[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Rules and Regulations]
[Pages 25689-25707]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10050]
[[Page 25689]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0015; 4500030113]
RIN 1018-AZ47
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Leavenworthia exigua var. laciniata (Kentucky
Glade Cress)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for Leavenworthia exigua var. laciniata (Kentucky
glade cress) under the Endangered Species Act (Act). In total,
approximately 2,053 acres (830 hectares) in Bullitt and Jefferson
Counties, Kentucky, fall within the boundaries of the critical habitat
designation.
DATES: This rule is effective on June 5, 2014.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at http://www.regulations.gov. All of
the comments, materials, and documentation that we considered in this
rulemaking are available by appointment, during normal business hours
at: U.S. Fish and Wildlife Service, Kentucky Ecological Services Field
Office, J.C. Watts Federal Building, 330 W. Broadway, Rm. 265,
Frankfort, KY 40601; telephone 502-695-0468.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R4-ES-2013-0015. Any additional tools or supporting
information that we developed for this critical habitat designation
will also be available at the Fish and Wildlife Service Web site and
Field Office set out above, and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Kentucky Ecological Services Field Office,
(see ADDRESSES above). Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (Act), when we determine that a species is endangered
or threatened we must designate critical habitat to the maximum extent
prudent and determinable. Designations of critical habitat can only be
completed by issuing a rule. Section 4(b)(2) of the Act states that the
Secretary shall designate critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. The critical
habitat areas we are designating in this rule constitute our current
best assessment of the areas that meet the definition of critical
habitat for Leavenworthia exigua var. laciniata.
This rule consists of: A final rule for designation of critical
habitat for L. exigua var. laciniata. We are designating approximately
2,053 acres (830 hectares) of critical habitat for L. exigua var.
laciniata in Bullitt and Jefferson Counties, Kentucky. Elsewhere in
today's Federal Register, we published a final rule listing L. exigua
var. laciniata as a threatened species.
We have prepared an economic analysis of the designation of
critical habitat. We prepared an analysis of the economic impacts of
the critical habitat designation and related factors. We announced the
availability of the draft economic analysis in the Federal Register on
January 7, 2014 (79 FR 796), allowing the public to provide comments on
our analysis. We have incorporated the comments and have completed a
final economic analysis concurrently with this final determination.
Peer review and public comment. We sought comments from seven
independent specialists to review our technical assumptions and
analysis, and whether or not we used the best information, to ensure
that this designation of critical habitat is based on scientifically
sound data and analyses. We obtained opinions from three of those
individuals. These peer reviewers generally concurred with our methods
and conclusions. We also considered all comments and information we
received from the public during the comment period.
Previous Federal Actions
Please refer to the proposed listing rule for Leavenworthia exigua
var. laciniata (78 FR 31498; May 24, 2013) for a detailed description
of previous Federal actions concerning this species. On May 24, 2013,
we proposed critical habitat for L. exigua var. laciniata (78 FR
31479). On January 7, 2014 (79 FR 796), we announced the availability
of the draft economic analysis (DEA) for the proposed critical habitat
designation, and reopened the public comment period to allow comment on
the DEA and further comment on the proposed rule.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for L. exigua var. laciniata during two
comment periods. The first comment period opened with the publication
of the proposed rule (78 FR 31479) on May 24, 2013, and closed on July
23, 2013. We also requested comments on the proposed critical habitat
designation and associated draft economic analysis during a comment
period that opened January 7, 2014, and closed on February 6, 2014 (79
FR 796). We did not receive any requests for a public hearing. We also
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties, and invited them to
comment on the proposed rule and draft economic analysis during these
comment periods.
During the first comment period, we received two comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received no comment letters addressing
the proposed critical habitat designation or the draft economic
analysis. All substantive information provided during the comment
periods has either been incorporated directly into this final
determination or is addressed below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from seven knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from three of
the peer reviewers.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
L. exigua var. laciniata. Although the peer reviewers were supportive
of the proposed critical habitat designation, they did not provide any
additional
[[Page 25690]]
information, clarifications, or suggestions to improve this final
critical habitat rule.
Comments From States
The Commonwealth of Kentucky did not submit comments on the
proposed rule. We note, however, that one of the peer reviewers was
from the Kentucky State Nature Preserves Commission (KSNPC).
Public Comments
During the public comment periods, we received two comment letters
directly addressing the proposed critical habitat. These letters also
addressed the proposed listing; comments pertaining to the listing are
addressed in that final rule, published elsewhere in today's Federal
Register. Both comment letters we received regarding the proposed
critical habitat were positive and in support of the proposed
designation.
(1) Comment: One commenter noted that proposed subunits 4D and 4E
are found along Bardstown Road in an area of high traffic and
increasing commercial development.
Our Response: We acknowledge that additional development in the
area of subunits 4D and 4E has the potential to impact L. exigua var.
laciniata and its habitat. Section 7 of the Act (16 U.S.C. 1531 et
seq.) requires Federal agencies, in consultation with the Service, to
ensure that any action authorized, funded, or carried out by a Federal
agency (thereby constituting a Federal nexus) is not likely to result
in the destruction or adverse modification of critical habitat. If
there is no Federal nexus for a given action, then critical habitat
designation, including on private land, does not restrict any actions
that destroy or adversely modify critical habitat. The Service will
provide technical assistance to avoid and minimize impacts to L. exigua
var. laciniata's critical habitat if such assistance is requested.
