Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bi-State Distinct Population Segment of Greater Sage-Grouse, 64327-64355 [2013-24305]

Download as PDF Vol. 78 Monday, No. 208 October 28, 2013 Part III Department of the Interior wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bi-State Distinct Population Segment of Greater SageGrouse; Proposed Rule VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28OCP3.SGM 28OCP3 64328 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R8–2013–0042; 4500030114] RIN 1018–AZ70 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Bi-State Distinct Population Segment of Greater SageGrouse Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service, propose to designate critical habitat for the the Bi-State distinct population segment (DPS) of greater sage-grouse (Centrocercus urophasianus) under the Endangered Species Act (Act). In total, approximately 755,960 hectares (1,868,017 acres) fall within the boundaries of the proposed critical habitat designation in Carson City, Lyon, Douglas, Mineral, and Esmeralda Counties, Nevada, and Alpine, Mono, and Inyo Counties, California. If we finalize this rule as proposed, it would extend the Act’s protections to this DPS’s critical habitat. DATES: Comment Submission: We will accept comments received or postmarked on or before December 27, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by December 12, 2013. Public Meeting: Two public meetings will be held on this proposed rule: (1) November 5, 2013, from 4:00 p.m. to 6:00 p.m. (Pacific Time); and (2) November 6, 2013, from 1:00 p.m. to 3:00 p.m. (Pacific Time). People needing reasonable accommodations in order to attend and participate in the public hearing should contact Jeannie Stafford, Nevada Fish and Wildlife Office, as soon as possible (see FOR FURTHER INFORMATION CONTACT). ADDRESSES: Comment Submission: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS–R8–ES–2013– wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 SUMMARY: VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 0042, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R8–ES–2013– 0042; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042–PDM; Arlington, VA 22203. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information). Public Meetings: The November 5, 2013, public meeting will be held at the Tri-County Fairgrounds, Home Economics Room, Sierra Street and Fair Drive, Bishop, CA 93514. The November 6, 2013, public meeting will be held at the Smith Valley Community Center, 2783 State Route 208, Wellington, NV 89444. Details of Units: 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 www.regulations.gov at Docket No. FWS–R8–ES–2013–0042, the Reno Fish and Wildlife Office or on their Web site at https://www.fws.gov/nevada/, and at the Ventura Fish and Wildlife Office or on their Web site at https://www.fws.gov/ ventura/ (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Fish and Wildlife Service Web sites and Field Offices set out above, and may also be included in the preamble or at https://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: For general information on the proposed critical habitat designation as well as information about the proposed critical habitat specific to Nevada (Carson City, Lyon, Douglas, Mineral, and Esmeralda Counties), contact Edward D. Koch, State Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502; telephone 775– 861–6300; or facsimile 775–861–6301. For information about the proposed critical habitat specific to California (Alpine, Mono, and Inyo Counties), contact Diane Noda, Field Supervisor, PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 or Carl Benz, Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone 805–644–1766; facsimile 805–644–3958. 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. Elsewhere in today’s Federal Register, we propose to list the Bi-State DPS of greater sage-grouse as a threatened species under the Endangered Species Act. Under the Act, critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Designations and revisions of critical habitat can be completed only by issuing a rule. This rule proposes to designate critical habitat for the Bi-State DPS of greater sage-grouse (hereafter referred to as the Bi-State DPS of greater sagegrouse or the Bi-State DPS). Based on our proposal to list the Bi-State DPS as a threatened species, we are proposing critical habitat for the Bi-State DPS under the Act. In total, approximately 755,960 hectares (ha) (1,868,017 acres (ac)) are being proposed for designation as critical habitat in Carson City, Lyon, Douglas, Mineral, and Esmeralda Counties in Nevada, and Alpine, Mono, and Inyo Counties in California. The basis for our action. Under the Endangered Species Act, any species that is determined to be an endangered or threatened species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. 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 he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless 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. We are preparing an economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we are preparing an E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 analysis of the economic impacts of the proposed critical habitat designation and related factors. We will announce the availability of the draft economic analysis as soon as it is completed, at which time we will seek additional public review and comment. We will seek peer review. We are seeking comments from independent specialists to ensure that our critical habitat proposal is based on scientifically sound data and analyses. We have invited these peer reviewers to comment on our specific assumptions and conclusions in this listing proposal. A thorough review of information that we relied on in making this determination—including information on taxonomy, habitat, distribution, population estimates and trends, and potential threats—is presented in the BiState DPS Species Report available at https://www.regulations.gov (Docket No. FWS–R8–ES–2013–0042). A summary of this analysis is found within the proposed listing rule published elsewhere in today’s Federal Register. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned government agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning: (1) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent. (2) Specific information on: (a) The amount and distribution of the Bi-State DPS’s habitat; (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the DPS, should be included in the designation and why; (c) The features essential to the conservation of the Bi-State DPS as described in the Physical and Biological VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 Features section of this rule, in particular the currently unsuitable or less than suitable habitat that accommodates restoration identified in the Bi-State Action Plan (i.e., actions HIR1–1–PN, HIR–1–2–PN, HIR1–1– DCF, HIR1–2–DCF, HIR1–1–MG, HIR1– 1–B, and HIR1–3–SM) (Bi-State Technical Advisory Committee (TAC) 2012, pp. 93–95). (d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and (e) What areas not occupied at the time of listing are essential for the conservation of the DPS and why. (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (4) Information on the projected and reasonably likely impacts of climate change on the Bi-State DPS and proposed critical habitat. (5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation; in particular, we seek information on any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts. (6) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act, in particular lands managed or utilized by the Department of Defense (U.S. Marine Corps’ Mountain Warfare Training Center) and by the Los Angeles Water and Power District (LAPWD). (7) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in the ADDRESSES section. We will post your entire comment— including your personal identifying information—on https:// www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 64329 however, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Previous Federal Actions All previous Federal actions are described in the proposal to list the BiState DPS as a threatened species under the Act, which is published elsewhere in today’s Federal Register. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided 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 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 E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64330 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules 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 is 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 and 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. We designate critical habitat in areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts’ opinions or personal knowledge. 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, would 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 ensure 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 would continue to contribute to recovery of this species. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Similarly, critical habitat designations made on the basis of the best available information at the time of designation would 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. For the purposes of this proposed rule, we discuss the biology of the BiState DPS, its habitat, population abundance information, and other physical, biological, or geographical information within the context of the local management units (Population Management Units (PMUs)) used by the various land management agencies within the range of the DPS. Six PMUs were established in 2001 as management tools for defining and monitoring sage-grouse distribution in the Bi-State area (Sage-Grouse Conservation Planning Team 2001, p. 31). The PMU boundaries are based on aggregations of leks (communal breeding areas), known seasonal habitats, and telemetry data, which represent generalized subpopulations or local breeding complexes. The six PMUs (north to south) include: Pine Nut, Desert Creek-Fales, Bodie, Mount Grant, South Mono, and White Mountains PMUs. These six PMUs represent a total of four to eight demographically independent populations with a combined total of approximately 43 active leks (Service 2013a, pp. 17–20). Please see the proposed listing rule published elsewhere in today’s Federal Register or the Species Report (Service 2013a, entire) available at https:// www.regulations.gov under Docket No. FWS–R8–ES–2013–0042 for more background information related to these PMUs. Additionally, the PMUs are identified in the Proposed Regulation Promulgation section of this proposed rule. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 (2) Such designation of critical habitat would not be beneficial to the species. There is currently no imminent threat of take attributed to collection or vandalism according to the analysis presented in the Species Report (Service 2013a, entire) and summarized in our proposed rule to list the Bi-State DPS as threatened (published elsewhere in today’s Federal Register). Identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, then a prudent finding is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the DPS. Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the DPS and may provide some measure of benefit, we find that designation of critical habitat is prudent for the Bi-State DPS. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the eight species is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the Bi-State DPS is located. This and other information represent the best scientific data available and lead us to conclude that the designation of critical habitat is determinable for the Bi-State DPS. VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 Physical or Biological Features In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), 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 that are 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 historic, geographical, and ecological distributions of a species. We derive the specific physical or biological features essential for the BiState DPS from studies of this species’ habitat, ecology, and life history as summarized in the proposed listing rule published elsewhere in today’s Federal Register, and in greater detail in the Species Report (Service 2013a, entire) available at https://www.regulations.gov (in the Search box, enter FWS–R8–ES– 2013–0042, which is the docket number for this rulemaking). We have determined that the following physical or biological features are essential to the conservation of the Bi-State DPS of greater sage-grouse: Space for Individual and Population Growth and for Normal Behavior The Bi-State DPS of greater sagegrouse require large, interconnected expanses of sagebrush plant communities that contain a healthy understory composed primarily of native, herbaceous vegetation (Patterson 1952, p. 9; Knick et al. 2003, p. 623; Connelly et al. 2004, pp. 4–15; Pyke 2011, p. 532; Wisdom et al. 2011, entire). The Bi-State DPS uses a variety of habitats throughout its lifecycle, such as riparian and upland meadows, riparian areas with a shrub component, agricultural lands, and steppe dominated by native grasses and forbs. However, the Bi-State DPS of greater sage-grouse is considered a sagebrush obligate because of its near complete reliance on sagebrush as forage during the winter. In addition, the use of nonsagebrush habitats is contingent on the presence of sagebrush habitats in close PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 64331 proximity (Patterson 1952, p. 42; Braun et al. 1976, p. 168; Schroeder et al. 1999, pp. 4, 5; Connelly et al. 2000a, pp. 970– 972; Connelly et al. 2004, pp. 4–1, 4–18, and references therein; Connelly et al. 2011b, p. 80; Casazza et al. 2011, p. 159). The Bi-State DPS of greater sagegrouse moves seasonally among various sagebrush-dominated vegetation communities. These moves are driven by breeding activities, nest and broodrearing site requirements (such as mesic meadows or spring habitats (see also the ‘‘Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements’’ section below)), seasonal changes in the availability of food resources, and response to weather conditions. Research findings have parsed the annual life cycle of greater sage-grouse into more or less unique seasonal habitat requirement categories, but in general annual habitat use can be categorized into three seasons (although these do not have to be mutually exclusive): (1) Breeding, (2) broodrearing summer, and (3) winter, as well as the pathways that link these habitats together (Connelly et al. 2011b, pp. 71– 80). Research on greater sage-grouse suggests the species exhibits strong site fidelity (loyalty to a particular area) to migration corridors and seasonal habitats, including breeding, nesting, brood-rearing, and wintering areas, even when a particular area may no longer be of value (Connelly et al. 2004, p. 3–1; Connelly et al. 2011b, p. 82). Available data suggest birds within the Bi-State DPS appear to conform with this understanding (Weichman 2012, unpublished data; P. Coates 2012, pers. comm.). Adult greater sage-grouse rarely switch inter-annual use among these seasonal habitats once they have been selected, limiting the species’ adaptability to habitat changes (Berry and Eng 1985, pp. 238–240; Fischer et al. 1993, p. 1039; Holloran and Anderson 2005, p. 749; Connelly et al. 2011b, p. 82). Estimating an average annual home range size for the Bi-State DPS is difficult due to the large variation in sage-grouse movements both within and among populations. These variations are related to the spatial availability of habitats required for seasonal use as well as individual bird behavior. The pattern and scale of annual movements among populations of greater sagegrouse within the Bi-State area, and the degree to which a given habitat patch can fulfill the species’ annual habitat needs, are dependent on the arrangement and quality of habitats across the landscape. Habitat structure and quality vary spatially over the E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64332 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules landscape; therefore, some areas may provide habitat for a single season, while other areas may provide habitat for one or more seasons (Connelly et al. 2011a; p. 59). In addition, plant community dynamics and natural or anthropogenic disturbance also result in a temporal component of habitat variability and suitability. Across the DPS, fine-scale habitat structure data on which to delineate seasonal habitats currently do not exist. In the Bi-State area, greater sagegrouse home range size varies from 608 to 24,800 ha (0.9 to over 94.9 square miles) (Casazza et al. 2009, p. 8; U.S. Geological Survey (USGS) 2012, unpublished data). Variation occurs among individuals as well as among populations, presumably due in part to behavior and juxtaposition of seasonal habitats (Connelly et al. 2011a, p. 59). Migratory movements (defined in Connelly et al. (2000a, p. 969) as moving more than 10 kilometers (km) (6 miles (mi)) between seasonal habitats) are uncommon among most individuals in the Desert Creek-Fales, Bodie, South Mono, and White Mountains PMUs; however, within these areas some individuals make seasonal movements that exceed this migratory definition (Casazza et al. 2009, p. 8). Further, recent research in the Pine Nut PMU has documented typical movements between breeding and brood-rearing summer habitats of greater than 40 km (24 mi), with at least one individual moving in excess of 160 km (100 mi) from its lek of capture to summer and winter habitats (USGS 2012, unpublished data). While not typical, the extensive migratory movements in the the Pine Nut PMU demonstrate the importance of migratory behaviors for the Bi-State DPS and the potential large-scale annual habitat requirements of the species. Migratory behavior is generally slow and meandering (flying or walking less than 1 km (0.6 mi) per day); however, more rapid movements are known and local migratory flights can occur (Dunn and Braun 1986, p. 89), including in the Bi-State area (USGS 2012, unpublished data). Migratory behavior in a population can have important ramifications on population dynamics (Berryman 2002, p. 441). Juvenile sagegrouse that moved farther distances to seasonal habitats had lower overall survival than did juveniles that moved relatively short distances (Beck et al. 2006, p. 1076). Thus, in populations where large movements are necessary to access seasonal habitat, an increased cost in terms of increased mortality may be incurred (Connelly et al. 2011a, p. 67). VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 Therefore, based on the species’ yearround reliance on sagebrush and the various seasonal habitat requirements discussed above, we identify sagebrush plant communities and interspersed mesic areas of sufficient size and configuration to be a physical or biological feature essential to the conservation of this species. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Food resources used by the Bi-State DPS vary throughout the year because of seasonal changes in food availability and specific dietary requirements of adults and chicks. Greater sage-grouse diet is composed of nearly 100 percent sagebrush in the winter, while forbs, insects, and sagebrush are important dietary components during the remainder of the year (Wallestad et al. 1975, p. 629; Barnett and Crawford 1994, p. 117; Schroeder et al. 1999, p. 5; Gregg et al. 2006, pp. 475–476). Pre-laying hens are particularly dependent on forbs and the insects supported by native herbaceous understories (Drut et al. 1994, pp. 173– 175; Barnett and Crawford 1994, p. 117; Coggins 1998, p. 30). This pre-laying period is from approximately late-March to early April. While limited information is available on pre-nesting habitat selection, pre-laying habitats for female sage-grouse need to provide a diversity of vegetation including forbs that are rich in calcium, phosphorous, and protein to meet the nutritional needs of females during the egg development period (Barnett and Crawford 1994, p. 117; Connelly et al. 2000a, p. 970). During the pre-laying period, female sage-grouse select forbs that generally have higher amounts of calcium and crude protein than sagebrush (Barnett and Crawford 1994, p. 117). Forbs and insects are essential nutritional components for Bi-State DPS sage-grouse chicks and for brood-rearing sage-grouse (Klebenow and Gray 1968, pp. 81–83; Peterson 1970, pp. 149–151; Johnson and Boyce 1991, p. 90; Connelly et al. 2004, p. 3–3; Dahlgren et al. 2006, p. 981; Aldridge and Boyce 2007, pp. 522–523; Casazza et al. 2011, pp. 158–159). During the first 3 weeks after hatching, insects are a critical food source of chicks (Patterson 1952, p. 201; Klebenow and Gray 1968, p. 81; Peterson 1970, pp. 150–151; Johnson and Boyce 1990, pp. 90–91; Johnson and Boyce 1991, p. 92; Drut et al. 1994, p. 93; Pyle and Crawford 1996, p. 320; Fischer et al. 1996a, p. 194). Diets of 4to 8-week-old greater sage-grouse chicks were found to have more plant material PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 as the chicks matured (Peterson 1970, p. 151). Succulent forbs are predominant in the diet until chicks exceed 3 months of age, at which time sagebrush becomes a major dietary component (Klebenow 1969, pp. 665–656; Connelly and Markham 1983, pp. 171–173; Fischer et al. 1996b, p. 871; Schroeder et al. 1999, p. 5). Decreased availability of forbs corresponds to a decrease in the probability of successfully fledging offspring, number of chicks per female, and brood size (Barnett and Crawford 1994, p. 117; Dahlgren et al. 2006, p. 981; Aldridge and Boyce 2007, pp. 522– 523; Casazza et al. 2011, pp. 158–159). Population dynamics of greater sagegrouse are sensitive to adult survival, female reproductive success, and chick survival (Blomberg et al. 2012, pp. 11– 12). Therefore, habitats that support sagebrush vegetation as well as a vegetative understory composed of native grasses and forbs are essential to key demographic rates. In most areas within the range of BiState DPS, the herbaceous understory component of sagebrush plant communities dries out as summer progresses. Habitats used by greater sage-grouse in summer through late fall are typically more mesic than surrounding habitats. These areas are used primarily for foraging because they provide reliable sources of green, herbaceous vegetation when this resource is seasonally limited on the landscape (Connelly et al. 2011b, pp. 76–77 and references therein). Specifically, these areas include: nonwooded riparian communities, springs, seeps, mesic upland meadows, or the margins of irrigated hay meadows and alfalfa fields (Casazza et al. 2011, pp. 162–163; Connelly et al. 2011b, pp. 76– 77 and references therein). However, brood-rearing habitats are selected for and provide for an increased probability of successful recruitment when sites have adequate perennial forb cover and plant species richness, adequate meadow to sagebrush edge (ratio of perimeter to area), and are farther from woodlands (Casazza et al. 2011, pp. 162–163). In winter, greater sage-grouse diet is almost exclusively sagebrush, although various species of sagebrush can be consumed (Rasmussen and Griner 1938, p. 855; Batterson and Morse 1948, p. 20; Patterson 1952, pp. 197–198; Wallestad et al. 1975, pp. 628–629; Remington and Braun 1985, pp. 1056–1057; Welch et al. 1988, p. 276; Welch et al. 1991, p. 462; Myers 1992, p. 55; Connelly et al. 2000a, p. 972). While limited data are available on winter habitat use in the BiState area, characteristics appear similar E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (Corvus brachyrhynchos), magpies (Pica spp.), and domestic cows (Bovus spp.) (Coates et al. 2008, pp. 425–426). Coates (2012, pers. comm.) suggests that common ravens are likely the most prolific nest predator in the Bi-State area. While greater sage-grouse in the BiState DPS are depredated by a variety of predators across all life stages, they are not considered primary-prey for any one predator species. The top predators in the Bi-State area (i.e., golden eagles, coyotes, bobcats, and common ravens) are considered generalists and focus more heavily on small mammals. Nest predation is influenced by the amount of cover surrounding the nest (Gregg et al. 1994, p. 164; Braun 1995, pp. 1–2; DeLong et al. 1995, p. 90; Braun 1998, p. 149; Coggins 1998, p. 30; Connelly et al. 2000a, p. 975; Schroeder and Baydack 2001, p. 25; Coates and Delehanty 2008, p. 636; Kolada et al. 2009b, p. 1343). Females actively select nest sites with the presence of big sagebrush (Artemisia tridentata Nutt. ssp.), grass, and forb cover (Connelly et al. 2000a, p. 971), and nesting success of greater sage-grouse is positively correlated with these qualities (Schroeder and Baydack 2001, p. 25; Hagen et al. 2007, p. 46; Kolada et al. 2009b, p. 1343). In general, vegetation characteristics of successful nest sites Cover or Shelter include sagebrush canopy cover of Predation is the most commonly greater than 15 percent, sagebrush identified cause of direct mortality for heights of 30 to 80 centimeters (cm) greater sage-grouse during all life stages (11.8 to 31.5 in), grass and forb heights and the species relies on sagebrush and of 18 cm (7.1 in), and grass and forb herbaceous vegetation yearlong for cover of greater than 15 percent escape and hiding cover (Schroeder et (Connelly et al. 2000a, p. 977). While al. 1999, p. 9; Connelly et al. 2000b, p. cover (canopy cover or shrubs, and 228; Connelly et al. 2011a, p. 66). While understory cover or herbaceous plants) limited data are available on specific positively influences nesting success, predators in the Bi-State area, known the most important type of cover and potential predators of adult birds appears variable across the range of the include golden eagle (Aquila greater sage-grouse (Connelly et al. chrysaetos), coyote (Canis latrans), 2000a, p. 971; Coates 2007, p. 148). In American badger (Taxidea taxus), and the Bi-State area, shrub canopy cover bobcat (Felis rufus) (Hartzler 1974, pp. appears to be most influential to both 532–536; Schroeder et al. 1999, pp. 10– nest-site selection and nesting success 11; Schroeder and Baydack 2001, p. 25; (Kolada et al. 2009a, p. 1336; Kolada et Rowland and Wisdom 2002, p. 14; al. 2009b, p. 1343). Hagen 2011, p. 97). Most raptor Furthermore, vegetation other than predation of greater sage-grouse is on sagebrush (i.e., understory vegetation juveniles and adult age classes during and other herbaceous cover) have a the breeding and late brood-rearing significant positive impact on nest periods when birds are more success (Kolada et al. 2009b, p. 1343). While not readily apparent in the Biconspicuous and associated with more State area (Kolada et al. 2009b, p. 1344), sparsely vegetated sites (Hagen 2011, p. 96). Juvenile greater sage-grouse also are both understory cover and height has been shown to influence nest success killed by common ravens (Corvus across the range of the greater sagecorax), American badgers, coyotes, and grouse (Gregg 1994, p. 164; Hagen et al. weasels (Mustela spp.) (Braun 1995, entire; Schroeder et al. 1999, p. 10). Nest 2007, p. 46). Additionally, reduced herbaceous cover for young chicks can predators in the Bi-State area may increase their rate of predation include badgers, weasels, coyotes, (Schroeder and Baydack 2001, p. 27; common ravens, American crows wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 to those identified across the range of greater sage-grouse (P. Coates 2012, pers. comm.). Habitats used by greater sage-grouse during winter typically consist of 10 to 30 percent sagebrush cover and sagebrush heights of 25 to 35 centimeters (cm) (10 to 14 inches (in)), regardless of snow depth (Connelly et al. 2000a, p. 972). In all suitable winter habitats, the height of sagebrush must be tall enough so that leaves remain exposed when wintering areas are largely covered with snow (Connelly et al. 2011b, p. 79). Based on the information above, we identify sagebrush plant communities that contain herbaceous vegetation consisting of a diversity and abundance of forbs, insects, and grasses that fulfill all of the Bi-State DPS’s seasonal dietary requirements to be a physical or biological feature essential to the conservation of this DPS. We also identify non-sagebrush habitats located adjacent to sagebrush plant communities that are used by sagegrouse for foraging during seasonally dry periods to be a physical or biological feature essential to the conservation of this DPS. These habitats are generally more mesic than surrounding habitat, and include wet meadows, riparian areas, and irrigated pastures. VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 64333 Aldridge and Boyce 2008, p. 402). These studies taken collectively indicate the importance of sufficient cover to nest and brood success of sage-grouse in the Bi-State area. Fragmentation of large, intact habitats into smaller units due to anthropogenic or natural causes has been implicated to affect the Bi-State DPS’s susceptibility to mortality through predation. Local attraction of common ravens to nesting females may be facilitated by loss and fragmentation of native shrublands, which increases exposure of nests to potential predation (Aldridge and Boyce 2007, p. 522; Bui 2009, p. 32; P. Coates 2012, pers. comm.). Reduction in patch size and diversity of sagebrush habitat, and increased edge, as well as the construction of fences, power lines, and other infrastructure also are likely to encourage the presence of the common raven (Coates et al. 2008, p. 426; Bui 2009, p. 4). Greater sage-grouse are adapted to minimize predation by cryptic plumage and behavior (Hagen 2011, p. 96). Because sage-grouse are prey, predation will continue to have an effect on the Bi-State DPS; however, where habitat is not limited and is of good quality, predation appears to be less influential on population demographic rates (Coates 2007, pp. 154, 155; Hagen 2011, p. 100). Landscape fragmentation, habitat degradation, and human populations have the potential to increase predator populations through increasing ease of securing prey and subsidizing food sources and nest or den sites. Thus, otherwise suitable habitat may, in fact, act as a population sink, whereby predation affects mortality more quickly than the beneficial aspects of the habitat can affect recruitment (Aldridge and Boyce 2007, p. 517). Most sage-grouse research has failed to quantify predation rates in relation to habitat structure at a landscape level. Thus, while it is not currently possible to completely understand the relationships among habitat structure, sage-grouse demographic rates, and predator communities, available information suggests fragmentation of habitat can facilitate an increase in predation rates. Bi-State DPS of greater sage-grouse use sagebrush plant communities during the winter season for thermal cover and to meet nutritional needs. Sagebrush stand selection in winter is influenced by snow depth and available literature suggests sagebrush canopy cover should be greater than 10 percent and shrubs should have at least 25 cm exposed above the snow (Patterson 1952, pp. 188–189; Connelly 1982 as cited in Connelly et al. 2000a, p. 980). In some areas, topography influences sagebrush E:\FR\FM\28OCP3.SGM 28OCP3 64334 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 stand selection (Beck 1977, p. 22; Crawford et al. 2004, p. 5). Winter sagebrush use areas are associated with drainages, ridges, or southwest aspects with slopes less than 15 percent (Beck 1977, p. 22). Lower, flat areas and shorter sagebrush along ridge tops provide roosting areas. In extreme winter conditions, greater sage-grouse will spend nights and portions of the day burrowed into ‘‘snow burrows’’ (Back et al. 1987, p. 488), and we expect the Bi-State DPS to exhibit the same behavior. During severe winters in the Bi-State area, significant percentages of birds from the various PMUs can be highly concentrated in localized sites. In these conditions, tall, late-seral sagebrush stands are an especially important food source and in some instances birds have been observed digging through several inches of snow to access shrubs (Casazza et al. 2009, p. 33). Therefore, based on the information above, we identify sagebrush plant communities consisting of adequate shrub and herbaceous structure to provide year-round escape and hiding cover, as well as areas that provide concealment of nests and broods during the breeding season, and winter season thermal cover to be a physical or biological feature essential to the conservation of this DPS. Quantitative information on cover can be found in the Primary Constituent Elements for the Bi-State DPS section, below. Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring Lek Sites. Lek sites can be located on areas of bare soil, wind-swept ridges, exposed knolls, low-statured sagebrush communities, meadows, and other relatively open sites with good visibility and low-vegetation structure (Connelly et al. 1981, pp. 153–154; Gates 1985, pp. 219–221; Klott and Lindzey 1989, pp. 276–277; Connelly et al. 2004, p. 3–7 and references therein). In addition, leks are usually located on flat to gently sloping areas of less than 15 percent grade (Patterson 1952, p. 83; Giezentanner and Clark 1974, p. 218; Wallestad 1975, p. 17; Autenrieth 1981, p. 13). Leks are often surrounded by denser shrub-steppe cover, which is used for escape, and thermal and feeding cover. Leks can be formed opportunistically at any appropriate site within or adjacent to nesting habitat (Connelly et al. 2000a, p. 970). However, adult male sage-grouse demonstrate strong yearly fidelity to lek sites (Patterson 1952, p. 91; Dalke et al. 1963, pp. 817–818), and some leks in the Bi-State area have been used since the 1950s. Across the entire Bi-State VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 DPS, approximately 35 to 45 leks are considered active as of 2013. In general, lek habitat availability is not considered to be a limiting factor for sage-grouse (Schroeder 1997, p. 939). Nesting Habitat. Greater sage-grouse typically select nest sites under sagebrush cover with some forb and grass cover, and successful nests are found in areas with higher shrub density and greater forb and grass cover than unsuccessful nests (Connelly et al. 2011b, p. 73). While the importance of nesting cover remains apparent in the Bi-State area, local data suggest slight deviations from the generally accepted standards for the greater sage-grouse, which were largely derived from research conducted outside the southern Great Basin. Specifically, Kolada et al. (2009a, p. 1336; 2009b, p. 1343) found that nesting success improved when nesting habitat contained greater than 20 percent sagebrush canopy cover and greater than 40 percent total shrub cover while shrub height did not appear to influence nesting success. This canopy cover standard in the Bi-State area is generally greater than those reported elsewhere across the range of the species. Additionally, there is currently little support in the Bi-State area for a positive influence of understory cover and height on either nest site selection or nest success (Kolada et al. 2009a, p. 1336; Kolada et al. 2009b, p. 1343). Similar findings are apparent in other locations in Nevada, but these investigations also suggest a trade-off between overstory and understory cover (Coates and Delehanty 2010, pp. 245– 246). This implies that the need for understory cover diminishes as overstory cover increases, and vice versa. Thus, while shrub canopy and grass cover provide concealment for sage-grouse nests and young and are critical for reproductive success, the composition of these cover components appears to vary regionally (Barnett and Crawford 1994, pp. 116–117; Gregg et al. 1994, pp. 164–165; DeLong et al. 1995, pp. 90–91; Connelly et al. 2004, p. 4–4, Kolada et al. 2009a, p. 1336; Kolada et al. 2009b, p. 1343). In the southern Great Basin and in the Bi-State area specifically, there is strong support for the importance of greater shrub canopy cover on nesting success. Female greater sage-grouse exhibit strong fidelity to nesting locations (Lyon 2000, p. 20; Connelly et al. 2004, pp. 4– 5; Holloran and Anderson 2005, p. 747). Interannual distances between nests are frequently less than 1 km and often much less than this (Connelly et al. 2011b, p. 74 and references therein). Additionally, re-nesting attempts are also frequently in close proximity to the PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 original nest (Weichman 2012, unpublished data). Brood-rearing Habitat. Early broodrearing habitat is found close to nest sites (Connelly et al. 2000a, p. 971), although individual females with broods may move large distances (Connelly 1982, as cited in Connelly et al. 2000a, p. 971). These sites typically contain a greater amount of perennial forbs, with horizontal and vertical structural diversity that provides an insect prey base and herbaceous forage for newly hatched chicks but additionally for pre-laying and nesting hens (Schroeder et al. 1999, p. 11; Connelly et al. 2000a, p. 971; Connelly et al. 2004, pp. 4–5—4–8; Casazza et al. 2011, pp. 158–159). By mid-summer and into early fall, birds move to mesic sagebrush plant communities that continue to provide green forbs. Casazza et al. (2011, pp. 158–163) found that sage-grouse in the Bi-State area with broods selected areas with increased plant species richness, greater forb cover, and increased meadow edge, and they avoided areas in proximity to trees (e.g., riparian sites, conifer encroached sites). While broods are known to utilize edges of hay meadows, data indicate that small, irregularly shaped meadows are of greater importance to broods than are large agricultural fields (Casazza et al. 2011, p. 163). However, due to relatively limited meadow habitat in the Bi-State area, the edges of irrigated agricultural fields are likely important in brood production. Therefore, based on the information above, we identify sagebrush plant communities with the appropriate shrub and herbaceous vegetation structure to meet all the needs for all the Bi-State DPS of greater sage-grouse reproductive activities (including lekking, nesting, and brood-rearing) to be a physical or biological feature essential to the conservation of this DPS. Quantitative information on appropriate levels of vegetation structure and composition can be found in the Primary Constituent Elements for the Bi-State DPS section, below. Habitats Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distributions of the Species Greater sage-grouse in the Bi-State area historically occurred from at least the Pine Nut Mountains area to south of the Mono County and Inyo County border near Bishop, California. Additionally, there are areas that are presumed to have been historically occupied that are no longer occupied and are now unsuitable for sage-grouse occupancy (i.e., Smith Valley, E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules Gardnerville, and Bridgeport). Suitable habitat for the Bi-State DPS within the geographic area currently occupied by the species is approximately 590,184 ha (1,458,381 ac) (Service 2013a, Table 1 p. 20). The remaining habitat within the Bi-State area is fragmented, resulting in varying degrees of isolation among local breeding populations. Many of these fragmented areas serve as unused corridors/sites between seasonal habitats for a given population of sagegrouse contained within the Bi-State DPS. These corridors are a physical or biological feature essential to the conservation of this DPS based on greater sage-grouse research, which suggests that sage-grouse exhibit strong site fidelity (loyalty to a particular area) to migration corridors and seasonal habitats, including breeding, nesting, brood-rearing, and wintering areas, even when a particular area may seemingly no longer be of value (Connelly et al. 2004, p. 3–1; Connelly et al. 2011b, p. 82) The currently suitable sagebrush plant communities and the intervening or adjacent fragmented areas (including corridors/sites between seasonal habitat areas) that are proposed for designation contain physical and biological features that are representative of the historical and geographical distribution of the BiState DPS. We believe the currently unused corridors/sites that contain plant communities (primarily woodland encroached sites that are not suitable for use) that are proposed for designation were all likely historically used by the DPS and also represent historic biological and ecological distribution within the the DPS’s present range. These corridors/sites are intermixed within suitable habitat areas currently utilized by the Bi-State DPS during various life stages, as described above. These corridors/sites are limiting the extent of sagebrush habitat throughout the current range of the DPS, especially in the PMUs with the smallest populations (i.e., Pine Nut, Mount Grant, Desert Creek-Fales, and White Mountain PMUs), and are creating varying degrees of isolation among local breeding populations. Restoration of these corridors/sites can facilitate movements among populations and allow the DPS to recovery its historical distribution within its present range. To inform our decision on specific locations of these corridors/sites, we used the 2012 Bi-State Action Plan (BiState TAC 2012a, entire). The Bi-State Action Plan identifies areas for possible restoration activity within the present range of the species that would improve overall habitat quality and quantity and VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 provide improved connectivity among local breeding populations across the Bi-State DPS. Therefore, based on the information above, we identify corridors/sites that currently contain unsuitable/unused plant communities that are interspersed with sagebrush habitats that exhibit one or more of the physical or biological features described above, to be a physical or biological feature essential to the conservation of the Bi-State DPS. Once special management designed to improve the condition of these interspersed corridors/sites has been implemented, they will help ensure long-term conservation of the DPS, and most importantly provide connectivity between currently fragmented areas. Climate Change Climate change projections in the Great Basin suggest a hotter and stableto-declining level of precipitation, and a shift in precipitation events to the summer months; fire frequency is expected to accelerate, fires may become larger and more severe, and fire seasons will be longer (Brown et al. 2004, pp. 382–383; Neilson et al. 2005, p. 150; Chambers and Pellant 2008, p. 31; Global Climate Change Impacts in the United States 2009, p. 83). With these projections, drought (which is a natural part of the sagebrush ecosystem) is likely to be exacerbated. Specifically within the Bi-State area, we anticipate climate change will act synergistically with other impacts to the Bi-State DPS to further diminish habitat, including features such as water, food, cover or shelter, and sites for breeding and reproduction. Predicting the impact of global climate change on sage-grouse populations is challenging due to the relatively small spatial extent of the BiState area. It is likely that vegetation communities will not remain static and the amount of sagebrush shrub habitat will decrease. Further, increased variation in drought cycles due to climate change will likely place additional stress on the populations. However, while it is reasonable to assume the Bi-State area will experience vegetation changes into the future, we do not know with precision the nature of these changes or ultimately the effect this will have on the Bi-State DPS. Regardless, we anticipate the area will likely become generally less suitable to invasion by Bromus tectorum (cheatgrass). It is similarly likely that the current extent of suitable shrub habitat (e.g., areas for cover, shelt, breeding, and reproduction) will decrease, as the conditions that make the reduction in cheatgrass possible also suggest a less suitable climate condition PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 64335 for sagebrush and improved suitability for woodland and drier vegetation communities, which are not favorable to sage-grouse in the Bi-State DPS. For additional discussion on this topic, see the ‘‘Climate Change’’ section of the proposed listing rule published elsewhere in today’s Federal Register. Primary Constituent Elements for the BiState DPS According to 50 CFR 424.12(b), we are required to identify the physical or biological features essential to the conservation of the Bi-State DPS in areas occupied at the time of listing, focusing on the features’ primary constituent elements (PCEs). We consider primary constituent elements to be 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. We only consider areas as critical habitat if they meet the ‘‘Landscapescale Primary Constituent Element’’ (PCE 1) because small, isolated patches of sagebrush do not support the Bi-State DPS. If an area meets the landscape scale requirement, then a particular site is considered critical habitat if it contains one or more of the ‘‘Site-scale Primary Constituent Elements’’ (PCEs 2 through 4); Landscape scale may also contain the plant communities discussed above. Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species’ life-history processes, we determine that the PCEs specific to the Bi-State DPS of greater sage-grouse are: Landscape-scale Primary Constituent Element Primary Constituent Element 1— Areas with vegetation composed primarily of sagebrush plant communities of sufficient size and configuration to encompass all seasonal habitats for a given population of greater sage-grouse, or facilitate movements within and among populations. This includes former sagebrush communities in specific locations that are currently primarily woodland encroached sites that potentially provide connectivity between populations. Site-Scale Primary Constituent Elements Primary Constituent Element 2— Breeding habitat composed of sagebrush plant communities with structural characteristics within the ranges described in Table 1, below. Habitat structure values are average values. E:\FR\FM\28OCP3.SGM 28OCP3 64336 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules TABLE 1—BI-STATE DPS OF GREATER (Connelly et al. 2000a; Hagen et al. SAGE-GROUSE STRUCTURAL GUIDE- 2007; Kolada et al. 2009a; Kolada et al. 2009b; Coates and Delehanty 2010; LINES FOR BREEDING HABITAT Vegetation variable Sagebrush Canopy Cover. Non-sagebrush Canopy Cover. Total Shrub Canopy Cover. Sagebrush Height ..... Perennial Grass Cover. Annual Grass Cover Forb Cover ................ Grass/Forb Height ..... Amount of occurrence in the habitat >20 percent. >20 percent. >40 percent. >30 cm (12 in). No less than 5 percent but >10 percent if total shrub cover <25 percent. <5 percent. >10 percent. >18 cm (7 in). wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Primary Constituent Element 3— Brood-rearing habitat composed of sagebrush plant communities and mesic habitats used primarily in the summer to late fall season. These sites include, but are not limited to, riparian communities, springs, seeps, and mesic meadows with structural characteristics within the ranges described in Table 2, below. Blomberg et al. 2012), summer-fall (Casazza et al. 2011; Coates et al. in prep. a), and winter (Connelly et al. 2000a; Coates et al. in prep. b). To the greatest extent possible, these structural habitat values are representative of the southern Great Basin and the Bi-State area specifically, and reflect the shrub structure, understory structure, and understory composition selected for by greater sage-grouse in this region. As such, these values are based on the most current and comprehensive assessment of the Bi-State DPS habitat structure. We consider an area critical habitat if its average vegetation values are within the values for the majority of structural categories for any given PCE (see Tables 1 and 2, above). Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management TABLE 2—BI-STATE DPS OF GREATER considerations or protection. All units SAGE-GROUSE STRUCTURAL GUIDE- proposed for designation as critical LINES FOR BROOD-REARING HABITAT habitat, as described below, require some level of management to address Amount of occurrence the current and future threats to the Vegetation variable in the habitat physical and biological features essential to the conservation of Bi-State Sagebrush Canopy 10 to 25 percent. DPS of greater sage-grouse. In all of the Cover. described units, special management Total Shrub Canopy 14 to 25 percent. Cover. may be required to ensure that the Sagebrush Height ..... >30 cm (12 in). habitat is able to provide for the Perennial Grass >7 percent. biological needs of this DPS. Cover. A detailed discussion of the current Perennial Forb Diver- >5 species present. and future threats to the Bi-State DPS of sity. greater sage grouse can found in the Forb Cover ................ >7 percent. Species Report available at https:// Grass/Forb Height ..... 18 cm (7 in). www.regulations.gov under Docket No. Meadow Edge (ratio >0.015. FWS–R8–ES–2013–0042 and perimeter to area). summarized in the proposed listing rule Species Richness ..... >5 species. to list the species as threatened, which Primary Constituent Element 4— is published elsewhere in today’s Winter habitat composed of sagebrush Federal Register, in the section entitled plant communities with sagebrush Summary of Factors Affecting the canopy cover greater than 10 percent Species. In general, the features essential to the conservation of the Biand sagebrush height of greater than 25 State DPS may require special cm (9.8 in) above snow level. For the PCEs 2 through 4, we adopt management considerations or the values from the literature on greater protection to reduce the following sage-grouse, but we modify them where individual threats and their interactions: available with specific research The spread of invasive plant species and conducted in the Bi-State area and associated changes in sagebrush plant southern Great Basin. These data community structure and dynamics; combined provide structural habitat wildfire and altered fire regime; values for Bi-State DPS of greater sageresidential and commercial grouse in all seasonal habitats. Source development, including associated landdata include structural vegetation data clearing activities for the construction of collected in the breeding season access roads, utilities, and fences; VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 increased recreational use of roads and trails; the proliferation of predators; improper grazing management; and other activities that result in the loss or degradation of sagebrush plant communities. The largest, overarching concern to the Bi-State DPS is multiple threats acting upon the landscape that are resulting in habitat fragmentation. The aforementioned activities are having direct and indirect effects on the birds’ habitat and behavior, and are cumulatively and individually increasing habitat fragmentation. The physical and biological features contained within the units designated as critical habitat may require special management considerations or protection to address the threats mentioned above. Based on our analysis of threats to the Bi-State DPS of greater sage-grouse, management activities that could ameliorate these threats include, but are not limited to: (1) Comprehensive land-use planning and implementation that prevents a net decrease in the extent and quality of the DPS’s habitat through the prioritization and protection of habitats and monitoring; protection of lands by fee title acquisition or the establishment of permanent conservation easements; (2) Management of recreational use to minimize direct disturbance and habitat loss; (3) Control of nonnative, invasive plants and native, invasive plants to reduce further habitat loss and reduce the potential for wildfires; (4) Management of domestic and wild ungulate use to ensure the suitable sagegrouse habitat meets or exceeds the structural habitat components required by sage-grouse; (5) Monitoring and management of predator communities to determine impacts and help reduce potential predation; (6) Coordinated and monitored habitat restoration or improvement projects to increase the amount of suitable habitat, particularly within fragemented areas and migration corridors; and (7) Implementation of wildfire suppression, particularly in big sagebrush plant associations, to reduce further loss of big sagebrush communities that sage-grouse rely on for multiple life stages. Such special management activities may be required to protect the physical and biological features essential to the conservation of the DPS, and support the conservation of the DPS by preventing or reducing the loss, degradation, and fragmentation of sagebrush landscapes. Additionally, management of critical habitat features can increase the amount of suitable E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 habitat and enhance connectivity among sage-grouse populations in the Bi-State area through the restoration of lands that were previously composed of sagebrush plant communities. The limited extent of sagebrush habitat throughout the DPS’s current range (as well as the significantly fragemented nature of the remaining sagebrush habitat) emphasizes the need for special management of these corridors/sites for the Bi-State DPS’ use, thus potentially providing unfragmented habitat needed to survive and recover. In some cases, continuing current land management practices may be appropriate and beneficial for the BiState DPS. For instance, continued irrigation and maintenance of hay and alfalfa fields on private lands near sagebrush habitats may help provide or enhance brood-rearing, mesic habitats for the Bi-State DPS. We acknowledge the ongoing and proposed conservation efforts of many entities across the range of the Bi-State DPS, such as the Natural Resource Conservation Service (NRCS) Sage Grouse Initiative (https:// www.nrcs.usda.gov/wps/portal/nrcs/ site/national/home/), that include many partners to implement conservation actions. We are currently coordinating with Federal agencies to ensure a seamless continuation of conservation practices if final rules are published for a listing determination and critical habitat designation. Criteria Used To Identify Critical Habitat As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the species. If, after identifying these specific areas, a determination is made whether these areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e), we then consider whether designating additional areas—outside of the geographical area currently occupied—are essential for the conservation of the species. As a result of this analysis, we are proposing to designate critical habitat within the geographical area occupied by the species at the time of listing (currently occupied) on which are found those physical or biological features essential VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 to the conservation of the DPS and which may require special management considerations or protection. Some of the units we are proposing to designate as critical habitat contain corridors/sites that are currently unsuitable for use because of woodland encroachment. These corridors/sites are interspersed within sutiable habitat that is currently used by the DPS. These sites provide essential connectivity corridors and habitat extent necessary for the conservation and recovery of the DPS (see the Physical or Biological Features section above). Once special management designed to improve the condition of these interspersed corridors/sites has been implemented, they will help ensure long-term conservation of the DPS and provide connectivity between currently fragmented areas. We are not proposing to designate specific areas outside the geographical area currently occupied by the DPS. We delineated the critical habitat unit boundaries as follows: We based our identification of lands that contain physical and biological features essential to the conservation of the Bi-State DPS of greater sage-grouse on polygons delineated and defined by the Bi-State TAC during the development of the 2012 Bi-State greater sage-grouse Preliminary Priority Habitat (PPH) Map (Bi-State TAC 2012b), and a map product depicting occupied habitat developed by the Bureau of Land Management (BLM) in conjunction with the U.S. Forest Service in 2008 (BLM 2008). The Bi-State TAC is comprised of biologists representing the California Department of Fish and Wildlife (CDFW), Nevada Department of Wildlife (NDOW), BLM, the U.S. Forest Service, NRCS, USGS, and our offices (i.e., the Service). Both of these products (i.e., the PPH map and BLM map) largely correlate with one another, although the combined map encompasses more area than either product individually. The PPH map developed in 2012, was largely informed by Resource Selection Function (RSF) equations. RSFs are ranked habitat suitability factors that predict what areas an animal will use or avoid. We consider polygons derived through modeling RSFs to be the area currently suitable for sage-grouse in the Bi-State area. RSFs predict suitable habitat and thus likely overestimate the currently utilized habitat; however, a significant amount of sage-grouse population and habitat use data specific to the Bi-State area were used to develop these data layers, thus resulting in a high-quality mapping product for use as the best available information. Ground-truthing of many of these areas PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 64337 confirms this mapping effort is accurate for predicting use by sage-grouse (Coates 2012, pers. comm.). Thus, we consider the polygons delineated through this process to be currently occupied. The 2008 BLM map was informed by the delineation of existing vegetation and expert opinion, and similarly we consider the polygons delineated through this process to be currently suitable habitat in this proposal. Therefore, combining the PPH map derived by RSFs and the 2008 BLM map contributes to our understanding of what constitutes currently suitable and potentially usable habitat. RSFs are a data-driven approach used to identify suitable habitat. The RSF process used readily available, broadscale, vegetation maps; more than 7 years of radio telemetry data; and onthe-ground vegetation data collected from across the range of the Bi-State DPS. Specifically, the approach used to identify the critical habitat units includes the following steps: (1) A land cover map was developed for Nevada and California. This map is a synthesis of multiple, existing, broadscale, vegetation mapping products (e.g., SynthMap, LANDFIRE, SageStitch, FRAP). Additional map layers were developed for environmental factors thought to be important to the Bi-State DPS, including maps of pinyon-juniper vegetation (dominated by Pinus edulis (pinyon pine) and various Juniperus (juniper) species that can encroach upon, infill, and eventually replace sagebrush habitat) cover classes used as surrogates for phases of encroachment, topographic variables (i.e., elevation, ruggedness, and slope), agricultural areas, and anthropogenic factors (i.e., urbanization, roads, and recreation). (2) RSFs were developed by modeling the relative probability of occurrence as a function of different environmental factors. These factors consisted of vegetation types, pinyon-juniper cover classes, agricultural areas, elevation, ruggedness, slope, roads, recreation, and urbanization. The factors were measured at multiple spatial scales that reflect movement patterns of the BiState DPS. The modeling process contrasted these environmental factors for sites used by Bi-State DPS of greater sage-grouse (which included more than 12,500 individual sage-grouse telemetry locations) to available sites (which were randomly generated locations distributed throughout each PMU). Contrasting the environmental factors in areas known to be used by the species versus areas available provided information about what factors (e.g., urbanization, pinyon-juniper woodland sites) correlated with the Bi-State DPS’s E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64338 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules selection or avoidance of a specific location. The Pine Nut PMU was analyzed separately from the other five PMUs because the population within this PMU exhibits strong differences in behavior and influential environmental factors compared to other greater sagegrouse populations in the Bi-State area. (3) RSFs were applied to the map layers developed in Step 1 to calculate an overall probability of use per pixel. This created a single habitat suitability map and resulted in a surface of predicted use by sage-grouse across the range of the Bi-State DPS. This surface was represented by probability values that ranged across a continuous spectrum of 0.0 to 1.0. (4) To identify currently usable habitat, the values from the habitat suitability map were extracted for 1,300 independent sage-grouse telemetry point locations within the Bi-State area. These newly derived habitat suitability values are associated with areas known to be used by the Bi-State DPS based on independent telemetry point data. We then reclassified this data into binary values (i.e., suitable habitat and potentially unsuitable or less than suitable habitat) for each PMU. (5) The raster cells classified as suitable habitat were converted to polygons and smoothed using a distance of 1 km (0.6 mi). This value was used because it was sufficiently coarse to alleviate pixilation associated with raster data sets but not overly coarse to where the resulting map altered significantly from the original layers. Thus, the resulting map provided a more easily interpretable layer conducive to management. (6) All urban areas were digitized and based on model performance at multiple scales; large-bodied standing water areas and other areas that exceeded 1 square km (247 ac) were removed because they are not considered suitable habitat. (7) A second independent telemetry data set (more than 1,000 points) was used to validate the modeling; greater than 99 percent of the telemetry points fell within the mapped PPH areas generated from the RSF. This step validated that this data-driven approach to identify suitable habitat performed well. A spatially explicit habitat-suitability model developed for the Bi-State DPS (Bi-State Technical Team 2012, unpublished data) predicts the location of usable habitat within the current range of the Bi-State DPS. The best available data from modeling exercises (as discussed above in this section) includes roughly 590,184 ha (1,458,381 ac) of suitable habitat within the range of the DPS. VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 (8) To identify acres that are currently less than suitable (e.g., areas exhibiting less than optimal habitat conditions within the present range of the DPS that were either known or likely to be historically utilized), we examined information pertaining to potential woodland restoration sites identified in the 2012 Bi-State Action Plan (Bi-State TAC 2012a, pp. 90–95). We identified potential habitat as unused habitats that could be suitable for occupation of sage-grouse if practical management was applied. These corridors/sites are most commonly former sagebrush areas overtaken by pinyon-juniper woodlands. To further refine these areas, we identified locations that are: (1) Contiguous with currently utilized habitat that occurs within the present range, (2) provide for connectivity between and within populations, and (3) identified within the 2012 Bi-State Action Plan. We consider the size and degree of isolation among various populations contained within the Bi-State DPS to be a significant conservation concern; therefore, regaining historical connectivity among populations is essential to the conservation of the species. The corridors/sites are all contained within the borders of the delineated PMUs. (9) To match the approach adopted during the development of the RSF product, we adjusted the 2008 BLM map utilizing a similar process by converting the raster cells to polygons and smoothing the polygons using a distance of 1 km (0.6 mi). These three datasets were then merged together into a unified layer within a GIS. (10) Utilizing the unified data layer, we identified small, isolated, and disjunct polygons that were not considered to meet the intent of the landscape-scale primary constituent element (PCE 1) and were not considered necessary for the recovery of the species. These polygons were removed from the dataset resulting in our proposed critical habitat map. We specifically request comments on this and other criteria described above. As described in more detail in the Species Report (Service 2013a, pp. 17– 29) and the proposed listing rule for the Bi-State DPS of greater sage-grouse (published elsewhere in today’s Federal Register), there are currently six PMUs delineated in the Bi-State area: (1) Pine Nut, (2) Desert Creek–Fales, (3) Bodie, (4) Mount Grant, (5) South Mono, and (6) White Mountains (see Background section above, and the Background section of the proposed listing rule published elsewhere in today’s Federal Register). