2011 Federal Register, 76 FR 27184; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 90 (Tuesday, May 10, 2011)

[Federal Register Volume 76, Number 90 (Tuesday, May 10, 2011)]
[Proposed Rules]
[Pages 27184-27215]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10753]

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Vol. 76

Tuesday,

No. 90

May 10, 2011

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Lepidium papilliferum (Slickspot Peppergrass); Proposed
Rule

Federal Register / Vol. 76 , No. 90 / Tuesday, May 10, 2011 /
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2010-0071; MO 92210-0-0009]
RIN 1018-AX16

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Lepidium papilliferum (Slickspot Peppergrass)

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 Lepidium papilliferum (slickspot peppergrass)
under the Endangered Species Act of 1973, as amended. In total, we are
proposing to designate 23,374 hectares (57,756 acres) as critical
habitat for Lepidium papilliferum, in Ada, Elmore, Payette, and Owyhee
Counties in Idaho.

DATES: To provide us with adequate time to consider your comments,
comments must be received on or before July 11, 2011. Please note that
if you are using the Federal eRulemaking Portal (see ADDRESSES section,
below), the deadline for submitting an electronic comment is 11:59 p.m.
Eastern Standard Time on this date. We must receive requests for public
hearings, in writing, at the address shown in the FOR FURTHER
INFORMATION CONTACT section by June 24, 2011.

ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the box that reads ``Enter Keyword or ID,'' enter the docket number for
this proposed rule, which is FWS-R1-ES-2010-0071. Check the box that
reads ``Open for Comment/Submission,'' and then click the Search
button. You should see an icon that reads ``Submit a Comment.'' Please
ensure that you have found the correct rulemaking before submitting
your comment.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R1-ES-2010-0071; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Brian Kelly, State Supervisor, U.S.
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S.
Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243;
facsimile 208-378-5262. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposal 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 other interested parties concerning this
proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Endangered Species Act of
1973, as amended (Act) (16 U.S.C. 1531 et seq.), including whether
there are threats to Lepidium papilliferum from human activity, the
degree to which threats from human activity can be expected to increase
due to the designation, and whether that increase in threats outweighs
the benefit of designation such that the designation of critical
habitat may not be prudent.
(2) Specific information on:
The amount and distribution of Lepidium papilliferum
habitat;
What areas occupied at the time of listing and that
contain features essential to the conservation of Lepidium papilliferum
should be included in the designation and why;
The habitat components (primary constituent elements)
essential to the conservation of the species, such as specific soil
characteristics, plant associations, or pollinators, and the quantity
and spatial arrangement of these features on the landscape needed to
provide for the conservation of the species;
What areas not occupied at the time of listing are
essential for the conservation of the species, if any, and why; and
Special management considerations or protections that the
features essential to the conservation of Lepidium papilliferum may
require, including managing for the potential effects of climate
change.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities, and the benefits of including or excluding areas that are
subject to these impacts.
(5) Whether the benefits of excluding any particular area from
critical habitat outweigh the benefits of including that area in
critical habitat under section 4(b)(2) of the Act, after considering
both the potential impacts and benefits of the proposed critical
habitat designation. Under section 4(b)(2) of the Act, we may exclude
an area from critical habitat if we determine that the benefits of such
exclusion outweigh the benefits of including that particular area as
critical habitat, unless failure to designate that specific area as
critical habitat will result in the extinction of the species. We are
considering the possible exclusion of areas under private ownership, in
particular, as we anticipate the benefits of exclusion may outweigh the
benefits of inclusion in those areas. We therefore request specific
information on:
The benefits of including any specific areas in the final
designation and supporting rationale,
The benefits of excluding any specific areas from the
final designation and supporting rationale, and
Whether any specific exclusions may result in the
extinction of the species and why (see Exclusions section below).
(5) The use of Public Land Survey System quarter-quarter sections
to delineate the proposed critical habitat designation; we used
quarter-quarter sections in this proposed rule because they are the
most-commonly-used minimum size and method for delineating land
ownership boundaries within the range of Lepidium papilliferum.
(6) Information on the projected and reasonably likely impacts of
climate change on Lepidium papilliferum and on the critical habitat
areas we are proposing.
(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
comment.
Our final determination concerning critical habitat for Lepidium
papilliferum will take into consideration all written comments we
receive during the comment period,

[[Page 27185]]

including comments from peer reviewers, comments we receive during any
public hearing should one be requested, and any additional information
we receive during the 60-day comment period. All comments will be
included in the public record for this rulemaking. On the basis of peer
reviewer and public comments, we may, during the development of our
final determination, find that areas within the proposed designation do
not meet the definition of critical habitat, that some modifications to
the described boundaries are appropriate, or that areas may or may not
be appropriate for exclusion under section 4(b)(2) of the Act.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will
post your entire comment--including any personal identifying
information--on http://www.regulations.gov. If you provide personal
identifying information, such as your name, street address, phone
number, or e-mail address, you may request at the top of your document
that we withhold this information 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 http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).

Background

Lepidium papilliferum was listed as a threatened species under the
Act on October 8, 2009 (74 FR 52014). In this proposed rule, we intend
to discuss only those topics directly relevant to the designation of
critical habitat for this species. For more detailed information on the
genetics and biology of L. papilliferum, please refer to the final
listing rule published in the Federal Register on October 8, 2009 (74
FR 52014). Detailed information on L. papilliferum directly relevant to
designation of critical habitat is discussed under the Primary
Constituent Elements section below.

Species Information

Lepidium papilliferum is a small, flowering plant in the mustard
family (Brassicaceae). The plant grows in unique microsite habitats
known as slickspots (described below, under ``Ecology and Habitat''),
which are found within the semiarid sagebrush-steppe ecosystem of
southwestern Idaho. The species is endemic to this region, known only
from the Snake River Plain and its adjacent northern foothills (an area
approximately 145 by 40 kilometers (km) (90 by 25 miles (mi)), or 5,800
square kilometers (km\2\) (2,250 square miles (mi\2\))), with a
smaller, disjunct population on the Owyhee Plateau (an area of
approximately 18 by 19 km (11 by 12 mi), or 342 km\2\ (132 mi\2\)).
Rangewide, L. papilliferum is associated with slickspots that cover a
relatively small cumulative area within the larger sagebrush-steppe
ecosystem. Additionally, although L. papilliferum is found almost
exclusively in slickspots, very few existing slickspots are occupied by
L. papilliferum.
Lepidium papilliferum is herbaceous and relatively low-growing,
averaging 5 to 20 centimeters (cm) (2 to 8 inches (in)) high, but
occasionally reaching up to 40 cm (16 in) in height. It is an
intricately branched, tap-rooted plant, with numerous, small, white,
four-petalled flowers. Fruits (siliques) are round in outline,
flattened, and two-seeded (Moseley 1994, pp. 3, 4; Holmgren et al.
2005, p. 260). The species is monocarpic (it flowers once and then
dies) and displays two different life history strategies--an annual
form and a biennial form. The annual form reproduces by flowering and
setting seed in its first year, and dies within one growing season. The
biennial life form initiates growth in the first year as a vegetative
rosette, but does not flower and produce seed until the second growing
season. The proportion of annuals versus biennials in a population can
vary greatly (Meyer et al. 2005, p. 15), but in general annuals appear
to outnumber biennials (Moseley 1994, p. 12).
Like many short-lived plants growing in arid environments, above-
ground numbers of Lepidium papilliferum individuals can fluctuate
widely from one year to the next, depending on seasonal precipitation
patterns (Mancuso and Moseley 1998, p. 1; Meyer et al. 2005, pp. 4, 12,
15; Palazzo et al. 2005, p. 9; Menke and Kaye 2006a, p. 8; Menke and
Kaye 2006b, pp. 10, 11; Sullivan and Nations 2009, p. 44). Mancuso and
Moseley (1998, p. 1) note that sites with thousands of above-ground
plants one year may have none the next, and vice versa. Above-ground
plants represent only a portion of the population; the seed bank (a
reserve of dormant seeds, generally found in the soil) contributes the
other portion, and in many years constitutes the majority of the
population (Mancuso and Moseley 1998, p. 1).

Ecology and Habitat

Lepidium papilliferum gets its common name, slickspot peppergrass,
from its almost exclusive association with slickspot microsite
habitats. ``Slickspots'' are visually distinct openings in the
sagebrush-steppe community characterized by soils with high sodium
content and distinct clay layers; they tend to be highly reflective and
light in color, making them easy to detect on the landscape (Fisher et
al. 1996, p. 3). Within the range of L. papilliferum, slickspots cover
a relatively small cumulative area within the larger sagebrush-steppe
ecosystem. For example, an intense field inventory within the U.S. Air
Force Juniper Butte Range in 2002 found that of the 4,480 ha (11,070
ac) surveyed, approximately 1 percent (44.1 ha) (109 ac) consisted of
slickspot microsites; of those slickspots, only 4 percent were occupied
by individuals of L. papilliferum. It is not known how long slickspots
take to form, but it is hypothesized to take several thousands of years
(Nettleton and Peterson 1983, p. 193; Seronko 2006, in litt.). Climate
conditions that allowed for the formation of slickspots in southwestern
Idaho are thought to have occurred during a wetter Pleistocene period.
As slickspots appear to have formed during the Pleistocene and new
slickspots are not being formed, the loss of a slickspot is considered
a permanent loss. Some slickspots subjected to only light disturbance
in the past may apparently be capable of re-forming (Seronko 2006, in
litt.). Disturbances that alter the physical properties of the soil
layers, however, such as deep disturbance and the addition of organic
matter, may lead to destruction and permanent loss of slickspots.
Several analyses have shown a positive association between above-
ground abundance of Lepidium papilliferum and spring precipitation in
the same year. More recently, Sullivan and Nations (2009, pp. 30, 41)
analyzed 18 years of data and found that both plant density and plant
abundance were positively related to mean monthly precipitation in late
winter and spring (January through May). This correlation of abundance
with spring rainfall is important, as it at least partially explains
annual fluctuations in L. papilliferum population numbers. In contrast,
precipitation in the fall or early winter may have a negative effect on
L. papilliferum abundance the following spring (Meyer et al. 2005, p.
15; Sullivan and Nations 2009, p. 39). It has been suggested this
negative relationship may be the result of prolonged flooding of the
slickspot microsites, causing

[[Page 27186]]

subsequent mortality of overwintering biennial rosettes (Meyer et al.
2005, pp. 15-16).

Threats

The primary threat factors that affect the habitat and survival of
Lepidium papilliferum in southwest Idaho include the invasion of
nonnative annual grasses, such as Bromus tectorum (cheatgrass), and
increased fire frequency. Bromus tectorum can impact L. papilliferum
directly through competition, but it also acts indirectly on the
species by providing continuous fine fuels that contribute to the
documented increased frequency and extent of wildfires in southwest
Idaho. Frequent wildfires ultimately result in the conversion of the
sagebrush-steppe habitat to nonnative annual grasslands, with
consequent losses of native species diversity and natural ecological
function. This creates a positive feedback loop between nonnative
annual grasses and fire, which makes it difficult to separate out the
effects that each of these threats independently have on L.
papilliferum.
Development also poses a threat to Lepidium papilliferum, both
directly through the destruction of populations and loss of slickspot
microsites, as well as indirectly through habitat fragmentation. The
loss of slickspots is a permanent loss of habitat for L. papilliferum,
because the species is specifically adapted to occupy these unique
microsite habitats that developed in the Pleistocene era, and new
slickspots are no longer being formed (Nettleton and Peterson 1983, pp.
166, 191, 206).
In addition to wildfire, nonnative plants, and development,
livestock use poses a secondary threat to Lepidium papilliferum,
primarily through mechanical damage to individual plants and slickspot
habitats. Livestock trampling can disrupt the soil layers of
slickspots, altering slickspot function (Seronko 2004, in litt.; Colket
2005, p. 34; Meyer et al. 2005, pp. 21-22). Trampling when slickspots
are dry can lead to mechanical damage to the slickspot soil crust,
potentially resulting in the invasion of nonnative plants and altering
the hydrologic function of slickspots. In water-saturated slickspot
soils, trampling by livestock can break through the restrictive clay
layer; this is referred to as penetrating trampling (State of Idaho et
al. 2006, p. 9). Trampling that alters the soil structure and the
functionality of slickspots (Rengasamy et al. 1984, p. 63; Seronko
2004, in litt.) likely impacts the suitability of these microsites for
L. papilliferum. Trampling can also negatively affect the seed bank by
pushing seeds too deeply into the soil for subsequent successful
germination and emergence. The current livestock management conditions
and associated conservation measures address this threat such that it
does not appear to pose a significant risk to the species at this time,
but more monitoring information is needed to determine the significance
of this threat to L. papilliferum rangewide.
Lepidium papilliferum is primarily an outcrossing species, and
depends upon a diversity of insect pollinators for more successful
fruit production and to maintain genetic variability by genetic
exchange with distant populations. Some of the primary threats
identified may have indirect effects on L. papilliferum by negatively
impacting the native insect populations that the species depends on for
pollination and genetic exchange. Changes in native habitat caused by
residential or agricultural development, or conversion of the native
plant community to nonnative species, may impact insect pollinator
populations by removing specific food sources or habitats required for
breeding or nesting. In addition, habitat isolation and fragmentation
resulting from activities such as development or road construction may
result in decreased pollination of L. papilliferum from distant
sources, possibly resulting in decreased reproductive potential (e.g.,
lower seed set) and reduced genetic diversity.
The Owyhee harvester ant was recently identified as a potentially-
important seed predator of Lepidium papilliferum. A native species, the
harvester ants appear to favor areas dominated by nonnative annual
grasses, such as Bromus tectorum, and in the wake of disturbance
factors such as wildfire, these ants are beginning to colonize areas
that were historically unsuitable for nesting. This expansion is
increasingly bringing them into contact with L. papilliferum, which
experiences high rates of seed predation by the ants with potential
negative consequences for the seed bank and recruitment. Our current
understanding of how pervasive harvester ant colonies have become
within the range of L. papilliferum, and their overall significance on
the long-term viability of the species, is limited due to the short-
term nature of the research so far.
For a detailed analysis of the threats to Lepidium papilliferum,
please refer to the final listing rule for the species published
October 8, 2009 (74 FR 52014).