(2) Comment: The Service should take into consideration the
economic benefits of conserving the State's natural heritage.
Our Response: As required by Executive Order (E.O.) 12866 and
section 4(b)(2) of the Act, the Service has completed an economic
analysis on the effects of the critical habitat designation. The
findings of this analysis were published in the Federal Register (79 FR
796; January 7, 2014). While the Service recognizes that there will be
benefits associated with designating critical habitat for this species,
we are unable to assess the magnitude of these benefits due to existing
data limitations.
Summary of Changes From Proposed Rule
Information we received during the comment periods did not result
in any substantial changes to this final rule from what we proposed.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General
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Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for L. exigua var. laciniata from studies of this species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on May 24, 2013 (78 FR 31479), and in the information
presented below. Additional information can be found in the final
listing rule published elsewhere in today's Federal Register. We have
determined that the following physical and biological features are
essential for L. exigua var. laciniata.
Space for Individual and Population Growth and for Normal Behavior
Leavenworthia exigua var. laciniata is typically found in cedar or
limestone glades (Baskin and Baskin 1981, p. 243), which are described
by Baskin and Baskin (1999, p. 206) as ``open areas of rock pavement,
gravel, flagstone, and/or shallow soil in which occur natural, long-
persisting (edaphic climax) plant communities dominated by angiosperms
and/or cryptogams.'' L. exigua var. laciniata is also known from
gladelike areas such as overgrazed pastures, eroded shallow soil areas
with exposed bedrock, and areas where the soil has been scraped off the
underlying bedrock (Evans and Hannan 1990, p. 8). These disturbed areas
are gladelike in the shallowness or near-absence of their soils,
saturation, and/or inundation during the wet periods of late fall,
winter, and early spring and then frequently dry below the permanent
wilting point during the summer (Baskin and Baskin 2003, p. 101). These
conditions likely prevent species that would shade or compete with L.
exigua var. laciniata from establishing in these areas.
While the individual rock exposure or outcrop areas will vary in
size and may be small and scattered throughout the glade(s) or
gladelike area(s), they will ideally occur in groups to comprise a
glade (or gladelike) complex. Habitat destruction, modification, and
fragmentation within the narrow range of L. exigua var. laciniata make
it difficult to determine the optimal size or density of glade habitats
needed to support the long-term survival of the species. Pine Creek
Barrens Preserve (owned by The Nature Conservancy) contains the only
remaining A-ranked population of L. exigua var. laciniata, described as
having thousands of plants scattered over 25 to 30 acres. Similarly,
the B-ranked Rocky Run was described in 1990 as containing thousands of
plants scattered over 2 miles. Many of the poor (D) ranked populations
occur within areas as small as a few square meters (KSNPC 2012, pp. 1-
108). While the long-term viability of these populations is considered
poor, monitoring efforts have shown that for the short term, some L.
exigua var. laciniata populations are able to persist (i.e., grow and
reproduce) on these small and fragmented sites.
Based on the information above, we identify cedar glades and
gladelike areas underlain by Silurian dolomite or dolomitic limestone
as an essential physical or biological feature for the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The specific water needs of L. exigua var. laciniata are unknown;
however, the sites it occupies are extremely wet from late winter to
early spring and quickly become dry in late May and June. This
hydrologic regime is critical for the plant's survival in that it
provides sufficient moisture for the taxon's life cycle (germination in
fall, plant growth from fall to early spring, and seed production in
the spring). Additionally, the droughty conditions during the typical
growing season prevent the establishment of plants that could shade or
dominate L. exigua var. laciniata.
L. exigua var. laciniata is shade intolerant. Open glade habitats
appear to provide the most favorable conditions for this species (Evans
and Hannan
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1990, p. 14). Baskin and Baskin (1988, p. 834) noted that most endemics
occurring on rock outcrops (such as L. exigua var. laciniata) are
restricted to the open and well-lighted areas of the outcrops as
opposed to similar but more shaded areas near the surrounding forest.
L. exigua var. laciniata seems more dependent upon the lack of soil
and the proximity of rock near or at the surface rather than a specific
type of soil (Evans and Hannan 1990, p. 8). It occurs primarily in
open, gravelly soils around rock outcrops in an area of the Caneyville-
Crider soil association (Whitaker and Waters 1986, p. 16). Baskin and
Baskin (1981, p. 245) identified shallow soils (1 to 5 centimeters
(cm)) (0.39 to 1.97 inches (in)) over limestone or dolomite to be
characteristic habitat of L. exigua var. laciniata.
Based on this information, we identify unshaded and shallow soils
that are extremely wet from late winter to early spring and quickly
become dry in late May and June to be an essential physical or
biological feature for this species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring, Germination, or Seed Dispersal
Like all annuals, L. exigua var. laciniata reproduces sexually
through seed production. Successful reproduction of L. exigua var.
laciniata requires sufficient moisture for germination, growth,
flowering, and seed production. Pollination of L. exigua var. laciniata
can be by insects or self-pollination (Rollins 1963, p. 47). Seeds may
fall to the ground, be transported by animals, or be carried by
precipitation sheet flow to new sites.
