements. Thus,
critical habitat designations may
provide greater benefits to the recovery
of a species than listing alone would do.
However, for some species, and in some
locations, the outcome of these analyses
will be similar, because effects to habitat
will often also result in effects to the
species. The tribal lands considered for
exclusion are occupied by the streaked
horned lark and will be subject to the
consultation requirements of the Act in
the future. Although a jeopardy and
adverse modification analysis must
satisfy two different standards, because
any modifications to proposed actions
resulting from a section 7 consultation
to minimize or avoid impacts to the
streaked horned lark will be habitatbased, it is not possible to differentiate
any measures implemented solely to
minimize impacts to the critical habitat
from those implemented to minimize
impacts to the streaked horned lark.
Therefore, in the case of the streaked
horned lark, we believe the benefits of
critical habitat designation are very
similar to the benefits of listing, and in
some respects would be
indistinguishable from the benefits of
listing.
Public education is often cited as
another possible benefit of including
lands in critical habitat as it may help
focus conservation efforts on areas of
high value for certain species.
Partnership efforts with the Shoalwater
Bay Tribe to conserve the streaked
horned lark and other coastal species of
concern have resulted in heightened
awareness about the subspecies.
However, we believe there is little, if
any, educational benefit attributable to
critical habitat beyond those achieved
from listing of the streaked horned lark
under the Act, and the Tribe’s efforts.
The Shoalwater Bay Tribe coordinates
regularly with the WDFW on annual
surveys for the streaked horned lark and
has partnered with the Service (Willapa
National Wildlife Refuge and Ecological
Services) to control nonnative or
invasive species and restore habitat for
the streaked horned lark and other
coastal species on the reservation.
Service coordination includes attending
meetings with tribal resource staff to
discuss ongoing projects, management
plans, and other issues that arise. We
believe our continuing coordination
with the Shoalwater Bay Tribe will
further promote awareness of the
subspecies and its conservation needs,
and will facilitate refinements to the
existing Fish and Wildlife Codes and
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Title 23 of the Tribe’s Environmental
Ordinances that protect natural
resources on the reservation.
We believe existing tribal regulations,
including the 2001 Tribal
Environmental Codes that protect the
saltmarsh and sand spit as natural areas,
will ensure that any land use actions,
including those funded, authorized, or
carried out by Federal agencies, are not
likely to result in the destruction or
adverse modification of all lands
considered for exclusion. The Tribe
coordinates with the Service on all
actions that have the potential to affect
habitat for listed species on the
reservation, including the streaked
horned lark. In 2003, the Service
completed a Planning Aid Letter, and in
2006, we wrote a Fish and Wildlife
Coordination Act Report for the Corps
(Shoalwater Bay Tribe is the project
sponsor) on the Shoalwater Coastal
Erosion Project, which entails beach
nourishment along the sand spit used by
the streaked horned lark. We completed
a section 7 consultation for this project
in 2012, which covered effects to both
the streaked horned lark and western
snowy plover. Due to construction
delays, the project was not completed
and is still ongoing. We are currently
completing formal conferencing for
potential effects to the streaked horned
lark and proposed critical habitat
related to this project. The Service
coordinated with the Tribe and the
Corps on the project design and will
provided technical input and
recommendations on the planting plan
and long-term vegetation management
on the dune. The Tribe is actively
working with the State and Federal
agencies in implementation of the
project to avoid impacts to the streaked
horned lark and its nesting habitat. The
project is designed to restore the barrier
spit that has been actively eroding over
the decades. The spit provides
protection from coastal storms and high
winter waves for the Shoalwater Bay
Indian Reservation.
Surveys for both the western snowy
plover and streaked horned lark have
been conducted by WDFW and the
Tribe on the reservation and adjacent
lands since 2000. Surveys became more
intensive in 2004 and later years (to
present) when both the western snowy
plover and streaked horned lark were
documented nesting on tribal lands on
Shoalwater spit. Although they may not
nest there every year, male streaked
horned larks were heard singing or have
been seen on Shoalwater Spit during the
nesting seasons of 2004, 2008, 2009,
2012, and 2013. The Tribe has played an
active role in surveying for and
protecting habitat for the streaked
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horned lark. In emails and comments
sent to the Service on August 31, 2011,
and April 3, 2013, the Tribe confirmed
that they will continue to use their
existing regulatory structure to provide
habitat protection for coastal species
(including the streaked horned lark) and
‘‘keep trespassers off those areas
considered most important to the
species.’’ The Corps worked closely
with the WDFW and the Service in the
development and implementation of a
species protection plan for the western
snowy plover and streaked horned lark
habitat as part of the erosion control
project. The Tribe, WDFW, and Service
are coordinating with the Corps on the
development of an Ecological
Restoration Plan for the Shoalwater Bay
Tribe which will include a planting and
long-term vegetation management plan
for the dune and restoration of the
adjacent tidelands.
Any potential impacts to the streaked
horned lark from future proposed
activities on tribal trust reservation
lands will be addressed through a
section 7 consultation using the
jeopardy standard, and such activities
would also be subject to the take
prohibitions under section 9 of the Act.
As a result, we believe the regulatory
benefits of critical habitat designation
on tribal trust reservation land would
largely be redundant with the combined
benefits of listing and existing tribal
regulations.
The designation of critical habitat for
the streaked horned lark may strengthen
or reinforce some Federal laws, such as
the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) or the
Clean Water Act (33 U.S.C. 1251 et seq.).
These laws analyze the potential for
projects to significantly affect the
environment. Critical habitat may signal
the presence of sensitive habitat that
could otherwise be missed in the review
process for these other environmental
law; however, the listing process and
consultations (which includes
conferencing on effects to critical
habitat for the streaked horned lark off
reservation lands) that have already
occurred and/or are ongoing will
provide this benefit. Therefore, in this
case we view this benefit as redundant
with the benefit the species will receive
from listing under the Act.
In summary, we believe that
designating critical habitat on the
Shoalwater Bay Indian Reservation will
provide only minimal additional
benefits for the streaked horned lark.
Projects on these lands with a Federal
nexus (e.g., funded, authorized, or
carried out by Federal agencies, such as
the U.S. Army Corps of Engineers) will
require section 7 consultation with the
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Service (regardless of critical habitat
designation) where the habitat is
occupied or the species may otherwise
be affected. Furthermore, a high level of
protection is already provided on
Shoalwater Bay Indian Reservation
lands that meet the definition of critical
habitat by existing conservation,
regulations, and management. Ongoing
coordination between the Service and
the Tribe has already raised the level of
awareness about the subspecies, and we
believe our continued coordination with
the Tribe will facilitate development of
species-specific management actions for
these lands to address the conservation
of the streaked horned lark.
Benefits of Exclusion—Shoalwater
Bay Tribe—Under Secretarial Order
3206, American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities,
and the Act, we recognize that we must
carry out our responsibilities under the
Act in a manner that harmonizes the
Federal trust responsibility to tribes and
tribal sovereignty while striving to
ensure that tribes do not bear a
disproportionate burden for the
conservation of listed species, so as to
avoid or minimize the potential for
conflict and confrontation. In
accordance with the Presidential
memoranda of April 29, 1994, and
November 9, 2009, we believe that, to
the maximum extent possible, tribes are
the appropriate governmental entities to
manage their lands and tribal trust
resources, and that we are responsible
for strengthening government-togovernment relationships with tribes.
Federal regulation through critical
habitat designation will adversely affect
the tribal working relationships we now
have and which we are strengthening
throughout the United States.
Maintaining positive working
relationships with tribes is key to
implementing natural resource
programs of mutual interest, including
habitat conservation planning efforts. In
light of the above-mentioned orders and
for a variety of other reasons described
in their comment letters and
communications, critical habitat
designation is typically viewed by tribes
as an unwarranted and unwanted
intrusion into tribal self-governance.
In the case of proposed critical habitat
for the streaked horned lark (77 FR
61937; October 11, 2012), the
Shoalwater Bay Tribe has requested to
‘‘remain excluded from any critical
habitat designation.’’ In their comments
sent to the Service on April 3, 2013, the
Tribe stated that it is their goal to ‘‘not
only protect existing habitat for native
(coastal) species but to also increase and
improve habitat’’ and to ‘‘develop
strategies for addressing threatened
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species and their habitat’’ on tribal
lands. In their comments submitted
during revisions of critical habitat for
the western snowy plover, the Tribe
‘‘continues to demonstrate its desire to
protect threatened and/or endangered
species through its management and
stewardship capabilities’’ without
‘‘externally defined designated critical
habitat designations.’’ The Tribe stated
that they wish to make ‘‘their own
determinations regarding the
Reservation and tribal trust resources’’
and we note that the Tribe has been able
to provide for the streaked horned lark
and steps are being taken to continue
that effort in the most effective way
possible. The Tribe has been working
closely with the Willapa National
Wildlife Refuge for several years on
collection, propagation, and
reintroduction of the native pink sand
verbena (Abronia umbellata) and is
propagating this species at their
greenhouse on the reservation. This
native plant has been extirpated in
Washington and was recently
rediscovered on the refuge. Efforts to
reintroduce this species along coastal
beaches that are currently occupied by
the streaked horned lark (including the
refuge and tribal lands) have been
successful and are ongoing projects. The
commitment by the Tribe to restore
habitat for this native plant and efforts
to control invasive species such as
smooth cordgrass (Spartina alterniflora)
supports their commitment to protect
habitat for streaked horned lark and
strengthens the ongoing partnership
with the Service. In their comments to
the Service on the proposed rule, the
Tribe indicated they would use their
existing regulations to protect streaked
horned lark and its habitat. These
communications clearly indicate that
designation of tribal trust reservation
lands as critical habitat for the streaked
horned lark would impact future
conservation partnership opportunities
with the Tribe. Therefore, a critical
habitat designation could potentially
damage our relationship with the
Shoalwater Bay Tribe.
We believe significant benefits would
be realized by excluding lands managed
by the Shoalwater Bay Indian Tribe
from critical habitat. These benefits
include:
(1) Continuing and strengthening of
our effective relationship with the tribe
to promote conservation of the streaked
horned lark and its habitat; and
(2) Allowing continued meaningful
collaboration and cooperation in
working toward recovering this
subspecies, including conservation
actions that might not otherwise occur.
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Because the Tribe is the entity that
enforces protective regulations on tribal
trust reservation land, and we have a
working relationship with them, we
believe exclusion of these lands will
yield a significant partnership benefit.
We will continue to work cooperatively
with the Tribe on efforts to conserve the
streaked horned lark. Therefore,
excluding these lands from critical
habitat provides the significant benefit
of maintaining and strengthening our
existing conservation partnerships and
the potential of fostering new tribal
partnerships.
Benefits of Exclusion Outweigh
Benefits of Inclusion—Shoalwater Bay
Indian Tribe—Based on the above
considerations and consistent with the
direction provided in section 4(b)(2) of
the Act, the Service has determined that
the benefits of excluding the above
tribal lands outweigh the benefits of
including them as critical habitat. This
conclusion is based on the following
factors. It is possible, although unlikely,
that Federal actions will be proposed
that would be likely to destroy or
adversely modify the habitat proposed
as critical within the area governed by
the Tribe. If such a project were
proposed, due to the specific way in
which jeopardy and adverse
modification are analyzed for the
streaked horned lark, discussed in detail
earlier in this document, it would likely
also jeopardize the continued existence
of the subspecies. Few additional
benefits are provided by including these
tribal lands in this critical habitat
designation beyond what will be
achieved through the implementation of
the existing tribal management or
conservation plans. In addition, we
expect that the benefit of informing the
public of the importance of this area to
streaked horned lark conservation
would be low.
We do not believe that inclusion of
tribal lands will significantly improve
habitat protections for the streaked
horned lark beyond what is already
provided for in the Tribe’s own
protective policies and practices,
discussed below.
The Tribe is working closely with the
Corps and the Federal and State
resource agencies on the development of
an Ecological Restoration Plan for the
Shoalwater Bay Tribe and have
provided information detailing how
they are addressing the habitat needs of
the streaked horned lark on their lands
and they are fully aware of the
conservation value of their lands for
many coastal species of concern. There
are several benefits to excluding tribal
lands. The long-standing and distinctive
relationship between the Federal and
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tribal governments is defined by
treaties, statutes, executive orders,
judicial decisions, and agreements,
which differentiate tribal governments
from the other entities that deal with, or
are affected by, the Federal government.
This relationship has given rise to a
special Federal trust responsibility
involving the legal responsibilities and
obligations of the United States toward
Indian Tribes and the application of
fiduciary standards of due care with
respect to Indian lands, tribal trust
resources, and the exercise of tribal
rights. Under these authorities, Indian
lands are recognized as unique and have
been retained by Indian Tribes or have
been set aside for tribal use. These lands
are managed by Indian Tribes in
accordance with tribal goals and
objectives within the framework of
applicable treaties and laws.
Tribal lands are currently being
managed on a voluntary basis in
cooperation with the Service and others
to conserve the streaked horned lark and
achieve important conservation goals.
We believe the streaked horned lark
benefits from the Tribe’s voluntary
management actions due to their longstanding and broad application to tribal
management decisions. Tribal
cooperation and support is required to
continue cooperative scientific efforts,
to promote the recovery of the streaked
horned lark, and to implement proactive
conservation actions. This need for the
tribal cooperation is especially acute
because, in some cases, populations
exist only on areas of tribal management
or only on tribal lands. Future
conservation efforts in this area require
the continued cooperation and support
of the Tribe. Exclusion of tribal lands
from the critical habitat designation will
help us maintain and improve our
partnership with the Tribe by formally
recognizing their positive contributions
to streaked horned lark recovery, and by
streamlining or reducing unnecessary
regulatory oversight.
Given the cooperative relationship
between the Shoalwater Bay Tribe and
the Service, and all of the conservation
benefits taken together, we believe the
additional regulatory and educational
benefits of including the tribal lands as
critical habitat are relatively small. The
designation of critical habitat can serve
to educate the public regarding the
potential conservation value of an area,
but this goal is already being
accomplished through the identification
of these areas in the tribal management
planning, development of tribal Fish
and Wildlife Codes, and through their
outreach efforts.
Because of the ongoing relationship
between the Service and the Shoalwater
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Bay Tribe through a variety of forums,
we find the benefits of these
coordination efforts to be greater than
the benefits of applying the Act’s
section 7 consultations for critical
habitat to Federal activities on tribal
lands. Based upon our consultations
with the Tribes, we believe that
designation of Indian lands as critical
habitat would adversely impact our
working relationship and the benefits
resulting from this relationship.
In contrast, although the benefits of
encouraging participation in tribal
management plans, and, more broadly,
helping to foster cooperative
conservation are indirect, enthusiastic
tribal participation and an atmosphere
of cooperation are crucial to the longterm effectiveness of the endangered
species program. Also, we have
concluded that the Tribe’s voluntary
conservation efforts will provide
tangible conservation benefits that will
reduce the likelihood of extinction and
increase the likelihood for streaked
horned lark recovery. Therefore, we
assign great weight to these benefits of
exclusion. To the extent that there are
regulatory benefits of including tribal
lands in critical habitat, there would be
associated costs that could be avoided
by excluding the area from designation.
As we expect the regulatory benefits to
be low, we likewise give weight to
avoidance of those associated costs, as
well as the additional transaction costs
related to section 7 compliance.
We reviewed and evaluated the
benefits of inclusion and the benefits of
exclusion of Shoalwater Bay Tribe tribal
trust reservation lands as critical habitat
for the streaked horned lark. We believe
past, present, and future coordination
with the Shoalwater Bay Tribe has
provided and will continue to provide
streaked horned lark habitat
conservation needs on tribal lands, such
that there would be no additional
benefit from designation of critical
habitat. Further, because any potential
impacts to the streaked horned lark from
future projects will be addressed
through a section 7 consultation with us
under the jeopardy standard, we believe
critical habitat designation on the
Shoalwater Bay Indian Reservation
would largely be redundant with the
combined benefits of listing and existing
tribal regulations and management.
Therefore, the benefits of designating
critical habitat on tribal trust reservation
lands are not significant.
On the other hand, the benefits of
excluding the Shoalwater Bay Indian
Reservation from critical habitat are
significant. Exclusion of these lands
from critical habitat will help preserve
and strengthen the conservation
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partnership we have developed with the
Tribe and will foster future partnerships
and development of management plans;
whereas inclusion will negatively
impact our relationships with the Tribe
and other tribes. We are committed to
working with the Shoalwater Bay Tribe
to further the conservation of the
streaked horned lark and other
endangered and threatened species on
the reservation. The Tribe will continue
to use their existing regulatory structure
to protect the streaked horned lark and
its habitat. The Tribe continues to
provide for indirect conservation of
streaked horned lark habitat by
implementing conservation measures
for other coastal species (such as, the
pink sand verbena) that have the same
habitat requirements. Therefore, in
consideration of the relevant impact to
our partnership and our government-togovernment relationship with the
Shoalwater Bay Indian Tribe, and the
ongoing conservation management
practices of the Tribe and our current
and future conservation partnerships
with them, we determined the
significant benefits of exclusion
outweigh the benefits of inclusion in the
critical habitat designation.
In summary, we find that excluding
the Shoalwater Bay Tribe tribal trust
reservation lands from this revised final
critical habitat will preserve our
partnership and may foster future
habitat management and species
conservation plans with the Tribe now
and in the future. These partnership
benefits are significant and outweigh the
minimal additional regulatory benefits
of including these lands in final critical
habitat for the streaked horned lark.
Exclusion Will Not Result in
Extinction of the Species—Shoalwater
Bay Tribe—We determined that the
exclusion of 182 ac (74 ha) of tribal trust
reservation lands from the designation
of streaked horned lark critical habitat
will not result in extinction of the
subspecies. The jeopardy standard of
section 7 of the Act and routine
implementation of conservation
measures through the section 7 process
due to streaked horned lark occupancy
and protection provided by under Title
23 of the Tribal Environmental
Ordinances and their Ecosystem
Restoration Plan provide assurances that
this subspecies will not go extinct as a
result of excluding these lands from the
critical habitat designation. Therefore,
based on the above discussion the
Secretary is exercising her discretion to
exclude approximately 182 ac (74 ha) of
tribal trust reservation lands managed
by the Shoalwater Bay Tribe from this
final critical habitat designation.
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Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996 (5 U.S.C 801 et seq.), whenever an
agency must publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities
(small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of an
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The SBREFA amended the RFA to
require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
In this final rule, we are certifying that
the critical habitat designation for
Taylor’s checkerspot butterfly and
streaked horned lark will not have a
significant economic impact on a
substantial number of small entities.
The following discussion explains our
rationale.
According to the Small Business
Administration, small entities include
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small organizations, such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents; as well as small
businesses. Small businesses include
manufacturing and mining concerns
with fewer than 500 employees,
wholesale trade entities with fewer than
100 employees, retail and service
businesses with less than $5 million in
annual sales, general and heavy
construction businesses with less than
$27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
if potential economic impacts on these
small entities are significant, we
consider the types of activities that
might trigger regulatory impacts under
this rule, as well as the types of project
modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
To determine if the rule could
significantly affect a substantial number
of small entities, we consider the
number of small entities affected within
particular types of economic activities
(e.g., airports, agriculture, recreation,
and habitat management). We apply the
‘‘substantial number’’ test individually
to each industry to determine if
certification is appropriate. However,
the SBREFA does not explicitly define
‘‘substantial number’’ or ‘‘significant
economic impact.’’ Consequently, to
assess whether a ‘‘substantial number’’
of small entities is affected by this
designation, this analysis considers the
relative number of small entities likely
to be impacted in an area. In some
circumstances, especially with critical
habitat designations of limited extent,
we may aggregate across all industries
and consider whether the total number
of small entities affected is substantial.
In estimating the number of small
entities potentially affected, we also
consider whether their activities have
any Federal involvement.
Designation of critical habitat only
affects activities authorized, funded, or
carried out by Federal agencies. Some
kinds of activities are unlikely to have
any Federal involvement and so will not
be affected by critical habitat
designation. In areas where the species
is present, Federal agencies already are
required to consult with us under
section 7 of the Act on activities they
authorize, fund, or carry out that may
affect Taylor’s checkerspot butterfly and
streaked horned lark. Federal agencies
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also must consult with us if their
activities may affect critical habitat.
Designation of critical habitat, therefore,
could result in an additional economic
impact on small entities due to the
requirement to reinitiate consultation
for ongoing Federal activities (see
Application of the ‘‘Adverse
Modification’’ Standard).
In our final economic analysis (FEA)
of the critical habitat designation, we
evaluated the potential economic effects
on small business entities resulting from
conservation actions related to the
listings of Taylor’s checkerspot
butterfly, streaked horned lark, and four
subspecies of Mazama pocket gopher
and the designation of critical habitat.
The analysis is based on the estimated
impacts associated with the rulemaking
as described in Appendix A of the FEA
(IEc 2013, pp. A–1–A–11) and evaluates
the potential for economic impacts
related to: Military activities; recreation
and habitat management; airport
operations and agricultural activities;
transportation, electricity distribution
and forestry activities; and dredging,
gravel mining, development, and other
activities. The FEA determined that
critical habitat designation will not
result in impacts to small entities for the
following activities (IEc 2013, p. A–4):
(1) Military activities. As the affected
base, JBLM is a Federal entity and it is,
by definition, not small, and thus no
impacts to small entities are expected.
(2) Transportation. The impacts are
limited to Washington State Department
of Transportation. As State agencies are,
by definition, not small, no impacts to
small entities are expected related to
transportation.
(3) Electricity Distribution and
Forestry Activities. The only electricity
distribution activity within the
proposed critical habitat is carried out
by the Bonneville Power Administration
(BPA), which is a Federal entity and,
therefore, is not considered small. As
such, there are no anticipated impacts to
small entities related to BPA’s
electricity distribution activities. No
incremental costs are anticipated for
forestry activities and thus no impact to
small entities related to forestry is
anticipated.
(4) Dredging. Dredging is conducted
by the U.S. Army Corps of Engineers,
which is a Federal entity and is, by
definition, not small, and thus no
impacts to small entities are expected.
Estimated incremental impacts that
may be borne by small entities are
limited to the administrative costs of
section 7 consultation related to airport
operations and agriculture as well as by
recreation and habitat restoration.
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Potential impacts on these sectors are
evaluated here:
Airport Operations and Agriculture.
Chapter 3 of the FEA discuss the
potential for the critical habitat
designations to affect airports and
agricultural activities. Overall, 214
consultations would be expected in
relation to operations at 7 airports over
the next 20 years. Information on
whether airports are large or small
entities was available for some airports
and not for others. For the purposes of
the analysis, we made the conservative
assumption that all airports within the
proposed critical habitat are small
entities. These seven entities represent 3
percent of the total small Other Airport
Operations (NAICS code 488119)
entities within the proposed critical
habitat. The cost per entity, per
consultation, to participate in forecast
consultation is approximately $875 to
$8,750 in any given year. The full cost
to a third party of a single consultation
is $875. If we assume that a single entity
participates in multiple consultations in
a single year, the administrative costs of
such activity are likely to be less than
1 percent of annual revenues (IEc 2013,
p. A–5).
We forecast two projects related to
agriculture, one at Rock Prairie and one
on M–DAC farms, which may involve
small entities. Assuming that all
agriculture and grazing impacts are
borne by these two small entities, this
amounts to less than one affected entity
per year. The per entity impact, ranging
from approximately $875 to $1,750,
represents less than 2 percent of annual
revenues (IEc 2013, p. A–5).
Recreation and Habitat Management.
A diverse group of Federal and State
agencies, county-level governments, and
private nonprofit organizations may be
subject to the administrative burden of
consultations associated with recreation
and habitat management. However, of
these, the Federal, State, and countylevel governments are not considered
small entities. Therefore, there are three
projects within the proposed critical
habitat that may involve private
nonprofit organizations that qualify as
small entities—Wolf Haven
International, Whidbey/Camano Land
Trust, and the Pacific Rim Institute for
Environmental Stewardship. Assuming
that all recreation and habitat
restoration impacts are borne by these
small private entities, this amounts to
less than one affected entity per year.
The per entity impact, ranging from
approximately $875 to $2,625 in any
given year, represents less than 1
percent of annual revenues (IEc 2013, p.
A–6).
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Recreators at JBLM may incur
unquantified losses in economic surplus
in the form of reduced or restricted
recreational use of JBLM lands proposed
as critical habitat. However, because the
recreators leasing JBLM lands are
individuals, not entities, we do not
address these impacts in this analysis.
In summary, we considered whether
this designation will result in a
significant economic effect on a
substantial number of small entities (IEc
2013, p. A–7). Based on the above
reasoning and currently available
information, we conclude that this rule
will not result in a significant economic
impact on a substantial number of small
entities. Therefore, we are certifying that
the designation of critical habitat for the
Taylor’s checkerspot butterfly and
streaked horned lark will not have a
significant economic impact on a
substantial number of small entities,
and a regulatory flexibility analysis is
not required.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare Statements of Energy Effects
when undertaking certain actions. OMB
has provided guidance for
implementing this Executive Order that
outlines nine outcomes that may
constitute ‘‘a significant adverse effect’’
when compared to not taking the
regulatory action under consideration.
The economic analysis finds that
none of these criteria is relevant to this
analysis. Thus, based on information in
the economic analysis, energy-related
impacts associated with Taylor’s
checkerspot butterfly and streaked
horned lark conservation activities
within critical habitat are not expected.
As such, the designation of critical
habitat is not expected to significantly
affect energy supplies, distribution, or
use. Therefore, this action is not a
significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following findings:
(1) This rule will not produce a
Federal mandate. In general, a Federal
mandate is a provision in legislation,
statute, or regulation that would impose
an enforceable duty upon State, local, or
tribal governments, or the private sector,
and includes both ‘‘Federal
intergovernmental mandates’’ and
‘‘Federal private sector mandates.’’
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These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or tribal governments’’
with two exceptions. It excludes ‘‘a
condition of Federal assistance.’’ It also
excludes ‘‘a duty arising from
participation in a voluntary Federal
program,’’ unless the regulation ‘‘relates
to a then-existing Federal program
under which $500,000,000 or more is
provided annually to State, local, and
tribal governments under entitlement
authority,’’ if the provision would
‘‘increase the stringency of conditions of
assistance’’ or ‘‘place caps upon, or
otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance or (ii) a
duty arising from participation in a
voluntary Federal program.’’
The designation of critical habitat
does not impose a legally binding duty
on non-Federal Government entities or
private parties. Under the Act, the only
regulatory effect is that Federal agencies
must ensure that their actions do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
will significantly or uniquely affect
small governments. The designation of
critical habitat does not impose a legally
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binding duty on non-Federal
Government entities or private parties.
Under the Act, the only regulatory effect
is that Federal agencies must ensure that
their actions do not destroy or adversely
modify critical habitat under section 7.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Therefore, this rule does
not place an enforceable duty upon
State, local, or Tribal governments, or
on the private sector.
Consequently, we do not believe that
the critical habitat designation will
significantly or uniquely affect small
government entities. As such, a Small
Government Agency Plan is not
required.
Takings—Executive Order 12630
In accordance with Executive Order
12630 (Government Actions and
Interference with Constitutionally
Protected Private Property Rights), we
have analyzed the potential takings
implications of designating critical
habitat for Taylor’s checkerspot
butterfly and streaked horned lark in
separate takings implications
assessments. As discussed above, the
designation of critical habitat affects
only Federal actions. Although private
parties that receive Federal funding,
assistance, or require approval or
authorization from a Federal agency for
an action may be indirectly impacted by
the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Critical habitat
designation does not affect landowner
actions that do not require Federal
funding or permits, nor does it preclude
development of habitat conservation
programs or issuance of incidental take
permits to permit actions that do require
Federal funding or permits to go
forward. The takings implications
assessment concludes that this
designation of critical habitat for
Taylor’s checkerspot butterfly and
streaked horned lark does not pose
significant takings implications for
lands within or affected by the
designation.
Federalism—Executive Order 13132
In accordance with Executive Order
13132 (Federalism), this rule does not
have significant Federalism effects. A
federalism impact summary statement is
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not required. In keeping with
Department of the Interior and
Department of Commerce policy, we
requested information from, and
coordinated development of, this
critical habitat designation with
appropriate State resource agencies in
Washington and Oregon. We received
comments from WDFW and solicited,
but did not receive, comments from
ODFW. We addressed the comments
from WDFW in the Summary of
Comments and Recommendations
section of this rule, and we have
incorporated informal comments and
feedback from ODFW into this rule. The
designation of critical habitat in areas
currently occupied by Taylor’s
checkerspot butterfly and streaked
horned lark imposes no additional
restrictions to those put in place by the
subspecies’ listings and, therefore, has
little incremental impact on State and
local governments and their activities.
The designation of critical habitat in
areas currently unoccupied by Taylor’s
checkerspot butterfly may impose
nominal additional regulatory
restrictions to those currently in place
and, therefore, may have little
incremental impact on State and local
governments and their activities. The
designation may have some benefit to
these governments in that the areas that
contain the physical or biological
features essential to the conservation of
the species are more clearly defined,
and the elements of the features of the
habitat necessary to the conservation of
the species are specifically identified.
This information does not alter where
and what federally sponsored activities
may occur. However, it may assist local
governments in long-range planning
(rather than having them wait for caseby-case section 7 consultations to
occur).
Where State and local governments
require approval or authorization from a
Federal agency for actions that may
affect critical habitat, consultation
under section 7(a)(2) will be required.
While non-Federal entities that receive
Federal funding, assistance, or permits,
or that otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency.
Civil Justice Reform—Executive Order
12988
In accordance with Executive Order
12988 (Civil Justice Reform), the Office
of the Solicitor has determined that the
rule does not unduly burden the judicial
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
system and that it meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of the Order. We are designating
critical habitat in accordance with the
provisions of the Act. To assist the
public in understanding the habitat
needs of the species, the rule identifies
the elements of physical or biological
features essential to the conservation of
Taylor’s checkerspot butterfly and
streaked horned lark. The designated
areas of critical habitat are presented on
maps, and the rule provides several
options for the interested public to
obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.)
This rule does not contain any new
collections of information that require
approval by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). This rule will not impose
recordkeeping or reporting requirements
on State or local governments,
individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
tkelley on DSK3SPTVN1PROD with RULES3
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
It is our position that, outside the
jurisdiction of the U.S. Court of Appeals
for the Tenth Circuit, we do not need to
prepare environmental analyses
pursuant to the National Environmental
Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) in connection with designating
critical habitat under the Act. We
published a notice outlining our reasons
for this determination in the Federal
Register on October 25, 1983 (48 FR
49244). This position was upheld by the
U.S. Court of Appeals for the Ninth
Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination With Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
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Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with tribes in developing programs for
healthy ecosystems, to acknowledge that
tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
In the proposed rule to designate
critical habitat published in the Federal
Register on October 11, 2012 (77 FR
61938), we proposed to designate about
661 ac (267 ha) of critical habitat for the
streaked horned lark in subunit 3–C
Shoalwater/Graveyard Spit, of which
about 182 ac (74 ha) was identified as
within the Shoalwater Bay Indian
Reservation. These lands are occupied
by the streaked horned lark and meet
our definition of critical habitat for the
subspecies. We indicated that we were
considering exclusion of the Shoalwater
Bay tribal lands from the designation,
due to the high degree of protection
already provided by the Tribe. We
coordinated with the Tribe to better
understand their conservation
management plans for this area, and
specifically for the streaked horned lark.
After further review and additional
information provided by the Shoalwater
Bay Tribe, the Secretary determined that
the benefits of excluding these tribal
lands outweigh the benefits of including
them in critical habitat for the streaked
horned lark, and further concluded that
such exclusion will not result in the
extinction of the subspecies. As a result,
the Secretary is exercising her discretion
to exclude the 182 ac (74 ac) of
Shoalwater Bay Tribal lands from the
final designation under section 4(b)(2)
of the Act (for details, see the Exclusions
section of this document, above).
References Cited
A complete list of all references cited
is available on the Internet at https://
www.regulations.gov and upon request
from the Service’s Washington Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this
rulemaking are the staff members of the
Washington and Oregon Fish and
Wildlife Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
recordkeeping requirements,
Transportation.
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61559
Regulation Promulgation
Accordingly, we amend part 17,
subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth
below:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; 4201–4245, 100 Stat. 3500; unless
otherwise noted.
2. Amend § 17.95 by:
(a) In paragraph (b), adding an entry
for ‘‘Streaked horned lark (Eremophila
alpestris strigata)’’ in the same order
that this species appears in the table in
§ 17.11(h); and
■ (b) In paragraph (i), by adding an entry
for ‘‘Taylor’s checkerspot butterfly
(Euphydryas editha taylori)’’ in the
same order that this species appears in
the table in § 17.11(h).
The additions read as follows:
■
■
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
*
(b) Birds.
*
*
*
*
*
Streaked horned lark (Eremophila
alpestris strigata)
(1) Critical habitat units are depicted
for Grays Harbor, Pacific, and
Wahkiakum Counties in Washington,
and Clatsop, Columbia, Marion, Polk,
and Benton Counties in Oregon, on the
maps below.
(2) Within these areas, the primary
constituent elements of the physical or
biological features essential to the
conservation of the streaked horned lark
consist of areas having a minimum of 16
percent bare ground that have sparse,
low-stature vegetation composed
primarily of grasses and forbs less than
13 inches (33 centimeters) in height
found in:
(i) Large (300-acre (120-hectare)), flat
(0–5 percent slope) areas within a
landscape context that provides visual
access to open areas such as open water
or fields; or
(ii) Areas smaller than described in
paragraph (2)(i) of this entry, but that
provide visual access to open areas such
as open water or fields.
(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, and other
paved areas) and the land on which they
are located existing within the legal
boundaries on November 4, 2013.
(4) Critical habitat map units. Data
layers defining map units were created
on 2010 aerial photography from U.S.
Department of Agriculture, National
Agriculture Imagery Program base maps
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61560
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
using ArcMap (Environmental Systems
Research Institute, Inc.), a computer
geographic information system (GIS)
program. The maps in this entry, as
modified by any accompanying
regulatory text, establish the boundaries
of the critical habitat designation. The
coordinates or plot points or both on
which each map is based are available
to the public at the Service’s Internet
site (https://www.fws.gov/wafwo), at
https://www.regulations.gov at Docket
No. FWS–R1–ES–2013–0009, and by
appointment at the Service’s
Washington Fish and Wildlife Office.
You may obtain field office location
information by contacting one of the
Service regional offices, the addresses of
which are listed at 50 CFR 2.2.
(5) Index map of critical habitat units
for the streaked horned lark follows:
BILLING CODE 4310–55–P
Critical Habitat for Streaked Homed Lark
in Washington and Oregon
N
A
LEGEND
o
•
Criticat Habitat Unils
Ccitital Habitat SUbu.,
/VHighwaifs;
OCdunIM
Otegon
CJSI3tei;
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(6) Unit 3—Washington Coast and
Columbia River Islands, Washington
and Oregon.
61561
(i) Subunit 3–A: Damon Point/Oyhut,
Washington. Map of Subunit 3–A
follows:
Critical Habitat for Streaked Homed Lark (cremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, SUbunit 3-A: Damon Point I Oyhut, Washington
1:U~OO'W
124-OVW
z
b
P
"
Grays Harbor
Padlic
Oce31
VIA SHINGTON
z
z
b
B
b
~ ~-------'-~~".-U~----------~-----------------,-~~~----------------------------j-~
N
A
M
I<i-"
II
2
4
II
•
8
Crtlical Habitat
City
/ ' . . / Road
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61562
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(ii) Subunit 3–B: Midway Beach,
Washington. Map of Subunit 3–B
follows:
Critical Habitat for Streaked Homed Lark (cremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, SUbunit 3--8: Midway Beach, washinglon
1U'VU'W
17.3'"93'O"'tf
Grays H artIOf
Padlic
WilipaBay
Padfic
Ocean
Wt.SHINGTON
1:zA.'"(J'Q'W
N
A
M
1Ii-.
I
I
4
I
I
2
0
6
I
3
•
8
I
/ ' . . / Road
4
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ll/ileo
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2
II
Critical Habitat
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61563
(iii) Subunit 3–C: Shoalwater,
Washington. Map of Subunit 3–C
follows:
Critical Habitat for Streaked Homed Lark (cremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, SUbunit 3--C: Shoalwater. Washinljon
tu'VO'W
12J-sJtJ'W
~ ~------~--------------v---~------------------------------~--------~
~
Grays H arIIor
i
!i/
WilIipaBay
Pacific
Ocean
VlASHINGTON
1:z4-mrW
N
A
0
I<i_.
2
4
•
•
«
6
Critical Habitat
City
. / \ / Road
3
2
4
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0
61564
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(iv) Subunit 3–D: Leadbetter Point,
Washington. Map of Subunit 3–D
follows:
Critical Habitat for Streaked Homed Lark (cremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-D: Leadletter Point, Washington
~ ~------~-------------r--~------------------------------L-------~
e
Grays Harbor
i
!i/
WilIipaBay
Pacilic
Ocean
VlASHINGTON
,.........
N
A
a
1<;_.
2
4
M
6
•
8
Critical Habitat
City
/ ' \ . / Road
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a
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61565
(v) Subunit 3–E: Rice Island, Oregon/
Washington. Map of Subunit 3–E
follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-E: Rice Island,
Or~n
I Washington
VII\. SHINGTON
.
..
z
z
C
C
wahlllakum
."",
J.E
~
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D
~
&
Columbia RIvEN"
Q
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•
.
KnIwkIn
b
Sl
!!I
.
z
•
Sl
S'II!nsen
!!I
Oalsop
1%3"3Ot1"W
N
A
0
1Il_.
2
4
M
6
•
8
Critical Habitat
City
/ ' . . / Road
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03OCR3
ER03OC13.005</GPH>
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61566
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(vi) Subunit 3–F: Miller Sands,
Oregon. Map of Subunit 3–F follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-F: Miller Sands, Oregon
123'".uJ.'O"W
Vll\SHINGTON
z
b
C
Wahkiakum
~~
~
&
CokImIlia River
C)
b
!2
c2-
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~
•
GuftJn
II
.
~
z
b
•
!2
S.R!iII!n
!i
Oalsop
OREGON
N
A
' " Critical Ii abilat
WisfJington
IGbmeErs
o
246
•
8
City
/ ' . . / Road
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61567
(vii) Subunit 3–G: Pillar Rock/Jim
Crow Sands, Oregon. Map of Subunit 3–
G follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-G: Pillar Rock I Jim Crow Sands, Oregon
123'"m'O'W
VII\. SHINGTON
z
b
z
C
C
b
~~
~
~\)
D
&
CoImlIJta RiVer
Q
s:J
•
.
"
Kniwlon
b
Sl
!!I
z
b
•
Sl
S.R!iII!n
!!I
Oalsop
123-:50'O"W
N
A
a
!<i_.
2
4
. . Critical Habitat
6
•
8
CIty
/ \ , / Road
3
4
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2
0
61568
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(viii) Subunit 3–H: Welch Island,
Oregon. Map of Subunit 3–H follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-H: Welch Island,
Or~n
w\SHINGTON
Wahkiakum
~~
&
Columbia llNer
C)
b
!2
c2-
ill
\§\)
D
~
s:J
•
.
II
KnIwkIn
z
b
•
!2
S'leI1!ilE!:D
iI
Oalsop
OREGON
1%3"3Ot1"W
N
A
ro_.
VlltslJingtOll
(l
4
2
. . Critical Habitat
6
•
8
City
/ \ , / Road
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61569
(ix) Subunit 3–I: Tenasillahe Island,
Oregon. Map of Subunit 3–I follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunit 3-1: Tenasillahe Island, Oregon
123'"40'O'W
VII\. SHINGTON
z
z
~
~
b
b
Wahkiakum
~~
&
ColUmbia Rver
C)
b
S!
~
ewa":
,
34
.
c:;;z
ill
~\)
D
~
~
z
b
•
S!
S.nsen
ill
OREGON
1%3'"3011'''''
N
A
0
!<i_.
4
2
. . Critical Habitat
6
•
8
City
/ ' . . / Road
3
2
4
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61570
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(x) Subunit 3–J: Whites/Brown Island,
Washington. Map of Subunit 3–J
follows:
Critical Habitat for Streaked Homed Lark (EremophiJa aJpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunits 3-J: Whites/BrONn Island, Washington
123"20tI"W
Wl.SHINGTON
OREGON
N
A.
II
M
w-.
2
4
II
•
8
Critical Habitat
city
/ ' . . / Road
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Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61571
(xi) Subunit 3–K: Wallace Island,
Oregon. Map of Subunit 3–K follows:
Critical Habitat for Streaked Homed Lark (EremophiJa aJpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunits 3-K Wallace Island, Oregon
WI. SHINGTON
OREGON
' "' WW
N
A.
o
III
Critical Habitat
1Ii-.
246
•
8
City
/ ' . . / Road
2
3
4
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61572
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(xii) Subunit 3–L: Crims Island,
Oregon. Map of Subunit 3–L follows:
Critical Habitat for Streaked Homed Lark (EremophiJa aJpestris strigata)
Unit 3: Wa Coast & Columbia River, Subunits 3--l: Crims Island,
Or~n
Wl.SHINGTON
OREGON
' ' ' O'<rW
N
A
M
Critical Habitat
I<ibmeErs
o
•
246
City
/ ' . . / Road
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61573
(xiii) Subunit 3–M: Sandy Island,
Oregon. Map of Subunit 3–M follows:
Critical Habitat for Streaked Homed Lark (Eremophila alpestris strigata)
Unit 3: Wa Coast & Columbia River, SUbunits 3-M: Sandy, Oregon
~SHINGTON
z
b
~
•
OREGON
i ~--------------------~~------~~----------------~--~------------~ i~
~
N
A
M
Wlshington
Critical Habitat
I<lIDmeErs
II
4
2
•
g
6
City
. / ' \ / Road
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61574
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(7) Unit 4—Willamette Valley,
Oregon.