Previous Federal Actions

On July 15, 2002, we proposed to list Lepidium papilliferum as
endangered (67 FR 46441). On January 12, 2007, we published a document
in the Federal Register withdrawing the proposed rule (72 FR 1622),
based on a determination at that time that listing was not warranted
(for a description of Federal actions concerning L. papilliferum
between the 2002 proposal to list and the 2007 withdrawal, please refer
to the 2007 withdrawal document). On April 6, 2007, Western Watersheds
Project filed a lawsuit challenging our decision to withdraw the
proposed rule to list L. papilliferum. On June 4, 2008, the U.S.
District Court for the District of Idaho (Court) reversed the decision
to withdraw the proposed rule, with directions that the case be
remanded to the Service for further consideration consistent with the
Court's opinion (Western Watersheds Project v. Kempthorne, Case No. CV
07-161-E-MHW (D. Idaho)).
After issuance of the Court's remand order, we published a public
notification of the reinstatement of our July 15, 2002, proposed rule
to list Lepidium papilliferum as endangered and announced the reopening
of a public comment period on September 19, 2008 (73 FR 54345). To
ensure that our review of the species' status was complete, we
announced another reopening of the comment period on March 17, 2009,
for a period of 30 days (74 FR 11342). On October 8, 2009, we published
a final rule (74 FR 52014) listing L. papilliferum as a threatened
species throughout its range.

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(i) 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.
(I) Essential to the conservation of the species, and
(II) Which may require special management considerations or
protection; and
(ii) 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

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endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) requires consultation on Federal actions that
may affect critical habitat. The designation of critical habitat does
not affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other conservation area. Such designation does not allow
the government or public to access private lands. Such designation does
not require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner seeks or requests
Federal agency funding or authorization for an action that may affect a
listed species or critical habitat, the consultation requirements of
section 7(a)(2) would apply, but even in the event of a destruction or
adverse modification finding, the Federal action agency and the
applicant's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the primary constituent elements (PCEs) essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life-
cycle needs of the species (areas on which are found the PCEs laid out
in the appropriate quantity and spatial arrangement for the
conservation of the species). Under the Act and regulations at 50 CFR
424.12, we can designate critical habitat in areas outside the
geographical area occupied by the species at the time it is listed only
when we determine that those areas are essential for the conservation
of the species and that a designation limited to those areas occupied
at the time of listing 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; 114 Stat.
2763A-153-54)), and our associated Information Quality Guidelines
(available online at http://www.fws.gov/informationquality/topics/IQAguidelines-final82307.pdf), 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 (if available), articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials, including expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. In particular, we recognize that climate change may
cause changes in areas of occupied habitat. In the Pacific Northwest,
regionally averaged temperatures have risen 0.8 degrees Celsius (C)
(1.5 degrees Fahrenheit (F)) over the last century (as much as 2
degrees C (4 degrees F) in some areas), and are projected to increase
by another 1.5 to 5.5 degrees C (3 to 10 degrees F) over the next 100
years (Mote et al. 2003, p. 54; Karl et al. 2009, p. 135). Arid regions
such as the Great Basin where Lepidium papilliferum occurs are likely
to become hotter and drier, fire frequency is expected to accelerate,
and fires may become larger and more severe (Brown et al. 2004, pp.
382-383; Neilson et al. 2005, p. 150; Chambers and Pellant 2008, p. 31;
Karl et al. 2009, p. 83). Under projected future temperature
conditions, the cover of sagebrush in the Great Basin region is
anticipated to be dramatically reduced (Neilson et al. 2005, p. 154).
Warmer temperatures and greater concentrations of atmospheric carbon
dioxide create conditions favorable to the invasive annual grass Bromus
tectorum, and perpetuate the positive feedback cycle between annual
grasses and fire frequency that poses a significant threat to the
sagebrush matrix habitat of L. papilliferum (Chambers and Pellant 2008,
p. 32; Karl et al. 2009, p. 83).
The direct, long-term impact from climate change to the habitat of
Lepidium papilliferum is yet to be determined. Under the current
climate-change projections discussed above, we anticipate that future
climatic conditions will favor further invasion by Bromus tectorum,
that fire frequency will continue to increase, and that the extent and
severity of fires may increase as well, further changing the species
composition of southwest Idaho's sagebrush-steppe habitat.
Although the Intergovernmental Panel on Climate Change (IPCC)
projects that the changes to the global climate system in the 21st
century will likely be greater than those observed in the 20th century
(IPCC 2007, p. 45), there are, nonetheless, limitations to our ability
to estimate the scope or magnitude of the effects. Therefore, 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 necessary for the recovery of the species. For these reasons,
a critical habitat designation does not signal that habitat outside the
designated area is unimportant or may not be required for recovery of
the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. Those areas outside the critical habitat designation that
support populations are also subject to the regulatory protections
afforded by the section 7(a)(2) jeopardy standard, as determined on the
basis of the best available scientific information at the time of the
agency action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of

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these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(2) of the Act, in developing this
proposed rule we used the best scientific data available in determining
those specific areas within the geographical area occupied at the time
of listing that contain the features essential to the conservation of
Lepidium papilliferum and that may require special management
considerations or protection.
We reviewed available information that pertains to the habitat
requirements of this species. These sources of information included,
but were not limited to, data used to complete the final rule to list
the species (74 FR 52014; October 8, 2009); information from biological
surveys, peer reviewed articles, various agency reports and databases
for or by the Idaho Natural Heritage Program (INHP), U.S. Bureau of
Land Management (BLM), Idaho Army National Guard, State of Idaho, U.S.
Air Force, and nongovernmental cooperators; discussions with species
experts; and data and information presented in academic research
theses. Additionally, we utilized regional Geographic Information
System (GIS) data (such as species occurrence data, land use,
topography, aerial imagery, soil data, and land ownership maps) for
area calculations and mapping.
The long-term probability of the survival and recovery of Lepidium
papilliferum is dependent upon protecting existing population sites of
sufficient quality and viability to contribute meaningfully to the
conservation of the species; maintaining ecological function within
these sites, including preserving the integrity of the slickspot soils
and connectivity within and between populations in close geographic
proximity to one another (to facilitate pollinator activity); and
keeping these areas free of major habitat-disturbing activities,
including the establishment of invasive, nonnative plant species and
frequent wildfire. Because slickspots cover a relatively small
cumulative area within the larger sagebrush-steppe matrix, we did not
restrict the designation to individual occupied slickspots, but
included some adjacent sagebrush-steppe habitat to provide for
ecosystem function. This contiguous habitat provides the requisite PCEs
for L. papilliferum, including native flowering plants and habitat to
support pollinators, and additionally provides the essential feature of
habitat free from disturbances, such as invasive species, development,
and recreation. The areas we are proposing to designate as critical
habitat were all occupied at the time of listing, and provide physical
and biological features essential for the conservation of L.
papilliferum that may require special management considerations or
protection. We do not propose to designate areas outside of the
geographical area presently occupied by the species.
Our first step in delineating proposed critical habitat units was
to identify areas that provide for the conservation of Lepidium
papilliferum within the three physiographic regions where the species
was known to occur at the time of listing (74 FR 52020; October 8,
2009). These areas include the Boise Foothills, the Snake River Plain
and its adjacent northern foothills, and a single disjunct population
on the Owyhee Plateau. We are proposing to designate critical habitat
in all three physiographic regions to conserve the genetic variability
represented by L. papilliferum across its range and because these areas
are representative of the entire known historical geographic
distribution of the species (50 CFR 424.12(b)(5)).
We then identified areas within these geographic units that were
occupied by Lepidium papilliferum at the time of listing utilizing the
element occurrence (EO) data provided to us by the Idaho Natural
Heritage Program (INHP), and information used in the final rule to list
Lepidium papilliferum published in the Federal Register on October 8,
2009 (74 FR 52014). Element occurrences of L. papilliferum are defined
by grouping occupied slickspots that occur within 1 km (0.6 mi) of each
other; all occupied slickspots within a 1-km (0.6-mi) distance of
another occupied slickspot are aggregated into a single EO. The
definition of a single EO is based on the distance over which
individuals of L. papilliferum are believed to be capable of genetic
exchange through insect-mediated pollination (Colket and Robertson
2006, pp. 1-2). INHP assigned to each EO an identifying number and a
qualitative rank based on measures of population size and habitat
quality. Using the EO area ranking system developed by the INHP, we
evaluated specific areas to propose for designation as critical habitat
(see Criteria Used to Identify Critical Habitat, below). The ranking
given to each area takes into account those features that are essential
to L. papilliferum, including the presence of slickspots, habitat
conditions within and surrounding the area, and the conditions of the
surrounding landscape features necessary to support pollination and
other life-history requirements. Each EO for L. papilliferum is given a
ranking of A, B, C, D, E, F, H, or X by the INHP; higher rankings (the
highest rank would be an ``A'') indicate sites with greater habitat
quality and larger population sizes, which we infer are more likely to
persist and sustain the species. As of February 2009, there were no A-
ranked EOs of L. papilliferum. Rankings of B, C, and D indicate a
decreasing continuum of detectable plants, native plant community,
habitat condition, and overall landscape context within 1 km (0.6 mi)
of occupied slickspots, with a B ranking signifying a greater number of
plants and better habitat conditions and a D ranking signifying few
plants and poor conditions. Areas ranked E are those records with
confirmed L. papilliferum presence but for which no additional habitat
information is available. Areas ranked H indicate historical
occurrences, X rankings connote extirpated occurrences, and F rankings
indicate areas where no L. papilliferum individuals were found when
last visited by a qualified surveyor.
Critical habitat boundaries were initially determined based on the
minimum delineation of EO areas. Using GIS, we included an area of
approximately 250 meter (m) (820 feet (ft)) around each EO to provide
the PCEs for the species, including habitat of sufficient quantity and
quality to support pollinators of Lepidium papilliferum in occupied
slickspots. This areal extent was chosen to provide the minimum area
needed to sustain an active pollinator community for L. papilliferum.
This distance is not meant to capture all habitat that is potentially
used by pollinators, but it is meant to capture a sufficient area to
allow for pollinators to nest, feed, and reproduce in habitat that is
adjacent and connected to L. papilliferum EOs. Although the species is
served by a variety of pollinators, we delineated this pollinator-use
area based on one of L. papilliferum's important pollinators with a
relatively limited flight distance, the solitary bee, assuming that
potential pollinators with long-range flight capabilities would be
capable of using this habitat as well. Research suggests that solitary
bees have fairly small foraging distances (Steffan-Dewenter et al.
2002, pp. 1427-1429; Gathmann and Tscharntke 2002, p. 762); a study by
Gathmann and Tscharntke suggested a maximum foraging range between 150
and 600 m (495 and 1,970 ft). Based on this data, we chose 250 m (820
ft) as a reasonable mid-range estimate of the distance needed to
provide sufficient

[[Page 27189]]

habitat for the pollinator community. As noted, many other insects also
contribute to the pollination of L. papilliferum, and some of these
insects may travel greater distances than solitary bees; however, these
pollinators may also find habitat within 250 m (820 ft) of L.
papilliferum EOs. We did not delineate a pollinator use area larger
than 250 m (820 ft) around L. papilliferum EOs, because that could
include habitats that may not directly contribute to the survival or
recovery of the species. In addition to supporting the pollinator
community, this area surrounding EOs of L. papilliferum provides the
essential feature of habitat free from disturbance, such as development
and recreation, for the species.
Using GIS, we intersected the 250-m (820-ft) buffered EOs with a
quarter-quarter section shapefile based on the Public Land Survey
System. The Public Land Survey System is a rectangular survey system
commonly used in the western United States that divides the land into
6-mile square townships (equivalent to 1,554 ha), which are then
further subdivided into 1-mile square sections (259 ha). These sections
may be surveyed into smaller squares by repeated halving and
quartering; a quarter section is 160 ac (65 ha), and the smallest unit
normally utilized is a ``quarter-quarter section,'' equal in size to 40
ac (16 ha) (about \1/16\ of a square mile, or 400 m across). Quarter-
quarter sections that contained delineated EOs and surrounding buffers
were initially identified as proposed critical habitat. We chose this
strategy because, in our judgment, this scale of analysis is the
appropriate scale for defining the critical habitat boundaries of this
particular species. We based our determination to use this scale of
analysis on the following reasons: (1) Quarter-quarter sections are the
most-commonly-used minimum size and method for delineating land
ownership boundaries within the range of Lepidium papilliferum; (2) the
Public Land Survey System is a commonly-used method in Idaho and the
sections are easily identified on standard maps, which will assist the
public and land management agencies in easily identifying proposed
critical habitat areas; (3) quarter-quarter section boundaries are
commonly used for partitioning lands for management purposes such as
livestock allotment boundaries; and (4) quarter-quarter section
descriptions minimize the number of coordinates necessary to define the
shapes of the critical habitat units, and avoid a false sense of
precision that might be inferred from the use of other mapping tools;
we would not consider mapping on a finer scale to represent reliable
data with regard to location information.