The seeds of L. exigua var. laciniata germinate in the fall, with
plants surviving through the winter as rosettes that flower in early
spring. Seeds are typically dispersed from mid-May to late May (Evans
and Hannan 1990, p. 11). After the seeds ripen, the silique (pod) soon
splits open. Seeds may immediately fall out or remain on the plant for
several days. The extent to which this plant can expand to new sites is
unknown.
Lloyd (1965, p. 92) noted that seeds from Leavenworthia lack
adaptations that would allow for dispersal by wind or animals. Sheet
flow likely provides local dispersion for seeds lying on the ground
(Lloyd 1965, pp. 92-93; Evans and Hannan 1990, p. 11). In reviewing
aerial photography and topographic mapping of known L. exigua var.
laciniata occurrences, it appears that populations often follow
suitable habitat as it extends along topographic contours or within
drainage patterns. Areas of bare ground are essential in the dispersal
and germination of seeds. The cyclical moisture availability on the
thin soils of glades and other habitats acts to limit the number of
plant species that can tolerate these extremes (Evans and Hannan 1990,
pp. 9-10).
L. exigua var. laciniata seeds have been shown to retain viability
for at least 3 years under greenhouse conditions (Baskin and Baskin
1981, p. 247). A strong seed bank is expected to be important for the
continued existence of L. exigua var. laciniata, especially following a
year when conditions are unfavorable for reproduction (e.g., damage
(natural or manmade) to plants prior to seed set). Accordingly, L.
exigua var. laciniata habitat must be protected from activities that
would damage or destroy the seed bank.
Based on the information above, we identify glade and gladelike
habitats with intact hydrology and an undisturbed seed bank to be a
physical or biological feature essential to the conservation of L.
exigua var. laciniata. These areas are critical for seed dispersal and
germination.
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distribution of the Species
Disturbance in the form of development (and associated
infrastructure) is a major factor in the loss and degradation of
habitat for L. exigua var. laciniata. Development can directly
eliminate or fragment essential habitat and indirectly cause changes to
the habitat (e.g., through erosion, shading, introduction of invasive
plants--all of which may cause declines in distribution or in numbers
of plants per occurrence). Protected habitats are, therefore, of
crucial importance for the growth and dispersal of L. exigua var.
laciniata. These areas are critical to protecting L. exigua var.
laciniata populations and habitat from impacts such as sedimentation,
erosion, and competition from nonnative or invasive plants.
The natural areas supporting L. exigua var. laciniata are cedar or
limestone glades, which Baskin and Baskin (2003, p. 101) describe as
flat to gently sloping, open areas of shallow soils and/or calcareous
rock (pavement, gravel, flagstone) that support an edaphic climax plant
community dominated by non-woody species. These areas are often
associated with eastern red-cedar thickets (Jones 2005, p. 33) and/or
scrubby red-cedar-hardwood forests (Baskin and Baskin 1999, p. 102).
These associated areas and other, adjacent, undeveloped ground provide
important buffer protection from disturbance.
Leavenworthia species have a patchy distribution within the exposed
rock outcrops and shallow soil areas of cedar glade habitats and
gladelike areas (Lloyd 1965, p. 87). L. exigua var. laciniata is an
endemic species restricted to a very specific habitat type with a
patchy distribution across the landscape separated by large areas of
habitat unsuitable for L. exigua var. laciniata. Although these cedar
glades also contain areas of deeper soil where other, associated
vegetation grows, these areas of deeper soil are essential components
of the glade and critical for maintaining habitat suitable for
occupation by L. exigua var. laciniata.
Based on a review of aerial imagery, habitat areas that appear to
provide sufficient protection generally have the hillside (creek to
topographic break) and adjacent contour surrounding the glade areas in
vegetated (primarily wooded) habitat. Buffer areas of this magnitude
protect L. exigua var. laciniata populations and habitat from adjacent
development and habitat change. Although these areas are not directly
occupied by L. exigua var. laciniata, they are essential to the growth
and dispersal of the species within areas of suitable habitat.
Therefore, based on the information above, we identify vegetated
areas surrounding glades and gladelike habitats that protect the
hydrology, soils, and seed bank to be a physical or biological feature
for this species.
Primary Constituent Elements for L. exigua var. laciniata
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of L. exigua var. laciniata in areas occupied at the time
of listing, focusing on the features' primary constituent elements.
Primary constituent elements are those specific elements of the
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to L. exigua var. laciniata are:
(1) Cedar glades and gladelike areas within the range of L. exigua
var. laciniata that include:
(a) Areas of rock outcrop, gravel, flagstone of Silurian dolomite
or dolomitic limestone, and/or shallow (1
[[Page 25693]]
to 5 cm (0.393 to 1.97 in)), calcareous soils;
(b) Intact cyclic hydrologic regime involving saturation and/or
inundation of the area in winter and early spring, then drying quickly
in the summer;
(c) Full or nearly full sunlight; and
(d) An undisturbed seed bank.
(2) Vegetated land around glades and gladelike areas that extends
up and down slope and ends at natural (e.g., stream, topographic
contours) or manmade breaks (e.g., roads).
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection.