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 Proposed critical habitat units for the Bi-State DPS collectively contain relatively small and discrete populations that are needed to ensure resilience in the face of environmental fluctuations and catastrophic events, and to ensure the continuation of evolutionary process (see ‘‘Species Information’’ section of the proposed listing rule published elsewhere in today’s Federal Register, and the ‘‘Current Range/Distribution and Population Estimates/Annual Lek Counts’’ section of the Species Report (Service 2013a, pp. 17–28). Thus, the units contain the physical and biological features that are essential to the conservation of the species. The corridors/sites that are currently experiencing woodland encroachment are contiguous with the suitable habitat, and are a feature that is essential to the conservation of the Bi-State DPS. These corridors/sites provide connectivity between the current populations and reduce habitat fragmentation, which in turn impacts sage-grouse population dynamics. Once special management designed to improve the condition of these corridors/sites has been implemented, they would provide needed connectivity among currently disjunct populations and additional habitat extent, thereby increasing overall habitat redundancy. The best available information indicates that, with proper protection and management, the proposed critical habitat units are sufficient to provide for the conservation of the species. While there are six PMUs, we are proposing four units as critical habitat for the Bi-State DPS. Units are proposed for designation based on sufficient elements of physical or biological features being present to support the BiState DPS’s life-history processes. All units individually contain all of the identified elements of physical and biological features, and each unit as a whole supports multiple life-history processes. We are proposing for designation of critical habitat lands that we have determined are within the geographical area occupied at the time of listing and contain the physical or biological features essential to the conservation of the DPS. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Bi-State DPS. The scale of the maps we prepared under the parameters for publication within the Code of E:\FR\FM\28OCP3.SGM 28OCP3 64339 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. 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 at https://www.regulations.gov at Docket No. FWS–R8–ES–2013–0042, on our Internet sites (Reno Fish and Wildlife Office (https://www.fws.gov/ nevada/) and Ventura Fish and Wildlife Office (https://www.fws.gov/ventura/)), and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above). Proposed Critical Habitat Designation We are proposing to designate approximately 755,960 ha (1,868,017 ac) in four units as critical habitat for the Bi-State DPS of greater sage-grouse, all of which are considered currently occupied. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the BiState DPS. The four units we propose as critical habitat correspond to the four populations recognized by the Western Association of Fish and Wildlife Agencies (WAFWA), which include: (1) Pine Nut, (2) North Mono Lake, (3) South Mono Lake, and (4) White Mountains. These units are contained within the PMU boundaries (which are identified on the maps in the Proposed Regulation Promulgation section of this proposed rule); however, the proposed North Mono Lake Unit (Unit 2) combines three PMUs (Desert Creek– Fales, Bodie, and Mount Grant PMUs) into a single unit. Approximately 75 percent (about 564,578 ha (1,395,103 ac)) of the area within the four units is currently suitable habitat and approximately 25 percent (about 191,381 ha (472,914 ac)) is contiguous with currently suitable habitat but is considered less than suitable for current use. Table 3 shows land ownership and approximate areas of the proposed designated areas for the Bi-State DPS. TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR THE BI-STATE DPS IN NEVADA AND CALIFORNIA [Area estimates reflect all land within critical habitat unit boundaries.] Size of unit in hectares (acres) Critical habitat unit Land ownership by type 1. Pine Nut .......................................................................... Tribal ................................................................................... Federal ............................................................................... State ................................................................................... Private ................................................................................ ............................................................................................. Tribal ................................................................................... Federal ............................................................................... State ................................................................................... Local Agency ...................................................................... Private ................................................................................ ............................................................................................. Tribal ................................................................................... Federal ............................................................................... State ................................................................................... Local Agency ...................................................................... Private ................................................................................ ............................................................................................. Tribal ................................................................................... Federal ............................................................................... Private ................................................................................ 10,401 (25,701) 92,324 (228,137) 4,822 (11,917) 14,197 (35,081) 121,744 (300,836) 16 (40) 294,775 (728,404) 3,374 (8,338) 1,295 (3,200) 46,031 (113,744) 345,491 (853,726) 161 (398) 138,905 (343,242) 1,345 (3,323) 13,312 (32,894) 7,750 (19,151) 161,473 (399,008) 521 (1,286) 123,831 (305,994) 2,901 (7,167) Subtotal Unit 4 ...................................................... ............................................................................................. 127,252 (314,447) Subtotal .................................................. Tribal ................................................................................... Federal ............................................................................... State ................................................................................... Local Agency ...................................................................... Private ................................................................................ 11,099 (27,425) 526,128 (1,605,777) 9,541 (23,578) 14,607 (36,094) 70,878 (175,143) GRAND TOTAL .................................................... ............................................................................................. 755,960 (1,868,017) Subtotal Unit 1 .................................................................... 2. North Mono Lake ............................................................ Subtotal Unit 2 .................................................................... 3. South Mono Lake ........................................................... wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Subtotal Unit 3 .................................................................... 4. White Mountains ............................................................. Note: Area sizes may not sum due to rounding. We present brief descriptions of the four units and reasons why they meet the definition of critical habitat for the Bi-State DPS, below. VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 Unit 1: Pine Nut The Pine Nut Unit consists of approximately 121,744 ha (300,836 ac) and is located in Mono and Alpine Counties, California, and Douglas, Lyon, and Carson City Counties, Nevada. The PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 unit encompasses the Pine Nut Mountains and represents the northern extent of the DPS. It extends from the Carson River south to the West Fork Walker River. The southwestern boundary extends into California encompassing Slinkard Valley near E:\FR\FM\28OCP3.SGM 28OCP3 64340 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Woodford, California. Land ownership within this unit consists of approximately 92,324 ha (228,137 ac) of Federal land, 4,822 ha (11,917 ac) of State land, 10,401 ha (25,701 ac) of Washoe Tribe of Nevada and California tribal land, and 14,197 ha (35,081 ac) of private land. The Pine Nut Unit includes lands in the Humboldt-Toiyabe National Forest and lands managed by the Carson City District Office of the BLM. State lands within this unit include Slinkard/Little Antelope Valley Wildlife Area. This unit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the DPS. This unit is important for the conservation of the DPS due to the redundancy and additional distributional extent it affords the remainder of the Bi-State DPS. The physical or biological features essential to the conservation of the Bi-State DPS in the Pine Nut Unit may require special management considerations or protection due to the presence of fire; woodland encroachment; nonnative, invasive species; urbanization and human disturbance; infrastructure; feral horses; predation; and additional localized and less severe impacts. Unit 2: North Mono Lake The North Mono Lake Unit consists of approximately 345,491 ha (853,726 ac) and is located in Alpine and Mono Counties, California and Lyon, Douglas, and Mineral Counties, Nevada. The unit extends from southern Smith Valley, Nevada in the north to Mono Lake, California in the south, and the Wassuk Range in Nevada in the east to the foothills of the Sierra Nevada mountain range in the west. Land ownership within this unit consists of approximately 294,775 ha (728,404 ac) of Federal land, 3,374 ha (8,338 ac) of State land, 1,295 ha (3,200 ac) of local agency (County or City) lands, 16 ha (40 ac) of Bridgeport Paiute Indian Colony tribal lands, and 46,031 ha (113,744 ac) of private land. The North Mono Lake Unit includes lands in the HumboldtToiyabe National Forest (including Forest Service lands utilized for military readiness via a 40-year special use permit with the Marine Corps’ Mountain Warfare Training Center), and BLM’s Bishop Field Office and Carson City District Office. State lands within this unit include the Green Creek, East Walker River, Slinkard/Little Antelope Valley, and Pickel Meadow Wildlife Areas. This unit is considered to be within the geographical area occupied by the VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 DPS at the time of listing and contains the physical or biological features essential to the conservation of the DPS. The Bodie Hills population contained within this unit represents one of the two largest (core) populations within the Bi-State DPS and as such, the habitat in this unit is important for the conservation of the DPS. The Bodie Hills population harbors greater than 30 percent of the entire Bi-State DPS sagegrouse population, providing both resiliency and redundancy to the DPS. In addition, several peripheral populations in the Desert Creek-Fales and Mount Grant PMUs are contained within this unit and afford additional redundancy and distributional extent. The physical or biological features essential to the conservation of the BiState DPS in the North Mono Lake Unit may require special management considerations or protection due to the risk posed by fire; woodland encroachment; infrastructure; urbanization; mineral and energy development; feral horses; nonnative, invasive species; human disturbance; and other localized and less severe threats. Unit 3: South Mono Lake The South Mono Lake Unit consists of approximately 161,473 ha (399,008 ac), and is located entirely within Mono County, California. The unit extends from Mono Lake in the north to Lake Crowley in the south, and from the Nevada and California border in the east to the foothills of the Sierra Nevada Mountains in the west. Land ownership within this unit consists of approximately 138,905 ha (343,242 ac) of Federal land, 1,345 ha (3,323 ac) of State land, 13,312 ha (32,894 ac) of local agency land, 161 ha (398 ac) of Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation (California), and 7,750 ha (19,151 ac) of private land. The South Mono Lake Unit includes lands in the Inyo National Forest and the BLM Bishop Field Office. The majority of City lands within this unit are owned by the City of Los Angeles and managed by the Los Angeles Department of Water and Power. This unit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the DPS. The Long Valley population contained within this unit represents one of the two largest remaining populations within the Bi-State DPS and as such habitat in this unit is important for the conservation of the DPS. The Long Valley population harbors approximately 30 percent of the entire PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 Bi-State DPS sage-grouse population, providing both resiliency and redundancy to the DPS. The physical or biological features essential to the conservation of the Bi-State DPS in the South Mono Lake Unit may require special management considerations or protection due to the risk presented by fire, human footprint (e.g., urbanization (such as mesic areas for late sage-grouse brood-rearing), infrastructure, recreation), woodland expansion, and other localized and less severe threats. Unit 4: White Mountains The White Mountains Unit consists of approximately 127,252 ha (314,447 ac) and is located in Inyo and Mono Counties, California and Esmeralda and Mineral Counties, Nevada. The White Mountains Unit is situated in the southern extent of the Bi-State DPS’s range. The unit extends from the Candelaria Hills and Truman Meadows areas in the north to California Highway 168 in the south, and from California Highway 6 in the west to the Silver Peak Range in Nevada. Land ownership within this unit consists of approximately 123,831 ha (305,994 ac) of Federal land, 521 ha (1,286 ac) of Death Valley Timbi-sha Shoshone tribal land, and 2,901 ha (7,167 ac) of private land. The White Mountains Unit includes lands in the Inyo and Humboldt-Toiyabe National Forests, and the Bishop, Tonopah, and Stillwater Field Offices of the BLM. This unit is considered to be within the geographical area occupied by the species at the time of listing and contains the physical or biological features essential to the conservation of the DPS. This unit is important for the conservation of the DPS due to the redundancy, resiliency, and representation it affords the remainder of the Bi-State DPS. The population represents approximately 5 to 10 percent of the entire DPS. The unit remains generally remote and isolated and lacks many of the immediate anthropogenic stressors apparent in other portions of the DPS; thus the additional redundancy and resiliency afforded by this area may influence conservation of the entire DPS in the future. Additionally, this population has a unique genetic signature and occurs at high elevation on the extreme southwest portion of the DPS’s range, thereby adding ecological and genetic representation not found elsewhere across the DPS’s range. The physical or biological features essential to the conservation of the Bi-State DPS in the White Mountains Unit may require special management considerations or protection due to the presence of E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules woodland expansion; urbanization; feral horses; nonnative, invasive species; fire; and limited population size among other more localized and less severe stressors. Effects of Critical Habitat Designation wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 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 that 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 VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 authorized, do not require section 7 consultation. When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other manmade structures because such lands lack physical and biological features necessary for greater sage-grouse. 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 sites. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical and biological features in the adjacent critical habitat. Likewise, due to past land uses, vegetation changes, or a number of other natural or manmade factors, some areas within the mapped proposed critical habitat may currently lack the sitespecific physical and biological features (primary constituent elements) necessary to support bi-state DPS of greater sage-grouse (see section, Primary Constituent Elements for Bi-state DPS of Greater Sage-grouse). If critical habitat is designated, for actions involving lands that lack the primary constituent elements for this species, section 7 consultation as it relates to critical habitat would not be required. 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, PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 64341 (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 Bi-State DPS. 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 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 Bi-State E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64342 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules DPS. These activities include, but are not limited to: (1) Actions that would result in the loss of sagebrush overstory plant cover or height. Such activities could include, but are not limited to, the removal of native shrub vegetation by any means for any infrastructure construction project; direct conversion to agricultural land use; habitat improvement or restoration projects involving actions such as (but not limited to) mowing, brush-beating, disking, plowing, or prescribed burning; and fire suppression activities. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of sage-grouse in the BiState area, at least on a short-term basis. (2) Actions that would result in the loss or reduction in native herbaceous understory plant cover or height; a reduction or loss of associated arthropod communities; or ground disturbance that would result in removal or depletion of surface and ground water resources that impact brood-rearing habitat. Such activities could include, but are not limited to, improper livestock grazing; application of herbicides or insecticides; prescribed burning and fire suppression activities; seeding of nonnative plant species that would compete with native species for water, nutrients, and space; groundwater pumping; and water diversions for irrigation and livestock watering. These activities could eliminate or reduce the quality of the habitat necessary for the growth and reproduction of sage-grouse in the BiState area through a reduction in food quality and quantity, and increased exposure to predation. (3) Actions that would result in the Bi-State DPS’s avoidance of an area during one or more seasonal periods. Such activities could include, but are not limited to, the construction of vertical structures such as power lines, fences, communication towers, and buildings; motorized and non-motorized recreational use; and activities such as well drilling, operation, and maintenance, which would entail significant human presence, noise, and infrastructure. These activities could result in the direct and functional loss of habitat if sage-grouse avoid or reduce use of otherwise suitable habitat in the vicinity of these structures or concentrated activity centers throughout the Bi-State area. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an 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. Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: ‘‘The Secretary shall not designate as critical habitat any lands or other geographic 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 proposed critical habitat designation for the BiState DPS to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. Department of Defense lands with a completed, Service-approved INRMP within the proposed critical habitat designation include the Hawthorne Army Depot. The Marine Corps’ Mountain Warfare Training Center occurs outside of the proposed critical habitat boundary but conducts training via a 40-year special use permit on U.S. Forest Service lands within the proposed area (see discussion below under the ‘‘Exclusions Based on National Security Impacts’’ section). The Marine Corps does not currently have an INRMP; however, should the PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 Marine Corps’ Mountain Warfare Training Center complete an INRMP, we would conduct an analysis to determine if they meet the criteria for exemption from the final critical habitat designation under section 4(a)(3) of the Act. Approved INRMPs Hawthorne Army Depot, 5,421 ha (13,397 ac) The Hawthorne Army Depot is located on lands in Mineral County surrounding the town of Hawthorne, Nevada, approximately 209 km (130 mi) southeast of Reno, Nevada, on the southern shore of Walker Lake. The 59,584-ha (147,236-ac) installation encompasses lands in the Wassuk Range, centered on Mount Grant, where overlap with the Bi-State DPS distribution occurs. The Hawthorne Army Depot’s military mission is to test and demilitarize munitions, maintain equipment, provide high-desert training facilities for military units, and provide tenant support while maintaining ecosystem viability to support the military mission. The U.S. Army’s INRMP is a planning document that guides the management and conservation of natural resources under the installation’s control, specifically to guide the natural resources management program from 2013 to 2018, and provide a solid foundation for Hawthorne Army Depot on which to build the program beyond 2018 (DOD 2013, p. ES–1). Implementing this INRMP will allow Hawthorne Army Depot to achieve its goal to ensure the sustainability to test and demilitarize munitions, maintain equipment, and provide tenant support while maintaining ecosystem viability (DOD 2013, p. ES–1). Compliance with this INRMP ensures that natural resource conservation measures and Army activities on Hawthorne Army Depot land are integrated and consistent with Federal stewardship requirements (DOD 2013, p. ES–1). The most recent INRMP (updated from previous versions) was approved by the Service on August 28, 2013 (DOD 2013, entire), is currently being implemented, and provides a conservation benefit to the Bi-State DPS. Approximately 5,421 ha (13,397 ac) of lands (occurring within the footprint of Unit 2) within this installation supports habitat currently occupied by the Bi-State DPS that provides a conservation benefit to the DPS. The INRMP includes Bi-State DPS management as a high priority project, specifically by implementing conservation strategies as identified E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules through continued multi-agency coordination. Hawthorne Army Depot’s primary objective for managing specialstatus species (including the Bi-State DPS) is to: (1) Maintain conditions that buffer the effects of the military mission on the species and their habitat, (2) support monitoring efforts to document the health of species, and (3) enhance the habitats of the species (DOD 2013, p. 3–17). Management actions that provide a conservation benefit to the BiState DPS (i.e., managing and increasing the population of and habitat quality for sage-grouse) include, but are not limited to: (1) Reducing population loss from poachers. (2) Improving habitat in the Mount Grant North Cat area by installing rock dikes or similar infrastructure to minimize snowmelt runoff and to create riparian habitat in the meadow area. (3) Possible removal of pinyon-juniper communities at higher elevations of Mount Grant to increase sage-grouse populations and minimize predation. (4) Preventing hunting on the installation. And (5) Implementing conservation strategies identified through multiagency efforts (e.g., Bi-State Action Plan) (DOD 2013, pp. 3–17–3–18). Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Hawthorne Army Depot INRMP and that conservation efforts identified in the INRMP will provide a benefit to the Bi-State DPS. Therefore, lands within this installation are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including 5,421 ha (13,397 ac) of habitat in this proposed critical habitat designation because of this exemption. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 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 he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 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 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 Bi-State DPS, the benefits of critical habitat include public awareness of sage-grouse presence and the importance of habitat protection, and in cases where a Federal nexus exists, increased habitat protection for the Bi-State DPS due to the protection from adverse modification or destruction of critical habitat. In practice, a Federal nexus exists primarily on Federal lands or for projects undertaken by Federal agencies. Since the Bi-State DPS and its habitat primarily occur on Federal lands, we have been coordinating with Federal agencies on their efforts to conserve the Bi-State DPS, and we would anticipate a significant amount of coordination via section 7 consultations if the proposed PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 64343 listing and proposed critical habitat are finalized. The coordination with Federal partners conducted to date has resulted in multiple conservation plans or strategies for Federal lands (and to some extent on private lands) throughout the Bi-State area. When we evaluate a management plan during our consideration of the benefits of exclusion, we assess 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 we receive, we will evaluate whether certain lands in the proposed critical habitat units are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation. We are considering excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for the Bi-State DPS. Table 4 below provides approximate areas (ha, ac) of lands that meet the definition of critical habitat but are under our consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. E:\FR\FM\28OCP3.SGM 28OCP3 64344 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules TABLE 4—AREAS MEETING THE DEFINITION OF CRITICAL HABITAT AND AREAS BEING CONSIDERED FOR EXCLUSION FROM THE CRITICAL HABITAT DESIGNATION FOR THE BI-STATE DPS Areas meeting the definition of critical habitat, in hectares (acres) Areas being considered for exclusion, in hectares (acres) Unit Area considered for exclusion Unit 1. Pine Nut .................................. None ................................................... 121,744 (300,836) None Unit 2. North Mono Lake .................... 345,491 (728,404) 9,818 (26,262) .................................................. 1,002 (2,478) 161,473 (399,008) 14,533 (35,911) Unit 4. White Mountains ..................... Department of Defense, Marine Corps Mountain Warfare Training Center. Los Angeles Department of Water and Power. Los Angeles Department of Water and Power. None ................................................... 127,252 (314,448) None TOTAL ......................................... ............................................................. 755,960 (1,868,017) 25,353 (64,651) Unit 3. South Mono Lake ................... However, we specifically solicit comments on the inclusion or exclusion of the areas shown in Table 4. In the paragraphs below, we provide an analysis of our considered exclusion of these lands under section 4(b)(2) of the Act. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 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 are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors. Although the majority of lands in the proposed critical habitat are federally owned, private lands are also present in all four units. Federal lands include areas with mining leases, geothermal energy development, grazing permits, rights-of-way for utilities and telecommunications, and recreational uses. Several State-owned parcels are included in some units where hunting, wildlife viewing, and other recreational activities occur, and tribal lands are also included. The economic analysis will estimate the economic impact of a potential designation of critical habitat on these activities. During the development of a final designation, we will consider economic impacts based on information in our economic analysis, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense where a national security impact might exist. Lands eligible for VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 exclusion include those utilized by the Marine Corps (Mountain Warfare Training Center) for military readiness, as discussed above in Application of Section 4(a)(3) of the Act. The Marine Corps’ Mountain Warfare Training Center is located on lands in Mono County near Sonora Junction, California, approximately 160 km (100 mi) south of Reno, Nevada. The approximately 243-ha (600-ac) installation encompasses lands outside the range of the Bi-State DPS, but military training activities occur on U.S. Forest Service lands contained within our proposed critical habitat boundary. Training activities on U.S. Forest Service lands occur via a special use permit (Forest Service 2012a–d, entire). We have been in support of the requirements established under the special use permit and currently operating greater sage-grouse management direction. The Mountain Warfare Training Center is a training site for Marines preparing to serve in mountainous regions, with an emphasis on training for cold weather and high altitudes. Training activity primarily involves limited personnel pedestrian activities, helicopter landing and deployment sites, and vehicle exercises on established roads. Approximately 9,818 ha (26,262 ac) in Unit 2 of Forest Service land utilized by the Marine Corps for the Mountain Warfare Training Center supports habitat currently occupied by the Bi-State DPS that contains the physical and biological features essential to the conservation of the species, including nesting, broodrearing, and wintering seasonal habitats. While we do not have information currently indicating that these lands utilized by the Department of Defense for military readiness and the remaining lands within the proposed designation of critical habitat for the Bi-State DPS will have an impact on national PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 security, we may consider excluding certain lands in the final rule. Consequently, the Secretary does not propose to exert her discretion to exclude any areas from the final designation based on impacts on national security at this time. However, should the Marine Corps’ Mountain Warfare Training Center or another entity identify impacts to national security that may result from designating critical habitat on lands owned, managed, or utilized by the Department of Defense, or on the remaining lands within the critical habitat footprint, we may consider excluding those lands in the final rule. Alternatively, should the Marine Corps’ Mountain Warfare Training Center complete an INRMP, we would conduct an analysis to determine if it meets the criteria for exemption from the final critical habitat designation under section 4(a)(3) of the Act (see Application of Section 4(a)(3) of the Act, above). 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 management plans for the area, 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-togovernment relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation. E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 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 a conservation benefit for the species and its habitat; (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 believe that the Los Angeles Department of Water and Power’s (LADWP’s) conservation strategy (which includes development of an memorandum of understanding (MOU)), along with our ongoing partnership with this agency, fulfills the above criteria, and we are considering the exclusion of lands covered by this conservation strategy that provides for the conservation of the Bi-State DPS. We are requesting comments on the benefit to the Bi-State DPS from this conservation strategy (see Information Requested section above) for this considered exclusion. At this time, we are not proposing the exclusion of any areas in the proposed critical habitat for the BiState DPS. Los Angeles Department of Water and Power (LADWP) Conservation Strategy The LADWP owns and manages approximately 15,535 ha (38,389 ac) of the Bi-State DPS’s habitat within the Bodie and South Mono PMUs (North Mono Lake Unit 2 and South Mono Lake Unit 3) in Mono County, California. The LADWP has been managing their lands for the conservation of the Bi-State DPS, including implementing measures that enhance the habitat and also reduce threats. Additionally, LADWP is developing an HCP that would provide a conservation benefit to the Bi-State DPS and its habitat. The activities we anticipate to be covered in the HCP are fire and weed (i.e., nonnative, invasive plants) management, livestock grazing, irrigated agriculture (i.e., irrigated pasture management), recreation, road maintenance and closures (i.e., infrastructure—roads), power production, and power transmission (i.e., infrastructure—power lines). Past and current beneficial conservation actions implemented to date include (but are not limited to) the following: VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 (1) Fire—A fire management plan has been implemented that emphasizes fire prevention and suppression, and follows guidelines developed by LADWP for lands in Inyo County (LADWP and Ecosystem Sciences 2010). This conservation strategy is important for protecting sagebrush communities (i.e., sage-grouse habitat) from its principle disturbance mechanism and preventing wildfires that can cause large-scale habitat loss that leads to fragmentation and isolation of sagegrouse populations. The wildland fire agencies in the area (i.e., CalFire, BLM, and Forest Service) and LADWP have an agreement in place to collaborate on suppressing fires in the region regardless of where the fire is located. If a wildfire starts on LADWP lands in sage-grouse habitat, the response will be a multi-agency effort to suppress the fire. This multi-agency effort means that potentially fewer acres of sage-grouse habitat will be lost during a wildfire event. Additionally, the LADWP reduces the threat of wildfires through implementation of a no campfire/ campstove policy outside established, permitted campgrounds, and implementation of temporary closures of key sage-grouse habitat use areas during the July 4th holiday. (2) Nonnative, Invasive Plants— LADWP has licensed staff that treat noxious weeds. Active treatment of nonnative, invasive plants reduces the likelihood that invasive species will become established in and negatively impact sagebrush ecosystems by altering plant community structure and composition, hydrology, and other aspects of the sage-brush ecosystem on which sage-grouse in the Bi-State area rely. (3) Energy Development—Although there are no plans for energy development on LADWP lands in sagegrouse habitat, any potential future proposals would consider impacts to the DPS and its habitat (which may result in impacts such as, but not limited to, loss of sagebrush habitat from structure development, reduced water supply in brood-rearing habitats, and sage-grouse behavioral impacts from increased human presence). (4) Sage-brush Removal—Although sagebrush removal may have occurred in the past, there are no ongoing or future sage-brush removal projects planned on LADWP land. This is important to ensure adequate sagebrush habitat for sage-grouse occurs on LADWP lands. (5) Grazing—All existing livestock grazing leases have a livestock grazing management plan with upland, riparian, and irrigated pasture management PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 64345 guidelines and monitoring. Approximately 60 percent (9,261 ha (22,884 ac)) of LADWP lands are located in the South Mono Lake Unit 3. Currently, there are no active livestock grazing leases on the remaining 40 percent (6,275 ha (15,505 ac)) of LADWP lands in the Mono Basin watershed, which is located in North Mono Lake Unit 2 and South Mono Lake Unit 3. The implementation of appropriate livestock grazing management plans on those LADWP lands grazed in the South Mono Lake Unit 3 (i.e., leased and grazed areas totaling 7,986 ha (19,734 ac), most of which is sage-grouse habitat) will prevent further loss of sagebrush habitat and/or the reduction of habitat quality for sage-grouse on LADWP lands. (a) Upland Management—LADWP adopted BLM’s livestock forage utilization guidelines for all upland areas (i.e., areas permitted for grazing in the Owens River watershed) in potential sage-grouse habitat (i.e., maximum 40 percent use on perennial bunchgrasses). Additionally, monitoring is conducted using identical protocols to those adapted by the BLM Bishop Field office and NRCS to evaluate land management practices with a focus towards improving sage-grouse habitat. (b) Riparian Management—Riparian pastures were created along the Upper Owens River, Convict Creek, McGee Creek and Mammoth Creek in the early 1990s with the goal of improving riparian habitat and fisheries (Hill et al. 2002, entire). For the past 13 years, livestock have grazed each riparian pasture once every three years. Grazing can begin in June on whichever riparian pasture is most suitable at the time given current climatic conditions. Cattle will be removed from riparian pastures at the end of the grazing period or when the average utilization of herbaceous forage has reached 30 percent, whichever comes first. Monitoring conducted in riparian pastures includes utilization, fixed photopoints, permanent riparian monitoring transects, and channel cross-section monitoring. (c) Irrigated Pasture Management— Lessees (in areas permitted for grazing activities in the Owens River watershed) are required to maintain irrigated pastures in good to excellent condition. Pastures are monitored and rated using NRCS’s Guide to Pasture Condition Scoring system (Cosgrove et al. 2001, entire). Pastures in good to excellent condition will continue to provide a diverse variety of forbs and insects during the sage-grouse brood-rearing period, whereas pastures in lower E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64346 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules quality condition would be improved, which would benefit sage-grouse. (6) Mining—There are no current or proposed areas of mining or reclamation occurring on LADWP land in sagegrouse habitat. Any future proposed mining projects would consider impacts to sage-grouse and their habitat, which can include, but is not limited to, loss of sagebrush habitat, water contamination, and invasion of nonnative species. (7) Recreation—Recreation management follows the general guidelines and practices outlined in the Owens Valley Land Management Plan (LADWP and Ecosystem Sciences 2010). These guidelines direct various recreational activities to reduce potential impacts to sage-grouse and their habitat, including, but not limited to, requiring permission for individual and group events, developing sagegrouse lek-viewing guidelines through cooperation with BLM, and closing redundant roads or rerouting roads that exist in key sage-grouse habitat areas (e.g., Long Valley). (8) Urban Development—LADWP policy does not promote new urban or agricultural development in the Plan Area (the area covered in the draft HCP and that includes all of LADWP lands in Inyo and Mono Counties). LADWP is developing an HCP to cover its ongoing activities, which include water gathering, water distribution, hydroelectric power production, power transmission activities, and continuation of other land uses. These other land uses include irrigated agriculture, livestock grazing, recreation, fire and weed management, road maintenance and closures, and habitat enhancements for covered species (those species addressed in the draft HCP). One of the covered species in the draft HCP is the Bi-State DPS; therefore, the HCP would provide a conservation benefit to the Bi-State DPS and its habitat. The current draft HCP proposes to conserve all existing sagegrouse habitat for the life of the permit (i.e., 10 years), and possibly longer if the permit is renewed. (9) Infrastructure (Roads, Power Lines, and Transmission and Communication Towers)—The development of new infrastructure including roads, power lines, transmission towers, and communication towers within sagegrouse habitat will be avoided to the extent practicable. Impacts to sagegrouse will be considered to reduce effects such as habitat fragmentation and increased predator presence, and minimization measures will be implemented if new infrastructure does occur. VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 (10) Infrastructure (Fencing)—Fences within 2 km (1.25 mi) of occupied leks are evaluated to determine if collisions are occurring or to determine the potential for collisions (following guidelines presented in the Service’s Greater Sage-grouse Conservation Objectives Team (COT) Final Report (Service 2013b, p. 52). Future fencing will be evaluated for the potential impacts to sage-grouse. Unnecessary fencing in high-risk areas will be removed. Additionally, LADWP has been installing ‘‘let down’’ fencing (i.e., permanent metal fence posts with horizontal wire strands that can be effectively removed during the sagegrouse breeding season or when cattle are not present), thus reducing the likelihood of sage-grouse collisions. To date, LADWP has installed approximately 3.2 km (2 mi) of let-down fencing in the vicinity of the largest lek in Long Valley; another 0.8 km (0.5 mi) of fencing will be converted to let-down in 2013. To ensure the continuation of this management, LADWP has committed to developing and implementing a conservation strategy to proactively manage the Bi-State DPS on their lands within the Bodie and South Mono PMUs (B. Tillemans 2013, in litt.). To coordinate these efforts, we anticipate co-signing an MOU with LADWP (until such time as an HCP is completed) for implementing a sage-grouse conservation strategy that will address the threats to sage-grouse in the Bi-State area as outlined in the Service’s COT Final Report (Service 2013b, entire). As a result, we will consider excluding LADWP lands from the final critical habitat designation based on the protections provided through our partnerhip with LADWP, and to the extent consistent with the requirements of section 4(b)(2) of the Act. The Secretary is considering exercising her discretion to exclude 15,535 ha (38,389 ac) that meet the definition of critical habitat for the BiState DPS in the North Mono Lake Unit 2 and South Mono Lake Unit 3. Habitatrelated threats present on LADWP lands that may require special management considerations or proection include, but are not limited to, recreation, rangeland management, and surface water management (see the proposed listing rule for the Bi-State DPS (published elsewhere in today’s Federal Register) for additional discussion of threats resulting in the present or threatened destruction, modification, or curtailment of the Bi-State DPS’s habitat or range). The existing conservation actions being implemented by the LADWP and the proposed MOU help PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 address these threats to the Bi-State DPS. We are considering excluding 15,535 ha (38,389 ac) in Units 2 and 3 based on the protections provided through our partnership with LADWP, to the extent consistent with the requirements of section 4(b)(2) of the Act. We encourage any public comment regarding our consideration to exclude this area in the final critical habitat designation (see Information Requested section above). Peer Review In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in making this determination—including information on taxonomy, habitat, distribution, population estimates and trends, and potential threats—is presented in the BiState DPS Species Report available at https://www.regulations.gov (Docket No. FWS–R8–ES–2013–0042). A summary of this analysis is found within the proposed listing rule published elsewhere in today’s Federal Register. The purpose of peer review is to ensure that our critical habitat designation is based on scientifically sound data, and analyses. We have invited these peer reviewers to comment during this public comment period. We will consider all comments and information received during this comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal. Public Hearings Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Management and Budget 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 of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the 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 the 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. 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; and small businesses (13 CFR 121.201). Small businesses include such businesses as 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 VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 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 forestry and logging operations with fewer than 500 employees and annual business less than $7 million. To determine whether small entities may be affected, we will consider the types of activities that might trigger regulatory impacts under this designation as well as 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. Importantly, the incremental impacts of a rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis. If a substantial number of small entities are affected by the proposed critical habitat designation, but the per-entity economic impact is not significant, the Service may certify. Likewise, if the per-entity economic impact is likely to be significant, but the number of affected entities is not substantial, the Service may also certify. The Service’s current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service’s current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated, such as small businesses. Therefore, because Federal agencies are not small entities, the Service certifies that the proposed critical habitat rule will not have a significant economic impact on a substantial number of small entities. However, Executive Orders 12866 and 13563 direct Federal agencies to assess costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. In other PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 64347 words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, including small business entities, where practicable and reasonable. Our draft economic analysis will assess and consider the incremental costs of the proposed designation, to the extent practicable, to fulfill these requirements. 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. Energy distribution facilities (i.e., power lines and one geothermal facility) are present within this proposed critical habitat designation, athough we do not expect the designation of this proposed critical habitat to significantly affect energy supplies, distribution, or use. This is because, under section 7 of the Act, the lead agency for a proposed project would need to consider project modifications only if the project were to reach a threshold of jeopardizing the continued existence of the DPS or destroy or adversely modify its critical habitat, a scenario that is unlikely within the footprint of the existing power lines and geothermal facility for this DPS. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. 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 would 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.’’ 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 E:\FR\FM\28OCP3.SGM 28OCP3 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 64348 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules 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 would significantly or uniquely affect small governments because the majority of lands (i.e., 86 percent) being proposed for designation are Federal lands (including Humboldt-Toiyaba National Forest, Inyo National Forest, Carson City District BLM, Bishop Field Office-BLM, Tonopah Field Office-BLM, and Stillwater Field Office-BLM) and VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 State lands (the Slinkard/Little Antelope Valley, Green Creek, East Walker River, and Pickel Meadow Wildlife Areas) in both Nevada and California. None of these government entities fits the definition of ‘‘small governmental jurisdiction.’’ Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue (including with regards to the tribal lands (Washoe Tribe of Nevada and California, Bridgeport Paiute Indian Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation (California), and the Death Valley Timbi-sha Shoshone Tribe) and private lands that represent a significantly smaller proportion of the proposed critical habitat designation) as we conduct our economic analysis, and review and revise this assessment as warranted. Takings—Executive Order 12630 In accordance with Executive Order 12630 (‘‘Government Actions and Interference with Constitutionally Protected Private Property Rights’’), this rule is not anticipated to have significant takings implications. As discussed above, the designation of critical habitat affects only Federal actions. 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. Due to current public knowledge of the DPS’s protections and, if we list the DPS, the prohibition against take of the DPS both within and outside of the proposed critical habitat units, we do not anticipate that property values will be affected by the critical habitat designation. However, we have not yet completed the economic analysis for this proposed rule. Once the economic analysis is available, we will review and revise this preliminary assessment as warranted, and prepare a takings implication assessment. Federalism—Executive Order 13132 In accordance with Executive Order 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism summary impact statement is not required. In keeping with Department of the Interior policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Nevada and California. The designation of critical habitat in areas currently occupied by the Bi-State DPS PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 imposes no additional restrictions to those that would be put in place by listing the DPS and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments because the areas that contain the physical or biological features essential to the conservation of the DPS are more clearly defined, and the elements of the features necessary to the conservation of the DPS 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) would 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 system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the DPS, the rule identifies the elements of physical or biological features essential to the conservation of the DPS. 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 proposed 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 E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules 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. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 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. There are tribal lands in Nevada and California included in this proposed designation of critical habitat. These include lands owned or managed by the Washoe Tribe of Nevada and California, Bridgeport Paiute Indian Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, and the Death Valley Timbi-sha Shoshone Tribe. Using the criteria found in the Criteria Used To Identify Critical Habitat section above, we have determined that all of the areas proposed for designation on tribal lands are essential to the conservation of the DPS. We will seek government-to-government consultation with these tribes throughout the proposal process and development of VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 64349 the final designation of critical habitat for the Bi-State DPS. At this time we are not considering any tribal lands for exclusion from final critical habitat designation. We recently informed all four tribes of how we are evaluating section 4(b)(2) of the Act and of our interest in consulting with them on a government-to-government basis. Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245; unless otherwise noted. Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. § 17.95 References Cited A complete list of references cited in this rulemaking is available on the Internet at https://www.regulations.gov and upon request from the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this package are the staff members of the Pacific Southwest Regional Office, Nevada Fish and Wildlife Office, and Ventura Fish and Wildlife Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 2. In § 17.95, amend paragraph (b) by adding an entry for ‘‘Bi-State Distinct Population Segment of the Greater Sagegrouse (Centrocercus urophasianus),’’ in the same alphabetical order that the species appears in the table at § 17.11(h), to read as follows: ■ Critical habitat—fish and wildlife. * * * (b) Birds. * * * * * * * Bi-State Distinct Population Segment of the Greater Sage-grouse (Centrocercus urophasianus) (1) Critical habitat units are depicted for Carson City, Douglas, Esmeralda, Lyon, and Mineral Counties, Nevada, and Alpine, Inyo, and Mono Counties, California, on the maps below. (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Bi-State DPS of greater sage-grouse consist of four components: (i) Landscape-scale Primary Constituent Element 1. Areas with vegetation composed primarily of sagebrush plant communities of sufficient size and configuration to encompass all seasonal habitats for a given population of greater sage-grouse, or facilitate movements within and among populations. This includes former sagebrush communities in specific locations that are currently primarily woodland encroached sites that potentially provide connectivity between populations. (ii) Site-scale Primary Constituent Element 2. Breeding habitat composed of sagebrush plant communities with structural characteristics within the following ranges (habitat structure values are average values): Vegetation variable Sagebrush Canopy Cover. Non-sagebrush Canopy Cover. Total Shrub Canopy Cover. Sagebrush Height ..... Perennial Grass Cover. Annual Grass Cover Forb Cover ................ Grass/Forb Height ..... E:\FR\FM\28OCP3.SGM 28OCP3 Amount of occurrence in the habitat >20 percent. >20 percent. >40 percent. >30 centimeters (12 inches). No less than 5 percent but >10 percent if total shrub cover <25 percent. <5 percent. >10 percent. >18 centimeters (7 inches). 64350 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (iii) Site-scale Primary Constituent Element 3. Brood-rearing habitat composed of sagebrush plant communities and mesic habitats used primarily in the summer to late fall season. These sites include, but are not limited to, riparian communities, springs, seeps, and mesic meadows, with structural characteristics within the following ranges: Vegetation variable wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 Sagebrush Canopy Cover. Total Shrub Canopy Cover. Sagebrush Height ..... Perennial Grass Cover. Perennial Forb Diversity. Forb Cover ................ Grass/Forb Height ..... Meadow Edge (ratio perimeter to area). VerDate Mar<15>2010 Amount of occurrence in the habitat 10 to 25 percent. 14 to 25 percent. >30 cm (12 in). >7 percent. >5 species present. >7 percent. 18 cm (7 in). >0.015. 17:01 Oct 25, 2013 Jkt 232001 Vegetation variable Species Richness ..... Amount of occurrence in the habitat >5 species. (iv) Site-scale Primary Constituent Element 4. Winter habitat composed of sagebrush plant communities with sagebrush canopy cover greater than 10 percent and sagebrush height of greater than 25 centimeters (9.8 inches) above snow level. (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 [EFFECTIVE DATE OF FINAL RULE]. (4) Critical habitat map units. Data layers defining map units were created from a number of geospatial and informational data, including (but not limited to): The 2012 Bi-State greater sage-grouse Preliminary Priority Habitat (PPH) Map (Bi-State TAC PPH 2012b), a PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 map product depicting occupied habitat developed by the Bureau of Land Management (BLM) in 2008 (BLM 2008), the 2012 Bi-State Action Plan (Service 2012b), multiple broad-scale vegetation mapping products, and telemetry data sets. Critical habitat units were then mapped as shapefiles using Universal Transverse Mercator (UTM) Zone 11N coordinates. 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/nevada/ and https://www.fws.gov/ventura/), at https:// www.regulations.gov at Docket No. FWS–R8–ES–2013–0042 and at the field office responsible for this designation. 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. BILLING CODE 4310–55–P E:\FR\FM\28OCP3.SGM 28OCP3 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules 64351 (5) Index map follows: Index Map: Critical Habitat for Bi-State Distinct Population Segment (DPS) of Greater Sage-Grouse; Alpine J Inyo, and Mono Counties, California; and Carson City, Douglas, Esmeralda, Lyon, and Mineral Counties, Nevada \~) 0 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 17:01 Oct 25, 2013 Jkt 232001 60 30 Eli-State DPS Critical Habitat State Boundary CA ~,,,,.~ VerDate Mar<15>2010 c::J 0 30 Kilometers 60 CQunty Boum:l ary /V • PO 00000 Frm 00025 Fmt 4701 Sfmt 4725 E:\FR\FM\28OCP3.SGM f\.'lajo-f Roads Towns 28OCP3 N A EP28OC13.010</GPH> '\ Miles 64352 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (6) Unit 1: Pine Nut; Carson City, Douglas, and Lyon Counties, Nevada, and Alpine and Mono Counties, California. Map of Unit 1 follows: Unit 1: Critical Habitat for Bi-State Distinct Population Segment of Greater Sage-Grouse; Carson City, Douglas, and lyon Counties, Nevada; and Alpine and Mono Counties, California \~l 0 Kilometers CA wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 14:04 Oct 25, 2013 Jkt 232001 Crittcal Habitat 20 10 State Boundary 0 :'"'' ~'L~ VerDate Mar<15>2010 c::::J 10 20 c ,- - I /'V CQunty Boundary Roads • PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\28OCP3.SGM 28OCP3 N A EP28OC13.011</GPH> \ Miles Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (7) Unit 2: North Mono Lake; Douglas, Lyon, and Mineral Counties, Nevada, 64353 and Alpine and Mono Counties, California. Map of Unit 2 follows: Unit 2: Critical Habitat for Bi-State Distinct Population Segment of Greater Sage-Grouse; Douglas, lyon, and Mineral Counties, Nevada; and Alpine and Mono Counties, California Mount Grant PMU Mineral County Bodie PMU wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 ~ VerDate Mar<15>2010 - 0 Miles 20 10 State Boundary Kilometers 10 Jkt 232001 PO 00000 Frm 00027 RQads • .-/ " 14:04 Oct 25, 2013 County Boundary /'V 20 c I __ I Fmt 4701 Sfmt 4725 E:\FR\FM\28OCP3.SGM Towns 28OCP3 N A EP28OC13.012</GPH> ~~ :~~~~ 0 64354 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (8) Unit 3: South Mono Lake; Mono County, California. Map of Unit 3 follows: Unit 3: Critical Habitat for Bi-State Distinct Population Segment of Greater Sage-Grouse; Mono County. California ~\~~ VerDate Mar<15>2010 Jkt 232001 Cohea! Habitat State Boundary Kilometers 0 , ___--" 14:04 Oct 25, 2013 10 c::::J 10 c t __ I County8aund3ry /'V 20 Roads • PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\28OCP3.SGM 28OCP3 N A EP28OC13.013</GPH> wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 VI· 0 Miles 20 Federal Register / Vol. 78, No. 208 / Monday, October 28, 2013 / Proposed Rules (9) Unit 4: White Mountains; Esmeralda and Mineral Counties, 64355 Nevada, and Inyo and Mono Counties, California. Map of Unit 4 follows: Unit 4: Critical Habitat for Bi-State Distinct Population Segment of Greater Sage-Grouse; Esmeralda and Mineral Counties, Nevada; and Inyo and Mono Counties, California Hawthorne Mineral County Tonopah J \ \ \ I I \ \ \~~ .\~~A 0 - 0 * * * 10 Critical Habitat 20 State Boundary , Kilometers 10 t __ 20 , /'V • County Bo-unrlary Roads Towns N A Dated: September 26, 2013. Rachel Jacobsen, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. * [FR Doc. 2013–24305 Filed 10–25–13; 8:45 am] BILLING CODE 4310–55–C VerDate Mar<15>2010 14:04 Oct 25, 2013 Jkt 232001 PO 00000 Frm 00029 Fmt 4701 Sfmt 9990 E:\FR\FM\28OCP3.SGM 28OCP3 EP28OC13.014</GPH> wreier-aviles on DSK5TPTVN1PROD with PROPOSALS3 ~'L-.-J * c::I Miles