Primary Constituent Elements (PCEs)

In accordance with subsections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and our implementing regulations at 50 CFR 424.12, in determining those
areas within the geographical area occupied by the species at the time
of listing to propose as critical habitat, we consider the physical or
biological features essential to the conservation of the species that
may require special management considerations or protection. These may
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; germination, or seed dispersal; and generally
(5) Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
We derived the specific PCEs essential to the conservation of
Lepidium papilliferum based on the known biological needs of the
species. We consider the physical or biological features essential to
the conservation of L. papilliferum to be those PCEs laid out in the
appropriate quantity and spatial arrangement to provide for the
conservation of the species. All areas proposed as critical habitat for
L. papilliferum are currently occupied, were occupied at the time of
listing, and are within the species' historical geographic range.
With rare exception, Lepidium papilliferum is known only to occur
in slickspot habitat microsites scattered within the greater semiarid
sagebrush-steppe ecosystem of southwestern Idaho. The restricted
distribution of L. papilliferum is likely due to its adaptation to the
specific conditions within these slickspot habitats. Slickspots are
distinguished from the surrounding sagebrush habitat as having the
following characteristics: microsites where water pools when rain falls
(Fisher et al. 1996, pp. 2, 4); sparse native vegetation; distinct soil
layers with a columnar or prismatic structure, higher alkalinity and
clay content, and natric (sodic, high sodium) properties (Fisher et al.
1996, pp. 15-16; Meyer and Allen 2005, pp. 3-5, 8; Palazzo et al. 2008,
p. 378); and reduced levels of organic matter and nutrients due to
lower biomass production (Meyer and Quinney 1993, pp. 3, 6; Fisher et
al. 1996, p. 4). Although the low permeability of slickspots appears to
help hold moisture (Moseley 1994, p. 8), once the thin crust dries out,
the survival of L. papilliferum seedlings depends on the ability of the
plant to extend the taproot into the argillic horizon (soil layer with
high clay content) to extract moisture from the deeper natric zone
(Fisher et al. 1996, p. 13).
Ecologically functional slickspots have the following three primary
layers: the surface silt layer, the middle restrictive layer, and an
underlying moist clay layer. Although slickspots can appear homogeneous
on the surface, the actual depth of the silt and restrictive layer can
vary throughout the slickspot (Meyer and Allen 2005, Tables 9, 10, and
11). The top two layers (surface silt and restrictive) of slickspots
are normally very thin; the surface silt layer varies in thickness from
a few mm to 3 cm (0.1 to 1.2 in) in slickspots known to support
Lepidium papilliferum, and the restrictive layer varies in thickness
from 1 to 3 cm (0.4 to 1.2 in) (Meyer and Allen 2005, p. 3). Fisher et
al. (1995, p. 4) describe the smooth surface layer of slickspots as
crustlike, with prominent vesicular pores. Below the surface layer, the
soil clay content increases abruptly and creates a strongly-structured,
finely-textured boundary (horizon) formed by the concentration of
silicate clay materials, known as an argillic horizon. Slickspot soil
profiles are distinctive and distinguished from the surrounding soil
matrix by very thin surface layers that form prominently vesicular
crusts, natric-like argillic horizons that occur just below the soil
surface, and by increasingly saline and sodic conditions with depth
(Fisher et al. 1995, pp. 11, 16). Disturbances that alter the physical
properties of slickspot soil layers, such as deep disturbance and the
addition of organic matter, may lead to destruction and permanent loss
of slickspots. Slickspot soils are especially susceptible to mechanical
disturbances when wet (Rengasmy et al. 1984, p. 63; Seronko 2004, in
litt.). Such disturbances disrupt the soil layers important to L.
papilliferum seed germination and seedling growth, and alter
hydrological function.
The biological soil crust, also known as a microbiotic crust or
cryptogamic crust, is another component of quality habitat for Lepidium
papilliferum. Such crusts are commonly found in semiarid

[[Page 27190]]

and arid ecosystems, and are formed by living organisms, primarily
bryophytes, lichens, algae, and cyanobacteria, that bind together
surface soil particles (Moseley 1994, p. 9; Johnston 1997, p. 4).
Microbiotic crusts play an important role in stabilizing the soil and
preventing erosion, increasing the availability of nitrogen and other
nutrients in the soil, and regulating water infiltration and
evaporation levels (Johnston 1997, pp. 8-10). In addition, an intact
crust appears to aid in preventing the establishment of invasive plants
(Brooks and Pyke 2001, p. 4, and references therein; see also Serpe et
al. 2006, pp. 174, 176). These crusts are sensitive to disturbances
that disrupt crust integrity, such as compression due to livestock
trampling or off-road vehicle (ORV) use, and are also vulnerable to
damage by fire. Recovery from disturbance is possible but occurs very
slowly (Johnston 1997, pp. 10-11).
The native, semiarid sagebrush-steppe habitat of southwestern Idaho
where Lepidium papilliferum is found can be divided into two plant
associations, each dominated by the shrub Artemisia tridentata ssp.
wyomingensis (Wyoming big sagebrush): (1) A. tridentata ssp.
wyomingensis-Achnatherum thurberianum (formerly Stipa thurberiana)
(Thurber's needlegrass); and (2) A. tridentata ssp. wyomingensis-
Agropyron spicatum (bluebunch wheatgrass) habitat types. The perennial
bunchgrasses Poa secunda (Sandberg's bluegrass) and Sitanion hysrix
(bottlebrush squirreltail) are commonly found in the understory of
these habitats, and the species Artemisia tridentata ssp. tridentata
(basin big sagebrush), Chrysothamnus nauseosus (grey rabbitbrush),
Chrysothamnus viridiflorus (green rabbitbrush), Eriogonum strictum
(strict buckwheat), Purshia tridentata (bitterbrush), and Tetradymium
glabrata (little-leafed horsebrush) form a lesser component of the
shrub community. Under relatively undisturbed conditions, the
understory is populated by a diversity of perennial bunchgrasses and
forbs, including species such as Achnatherum (formerly Oryzopsis)
hymenoides (Indian ricegrass), Achillea millefolium (common yarrow),
Phacelia heterophylla (varileaf phacelia), Astragalus purshii (Pursh's
milkvetch), Phlox longifolia (longleaf phlox), and Aristida purpurea
var. longiseta (purple threeawn).
Lepidium papilliferum is primarily an outcrossing species requiring
pollen from separate plants for more successful fruit production; it
exhibits low seed set in the absence of insect pollinators (Robertson
2003, p. 5; Robertson and Klemash 2003, p. 339; Robertson and Ulappa
2004, p. 1707; Billinge and Robertson 2008, pp. 1005-1006). Lepidium
papilliferum is capable of self-pollinating, however, with a selfing
rate (rate of self-pollination) of 12 to 18 percent (Billinge 2006, p.
40; Robertson et al. 2006a, p. 40).
Known Lepidium papilliferum insect pollinators include several
families of bees (Hymenoptera), including Apidae, Halictidae,
Sphecidae, and Vespidae; beetles (Coleoptera), including Dermestidae,
Meloidae, and Melyridae; flies (Diptera), including Bombyliidae,
Syrphidae, and Tachinidae; and others (Robertson and Klemash 2003, p.
336; Robertson et al. 2006b, p. 6). Seed set does not appear to be
limited by the abundance of pollinators (Robertson et al. 2004, p. 14).
However, studies have shown a strong positive correlation between
insect diversity and the number of L. papilliferum flowering at a site
(Robertson and Hannon 2003, p. 8). Measurement of fruit set per visit
revealed considerable variability in the effectiveness of pollination
by different types of insects. Since L. papilliferum has a wide array
of pollinators, general pollinator management practices for
conservation of pollinators should be practiced at sites designated as
critical habitat. These practices include ``a diversity of native
plants whose blooming times overlap to provide flowers for foraging
throughout the seasons; nesting and egg-laying sites, with appropriate
nesting materials; sheltered, undisturbed places for hibernation and
overwintering; and a landscape free of poisonous chemicals'' (Shepherd
et al. 2003, pp. 49-50). An intact native sagebrush community, as
opposed to a monoculture of nonnative annual grasslands such as Bromus
tectorum, is more likely to support a wider array of pollinators. Many
pollinators depend on native plants and may be unable to access
resources from introduced species; many bees, for example, not only
require large numbers of flowers to provide nectar and pollen, but also
need a variety of flowering plants to sustain them throughout the
growing season (Kearns and Inouye 1997, p. 298).
To ensure that sufficient habitat and a diversity of native
flowering plants are available to support the pollinator community
required for the viability of Lepidium papilliferum populations, we
determined that each EO should be surrounded by a minimum pollinator-
use area extending 250 m (820 ft) from the periphery. We chose this
extent as a reasonable estimate of the area needed to sustain an active
pollinator community for L. papilliferum (see Methods, above). The
areas proposed as critical habitat will ensure maintenance and
continuity of foraging habitats for insect pollinators adjacent to
occupied slickspots, which helps to increase seed viability and
production and is essential for maintaining genetic diversity in the
species over the long term. Additionally, the provision of sufficient
native sagebrush-steppe habitat protects L. papilliferum from wildfire,
nonnative plant invasions, and colonization by harvester ants, and it
helps to maintain local ecosystem characteristics within the larger
landscape, which are crucial for protecting the species and its seed
bank. The seed bank is an essential feature of L. papilliferum's
biology because it provides the species with resilience in the face of
stochastic impacts and variation in environmental conditions.
All areas designated as critical habitat for Lepidium papilliferum
were occupied at the time of listing, are within the species'
historical geographic range, and provide sufficient PCEs to support at
least one life-history function. Based on the above needs and our
current knowledge of the life history, biology, and ecology of the
species and the habitat requirements for sustaining the essential life
history functions of the species, we have determined that Lepidium
papilliferum's PCEs include:
(1) Ecologically-functional microsites or ``slickspots'' that are
characterized by:
(a) A high sodium and clay content, and a three-layer soil
horizonation sequence, which allows for successful seed germination,
seedling growth, and maintenance of the seed bank. The surface horizon
consists of a thin, silty, vesicular, pored (small cavity) layer that
forms a physical crust (the silt layer). The subsoil horizon is a
restrictive clay layer with an abruptic (referring to an abrupt change
in texture) boundary with the surface layer, that is natric or natric-
like in properties (a type of argillic (clay-based) horizon with
distinct structural and chemical features) (the restrictive layer). The
second argillic subsoil layer (that is less distinct than the upper
argillic horizon) retains moisture through part of the year (the moist
clay layer); and
(b) Sparse vegetation with low to moderate introduced, invasive,
nonnative plant species cover.
(2) Relatively-intact, native Artemisia tridentata ssp.
wyomingensis (Wyoming big sagebrush) vegetation assemblages,
represented by native bunchgrasses, shrubs, and forbs, within 250 m
(820 ft) of Lepidium papilliferum element occurrences to protect
slickspots and Lepidium papilliferum from disturbance

[[Page 27191]]

from wildfire, slow the invasion of slickspots by nonnative species and
native harvester ants, and provide the habitats needed by L.
papilliferum's pollinators.
(3) A diversity of native plants whose blooming times overlap to
provide pollinator species with sufficient flowers for foraging
throughout the seasons and to provide nesting and egg-laying sites;
appropriate nesting materials; and sheltered, undisturbed places for
hibernation and overwintering of pollinator species. In order for
genetic exchange of Lepidium papilliferum to occur, pollinators must be
able to move freely between slickspots. Alternative pollen and nectar
sources (other plant species within the surrounding sagebrush
vegetation) are needed to support pollinators during times when
Lepidium papilliferum is not flowering, when distances between
slickspots are large, and in years when L. papilliferum is not a
prolific flowerer.
(4) Sufficient pollinators for successful fruit and seed
production, particularly pollinator species of the sphecid and vespid
wasp families, species of the bombyliid and tachnid fly families,
honeybees, and halictid bee species, most of which are solitary insects
that nest outside of slickspots in the surrounding sagebrush-steppe
vegetation, both in the ground and within the vegetation.
The space for individual and population growth is provided by PCEs
1, 2, and 3; the need for food, water, air, light, minerals, or other
physiological requirements is provided by PCEs 1 and 2; the need for
cover and shelter is met by PCEs 1 and 2; sites for reproduction,
germination, and seed dispersal are provided by PCEs 1, 2, 3, and 4;
and habitat free from disturbance is met by PCE 2. All of the above
described PCEs do not have to occur simultaneously within a unit for
the unit to constitute critical habitat for Lepidium papilliferum. All
units and subunits proposed in this rule as critical habitat contain at
least one of the PCEs to provide for one or more of the life-history
functions of L. papilliferum.

Special Management Considerations or Protection

Within the geographical area occupied by the species at the time it
was listed, section 3(5)(A) of the Act defines critical habitat as
those specific areas on which are found those physical or biological
features essential to the conservation of the species and that may
require special management considerations or protection. Accordingly,
when designating critical habitat, we assess whether the PCEs within
the areas occupied at the time of listing may require special
management consideration or protections.
A detailed discussion of the threats affecting the physical and
biological features essential to the conservation of Lepidium
papilliferum, and that may require special management consideration or
protection, can be found in the final listing rule published in the
Federal Register on October 8, 2009 (74 FR 52014). The primary threats
to the PCEs for L. papilliferum include the following direct and
indirect effects: The current wildfire regime (i.e., increasing
frequency, size, and duration), invasive, nonnative plant species
(e.g., Bromus tectorum), and habitat loss and fragmentation due to
agricultural and urban development. One of the indirect threats
experienced by L. papilliferum is the negative impact on insect
pollinators caused by conversion and fragmentation of native habitats
due to invasive, nonnative plant species and various forms of
development. Another indirect threat is the potential increase in seed
predation by harvester ants resulting from the conversion of sagebrush-
steppe to nonnative annual grasses such as B. tectorum. Livestock pose
a threat to L. papilliferum, primarily through mechanical damage to
individual plants and slickspot habitats; however, current livestock
management conditions and associated conservation measures address this
potential threat such that it does not pose a significant risk to the
viability of the species as a whole. Other, less significant factors
that have the potential to impact the species include the effects from
rangeland revegetation projects, wildfire management practices,
recreation, and military use.