(i) Subunit 4–A: Baskett Slough NWR,
Oregon. Map of Subunit 4–A follows:
Critical Habitat for Streaked Homed Lark (Etemophila alpestris strigata)
Unit 4:
Valley,
Slough
Yamhil
McCoy-
-
1~
N
A
I
~
4
,
!
Iii
$
,
I
8
I
01234
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ER03OC13.014</GPH>
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61575
(ii) Subunit 4–B: Ankeny NWR,
Oregon. Map of Subunit 4–B follows:
Critical Habitat for Streaked Homed Lark (Etemophila alpestris strigata)
Unit 4: Wlbamette Valley. Subunit 4-8: Ankeny ~gregQn
123'1_.~
,23'1_
~
•
lJ>ooty
~
•
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~
..........
•
~----~------~------------~~~--------~----------~~
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CritiCal Habitat
-City
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CJ
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03OCR3
ER03OC13.015</GPH>
tIiIDInlloOnI
2
61576
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(iii) Subunit 4–C: William L. Finley
NWR, Oregon. Map of Subunit 4–C
follows:
Critical Habitat for Streaked Homed Lark (Eremophila atpestris sttfgata)
Unit 4: VVillamltte valley, Subunit 4-C: WUliam L Finlev N.WRV. Oregon
~
~
WmI'W
123'2I!G'W
10'1_
Benton
N
A
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*
*
*
(i) Insects.
*
*
*
VerDate Mar<15>2010
,
Ii
i I I
2'
iii
,
&
..I
*
*
Taylor’s Checkerspot Butterfly
(Euphydryas editha taylori)
*
*
(1) Critical habitat units are depicted
for Island, Clallam, and Thurston
Counties in Washington, and in Benton
County in Oregon, on the maps below.
18:36 Oct 02, 2013
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CriticaL Habitat
City
/'V Road
[J County
(2) Within these areas, the primary
constituent elements of the physical or
biological features essential to the
conservation of the Taylor’s checkerspot
butterfly consist of four components:
(i) Patches of early seral, shortstatured, perennial bunchgrass plant
E:\FR\FM\03OCR3.SGM
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Gregon
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
tkelley on DSK3SPTVN1PROD with RULES3
communities composed of native grass
and forb species in a diverse
topographic landscape ranging in size
from less than 1 ac up to 100 ac (0.4 to
40 ha) with little or no overstory forest
vegetation that have areas of bare soil
for basking that contain:
(A) In Washington and Oregon,
common bunchgrass species found on
northwest grasslands include Festuca
roemeri (Roemer’s fescue), Danthonia
californica (California oat grass),
Koeleria cristata (prairie Junegrass),
Elymus glaucus (blue wild rye), Agrostis
scabra (rough bentgrass), and on cooler,
high-elevation sites typical of coastal
bluffs and balds, Festuca rubra (red
fescue).
(B) On moist grasslands found near
the coast and in the Willamette Valley,
there may be Bromus sitchensis (Sitka
brome) and Deschampsia cespitosa
(tufted hairgrass) in the mix of prairie
grasses. Less abundant forbs found on
the grasslands include, but are not
limited to, Trifolium spp. (true clovers),
narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja
hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly
sunshine (Eriophyllum lanatum), nineleaved desert parsley (Lomatium
triternatum), fine-leaved desert parsley
(Lomatium utriculatum), common
camas (Camassia quamash), showy
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fleabane (Erigeron speciosus), Canada
thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie
lupine (Lupinus lepidus), and sicklekeeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants
(narrow-leaved plantain and harsh
paintbrush) and at least one of the
secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora),
sea blush (Plectritis congesta), or dwarf
owl-clover (Triphysaria pusilla) or one
of several species of speedwell (marsh
speedwell (Veronica scutella), American
speedwell (V. beccabunga var.
americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding
that include several species found as
part of the native (and one nonnative)
species mix on northwest grasslands,
including: narrow-leaved plantain;
harsh paintbrush; Puget balsam root;
woolly sunshine; nine-leaved desert
parsley; fine-leaved desert parsley or
spring gold; common camas; showy
fleabane; Canada thistle; common
yarrow; prairie lupine; sickle-keeled
lupine; and wild strawberry (Fragaria
virginiana).
(iv) Aquatic features such as
wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide
moisture during periods of drought,
particularly late in the spring and early
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61577
summer. These features can be
permanent, seasonal, or ephemeral.
(3) Critical habitat does not include
manmade structures (such as buildings,
aqueducts, runways, roads, railroad
tracks, and other paved areas) and the
land on which they are located existing
within the legal boundaries on
November 4, 2013.
(4) Critical habitat map units. Data
layers defining the map unit were
created on 2010 aerial photography from
U.S. Department of Agriculture,
National Agriculture Imagery Program
base maps using ArcMap
(Environmental Systems Research
Institute, Inc.), a computer geographic
information system (GIS) program. The
maps in this entry, as modified by any
accompanying regulatory text, establish
the boundaries of the critical habitat
designation. The coordinates or plot
points or both on which each map is
based are available to the public at the
Service’s Internet site (https://
www.fws.gov/wafwo/), at https://
www.regulations.gov at Docket No.
FWS–R1–ES–2013–0009), and by
appointment at the Service’s
Washington Fish and Wildlife Office.
You may obtain field office location
information by contacting one of the
Service regional offices, the addresses of
which are listed at 50 CFR 2.2.
E:\FR\FM\03OCR3.SGM
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61578
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(5) Index map of critical habitat units
for the Taylor’s checkerspot butterfly
follows:
Critical Habitat for Taylor's CheckerspotBlltterfly
in Washington .and Oregon
l1~W
lEGEND
Ohmad Habitat Uriits
•
II
25.00
I
I
I I
I
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o 1530
I
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/'\../·~a:jl$
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I<iIometeJli
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(6) Unit 1: South Sound, Washington.
61579
(i) Subunit 1–A: Rocky Prairie,
Washington. Map of Subunit 1–A
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl)'as editha taylonl
Unit 1: South Sound,
Subun~:t...~:
Rocky Prairie, Washington
Thurston
'~A
I1-A (Wei Haten)
VlltSHINGTON
122"'5:1'O"W
N
A
a
!<i_.
2
4
M
6
•
8
Critical Habitat
City
./"./ Road
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a
61580
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(ii) Subunit 1–B: Tenalquot Prairie,
Washington. Map of Subunit 1–B
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl)'as editha taylonl
Unit 1: South Sound, Subunit 1-B: Tenalquot Prairie, Washington
1Z!'"«l-t1'W
1Z!-s:t'O"W
1Z!'"OO'O'W
Piel'ce
z
b
!>
"
1-8 (ReselVe) •
Tenino
z
b
&l
MSHINGTON
!II
122"f.1(1t1'W
1ZZ'"40'tI-'W
N
A
II
I<iIi:meErs
4
2
M
•
II
6
Critical Habitat
City
/ ' . . / Road
3
4
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2
0
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61581
(iii) Subunit 1–C: Glacial Heritage,
Washington. Map of Subunit 1–C
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl)'as editha taylonl
Unit 1: South Sound, Subunit 1-C: Glacial
Herita~,
Washington
Tenino
z
b
Ii!
!!I
IJI.I\SHINGTON
".........
122'"S1't}''W
N
A
w_.
II
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8
Critical Habitat
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./'../ Road
3
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COUnty
03OCR3
ER03OC13.020</GPH>
VIIlsIJington
61582
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(iv) Subunit 1–D: Rock Prairie,
Washington. Map of Subunit 1–D
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl)'as editha taylonl
Unit 1: South Sou~~Subunit 1-D: Rock Prairie, Washington ,....."...
Wl.SHINGTON
,...........
N
A
!<i_.
a
2
"
2
0
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8
Critical Habitat
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/ ' . . / Road
3
MIeJ
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IIIbsIJingtOll
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61583
(v) Subunit 1–E: Bald Hill,
Washington. Map of Subunit 1–E
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydryas editha taylonl
Unit 1: South Sound, Subunit 1-E: Bald Hill, Washington
1Z!"'31V'W
122-:MV'W
ThII"slcn
z
b
e
.' ..
1-£ (W)
1-£ (E)
MSHINGTON
N
A
III
I'l-'
0
2
4
6
•
8
Critical Habitat
City
/ ' . . / Road
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61584
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(7) Unit 2: Strait of Juan de Fuca,
Washington.
(i) Subunit 2–A: Deception Pass,
Washington. Map of Subunit 2–A
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl}la5 editha taylonl
Unit 2: Strait of Juan DeFuca, Subunit 2-A: Deception Pass, Washington
z
b
R
e
Rosario
Slral
2-A (West Beam)
VlASHINGTON
1ZZ-«i'Q"W
N
A
Q
2
4
6
Critical Habitat
•
8
/'V
2
0
3
4
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lilIEs
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tJ
City
Road
COUnty
03OCR3
ER03OC13.023</GPH>
•
IQ-'
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61585
(ii) Subunit 2–B: Central Whidbey,
Washington. Map of Subunit 2–B
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl}la5 editha taylonl
Unit 2: Strait of Juan DeFuca. Subunit 2-B: Central Whidbey. Washington
SIraiI
d
Juan
DeFuca
.
z
b
~
Jefferson
w\SHINGTON
Pugel
Sound
122"3J'O'W
N
A.
. . Critical Habitat
Q
246
•
8
/'V
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City
Road
COunty
03OCR3
ER03OC13.024</GPH>
Ili~
61586
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(iii) Subunit 2–C: Elwha, Washington.
Map of Subunit 2–C follows:
Critical Habitat for Taylor"sCheckerspot Butterfly (Euphydryas editha taylonl
Unit 2: strait of Juan DeFuca, Subunit 2-C: Bwha, Washington
...
~
2-C (Dan Kelly Ridge)
Oailam
MSHINGTON
123"'JQ'O"'W
N
A
III
Vlltshiogton
Ki-.
0
2
4
6
•
8
Critical Habitat
City
/"v'Road
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0
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
61587
(iv) Subunit 2–D: Sequim,
Washington. Map of Subunit 2–D
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl}la5 editha taylonl
Unit 2: Strait of Juan DeFuca, SUbunit 2-D: Sequim, washington
Oalam
Jelferson
\Al.l.SHINGTON
N
o
M
1«-.
2
4
6
•
8
/'V
o
2
3
4
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Mle
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Critical Habitat
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Road
COunty
03OCR3
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A
61588
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(v) Subunit 2–E: Dungeness,
Washington. Map of Subunit 2–E
follows:
Critical Habitat for Taylor's Checkerspot Butterfly (Euphydl}la5 editha taylonl
Unit 2: Strait of Juan DeFuca, Subunit 2-E: Dungeness, Washington
SIlai of Juan Deruca
•
Sequm
..
z
z
b
b
t
9
...
2.£ (Bear Min)
.".. 2.£ (3 Odod< Ridge)
~.£
Qalam
(Upper Dungen"",,)
WI. SHINGTON
Jelferson
,.........
1Z!"SI'Q'W
N
A
I<i_.
2
4
6
. . Critical Habitat
8
•
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I}
Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations
(8) Unit 4: Willamette Valley, Oregon.
(i) Subunit 4–D: Fitton Green–
Cardwell Hill, Oregon.
61589
(ii) Map of Subunit 4–D follows:
Critical Habitat for Taylor's Checkerspot butterfly (Euphtl".. edith. teylorl)
Unit 4.; Willamette Valley. SubUnit 4-0: FittOn Green - cardwell Hill. Oreaon
1~'OW
~•..
!2$':IZ'O'W
I'IIItcmIiII
10
!2$':IZ'O'W
N
..
A
(j
0.115
I
!
0
I
0.45
kiD.....'"
1.3
I
I
1.115
I
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i
2.8
I
US
I
1,8
MIIU
*
*
*
Gily
~·Road
Dated: September 19, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
*
[FR Doc. 2013–23552 Filed 10–2–13; 8:45 am]
BILLING CODE 4310–55–C
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*
•
critical Habitat
]]>Agencies
[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Rules and Regulations]
[Pages 61505-61589]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23552]
[[Page 61505]]
Vol. 78
Thursday,
No. 192
October 3, 2013
Part III
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Taylor's Checkerspot Butterfly and Streaked Horned Lark;
Final Rule
Federal Register / Vol. 78 , No. 192 / Thursday, October 3, 2013 /
Rules and Regulations
[[Page 61506]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES2013-0009; 4500030114]
RIN 1081-AZ36
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Taylor's Checkerspot Butterfly and Streaked Horned
Lark
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for the Taylor's checkerspot butterfly (Euphydryas editha
taylori) and streaked horned lark (Eremophila alpestris strigata) under
the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,941 acres (786 hectares) in Island, Clallam, and
Thurston Counties in Washington, and in Benton County in Oregon, fall
within the boundaries of the critical habitat designation for Taylor's
checkerspot butterfly. Approximately 4,629 acres (1,873 hectares) in
Grays Harbor, Pacific, and Wahkiakum Counties in Washington, and in
Clatsop, Columbia, Marion, Polk, and Benton Counties in Oregon, fall
within the boundaries of the critical habitat designation for streaked
horned lark. The effect of this regulation is to designate critical
habitat for the Taylor's checkerspot butterfly and streaked horned lark
under the Act for the conservation of the species.
DATES: This rule is effective on November 4, 2013.
ADDRESSES: This final rule is available on the Internet at https://www.regulations.gov and at the Washington Fish and Wildlife Office.
Comments and materials we received, as well as supporting documentation
used in preparing this final rule, are available for public inspection,
by appointment, during normal business hours, at: U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive SE., Suite 102, Lacey, WA 98503-1263. The office can be reached
by telephone at 360-753-9440 or by facsimile at 360-753-9008.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at https://www.regulations.gov at
Docket No. FWS-R1-ES-2013-0009 and at https://www.fws.gov/wafwo/TCBSHL.html, or, by appointment, at the Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or
supporting information that we developed for this critical habitat
designation will also be available at the Fish and Wildlife Service Web
site and field office set out above, and may also be included at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, U.S. Fish and
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond
Drive, Suite 102, Lacey, WA 98503-1263; by telephone 360-753-9440; or
by facsimile 360-753-9405. Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why We Need to Publish a Rule. Under the Endangered Species Act
(Act), any species that is determined to be an endangered or threatened
species requires critical habitat to be designated, to the maximum
extent prudent and determinable. Elsewhere in today's issue of the
Federal Register, we list the Taylor's checkerspot butterfly as an
endangered species and the streaked horned lark as a threatened
species. Designations and revisions of critical habitat can only be
completed by issuing a rule.
Section 4(b)(2) of the Act states that the Secretary shall
designate critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. Additionally, the Act sets
forth the requirement to finalize rules within 1 year of proposal.
This rule designates critical habitat for the Taylor's checkerspot
butterfly and streaked horned lark. On October 11, 2012, we published
in the Federal Register (77 FR 61937) a proposed rule to list the
Taylor's checkerspot butterfly and streaked horned lark and to
designate critical habitat for these subspecies. The critical habitat
areas we are designating in this final rule constitute our current best
assessment of the areas that meet the definition of critical habitat
for the Taylor's checkerspot butterfly and streaked horned lark. We are
designating as critical habitat:
Approximately 1,941 acres (ac) (786 hectares (ha)) in
three units for the Taylor's checkerspot butterfly in Island, Clallam,
and Thurston Counties in Washington; and in Benton County in Oregon.
Approximately 4,629 ac (1,873 ha) in two units for the
streaked horned lark in Grays Harbor, Pierce, Pacific, and Wahkiakum
Counties in Washington; and in Clatsop, Columbia, Marion, Polk, and
Benton Counties in Oregon.
We have prepared an economic analysis of the designation of
critical habitat. We have prepared an analysis of the probable economic
impacts of the critical habitat designations and related factors. We
announced the availability of the draft economic analysis (DEA) in the
Federal Register on April 3, 2012 (78 FR 20074), allowing the public to
provide comments on our analysis. We have incorporated the comments and
have completed the final economic analysis (FEA) concurrently with this
final determination.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from two knowledgeable
individuals with scientific expertise to review our technical
assumptions and analysis, and to determine whether or not we had used
the best available information. These peer reviewers concurred with our
methods and conclusions, and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final designation.
We also considered all comments and information we received from the
public during the comment period.
Previous Federal Actions
All previous Federal actions are described in the listing
determination for the Taylor's checkerspot butterfly and streaked
horned lark, which is published elsewhere in today's Federal Register.
Background
For information related to the listing of the species, see the
final rule listing Taylor's checkerspot butterfly as an endangered
species and the streaked horned lark as a threatened species, which is
published elsewhere in today's Federal Register.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Taylor's checkerspot butterfly
and streaked horned lark during two comment periods. The first comment
period,
[[Page 61507]]
associated with the publication of the proposed rule (77 FR 61937;
October 11, 2012), opened on October 11, 2012, and closed on December
10, 2012. We then made available the draft economic analysis (DEA) of
the proposed critical habitat designation and reopened the comment
period on the proposed rule for an additional 30 days from April 3,
2013, to May 3, 2013 (78 FR 20074; April 3, 2013). We also contacted
appropriate Federal, State, tribal, county, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule and the draft economic analysis. We
held three public information workshops and a public hearing in April
2013, on the proposed rule to list the subspecies and the associated
critical habitat designations.
During the two public comment periods, we received close to 100
comment letters and emails from individuals and organizations, as well
as speaker testimony at the public hearing held on April 18, 2013.
These comments addressed the proposed critical habitat or proposed
listing (or both) for Taylor's checkerspot butterfly and streaked
horned lark. We received comment letters from two peer reviewers for
Taylor's checkerspot butterfly and three peer reviewers for streaked
horned lark, and also received comment letters from three State
agencies, one Native American tribe, and seven Federal agencies,
including the Department of the Army and Department of the Air Force.
We coordinated the proposed critical habitat with the federally
recognized Shoalwater Bay Tribe on a government-to-government basis in
accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951); Executive Order 13175; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2).
We contacted the only tribe potentially affected by the proposed
designation (the Shoalwater Bay Tribe) and coordinated with them to
discuss their ongoing or future management strategies for the Taylor's
checkerspot butterfly and streaked horned lark.
All substantive information provided during comment periods has
either been incorporated directly into this final designation or is
addressed below. Comments we received are grouped into general issues
specifically relating to the proposed critical habitat designation for
the Taylor's checkerspot butterfly and streaked horned lark, and are
addressed in the following summary and incorporated into the final rule
as appropriate.
Comments From Peer Reviewers
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from four knowledgeable
individuals with scientific expertise that included familiarity with
the Taylor's checkerspot butterfly and its habitats, biological needs,
and threats, and from three knowledgeable individuals with scientific
expertise that included familiarity with the streaked horned lark and
its habitats, biological needs, and threats. We received responses from
two of the peer reviewers for the Taylor's checkerspot butterfly. Both
peer reviewers felt that the proposed rule was a thorough description
of the status of Taylor's checkerspot butterfly. Both reviewers
commented that they considered the proposed rule well researched and
well written, and one commenter found the rule comprehensively
represented the current scientific knowledge for the taxon. The two
peer reviewers made no substantive comments relevant to the critical
habitat designation for the Taylor's checkerspot butterfly.
We received responses from three of the peer reviewers for the
streaked horned lark. Two of the peer reviewers felt that the proposed
rule was a thorough description of the status of the streaked horned
lark, and that our assessment of the primary constituent elements of
critical habitat was correct. Two peer reviewers made several
substantive comments relevant to the proposed critical habitat
designation for the streaked horned lark, which we respond to below and
also in the Comments from the Public section in cases where we received
a similar comment from the public. Our requests for peer review are
limited to a request for review of the merits of the scientific
information in our documents; if peer reviewers have volunteered their
personal opinions on matters not directly relevant to the science of
our designation, we do not respond to those comments here.
Streaked Horned Lark
(1) Comment: One peer reviewer stated that the proposed designation
of critical habitat was lacking formal agreements for lark conservation
with land owners and managers of sites proposed for critical habitat,
or at sites the peer reviewer believes should have been proposed as
critical habitat.
Our Response: Our requests for peer review are limited to a request
for review of the scientific information in our documents. In this case
the peer reviewer has offered his opinion on a non-scientific issue;
however, management agreements are not a requirement for critical
habitat designation. We will seek agreements with land owners and
managers on lands designated as critical habitat and on other lands
that are important to conservation of the streaked horned lark as we
initiate a recovery program for the bird, but such agreements are not
relevant to the designation of critical habitat unless we are
considering whether to exclude an area from the designation pursuant to
section 4(b)(2) of the Act. We did consider the additional sites the
peer reviewer suggested should have been proposed as critical habitat;
however, we concluded that the areas suggested did not meet our
definition of critical habitat for the streaked horned lark.
(2) Comment: One peer reviewer commented on our lack of discussion
of wintering habitat requirements for the streaked horned lark. The
peer reviewer suggested that if wintering habitats are the same as
habitats used for breeding, we should state that explicitly. The peer
reviewer also commented on the fact that all of the proposed critical
habitat sites were identified as either breeding habitats or breeding
and wintering habitats, but there were no sites identified as solely
wintering sites.
Our Response: Our current knowledge of habitat use by the streaked
horned lark indicates that there are no sites that are used solely for
wintering habitat. There are sites in Washington that have breeding
populations in the spring and summer, but that are then abandoned by
the streaked horned lark in the fall and winter. Other breeding sites
on the Washington coast, in the Columbia River, and in the Willamette
Valley are also used as wintering habitats. We have amended the
description of critical habitat selection criteria to be clearer, as
requested by the peer reviewer.
(3) Comment: Two peer reviewers and several commenters expressed
concern about relying on airports for streaked horned lark recovery
because although airports harbor populations of larks, the sites may
act as ``population sinks'' due to the constant habitat disturbance,
hazing, and threat of aircraft strikes.
Our Response: We share this concern. Streaked horned larks occur on
airports because management to control hazardous wildlife and to
maintain safe conditions for aviation has incidentally created suitable
habitat for the subspecies; however, airports are not ideal locations
for focusing recovery efforts for the streaked horned lark. First, the
birds are at risk of mortality
[[Page 61508]]
from plane collisions, and have frequently been documented in bird
strikes at airports (Cleary and Dolbeer 2005, p. 101). Secondly,
Federal Aviation Administration (FAA) regulations require airports to
take immediate action to alleviate wildlife hazards whenever they are
detected (14 CFR 139.337). This requirement to maintain airfields free
of wildlife hazards would severely limit the potential to increase
streaked horned lark populations on airports. Streaked horned larks at
airports are therefore subject to the combined threats of plane strikes
and constant management to minimize bird populations; although airports
currently support some relatively large populations of the subspecies,
airports are clearly not ideal for conservation and recovery efforts
aimed at further increasing abundance of the bird. Airports will
continue to be important for the consistent habitats they provide for
some populations of the streaked horned lark, and we will work with
airports to maintain stable populations of the subspecies. Our main
recovery efforts for the streaked horned lark, however, will need to
focus on establishing new populations and managing for the subspecies
at locations where population growth is an acceptable management goal
for the site.
(4) Comment: One peer reviewer asked if industrial lands may be
population sinks (i.e., they provide attractive locations for breeding
but do not contribute to population growth), given their frequent
disturbance without regard to the effect on the streaked horned lark,
and further inquired if we had considered the possible long-term
effects of the activities exempted in the special rule. The peer
reviewer suggested that perhaps we should not encourage maintenance of
sink habitats.
Our Response: At this point, we do not know whether industrial
lands function as sink habitats for breeding streaked horned larks; we
will focus on gaining a better understanding of lark population
dynamics in these habitats in the recovery program for the bird. We
agree that this will be an important issue as we identify habitats that
have the potential for contributing to the long-term conservation of
the subspecies. We acknowledged this concern in response to another
comment as well (see our response to Comment 3, above).
(5) Comment: One peer reviewer and one commenter stated the
designation of Coffeepot Island as critical habitat for the streaked
horned lark is inconsistent with the rationale for other habitats
proposed for designation (i.e., it is currently an unoccupied site),
and believed this provided it with special recognition not warranted
relative to many other sites where the streaked horned lark has
occurred in the past or could occur in the future, or even more
importantly, many other sites not being proposed as critical habitat
where the streaked horned lark currently does occur.
Our Response: We proposed critical habitat on a portion of
Coffeepot Island based on indications that the U.S. Army Corps of
Engineers (Corps) might add this area to their list of authorized
dredge deposit sites (thus potentially creating suitable habitat for
the streaked horned lark) and its proximity to other occupied deposit
sites on the Columbia River. As such, we believed that even though it
may be currently unoccupied, it could play an essential role in the
conservation of the subspecies in the future. However, to date we have
no indications that the Corps is actively pursuing inclusion of this
island into their dredging and navigation channel maintenance program.
Therefore, the site is unlikely to support streaked horned larks
anytime within the foreseeable future. Based upon this information and
input from peer reviewers, we have determined this unoccupied area is
not essential to the conservation of the subspecies, and thus does not
meet the definition of critical habitat. Coffeepot Island is not
included in the final designation of critical habitat for the streaked
horned lark.
(6) Comment: One peer reviewer and several commenters recommended
that we designate critical habitat on sites that are not known to be
currently occupied by streaked horned lark, but could be managed to
provide suitable habitat. These sites include privately owned
agricultural lands in the Willamette Valley, industrial and restoration
sites in the Portland area, and islands and mainland sites along the
lower Columbia River.
Our Response: Recovery of the streaked horned lark will likely
require the restoration or creation of new habitat on some currently
unoccupied sites. As described in the proposed rule, streaked horned
larks require habitat with both a specific landscape context (flat and
wide-open) and structure (low-stature vegetation with abundant bare
ground). Given the appropriate landscape context, the structure is easy
to create, which has fostered the hope of establishing new habitats for
streaked horned larks at sites with conservation management as their
main objective. There have recently been some attempts to create
habitat for and to attract streaked horned larks to suitable but
unoccupied habitats. An experimental approach, initially implemented by
Metro (the Portland, Oregon, area regional government body) and later
joined by the Center for Natural Lands Management (CNLM), a
nongovernmental organization, has attempted to create habitat and
attract streaked horned larks to the St. Johns Landfill in North
Portland, Oregon, and to two sites at Joint Base Lewis-McChord (JBLM)
in Washington; the effort at St. Johns Landfill began in 2009, and at
JBLM in 2012. These efforts have combined habitat creation and the use
of conspecific attraction techniques (streaked horned lark decoys and
audio playback of recorded calls). The concept holds great promise, but
so far has not been successful in establishing a new population of
streaked horned larks at any of the three experimental sites. As we
embark on recovery efforts for the streaked horned lark, we intend to
continue to refine this approach and to work to create new habitats in
areas with the proper landscape context, but it is clear that we do not
yet know which sites will succeed in attracting and supporting new
populations of streaked horned larks. Designating critical habitat at
this time on sites that do not yet support use by streaked horned larks
would be premature, since we cannot be sure that streaked horned larks
will colonize sites that have been recommended as potential critical
habitat, and the designation of unoccupied areas requires a
determination that such areas are essential to the conservation of the
subspecies. We may revisit the issue of critical habitat designation
when we have better information about how to attract streaked horned
larks to currently unoccupied sites. In addition, we will look to the
guidance provided by the recovery plan that will be developed for the
streaked horned lark to make future determinations regarding those
unoccupied areas, if any, that may be essential for the conservation of
the subspecies.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments we received from State agencies regarding the proposal to
designate critical habitat for the Taylor's checkerspot butterfly and
streaked horned lark are addressed below. We received comments from the
Washington Department of Fish and Wildlife (WDFW) and Washington
Department of Natural Resources (WDNR) related to biological
[[Page 61509]]
information, threats, critical habitat exclusions, the inadequacy of
regulatory mechanisms, and recommendations for the management of
habitat. We did not receive any comments regarding critical habitat for
the Taylor's checkerspot butterfly or streaked horned lark from
agencies in the State of Oregon.
Both agencies (WDFW and WDNR) provided a number of recommended
technical corrections or edits to the proposed critical habitat
designation for the Taylor's checkerspot butterfly and streaked horned
lark. We have evaluated and incorporated this information into this
final rule where appropriate to clarify the final critical habitat
designation. In instances where the Service may have disagreed with an
interpretation of the technical information that was provided, we have
responded in separate communication with the agency.
(7) Comment: WDFW noted that the critical habitat designation for
Taylor's checkerspot butterfly in the Bald Hill area did not appear to
include some historical Taylor's checkerspot butterfly locations with
suitable habitat. WDFW believes both Fossil Rock and Bald Hill 1176
Spur A Bald should have been included in proposed critical habitat.
Our Response: We considered the WDFW's suggestion, but concluded
the contiguous area proposed for designation as critical habitat in
this area for Taylor's checkerspot butterfly would provide better
management opportunities for the subspecies than would designating
multiple, isolated patches. The focus of conservation work in the Bald
Hill area has been in the vicinity of the State's Natural Area
Preserve, and not on disjunct patches that are likely inaccessible to
Taylor's checkerspot butterflies unless they were introduced
(translocated) specifically into these isolated habitat patches.
(8) Comment: WDFW encouraged the Service to not only ensure that
the conservation measures provided for in the integrated natural
resources management plan (INRMP) for JBLM are sufficient to preclude
the need to designate critical habitat for the Taylor's checkerspot
butterfly and streaked horned lark, but also that implementation of the
plan can be assured. WDFW also requested we consider excluding WDFW
properties addressed by their draft wildlife area habitat conservation
plan (HCP).
Our Response: Section 4(a)(3)(B)(i) of the Act specifically states
that the Secretary shall not designate critical habitat on Department
of Defense lands if the area is subject to an INRMP that provides a
benefit to the species for which critical habitat is proposed. As
discussed under the section Exemptions in this final rule, the
Secretary has determined, in writing as required by the Act, that
JBLM's INRMP provides such a benefit for Taylor's checkerspot butterfly
and streaked horned lark under the endangered species management plans
(ESMPs) developed specifically for these subspecies under their INRMP;
therefore JBLM lands are not included in this final designation of
critical habitat. Our experience with JBLM is that, when they commit to
conservation actions, they have the funding required to ensure that
implementation of the action will occur.
When deciding whether to exclude an area from designation of
critical habitat under section 4(b)(2) of the Act, the Service needs to
assess not only the conservation measures outlined within management
plans regardless of agency or organization, but also the level of
assurance an agency can provide of actually funding and implementing
the conservation measures identified within the plan. The same process
would hold true when evaluating the WDFW wildlife area HCP. As
described in the Exclusions section of this document, we have excluded
the Wildlife Areas owned and managed by WDFW because of the management
plans in place for these State Wildlife Areas (Scatter Creek and West
Rocky Prairie Wildlife Areas) The exclusion of these Wildlife Areas was
not based on WDFW's draft HCP because we have not received a complete
draft HCP document to review, and furthermore, the HCP in question is
not finalized. We would not be able to exclude the areas in question
based on assurances for funding and implementation that may be provided
through a future HCP process.
(9) Comment: WDFW was concerned that, with the new helicopter
brigade stationed at JBLM, the airstrip on TA 14 on 13th Division
Prairie is now used almost daily during streaked horned lark breeding
season, with many low-elevation flights and ``touch-and-go'' exercises
occurring in the highest density occupied habitat. This is also a
concern for adult Taylor's checkerspot butterflies at this site. They
were also concerned with impacts associated with off-road training
conducted in the 13th Division Prairie.
Our Response: Activities conducted on JBLM, including air
operations at 13th Division Prairie, the military airfields, and other
areas, will be addressed in section 7 consultations after the
subspecies are listed. The Service is currently coordinating with the
Environmental and Natural Resource Division and staff from Range
Control on training activities that impact the Taylor's checkerspot
butterfly and streaked horned lark, and we are in negotiations on ways
to further reduce impacts to these two subspecies specifically at this
location. JBLM is aware that they will need to implement timing
restrictions and avoid conducting training activities in certain
locations or during the most sensitive time of year to minimize or
avoid take of the subspecies after they are listed. This will include
the areas adjacent to the Pacemaker runway and other portions of the
13th Division Prairie where the Taylor's checkerspot butterfly and
streaked horned lark occur.
(10) Comment: WDNR was concerned that the safe use of pesticides to
control nonnative, invasive insects, such as gypsy moth, may be
impacted by the listing and designation of critical habitat for
Taylor's checkerspot butterfly.
Our Response: We do not see pesticide use in general to pose an
adverse impact to Taylor's checkerspot butterflies unless individuals
are directly exposed to the pesticides. The Service does not anticipate
the need for pesticide spraying on habitat occupied by Taylor's
checkerspot butterflies, as the subspecies does not occupy forested
areas where such pesticides are generally applied. However, if
pesticide were to be sprayed in areas where pesticide drift would
expose Taylor's checkerspot butterflies to the pesticide(s), then we
would be concerned with their application in these situations. The
Service acknowledges the use of pesticides as harmful to Taylor's
checkerspot butterfly at all life stages. We specifically discourage
the use of insecticides such as Bacillus thuringiensis var. kurstaki
(BtK) in forested areas adjacent to Taylor's checkerspot butterfly
habitat. This insecticide, which is used for harmful defoliators like
gypsy moth and spruce budworm, has been implicated in the loss of three
populations of Taylor's checkerspot butterfly in Pierce County,
Washington, during the early 1990s, when it was applied adjacent to
Taylor's checkerspot butterfly habitat.
Comments From Federal Agencies
Department of Energy, Bonneville Power Administration
(11) Comment: The Service should remove those portions of the
Bonneville Power Administration's (BPA) rights-of-way that are composed
of access roads and transmission towers and their related
infrastructure from the critical habitat proposal, as the roads and
structures do not exhibit the biological
[[Page 61510]]
features required for recovery of Taylor's checkerspot butterfly.
Our Response: We agree that some portions of the BPA rights-of-way
in areas formerly occupied by Taylor's checkerspot butterfly do not
contain biological features that are important for the subspecies;
therefore we have made minor changes to the critical habitat boundaries
to remove those areas that do not meet our definition of critical
habitat. Furthermore, as explicitly described in this rule, critical
habitat does not include manmade structures (such as buildings,
aqueducts, runways, roads, and other paved areas) and the land on which
they are located existing within the legal boundaries on the effective
date of this rule (see DATES). Therefore, access roads and transmission
towers and their related infrastructure are not considered critical
habitat. Powerline rights-of-way are excellent areas to manage and
support butterflies as the structure and composition of vegetation for
the Taylor's checkerspot butterfly is compatible with right-of-way
management.
(12) Comment: BPA believes the geographic footprints of access
roads and transmission structures do not contain the biological
features essential for the conservation of Taylor's checkerspot
butterfly, since they differ in character from the open meadow space
more generally located within the rights-of-way that provide high-
quality habitat for the butterfly. Therefore, they should not be
designated as critical habitat.
Our Response: The critical habitat unit referred to by BPA (Unit 4-
D) is currently occupied by Taylor's checkerspot butterfly and provides
several of the physical or biological features essential to the
conservation of the species. Open areas that provide flight corridors
between patches of suitable habitat are important for Taylor's
checkerspot butterflies. In addition to the relative quality of
habitat, there needs to be an avenue for movement, including movement
between areas that may not provide high-quality habitat features.
Access roads and other areas cleared of woody vegetation can provide
important flight corridors used by Taylor's checkerspot butterflies,
although roads and other structures are not consistent with critical
habitat and are specifically not included in critical habitat by text,
as described in our response to Comment 11, above.
Department of Transportation, Federal Aviation Administration
(13) Comment: The Federal Aviation Administration (FAA) does not
believe habitat on airports should be considered critical for the
recovery of either the Taylor's checkerspot butterfly or streaked
horned lark given that airport property encompasses only 2,948 ac
(1,193 ha) out of 21,393 ac (8,657 ha) proposed for critical habitat
designation, or approximately 14 percent of the total proposed acreage.
Our Response: The Act defines critical habitat as those specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
essential to the conservation of the species, and which may require
special management considerations or protection. The test for whether
an area is essential to the conservation of the species is applied to
areas that are not occupied by the species at the time of listing. All
airport lands proposed for critical habitat designation for the
streaked horned lark are currently occupied by the subspecies and
provide the essential physical or biological features, which may
require special management considerations or protection. Therefore, all
airport lands proposed meet the Act's definition of critical habitat
for the streaked horned lark. However, our analysis under section
4(b)(2) of the Act indicates that the benefits of including airport
lands in critical habitat are outweighed by the benefits of excluding
these areas. Therefore, all airport lands are excluded from this final
designation of critical habitat for the streaked horned lark. Please
see additional discussion under Exclusions.
We did not propose any critical habitat on airport lands for the
Taylor's checkerspot butterfly.
Department of the Air Force
(14) Comment: The Department of the Air Force believes the
designation of streaked horned lark critical habitat on military
airfields is counter to Air Force instructions and could increase the
risk to aircrews, aircraft, and the streaked horned lark; therefore,
they requested that military airfields be excluded from critical
habitat designation for the lark.
Our Response: The military airfields proposed for critical habitat
designation for the streaked horned lark are currently occupied by the
species. Ongoing airfield maintenance activities that are conducted at
both the military and non-federal airports have created suitable
habitat for the streaked horned lark that provides the essential
physical or biological features for the subspecies. It is our
understanding that these maintenance activities would take place
regardless of the presence of the streaked horned lark. We are aware
that FAA regulations required for public safety are in direct conflict
with increasing bird populations on airports, and as discussed in our
4(b)(2) exclusion analysis for civilian airports, we do not intend to
focus on airfields as part of the recovery efforts for the streaked
horned lark (see Exclusions). Section 4(a)(3)(B)(i) of the Act
specifically states that the Secretary shall not designate critical
habitat on Department of Defense lands if the area is subject to an
INRMP that provides a benefit to the species for which critical habitat
is proposed for designation. As discussed in the Exemptions section
below, the Secretary has determined that the endangered species
management plan for the streaked horned lark developed under JBLM's
INRMP provides adequate protection for the subspecies on the military
airfields. Therefore, the military airfields are not included in the
final critical habitat designation.
(15) Comment: The Department of the Air Force and several other
commenters were concerned that critical habitat designations at
airports would restrict essential activities, including military
training and hazardous wildlife control.
Our Response: As described above in our responses to Comments 13
and 14, we have excluded airports from the final critical habitat
designation for the streaked horned lark under section 4(b)(2) of the
Act and exempted all DOD lands at Joint Base Lewis-McChord (JBLM) under
section 4(a)(3) of the Act, so the potential effects of critical
habitat designation are moot. However, any activity by a Federal agency
that may affect the streaked horned lark or any other listed species at
an airport would be subject to consultation under section 7 of the Act.
Under section 7(a)(2) of the Act, it is the duty of all Federal
agencies to ensure that any actions they fund, authorize, or carry out
are not likely to jeopardize the continued existence of a listed
species. Review under section 7 may result in some changes to an
agency's proposed action, consistent with their mandates, to advance
the conservation of listed species.
Department of the Army, Joint Base Lewis-McChord
(16) Comment: The Department of the Army believes the northern
portion of the Range 72-79 unit for Taylor's checkerspot butterfly on
JBLM should be excluded due to the fact that this area is of lower
quality than the remainder
[[Page 61511]]
of the proposed unit and is used extensively for off-road vehicle
maneuvers.
Our Response: As described in the Exemptions section of this
document, all JBLM lands have been removed from the final designation
of critical habitat for both species under section 4(a)(3) of the Act.
(17) Comment: The Range 50 subunit extends beyond the current and
previous areas occupied by Taylor's checkerspot butterfly.
Our Response: Range 50 is a site where introduced (translocated)
Taylor's checkerspot butterflies have been placed since 2009. The
translocation has taken hold, the population is increasing, and
individual butterflies are dispersing to new food plants east and west
of Range 50; therefore we consider this area to be currently occupied
by the subspecies. Where the butterfly becomes established, it will be
critical to provide areas of suitable habitat for dispersing
individuals, and to allow for the establishment of meta-population
structure that takes place on areas sufficiently large to allow for
some local populations to ``blink on'' and ``blink off'' over time.
This shift is typical and follows changes to habitat as the vegetation
suitability (structure and composition) shifts between periods of
restoration, or in the case of JBLM, inadvertent fires that
periodically disturb the habitat, returning it to the early seral
condition that provides suitable habitat for the Taylor's checkerspot
butterfly.
(18) Comment: The Department of the Army requests that the Service
exempt those portions of the proposed critical habitat designations for
the Taylor's checkerspot butterfly and streaked horned lark on JBLM.
Our Response: Under section 4(a)(3) of the Act, we are required to
not designate any lands or other geographical areas owned or controlled
by the Department of Defense, or designated for its use, that are
subject to a current INRMP, if the Secretary determines that such plan
provides a benefit to the species for which critical habitat is
proposed for designation. We have reviewed and approved the JBLM's
endangered species management plans (ESMP) under their INRMP for the
Taylor's checkerspot butterfly and streaked horned lark, and
accordingly have exempted JBLM lands from our final critical habitat
designations. Please see Exemptions for more information.
