[Federal Register Volume 85, Number 142 (Thursday, July 23, 2020)]
[Proposed Rules]
[Pages 44584-44617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14449]
[[Page 44583]]
Vol. 85
Thursday,
No. 142
July 23, 2020
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 Slickspot Peppergrass (Lepidium papilliferum); Proposed
Rule
Federal Register / Vol. 85 , No. 142 / Thursday, July 23, 2020 /
Proposed Rules
[[Page 44584]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2010-0071; FF09E21000 FXES11110900000 201]
RIN 1018-BE61
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Slickspot Peppergrass (Lepidium papilliferum)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Revised proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), again revise
our previous proposal to designate critical habitat for slickspot
peppergrass (Lepidium papilliferum) under the Endangered Species Act
(Act). In total, approximately 17,049 hectares (ha) (42,129 acres (ac))
in Ada, Elmore, Gem, Payette, and Owyhee Counties in Idaho fall within
the boundaries of the revised proposed critical habitat designation. If
we finalize this revised rule as proposed, it would extend the Act's
protections to this species' critical habitat. We are proposing changes
to our previous critical habitat proposal for slickspot peppergrass
based on new information available on the current condition of
slickspot peppergrass occurrences, as well as use of an alternative
method for mapping critical habitat for the species that more precisely
includes areas that provide the physical and biological features
essential to the conservation of the species. The effect of the revised
proposed critical habitat would be to conserve slickspot peppergrass
and its habitat under the Act.
DATES: We will accept comments received or postmarked on or before
September 21, 2020. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 8, 2020.
ADDRESSES: You may submit comments by the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2010-0071,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, check the Proposed
Rule box to locate this document. You may submit a comment by clicking
on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R1-ES-2010-0071; U.S. Fish and Wildlife Service,
MS: JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information that you
provide us (see the Information Requested section below for more
information).
Availability of supporting materials: The coordinates or plot
points or both from which the critical habitat maps are generated are
included in the administrative record for this proposed revised
critical habitat designation and are available at http://www.fws.gov/idaho and http://www.regulations.gov under Docket No. FWS-R1-ES-2010-
0071. Any additional tools or supporting information that we may
develop for this critical habitat designation will also be available at
the U.S. Fish and Wildlife Service website and may also be included in
the preamble and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Christopher Swanson, Acting 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. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This is a second revision of the
proposed rule to designate critical habitat for the threatened plant
species, slickspot peppergrass (76 FR 27184, May 10, 2011, and 79 FR
8402, Feb. 12, 2014). All areas we are proposing as critical habitat
are occupied by the species, and the majority of the area proposed is
located on lands administered by the Bureau of Land Management (BLM).
Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.) (Act), any species that is determined to be threatened or
endangered requires critical habitat to be designated, to the maximum
extent prudent and determinable. Designations and revisions of critical
habitat can only be completed by issuing a rule. We reinstated
slickspot peppergrass as a threatened species under the Act effective
September 16, 2016 (81 FR 55058, Aug. 17, 2016). We are revising our
previously proposed critical habitat rule to incorporate new
information we received from the Idaho Department of Fish and Game
(IDFG) regarding habitat quality rankings of slickspot peppergrass
occurrences (Kinter and Miller 2016, Table 5).
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 4(b)(2) of the Act states that the Secretary must make the
designation on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat. Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protections; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed,
upon a determination by the Secretary that such areas are essential for
the conservation of the species.
Economic analysis. In order to consider economic impacts, we
previously prepared an analysis of the economic impacts of the proposed
critical habitat designation and related factors. The final economic
analysis, which was completed March 12, 2012, concluded that critical
habitat designation would not likely affect levels of economic activity
or conservation measures being implemented within the proposed critical
habitat area. The analysis stated that the primary reason critical
habitat is unlikely to generate economic impacts beyond administrative
costs of consultation is that approximately 85.8 percent of the
proposed critical habitat is Federal land managed by the BLM, which is
a party to a binding conservation agreement established for the purpose
of slickspot peppergrass conservation; all projects and activities
occurring on these public lands within the proposed critical habitat,
are already subject to section 7 consultation for slickspot peppergrass
(IEC 2012, p. ES-5). The BLM administers Federal lands that encompass
approximately 84.7 percent of the current critical habitat
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proposal; we consider this 1.1 percent decrease in the percentage of
proposed critical habitat administered by BLM to be inconsequential
relative to the conclusions of the 2012 economic analysis. Unless
unforeseen changes occur to existing conservation measures or the
management of land use activities, the incremental impacts of critical
habitat designation described in the 2012 final economic analysis would
continue to be limited to additional administrative costs of section 7
consultations for Federal agencies (primarily BLM), associated with
considering the potential for adverse modification of critical habitat.
The final economic analysis is available at http://www.regulations.gov
under the docket number for this rulemaking, which is FWS-R1-ES-2010-
0071.
Peer review. In accordance with our peer review policy published
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
updating and clarifying the role of peer review of listing actions
under the Act, we solicited expert opinion in 2011 from five
appropriate and independent specialists regarding the 2011 proposed
rule. We received input from three of the five individuals. Since that
time, we have implemented a standard practice of developing a species
status assessment (SSA) as the scientific foundation to inform our
listing determinations and recovery plans (U.S. Fish and Wildlife
Service 2016, in litt., pp. 1-2). In 2018, we initiated the development
of an SSA for slickspot peppergrass, and in August 2018, we solicited
expert opinion from four independent specialists with scientific
expertise on slickspot peppergrass and its habitat regarding our draft
SSA report. These four individuals generally concurred with the
information and conclusions in the draft SSA report, including our use
of data from the IDFG (Kinter and Miller 2016, entire); these data were
used extensively in the SSA. The purpose of peer review is to ensure
that our critical habitat designations are based on scientifically
sound data, assumptions, and analyses. The peer reviewers have
expertise in the biology, habitat, and threats to the species. The
final SSA report (USFWS 2020) is available at http://www.regulations.gov under Docket No. FWS-R1-ES-2010-0071.
Because we will consider all comments and information we receive
during the comment period, our final designation may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final designation may not include all areas
proposed, may include some additional areas, and may exclude some areas
if we find the benefits of exclusion outweigh the benefits of
inclusion. Such final decisions would be a logical outgrowth of this
proposal, as long as we: (1) Base the decisions on the best scientific
and commercial data available and take into consideration the relevant
impacts; (2) articulate a rational connection between the facts found
and the conclusions made, including why we changed our conclusion; and
(3) base removal of any areas on a determination either that the area
does not meet the definition of ``critical habitat'' or that the
benefits of excluding the area will outweigh the benefits of including
it in the designation.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies,
Native American tribes, the scientific community, industry, or any
other interested party concerning this revised proposed rule. Comments
previously submitted during earlier public comment periods on proposed
critical habitat for slickspot peppergrass will be considered in our
final decision and need not be resubmitted. We particularly seek
comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(2) Specific information on:
(a) The amount and distribution of [species] habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are inadequate for the
conservation of the species; and
(ii) Providing specific information that supports the determination
that unoccupied areas will, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species.
(3) Any additional areas occurring within the historical range of
the species that should be included in the designation because they (a)
are occupied at the time of listing and contain the physical and
biological features that are essential to the conservation of the
species and that may require special management considerations, or (b)
are unoccupied at the time of listing and are essential for the
conservation of the species.
(4) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(7) New scientific information regarding critical habitat for this
species that has become available since the May 10, 2011, publication
of our proposed rule to designate critical habitat for slickspot
peppergrass (76 FR 27184, May 10, 2011) and the Feb. 12, 2014,
publication of our revised proposed rule to designate critical habitat
for slickspot peppergrass (79 FR 8402, Feb. 12, 2014).
(8) 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
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accommodate public concerns and comments. We particularly seek comments
regarding the appropriateness of our use of an updated critical habitat
mapping methodology that replaces use of Quarter-Quarter sections based
on the Public Land Survey System.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. In particular, we are interested in areas
proposed for designation on non-Federal lands covered by a conservation
agreement or plan that specifically addresses threats to slickspot
peppergrass. We are asking for information related to whether the
specific nonFederal lands covered under the 2006 Candidate Conservation
Agreement (CCA) signed by the State of Idaho Governor's Office of
Species Conservation, the BLM, IDFG, Idaho Department of Lands, Idaho
National Guard, and several nongovernmental cooperators should be
considered for exclusion under section 4(b)(2) of the Act, and whether
the benefits of potentially excluding these areas outweigh the benefits
of including these areas under section 4(b)(2) of the Act.
(10) Although we are not aware of any current habitat conservation
plans (HCP), safe harbor agreements (SHA), or conservation agreements
or plans covering municipal or private lands with proposed critical
habitat, we request information from the public concerning interest in
developing these agreements to memorialize ongoing conservation
programs or partnerships that benefit slickspot peppergrass, including
renewing expired memoranda of agreement (MOAs) associated with the 2006
CCA that were previously signed by private landowners, which overlap
with proposed critical habitat. Municipal or private lands covered by
ongoing or new agreements that include ongoing activities that have
been demonstrated to effectively benefit slickspot peppergrass may be
appropriate for exclusion under section 4(b)(2) of the Act.
(11) We also request information from local governments concerning
interest in renewing or revising the following expired municipal
conservation agreements and information regarding ongoing
implementation of conservation measures associated with these plans
that benefit slickspot peppergrass, and the appropriateness of
considering lands covered by these agreements, if renewed or revised,
for exclusion under section 4(b)(2) of the Act:
(a) The Conservation Agreement for Slickspot Peppergrass at the
Boise Airport, Ada County, Idaho, between the Service and the City of
Boise Airport that expired in December 2015 (City of Boise and U.S.
Fish and Wildlife Service 2003, in litt.).
(b) The Conservation Agreement by, and between, Boise City and the
Service for Allium aasea (Aase's onion), Astragalus mulfordiae
(Mulford's milkvetch), and slickspot peppergrass (Hull's Gulch
Agreement) that expired in 2006 (U.S. Fish and Wildlife Service 1996,
in litt.).
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
You may submit your comments and materials concerning this revised
proposed rule by one of the methods listed in ADDRESSES. We request
that you send comments only by the methods described in ADDRESSES. We
will consider all comments and information received during the comment
period on this revised proposed rule, as well those received during the
previous comment periods associated with the 2011 proposed critical
habitat rule (76 FR 27184, May 10, 2011) and the 2014 revised proposed
critical habitat rule (79 FR 8402, Feb. 12, 2014), in the preparation
of a final designation. Therefore, it is not necessary to resubmit
comments previously provided during the comment periods on those
proposed rules.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, 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. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this revised proposed rule, will be
available for public inspection on http://www.regulations.gov.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).
Previous Federal Actions
In this revised proposed rule, we primarily discuss those topics
directly relevant to updating the 2011 proposed critical habitat rule
(76 FR 27184, May 10, 2011) and the 2014 revised proposed critical
habitat rule (79 FR 8402, Feb. 12, 2014). For more information on
previous Federal actions concerning slickspot peppergrass, refer to
those documents and the 2016 final rule reinstating threatened status
for the species under the Act (81 FR 55058, Aug. 17, 2016).
Changes from the Previous Proposed Rules
Summary of Changes
There are three primary changes from our previous proposed critical
habitat rules (76 FR 27184, May 11, 2011; and 79 FR 8402, February 12,
2014) that we quickly summarize here and discuss in further detail in
later sections of this document. First, since the publication of our
May 10, 2011, proposed rule (76 FR 27184) and our February 12, 2014,
revised proposed rule (79 FR 8402), we received information from IDFG
regarding some additional areas that meet our definition of critical
habitat for slickspot peppergrass, and some areas previously proposed
as critical habitat that no longer meet our definition. We incorporated
this new information and revised our designation accordingly. In
addition, we changed our critical habitat mapping methodology to use
geographic information system (GIS)-generated polygons, replacing our
use of Quarter-Quarter sections based on the Public Land Survey System.