Threats to those features that define primary constituent elements
for L. exigua var. laciniata include (but are not limited to): (1)
Residential and commercial development on private land; (2)
construction and maintenance of roads and utility lines; (3)
incompatible agricultural or grazing practices; (4) off-road vehicle
(ORV) use or horseback riding; (5) encroachment by nonnative plants or
forage species; and (6) forest encroachment due to fire suppression.
These threats are in addition to random effects of droughts, floods, or
other natural phenomena.
Special management considerations or protection are required within
critical habitat areas to address these threats. Management activities
that could address these threats include (but are not limited to): (1)
Avoiding cedar glades (or suitable gladelike habitats) when planning
the location of buildings, lawns, roads (including horse or ORV
trails), or utilities; (2) avoiding aboveground construction and/or
excavations in locations that would interfere with natural water
movement to suitable habitat sites; (3) protecting and restoring as
many glade complexes as possible; (4) research supporting the
development of management recommendations for grazing and other
agricultural practices; (5) technical or financial assistance to
landowners that may help in the design and implementation of management
actions that protect the plant and its habitat; (6) avoiding lawn grass
or tree plantings near glades; and (7) habitat management, such as
brush removal, prescribed fire, and/or eradication of lawn grasses to
maintain an intact native glade vegetation community.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b) we
review available information pertaining to the habitat requirements of
the species and identify areas occupied at the time of listing that
contain the features essential to the conservation of the species. If,
after identifying currently occupied areas, we determine that those
areas are inadequate to ensure conservation of the species we then
consider, in accordance with the Act and our implementing regulations
at 50 CFR 424.12(e), whether designating additional areas outside those
currently occupied is essential for the conservation of the species.
Here, we are not designating any areas outside the geographical area
occupied by the species because we have determined that occupied areas
are sufficient for the conservation of the species, and we have no
evidence that this taxon ever existed beyond its current range.
Sites were considered occupied if the Kentucky State Nature
Preserves Commission (KSNPC) Element Occurrence Report (KSNPC 2012, pp.
1-108) considered an element occurrence to be an extant population at
the time of the proposed listing rule (May 24, 2013).
We also reviewed available information that pertains to habitat
requirements of Leavenworthia exigua var. laciniata. The sources of
information include, but are not limited to:
1. Data used to prepare the proposed listing package;
2. Peer-reviewed articles, various agency reports, and the KSNPC
Natural Heritage Program database;
3. Information from species experts; and
4. Regional Geographic Information System (GIS) data (such as
species occurrence data, topography, aerial imagery, and land ownership
maps) for area calculations and mapping.
Areas for critical habitat designation were selected based on the
quality of the element occurrence(s), condition of the habitat, and
distribution within the species' range. Typically, selected areas
contain good quality or better occurrences (A, B, or C-ranked) and
natural habitat, as identified by KSNPC in the Natural Heritage Report
(2012, pp. 1-108). However, some lower quality occurrences, with
restoration potential, are included to ensure that critical habitat is
being designated across the species' range and to avoid a potential
reduction of the distribution of L. exigua var. laciniata. The glade
habitat upon which the species depends is often easily viewed using
aerial photography. Additionally, aerial photography provides an
overview of the land use surrounding the glades. Topographic maps
provide contours and drainage patterns that were used to help identify
potential areas for growth and expansion of the species. A combination
of these tools, in a GIS interface, allowed for the determination of
the critical habitat boundaries.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features for L. exigua var. laciniata. 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 final rule have been excluded by
text and are not designated as critical habitat. Therefore, a Federal
action involving these lands will not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-
2013-0015, and at the field office responsible for the designation (see
FOR FURTHER INFORMATION CONTACT).
Final Critical Habitat Designation
We are designating six units, consisting of 18 subunits, as
critical habitat for L. exigua var. laciniata. The critical habitat
areas described below constitute our best assessment at this time of
areas that meet the definition of critical habitat. Those six units
are: (1) Unit 1: McNeely Lake, (2) Unit 2: Old Mans Run, (3) Unit 3:
Mount Washington, (4) Unit 4: Cedar Creek, (5) Unit 5: Cox Creek, and
(6) Unit 6: Rocky Run. All units and subunits are
[[Page 25694]]
currently occupied by the species and contain all physical and
biological features and primary constituent elements that are essential
to the conservation of the species.
Table 1--Designated Critical Habitat Units for L. exigua var. laciniata
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in acres
Critical habitat unit Sub unit Land ownership by type (hectares)
----------------------------------------------------------------------------------------------------------------
1........................................ .............. Louisville/Jefferson County 18 (7)
Metro Government.
2........................................ 2A Private..................... 102 (41)
2........................................ 2B Private..................... 870 (352)
2........................................ 2C Private..................... 42 (17)
3........................................ 3A Private..................... 25 (10)
3........................................ 3B Private..................... 7 (3)
3........................................ 3C Private..................... 10 (4)
4........................................ 4A Private..................... 91 (37)
4........................................ 4B KSNPC; Private; Private with 69 (28)
KSNPC easement.