Current Wildfire Regime

The current wildfire regime and invasive, nonnative plant species
were cited in the final listing rule as the primary cause for the
decline of Lepidium papilliferum. The invasion of nonnative plant
species, particularly annual grasses such as Bromus tectorum and
Taeniatherum caput-medusae (medusahead), has contributed to increasing
the amount and continuity of fine fuels across the landscape, and as a
result, the wildfire frequency interval has been shortened from between
60 to 110 years historically to less than 5 years in many areas of the
sagebrush-steppe ecosystem at present (Wright and Bailey 1982, p. 158;
Billings 1990, pp. 307-308; Whisenant 1990, p. 4; USGS 1999, in litt.,
pp. 1-9; West and Young 2000, p. 262). These wildfires tend to be
larger and burn more uniformly than those that occurred historically,
resulting in fewer patches of unburned vegetation, which can affect the
post-fire recovery of native sagebrush-steppe vegetation (Whisenant
1990, p. 4). The result of this altered wildfire regime has been the
conversion of vast areas of the former sagebrush-steppe ecosystem to
nonnative annual grasslands (USGS 1999, in litt., pp. 1-9). Frequent
wildfires can also promote soil erosion and sedimentation (Bunting et
al. 2003, p. 82) in arid environments such as the sagebrush-steppe
ecosystem. Increased sedimentation can result in a silt layer that is
too thick for optimal L. papilliferum germination (Meyer and Allen
2005, pp. 6-7).
I. Several researchers have noted signs of increased habitat
degradation for Lepidium papilliferum, most notably in terms of exotic
species cover and wildfire frequency (e.g., Moseley 1994, p. 23; Menke
and Kaye 2006b, p. 19; Colket 2008, pp. 33-34), but only recently have
analyses demonstrated a statistically significant, negative
relationship between the degradation of habitat quality, both within
slickspot microsites and in the surrounding sagebrush-steppe matrix,
and the abundance of L. papilliferum. Sullivan and Nations (2009, pp.
114-118, 137) found a consistent, statistically significant, negative
correlation between wildfire and the abundance of L. papilliferum
across its range. Their analysis of 5 years of Habitat Integrity and
Population (HIP) monitoring data indicated that L. papilliferum
``abundance was lower within those slickspot [sic] that had previously
burned'' (Sullivan and Nations 2009, p. 137), and the relationship
between L. papilliferum abundance and fire is reported as ``relatively
large and statistically significant,'' regardless of the age of the
fire or the number of past fires (Sullivan and Nations 2009, p. 118).
The nature of this relationship was not affected by the number of fires
that may have occurred in the past; whether only one fire had occurred
or several, the association with decreased abundance of L. papilliferum
was similar (Sullivan and Nations 2009, p. 118).
Special management to protect the proposed critical habitat areas
and the features essential to the conservation of Lepidium papilliferum
from the effects of the current wildfire regime may include preventing
or restricting the establishment of invasive, nonnative plant species,
post-wildfire restoration with native plant species, and reducing the
likelihood of wildfires affecting the nearby plant community
components. Local fire agencies can achieve the latter

[[Page 27192]]

by providing a rapid response or mutual support agreement for wildfire
control.

Invasive, Nonnative Plant Species

The conversion of sagebrush-steppe habitat to nonnative annual
grasslands over the past several decades has reduced or degraded
suitable habitat for Lepidium papilliferum, in addition to fragmenting
and isolating extant occupied areas. There are two primary ways for
invasive, nonnative plants to become established in L. papilliferum
habitats, through natural spreading (unseeded) or revegetation projects
(seeded). The rates at which nonnative unseeded species are spreading,
oftentimes into relatively intact habitats, is of major concern to
natural resource managers. Invasive, nonnative plants can alter various
attributes of ecosystems including geomorphology, wildfire regime,
hydrology, microclimate, nutrient cycle, and productivity (for a
summary see Dukes and Mooney 2003, entire). Additionally, these
invasive, nonnative plants can negatively affect native plants,
including rare plants like L. papilliferum, through competitive
exclusion, niche displacement, hybridization, and competition for
pollinators; examples of these negative effects are widespread among
different taxa, locations, and ecosystems (D'Antonio and Vitousek 1992,
pp. 63-87; Olson 1999, p. 5; Mooney and Cleland 2001, p. 1). Recent
analyses have revealed a significant, negative association between the
presence of weedy species and the abundance or density of L.
papilliferum, to the point that L. papilliferum may be excluded from
slickspots (Sullivan and Nations 2009, pp. 109-112). Although the
specific mechanisms are not well understood, some of these plants, such
as Agropyrum cristatum (crested wheatgrass) and Bromus tectorum, are
strong competitors in this arid environment for such limited resources
as moisture, which tends to be concentrated in slickspots (Pyke and
Archer 1991, p. 4; Moseley 1994, p. 8; Lesica and DeLuca 1998, p. 4),
at least in the subsurface soils (Fisher et al. 1996, pp. 13-16).
Special management to protect the features essential to the
conservation of Lepidium papilliferum in the areas proposed as critical
habitat from the effects of invasive, nonnative unseeded plant species
may include the following: (1) protecting remnant blocks of native
vegetation, (2) educating the public about invasive, nonnative species,
(3) supporting research and funding for nonnative plant species
control, (4) preventing or restricting the establishment of nonnative
plant species, (5) washing vehicles prior to any travel into areas
containing L. papilliferum, (6) quarantining livestock prior to
entering allotments containing L. papilliferum, and (7) reducing the
likelihood of wildfires.

Livestock Use

The most visible effect to Lepidium papilliferum and its habitat
from livestock use is through trampling impacts. Livestock trampling
can affect the fragile soil layers of slickspots (Colket 2005, p. 34;
Meyer et al. 2005, pp. 21-22; Seronko 2004, in litt.). Trampling when
slickspots are dry can lead to mechanical damage to the slickspot soil
crust, potentially resulting in invasion of nonnative plants into the
slickspots and altering the hydrologic function of slickspots, but is
hypothesized to be less of an impact to L. papilliferum habitats than
trampling of wet slickspot soils. Livestock trampling of water-
saturated slickspot soils that breaks through the restrictive layer
(referred to as ``penetrating trampling'' (State of Idaho et al. 2006,
p. 9)) has the potential to alter the soil structure and the
functionality of slickspots (Rengasamy et al. 1984, p. 63; Seronko
2004, in litt.). Penetrating trampling that occurs when slickspots are
wet also has the potential to affect the seed bank for L. papilliferum
by pushing the seeds below a depth where they can germinate (i.e.,
below 3 cm (1.5 in.)) (Meyer and Allen 2005, pp. 9-10; Meyer et al.
2006, pp. 891, 901-902).
There are also indirect effects from livestock use that have
impacted the sagebrush-steppe ecosystem. Livestock use has been
suggested as a contributing factor to the spread of invasive, nonnative
plant species (Frost and Launchbaugh 2003, pp. 43-45). The spread of
Bromus tectorum on the Snake River Plain in particular has been
attributed to several causes, including the past practice of heavy,
unmanaged livestock use in the late 1800s (Mack 1981, pp. 145-165).
Today, invasive, nonnative annual plants such as B. tectorum are so
widespread that they have been documented spreading into areas that
have not been disturbed (Tisdale et al. 1965, pp. 349, 351). Therefore,
the absence of livestock use is no longer sufficient, by itself, to
protect the landscape from invasive, nonnative species (Frost and
Launchbaugh 2003, p. 44).
With careful management, livestock grazing may be used as a tool to
select for certain native species, or even to control B. tectorum
(Frost and Launchbaugh 2003, p. 43). For example, under the revised
Juniper Butte Range Integrated Natural Resources Management Plan
(INRMP), the U.S. Air Force will continue to use livestock throughout
the majority of the Juniper Butte Range to reduce the amount of
standing grass biomass to in turn reduce wildfire risk (U.S. Air Force
2004, pp. 6-37 through 6-39). However, this requires intensive
management and timing that is not typically feasible over large areas.
Research designed to specifically examine the relationship between
livestock use and Lepidium papilliferum is currently being conducted by
the University of Idaho and the State of Idaho in cooperation with the
Service (State of Idaho et al. 2006, p. 119).
Special management to protect the features essential to the
conservation of Lepidium papilliferum from the effects of livestock use
in the areas proposed as critical habitat may include conservation
measures and actions to minimize the effects of livestock use on these
lands. Existing conservation plans contain numerous measures to avoid,
mitigate, and monitor the effects of livestock use on L. papilliferum.
Livestock-grazing conservation measures implemented through the State
of Idaho Candidate Conservation Agreement (CCA) and the U.S. Air Force
INRMP apply to all Federal and State-managed lands within the occupied
range of L. papilliferum (approximately 95 percent of the total
occupied area). Existing conservation measures include prescribing a
minimum distance for the placement of salt and water troughs,
identifying livestock use restrictions to reduce trampling of
slickspots during wet periods, constructing fences, or potentially
modifying current livestock use. We recognize the potential for
negative impacts to L. papilliferum populations and slickspots that may
result from seasonal, localized trampling events. However, under
current management conditions, we do not consider livestock use to pose
a significant threat to L. papilliferum. We encourage the continued
implementation of conservation measures and associated monitoring to
ensure potential impacts of livestock trampling to L. papilliferum are
avoided or minimized.

Residential and Agricultural Development

Past residential and agricultural development was responsible for
five documented extirpations and four probable extirpations of Lepidium
papilliferum (Colket et al. 2006, p. 4). The long-term viability of L.
papilliferum on private land on the Snake River Plain and adjacent
Boise

[[Page 27193]]

foothills is uncertain due to the continuing residential and urban
development in and around Boise (Moseley 1994, p. 20). Residential and
agricultural development can affect L. papilliferum and slickspot
habitat through habitat conversion, increased nonnative plant
invasions, increased ORV use, increased wildfire, changes to insect
populations, and increased fragmentation. Utility lines such as power
and gas lines, as well as roads, also fragment L. papilliferum occupied
areas and act as corridors for nonnative plant invasions.
Special management to protect the features essential to the
conservation of Lepidium papilliferum from the effects of residential
and agricultural development in the areas proposed may include creating
managed plant reserves and open spaces; limiting disturbances to and
within suitable habitats; increasing compliance inspections with permit
holders; requiring project fencing with adjacent construction
activities; disallowing new roads; and evaluating the need for and
conducting restoration or revegetation of native plants in open spaces,
plant preserves, or disturbed areas, such as cuts for powerlines.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of Lepidium papilliferum. Activities with a Federal nexus
that may affect those areas outside of critical habitat, such as
development, agricultural, or road construction activities, are still
subject to review under section 7 of the Act if they may affect L.
papilliferum. The prohibitions of section 9 of the Act include the
import or export of listed species, and the removal to possession or
malicious damage or destruction of a species under Federal jurisdiction
(16 U.S.C. 1538(a)(2)).

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we used the best
scientific data available in determining those specific areas within
the geographical area occupied at the time of listing that contain the
features essential to the conservation of Lepidium papilliferum and
that may require special management considerations or protection. Our
proposed designation of critical habitat for L. papilliferum is based
on the information and procedures detailed in the Methods section,
above. As described, we are proposing to designate critical habitat
within the three physiographic regions where the species was known to
occur at the time of listing (October 8, 2009), the Boise Foothills,
the Snake River Plain, and the Owyhee Plateau. The areas we are
proposing to designate as critical habitat were all occupied at the
time of listing, and provide physical and biological features essential
for the conservation of L. papilliferum that may require special
management considerations or protection. All proposed areas provide one
or more of the PCEs for life history function. We do not propose to
designate areas outside the geographical area presently occupied by the
species.
We included all Lepidium papilliferum EOs with INHP rankings of B,
BC, and C in the proposed critical habitat. We conclude that areas with
these rankings provide the physical and biological features essential
to the conservation of the species, as they are most likely to provide
for viable populations of L. papilliferum that will contribute to the
conservation and recovery of the species, and each provides one or more
of the PCEs as defined in this proposed rule. EOs ranked as B have one
or more of the following features: More than 399 individuals, low
nonnative plant species cover, predominantly unburned, few
anthropogenic disturbances, and a surrounding landscape that is only
minimally or partially fragmented within a distance of 1 km (0.6 mi).
EOs ranked C have one or more of the following features: More than 50
individuals; low to moderate nonnative plant species cover; only
partially burned; few to moderate anthropogenic disturbances; and a
surrounding landscape within 1 km (0.6 mi) that is not predominantly
fragmented by development, nonnative annual grasslands, or nonnative
seeding projects. For the purposes of the proposed critical habitat
analyses, we categorized areas containing B- or BC-ranked EOs
(intermediate between B-rank and C-rank, see Colket et al. 2006, p. 5)
as having high conservation value for the slickspot peppergrass, while
areas containing C-ranked EOs were categorized as having medium
conservation value for the species. Because data on condition,
landscape context, and size are used to calculate the EO rankings, it
is important to keep in mind that while some EOs included as critical
habitat have lower habitat quality than others, their higher ranking
may reflect their larger size. Based on the ranking definitions
detailed above, EOs ranked as B, BC, and C are considered to contain
some or all of the PCEs essential to the conservation of Lepidium
papilliferum. We considered those EOs ranked C or higher to provide the
PCEs for L. papilliferum in the quantity and spatial arrangement
essential to the conservation of the species, and determined that these
EOs are collectively sufficient to achieve the conservation and
recovery of the species.
We did not include sites ranked D or lower in the proposed
designation. D-ranked sites have 50 or fewer individuals of Lepidium
papilliferum, and the quality of the habitat is poor. Few components of
the native plant community remain, introduced plant species cover is
high, and the slickspots themselves have high invasive, nonnative plant
cover or have been subject to livestock disturbance. Few or several
moderately severe anthropogenic disturbances are evident at such sites,
and each site has been predominantly to completely burned (Colket et
al. 2006, p. 4). Portions of these sites may have been drill-seeded
(seeded using a specialized attachment on a tractor to mechanically
plant seeds), which alters the slickspot soil layers. The landscape
around such sites is moderately to completely fragmented by
agricultural lands, residential or commercial development, introduced
annual grasslands, or drill-seeding projects (Colket et al. 2006, p.
4). Due to the poor condition of the habitat around D-ranked sites, the
low viability of the small L. papilliferum populations remaining at
such sites, and the fragmented nature of the surrounding landscape, we
determined that EOs ranked D or lower do not provide the PCEs in
sufficient quantity or spatial arrangement to be essential to the
conservation of the species, and are therefore not expected to make any
meaningful contribution to the recovery of the species. Based on our
evaluation of EOs ranked C or higher, we did not consider sites ranked
D or lower to be necessary to achieve the conservation of the species.
Therefore, we did not include EOs ranked D or lower in the proposed
designation.
Based on this analysis, we are proposing to designate four units as
critical habitat for Lepidium papilliferum: The Ada County Unit, the
Elmore County Unit, the Owyhee County Unit, and the Payette County
Unit. Two of these units are further divided into subunits; the Ada
County Unit has four subunits and the Elmore County Unit has three
subunits. Subunits are used for ease of mapping. There are 17 EOs
within the Ada County Unit, 12 EOs within the Elmore County Unit, 11
EOs within the Owyhee County Unit, and 3 EOs within the Payette County
Unit, for a total of 43 EOs, ranked B, BC, or C, included in this

[[Page 27194]]

designation. After applying the above criteria, we mapped the critical
habitat unit boundaries for each of the four units. We created maps in
a GIS using aerial imagery, 7.5 minute topographic maps, contour data,
Idaho Natural Heritage Data, and Public Land Survey System data.
When determining proposed critical habitat boundaries within this
proposed rule, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack PCEs for Lepidium papilliferum. The scale of
the maps we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
require section 7 consultation with respect to critical habitat, nor
would it trigger the requirement of no adverse modification, unless the
specific action would affect the PCEs in the adjacent critical habitat.