Agencies

[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Proposed Rules]
[Pages 64327-64355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24305]

[[Page 64327]]

Vol. 78

Monday,

No. 208

October 28, 2013

Part III

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Bi-State Distinct Population Segment of Greater Sage-
Grouse; Proposed Rule

Federal Register / Vol. 78 , No. 208 / Monday, October 28, 2013 /
Proposed Rules

[[Page 64328]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-2013-0042; 4500030114]
RIN 1018-AZ70

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Bi-State Distinct Population Segment of
Greater Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
critical habitat for the the Bi-State distinct population segment (DPS)
of greater sage-grouse (Centrocercus urophasianus) under the Endangered
Species Act (Act). In total, approximately 755,960 hectares (1,868,017
acres) fall within the boundaries of the proposed critical habitat
designation in Carson City, Lyon, Douglas, Mineral, and Esmeralda
Counties, Nevada, and Alpine, Mono, and Inyo Counties, California. If
we finalize this rule as proposed, it would extend the Act's
protections to this DPS's critical habitat.

DATES: Comment Submission: We will accept comments received or
postmarked on or before December 27, 2013. Comments submitted
electronically using the Federal eRulemaking Portal (see ADDRESSES
section, below) must be received by 11:59 p.m. Eastern Time on the
closing date. We must receive requests for public hearings, in writing,
at the address shown in FOR FURTHER INFORMATION CONTACT by December 12,
2013. Public Meeting: Two public meetings will be held on this proposed
rule: (1) November 5, 2013, from 4:00 p.m. to 6:00 p.m. (Pacific Time);
and (2) November 6, 2013, from 1:00 p.m. to 3:00 p.m. (Pacific Time).
People needing reasonable accommodations in order to attend and
participate in the public hearing should contact Jeannie Stafford,
Nevada Fish and Wildlife Office, as soon as possible (see FOR FURTHER
INFORMATION CONTACT).

ADDRESSES: Comment Submission: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-R8-ES-
2013-0042, which is the docket number for this rulemaking. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, click on the Proposed Rules link to locate this document. You
may submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-ES-2013-0042; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Information Requested section below for more information).
Public Meetings: The November 5, 2013, public meeting will be held
at the Tri-County Fairgrounds, Home Economics Room, Sierra Street and
Fair Drive, Bishop, CA 93514. The November 6, 2013, public meeting will
be held at the Smith Valley Community Center, 2783 State Route 208,
Wellington, NV 89444.
Details of Units: 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
www.regulations.gov at Docket No. FWS-R8-ES-2013-0042, the Reno Fish
and Wildlife Office or on their Web site at https://www.fws.gov/nevada/,
and at the Ventura Fish and Wildlife Office or on their Web site at
https://www.fws.gov/ventura/ (see FOR FURTHER INFORMATION CONTACT). Any
additional tools or supporting information that we may develop for this
critical habitat designation will also be available at the Fish and
Wildlife Service Web sites and Field Offices set out above, and may
also be included in the preamble or at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general information on the
proposed critical habitat designation as well as information about the
proposed critical habitat specific to Nevada (Carson City, Lyon,
Douglas, Mineral, and Esmeralda Counties), contact Edward D. Koch,
State Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and
Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502;
telephone 775-861-6300; or facsimile 775-861-6301. For information
about the proposed critical habitat specific to California (Alpine,
Mono, and Inyo Counties), contact Diane Noda, Field Supervisor, or Carl
Benz, Assistant Field Supervisor, Ventura Fish and Wildlife Office,
U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA
93003; telephone 805-644-1766; facsimile 805-644-3958. 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. Elsewhere in today's Federal
Register, we propose to list the Bi-State DPS of greater sage-grouse as
a threatened species under the Endangered Species Act. Under the Act,
critical habitat shall be designated, to the maximum extent prudent and
determinable, for any species determined to be an endangered or
threatened species under the Act. Designations and revisions of
critical habitat can be completed only by issuing a rule.
This rule proposes to designate critical habitat for the Bi-State
DPS of greater sage-grouse (hereafter referred to as the Bi-State DPS
of greater sage-grouse or the Bi-State DPS). Based on our proposal to
list the Bi-State DPS as a threatened species, we are proposing
critical habitat for the Bi-State DPS under the Act. In total,
approximately 755,960 hectares (ha) (1,868,017 acres (ac)) are being
proposed for designation as critical habitat in Carson City, Lyon,
Douglas, Mineral, and Esmeralda Counties in Nevada, and Alpine, Mono,
and Inyo Counties in California.
The basis for our action. Under the Endangered Species Act, any
species that is determined to be an endangered or threatened species
shall, to the maximum extent prudent and determinable, have habitat
designated that is considered to be critical habitat.
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 he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless 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.
We are preparing an economic analysis of the proposed designation
of critical habitat. In order to consider economic impacts, we are
preparing an

[[Page 64329]]

analysis of the economic impacts of the proposed critical habitat
designation and related factors. We will announce the availability of
the draft economic analysis as soon as it is completed, at which time
we will seek additional public review and comment.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat proposal is based on
scientifically sound data and analyses. We have invited these peer
reviewers to comment on our specific assumptions and conclusions in
this listing proposal. A thorough review of information that we relied
on in making this determination--including information on taxonomy,
habitat, distribution, population estimates and trends, and potential
threats--is presented in the Bi-State DPS Species Report available at
https://www.regulations.gov (Docket No. FWS-R8-ES-2013-0042). A summary
of this analysis is found within the proposed listing rule published
elsewhere in today's Federal Register. Because we will consider all
comments and information we receive during the comment period, our
final determination may differ from this proposal.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of the Bi-State DPS's habitat;
(b) What areas, that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the DPS, should be included in the designation and why;
(c) The features essential to the conservation of the Bi-State DPS
as described in the Physical and Biological Features section of this
rule, in particular the currently unsuitable or less than suitable
habitat that accommodates restoration identified in the Bi-State Action
Plan (i.e., actions HIR1-1-PN, HIR-1-2-PN, HIR1-1-DCF, HIR1-2-DCF,
HIR1-1-MG, HIR1-1-B, and HIR1-3-SM) (Bi-State Technical Advisory
Committee (TAC) 2012, pp. 93-95).
(d) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential
for the conservation of the DPS and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Bi-State DPS and proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular lands managed or utilized by
the Department of Defense (U.S. Marine Corps' Mountain Warfare Training
Center) and by the Los Angeles Water and Power District (LAPWD).
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on https://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address from public
review; however, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Previous Federal Actions

All previous Federal actions are described in the proposal to list
the Bi-State DPS as a threatened species under the Act, which is
published elsewhere in today's Federal Register.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided 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 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

[[Page 64330]]

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 is 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 and 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. We designate critical habitat in areas outside the
geographical area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
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, would 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 ensure 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 would continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation would 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.
For the purposes of this proposed rule, we discuss the biology of
the Bi-State DPS, its habitat, population abundance information, and
other physical, biological, or geographical information within the
context of the local management units (Population Management Units
(PMUs)) used by the various land management agencies within the range
of the DPS. Six PMUs were established in 2001 as management tools for
defining and monitoring sage-grouse distribution in the Bi-State area
(Sage-Grouse Conservation Planning Team 2001, p. 31). The PMU
boundaries are based on aggregations of leks (communal breeding areas),
known seasonal habitats, and telemetry data, which represent
generalized subpopulations or local breeding complexes. The six PMUs
(north to south) include: Pine Nut, Desert Creek-Fales, Bodie, Mount
Grant, South Mono, and White Mountains PMUs. These six PMUs represent a
total of four to eight demographically independent populations with a
combined total of approximately 43 active leks (Service 2013a, pp. 17-
20). Please see the proposed listing rule published elsewhere in
today's Federal Register or the Species Report (Service 2013a, entire)
available at https://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0042 for more background information related to these PMUs.
Additionally, the PMUs are identified in the Proposed Regulation
Promulgation section of this proposed rule.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or

[[Page 64331]]

(2) Such designation of critical habitat would not be beneficial to
the species.
There is currently no imminent threat of take attributed to
collection or vandalism according to the analysis presented in the
Species Report (Service 2013a, entire) and summarized in our proposed
rule to list the Bi-State DPS as threatened (published elsewhere in
today's Federal Register). Identification and mapping of critical
habitat is not expected to initiate any such threat. In the absence of
finding that the designation of critical habitat would increase threats
to a species, if there are any benefits to a critical habitat
designation, then a prudent finding is warranted. Here, the potential
benefits of designation include: (1) Triggering consultation under
section 7 of the Act in new areas for actions in which there may be a
Federal nexus where it would not otherwise occur because, for example,
it is or has become unoccupied or the occupancy is in question; (2)
focusing conservation activities on the most essential features and
areas; (3) providing educational benefits to State or county
governments or private entities; and (4) preventing people from causing
inadvertent harm to the DPS. Therefore, because we have determined that
the designation of critical habitat will not likely increase the degree
of threat to the DPS and may provide some measure of benefit, we find
that designation of critical habitat is prudent for the Bi-State DPS.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the eight
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where the Bi-State DPS
is located. This and other information represent the best scientific
data available and lead us to conclude that the designation of critical
habitat is determinable for the Bi-State DPS.

Physical or Biological Features

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), 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 that
are 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 historic, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Bi-State DPS from studies of this species' habitat, ecology,
and life history as summarized in the proposed listing rule published
elsewhere in today's Federal Register, and in greater detail in the
Species Report (Service 2013a, entire) available at https://www.regulations.gov (in the Search box, enter FWS-R8-ES-2013-0042,
which is the docket number for this rulemaking). We have determined
that the following physical or biological features are essential to the
conservation of the Bi-State DPS of greater sage-grouse:
Space for Individual and Population Growth and for Normal Behavior
The Bi-State DPS of greater sage-grouse require large,
interconnected expanses of sagebrush plant communities that contain a
healthy understory composed primarily of native, herbaceous vegetation
(Patterson 1952, p. 9; Knick et al. 2003, p. 623; Connelly et al. 2004,
pp. 4-15; Pyke 2011, p. 532; Wisdom et al. 2011, entire). The Bi-State
DPS uses a variety of habitats throughout its lifecycle, such as
riparian and upland meadows, riparian areas with a shrub component,
agricultural lands, and steppe dominated by native grasses and forbs.
However, the Bi-State DPS of greater sage-grouse is considered a
sagebrush obligate because of its near complete reliance on sagebrush
as forage during the winter. In addition, the use of non-sagebrush
habitats is contingent on the presence of sagebrush habitats in close
proximity (Patterson 1952, p. 42; Braun et al. 1976, p. 168; Schroeder
et al. 1999, pp. 4, 5; Connelly et al. 2000a, pp. 970-972; Connelly et
al. 2004, pp. 4-1, 4-18, and references therein; Connelly et al. 2011b,
p. 80; Casazza et al. 2011, p. 159).
The Bi-State DPS of greater sage-grouse moves seasonally among
various sagebrush-dominated vegetation communities. These moves are
driven by breeding activities, nest and brood-rearing site requirements
(such as mesic meadows or spring habitats (see also the ``Food, Water,
Air, Light, Minerals, or Other Nutritional or Physiological
Requirements'' section below)), seasonal changes in the availability of
food resources, and response to weather conditions. Research findings
have parsed the annual life cycle of greater sage-grouse into more or
less unique seasonal habitat requirement categories, but in general
annual habitat use can be categorized into three seasons (although
these do not have to be mutually exclusive): (1) Breeding, (2) brood-
rearing summer, and (3) winter, as well as the pathways that link these
habitats together (Connelly et al. 2011b, pp. 71-80). Research on
greater sage-grouse suggests the species exhibits strong site fidelity
(loyalty to a particular area) to migration corridors and seasonal
habitats, including breeding, nesting, brood-rearing, and wintering
areas, even when a particular area may no longer be of value (Connelly
et al. 2004, p. 3-1; Connelly et al. 2011b, p. 82). Available data
suggest birds within the Bi-State DPS appear to conform with this
understanding (Weichman 2012, unpublished data; P. Coates 2012, pers.
comm.). Adult greater sage-grouse rarely switch inter-annual use among
these seasonal habitats once they have been selected, limiting the
species' adaptability to habitat changes (Berry and Eng 1985, pp. 238-
240; Fischer et al. 1993, p. 1039; Holloran and Anderson 2005, p. 749;
Connelly et al. 2011b, p. 82).
Estimating an average annual home range size for the Bi-State DPS
is difficult due to the large variation in sage-grouse movements both
within and among populations. These variations are related to the
spatial availability of habitats required for seasonal use as well as
individual bird behavior. The pattern and scale of annual movements
among populations of greater sage-grouse within the Bi-State area, and
the degree to which a given habitat patch can fulfill the species'
annual habitat needs, are dependent on the arrangement and quality of
habitats across the landscape. Habitat structure and quality vary
spatially over the

[[Page 64332]]

landscape; therefore, some areas may provide habitat for a single
season, while other areas may provide habitat for one or more seasons
(Connelly et al. 2011a; p. 59). In addition, plant community dynamics
and natural or anthropogenic disturbance also result in a temporal
component of habitat variability and suitability. Across the DPS, fine-
scale habitat structure data on which to delineate seasonal habitats
currently do not exist.
In the Bi-State area, greater sage-grouse home range size varies
from 608 to 24,800 ha (0.9 to over 94.9 square miles) (Casazza et al.
2009, p. 8; U.S. Geological Survey (USGS) 2012, unpublished data).
Variation occurs among individuals as well as among populations,
presumably due in part to behavior and juxtaposition of seasonal
habitats (Connelly et al. 2011a, p. 59). Migratory movements (defined
in Connelly et al. (2000a, p. 969) as moving more than 10 kilometers
(km) (6 miles (mi)) between seasonal habitats) are uncommon among most
individuals in the Desert Creek-Fales, Bodie, South Mono, and White
Mountains PMUs; however, within these areas some individuals make
seasonal movements that exceed this migratory definition (Casazza et
al. 2009, p. 8). Further, recent research in the Pine Nut PMU has
documented typical movements between breeding and brood-rearing summer
habitats of greater than 40 km (24 mi), with at least one individual
moving in excess of 160 km (100 mi) from its lek of capture to summer
and winter habitats (USGS 2012, unpublished data).
While not typical, the extensive migratory movements in the the
Pine Nut PMU demonstrate the importance of migratory behaviors for the
Bi-State DPS and the potential large-scale annual habitat requirements
of the species. Migratory behavior is generally slow and meandering
(flying or walking less than 1 km (0.6 mi) per day); however, more
rapid movements are known and local migratory flights can occur (Dunn
and Braun 1986, p. 89), including in the Bi-State area (USGS 2012,
unpublished data). Migratory behavior in a population can have
important ramifications on population dynamics (Berryman 2002, p. 441).
Juvenile sage-grouse that moved farther distances to seasonal habitats
had lower overall survival than did juveniles that moved relatively
short distances (Beck et al. 2006, p. 1076). Thus, in populations where
large movements are necessary to access seasonal habitat, an increased
cost in terms of increased mortality may be incurred (Connelly et al.
2011a, p. 67).
Therefore, based on the species' year-round reliance on sagebrush
and the various seasonal habitat requirements discussed above, we
identify sagebrush plant communities and interspersed mesic areas of
sufficient size and configuration to be a physical or biological
feature essential to the conservation of this species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food resources used by the Bi-State DPS vary throughout the year
because of seasonal changes in food availability and specific dietary
requirements of adults and chicks. Greater sage-grouse diet is composed
of nearly 100 percent sagebrush in the winter, while forbs, insects,
and sagebrush are important dietary components during the remainder of
the year (Wallestad et al. 1975, p. 629; Barnett and Crawford 1994, p.
117; Schroeder et al. 1999, p. 5; Gregg et al. 2006, pp. 475-476).
Pre-laying hens are particularly dependent on forbs and the insects
supported by native herbaceous understories (Drut et al. 1994, pp. 173-
175; Barnett and Crawford 1994, p. 117; Coggins 1998, p. 30). This pre-
laying period is from approximately late-March to early April. While
limited information is available on pre-nesting habitat selection, pre-
laying habitats for female sage-grouse need to provide a diversity of
vegetation including forbs that are rich in calcium, phosphorous, and
protein to meet the nutritional needs of females during the egg
development period (Barnett and Crawford 1994, p. 117; Connelly et al.
2000a, p. 970). During the pre-laying period, female sage-grouse select
forbs that generally have higher amounts of calcium and crude protein
than sagebrush (Barnett and Crawford 1994, p. 117).
Forbs and insects are essential nutritional components for Bi-State
DPS sage-grouse chicks and for brood-rearing sage-grouse (Klebenow and
Gray 1968, pp. 81-83; Peterson 1970, pp. 149-151; Johnson and Boyce
1991, p. 90; Connelly et al. 2004, p. 3-3; Dahlgren et al. 2006, p.
981; Aldridge and Boyce 2007, pp. 522-523; Casazza et al. 2011, pp.
158-159). During the first 3 weeks after hatching, insects are a
critical food source of chicks (Patterson 1952, p. 201; Klebenow and
Gray 1968, p. 81; Peterson 1970, pp. 150-151; Johnson and Boyce 1990,
pp. 90-91; Johnson and Boyce 1991, p. 92; Drut et al. 1994, p. 93; Pyle
and Crawford 1996, p. 320; Fischer et al. 1996a, p. 194). Diets of 4-
to 8-week-old greater sage-grouse chicks were found to have more plant
material as the chicks matured (Peterson 1970, p. 151). Succulent forbs
are predominant in the diet until chicks exceed 3 months of age, at
which time sagebrush becomes a major dietary component (Klebenow 1969,
pp. 665-656; Connelly and Markham 1983, pp. 171-173; Fischer et al.
1996b, p. 871; Schroeder et al. 1999, p. 5).
Decreased availability of forbs corresponds to a decrease in the
probability of successfully fledging offspring, number of chicks per
female, and brood size (Barnett and Crawford 1994, p. 117; Dahlgren et
al. 2006, p. 981; Aldridge and Boyce 2007, pp. 522-523; Casazza et al.
2011, pp. 158-159). Population dynamics of greater sage-grouse are
sensitive to adult survival, female reproductive success, and chick
survival (Blomberg et al. 2012, pp. 11-12). Therefore, habitats that
support sagebrush vegetation as well as a vegetative understory
composed of native grasses and forbs are essential to key demographic
rates.
In most areas within the range of Bi-State DPS, the herbaceous
understory component of sagebrush plant communities dries out as summer
progresses. Habitats used by greater sage-grouse in summer through late
fall are typically more mesic than surrounding habitats. These areas
are used primarily for foraging because they provide reliable sources
of green, herbaceous vegetation when this resource is seasonally
limited on the landscape (Connelly et al. 2011b, pp. 76-77 and
references therein). Specifically, these areas include: non-wooded
riparian communities, springs, seeps, mesic upland meadows, or the
margins of irrigated hay meadows and alfalfa fields (Casazza et al.
2011, pp. 162-163; Connelly et al. 2011b, pp. 76-77 and references
therein). However, brood-rearing habitats are selected for and provide
for an increased probability of successful recruitment when sites have
adequate perennial forb cover and plant species richness, adequate
meadow to sagebrush edge (ratio of perimeter to area), and are farther
from woodlands (Casazza et al. 2011, pp. 162-163).
In winter, greater sage-grouse diet is almost exclusively
sagebrush, although various species of sagebrush can be consumed
(Rasmussen and Griner 1938, p. 855; Batterson and Morse 1948, p. 20;
Patterson 1952, pp. 197-198; Wallestad et al. 1975, pp. 628-629;
Remington and Braun 1985, pp. 1056-1057; Welch et al. 1988, p. 276;
Welch et al. 1991, p. 462; Myers 1992, p. 55; Connelly et al. 2000a, p.
972). While limited data are available on winter habitat use in the Bi-
State area, characteristics appear similar

[[Page 64333]]

to those identified across the range of greater sage-grouse (P. Coates
2012, pers. comm.). Habitats used by greater sage-grouse during winter
typically consist of 10 to 30 percent sagebrush cover and sagebrush
heights of 25 to 35 centimeters (cm) (10 to 14 inches (in)), regardless
of snow depth (Connelly et al. 2000a, p. 972). In all suitable winter
habitats, the height of sagebrush must be tall enough so that leaves
remain exposed when wintering areas are largely covered with snow
(Connelly et al. 2011b, p. 79).
Based on the information above, we identify sagebrush plant
communities that contain herbaceous vegetation consisting of a
diversity and abundance of forbs, insects, and grasses that fulfill all
of the Bi-State DPS's seasonal dietary requirements to be a physical or
biological feature essential to the conservation of this DPS. We also
identify non-sagebrush habitats located adjacent to sagebrush plant
communities that are used by sage-grouse for foraging during seasonally
dry periods to be a physical or biological feature essential to the
conservation of this DPS. These habitats are generally more mesic than
surrounding habitat, and include wet meadows, riparian areas, and
irrigated pastures.
Cover or Shelter
Predation is the most commonly identified cause of direct mortality
for greater sage-grouse during all life stages and the species relies
on sagebrush and herbaceous vegetation yearlong for escape and hiding
cover (Schroeder et al. 1999, p. 9; Connelly et al. 2000b, p. 228;
Connelly et al. 2011a, p. 66). While limited data are available on
specific predators in the Bi-State area, known and potential predators
of adult birds include golden eagle (Aquila chrysaetos), coyote (Canis
latrans), American badger (Taxidea taxus), and bobcat (Felis rufus)
(Hartzler 1974, pp. 532-536; Schroeder et al. 1999, pp. 10-11;
Schroeder and Baydack 2001, p. 25; Rowland and Wisdom 2002, p. 14;
Hagen 2011, p. 97). Most raptor predation of greater sage-grouse is on
juveniles and adult age classes during the breeding and late brood-
rearing periods when birds are more conspicuous and associated with
more sparsely vegetated sites (Hagen 2011, p. 96). Juvenile greater
sage-grouse also are killed by common ravens (Corvus corax), American
badgers, coyotes, and weasels (Mustela spp.) (Braun 1995, entire;
Schroeder et al. 1999, p. 10). Nest predators in the Bi-State area may
include badgers, weasels, coyotes, common ravens, American crows
(Corvus brachyrhynchos), magpies (Pica spp.), and domestic cows (Bovus
spp.) (Coates et al. 2008, pp. 425-426). Coates (2012, pers. comm.)
suggests that common ravens are likely the most prolific nest predator
in the Bi-State area.
While greater sage-grouse in the Bi-State DPS are depredated by a
variety of predators across all life stages, they are not considered
primary-prey for any one predator species. The top predators in the Bi-
State area (i.e., golden eagles, coyotes, bobcats, and common ravens)
are considered generalists and focus more heavily on small mammals.
Nest predation is influenced by the amount of cover surrounding the
nest (Gregg et al. 1994, p. 164; Braun 1995, pp. 1-2; DeLong et al.
1995, p. 90; Braun 1998, p. 149; Coggins 1998, p. 30; Connelly et al.
2000a, p. 975; Schroeder and Baydack 2001, p. 25; Coates and Delehanty
2008, p. 636; Kolada et al. 2009b, p. 1343). Females actively select
nest sites with the presence of big sagebrush (Artemisia tridentata
Nutt. ssp.), grass, and forb cover (Connelly et al. 2000a, p. 971), and
nesting success of greater sage-grouse is positively correlated with
these qualities (Schroeder and Baydack 2001, p. 25; Hagen et al. 2007,
p. 46; Kolada et al. 2009b, p. 1343). In general, vegetation
characteristics of successful nest sites include sagebrush canopy cover
of greater than 15 percent, sagebrush heights of 30 to 80 centimeters
(cm) (11.8 to 31.5 in), grass and forb heights of 18 cm (7.1 in), and
grass and forb cover of greater than 15 percent (Connelly et al. 2000a,
p. 977). While cover (canopy cover or shrubs, and understory cover or
herbaceous plants) positively influences nesting success, the most
important type of cover appears variable across the range of the
greater sage-grouse (Connelly et al. 2000a, p. 971; Coates 2007, p.
148). In the Bi-State area, shrub canopy cover appears to be most
influential to both nest-site selection and nesting success (Kolada et
al. 2009a, p. 1336; Kolada et al. 2009b, p. 1343).
Furthermore, vegetation other than sagebrush (i.e., understory
vegetation and other herbaceous cover) have a significant positive
impact on nest success (Kolada et al. 2009b, p. 1343). While not
readily apparent in the Bi-State area (Kolada et al. 2009b, p. 1344),
both understory cover and height has been shown to influence nest
success across the range of the greater sage-grouse (Gregg 1994, p.
164; Hagen et al. 2007, p. 46). Additionally, reduced herbaceous cover
for young chicks can increase their rate of predation (Schroeder and
Baydack 2001, p. 27; Aldridge and Boyce 2008, p. 402). These studies
taken collectively indicate the importance of sufficient cover to nest
and brood success of sage-grouse in the Bi-State area.
Fragmentation of large, intact habitats into smaller units due to
anthropogenic or natural causes has been implicated to affect the Bi-
State DPS's susceptibility to mortality through predation. Local
attraction of common ravens to nesting females may be facilitated by
loss and fragmentation of native shrublands, which increases exposure
of nests to potential predation (Aldridge and Boyce 2007, p. 522; Bui
2009, p. 32; P. Coates 2012, pers. comm.). Reduction in patch size and
diversity of sagebrush habitat, and increased edge, as well as the
construction of fences, power lines, and other infrastructure also are
likely to encourage the presence of the common raven (Coates et al.
2008, p. 426; Bui 2009, p. 4). Greater sage-grouse are adapted to
minimize predation by cryptic plumage and behavior (Hagen 2011, p. 96).
Because sage-grouse are prey, predation will continue to have an effect
on the Bi-State DPS; however, where habitat is not limited and is of
good quality, predation appears to be less influential on population
demographic rates (Coates 2007, pp. 154, 155; Hagen 2011, p. 100).
Landscape fragmentation, habitat degradation, and human populations
have the potential to increase predator populations through increasing
ease of securing prey and subsidizing food sources and nest or den
sites. Thus, otherwise suitable habitat may, in fact, act as a
population sink, whereby predation affects mortality more quickly than
the beneficial aspects of the habitat can affect recruitment (Aldridge
and Boyce 2007, p. 517). Most sage-grouse research has failed to
quantify predation rates in relation to habitat structure at a
landscape level. Thus, while it is not currently possible to completely
understand the relationships among habitat structure, sage-grouse
demographic rates, and predator communities, available information
suggests fragmentation of habitat can facilitate an increase in
predation rates.
Bi-State DPS of greater sage-grouse use sagebrush plant communities
during the winter season for thermal cover and to meet nutritional
needs. Sagebrush stand selection in winter is influenced by snow depth
and available literature suggests sagebrush canopy cover should be
greater than 10 percent and shrubs should have at least 25 cm exposed
above the snow (Patterson 1952, pp. 188-189; Connelly 1982 as cited in
Connelly et al. 2000a, p. 980). In some areas, topography influences
sagebrush