4........................................ 4C Private..................... 83 (34)
4........................................ 4D Private..................... 46 (19)
4........................................ 4E Private..................... 102 (41)
4........................................ 4F Private..................... 120 (49)
4........................................ 4G Private..................... 20 (8)
4........................................ 4H Private..................... 16 (6)
5........................................ 5A Private..................... 8 (3)
5........................................ 5B Private..................... 50 (20)
6........................................ .............. Private..................... 374 (151)
Total................................ .............. ............................ 2,053 (830)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Unit 1: McNeely Lake, Jefferson County, Kentucky
Unit 1 consists of 18 acres (ac) (7 hectares (ha)) within McNeely
Lake Park in Jefferson County, Kentucky. This critical habitat unit is
under county government ownership. This critical habitat unit occurs at
the northwestern edge of the species' range, where there is little
remaining habitat and few occurrences, and therefore this unit is
important to the distribution of the species. Habitat degradation
(e.g., erosion, invasive species) is impacting the species' ability to
persist within this unit; however, the landowner has received funding
and is working with the Service and KSNPC to develop a management plan
for the site and to implement habitat improvement practices. These
planned activities are expected to improve population numbers and
viability at this important site. This unit helps to maintain the
geographical range of the species and provides opportunity for
population growth. Within Unit 1, the features essential to the
conservation of the species may require special management
considerations or protection to address potential adverse effects
associated with encroachment by nonnative plants or forage species, and
forest encroachment due to fire suppression.
Unit 2, Subunits A, B, and C: Old Mans Run, Jefferson and Bullitt
Counties, Kentucky
Unit 2 consists of three subunits totaling 1,014 ac (410 ha) in
Bullitt and Jefferson Counties, Kentucky. It is located just south of
the Jefferson/Bullitt County line and extends north of Old Mans Run.
This critical habitat unit includes four element occurrences. Subunit
2B represents the best remaining populations and habitat for L. exigua
var. laciniata in Jefferson County. Subunits 2A and 2C are important
areas at the northern extent of the species' range. These three
subunits represent the northeastern extent of the population's range
and increase population redundancy within the species' range. The
features essential to the conservation of the species in Unit 2 may
require special management considerations or protection to address
potential adverse effects associated with development on private land,
incompatible agricultural or grazing practices, ORV or horseback
riding, competition from lawn grasses, and forest encroachment.
Subunit 2A is 102 ac (41 ha) in size and is located west of US 150
and northwest of Floyds Fork. It is in private ownership. While all
PCEs are present within this subunit, it contains few native plant
associates for L. exigua var. laciniata, and the increased competition
from lawn grasses may decrease the ability of L. exigua var. laciniata
to persist. This subunit is important for maintaining the northern
distribution of L. exigua var. laciniata.
Subunit 2B is 870 ac (352 ha) in size and is located east of US 150
and extends north and south of Old Mans Run. It is in private
ownership. This is the largest of the subunits and contains the two
highest ranked (1-B and 1-C) occurrences in Jefferson County. It
represents the best remaining habitat in this portion of the range and
may contain more than half of the total L. exigua var. laciniata
population based on a 2011 survey by KSNPC, which estimated more than
20,000 individuals at 4 sites within this subunit. In this subunit,
competition from lawn grasses impacts L. exigua var. laciniata and may
decrease the plant's ability to persist.
Subunit 2C is 42 ac (17 ha) in size and is located west of US 150
and east of Floyds Fork, extending into both Bullitt and Jefferson
Counties. It is in private ownership. This subunit is primarily
pasture, and habitat for L. exigua var. laciniata is impacted by
competition from lawn grasses. Habitat management within this subunit
to improve habitat for L. exigua var. laciniata is important for
maintaining the northern distribution of the species.
Unit 3, Subunits A, B and C: Mount Washington, Bullitt County, Kentucky
Unit 3 consists of 42 ac (17 ha) and includes three subunits in
Bullitt
[[Page 25695]]
County, Kentucky, primarily within or adjacent to the city limits of
Mount Washington. This critical habitat unit includes three element
occurrences and provides an important link between the northern and
southern portions of the species' range. Within Unit 3, the features
essential to the conservation of the species may require special
management considerations or protection to address potential adverse
effects associated with development on private land, incompatible
agricultural or grazing practices, ORV or horseback riding, competition
from lawn grasses, and forest encroachment due to fire suppression.
Subunit 3A is 25 ac (10 ha) in size and is located northeast of
Mount Washington. It is in private ownership. Habitat for L. exigua
var. laciniata within this subunit is degraded and would improve with
management. It represents important habitat on the eastern extent of
the species' range. In this subunit, habitat conversion and ORV use
impact L. exigua var. laciniata habitat and may decrease the species'
ability to persist at this site.
Subunit 3B is 7 ac (3 ha) in size and is located east of Hubbard
Lane and south of Keeneland Drive. It is in private ownership. The
glade habitat has been degraded by adjacent land use and would benefit
from improved management. The subunit represents an important link
between other subunits.
Subunit 3C is 10 ac (4 ha) in size and is located east of US 150
and south of Highway 44E. It is in private ownership. The subunit
represents an important and high quality cedar glade in an area of
ongoing, intensive development. Land use surrounding the glade remnant
appears stable and the glade contains several native plant species
associated with L. exigua var. laciniata.
Unit 4, Subunits A, B, C, D, E, F, G, and H: Cedar Creek, Bullitt
County, Kentucky
Unit 4 consists of 547 ac (221 ha) and includes eight subunits, all
in Bullitt County, Kentucky. This unit is located south of the Salt
River and northeast of Cedar Grove and seems to represent the core of
the remaining high-quality habitat for L. exigua var. laciniata. It
includes eight element occurrences. In addition to being a stronghold
for the species, these subunits are generally within close proximity
(less than 0.5 miles (0.8 km)) to each other and represent the best
opportunity for genetic exchange between occurrences.