Proposed Critical Habitat Designation

We are proposing four units as critical habitat for Lepidium
papilliferum. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for L. papilliferum. The four areas we propose as
critical habitat are: (1) The Ada County Unit, (2) the Elmore County
Unit, (3) the Owyhee County Unit, and (4) the Payette County Unit. All
units were occupied at the time of listing and are currently occupied.
The approximate areas of each proposed critical habitat unit and
associated subunits, if any, are shown in Table 1.

Table 1--Proposed Critical Habitat Units and Area (Hectares (Acres)) by Land Ownership for Lepidium Papilliferum
[Area estimates reflect all land within proposed critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit or subunit Federal State Municipal (county) Private Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1--Payette County............ 257 ha 0 ha 0 ha 16 ha 273 ha
(635 ac) (0 ac) (0 ac) (40 ac) (675 ac)
Unit 2--Ada County................ 4,842 ha 1,149 ha 340 ha 667 ha 6,998 ha
(11,964 ac) (2,840 ac) (840 ac) (1,648 ac) (17,292 ac)
2a................................ 644 ha 0 ha 340 ha 291 ha 1,275 ha
(1,592 ac) (0 ac) (840 ac) (719 ac) (3,151 ac)
2b................................ 2,676 ha 98 ha 0 ha 32 ha 2,806 ha
(6,613 ac) (241 ac) (0 ac) (80 ac) (6,934 ac)
2c................................ 512 ha 98 ha 0 ha 311 ha 921 ha
(1,265 ac) (242 ac) (0 ac) (768 ac) (2,275 ac)
2d................................ 1,009 ha 954 ha 0 ha 33 ha 1,996 ha
(2,494 ac) (2,357 ac) (0 ac) (81 ac) (4,932 ac)
Unit 3--Elmore County............. 3,483 ha 97 ha 0 ha 418 ha 3,998 ha
(8,606 ac) (239 ac) (0 ac) (1,034 ac) (9,879 ac)
3a................................ 696 ha 0 ha 0 ha 241 ha 937 ha
(1,721 ac) (0 ac) (0 ac) (595 ac) (2,316 ac)
3b................................ 656 ha 97 ha 0 ha 49 ha 801 ha
(1,621 ac) (239 ac) (0 ac) (120 ac) (1,980 ac)
3c................................ 2,130 ha 0 ha 0 ha 129 ha 2,259 ha
(5,264 ac) (0 ac) (0 ac) (319 ac) (5,583 ac)
Unit 4--Owyhee County............. 11,505 ha (28,428 ac) 600 ha 0 ha 0 ha 12,105 ha (29,910 ac)
(1,482 ac) (0 ac) (0 ac)
All Units......................... 20,086 ha (49,633 ac) 1,846 ha 340 ha 1,102 ha 23,374 ha (57,756 ac)
(4,561 ac) (840 ac) (2,722 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum exactly due to rounding.

We present brief descriptions of all units and their constituent
subunits below. Each of these units provide one or more PCEs essential
to the conservation of the species. As described above under Criteria
Used To Identify Critical Habitat, EOs included within the units were
chosen using the EO area ranking system developed by the INHP, which
takes into account those physical and biological features that are
essential to L. papilliferum (i.e., slickspots, habitat condition
within and surrounding the area, and the conditions of the surrounding
landscape features necessary to support pollination and other life-
history requirements), and that we have determined may require special
management considerations or protection. We are not proposing to
designate any areas outside the geographical area occupied by the
species at the time of listing as critical habitat.
The PCEs in each of these units may require special management
considerations or protection to address threats from wildfire,
invasive, nonnative plant species, and activities such as livestock
trampling or development that may occur in the area. See the Special
Management Considerations or Protection section of this proposed rule
for a discussion of the threats to L. papilliferum habitat and
potential management considerations. Further details on threats to L.
papilliferum are provided in the final listing rule for the species,
published in the Federal Register on October 8, 2009 (74 FR 52014).
Unless otherwise cited, information used to develop these
descriptions is based on the 2010 INHP Element Occurrence Records (EOR)
(INHP 2010, in litt.) and the Element Occurrence review and update for
Lepidium papilliferum, which describes how each individual EO was
ranked (Colket et al. 2006).

Unit 1: Payette County

The Payette County unit consists of 273 ha (675 ac). The northern
boundary of Unit 1 is approximately 7.6 km (4.8 mi) south of New
Plymouth, Idaho.

[[Page 27195]]

Lepidium papilliferum was known to occupy this unit at the time of
listing; currently 257 ha (635 ac) are Federally managed by the BLM,
and 16 ha (40 ac) are privately owned. This unit is composed of three
L. papilliferum EOs: 66, 68, and 70. This unit contains PCEs and is
important to the conservation of L. papilliferum because it contains
the northernmost occurrences for L. papilliferum and potentially has
the highest numbers of individual plants.
The plant community of EO 66 is composed of a fragmented Artemisia
tridentata ssp. wyomingensis/Vulpia octoflora (six weeks fescue)
community that has had a mosaic burn and was subsequently seeded with
Agropyron cristatum (crested wheatgrass). This is a large occurrence,
with over 6,700 Lepidium papilliferum individuals observed along HIP
transects in 2008. Invasive, nonnative plants, wildfire, and
residential development are threats to this EO. Use of ORVs and
livestock are potential threats, although an exclosure protects
portions of the EO from livestock and ORV use.
The second EO in Unit 1, EO 68, is primarily composed of a
Sisymbrium altissimum (tumble mustard)/Poa secunda community, at times
adjacent to small Artemisia tridentata ssp. wyomingensis fragments.
This EO is adjacent to Interstate 84 and is located less than 500 m
(1,640 ft) from commercial development. Historically, this EO has had
high Lepidium papilliferum abundance; however, the occurrence and
surrounding area is very weedy and has burned in the past. Wildfire,
invasive, nonnative plants, and livestock use are threats to this
occurrence.
The third EO in Unit 1 is EO 70, composed of a contiguous, unburned
Artemisia tridentata ssp. wyomingensis/Vulpia octoflora community with
low introduced, invasive, nonnative species cover. While a relatively
intact landscape surrounds the occurrence, historical wildfire and
residential development have occurred within 250 m (820.2 ft) of the
EO. The immediate threat to EO 70 is wildfire. In addition, the
surrounding area seems to be used as a dumping ground, with trash and
garbage evident. Livestock use is also a potential threat.

Unit 2: Ada County

The Ada County unit consists of 6,998 ha (17,292 ac) divided into
four subunits: 2a, 2b, 2c, and 2d. Lepidium papilliferum was known to
occupy this unit at the time of listing. 4,842 ha (11,964 ac) of this
unit are Federally managed by the BLM, 1,149 ha (2,840 ac) are managed
by the State of Idaho, 340 ha (840 ac) are managed by Ada County, and
667 ha (1,648 ac) are on private lands. This unit is composed of 17 L.
papilliferum EOs split among the four subunits. This unit contains PCEs
important to the conservation of L. papilliferum; many of the subunits
are large, and contain the most intact areas of sagebrush-steppe
habitat that has had little impact from wildfire.

Subunit 2a

Subunit 2a contains the city of Eagle, Idaho, and the southern
boundary of the unit is approximately 7.2 km (4.5 mi) northwest of
Boise, Idaho. It is composed of six EOs: 38, 52, 65, 76, 107, and 108.
Nonnative, annual weedy species dominate the landscape within EO
38, with scattered Purshia tridentata, Artemisia tridentata ssp.
wyomingensis, and Ericameria nauseosa (rubber rabbitbrush). This EO is
almost completely contained within the Ada County Landfill Complex
(Cole 2008, entire) and is located in close proximity to the Idaho
Velodrome and Cycling Park and Eagle Sports Complex. In 2008, survey
efforts (Cole 2008) found an additional 5,000 L. papilliferum plants,
which resulted in a subsequent upgrade to the EO rank. Primary threats
to this EO include wildfire (the western portion of this EO burned in
2009 (Ada County 2010, in litt.)); human recreation associated with the
construction of authorized and unauthorized trails for mountain biking
and hiking (some slickspots have already been impacted); and invasive,
nonnative weed invasions and expansions (Cole 2008, pp. 10, 13).
Livestock use occurred in the past, but ceased in the area
approximately 10 years ago (T. Hutchinson, pers. comm. in Cole 2008, p.
12), and we have no evidence to suggest that livestock use is likely to
pose a threat to this EO within the foreseeable future.
EO 52 is composed of a varied plant community, including scattered
islands of Purshia tridentata/Artemisia tridentata ssp. wyomingensis/
Chrysothamnus viscidiflorus (yellow rabbitbrush) with an understory
primarily composed of Bromus tectorum and Poa secunda. It is a large
EO, with thousands of plants documented. This EO is located near the
Eagle/Boise urban area and receives substantial recreational use
through hiking, equestrian riding, biking, and ORV use. Residential
development occurs within 500 m (1,640 ft) of this subunit. EO 52 is
known to be threatened by wildfire, invasive, nonnative plant species,
recreation, and development.
EO 65 is composed of an Artemisia tridentata ssp. wyomingensis/
Purshia tridentata/Bromus tectorum/Taeniatherum caput-medusae plant
community. The Seaman's Gulch Ridge to Rivers trail system runs through
and around a portion of this EO south of Seaman's Gulch road (Cole
2008, p. 9). While there is a high diversity of forbs within the EO,
the area is generally weedy overall. Biological soil crust cover in the
general area is fairly high. Wildfire, invasive, nonnative plant
species, and unauthorized recreation trail travel are threats to EO 65.
The vegetative community of EO 76 is Artemisia tridentata ssp.
tridentata/Vulpia octoflora with low cover of both native forbs and
invasive, nonnative annuals. The surrounding landscape is completely
disturbed from a combination of burned areas, residential development,
and agricultural lands. However, this is a large occurrence, with
approximately 4,800 Lepidium papilliferum individuals observed on the
HIP transects in 2008. This EO is threatened by wildfire, invasive,
nonnative plant species, livestock use, recreation, and residential and
road development.
EO 107 is located on private land. The vegetative community is
characterized as degraded Artemisia tridentata ssp. wyomingensis
habitat with an understory of Bromus tectorum and Aristida purpurea
var. longiseta. At the time of the survey, there were signs of recent
fire in the area. This EO is threatened by wildfire and invasive,
nonnative plant species.
EO 108 occurs in an Artemisia tridentata ssp. tridentata/Artemisia
tridentata ssp. wyomingensis/Chrysothamnus viscidiflorus-Ericameria
nauseosus community with a mix of native and nonnative understory
species. The plant community within this EO is in various states of
transition given historical disturbance regimes such as fire and use by
livestock (URS 2008, p. 6). However, 2007 and 2008 survey data indicate
an estimated 1,117 Lepidium papilliferum individuals are located within
this EO. Threats to EO 108 include invasive, nonnative plant species,
wildfires, livestock use, recreation (including ORV use), and
residential and road development.

Subunit 2b

The northern boundary of Subunit 2b is approximately 4.2 km (2.6
mi) south of Kuna, Idaho. Subunit 2b is composed of three EOs: 18, 24,
and 25.
EO 18 is a large occurrence composed of Artemisia tridentata/Poa
secunda, B. tectorum/Sisymbrium altissimum, and B. tectorum/Bassia
prostrata communities. It is located approximately 14.5 km (9 mi) (14.5
km)

[[Page 27196]]

south to southwest of Kuna and near the Kuna/Boise urban areas. Bromus
tectorum is abundant throughout the area, with P. secunda being the
most common bunchgrass. Wildfire destroyed the original sagebrush
habitat throughout portions of EO 18 in the mid-1990s. Future
wildfires, invasive, nonnative plant species, and recreation are the
likely long-term threats facing this EO.
EO 24 is a large EO; the following vegetative communities are just
a few of those found within this EO: Artemisia tridentata ssp.
wyomingensis/Bromus tectorum, B. tectorum, and B. tectorum/Agropyron
spicatum. It is located approximately 6.4 km (4 mi) south to southwest
of Kuna and near the Kuna/Boise urban area. The surrounding area has
been highly disturbed by wildfires and roads, with much of the land
surrounding Kuna Butte being converted for agricultural use. This EO is
known to be threatened by wildfire, invasive, nonnative plant species,
and recreation.
The vegetative community of EO 25 is characterized as degraded
Artemisia tridentata ssp. wyomingensis habitat. This EO is located near
the Kuna/Boise urban area, approximately 6.4 km (4 mi) northeast of
Melba. Much of the area has burned and is now predominantly comprised
of Bromus tectorum, Sisymbrium altissimum, and Salsola kali with some
Poa secunda. EO 25 is threatened by wildfire, invasive, nonnative plant
species, and recreation.

Subunit 2c

The northern boundary of Subunit 2c is approximately 8 km (5 mi)
south of Boise, Idaho. It is composed of four EOs: 22, 32, 48, and 64.
Information from previous visits describes vegetation within EO 22
as an Artemisia tridentata spp. wyomingensis community with an
understory dominated by Bromus tectorum. It is located about 2.4 km
(1.5 mi) north of Pleasant Valley. Portions of this EO have burned,
with scattered slickspots degraded to varying degrees. Threats to EO 22
include wildfires and their effects on the remaining patches of
sagebrush. Other threats include development of surrounding private
land for suburban and commercial purposes.
The vegetative community of EO 32 is composed of an Artemisia
tridentata ssp. tridentata/Bromus tectorum and A. tridentata ssp.
wyomingensis/Poa secunda community with an understory dominated by
invasive, nonnative annual species. Records demonstrate a fair to good
number of Lepidium papilliferum plants over a large area. It is located
approximately 5.6 km (3.5 mi) southwest of the Boise Airport. This EO
is known to be threatened by wildfire, invasive, nonnative plant
species, recreation (ORV use), and development. Development is also a
potential threat given the proximity of this EO to private lands.
EO 48 is composed of an Artemisia tridentata ssp. wyomingensis/
Bromus tectorum/Elymus elymoides plant community. There is a high cover
of litter and biological soil crust in slickspots within this EO. The
primary threat to EO 48 is from wildfires. Other threats include
invasion and expansion of nonnative invasive plant species, livestock
use, and recreational use by hunters and ORVs that utilize the adjacent
powerline roadway.
Artemisia tridentata ssp. wyomingensis community with Bromus
tectorum dominates the understory of EO 64. The EO is located from 50
to 500 m (164 to 1,640 ft) south of the Boise airport and associated
development. The slickspots in this EO are in fair condition and have
high cover of biological soil crust. Population vigor ranges from
moderate to excellent. This EO is threatened by wildfire, invasive,
nonnative plant species, and potential development associated with
airport activities.