Finally, the regulations concerning critical habitat have been
revised and updated (81 FR 7414, Feb. 11, 2016; 84 FR 45020, August 27,
2019). The original 2011 proposed rule (76 FR 27184, May 10, 2011)
identified primary constituent elements (PCEs) for the critical habitat
designation, and our 2014 revision did not change those (79 FR 8402,
Feb. 12, 2014). In accordance
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with the revisions to our critical habitat regulations, this revised
proposed rule includes specific descriptions of the physical and
biological features (PBFs) that are essential to the conservation of
the species and which may require special management considerations or
protection. We also revised the language describing PBF 1(b) to clarify
the intent of the original language used in the 2011 proposed critical
habitat rule (76 FR 27190, May 10, 2011) as follows: Sparse vegetation,
with introduced, invasive, nonnative plant species cover absent or
limited to low to moderate levels. The 2011 proposed critical habitat
rule (76 FR 27184, May 10, 2011) described PBF 1(b) as: ``Sparse
vegetation with low to moderate introduced, invasive, nonnative plant
species cover'' (76 FR 27190). The intent of this updated language is
to clarify that introduced, invasive, nonnative plant species are
absent from slick spot microsites or are limited to low or moderate
levels.
Summary of New Information
As described in our 2014 revised critical habitat proposal (79 FR
8402, Feb. 12, 2014), we based our criteria for the identification of
critical habitat for slickspot peppergrass on the Element Occurrence
(EO) rankings of the Idaho Natural Heritage Program (INHP). An EO is
the distinct geographic location where a species occurs. In the case of
slickspot peppergrass, EOs are groups of slickspot peppergrass plants
that all occur within 1 kilometer (km) (0.6 mile (mi)) of each other;
that is, all slickspot peppergrass plants within a 1-km (0.6-mi)
distance of one another are aggregated into a single EO (Colket and
Robertson 2006, in litt., pp. 1-2; Kinter and Miller 2016, p. 1). In
2016, new information became available on slickspot peppergrass EO
rankings when IDFG completed a systematic assessment based on field
data collected from summer 2012 through spring 2016. IDFG used
NatureServe guidance to rank EOs based on three factors: Size,
condition, and landscape context (Kinter and Miller 2016, p. 3). We
believe that the IDFG's 2016 report now constitutes the best available
information regarding the size and quality of slickspot peppergrass
occurrences. Incorporating this new information led to the removal of
critical habitat areas associated with ten EOs that, based on a ranking
in the 2016 assessment study by IDFG, no longer meet critical habitat
criteria, as well as the addition of critical habitat areas associated
with 24 EOs and two sub-EOs that, based on their 2016 IDFG ranking,
meet critical habitat criteria.
We also used a more biologically-based GIS method for mapping
critical habitat in our revised proposal. This GIS-based method
involved mapping slickspot peppergrass EOs surrounded by 820-foot (ft)
pollinator buffers, creating polygons that include only those areas
that meet the definition of critical habitat for the species (see
Physical and Biological Features Essential to the Conservation of the
Species below). The new mapping methodology led to a reduction of
acreage proposed for critical habitat from 61,301 ac in the 2014
proposal to 42,129 ac, a 31 percent decrease.
This reopened comment period provides all interested parties with
an additional opportunity to submit written comments on this revised
proposed rule, specifically regarding the new proposed EOs that have
been included or EOs that have been removed from critical habitat based
on the best scientific data that has become available since the 2011
proposed critical habitat rule (76 FR 27184, May 10, 2011) and the 2014
revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014).
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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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. Designation also does not allow the government
or public to access private lands, nor does designation 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 Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must 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 that occur in specific occupied areas,
we focus on the specific features that are essential to
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support the life-history needs of the species, including, but not
limited to, water characteristics, soil type, geological features,
prey, vegetation, symbiotic species, or other features. A feature may
be a single habitat characteristic or a more complex combination of
habitat characteristics. Features may include habitat characteristics
that support ephemeral or dynamic habitat conditions. Features may also
be expressed in terms relating to principles of conservation biology,
such as patch size, distribution distances, and connectivity.
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. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; 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 ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools 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.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed in our 2009 listing determination (74 FR 52014, Oct.
8, 2009), there is currently no imminent threat of take attributed to
collection or vandalism identified under Factor B for this species, and
identification and mapping of critical habitat is not expected to
initiate any such threat. We determined that the present or threatened
destruction, modification, or curtailment of habitat or range is a
threat to slickspot peppergrass and that those threats in some way can
be addressed by section 7(a)(2) consultation measures. The species
occurs wholly in the jurisdiction of the United States, and we are able
to identify areas that meet the definition of critical habitat.
Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) has been met and because there are
no other circumstances the Secretary has identified for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for
slickspot peppergrass.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for slickspot
peppergrass is determinable. Our regulations at 50 CFR 424.12(a)(2)
state that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to
[[Page 44589]]
identify any area that meets the definition of ``critical habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for slickspot peppergrass.
Physical and Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkali soil
for seed germination, protective cover for migration, or susceptibility
to flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics include, but are not
limited to, space for individual and population growth and for normal
behavior; food, water, air, light, minerals, or other nutritional or
physiological requirements; cover or shelter; sites for breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
We derive the specific physical or biological features essential
for slickspot peppergrass from studies of this species' habitat,
ecology, and life history as described in the ``Critical Habitat''
section of the proposed rule published in the Federal Register on May
10, 2011 (76 FR 27184), on February 12, 2014 (79 FR 8402), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on October 8, 2009
(74 FR 52014), the listing reinstatement rule published August 17, 2016
(81 FR 55058), and our February 2020 slickspot peppergrass SSA report
(USFWS 2020).
With rare exception, slickspot peppergrass is known only to occur
in slick spot microsites scattered within the greater semiarid
sagebrush-steppe ecosystem of southwestern Idaho. Slick spots provide
habitats that are representative of the historical, geographical, and
ecological distribution of slickspot peppergrass, and provide nutrients
and water for reproduction, germination, and seed dispersal. The
restricted distribution of slickspot peppergrass is likely due to its
adaptation to the specific conditions within these slick spot habitats.
Slick spots 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 slick
spots appears to help hold moisture (Moseley 1994, p. 8), once the thin
crust dries out, the survival of slickspot peppergrass 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 slick spots have the following three
primary layers: the surface silt layer, the middle restrictive layer,
and an underlying moist clay layer. Although slick spots can appear
homogeneous on the surface, the actual depth of the silt and
restrictive layer can vary throughout the slick spot (Meyer and Allen
2005, Tables 9, 10, and 11). The top two layers (surface silt and
restrictive) of slick spots are normally very thin; the surface silt
layer varies in thickness from a 0.25 to 3 centimeters (cm) (0.1 to 1.2
inches (in)) in slick spots known to support slickspot peppergrass, 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. (1996, p. 4) describe
the smooth surface layer of slick spots 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.
Slick spot 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. 1996, pp. 11, 16). Disturbances
that alter the physical properties of slick spot soil layers, such as
deep disturbance and the addition of organic matter, may lead to
destruction and permanent loss of slick spots. Slick spot soils are
especially susceptible to mechanical disturbances when wet (Rengasamy
et al. 1984, p. 63; Seronko 2004, in litt., entire). Such disturbances
disrupt the soil layers important to slickspot peppergrass 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
slickspot peppergrass. Such crusts are commonly found in semiarid and
arid ecosystems, and are formed by living organisms, primarily
bryophytes (mosses), lichens, algae, and cyanobacteria (blue-green
algae), that bind together surface soil particles (Moseley 1994, p. 9;
Johnston 1997, p. 4). Microbiotic crusts play an important
[[Page 44590]]
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 slickspot peppergrass is found can be divided into two plant
associations, each dominated by the shrub Wyoming big sagebrush
(Artemisia tridentata ssp. wyomingensis): (1) Wyoming big sagebrush--
Thurber's needlegrass (Achnatherum thurberianum (formerly Stipa
thurberiana)); and (2) Wyoming big sagebrush--bluebunch wheatgrass
(Agropyron spicatum) habitat types. The perennial bunchgrasses
Sandberg's bluegrass (Poa secunda) and bottlebrush squirreltail
(Sitanion hysrix) are commonly found in the understory of these
habitats, and the species basin big sagebrush (Artemisia tridentata
ssp. tridentata), grey rabbitbrush (Chrysothamnus nauseosus), green
rabbitbrush (Chrysothamnus viridiflorus), strict buckwheat (Eriogonum
strictum), bitterbrush (Purshia tridentata), and little-leafed
horsebrush (Tetradymium glabrata) 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 Indian ricegrass (Achnatherum (formerly Oryzopsis)
hymenoides), common yarrow (Achillea millefolium), varileaf phacelia
(Phacelia heterophylla), Pursh's milkvetch (Astragalus purshii),
longleaf phlox (Phlox longifolia), and purple threeawn (Aristida
purpurea var. longiseta).
Slickspot peppergrass 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. 9; Robertson and Klemash 2003, p. 339; Robertson and Ulappa
2004, p. 1707; Billinge and Robertson 2008, pp. 1005-1006). Slickspot
peppergrass 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. 2006, p. 40). Known slickspot peppergrass 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 and Leavitt 2011, p. 383). 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
slickspot peppergrass 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 slickspot peppergrass has a wide array of insect pollinators,
general pollinator management practices for conservation of pollinators
should be practiced at sites designated as critical habitat. These
practices include maintaining ``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
cheatgrass, 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 slickspot peppergrass populations, we
determined that each EO should be surrounded by a minimum pollinator
use area extending 250 meters (m) (820 feet (ft)) from the periphery.
We chose this extent as a reasonable estimate of the area needed to
sustain an active pollinator community for slickspot peppergrass.
Although the species is served by a variety of pollinators, we
delineated this pollinator-use area based on one of slickspot
peppergrass'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 habitat for the pollinator community.
The areas proposed as critical habitat will ensure maintenance and
continuity of foraging habitats for insect pollinators adjacent to
occupied slick spots, 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 slickspot peppergrass 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 persistent seed bank. The seed bank is an essential feature of
slickspot peppergrass's biology because it provides the species with
resilience in the face of stochastic impacts and variation in
environmental conditions.
Summary of Essential Physical and Biological Features
Based on our current knowledge of habitat characteristics required
to sustain the species' life-history processes, we determine that the
physical or biological features of critical habitat specific to
slickspot peppergrass are:
(1) Ecologically functional microsites or ``slick spots'' that are
characterized by:
(a) High sodium and clay content, and a three-layer soil
horizonation sequence, 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
[[Page 44591]]
(b) Sparse vegetation, with introduced, invasive, nonnative plant
species cover absent or limited to low to moderate levels.
(2) Relatively intact, native Wyoming big sagebrush (Artemisia
tridentata ssp. wyomingensis) vegetation assemblages, represented by
native bunchgrasses, shrubs, and forbs, within 250 m (820 ft) of
slickspot peppergrass element occurrences to protect slick spots and
slickspot peppergrass from disturbance from wildfire, slow the invasion
of slick spots by nonnative species and native harvester ants, and
provide the habitats needed by slickspot peppergrass' pollinators.
(3) 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 slickspot peppergrass to occur, pollinators must be able to move
freely between slick spots. Alternative pollen and nectar sources
(other plant species within the surrounding sagebrush vegetation) are
needed to support pollinators during times when slickspot peppergrass
is not flowering, when distances between slick spots are large, and in
years when slickspot peppergrass 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 slick spots in the surrounding sagebrush-steppe
vegetation, both in the ground and within the vegetation.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
A detailed discussion of the threats affecting the physical and
biological features essential to the conservation of slickspot
peppergrass, 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 2016 final rule
reinstating threatened status for the species under the Act (81 FR
55058, Aug. 17, 2016), and in the recently completed SSA report (USFWS
2020, pp. 59-83, 85-103). The primary threats to the physical and
biological features for slickspot peppergrass include the following
direct and indirect effects: the current wildfire regime (i.e.,
increasing frequency, size, and duration), invasive, nonnative plant
species (for example, cheatgrass), and habitat loss and fragmentation
due to agricultural and urban development. One of the indirect threats
experienced by slickspot peppergrass 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 grasslands. Livestock pose a threat to slickspot peppergrass,
primarily through mechanical damage to individual plants and slick spot
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.