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stand selection (Beck 1977, p. 22; Crawford et al. 2004, p. 5). Winter
sagebrush use areas are associated with drainages, ridges, or southwest
aspects with slopes less than 15 percent (Beck 1977, p. 22). Lower,
flat areas and shorter sagebrush along ridge tops provide roosting
areas. In extreme winter conditions, greater sage-grouse will spend
nights and portions of the day burrowed into ``snow burrows'' (Back et
al. 1987, p. 488), and we expect the Bi-State DPS to exhibit the same
behavior. During severe winters in the Bi-State area, significant
percentages of birds from the various PMUs can be highly concentrated
in localized sites. In these conditions, tall, late-seral sagebrush
stands are an especially important food source and in some instances
birds have been observed digging through several inches of snow to
access shrubs (Casazza et al. 2009, p. 33).
Therefore, based on the information above, we identify sagebrush
plant communities consisting of adequate shrub and herbaceous structure
to provide year-round escape and hiding cover, as well as areas that
provide concealment of nests and broods during the breeding season, and
winter season thermal cover to be a physical or biological feature
essential to the conservation of this DPS. Quantitative information on
cover can be found in the Primary Constituent Elements for the Bi-State
DPS section, below.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Lek Sites. Lek sites can be located on areas of bare soil, wind-
swept ridges, exposed knolls, low-statured sagebrush communities,
meadows, and other relatively open sites with good visibility and low-
vegetation structure (Connelly et al. 1981, pp. 153-154; Gates 1985,
pp. 219-221; Klott and Lindzey 1989, pp. 276-277; Connelly et al. 2004,
p. 3-7 and references therein). In addition, leks are usually located
on flat to gently sloping areas of less than 15 percent grade
(Patterson 1952, p. 83; Giezentanner and Clark 1974, p. 218; Wallestad
1975, p. 17; Autenrieth 1981, p. 13). Leks are often surrounded by
denser shrub-steppe cover, which is used for escape, and thermal and
feeding cover. Leks can be formed opportunistically at any appropriate
site within or adjacent to nesting habitat (Connelly et al. 2000a, p.
970). However, adult male sage-grouse demonstrate strong yearly
fidelity to lek sites (Patterson 1952, p. 91; Dalke et al. 1963, pp.
817-818), and some leks in the Bi-State area have been used since the
1950s. Across the entire Bi-State DPS, approximately 35 to 45 leks are
considered active as of 2013. In general, lek habitat availability is
not considered to be a limiting factor for sage-grouse (Schroeder 1997,
p. 939).
Nesting Habitat. Greater sage-grouse typically select nest sites
under sagebrush cover with some forb and grass cover, and successful
nests are found in areas with higher shrub density and greater forb and
grass cover than unsuccessful nests (Connelly et al. 2011b, p. 73).
While the importance of nesting cover remains apparent in the Bi-State
area, local data suggest slight deviations from the generally accepted
standards for the greater sage-grouse, which were largely derived from
research conducted outside the southern Great Basin. Specifically,
Kolada et al. (2009a, p. 1336; 2009b, p. 1343) found that nesting
success improved when nesting habitat contained greater than 20 percent
sagebrush canopy cover and greater than 40 percent total shrub cover
while shrub height did not appear to influence nesting success. This
canopy cover standard in the Bi-State area is generally greater than
those reported elsewhere across the range of the species. Additionally,
there is currently little support in the Bi-State area for a positive
influence of understory cover and height on either nest site selection
or nest success (Kolada et al. 2009a, p. 1336; Kolada et al. 2009b, p.
1343). Similar findings are apparent in other locations in Nevada, but
these investigations also suggest a trade-off between overstory and
understory cover (Coates and Delehanty 2010, pp. 245-246). This implies
that the need for understory cover diminishes as overstory cover
increases, and vice versa. Thus, while shrub canopy and grass cover
provide concealment for sage-grouse nests and young and are critical
for reproductive success, the composition of these cover components
appears to vary regionally (Barnett and Crawford 1994, pp. 116-117;
Gregg et al. 1994, pp. 164-165; DeLong et al. 1995, pp. 90-91; Connelly
et al. 2004, p. 4-4, Kolada et al. 2009a, p. 1336; Kolada et al. 2009b,
p. 1343). In the southern Great Basin and in the Bi-State area
specifically, there is strong support for the importance of greater
shrub canopy cover on nesting success.
Female greater sage-grouse exhibit strong fidelity to nesting
locations (Lyon 2000, p. 20; Connelly et al. 2004, pp. 4-5; Holloran
and Anderson 2005, p. 747). Interannual distances between nests are
frequently less than 1 km and often much less than this (Connelly et
al. 2011b, p. 74 and references therein). Additionally, re-nesting
attempts are also frequently in close proximity to the original nest
(Weichman 2012, unpublished data).
Brood-rearing Habitat. Early brood-rearing habitat is found close
to nest sites (Connelly et al. 2000a, p. 971), although individual
females with broods may move large distances (Connelly 1982, as cited
in Connelly et al. 2000a, p. 971). These sites typically contain a
greater amount of perennial forbs, with horizontal and vertical
structural diversity that provides an insect prey base and herbaceous
forage for newly hatched chicks but additionally for pre-laying and
nesting hens (Schroeder et al. 1999, p. 11; Connelly et al. 2000a, p.
971; Connelly et al. 2004, pp. 4-5--4-8; Casazza et al. 2011, pp. 158-
159). By mid-summer and into early fall, birds move to mesic sagebrush
plant communities that continue to provide green forbs. Casazza et al.
(2011, pp. 158-163) found that sage-grouse in the Bi-State area with
broods selected areas with increased plant species richness, greater
forb cover, and increased meadow edge, and they avoided areas in
proximity to trees (e.g., riparian sites, conifer encroached sites).
While broods are known to utilize edges of hay meadows, data indicate
that small, irregularly shaped meadows are of greater importance to
broods than are large agricultural fields (Casazza et al. 2011, p.
163). However, due to relatively limited meadow habitat in the Bi-State
area, the edges of irrigated agricultural fields are likely important
in brood production.
Therefore, based on the information above, we identify sagebrush
plant communities with the appropriate shrub and herbaceous vegetation
structure to meet all the needs for all the Bi-State DPS of greater
sage-grouse reproductive activities (including lekking, nesting, and
brood-rearing) to be a physical or biological feature essential to the
conservation of this DPS. Quantitative information on appropriate
levels of vegetation structure and composition can be found in the
Primary Constituent Elements for the Bi-State DPS section, below.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
Greater sage-grouse in the Bi-State area historically occurred from
at least the Pine Nut Mountains area to south of the Mono County and
Inyo County border near Bishop, California. Additionally, there are
areas that are presumed to have been historically occupied that are no
longer occupied and are now unsuitable for sage-grouse occupancy (i.e.,
Smith Valley,

[[Page 64335]]

Gardnerville, and Bridgeport). Suitable habitat for the Bi-State DPS
within the geographic area currently occupied by the species is
approximately 590,184 ha (1,458,381 ac) (Service 2013a, Table 1 p. 20).
The remaining habitat within the Bi-State area is fragmented, resulting
in varying degrees of isolation among local breeding populations. Many
of these fragmented areas serve as unused corridors/sites between
seasonal habitats for a given population of sage-grouse contained
within the Bi-State DPS. These corridors are a physical or biological
feature essential to the conservation of this DPS based on greater
sage-grouse research, which suggests that sage-grouse exhibit strong
site fidelity (loyalty to a particular area) to migration corridors and
seasonal habitats, including breeding, nesting, brood-rearing, and
wintering areas, even when a particular area may seemingly no longer be
of value (Connelly et al. 2004, p. 3-1; Connelly et al. 2011b, p. 82)
The currently suitable sagebrush plant communities and the
intervening or adjacent fragmented areas (including corridors/sites
between seasonal habitat areas) that are proposed for designation
contain physical and biological features that are representative of the
historical and geographical distribution of the Bi-State DPS. We
believe the currently unused corridors/sites that contain plant
communities (primarily woodland encroached sites that are not suitable
for use) that are proposed for designation were all likely historically
used by the DPS and also represent historic biological and ecological
distribution within the the DPS's present range. These corridors/sites
are intermixed within suitable habitat areas currently utilized by the
Bi-State DPS during various life stages, as described above. These
corridors/sites are limiting the extent of sagebrush habitat throughout
the current range of the DPS, especially in the PMUs with the smallest
populations (i.e., Pine Nut, Mount Grant, Desert Creek-Fales, and White
Mountain PMUs), and are creating varying degrees of isolation among
local breeding populations. Restoration of these corridors/sites can
facilitate movements among populations and allow the DPS to recovery
its historical distribution within its present range. To inform our
decision on specific locations of these corridors/sites, we used the
2012 Bi-State Action Plan (Bi-State TAC 2012a, entire). The Bi-State
Action Plan identifies areas for possible restoration activity within
the present range of the species that would improve overall habitat
quality and quantity and provide improved connectivity among local
breeding populations across the Bi-State DPS.
Therefore, based on the information above, we identify corridors/
sites that currently contain unsuitable/unused plant communities that
are interspersed with sagebrush habitats that exhibit one or more of
the physical or biological features described above, to be a physical
or biological feature essential to the conservation of the Bi-State
DPS. Once special management designed to improve the condition of these
interspersed corridors/sites has been implemented, they will help
ensure long-term conservation of the DPS, and most importantly provide
connectivity between currently fragmented areas.

Climate Change

Climate change projections in the Great Basin suggest a hotter and
stable-to-declining level of precipitation, and a shift in
precipitation events to the summer months; fire frequency is expected
to accelerate, fires may become larger and more severe, and fire
seasons will be longer (Brown et al. 2004, pp. 382-383; Neilson et al.
2005, p. 150; Chambers and Pellant 2008, p. 31; Global Climate Change
Impacts in the United States 2009, p. 83). With these projections,
drought (which is a natural part of the sagebrush ecosystem) is likely
to be exacerbated.
Specifically within the Bi-State area, we anticipate climate change
will act synergistically with other impacts to the Bi-State DPS to
further diminish habitat, including features such as water, food, cover
or shelter, and sites for breeding and reproduction. Predicting the
impact of global climate change on sage-grouse populations is
challenging due to the relatively small spatial extent of the Bi-State
area. It is likely that vegetation communities will not remain static
and the amount of sagebrush shrub habitat will decrease. Further,
increased variation in drought cycles due to climate change will likely
place additional stress on the populations. However, while it is
reasonable to assume the Bi-State area will experience vegetation
changes into the future, we do not know with precision the nature of
these changes or ultimately the effect this will have on the Bi-State
DPS. Regardless, we anticipate the area will likely become generally
less suitable to invasion by Bromus tectorum (cheatgrass). It is
similarly likely that the current extent of suitable shrub habitat
(e.g., areas for cover, shelt, breeding, and reproduction) will
decrease, as the conditions that make the reduction in cheatgrass
possible also suggest a less suitable climate condition for sagebrush
and improved suitability for woodland and drier vegetation communities,
which are not favorable to sage-grouse in the Bi-State DPS. For
additional discussion on this topic, see the ``Climate Change'' section
of the proposed listing rule published elsewhere in today's Federal
Register.

Primary Constituent Elements for the Bi-State DPS

According to 50 CFR 424.12(b), we are required to identify the
physical or biological features essential to the conservation of the
Bi-State DPS in areas occupied at the time of listing, focusing on the
features' primary constituent elements (PCEs). We consider primary
constituent elements to be 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.
We only consider areas as critical habitat if they meet the
``Landscape-scale Primary Constituent Element'' (PCE 1) because small,
isolated patches of sagebrush do not support the Bi-State DPS. If an
area meets the landscape scale requirement, then a particular site is
considered critical habitat if it contains one or more of the ``Site-
scale Primary Constituent Elements'' (PCEs 2 through 4); Landscape
scale may also contain the plant communities discussed above.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the PCEs specific to the Bi-
State DPS of greater sage-grouse are:
Landscape-scale Primary Constituent Element
Primary Constituent Element 1--Areas with vegetation composed
primarily of sagebrush plant communities of sufficient size and
configuration to encompass all seasonal habitats for a given population
of greater sage-grouse, or facilitate movements within and among
populations. This includes former sagebrush communities in specific
locations that are currently primarily woodland encroached sites that
potentially provide connectivity between populations.
Site-Scale Primary Constituent Elements
Primary Constituent Element 2--Breeding habitat composed of
sagebrush plant communities with structural characteristics within the
ranges described in Table 1, below. Habitat structure values are
average values.

[[Page 64336]]

Table 1--Bi-State DPS of Greater Sage-Grouse Structural Guidelines for
Breeding Habitat
------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover.................... >20 percent.
Non-sagebrush Canopy Cover................ >20 percent.
Total Shrub Canopy Cover.................. >40 percent.
Sagebrush Height.......................... >30 cm (12 in).
Perennial Grass Cover..................... No less than 5 percent but
>10 percent if total shrub
cover <25 percent.
Annual Grass Cover........................ <5 percent.
Forb Cover................................ >10 percent.
Grass/Forb Height......................... >18 cm (7 in).
------------------------------------------------------------------------

Primary Constituent Element 3--Brood-rearing habitat composed of
sagebrush plant communities and mesic habitats used primarily in the
summer to late fall season. These sites include, but are not limited
to, riparian communities, springs, seeps, and mesic meadows with
structural characteristics within the ranges described in Table 2,
below.

Table 2--Bi-State DPS of Greater Sage-Grouse Structural Guidelines for
Brood-Rearing Habitat
------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover.................... 10 to 25 percent.
Total Shrub Canopy Cover.................. 14 to 25 percent.
Sagebrush Height.......................... >30 cm (12 in).
Perennial Grass Cover..................... >7 percent.
Perennial Forb Diversity.................. >5 species present.
Forb Cover................................ >7 percent.
Grass/Forb Height......................... 18 cm (7 in).
Meadow Edge (ratio perimeter to area)..... >0.015.
Species Richness.......................... >5 species.
------------------------------------------------------------------------

Primary Constituent Element 4--Winter habitat composed of sagebrush
plant communities with sagebrush canopy cover greater than 10 percent
and sagebrush height of greater than 25 cm (9.8 in) above snow level.
For the PCEs 2 through 4, we adopt the values from the literature
on greater sage-grouse, but we modify them where available with
specific research conducted in the Bi-State area and southern Great
Basin. These data combined provide structural habitat values for Bi-
State DPS of greater sage-grouse in all seasonal habitats. Source data
include structural vegetation data collected in the breeding season
(Connelly et al. 2000a; Hagen et al. 2007; Kolada et al. 2009a; Kolada
et al. 2009b; Coates and Delehanty 2010; Blomberg et al. 2012), summer-
fall (Casazza et al. 2011; Coates et al. in prep. a), and winter
(Connelly et al. 2000a; Coates et al. in prep. b). To the greatest
extent possible, these structural habitat values are representative of
the southern Great Basin and the Bi-State area specifically, and
reflect the shrub structure, understory structure, and understory
composition selected for by greater sage-grouse in this region. As
such, these values are based on the most current and comprehensive
assessment of the Bi-State DPS habitat structure. We consider an area
critical habitat if its average vegetation values are within the values
for the majority of structural categories for any given PCE (see Tables
1 and 2, above).

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. All units proposed for designation as critical habitat, as
described below, require some level of management to address the
current and future threats to the physical and biological features
essential to the conservation of Bi-State DPS of greater sage-grouse.
In all of the described units, special management may be required to
ensure that the habitat is able to provide for the biological needs of
this DPS.
A detailed discussion of the current and future threats to the Bi-
State DPS of greater sage grouse can found in the Species Report
available at https://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0042 and summarized in the proposed listing rule to list the
species as threatened, which is published elsewhere in today's Federal
Register, in the section entitled Summary of Factors Affecting the
Species. In general, the features essential to the conservation of the
Bi-State DPS may require special management considerations or
protection to reduce the following individual threats and their
interactions: The spread of invasive plant species and associated
changes in sagebrush plant community structure and dynamics; wildfire
and altered fire regime; residential and commercial development,
including associated land-clearing activities for the construction of
access roads, utilities, and fences; increased recreational use of
roads and trails; the proliferation of predators; improper grazing
management; and other activities that result in the loss or degradation
of sagebrush plant communities. The largest, overarching concern to the
Bi-State DPS is multiple threats acting upon the landscape that are
resulting in habitat fragmentation. The aforementioned activities are
having direct and indirect effects on the birds' habitat and behavior,
and are cumulatively and individually increasing habitat fragmentation.
The physical and biological features contained within the units
designated as critical habitat may require special management
considerations or protection to address the threats mentioned above.
Based on our analysis of threats to the Bi-State DPS of greater sage-
grouse, management activities that could ameliorate these threats
include, but are not limited to:
(1) Comprehensive land-use planning and implementation that
prevents a net decrease in the extent and quality of the DPS's habitat
through the prioritization and protection of habitats and monitoring;
protection of lands by fee title acquisition or the establishment of
permanent conservation easements;
(2) Management of recreational use to minimize direct disturbance
and habitat loss;
(3) Control of nonnative, invasive plants and native, invasive
plants to reduce further habitat loss and reduce the potential for
wildfires;
(4) Management of domestic and wild ungulate use to ensure the
suitable sage-grouse habitat meets or exceeds the structural habitat
components required by sage-grouse;
(5) Monitoring and management of predator communities to determine
impacts and help reduce potential predation;
(6) Coordinated and monitored habitat restoration or improvement
projects to increase the amount of suitable habitat, particularly
within fragemented areas and migration corridors; and
(7) Implementation of wildfire suppression, particularly in big
sagebrush plant associations, to reduce further loss of big sagebrush
communities that sage-grouse rely on for multiple life stages.
Such special management activities may be required to protect the
physical and biological features essential to the conservation of the
DPS, and support the conservation of the DPS by preventing or reducing
the loss, degradation, and fragmentation of sagebrush landscapes.
Additionally, management of critical habitat features can increase the
amount of suitable

[[Page 64337]]

habitat and enhance connectivity among sage-grouse populations in the
Bi-State area through the restoration of lands that were previously
composed of sagebrush plant communities. The limited extent of
sagebrush habitat throughout the DPS's current range (as well as the
significantly fragemented nature of the remaining sagebrush habitat)
emphasizes the need for special management of these corridors/sites for
the Bi-State DPS' use, thus potentially providing unfragmented habitat
needed to survive and recover.
In some cases, continuing current land management practices may be
appropriate and beneficial for the Bi-State DPS. For instance,
continued irrigation and maintenance of hay and alfalfa fields on
private lands near sagebrush habitats may help provide or enhance
brood-rearing, mesic habitats for the Bi-State DPS. We acknowledge the
ongoing and proposed conservation efforts of many entities across the
range of the Bi-State DPS, such as the Natural Resource Conservation
Service (NRCS) Sage Grouse Initiative (https://www.nrcs.usda.gov/wps/portal/nrcs/site/national/home/), that include many partners to
implement conservation actions. We are currently coordinating with
Federal agencies to ensure a seamless continuation of conservation
practices if final rules are published for a listing determination and
critical habitat designation.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied at the time of listing that contain the features essential to
the conservation of the species. If, after identifying these specific
areas, a determination is made whether these areas are inadequate to
ensure conservation of the species, in accordance with the Act and our
implementing regulations at 50 CFR 424.12(e), we then consider whether
designating additional areas--outside of the geographical area
currently occupied--are essential for the conservation of the species.
As a result of this analysis, we are proposing to designate critical
habitat within the geographical area occupied by the species at the
time of listing (currently occupied) on which are found those physical
or biological features essential to the conservation of the DPS and
which may require special management considerations or protection. Some
of the units we are proposing to designate as critical habitat contain
corridors/sites that are currently unsuitable for use because of
woodland encroachment. These corridors/sites are interspersed within
sutiable habitat that is currently used by the DPS. These sites provide
essential connectivity corridors and habitat extent necessary for the
conservation and recovery of the DPS (see the Physical or Biological
Features section above). Once special management designed to improve
the condition of these interspersed corridors/sites has been
implemented, they will help ensure long-term conservation of the DPS
and provide connectivity between currently fragmented areas. We are not
proposing to designate specific areas outside the geographical area
currently occupied by the DPS.
We delineated the critical habitat unit boundaries as follows:
We based our identification of lands that contain physical and
biological features essential to the conservation of the Bi-State DPS
of greater sage-grouse on polygons delineated and defined by the Bi-
State TAC during the development of the 2012 Bi-State greater sage-
grouse Preliminary Priority Habitat (PPH) Map (Bi-State TAC 2012b), and
a map product depicting occupied habitat developed by the Bureau of
Land Management (BLM) in conjunction with the U.S. Forest Service in
2008 (BLM 2008). The Bi-State TAC is comprised of biologists
representing the California Department of Fish and Wildlife (CDFW),
Nevada Department of Wildlife (NDOW), BLM, the U.S. Forest Service,
NRCS, USGS, and our offices (i.e., the Service). Both of these products
(i.e., the PPH map and BLM map) largely correlate with one another,
although the combined map encompasses more area than either product
individually. The PPH map developed in 2012, was largely informed by
Resource Selection Function (RSF) equations. RSFs are ranked habitat
suitability factors that predict what areas an animal will use or
avoid. We consider polygons derived through modeling RSFs to be the
area currently suitable for sage-grouse in the Bi-State area. RSFs
predict suitable habitat and thus likely overestimate the currently
utilized habitat; however, a significant amount of sage-grouse
population and habitat use data specific to the Bi-State area were used
to develop these data layers, thus resulting in a high-quality mapping
product for use as the best available information. Ground-truthing of
many of these areas confirms this mapping effort is accurate for
predicting use by sage-grouse (Coates 2012, pers. comm.). Thus, we
consider the polygons delineated through this process to be currently
occupied. The 2008 BLM map was informed by the delineation of existing
vegetation and expert opinion, and similarly we consider the polygons
delineated through this process to be currently suitable habitat in
this proposal. Therefore, combining the PPH map derived by RSFs and the
2008 BLM map contributes to our understanding of what constitutes
currently suitable and potentially usable habitat.
RSFs are a data-driven approach used to identify suitable habitat.
The RSF process used readily available, broad-scale, vegetation maps;
more than 7 years of radio telemetry data; and on-the-ground vegetation
data collected from across the range of the Bi-State DPS. Specifically,
the approach used to identify the critical habitat units includes the
following steps:
(1) A land cover map was developed for Nevada and California. This
map is a synthesis of multiple, existing, broad-scale, vegetation
mapping products (e.g., SynthMap, LANDFIRE, SageStitch, FRAP).
Additional map layers were developed for environmental factors thought
to be important to the Bi-State DPS, including maps of pinyon-juniper
vegetation (dominated by Pinus edulis (pinyon pine) and various
Juniperus (juniper) species that can encroach upon, infill, and
eventually replace sagebrush habitat) cover classes used as surrogates
for phases of encroachment, topographic variables (i.e., elevation,
ruggedness, and slope), agricultural areas, and anthropogenic factors
(i.e., urbanization, roads, and recreation).
(2) RSFs were developed by modeling the relative probability of
occurrence as a function of different environmental factors. These
factors consisted of vegetation types, pinyon-juniper cover classes,
agricultural areas, elevation, ruggedness, slope, roads, recreation,
and urbanization. The factors were measured at multiple spatial scales
that reflect movement patterns of the Bi-State DPS. The modeling
process contrasted these environmental factors for sites used by Bi-
State DPS of greater sage-grouse (which included more than 12,500
individual sage-grouse telemetry locations) to available sites (which
were randomly generated locations distributed throughout each PMU).
Contrasting the environmental factors in areas known to be used by the
species versus areas available provided information about what factors
(e.g., urbanization, pinyon-juniper woodland sites) correlated with the
Bi-State DPS's