Natural Resources Conservation Service
(19) Comment: The Natural Resources Conservation Service (NRCS)
believes that continuation of the current level of grazing management
by the Colvin Ranch has resulted in healthy native prairie populations
and will continue to provide benefits to the native prairie
populations, which exceed benefits provided by a critical habitat
designation. Therefore, NRCS supports the request by the Colvin Ranch
to exclude their property from critical habitat under section 4(b)(2)
of the Act.
Our Response: We considered the potential exclusion of Colvin Ranch
from the final designation of critical habitat. Our evaluation under
section 4(b)(2) of the Act led us to the conclusion that this private
land should be excluded from the final designation of critical habitat,
as the benefits of exclusion outweigh the benefits of inclusion in
critical habitat. Please see Exclusions for more information.
(20) Comment: NRCS and another commenter recommended that we
withdraw the proposed designation of critical habitat for the streaked
horned lark at M-DAC Farms in Oregon because the site no longer
provides the primary constituent elements (PCEs) identified for
critical habitat. M-DAC Farms is a privately owned property with a
Wetlands Reserve Program easement, which is held by NRCS. NRCS
expressed concern that M-DAC's designation as critical habitat could
affect the agency's ability to accomplish the wetland restoration goals
for which the conservation easement was originally purchased on the
site.
Our Response: Prior to NRCS's purchase of a conservation easement
at M-DAC, the site was a perennial rye grass farm. The goals for the
site include restoration of 100 (40 ha) acres of seasonal wetland, over
100 (40 ha) acres of bottomland hardwood forest, and over 300 acres
(120 ha) of wet prairie habitat. Though streaked horned larks used the
site in large numbers when the ground was originally cleared to prepare
for habitat restoration, we agree with the commenter that the
vegetation at the site has since matured and no longer provides
suitable habitat for the streaked horned lark, with the exception of
limited areas along a road and perhaps in the seasonal mudflats
adjacent to the wetlands. The site may continue to provide habitat for
a few breeding pairs of streaked horned larks; however, the long-term
goals for the site do not include increasing the area of suitable
habitat for streaked horned larks. The site will not be a focus of
active recovery for the streaked horned lark, and very little of the
601 acres (240 ha) will provide suitable habitat for the subspecies.
We have removed M-DAC Farms from the final designation of critical
habitat based on information we received during the public comment
period indicating that it does not meet the definition of critical
habitat for the streaked horned lark. The site does not provide the
requisite physical or biological features, and therefore does not meet
our criteria for designation.
U.S. Forest Service, Olympic National Forest
(21) Comment: The U.S. Forest Service believes that areas within
Olympic National Forest proposed for critical habitat designation
should be excluded under section 4(b)(2) of the Act due to ongoing
management for Taylor's checkerspot butterfly habitat.
Our Response: We have worked closely with the U.S. Forest Service,
and Taylor's checkerspot butterfly has benefitted immensely from the
conservation actions that have been implemented on the Olympic National
Forest. We inadvertently indicated that we may exclude Olympic National
Forest lands from the final designation of critical habitat. However,
such an exclusion would run counter to the Congressional intent of the
Act (stated in sections 2(c)(1) and 7(a)(1)) that Federal agencies have
obligations to conserve endangered and threatened species and to carry
out programs for the conservation of endangered and threatened species.
In consideration of the explicit congressional direction that Federal
agencies exercise their authorities to conserve listed species, we
expect Federal agencies to contribute to conservation through the
designation of critical habitat. Therefore, we have not excluded any
Federal lands from critical habitat. Please see the section Federal
Lands for more information.
Comments From Native American Tribes
(22) Comment: The Shoalwater Bay Tribe requested that habitat on
their reservation be excluded from the final critical habitat
designation for the streaked horned lark. The Tribe is currently
working with the Service and the Corps to develop an ecological
restoration plan for the Tribal tidelands. This restoration plan will
focus on maintaining and protecting habitat for listed species
(including the streaked horned lark and western snowy plover
(Charadrius nivosus nivosus)) and coastal resources important to the
Tribe.
Our Response: Based on our ongoing partnership with the Tribe and
assurance that habitat will be protected at this site, we have excluded
the Shoalwater Bay Indian Reservation from
[[Page 61512]]
the final critical habitat designation based on our discretionary
4(b)(2) exclusion analysis. Based on our evaluation, we found that the
benefits of exclusion outweigh those of inclusion. See the Exclusions
section of this document for details.
Comments From the Public
Several commenters provided minor technical corrections or edits to
the proposed critical habitat designation for Taylor's checkerspot
butterfly and streaked horned lark. We have evaluated and incorporated
this information into this final rule where appropriate to clarify the
final critical habitat designation. In instances where the Service may
have disagreed with an interpretation of the technical information that
was provided, we have responded under separate comments.
(23) Comment: One property owner in Subunit 1-D disputed the
Service's authority to designate critical habitat on their lands for
Taylor's checkerspot butterfly, arguing that the PCEs must be found on
an area as a prerequisite to designation, and that the Act leaves no
room for designation of land that may in the future contain the
physical or biological features. The owner acknowledges that the
property is currently unoccupied by the subspecies, but disagrees with
the Service's conclusion that the available evidence indicates it was
likely historically occupied by Taylor's checkerspot butterfly. The
owner further claims that their property does not contain any of the
specific physical or biological features that the Service has
identified for Taylor's checkerspot butterfly at any stage of its
development.
Our Response: The Act provides two definitions for critical
habitat: one applies to areas occupied by the species at the time of
listing, the other applies to areas not occupied by the species at the
time of listing. In the first case, the Act specifies that critical
habitat means, ``the specific areas within the geographical area
occupied by the species, at the time it is listed in accordance with
the provisions of section 4 of this Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection.'' This requirement that the physical or
biological features be found does not apply in this particular
situation, because the property in question is not presently occupied
by Taylor's checkerspot butterfly. The lands in question were initially
identified in the proposed rule as meeting our criteria for critical
habitat under the second part of the definition of critical habitat in
the Act, which adds that critical habitat includes, ``specific areas
outside the geographical area occupied by the species at the time it is
listed in accordance with the provisions of section 4 of this Act, upon
a determination by the Secretary [of the Interior] that such areas are
essential for the conservation of the species.'' We therefore re-
evaluated the unoccupied private property in question. We evaluated its
context in relation to other occupied areas supporting the Taylor's
checkerspot butterfly, and other protected areas where habitat has been
improved sufficiently to support translocated Taylor's checkerspot
butterflies. Based upon our analysis, we have determined the unoccupied
property in question is not essential to the conservation of Taylor's
checkerspot butterfly; therefore it is not included in the final
designation.
(24) Comment: One landowner stated that the designation of their
property as critical habitat for Taylor's checkerspot butterfly is
improper because the record does not contain evidence that shows
specifically where the PCEs are located. To the contrary, they believe
there is evidence that the property contains physical features that the
proposed rule identifies as rendering habitat unusable for the
butterfly. The commenter states that any designation of critical
habitat by the Service must be limited to those areas that actually
contain the physical or biological features essential to the
conservation of the Taylor's checkerspot butterfly.
Our Response: The property in question was proposed as unoccupied
but essential critical habitat for the Taylor's checkerspot butterfly.
As noted in various responses above, the standards for designation of
critical habitat differ depending on whether the area in question is
occupied at the time of listing or not. If the area is occupied at the
time of listing, the PCEs for the species must be found on that area
(however, the Service is not required to detail all the specific
locations where each PCE may exist on an area proposed for
designation). If the area is not occupied at the time of listing, it
may be designated as critical habitat upon a determination by the
Secretary that such area is essential for the conservation of the
species. The reference to the presence of the essential physical or
biological features does not appear in the definition of unoccupied
areas, thus the commenter is incorrect in stating that the designation
of critical habitat must be limited to those areas that contain such
features in cases such as this where the area in question is not
occupied by the species at the time of listing. In this case, we had
proposed the lands in question as critical habitat believing they were
essential to the conservation of the subspecies, based on similar
habitats known to support Taylor's checkerspot butterfly found at other
locations and from evidence of these habitat conditions being present
on similar adjacent properties; the Service is particularly limited in
specifying locations of the necessary habitat features on private
property, where access is often not freely granted. Upon further
examination, however, and in response to the information provided by
the commenter, we determined that this property (located in subunit 1-D
in the proposed rule, subunit 1-A Rocky Prairie in this document) is
not essential to the conservation of the subspecies, and it is not
included in the final designation.
(25) Comment: One commenter suggested we remove the gravel pit in
TA 7S, subunit 1-A, currently in use on JBLM, from the critical habitat
delineated for Taylor's checkerspot butterfly. They state the gravel
pit does not currently provide suitable habitat and would take enormous
effort to restore to quality habitat, while the remaining extent of TA
7S prairie is relatively intact and could more easily be restored to
create suitable habitat.
Our Response: It is our understanding that, in the past, Taylor's
checkerspot butterfly was observed utilizing the puddles in the gravel
pit. We understand the gravel pit is marginal habitat at best, but as a
formerly occupied site containing some of the PCEs for the subspecies
(Plantago and topographic diversity) and its location adjacent to TA
7S, we considered that the area could potentially be restored to
support Taylor's checkerspot butterfly (although critical habitat does
not specifically require restoration).
However, since the area in question is on JBLM, it has been
exempted from the final designation. Under section 4(a)(3) of the Act,
we are required to not designate any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to a current INRMP, if the Secretary determines
that such plan provides a benefit to the species for which critical
habitat is proposed for designation. We have reviewed and approved the
JBLM ESMP for Taylor's checkerspot butterfly under the INRMP and
accordingly have exempted any proposed critical habitat areas on JBLM
from our final critical habitat designations under section 4(3)(a) of
the Act. Please see the
[[Page 61513]]
Exemptions section of this document for more information.
(26) Comment: One commenter asked the Service to consider excluding
subunit 1-J Bald Hills, since they believe the Taylor's checkerspot
butterfly is likely extirpated at the site and the landowner has
committed to implementing a wildlife management plan at that site.
Our Response: We do not disagree that the Taylor's checkerspot
butterfly may have been extirpated from this site. Subunit 1-J Bald
Hill was identified in the proposed rule as meeting our criteria for
critical habitat under the second part of the definition of critical
habitat in the Act, which states that critical habitat includes,
``specific areas outside the geographical area occupied by the species
at the time it is listed in accordance with the provisions of section 4
of this Act, upon a determination by the Secretary [of the Interior]
that such areas are essential for the conservation of the species.'' We
were unable to consider these lands for exclusion under section 4(b)(2)
of the Act because the Service had not received a management plan for
this property; therefore, we were unable to assess the value of the
conservation planning efforts being proposed or implemented on this
private property. Without a management plan for evaluation, we have no
potential basis for exclusion; therefore this property is included in
the final designation of critical habitat.
(27) Comment: One commenter recommended the Army Aviation Support
Facility 1 (AASF1) in Salem be excluded from critical habitat
because of the national security importance of the installation.
Our Response: The AASF1, while it contributes to maintaining troop
readiness for the National Guard, is not a Federal entity. This
facility is a private/State holding with a military lease. The
Secretary weighed the benefits of including versus excluding non-
Federal airports from critical habitat for the streaked horned lark,
and concluded that the benefits of exclusion outweighed the benefits of
inclusion; thus all non-Federal airport lands are excluded from the
final designation of critical habitat (see the Exclusions section of
this document). AASF1, being a non-Federal entity, is already excluded
from critical habitat based on this analysis; therefore we did not
consider the potential national security implications of the
designation.
(28) Comment: Several commenters suggested that the designation of
critical habitat may act as a regulatory disincentive, and may
discourage private landowners and others from cooperative, voluntary
conservation efforts. Some commenters suggested that the Service pursue
alternative forms of conservation, such as safe harbor agreements or
habitat conservation plans. WDNR and WDFW encouraged the Service to
fully consider the advantages and disadvantages of designating critical
habitat where cooperative, nonregulatory approaches are in place to
conserve the species and its habitat.
Our Response: Section 4(a)(3)(A) of the Act requires us to
designate critical habitat to the maximum extent prudent and
determinable. The Act permits us to exclude areas that meet the
definition of critical habitat only where we determine that the
benefits of exclusion outweigh the benefits of designation. The
regulatory consequence of critical habitat designation is the
requirement that Federal agencies consult on actions that they may
fund, authorize, or carry out to ensure that such actions do not result
in the destruction or adverse modification of critical habitat. We
recognize that in many cases there may not be a Federal nexus that
invokes the protections afforded to designated critical habitat on non-
Federal lands, and that other instruments such as safe harbor
agreements or habitat conservation plans have the potential to provide
conservation measures that effect positive results for the species and
its habitat. The conservation and recovery of endangered and threatened
species, and the ecosystems upon which they depend, is the ultimate
objective of the Act, and the Service recognizes the vital importance
of voluntary, nonregulatory conservation measures in achieving that
objective. To that end, we fully support and encourage the development
of voluntary conservation agreements such as safe harbor agreements or
habitat conservation plans with non-Federal landowners. Furthermore,
where cooperative agreements are in place for the conservation of the
species and its habitat, the Secretary gives full consideration to the
relative benefits of excluding those lands from the final critical
habitat designation, provided such exclusion would not result in the
extinction of the species, in accordance with section 4(b)(2) of the
Act.
(29) Comment: One commenter suggested that the Service pursue
conservation programs to provide economic incentives to private
landowners to create or maintain suitable habitat for the streaked
horned lark on agricultural lands, especially grass seed farms.
Our Response: We appreciate the suggestion, and we will consider
this and other creative ideas for achieving the conservation of the
subspecies as we develop the recovery plan for the streaked horned
lark. Such conservation measures are outside of the scope of the
present rulemaking, however, which is restricted to the identification
of those areas that meet the definition of critical habitat for the
streaked horned lark.
(30) Comment: One commenter stated the proposal fails to address
private lands, which are likely to be key habitat for the persistence
of the streaked horned lark. Positive incentives need to be proposed
that will lead to recovery of the streaked horned lark.
Our Response: In our proposed rule, we recognize the importance
that private agricultural lands will play in the conservation and
recovery of streaked horned lark, particularly in the Willamette Valley
of Oregon (April 3, 2013; 78 FR 20074). However, we additionally
explain that we cannot designate critical habitat in the agricultural
fields in the Willamette Valley, most of which are privately owned,
because we are unable to determine which areas within the large
agricultural matrix in the valley will meet the definition of critical
habitat at any time. Critical habitat, once designated, is static on
the landscape until such time as it may be revised through an
additional rulemaking process. Agricultural habitats on private lands
can provide appropriate habitat conditions for streaked horned lark,
but these conditions (large, open landscape context; low-stature
vegetation; bare ground) occur unpredictably and vary in location from
year to year. Because of the unpredictable and ephemeral nature of
streaked horned lark habitat on private agricultural lands, we have no
basis for concluding that any specific areas are essential for
conservation, because we have no way of knowing where or how long the
appropriate conditions will persist. Therefore, we have not designated
critical habitat for the streaked horned lark on private lands in the
Willamette Valley.
As noted earlier, the consideration of recovery instruments such as
incentive programs is outside of the scope of the present rulemaking,
which is limited to the identification of those areas that meet the
definition of critical habitat for the streaked horned lark.
(31) Comment: One commenter stated that the Service failed to
designate critical habitat on private agricultural lands in the
Willamette Valley, despite the fact that a majority of breeding and
wintering streaked horned larks rely on those areas. The commenter
disagreed
[[Page 61514]]
with the Service's position that it was unable to determine which areas
within the large agricultural matrix in the valley will meet the
definition of critical habitat at any time. The commenter pointed to
the Service's designation of large areas of critical habitat for the
northern spotted owl and marbled murrelet across millions of acres of
forest even though only a portion of the habitat is suitable for either
bird at any time. The commenter recommended that the Service take a
similar approach for streaked horned larks on agricultural lands in the
Willamette Valley, recognizing that only a portion of those lands will
be suitable at any given time.
Our Response: The commenter's comparison to the critical habitat
designations for the northern spotted owl (Strix occidentalis caurina)
and marbled murrelet (Brachyramphus marmoratus) is not an apt one. The
northern spotted owl and marbled murrelet rely primarily on Federal
lands for their conservation, and their old-growth habitat takes
decades to develop on those lands. In contrast, the habitat of the
streaked horned lark can develop and disappear on farm lands in the
space of a few weeks, and its appearance typically depends on human
intervention, not natural processes. Designating large swaths of the
Willamette Valley as critical habitat would not provide any useful
information regarding the presence of the streaked horned lark or its
habitat to landowners. We maintain that our concern about the ability
to identify critical habitat for the streaked horned lark on private
farm lands is valid, and the situation is not analogous to the critical
habitat designations of other listed species found in old-growth
forests.
(32) Comment: One commenter stated the primary constituent elements
(PCEs) and characteristics for habitat suitability for the streaked
horned lark are fairly specific, yet noted habitat will change over
time, and perhaps be suitable for only a limited period of time due to
vegetation growth. Therefore, they asked if critical habitat
designations will be time-limited or adjusted periodically.
Our Response: Critical habitat is a designation that does not vary
seasonally or over time, and is only subject to change through a
rulemaking process to revise the designation. This relatively static
nature of critical habitat is the very reason that we find we cannot
identify critical habitat on the unpredictable and ephemeral habitats
used by streaked horned larks in the agricultural areas of Oregon.
(33) Comment: One commenter recommended that documented occupancy
in any season during any life stage be the basis for determining
critical habitat for the streaked horned lark. They believe the
Service's definition of occupancy as occurrence only during the
breeding season is too narrow. Occupancy should include documented
presence of the subspecies outside of the breeding season as well. Uses
of non[hyphen]breeding areas are important to the subspecies' survival,
such as areas used for foraging and overwintering, as these sites may
also become breeding sites in the future.
Our Response: We do not know of any areas that are used only for
wintering (most sites that are used during the winter are also used
during the breeding season); however, we have modified our definition
of occupancy to include usage by streaked horned larks during any
season.
(34) Comment: One commenter stated the economic and social factors
driving conversion of Willamette Valley farmland to vineyards are
likely to continue in the foreseeable future, and may accelerate as
large California wineries are reportedly investing in Willamette Valley
farmlands as a hedge against global climate change. As a result, the
likelihood of a changing agricultural landscape should be recognized in
the listing and critical habitat designation for the streaked horned
lark.
Our Response: The Service does not consider the acquisition of
lands by the viticulture industry to be a significant factor in the
reduction of breeding and nesting habitat for the streaked horned lark.
We contacted Dr. William Boggess at Oregon State University's Oregon
Wine Research Institute, and he described the ideal lands for
viticulture as being 300 to 800 feet (ft) (91 to 244 meters (m)) in
elevation, on a slope with a southern or western aspect. These optimal
viticulture soils are shallow and nutrient poor, above the flood plain
or on eroded rocky soils. These ideal conditions for grapes are not
similar in characteristic to the primary constituent elements for
streaked horned lark habitat. As such, we do not consider viticulture a
factor affecting habitat loss for the streaked horned lark.
(35) Comment: One commenter stated that it is important to
designate critical habitat on Willamette Valley agricultural lands to
``ensure that habitat is not converted to uses that will never be
suitable for streaked horned lark, such as row crops or urban
development, but rather are maintained as agriculture that at least
part of the time supports streaked horned lark.''
Our Response: Critical habitat designation only has a regulatory
effect in instances where there is a Federal action (i.e., a Federal
agency funds, authorizes, or carries out an action) that may affect
designated critical habitat; this action is then reviewed through
interagency consultation under section 7 of the Act between the Federal
action agency and the Service. Designation of critical habitat on
private lands will have no effect on a private landowner's ability to
convert to another crop or to sell out completely if there is no
Federal action involved. Contrary to the commenter's perception,
critical habitat designation does not create a wildlife preserve or
require any sort of response or management from a private landowner.
(36) Comment: We received multiple conflicting comments suggesting
that connectivity both is and is not a necessary consideration when
designating critical habitat for the streaked horned lark.
Our Response: We rely on the expertise of our Service staff
biologists, as well as the peer review of our proposed rule by species
experts who either support or refute our assertions. In this instance,
both our staff biologists and our peer reviewers support the need for
connectivity of critical habitat units to ensure the potential for
genetic exchange and colonization by streaked horned larks.
(37) Comment: Several commenters expressed great concern about the
implications to public safety from designating critical habitat for the
streaked horned lark at airports, and requested that we exclude
airports from the critical habitat designation due to safety concerns.
Our Response: Although we do not see a direct connection between
the designation of critical habitat, which results in the requirement
that Federal action agencies consult with us on activities that involve
Federal funding, authorization, or implementation, and public safety,
all airport lands have been excluded from our designation under section
4(b)(2) of the Act for other reasons. Please see additional discussion
under Exclusions.
(38) Comment: Several commenters stated that critical habitat
should not be designated for the streaked horned lark at airports,
because airports are not suitable as sites for recovery of the
subspecies.
Our Response: We concur with these commenters that airports should
not be focal points for streaked horned lark recovery. In section 3 of
the Act, ``critical habitat'' is defined, in part, as the specific
areas within the geographical area occupied by the species at the time
it is listed on which
[[Page 61515]]
are found those physical and biological features essential to the
conservation of the species. ``Conservation'' is further defined in the
Act as the use of all methods and procedures which are necessary to
bring any endangered or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. These
definitions clearly demonstrate that the purpose of critical habitat
designation is to identify locations for recovery efforts for listed
species. Airport managers have expressed great concern about the
implied recovery purpose of critical habitat units; management to
encourage increasing populations of birds at airports is untenable to
airport managers. Airports unquestionably provide important habitat for
streaked horned larks, and some of these sites have demonstrated the
ability to sustain small, persistent populations of streaked horned
larks; indeed, without airports there would be very few sites
consistently managed to maintain the habitat conditions used by the
streaked horned lark within the needed landscape context. Therefore,
although airports clearly provide a benefit to the subspecies, and will
likely continue to provide important habitat for small populations,
recovery will require restoration and management of new sites that can
sustain increasing populations of streaked horned larks in the long
term, in more natural locations appropriate for conservation and that
do not pose a heightened risk of mortality to the streaked horned lark
from airstrikes. We have excluded civilian (non-Federal) airports from
critical habitat designation for the reasons outlined in the Exclusions
section of this document.
(39) Comment: One commenter expressed concern that our proposed
designation of critical habitat for the streaked horned lark relied
almost exclusively on public lands. This commenter believes that
private lands in the Willamette Valley will hold the key to the
streaked horned lark's survival.
Our Response: As we stated above, we do not yet know which
unoccupied sites will be essential for the recovery of the streaked
horned lark, and the unpredictable and highly variable occurrence of
PCEs for streaked horned larks on private lands in the Willamette
Valley precludes our ability to designate critical habitat in that
area. The public lands included in the critical habitat designation
(State Parks and the Willapa National Wildlife Refuge on the Washington
coast; three units of the Willamette Valley National Wildlife Refuge
Complex in Oregon (WVNWRC)) have a clear conservation mandate and are
already working to conserve streaked horned lark populations on those
sites. Many other sites will likely be needed to achieve recovery, but
again, we do not yet know where those sites will be. As we begin to
develop a recovery plan, and identify goals for population numbers and
distribution of the streaked horned lark, we will identify areas to
focus on for recovery. These areas will undoubtedly include many areas
on private agricultural lands, for which we will seek partnerships with
willing landowners to manage for streaked horned lark conservation.
Finally, we note that the regulatory effect of critical habitat is
limited to actions with a Federal nexus-activities that are funded,
authorized, or carried out by a Federal agency. The conservation value
of critical habitat is thus often the greatest on Federal lands, which
always have a Federal nexus. The designation of critical habitat has no
regulatory effect on private lands lacking a Federal connection.
Critical habitat designation itself does not prevent development or
alteration of the land, create a wildlife preserve, or require any sort
of response or management from a private landowner.
(40) Comment: One commenter stated that Ankeny National Wildlife
Refuge in the Willamette Valley is not an appropriate site for
designation of critical habitat for the streaked horned lark. The
commenter asserted that, ``. . . Ankeny is not recognized among
knowledgeable local birders as having any significant population'' of
streaked horned larks, and is unlikely to serve as an ``anchor site''
for the bird's recovery.
Our Response: Recent surveys have found up to five breeding pairs
of streaked horned larks at Ankeny; therefore the site is occupied at
the time of listing, and the refuge clearly provides the essential
physical or biological features for the subspecies. Therefore, it meets
the definition of critical habitat for the streaked horned lark. The
WVNWRC included conservation measures in its comprehensive conservation
plan for the streaked horned lark at each of the three refuge units,
including Ankeny. We believe that Ankeny provides consistently
available habitat for a small population of breeding streaked horned
larks, and future management may increase the population. The WVNWRC is
Federal land and has a clear conservation mandate, and so makes a good
choice for critical habitat designation.
(41) Comment: One commenter questioned our proposed designation of
critical habitat for the streaked horned lark on the three units of the
Willamette Valley National Wildlife Refuge Complex. These refuges were
originally established as habitat for wintering dusky Canada geese
(Branta canadensis occidentalis), and the commenter stated that the
refuges cannot successfully manage for the two bird species at once.
Our Response: Research at the three refuge units has shown that
streaked horned larks breed successfully in fields that have been
heavily grazed by wintering geese (Moore 2009, p. 12). The WVNWRC has a
long history of managing for wintering geese, and has recently updated
its comprehensive conservation plan to integrate streaked horned lark
conservation into the goals for the three refuge units. We believe that
the WVNWRC provides excellent habitat for streaked horned larks, and
adaptive management of the sites will likely increase the numbers of
streaked horned larks breeding at each of the refuge units.
(42) Comment: Several commenters criticized the Service's failure
to designate critical habitat on many sites that have had recent
detections of streaked horned larks, primarily on privately owned
agricultural lands in the Willamette Valley, and a few locations in the
lower Columbia River. The commenters are concerned that the current
critical habitat designation will not be adequate to recover the
subspecies.
Our Response: Streaked horned larks evolved to use a shifting
mosaic of very early successional habitats, for which the primary
requirement was the appropriate landscape context (large, relatively
flat, and wide open). The streaked horned lark is unusual among species
in that it does not now occur on remnants of its native habitats;
indeed, most of the streaked horned lark's naturally occurring habitats
no longer exist because the natural processes that historically created
those early successional habitats, such as flooding and wildfire, no
longer operate on the landscape. With the exception of sites on the
Washington coast, where natural disturbance processes still operate to
create habitat, nearly all of the sites currently used by streaked
horned larks have been inadvertently created by humans and are
industrial in nature. These sites are agricultural landscapes, dredge
spoil deposition sites, and airports. These ``working landscapes'' are
managed with little or no consideration for streaked horned lark
conservation, and lark use of these sites seems to be highly
opportunistic. Although streaked horned larks currently occur on these
sites, given their intensive industrial uses, these
[[Page 61516]]
locations may have limited potential to support increased populations
of streaked horned larks in the future, and may be inappropriate sites
on which to establish a recovery program for the subspecies. For the
streaked horned lark, we do not have obvious core sites of pristine,
natural habitats on which to focus recovery efforts. In essence, the
streaked horned lark persists in the Pacific Northwest, even though its
natural habitats are all but gone.
The sites that streaked horned larks currently use are highly
fragmented and scattered. Developing a recovery program for the
streaked horned lark will require identifying areas that have the
essential landscape characteristics and which can be managed for
conservation and recovery of the subspecies. Few of these areas have
been determined thus far. In the Willamette Valley, large landscapes
managed for native prairies will be needed, although it is very likely
that some ``working lands'' in agricultural production will also be
identified as interested landowners step up to implement practices to
protect the streaked horned lark on their lands.
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. We are not designating critical habitat on every small
and fragmented location recently known to be occupied or potentially
occupied by streaked horned larks, because we do not consider all of
these sites to meet the definition of critical habitat for the streaked
horned lark. That is, we do not consider all of these sites to provide
physical or biological features essential to the conservation of the
species, because not all of these sites have the potential to make a
substantial contribution to the recovery of the species. In addition,
section 3(5)(C) of the Act specifically mandates that, except in those
circumstances determined by the Secretary of the Interior, critical
habitat shall not include the entire geographical area which can be
occupied by the listed species. We are not suggesting that the sites
currently used by streaked horned larks are unimportant; rather,
recovery is more likely to be successful and cost-effective if we can
focus our resources on larger, more permanent sites. Therefore, it is
these larger, more permanent occupied sites that we consider to provide
the physical or biological features that are truly essential to the
conservation of the subspecies, and these are the areas that we are
designating as critical habitat at this time. We do not contend that
these sites will necessarily be sufficient to recover the subspecies,
nor does the Act require that they do so. In the future, when we have
better information on sites that will attract and support large, stable
populations of streaked horned larks, and that can be managed for the
long-term conservation of the subspecies, we may revisit this critical
habitat designation, as appropriate.
(43) Comment: One commenter recommended re-drawing the boundaries
of proposed streaked horned lark critical habitat at Portland
International Airport to exclude paved runways, taxiways, and runway
safety areas.
Our Response: All non-Federal airport lands are excluded under
section 4(b)(2) of the Act from this final designation of critical
habitat for the streaked horned lark; please see additional discussion
under Exclusions. For the lands that we are designating as critical
habitat, when determining critical habitat boundaries, we make every
effort to avoid including developed areas such as lands covered by
buildings, pavement (such as roads), and other structures because such
lands lack the essential physical or biological features for streaked
horned larks. Any such lands have been excluded by the text of this
rule and are not included in critical habitat.
(44) Comment: One commenter stated the PCE requiring only a minimum
of 16 percent open ground would not support occupation of the known
nesting sites for streaked horned larks on dredge sand islands in the
Columbia River and may only be relevant for other sites (such as the
Puget Prairie or Willamette Valley).
Our Response: The PCE identifying 16 percent minimum open ground is
a description of the habitat conditions, or physical or biological
features, essential to the conservation of the streaked horned lark,
not a management requirement. Based on research studies, streaked
horned larks need areas with a minimum of 16 percent bare ground. Most
of the currently occupied sites have much more bare ground than this,
and many of the dredge deposit sites have more than 60 percent bare
ground. The habitat description is based on research studies across the
range of the subspecies. We do not expect land owners to manage sites
for streaked horned larks to criteria that represent the minimum
observed in the field.
(45) Comment: One commenter suggested the limited number of
territories and nesting pairs observed annually at Sanderson Field
indicates this area provides only marginal habitat for the streaked
horned lark and should not be designated as critical habitat.
Our Response: The fact that streaked horned larks have consistently
nested at Sanderson Field is an indication that the airport does
provide suitable habitat. There are many occupied sites in Washington
and throughout the range of the subspecies where the number of nesting
territories is low (fewer than 10), and this is not considered an
indication of marginal habitat. The smaller size of Sanderson Field,
compared to the Olympia Airport, and the rapidly declining population
of streaked horned larks in Washington are contributing factors to the
number of territories at the Shelton Airport and other locations. It
should be noted that Sanderson Field is the northernmost location
within the current range of the subspecies where the streaked horned
lark nests. As such, this particular airport serves an important role
in maintaining the distribution of the subspecies. However, as
described in the Exclusions section of this document, airport lands
have been excluded from critical habitat for the streaked horned lark.
(46) Comment: One commenter was concerned that the designation of
critical habitat for the streaked horned lark at certain locations
within the Columbia River would attract streaked horned larks to
adjacent or nearby areas not proposed for designation and could limit
operational and development activities of the Port of Kalama in these
areas.
Our Response: Sandy Island is currently occupied habitat, and the
streaked horned lark has already been documented at the Port of
Kalama's upland dredge deposit site. The designation of critical
habitat on Sandy Island, or other islands in the Columbia River, will
not affect existing streaked horned lark movements or limit operational
and development activities on port property. The fact that the streaked
horned lark has been documented on the Port of Kalama is an indication
that the upland dredge deposit site is currently suitable habitat.
Under the listing (see the final rule to list the Taylor's checkerspot
butterfly and streaked horned lark published elsewhere in today's
Federal Register), the port will be subject to take prohibitions under
section 9 of the Act for activities conducted by the port that
[[Page 61517]]
adversely impact streaked horned larks, regardless of whether critical
habitat is designated on Sandy Island. We recommend that the Port of
Kalama work with the Service on the development of a habitat
conservation plan under section 10 of the Act for activities that
affect the subspecies or suitable habitat, including upland disposal
and use of dredge material.
Comments on Economic Analysis
Please note that the draft economic analysis (DEA) for the proposed
designation addressed multiple species proposed for listing that occupy
prairie habitats of Oregon and Washington, and included an analysis of
the potential economic impacts stemming from the proposed critical
habitat designation for Taylor's checkerspot butterfly, streaked horned
lark, and four subspecies of the Mazama pocket gopher (Thomomys mazama
ssp.). The proposed listing and critical habitat for the Mazama pocket
gophers are addressed in separate rulemakings.
(47) Comment: Several commenters took issue with the
characterization of the baseline in the DEA concerning airport
operations. For example, one commenter asserted that critical habitat
may engender incremental impacts even when the streaked horned lark is
present. In addition, the comment notes that favorable habitat at
airports, containing the PCEs, is the result of voluntary activities by
airport managers, which could be discontinued (i.e., as a result of
lost Federal funding), in which case the PCEs could disappear, the
sites would become unoccupied, and any subsequent consultation would
result solely from critical habitat.
Our Response: The U.S. Office of Management and Budget's (OMB)
guidelines for best practices concerning the conduct of economic
analysis of Federal regulations direct agencies to measure the costs of
a regulatory action against a baseline, which it defines as the ``best
assessment of the way the world would look absent the proposed
action.'' The baseline utilized in the DEA is the existing state of
regulation, prior to the designation of critical habitat, which
provides protection to the species under the Act, as well as under
other Federal, State, and local laws and guidelines. To characterize
the ``world without critical habitat,'' the DEA also endeavors to
forecast these conditions into the future over the time frame of the
analysis, recognizing that such projections are subject to uncertainty.
This baseline projection presumes that the species will be listed (as
critical habitat would not be designated absent a listing) and
therefore recognizes that the streaked horned lark will be subject to a
variety of Federal, State, and local protections throughout most of its
ranges, due to its listed status under the Act and regardless of the
designation of critical habitat.
We note that significant debate has occurred regarding whether
assessing the impact of critical habitat designations using this
baseline approach is appropriate, with several courts issuing divergent
opinions. Courts in several parts of the country, including the U.S.
Court of Appeals for the Ninth Circuit, which has jurisdiction in
Washington, Oregon, and California, have ruled that the decision about
whether to exclude areas from critical habitat should be based on the
incremental impacts of the rule. The Ninth Circuit cases were appealed
to the Supreme Court, which declined to hear them.
(48) Comment: Several commenters asserted that the DEA does not
fully account for, or sufficiently acknowledge, potential impacts to
airport development activities, revenues, and related opportunity
costs.
Our Response: During the preparation of the DEA, its authors
reached out to management officials at each of the seven airports
affected by the proposed designations and collected available planning
documents. Chapter 3 of the DEA discusses a variety of airport-related
projects and maintenance activities that would result in section 7
consultation, and considers how these consultations might be affected
by the presence of critical habitat. Based on the best available
information and the incremental effects memorandum prepared by the
Service, the DEA concludes that, for areas that are occupied by the
subspecies, critical habitat designation will not result in incremental
impacts beyond administrative costs incurred to consider adverse
modification during consultation.
(49) Comment: The Port of Portland states that their economic
assessment concerning this proposed designation was not included in the
DEA, and notes certain other issues, including: a clarification
concerning airport development activities that receive funding through
the U.S. Department of Transportation (USDOT) FAA; a typographical
error regarding unit labeling; and an assertion that the estimated
number of consultations is inaccurate.
Our Response: The identified economic assessment was reviewed and
utilized during the development of the DEA, and is cited in chapter 3
of the report. In the final economic analysis (FEA), we added
clarification concerning the USDOT FAA-funded source and fixed the unit
numbering error. In addition, further detail concerning the number of
consultations and analytic timeframe for the Port of Portland has been
added to the FEA.
(50) Comment: One submission expressed concern that critical
habitat designation will constrain dredging activities and alter
placement sites related to the Port of Kalama.
Our Response: The DEA discusses potential effects of critical
habitat designation on dredging activities, including those related to
the Port of Kalama and Sandy Island. As noted in chapter 3 of the DEA,
dredging activities occur on 8 of the 10 islands proposed for streaked
horned lark critical habitat in the Columbia River. Deposition of
dredge materials can create flat, open habitat that streaked horned
larks prefer, but dredging activities that occur during the nesting
season have the potential to increase individual mortality and cause
nest failure. Based on the review of historical and projected
conservation actions for the streaked horned lark concerning dredging
activities, and given that these areas are considered occupied by the
subspecies, the analysis concluded that critical habitat will not
result in incremental economic impacts to dredging activities, beyond
the administrative costs associated with consultation with the Service.
(51) Comment: Two commenters expressed concern that the listing and
designation of critical habitat for the Taylor's checkerspot butterfly
and Mazama pocket gophers (which will be addressed in separate rules)
may constrain gravel mining activities in Pierce and Thurston Counties,
Washington. One comment expressed specific concern about impacts to
planned gravel extraction in Subunit 1-D Rocky Prairie.
Our Response: The proposed critical habitat acreage in these areas
is considered to be occupied by at least one of the prairie species
noted. As noted in the DEA and related incremental effects memorandum,
should the six subspecies be formally listed under final rules, their
presence within critical habitat will require implementation of certain
conservation efforts to avoid jeopardy concerns. In occupied critical
habitat, consultation would therefore consider not only the potential
for jeopardy to the continued existence of the species, but also the
potential for destruction or adverse modification of critical habitat.
Because the ability of these subspecies to exist is very closely tied
to the quality of their
[[Page 61518]]
habitats, significant alterations of their occupied habitat may result
in jeopardy as well as adverse modification. Therefore, we anticipate
that section 7 consultation analyses will likely result in no
difference between recommendations to avoid jeopardy or adverse
modification in occupied areas of habitat. The analysis concludes that
incremental economic impacts of critical habitat designation will be
limited to additional administrative costs of additionally considering
critical habitat as part of section 7 consultation to the Service,
other Federal agencies, and private third parties. Note, however, that
additional detail concerning potential gravel mining activities in
proposed critical habitat, along with related consultation
requirements, has been added to the FEA.
In addition, the specifically identified subunit, Subunit 1-D Rocky
Prairie, was proposed as unoccupied critical habitat for Taylor's
checkerspot butterfly. This subunit has been removed from the final
designation upon a determination that this area is not essential to the
conservation of the species.
(52) Comment: One commenter stated that, in the DEA, economic costs
are overstated and that many economic benefits have not been included
in the analysis. Specifically, the comment asserted that there is no
basis to determine that the designation of critical habitat for the
streaked horned lark will have an additional economic impact beyond the
listing itself, and notes that birdwatching and related livability
amenities due to outdoor opportunities are important to Portland's
social vitality.
Our Response: A primary conclusion of the economic analysis is
that, in areas of proposed designation occupied by the species, limited
incremental impacts will occur beyond those administrative costs
associated with consultation. Further, in chapter 3, the DEA does
provide a qualitative discussion of potential ancillary benefits
(including recreational use) attributable to the conservation of these
species.
(53) Comment: One commenter stated that the DEA dismisses the need
to describe impacts in economic terms and instead focuses on biological
benefits only, citing paragraph 4 in the Executive Summary of the DEA
as an example.
Our Response: This comment misconstrues the language of this
paragraph. The DEA endeavors to provide a full rendering of the
designation's potential economic impacts, including defining a baseline
and assessing incremental effects, both direct and indirect. In the
context of weighing these costs against the ``benefits'' of the
designation, however, the benefits component focuses on the primary
``biological'' benefit related to species conservation, and puts less
emphasis on ancillary, or secondary, benefits flowing from species
conservation (e.g., improved environmental quality yielding human
health or recreational use benefits).
(54) Comment: One commenter noted that, concerning potential
ancillary benefits of the designation, airports are secure facilities
with limited and controlled public access. Thus, none of the potential
ancillary benefits cited in the DEA, such as recreational
opportunities, is relevant to the airport environment.
Our Response: We agree that, given the security environment at
airports, human use benefits are limited at airports. We note, however,
that the direct biological benefit of species conservation may still be
attributable to airport locations, and that certain ancillary benefits
(improved environmental quality due to landscape management) may also
still accrue. As previously mentioned, all non-Federal airport lands
are excluded from this final designation of critical habitat for the
streaked horned lark. Please see additional discussion under
Exclusions.
(55) Comment: One commenter expressed concern that, even when care
is taken in the review of projects and actions that are unlikely to
harm the long-term viability of the Taylor's checkerspot butterfly,
streaked horned lark, and Mazama pocket gopher, allowance of new
development could leave the community subject to potential lawsuits.
Our Response: Chapter 2 of the DEA discusses the issue of indirect
impacts potentially related to critical habitat, including the
triggering of other State and local laws, time delays, regulatory
uncertainty, and stigma. Within this context, the effect of third-party
litigation can represent an indirect effect. We note, however, that
forecasting the likelihood of third-party litigation and related
project delays or other constraints is considered too speculative for
the economic analysis. In addition, the DEA attributes most economic
effects to the presence of the species and jeopardy concerns, as
opposed to the designation of critical habitat.