Within Unit 4, the features essential to the conservation of the
species may require special management considerations or protection to
address potential adverse effects associated with development on
private land, incompatible agricultural or grazing practices, ORV or
horseback riding, competition from lawn grasses, and forest
encroachment due to fire suppression.
Subunit 4A is 91 ac (37 ha) in size and is located south of Cedar
Creek and west of Pine Creek Trail. This subunit is owned by The Nature
Conservancy and encompasses most of the Pine Creek Barrens Preserve.
This excellent-quality glade represents the only remaining ``A'' rank
occurrence for L. exigua var. laciniata.
Subunit 4B is 69 ac (28 ha) in size and is located along an unnamed
tributary to Cedar Creek, and south of KY 1442. This good-quality glade
includes the Apple Valley Glade State Nature Preserve, owned by KSNPC
(approximately 30 percent of subunit), as well as private land,
including some under permanent conservation easement (approximately 41
percent of subunit) to protect L. exigua var. laciniata. Approximately
29 percent of this subunit is under private ownership without any
protections for L. exigua var. laciniata.
Subunit 4C is 83 ac (34 ha) in size and located north of Cedar
Creek and south of Apple Valley State Nature Preserve. It is in private
ownership. This subunit contains high-quality glades with a community
of native plants present.
Subunit 4D is 46 ac (19 ha) in size and is located north of Cedar
Creek and south of Victory Church. It is in private ownership. This
subunit has been degraded and would benefit from improved management.
Native plants associated with L. exigua var. laciniata occur within
this subunit, but competition from lawn grasses, as well as forest
encroachment due to fire suppression, impacts L. exigua var. laciniata
and may decrease its ability to persist.
Subunit 4E is 102 ac (41 ha) in size and is located southeast of
subunit 4D and across Cedar Creek. It is in private ownership. It
contains a large number of L. exigua var. laciniata (several thousand),
but the habitat has been degraded by adjacent land use and would
benefit from improved management. Competition from lawn grasses, as
well as forest encroachment due to fire suppression, affects L. exigua
var. laciniata and may decrease the plant's ability to persist.
Subunit 4F is 120 ac (49 ha) in size and is south of the confluence
of Cedar Creek and Greens Branch. It is in private ownership. This is a
degraded glade that still contains native plants associated with L.
exigua var. laciniata. The subunit is disturbed by existing and
surrounding land uses, as well as utility line maintenance and ORV use,
which may decrease the species' ability to persist.
Subunit 4G is 20 ac (8 ha) in size and is located along either site
of KY 480 near White Run Road. It is in private ownership. This site
contains a large number of plants; however, improved habitat conditions
are needed for long-term viability of the L. exigua var. laciniata
occurrence. Impacts to L. exigua var. laciniata, which may decrease its
ability to persist at this site, include incompatible agricultural or
grazing practices, ORV use, competition from lawn grasses, and forest
encroachment due to fire suppression.
Subunit 4H is 16 ac (6 ha) in size and is located 0.95 miles
southeast of the KY 480/KY 1604 intersection. It is in private
ownership. Within this subunit, several patches of good habitat for L.
exigua var. laciniata remain as well as a good diversity of native
plant associates. However, competition from lawn grasses, as well as
forest encroachment due to fire suppression, affects L. exigua var.
laciniata and may decrease its ability to persist.
Unit 5, Subunits A and B: Cox Creek, Bullitt County, Kentucky
Unit 5 consists of 58 ac (23 ha) and includes two subunits, both in
Bullitt County, Kentucky. It includes two element occurrences,
representing the most easterly occurrences south of the Salt River.
These subunits are important for maintaining the distribution and
genetic diversity of the species.
Within Unit 5, the features essential to the conservation of the
species may require special management considerations or protection to
address potential adverse effects associated with illegal waste dumps,
development on private land, incompatible agricultural or grazing
practices, ORV or horseback riding, competition from lawn grasses, and
forest encroachment due to fire suppression.
Subunit 5A is 8 ac (3 ha) in size and is located east of Cox Creek
and west of KY 1442. It is in private ownership. This site is
threatened by ORV use and would benefit from improved habitat
management.
Subunit 5B is 50 ac (20 ha) in size and is located west of Cox
Creek near the Bullitt/Spencer County line. It is in private ownership.
Incompatible agricultural practices and ORV use impacts L. exigua var.
laciniata and may decrease its ability to persist. The native flora is
mostly intact, and L. exigua var. laciniata would benefit from improved
habitat management.
[[Page 25696]]
Unit 6: Rocky Run, Bullitt County, Kentucky
Unit 6 consists of 374 ac (151 ha) in Bullitt County, Kentucky.