Subunit 2d

The northern boundary of subunit 2d is approximately 24.8 km (15.4
mi) southeast of Boise, Idaho. Subunit 2d is composed of four EOs: 27,
72, 77, and 104.
The dominant vegetation of EO 27 consists of Artemisia tridentata
ssp. wyomingensis/Poa secunda/Ceratocephala testiculata and A.
tridentata ssp. wyomingensis/Bromus tectorum/Lepidium perfoliatum,
predominantly the former. It is located approximately 35 km (21 mi)
southeast of Boise. Some parts of this EO have burned in the past,
although the entire EO is relatively intact and constitutes one of the
largest blocks of unburned sagebrush-steppe habitats left on the
western Snake River Plain. A portion of this EO includes the Orchard
Training Area (OTA), managed by the Idaho Army National Guard, and we
are proposing to exempt this area from the designation of critical
habitat under section 4(a)(3) of the Act (see Exemptions, below). This
EO is known to be threatened by wildfire, invasive, nonnative plant
species, and livestock disturbances.
Vegetative communities of EO 72 include the following: Artemisia
tridentata ssp. tridentata/Bromus tectorum, Chrysothamnus
viscidiflorus/A. tridentata ssp. wyomingensis/Poa secunda, A.
tridentata ssp. wyomingensis/P. secunda/B. tectorum/A. tridentata ssp.
tridentata, and Agropyron cristatum/P. secunda. This EO is located
roughly 23 km (14 mi) south of Boise. Most of the EO has burned at
least once in the past couple of decades resulting in a mix of small-
to-fairly-large shrub patches intermixed with invasive, nonnative,
annual-grassland vegetation. This EO is known to be threatened by
wildfire, invasive, nonnative plant species, and livestock trampling.
The plant community of EO 77 is composed of an Artemisia tridentata
ssp. wyomingensis/Bromus tectorum/Poa seconda. While the EO is
unburned, the surrounding area is partially burned. Bromus tectorum is
growing abundantly throughout the general EO. Wildfires are the primary
threat to this EO because of the existing Bromus tectorum understory.
Livestock trampling of slickspots is also a continued threat.
The primary community type of EO 104 is a Bromus tectorum/Poa
secunda and Chrysothamnus spp./P. secunda/B. tectorum. This EO is
located approximately 23 km (14 mi) south of Boise. Most of the EO has
burned at least once in the past 20 years resulting in a mix of small
to fairly large shrub patches and areas of annual grassland. Invasive,
nonnative plants, wildfire, and livestock are threats to this EO.

Unit 3: Elmore County

The Elmore County unit consists of 3,998 ha (9,879 ac) divided into
three subunits: 3a, 3b, and 3c. Lepidium papilliferum was known to
occupy this unit at the time of listing. 3,483 ha (8,606 ac) of this
unit are Federally managed, of which 3,418 ha (8,446 ac) are managed by
BLM and 65 ha (160 ac) by the Bureau of Reclamation (BOR), 97 ha (239
ac) are managed by the State of Idaho, and 418 ha (1,034 ac) are
privately owned. This unit is composed of 12 L. papilliferum EOs. This
unit contains PCEs and is important to the conservation of L.
papilliferum because it contains EOs with good habitat, represents a
significant portion of the species' range, and contains several EOs
with high numbers of L. papilliferum individuals.

Subunit 3a

The northern boundary of subunit 3a is approximately 6.8 km (4.2
mi) south of Mayfield, Idaho, while the southern boundary is
approximately 19.6 km (12.2 mi) northwest of Mountain Home, Idaho.
Subunit 3a is composed of three EOs: 20, 30, and 31.
EO 20 is composed of Artemisia tridentata/Poa secunda/Bromus

[[Page 27197]]

tectorum and introduced invasive, nonnative, annual-grassland
communities. This EO is located adjacent to Interstate 84 and Old
Highway 30. Residential development occurs within 250 m (820 ft) of the
EO. Portions of this EO have burned in the past, and Agropyron
cristatum drill-seeding is evident along the northeast edge of the EO.
The primary threats to this EO are wildfires, invasive, nonnative
weeds, and development on private lands.
The plant community of EO 30 contains a large stand of intact,
mature sagebrush-steppe habitat with various size classes of Artemisia
tridentata ssp. wyomingensis represented, and a grass-dominated
understory. This EO is located in close proximity to Old Highway 30 and
private lands. Although the EO area is unburned, the adjacent areas and
surrounding landscape have been burned and are fragmented. This is a
large EO with over 7,000 Lepidium papilliferum plants observed in 2000.
It is known to be threatened by wildfire, invasive, nonnative plants,
urban development, and recreation.
The plant community of EO 31 is composed of Artemisia tridentata
spp. wyomingensis/Poa secunda, A. tridentata spp. wyomingensis/B.
tectorum, and introduced grasses. It consists of a mid-size population
in good-to-fair habitat condition. Part of the EO has burned, and the
surrounding landscape is predominantly burned. This EO is threatened by
wildfires, livestock trampling, private land development, and ORV use.

Subunit 3b

The boundaries of subunit 3b contain the city of Mountain Home,
Idaho, while the northern boundary is approximately 63.9 km (39.7 mi)
southeast of Boise, Idaho. Subunit 3b is composed of seven EOs: 2, 21,
29, 50, 51, 61, and 62.
EO 2 is composed of a large, unburned Artemisia tridentata ssp.
wyomingensis/Poa secunda plant community with low-to-moderate cover of
Bromus tectorum, Salsola kali, and Lepidium perfoliatum. It is located
approximately 11 km (7 mi) west of Mountain Home. Wildfire and
livestock disturbances are the major threats to this relatively intact
EO.
EO 21 consists of a largely-intact stand of sagebrush-steppe
habitat that consists of a community of native species including
Artemisia tridentata ssp. wyomingensis and Poa secunda, and the
introduced, nonnative plant Ceratocephala testiculata. It is located
approximately 6 km (4 mi) west of Mountain Home and 1.6 km (1.0 mi)
south of Interstate 84. There is low understory cover, but high
biological crust cover. This occurrence has not been burned, although
the surrounding landscape is predominantly burned. This EO is
threatened by wildfire, invasive, nonnative, annual plant species, and
recreation.
Although the overstory in the area of the third EO in this subunit,
EO 29, is composed of Artemisia tridentata ssp. wyomingensis, the
understory is now dominated by Bromus tectorum. This EO is located
about 3 km (2 mi) southeast of Mountain Home, between Interstate 84
(about 65 m (210 ft) away) and burned, nonnative, annual-grassland
habitat. There is a fairly high biological soil crust cover of
approximately 30 percent in the surrounding landscape, and slickspots
also tend to have a relatively high crust cover. This EO is threatened
by wildfire and invasive, nonnative plant species.
EO 50 has a largely-native-species overstory, with fairly
contiguous Artemisia tridentata ssp. wyomingensis cover; however, the
understory is dominated by Bromus tectorum. It is located approximately
5.6 km (3.5 mi) southeast of Mountain Home. The EO itself is unburned,
although surrounding BLM and private lands have burned in the past.
Slickspots are clumped in several areas within this occurrence. The
surrounding landscape is fragmented due to a combination of burned
areas, residential development, and agricultural lands. This EO is
threatened by invasive, nonnative plant species and wildfire. Urban
encroachment is occurring on adjacent, privately-owned lands, which
could lead to further fragmentation of the surrounding landscape.
The plant community of EO 51 consists of a mix of native and
nonnative plant species, primarily Artemisia tridentata ssp.
wyomingensis in the overstory and Ceratocephala testiculata and
Descurainia pinnata (western tansymustard) in the understory. It is
located roughly 5 km (3 mi) east of Mountain Home. There is a low
diversity and abundance of native forbs but only trace amounts of
Bromus tectorum. The EO and adjacent landscape have not burned.
Slickspots are widespread, and good biological soil crust cover is
represented in some places. Threats to this EO include wildfire and
invasive, nonnative, annual plant species.
The landscape in and surrounding EO 61 is predominantly burned,
resulting in a highly-fragmented mosaic of remnant Artemisia tridentata
ssp. wyomingensis patches, with an understory dominated by invasive,
nonnative plant species and herbaceous openings that support a mix of
Agropyron cristatum, scattered native bunchgrasses, and Bromus
tectorum. It is located approximately 3 km (2 mi) southeast of Reverse,
Idaho. Weedy forbs are widespread and locally abundant. Much of
surrounding landscape has been converted to agricultural lands.
Wildfires and nonnative, invasive plant species continue to threaten
this EO. Disturbance from livestock is also a threat.
The vegetation in the last EO in this subunit, EO 62, is made up of
an Artemisia tridentata ssp. wyomingensis/Ceratocephala testiculata/Poa
secunda community. It is located approximately 6 km (4 mi) east of
Mountain Home. The EO is located on an unburned area. Where Lepidium
papilliferum is found, slickspots are locally abundant. Bromus tectorum
is locally common, but sparse in most places. Threats to this EO
include invasive, nonnative plant species, wildfire, and livestock use.

Subunit 3c

The southern boundary of subunit 3c is approximately 0.6 km (1.0
mi) northeast of Hammett, Idaho, while the western boundary is 24 km
(15 mi) southeast of Mountain Home, Idaho. This subunit is composed of
two EOs: 8 and 26.
One of the most extensive populations of Lepidium papilliferum
known is found in EO 8. The habitat quality ranges from poor to good.
Areas mainly east of Bennett Road are represented by intact sagebrush-
steppe habitat, primarily Artemisia tridentata ssp. wyomingensis/Poa
secunda communities. West of Bennett Road is former habitat that
burned; has been reseeded; and is now dominated by nonnative grasses,
such as Agropyron cristatum and some Bromus tectorum, as well as weedy
annual forbs. Widely scattered A. tridentata ssp. wyomingensis occurs
throughout the burned area. Many L. papilliferum individuals have been
observed in both burned and unburned areas some years. This EO is
threatened by wildfire, invasive, nonnative plant species, and
recreational use.
The other EO in this subunit, EO 26, is located in an area of
extensive sagebrush-steppe habitat, primarily Artemisia tridentata ssp.
wyomingensis/Poa secunda communities. It is approximately 8 km (5 mi)
northwest of Glenns Ferry. This EO is made up of a relatively-large
population of Lepidium papilliferum; since 2002, estimates have placed
the population size at approximately 5,000 individuals. The habitat
quality ranges from relatively-

[[Page 27198]]

good ecological condition with little disturbance, to disturbed areas
with invasive, nonnative plant species cover. Biological soil crust
cover is high in places. Residential and commercial development is
located within 250 to 500 m (820 to 1,640 ft) of the occurrence.
Wildfire, invasive, nonnative plants, livestock trampling, and
development are threats to this EO.

Unit 4: Owyhee County

The Owyhee County unit consists of 12,105 ha (29,910 ac). The
northern boundary of unit 4 is approximately 86.9 km (54.0 mi) south of
Mountain Home, Idaho, while the eastern boundary is 51.8 km (32.2 mi)
west of Rogerson, Idaho. Lepidium papilliferum was known to occupy this
unit at the time of listing. 11,505 ha (28,428 ac) of this unit are
Federally managed by the BLM, while 600 ha (1,482 ac) are managed by
the State of Idaho. This unit contains PCEs and is important to the
conservation of L. papilliferum because it contains the largest amount
of contiguous habitat with little fragmentation or development. This
unit is composed of eleven EOs: 74, 80, 84, 85, 92, 95, 96, 97, 98, 99,
and 16.
The plant community of EO 74 is primarily made up of a degraded
Artemisia tridentata ssp. wyomingensis/Pseudoroegneria spicata
(bluebunch wheatgrass) community. Poa secunda is the dominant
understory species. Overall habitat quality ranges from good to fair.
Invasive, nonnative, annual plant species, wildfire, and livestock pose
an ongoing threat to this EO.
Plants within EO 80 consist of Artemisia tridentata ssp.
wyomingensis/Pseudoroegneria spicata and A. tridentata ssp.
wyomingensis/Achnatherum thurberianum (Thurber's needlegrass) community
types. The surrounding landscape has a mosaic burn. Overall habitat is
in good-to-fair condition. Invasive, nonnative plants and wildfire are
the primary threats, particularly because the landscape is a mix of
burned and unburned areas. Livestock grazing is also a potential
threat.
The plant community of EO 84 habitat is primarily an Artemisia
tridentata ssp. wyomingensis/Poa secunda community. Both the EO and
surrounding landscape are unburned. The population is estimated at
greater than 400 Lepidium papilliferum individuals. While the
surrounding landscape will help protect it, wildfire still poses the
greatest threat to this unburned EO. Livestock use and invasive,
nonnative plant species are additional threats to this EO. A two-track
road also runs through the EO, which increases the likelihood of
disturbance from recreation and ORV use.
An Artemisia tridentata ssp. wyomingensis/Pseudoroegneria spicata
community with low A. tridentata ssp. wyomingensis cover makes up the
plant community of EO 85. Although this EO was initially ranked E (due
to a lack of information) a somewhat thorough survey was conducted in
2006. During the survey, six occupied slickspots were found and the
rank was changed to a C. Potential threats to this EO include wildfire,
invasive, nonnative plant species, and livestock trampling.
The fifth EO in this unit, EO 92 is made up of an Artemisia
tridentata ssp. wyomingensis/Poa secunda community that has been seeded
with Agropyron cristatum. It is located approximately 8 km (5 mi)
southwest of Clover Butte. Although this EO is unburned, the
surrounding landscape has been predominately to completely burned. This
EO is threatened by wildfire, invasive, nonnative plant species, and
livestock use.
Plants within EO 95 habitat consist of Artemisia tridentata ssp.
wyomingensis/Poa secunda and Agropyron cristatum/P. secunda
communities. Although the occurrence is unburned, some of the
surrounding areas have burned, and portions of this area, as well as
the surrounding landscape, have been seeded with A. cristatum and other
species. Threats include wildfire, invasive, nonnative plant species,
and livestock use.
EO 96 includes Artemisia tridentata ssp. wyomingensis/Poa secunda
and Agropyron cristatum/P. secunda plant communities. The occurrence
and surrounding landscape is unburned to predominately burned, and
includes areas that were seeded after fire. Overall site quality has
been assessed as fair to good. Threats include invasive, nonnative
plant species, wildfire, and livestock trampling.
EO 97 is made up of an Artemisia tridentata ssp. wyomingensis/Poa
secunda community. This occurrence is located in the vicinity of
Juniper Butte. Overall condition of the occurrence has been assessed as
excellent with a fair population size. The EO has not burned, and the
surrounding landscape is predominately unburned. Threats to this EO
include wildfire, invasive, nonnative plant species, and livestock use.
EO 98 is an Artemisia tridentata ssp. wyomingensis/Poa secunda
community. It is located in the vicinity of Burnt Butte. Although the
population size is small, the habitat quality of the occurrence and
surrounding area has been assessed as good. The occurrence is unburned,
and the adjacent areas and surrounding landscape are predominantly
unburned as well. Threats to this EO include invasive, nonnative plant
species, livestock use, and potentially wildfire.
EO 99 is described as an Ericameria nauseosa/Artemisia tridentata
ssp. wyomingensis/Poa secunda community. This EO is located southeast
of Burnt Butte. Habitat quality has been assessed as good. Both the EO
and surrounding landscape are predominately unburned. This EO is
threatened by wildfire, invasive, nonnative plant species, and
livestock trampling.
EO 16 includes 8 sub-EOs. Because of its large size, site quality
varies significantly from one area to another, ranging from healthy and
unburned sagebrush-steppe, to degraded annual grasslands or Agropyron
cristatum seedings. There are estimated to be thousands of Lepidium
papilliferum plants across this large area. The surrounding landscape
includes unburned to completely burned areas. General threats to the
population include wildfire, invasive, nonnative plant species, and
livestock use.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuits 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, 442F (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, the key factor in determining whether
an action will destroy or adversely modify critical habitat is whether,
with implementation of the proposed Federal action, the affected
critical habitat would remain functional (or retain those PCEs that
relate to the ability of the area to support the species) to serve its
intended conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical

[[Page 27199]]

habitat. If a Federal action may affect a listed species or its
critical habitat, the responsible Federal agency (action agency) must
enter into consultation with us. As a result of this consultation, we
document compliance with the requirement 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 or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable. We define
``Reasonable and prudent alternatives'' at 50 CFR 402.02 as alternative
actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or 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 agencies discretionary
involvement or control is authorized by law). Consequently Federal
agencies 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.
Federal activities that may affect Lepidium papilliferum or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, Tribal, local, or private lands requiring a
Federal permit (such as a permit from the 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 us under section 10 of the Act) or involving some other
Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local, or private lands that are
not Federally funded, authorized, or permitted, do not require section
7 consultations.

Application of the Jeopardy and Adverse Modification Standards

Jeopardy Standard

Currently, the Service applies an analytical framework for Lepidium
papilliferum jeopardy analyses that relies heavily on the importance of
habitat parameters at known population sites essential to the species'
survival and recovery. The Service focuses its section 7(a)(2) analysis
not only on these populations but also on the habitat conditions
necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of Lepidium papilliferum in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, the jeopardy analysis focuses on the
rangewide status of L. papilliferum, the factors responsible for that
condition, and what is necessary for the species to survive and
recover. An emphasis is also placed on characterizing the conditions of
L. papilliferum and its habitat in the area affected by the proposed
Federal action and the role of affected populations in the survival and
recovery of L. papilliferum. That context is then used to determine the
significance of the adverse and beneficial effects of the proposed
Federal action and any cumulative effects for purposes of making the
jeopardy determination.

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. Generally, the conservation role of
Lepidium papilliferum critical habitat units is to support the various
life-history needs and provide for the conservation of the species.
Activities that may destroy or adversely modify critical habitat are
those that alter the PCEs to an extent that appreciably reduces the
conservation value of the critical habitat as a whole for L.
papilliferum.
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, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for Lepidium papilliferum include, but are not limited to:
(1) Actions that would result in the loss of, or ground disturbance
to, slickspot microsites. Such activities could include, but are not
limited to: Residential or recreational development and associated
infrastructure, ORV activity, dispersed recreation, new road
construction or widening, existing road maintenance, new or expansion
of existing energy projects, existing energy corridor maintenance,
wildfire suppression and post-wildfire rehabilitation activities,
military training activities, and incompatible livestock use practices
(such as grazing during periods of saturated soil conditions, when
slickspots are wet and trampling is most likely to disrupt the
underlying clay layer). These activities could cause direct loss of
Lepidium papilliferum-occupied areas, and affect slickspot microsites
by damaging or eliminating habitat, altering soil composition due to
increased erosion, and increasing densities of nonnative plant species.
Ground disturbance may also result in deep burial of L. papilliferum
seeds such that germinants can not successfully reach the soil surface
to flower and set seed.
In addition, changes in soil composition may lead to changes in the
vegetation composition, such as an increase in invasive, nonnative
plant cover within and adjacent to slickspot microsites, resulting in
decreased density or vigor of individual Lepidium papilliferum plants.
These activities may also lead to changes in water flows and inundation
periods that would degrade, reduce, or eliminate the habitat necessary
for the growth and reproduction of L. papilliferum.
(2) Actions that would result in the significant alteration of
intact, native, sagebrush-steppe habitat within the range of Lepidium
papilliferum. Such activities could include: Residential or
recreational development and

[[Page 27200]]

associated infrastructure, ORV activity, dispersed recreation, new road
construction or widening, existing road maintenance, new energy
projects or expansion of existing energy projects, existing energy
corridor maintenance, fuels management projects such as prescribed
burning, and post-wildfire rehabilitation activities using plant
species that may compete with L. papilliferum or not adequately address
habitat requirements for insect pollinators. These activities could
result in the replacement or fragmentation of sagebrush-steppe habitat
through the degradation or loss of native shrubs, grasses, and forbs in
a manner that promotes increased wildfire frequency and intensity, and
an increase of cover of invasive, nonnative plant species that would
compete for soil matrix components and moisture necessary to support
the growth and reproduction of L. papilliferum.
(3) Actions that would significantly reduce pollination or seed set
(reproduction). Such activities could include, but are not limited to:
Residential or recreational development and associated infrastructure,
use of pesticides, inappropriately-managed livestock use, mowing,
fuels-management projects such as prescribed burning, and post-wildfire
rehabilitation activities using plant species that may compete with
Lepidium papilliferum. These activities could prevent reproduction by
removal or destruction of reproductive plant parts and could impact the
habitat needs of generalist insect pollinators through habitat
degradation and fragmentation, reducing the availability of insect
pollinators for L. papilliferum reproduction.
We consider all of the units proposed as critical habitat to
contain the physical and biological features essential to the
conservation of Lepidium papilliferum. All units are within the
historical geographic range of the species and are currently occupied
by L. papilliferum. To ensure that their actions do not jeopardize the
continued existence of L. papilliferum, Federal agencies already
consult with us on activities in areas currently occupied by the plant
species, or in unoccupied areas if the species may be affected by the
action.

Exemptions

Application of Section 4(a)(3)(B)(i) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136, 117 Stat. 1392) amended the Act to limit areas eligible for
designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of
the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary
shall not designate as critical habitat any lands or other geographical
areas owned or controlled by the Department of Defense (DOD), 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 Lepidium papilliferum to
determine if they are exempt under section 4(a)(3)(B)(i) of the Act.

Approved INRMPs

Military activities within the range of Lepidium papilliferum
include ordnance-impact areas, training activities, and military
development. Military-training activities occur at, or near, four EOs:
Three at the OTA on the Snake River Plain, and a portion of one EO at
the Juniper Butte Range on the Owyhee Plateau. INRMPs have been
developed and implemented for both the Juniper Butte Range and the OTA.
The INRMPs provide management direction and conservation measures to
address or eliminate the effects from military-training exercises on L.
papilliferum and its habitat. Both the Idaho Army National Guard
(Quinney 2008; ICDC 2008, p. 21) and the U.S. Air Force (CH2MHill
2008a, pp. 1, 17) conduct annual monitoring to ensure impacts to the
species due to training activities are either avoided or minimized.

Idaho Army National Guard--Gowen Field/Orchard Training Area

The Idaho Army National Guard's Gowen Field/Orchard Training Area
(OTA) on the Snake River Plain has an INRMP in place that provides a
conservation benefit for Lepidium papilliferum. This INRMP has been in
place for this military training facility since 1997. The OTA contains
7,213 ac (2,919 ha) of occupied L. papilliferum habitat, 7,163 ac
(2,899 ha) of which represents nearly 60 percent of the highest quality
occupied L. papilliferum habitat in the Snake River Plain region. The
continuing high quality of this habitat suggests the conservation
measures are effective in maintaining generally-intact, native-plant
vegetation and limiting anthropogenic disturbances on the OTA (Sullivan
and Nations 2009, p. 91).
The INRMP for the OTA provides a framework for managing natural
resources. Conservation measures included in the INRMP avoid or
minimize impacts on Lepidium papilliferum, slickspot microsites, and
sagebrush-steppe habitat while allowing for the continued
implementation of the Idaho Army National Guard's mission. These
measures include management actions such as restricting off-road
motorized vehicle use, intensive wildfire suppression efforts, and the
restriction of ground-operated military training to areas where the
plants are not found. For example, the INRMP includes objectives for
maintaining and improving L. papilliferum habitat and restoring areas
damaged by wildfire. The plan specifies that the OTA will use native
species and broadcast seeding, collecting, and planting small amounts
of native seed not commercially available, and will monitor the success
of seeding efforts (IDARNG 2004, pp. 72-73). Since 1991, the OTA, using
historical records, has restored several areas using native seed and
vegetation that was present prior to past wildfires. The Idaho Army
National Guard continues to use restoration methods that avoid or
minimize impacts to L.

[[Page 27201]]

papilliferum or its habitat, with an emphasis on maintaining
representation of species that were present in presettlement times
(IDARNG 2004, p. 73). Since 1987, the Idaho Army National Guard has
demonstrated that efforts to suppress wildfire and the use of native
species with minimal ground-disturbing activities are effective in
reducing the wildfire threat, as well as in reducing rates of spread of
nonnative, invasive species associated with wildfire management
activities (IDARNG 2004, p. 73). In 2008, the Idaho Army National Guard
also initiated maintenance on a series of identified fuel breaks on the
OTA. These fuel breaks are designed to act as barriers to prevent fires
that might be ignited by military training activities from spreading
into adjacent L. papilliferum habitat (U.S. BLM 2008a, p. 20).
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 Idaho Army National Guard's OTA INRMP and that
conservation efforts identified in the INRMP are being actively
implemented, are effective, and will provide a benefit to Lepidium
papilliferum occurring in habitats within or adjacent to the OTA.
Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3)(B)(i) of the Act. We are not
including approximately 4,664 ha (11,525 ac) of habitat in this
proposed critical habitat designation because of this exemption. The
acreage exempted appears to be greater than the occupied habitat
because the occupied habitat is based purely on EO acreage, and does
not include the surrounding sagebrush-steppe habitat that would be
included in critical habitat to provide for sufficient pollinator
populations and protection of the L. papilliferum populations from
other impacts, such as fire or recreational use.

Mountain Home Air Force Base--Juniper Butte Range

The U.S. Air Force, Mountain Home Air Force Base, which includes
the Juniper Butte Range in the Owyhee Plateau region, has an INRMP that
has been in place for this military training facility since 2004. The
U.S. Air Force manages 810 ha (2,030 ac) of occupied Lepidium
papilliferum habitat within the Juniper Butte Range. Conservation
measures and implementation actions for L. papilliferum include
reseeding disturbed areas with native vegetation, eradicating noxious
weeds prior to their spreading, cleaning vehicles and equipment to
remove nonnative invasive plants, avoiding pesticide use within 8 m (25
ft) of slickspots, and delaying livestock turnout onto the range if
slickspot microsites are saturated. The INRMP contains specific
measures developed to minimize the impacts from military training at
the local level, or general measures designed to improve the ecological
condition of native, sagebrush-steppe vegetation at a landscape scale,
inclusive of areas supporting L. papilliferum, while allowing for the
continued implementation of the Air Force mission. For example, the
U.S. Air Force has a number of ongoing efforts to address wildfire
prevention and suppression on the entire 4,611 ha (11,393 ac) Juniper
Butte Range. Prevention measures that are implemented on the Juniper
Butte Range include reducing standing fuels and weeds, planting fire-
resistant vegetation in areas with a higher potential for ignition
sources, such as along roads, and using wildfire indices to determine
when to restrict military activities when the wildfire hazard rating is
extreme (U.S. Air Force 2004, pp. 6-55). As a result of implementing
these measures, the threat from wildfire to Lepidium papilliferum
associated with U.S. Air Force training activities is expected to be
effective in reducing fires within the Juniper Butte Range.
For both specific and general conservation measures, improvements
to habitat condition since the implementation of the 2004 INRMP
measures 6 years ago have been difficult to detect with available
monitoring data. Lepidium papilliferum is an annual or biennial plant
that responds to spring precipitation and has seeds that remain viable
for up to 12 years in the seed bank. Thus, detecting the effectiveness
of specific conservation measures using the 7 years of available U.S.
Air Force monitoring data is difficult, as this is too limited a time
series to be able to detect any changes for a species with such great
inter-annual variability and seeds that may still be viable yet lie
dormant in the seed bank. We expect that decades will be necessary to
determine the effectiveness of general conservation measures designed
to improve native, sagebrush-steppe ecological condition, although
ongoing research may provide information and techniques to accelerate
these types of recovery efforts.
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 U.S. Air Force INRMP for the Juniper Butte Range
(Mountain Home Air Force Base) and that conservation efforts identified
in the INRMP are being implemented, are likely effective, and will
provide a conservation benefit to Lepidium papilliferum occurring in
habitats within or adjacent to the Juniper Butte Range. Therefore,
lands within this installation are exempt from critical habitat
designation under section 4(a)(3)(B)(i) of the Act. We are not
including 4,611 ha (11,393 ac) of habitat in this proposed critical
habitat designation because of this exemption.
Table 2 below provides approximate areas of lands that meet the
definition of critical habitat but are exempt from designation under
section 4(a)(3)(B)(i) of the Act.