Summary of Changes From Proposed Rule
We are designating a total of 1,941 ac (786 ha) of critical habitat
for the Taylor's checkerspot butterfly and a total of 4,629 ac (1,873
ha) of critical habitat for the streaked horned lark. We received a
number of site-specific comments related to critical habitat for these
two subspecies; completed our analysis of areas considered for
exclusion under section 4(b)(2) of the Act or for exemption under
section 4(a)(3) of the Act; reviewed the application of our criteria
for identifying critical habitat across the range of these two
subspecies to refine our designations; and completed the final economic
analysis of the designation as proposed. We fully considered all
comments from the public and peer reviewers on the proposed rule and
the associated economic analysis to develop this final designation of
critical habitat for the Taylor's checkerspot butterfly and streaked
horned lark. This final rule incorporates changes to our proposed
critical habitat based on the comments that we received and have
responded to in this document, and considers completed final management
plans to conserve the subspecies under consideration. Although we
received additional distribution data for the streaked horned lark on
agricultural lands in the Willamette Valley, this information did not
necessitate the designation of additional critical habitat. Because of
the fragmented and ephemeral nature of those areas on private lands, we
determined they do not meet our definition of critical habitat for the
streaked horned lark.
We have made some technical corrections to the document, and our
final designation of critical habitat reflects the following changes
from the proposed rule:
(1) We added one additional adult nectar resource to the list of
plants in the primary constituent elements for Taylor's checkerspot
butterfly: wild strawberry (Fragaria virginiana).
(2) Based on our analysis of the total area necessary for the
conservation of Taylor's checkerspot butterfly in Washington and
Oregon, we determined that approximately 447 ac (181 ha) of the
unoccupied critical habitat that we proposed are not essential for the
conservation of the subspecies based on comments and information
received. This finding of ``not essential'' did not result in the
removal of entire subunits for the Taylor's checkerspot butterfly, as
it did for the streaked horned lark (see below), but did reduce the
area of several subunits for the subspecies, both in Washington and
Oregon.
Our analysis of the proposed critical habitat for the streaked
horned lark determined that two of proposed critical habitat subunits
(in their entirety) do not meet the definition of critical habitat;
therefore these subunits were removed from the final designation. The
[[Page 61519]]
first of these two critical habitat subunits was identified as subunit
3-J in the proposed critical habitat rule and is commonly known as
Coffeepot Island. This small island of approximately 25 ac (10 ha) in
the Columbia River is not occupied by the streaked horned lark, and
although it presently supports some of the physical or biological
features utilized by the lark, without ongoing management it will not
maintain these characteristics into the foreseeable future. (Please
note, in this final rule, the critical habitat units have been
renumbered sequentially and the designation of critical habitat subunit
3-J is now assigned to Whites/Brown Island (see Table 2)). As we find
it unlikely that Coffeepot Island will provide suitable habitat for the
streaked horned lark in the future, we determined that this subunit is
not essential to the conservation of the subspecies, and does not meet
our definition of critical habitat.
In the second case, we determined that the subunit identified as 4-
G in the proposed critical habitat rule, M-DAC Farms in Oregon, does
not meet our definition of critical habitat for the streaked horned
lark. Although occupied at the time of listing, the PCEs at this site
are in a state of steady decline due to a conservation agreement that
focuses on restoring the landscape to wetland, a vegetative structure
unsuitable to maintaining habitat for the streaked horned lark. This
site is therefore unlikely to contribute to the recovery of the
streaked horned lark, and as it lacks the PCEs for the streaked horned
lark, it does not meet our definition of critical habitat for the
subspecies. M-DAC Farms (601 ac (243 ha) was therefore removed from the
final designation of critical habitat for the streaked horned lark.
(3) The Service approved the DOD's endangered species management
plans (ESMPs) under the INRMP for military installation JBLM for the
Taylor's checkerspot butterfly and streaked horned lark. The ESMPs are
species-specific, and contain site-specific conservation actions that
will be implemented as a component of the larger INRMP for the
installation. The Secretary has exempted lands at JBLM from critical
habitat under section 4(a)(3) of the Act, based on the approval of
these ESMPs. Lands exempted include approximately 2,324 ac (940 ha) for
the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the
streaked horned lark on JBLM. The area exempted represents
approximately 34 percent of the area proposed as critical habitat for
Taylor's checkerspot butterfly and 23 percent of the area proposed as
critical habitat for the streaked horned lark. For Taylor's checkerspot
butterfly, the exemption of military lands from critical habitat
resulted in the removal of three critical habitat subunits within Unit
1 and sequential renumbering of the remaining subunits designated in
this final rule (see Table 1). Training Area 7 South (TA7S), 91st
Division Prairie, and 13th Division Prairie were numbered 1-A, 1-B, and
1-C in the proposed rule, respectively. For the streaked horned lark,
the exemption of military lands combined with the exclusion under
section 4(b)(2) of the Act for non-Federal airports (see below)
resulted in the removal of Unit 1 in its entirety. Subunits in Unit 4
for the streaked horned lark were sequentially renumbered due to the
exclusion of non-Federal airports in Oregon (see Table 2 and Exclusions
section of this document).
(4) We carefully considered the benefits of inclusion and the
benefits of exclusion of specific areas in proposed critical habitat
under section 4(b)(2) of the Act, particularly in areas where
management plans specific to the Taylor's checkerspot butterfly and
streaked horned lark are in place, and where the maintenance and
fostering of important conservation partnerships were a consideration.
Based on the results of our analysis, we are excluding approximately
2,184 ac (885 ha) from our final critical habitat designation for
Taylor's checkerspot butterfly and 4,114 ac (1,664 ha) for the streaked
horned lark (see Exclusions, below). For Taylor's checkerspot
butterfly, two entire subunits of proposed critical habitat in Oregon
were excluded based on the Benton County Prairie Species HCP; these
include Fort Hoskins Historic Park (proposed critical habitat subunit
number 4-1) and Beazell Memorial Forest (proposed critical habitat
subunit number 4-2). The area excluded represents approximately 32
percent of the area proposed as critical habitat for the Taylor's
checkerspot butterfly and 32 percent of the area proposed as critical
habitat for the streaked horned lark.
Exclusion from critical habitat should not be interpreted as a
determination that these areas are unimportant, that they do not
provide physical or biological features essential to the conservation
of the species (for occupied areas), or are not otherwise essential for
conservation (for unoccupied areas); exclusion merely reflects the
Secretary's determination that the benefits of excluding those
particular areas outweigh the benefits of including them in the
designation.
Due to these changes in our final critical habitat designation, we
have updated our subunit numbering, descriptions, and critical habitat
maps, all of which can be found later in this document. This final
designation of critical habitat represents a reduction of 4,934 ac
(1,996 ha) from our proposed critical habitat for the Taylor's
checkerspot butterfly and 7,530 ac (3,047 ha) for the streaked horned
lark, for the reasons detailed above. Additional minor differences
between proposed and final critical habitat for both subspecies on the
order of roughly 20 ac (8 ha) beyond those detailed above are due to
minor boundary adjustments and simple rounding error.
Critical Habitat
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the Taylor's
checkerspot butterfly and streaked horned lark in this section of the
rule.
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 pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies
[[Page 61520]]
ensure, 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 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.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in 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. Our regulations direct us to 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. Furthermore, except in certain
circumstances determined by the Secretary, critical habitat is not to
include the entire geographical area which can be occupied by the
listed species.
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.
Habitat is dynamic, and species may move from one area to another
over time. 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 needed
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) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. 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
listed 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 or 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 by the species at the time of listing to
designate as critical habitat, we consider the physical or 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 or biological features essential
for the Taylor's checkerspot butterfly and streaked horned lark from
studies of each subspecies' habitat, ecology, and life history as
described in detail in the Critical Habitat section of the proposed
rule to designate critical habitat published in the Federal Register on
October 11, 2012 (77 FR 61937). Additional information can also be
found in the final listing rule for the Taylor's checkerspot butterfly
and streaked horned lark, which is published elsewhere in today's
Federal Register. We have determined that the physical and or
biological features described in the proposed rule (October 11, 2012;
77 FR 61937) are essential to the conservation of the Taylor's
checkerspot butterfly and streaked horned lark, and have further
determined that these features may require special management
considerations or protection.
The designation of critical habitat is an authority restricted to
the boundaries of the United States; critical habitat cannot be
designated in a foreign country (50 CFR 424.12(h)). Both Taylor's
checkerspot butterfly and streaked horned lark range into Canada or
historically occurred there. In the
[[Page 61521]]
final listing rule, published elsewhere in the Federal Register today,
we discuss the population in Canada for the purpose of evaluating the
viability of the species and to inform our determination of those areas
within the United States that are essential for the conservation of the
subspecies. We do not have the authority to designate critical habitat
in Canada.
Taylor's Checkerspot Butterfly
Primary Constituent Elements for the Taylor's Checkerspot
Butterfly--Under the Act and its implementing regulations, we are
required to identify the physical or biological features essential to
the conservation of Taylor's checkerspot butterfly 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 or biological features that provide for the subspecies'
life-history processes and are essential to the conservation of the
subspecies.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
subspecies' life-history processes, we determine that the primary
constituent elements specific to the Taylor's checkerspot butterfly
are:
(i) Patches of early seral, short-statured, perennial bunchgrass
plant communities composed of native grass and forb species in a
diverse topographic landscape ranging in size from less than 1 ac up to
100 ac (0.4 to 40 ha) with little or no overstory forest vegetation
that have areas of bare soil for basking that contain:
(a) In Washington and Oregon, common bunchgrass species found on
northwest grasslands include Festuca roemeri (Roemer's fescue),
Danthonia californica (California oat grass), Koeleria cristata
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra
(rough bentgrass), and on cooler, high-elevation sites typical of
coastal bluffs and balds, Festuca rubra (red fescue).
(b) On moist grasslands found near the coast and in the Willamette
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less
abundant forbs found on the grasslands include, but are not limited to,
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and
sickle-keeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants (narrow-leaved plantain and harsh
paintbrush) and at least one of the secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several
species of speedwell (marsh speedwell (Veronica scutella), American
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding that include several species
found as part of the native (and one nonnative) species mix on
northwest grasslands, including, but not limited to: narrow-leaved
plantain; harsh paintbrush; Puget balsam root; woolly sunshine; nine-
leaved desert parsley; fine-leaved desert parsley or spring gold;
common camas; showy fleabane; Canada thistle; common yarrow; prairie
lupine; sickle-keeled lupine, and wild strawberry (Fragaria
virginiana).
(iv) Aquatic features such as wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide moisture during periods of
drought, particularly late in the spring and early summer. These
features can be permanent, seasonal, or ephemeral.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the subspecies, through the identification of the primary constituent
elements essential to support the life-history processes of the
subspecies. We are designating critical habitat within the geographical
area occupied by the subspecies at the time of listing. In addition, we
are designating some specific areas outside the geographical area
occupied by the subspecies at the time of listing that were
historically occupied, but are presently unoccupied, because we have
determined that these areas are essential for the conservation of the
subspecies.
Streaked Horned Lark
Primary Constituent Elements for the Streaked Horned Lark--Under
the Act and its implementing regulations, we are required to identify
the physical or biological features essential to the conservation of
the streaked horned lark 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 or
biological features that provide for the subpecies' life-history
processes and are essential to the conservation of the subspecies.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
subspecies' life-history processes, we determine that the primary
constituent elements specific to the streaked horned lark are areas
having a minimum of 16 percent bare ground that have sparse, low-
stature vegetation composed primarily of grasses and forbs less than 13
in (33 cm) in height found in:
(1) Large (300-ac (120-ha)), flat (0-5 percent slope) areas within
a landscape context that provides visual access to open areas such as
open water or fields, or
(2) Areas smaller than described in (1), but that provide visual
access to open areas such as open water or fields.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the subspecies, through the identification of the primary constituent
elements sufficient to support the life-history processes of the
subspecies. All of the units designated as critical habitat are
currently occupied by the streaked horned lark and contain the primary
constituent elements to support the life-history needs of the
subspecies.
Special Management Considerations or Protections--All areas we are
designating as critical habitat will require some level of management
to address the current and future threats to the Taylor's checkerspot
butterfly and streaked horned lark and to maintain or restore the PCEs.
A detailed discussion of activities influencing the Taylor's
checkerspot butterfly and streaked horned lark and their habitats can
be found in the final listing rule published elsewhere in today's
Federal Register. Threats to the physical or biological features that
are essential to the conservation of these subspecies and that may
warrant special management considerations or protection include, but
are not limited to: (1) Loss of habitat from conversion to other uses;
(2) control of nonnative, invasive species; (3) development; (4)
construction and maintenance of roads and utility corridors; and (5)
habitat modifications brought on by succession of vegetation from the
lack of disturbance, both small and large scale. These threats also
have the potential to affect the PCEs if they are conducted within or
adjacent to designated units.
[[Page 61522]]
Taylor's Checkerspot Butterfly
The physical or biological features essential to the conservation
of the Taylor's checkerspot butterfly may require special management
considerations or protection to improve the viability and distribution
of habitat suitable for the subspecies. These include preventing the
establishment of invasive, nonnative and native woody species, and
hastening restoration by actively managing sites to establish native
plant species and the structure of the plant community that is suitable
for the Taylor's checkerspot butterfly. Restoration and maintenance of
occupied Taylor's checkerspot butterfly sites will require active
management to plan, restore, enhance, and manage habitat using an
approach that resets the vegetation composition and structure to an
early seral stage. Management actions that produce suitable conditions
for Taylor's checkerspot butterflies and reset the ecological clock to
early seral conditions favored by the butterfly include prescribed
fires, mechanical harvesting of trees, activities such as hand planting
or mechanical planting of grasses and forbs, and the judicious use of
herbicides for nonnative, invasive species control.
These early-seral conditions favor the production and maintenance
of plantain, paintbrush, and other larval host plants in a short-
structure vegetation community that allows utilization of the plants by
the Taylor's checkerspot butterfly. Areas where the Taylor's
checkerspot butterfly occupies a site should have limited soil and
vegetation disturbance at times when the larvae are active, which
extends from late February when post-diapause larvae are active to late
June when pre-diapause larvae are on site. Other activities that could
cause trampling or impacts to the larvae and that should be minimized,
reduced, or restricted during larval feeding include use of the site by
off-road vehicles, military training using vehicles or impacts caused
by large infantry (foot soldiers), or activities that transport or
spread nonnative plants, and the risk of wildfire or prescribed fire.
We reemphasize here the acknowledgement that Taylor's checkerspot
butterfly, while most obvious during the flight period and when larvae
are active, are year-round residents and may be vulnerable to most
types of direct disturbance throughout the year.
Streaked Horned Lark
The physical or biological features essential to the conservation
of the streaked horned lark may require special management
considerations or protection to ensure the provision of early seral
conditions and landscape context of sufficient quantity and quality for
long-term conservation and recovery of the subspecies. Activities such
as mowing, burning, grazing, tilling, herbicide treatment, grading,
beach nourishment, or placement of dredge material can be used to
maintain or restore nesting and wintering habitats. Regular disturbance
is necessary to create and maintain suitable habitat, but the timing of
management is important. The management actions should be conducted
outside of the breeding season to avoid the destruction of nests and
young, or if habitat management must be done during the breeding
season, it should be done in a way that minimizes destruction of nests
or harassment of individuals. Nesting success is highest in locations
with restricted public use or entry such as military facilities,
airports, islands, wildlife refuges, or sites that are remote or
difficult to access.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We review available information pertaining to the habitat requirements
of the species, and begin by assessing the specific geographic areas
occupied by the species at the time of listing. If such areas are not
sufficient to provide for the conservation of the species, in
accordance with the Act and its implementing regulation at 50 CFR
424.12(e), we then consider whether designating additional areas
outside the geographic areas occupied at the time of listing may be
essential to ensure the conservation of the species. We consider
unoccupied areas for critical habitat when a designation limited to the
present range of the species may be inadequate to ensure the
conservation of the species. In this case, since we are listing
simultaneously with the designation of critical habitat, all areas
presently occupied by Taylor's checkerspot butterfly or streaked horned
lark are presumed to constitute those areas occupied at the time of
listing; those areas currently occupied by the subspecies are
identified as such in each of the unit or subunit descriptions below.
These descriptions similarly identify which of the units or subunits
are believed to be unoccupied at the time of listing. Our determination
of the areas occupied at the time of listing and our rationale for how
we determined specific unoccupied areas to be essential the
conservation of the subspecies are provided below.
We plotted the known locations of the Taylor's checkerspot
butterfly and streaked horned lark where they occur in Washington and
Oregon using 2011 National Agriculture Imagery Program (NAIP) digital
imagery in ArcGIS, version 10 (Environmental Systems Research
Institute, Inc.), a computer geographic information system program.
To determine if the currently occupied areas contain the primary
constituent elements, we assessed the life-history components and the
distribution of the subspecies through element occurrence records in
State natural heritage databases and natural history information on
each of the subspecies as they relate to habitat. We first considered
whether the presently occupied areas were sufficient to conserve the
subspecies. If not, to determine if any unoccupied sites met the
criteria for critical habitat, we then considered: (1) The importance
of the site to the overall status of the subspecies to prevent
extinction and contribute to future recovery of the subspecies; (2)
whether the area presently provides the essential physical or
biological features, or could be managed and restored to contain the
necessary physical or biological features to support the subspecies;
and (3) whether individuals were likely to colonize the site. We also
considered the potential for reintroduction of the subspecies, where
anticipated to be necessary (for Taylor's checkerspot butterfly only).
As required by section 4(b)(2) of the Act, we used the best
scientific data available to designate critical habitat. We reviewed
available information pertaining to the habitat requirements of these
subspecies. In accordance with the Act and its implementing regulation
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
subspecies. We are designating critical habitat in areas within the
geographical area occupied by the subspecies at the time of listing in
2013. For Taylor's checkerspot butterfly only, we also are designating
specific areas outside the geographical area occupied by the subspecies
at the time of listing that were historically occupied, but may be
presently unoccupied, based on the Secretary's determination that these
areas are essential for the conservation of the subspecies.
When we are determining which areas should be designated as
critical habitat,
[[Page 61523]]
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, other unpublished materials, or experts' opinions or
personal knowledge. In this case we used existing occurrence data for
each subspecies and identified the habitat and ecosystems upon which
they depend. These sources of information included, but were not
limited to:
(1) Data used to prepare the proposed and final rules to list the
subspecies;
(2) Information from biological surveys;
(3) Peer-reviewed articles, various agency reports, and databases;
(4) Information from the U.S. Department of Defense--Joint Base
Lewis-McChord (JBLM) and other cooperators;
(5) Information from species experts;
(6) Data and information presented in academic research theses; and
(7) Regional Geographic Information System (GIS) data (such as
species occurrence data, land use, topography, aerial imagery, soil
data, and land ownership maps) for area calculations and mapping.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R1-ES-
2013-0009, on our Web site at https://www.fws.gov/wafwo/TCBSHL.html/,
and, by appointment, at the Service's Washington Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT, above).
In all cases, when determining critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement (such as roads), and other structures because
such lands lack the essential physical or biological features for the
Taylor's checkerspot butterfly and streaked horned lark. 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 as critical habitat. Therefore,
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 or biological features in the adjacent critical habitat.
Taylor's Checkerspot Butterfly
Occupied Areas--For the Taylor's checkerspot butterfly, we are
designating critical habitat within the geographical area occupied by
the subspecies at the time of listing, as well as in unoccupied areas
that we have determined to be essential for the conservation of the
subspecies (described below). These presently occupied areas provide
the physical or biological features essential to the conservation of
the subspecies, which may require special management considerations or
protection. We determined occupancy in these areas based on recent
survey information. All sites occupied by Taylor's checkerspot
butterfly have survey data as recently as 2011, except for the U.S.
Forest Service sites on the north Olympic Peninsula where data are as
recent as 2010 (Potter 2011; Linders 2011; Ross 2011; Holtrop 2010;
Severns and Grossboll 2011). In addition, there have been some recent
experimental translocations of Taylor's checkerspot butterflies to
sites where it had been extirpated within its historical range. If
translocated populations have been documented as successfully
reproducing, we considered those sites to be presently occupied by the
subspecies. Areas designated as critical habitat for Taylor's
checkerspot butterfly are representative of the known historical
geographic distribution for the subspecies, outside of Canada.
We are designating three units of critical habitat based on
sufficient elements of physical or biological features being present to
support life-history processes for the Taylor's checkerspot butterfly.
These 3 units are further divided into 11 subunits. Some subunits
within the units contain all of the identified elements of physical and
biological features and support multiple life-history processes; some
subunits contain at least one or more elements of the physical and
biological features necessary to support the Taylor's checkerspot
butterfly's particular use of that habitat. Because we determined that
the areas presently occupied by Taylor's checkerspot butterfly are not
sufficient to provide for the conservation of the subspecies, we have
additionally identified some subunits that are presently unoccupied,
but that the Secretary has determined to be essential to the
conservation of the subspecies. Therefore, we are also designating
these unoccupied areas as critical habitat for the Taylor's checkerspot
butterfly, as explained below.
Unoccupied Areas--We are designating six subunits as critical
habitat for the Taylor's checkerspot butterfly that are not presently
occupied by the subspecies, but that the Secretary has determined
essential for the conservation of the subspecies. There has been a
rapid decline in the spatial distribution of prairies (grassland
habitat) throughout the range of the Taylor's checkerspot butterfly; as
a result, the present distribution of Taylor's checkerspot butterfly is
disjunct and isolated throughout the subspecies' historical range. If
the Taylor's checkerspot butterfly is to recover, there must be
sufficient suitable habitat available for population expansion and
growth that is potentially connected in such a way as to allow for
dispersal, and these sites must receive routine and sustained
management to maintain the early seral conditions essential to the
conservation of the subspecies. We therefore evaluated areas outside
the presently occupied patches to identify unoccupied habitat areas
essential for the conservation of the subspecies. We are designating as
critical habitat some areas adjacent to known occurrences of the
Taylor's checkerspot butterfly but that may currently be unoccupied to
provide for population expansion and growth, which is essential for the
conservation of the subspecies.
We have identified these unoccupied areas as essential for the
conservation of the Taylor's checkerspot butterfly because they are
located strategically between, and in some cases, adjacent to, occupied
areas from which the butterfly may disperse; these areas contain one or
more of the PCEs for the Taylor's checkerspot butterfly (although the
presence of one or more PCEs is not a statutory requirement for
unoccupied critical habitat), and are all receiving or are slated to
receive restoration treatments that will increase the amount of
suitable habitat available.
Streaked Horned Lark
Occupied Areas--We are designating two units of critical habitat
for the streaked horned lark based on sufficient elements of physical
or biological features being present to support life-history processes
during the breeding or
[[Page 61524]]
winter seasons. These 2 units are further divided into 16 subunits. All
of the units designated as critical habitat are presently occupied by
the streaked horned lark. Some subunits within the units contain all of
the identified elements of physical or biological features and support
multiple life-history processes; some subunits contain at least one or
more elements of the physical or biological features necessary to
support the streaked horned lark's particular use of that habitat.
Unoccupied Areas--There are no unoccupied subunits designated as
critical habitat for the streaked horned lark.
Final Critical Habitat Designation
We are designating four units total as critical habitat for the
Taylor's checkerspot butterfly and streaked horned lark. The critical
habitat areas described below constitute our best assessment at this
time of areas that meet the definition of critical habitat for these
subspecies. Those four units are:
(1) The South Sound Unit (Unit 1), which has critical habitat
subunits for only the Taylor's checkerspot butterfly.
(2) The Strait of Juan de Fuca Unit (Unit 2), which has critical
habitat subunits for only the Taylor's checkerspot butterfly.
(3) The Washington Coast and Columbia River Unit (Unit 3), which
has critical habitat subunits for only the streaked horned lark.
(4) The Willamette Valley Unit (Unit 4), which has critical habitat
subunits for both the Taylor's checkerspot butterfly and streaked
horned lark.
Taylor's Checkerspot Butterfly--Units 1, 2, and 4
We are designating three units as critical habitat for the Taylor's
checkerspot butterfly. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for the subspecies. The three units we
designate as critical habitat are: Unit 1, South Sound--1,143 ac (462
ha) in Washington State (545 ac (220 ha) of County ownership, 420 ac
(170 ha) of private ownership, and 178 ac (72 ha) of lands owned by a
Port, local municipality, or nonprofit conservation organization); Unit
2, Strait of Juan de Fuca--779 ac (315 ha) in Washington State (160 ac
(65 ha) of Federal ownership, 188 ac (76 ha) of State ownership, 201 ac
(81) of private ownership, and 229 ac (93 ha) of land owned by a Port,
local municipality, or nonprofit organization); and Unit 4-D,
Willamette Valley--20 ac (8 ha) of privately owned lands in Oregon. The
approximate area of each critical habitat unit and its relevant
subunits, as well as land ownership within each unit, is shown in Table
1.
Table 1--Critical Habitat Units Designated for Taylor's Checkerspot Butterfly. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All
Land Within Critical Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: South Sound Federal State County Private Other * Currently
------------------------------------------------------------------------------------------------------------------------------------------- occupied
-------------
Subunit Name Ac(Ha) Ac-(Ha) Ac(Ha) Ac(Ha) Ac(Ha) Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-A............................... Rocky Prairie................... 0 0 0 0 43 (17) N
1-B............................... Tenalquot Prairie............... 0 0 0 0 135 (55) N
1-C............................... Glacial Heritage................ 0 0 545 (220) 0 0 Y
1-D............................... Rock Prairie.................... 0 0 0 244 (99) 0 N
1-E............................... Bald Hill....................... 0 0 0 176 (71) 0 N
Unit 1 Totals................... 0 (0) 0 (0) 545 (220) 420 (170) 178 (72) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 2: Strait of Juan De Fuca:
-----------------------------------
2-A............................... Deception Pass State Park....... 0 149 (60) 0 0 0 N
2-B............................... Central Whidbey................. 0 39 (16) 0 0 190 (77) N
2-C............................... Elwha........................... 0 0 0 51 (20) 39 (16) Y
2-D............................... Sequim.......................... 0 0 0 151 (61) 0 Y
2-E............................... Dungeness....................... 160 (65) 0 0 0 0 Y
Unit 2 Totals................... 160 (65) 188 (76) 0 201 (81) 229 (93) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
-----------------------------------
4-D........................... Fitton Green-Cardwell Hill...... 0 0 0 20 (8) 0 (0) Y
Unit 4 Totals................... 0 0 0 20 (8) 0 (0) ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grand Total--all Units.......... 160 (65) 188 (76) 545 (220) 642 (259) 407 (166) ............
===================================================================================
GRAND TOTAL ALL UNITS, ALL ............ ............ 1,941 (786) ............ ............ ............
OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Taylor's checkerspot
butterfly, below.
Unit 1: South Sound--Taylor's Checkerspot Butterfly
The South Sound Unit consists of 1,143 acres (462 ha) of land
designated for the Taylor's checkerspot butterflies in five subunits.
This unit is found entirely in Thurston County, Washington.
Subunit Descriptions
1-A Rocky Prairie--(Thurston County, Washington). The Rocky Prairie
critical habitat subunit is composed of two disjunct habitat patches
comprising a total of 43 ac (17 ha). The first patch is a linear strip
of prairie under private ownership. It is approximately 15 ac (6 ha) in
size and bounded on the north by residential homes, on the east by the
Burlington Northern railroad line, the south by forest (approximately
443 ft (135 m) north of where the Burlington Northern rail line
intersects Old Hwy 99), and on the west by the Washington Department of
Natural Resources Rocky Prairie Natural Area Preserve (NAP). The second
prairie patch of this subunit is 29 ac (12 ha) of property owned by a
conservation organization known as
[[Page 61525]]
Wolf Haven International. It is located southeast of the Burlington
Northern habitat patch. Wolf Haven is bounded on the north by Offut
Lake Road, and bounded by a service road in all but the extreme
northeastern corner of the property. The landscape on the east, west,
and south boundaries of the prairie at Wolf Haven is delineated by
mixed Garry oak and conifer forest (east), or conifer forest (west and
south). Both habitat patches within this subunit are unoccupied at the
time of listing.
This subunit is within a matrix of historically occupied patches
from which Taylor's checkerspot butterfly has been completely
extirpated. We have determined this subunit is essential for the
conservation of the Taylor's checkerspot butterfly because it has the
potential for restoration of the physical or biological features
sufficient to enable the reintroduction of Taylor's checkerspot
butterfly. In addition, although currently unoccupied, this area
presently provides many of the essential features to support long-term
conservation and recovery of the Taylor's checkerspot butterfly. The
subunit is composed of grasslands and includes oak woodland margins,
and some transitional, colonization (first growth) Douglas-fir forest
within the greater prairie landscape. Several PCEs, including landscape
heterogeneity and diverse and abundant larval and adult plants
resources, are present.
1-B Tenalquot Prairie--(Thurston County, Washington). The Tenalquot
Prairie subunit is a privately owned conservation area of approximately
135 ac (55 ha) in size and part of the larger, historically contiguous
Tenalquot Prairie, the majority of which occurs on JBLM. The northern
boundary of this subunit is a fenceline boundary, which separates South
Weir prairie on JBLM from the adjacent private land. The western
boundary of this subunit is a large pasture clearly delineated by a
fence line, and it is bordered on the southeast by Military Road. This
subunit is unoccupied at the time of listing.
We have determined this subunit is essential for the conservation
of the Taylor's checkerspot butterfly because it would provide for the
reintroduction and reestablishment of Taylor's checkerspot butterfly.
Although currently unoccupied, this area presently provides many of the
physical or biological features necessary to support the long-term
conservation and recovery of Taylor's checkerspot butterfly and has the
potential to serve as metapopulation center within a larger prairie
landscape context (~2,000 ac (810 ha) in the south region of Thurston
County. The physical or biological features present at this site
include landscape heterogeneity, bare ground for basking, and diverse
and abundant larval and adult plant resources. This subunit is
periodically managed using prescribed burning as well as with
mechanical methods to remove Scot's broom (Cytisus scoparius) and to
sustain early seral conditions.
1-C Glacial Heritage--(Thurston County, Washington). Glacial
Heritage is a large, County-owned property managed with conservation,
research, and education as its primary objectives. The property
consists of more than 1,200 acres, with approximately 545 ac (220 ha)
designated as critical habitat. The northwestern boundary is an
abandoned railroad line, and to the direct north are rural residential
properties; the eastern boundary of the preserve is the Black River,
and the southern boundary is owned by two private landowners: one is a
large industrial tree farm where conifer seedlings are grown, and the
other is dominated by pasture grown for haying. The southern border is
clearly defined by the land use change along the fenceline. This
subunit is occupied at the time of listing, and provides the essential
physical or biological features for the Taylor's checkerspot butterfly,
including diverse topography, abundant and diverse larval and adult
nectar plant resources, a water course, and areas of bare ground for
basking due to ongoing, active management.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities, such
as burning, mowing, and the use of herbicides; control of native and
nonnative invasive woody species such as Scot's broom and Douglas fir
(Pseudotsuga menziesii), as well as control of invasive Mediterranean
grasses; habitat modifications brought on by succession of vegetation
from the lack of disturbance, at a small and large scale; disease
affecting larval host plants; and the effects of climate change.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
1-D Rock Prairie--(Thurston County, Washington). We are designating
approximately 244 ac (99 ha) of critical habitat on the northern
portion of Rock Prairie, a large, privately owned property in south
Thurston County. The subunit has diverse landscape features with
mounded prairie, old field pasture, oak woodland, and conifer forest.
The northern boundary is delineated by dense conifer forests, the
southern border is State Highway 99 (referred to as old 99), the
western boundary is clearly delineated by rural residential lots, and
the eastern border is the urban growth boundary for the town of Tenino,
Washington. This subunit is unoccupied at the time of listing.
This historically occupied subunit is essential for the
conservation of the Taylor's checkerspot butterfly as it presently
provides many of the features necessary to support long-term
conservation and recovery of the Taylor's checkerspot butterfly. These
include diverse topography with swales and terraces, abundant and
diverse larval and adult food resources, and a location close to a
water course formed by Scatter Creek.
1-E Bald Hill--(Thurston County, Washington). The Bald Hill subunit
is a collection of balds (shallow-soil areas without typical conifer
vegetation) and former clearcut areas that have not regenerated and now
maintain features of open habitat that produce larval and adult food
resources that can be utilized by the Taylor's checkerspot butterfly.
All independent, isolated habitat patches are surrounded by conifer
forests on all sides. Some patches are bordered by WDNR roads, and
others are bordered by private roads used for fire control and to
access the forested property. The Bald Hill subunit comprises a total
of 176 ac (71 ha) (rounded up). The western habitat patch of this
subunit is approximately 110 ac (45 ha), and the eastern patch is
approximately 65 ac (26 ha); both are unoccupied at the time of
listing.
The Taylor's checkerspot butterfly was recently extirpated from
this historically occupied subunit. We have determined it is essential
for the conservation of the Taylor's checkerspot butterfly because it
has the potential to provide for the reintroduction and reestablishment
of Taylor's checkerspot butterfly and to support recovery of the
subspecies. This area presently contains many of the features to
support long-term conservation and recovery of the Taylor's checkerspot
butterfly, including a diverse topography of balds, steep slopes,
canyons, oak glades, a rich diversity of larval and adult food
resources, and patches of bare soil for basking and resting. This
particular critical habitat subunit is unique in that it provides the
only bald habitat for Taylor's checkerspot butterfly at low elevation
within Thurston County.
[[Page 61526]]
Unit 2: Strait of Juan de Fuca--Taylor's Checkerspot Butterfly
The Strait of Juan de Fuca Unit is composed of 779 acres (315 ha)
made up of balds, former clearcuts, coastal bluffs, coastal back dunes,
and prairie in five subunits located in Clallam County and Island
County, Washington.
Subunit descriptions
2-A Deception Pass State Park--(Island County, Washington).
Deception Pass State Park is owned and managed by Washington State
Parks. The subunit contains approximately 149 ac (60 ha) of designated
critical habitat found along low-lying beaches (coastal dunes) and on
balds along high, south-facing slopes within the park. These areas
include the shoreline along Bowman Bay, Bowman Hill and Beach,
Reservation Head, Pass Island, Goose Rock, and West Beach, all within
the park. Deception Pass State Park is divided by Highway State 20, and
bordered by the portion of Puget Sound that forms Deception Pass to the
north, and to the south by private rural residential properties. This
park was historically occupied by Taylor's checkerspot butterfly, but
at this time the subunit is unoccupied.
We have determined this subunit is essential for the conservation
of the subspecies because it has the potential for reintroduction and
reestablishment of the Taylor's checkerspot butterfly to support
recovery. In addition, although currently unoccupied, this area
presently provides many of the features to support a reintroduced
population of Taylor's checkerspot butterfly, including diverse
topography with balds and beaches, abundant larval and adult food
resources, areas of bare soil for basking of larvae and adults, and
water sources made up of saltwater along the western shoreline and a
freshwater wetland.
2-B Central Whidbey--(Island County, Washington). This subunit is
located on Whidbey Island in Washington, and comprises a total of 229
ac (92 ha), and includes Ebey's Landing (~87 ac (35 ha)), the Naas-
Admiralty Inlet Conservation Area (~8 ac (3 ha)), and the former Smith
Prairie (~134 ac (54 ha)). The Central Whidbey subunit is made up of
two distinct patches: one is located along the central-west coast on
coastal bluffs of the island (Ebey), and the second (Smith Prairie) is
located on relatively flat prairie located centrally-north on the
island. The coastal area is bordered by Puget Sound to the west, and
rural residential property and farmland to the east. The Smith Prairie
is surrounded by rural residential properties on all sides; Parker Road
runs along the western border of the property, and Morse Road is found
along the south boundary. This subunit was historically occupied but is
currently unoccupied.
We have determined this subunit is essential for the conservation
of the subspecies because it has the potential for reintroduction and
reestablishment of Taylor's checkerspot butterfly to support recovery.
In addition, although currently unoccupied, this area presently
provides many of the features to support a reintroduced population of
Taylor's checkerspot butterfly, including diverse topography with
coastal bluffs and beaches, abundant larval and adult food resources,
areas of bare soil, and water sources made up of a freshwater wetland,
and saltwater along the western shoreline.
2-C Elwha--(Clallam County, Washington). The Elwha critical habitat
subunit is composed of private lands in Clallam County made up of
balds, and former clear cut areas within a landscape of conifer
forests. The subunit polygons adjoin occupied patches owned and managed
by the WDNR, one is owned and managed by a nongovernmental conservation
organization, the Center for Natural Lands Management, and the other
small parcel is owned by a private timber company. These two patches
are found primarily on the south slope of Dan Kelly Ridge, and they are
separated by essential habitat owned by WDNR that has been excluded due
to an HCP providing for species-specific habitat management.
The habitat patches at both locations are bounded by conifer
forests. The balds at each of these locations are presently occupied by
the Taylor's checkerspot butterfly, which has been observed flying up
and down the steep slopes and onto private lands. Both of these
locations contain essential physical or biological features, including
topographic heterogeneity, abundant and diverse larval and adult food
resources, and bare soil for basking and resting. Puddles on the road
provide a water source during the adult flight season.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to,
development; the inadvertent short-term negative impacts of restoration
activities, such as control of native and nonnative, invasive, woody
species such as Scot's broom, snowberry (Symphoricarpos albus), and
Douglas fir; the use of herbicides; habitat modifications brought on by
succession of vegetation from lack of disturbance, at a small and large
scale; disease affecting larval host plants; and the effects of climate
change. The physical or biological features essential to the
conservation of the species may require special management
considerations or protection to sustain the open conditions that are
needed to manage for and sustain the larval and adult food resources.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
2-D Sequim--(Clallam County, Washington). Sequim is a private
property estate and farm of low-lying stabilized dune habitat of
approximately 151 ac (61 ha). The subunit includes stabilized dunes and
beach habitat adjacent to the Strait of Juan de Fuca; it is
approximately 20 ft (6 m) above sea level. The landowner has been
working cooperatively with the WDFW to manage their property for
multiple uses, including the conservation of Taylor's checkerspot
butterfly. The subunit is occupied at the time of listing.
The Sequim subunit contains several essential physical or
biological features, including landscape heterogeneity with fore and
back dune areas and terraces; rich and abundant larval and adult food
resources; a marsh; and bare soil for basking and resting.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to,
development; the inadvertent short-term negative impacts of restoration
activities; habitat modifications brought on by succession of
vegetation from lack of disturbance, at a small and large scale;
disease affecting larval host plants; and the effects of climate
change. The physical or biological features essential to the
conservation of the species may require special management
considerations or protection to sustain the open conditions that are
needed to manage for and sustain the larval and adult food resources.
Special management considerations may be required to provide protection
to larval and adult food resources by reducing human disturbance during
the flight season, and when eggs and early instar larvae are present.
2-E Dungeness--(Clallam County, Washington). The Dungeness subunit
is found entirely on U.S. Forest Service (USFS) land on the northeast
Olympic Peninsula. This subunit comprises a
[[Page 61527]]
total of 160 ac (65 ha) and is composed of bald habitat, and former
clearcuts that function similarly to balds. The three occupied areas
within this subunit and are known as Bear Mountain (low elevation), 3
O'Clock Ridge (middle elevation) (which is composed of two habitat
patches), and the upper Dungeness (highest elevation). These locations
on USFS lands are the highest elevations known to be occupied by
Taylor's checkerspot butterflies. The Bear Mountain location is
entirely surrounded by conifer forests and originated as a small
harvest unit that functions similar to a bald. 3 O'Clock ridge is
bounded by the upper Dungeness Road on the northwest boundary, Cougar
Creek to the northeast, Bungalow creek to the southwest, and conifer
forests to the southeast of the occupied unit. Upper Dungeness is
bounded by an unnamed creek to the northeast and Mueller Creek to the
southwest, and by conifer forests to the southeast of the occupied
unit. All habitat patches within this subunit are presently occupied by
the Taylor's checkerspot butterfly.
The subunit contains several essential physical or biological
features, including landscape heterogeneity, abundant larval and adult
food resources, nearby streams, and plentiful areas of bare ground for
basking and resting. Early restoration work conducted by USFS has
included tree harvesting and removal, which has resulted in the
expansion of larval and adult food resources in this habitat.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities and
control of native and nonnative, woody species; the use of herbicides
that my impact larval and adult nectar resources; habitat modification
brought on by succession of vegetation from lack of disturbance, at a
small and large scale; disease affecting larval host plants; and the
effects of climate change. The physical or biological features
essential to the conservation of the species may require special
management considerations or protection to sustain the open conditions
that are needed to manage for and sustain the larval and adult food
resources. Special management considerations may be required to provide
protection to larval and adult food resources by reducing human
disturbance during the flight season, and when eggs and early instar
larvae are present.
Unit 4: Willamette Valley--Taylor's Checkerspot Butterfly
Unit 4, located in the Willamette Valley, is the only critical
habitat unit that includes critical habitat for both the streaked
horned lark and Taylor's checkerspot butterfly. Unit 4 includes four
subunits in the State of Oregon; three for the streaked horned lark (4-
A, 4-B, and 4-C; described below), and a single subunit (4-D) for the
Taylor's checkerspot butterfly in Benton County.
Unit 4-D Fitton Green-Cardwell Hill--(Benton County, Oregon).
Fitton Green-Cardwell Hill is located in the eastern foothills of the
Coastal Range on the western edge of the Willamette Valley. The habitat
is composed of multiple small natural openings of approximately 3 ac (1
ha) in size within a conifer-oak forest landscape. These habitat
patches collectively comprise the 20 ac (8 ha) that constitute Subunit
4-D. The northern patch of this subunit is a BPA right-of-way that
passes through a large occupied patch of county-owned habitat that
provides conservation benefit to the Taylor's checkerspot butterfly
through the Benton County Prairie Species HCP. This subunit is
currently occupied by the Taylor's checkerspot butterfly.