This critical habitat unit includes habitat that is under private
ownership, including one 16-acre registered natural area. It includes
one element occurrence. This unit appears to represent the largest
intact glade habitat remaining within the range of the species. Within
Unit 6, the features essential to the conservation of the species may
require special management considerations or protection to address
potential adverse effects associated with development on private land,
incompatible agricultural or grazing practices, competition from lawn
grasses, and forest encroachment due to fire suppression.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (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 provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would continue
to serve its intended conservation role for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for L. exigua var. laciniata. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for L. exigua var. laciniata. These activities include,
but are not limited to:
(1) Actions within or near critical habitat that would result in
the loss of bare or open ground. Such activities could include, but are
not limited to: Development; road maintenance, widening, or
construction; and utility line construction or maintenance. These
activities could eliminate or reduce the habitat necessary for growth,
reproduction, and/or expansion of L. exigua var. laciniata.
(2) Actions within or near critical habitat that would modify the
hydrologic regime that allows for the shallow soils to be very wet in
late winter to early spring and dry quickly. Such activities could
include, but are not limited to: Development; road maintenance,
widening, or construction; and utility line construction or
maintenance. These activities could alter habitat conditions to the
point of eliminating the site conditions required
[[Page 25697]]
for growth, reproduction, and/or expansion of L. exigua var. laciniata.
(3) Actions within or near critical habitat that would remove or
alter vegetation and allow erosion, sedimentation, shading, or the
introduction or expansion of invasive species. Such activities could
include, but are not limited to: Land clearing; silviculture;
fertilizer, herbicide, or insecticide applications; development; road
maintenance, widening, or construction; and utility line construction
or maintenance. These activities could alter habitat conditions to the
point of eliminating the site conditions required for growth,
reproduction, and/or expansion of L. exigua var. laciniata.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan [INRMP] 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.'' There are no
Department of Defense lands with a completed INRMP within the critical
habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Consideration of Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared an incremental effects
memorandum (IEM) and screening analysis which together with our
narrative and interpretation of effects we consider our draft economic
analysis (DEA) of the proposed critical habitat designation and related
factors (IEc 2013). The analysis was made available for public review
from January 7, 2014, through February 6, 2014 (79 FR 796). The DEA
addressed potential economic impacts of critical habitat designation
for L. exigua var. laciniata. Following the close of the comment
period, we reviewed and evaluated all information submitted during the
comment period that may pertain to our consideration of the probable
incremental economic impacts of this critical habitat designation.
Additional information relevant to the probable incremental economic
impacts of critical habitat designation for L. exigua var. laciniata is
summarized below and available in the screening analysis for L. exigua
var. laciniata (IEc 2013), available at http://www.regulations.gov.
The screening analysis addresses how probable economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. Decision-makers can use this information to evaluate
whether the effects of the designation might unduly burden a particular
group, area, or economic sector. The screening analysis assesses the
economic impacts of L. exigua var. laciniata conservation efforts
associated with the following categories of activity: Residential and
commercial development; transportation projects; recreational
activities; agricultural activities; utility projects; and commercial
timber harvest.
In general, because L. exigua var. laciniata is a narrow endemic
species, and all of the critical habitat units are occupied by the
species, the quality of its habitat is closely linked to the species'
survival (USFWS 2013). Consequently, the Service believes that in most
circumstances, there will be no conservation efforts needed to prevent
adverse modification of critical habitat beyond those that would be
required to prevent jeopardy to the species. Any anticipated
incremental costs of the critical habitat designation costs will
predominantly be administrative in nature and would not be significant.
Critical habitat may impact property values indirectly if developers
assume the designation will limit the potential use of that land.
However, the designation of critical habitat is not likely to result in
an increase of consultations, but rather only the additional
administrative effort within each consultation to address the effects
of each proposed agency action on critical habitat.
Exclusions Based on Economic Impacts
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exercising her discretion to exclude any areas from
this designation of critical habitat for L. exigua var. laciniata based
on economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Kentucky Ecological Services Field
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts or Homeland Security
Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that no lands within the designation of critical habitat for
L. exigua var. laciniata are owned or managed by the Department of
Defense or Department of Homeland Security, and, therefore, we
anticipate no impact to national security or homeland security.
Consequently, the Secretary is not exercising her discretion to exclude
any areas from this final designation based on impacts to national
security or homeland security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we also consider any other
relevant impacts resulting from the designation of critical habitat. We
consider a number of factors, including whether the landowners have
developed any HCPs or other management plans for the area, or whether
there are conservation partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
look at any tribal issues and consider the government-to-government
relationship of the United States with tribal entities. We also
consider any social impacts that might occur because of the
designation.
[[Page 25698]]
In preparing this final rule, we have determined that there are
currently no permitted HCPs or other approved management plans for L.
exigua var. laciniata, and the final designation does not include any
tribal lands or trust resources. We anticipate no impact on
partnerships or HCPs from this critical habitat designation.
Accordingly, the Secretary is not exercising her discretion to exclude
any areas from this final designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that this final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Based on this
information, we affirm our certification that this final critical
habitat designation will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration.