[[Page 64338]]

selection or avoidance of a specific location. The Pine Nut PMU was
analyzed separately from the other five PMUs because the population
within this PMU exhibits strong differences in behavior and influential
environmental factors compared to other greater sage-grouse populations
in the Bi-State area.
(3) RSFs were applied to the map layers developed in Step 1 to
calculate an overall probability of use per pixel. This created a
single habitat suitability map and resulted in a surface of predicted
use by sage-grouse across the range of the Bi-State DPS. This surface
was represented by probability values that ranged across a continuous
spectrum of 0.0 to 1.0.
(4) To identify currently usable habitat, the values from the
habitat suitability map were extracted for 1,300 independent sage-
grouse telemetry point locations within the Bi-State area. These newly
derived habitat suitability values are associated with areas known to
be used by the Bi-State DPS based on independent telemetry point data.
We then reclassified this data into binary values (i.e., suitable
habitat and potentially unsuitable or less than suitable habitat) for
each PMU.
(5) The raster cells classified as suitable habitat were converted
to polygons and smoothed using a distance of 1 km (0.6 mi). This value
was used because it was sufficiently coarse to alleviate pixilation
associated with raster data sets but not overly coarse to where the
resulting map altered significantly from the original layers. Thus, the
resulting map provided a more easily interpretable layer conducive to
management.
(6) All urban areas were digitized and based on model performance
at multiple scales; large-bodied standing water areas and other areas
that exceeded 1 square km (247 ac) were removed because they are not
considered suitable habitat.
(7) A second independent telemetry data set (more than 1,000
points) was used to validate the modeling; greater than 99 percent of
the telemetry points fell within the mapped PPH areas generated from
the RSF. This step validated that this data-driven approach to identify
suitable habitat performed well.
A spatially explicit habitat-suitability model developed for the
Bi-State DPS (Bi-State Technical Team 2012, unpublished data) predicts
the location of usable habitat within the current range of the Bi-State
DPS. The best available data from modeling exercises (as discussed
above in this section) includes roughly 590,184 ha (1,458,381 ac) of
suitable habitat within the range of the DPS.
(8) To identify acres that are currently less than suitable (e.g.,
areas exhibiting less than optimal habitat conditions within the
present range of the DPS that were either known or likely to be
historically utilized), we examined information pertaining to potential
woodland restoration sites identified in the 2012 Bi-State Action Plan
(Bi-State TAC 2012a, pp. 90-95).
We identified potential habitat as unused habitats that could be
suitable for occupation of sage-grouse if practical management was
applied. These corridors/sites are most commonly former sagebrush areas
overtaken by pinyon-juniper woodlands. To further refine these areas,
we identified locations that are: (1) Contiguous with currently
utilized habitat that occurs within the present range, (2) provide for
connectivity between and within populations, and (3) identified within
the 2012 Bi-State Action Plan. We consider the size and degree of
isolation among various populations contained within the Bi-State DPS
to be a significant conservation concern; therefore, regaining
historical connectivity among populations is essential to the
conservation of the species. The corridors/sites are all contained
within the borders of the delineated PMUs.
(9) To match the approach adopted during the development of the RSF
product, we adjusted the 2008 BLM map utilizing a similar process by
converting the raster cells to polygons and smoothing the polygons
using a distance of 1 km (0.6 mi). These three datasets were then
merged together into a unified layer within a GIS.
(10) Utilizing the unified data layer, we identified small,
isolated, and disjunct polygons that were not considered to meet the
intent of the landscape-scale primary constituent element (PCE 1) and
were not considered necessary for the recovery of the species. These
polygons were removed from the dataset resulting in our proposed
critical habitat map. We specifically request comments on this and
other criteria described above.
As described in more detail in the Species Report (Service 2013a,
pp. 17-29) and the proposed listing rule for the Bi-State DPS of
greater sage-grouse (published elsewhere in today's Federal Register),
there are currently six PMUs delineated in the Bi-State area: (1) Pine
Nut, (2) Desert Creek-Fales, (3) Bodie, (4) Mount Grant, (5) South
Mono, and (6) White Mountains (see Background section above, and the
Background section of the proposed listing rule published elsewhere in
today's Federal Register).
Proposed critical habitat units for the Bi-State DPS collectively
contain relatively small and discrete populations that are needed to
ensure resilience in the face of environmental fluctuations and
catastrophic events, and to ensure the continuation of evolutionary
process (see ``Species Information'' section of the proposed listing
rule published elsewhere in today's Federal Register, and the ``Current
Range/Distribution and Population Estimates/Annual Lek Counts'' section
of the Species Report (Service 2013a, pp. 17-28). Thus, the units
contain the physical and biological features that are essential to the
conservation of the species. The corridors/sites that are currently
experiencing woodland encroachment are contiguous with the suitable
habitat, and are a feature that is essential to the conservation of the
Bi-State DPS. These corridors/sites provide connectivity between the
current populations and reduce habitat fragmentation, which in turn
impacts sage-grouse population dynamics. Once special management
designed to improve the condition of these corridors/sites has been
implemented, they would provide needed connectivity among currently
disjunct populations and additional habitat extent, thereby increasing
overall habitat redundancy. The best available information indicates
that, with proper protection and management, the proposed critical
habitat units are sufficient to provide for the conservation of the
species.
While there are six PMUs, we are proposing four units as critical
habitat for the Bi-State DPS. Units are proposed for designation based
on sufficient elements of physical or biological features being present
to support the Bi-State DPS's life-history processes. All units
individually contain all of the identified elements of physical and
biological features, and each unit as a whole supports multiple life-
history processes.
We are proposing for designation of critical habitat lands that we
have determined are within the geographical area occupied at the time
of listing and contain the physical or biological features essential to
the conservation of the DPS.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the Bi-State DPS. The
scale of the maps we prepared under the parameters for publication
within the Code of

[[Page 64339]]

Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document in the rule portion. 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 at
https://www.regulations.gov at Docket No. FWS-R8-ES-2013-0042, on our
Internet sites (Reno Fish and Wildlife Office (https://www.fws.gov/nevada/) and Ventura Fish and Wildlife Office (https://www.fws.gov/ventura/)), and at the field office responsible for the designation
(see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

We are proposing to designate approximately 755,960 ha (1,868,017
ac) in four units as critical habitat for the Bi-State DPS of greater
sage-grouse, all of which are considered currently occupied. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
the Bi-State DPS. The four units we propose as critical habitat
correspond to the four populations recognized by the Western
Association of Fish and Wildlife Agencies (WAFWA), which include: (1)
Pine Nut, (2) North Mono Lake, (3) South Mono Lake, and (4) White
Mountains. These units are contained within the PMU boundaries (which
are identified on the maps in the Proposed Regulation Promulgation
section of this proposed rule); however, the proposed North Mono Lake
Unit (Unit 2) combines three PMUs (Desert Creek-Fales, Bodie, and Mount
Grant PMUs) into a single unit. Approximately 75 percent (about 564,578
ha (1,395,103 ac)) of the area within the four units is currently
suitable habitat and approximately 25 percent (about 191,381 ha
(472,914 ac)) is contiguous with currently suitable habitat but is
considered less than suitable for current use. Table 3 shows land
ownership and approximate areas of the proposed designated areas for
the Bi-State DPS.

Table 3--Proposed Critical Habitat Units for the Bi-State DPS in Nevada
and California
[Area estimates reflect all land within critical habitat unit
boundaries.]
------------------------------------------------------------------------
Land ownership Size of unit in
Critical habitat unit by type hectares (acres)
------------------------------------------------------------------------
1. Pine Nut.................. Tribal.......... 10,401 (25,701)
Federal......... 92,324 (228,137)
State........... 4,822 (11,917)
Private......... 14,197 (35,081)
Subtotal Unit 1.............. ................ 121,744 (300,836)
2. North Mono Lake........... Tribal.......... 16 (40)
Federal......... 294,775 (728,404)
State........... 3,374 (8,338)
Local Agency.... 1,295 (3,200)
Private......... 46,031 (113,744)
Subtotal Unit 2.............. ................ 345,491 (853,726)
3. South Mono Lake........... Tribal.......... 161 (398)
Federal......... 138,905 (343,242)
State........... 1,345 (3,323)
Local Agency.... 13,312 (32,894)
Private......... 7,750 (19,151)
Subtotal Unit 3.............. ................ 161,473 (399,008)
4. White Mountains........... Tribal.......... 521 (1,286)
Federal......... 123,831 (305,994)
Private......... 2,901 (7,167)
------------------------------------------
Subtotal Unit 4.......... ................ 127,252 (314,447)
------------------------------------------------------------------------
Subtotal............. Tribal.......... 11,099 (27,425)
Federal......... 526,128 (1,605,777)
State........... 9,541 (23,578)
Local Agency.... 14,607 (36,094)
Private......... 70,878 (175,143)
------------------------------------------
GRAND TOTAL.............. ................ 755,960 (1,868,017)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of the four units and reasons why
they meet the definition of critical habitat for the Bi-State DPS,
below.

Unit 1: Pine Nut

The Pine Nut Unit consists of approximately 121,744 ha (300,836 ac)
and is located in Mono and Alpine Counties, California, and Douglas,
Lyon, and Carson City Counties, Nevada. The unit encompasses the Pine
Nut Mountains and represents the northern extent of the DPS. It extends
from the Carson River south to the West Fork Walker River. The
southwestern boundary extends into California encompassing Slinkard
Valley near

[[Page 64340]]

Woodford, California. Land ownership within this unit consists of
approximately 92,324 ha (228,137 ac) of Federal land, 4,822 ha (11,917
ac) of State land, 10,401 ha (25,701 ac) of Washoe Tribe of Nevada and
California tribal land, and 14,197 ha (35,081 ac) of private land. The
Pine Nut Unit includes lands in the Humboldt-Toiyabe National Forest
and lands managed by the Carson City District Office of the BLM. State
lands within this unit include Slinkard/Little Antelope Valley Wildlife
Area.
This unit is considered to be within the geographical area occupied
by the species at the time of listing and contains the physical or
biological features essential to the conservation of the DPS. This unit
is important for the conservation of the DPS due to the redundancy and
additional distributional extent it affords the remainder of the Bi-
State DPS. The physical or biological features essential to the
conservation of the Bi-State DPS in the Pine Nut Unit may require
special management considerations or protection due to the presence of
fire; woodland encroachment; nonnative, invasive species; urbanization
and human disturbance; infrastructure; feral horses; predation; and
additional localized and less severe impacts.

Unit 2: North Mono Lake

The North Mono Lake Unit consists of approximately 345,491 ha
(853,726 ac) and is located in Alpine and Mono Counties, California and
Lyon, Douglas, and Mineral Counties, Nevada. The unit extends from
southern Smith Valley, Nevada in the north to Mono Lake, California in
the south, and the Wassuk Range in Nevada in the east to the foothills
of the Sierra Nevada mountain range in the west. Land ownership within
this unit consists of approximately 294,775 ha (728,404 ac) of Federal
land, 3,374 ha (8,338 ac) of State land, 1,295 ha (3,200 ac) of local
agency (County or City) lands, 16 ha (40 ac) of Bridgeport Paiute
Indian Colony tribal lands, and 46,031 ha (113,744 ac) of private land.
The North Mono Lake Unit includes lands in the Humboldt-Toiyabe
National Forest (including Forest Service lands utilized for military
readiness via a 40-year special use permit with the Marine Corps'
Mountain Warfare Training Center), and BLM's Bishop Field Office and
Carson City District Office. State lands within this unit include the
Green Creek, East Walker River, Slinkard/Little Antelope Valley, and
Pickel Meadow Wildlife Areas.
This unit is considered to be within the geographical area occupied
by the DPS at the time of listing and contains the physical or
biological features essential to the conservation of the DPS. The Bodie
Hills population contained within this unit represents one of the two
largest (core) populations within the Bi-State DPS and as such, the
habitat in this unit is important for the conservation of the DPS. The
Bodie Hills population harbors greater than 30 percent of the entire
Bi-State DPS sage-grouse population, providing both resiliency and
redundancy to the DPS. In addition, several peripheral populations in
the Desert Creek-Fales and Mount Grant PMUs are contained within this
unit and afford additional redundancy and distributional extent. The
physical or biological features essential to the conservation of the
Bi-State DPS in the North Mono Lake Unit may require special management
considerations or protection due to the risk posed by fire; woodland
encroachment; infrastructure; urbanization; mineral and energy
development; feral horses; nonnative, invasive species; human
disturbance; and other localized and less severe threats.

Unit 3: South Mono Lake

The South Mono Lake Unit consists of approximately 161,473 ha
(399,008 ac), and is located entirely within Mono County, California.
The unit extends from Mono Lake in the north to Lake Crowley in the
south, and from the Nevada and California border in the east to the
foothills of the Sierra Nevada Mountains in the west. Land ownership
within this unit consists of approximately 138,905 ha (343,242 ac) of
Federal land, 1,345 ha (3,323 ac) of State land, 13,312 ha (32,894 ac)
of local agency land, 161 ha (398 ac) of Utu Utu Gwaitu Paiute Tribe of
the Benton Paiute Reservation (California), and 7,750 ha (19,151 ac) of
private land. The South Mono Lake Unit includes lands in the Inyo
National Forest and the BLM Bishop Field Office. The majority of City
lands within this unit are owned by the City of Los Angeles and managed
by the Los Angeles Department of Water and Power.
This unit is considered to be within the geographical area occupied
by the species at the time of listing and contains the physical or
biological features essential to the conservation of the DPS. The Long
Valley population contained within this unit represents one of the two
largest remaining populations within the Bi-State DPS and as such
habitat in this unit is important for the conservation of the DPS. The
Long Valley population harbors approximately 30 percent of the entire
Bi-State DPS sage-grouse population, providing both resiliency and
redundancy to the DPS. The physical or biological features essential to
the conservation of the Bi-State DPS in the South Mono Lake Unit may
require special management considerations or protection due to the risk
presented by fire, human footprint (e.g., urbanization (such as mesic
areas for late sage-grouse brood-rearing), infrastructure, recreation),
woodland expansion, and other localized and less severe threats.

Unit 4: White Mountains

The White Mountains Unit consists of approximately 127,252 ha
(314,447 ac) and is located in Inyo and Mono Counties, California and
Esmeralda and Mineral Counties, Nevada. The White Mountains Unit is
situated in the southern extent of the Bi-State DPS's range. The unit
extends from the Candelaria Hills and Truman Meadows areas in the north
to California Highway 168 in the south, and from California Highway 6
in the west to the Silver Peak Range in Nevada. Land ownership within
this unit consists of approximately 123,831 ha (305,994 ac) of Federal
land, 521 ha (1,286 ac) of Death Valley Timbi-sha Shoshone tribal land,
and 2,901 ha (7,167 ac) of private land. The White Mountains Unit
includes lands in the Inyo and Humboldt-Toiyabe National Forests, and
the Bishop, Tonopah, and Stillwater Field Offices of the BLM.
This unit is considered to be within the geographical area occupied
by the species at the time of listing and contains the physical or
biological features essential to the conservation of the DPS. This unit
is important for the conservation of the DPS due to the redundancy,
resiliency, and representation it affords the remainder of the Bi-State
DPS. The population represents approximately 5 to 10 percent of the
entire DPS. The unit remains generally remote and isolated and lacks
many of the immediate anthropogenic stressors apparent in other
portions of the DPS; thus the additional redundancy and resiliency
afforded by this area may influence conservation of the entire DPS in
the future. Additionally, this population has a unique genetic
signature and occurs at high elevation on the extreme southwest portion
of the DPS's range, thereby adding ecological and genetic
representation not found elsewhere across the DPS's range. The physical
or biological features essential to the conservation of the Bi-State
DPS in the White Mountains Unit may require special management
considerations or protection due to the presence of

[[Page 64341]]

woodland expansion; urbanization; feral horses; nonnative, invasive
species; fire; and limited population size among other more localized
and less severe stressors.

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 that 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.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other manmade structures because such lands
lack physical and biological features necessary for greater sage-
grouse. 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 sites. Therefore, if the critical habitat
is finalized as proposed, a Federal action involving these lands would
not trigger section 7 consultation with respect to critical habitat and
the requirement of no adverse modification unless the specific action
would affect the physical and biological features in the adjacent
critical habitat.
Likewise, due to past land uses, vegetation changes, or a number of
other natural or manmade factors, some areas within the mapped proposed
critical habitat may currently lack the site-specific physical and
biological features (primary constituent elements) necessary to support
bi-state DPS of greater sage-grouse (see section, Primary Constituent
Elements for Bi-state DPS of Greater Sage-grouse). If critical habitat
is designated, for actions involving lands that lack the primary
constituent elements for this species, section 7 consultation as it
relates to critical habitat would not be required.
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 Bi-State DPS. 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 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 Bi-State

[[Page 64342]]

DPS. These activities include, but are not limited to:
(1) Actions that would result in the loss of sagebrush overstory
plant cover or height. Such activities could include, but are not
limited to, the removal of native shrub vegetation by any means for any
infrastructure construction project; direct conversion to agricultural
land use; habitat improvement or restoration projects involving actions
such as (but not limited to) mowing, brush-beating, disking, plowing,
or prescribed burning; and fire suppression activities. These
activities could eliminate or reduce the habitat necessary for the
growth and reproduction of sage-grouse in the Bi-State area, at least
on a short-term basis.
(2) Actions that would result in the loss or reduction in native
herbaceous understory plant cover or height; a reduction or loss of
associated arthropod communities; or ground disturbance that would
result in removal or depletion of surface and ground water resources
that impact brood-rearing habitat. Such activities could include, but
are not limited to, improper livestock grazing; application of
herbicides or insecticides; prescribed burning and fire suppression
activities; seeding of nonnative plant species that would compete with
native species for water, nutrients, and space; groundwater pumping;
and water diversions for irrigation and livestock watering. These
activities could eliminate or reduce the quality of the habitat
necessary for the growth and reproduction of sage-grouse in the Bi-
State area through a reduction in food quality and quantity, and
increased exposure to predation.
(3) Actions that would result in the Bi-State DPS's avoidance of an
area during one or more seasonal periods. Such activities could
include, but are not limited to, the construction of vertical
structures such as power lines, fences, communication towers, and
buildings; motorized and non-motorized recreational use; and activities
such as well drilling, operation, and maintenance, which would entail
significant human presence, noise, and infrastructure. These activities
could result in the direct and functional loss of habitat if sage-
grouse avoid or reduce use of otherwise suitable habitat in the
vicinity of these structures or concentrated activity centers
throughout the Bi-State area.

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 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.
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic 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
proposed critical habitat designation for the Bi-State DPS to determine
if they meet the criteria for exemption from critical habitat under
section 4(a)(3) of the Act. Department of Defense lands with a
completed, Service-approved INRMP within the proposed critical habitat
designation include the Hawthorne Army Depot. The Marine Corps'
Mountain Warfare Training Center occurs outside of the proposed
critical habitat boundary but conducts training via a 40-year special
use permit on U.S. Forest Service lands within the proposed area (see
discussion below under the ``Exclusions Based on National Security
Impacts'' section). The Marine Corps does not currently have an INRMP;
however, should the Marine Corps' Mountain Warfare Training Center
complete an INRMP, we would conduct an analysis to determine if they
meet the criteria for exemption from the final critical habitat
designation under section 4(a)(3) of the Act.

Approved INRMPs

Hawthorne Army Depot, 5,421 ha (13,397 ac)

The Hawthorne Army Depot is located on lands in Mineral County
surrounding the town of Hawthorne, Nevada, approximately 209 km (130
mi) southeast of Reno, Nevada, on the southern shore of Walker Lake.
The 59,584-ha (147,236-ac) installation encompasses lands in the Wassuk
Range, centered on Mount Grant, where overlap with the Bi-State DPS
distribution occurs. The Hawthorne Army Depot's military mission is to
test and demilitarize munitions, maintain equipment, provide high-
desert training facilities for military units, and provide tenant
support while maintaining ecosystem viability to support the military
mission.
The U.S. Army's INRMP is a planning document that guides the
management and conservation of natural resources under the
installation's control, specifically to guide the natural resources
management program from 2013 to 2018, and provide a solid foundation
for Hawthorne Army Depot on which to build the program beyond 2018 (DOD
2013, p. ES-1). Implementing this INRMP will allow Hawthorne Army Depot
to achieve its goal to ensure the sustainability to test and
demilitarize munitions, maintain equipment, and provide tenant support
while maintaining ecosystem viability (DOD 2013, p. ES-1). Compliance
with this INRMP ensures that natural resource conservation measures and
Army activities on Hawthorne Army Depot land are integrated and
consistent with Federal stewardship requirements (DOD 2013, p. ES-1).
The most recent INRMP (updated from previous versions) was approved by
the Service on August 28, 2013 (DOD 2013, entire), is currently being
implemented, and provides a conservation benefit to the Bi-State DPS.
Approximately 5,421 ha (13,397 ac) of lands (occurring within the
footprint of Unit 2) within this installation supports habitat
currently occupied by the Bi-State DPS that provides a conservation
benefit to the DPS.
The INRMP includes Bi-State DPS management as a high priority
project, specifically by implementing conservation strategies as
identified

[[Page 64343]]

through continued multi-agency coordination. Hawthorne Army Depot's
primary objective for managing special-status species (including the
Bi-State DPS) is to: (1) Maintain conditions that buffer the effects of
the military mission on the species and their habitat, (2) support
monitoring efforts to document the health of species, and (3) enhance
the habitats of the species (DOD 2013, p. 3-17). Management actions
that provide a conservation benefit to the Bi-State DPS (i.e., managing
and increasing the population of and habitat quality for sage-grouse)
include, but are not limited to:
(1) Reducing population loss from poachers.
(2) Improving habitat in the Mount Grant North Cat area by
installing rock dikes or similar infrastructure to minimize snowmelt
runoff and to create riparian habitat in the meadow area.
(3) Possible removal of pinyon-juniper communities at higher
elevations of Mount Grant to increase sage-grouse populations and
minimize predation.
(4) Preventing hunting on the installation. And
(5) Implementing conservation strategies identified through multi-
agency efforts (e.g., Bi-State Action Plan) (DOD 2013, pp. 3-17-3-18).
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the Hawthorne Army Depot INRMP and that conservation
efforts identified in the INRMP will provide a benefit to the Bi-State
DPS. Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3) of the Act. We are not
including 5,421 ha (13,397 ac) of habitat in this proposed critical
habitat designation because of this exemption.

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 he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless 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 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 Bi-State DPS, the benefits of critical habitat
include public awareness of sage-grouse presence and the importance of
habitat protection, and in cases where a Federal nexus exists,
increased habitat protection for the Bi-State DPS due to the protection
from adverse modification or destruction of critical habitat. In
practice, a Federal nexus exists primarily on Federal lands or for
projects undertaken by Federal agencies. Since the Bi-State DPS and its
habitat primarily occur on Federal lands, we have been coordinating
with Federal agencies on their efforts to conserve the Bi-State DPS,
and we would anticipate a significant amount of coordination via
section 7 consultations if the proposed listing and proposed critical
habitat are finalized. The coordination with Federal partners conducted
to date has resulted in multiple conservation plans or strategies for
Federal lands (and to some extent on private lands) throughout the Bi-
State area.
When we evaluate a management plan during our consideration of the
benefits of exclusion, we assess 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 we receive, we will evaluate
whether certain lands in the proposed critical habitat units are
appropriate for exclusion from the final designation under section
4(b)(2) of the Act. If the analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise her discretion to exclude the lands from the final
designation.
We are considering excluding the following areas under section
4(b)(2) of the Act from the final critical habitat designation for the
Bi-State DPS. Table 4 below provides approximate areas (ha, ac) of
lands that meet the definition of critical habitat but are under our
consideration for possible exclusion under section 4(b)(2) of the Act
from the final critical habitat rule.