This subunit contains several of the essential physical or
biological features for the Taylor's checkerspot butterfly, including
native perennial bunchgrass plant communities with abundant larval and
adult food resources, landscape heterogeneity, and bare soil for
basking and resting.
Threats to the physical or biological features that are essential
to the conservation of this species and may warrant special management
considerations or protections include, but are not limited to, the
inadvertent short-term negative impacts of restoration activities such
as control of native and nonnative, invasive, woody species and
invasive Mediterranean grasses through mechanical means and with
herbicide; habitat modification due to succession of vegetation in the
absence of disturbance, at a small and large scale; impacts of disease
on larval food plants; and climate change. The physical or biological
features essential to the conservation of Taylor's checkerspot
butterfly may require special management considerations or protection
to sustain short-statured vegetation structure and to reduce human
disturbance during the flight season or when eggs and early instar
larvae are present. The physical or biological features of this site
may be particularly vulnerable to the effects of recreational use, such
as trampling of vegetation.
Streaked Horned Lark--Units 3 and 4
We are designating as critical habitat areas that we have
determined are occupied at the time of listing and contain sufficient
elements of physical or biological features to support life-history
processes essential to the conservation of the streaked horned lark. We
are designating two units as critical habitat for the streaked horned
lark. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the subspecies. The two units we designate as critical
habitat are: Unit 3--Washington Coast and Columbia River (with 13
subunits), and Unit 4--Willamette Valley (with 3 subunits). The
Washington Coast and Columbia River Unit (Unit 3) totals 2,900 ac
(1,173 ha) and includes 564 ac (228 ha) of Federal ownership, 2,209 ac
(894 ha) of State-owned lands, and 126 ac (51 ha) of private lands. The
Willamette Valley Unit (Unit 4) totals 1,729 ac (700 ha) and is
entirely composed of Federal lands. We are designating a total of 4,629
ac (1,873 ha) of critical habitat for the streaked horned lark
rangewide.
The streaked horned lark has been documented nesting on all of the
subunits within the last few years, and all subunits are therefore
considered occupied at the time of listing. All of the subunits
currently have one or more of the physical or biological features
essential to the conservation of the streaked horned lark, and which
may require special management considerations or protection.
The critical habitat areas described below constitute our best
assessment of areas that meet the definition of critical habitat for
the streaked horned lark. The approximate area and landownership of
each critical habitat unit and associated subunit is shown in Table 2.
[[Page 61528]]
Table 2--Critical Habitat Units for Streaked Horned Lark. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within Critical
Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 3: Washington Coast and Columbia River Islands Federal State Private Tribal Other* Currently
-------------------------------------------------------------------------------------------------------------------------------------------- occupied
------------
Subunit name Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-A............................ Damon Point................... 0 456 (185) 24 (10) 0 0 Y
3-B............................ Midway Beach.................. 0 611 (247) 0 0 0 Y
3-C............................ Shoalwater Spit............... 0 377 (152) 102 (41) 0 0 Y
3-D............................ Leadbetter Point.............. 564 (228) 101 (41) 0 0 0 Y
3-E............................ Rice Island................... 0 224 (91) 0 0 0 Y
3-F............................ Miller Sands.................. 0 123 (50) 0 0 0 Y
3-G............................ Pillar Rock/Jim Crow.......... 0 44 (18) 0 0 0 Y
3-H............................ Welch Island.................. 0 43 (18) 0 0 0 Y
3-I............................ Tenasillahe Island............ 0 23 (9) 0 0 0 Y
3-J............................ Whites/Brown.................. 0 98 (39) 0 0 0 Y
3-K............................ Wallace Island................ 0 13 (5) 0 0 0 Y
3-L............................ Crims Island.................. 0 60 (24) 0 0 0 Y
3-M............................ Sandy Island.................. 0 37 (15) 0 0 0 Y
----------------------------------------------------------------------------------------
Unit 3 Totals................. 564 (228) 2,209 (894) 126 (51) 0 0 ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
--------------------------------
4-A............................ Baskett Slough NWR............ 1,006 (407) 0 0 0 0 Y
4-B............................ Ankeny NWR.................... 264 (107) 0 0 0 0 Y
4-C............................ William L Finley NWR.......... 459 (186) 0 0 0 0 Y
----------------------------------------------------------------------------------------
Unit 4 Totals................. 1,729 (700) 0 0 0 0 Y
Grand Total--all Units........ 2,293 (928) 2,209 (894) 126 (51) 0 0 ...........
----------------------------------------------------------------------------------------
GRAND TOTAL OF ALL UNITS, ALL .............. .............. 4,629 (1,873) ........... ........... ...........
OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.
Unit 3: Washington Coast and Columbia River--Streaked Horned Lark
On the Washington coastal sites, the streaked horned lark occurs on
sandy beaches and breeds in the sparsely vegetated, low dune habitats
of the upper beach. We are designating four subunits (Subunits 3-A, 3-
B, 3-C, and 3-D) and a total of 2,235 ac (904 ha) as critical habitat
on the Washington coast. The coastal sites are owned and managed by
Federal, State, and private entities. The physical or biological
features essential to the conservation of the streaked horned lark may
require special management considerations or protection to reduce human
disturbance during the nesting season, and the continued encroachment
of invasive, nonnative plants requires special management to restore or
retain the open habitat preferred by the streaked horned lark. Subunits
3-A, 3-B, 3-C, and 3-D overlap areas that are designated as critical
habitat for the western snowy plover. The snowy plover nesting areas
are posted and monitored during the spring and summer to keep
recreational beach users away from the nesting areas; these management
actions also benefit the streaked horned lark.
In the lower Columbia River, we are designating nine island
subunits (Subunits 3-E through 3-M) for a total of 665 ac (269 ha). The
island subunits are owned by the States of Oregon and Washington. On
the Columbia River island sites, only a small portion of each island is
designated as critical habitat for the streaked horned lark; most of
the areas mapped are used by the Corps for dredge material deposition
in its channel maintenance program. Within any deposition site, only a
portion is likely to be used by the streaked horned lark in any year,
as the area of habitat shifts within the deposition site over time as
new materials are deposited and as older deposition sites become too
heavily vegetated for use by streaked horned larks. All of the island
subunits are small, but are adjacent to open water, which provides the
open landscape context needed by streaked horned larks.
The main threats to the essential features in the critical habitat
subunits designated on the Columbia River islands are invasive
vegetation and direct impacts associated with deposition of dredge
material onto streaked horned lark nests during the nesting season. In
all subunits, the physical or biological features essential to the
conservation of each subspecies may require special management
considerations or protection to manage, protect, and maintain the PCEs
supported by the subunits. For those threats that are common to all
subunits, special management considerations or protections may be
required to address direct or indirect habitat loss due to the location
and timing of dredge material placement to areas that have become
unsuitable for streaked horned lark nesting and wintering habitat.
Subunit 3-A: Damon Point--(Grays Harbor County, Washington). This
critical habitat subunit is about 481 ac (194 ha) in size; of this, 456
ac (185 ha) are owned by the State, and 24 ac (10 ha) are under private
ownership. It extends from the Ocean Shores wastewater treatment plant
on the western edge through the Oyhut wildlife management unit and
Damon Point spit (also called Protection Island). The vast majority of
this area (~95 percent) is managed by the State of Washington (WDFW,
WDNR, and Washington State Parks). This subunit is currently occupied
and provides the physical or biological features essential to the
conservation of the subspecies. The site has both the open landscape
context and sparse, low-growing vegetation that make up the physical or
biological features essential to the conservation of the subspecies.
Streaked horned larks currently nest and winter on Damon Point and have
also been documented nesting along the beach just west of the treatment
plant. The physical or
[[Page 61529]]
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to reduce human disturbance during the nesting season and encroachment
by invasive, nonnative plants that render the habitat too dense for use
by streaked horned larks.
Subunit 3-B: Midway Beach--(Pacific County, Washington). This
subunit is about 611 ac (247 ha) in size. The northern edge of the
subunit starts at Grayland Beach State Park and extends south to the
Warrenton Cannery road. The landward extent is defined by the
vegetation and ownership line in the mid-dune area. This site is owned
by the State of Washington (Washington State Parks and Recreation
Department). This subunit is currently occupied and provides the
physical or biological features essential to the conservation of the
subspecies. Both open landscape context and the sparse, low-growing
vegetation that make up the physical or biological features essential
to the conservation of the subspecies are present at the site, and
Midway Beach is used by streaked horned larks for both nesting and
wintering. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to reduce human disturbance during the
nesting season and encroachment by invasive, nonnative plants that
render the habitat too dense for use by streaked horned larks.
Subunit 3-C: Shoalwater/Graveyard Spit--(Pacific County,
Washington). This subunit is about 479 ac (194 ha); of this, 377 ac
(152 ha) are owned by the State, and 102 ac (41 ha) are under private
ownership. The central portion of the subunit (182 ac; 74 ha) is within
the Shoalwater Bay Indian Reservation and has been excluded under
section 4(b)(2) (see Exclusions), dividing the subunit into northwest
and southeast sections. Streaked horned larks have been documented off
and on at this site during the breeding season since 2000. Although the
site has been unoccupied for the past couple of years, singing male
streaked horned larks were documented at this site during surveys in
June 2012; therefore, we consider this site to be currently occupied.
As with the other areas along the Washington coast, streaked horned
larks use this site for both nesting and wintering. The subunit is a
dynamic area and has a constantly changing sand spit that supports the
essential features for nesting and wintering habitat. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to reduce human disturbance during the nesting season and encroachment
by invasive, nonnative plants that render the habitat too dense for use
by streaked horned larks.
Subunit 3-D: Leadbetter Point--(Pacific County, Washington). This
subunit contains about 665 ac (269 ha) at the northern tip of the Long
Beach Peninsula. This subunit is on the Willapa National Wildlife
Refuge and the Seashore Conservation Area (managed by Washington
State). This site is occupied and provides the physical or biological
features essential to the conservation of the subspecies. Most of the
streaked horned larks at this site nest within the habitat restoration
area and in ponded swales landward of the restoration area that go dry
in the summer (Ritchie 2012, pers. comm.). The site has the open
landscape context and sparse, low-growing vegetation that make up the
physical or biological features essential to the conservation of the
subspecies. The Willapa National Wildlife Refuge completed its
comprehensive conservation plan in August 2011, and manages habitat at
the tip of Leadbetter Spit for the western snowy plover, streaked
horned lark, and other native coastal species. These management
activities are compatible with streaked horned lark conservation. As
with the other coastal sites, Leadbetter is used by streaked horned
larks year-round. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3-E: Rice Island--(Clatsop County, Oregon, and Wahkiakum
County, Washington). This subunit is about 224 ac (91 ha) in size. The
island is located at river mile (RM) 21, approximately 7 mi (11 km)
upstream of the Astoria-Megler Bridge near the mouth of the Columbia
River. Although the island is within the planning boundary of the Julia
Butler Hansen National Wildlife Refuge, Rice Island is owned by the
Oregon Department of State Lands. A very small portion of the subunit
is in Wahkiakum County and on Washington State lands. The Corps uses
this site for dredge material disposal as part of its maintenance of
the Columbia River shipping channel. This subunit is occupied and
provides the features essential to the conservation of the subspecies.
Streaked horned larks currently nest and winter on Rice Island. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 3-F: Miller Sands Spit--(Clatsop County, Oregon). Miller
Sands Spit is across the shipping channel from Rice Island at RM 24.
The subunit is a sand spit 2 mi (1.2 km) long and about 123 ac (50 ha)
in size on the northern shore of the island. The subunit is currently
occupied and provides the physical or biological features essential to
the conservation of the subspecies for nesting and wintering habitat.
The island is owned by the Oregon Department of State Lands, but is
also within the planning unit boundary for the Julia Butler Hansen
National Wildlife Refuge. The Corps uses this site for dredge material
disposal as part of its maintenance of the Columbia River shipping
channel. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Subunit 3-G: Pillar Rock/Jim Crow Sands--(Clatsop County, Oregon).
This island is located at about RM 27 on the Columbia River. The
subunit is about 44 ac (18 ha) in size. Pillar Rock is currently
occupied and provides the physical or biological features essential to
the conservation of the subspecies. Streaked horned larks nest and
winter at the site. The island is owned by the Oregon Department of
State Lands and is within the planning unit boundary for the Julia
Butler Hansen National Wildlife Refuge. The Corps uses this site for
dredge material disposal as part of its maintenance of the Columbia
River shipping channel. The physical or biological features essential
to the conservation of the streaked horned lark may require special
management considerations or protection to maintain the early seral
vegetation required by the subspecies and to minimize nest destruction
and disturbance during the breeding season.
Subunit 3-H: Welch Island--(Clatsop County, Oregon). This island is
at RM 34 and is owned by the Oregon Department of State Lands. The
critical habitat subunit is about 43 ac (18 ha) on the northeastern
shore of the island. This site is currently occupied and provides the
physical or biological features essential to the conservation of
[[Page 61530]]
the subspecies. The Corps uses this site for dredge material disposal
as part of its maintenance of the Columbia River shipping channel. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 3-I: Tenasillahe Island--(Columbia County, Oregon). This
island is at RM 38; the subunit is on a small unnamed spit at the
southern tip of Tenasillahee Island. The subunit is about 23 ac (9 ha)
in size. This site is currently occupied and provides the physical or
biological features essential to the conservation of the subspecies.
The site is owned by the Oregon Department of State Lands. The Corps
uses this site for dredge material disposal as part of its maintenance
of the Columbia River shipping channel. The physical or biological
features essential to the conservation of the streaked horned lark may
require special management considerations or protection to maintain the
early seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-J: Whites/Brown Island--(Wahkiakum County, Washington).
Whites/Brown Island is connected to the southern end of Puget Island at
RM 46 and is owned by WDFW. The subunit is a small spit at the southern
end of Whites/Brown Island and is about 98 ac (39 ha) in size. The site
is used by the Corps for dredge material disposal as part of its
maintenance of the Columbia River shipping channel. This site is
currently occupied and provides the physical or biological features
essential to the conservation of the subspecies. Whites/Brown Island
supports one of the largest populations of streaked horned larks in the
lower Columbia River islands. The physical or biological features
essential to the conservation of the streaked horned lark may require
special management considerations or protection to maintain the early
seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-K: Wallace Island--(Columbia County, Oregon). Wallace
Island is located across the channel from Whites/Brown Island at RM 47.
Streaked horned larks were detected at the site in 2012, which is about
13 ac (5 ha) in size; therefore we consider the subunit presently
occupied. The area is owned by the Oregon Department of State Lands.
This site is not a dredge material disposal site. This subunit
currently contains the physical or biological features essential to the
conservation of the species, but may require special management to
maintain the low vegetative structure required by streaked horned
larks.
Subunit 3-L: Crims Island--(Columbia County, Oregon). This island
is located upstream of Wallace Island at RM 57. The subunit is about 60
ac (24 ha) in size. The subunit is currently occupied and provides the
physical or biological features essential to the conservation of the
subspecies. The area is owned by the Oregon Department of State Lands,
but is also within the planning unit boundary for the Julia Butler
Hansen National Wildlife Refuge. Crims Island is an approved Corps
dredge material disposal site. The physical or biological features
essential to the conservation of the streaked horned lark may require
special management considerations or protection to maintain the early
seral vegetation required by the subspecies and to minimize nest
destruction and disturbance during the breeding season.
Subunit 3-M: Sandy Island--(Columbia County, Oregon). This island,
at RM 76, is the island farthest upstream that is known to be used by
streaked horned lark for nesting. The subunit is about 37 ac (15 ha) in
size on the southern end of Sandy Island and is owned by the Oregon
Department of State Lands. This subunit is currently occupied and
provides the physical or biological features essential to the
conservation of the subspecies. The Corps uses this site for dredge
material disposal as part of its maintenance of the Columbia River
shipping channel. The physical or biological features essential to the
conservation of the streaked horned lark may require special management
considerations or protection to maintain the early seral vegetation
required by the subspecies and to minimize nest destruction and
disturbance during the breeding season.
Unit 4: Willamette Valley--Streaked Horned Lark
Unit 4 (Willamette Valley) includes critical habitat subunits for
both the Taylor's checkerspot butterfly and streaked horned lark, all
in the State of Oregon. We are designating three subunits for the
streaked horned lark in the Willamette Valley, all on the Willamette
Valley National Wildlife Refuge Complex. The total acreage is 1,729 ac
(700 ha). All of the subunits are occupied at the time of listing and
contain the physical or biological features essential to the
conservation of the subspecies that may require special management
considerations or protection. These subunits are managed mainly to
provide forage for wintering dusky Canada geese, and this management is
compatible with maintaining the essential features for the streaked
horned lark. The refuge complex has incorporated management for
streaked horned lark into its recently completed comprehensive
conservation plan, and streaked horned lark habitat conservation is
being implemented in the refuge units.
Subunit 4-A: Baskett Slough National Wildlife Refuge--(Polk County,
Oregon). There are two parts to this critical habitat subunit, the area
of which totals 1,006 ac (407 ha). Subunit 4-A North is 181 ac (73 ha)
and is in the North Morgan Reservoir area of the refuge. Subunit 4-A
South is 825 ac (334 ha) and is the South Baskett Slough Agricultural
area of the refuge; State Route 22 forms the southeast boundary of the
south subunit. Both of the subunits are agricultural fields that are
heavily grazed by dusky Canada geese in the winter. This subunit is
currently occupied and contains the physical or biological features
essential to the conservation of the subspecies. Baskett Slough
National Wildlife Refuge has large areas of agricultural lands and
restored native prairies, which provide the landscape context and
vegetation structure required by streaked horned larks. The refuge
manages primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. This subunit is
consistently used by streaked horned larks in the breeding season. The
physical or biological features essential to the conservation of the
streaked horned lark may require special management considerations or
protection to maintain the early seral vegetation required by the
subspecies and to minimize nest destruction and disturbance during the
breeding season.
Subunit 4-B: Ankeny National Wildlife Refuge--(Marion County,
Oregon). This site is in the middle of the Ankeny Refuge, in the Field
6 Complex; the northeast boundary of the subunit is formed by the
Sydney Ditch. The critical habitat subunit is 264 ac (107 ha). The site
is composed of agricultural fields that are heavily grazed by dusky
Canada geese in the winter. The subunit is currently occupied and has
consistent use by streaked horned larks in the breeding season. This
subunit contains all of the physical or biological features essential
to the conservation of the subspecies. Ankeny National Wildlife Refuge
has both agricultural lands and restored native prairies, which provide
the landscape context and vegetation
[[Page 61531]]
structure required by streaked horned larks. The refuge manages
primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to maintain the early seral vegetation required by the subspecies and
to minimize nest destruction and disturbance during the breeding
season.
Subunit 4-C: William L. Finley National Wildlife Refuge--(Benton
County, Oregon). This critical habitat subunit is on Fields 11 and 12
in the South Finley Agricultural Lands area of the refuge; Bruce Road
bisects the subunit, and McFarland Road forms the southern boundary of
the site. The subunit is 459 ac (186 ha) in size. This subunit is
currently occupied and contains the physical or biological features
essential to the conservation of the subspecies. The site is composed
of agricultural fields that are heavily grazed by dusky Canada geese in
the winter, and it has consistent use by streaked horned larks in the
breeding season; streaked horned larks also winter at the refuge.
Finley National Wildlife Refuge has large areas of agricultural lands
and restored native prairies, which provide the landscape context and
vegetation structure required by streaked horned larks. The refuge
manages primarily for wintering dusky Canada geese, which also provides
suitable management for streaked horned larks. The physical or
biological features essential to the conservation of the streaked
horned lark may require special management considerations or protection
to maintain the early seral vegetation required by the subspecies and
to minimize nest destruction and disturbance during the breeding
season.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Taylor's checkerspot
butterfly or the streaked horned lark. As discussed above, the role of
critical habitat is to support life-history needs of the species and
provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such
[[Page 61532]]
habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Taylor's checkerspot butterfly or streaked horned
lark. These activities include, but are not limited to:
(1) Actions that restore, alter, or degrade habitat features
through development, agricultural activities, burning, mowing,
herbicide use or other means in suitable habitat for the Taylor's
checkerspot butterfly or the streaked horned lark.
(2) Actions that would alter the physical or biological features of
critical habitat including modification of the composition and
structure of vegetation in suitable habitat for the Taylor's
checkerspot butterfly or the streaked horned lark. Such activities
could include, but are not limited to, construction, grading or other
development, mowing, conversion of habitat, or use of herbicides to
remove vegetation (recreational use, off-road vehicles on Federal,
State, private, or Tribal lands). These activities may affect the
physical or biological features of critical habitat for the Taylor's
checkerspot butterfly and streaked horned lark, by removing sources of
food, shelter, nesting or oviposition sites, or otherwise impacting
habitat essential for completion of life history.
(3) Actions that would reduce the open landscape context required
by the streaked horned lark, such as construction of buildings or
planting tall trees adjacent to a suitable site.
(4) Deposition of dredge materials on occupied streaked horned lark
habitats during the breeding season.
(5) Installation of shoreline stabilization structures or
modification of beaches and open shorelines where occupied by the
streaked horned lark or where critical habitat occurs for the streaked
horned lark.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
critical habitat designation for the Taylor's checkerspot butterfly and
streaked horned lark to determine if they meet the criteria for
exemption from critical habitat under section 4(a)(3) of the Act. The
following areas are Department of Defense lands with completed,
Service-approved INRMPs within the critical habitat designation.
Approved INRMPs
U.S. Army Joint Base Lewis-McChord--JBLM, formerly known as Fort
Lewis, is an 86,500-ac (35,000-ha) U.S. Army military reservation in
western Washington, south of Tacoma and east of the Puget Sound. JBLM
contains some of the largest remaining intact prairies in the south
Puget Sound basin, with approximately 20,352 ac (8,236 ha) of prairies,
one of the rarest ecosystems in the United States, which also supports
both the Taylor's checkerspot butterfly and streaked horned lark. Since
2003, JBLM has managed the prairies located on the base according to
their Prairie Management Plan, which was collaboratively prepared by
Robert Altman of the American Bird Conservancy (ABC), the Environmental
and Natural Resources Division of JBLM's Wildlife Branch, and The
Nature Conservancy (TNC) of Washington. The prairies found on JBLM are
currently managed by JBLM's Fish and Wildlife Program and the primary
mission for the JBLM prairies is to provide an open environment for
military training. JBLM has a history of applying an ecosystem
management strategy to their prairies to provide for multiple
conservation goals, which have included promoting native biological
diversity, maintaining and restoring unique plant communities, and
providing habitat for several rare prairie species. There are 2,324 ac
(941 ha) of lands within the boundary of JBLM that were identified in
the proposed critical habitat designation for the Taylor's checkerspot
butterfly; these lands included all of subunits 1-A, 1-B, 1-C, and 1-E
in the proposed rule (77 FR 61937; October 11, 2012). JBLM has the
largest naturally occurring population of the Taylor's checkerspot
butterfly anywhere in its range. This significant Federal landholding
provides the largest contiguous block of prairie in Washington as well.
JBLM has an INRMP in place that was approved in 2006, which JBLM is
in the process of updating. In 2012, JBLM amended their existing INRMP
with specific regard to the Taylor's checkerspot butterfly by
completing an ESMP that includes guidelines for protecting,
maintaining, and enhancing habitat essential to support the Taylor's
checkerspot butterfly on JBLM. The Service has found, in writing, that
the ESMP under the JBLM INRMP provides a conservation benefit to the
Taylor's checkerspot butterfly.
JBLM's ESMPs identify management objectives for the conservation of
Taylor's checkerspot butterfly and streaked horned lark. For the
Taylor's checkerspot butterfly, the ESMP specifically includes nine
proposed ``priority habitat'' focus areas on JBLM for management of the
Taylor's checkerspot butterfly and its associated habitat. The
management objective is to improve the populations of Taylor's
checkerspot butterflies both on and off JBLM. JBLM's Fish and Wildlife
Program proposes several management objectives to attain this goal: (1)
They will coordinate with the Service and WDFW on increasing the number
of populations and expand their distribution on and off the base; (2)
the JBLM Fish and Wildlife Program will
[[Page 61533]]
monitor occupied Taylor's checkerspot butterfly populations to detect
habitat degradation, weather, and climate factors that influence
populations dynamics; and (3) they will evaluate the efficacy of their
ESMP, and adapt their management if required. JBLM has also committed
to restore and sustain priority habitat areas through a number of
management efforts. This will be accomplished by controlling invasive,
nonnative plant species and encroaching conifers, and as land is
cleared they will replant with the larval host and adult nectar plants
for Taylor's checkerspot butterfly. Restoration actions to enhance and
maintain suitable habitat conditions includes ecological prescribed
burning, mowing, application of herbicides where needed, girdling of
encroaching conifers, manual removal, and biological control using
integrated pest management. Another objective is to purchase lands off
JBLM for the express purpose of managing the locations for Taylor's
checkerspot butterfly habitat and translocation. To date, over 4,000 ac
(1,620 ha) have been acquired using Area Compatible Use Buffer (ACUB)
program funding.
There are 2,813 ac (1,138 ha) of lands within the boundary of JBLM
that were identified in the proposed critical habitat designation for
the streaked horned lark; these lands included all of subunits 1-B, 1-
C, 1-D, and 1-E in the proposed rule (77 FR 61937; October 11, 2012).
The ESMP for the streaked horned lark identifies management objectives
that are applied in specific locations on JBLM where this subspecies
nests, including McChord Airfield, Gray Army Airfield, 13th Division
Prairie (Training Area 14), and the eastern portion of the 91st
Division Prairie. The management objectives that are applied for the
protection of streaked horned larks include: (1) Scheduled mowing
regimes to minimize impacts to streaked horned lark at the military
airfields during the nesting season. The mowing restrictions are done
in coordination with the FAA to meet airport safety requirements for
vegetation management; (2) limiting off-road vehicle use in areas where
streaked horned larks are nesting; (3) annual surveys for streaked
horned larks in coordination with the CNLM and the WDFW at all of the
known occupied sites. Protection buffers will be applied around the
nesting areas at 13th Division Prairie and all training activities will
be seasonally restricted in these areas; and (4) evaluating the
efficacy of their ESMP, and adapt their management if required. As
described above, JBLM maintains and restores the prairie areas on base,
including areas used by the streaked horned lark. The Service has
found, in writing, that the ESMP under the JBLM INRMP provides a
conservation benefit to the streaked horned lark.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified
Department of Defense lands are subject to the JBLM INRMP and that
conservation efforts identified in the ESMPs under the INRMP will
provide a conservation benefit to the Taylor's checkerspot butterfly
and streaked horned lark. Therefore, lands within this installation are
exempt from critical habitat designation under section 4(a)(3) of the
Act. We are not including approximately 2,324 ac (941 ha) of habitat
for the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the
streaked horned lark in this final critical habitat designation because
of this exemption. The lands exempted under section 4(a)(3) are
identified in Tables 3 and 4.
Table 3--Areas Exempted From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
Section 4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas exempted in acres
Unit Specific area habitat in acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... TA7S................... 78 (32) 78 (32)
1.................................... 91st Division Prairie.. 1,377 (557) 1,377 (557)
1.................................... 13th Division Prairie.. 647 (262) 647 (262)
1.................................... Tenalquot Prairie...... 222 (90) 222 (90)
-------------------------------------------------
Total............................ ....................... 2,324 (941) 2,324 (941)
----------------------------------------------------------------------------------------------------------------
Table 4--Areas Exempted From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas exempted in acres
Unit Specific area habitat in acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... McChord Airforce Base.. 759 (307) 759 (307)
1.................................... Gray Army Airfield..... 347 (140) 347 (140)
1.................................... 91st Division Prairie.. 888 (359) 888 (359)
1.................................... 13th Division Prairie.. 819 (331) 819 (331)
-------------------------------------------------
Total............................ ....................... 2,813 (1,138) 2,813 (1,138)
----------------------------------------------------------------------------------------------------------------
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if s/he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless s/he determines,
based on the best scientific data available, that the failure to
designate such area as critical habitat will result in the extinction
of the species. In making that determination, the statute on its face,
as well as the legislative history, are clear that the Secretary has
broad discretion regarding
[[Page 61534]]
which factor(s) to use and how much weight to give to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise her discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of the Taylor's checkerspot butterfly and streaked
horned lark, the benefits of critical habitat include public awareness
of the presence of Taylor's checkerspot butterflies and streaked horned
larks and the importance of habitat protection, and, in cases where a
Federal nexus exists, increased habitat protection for these species
due to the protection from adverse modification or destruction of
critical habitat.
When we evaluate the existence of a conservation or management plan
when considering the benefits of exclusion, we consider a variety of
factors, including but not limited to, whether the plan is finalized;
how it provides for the conservation of the essential physical or
biological features; whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan will be implemented into the future; whether the
conservation strategies in the plan are likely to be effective; and
whether the plan contains a monitoring program or adaptive management
to ensure that the conservation measures are effective and can be
adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received and information in our
files, we evaluated whether certain lands in the proposed critical
habitat were appropriate for exclusion from this final designation
pursuant to section 4(b)(2) of the Act. We considered the areas
discussed below for exclusion under section 4(b)(2) of the Act, and
present our detailed analysis below. For those areas in which the
Secretary has exercised her discretion to exclude, we conclude that:
(1) Their value for conservation will be preserved in the near
future by existing protective actions; or
(2) The benefits of excluding the particular area outweigh the
benefits of their inclusion, based on the ``other relevant factor''
provisions of section 4(b)(2) of the Act.
Taylor's Checkerspot Butterfly
Table 5 shows the areas we are excluding from critical habitat for
the Taylor's checkerspot butterfly.
Table 5--Areas Excluded From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
Section 4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded in
Unit Specific area habitat in acres acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... Rocky Prairie NAP...... 38 (16) 38 (16)
1.................................... Mima Mounds NAP........ 406 (164) 406 (164)
1.................................... Scatter Creek.......... 731 (296) 731 (296)
1.................................... Rock Prairie........... 621 (251) 378 (153)
1.................................... Bald Hill.............. 422 (171) 247 (100)
1.................................... West Rocky Prairie..... 134 (54) 134 (54)
2.................................... Elwha.................. 235 (95) 143 (58)
4.................................... Fort Hoskins........... 6 (3) 6 (3)
4.................................... Beazell Memorial Forest 61 (25) 61 (25)
4.................................... Fitton Green--Cardwell 59 (24) 40 (16)
Hill.
-------------------------------------------------
Total............................ ....................... 2,713 (1,098) 2,184 (885)
----------------------------------------------------------------------------------------------------------------
Streaked Horned Lark
Table 6 shows the areas we are excluding from critical habitat for
the streaked horned lark.
[[Page 61535]]
Table 6--Areas Excluded From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of critical Areas excluded in
Unit Specific area habitat in acres acres (hectares)
(hectares)
----------------------------------------------------------------------------------------------------------------
1.................................... Sanderson Field........ 376 (152) 376 (152)
1.................................... Olympia Airport........ 575 (233) 575 (233)
3.................................... Shoalwater Spit........ 661 (267) 182 (74)
3.................................... Portland International 431 (174) 431 (174)
Airport.
4.................................... McMinnville Municipal 600 (243) 600 (243)
Airport.
4.................................... Salem Municipal Airport 534 (216) 534 (216)
4.................................... Corvallis Municipal 1,103 (446) 1,103 (446)
Airport.
4.................................... Eugene Airport......... 313 (126) 313 (126)
-------------------------------------------------
Total............................ ....................... 4,593 (1,857) 4,114 (1,664)
----------------------------------------------------------------------------------------------------------------
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared an economic analysis of the
proposed critical habitat designation and related factors (April 3,
2013; 78 FR 20074). This economic analysis addressed a total of six
prairie taxa proposed for listing under the Act. In addition to the
Taylor's checkerspot butterfly and streaked horned lark, the economic
analysis included four subspecies of the Mazama pocket gopher (Thomomys
mazama ssp.). The Mazama pocket gophers are being addressed in separate
rulemakings.
The intent of the final economic analysis (FEA) (IEc 2013) is to
quantify the economic impacts of all potential conservation efforts for
the six prairie taxa, including the Taylor's checkerspot butterfly and
streaked horned lark; some of these costs will likely be incurred
regardless of whether we designate critical habitat (we consider such
costs to be ``baseline'' costs). The economic impact of the final
critical habitat designation is analyzed by comparing scenarios both
``with critical habitat'' and ``without critical habitat.'' The
``without critical habitat'' scenario represents the baseline for the
analysis, considering protections already in place for the species
(e.g., under the Federal listing and other Federal, State, and local
regulations). The baseline, therefore, represents the costs incurred
regardless of whether critical habitat is designated. The ``with
critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. The FEA considers those costs that may occur in the
20 years following the designation of critical habitat, which was
determined to be the appropriate period for analysis because limited
planning information was available for most activities to reasonably
forecast activity levels for projects beyond a 20-year timeframe. The
FEA quantifies the economic impacts of Taylor's checkerspot butterfly,
streaked horned lark, and Mazama pocket gopher conservation efforts
associated with the following categories of activity: military
activities; recreation and habitat management; airports and
agricultural activities; transportation; electricity distribution and
forestry activities; and dredging and other activities, including
private gravel mining operations and development.
As noted above, the FEA identifies and analyzes the potential
economic impacts associated with critical habitat designations proposed
for six prairie taxa: Taylor's checkerspot butterfly and streaked
horned lark, as well as four subspecies of Mazama pocket gopher (the
Roy Prairie, Olympia, Tenino, and Yelm pocket gophers). The Mazama
pocket gopher subspecies are addressed in separate rulemakings. All
estimates in the FEA are for all six taxa; therefore, estimates for
individual taxa are less than the totals estimated in the FEA and
summarized here.
The total present value impact anticipated to result from the
designation of all areas proposed as critical habitat for the Taylor's
checkerspot butterfly, streaked horned lark, and the four subspecies of
Mazama pocket gophers is $800,000 over the next 20 years, assuming a 7
percent discount rate, or $70,000 on an annualized basis. The greatest
incremental impacts of critical habitat apply to airports and
agricultural activities at $600,000 over the next 20 years, followed by
recreation and habitat management at $100,000, military activities at
$55,000, transportation at $34,000, and electricity distribution and
forestry activities at $9,300 (present values over 20 years assuming a
7 percent discount rate). For the most part, the incremental impacts of
the critical habitat designation are limited to the additional
administrative costs of consultations within occupied areas. In
addition, some incremental project modifications may occur on
unoccupied subunits for the Taylor's checkerspot butterfly on JBLM;
these costs are expected to be relatively small. Of the total costs,
the analysis estimates that approximately 51 percent will be incurred
by the Service, 31 percent by Federal action agencies, and 18 percent
by third parties. The impacts estimated in the FEA apply to the
proposed critical habitat in its entirety, and do not reflect final
exclusions or exemptions.
[[Page 61536]]
We have not excluded any areas from the final designation of
critical habitat based on economic impacts. A copy of the FEA with
supporting documents may be obtained by contacting the Service's
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT) or by downloading from https://www.regulations.gov at docket
number FWS-R1-ES-2013-0009.
Exclusions Based on National Security Impacts
In preparing this final rule, we have exempted from the designation
of critical habitat those DOD lands with completed INRMPS that have
been determined to provide a benefit to the Taylor's checkerspot
butterfly and streaked horned lark. We have subsequently determined
that the remaining lands within the designation of critical habitat for
the Taylor's checkerspot butterfly and streaked horned lark are not
owned or managed by the Department of Defense; therefore we anticipate
no impact on national security. Consequently, the Secretary is not
exercising her discretion to exclude any areas from this final
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other species specific management
plans for the area that would benefit the Taylor's checkerspot
butterfly or streaked horned lark, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships
We consider a current land management or conservation plan (HCPs as
well as other types) to provide adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
We find that the Rocky Prairie, Mima Mounds, and Bald Hill Natural
Area Preserves (NAPs), as well as WDNR-owned parcels on Dan Kelly Ridge
and in Eden Valley (all of which are covered under the WDNR State Trust
Lands HCP); the WDFW Scatter Creek Wildlife Area Management Plan (which
also covers the adjacent private land); the WDFW West Rocky Prairie
Wildlife Area Management Plan; the Merrill and Ring Voluntary Habitat
Conservation Plan; the NRCS Colvin Ranch Grassland Reserve Program
Management Plan; and the Benton County Prairie Species HCP, all fulfill
the above criteria. We are excluding these non-Federal lands covered by
these plans because the plans adequately provide for the long-term
conservation of the Taylor's checkerspot butterfly and the Secretary
has determined that the benefits of excluding such areas outweigh the
benefits of including them in critical habitat.
As a result of considering other relevant impacts, we have
additionally excluded non-Federal airports from final critical habitat
for the streaked horned lark, based upon the Secretary's determination
that the benefit of excluding such areas outweighs the benefit of
including them in critical habitat, as described below.
Washington Department of Natural Resources State Trust Lands HCP
The WDNR State Trust Lands HCP covers approximately 1.7 million
(730,000 ha) of State lands in Washington. The permit associated with
this HCP, issued January 30, 1997, was announced in the Federal
Register on April 5, 1996 (61 FR 15297), has a term of 70 to 100 years,
and covers activities primarily associated with commercial forest
management, but also includes limited nontimber activities such as some
recreational activities. The HCP covers all species, including the
Taylor's checkerspot butterfly and other listed and unlisted species.
We are excluding Washington State lands totaling approximately 823 ac
(334 ha) that are covered and managed by the WDNR under their State
Trust Lands HCP from Units 1 and 2 of this critical habitat designation
under section 4(b)(2) of the Act.
The HCP addresses multiple species through a combination of
strategies. The HCP includes a series of NAPs and Natural Resource
Conservation Areas (NRCAs), including Rocky Prairie NAP, Mima Mounds
NAP, and Bald Hill NAP. These preserves are managed consistent with the
Natural Areas Preserve Act, forever protecting the highest quality
examples of native ecosystems and rare plant and animal species, in
addition to other natural features of State, regional or national
significance. These preserves are used for education, scientific
research, and to maintain Washington's native biological diversity.
This network of preserves includes nearly 31,000 ac (12,550 ha)
throughout the State, which range in size from 8 ac (3.2 ha) to 3,500
ac (1,416 ha). Management plans are developed for each NAP, which guide
the actions necessary to protect each area's natural features,
including research, monitoring, restoration, and other active
management. In addition, there are approximately 132 ac (23 ha) in the
Elwha drainage at Dan Kelly Ridge and Eden Valley that are also owned
by WDNR and managed for Taylor's checkerspot butterfly under a separate
plan. WDNR actively manages these three NAPs and the two additional
sites (Dan Kelly and Eden Valley) to maintain high-quality prairie and
bald habitats. All of these locations contain many of the essential
physical or biological features to support the Taylor's checkerspot
butterfly. Although these sites are not currently occupied by the
Taylor's checkerspot butterfly, they have the potential to serve as the
site of future translocations to re-establish the subspecies.
The NAP properties at Rocky Prairie, Mima Mounds, and Bald Hill,
and the sites at Dan Kelly Ridge and Eden Valley (these last two are
managed under a single plan), each have species-specific management
plans that provide for the conservation of the Taylor's checkerspot
butterfly, and these sites have been managed for the conservation of
prairie species, including Taylor's checkerspot butterfly specifically.
This ongoing practice of habitat management and conservation has
fostered a diverse variety of larval and adult nectar resources for
Taylor's checkerspot butterfly that complement the wide range of
topographic variation within and between sites. The management planning
for each of these areas has established a decades-long track record of
activity focused on enhancing prairie composition and structure at each
location: Rocky Prairie NAP Management Plan (WDNR 1989b), Mima Mounds
NAP Management Plan (WDNR
[[Page 61537]]
1989a), Bald Hill NAP Management Plan (WDNR 1988), and WDNR Olympic
Taylor's Checkerspot Butterfly Management Plan (Horton, 2010). The
conservation measures applied at the three NAPs have more recently been
refocused through the development of site-specific restoration plans
for each location to benefit the Taylor's checkerspot butterfly and
other rare prairie butterflies. These restoration plans (Wilderman and
Davenport 2011a, 2011b, 2011c) provide for the needs of Taylor's
checkerspot butterfly by protecting and managing all the WDNR NAPs in
Thurston County, and implementing species-specific conservation
measures designed to avoid and minimize impacts to the Taylor's
checkerspot butterfly. The management guidelines were developed for
areas that are currently occupied as well as areas that have suitable
habitat but that are not known to be currently occupied by the Taylor's
checkerspot butterfly. Because of the high success rate of recent
Taylor's checkerspot butterfly translocations, the planning group that
oversees the schedule for translocation would give weighted
consideration to each of these high-quality prairie locations for
future introductions of the Taylor's checkerspot butterfly.
Although both Dan Kelly Ridge and Eden Valley lack established,
long-term, site-specific restoration plans, they are subject to an
adaptive management restoration strategy implemented by WDFW rare
species experts who are focused on the maintenance and expansion of
appropriate habitat at and around the occupied areas. These restoration
efforts at Dan Kelly Ridge and Eden Valley have been supported through
a number of funding streams, including monies from the Service and DOD.
Additionally, WDNR provides work crews to conduct tree and shrub
removal which reflects an ongoing and increasing investment on the part
of the land owner. Support provided in crew hours totaled $5,000 in
years past and has more than doubled that amount in 2013, indicating a
significant investment in and commitment to the ongoing stewardship of
these occupied properties.