Table 2--Exemptions by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the
Basis for exclusion/ definition of critical Areas exempted in
Unit Specific area exemption habitat in hectares hectares (acres)
(acres)
----------------------------------------------------------------------------------------------------------------
2............. IDARNG--OTA......... 4(a)(3)(B)(i)....... 4,664 ha (11,525 ac)..... 4,664 ha (11,525 ac)
4............. MHAFB--JBR.......... 4(a)(3)(B)(i)....... 4,611 ha (11,393 ac)..... 4,611 ha (11,393 ac)
----------------------------------------------------------------------------------------------------------------

Exclusions

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary must designate
and revise 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

[[Page 27202]]

designate such area as critical habitat will result in the extinction
of the species. In making that determination, the legislative history
is clear that the Secretary has broad discretion regarding which
factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we consider all relevant impacts,
including economic impacts. In compliance with section 4(b)(2) of the
Act, we are preparing an analysis of the economic impacts of this
proposed designation of critical habitat. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. At that time,
copies of the draft economic analysis will be available for downloading
from the Internet at http://www.regulations.gov, or from the Idaho Fish
and Wildlife Office directly (see FOR FURTHER INFORMATION CONTACT).
During the development of the final designation, we will consider
economic impacts, public comments, and other new information. Certain
areas may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and or implementing regulations at 50 CFR
424.19.
At this time, we are not proposing any specific exclusions of areas
from critical habitat under section 4(b)(2) of the Act for Lepidium
papilliferum. However, we are considering applying section 4(b)(2) to
currently occupied private lands, which represent less than 5 percent
of the proposed designation. During the comment period for the proposed
designation of critical habitat, we will consider any available
information about areas covered by conservation or management plans
that we should consider for exclusion from the designation under
section 4(b)(2) of the Act, including whether the benefits of exclusion
would outweigh the benefits of their inclusion and whether exclusion
would or would not result in the extinction of the species. We consider
whether landowners have developed any conservation plans for the area,
as well as any social or other impacts that might occur because of the
designation. For example, we consider whether there are conservation
partnerships that would be encouraged or discouraged by designation of,
or exclusion from, critical habitat in an area. Many non-Federal
landowners derive satisfaction in contributing to endangered species
recovery. However, private landowners are often wary of the possible
consequences of encouraging endangered species conservation on their
property, and of regulatory action by the Federal Government under the
Act. Social research has demonstrated that for many private landowners,
government regulation under the Act is perceived as a loss of
individual freedoms, regardless of whether that regulation may in fact
result in any actual impact to the landowner (Brook et al. 2003, pp.
1644-1648; Conley et al. 2007, p. 141). The magnitude of this negative
outcome is greatly amplified in situations where active management
measures (such as reintroduction, fire management, and the control of
invasive species) are necessary for species conservation (Bean 2002,
pp. 3-4). Furthermore, in a recent study of private landowners who have
experience with regulation under the Act, only 2 percent of respondents
believed the Federal Government rewards private landowners for good
management of their lands and resources (Conley et al. 2007, pp. 141,
144). Therefore, we will carefully weigh the potential benefits of any
designation on private lands.
We consider the benefits of including private lands as designated
critical habitat in this case to be minimal since monitoring has been
limited, data is generally lacking on the overall status of Lepidium
papilliferum on privately-owned lands, and any activities that would
trigger the benefits of consultation on critical habitat under a
Federal nexus are highly unlikely. Additionally, most of the current
and ongoing interagency conservation efforts are focused on management
of State, county, and Federal lands, where approximately 95 percent of
the occupied habitat occurs. As discussed previously, Federal
activities that may affect L. papilliferum or its designated critical
habitat require section 7 consultation under the Act; this also
includes activities on State, Tribal, local, or private lands requiring
a Federal permit. We believe that in some cases designation can
negatively affect the potential working relationships and conservation
partnerships formed with private landowners to provide conservation
benefits. As described above, private landowners are often wary of the
possible consequences of encouraging endangered species conservation on
their property, and of regulatory action by the Federal Government
under the Act. Therefore, we believe it is possible that the benefit of
excluding areas on private lands may outweigh the benefits of including
those areas in critical habitat. The Secretary can exclude lands when
there is no benefit of inclusion or if that benefit is negligible, and
if the designation may actually harm the species (i.e., there are
benefits to the species from exclusion). We are specifically asking for
public comment on the benefits of exclusion versus inclusion of private
lands in the designation of critical habitat, and will determine
whether any such lands may merit exclusion from the designation under
section 4(b)(2) of the Act. Furthermore, we will evaluate all comments
provided during the public comment period of this proposed rule on
whether the benefits of excluding any particular area from critical
habitat outweigh the benefits of including that area in critical
habitat under section 4(b)(2) of the Act.
We have determined that there are currently no habitat conservation
plans (HCPs) in the proposed critical habitat area, and the proposed
designation does not include any Tribal lands or trust resources. We
anticipate no impact to Tribal lands, partnerships, or HCPs from this
proposed critical habitat designation.

Peer Review

In accordance with our joint policy 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. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We will send peer reviewers copies of
this proposed rule immediately following publication in the Federal
Register. We will invite these peer reviewers to comment, during the
public comment period, on the specific assumptions and conclusions
regarding the proposed designation of critical habitat.
We will consider all comments and information received during the
60-day comment period on this proposed rule as we prepare our final
rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

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 made in writing and be addressed to the State
Supervisor (see FOR FURTHER INFORMATION CONTACT section). We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings in the Federal
Register and local newspapers at least 15 days prior to the first
hearing.

[[Page 27203]]

Required Determinations

Regulatory Planning and Review--Executive Order 12866

The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA); 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended 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.
At this time, we lack the specific information necessary to provide
an adequate factual basis for the required RFA finding. On the basis of
the development of our proposal, we have identified certain sectors and
activities that may potentially be affected by a designation of
critical habitat for L. papilliferum. These sectors include ranching,
recreation, residential and commercial development, as well as the
associated infrastructure such as roads, storm water drainage, bridge
and culvert maintenance, transmission lines and right of ways, natural
gas transmission lines, and water lines. We recognize not all of these
sectors qualify as small business entities. However, recognizing these
sectors and activities may be affected by this designation, we are
collecting information and initiating an analysis to determine (1)
which of these sectors or activities are, or involve, small business
entities; and (2) to what extent the effects are related to L.
papilliferum being listed as threatened under the Act (baseline
effects), or whether the effects are attributable to the designation of
critical habitat (incremental effects). We believe the potential
incremental effects resulting from a designation will be small. We are
requesting any specific economic information related to small business
entities that may be affected by this designation and how the
designation may impact their business. Therefore, we defer the initial
RFA finding until completion of a draft economic analysis prepared
under section 4(b)(2) of the Act and E.O. 12866.
The draft economic analysis will provide the required factual basis
for the RFA finding. Upon completion of the draft economic analysis, we
will announce its availability in the Federal Register and reopen the
public comment period for the proposed designation. We will include
with this announcement, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently-informed determination based on adequate economic
information and provide the necessary opportunity for public comment.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, 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 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 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.
(b) We do not believe this rule will significantly or uniquely
affect small governments. The lands being proposed for critical habitat
for Lepidium papilliferum are primarily Federal BLM lands, with a small
area of Federal BOR lands and some lesser areas owned by the County or
State of Idaho. Therefore, a Small Government Agency Plan is not
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment if
appropriate.

[[Page 27204]]

Takings

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Lepidium papilliferum in a takings implications assessment.
The takings implications assessment concludes this proposed designation
of critical habitat for Lepidium papilliferum would not pose
significant takings implications for lands within or affected by the
designation.

Federalism

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed critical habitat designation with
appropriate State resource agencies in Idaho. If adopted, the
designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what Federally-sponsored activities may occur. However, it may assist
local governments in long-range planning (rather than having them wait
for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) 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

In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined this proposed 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. This proposed rule uses
standard property descriptions and identifies the physical and
biological features within the designated areas to assist the public in
understanding the habitat needs of Lepidium papilliferum.

Paperwork Reduction Act of 1995

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently-valid OMB control number.

National Environmental Policy Act (NEPA)

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 as defined by 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)).

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:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) 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.

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), E.O. 13175, the Department of the Interior's
manual at 512 DM 2, and the Native American Policy of the U.S Fish and
Wildlife Service, 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.
We have determined there are no Tribal lands occupied at the time
of listing that contain the features essential for the conservation,
and no Tribal lands that are essential for the conservation, of
Lepidium papilliferum. Therefore, we have not proposed designation of
critical habitat for L. papilliferum on Tribal lands.

Energy Supply, Distribution, or Use

On May 18, 2001, the President issued Executive Order 13211--
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use--governing regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Based on analysis of areas included in this proposal, we have
determined that this proposed rule to designate critical habitat for
Lepidium papilliferum is not expected to significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action, and a Statement of Energy Effects is not
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.

References Cited

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

[[Page 27205]]

Authors

The primary authors of this package are the staff members of the
Idaho 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:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. In Sec. 17.12(h), revise the entry for ``Lepidium
papilliferum'' under ``FLOWERING PLANTS'' in the List of Endangered and
Threatened Plants to read as follows:

Sec. 17.12 Endangered and threatened plants

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Lepidium papilliferum............ slickspot U.S.A. (ID)........ Brassicaceae....... T 765 17.96(a) NA
peppergrass.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.96, amend paragraph (a) by adding an entry for
``Lepidium papilliferum (slickspot peppergrass)'' in alphabetical order
under Family Brassicaceae to read as follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.
* * * * *

Family Brassicaceae: Lepidium papilliferum (slickspot peppergrass)

(1) Critical habitat units are depicted for Payette, Ada, Elmore,
and Owyhee Counties, Idaho, on the maps below.
(2) The physical and biological features of critical habitat for
the Lepidium papilliferum are:
(i) Ecologically-functional microsites or ``slickspots'' that are
characterized by:
(A) A high sodium and clay content, and a three-layer soil
horizonation sequence, which allows for successful seed germination,
seedling growth, and maintenance of the seed bank. The surface horizon
consists of a thin, silty vesicular, pored (small cavity) layer that
forms a physical crust (the silt layer). The subsoil horizon is a
restrictive clay layer with an abruptic (referring to an abrupt change
in texture) boundary with the surface layer, that is natric or natric-
like in properties (a type of argillic (clay-based) horizon with
distinct structural and chemical features) (the restrictive layer). The
second argillic subsoil layer (that is less distinct than the upper
argillic horizon) retains moisture through part of the year (the moist
clay layer); and
(B) Sparse vegetation with low to moderate introduced, invasive,
nonnative plant species cover.
(ii) Relatively-intact, native Artemisia tridentata ssp.
wyomingensis (Wyoming big sagebrush) vegetation assemblages,
represented by native bunchgrasses, shrubs, and forbs, within 250 m
(820 ft) of Lepidium papilliferum element occurrences to protect
slickspots and Lepidium papilliferum from disturbance from wildfire,
slow the invasion of slickspots by nonnative species and native
harvester ants, and provide the habitats needed by L. papilliferum's
pollinators.
(iii) A diversity of native plants whose blooming times overlap to
provide pollinator species with flowers for foraging throughout the
seasons and to provide nesting and egg-laying sites; appropriate
nesting materials; and sheltered, undisturbed places for hibernation
and overwintering of pollinator species. In order for genetic exchange
of Lepidium papilliferum to occur, pollinators must be able to move
freely between slickspots. Alternative pollen and nectar sources (other
plant species within the surrounding sagebrush vegetation) are needed
to support pollinators during times when Lepidium papilliferum is not
flowering, when distances between slickspots are large, and in years
when L. papilliferum is not a prolific flowerer.
(iv) Sufficient pollinators for successful fruit and seed
production, particularly pollinator species of the sphecid and vespid
wasp families, species of the bombyliid and tachnid fly families,
honeybees, and halictid bee species, most of which are solitary insects
that nest outside of slickspots in the surrounding sagebrush-steppe
vegetation, both in the ground and within the vegetation.
(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
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using a quarter-quarter section shapefile, based on the Public
Land Survey System, in a Geographic Information System.
(5) Index map of critical habitat units for Lepidium papilliferum
(slickspot peppergrass) follows:
BILLING CODE 4310-55-P

[[Page 27206]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.000

(6) Unit 1: Payette County, Idaho.
(i) [Reserved for unit description.]
(ii) Map of Unit 1 follows:

[[Page 27207]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.001

(7) Unit 2: Ada County, Idaho.
(i) Subunit 2a [Reserved for subunit description.]
(ii) Map of Unit 2, Subunit a, follows:

[[Page 27208]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.002

(iii) Subunit 2b. [Reserved for subunit description.]
(iv) Map of Unit 2, Subunit b, follows:

[[Page 27209]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.003

(v) Subunit 2c. [Reserved for subunit description.]
(vi) Map of Unit 2, Subunit c, follows:

[[Page 27210]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.004

(vii) Subunit 2d. [Reserved for subunit description.]
(viii) Map of Unit 2, Subunit d, follows:

[[Page 27211]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.005

(8) Unit 3: Elmore County, Idaho.
(i) Subunit 3a. [Reserved for subunit description.]
(ii) Map of Unit 3, Subunit a, follows:

[[Page 27212]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.006

(iii) Subunit 3b. [Reserved for subunit description.]
(iv) Map of Unit 3, Subunit b, follows:

[[Page 27213]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.007

(v) Subunit 3c. [Reserved for subunit description.]
(vi) Map of Unit 3, Subunit c, follows:

[[Page 27214]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.008

(9) Unit 4: Owyhee County, Idaho.
(i) [Reserved for unit description.]
(ii) Map of Unit 4 follows:

[[Page 27215]]

[GRAPHIC] [TIFF OMITTED] TP10MY11.009

* * * * *

Dated: April 19, 2011.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-10753 Filed 5-9-11; 8:45 am]
BILLING CODE 4310-55-C