Special management to protect the proposed critical habitat areas
and the features essential to the conservation of slickspot peppergrass
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 by providing a
rapid response or mutual support agreement for wildfire control.
Special management to protect the features essential to the
conservation of slickspot peppergrass in the areas proposed as critical
habitat from the effects of invasive, nonnative unseeded plant species
and seeded nonnative plants (also referred to as ``highly competitive
nonnative seeded plants'' (USFWS 2020, p. 68)) 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 and native
species restoration, (4) preventing or restricting the establishment of
nonnative plant species, (5) washing vehicles prior to travel into
areas containing slickspot peppergrass, and (6) reducing the likelihood
of wildfires.
Special management to protect the features essential to the
conservation of slickspot peppergrass 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 and land use plans contain numerous
measures to avoid, mitigate, and monitor the effects of livestock use
on slickspot peppergrass. Livestock-grazing conservation measures
implemented through the State of Idaho CCA; State of Idaho et al. 2006,
in litt., pp. 31-61) and the Mountain Home Air Force Base Integrated
Natural Resources Management Plan (INRMP; Air Force 2017, p. 192) apply
to all Federal and State-managed lands within the occupied range of
slickspot peppergrass (approximately 96 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 slick spots during
wet periods, constructing fences, or potentially modifying current
livestock use. We recognize the potential for negative impacts to
slickspot peppergrass populations and slick spots 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 slickspot peppergrass. We encourage the continued
implementation of conservation measures and associated monitoring to
ensure potential impacts of livestock trampling to slickspot
peppergrass are avoided or minimized.
Special management to protect the features essential to the
conservation of slickspot peppergrass 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.
Special management to protect the features essential to the
conservation of slickspot peppergrass in the areas proposed as critical
habitat from the effects of Owyhee harvester ant seed
[[Page 44592]]
predation may include the following: (1) Protecting remnant blocks of
native vegetation that include shrubs, (2) educating the public about
wildfire, (3) supporting research and funding for nonnative plant
species control and native shrub restoration, and (4) reducing the
likelihood of wildfires.
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of slickspot peppergrass. 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
slickspot peppergrass. 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 and Methodology Used to Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not currently proposing to
designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the definition of critical habitat.
We based our criteria for the identification of critical habitat
units on IDFG's systematic assessment of on field data collected from
summer 2012 through spring 2016. In the case of slickspot peppergrass,
EOs are groups of slickspot peppergrass plants that all occur within 1
km (0.6 mi) of each other; that is, all slickspot peppergrass plants
within a 1-km (0.6-mi) distance of one another are aggregated into a
single EO (Colket and Robertson 2006, in litt., pp. 1-2; Kinter and
Miller 2016, p. 1). The IDFG used NatureServe guidance to rank EOs
based on three factors: size, condition, and landscape context (Kinter
and Miller 2016, p. 3). Each EO for slickspot peppergrass is given a
ranking of A, B, C, D, E, F, H, or X by the INHP; higher rankings (the
highest rank is A) indicate sites with greater habitat quality and
larger population sizes, which we infer are more likely to persist and
sustain the species. Rankings of B, BC, C, CD, and D refer to states of
decreased abundance and quality of detectable plants, native plant
community, habitat condition, and overall landscape context within 1 km
(0.6 mi) of occupied slick spots. Plant abundance and habitat quality
decrease as the rankings move from B to D, 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 slickspot peppergrass presence but for
which no additional habitat information is available. F rankings
indicate areas where slickspot peppergrass was previously found, but no
individuals were found when last visited by a qualified surveyor. Areas
ranked H indicate historical occurrences where old location information
is too vague to allow the EO to be found again. X rankings connote
extirpated occurrences due to habitat destruction associated with
development or agricultural conversion. See our 2011 proposed critical
habitat rule (76 FR 27193, May 10, 2011) for further explanation of the
ranking system.
For this rule, we included all slickspot peppergrass EOs with INHP
rankings of B, BC, C, and CD in the proposed critical habitat except
for 2 EOs that lack the PBFs essential to the conservation of the
species (see below for further discussion of these 2 EOs). Since 2006,
there have been no A- or AB-ranked EOs of slickspot peppergrass (Kinter
and Miller 2016, p. 8; Colket et al. 2006, p. 11; IDFG's Idaho Fish and
Wildlife Information System database (IDFG Database 2019)). We
considered areas with rankings of B, BC, C, and CD to provide the PBFs
essential to the conservation of the species, as they are the EOs most
likely to provide for viable populations of slickspot peppergrass that
will contribute to the conservation and recovery of the species. Each
EO provides one or more of the PBFs as described in the proposed rule.
Seventy-five EOs (24 B-ranked, 4 BC-ranked, 39 C-ranked, and 8 CD-
ranked) met our criteria for critical habitat designation as they were
identified as CD-ranked or better. We did not include sites ranked D or
lower in the critical habitat designation due to the poor condition of
the habitat within these sites, the lower viability of the small
slickspot peppergrass populations remaining at such sites, and the
fragmented nature of the surrounding landscape.
Two CD-ranked EOs (EO 23 and EO 57) are not considered for critical
habitat designation as the PBFs essential to the conservation of the
species are not present in these two EOs. The most recent IDFG
assessment surveys found that these two EOs are dominated by invasive
nonnative plants, and associated IDFG survey maps showed no slick spot
microsites located within these EOs. Furthermore, slick spot microsites
observed in the vicinity of EO 57 were described as essentially
invisible due to high cheatgrass or forage kochia (Kochia prostrata)
cover (IDFG 2016, EO 57 Rare Plant Observation Form). Increased cover
of cheatgrass, an invasive nonnative annual grass species, is
associated with reduced abundance of slickspot peppergrass (Sullivan
and Nations 2009, pp. 109-112; Bond 2017, p, 12). Forage kochia, a
highly competitive nonnative seeded species, can dominate slick spot
microsites and has been documented to displace slickspot peppergrass
(Debolt 2002, in litt., entire; Colket 2009, pp. 16, 22, 130; Gray
2011, pp. 67-68; Kinter et al. 2014, p. 13). Therefore, we dropped
these two CD-ranked EOs from consideration for critical habitat
designation.
The total number of EOs (75 EOs) included in this revision reflects
the merging of two C-ranked EOs (EOs 19 and 41) into B-ranked EO 18.
Note that EOs 19 and 41 were distinct when IDFG began their EO
assessment study, and have since been merged with EO 18 (Kinter and
Miller 2016, p. 49). IDFG retained these two EOs as distinct throughout
their study for consistency across their field notes, data, photos,
maps, and tables. Thus, IDFG's EO assessment report shows a total of 41
C-ranked EOs (Kinter and Miller 2016, pp. 62-65), in contrast to the 39
C-ranked EOs described here.
Since our 2014 revised critical habitat proposal (79 FR 8402, Feb.
12, 2014), ten EOs decreased in ranking (now ranked D), so they no
longer meet our critical habitat criteria; these EOs have been removed
from this revised critical habitat proposal. Twenty-two EOs and two
sub-EOs (sub-EOs are discrete patches or subpopulations within a larger
EO as described by NatureServe 2002) had improved rankings (now ranked
CD or higher) that resulted in their inclusion in this revised critical
habitat proposal. Kinter and Miller (2016, p. 46) indicated that, while
some of the improved ranks may be due to positive changes in the
assigned values for EO size, condition, and/or landscape context, it
should be noted that the previous assessment (Colket et al. 2006,
entire) evaluated some EOs based on a field visit to only part of the
EO, and other EOs were evaluated based on reports in the INHP database
at that
[[Page 44593]]
time. For their 2016 EO assessment study, IDFG conducted intensive
field assessments across entire EOs whenever possible to inform the EO-
ranking assessment process. For example, searching a larger portion of
the EO could result in additional plants being found and a larger value
for the `EO size' rank factor, which would result in an 'improved' EO
rank (Kinter and Miller 2016, p. 49). In addition, 30 EOs that
previously lacked sufficient information to be ranked as A through D in
2006 were assigned new rankings in 2016 (Kinter and Miller 2016, p. i);
some of these newly ranked EOs meet our critical habitat designation
criteria.
Table 1 identifies each EO we are proposing to remove from, or
incorporate into, this critical habitat proposal; their rankings used
in our 2014 revised critical habitat proposal (79 FR 8404, Feb. 12,
2014); and their current rankings as described in IDFG's 2016 EO
assessment report (Kinter and Miller 2016, Table 5).
Table 1--Proposed Addition or Removal of Slickspot Peppergrass Critical Habitat Areas Based on 2016 Element
Occurrence Assessments
----------------------------------------------------------------------------------------------------------------
EO ranking used in 2014 revised critical 2016 EO
Critical habitat unit or subunit name EO No. habitat proposal ranking
----------------------------------------------------------------------------------------------------------------
Unit 1--Payette County
Proposed Additions................ EO 69 D....................................... C
Proposed Removals................. .............. ........................................ ..............
Unit 2--Ada County--Subunit 2a
Proposed Additions................ EO 36 D....................................... C
Proposed Removals................. EO 108 BC...................................... D
Unit 2--Ada County--Subunit 2b
Proposed Additions................ EO 43 D....................................... CD
EO 58 D?...................................... CD
Proposed Removals................. .............. ........................................ ..............
Unit 2--Ada County--Subunit 2c
Proposed Additions................ EO 49 F....................................... C
EO 102 D....................................... C
Proposed Removals................. EO 22 C....................................... D
Unit 2--Ada County--Subunit 2d
Proposed Additions................ EO 28 D....................................... C
EO 119 Not ranked.............................. CD
Proposed Removals................. .............. ........................................ ..............
Unit 3--Elmore County--Subunit 3a
Proposed Additions................ EO 15 D....................................... C
Proposed Removals................. EO 31 C....................................... D
EO 112 C....................................... D
Unit 3--Elmore County--Subunit 3b
Proposed Additions................ EO 121 (previously unknown EO discovered in C
August 2014).
Proposed Removals................. EO 51 BC...................................... D
EO 62 C....................................... D
EO 113 C....................................... D
EO 117 C....................................... D
Unit 3--Elmore County--Subunit 3c
Proposed Additions................ EO 63 D....................................... C
EO 106 Not ranked.............................. CD
Proposed Removals................. .............. ........................................ ..............
Unit 4--Owyhee County
Proposed Additions................ EO 73 D....................................... CD
EO 75 F....................................... B
EO 78 F....................................... C
EO 79 F....................................... C
EO 81 E....................................... BC
EO 83 E....................................... B
EO 87 E....................................... C
EO 90 E....................................... C
EO 91 E....................................... CD
EO 94 E....................................... C
sub-EO 701 D....................................... C
sub-EO 703 D....................................... C
Proposed Removals................. EO 80 B....................................... D
EO 95 C....................................... D
----------------------------------------------------------------------------------------------------------------
Note: The ``?'' qualifier is used with the most appropriate rank if there is incomplete information on the EO
size, condition, and/or landscape context factors.
Critical habitat unit boundaries for Subunits 2a, 2b, 2c, 3a, 3b,
and 3c and Unit 4 were revised to incorporate critical habitat areas
associated with eight EOs (EOs 15, 36, 49, 58, 63, 73, 106, and 121).
Critical habitat areas associated with these eight EOs are located
wholly or partially outside of critical habitat unit boundaries
[[Page 44594]]
described in the 2011 proposed critical habitat rule (76 FR 27194-
27198, May 10, 2011) and the 2014 revised proposed critical habitat
rule (79 FR 8404, Feb. 12, 2014). While the critical habitat unit
boundaries for Subunits 2a, 2b, 2c, 3a, 3b, and 3c and Unit 4 have been
revised, the area currently proposed as critical habitat within these
unit boundaries has decreased from our 2014 revised critical habitat
proposal (79 FR 8402, Feb. 12, 2014).
As in the 2011 proposed critical habitat rule (76 FR 27184, May 10,
2011) and the 2014 revised proposed critical habitat rule (79 FR 8402,
Feb. 12, 2014), all lands we are proposing for designation as critical
habitat are currently occupied by slickspot peppergrass and contain
physical and biological features essential to the conservation of the
species that may require special management considerations or
protection. See the Proposed Critical Habitat Designation section of
the 2011 proposed critical habitat rule (76 FR 27194-27198, May 10,
2011) for more information.