Benefits of Inclusion--Rocky Prairie, Mima Mounds, and Bald Hill
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites
under the WDNR State Trust Lands HCP--The primary effect of designating
any particular area as critical habitat is the requirement for Federal
agencies to consult with us under section 7 of the Act to ensure
actions they carry out, authorize, or fund do not adversely modify
designated critical habitat. Absent critical habitat designation in
occupied areas, Federal agencies remain obligated under section 7 of
the Act to consult with us on actions that may affect a federally
listed species to ensure such actions do not jeopardize the species'
continued existence. All three of the NAPs are currently unoccupied by
the Taylor's checkerspot butterfly; therefore, a jeopardy analysis
would not be triggered by a Federal agency action for Rocky Prairie,
Mima Mounds, or Bald Hill NAPs. If the NAPs were designated as critical
habitat, such an action would trigger consultation solely under the
adverse modification standard of section 7. The WDNR-owned Dan Kelly
Ridge and Eden Valley sites are both occupied and have been undergoing
restoration through a federally-funded program (Wildlife and Sport Fish
Restoration Program), thus any proposed actions for habitat restoration
would trigger section 7 consultation for both the subspecies and the
designated critical habitat. The benefits of inclusion in critical
habitat at these sites would be minimized since they are occupied by
Taylor's checkerspot butterfly, as any potential consultation under
section 7 of the Act will evaluate the effects of the action on the
conservation or functionality of the habitat for the subspecies
regardless of whether critical habitat is designated for these lands.
The analytical requirements to support a jeopardy determination on
excluded land are similar, but not identical, to the requirements in an
analysis for an adverse modification determination on included land.
The additional benefit of consultation under the adverse modification
standard at these occupied sites would therefore be reduced.
The inclusion of these areas as critical habitat could therefore
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a
potential benefit of inclusion would be the requirement of a Federal
agency to ensure that their actions on these non-Federal lands would
not likely result in the destruction or adverse modification of
critical habitat. Any Federal nexus on these lands would likely result
from actions to restore or maintain favorable habitat conditions,
carried out under the HCP or granting of Federal funds for beneficial
management of prairie-associated species, such as Taylor's checkerspot
butterfly. The incremental benefit to the Taylor's checkerspot
butterfly from the small amount of resultant section 7 consultation
required by this habitat management funding is likely minimal,
especially considering that the action being consulted on is itself
intended to benefit prairie-associated species.
The Service has coordinated with WDNR on conservation actions to be
implemented for the Taylor's checkerspot butterfly at the three NAPs
located in Thurston County, Washington, as well as the two sites at Dan
Kelly Ridge and Eden Valley in Clallam County, Washington. An NAP is a
land designation used by the State of Washington to protect the best
examples of rare and vanishing flora, fauna, plant and animal
communities, geological, and natural historical value, consistent with
the Washington Natural Areas Preserves Act of 1972 (RCW 79.70). The two
other sites (Dan Kelly Ridge and Eden Valley) are managed separately
under their own plan, but are not designated as NAPs. Management of the
NAPs in Thurston County is guided in large part by the South Puget
Sound Prairie Landscape Working Group. The Service is a charter member
of this partnership group, which was established in 1994, to promote
and improve the management and planning of conservation actions on
south Puget Sound prairies and associated habitats. The Working Group
includes WDNR, JBLM, NRCS, WDFW, CNLM, the Washington Department of
Transportation (WSDOT), as well as other Federal, State, county, city,
nongovernmental, and private group entities, each with knowledge and
expertise in prairie ecosystem management. The Working Group
coordinates regularly, meeting twice-yearly to share information and
discuss priorities, and making significant improvements on the ground
in prairies and oak woodlands. At one of our south Puget Sound
locations, volunteers implement restoration and recovery actions for
prairie species every Tuesday throughout the year. This is a well-
established group that is expected to continue its coordination efforts
into the foreseeable future, regardless of the designation of critical
habitat. Management of the Dan Kelly Ridge and Eden Valley sites
receive oversight from the Taylor's Checkerspot Butterfly Working
Group, a multi-agency working group that has been in existence since
2004. Participants in the working group include JBLM, NRCS, USFS, WDNR,
WDFW, WSDOT, University of Washington researchers, CNLM, and other
Federal, State, county, city, nongovernmental, private entities and
[[Page 61538]]
individuals, each with knowledge and expertise on the Taylor's
checkerspot butterfly, its conservation, habitat, and restoration
needs. Designation of these areas as critical habitat would therefore
likely yield no additional benefit to the outputs of the working
groups, their members, or their ease of coordination. The active, long-
term restoration efforts already in place at these sites thus reduce
the potential benefit of critical habitat.
Another potential benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by
identifying areas of high conservation value for the Taylor's
checkerspot butterfly. The designation of critical habitat informs
State agencies and local governments about areas that could be
conserved under State laws or local ordinances. Any additional
information about the needs of the Taylor's checkerspot butterfly or
its habitat that reaches a wider audience can be of benefit to future
conservation efforts. During the spring of 2013 alone, the Service
hosted two prairie workshops, one public hearing, and two local
Thurston County events attended by nearly 1,000 people to publicize and
educate local community members of the subspecies' declining
distribution, and the threat to the native flora and fauna found on
western Washington prairies. An important conservation measure that is
gained through these outreach networks is the ability to educate the
public about the historical role and current importance of prairies to
our local community and economy. Included among the outreach measures
is the distribution of educational material, and encouraging landowners
to conduct prairie restoration activities on their properties. At least
two presentations resulting from research conducted at the Dan Kelly
Ridge and Eden Valley sites have been given and additional work for
these two sites is expected to be concluded in the near future that may
further elevate public awareness in Clallam County about the
conservation needs of the Taylor's checkerspot butterfly on the north
Olympic Peninsula. Additional events are expected to occur in the
future, and designation of the NAPs or the WDNR-owned Dan Kelly Ridge
and Eden Valley sites as critical habitat is not expected to increase
the number of such meetings or improve their outcomes; the additional
educational value of critical habitat is therefore minimized.
The incremental benefit of inclusion is reduced because of the
long-standing management planning and implementation efforts for each
site, as discussed above. In addition, the NAP restoration plans
provide greater protection to Taylor's checkerspot butterfly habitat
than would the designation of critical habitat, since the planning
effort is intended to actively improve the structure and composition of
the habitat (critical habitat does not carry any requirement for
habitat restoration or improvement). Although both Dan Kelly Ridge and
Eden Valley lack established, long-term, site-specific restoration
plans, they are subject to an adaptive management restoration strategy
implemented by WDFW rare species experts focused on the maintenance and
expansion of appropriate habitat at and around the occupied areas.
These restoration efforts at Dan Kelly Ridge and Eden Valley have been
supported through a number of funding streams, including monies from
the Service. Therefore, designation of critical habitat on these areas
would not provide any additional management focus that is not already
occurring at these locations under Washington State management
authority, through plans developed through our recovery program, or
through the DOD ACUB funding authority, which has provided funding
support for many of our local protected prairies, including the NAPs,
Dan Kelly Ridge, and Eden Valley sites.
Benefits of Exclusion--Rocky Prairie, Mima Mounds, Bald Hill
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites
under the WDNR State Trust Lands HCP--The benefits of excluding these
areas from critical habitat are relatively greater. A benefit of
excluding lands within this HCP from critical habitat designation is
that it would encourage the State and other parties to continue to work
toward Taylor's checkerspot butterfly conservation. Since issuance of
this HCP, a number of land transactions and land exchanges within the
HCP area have occurred. These transactions have included creation of
additional NRCAs and NAPs (land designations with high degree of
protection), and have also included large land exchanges and purchases
that have changed the footprint of the HCP. These land-based
adjustments have facilitated better management on many important
parcels and across larger landscapes than would otherwise have been
possible. If lands within HCP plan areas are designated as critical
habitat, it would likely have a negative effect on the willingness of
various groups and funding sources to accomplish these land-ownership
adjustments because of a reluctance to acquire lands designated as
critical habitat as well as a reduced willingness on the part of WDNR
to accommodate the Service's goals. This HCP is located in key
landscapes across the State, and the NAPs at Rocky Prairie, Mima
Mounds, and Bald Hill, as well as the two sites at Dan Kelly Ridge and
Eden Valley--which are covered by the HCP--contribute meaningfully to
the recovery of the Taylor's checkerspot butterfly.
If lands within the WDNR HCP plan area are designated as critical
habitat, it would also likely have a negative effect on our ability to
establish new partnerships to develop HCPs, particularly large,
regional HCPs that involve numerous participants or address landscape-
level conservation of species and habitats. This HCP has served as a
model for several completed and ongoing HCP efforts, including the
Washington State Forest Practices HCP. By excluding these lands, we
preserve our current private and local conservation partnerships and
encourage additional conservation actions in the future because other
parties see our exclusion as a sign that the Service will not impose
duplicative regulatory burdens on landowners who have developed an HCP.
HCPs typically provide for greater conservation benefits to a
covered species than section 7 consultations because HCPs ensure the
long-term protection and management of a covered species and its
habitat. In addition, funding for such management is ensured through
the Implementation Agreement. Such assurances are typically not
provided by section 7 consultations, which, in contrast to HCPs, often
do not commit the project proponent to long-term, special management
practices or protections. Thus, a section 7 consultation typically does
not afford the lands it covers similar extensive benefits as an HCP.
The development and implementation of HCPs provide other important
conservation benefits, including the development of biological
information to guide the conservation efforts and assist in species
conservation, and the creation of innovative solutions to conserve
species while meeting the needs of the applicant. In this case,
substantial information has been developed from the research,
monitoring, and surveys conducted by WDNR. Therefore, exclusion is a
benefit because it maintains and fosters the development of biological
information and innovative solutions.
[[Page 61539]]
Exclusion of these areas will additionally help us maintain an
important and successful partnership with other Washington State
conservation partners (via the South Puget Sound Prairie Landscape
Working Group and the Taylor's Checkerspot Butterfly Working Group) who
made a commitment more than a decade ago to include the Taylor's
checkerspot butterfly in their management and restoration plans, as
well as encouraging others to join in this and other conservation
partnerships.
Benefits of Exclusion Outweigh Benefits of Inclusion--Rocky
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands
HCP--The Secretary has determined that the benefits of excluding the
WDNR-managed Rocky Prairie, Mima Mounds, and Bald Hill NAPs found in
Thurston County, and the Dan Kelly Ridge and Eden Valley sites in
Clallam County, from the designation of critical habitat for Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. Any Federal nexus on these lands would likely result
from actions to restore or maintain favorable habitat conditions,
undertaken under the HCP or granting of Federal funds for beneficial
management of prairie-associated species, such as Taylor's checkerspot
butterfly. If one were to occur, it would most likely be with the
Service or DOD, and their actions will be geared toward the
conservation benefits of restoring and enhancing habitat specifically
for the Taylor's checkerspot butterfly, or other rare butterflies. This
type of management would benefit Taylor's checkerspot butterfly if
focused on the maintenance of open, short-statured vegetative
conditions that Taylor's checkerspot butterfly typically occupies. The
incremental benefit to the Taylor's checkerspot butterfly from the
small amount of resultant section 7 consultation required by this
habitat management funding is likely minimal, especially considering
that the action being consulted on is itself intended to benefit
prairie-associated species.
The South Puget Sound Prairie Landscape Working Group partnership,
which contributes to management planning on the NAPs, and the Taylor's
Checkerspot Butterfly Working Group, which provides guidance for the
sites at Dan Kelly Ridge and Eden Valley, would not be additionally
benefitted due to inclusion of these areas in critical habitat, as
these working groups are well-established, cohesive, and productive
groups that have yielded and will continue to yield positive
conservation outcomes for the Taylor's checkerspot butterfly on south
Puget Sound prairies and the north Olympic Peninsula, including these
sites, regardless of the designation of critical habitat. The
conservation strategies of each NAP restoration plan and the ongoing
adaptive habitat restoration strategies for are designed to protect and
enhance habitat for the Taylor's checkerspot butterfly. These
strategies include species-specific management actions to support
Taylor's checkerspot butterflies, avoidance and minimization measures,
and monitoring requirements to ensure proper implementation, which
further minimizes the benefits of including these areas in a
designation of critical habitat.
The WDNR State Trust Lands HCP provides for significant
conservation and management within geographical areas that contain the
physical or biological features essential to the conservation of
Taylor's checkerspot butterfly, and helps achieve recovery of this
subspecies through the conservation measures of the HCP. Exclusion of
these lands from critical habitat will help foster the partnership we
have developed with WDNR, through the development and continuing
implementation of the HCP and the area management plans. It will also
help us maintain and foster an important and successful partnership
with our Washington State conservation partners in the South Puget
Sound Prairie Landscape Working Group as well as with the species-
specific Taylor's Checkerspot Butterfly Working Group, which shares
significant overlap with the South Puget Sound Prairie Landscape
Working Group and, by doing so, bridges between ecosystem management
strategies and species-specific conservation actions. Both WDNR and the
working groups have encouraged others to join in conservation
partnerships as well, and exclusion of these lands will encourage the
future development of such beneficial conservation partnerships. For
these reasons, we have determined that the benefits of exclusion
outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Rocky
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands
HCP--We have determined that exclusion of approximately 38 ac (16 ha)
for the Rocky Prairie NAP (Unit 1-Rocky Prairie), 406 ac (164 ha) for
the Mima Mounds NAP (Unit 1-Mima Mounds/Glacial Heritage), 247 ac (100
ha) for the Bald Hill NAP (Unit 1-Bald Hills), 109 ac (44 ha) for the
Dan Kelly Ridge site (Unit 2-Elwha), and 23 ac (9 ha) for the Eden
Valley site (Unit 2-Elwha), all of which are covered under the WDNR
State Trust Lands HCP, will not result in the extinction of Taylor's
checkerspot butterfly. Actions covered by the HCP will not result in
extinction of Taylor's checkerspot butterfly because: (1) the NAPs are
not currently occupied by the subspecies, and; (2) and the occupied
sites (Dan Kelly Ridge and Eden Valley) both have special dispensation
from site designation as a source of merchantable timber, which allows
for the removal of otherwise merchantable trees in favor of enhancing
Taylor's checkerspot butterfly habitat. In all of these areas the State
Trust Lands HCP provides for the future needs of the Taylor's
checkerspot butterfly by restoring, maintaining, and creating habitat
within these areas, and supporting management of Taylor's checkerspot
butterfly habitat and that of other rare species through HCP
compliance. Additionally, each of the areas operates under a specific
management plan to guide long-term site management, and more recently
developed restoration plans to direct the habitat enhancement
activities at each location. For these reasons, we find that exclusion
of these lands covered by the WNDR State Trust Lands HCP will not
result in extinction of the Taylor's checkerspot butterfly. Based on
the above discussion, the Secretary is exercising her discretion under
section 4(b)(2) of the Act to exclude from this final critical habitat
designation portions of the proposed critical habitat units or subunits
that are within the WDNR State Trust Lands HCP-covered lands as
identified above, totaling about 823 ac (334 ha).
Scatter Creek Wildlife Area and Adjacent Private Land, and the West
Rocky Prairie Wildlife Area
We are excluding 767 ac (310 ha) of Washington State lands
designated as Wildlife Areas, and 98 ac (40 ha) of private land
inholding from this critical habitat designation under section 4(b)(2)
of the Act. These Wildlife Areas are known as the Scatter Creek
Wildlife Area (633 ac (256 ha)) (Unit 1-Scatter Creek) and West Rocky
Prairie Wildlife Area (134 ac (54 ha)) (Unit 1-West Rocky Prairie),
both owned and managed by WDFW. The private inholding is associated
with the Scatter Creek Wildlife Area (Unit 1-Scatter Creek) and is
managed by WDFW identically to the Wildlife Area itself. Wildlife Areas
provide a variety of habitat for endangered and threatened species,
including the Taylor's
[[Page 61540]]
checkerspot butterfly, and are managed for that purpose, among others.
Each Wildlife Area operates under a Wildlife Area Management Plan
specific to the unique management needs of that area. Species-specific
management plans have been written for a subset of the Wildlife Areas,
including Scatter Creek and West Rocky Prairie. WDFW's land acquisition
strategy for Wildlife Areas requires their purchases provide the
highest benefit to fish, wildlife, and the public. In addition, WDFW is
currently developing an HCP for lands in Wildlife Areas with the help
of the Service, which will incorporate a landscape-level approach to
managing at-risk species, including Taylor's checkerspot butterfly.
WDFW developed a management plan for the Scatter Creek Wildlife
Area and adjacent private land in 2010 that specifically details the
habitat needs of Taylor's checkerspot butterfly and continues to refine
habitat conservation measures through collaboration with local
conservation partners from the Service, WDNR, the University of
Washington, and CNLM (Hays 2010). WDFW also has a draft management plan
to guide prairie management at the West Rocky Prairie Wildlife Area
(WDFW 2011), which will be this area's guiding document until
finalized. Prior to the management plan being developed, the site was
managed for an array of species and recreational activities, including
restoration actions designed to improve the prairie conditions for the
Taylor's checkerspot butterfly, mardon skipper butterfly (Polites
mardon), and Mazama pocket gopher. The Scatter Creek Wildlife Area and
adjacent private lands are currently occupied by the Taylor's
checkerspot butterfly; the West Rocky Prairie Wildlife Area is not
known to be occupied by the subspecies.
Benefits of Inclusion--Scatter Creek Wildlife Area and Adjacent
Private Land; West Rocky Prairie Wildlife Area--The primary effect of
designating any particular area as critical habitat is the requirement
for Federal agencies to consult with us under section 7 of the Act to
ensure actions they carry out, authorize, or fund do not adversely
modify designated critical habitat. Absent critical habitat designation
in occupied areas, Federal agencies remain obligated under section 7 of
the Act to consult with us on actions that may affect a federally
listed species to ensure such actions do not jeopardize the species'
continued existence.
The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. The regulatory standard is
different, as the jeopardy analysis investigates the action's impact on
the survival and recovery of the species, while the adverse
modification analysis focuses on the action's effects on the designated
habitat's contribution to conservation. This will, in many instances,
lead to different results and different regulatory requirements. Thus,
critical habitat designations have the potential to provide greater
benefit to the recovery of a species than would listing alone.
The inclusion of these covered lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a
potential benefit of inclusion would be the requirement of a Federal
agency to ensure that their actions on these non-Federal lands would
not likely result in the destruction or adverse modification of
critical habitat. However, this additional analysis to determine
whether a Federal action is likely to result in destruction or adverse
modification of critical habitat is not likely to be significant
because these covered lands are not under Federal ownership, making the
application of section 7 less likely. As often as not, any actions
required to restore or maintain favorable habitat conditions are not
associated with a Federal action, and thus would not trigger any
protections afforded by the designation of critical habitat. The
granting of Federal funds for beneficial management of prairie-
associated species such as Taylor's checkerspot butterfly would provide
the only foreseeable Federal nexus for these non-Federal lands. WDFW
has received funding specifically to improve habitat features such as
vegetation composition, and structure to support rare and threatened
butterflies, including the Taylor's checkerspot butterfly, mardon
skipper butterfly, and valley silverspot butterfly (Speyeria zerene
bremnerii). This funding will support activities through 2017. Funding
is also provided to WDFW from the DOD ACUB program, which is a high
priority program for DOD. Leadership at DOD has confirmed that the
program will continue into the future (Jeff Foster, pers. comm. 2013).
The small amount of resultant section 7 consultation required by this
habitat management funding is not likely to provide much added benefit
to the species, as one of the primary threats to the Taylor's
checkerspot butterfly is the loss and degradation of its habitat,
therefore habitat considerations will already play into the jeopardy
determination for the subspecies in the currently occupied area at
Scatter Creek, and the additional consideration of adverse modification
of critical habitat is unlikely to result in a different outcome. In
addition, for both Scatter Creek and West Rocky Prairie, the action
most likely to be consulted on is itself intended to benefit prairie-
associated species, therefore the outcome of consultation is unlikely
to provide a significant additional benefit to the species as a result
of critical habitat designation.
The Service has coordinated with WDFW on conservation actions to be
implemented for the Taylor's checkerspot butterfly at the Scatter Creek
Wildlife Area and West Rocky Prairie Wildlife Area in south Thurston
County, Washington. As with the NAPs in Thurston County, management of
the prairie Wildlife Areas in Thurston County is guided in large part
by the South Puget Sound Prairie Landscape Working Group, which was
established in 1994, to promote and improve the management and planning
of conservation actions on south Puget Sound prairies and associated
habitats. This is a well-established group that is expected to continue
its coordination efforts into the foreseeable future. Designation of
these Wildlife Areas as critical habitat would yield no additional
benefit to the outputs of the Working Group, its members, or their ease
of coordination, as the active, long-term efforts of this group are
expected to continue regardless of the designation of critical habitat.
The incremental benefit from designating critical habitat for Taylor's
checkerspot butterfly in these areas is further minimized because of
the long-standing management planning efforts that have been
implemented and planned for the two Wildlife Areas and the associated
private land inholding, which is managed using the same management
methods as the Wildlife Areas. These properties have implemented
management for the conservation of prairie habitat and prairie
associated species. Each Wildlife Area focuses their management to
promote the production of larval host and adult nectar food resources
for the Taylor's checkerspot butterfly, and these areas contain several
of the essential physical or biological features to support the
subspecies. Management planning for each of the Wildlife Areas has
[[Page 61541]]
established a track record of activity focused on enhancing prairie
composition and structure. The conservation measures regularly
implemented at the Wildlife Areas have recently been refocused through
the development of site specific restoration plans for each location to
benefit the Taylor's checkerspot butterfly and other rare prairie
butterflies (Hays 2013). The restoration being implemented and the
guidance from the management plan provides greater protection to
Taylor's checkerspot butterfly habitat than the designation of critical
habitat, since the planning effort is intended to actively improve the
structure and composition of the habitat (the designation of critical
habitat does not require any active management). Therefore, the
existing management at this site will provide greater benefit than the
regulatory designation of critical habitat, which only requires the
avoidance of adverse modification and does not require the creation,
improvement, or restoration of habitat.
Another potential benefit of including Wildlife Area lands in a
critical habitat designation is that it serves to educate landowners,
State and local governments, and the public regarding the potential
conservation value of an area. This helps focus and promote
conservation efforts by other parties by identifying areas of high
conservation value for the Taylor's checkerspot butterfly. The
designation of critical habitat informs State agencies and local
governments about areas that could be conserved under State laws or
local ordinances. Any additional information about the needs of the
Taylor's checkerspot butterfly or its habitat that reaches a wider
audience can be of benefit to future conservation efforts. During the
spring of 2013 alone, the Service hosted two prairie workshops, one
public hearing, and two local Thurston County events attended by nearly
1,000 people to publicize and educate local community members of the
species' declining distribution, and the threat to the native flora and
fauna found on western Washington prairies. An important conservation
measure that is gained through these outreach networks is the ability
to educate the public about the historical role and current importance
of prairies to our local community and economy. Included among the
outreach measures is the distribution of educational material, and
encouraging landowners to conduct prairie restoration activities on
their properties. Additional events are expected to occur in the
future, and designation of the Wildlife Areas as critical habitat is
not expected to increase the number of such meetings or improve their
outcomes. Therefore, the incremental benefit of critical habitat in
terms of education value is negligible.
The incremental benefit of inclusion is minimized because of the
long-standing management planning efforts for each Wildlife Area, and
the associated private inholding, as discussed above. In addition, the
restoration plans provide greater protection to Taylor's checkerspot
butterfly habitat than the designation of critical habitat, since the
planning effort is intended to actively improve the structure and
composition of the habitat. Therefore, designation of critical habitat
on these areas would not provide any additional management focus that
is not already occurring at these locations under Washington State
management authority, through plans developed through the Service's
recovery program, or through the DOD ACUB funding authority which has
provided funding support for many of our local protected prairies,
including these Wildlife Areas.
Benefits of Exclusion--Scatter Creek Wildlife Area and Adjacent
Private Land; West Rocky Prairie Wildlife Area--The benefits of
excluding these two Wildlife Areas and the associated private inholding
from designated critical habitat are substantial. We have worked to
sustain a close partnership with WDFW through regular coordination and
the development of the Wildlife Area management plans. The management
plans contain provisions that will improve the conservation status of
the Taylor's checkerspot butterfly. Measures contained in the
management plans are consistent with recommendations from the Service
for the conservation of the Taylor's checkerspot butterfly, and will
afford benefits to the subspecies and its habitat.
Excluding these Wildlife Areas and associated private inholding
from critical habitat designation will provide significant benefits in
terms of sustaining and enhancing the excellent partnership between the
Service, WDFW, and the private landowner, as well as other partners who
participate in prairie management decision-making, with positive
consequences for conservation. The willingness of WDFW and the private
landowner to undertake conservation efforts for the benefit of the
Taylor's checkerspot butterfly and to work with the Service to develop
new management plans for the species will continue to reinforce those
conservation efforts and our partnership, which will support the
recovery process for Taylor's checkerspot butterfly. We consider this
voluntary partnership in conservation vital to our understanding of the
status of Taylor's checkerspot butterfly on WDFW lands and throughout
western Washington, and necessary for us to implement recovery actions
such as habitat protection, restoration, and beneficial management
actions for the subspecies. Furthermore, exclusion from critical
habitat could have the benefit of encouraging other landowners to
engage in similar conservation partnerships and efforts, with positive
outcomes for the conservation of listed species.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of redundant government regulation. If lands
within the area managed by WDFW for the benefit of the Taylor's
checkerspot butterfly are designated as critical habitat, it could have
a dampening effect on our continued ability to seek new partnerships
with future participants including States, counties, local
jurisdictions, conservation organizations, and private landowners,
which together can implement various conservation actions (such as safe
harbor agreements (SHAs), HCPs, and other conservation plans,
particularly large, regional conservation plans that involve numerous
participants or address landscape-level conservation of species and
habitats) that we would be unable to accomplish otherwise. Our WDFW
conservation partners made a commitment more than a decade ago to
include the Taylor's checkerspot butterfly in their Wildlife Area
implementation plan, and they have engaged with and encouraged others
to join in conservation partnerships, such as the South Puget Sound
Prairie Landscape Working Group. In addition, the private landowner
serves as a model of voluntary conservation and may aid in fostering
future voluntary conservation efforts by other private parties in other
locations for the benefit of listed species; this is a significant
benefit, since the majority of listed species occur on private lands.
We consider the positive effect of excluding proven conservation
partners from critical habitat to be a significant benefit of
exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Scatter Creek
Wildlife Area and Adjacent Private Land; West Rocky Prairie Wildlife
Area--We have determined that the benefits of excluding these prairie
Wildlife Areas (Scatter Creek and adjacent private land, and West Rocky
[[Page 61542]]
Prairie) from the designation of critical habitat for the Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. The regulatory and informational benefits of
inclusion will be minimal. As noted above, a potential benefit of
inclusion would be the requirement of a Federal agency to ensure that
their actions on these non-Federal lands would not likely result in the
destruction or adverse modification of critical habitat. However, this
additional analysis to determine whether a Federal action is likely to
result in destruction or adverse modification of critical habitat is
not likely to be significant because these covered lands are not under
Federal ownership, making the application of section 7 less likely. Any
additional benefits of inclusion on the section 7 process are therefore
relatively unlikely because a Federal nexus on these lands would rarely
occur. If a Federal nexus were to occur, it would most likely be with
the Service or DOD, and the proposed actions would be geared toward the
conservation benefits of restoring and enhancing habitat specifically
for the Taylor's checkerspot butterfly, or other rare butterflies. This
type of proactive management, if focused on the maintenance of open,
short-statured vegetative conditions that the Taylor's checkerspot
butterfly typically occupies, will outweigh any benefit from the
regulatory designation of critical habitat, which only requires the
avoidance of adverse modification and does not require the creation,
improvement, or restoration of habitat.
The South Puget Sound Prairie Landscape Working Group partnership,
which assists with guiding management on the Wildlife Areas, would not
be additionally benefitted due to inclusion of the Wildlife Areas in
critical habitat, as this is a well-established, cohesive, and
productive group that has and will continue to yield positive
conservation outcomes for Taylor's checkerspot butterfly on south Sound
prairies, including these Wildlife Areas, regardless of critical
habitat. The conservation strategies of each Wildlife Area management
plan are crafted to protect and enhance habitat for the Taylor's
checkerspot butterfly. These plans includes species-specific management
actions to support Taylor's checkerspot butterfly, avoidance and
minimization measures, and monitoring requirements to ensure proper
implementation, which further minimizes the benefits of including these
areas in a designation of critical habitat.
A significant benefit of excluding these lands is that it will help
us maintain and foster an important and successful partnership with our
Washington State conservation partners who made a decision to include
the Taylor's checkerspot butterfly in their Wildlife Area
implementation plan in 2007, when it was a State endangered species
(and a Federal candidate species). They have encouraged others to join
in conservation partnerships as well. Recognizing the important
contributions of our conservation partners through exclusion from
critical habitat helps to preserve these partnerships, and helps foster
future partnerships for the benefit of listed species, the majority of
which do not occur on Federal lands; we consider this to be a
substantial benefit of exclusion. For these reasons, we have determined
that the benefits of exclusion outweigh the benefits of inclusion in
this case.
Exclusion Will Not Result in the Extinction of the Species--Scatter
Creek Wildlife Area and Adjacent Private Land; West Rocky Prairie
Wildlife Area--We have determined that exclusion of approximately 633
ac (256 ha) in the Scatter Creek Wildlife Area owned by WDFW, 98 ac (40
ha) of private land that is managed by WDFW in the same way as Scatter
Creek Wildlife Area, and 134 ac (54 ha) of the West Rocky Prairie
Wildlife Area, lands covered by management plans vetted by several
conservation partners working in south Puget Sound, will not result in
the extinction of Taylor's checkerspot butterfly. Actions covered by
the Wildlife Area management plans will not result in extinction of
Taylor's checkerspot butterfly because the plans provide for the needs
of the species by protecting, restoring, and enhancing all the known
occupied and potentially suitable Taylor's checkerspot butterfly
habitat under the jurisdiction of the State; committing to the
enhancement and recruitment of additional habitat through management on
each Wildlife Area to support meta-population structure within the
Wildlife Areas; and implementing species-specific conservation measures
designed to avoid and minimize impacts to the Taylor's checkerspot
butterfly. Further, for projects having a Federal nexus and potentially
affecting the Taylor's checkerspot butterfly in occupied areas, the
jeopardy standard of section 7 of the Act, coupled with protection
provided by the voluntary Taylor's checkerspot butterfly conservation
plans that are available to landowners if they so choose, would provide
a level of assurance that this subspecies will not go extinct as a
result of excluding these lands from the critical habitat designation.
Additionally, each of the Wildlife Areas has a specific management plan
to guide long-term management to direct the habitat enhancement
activities at each location. The subspecies is also protected from take
under section 9 of the Act on all properties where the subspecies is
found. Federal agencies would be required to minimize the effects of
incidental take, and would be encouraged to avoid incidental take
through the section 7 consultation process. For these reasons, we find
that exclusion of these lands covered by these specific Wildlife Area
management plans will not result in extinction of the Taylor's
checkerspot butterfly. Based on the above discussion, the Secretary is
exercising her discretion under section 4(b)(2) of the Act to exclude
from this final critical habitat designation portions of the proposed
critical habitat units or subunits that are owned or managed by WDFW,
totaling about 865 ac (350 ha).
Merrill and Ring Company Voluntary Habitat Conservation Plan
Private lands totaling 10 ac (4 ha) in Unit 2 (Elwha) and covered
under the Merrill and Ring Company voluntary habitat conservation plan
are excluded from this critical habitat designation under section
4(b)(2) of the Act. Merrill and Ring Company is a private forest
landowner whose property abuts occupied Taylor's checkerspot butterfly
habitat. Merrill and Ring Company has collaboratively developed a
voluntary habitat conservation plan for the Taylor's checkerspot
butterfly (Schaaf and Davis 2010) in partnership with WDFW, which was
approved and signed by WDFW and Merrill and Ring Company on February
10, 2010, and was recently extended from an expiration date of December
31, 2014, to December 31, 2020 (Schaff and Carlson 2013). The portion
of WDFW's Taylor's checkerspot butterfly management site on Merrill and
Ring Company property is approximately 7 ac (3 ha) in size and is
situated on the south side of the ridge which separates Eden Valley
from Indian Creek Valley. Despite the small actual acreage of the
management area for Taylor's checkerspot owned by Merrill and Ring, the
voluntary habitat conservation plan covers 100 ac (40 ha) of their
property and acknowledges the potential for Taylor's checkerspot
butterfly habitat to change in extent and quality over time. The
management plan commits to actions focused on protecting available
habitat from various types of traffic and ground disturbance, and the
corporation has no plan to implement any logging within the
[[Page 61543]]
occupied Taylor's checkerspot butterfly management area at any time.
Merrill and Ring's voluntary habitat conservation plan defers all
logging actions through 2020, and at that time, tree harvesting will
only be implemented in the adjacent commercial forests, where a
thinning operation may be considered. The voluntary habitat
conservation plan provides assurances for the restriction of pesticides
(which will not be applied aerially within 1 mile (1.6 kilometers) of
the site) and herbicides (which will be applied through ground-based
methods only and provides greater selectivity in the application
process). Merrill and Ring Company has cooperated with WDFW to allow
ongoing surveys of Taylor's checkerspot butterflies, which will serve
as the foundation for the monitoring of populations and habitat
conditions.
Benefits of Inclusion--Merrill and Ring Company Voluntary Habitat
Conservation Plan--The primary effect of designating any particular
area as critical habitat is the requirement for Federal agencies to
consult with us under section 7 of the Act to ensure actions they carry
out, authorize, or fund do not adversely modify designated critical
habitat. Absent critical habitat designation in occupied areas, Federal
agencies remain obligated under section 7 of the Act to consult with us
on actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence.
The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. The regulatory standard is
different, as the jeopardy analysis investigates the action's impact on
the survival and recovery of the species, while the adverse
modification analysis focuses on the action's effects on the designated
habitat's contribution to conservation. This will, in many instances,
lead to different results and different regulatory requirements. Thus,
critical habitat designations have the potential to provide greater
benefit to the recovery of a species than would listing alone.
The inclusion of these private lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard addressed in the Ninth
Circuit Court's decision in Gifford Pinchot Task Force v. United States
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted
above, a potential benefit of inclusion would be the requirement of a
Federal agency to ensure that their actions on these non-Federal lands
would not likely result in the destruction or adverse modification of
critical habitat. However, this additional analysis to determine
whether a Federal action is likely to result in destruction or adverse
modification of critical habitat is not likely to be significant
because these covered lands are not under Federal ownership, making the
application of section 7 less likely. The granting of Federal funds for
beneficial management of Taylor's checkerspot butterfly habitat would
provide the only possibility for a Federal nexus covering these lands.
Although this forest landowner may apply for a Forest Practices permit
from the State of Washington to harvest timber, it is unlikely to
trigger a section 7 consultation, as they would not require Federal
funding or authorization for this operation. Merrill and Ring's
proposed management actions that may be slated for this location are
expected to involve tree removal, which would not likely expose
Taylor's checkerspot butterfly to actions that would cause harm or take
of the species. The action of removing trees has the potential to
improve conditions that would be favorable to Taylor's checkerspot
butterflies by reducing shade, increasing open areas, and stimulating
the establishment and growth of host plant seeds stored in the soil
(e.g., Castilleja hispida, Plantago lanceolata), thereby providing a
benefit to the Taylor's checkerspot butterfly.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, private landowners, and the public regarding the potential
conservation value of an area. This helps focus and promote
conservation efforts by all parties by identifying areas of high
conservation value for the Taylor's checkerspot butterfly. The
designation of critical habitat informs State agencies and local
governments about areas that could be conserved under State laws or
local ordinances. Any additional information about the needs of the
Taylor's checkerspot butterfly or its habitat that reaches a wider
audience can be of benefit to future conservation efforts and the
designation of critical habitat increases our ability to educate
private landowners and the public during outreach events concerning the
historical role and current importance of grassland balds. We notified
the general public about outreach events and hearings through a Federal
Register notice on April 3, 2013 (78 FR 20074). Our outreach measures
included the distribution of educational material, and encouragement of
landowners to conduct Taylor's checkerspot habitat restoration
activities on their own properties. Additional events are expected to
occur in the future, and designation of this property as critical
habitat is not expected to increase the number of such meetings or
improve their outcomes, therefore the potential educational value of
critical habitat is minimized.
The incremental benefit from designating critical habitat for
Taylor's checkerspot butterfly is further reduced due to the long-
standing management planning efforts for the adjacent WDNR land and the
recently acquired conservation property managed by CNLM. These
properties have been managed for the conservation of bald-associated
species and each property provides larval host plants and adult nectar
resources for Taylor's checkerspot butterflies. For this reason, they
contain many of the PCEs to support the butterfly. The management
planning for each of these properties has established a track record of
positive conservation actions focused on enhancing grassland bald
composition and structure at each location. All of these lands have
benefited from the conservation measures implemented by WDFW (Hays 2011
p. 53), the planning efforts for WDNR managed lands, and the voluntary
habitat conservation plan for Merrill and Ring Company. These
conservation plans provide greater protection to Taylor's checkerspot
butterfly habitat than the designation of critical habitat since the
planning effort is intended to improve the structure and composition of
the habitat, and as often as not this work may not be associated with a
Federal action.
The voluntary habitat conservation plan from Merrill and Ring
provides for the needs of Taylor's checkerspot butterfly by protecting
and managing the grassland balds and implements species-specific
conservation measures designed to avoid and minimize impacts to
Taylor's checkerspot butterfly.
The voluntary habitat conservation plan developed by Merrill and
Ring Company specifies that no roads would be constructed within 400
feet (ft) (122 meters (m)) of currently occupied balds and access to
the property is restricted by a gate. Merrill and Ring Company has
committed to no timber harvest on the lands covered by the voluntary
habitat conservation plan through the year 2020, at which time they may
consider a thinning operation. There are plans to conduct a
regeneration harvest of the
[[Page 61544]]
forested stands in 2033, and Merrill and Ring Company agrees to buffer
their managed lands from Taylor's checkerspot butterfly habitat after
consultation with WDFW and the Service.
Because of the recent success of Taylor's checkerspot butterfly
translocations, the planning group who oversees the schedule for
translocations would give priority consideration to this location for
future introductions of Taylor's checkerspot butterfly onto high
quality bald habitat. Therefore, designation of critical habitat would
not provide any additional management planning effort that is not
already occurring at these locations under WDFW management authority,
voluntary conservation planning efforts, or restoration actions
developed through our recovery program, or through DOD ACUB funding
authority, which provided the funding support for CNLM to purchase the
adjacent property located at Dan Kelly Ridge.
Benefits of Exclusion--Merrill and Ring Company Voluntary Habitat
Conservation Plan--The benefits of excluding this private property from
designated critical habitat are substantial. We have worked to sustain
a close partnership with WDFW and the landowner through regular
coordination and the development of the Merrill and Ring Company
voluntary habitat conservation plan. The voluntary habitat conservation
plan contains provisions that will improve the conservation status of
the Taylor's checkerspot butterfly. Measures contained in the plan are
consistent with recommendations from the Service for the conservation
of the Taylor's checkerspot butterfly, and will afford benefits to the
subspecies and its habitat.
Excluding this private property from critical habitat designation
will provide significant benefit in terms of sustaining and enhancing
the ongoing partnership between the Service, WDFW, and the private
landowner, with positive consequences for conservation. The willingness
of the private landowner to undertake conservation efforts for the
benefit of the Taylor's checkerspot butterfly and to work with WDFW and
the Service to develop and employ species conservation actions will
continue to reinforce those conservation efforts and our partnership,
which contribute toward achieving recovery of the Taylor's checkerspot
butterfly. We consider this voluntary partnership in conservation vital
to our understanding of the status of the Taylor's checkerspot
butterfly on agricultural lands in western Washington, and necessary
for us to implement recovery actions such as habitat protection and
restoration, and beneficial management actions for this subspecies.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of redundant government regulation. If these
private lands, which have been managed under preexisting conservation
plans for the benefit of Taylor's checkerspot butterfly, are designated
as critical habitat, it could have a dampening effect on our continued
ability to seek new partnerships with future participants including
States, counties, local jurisdictions, conservation organizations, and
private landowners, which together can implement various conservation
actions (such as SHAs, HCPs, and other conservation plans, particularly
large, regional conservation plans that involve numerous participants
and address landscape-level conservation of species and habitats) that
we would be unable to accomplish otherwise. This private landowner made
a commitment to conserve Taylor's checkerspot butterflies and their
habitat in their voluntary habitat conservation plan. This private
landowner serves as a model of voluntary conservation and may aid in
fostering future voluntary conservation efforts by other parties in
other locations for the benefit of listed species. We consider the
positive effect of excluding proven conservation partners from critical
habitat to be a significant benefit of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Merrill and
Ring Company Voluntary Habitat Conservation Plan--In summary, we
determine that the benefits of excluding the private land parcel owned
and managed by Merrill and Ring Company, situated adjacent to lands
conserved for Taylor's checkerspot managed by the WDNR and the CNLM,
outweigh the benefits of including this property in critical habitat.
As described above, the regulatory and informational benefits of
inclusion will be minimal, as these lands are already being managed for
the conservation of Taylor's checkerspot butterfly under a voluntary
habitat conservation plan. Any additional benefits of inclusion in
critical habitat based on the section 7 process are unlikely because a
Federal nexus on these lands is not expected to occur.