[[Page 64344]]

Table 4--Areas Meeting the Definition of Critical Habitat and Areas Being Considered for Exclusion From the
Critical Habitat Designation for the Bi-State DPS
----------------------------------------------------------------------------------------------------------------
Areas meeting the definition Areas being considered for
Unit Area considered of critical habitat, in exclusion, in hectares
for exclusion hectares (acres) (acres)
----------------------------------------------------------------------------------------------------------------
Unit 1. Pine Nut................ None.............. 121,744 (300,836) None
-----------------------------------------------------------
Unit 2. North Mono Lake......... Department of 345,491 (728,404) 9,818 (26,262)
Defense, Marine
Corps Mountain
Warfare Training
Center.
Los Angeles ............................ 1,002 (2,478)
Department of
Water and Power.
Unit 3. South Mono Lake......... Los Angeles 161,473 (399,008) 14,533 (35,911)
Department of
Water and Power.
Unit 4. White Mountains......... None.............. 127,252 (314,448) None
-----------------------------------------------------------
TOTAL....................... .................. 755,960 (1,868,017) 25,353 (64,651)
----------------------------------------------------------------------------------------------------------------

However, we specifically solicit comments on the inclusion or
exclusion of the areas shown in Table 4. In the paragraphs below, we
provide an analysis of our considered exclusion of these lands under
section 4(b)(2) of the Act.
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 are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. Although the majority of lands in the proposed critical
habitat are federally owned, private lands are also present in all four
units. Federal lands include areas with mining leases, geothermal
energy development, grazing permits, rights-of-way for utilities and
telecommunications, and recreational uses. Several State-owned parcels
are included in some units where hunting, wildlife viewing, and other
recreational activities occur, and tribal lands are also included. The
economic analysis will estimate the economic impact of a potential
designation of critical habitat on these activities.
During the development of a final designation, we will consider
economic impacts based on information in our economic analysis, public
comments, and other new information, and areas may be excluded from the
final critical habitat designation under section 4(b)(2) of the Act and
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. Lands eligible for exclusion include those
utilized by the Marine Corps (Mountain Warfare Training Center) for
military readiness, as discussed above in Application of Section
4(a)(3) of the Act.
The Marine Corps' Mountain Warfare Training Center is located on
lands in Mono County near Sonora Junction, California, approximately
160 km (100 mi) south of Reno, Nevada. The approximately 243-ha (600-
ac) installation encompasses lands outside the range of the Bi-State
DPS, but military training activities occur on U.S. Forest Service
lands contained within our proposed critical habitat boundary. Training
activities on U.S. Forest Service lands occur via a special use permit
(Forest Service 2012a-d, entire). We have been in support of the
requirements established under the special use permit and currently
operating greater sage-grouse management direction. The Mountain
Warfare Training Center is a training site for Marines preparing to
serve in mountainous regions, with an emphasis on training for cold
weather and high altitudes. Training activity primarily involves
limited personnel pedestrian activities, helicopter landing and
deployment sites, and vehicle exercises on established roads.
Approximately 9,818 ha (26,262 ac) in Unit 2 of Forest Service land
utilized by the Marine Corps for the Mountain Warfare Training Center
supports habitat currently occupied by the Bi-State DPS that contains
the physical and biological features essential to the conservation of
the species, including nesting, brood-rearing, and wintering seasonal
habitats.
While we do not have information currently indicating that these
lands utilized by the Department of Defense for military readiness and
the remaining lands within the proposed designation of critical habitat
for the Bi-State DPS will have an impact on national security, we may
consider excluding certain lands in the final rule. Consequently, the
Secretary does not propose to exert her discretion to exclude any areas
from the final designation based on impacts on national security at
this time. However, should the Marine Corps' Mountain Warfare Training
Center or another entity identify impacts to national security that may
result from designating critical habitat on lands owned, managed, or
utilized by the Department of Defense, or on the remaining lands within
the critical habitat footprint, we may consider excluding those lands
in the final rule. Alternatively, should the Marine Corps' Mountain
Warfare Training Center complete an INRMP, we would conduct an analysis
to determine if it meets the criteria for exemption from the final
critical habitat designation under section 4(a)(3) of the Act (see
Application of Section 4(a)(3) of the Act, above).
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 management plans for the
area, 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.

[[Page 64345]]

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 a conservation benefit for
the species and its habitat;
(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 believe that the Los Angeles Department of Water and Power's
(LADWP's) conservation strategy (which includes development of an
memorandum of understanding (MOU)), along with our ongoing partnership
with this agency, fulfills the above criteria, and we are considering
the exclusion of lands covered by this conservation strategy that
provides for the conservation of the Bi-State DPS. We are requesting
comments on the benefit to the Bi-State DPS from this conservation
strategy (see Information Requested section above) for this considered
exclusion. At this time, we are not proposing the exclusion of any
areas in the proposed critical habitat for the Bi-State DPS.

Los Angeles Department of Water and Power (LADWP) Conservation Strategy

The LADWP owns and manages approximately 15,535 ha (38,389 ac) of
the Bi-State DPS's habitat within the Bodie and South Mono PMUs (North
Mono Lake Unit 2 and South Mono Lake Unit 3) in Mono County,
California. The LADWP has been managing their lands for the
conservation of the Bi-State DPS, including implementing measures that
enhance the habitat and also reduce threats. Additionally, LADWP is
developing an HCP that would provide a conservation benefit to the Bi-
State DPS and its habitat. The activities we anticipate to be covered
in the HCP are fire and weed (i.e., nonnative, invasive plants)
management, livestock grazing, irrigated agriculture (i.e., irrigated
pasture management), recreation, road maintenance and closures (i.e.,
infrastructure--roads), power production, and power transmission (i.e.,
infrastructure--power lines). Past and current beneficial conservation
actions implemented to date include (but are not limited to) the
following:
(1) Fire--A fire management plan has been implemented that
emphasizes fire prevention and suppression, and follows guidelines
developed by LADWP for lands in Inyo County (LADWP and Ecosystem
Sciences 2010). This conservation strategy is important for protecting
sagebrush communities (i.e., sage-grouse habitat) from its principle
disturbance mechanism and preventing wildfires that can cause large-
scale habitat loss that leads to fragmentation and isolation of sage-
grouse populations. The wildland fire agencies in the area (i.e.,
CalFire, BLM, and Forest Service) and LADWP have an agreement in place
to collaborate on suppressing fires in the region regardless of where
the fire is located. If a wildfire starts on LADWP lands in sage-grouse
habitat, the response will be a multi-agency effort to suppress the
fire. This multi-agency effort means that potentially fewer acres of
sage-grouse habitat will be lost during a wildfire event. Additionally,
the LADWP reduces the threat of wildfires through implementation of a
no campfire/campstove policy outside established, permitted
campgrounds, and implementation of temporary closures of key sage-
grouse habitat use areas during the July 4th holiday.
(2) Nonnative, Invasive Plants--LADWP has licensed staff that treat
noxious weeds. Active treatment of nonnative, invasive plants reduces
the likelihood that invasive species will become established in and
negatively impact sagebrush ecosystems by altering plant community
structure and composition, hydrology, and other aspects of the sage-
brush ecosystem on which sage-grouse in the Bi-State area rely.
(3) Energy Development--Although there are no plans for energy
development on LADWP lands in sage-grouse habitat, any potential future
proposals would consider impacts to the DPS and its habitat (which may
result in impacts such as, but not limited to, loss of sagebrush
habitat from structure development, reduced water supply in brood-
rearing habitats, and sage-grouse behavioral impacts from increased
human presence).
(4) Sage-brush Removal--Although sagebrush removal may have
occurred in the past, there are no ongoing or future sage-brush removal
projects planned on LADWP land. This is important to ensure adequate
sagebrush habitat for sage-grouse occurs on LADWP lands.
(5) Grazing--All existing livestock grazing leases have a livestock
grazing management plan with upland, riparian, and irrigated pasture
management guidelines and monitoring. Approximately 60 percent (9,261
ha (22,884 ac)) of LADWP lands are located in the South Mono Lake Unit
3. Currently, there are no active livestock grazing leases on the
remaining 40 percent (6,275 ha (15,505 ac)) of LADWP lands in the Mono
Basin watershed, which is located in North Mono Lake Unit 2 and South
Mono Lake Unit 3. The implementation of appropriate livestock grazing
management plans on those LADWP lands grazed in the South Mono Lake
Unit 3 (i.e., leased and grazed areas totaling 7,986 ha (19,734 ac),
most of which is sage-grouse habitat) will prevent further loss of
sagebrush habitat and/or the reduction of habitat quality for sage-
grouse on LADWP lands.
(a) Upland Management--LADWP adopted BLM's livestock forage
utilization guidelines for all upland areas (i.e., areas permitted for
grazing in the Owens River watershed) in potential sage-grouse habitat
(i.e., maximum 40 percent use on perennial bunchgrasses). Additionally,
monitoring is conducted using identical protocols to those adapted by
the BLM Bishop Field office and NRCS to evaluate land management
practices with a focus towards improving sage-grouse habitat.
(b) Riparian Management--Riparian pastures were created along the
Upper Owens River, Convict Creek, McGee Creek and Mammoth Creek in the
early 1990s with the goal of improving riparian habitat and fisheries
(Hill et al. 2002, entire). For the past 13 years, livestock have
grazed each riparian pasture once every three years. Grazing can begin
in June on whichever riparian pasture is most suitable at the time
given current climatic conditions. Cattle will be removed from riparian
pastures at the end of the grazing period or when the average
utilization of herbaceous forage has reached 30 percent, whichever
comes first. Monitoring conducted in riparian pastures includes
utilization, fixed photopoints, permanent riparian monitoring
transects, and channel cross-section monitoring.
(c) Irrigated Pasture Management--Lessees (in areas permitted for
grazing activities in the Owens River watershed) are required to
maintain irrigated pastures in good to excellent condition. Pastures
are monitored and rated using NRCS's Guide to Pasture Condition Scoring
system (Cosgrove et al. 2001, entire). Pastures in good to excellent
condition will continue to provide a diverse variety of forbs and
insects during the sage-grouse brood-rearing period, whereas pastures
in lower

[[Page 64346]]

quality condition would be improved, which would benefit sage-grouse.
(6) Mining--There are no current or proposed areas of mining or
reclamation occurring on LADWP land in sage-grouse habitat. Any future
proposed mining projects would consider impacts to sage-grouse and
their habitat, which can include, but is not limited to, loss of
sagebrush habitat, water contamination, and invasion of nonnative
species.
(7) Recreation--Recreation management follows the general
guidelines and practices outlined in the Owens Valley Land Management
Plan (LADWP and Ecosystem Sciences 2010). These guidelines direct
various recreational activities to reduce potential impacts to sage-
grouse and their habitat, including, but not limited to, requiring
permission for individual and group events, developing sage-grouse lek-
viewing guidelines through cooperation with BLM, and closing redundant
roads or rerouting roads that exist in key sage-grouse habitat areas
(e.g., Long Valley).
(8) Urban Development--LADWP policy does not promote new urban or
agricultural development in the Plan Area (the area covered in the
draft HCP and that includes all of LADWP lands in Inyo and Mono
Counties). LADWP is developing an HCP to cover its ongoing activities,
which include water gathering, water distribution, hydroelectric power
production, power transmission activities, and continuation of other
land uses. These other land uses include irrigated agriculture,
livestock grazing, recreation, fire and weed management, road
maintenance and closures, and habitat enhancements for covered species
(those species addressed in the draft HCP). One of the covered species
in the draft HCP is the Bi-State DPS; therefore, the HCP would provide
a conservation benefit to the Bi-State DPS and its habitat. The current
draft HCP proposes to conserve all existing sage-grouse habitat for the
life of the permit (i.e., 10 years), and possibly longer if the permit
is renewed.
(9) Infrastructure (Roads, Power Lines, and Transmission and
Communication Towers)--The development of new infrastructure including
roads, power lines, transmission towers, and communication towers
within sage-grouse habitat will be avoided to the extent practicable.
Impacts to sage-grouse will be considered to reduce effects such as
habitat fragmentation and increased predator presence, and minimization
measures will be implemented if new infrastructure does occur.
(10) Infrastructure (Fencing)--Fences within 2 km (1.25 mi) of
occupied leks are evaluated to determine if collisions are occurring or
to determine the potential for collisions (following guidelines
presented in the Service's Greater Sage-grouse Conservation Objectives
Team (COT) Final Report (Service 2013b, p. 52). Future fencing will be
evaluated for the potential impacts to sage-grouse. Unnecessary fencing
in high-risk areas will be removed. Additionally, LADWP has been
installing ``let down'' fencing (i.e., permanent metal fence posts with
horizontal wire strands that can be effectively removed during the
sage-grouse breeding season or when cattle are not present), thus
reducing the likelihood of sage-grouse collisions. To date, LADWP has
installed approximately 3.2 km (2 mi) of let-down fencing in the
vicinity of the largest lek in Long Valley; another 0.8 km (0.5 mi) of
fencing will be converted to let-down in 2013.
To ensure the continuation of this management, LADWP has committed
to developing and implementing a conservation strategy to proactively
manage the Bi-State DPS on their lands within the Bodie and South Mono
PMUs (B. Tillemans 2013, in litt.). To coordinate these efforts, we
anticipate co-signing an MOU with LADWP (until such time as an HCP is
completed) for implementing a sage-grouse conservation strategy that
will address the threats to sage-grouse in the Bi-State area as
outlined in the Service's COT Final Report (Service 2013b, entire). As
a result, we will consider excluding LADWP lands from the final
critical habitat designation based on the protections provided through
our partnerhip with LADWP, and to the extent consistent with the
requirements of section 4(b)(2) of the Act.
The Secretary is considering exercising her discretion to exclude
15,535 ha (38,389 ac) that meet the definition of critical habitat for
the Bi-State DPS in the North Mono Lake Unit 2 and South Mono Lake Unit
3. Habitat-related threats present on LADWP lands that may require
special management considerations or proection include, but are not
limited to, recreation, rangeland management, and surface water
management (see the proposed listing rule for the Bi-State DPS
(published elsewhere in today's Federal Register) for additional
discussion of threats resulting in the present or threatened
destruction, modification, or curtailment of the Bi-State DPS's habitat
or range). The existing conservation actions being implemented by the
LADWP and the proposed MOU help address these threats to the Bi-State
DPS. We are considering excluding 15,535 ha (38,389 ac) in Units 2 and
3 based on the protections provided through our partnership with LADWP,
to the extent consistent with the requirements of section 4(b)(2) of
the Act. We encourage any public comment regarding our consideration to
exclude this area in the final critical habitat designation (see
Information Requested section above).

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. A thorough review of information that we
relied on in making this determination--including information on
taxonomy, habitat, distribution, population estimates and trends, and
potential threats--is presented in the Bi-State DPS Species Report
available at https://www.regulations.gov (Docket No. FWS-R8-ES-2013-
0042). A summary of this analysis is found within the proposed listing
rule published elsewhere in today's Federal Register. The purpose of
peer review is to ensure that our critical habitat designation is based
on scientifically sound data, and analyses. We have invited these peer
reviewers to comment during this public comment period.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of

[[Page 64347]]

Management and Budget 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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the 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 the 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.
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; and small businesses (13 CFR 121.201). Small businesses
include such businesses as 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 forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types of activities that might trigger regulatory
impacts under this designation as well as 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. Therefore, because
Federal agencies are not small entities, the Service certifies that the
proposed critical habitat rule will not have a significant economic
impact on a substantial number of small entities.
However, Executive Orders 12866 and 13563 direct Federal agencies
to assess costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. In other
words, while the effects analysis required under the RFA is limited to
entities directly regulated by the rulemaking, the effects analysis
under the Act, consistent with the E.O. regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, including small business entities, where
practicable and reasonable. Our draft economic analysis will assess and
consider the incremental costs of the proposed designation, to the
extent practicable, to fulfill these requirements.

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. Energy distribution facilities (i.e., power lines and
one geothermal facility) are present within this proposed critical
habitat designation, athough we do not expect the designation of this
proposed critical habitat to significantly affect energy supplies,
distribution, or use. This is because, under section 7 of the Act, the
lead agency for a proposed project would need to consider project
modifications only if the project were to reach a threshold of
jeopardizing the continued existence of the DPS or destroy or adversely
modify its critical habitat, a scenario that is unlikely within the
footprint of the existing power lines and geothermal facility for this
DPS. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.

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 would 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.''
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

[[Page 64348]]

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 would significantly or
uniquely affect small governments because the majority of lands (i.e.,
86 percent) being proposed for designation are Federal lands (including
Humboldt-Toiyaba National Forest, Inyo National Forest, Carson City
District BLM, Bishop Field Office-BLM, Tonopah Field Office-BLM, and
Stillwater Field Office-BLM) and State lands (the Slinkard/Little
Antelope Valley, Green Creek, East Walker River, and Pickel Meadow
Wildlife Areas) in both Nevada and California. None of these government
entities fits the definition of ``small governmental jurisdiction.''
Therefore, a Small Government Agency Plan is not required. However, we
will further evaluate this issue (including with regards to the tribal
lands (Washoe Tribe of Nevada and California, Bridgeport Paiute Indian
Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation
(California), and the Death Valley Timbi-sha Shoshone Tribe) and
private lands that represent a significantly smaller proportion of the
proposed critical habitat designation) as we conduct our economic
analysis, and review and revise this assessment as warranted.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), this rule is not anticipated to have significant takings
implications. As discussed above, the designation of critical habitat
affects only Federal actions. 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. Due to current
public knowledge of the DPS's protections and, if we list the DPS, the
prohibition against take of the DPS both within and outside of the
proposed critical habitat units, we do not anticipate that property
values will be affected by the critical habitat designation. However,
we have not yet completed the economic analysis for this proposed rule.
Once the economic analysis is available, we will review and revise this
preliminary assessment as warranted, and prepare a takings implication
assessment.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior policy, we requested information from, and
coordinated development of, this proposed critical habitat designation
with appropriate State resource agencies in Nevada and California. The
designation of critical habitat in areas currently occupied by the Bi-
State DPS imposes no additional restrictions to those that would be put
in place by listing the DPS and, therefore, has little incremental
impact on State and local governments and their activities. The
designation may have some benefit to these governments because the
areas that contain the physical or biological features essential to the
conservation of the DPS are more clearly defined, and the elements of
the features necessary to the conservation of the DPS 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) would 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 system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the DPS, the
rule identifies the elements of physical or biological features
essential to the conservation of the DPS. 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 proposed 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

[[Page 64349]]

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.
There are tribal lands in Nevada and California included in this
proposed designation of critical habitat. These include lands owned or
managed by the Washoe Tribe of Nevada and California, Bridgeport Paiute
Indian Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute
Reservation, and the Death Valley Timbi-sha Shoshone Tribe. Using the
criteria found in the Criteria Used To Identify Critical Habitat
section above, we have determined that all of the areas proposed for
designation on tribal lands are essential to the conservation of the
DPS. We will seek government-to-government consultation with these
tribes throughout the proposal process and development of the final
designation of critical habitat for the Bi-State DPS. At this time we
are not considering any tribal lands for exclusion from final critical
habitat designation. We recently informed all four tribes of how we are
evaluating section 4(b)(2) of the Act and of our interest in consulting
with them on a government-to-government basis.

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at https://www.regulations.gov and upon request from the
Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this package are the staff members of the
Pacific Southwest Regional Office, Nevada Fish and Wildlife Office, and
Ventura Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.

0
2. In Sec. 17.95, amend paragraph (b) by adding an entry for ``Bi-
State Distinct Population Segment of the Greater Sage-grouse
(Centrocercus urophasianus),'' in the same alphabetical order that the
species appears in the table at Sec. 17.11(h), to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *
(b) Birds.
* * * * *

Bi-State Distinct Population Segment of the Greater Sage-grouse
(Centrocercus urophasianus)

(1) Critical habitat units are depicted for Carson City, Douglas,
Esmeralda, Lyon, and Mineral Counties, Nevada, and Alpine, Inyo, and
Mono Counties, California, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Bi-State DPS of greater sage-grouse consist of four components:
(i) Landscape-scale Primary Constituent Element 1. Areas with
vegetation composed primarily of sagebrush plant communities of
sufficient size and configuration to encompass all seasonal habitats
for a given population of greater sage-grouse, or facilitate movements
within and among populations. This includes former sagebrush
communities in specific locations that are currently primarily woodland
encroached sites that potentially provide connectivity between
populations.
(ii) Site-scale Primary Constituent Element 2. Breeding habitat
composed of sagebrush plant communities with structural characteristics
within the following ranges (habitat structure values are average
values):

------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover.................... >20 percent.
Non-sagebrush Canopy Cover................ >20 percent.
Total Shrub Canopy Cover.................. >40 percent.
Sagebrush Height.......................... >30 centimeters (12 inches).
Perennial Grass Cover..................... No less than 5 percent but
>10 percent if total shrub
cover <25 percent.
Annual Grass Cover........................ <5 percent.
Forb Cover................................ >10 percent.
Grass/Forb Height......................... >18 centimeters (7 inches).
------------------------------------------------------------------------

[[Page 64350]]

(iii) Site-scale Primary Constituent Element 3. Brood-rearing
habitat composed of sagebrush plant communities and mesic habitats used
primarily in the summer to late fall season. These sites include, but
are not limited to, riparian communities, springs, seeps, and mesic
meadows, with structural characteristics within the following ranges:

------------------------------------------------------------------------
Amount of occurrence in the
Vegetation variable habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover.................... 10 to 25 percent.
Total Shrub Canopy Cover.................. 14 to 25 percent.
Sagebrush Height.......................... >30 cm (12 in).
Perennial Grass Cover..................... >7 percent.
Perennial Forb Diversity.................. >5 species present.
Forb Cover................................ >7 percent.
Grass/Forb Height......................... 18 cm (7 in).
Meadow Edge (ratio perimeter to area)..... >0.015.
Species Richness.......................... >5 species.
------------------------------------------------------------------------

(iv) Site-scale Primary Constituent Element 4. Winter habitat
composed of sagebrush plant communities with sagebrush canopy cover
greater than 10 percent and sagebrush height of greater than 25
centimeters (9.8 inches) above snow level.
(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
[EFFECTIVE DATE OF FINAL RULE].
(4) Critical habitat map units. Data layers defining map units were
created from a number of geospatial and informational data, including
(but not limited to): The 2012 Bi-State greater sage-grouse Preliminary
Priority Habitat (PPH) Map (Bi-State TAC PPH 2012b), a map product
depicting occupied habitat developed by the Bureau of Land Management
(BLM) in 2008 (BLM 2008), the 2012 Bi-State Action Plan (Service
2012b), multiple broad-scale vegetation mapping products, and telemetry
data sets. Critical habitat units were then mapped as shapefiles using
Universal Transverse Mercator (UTM) Zone 11N coordinates. 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/nevada/ and
https://www.fws.gov/ventura/), at https://www.regulations.gov at Docket
No. FWS-R8-ES-2013-0042 and at the field office responsible for this
designation. 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.
BILLING CODE 4310-55-P

[[Page 64351]]

(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.010

[[Page 64352]]

(6) Unit 1: Pine Nut; Carson City, Douglas, and Lyon Counties,
Nevada, and Alpine and Mono Counties, California. Map of Unit 1
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.011

[[Page 64353]]

(7) Unit 2: North Mono Lake; Douglas, Lyon, and Mineral Counties,
Nevada, and Alpine and Mono Counties, California. Map of Unit 2
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.012

[[Page 64354]]

(8) Unit 3: South Mono Lake; Mono County, California. Map of Unit 3
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.013

[[Page 64355]]

(9) Unit 4: White Mountains; Esmeralda and Mineral Counties,
Nevada, and Inyo and Mono Counties, California. Map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.014

* * * * *

Dated: September 26, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-24305 Filed 10-25-13; 8:45 am]
BILLING CODE 4310-55-C

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