In the 2009 final listing rule (74 FR 52014, Oct. 8, 2009), we
described the total area of known EOs (that is, area covered by the EOs
themselves) as being approximately 6,500 ha (16,000 ac). This area
reflects only the immediate known locations of individuals of the
plant, as recognized in the IDFG Database as of 2009, and is a small
portion of the overall geographic range of the species. In the 2011
proposed critical habitat rule, we described in detail the criteria
used to identify critical habitat, including a 250-m (820-ft) buffer
around EO polygons to provide sufficient area for pollinator support
and to minimize disturbance to the plant's habitat (76 FR 27193-27194,
May 10, 2011). With the proposed addition and removal of EOs associated
with the 2016 EO rankings, the total area now proposed for designation
as critical habitat is 17,049 ha (42,129 ac), which represents a 31
percent decrease from the total area (24,808 ha (61,301 ac)) of our
2014 revised critical habitat proposal (79 FR 8402, Feb. 12, 2014).
For this revision, we relied on GIS-based location information
(polygons) that more precisely maps areas that meet the biological
definition of critical habitat than did our previous mapping
methodology, which used the Public Land Survey System Quarter-Quarter
section method. This GIS-based method involves delineation of A-
through CD-ranked slickspot peppergrass EOs surrounded by 250-m (820-
ft) pollinator buffers, creating polygons that include only those areas
that meet our definition of critical habitat for the species. In
contrast, critical habitat maps in 2011 and 2014 were created by
selecting all Quarter-Quarter sections that intersected with A- through
CD-ranked EOs or their surrounding 250-m (820-ft) pollinator buffers.
The use of Quarter-Quarter sections, which represent land survey
boundaries rather than biologically based boundaries, resulted in large
areas outside of the GIS-generated polygons being included as proposed
critical habitat in the 2011 proposed critical habitat rule (76 FR
27184, May 10, 2011) and the 2014 revised proposed critical habitat
rule (79 FR 8402, Feb. 12, 2014). Use of GIS-based information
represents a more precise method of delineating critical habitat that
does not include extraneous areas.
The use of A- through CD-ranked EO polygons and their surrounding
250-m (820-ft) pollinator buffers to create a more biologically sound
critical habitat designation method is feasible, and is consistent with
current Service regulations (77 FR 25611, May 1, 2012; 81 FR 7414, Feb.
11, 2016; 84 FR 45020, August 27, 2019) as well as with other recent
Service critical habitat rules (e.g., White Bluffs bladderpod (78 FR
76995, Dec. 20, 2013), Oregon spotted frog (81 FR 29336, May 11,
2016)). In addition, the State of Idaho provided comments in 2011
indicating that use of the Quarter-Quarter methodology for critical
habitat designation resulted in more area than was biologically
required for the species. One commenter also indicated that the maps
based on the Quarter-Quarter critical habitat delineation methodology
did not relate to the ``essential elements'' necessary to conserve
slickspot peppergrass. We agree with these commenters, and because
critical habitat regulations changed in 2012 to facilitate use of GIS-
based polygons for critical habitat mapping (77 FR 25611, May 1, 2012),
we used the GIS-based polygon method for our current proposed critical
habitat revision as described herein.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features essential for slickspot peppergrass.
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
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.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Four units and seven subunits are proposed for designation
based on one or more of the physical or biological features being
present to support slickspot peppergrass's life-history processes. All
units and subunits contain all of the identified physical or biological
features and support multiple life-history processes.
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 under Proposed Regulation Promulgation. These are new
maps of the critical habitat units that have changed since the 2011
proposed critical habitat rule (76 FR 27184, May 10, 2011) and the 2014
revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014). 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, as well
as maps illustrating the changes from the previously proposed unit
boundaries, available to the public on http://www.regulations.gov at
Docket No. FWS-R1-ES-2010-0071 or at http://www.fws.gov/idaho. As noted
above, all four units and associated subunits contain additional areas
we determined meet our definition of critical habitat. Similarly,
critical habitat Units 2 (Subunits 2a and 2c), 3 (Subunits 3a and 3b),
and 4 had some areas removed from consideration as critical habitat
because, based on 2016 EO assessments, these areas no longer meet our
criteria for critical habitat designation.
Revised Proposed Critical Habitat Designation
We are proposing four units as critical habitat for slickspot
peppergrass. The critical habitat areas we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for slickspot peppergrass. The
[[Page 44595]]
four areas we propose as critical habitat are the: (1) Payette County
Unit, (2) Ada County Unit, (3) Elmore County Unit, and (4) Owyhee
County Unit. The approximate areas and land ownership of each proposed
critical habitat unit and associated subunits, if any, are shown in
Table 2.
Because of our use of GIS-based critical habitat polygon
methodology, rather than the Public Land Survey System Quarter-Quarter
section method, the total area proposed for critical habitat
designation is reduced by about 31 percent, from 24,808 ha (61,301 ac)
in 2014 to the currently proposed 17,049 ha (42,129 ac). This reduction
is directly related to focusing the areas proposed for designation to
specific EOs and their surrounding pollinator buffers, rather than to
the land survey boundaries associated with use of the Quarter-Quarter
sections method for critical habitat mapping, which resulted in
inclusion of large areas that do not necessarily meet our definition of
critical habitat for the species. The current revised critical habitat
extends across the known range of the species, and will continue to
provide the PBFs essential to the conservation of the species. The
reduced area of the current revised critical habitat proposal is the
result of increased mapping precision and includes all occupied
locations (A- through CD- ranked EOs and their surrounding 250-m
pollinator buffers) where PBFs currently occur.
Based on the new EO assessment information and the use of a GIS-
based methodology for critical habitat mapping, we have updated the
previous proposed critical habitat maps. This update results in a
proposal to designate a total of 17,049 ha (42,129 ac) of critical
habitat for slickspot peppergrass in four units in Payette, Gem, Ada,
Elmore, and Owyhee Counties in Idaho. We are proposing no new units;
however, the boundaries of six subunits and one unit (subunits 2a, 2b,
2c, 3a, 3b, and 3c and Unit 4) have been revised to include additional
areas that meet our critical habitat criteria. The areas currently
proposed for critical habitat include 14,327 ha (35,403 ac) of U.S.
Bureau of Land Management (BLM) lands; 119 ha (294 ac) of Bureau of
Reclamation (BOR) lands; 1,200 ha (2,965 ac) of State lands; 281 ha
(694 ac) of municipal lands; and 1,122 ha (2,773 ac) of private lands
(areas do not add up to precisely 17,049 ha (42,129 ac) due to
rounding). The approximate area totals for this revised critical
habitat proposal by unit, subunit, and landownership category are shown
in Table 2.
Table 2--Revised Proposed Critical Habitat Units and Area (Hectares (Acres)) by Land Ownership for Slickspot Peppergrass
[Note: Area estimates reflect the total area of all proposed critical habitat polygons located within individual critical habitat unit or subunit
boundaries. Area estimates for both the current revised critical habitat proposal and the 2014 revised proposed critical habitat rule (79 FR 8404-8405;
Feb. 12, 2014) are shown for comparison. Area sizes may not sum due to rounding.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal ha (ac) State ha (ac) Municipal (county and Private ha (ac) Total ha (ac)
------------------------------------------------ city) ha (ac) -----------------------------------------------
Critical habitat unit or --------------------------
subunit Current 2014 Current 2014 Current 2014 Current 2014 Current 2014
revision revision revision revision revision revision revision revision revision revision
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1--Payette County Total.. 268 273 0 0 0 0 19 16 287 289
(664) (675) (0) (0) (0) (0) (46) (40) (710) (715)
Unit 2--Ada County Total...... 4,669 5,984 847 1,182 281 414 529 674 6,325 8,254
(11,536) (14,789) (2,092) (2,921) (694) (1,023) (1,307) (1,663) (15,628) (20,396)
Subunit 2a.................... 335 660 0 0 215 338 329 291 879 1,289
(828) (1,632) (0) (0) (531) (835) (814) (719) (2,173) (3,186)
Subunit 2b.................... 3,075 3,802 69 114 0 0 0.2 115 3,144 4,031
(7,598) (9,396) (170) (281) (0) (0) (0.4) (283) (7,768) (9,960)
Subunit 2c.................... 438 512 49 98 66 (163) 76 144 235 697 921
(1,081) (1,265) (122) (241) (188) (357) (580) (1,723) (2,274)
Subunit 2d.................... 821 1,010 728 970 0 0 55 33 1,604 2,013
(2,029) (2,496) (1,800) (2,399) (0) (0) (136) (81) (3,965) (4,977)
Unit 3--Elmore County Total... 2,899 3,933 75 97 0.1 0 575 419 3,549 4,449
(7,165) (9,725) (185) (239) (0.3) (0) (1,420) (1,035) (8,771) (10,999)
Subunit 3a.................... 725 760 0.6 0 0.1 0 280 241 1,007 1,001
(1,793) (1,878) (1) (0) (0.3) (0) (693) (596) (2,488) (2,474)
Subunit 3b.................... 449 1,044 74 97 0 0 66 49 589 1,190
(1,108) (2,579) (184) (239) (0) (0) (163) (120) (1,455) (2,938)
Subunit 3c.................... 1,725 2,132 0 0 0 0 228 129 1,954 2,261
(4,264) (5,268) (0) (0) (0) (0) (564) (319) (4,828) (5,587)
Unit 4--Owyhee County Total... 6,609 11,213 278 600 0 0 0 0 6,888 11,813
(16,332) (27,709) (688) (1,482) (0) (0) (0) (0) (17,020) (29,191)
Critical Habitat Unit Totals.. 14,446 21,403 1,200 1,879 281 414 1,122 1,109 17,049 24,808
(35,697) (52,898) (2,965) (4,642) (694) (1,023) (2773) (2,738) (42,129) (61,301)
--------------------------------------------------------------------------------------------------------------------------------------------------------
All critical habitat units and subunits have been revised from our
2011 proposed critical habitat rule (76 FR 27184, May 10, 2011) and the
2014 revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014)
to include only those areas that currently meet our critical habitat
criteria; addition and removal of critical habitat areas associated
with 2016 EO assessments are shown in Table 1. This revised critical
habitat proposal also varies from the 2011 proposed critical habitat
rule (76 FR 27184, May 10, 2011) and the 2014 revised proposed critical
habitat rule (79 FR 8402, Feb. 12, 2014) by including the expansion of
EO 18 due to discovery of additional subpopulations and the subsequent
merging of EOs 19 and 41 into EO 18 (IDFG Database 2016, EO 18) and a
reduction in size of EO 64 associated with a mapping error (Kinter and
Miller 2016, p. 9).
We present brief descriptions of all proposed critical habitat
units, identify the EOs included in each, and provide the reasons why
they meet the definition of critical habitat for slickspot peppergrass,
below. Information regarding species abundance, vegetation community,
conservation measures, and threats for each individual EO is
[[Page 44596]]
available in IDFG's 2016 EO Assessment report (Kinter and Miller 2016,
entire).
Unit 1: Payette County
Unit 1 (Payette County Unit) consists of 287 ha (710 ac) located
within portions of Payette and Gem counties. The northern boundary of
Unit 1 is approximately 7.0 km (4.3 mi) south of New Plymouth, Idaho.
Currently, 268 ha (664 ac) are federally managed by the BLM Four Rivers
Field Office area, and 19 ha (46 ac) are privately owned. This unit is
composed of five slickspot peppergrass EOs: 66, 68, 69, 70, and 114,
all of which were occupied at the time of species listing. Unit 1
critical habitat polygons contain all PBFs: Slick spot microsites,
suitable vegetation composition and structure, sufficient habitat
components to support insect pollinators, and insect pollinators to
allow for sufficient fruit and seed production. Unit 1 is important to
the conservation of the species because it contains the northernmost
occurrences for slickspot peppergrass and potentially has the highest
numbers of individual plants. This unit helps to maintain the
geographical range of the species and provide opportunity for
population growth. Unit 1 also provides a core population of the
species. We consider a core population to be an EO or sub-EO that has
been assessed as A- or B-ranked, which NatureServe describes as having
excellent or good estimated viability (Kinter and Miller 2016, p. 7).