In addition, the conservation strategies of Merrill and Ring
Company voluntary habitat conservation plan for the Taylor's
checkerspot butterfly are designed to protect, restore, and enhance
habitat for the subspecies. This plan includes species-specific
management actions to support the Taylor's checkerspot butterfly,
avoidance and minimization measures, and annual monitoring requirements
to ensure proper implementation, which further minimizes the benefits
that would be provided as a result of a critical habitat designation.
The benefit of excluding this private land parcel is that it will
help us maintain an important and successful conservation partnership
with private and non-governmental partners, as well as with our State
conservation partners, WDFW, and WDNR, all of whom have made a
commitment to manage for this subspecies and work cooperatively and
collaboratively with the Service. We further believe that by
recognizing the voluntary habitat conservation plan negotiated by WDFW
and Merrill and Ring Company, this voluntary plan can serve as a model
for other landowners in developing conservation partnerships for the
benefit of endangered or threatened species, whether that partnership
is with the Service, the State, or another entity. As the majority of
listed species occur on private lands, we consider these partnerships
with private landowners to be a significant benefit for conservation.
For these reasons, we have determined that the benefits of exclusion
outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in the Extinction of the Species--Merrill
and Ring Company Voluntary Habitat Conservation Plan--We have
determined that exclusion of approximately 10 ac (4 ha) of private
timber lands covered by a voluntary habitat conservation plan by
Merrill and Ring Company will not result in the extinction of the
Taylor's checkerspot butterfly. Although Taylor's checkerspot butterfly
is known to occupy an adjacent property, it is not known to occur at
present on the Merrill and Ring lands in question. Actions covered by
the voluntary habitat conservation plan will not result in extinction
of the Taylor's checkerspot butterfly because the voluntary habitat
conservation plan provides for the needs of the butterfly primarily by
avoiding any actions that may perpetuate take of the species or its
habitat by deferring any actions in the vicinity of Taylor's
checkerspot butterfly habitat for the next decade. Any action taken at
that time would be in the form of forest thinning (e.g., tree removal
on the margins of the bald habitat), which could contribute to the
restoration and enhancement of the currently known occupied and
potentially suitable Taylor's checkerspot
[[Page 61545]]
butterfly habitat under the jurisdiction of the State. There is little
likelihood of this timber company project having a Federal nexus and
therefore having an adverse effect to Taylor's checkerspot butterfly in
occupied areas, which would trigger the jeopardy standard of section 7
of the Act. Additionally, the voluntary habitat conservation plan for
Taylor's checkerspot butterfly entered into by the company would
provide a level of assurance that this subspecies will not go extinct
as a result of excluding these lands from the critical habitat
designation. The subspecies is protected from take under section 9 of
the Act on all properties where the subspecies is found. For these
reasons, we find that exclusion of these private lands covered by the
voluntary habitat conservation plan for the Taylor's checkerspot
butterfly will not result in extinction of the Taylor's checkerspot
butterfly. Based on the above discussion, the Secretary is exercising
her discretion under section 4(b)(2) of the Act to exclude from this
final critical habitat designation portions of the proposed critical
habitat unit or subunit that are owned and managed by the private
timber company, Merrill and Ring.
Colvin Ranch Grassland Reserve Program Management Plan
Private lands totaling 378 ac (153 ha) that are covered under an
NRCS Grassland Reserve Program Management Plan are excluded from Unit
1-Rock Prairie in this critical habitat designation under section
4(b)(2) of the Act. The Service has coordinated directly with NRCS
regarding conservation actions that are being implemented on the
portion of Rock Prairie that lies south of Old Hwy 99 (hereafter known
as Colvin Ranch). Colvin Ranch has been managed for approximately 10
years under a long-term Grassland Reserve Program Management Plan (GRP
plan), and 530 ac (215 ha) of the property is conserved in perpetuity
by a conservation easement held by NRCS, of which a portion (378 ac
(153 ha)) is excluded from critical habitat. Under the GRP plan, the
landowners manage their land using a livestock grazing guideline for
western Washington prairies developed in partnership with NRCS. The GRP
plan uses intensive livestock grazing as the primary tool to minimize
the invasion of prairies by Douglas fir and other woody native and
nonnative shrub species. Additionally, pasture grasses that are often
in competition for resources with the native prairie species are
consumed by the livestock, which makes room for native prairie species
in the process of restoring prairie composition, structure and
function. All of these practices provide a positive conservation
benefit for the Taylor's checkerspot butterfly and its habitat. The
Service has been coordinating with the landowners regarding the
potential use of Colvin Ranch for the reintroduction of the Taylor's
checkerspot butterfly to Rock Prairie.
Benefits of Inclusion-Colvin Ranch Grassland Reserve Program
Management Plan--The primary effect of designating any particular area
as critical habitat is the requirement for Federal agencies to consult
with us under section 7 of the Act to ensure actions they carry out,
authorize, or fund do not adversely modify designated critical habitat.
Absent critical habitat designation in occupied areas, Federal agencies
remain obligated under section 7 of the Act to consult with us on
actions that may affect a federally listed species to ensure such
actions do not jeopardize the species' continued existence. Colvin
Ranch is not currently occupied by the Taylor's checkerspot butterfly;
therefore a Federal action would not trigger a jeopardy analysis, but
would only trigger an analysis of adverse modification should critical
habitat be designated. The benefits derived from including critical
habitat for this property would most likely be derived from the
potential Federal nexus resulting from the granting of Federal funds
intended to manage the lands to benefit prairie associated species,
such as the Taylor's checkerspot butterfly. However, we anticipate that
section 7 consultation related to habitat management funding is not
likely to provide much added benefit to the species, since the action
being consulted on is itself intended to benefit prairie-associated
species, including the Taylor's checkerspot butterfly.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for Taylor's
checkerspot butterfly. Designation of critical habitat informs State
agencies and local governments about areas that could be conserved
under State laws or local ordinances. Any additional information about
the needs of the Taylor's checkerspot butterfly or its habitat that
reaches a wider audience can be of benefit to future conservation
efforts.
During the spring of 2013 alone, the Service hosted four prairie
focused workshops and one public hearing specifically related to the
proposed listing and designation of critical habitat. We also
participated in two local prairie education events in Thurston County
attended by nearly 1,000 people to publicize and educate local
community members of the declining distributions and threats to the
native flora and fauna found on the west-side prairies. One of these
events was hosted and held at Colvin Ranch. An important conservation
measure gained through these outreach networks is our ability to
educate the public about the historical role and current importance of
prairies to our local community and economy. Included among the
outreach measures is the distribution of educational material and the
benefit derived from encouraging landowners to conduct prairie
restoration activities on their own properties. Additional events are
expected to occur in the future, and designation of Colvin Ranch as
critical habitat is not expected to increase the number of such
meetings or improve their outcomes. As Colvin Ranch is already serving
as a center of educational information regarding the conservation of
prairie habitats and their associated species, including Taylor's
checkerspot butterfly, any potential additional benefit stemming from
the designation of critical habitat on this property is negligible.
The incremental benefit from designating critical habitat for the
Taylor's checkerspot butterfly is further minimized due to the long-
standing management planning efforts implemented on Colvin Ranch. The
property owner has implemented management for the conservation of
prairie habitat that provides larval host and adult nectar foods for
the Taylor's checkerspot butterfly, and the land itself contains many
of the essential physical or biological features to support the
butterfly. The implementation of the GRP plan for Colvin Ranch has
established a track record of activity focused on enhancing prairie
plant composition and structure. The conservation measures applied at
Colvin Ranch have more recently been refocused through the development
of site-specific implementation plans for each location to benefit
Taylor's checkerspot butterflies and other rare prairie butterflies.
The implementation of Colvin Ranch GRP plan provides greater protection
to Taylor's checkerspot butterfly habitat than the designation of
critical habitat since the
[[Page 61546]]
management is intended to improve the habitat structure and composition
of the several native prairie dominated paddocks on Colvin Ranch
(critical habitat designation does not require active management). In
many cases, this work is accomplished without Federal funding, which
highlights the landowner's willingness to continue the partnership.
Colvin Ranch has been an active working ranch in Thurston County
since 1865. Originally over 3,000 ac (1,214 ha) in size, it is now
approximately 1,000 ac (405 ha) and located in southern Thurston
County. Grazing systems have been modified dramatically during this
time period. Colvin Ranch required an improvement to the infrastructure
in order to accomplish the goal of improving native prairie composition
on the ranch through intensive grazing, a practice of grazing greater
numbers of cows on specific pastures (paddocks) for shorter time
periods. Miles of fencing were erected to partition the fields into
intensively managed paddocks, and in each paddock a water source was
made available. The intensive management regime requires that livestock
be moved often according to vegetation height or soil condition changes
specified in the GRP management plan. The Colvin Ranch has been
partitioned into 35 paddocks, with nearly 300 ac (120 ha) managed for
the production of native prairie plant composition. Colvin Ranch is
presently being managed for the benefit of the Taylor's checkerspot
butterfly and its habitat; we have no information to suggest that the
designation of critical habitat on this property would generate any
added benefit to the already positive management efforts being
implemented.
Benefits of Exclusion--Colvin Ranch Grassland Reserve Program
Management Plan--The benefits of excluding this private property from
designated critical habitat are substantial. We have developed a close
partnership with the landowner and NRCS through regular coordination
and outreach activities, using Colvin Ranch as an example of land uses
that are compatible with prairie conservation. The GRP plan provisions
that will improve the conservation status of the Taylor's checkerspot
butterfly include novel grazing practices which have resulted in the
dramatic increase and maintenance of diverse larval and adult food
resources for the subspecies. Measures contained in the GRP plan are
consistent with recommendations from the Service for the conservation
of the Taylor's checkerspot butterfly, and will afford benefits to the
subspecies and its habitat.
Excluding this private property from critical habitat designation
will provide a significant benefit in terms of sustaining and enhancing
the excellent partnership between the Service, NRCS, and the private
landowner, as well as other partners who participate in prairie
management decision-making, with positive consequences for
conservation. The willingness of the private landowner to undertake
conservation efforts for the benefit of the Taylor's checkerspot
butterfly and work with NRCS and the Service to develop and employ
conservation actions, will continue to reinforce those conservation
efforts and our partnership, which contribute toward achieving recovery
of the Taylor's checkerspot butterfly. We consider this voluntary
partnership in conservation vital to the development of our
understanding of the status of Taylor's checkerspot butterfly on
agricultural lands in western Washington, and necessary for us to
implement recovery actions such as habitat protection, restoration, and
beneficial management actions for this subspecies.
The designation of critical habitat could have an unintended
negative effect on our relationship with non-Federal landowners due to
the perceived imposition of government redundant regulation.
Designation of critical habitat on private lands that are managed for
the benefit of prairie species, including the Taylor's checkerspot
butterfly, could have a dampening effect on our continued ability to
seek new partnerships with future participants including States,
counties, local jurisdictions, conservation organizations, and private
landowners. Together, these parties can implement various cooperative
conservation actions (such as SHAs, HCPs, and other conservation plans,
particularly large, regional conservation plans that involve numerous
participants and/or address landscape-level conservation of species and
habitats) that we would be unable to accomplish otherwise. This private
landowner made a commitment almost a decade ago to develop and
implement this GRP management plan, which has restored much of Rock
Prairie to habitat favorable to the reintroduction of the Taylor's
checkerspot butterfly, and they have engaged with and encouraged other
parties, both public and private, to join in conservation partnerships.
Further, we have been coordinating with this landowner about the
potential for using Rock Prairie as a reintroduction site for the
Taylor's checkerspot butterfly. We believe Colvin Ranch would be less
likely to participate in the reintroduction of the Taylor's checkerspot
butterfly to Rock Prairie or to encourage others to participate in
similar grazing intensive ranching practices that restore Taylor's
checkerspot butterfly habitat if critical habitat were to be designated
on this property. This private landowner serves as a model of voluntary
conservation and may aid in fostering future voluntary conservation
efforts by other parties in other locations for the benefit of listed
species. Most endangered or threatened species do not occur on Federal
lands. As the recovery of these species will therefore depend on the
willingness of non-Federal landowners to partner with us to engage in
conservation efforts, we consider the positive effect of excluding
proven conservation partners from critical habitat to be a significant
benefit of exclusion.
Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch
Grassland Reserve Program Management Plan--In summary, we determine
that the benefits of excluding the NRCS GRP managed prairies at Colvin
Ranch from the designation of critical habitat for the Taylor's
checkerspot butterfly outweigh the benefits of including these areas in
critical habitat. The regulatory and informational benefits of
inclusion will be minimal. Furthermore, any potential additional
benefits of inclusion on the section 7 process are relatively unlikely
because a Federal nexus on these lands would rarely occur. If one were
to occur, it would most likely be with the Service or NRCS, and their
actions will be geared toward the conservation benefits of restoring
and enhancing habitat specifically for the Taylor's checkerspot
butterfly, or other rare butterflies. This type of management is
focused on the maintenance of open, short statured vegetative
conditions that Taylor's checkerspot butterflies typically occupy.
Since any action likely to be the subject of consultation under the
adverse modification standard on this unoccupied area would be focused
on providing positive habitat benefits for the Taylor's checkerspot
butterfly, we find it unlikely that critical habitat would result in
any significant additional benefit to the subspecies. Furthermore, the
benefits of including this area in critical habitat are reduced since
significant management actions are already underway to restore the
prairie habitat in this area for the benefit of rare butterflies,
including Taylor's checkerspot butterfly. In this instance, the GRP
plan for Colvin Ranch contains
[[Page 61547]]
provisions for protecting and restoring prairie habitat for the
Taylor's checkerspot butterfly on Rock Prairie that exceed the
conservation benefits that would be afforded through section 7
consultation.
A significant benefit of excluding these lands is that it will help
us maintain and foster an important and successful partnership with
this private landowner partner and NRCS. They have consistently
supported stewardship of prairie habitat beneficial to the conservation
of the Taylor's checkerspot butterfly and have consistently encouraged
others to join in conservation partnerships as well. The exclusion of
Colvin Ranch will serve as a positive conservation model, and encourage
other private landowners to partner with the Service for the purpose of
conserving listed species. For these reasons, we have determined that
the benefits of exclusion outweigh the benefits of inclusion in this
case.
Exclusion Will Not Result in the Extinction of the Species--Colvin
Ranch Grassland Reserve Program Management Plan--We have determined
that exclusion of approximately 378 ac (153 ha) for the portion of Rock
Prairie managed under the GRP management plan implemented at Colvin
Ranch will not result in extinction of the Taylor's checkerspot
butterfly. Presently, Rock Prairie is unoccupied by the Taylor's
checkerspot butterfly, but it was previously known to fly in great
abundance on Rock Prairie. Actions covered by the GRP management plan
will not result in the extinction of the Taylor's checkerspot butterfly
because: (i) The butterfly is not present on Colvin Ranch at this time;
(ii) the management implemented on Colvin Ranch has continually
improved the prairie habitat during the 9 years it has been practiced;
and (iii) management of the prairie paddocks will continue and be
modified over time as new information is gained through systematically
monitoring the results of their intensive grazing system.
Benton County Prairie Species HCP, Oregon
Approximately 106 ac (43 ha) of lands owned by Benton County
(Oregon) and proposed as critical habitat for the Taylor's checkerspot
butterfly are covered under the Benton County Prairie Species HCP and
are excluded from Unit 4 of this critical habitat designation under
section 4(b)(2) of the Act. The Benton County Prairie Species HCP has a
50-year term and addresses lands owned or managed by Benton County and
any private lands in the County that contain wet or upland prairie
habitat in Benton County. This HCP includes provisions for long-term
planning, avoiding and minimizing impacts to habitat for the species
that are covered under the HCP, and mitigating for habitat losses when
it is unavoidable. The Benton County Prairie Species HCP covers a total
of roughly 11,700 ac (4,734 ha) of lands and rights-of-way within
Benton County with prairie habitat, of which Benton County owns
approximately 1,182 ac (478 ha). On January 14, 2011, a section
10(a)(1)(B) permit was issued to the County under the Act. The seven
species covered under this HCP exclusively occupy prairie and prairie-
like habitats and include the Taylor's checkerspot butterfly, Fender's
blue butterfly (Icaricia icarioides fenderi), Bradshaw's lomatium
(Lomatium bradshawii), Kincaid's lupine (Lupinus oreganus), peacock
larkspur (Delphinium pavonaceum), Nelson's checkermallow (Sidalcea
nelsoniana), and Willamette daisy (Erigeron decumbens).
Covered activities include ground-disturbing construction
activities associated with home building, farming, and forestry
practices; management of public lands and lands owned or managed by
conservation organizations; and activities providing essential public
services in the County (e.g., transportation and water system
management, and utilities construction and maintenance). Cooperators
under the HCP include: the City of Corvallis, Oregon Department of
Transportation, Oregon State University, Greenbelt Land Trust, Pioneer
Telephone Cooperative, and NorthWest Natural Gas.
The overall biological goal of this HCP is to achieve sustainable
populations of covered species, while maintaining local populations and
fostering habitat connectivity. The County and cooperators will support
sustainable population numbers through conservation measures designed
to enhance existing populations of covered species, support their
habitat, and increase the distribution and connectivity of their
populations in Benton County.
The Benton County Prairie Species HCP has management goals and
objectives for sites that currently support Taylor's checkerspot
butterflies (Fitton Green and Beazell Memorial Forest), and Fort
Hoskins, which has suitable habitat but has not had a documented
occurrence of Taylor's checkerspot butterfly for several years. The
Benton County Prairie Species HCP will undertake prairie habitat
restoration and enhancement in the above locations.
Benefits of Inclusion-Benton County Prairie Species HCP--We find
that there is minimal benefit from designating critical habitat for the
Taylor's checkerspot butterfly within the area covered by the Benton
County Prairie Species HCP because, as explained above, these covered
lands are already managed for the conservation of the subspecies over
the term of the HCP. The Benton County Prairie Species HCP includes a
species-specific management plan for the Taylor's checkerspot
butterfly; avoidance and minimization measures; and monitoring
requirements to ensure proper implementation. The Benton County Prairie
Species HCP provides for the needs of the Taylor's checkerspot
butterfly by protecting and managing all current and former known
habitat areas on County owned lands and implementing conservation
measures designed to avoid and minimize impacts to individual Taylor's
checkerspot butterflies. Management guidelines were developed for areas
currently occupied by the subspecies as well as areas that have
suitable habitat conditions but that are not known to be currently
occupied. The conservation measures provided by the HCP will provide
greater protection to Taylor's checkerspot butterfly habitat than the
designation of critical habitat since they are intended to improve
habitat conditions (critical habitat only requires the avoidance of
adverse modification; it does not require actions to improve habitat).
Therefore, the HCP contains provisions for protecting and maintaining
Taylor's checkerspot butterfly habitat that exceed the conservation
benefits that would be afforded through section 7 consultation.
The inclusion of these covered lands as critical habitat could
provide some additional Federal regulatory benefits for the species
consistent with the conservation standard based on the Ninth Circuit
Court's decision in Gifford Pinchot Task Force v. United States Fish
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). Because one of the
primary threats to Taylor's checkerspot butterfly is habitat loss and
degradation, the consultation process under section 7 of the Act for
projects in occupied areas (Beazell Forest and Fitton Green) with a
Federal nexus will, in evaluating effects to Taylor's checkerspot
butterfly under the jeopardy standard, evaluate the effects of the
action on the conservation or functionality of the habitat for the
subspecies regardless of whether critical habitat is designated on
these lands. The analytical requirements to support a jeopardy
determination on excluded land are similar, but not identical, to the
[[Page 61548]]
requirements in an analysis for an adverse modification determination
on included land. In unoccupied areas (Fort Hoskins), a potential
benefit of inclusion would be the requirement of a Federal agency to
ensure that their actions on these non-Federal lands would not likely
result in the destruction or adverse modification of critical habitat.
The Bonneville Power Administration (BPA) does have a transmission line
corridor right-of-way across the northern portion of Fitton Green that
falls within the boundaries of County-owned lands covered under the
Benton County Prairie Species HCP. BPA conducts limited activities
within the right-of-way that are intended to maintain the integrity of
the powerlines to deliver electrical power. Routine maintenance
activities are mostly related to removing trees that may come in
contact with the powerlines. Tree removal is likely to assist in
maintaining the open, short-statured vegetation communities that
Taylor's checkerspot butterflies require, and most often use. Section 7
consultation related to BPA right-of-way maintenance is not likely to
provide much benefit in reducing impacts to critical habitat since the
nature of routine maintenance activities that would be consulted on
should be beneficial to the long-term maintenance of suitable habitat
for the Taylor's checkerspot butterfly. In addition, as noted above, as
this area is occupied by the subspecies, the effects of any Federal
action will already be analyzed under the jeopardy standard in section
7 consultation, including effects to the conservation value of the
habitat. In general, any Federal agency authorizing, funding, or
carrying out an action on these HCP-covered lands would have to
consider the conservation restrictions on these lands and incorporate
measures necessary to ensure the conservation of these resources,
thereby reducing any incremental benefit critical habitat may have.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for the
Taylor's checkerspot butterfly. Designation of critical habitat informs
State agencies and local governments about areas that could be
conserved under State laws or local ordinances. Any additional
information about the needs of the Taylor's checkerspot butterfly or
its habitat that reaches a wider audience can be of benefit to future
conservation efforts. However, the Benton County Prairie Species HCP
has already gone through public review and included public meetings
about the prairie conservation strategy. An important conservation
measure that is implemented under the HCP is public outreach. Included
among the outreach measures is the distribution of educational
materials, holding prairie conservation workshops, and encouraging
landowners to conduct prairie restoration activities on their own
properties. Additional educational and informational benefits that
might arise from critical habitat designation have already largely
occurred through public meetings and review of the draft HCP and are
going to continue to occur through implementation of the conservation
measures of the final HCP. The potential educational value of critical
habitat in this instance is therefore further reduced.
Benefits of Exclusion-Benton County Prairie Species HCP--Compared
to the minimal benefits of inclusion of this area in critical habitat,
the benefits of excluding from designated critical habitat the
approximately 106 ac (43 ha) of lands currently managed under the HCP
are considerable.
HCP conservation measures that provide a benefit to the Taylor's
checkerspot butterfly and its habitat have been implemented since its
approval in 2011. Excluding the lands managed under the Benton County
Prairie Species HCP from critical habitat designation will sustain and
enhance the working relationship between the Service and the County.
Excluding lands within HCPs from critical habitat designation can
also facilitate our ability to seek new partnerships with future HCP
participants including States, counties, local jurisdictions, non-
governmental conservation organizations, and private landowners, which
together can implement conservation actions that we would be unable to
accomplish otherwise. If lands within the HCP plan areas are designated
as critical habitat, it would likely have a negative effect on our
ability to establish new partnerships to develop HCPs, particularly
larger HCPs that involve numerous participants and address the
necessary landscape-level conservation of species and habitats. By
excluding these lands, we preserve and enhance our current partnerships
and encourage additional conservation actions in the future for the
Taylor's checkerspot butterfly and other listed species.
Benefits of Exclusion Outweigh the Benefits of Inclusion-Benton
County Prairie Species HCP--In summary, we determine that the benefits
of excluding areas covered by the Benton County Prairie Species HCP
from the designation of critical habitat for the Taylor's checkerspot
butterfly outweigh the benefits of including this area in critical
habitat. The regulatory and informational benefits of inclusion will be
minimal. In areas occupied by the Taylor's checkerspot butterfly, any
potential consultation under section 7 of the Act will evaluate the
effects of the action on the conservation or functionality of the
habitat for the species regardless of whether critical habitat is
designated for these lands. The analytical requirements to support a
jeopardy determination on excluded land are similar, but not identical,
to the requirements in an analysis for an adverse modification
determination on included land. The most likely Federal nexus would be
with BPA, and their actions are generally limited to maintaining the
right-of-way to be free of encroaching trees that may eventually come
in contact with the powerlines. This type of right-of-way maintenance
should also maintain the open, short statured vegetative conditions
that the Taylor's checkerspot butterfly typically occupies, and so
benefits the subspecies. The additional benefit of consultation under
the adverse modification standard is therefore minimal.
In addition, the conservation strategies of the Benton County
Prairie Species HCP are designed to protect and enhance habitat for the
Taylor's checkerspot butterfly. The HCP includes a species-specific
management plan for the Taylor's checkerspot butterfly, avoidance and
minimization measures, and monitoring requirements to ensure proper
implementation, which further minimizes the benefits that would be
provided as a result of a critical habitat designation.
The benefit of excluding these lands is that it will help us
maintain an important and successful conservation partnership with a
county government that voluntarily included the Taylor's checkerspot
butterfly in its HCP when it was a Federal candidate species, and
exclusion of these areas may encourage others to join in conservation
partnerships as well. For these reasons, we have determined that the
benefits of exclusion outweigh the benefits of inclusion in this case.
Exclusion Will Not Result in Extinction of the Species-Benton
County Prairie Species HCP--We have determined that exclusion of
approximately 106 ac (43 ha) of lands covered under the Benton County
[[Page 61549]]
Prairie Species HCP will not result in extinction of the Taylor's
checkerspot butterfly because the HCP provides for the needs of the
butterfly by: protecting, restoring, and enhancing all the known
occupied and potentially suitable Taylor's checkerspot butterfly
habitat under the jurisdiction of the County; committing to the
enhancement and recruitment of additional habitat over the term of the
HCP; and, implementing species-specific conservation measures designed
to avoid and minimize impacts to the Taylor's checkerspot butterfly.
Further, for projects having a Federal nexus and affecting Taylor's
checkerspot butterfly in occupied areas, the jeopardy standard of
section 7 of the Act, coupled with protection provided by the Benton
County Prairie Species HCP, would provide a level of assurance that
this species will not go extinct as a result of excluding these lands
from the critical habitat designation. The species is also protected
from take under section 9 of the Act on all properties where the
species is found. Federal agencies would be required to minimize the
effects of incidental take, and would be encouraged to avoid incidental
take through the section 7 consultation process. For these reasons, we
find that exclusion of these lands covered by the Benton County Prairie
Species HCP will not result in extinction of the Taylor's checkerspot
butterfly. Based on the above discussion, the Secretary is exercising
her discretion under section 4(b)(2) of the Act to exclude from this
final critical habitat designation portions of the proposed critical
habitat units or subunits that are within the Benton County Prairie
Species HCP covered lands totaling about 106 ac (43 ha).
Non-Federal Airports
The streaked horned lark occurs on airports because management to
control hazardous wildlife has incidentally created suitable habitat
for the subspecies. Airports create the large, open landscape context
preferred by streaked horned larks, and mowing and other management
practices to maintain short-statured vegetation for aviation safety
similarly inadvertently provides the type of vegetation utilized by the
subspecies. However, airports are not ideal locations for focusing
recovery efforts for the streaked horned lark. First, larks are at risk
of mortality from aircraft collisions, and have been documented as a
hazardous species at airports (Cleary and Dolbeer 2005, p. 101).
Secondly, Federal Aviation Administration (FAA) regulations require
airports to take immediate action to alleviate wildlife hazards
whenever they are detected (14 CFR 139.337). This requirement to
maintain airfields free of wildlife hazards would severely limit the
potential to increase streaked horned lark populations on airports.
Given the combined threats of aircraft strikes and constant management
to minimize bird populations, airports do not provide ideal conditions
for the long-term conservation of the streaked horned lark.
We received comments from the FAA, airports, and airport operators
associations expressing concern that designating critical habitat for
the streaked horned lark on airports implies that airports are desired
locations to provide for conservation and recovery of the streaked
horned lark, which is in conflict with their requirements to provide
safe conditions for aviation. Several commenters recommended that
airports should be excluded from critical habitat in favor of sites
with the potential for long-term conservation management. This is also
consistent with comments received from one of the proposed rule's peer
reviewers: ``[hellip] bird conservation is not and should not be a
desired component of airport management'' (Altman 2013, p. 6). We
agree. Although airports currently support some of the largest
populations of streaked horned larks, we consider airports to provide
transitory suitable habitat for the subspecies, and we have no
intention of encouraging an increase in populations of streaked horned
larks on airports as part of our long-term recovery strategy. Although
the development of a recovery plan will come subsequent to the listing
of the streaked horned lark, it is our intention that the conservation
and recovery of the subspecies will rely on the restoration and
maintenance of more suitable natural habitats or habitats with more
compatible land uses for the streaked horned lark.
Benefits of Inclusion-Non-Federal Airports--We find there are
minimal benefits to including non-Federal airport lands in critical
habitat for the streaked horned lark. As discussed above, the
designation of critical habitat invokes the provisions of section 7.
Since the non-Federal airport lands in question are all occupied by the
streaked horned lark, if a Federal nexus were to occur, section 7
consultation would be triggered by the presence of the listed
subspecies and the Federal agency would consider the effects of its
actions on the subspecies through a jeopardy analysis. Because one of
the primary threats to the streaked horned lark is habitat loss and
degradation, the consultation process under section 7 of the Act for
projects with a Federal nexus will, in evaluating effects to the
streaked horned lark, evaluate the effects of the action on the
conservation or functionality of the habitat for the subspecies
regardless of whether critical habitat is designated for these lands.
The analytical requirements to support a jeopardy determination on
excluded lands are similar, but not identical, to the requirements in
an analysis for an adverse modification determination on lands
designated as critical habitat. However, the additional conservation
value that could be attained through the adverse modification analysis
for critical habitat under section 7 would likely not be significant,
and would be triggered only in the event of a Federal action.
Another benefit of including lands in a critical habitat
designation is that it serves to educate landowners, State and local
governments, and the public regarding the potential conservation value
of an area. This helps focus and promote conservation efforts by other
parties by identifying areas of high conservation value for the
streaked horned lark. The designation of critical habitat at airports
would highlight the stable habitats that have been unintentionally
created on non-Federal airport lands, and which are known to be used by
streaked horned larks as breeding and wintering habitats. However,
airport managers are already aware of the presence of the streaked
horned lark, and some airports have already incorporated management for
the streaked horned lark into their operating plans (for example,
Olympia Regional Airport; see Benefits of Exclusion-Non-Federal
Airports, below); this existing knowledge reduces the benefits of
including these non-Federal airport lands in the critical habitat
designation. Since airport managers are already aware of the presence
of the streaked horned lark on their lands, and in some cases existing
management already benefits the streaked horned lark and would not be
altered by the designation of critical habitat, we believe the
potential educational benefit of critical on non-Federal airports will
be extremely limited.
The Service has no intention of promoting increased populations of
streaked horned larks on airports as part of the long-term recovery and
conservation strategy for the subspecies. Although non-Federal airports
inadvertently provide suitable habitat for streaked horned larks, we
consider airport habitats to be of relatively low conservation value
over the long term. Our conservation strategy for the
[[Page 61550]]
streaked horned lark will focus on the restoration and management of
natural habitats for the subspecies, free of the risks and disturbance
associated with air traffic; the designation of critical habitat on
airports would thus run counter to our overall conservation strategy
for the streaked horned lark. Therefore, while we find some benefits of
including non-Federal airport lands in the designation of critical
habitat for the streaked horned lark, we find these benefits are
reduced due to the known presence of streaked horned larks on their
lands and existing management already benefiting the streaked horned
lark. As described above, we believe the potential educational benefit
of critical habitat on non-Federal airports will therefore be extremely
limited. In addition, the benefits of including non-Federal airport
lands are further reduced because all of these lands are presently
occupied by the streaked horned lark, therefore should a project having
a Federal nexus take place, section 7 consultation would occur under
the jeopardy standard-- including the consideration of potential
effects to habitat for the streaked horned lark--regardless of the
designation of critical habitat. Finally, the benefits to the streaked
horned lark of designating non-Federal airport lands as critical
habitat are relatively minimal because, for reasons described above, we
do not intend to focus conservation and recovery efforts on these lands
over the long term.
Benefits of Exclusion-Non-Federal Airports-- Compared to the
minimal benefits of including non-Federal airport lands in critical
habitat, the benefits of excluding non-Federal airport lands from
designated critical habitat are more substantial.
As mentioned above, managers of non-Federal airport lands occupied
by streaked horned larks are generally aware of the presence of the
subspecies, and in some cases airport managers have already developed
management plans that provide benefits to the streaked horned lark. The
exclusion of non-Federal airport lands from the designation of critical
habitat would allow us to foster a positive conservation partnership
with airport entities in the future, and encourage the development of
beneficial management plans such as that developed for the Olympia
Regional Airport in Washington. These conservation partnerships have
the potential to produce tangible conservation results for the streaked
horned lark as evidenced by the development of management plans that
consider the needs of streaked horned larks and other prairie-dependent
species. For example, the Olympia Regional Airport Master Plan (Airport
Master Plan) and Sensitive Species and Priority Habitats Inventory and
Management Plan that the Olympia Regional Airport is implementing will
provide long-term protection for the streaked horned lark, and serves
as a model that the Service will use in the development of partnership
agreements with other airports after the subspecies is listed.
Fostering these positive conservation partnerships is a significant
benefit of exclusion from critical habitat. Below we present specific
details of the conservation partnership with the Olympia Regional
Airport as a model that we will use in discussions with other non-
Federal airports in partnering for the conservation of the streaked
horned lark.
The conservation partnership developed between the Service, WDFW,
and the Olympia Regional Airport over many years has resulted in
positive actions to address and minimize impacts or potential conflicts
to prairie-dependent species, including the streaked horned lark, from
activities conducted on airport property. As evidence of the positive
benefits that have accrued from this partnership, and that could be
gained from the pursuit of other similar partnerships, the Port of
Olympia has agreed to protect the streaked horned lark at the Olympia
Regional Airport and to inventory, manage and maintain habitat for the
streaked horned lark and other prairie-dependent species on the
airport. The Airport Master Plan outlines State, county, and city
regulations and ordinances related to critical areas, as well as FAA
safety regulations and compliance responsibilities, and strategies for
the protection of State-listed and sensitive species while meeting the
needs of the airport as an Essential Public Facility (Port Of Olympia
2013, pp. 7-12). The June 2013 Update to the Airport Master Plan
includes commitments to follow recommendations provided by WDFW for the
protection of State-listed and sensitive species present on the
airport, including: (1) Minimizing the amount of impervious surfaces;
(2) maintaining and/or creating suitable habitat (sparsely vegetated
areas with annual and native grasses, less than 10 percent woody
shrubs, and high percent of bare ground); (3) avoiding activities such
as mowing, special events, and off-road driving and recreational
activities in or near the areas used by streaked horned larks during
the nesting season (March 15 to August 15); (4) working cooperatively
with the State on annual streaked horned lark surveys; and (5) avoiding
development or construction of permanent buildings within approximately
330 ft (100 m) of streaked horned lark nesting areas (Port of Olympia
2013, pp. 15-17). The sensitive species management plan that the
Olympia Regional Airport is implementing will provide long-term
protection for the streaked horned lark and can serve as an example
that other airports could use or follow in the development of
partnership agreements with the Service after the subspecies is listed.
Designating critical habitat on airports could negatively impact our
ability to pursue and develop such beneficial conservation partnerships
with other airports and would not provide any additional conservation
benefits to the subspecies; therefore we have determined that fostering
these positive conservation partnerships is a significant benefit of
exclusion from critical habitat.
An additional benefit of exclusion is signaling that we intend to
direct the focus of recovery efforts for the streaked horned lark on
other, more natural prairie or grassland habitats or habitats with more
compatible uses with greater long-term conservation value, and avoiding
the misperception that the Service wishes to concentrate on airports as
sites essential for the recovery of the streaked horned lark. Section
3(5)(A) of the Act defines ``critical habitat'' as the specific areas
within the geographical area occupied by the species at the time it is
listed on which are found those physical or biological features
essential to the conservation of the species. ``Conservation'' is
further defined in section 3(3) of the Act as the use of all methods
and procedures which are necessary to bring any endangered or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. These definitions clearly
demonstrate that the purpose of critical habitat designation is to
serve as locations of recovery efforts for listed species. However, as
noted above, streaked horned larks face a risk of mortality from
airstrikes as a result of occupying airport lands. Although airports
currently support some relatively large populations of the subspecies,
airports are clearly not ideal for conservation and recovery efforts
aimed at further increasing the abundance of streaked horned larks.
Recovery efforts would be more effectively concentrated on areas
capable of supporting long-term viable populations of streaked horned
larks
[[Page 61551]]
with the potential for increases in population size. Although airports
clearly provide an interim benefit to the subspecies (and will likely
continue to provide habitat for small populations), recovery will
require restoration and management of new sites that can sustain
increasing populations of streaked horned larks in the long term, in
locations that do not pose a heightened risk of mortality to streaked
horned larks. The Service does not intend to focus on increasing
populations of the streaked horned lark on airport lands as part of the
subspecies' long-term recovery strategy. The exclusion of non-Federal
airport lands would thus align with our long-term conservation strategy
that we are likely to develop for the streaked horned lark, and more
appropriately signal our intention to direct recovery efforts to the
restoration and maintenance of more natural habitats for the
subspecies; we consider this to be a significant benefit of exclusion
as well.
Benefits of Exclusion outweigh the Benefits of Inclusion-Non-
Federal Airports--The benefits of including non-Federal airport lands
in the designation are small. Because one of the primary threats to the
streaked horned lark is habitat loss and degradation, the consultation
process under section 7 of the Act for projects with a Federal nexus
will, in evaluating effects to the streaked horned lark, evaluate the
effects of the action on the conservation or functionality of the
habitat for the subspecies regardless of whether critical habitat is
designated for these lands. The analytical requirements to support a
jeopardy determination on excluded land are similar, but not identical,
to the requirements in an analysis for an adverse modification
determination on lands designated as critical habitat. Although not
specifically intended to provide for the conservation of the streaked
horned lark, management for aviation safety at airports already
inadvertently results in actions that create and maintain streaked
horned lark habitat, benefits that exceed the conservation benefits
afforded through section 7 consultation. Since designation as critical
habitat would not change these already positive management efforts, the
benefits of including these lands in critical habitat are small, and
are reduced by other considerations, as described below.
The educational benefit of critical habitat is minimal in this
case; since all non-Federal airport lands in question are occupied by
streaked horned larks, any potential educational benefit of critical
habitat is reduced by the fact that airport managers are already aware
of the presence of the subspecies and its habitat needs. In fact, in
some cases, airport managers have already incorporated conservation
provisions for streaked horned larks and other prairie species into
their management plans. Importantly, it is not the Service's intention
to focus on airport lands as essential sites for recovery; although
airports provide important interim habitat, they also carry an
associated risk of mortality to the birds through airstrikes, and
regulations requiring the minimization of wildlife hazards at airports
are not compatible with efforts to increase populations of birds in
these areas. The Service intends to focus long-term recovery efforts
for the streaked horned lark on other, more natural areas of prairie or
grassland habitat or habitat with more compatible land uses of higher
conservation value. The designation of non-Federal airport lands as
critical habitat would be at odds with our long-term recovery strategy
that we are likely to develop for the streaked horned lark, thereby
further reducing any benefit from including these lands in critical
habitat.
On the other hand, the benefits of exclusion are relatively
substantial. Excluding airports would allow the Service to develop
conservation partnerships with airport managers, and potentially result
in the implementation of management plans at airports designed to
benefit the conservation of the streaked horned lark. As we have seen
through the example set at the Olympia Regional Airport, airport
management plans have the potential to provide for significant
conservation and management of streaked horned larks, to help maintain
populations of this subspecies in the interim pending restoration of
more natural habitats with compatible uses to achieve recovery of this
subspecies. Exclusion of these lands from critical habitat will help
foster partnerships we have developed with airport entities such as the
Port of Olympia, which has developed an impressive management plan for
the benefit of the streaked horned lark and other prairie species.
Furthermore, this partnership may aid in fostering future cooperative
relationships with other airport entities in other locations for the
benefit of streaked horned larks.
Another significant benefit of exclusion is signaling our intention
to focus recovery efforts more appropriately on the restoration and
management of other, more natural habitats with compatible uses for
increasing populations of the streaked horned lark over the long term.
Streaked horned larks are at risk of mortality from airstrikes at
airports. Although airports may serve as interim habitat for the
streaked horned lark, the inclusion of airports in critical habitat
would be contrary to our long-term conservation strategy for the
subspecies. As we do not wish to create the impression that we consider
airport lands as sites essential for the recovery and conservation of
streaked horned larks, exclusion of these lands would benefit the
subspecies by directing recovery efforts to other natural areas with
greater long-term conservation value.
Based on our evaluation of the benefits of inclusion versus the
benefits of exclusion, we determine that the benefits of excluding non-
Federal airport lands from the designation of critical habitat for the
streaked horned lark outweigh the benefits of including these areas in
critical habitat. The Secretary is therefore exercising her discretion
under section 4(b)(2) of the Act to exclude the following airports from
critical habitat for the streaked horned lark:
(1) Sanderson Field in Unit 1--376 ac (152 ha).
(2) Olympia Airport in Unit 1-- 575 ac (233 ha).
(3) Portland International Airport and Broughton Beach in Unit 3--
431 ac (174 ha).
(4) McMinnville Municipal Airport in Unit 4--600 ac (243 ha).
(5) Salem Municipal Airport in Unit 4--534 ac (216 ha).
(6) Corvallis Municipal Airport in Unit 4--1,103 ac (446 ha).
(7) Eugene Airport in Unit 4--313 ac (126 ha).