The DEA finds that none of these criteria is relevant to this
analysis. Thus, based on information in the economic analysis, energy-
related impacts associated with L. exigua var. laciniata conservation
activities within critical habitat are not expected. As such, the
designation of critical habitat is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
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
[[Page 25699]]
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. Small governments will be affected only to the extent that any
programs having Federal funds, permits, or other authorized activities
must ensure that their actions will not adversely affect the critical
habitat. The final economic analysis concludes incremental impacts may
occur due to administrative costs of section 7 consultations for
activities related to commercial, residential, and recreational
development and associated actions; however, these are not expected to
significantly affect small government entities. Consequently, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for L. exigua var. laciniata in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. The DEA found that no significant
economic impacts are likely to result from the designation of critical
habitat for L. exigua var. laciniata. Because the Act's critical
habitat protection requirements apply only to Federal agency actions,
few conflicts between critical habitat and private property rights
should result from this designation. Based on the best available
information, the takings implications assessment concludes that this
designation of critical habitat for L. exigua var. laciniata does not
pose significant takings implications.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Kentucky. We received comments
from the Kentucky State Nature Preserves Commission and have addressed
them in the Summary of Comments and Recommendations section of the
rule. From a federalism perspective, the designation of critical
habitat directly affects only the responsibilities of Federal agencies.
The Act imposes no other duties with respect to critical habitat,
either for States and local governments, or for anyone else. As a
result, the rule does not have substantial direct effects either on the
States, or on the relationship between the national government and the
States, or on the distribution of powers and responsibilities among the
various levels of government. 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 these local governments in
long-range planning (because these local governments no longer have to
wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of L. exigua var. laciniata. The
designated areas of critical habitat are presented on maps, and the
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments,
[[Page 25700]]
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. As stated above, we are not
designating critical habitat for L. exigua var. laciniata on tribal
lands.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Kentucky Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Kentucky Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.96, amend paragraph (a) by adding an entry for
``Leavenworthia exigua var. laciniata (Kentucky glade cress)'' in
alphabetical order under the family Brassicaceae, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Brassicaceae: Leavenworthia exigua var. lacinata (Kentucky glade
cress)
(1) Critical habitat units are depicted for Bullitt and Jefferson
Counties, Kentucky, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of L.
exigua var. laciniata consist of these components:
(i) Cedar glades and gladelike areas within the range of L. exigua
var. laciniata that include:
(A) Areas of rock outcrop, gravel, flagstone of Silurian dolomite
or dolomitic limestone, and/or shallow (1 to 5 centimeters (0.393 to
1.97 inches)), calcareous soils;
(B) Intact cyclic hydrologic regime involving saturation and/or
inundation of the area in winter and early spring, then drying quickly
in the summer;
(C) Full or nearly full sunlight; and
(D) An undisturbed seed bank.
(ii) Vegetated land around glades and gladelike areas that extends
up and down slope and ends at natural (e.g., stream, topographic
contours) or manmade breaks (e.g., roads).
(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
June 5, 2014.
(4) Critical habitat map units. Data layers defining critical
habitat map units were created using a base of aerial photographs (USDA
National Agricultural Imagery Program; NAIP 2010), and USA Topo Maps
(National Geographic Society 2011). Critical habitat units were then
mapped using Universal Transverse Mercator (UTM) Zone 16 North American
Datum (NAD) 1983 coordinates. The maps in this entry, as modified by
any accompanying regulatory text, establish the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which each map is based are available to the public at the Service's
Internet site, at http://www.regulations.gov at Docket No. FWS-R4-ES-
2013-0015, and at the field office responsible for this designation.
You may obtain field office location information by contacting one of
the Service regional offices, the addresses of which are listed at 50
CFR 2.2.
(5) Index map follows:
[[Page 25701]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.004
(6) Unit 1: McNeely Lake, Jefferson County, Kentucky.
(i) Unit 1 includes 18 ac (7 ha).
(ii) Map of Unit 1 follows:
[[Page 25702]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.005
(7) Unit 2: Old Mans Run, Bullitt and Jefferson Counties, Kentucky.
(i) Unit 2 includes 1,014 ac (410 ha): Subunit A includes 102 acres
(41 ha); subunit B includes 870 acres (352 ha); and subunit C includes
42 ac (17 ha).
(ii) Map of Unit 2 follows:
[[Page 25703]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.006
(8) Unit 3: Mount Washington, Bullitt County, Kentucky.
(i) Unit 3 contains 42 ac (17 ha): Subunit A contains 25 ac (10
ha); subunit B contains 7 ac (3 ha); and subunit C contains 10 ac (4
ha).
(ii) Map of Unit 3 follows:
[[Page 25704]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.007
(9) Unit 4: Cedar Creek, Bullitt County, Kentucky.
(i) Unit 4 contains 547 ac (221 ha): Subunit A contains 91 ac (37
ha); subunit B contains 69 ac (28 ha); subunit C contains 83 ac (34
ha); subunit D contains 46 ac (19 ha); subunit E contains 102 ac (41
ha); subunit F contains 120 ac (49 ha); subunit G contains 20 ac (8
ha); and subunit H contains 16 ac (6 ha).
(ii) Map of Unit 4 follows:
[[Page 25705]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.008
(10) Unit 5: Cox Creek, Bullitt County, Kentucky.
(i) Subunit 5 contains 58 ac (23 ha): Subunit A contains 8 ac (3
ha), and subunit B contains 50 ac (20 ha).
(ii) Map of Unit 5 follows:
[[Page 25706]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.009
(11) Unit 6: Rocky Run, Bullitt County, Kentucky.
(i) Unit 6 contains 374 ac (151 ha).
(ii) Map of Unit 6 follows:
[[Page 25707]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.010
* * * * *
Dated: April 24, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks..
[FR Doc. 2014-10050 Filed 5-5-14; 8:45 am]
BILLING CODE 4310-55-P