In Unit 1, special management is required to address the threats posed
by the current wildfire regime, invasive nonnative plant species,
incompatible livestock use, and residential and agricultural
development. These threats are being addressed or coordinated with our
partners and landowners, including BLM and BLM livestock permittees, to
implement needed actions for species recovery.
Unit 2: Ada County
Unit 2 (Ada County Unit) consists of 6,325 ha (15,628 ac) divided
into four subunits: 2a, 2b, 2c, and 2d. Approximately 4,669 ha (11,536
ac) of this unit are federally managed, of which 4,634 ha (11,450 ac)
are managed by the BLM and 35 ha (86 ac) are managed by the BOR, 847 ha
(2,092 ac) are managed by the State of Idaho, 210 ha (419 ac) are
managed by Ada County, 66 ha (163 ac) are managed by the City of Boise,
5 ha (11 ac) are managed by the City of Eagle, and 529 ha (1,307 ac)
are on private lands. This unit is composed of 24 slickspot peppergrass
EOs split among the 4 subunits. All subunits contain the PBFs essential
for the conservation of the species, as described in more detail below.
This unit is important to the conservation of slickspot peppergrass
because it contains a large remaining intact area of sagebrush-steppe
habitat that has experienced little impact from wildfire.
Subunit 2a
Subunit 2a contains the city of Eagle, Idaho, and the southern
boundary of the subunit is approximately 1.8 km (1.1 mi) northwest of
Boise, Idaho. It is composed of seven EOs: 36, 38, 52, 65, 76, 107, and
118, all of which were occupied at the time of species listing. This
subunit contains the Ada County Landfill Complex (Cole 2008, entire).
Approximately 335 ha (828 ac) of subunit 2a are federally managed by
BLM, 210 ha (419 ac) are municipal lands managed by Ada County, 5 ha
(11 ac) are municipal lands managed by the City of Eagle, and 329 ha
(814 ac) are privately owned. Subunit 2a is important to the
conservation of the species because it contains several large
populations of slickspot peppergrass in the Eagle and Boise Foothills
area. This subunit helps to maintain the geographical range of the
species and provide opportunity for population growth. Subunit 2a also
provides a core population of the species. Subunit 2a critical habitat
polygons contain all PBFs: Slick spot microsites, suitable vegetation
composition and structure, sufficient habitat components to support
insect pollinators, and insect pollinators to allow for sufficient
fruit and seed production. In Subunit 2a, special management is
required to address the threats posed by the current wildfire regime,
invasive nonnative plant species, incompatible livestock use, and
residential and agricultural development. A portion of the subunit has
also been impacted by human recreation associated with the construction
of authorized and unauthorized trails for mountain biking and hiking
(some slick spots have already been impacted).
Subunit 2b
The northern boundary of Subunit 2b is approximately 3.2 km (2.0
mi) south of Kuna, Idaho. Subunit 2b is composed of five EOs: 18, 24,
25, 43, and 58, all of which were occupied at the time of species
listing. Approximately 3,075 ha (7,598 ac) of this subunit are
federally managed by BLM, 69 ha (170 ac) are managed by the State of
Idaho, and 0.2 ha (0.4 ac) are privately owned. BLM lands in Subunit 2b
are within the Morley Nelson Snake River Birds of Prey National
Conservation Area. Subunit 2b is important to the conservation of the
species because it contains EO 18, which supports high numbers of
individual plants. This subunit helps to maintain the geographical
range of the species and provide opportunity for population growth.
Subunit 2b also provides a core population of the species. Although
impacted by past fires, Subunit 2b critical habitat polygons contain
all PBFs: Slick spot microsites, suitable vegetation composition and
structure, sufficient habitat components to support insect pollinators,
and insect pollinators to allow for sufficient fruit and seed
production. In Subunit 2b, special management is required to address
the threats posed by the current wildfire regime, invasive nonnative
plant species, incompatible livestock use, and residential and
agricultural development. These threats are being addressed or
coordinated with our partners and landowners, including BLM and BLM
livestock permittees, to implement needed actions for species recovery.
Subunit 2c
The northern boundary of Subunit 2c is approximately 6.0 km (3.7
mi) southwest of Boise, Idaho. It is composed of five EOs: 32, 48, 49,
64, and 102, all of which were occupied at the time of species listing.
Subunit 2c comprises primarily BLM lands within the Four Rivers Field
Office area, private lands, and municipal lands associated with the
Boise Airport. Approximately 438 ha (1,081 ac) of this subunit are
federally managed by BLM, 49 ha (122 ac) are managed by the State of
Idaho, 66 ha (163 ac) are municipal lands managed by the City of Boise,
and 144 ha (357 ac) are privately owned. Subunit 2c is important to the
conservation of the species because it provides for connectivity
between species populations at the eastern and western portions of the
species' range. This subunit helps to maintain the geographical range
of the species and provide opportunity for population growth. Subunit
2c also provides a core population of the species. Subunit 2c critical
habitat polygons contain all PBFs: Slick spot microsites, suitable
vegetation composition and structure, sufficient habitat components to
support insect pollinators, and insect pollinators to allow for
sufficient fruit and seed production. In Subunit 2c, special management
is required to address the threats posed by the current wildfire
regime, invasive nonnative plant species, incompatible livestock use,
and residential and agricultural development. These threats are being
addressed or coordinated with our
[[Page 44597]]
partners and landowners, including BLM and BLM livestock permittees, to
implement needed actions for species recovery.
Subunit 2d
The northern boundary of subunit 2d is approximately 23.0 km (14.3
mi) southeast of Boise, Idaho. Subunit 2d is composed of seven EOs: 27,
28, 67, 72, 77, 104, and 119, all of which were occupied at the time of
species listing. Approximately 821 ha (2,029 ac) of this subunit are
federally managed, of which 786 ha (1,943 ac) are managed by BLM and 35
ha (86 ac) are managed by BOR, 729 ha (1,800 ac) are managed by the
State of Idaho, and 55 ha (136 ac) are privately owned. Proposed
critical habitat within this subunit abuts that portion of EO 27
located within the Idaho Army National Guard-administered Orchard
Combat Training Center (OCTC, formerly known as the Orchard Training
Area). EO 27 supports some of the most intact sagebrush steppe habitat
and some of the highest numbers of slickspot peppergrass plants
rangewide; because of the implementation of an INRMP on OCTC, we
determined in 2011 that the 4,644 ha (11,525 ac) of the OCTC that met
our definition of critical habitat were exempt from designation of
critical habitat under section 4(a)(3)(B)(i) of the Act (see Exemptions
in the 2011 proposed critical habitat rule (76 FR 27200-27201, May 10,
2011)). Through use of GIS-based critical habitat designation
methodology, we have determined that 3,455 ha (8,537 ac) within the
OCTC currently meet our definition of critical habitat; however, these
3,455 ha (8,537 ac) are exempt from critical habitat designation under
section 4(a)(3)(B)(i) of the Act (see Exemptions and Consideration of
National Security Impacts sections below).
Subunit 2d is located in part within the boundary of the BLM Morley
Nelson Snake River Birds of Prey National Conservation Area, which also
contains the Idaho Army National Guard's OCTC. Subunit 2d is important
to the conservation of the species due to its proximity to that portion
of EO 27 located primarily within the OCTC boundary. This subunit helps
to maintain the geographical range of the species and provide
opportunity for population growth. Subunit 2d also provides a core
population of the species. Subunit 2d critical habitat polygons contain
all PBFs: Slick spot microsites, suitable vegetation composition and
structure, sufficient habitat components to support insect pollinators,
and insect pollinators to allow for sufficient fruit and seed
production. In Subunit 2d, special management is required to address
the threats posed by the current wildfire regime, invasive nonnative
plant species, incompatible livestock use, and residential and
agricultural development. These threats are being addressed or
coordinated with our partners and landowners, including BLM, Idaho Army
National Guard, the State of Idaho, and BLM livestock permittees, to
implement needed actions for species recovery.
Unit 3: Elmore County
Unit 3 (Elmore County Unit) consists of 3,549 ha (8,771 ac) divided
into three subunits: 3a, 3b, and 3c. Approximately 2,900 ha (7,165 ac)
of this unit are federally managed, of which 2,815 ha (6,957 ac) are
managed by BLM and 64 ha (208 ac) are managed by BOR, 75 ha (185 ac)
are managed by the State of Idaho, and 574 ha (1,420 ac) are privately
owned. This unit is composed of 16 slickspot peppergrass EOs. All
subunits contain the PBFs essential for the conservation of the
species, as described in more detail below. Unit 3 is important to the
conservation of the species because it contains EOs with higher quality
habitat, represents a substantial portion of the species' range, and
contains several EOs with high numbers of slickspot peppergrass
individuals. Special management to address the threat posed by the
current wildfire regime, invasive nonnative plant species, incompatible
livestock use, and residential and agricultural development is required
in Unit 3.
Subunit 3a
The northern boundary of Subunit 3a is approximately 6.3 km (3.9
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: 15, 20, and 30, all of which were
occupied at the time of species listing. Approximately 726 ha (1,793
ac) of this subunit are federally managed, of which 702 ha (1,734 ac)
are managed by BLM and 24 ha (59 ac) are managed by BOR, and 281 ha
(693 ac) are privately owned. Subunit 3a is bisected by Interstate 84
and old Highway 30; past burns and associated drill-seeding of crested
wheatgrass (Agropyron cristatum) are evident in portions of the
subunit.
This subunit contains PBFs essential to the conservation of
slickspot peppergrass. Subunit 3a is important to the conservation of
the species because it contains some EOs supporting high numbers of
slickspot peppergrass plants. This subunit helps to maintain the
geographical range of the species and provide opportunity for
population growth. Subunit 3a also provides a core population of the
species. Subunit 3a critical habitat polygons contain all PBFs: Slick
spot microsites, suitable vegetation composition and structure,
sufficient habitat components to support insect pollinators, and insect
pollinators to allow for sufficient fruit and seed production. Special
management to address the threat posed by the current wildfire regime,
invasive nonnative plant species, incompatible livestock use, off-road
vehicle use, and residential and agricultural development is required
in Subunit 3a. These threats are being addressed or coordinated with
our partners and landowners, including BLM, the State of Idaho, BLM
livestock permittees, and private landowners, to implement needed
actions for species recovery.
Subunit 3b
The boundaries of Subunit 3b include the city of Mountain Home,
Idaho, while the northern boundary is approximately 55.7 km (34.6 mi)
southeast of Boise, Idaho. Subunit 3b is composed of nine EOs: 2, 21,
29, 50, 61, 115, 116, 120, and 121, all of which were occupied at the
time of species listing. Approximately 449 ha (1,109 ac) of this
subunit are federally managed, of which 421 ha (1,040 ac) are managed
by BLM and 28 ha (69 ac) are managed by BOR, 74 ha (184 ac) are managed
by the State of Idaho, and 66 ha (163 ac) are privately owned. BLM
lands within Subunit 3b are located within both the Four Rivers Field
Office area and the Morley Nelson Birds of Prey National Conservation
Area. Subunit 3b is important to the conservation of the species
because it provides connectivity between other units across the range
of the species. This subunit helps to maintain the geographical range
of the species and provide opportunity for population growth. Subunit
3b also provides a core population of the species. Subunit 3b critical
habitat polygons contain all PBFs: Slick spot microsites, suitable
vegetation composition and structure, sufficient habitat components to
support insect pollinators, and insect pollinators to allow for
sufficient fruit and seed production. Subunit 3b contained substantial
biological soil crust cover and relatively low cheatgrass cover;
however, a wildfire that occurred in the area in 2012 (USFWS 2013, p.
3) likely reduced habitat quality in the subunit. In Subunit 3b,
special management is required to address the threats posed by the
current wildfire regime, invasive nonnative plant species, incompatible
[[Page 44598]]
livestock use, and residential and agricultural development. These
threats are being addressed or coordinated with our partners and
landowners, including BLM, the State of Idaho, BLM livestock
permittees, and private landowners, to implement needed actions for
species recovery.