A small portion of land proposed for critical habitat is adjacent
to Portland International Airport at Broughton Beach on the Columbia
River; this parcel is owned by Metro (the regional government). The
concerns discussed above also apply to this portion of the Portland
International Airport; therefore, we are also excluding Broughton Beach
from critical habitat designation. The total acreage of the exclusions
described above is approximately 3,932 ac (1,590 ha).
Occupied lands excluded under section 4(b)(2) of the Act are still
considered essential to the conservation of the species. Such areas
were proposed as critical habitat because they provide the essential
physical or biological features to support the life history of the
streaked horned lark. Exclusion should never be interpreted as meaning
that such areas are unimportant to the conservation of the species.
Exclusion is based upon a determination by the Secretary that the
benefit of excluding these essential
[[Page 61552]]
areas outweighs the benefit of including them in critical habitat.
Exclusion Will Not Result in the Extinction of the Species--Non-
Federal Airports--Exclusion will not result in extinction of the
streaked horned lark because each of the airports proposed as critical
habitat is occupied by the subspecies; therefore Federal agency actions
that require section 7 consultation will be required to meet the
jeopardy standard for any actions that may affect the streaked horned
lark at those sites. This consultation requirement will safeguard the
streaked horned lark from extinction, regardless of the area's
designation as critical habitat.
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951); Executive Order 13175; and the relevant
provision of the Departmental Manual of the Department of the Interior
(512 DM 2), we coordinate with federally-recognized tribes on a
government-to-government basis. Further, Secretarial Order 3206,
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act'' (1997) states that (1) critical
habitat shall not be designated in areas that may impact tribal trust
resources, may impact tribally-owned fee lands, or are used to exercise
tribal rights unless it is determined essential to conserve a listed
species; and (2) in designating critical habitat, the Service shall
evaluate and document the extent to which the conservation needs of the
listed species can be achieved by limiting the designation to other
lands.
We proposed 182 ac (74 ha) of critical habitat in an area currently
occupied by the streaked horned lark and that provides one or more of
the essential physical or biological features for the subspecies on
lands reserved for the Shoalwater Bay Tribe (included in Unit 3--
Shoalwater Spit); these lands are directly adjacent to other occupied
streaked horned lark habitat along the Washington Coast. Because the
streaked horned lark moves between coastal sites and sites on the
Columbia River Islands, based on site condition and season,
connectivity among and within these habitats is essential for long-term
persistence and recovery of streaked horned larks. Beach and intertidal
habitat on and adjacent to the Shoalwater Bay Indian Reservation were
determined to be important to maintain nesting, foraging, and wintering
habitat, and to maintain connectivity between occupied breeding sites
on the Washington Coast. The longstanding and distinctive relationship
between Federal and tribal governments is defined by treaties,
statutes, executive orders, judicial decisions, and agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Native American tribes and the application of
fiduciary standards of due care with respect to Indian lands, tribal
trust resources, and the exercise of tribal rights. Accordingly, we are
obligated to consult with tribes based on their unique relationship
with the Federal government. In addition, we evaluate tribes' past and
ongoing efforts for species conservation and the benefits of including
or excluding tribal lands in the designation under section 4(b)(2) of
the Act.
We contacted the Shoalwater Bay Tribe and discussed their ongoing
and future management strategies for the streaked horned lark. During
the revision of critical habitat for the Pacific Coast population of
the western snowy plover, we received a letter from the Tribe
describing ongoing tribal management, conservation efforts, and
coordination with the Corps, WDFW, and the Service to protect habitat
for snowy plover and other coastal species important to the Tribe,
including the streaked horned lark. The Tribe coordinates closely with
the Service, Corps, and WDFW on western snowy plover and streaked
horned lark surveys in conjunction with their coastal restoration
project. In April, 2013, the Shoalwater Bay Tribe submitted a comment
letter stating that they wish to be excluded from critical habitat
designation for the streaked horned lark (or any other species). The
Tribe is working with their legal counsel and State and Federal
agencies (Corps, WDFW, Service) in partnership on the development of an
Ecological Restoration Plan for the coastal beaches and tidelands on
the reservation.
We determined that approximately 182 ac (74 ha) of lands owned by,
or under the jurisdiction of, the Tribe contained biological features
essential to the conservation of the streaked horned lark, and
therefore meet the definition of critical habitat under the Act. These
tribal lands are located in the subunit identified as Shoalwater Spit
of Unit 3 (the Washington Coast and Columbia River Islands). In making
our final decision with regard to the designation of critical habitat
for the streaked horned lark on these tribal lands, we considered
several factors, including Secretarial Order 3206, Executive Order
13175, the President's memorandum on ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22951; April
29, 1994), conservation measures in place on these lands that may
benefit the streaked horned lark, economic impacts to tribes, our
relationship with the Tribe, and impacts to current and future
partnerships with the Shoalwater Bay Tribe and other tribes we
coordinate with on endangered and threatened species issues. Under
section 4(b)(2) of the Act, the Secretary is exercising her discretion
to exclude approximately 182 ac (74 ha) of land composed entirely of
reservation lands. We further exclude from this final critical habitat
designation lands that develop by accretion, which we anticipate may
become reservation lands in the near future. As described in our
analysis below, this conclusion was reached after considering the
relevant impacts of specifying this area as critical habitat.
Shoalwater Bay Tribe
The Shoalwater Bay Tribe (Tribe) is a Federally-recognized Native
American tribe with a relatively small (approximately one square mile)
reservation in Pacific County, Washington. Lands within the Shoalwater
Bay Indian Reservation boundary include upland forested terrestrial
habitats, a small residential and commercial area, and coastal marine
habitats. Critical habitat for the streaked horned lark was proposed in
the portion of the reservation with coastal beaches. Through our
ongoing coordination with the Tribe, we have established a partnership
that has benefitted natural resource management on tribal lands. For
our section 4(b)(2) balancing analysis we considered our partnership
with the Tribe in our analysis of the benefits of including and
excluding those lands under the sovereign control of the Tribe that met
the definition of critical habitat.
Benefits of Inclusion--Shoalwater Bay Tribe--The principal benefit
of any designated critical habitat is that Federal activities will
require section 7 consultations to ensure that adequate protection is
provided to avoid adverse modification or destruction of critical
habitat. This would provide an additional benefit beyond that provided
under the jeopardy standard. In evaluating project effects on critical
habitat, the Service must be satisfied that the PCEs and, therefore,
the
[[Page 61553]]
essential features of the critical habitat likely will not be altered
or destroyed by proposed activities to the extent that the conservation
of the affected species would be appreciably reduced. If critical
habitat were designated in areas of unoccupied habitat or currently
occupied areas subsequently become unoccupied, different outcomes or
requirements are also likely because effects to unoccupied areas of
critical habitat are not likely to trigger the need for a jeopardy
analysis.
In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir.
2001), the Fifth Circuit Court of Appeals stated that the
identification of habitat essential to the conservation of the species
can provide informational benefits to the public, State and local
governments, scientific organizations, and Federal agencies. The court
also noted that critical habitat designation may focus and heighten
public awareness of the plight of listed species and their habitats.
Designation of critical habitat may contribute to conservation efforts
by other parties by delineating areas of high conservation value for
streaked horned lark. While we believe this educational outcome is
important for streaked horned lark conservation, we believe it has
already been achieved to some extent through the existing management,
education, and public outreach efforts carried out by the Tribe.
Designation of critical habitat on the aforementioned tribal lands
would simply affirm the recognized conservation value of these lands,
which is already widely accepted by conservationists, public agencies,
and most of the public.
The principal benefit of including an area in a critical habitat
designation is the requirement for Federal agencies to ensure that
actions they fund, authorize, or carry out are not likely to result in
the destruction or adverse modification of any designated critical
habitat, the regulatory standard of section 7(a)(2) of the Act under
which consultation is completed. Federal agencies must also consult
with us on actions that may affect a listed species and refrain from
undertaking actions that are likely to jeopardize the continued
existence of such species. The analysis of effects of a proposed
project on critical habitat is separate and different from that of the
effects of a proposed project on the species itself. The jeopardy
analysis evaluates the action's impact to survival and recovery of the
species, while the destruction or adverse modification analysis
evaluates the action's effects to the designated habitat's contribution
to conservation. Therefore, the difference in outcomes of these two
analyses represents the regulatory benefit of critical habitat. This
will, in many instances, lead to different results and different
regulatory requirements. Thus, critical habitat designations may
provide greater benefits to the recovery of a species than listing
alone would do. However, for some species, and in some locations, the
outcome of these analyses will be similar, because effects to habitat
will often also result in effects to the species. The tribal lands
considered for exclusion are occupied by the streaked horned lark and
will be subject to the consultation requirements of the Act in the
future. Although a jeopardy and adverse modification analysis must
satisfy two different standards, because any modifications to proposed
actions resulting from a section 7 consultation to minimize or avoid
impacts to the streaked horned lark will be habitat-based, it is not
possible to differentiate any measures implemented solely to minimize
impacts to the critical habitat from those implemented to minimize
impacts to the streaked horned lark. Therefore, in the case of the
streaked horned lark, we believe the benefits of critical habitat
designation are very similar to the benefits of listing, and in some
respects would be indistinguishable from the benefits of listing.
Public education is often cited as another possible benefit of
including lands in critical habitat as it may help focus conservation
efforts on areas of high value for certain species. Partnership efforts
with the Shoalwater Bay Tribe to conserve the streaked horned lark and
other coastal species of concern have resulted in heightened awareness
about the subspecies. However, we believe there is little, if any,
educational benefit attributable to critical habitat beyond those
achieved from listing of the streaked horned lark under the Act, and
the Tribe's efforts. The Shoalwater Bay Tribe coordinates regularly
with the WDFW on annual surveys for the streaked horned lark and has
partnered with the Service (Willapa National Wildlife Refuge and
Ecological Services) to control nonnative or invasive species and
restore habitat for the streaked horned lark and other coastal species
on the reservation. Service coordination includes attending meetings
with tribal resource staff to discuss ongoing projects, management
plans, and other issues that arise. We believe our continuing
coordination with the Shoalwater Bay Tribe will further promote
awareness of the subspecies and its conservation needs, and will
facilitate refinements to the existing Fish and Wildlife Codes and
Title 23 of the Tribe's Environmental Ordinances that protect natural
resources on the reservation.
We believe existing tribal regulations, including the 2001 Tribal
Environmental Codes that protect the saltmarsh and sand spit as natural
areas, will ensure that any land use actions, including those funded,
authorized, or carried out by Federal agencies, are not likely to
result in the destruction or adverse modification of all lands
considered for exclusion. The Tribe coordinates with the Service on all
actions that have the potential to affect habitat for listed species on
the reservation, including the streaked horned lark. In 2003, the
Service completed a Planning Aid Letter, and in 2006, we wrote a Fish
and Wildlife Coordination Act Report for the Corps (Shoalwater Bay
Tribe is the project sponsor) on the Shoalwater Coastal Erosion
Project, which entails beach nourishment along the sand spit used by
the streaked horned lark. We completed a section 7 consultation for
this project in 2012, which covered effects to both the streaked horned
lark and western snowy plover. Due to construction delays, the project
was not completed and is still ongoing. We are currently completing
formal conferencing for potential effects to the streaked horned lark
and proposed critical habitat related to this project. The Service
coordinated with the Tribe and the Corps on the project design and will
provided technical input and recommendations on the planting plan and
long-term vegetation management on the dune. The Tribe is actively
working with the State and Federal agencies in implementation of the
project to avoid impacts to the streaked horned lark and its nesting
habitat. The project is designed to restore the barrier spit that has
been actively eroding over the decades. The spit provides protection
from coastal storms and high winter waves for the Shoalwater Bay Indian
Reservation.
Surveys for both the western snowy plover and streaked horned lark
have been conducted by WDFW and the Tribe on the reservation and
adjacent lands since 2000. Surveys became more intensive in 2004 and
later years (to present) when both the western snowy plover and
streaked horned lark were documented nesting on tribal lands on
Shoalwater spit. Although they may not nest there every year, male
streaked horned larks were heard singing or have been seen on
Shoalwater Spit during the nesting seasons of 2004, 2008, 2009, 2012,
and 2013. The Tribe has played an active role in surveying for and
protecting habitat for the streaked
[[Page 61554]]
horned lark. In emails and comments sent to the Service on August 31,
2011, and April 3, 2013, the Tribe confirmed that they will continue to
use their existing regulatory structure to provide habitat protection
for coastal species (including the streaked horned lark) and ``keep
trespassers off those areas considered most important to the species.''
The Corps worked closely with the WDFW and the Service in the
development and implementation of a species protection plan for the
western snowy plover and streaked horned lark habitat as part of the
erosion control project. The Tribe, WDFW, and Service are coordinating
with the Corps on the development of an Ecological Restoration Plan for
the Shoalwater Bay Tribe which will include a planting and long-term
vegetation management plan for the dune and restoration of the adjacent
tidelands.
Any potential impacts to the streaked horned lark from future
proposed activities on tribal trust reservation lands will be addressed
through a section 7 consultation using the jeopardy standard, and such
activities would also be subject to the take prohibitions under section
9 of the Act. As a result, we believe the regulatory benefits of
critical habitat designation on tribal trust reservation land would
largely be redundant with the combined benefits of listing and existing
tribal regulations.
The designation of critical habitat for the streaked horned lark
may strengthen or reinforce some Federal laws, such as the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) or the Clean
Water Act (33 U.S.C. 1251 et seq.). These laws analyze the potential
for projects to significantly affect the environment. Critical habitat
may signal the presence of sensitive habitat that could otherwise be
missed in the review process for these other environmental law;
however, the listing process and consultations (which includes
conferencing on effects to critical habitat for the streaked horned
lark off reservation lands) that have already occurred and/or are
ongoing will provide this benefit. Therefore, in this case we view this
benefit as redundant with the benefit the species will receive from
listing under the Act.
In summary, we believe that designating critical habitat on the
Shoalwater Bay Indian Reservation will provide only minimal additional
benefits for the streaked horned lark. Projects on these lands with a
Federal nexus (e.g., funded, authorized, or carried out by Federal
agencies, such as the U.S. Army Corps of Engineers) will require
section 7 consultation with the Service (regardless of critical habitat
designation) where the habitat is occupied or the species may otherwise
be affected. Furthermore, a high level of protection is already
provided on Shoalwater Bay Indian Reservation lands that meet the
definition of critical habitat by existing conservation, regulations,
and management. Ongoing coordination between the Service and the Tribe
has already raised the level of awareness about the subspecies, and we
believe our continued coordination with the Tribe will facilitate
development of species-specific management actions for these lands to
address the conservation of the streaked horned lark.
Benefits of Exclusion--Shoalwater Bay Tribe--Under Secretarial
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Act, we recognize that we must carry out our
responsibilities under the Act in a manner that harmonizes the Federal
trust responsibility to tribes and tribal sovereignty while striving to
ensure that tribes do not bear a disproportionate burden for the
conservation of listed species, so as to avoid or minimize the
potential for conflict and confrontation. In accordance with the
Presidential memoranda of April 29, 1994, and November 9, 2009, we
believe that, to the maximum extent possible, tribes are the
appropriate governmental entities to manage their lands and tribal
trust resources, and that we are responsible for strengthening
government-to-government relationships with tribes. Federal regulation
through critical habitat designation will adversely affect the tribal
working relationships we now have and which we are strengthening
throughout the United States. Maintaining positive working
relationships with tribes is key to implementing natural resource
programs of mutual interest, including habitat conservation planning
efforts. In light of the above-mentioned orders and for a variety of
other reasons described in their comment letters and communications,
critical habitat designation is typically viewed by tribes as an
unwarranted and unwanted intrusion into tribal self-governance.
In the case of proposed critical habitat for the streaked horned
lark (77 FR 61937; October 11, 2012), the Shoalwater Bay Tribe has
requested to ``remain excluded from any critical habitat designation.''
In their comments sent to the Service on April 3, 2013, the Tribe
stated that it is their goal to ``not only protect existing habitat for
native (coastal) species but to also increase and improve habitat'' and
to ``develop strategies for addressing threatened species and their
habitat'' on tribal lands. In their comments submitted during revisions
of critical habitat for the western snowy plover, the Tribe ``continues
to demonstrate its desire to protect threatened and/or endangered
species through its management and stewardship capabilities'' without
``externally defined designated critical habitat designations.'' The
Tribe stated that they wish to make ``their own determinations
regarding the Reservation and tribal trust resources'' and we note that
the Tribe has been able to provide for the streaked horned lark and
steps are being taken to continue that effort in the most effective way
possible. The Tribe has been working closely with the Willapa National
Wildlife Refuge for several years on collection, propagation, and
reintroduction of the native pink sand verbena (Abronia umbellata) and
is propagating this species at their greenhouse on the reservation.
This native plant has been extirpated in Washington and was recently
rediscovered on the refuge. Efforts to reintroduce this species along
coastal beaches that are currently occupied by the streaked horned lark
(including the refuge and tribal lands) have been successful and are
ongoing projects. The commitment by the Tribe to restore habitat for
this native plant and efforts to control invasive species such as
smooth cordgrass (Spartina alterniflora) supports their commitment to
protect habitat for streaked horned lark and strengthens the ongoing
partnership with the Service. In their comments to the Service on the
proposed rule, the Tribe indicated they would use their existing
regulations to protect streaked horned lark and its habitat. These
communications clearly indicate that designation of tribal trust
reservation lands as critical habitat for the streaked horned lark
would impact future conservation partnership opportunities with the
Tribe. Therefore, a critical habitat designation could potentially
damage our relationship with the Shoalwater Bay Tribe.
We believe significant benefits would be realized by excluding
lands managed by the Shoalwater Bay Indian Tribe from critical habitat.
These benefits include:
(1) Continuing and strengthening of our effective relationship with
the tribe to promote conservation of the streaked horned lark and its
habitat; and
(2) Allowing continued meaningful collaboration and cooperation in
working toward recovering this subspecies, including conservation
actions that might not otherwise occur.
[[Page 61555]]
Because the Tribe is the entity that enforces protective
regulations on tribal trust reservation land, and we have a working
relationship with them, we believe exclusion of these lands will yield
a significant partnership benefit. We will continue to work
cooperatively with the Tribe on efforts to conserve the streaked horned
lark. Therefore, excluding these lands from critical habitat provides
the significant benefit of maintaining and strengthening our existing
conservation partnerships and the potential of fostering new tribal
partnerships.
Benefits of Exclusion Outweigh Benefits of Inclusion--Shoalwater
Bay Indian Tribe--Based on the above considerations and consistent with
the direction provided in section 4(b)(2) of the Act, the Service has
determined that the benefits of excluding the above tribal lands
outweigh the benefits of including them as critical habitat. This
conclusion is based on the following factors. It is possible, although
unlikely, that Federal actions will be proposed that would be likely to
destroy or adversely modify the habitat proposed as critical within the
area governed by the Tribe. If such a project were proposed, due to the
specific way in which jeopardy and adverse modification are analyzed
for the streaked horned lark, discussed in detail earlier in this
document, it would likely also jeopardize the continued existence of
the subspecies. Few additional benefits are provided by including these
tribal lands in this critical habitat designation beyond what will be
achieved through the implementation of the existing tribal management
or conservation plans. In addition, we expect that the benefit of
informing the public of the importance of this area to streaked horned
lark conservation would be low.
We do not believe that inclusion of tribal lands will significantly
improve habitat protections for the streaked horned lark beyond what is
already provided for in the Tribe's own protective policies and
practices, discussed below.
The Tribe is working closely with the Corps and the Federal and
State resource agencies on the development of an Ecological Restoration
Plan for the Shoalwater Bay Tribe and have provided information
detailing how they are addressing the habitat needs of the streaked
horned lark on their lands and they are fully aware of the conservation
value of their lands for many coastal species of concern. There are
several benefits to excluding tribal lands. The long-standing and
distinctive relationship between the Federal and tribal governments is
defined by treaties, statutes, executive orders, judicial decisions,
and agreements, which differentiate tribal governments from the other
entities that deal with, or are affected by, the Federal government.
This relationship has given rise to a special Federal trust
responsibility involving the legal responsibilities and obligations of
the United States toward Indian Tribes and the application of fiduciary
standards of due care with respect to Indian lands, tribal trust
resources, and the exercise of tribal rights. Under these authorities,
Indian lands are recognized as unique and have been retained by Indian
Tribes or have been set aside for tribal use. These lands are managed
by Indian Tribes in accordance with tribal goals and objectives within
the framework of applicable treaties and laws.
Tribal lands are currently being managed on a voluntary basis in
cooperation with the Service and others to conserve the streaked horned
lark and achieve important conservation goals. We believe the streaked
horned lark benefits from the Tribe's voluntary management actions due
to their long-standing and broad application to tribal management
decisions. Tribal cooperation and support is required to continue
cooperative scientific efforts, to promote the recovery of the streaked
horned lark, and to implement proactive conservation actions. This need
for the tribal cooperation is especially acute because, in some cases,
populations exist only on areas of tribal management or only on tribal
lands. Future conservation efforts in this area require the continued
cooperation and support of the Tribe. Exclusion of tribal lands from
the critical habitat designation will help us maintain and improve our
partnership with the Tribe by formally recognizing their positive
contributions to streaked horned lark recovery, and by streamlining or
reducing unnecessary regulatory oversight.
Given the cooperative relationship between the Shoalwater Bay Tribe
and the Service, and all of the conservation benefits taken together,
we believe the additional regulatory and educational benefits of
including the tribal lands as critical habitat are relatively small.
The designation of critical habitat can serve to educate the public
regarding the potential conservation value of an area, but this goal is
already being accomplished through the identification of these areas in
the tribal management planning, development of tribal Fish and Wildlife
Codes, and through their outreach efforts.
Because of the ongoing relationship between the Service and the
Shoalwater Bay Tribe through a variety of forums, we find the benefits
of these coordination efforts to be greater than the benefits of
applying the Act's section 7 consultations for critical habitat to
Federal activities on tribal lands. Based upon our consultations with
the Tribes, we believe that designation of Indian lands as critical
habitat would adversely impact our working relationship and the
benefits resulting from this relationship.
In contrast, although the benefits of encouraging participation in
tribal management plans, and, more broadly, helping to foster
cooperative conservation are indirect, enthusiastic tribal
participation and an atmosphere of cooperation are crucial to the long-
term effectiveness of the endangered species program. Also, we have
concluded that the Tribe's voluntary conservation efforts will provide
tangible conservation benefits that will reduce the likelihood of
extinction and increase the likelihood for streaked horned lark
recovery. Therefore, we assign great weight to these benefits of
exclusion. To the extent that there are regulatory benefits of
including tribal lands in critical habitat, there would be associated
costs that could be avoided by excluding the area from designation. As
we expect the regulatory benefits to be low, we likewise give weight to
avoidance of those associated costs, as well as the additional
transaction costs related to section 7 compliance.
We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of Shoalwater Bay Tribe tribal trust reservation
lands as critical habitat for the streaked horned lark. We believe
past, present, and future coordination with the Shoalwater Bay Tribe
has provided and will continue to provide streaked horned lark habitat
conservation needs on tribal lands, such that there would be no
additional benefit from designation of critical habitat. Further,
because any potential impacts to the streaked horned lark from future
projects will be addressed through a section 7 consultation with us
under the jeopardy standard, we believe critical habitat designation on
the Shoalwater Bay Indian Reservation would largely be redundant with
the combined benefits of listing and existing tribal regulations and
management. Therefore, the benefits of designating critical habitat on
tribal trust reservation lands are not significant.
On the other hand, the benefits of excluding the Shoalwater Bay
Indian Reservation from critical habitat are significant. Exclusion of
these lands from critical habitat will help preserve and strengthen the
conservation
[[Page 61556]]
partnership we have developed with the Tribe and will foster future
partnerships and development of management plans; whereas inclusion
will negatively impact our relationships with the Tribe and other
tribes. We are committed to working with the Shoalwater Bay Tribe to
further the conservation of the streaked horned lark and other
endangered and threatened species on the reservation. The Tribe will
continue to use their existing regulatory structure to protect the
streaked horned lark and its habitat. The Tribe continues to provide
for indirect conservation of streaked horned lark habitat by
implementing conservation measures for other coastal species (such as,
the pink sand verbena) that have the same habitat requirements.
Therefore, in consideration of the relevant impact to our partnership
and our government-to-government relationship with the Shoalwater Bay
Indian Tribe, and the ongoing conservation management practices of the
Tribe and our current and future conservation partnerships with them,
we determined the significant benefits of exclusion outweigh the
benefits of inclusion in the critical habitat designation.
In summary, we find that excluding the Shoalwater Bay Tribe tribal
trust reservation lands from this revised final critical habitat will
preserve our partnership and may foster future habitat management and
species conservation plans with the Tribe now and in the future. These
partnership benefits are significant and outweigh the minimal
additional regulatory benefits of including these lands in final
critical habitat for the streaked horned lark.
Exclusion Will Not Result in Extinction of the Species--Shoalwater
Bay Tribe--We determined that the exclusion of 182 ac (74 ha) of tribal
trust reservation lands from the designation of streaked horned lark
critical habitat will not result in extinction of the subspecies. The
jeopardy standard of section 7 of the Act and routine implementation of
conservation measures through the section 7 process due to streaked
horned lark occupancy and protection provided by under Title 23 of the
Tribal Environmental Ordinances and their Ecosystem Restoration Plan
provide assurances that this subspecies will not go extinct as a result
of excluding these lands from the critical habitat designation.
Therefore, based on the above discussion the Secretary is exercising
her discretion to exclude approximately 182 ac (74 ha) of tribal trust
reservation lands managed by the Shoalwater Bay Tribe from this final
critical habitat designation.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Taylor's checkerspot butterfly and streaked
horned lark will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
these small entities are significant, we consider the types of
activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g.,
airports, agriculture, recreation, and habitat management). We apply
the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect Taylor's checkerspot butterfly and streaked horned
lark. Federal agencies
[[Page 61557]]
also must consult with us if their activities may affect critical
habitat. Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification'' Standard).
In our final economic analysis (FEA) of the critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listings of Taylor's checkerspot butterfly, streaked horned lark, and
four subspecies of Mazama pocket gopher and the designation of critical
habitat. The analysis is based on the estimated impacts associated with
the rulemaking as described in Appendix A of the FEA (IEc 2013, pp. A-
1-A-11) and evaluates the potential for economic impacts related to:
Military activities; recreation and habitat management; airport
operations and agricultural activities; transportation, electricity
distribution and forestry activities; and dredging, gravel mining,
development, and other activities. The FEA determined that critical
habitat designation will not result in impacts to small entities for
the following activities (IEc 2013, p. A-4):
(1) Military activities. As the affected base, JBLM is a Federal
entity and it is, by definition, not small, and thus no impacts to
small entities are expected.
(2) Transportation. The impacts are limited to Washington State
Department of Transportation. As State agencies are, by definition, not
small, no impacts to small entities are expected related to
transportation.
(3) Electricity Distribution and Forestry Activities. The only
electricity distribution activity within the proposed critical habitat
is carried out by the Bonneville Power Administration (BPA), which is a
Federal entity and, therefore, is not considered small. As such, there
are no anticipated impacts to small entities related to BPA's
electricity distribution activities. No incremental costs are
anticipated for forestry activities and thus no impact to small
entities related to forestry is anticipated.
(4) Dredging. Dredging is conducted by the U.S. Army Corps of
Engineers, which is a Federal entity and is, by definition, not small,
and thus no impacts to small entities are expected.
Estimated incremental impacts that may be borne by small entities
are limited to the administrative costs of section 7 consultation
related to airport operations and agriculture as well as by recreation
and habitat restoration. Potential impacts on these sectors are
evaluated here:
Airport Operations and Agriculture. Chapter 3 of the FEA discuss
the potential for the critical habitat designations to affect airports
and agricultural activities. Overall, 214 consultations would be
expected in relation to operations at 7 airports over the next 20
years. Information on whether airports are large or small entities was
available for some airports and not for others. For the purposes of the
analysis, we made the conservative assumption that all airports within
the proposed critical habitat are small entities. These seven entities
represent 3 percent of the total small Other Airport Operations (NAICS
code 488119) entities within the proposed critical habitat. The cost
per entity, per consultation, to participate in forecast consultation
is approximately $875 to $8,750 in any given year. The full cost to a
third party of a single consultation is $875. If we assume that a
single entity participates in multiple consultations in a single year,
the administrative costs of such activity are likely to be less than 1
percent of annual revenues (IEc 2013, p. A-5).
We forecast two projects related to agriculture, one at Rock
Prairie and one on M-DAC farms, which may involve small entities.
Assuming that all agriculture and grazing impacts are borne by these
two small entities, this amounts to less than one affected entity per
year. The per entity impact, ranging from approximately $875 to $1,750,
represents less than 2 percent of annual revenues (IEc 2013, p. A-5).
Recreation and Habitat Management. A diverse group of Federal and
State agencies, county-level governments, and private nonprofit
organizations may be subject to the administrative burden of
consultations associated with recreation and habitat management.
However, of these, the Federal, State, and county-level governments are
not considered small entities. Therefore, there are three projects
within the proposed critical habitat that may involve private nonprofit
organizations that qualify as small entities--Wolf Haven International,
Whidbey/Camano Land Trust, and the Pacific Rim Institute for
Environmental Stewardship. Assuming that all recreation and habitat
restoration impacts are borne by these small private entities, this
amounts to less than one affected entity per year. The per entity
impact, ranging from approximately $875 to $2,625 in any given year,
represents less than 1 percent of annual revenues (IEc 2013, p. A-6).
Recreators at JBLM may incur unquantified losses in economic
surplus in the form of reduced or restricted recreational use of JBLM
lands proposed as critical habitat. However, because the recreators
leasing JBLM lands are individuals, not entities, we do not address
these impacts in this analysis.
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities
(IEc 2013, p. A-7). Based on the above reasoning and currently
available information, we conclude that this rule will not result in a
significant economic impact on a substantial number of small entities.
Therefore, we are certifying that the designation of critical habitat
for the Taylor's checkerspot butterfly and streaked horned lark will
not have a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The economic analysis finds that none of these criteria is relevant
to this analysis. Thus, based on information in the economic analysis,
energy-related impacts associated with Taylor's checkerspot butterfly
and streaked horned lark conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
[[Page 61558]]
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments. The designation of critical habitat does not
impose a legally binding duty on non-Federal Government entities or
private parties. Under the Act, the only regulatory effect is that
Federal agencies must ensure that their actions do not destroy or
adversely modify critical habitat under section 7. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Therefore, this rule does not place an enforceable duty upon State,
local, or Tribal governments, or on the private sector.
Consequently, we do not believe that the critical habitat
designation will significantly or uniquely affect small government
entities. As such, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Taylor's checkerspot butterfly and streaked horned
lark in separate takings implications assessments. As discussed above,
the designation of critical habitat affects only Federal actions.
Although private parties that receive Federal funding, assistance, or
require approval or authorization from a Federal agency for an action
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Critical habitat
designation does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward. The
takings implications assessment concludes that this designation of
critical habitat for Taylor's checkerspot butterfly and streaked horned
lark does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in Washington and Oregon. We
received comments from WDFW and solicited, but did not receive,
comments from ODFW. We addressed the comments from WDFW in the Summary
of Comments and Recommendations section of this rule, and we have
incorporated informal comments and feedback from ODFW into this rule.
The designation of critical habitat in areas currently occupied by
Taylor's checkerspot butterfly and streaked horned lark imposes no
additional restrictions to those put in place by the subspecies'
listings and, therefore, has little incremental impact on State and
local governments and their activities. The designation of critical
habitat in areas currently unoccupied by Taylor's checkerspot butterfly
may impose nominal additional regulatory restrictions to those
currently in place and, therefore, may have little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments in that the areas that
contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) will be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial
[[Page 61559]]
system and that it meets the applicable standards set forth in sections
3(a) and 3(b)(2) of the Order. We are designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, the rule identifies the
elements of physical or biological features essential to the
conservation of Taylor's checkerspot butterfly and streaked horned
lark. The designated areas of critical habitat are presented on maps,
and the rule provides several options for the interested public to
obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
In the proposed rule to designate critical habitat published in the
Federal Register on October 11, 2012 (77 FR 61938), we proposed to
designate about 661 ac (267 ha) of critical habitat for the streaked
horned lark in subunit 3-C Shoalwater/Graveyard Spit, of which about
182 ac (74 ha) was identified as within the Shoalwater Bay Indian
Reservation. These lands are occupied by the streaked horned lark and
meet our definition of critical habitat for the subspecies. We
indicated that we were considering exclusion of the Shoalwater Bay
tribal lands from the designation, due to the high degree of protection
already provided by the Tribe. We coordinated with the Tribe to better
understand their conservation management plans for this area, and
specifically for the streaked horned lark. After further review and
additional information provided by the Shoalwater Bay Tribe, the
Secretary determined that the benefits of excluding these tribal lands
outweigh the benefits of including them in critical habitat for the
streaked horned lark, and further concluded that such exclusion will
not result in the extinction of the subspecies. As a result, the
Secretary is exercising her discretion to exclude the 182 ac (74 ac) of
Shoalwater Bay Tribal lands from the final designation under section
4(b)(2) of the Act (for details, see the Exclusions section of this
document, above).
References Cited
A complete list of all references cited is available on the
Internet at https://www.regulations.gov and upon request from the
Service's Washington Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Washington and Oregon Fish and Wildlife Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, 100 Stat.
3500; unless otherwise noted.
0
2. Amend Sec. 17.95 by:
0
(a) In paragraph (b), adding an entry for ``Streaked horned lark
(Eremophila alpestris strigata)'' in the same order that this species
appears in the table in Sec. 17.11(h); and
0
(b) In paragraph (i), by adding an entry for ``Taylor's checkerspot
butterfly (Euphydryas editha taylori)'' in the same order that this
species appears in the table in Sec. 17.11(h).
The additions read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Streaked horned lark (Eremophila alpestris strigata)
(1) Critical habitat units are depicted for Grays Harbor, Pacific,
and Wahkiakum Counties in Washington, and Clatsop, Columbia, Marion,
Polk, and Benton Counties in Oregon, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
streaked horned lark consist of areas having a minimum of 16 percent
bare ground that have sparse, low-stature vegetation composed primarily
of grasses and forbs less than 13 inches (33 centimeters) in height
found in:
(i) Large (300-acre (120-hectare)), flat (0-5 percent slope) areas
within a landscape context that provides visual access to open areas
such as open water or fields; or
(ii) Areas smaller than described in paragraph (2)(i) of this
entry, but that provide visual access to open areas such as open water
or fields.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 4, 2013.
(4) Critical habitat map units. Data layers defining map units were
created on 2010 aerial photography from U.S. Department of Agriculture,
National Agriculture Imagery Program base maps
[[Page 61560]]
using ArcMap (Environmental Systems Research Institute, Inc.), a
computer geographic information system (GIS) program. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's Internet site (https://www.fws.gov/wafwo), at https://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009, and by
appointment at the Service's Washington Fish and Wildlife Office. You
may obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Index map of critical habitat units for the streaked horned
lark follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR03OC13.000
[[Page 61561]]
(6) Unit 3--Washington Coast and Columbia River Islands, Washington
and Oregon.
(i) Subunit 3-A: Damon Point/Oyhut, Washington. Map of Subunit 3-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.001
[[Page 61562]]
(ii) Subunit 3-B: Midway Beach, Washington. Map of Subunit 3-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.002
[[Page 61563]]
(iii) Subunit 3-C: Shoalwater, Washington. Map of Subunit 3-C
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.003
[[Page 61564]]
(iv) Subunit 3-D: Leadbetter Point, Washington. Map of Subunit 3-D
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.004
[[Page 61565]]
(v) Subunit 3-E: Rice Island, Oregon/Washington. Map of Subunit 3-E
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.005
[[Page 61566]]
(vi) Subunit 3-F: Miller Sands, Oregon. Map of Subunit 3-F follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.006
[[Page 61567]]
(vii) Subunit 3-G: Pillar Rock/Jim Crow Sands, Oregon. Map of
Subunit 3-G follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.007
[[Page 61568]]
(viii) Subunit 3-H: Welch Island, Oregon. Map of Subunit 3-H
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.008
[[Page 61569]]
(ix) Subunit 3-I: Tenasillahe Island, Oregon. Map of Subunit 3-I
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.009
[[Page 61570]]
(x) Subunit 3-J: Whites/Brown Island, Washington. Map of Subunit 3-
J follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.010
[[Page 61571]]
(xi) Subunit 3-K: Wallace Island, Oregon. Map of Subunit 3-K
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.011
[[Page 61572]]
(xii) Subunit 3-L: Crims Island, Oregon. Map of Subunit 3-L
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.012
[[Page 61573]]
(xiii) Subunit 3-M: Sandy Island, Oregon. Map of Subunit 3-M
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.013
[[Page 61574]]
(7) Unit 4--Willamette Valley, Oregon.
(i) Subunit 4-A: Baskett Slough NWR, Oregon. Map of Subunit 4-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.014
[[Page 61575]]
(ii) Subunit 4-B: Ankeny NWR, Oregon. Map of Subunit 4-B follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.015
[[Page 61576]]
(iii) Subunit 4-C: William L. Finley NWR, Oregon. Map of Subunit 4-
C follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.016
* * * * *
(i) Insects.
* * * * *
Taylor's Checkerspot Butterfly (Euphydryas editha taylori)
(1) Critical habitat units are depicted for Island, Clallam, and
Thurston Counties in Washington, and in Benton County in Oregon, on the
maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Taylor's checkerspot butterfly consist of four components:
(i) Patches of early seral, short-statured, perennial bunchgrass
plant
[[Page 61577]]
communities composed of native grass and forb species in a diverse
topographic landscape ranging in size from less than 1 ac up to 100 ac
(0.4 to 40 ha) with little or no overstory forest vegetation that have
areas of bare soil for basking that contain:
(A) In Washington and Oregon, common bunchgrass species found on
northwest grasslands include Festuca roemeri (Roemer's fescue),
Danthonia californica (California oat grass), Koeleria cristata
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra
(rough bentgrass), and on cooler, high-elevation sites typical of
coastal bluffs and balds, Festuca rubra (red fescue).
(B) On moist grasslands found near the coast and in the Willamette
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less
abundant forbs found on the grasslands include, but are not limited to,
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and
sickle-keeled lupine (Lupinus albicaulis).
(ii) Primary larval host plants (narrow-leaved plantain and harsh
paintbrush) and at least one of the secondary annual larval host plants
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several
species of speedwell (marsh speedwell (Veronica scutella), American
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V.
serpyllifolia).
(iii) Adult nectar sources for feeding that include several species
found as part of the native (and one nonnative) species mix on
northwest grasslands, including: narrow-leaved plantain; harsh
paintbrush; Puget balsam root; woolly sunshine; nine-leaved desert
parsley; fine-leaved desert parsley or spring gold; common camas; showy
fleabane; Canada thistle; common yarrow; prairie lupine; sickle-keeled
lupine; and wild strawberry (Fragaria virginiana).
(iv) Aquatic features such as wetlands, springs, seeps, streams,
ponds, lakes, and puddles that provide moisture during periods of
drought, particularly late in the spring and early summer. These
features can be permanent, seasonal, or ephemeral.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, railroad tracks, and other paved
areas) and the land on which they are located existing within the legal
boundaries on November 4, 2013.
(4) Critical habitat map units. Data layers defining the map unit
were created on 2010 aerial photography from U.S. Department of
Agriculture, National Agriculture Imagery Program base maps using
ArcMap (Environmental Systems Research Institute, Inc.), a computer
geographic information system (GIS) program. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's Internet site (https://www.fws.gov/wafwo/), at https://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009), and by
appointment at the Service's Washington Fish and Wildlife Office. You
may obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
[[Page 61578]]
(5) Index map of critical habitat units for the Taylor's
checkerspot butterfly follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.017
[[Page 61579]]
(6) Unit 1: South Sound, Washington.
(i) Subunit 1-A: Rocky Prairie, Washington. Map of Subunit 1-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.018
[[Page 61580]]
(ii) Subunit 1-B: Tenalquot Prairie, Washington. Map of Subunit 1-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.019
[[Page 61581]]
(iii) Subunit 1-C: Glacial Heritage, Washington. Map of Subunit 1-C
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.020
[[Page 61582]]
(iv) Subunit 1-D: Rock Prairie, Washington. Map of Subunit 1-D
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.021
[[Page 61583]]
(v) Subunit 1-E: Bald Hill, Washington. Map of Subunit 1-E follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.022
[[Page 61584]]
(7) Unit 2: Strait of Juan de Fuca, Washington.
(i) Subunit 2-A: Deception Pass, Washington. Map of Subunit 2-A
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.023
[[Page 61585]]
(ii) Subunit 2-B: Central Whidbey, Washington. Map of Subunit 2-B
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.024
[[Page 61586]]
(iii) Subunit 2-C: Elwha, Washington. Map of Subunit 2-C follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.025
[[Page 61587]]
(iv) Subunit 2-D: Sequim, Washington. Map of Subunit 2-D follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.026
[[Page 61588]]
(v) Subunit 2-E: Dungeness, Washington. Map of Subunit 2-E follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.027
[[Page 61589]]
(8) Unit 4: Willamette Valley, Oregon.
(i) Subunit 4-D: Fitton Green-Cardwell Hill, Oregon.
(ii) Map of Subunit 4-D follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.028
* * * * *
Dated: September 19, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-23552 Filed 10-2-13; 8:45 am]
BILLING CODE 4310-55-C