Subunit 3c
The southern boundary of Subunit 3c is approximately 1.6 km (1.0
mi) northeast of Hammett, Idaho, while the western boundary is 19.6 km
(12.2 mi) southeast of Mountain Home, Idaho. This subunit is composed
of four EOs: 8, 26, 63, and 106, all of which were occupied at the time
of species listing. Approximately 1,725 ha (4,264 ac) of this subunit
are federally managed, of which 1,694 ha (4,184 ac) are managed by BLM
and 32 ha (80 ac) are managed by BOR, and 228 ha (564 ac) are privately
owned. BLM lands in Subunit 3c are primarily within the Four Rivers
Field Office area. Subunit 3c is important to the conservation of the
species because it contains the northeastern-most occurrences for
slickspot peppergrass and has two EOs with large numbers of individual
plants. This subunit helps to maintain the geographical range of the
species and provide opportunity for population growth. Subunit 3c also
provides a core population of the species. Subunit 3c critical habitat
polygons contain all PBFs: Slick spot microsites, suitable vegetation
composition and structure, sufficient habitat components to support
insect pollinators, and insect pollinators to allow for sufficient
fruit and seed production. Biological soil crust cover is high in some
areas of the subunit. In Subunit 3c, special management is required to
address the threats posed by the current wildfire regime, invasive
nonnative plant species, incompatible livestock use, recreational use,
and residential and agricultural development. These threats are being
addressed or coordinated with our partners and landowners, including
BLM, the State of Idaho, BLM livestock permittees, and private
landowners, to implement needed actions for species recovery.
Unit 4: Owyhee County
Unit 4 (Owyhee County Unit) consists of 6,888 ha (17,020 ac). The
northern boundary of Unit 4 is approximately 83.8 km (52.1 mi) south of
Mountain Home, Idaho, while the eastern boundary is 52.0 km (32.3 mi)
west of Rogerson, Idaho. This unit is important to the conservation of
slickspot peppergrass because it contains the largest amount of
contiguous habitat with little fragmentation or development; it helps
maintain the geographical range of the species and provide opportunity
for population growth; and provides a core population of the species
composed of 11 of the 19 sub-EOs within the EO 16 metapopulation,
including sub-EO 704. This unit is composed of 19 EOs (EOs 73, 74, 75,
78, 79, 81, 83, 84, 85, 87, 90, 91, 92, 93, 94, 96, 97, 98, 99) and 11
sub-EOs (sub-EOs 700, 701, 702, 703, 704, 706, 712, 715, 716, 720,
725), which are components of the EO 16 metapopulation. The EO 16
metapopulation is a ``parent'' EO to all sub-EOs numbered 700 or
greater. EO 16 contains a total of 19 sub-EOs, 11 of which meet our
criteria for critical habitat designation. Each of these EOs and sub-
EOs were occupied at the time of species listing. About 6,610 ha
(16,332 ac) of this unit are federally managed by the BLM Jarbidge
Field Office, while 278 ha (688 ac) are managed by the State of Idaho.
The majority of sub-EO 704 is located within the Mountain Home Air
Force Base's Juniper Butte Range (Juniper Butte Range). We determined
in 2011 that 4,611 ha (11,393 ac) within Juniper Butte Range met our
definition of critical habitat; however, these 4,611 ha (11,393 ac)
were exempt from critical habitat designation under section
4(a)(3)(8)(i) of the Act (see Exemptions in the 2011 proposed critical
habitat rule (76 FR 27201, May 10, 2011)). Using our current GIS-based
critical habitat mapping methodology, 3,831 ha (9,466 ac) within the
Juniper Butte Range currently meet our definition of critical habitat
and are exempt from critical habitat designation under section
4(a)(3)(B)(i) of the Act (see Exemptions and Consideration of National
Security Impacts sections below).
Unit 4 critical habitat polygons contain all PBFs: Slick spot
microsites, suitable vegetation composition and structure, sufficient
habitat components to support insect pollinators, and insect
pollinators to allow for sufficient fruit and seed production. In Unit
4, special management is required to address the threats posed by the
current wildfire regime, invasive nonnative plant species, and
incompatible livestock use. These threats are being addressed or
coordinated with our partners and landowners, including BLM and BLM
livestock permittees, to implement needed actions for species recovery
(portions of Unit 4 contain past drill-seedings of crested wheatgrass
(Agropyron cristatum) and other highly competitive nonnative species).
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.
We published a final regulation with a revised definition of
destruction or adverse modification on August 27, 2019 (84 FR 44976).
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed 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 Act's
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, authorized, or carried out by a Federal agency--do not require
section 7 consultation. The Bureau of Land Management has conducted
section 7 compliance on slickspot peppergrass proposed critical habitat
since it was initially proposed in 2011.
Compliance with the requirements of section 7(a)(2) is documented
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
[[Page 44599]]
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
formal consultation under the Act on previously reviewed actions. These
requirements apply when the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law) and, subsequent to the
previous consultation, we have listed a new species or designated
critical habitat that may be affected by the Federal action, or the
action has been modified in a manner that affects the species or
critical habitat in a way not considered in the previous consultation.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed 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 violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Services may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to: Actions that
would remove a significant number of slick spot microsites, a
significant portion of remnant native sagebrush steppe habitat, or a
significant amount of pollen and nectar source plants, and actions that
would result in significant ground disturbance. Such activities could
include, but are not limited to, residential and commercial
development, infrastructure projects, and conversion to agricultural
fields. These activities could permanently eliminate or reduce the
habitat necessary for the growth and reproduction of slickspot
peppergrass.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an INRMP by November 17, 2001. An INRMP integrates
implementation of the military mission of the installation with
stewardship of the natural resources found on the base. Each INRMP
includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws. The National Defense
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the
Act to limit areas eligible for designation as critical habitat.
Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C.
1533(a)(3)(B)(i)) provides that: ``The Secretary shall not designate as
critical habitat any lands or other geographic areas owned or
controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for slickspot peppergrass to
determine if they are exempt under section 4(a)(3)(B)(i) of the Act.
The following areas are Department of Defense (DoD) lands with
completed, Service-approved INRMPs within the proposed critical habitat
designation.
Approved INRMPs
Military activities within the range of slickspot peppergrass
include ordnance-impact areas, training activities, and military
development. Military-training activities occur at, or near, four EOs:
Three at the OCTC 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
OCTC. The INRMPs provide management direction and conservation measures
to address or eliminate the effects from military-training exercises on
slickspot peppergrass and its habitat. Both the Idaho Army National
Guard (Kinter et al. 2014, p. i) and the U.S. Air Force (Conley 2018,
p. 3) conduct annual monitoring to ensure impacts to the species due to
training activities are either avoided or minimized.
Idaho Army National Guard--Orchard Combat Training Center
The Idaho Army National Guard's OCTC on the Snake River Plain has
an
[[Page 44600]]
INRMP in place that provides a conservation benefit for slickspot
peppergrass. This INRMP has been in place for this military training
facility since 1997. Because the 2013 INRMP is over 5 years old, the
OCTC is currently managed under an Operational INRMP that includes
continued implementation of all slickspot peppergrass conservation
measures from the 2013 INRMP pending completion of the OCTC INRMP
revision later in 2020 (Baun 2020, in litt., entire). The OCTC contains
7,213 ac (2,919 ha) of occupied slickspot peppergrass habitat, 7,163 ac
(2,899 ha) of which represents nearly 60 percent of the highest quality
occupied slickspot peppergrass 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 OCTC
(Sullivan and Nations 2009, p. 91).
The INRMP for the OCTC provides a framework for managing natural
resources. Conservation measures included in the INRMP avoid or
minimize impacts on slickspot peppergrass, slick spot 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 slickspot peppergrass habitat and restoring
areas damaged by wildfire. The plan specifies that the OCTC 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 (National Guard 2013, pp. 104, 107-108).
Since 1991, the OCTC, 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 slickspot peppergrass or its habitat,
with an emphasis on maintaining representation of species that were
present in presettlement times (National Guard 2013, p. 34). 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 (National Guard 2013, p.
34). In 2008, the Idaho Army National Guard also initiated maintenance
on a series of identified fuel breaks on the OCTC. These fuel breaks
are designed to act as barriers to prevent fires that might be ignited
by military training activities from spreading into adjacent slickspot
peppergrass habitat (USBLM 2008, 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 OCTC INRMP and that
conservation efforts identified in the INRMP are being actively
implemented, are effective, and will provide a benefit to slickspot
peppergrass occurring in habitats within or adjacent to the OCTC.
Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3)(B)(i) of the Act. Through use
of GIS-based critical habitat designation methodology, we have
determined that 3,455 ha (8,537 ac) within the OCTC currently meet our
definition of critical habitat; however, we are not including these
3,455 ha (8,537 ac) of habitat in this proposed critical habitat
designation because of this exemption.
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
Mountain Home Air Force Base 2017 INRMP remains active. The U.S. Air
Force manages 818 ha (2,021 ac) of occupied slickspot peppergrass
habitat within the Juniper Butte Range. Conservation measures and
implementation actions for slickspot peppergrass 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 slick
spots, and delaying livestock turnout onto the range if slick spot
microsites are saturated (Air Force 2017, pp. 183-185, 189, 191-192,
200). 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
slickspot peppergrass, 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 4,913 ha (12,141 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 (Air
Force 2017, pp. 215-218). As a result of implementing these measures,
the threat from wildfire to slickspot peppergrass associated with U.S.
Air Force training activities has been effective in reducing fires
within the Juniper Butte Range.
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 effective, and will provide a
conservation benefit to slickspot peppergrass 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. Through use of our current GIS-based
critical habitat mapping methodology, 3,831 ha (9,466 ac) within the
Juniper Butte Range currently meet our definition of critical habitat
and are exempt from critical habitat designation; however, we are not
including these 3,831 ha (9,466 ac) of habitat in this proposed
critical habitat designation because of this exemption.
We previously determined in 2011 that 4,664 ha (11,525 ac) of the
Idaho Army National Guard's OCTC and 4,611 ha (11,393 ac) of the
Mountain Home Air Force Base's Juniper Butte Range that met our
critical habitat criteria were exempt from the critical habitat
designation under section 4(a)(3)(B)(i) of the Act, based on their
development and implementation of INRMPs (76 FR 27201, May 10, 2011).
The areas determined to be exempt from critical habitat designation
under section 4(a)(3)(B)(i) of the Act have been recalculated to
incorporate our current GIS-based critical habitat mapping methodology.
For this revised proposal, 3,455 ha (8,537 ac) of the Idaho Army
National Guard's OCTC and 3,831 ha
[[Page 44601]]
(9,466 ac) of the Juniper Butte Range that met our critical habitat
criteria are exempt from the critical habitat designation (Table 3).
The acreage exempted within both INRMPs 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 slickspot peppergrass
populations from other impacts, such as wildfire or recreational use.
Table 3--Exemptions by Critical Habitat Unit Under 4(a)(3)(B)(i)
[Areas described in our 2011 proposed critical habitat rule using the Quarter-Quarter critical habitat mapping methodology are also provided for
comparison purposes]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas meeting the definition of Areas exempted in hectares (acres)
critical habitat in hectares -------------------------------------
(acres)
Critical habitat unit Specific area -------------------------------------- Current revised
Current revised proposal 2011 proposal
proposal 2011 proposal
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.......................................... Orchard Combat Training Center. 3,455 ha 4,664 ha 3,455 ha 4,664 ha
(8,537 ac) 11,525 ac (8,537 ac) 11,525 ac
4.......................................... Juniper Butte Range............ 3,831 ha 4,611 ha 3,831 ha 4,611 ha
(9,466 ac) (11,393 ac) (9,466 ac) (11,393 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless the Secretary
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 the determination to exclude a
particular area, 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.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion will not
result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction or adverse modification as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When identifying the benefits of exclusion we consider, among other
things, whether exclusion of a specific area is likely to result in
conservation or in the continuation, strengthening, or encouragement of
partnerships. In the case of slickspot peppergrass, the benefits of
critical habitat include public awareness of the presence of slickspot
peppergrass and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for the species due
to the protection from destruction or adverse modification of critical
habitat. Additionally, continued implementation of a management plan
that provides equal to or more conservation than a critical habitat
designation would reduce the benefits of including that specific area
in the critical habitat designation.
When we evaluate a management plan or conservation agreement during
our consideration of the benefits of inclusion, we assess a variety of
factors, including but not limited to, whether the plan or agreement is
finalized, how it provides for the conservation of the essential
physical or biological features, whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan or conservation agreement will be
implemented into the future, whether the conservation strategies in the
plan or agreement are likely to be effective, and whether the plan or
agreement contains a monitoring program or adaptive management to
ensure that the conservation measures are effective and can be adapted
in the future in response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will evaluate
whether certain lands in the proposed critical habitat units are
appropriate for exclusion from the final designation under section
4(b)(2) of the Act. If the analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise his discretion to exclude the lands from the final
designation.
We are considering whether to exclude private, State, and municipal
lands under section 4(b)(2) of the Act from the final critical habitat
designation for slickspot peppergrass. To inform our decision, we
specifically
[[Page 44602]]
solicit comments on the inclusion or exclusion of such areas. In the
paragraphs below, we provide information related to our consideration
of these lands for exclusion under section 4(b)(2) of the Act.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we previously prepared an analysis of the economic impacts
of the proposed critical habitat designation and related factors. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). The baseline, therefore, represents the costs of
all efforts attributable to the listing of the species under the Act
(i.e., conservation of the species and its habitat incurred regardless
of whether critical habitat is designated). The ``with critical
habitat'' scenario describes the incremental impacts associated
specifically with the designation of critical habitat for the species.
The incremental conservation efforts and associated impacts would not
be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an economic analysis.
The draft economic analysis, dated July 22, 2011, was made available
for public review and comment from October 26, 2011, through December
12, 2011 (76 FR 66250, Oct. 26, 2011). Following the close of the
comment period, the final analysis (dated March 12, 2012) of the
potential economic effects of the designation took into consideration
the public comments and any new information (IEC 2012). The final
economic analysis is available at http://www.regulations.gov under the
docket number for this rulemaking, which is FWS-R1-ES-2010-0071.
The final economic analysis concluded that critical habitat
designation would not likely affect levels of economic activity or
conservation measures being implemented within the proposed critical
habitat area. The analysis stated that the primary reason critical
habitat is unlikely to generate economic impacts beyond administrative
costs of consultation is that approximately 85.8 percent of the
proposed critical habitat is Federal land managed by the BLM, which is
a party to a binding conservation agreement established for the purpose
of slickspot peppergrass conservation; all projects and activities
occurring on these public lands within the proposed critical habitat,
including livestock management, wildfire and invasive species
management, and determining the placement of utility and transportation
rights-of-way, are already subject to section 7 consultation for
slickspot peppergrass (IEC 2012, p. ES-5). Following the application of
our revised mapping methodology, BLM administers Federal lands that
encompass approximately 84.7 percent of the current critical habitat
proposal. We consider this 1.1 percent decrease in the current
percentage of proposed critical habitat administered by BLM to be
inconsequential relative to the conclusions of the 2012 economic
analysis. Unless unforeseen changes occur to existing conservation
measures or the management of land use activities, the incremental
impacts of critical habitat designation described in the 2012 final
economic analysis would continue to be limited to additional
administrative costs of section 7 consultations for Federal agencies
(primarily BLM), associated with considering the potential for adverse
modification of critical habitat.
These costs were estimated to be $14,200 annually or $161,000 over
a 20-year period (IEC 2012, pp. ES-5, ES-6). Though costs for
consultations may have incrementally increased since 2012 (due to
inflation and other economic factors), we do not expect the revised
critical habitat to have any meaningful practical effect on
consultation costs because BLM, as the primary Federal agency that
conducts section 7 consultation on the potential effects of their
actions on the species, continues to simultaneously enter into section
7 conference regarding Federal actions that may also affect proposed
critical habitat. The BLM has indicated that any increase in cost
associated with critical habitat section 7 compliance would be limited
to increases in BLM staff costs, which have been minimal since 2012
when the economic analysis was completed, but not an increase in time
needed to conduct section 7 compliance (Kershaw 2020, pers. comm.).
Reduction in the 2020 proposed critical habitat acreage and addition of
some new critical habitat areas are not expected to increase or
decrease the number of section 7 consultations and associated costs.
The majority of critical habitat acreage reductions associated with
updated mapping methodology as well as the majority of critical habitat
expansions associated with new EOs and subEOs are located in the BLM
Jarbidge Field Office area. Most new projects in the Jarbidge Field
Office area are BLM livestock grazing permit renewals for large,
landscape-scale allotments that encompass from almost 2,833 to over
48,157 ha (7,000 to over 119,000 ac). While total critical habitat
acreage would be reduced within these large allotments, costs are not
anticipated to increase as consultation for both the species and its
critical habitat would still be completed for these upcoming BLM permit
renewals. Thus, there has been no significant increase or decrease in
BLM administrative costs for slickspot peppergrass critical habitat
section 7 compliance relative to the 2012 economic analysis, we
conclude that the 2012 economic analysis remains valid for slickspot
peppergrass proposed critical habitat.
Similarly, it remains unlikely that activities on private lands
will result in additional section 7 consultations. In our final
economic analysis, we did not anticipate additional consultation under
section 7 on non-Federal lands; however, in the case that Federal
permitting or funding is required for future projects on private lands,
consultation considering effects of the project on slickspot
peppergrass will occur and critical habitat designation will not likely
affect the outcome of these consultations (IEC 2012, p. 4-4). In the
eight years since the 2012 economic analysis, there has been a single
section 7 consultation associated with Federal permitting on private
lands
[[Page 44603]]
occupied by slickspot peppergrass. Should additional consultations
occur after the final critical habitat designation, we anticipate that
critical habitat will not likely affect the outcome of these future
consultations IEC 2012, (pp. 4-4) for the following reasons. As the
final economic analysis stated, within the non-Federal portion (14.2
percent) of the proposed critical habitat area, project proponents and
land managers are already aware of the presence of the listed slickspot
peppergrass and the need to consult for projects with a Federal nexus
(IEC 2012, pp. 4-2). We do not foresee a circumstance in which critical
habitat designation will change the outcome of future consultations,
because activities with a Federal nexus are already undertaking section
7 consultation considering impacts on slickspot peppergrass and it is
``not possible for us to differentiate any measures implemented solely
to minimize impacts to individual [plant]s from those implemented to
minimize impacts to the critical habitat'' (IEC 2012, p. 4-2). The
changes in the area designated as critical habitat between the 2011
proposed rule (76 FR 27184, May 10, 2011) and this revised proposed
rule are not anticipated to lead to an outcome different than what was
anticipated in our 2012 analysis. Therefore, the conclusions of the
2012 final economic analysis apply to this revision of our critical
habitat proposal.
Our current proposal includes a net increase of 13 ha (35 ac) of
additional private lands proposed for critical habitat designation
relative to our 2014 proposal (79 FR 8402, Feb. 12, 2014). We believe
that the relatively small amount of occupied area on private lands
proposed here (1,122 ha (2,773 ac)) is not likely to alter the results
of the existing economic analysis of the designation because section 7
consultation for activities on private lands will continue to be
unlikely. The current overall total area of this revised proposed
critical habitat on Federal lands has been reduced by about 31 percent
from the total acreage in the 2014 revised proposed critical habitat
rule (79 FR 8402, Feb. 12, 2014); the majority of this reduced Federal
land area is located in Unit 4.
All projects and activities occurring on public lands within
proposed critical habitat are already subject to section 7 consultation
for the species. However, due to the relatively large areas encompassed
by BLM actions within Unit 4 (livestock management, wildfire and
invasive species management, and placement of utility and
transportation rights-of-way), a similar number of BLM projects will
continue to require section 7 consultation on effects to both critical
habitat and the species despite the reduction of BLM proposed critical
habitat acres in Unit 4. We conclude that the incremental impacts of
our current revised proposed designation of critical habitat for
slickspot peppergrass will similarly be limited to the additional
administrative costs of section 7 consultations associated with
considering the potential for adverse modification of critical habitat,
and that administrative costs of section 7 consultations will not
change from levels described in the 2012 final economic analysis.
The final economic analysis is available at http://www.regulations.gov under the docket number for this rulemaking, which
is FWS-R1-ES-2010-0071. We encourage submission of additional economic
impact information through the public comment period, as such
information may identify areas that may be considered for exclusion
from the final critical habitat designation under section 4(b)(2) of
the Act (see ADDRESSES). During the development of a final designation,
we will consider the information presented in the DEA and an additional
information on economic impacts received during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under authority of section
4(b)(2) and our implementing regulations at 50 CFR 424.19.
Consideration of National Security Impacts
Under section 4(b)(2) of the Act, we consider the impact to
national security that may result from a designation of critical
habitat. In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for slickspot
peppergrass are not owned, managed, or utilized by the DoD or the
Department of Homeland Security, except for those exempted above under
section 4(a)(3) of the Act. Therefore, we anticipate no impact on
national security or homeland security. However, during the development
of a final designation, we will consider any additional information
received through the public comment period on the impacts of the
proposed designation on national security or homeland security to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 424.19.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans covering the species in the area such as
HCPs, SHAs, or CCAAs, or whether there are non-permitted conservation
agreements and partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. In addition, we look at the
existence of tribal conservation plans and partnerships and consider
the government-to-government relationship of the United States with
tribal entities; in this instance, the proposed designation does not
include tribal lands or trust resources. We also consider any social
impacts that might occur because of the designation.
We have determined that there are currently no HCPs, SHAs, or CCAAs
in the proposed critical habitat area. Therefore, we are not proposing
the exclusion of any areas in the proposed critical habitat for
slickspot peppergrass on the basis of permitted plans. However, during
the development of a final designation, we will consider any additional
information received through the public comment period on the whether
any specific areas should be excluded from the final critical habitat
designation under authority of section 4(b)(2) and our implementing
regulations at 50 CFR 424.19 on the basis of permitted plans.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant
[[Page 44604]]
partnerships when we undertake a discretionary section 4(b)(2)
exclusion analysis. A non-exhaustive list of factors that we will
consider for non-permitted plans or agreements is shown below. These
factors are not required elements of plans or agreements, and all items
may not apply to every plan or agreement.
(1) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species;
(2) Whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan or
agreement will be implemented;
(3) The demonstrated implementation and success of the chosen
conservation measures;
(4) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership;
(5) The extent of public participation in the development of the
conservation plan;
(6) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate;
(7) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321
et seq.) compliance was required; and
(8) Whether the plan or agreement contains a monitoring program and
adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
2006 Candidate Conservation Agreement (2006 CCA)--In response to
our 2011 proposed critical habitat rule (76 FR 27184, May 10, 2011), we
received a request from the State of Idaho to exclude State lands
covered by their CCA. The BLM, State of Idaho Governor's Office of
Species Conservation, IDFG, Idaho Department of Lands, Idaho National
Guard, and several nongovernmental cooperators signed a CCA in 2003
(State of Idaho et al. 2006, in litt.) and renewed the plan in 2006
(State of Idaho et al. 2006, in litt.). The CCA as signed in 2006
included rangewide efforts that were intended to address the need to
maintain and enhance slickspot peppergrass habitat; reduce intensity,
frequency, and size of natural- and human-caused wildfires; minimize
loss of habitat associated with wildfire-suppression activities; reduce
the potential of nonnative plant species invasion from wildfire;
minimize habitat loss associated with rehabilitation and restoration
techniques; minimize the establishment of invasive nonnative species;
minimize habitat loss or degradation from off-highway vehicle use;
mitigate the negative effects of military training and other associated
activities on the OCTC; and minimize the impact of ground disturbances
caused by livestock penetrating trampling when soils are saturated
(State of Idaho et al. 2006, in litt., p. 3).
We receive annual reports from the BLM regarding their
implementation of CCA conservation measures. In addition, annual IDFG
Habitat Integrity and Population monitoring includes collection of
habitat condition and management threshold data, which are used to
inform potential adaptive management actions within EOs. We will
consider the most recent information regarding implementation and
effectiveness of the 2006 CCA conservation measures from BLM, IDFG, and
other sources, including whether any new measures have been added.
Therefore, we request information with respect to the ongoing
implementation of the CCA and the performance or completion of any
additional activities that provide for the conservation of slickspot
peppergrass under the CCA. Based on current information and any
information submitted during the comment period, we will consider
whether to exclude State lands that are covered by the CCA under
section 4(b)(2).
Private Lands and Memoranda of Agreements (MOAs)--In our 2011
proposed critical habitat rule (76 FR 27184, May 10, 2011), we also
considered applying section 4(b)(2) of the Act to currently occupied
private lands, which represented only about 5 percent of the overall
2011 proposed designation (76 FR 27202, May 10, 2011) (currently,
private lands constitute about 7 percent of our revised total proposed
designation). In our 2011 proposal, we requested specific information
concerning any current signed conservation or management plans on
private lands that we should consider for exclusion from the
designation under section 4(b)(2). We received comments from the State
of Idaho and private landowners in response, requesting exclusion of
private lands. However, to date, we have not received any information
pertaining to current plans covering private lands that we could use in
the mandatory weighing and balancing analysis of the benefits of
inclusion versus the benefits of exclusion we must perform in an
exclusion analysis.
Certain private landowners previously signed MOAs committing to
implementing a subset of conservation measures identified in the CCA
described above. Six MOAs between nongovernmental cooperators and the
State of Idaho for conservation of slickspot peppergrass covering
approximately 17,045 acres of private lands were in place from 2004
through December 2007. We are not aware that these MOAs have been
reissued or renewed. A GIS analysis that examined the locations of the
MOA lands relative to this proposed critical habitat revision found
that MOA lands that overlap with the current revised proposed critical
habitat were limited to a single 40-acre parcel located within one of
the six MOAs. We request information from private landowners on any
additional acreages, updates to, or renewals of these MOAs under the
2006 CCA, or any other conservation efforts currently being undertaken
or implemented. This information will be used in any consideration of
exclusion of private lands under section 4(b)(2) of the Act.
Summary of Exclusions
We are not considering any exclusions at this time from the
proposed revised designation under section 4(b)(2) of the Act based on
economic impacts, national security impacts, or other relevant impacts
such as partnerships, management, or protection afforded by cooperative
management efforts. Some areas within the proposed revised designation
are included in management plans such as the 2006 CCA. Our final
decision on whether to exclude any areas will be based on the best
scientific data available at the time of the final designation,
including information obtained during the comment period and
information about the economic impact of designation. In particular, we
may exclude an area from critical habitat if we determine that the
benefits of excluding the area outweigh the benefits of including the
area, provided the exclusion will not result in the extinction of this
species. In this revised proposed rule we are seeking input from the
public as to whether or not the Secretary should exclude State or
private lands covered under applicable conservation plans from the
final critical habitat designation (see ADDRESSES for instructions on
how to submit comments and Information Requested for the types of input
we seek).
[[Page 44605]]
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. 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.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA determined that the 2011 proposed
rule was not significant (76 FR 27203, May 10, 2011). This revised
proposed rule is substantively similar to the 2011 proposed rule and
proposes to designate less acreage as critical habitat. Thus, we
determine that this revised proposed rule is not significant under the
Executive Order 12866 criteria.
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 revised proposed 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 whether 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, are 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 out 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 if we adopt this revised
proposed critical habitat designation. There is no requirement under
the RFA to evaluate the potential impacts to entities not directly
regulated. Moreover, Federal agencies are not small entities.
Therefore, because no small entities would be directly regulated by
this rulemaking, the Service certifies that, if made final as proposed,
the proposed critical habitat designation will not have a significant
economic impact on a substantial number of small entities. Therefore,
an initial regulatory flexibility analysis is not required.
Executive Order 13771
This proposed rule is not an E.O. 13771 (``Reducing Regulation and
Controlling Regulatory Costs'') (82 FR 9339, February 3, 2017)
regulatory action because this proposed rule is not significant under
E.O. 12866.
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. In our economic analysis, we did not find that the
designation of this proposed critical habitat would significantly
affect energy supplies, distribution, or use. Furthermore, although it
does include areas where powerlines and power facility construction and
maintenance may occur in the future, 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.
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:
[[Page 44606]]
(1) This proposed 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 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 this rule would 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. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
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 slickspot peppergrass in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that, if adopted, this designation of critical habitat for
slickspot peppergrass does not pose significant takings implications
for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this revised proposed
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 proposed critical habitat
designation with, appropriate State resource agencies in Idaho. 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 revised
proposed 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 proposed 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 or biological features of the habitat
necessary for 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 State and local
governments in long-range planning because they 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) of the Act 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 revised 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. To assist the public in understanding the habitat needs of
the species, the revised proposed rule identifies the elements of
physical or biological features essential to the conservation of the
species. The proposed areas of critical habitat are presented on maps,
and the proposed rule provides several options for the interested
public to obtain more detailed location information, if desired.
[[Page 44607]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This revised proposed rule does not contain information collection
requirements, and a submission to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) is not required. We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We have determined that no tribal
lands fall within the boundaries of the proposed critical habitat for
slickspot peppergrass, so no tribal lands would be affected by the
proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov in Docket No. FWS-R1-ES-
2010-0071 and upon request from the Idaho Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rulemaking 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
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless
otherwise noted.
0
2. In Sec. 17.96, as proposed to be added in alphabetical order under
Family Brassicaceae on May 10, 2011, at 76 FR 27184, the critical
habitat for ``Lepidium papilliferum (Slickspot Peppergrass)'', is
revised 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, Gem, Ada,
Elmore, and Owyhee Counties, Idaho, on the maps in this entry.
(2) Within these areas, the specific physical or biological
features essential to the conservation of slickspot peppergrass consist
of four components:
(i) Ecologically functional microsites or ``slick spots'' 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); this is 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 introduced, invasive, nonnative plant
species cover absent or limited to low to moderate levels.
(ii) Relatively intact, native Wyoming big sagebrush (Artemisia
tridentata ssp. wyomingensis) vegetation assemblages, represented by
native bunchgrasses, shrubs, and forbs, within 250 m (820 ft) of
slickspot peppergrass element occurrences to protect slick spots and
slickspot peppergrass from disturbance from wildfire, slow the invasion
of slick spots by nonnative species and native harvester ants, and
provide the habitats needed by slickspot peppergrass' 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 slickspot peppergrass to occur, pollinators must be able to move
freely between slick spots. Alternative pollen and nectar sources
(other plant species within the surrounding sagebrush vegetation) are
needed to support pollinators during times when slickspot peppergrass
is not flowering, when distances between slick spots are large, and in
years when slickspot peppergrass 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 slick spots 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),
cultivated agricultural fields, areas dominated by turf grass such as
parks, and the land on which they are located existing within the legal
boundaries on [EFFECTIVE DATE OF THE FINAL RULE].
(4) Critical habitat map units. Data layers defining map units were
created using Geographic Information Systems feature classes of Element
Occurrences (EOs). These EO data were provided by the IDFG Database.
For GIS analyses, we
[[Page 44608]]
dissolved a 250-meter exterior insect pollinator buffer on the EO
polygon base, and calculated acreages based on these dissolved,
buffered polygons. Critical habitat polygon outlines are exaggerated
(using 1 or 2 point size, depending on map scale) to allow viewers to
better see them. 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 http://www.fws.gov/idaho, at http://www.regulations.gov at Docket
No. FWS-R1-ES-2010-0071, and at the Idaho Fish and Wildlife Office. You
may obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP23JY20.000
[[Page 44609]]
(6) Unit 1: Payette County, Idaho.
(i) General Description: Unit 1 consists of 287 ha (710 ac) in
Payette and Gem Counties, Idaho, and is composed of lands in Federal
(268 ha (664 ac)) and private ownership (19 ha (46 ac)). Federal lands
within Unit 1 are in the Bureau of Land Management (BLM) Four Rivers
Field Office area.
(ii) Map of Unit 1 follows:
[GRAPHIC] [TIFF OMITTED] TP23JY20.001
(7) Unit 2: Ada County, Idaho.
(i) Subunit 2a General Description: Subunit 2a consists of 879 ha
(2,175 ac) in Ada County, Idaho, and is composed of lands in Federal
(335 ha (828 ac)), municipal (215 ha (531 ac)), and private ownership
(329 ha (814 ac)). Subunit 2a includes the Ada County Landfill Complex
area.
(ii) Map of Unit 2, Subunit 2a follows:
[[Page 44610]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.002
(iii) Subunit 2b General Description: Subunit 2b consists of 3,144
ha (7,768 ac) in Ada County, Idaho, and is composed of lands in Federal
(3,075 ha (7,598 ac)), State (69 ha (170 ac)), and private ownership
(0.2 ha (0.4 ac)). Subunit 2b includes lands within the Bureau of Land
Management (BLM) Morley Nelson Snake River Birds of Prey National
Conservation Area south of Kuna, Idaho.
(iv) Map of Unit 2, Subunit 2b follows:
[[Page 44611]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.003
(v) Subunit 2c General Description: Subunit 2c consists of 697 ha
(1,722 ac) in Ada County, Idaho, and is composed of lands in Federal
(438 ha (1,081 ac)), State (49 ha (122 ac)), municipal (66 ha (163
ac)), and private ownership (144 ha (357 ac)). Subunit 2c includes BLM
lands within the Four Rivers Field Office area, and municipal lands
associated with the Boise Airport.
(vi) Map of Unit 2, Subunit 2c follows:
[[Page 44612]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.004
(vii) Subunit 2d General Description: Subunit 2d consists of 1,605
ha (3,965 ac) in Ada County, Idaho, and is composed of lands in Federal
(821 ha (2,029 ac)), State (728 ha (1,800 ac)), and private ownership
(55 ha (136 ac)). Proposed critical habitat within subunit 2d is
adjacent to the Idaho Army National Guard-administered Orchard Combat
Training Center (formerly known as the Orchard Training Area).
(viii) Map of Unit 2, Subunit 2d follows:
[[Page 44613]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.005
(8) Unit 3: Elmore County, Idaho.
(i) Subunit 3a General Description: Subunit 3a consists of 1,007 ha
(2,488 ac) in Elmore County, Idaho, and is composed of lands in Federal
(726 ha (1,793 ac)) and private ownership (228 ha (564 ac)), including
lands within the BLM Four Rivers Field Office area.
(ii) Map of Unit 3, Subunit 3a follows:
[[Page 44614]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.006
(iii) Subunit 3b General Description: Subunit 3b consists of 589 ha
(1,455 ac) in Elmore County, Idaho, and is composed of lands in Federal
(449 ha (1,108 ac)), State (74 ha (184 ac)), and private ownership (66
ha (163 ac)), including lands within the BLM Four Rivers Field Office
area and the BLM Morley Nelson Birds of Prey National Conservation
Area.
(iv) Map of Unit 3, Subunit 3b follows:
[[Page 44615]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.007
(v) Subunit 3c General Description: Subunit 3c consists of 1,954 ha
(4,828 ac) in Elmore County, Idaho, and is composed of lands in Federal
(1,725 ha (4,264 ac)) and private ownership (228 ha (564 ac)),
including lands within both the BLM Four Rivers Field Office and the
Morley Nelson Birds of Prey National Conservation Area.
(vi) Map of Unit 3, Subunit 3c follows:
[[Page 44616]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.008
(9) Unit 4: Owyhee County, Idaho.
(i) General Description: Unit 4 consists of 6,888 ha (17,020 ac) in
Owyhee County, Idaho, and is composed of lands in Federal (6,609 ha
(16,332 ac)) and State (278 ha (688 ac)) ownership, including lands
within the BLM Jarbidge Field Office area.
(ii) Map of Unit 4 follows:
[[Page 44617]]
[GRAPHIC] [TIFF OMITTED] TP23JY20.009
* * * * *
Aurelia Skipwith
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-14449 Filed 7-22-20; 8:45 am]
BILLING CODE 4333-15-C