Federal Register, Volume 88 Issue 8 (Thursday, January 12, 2023) 2023 Federal Register, 88 FR 2006-2028; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Rules and Regulations]
[Pages 2006-2028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00037]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0082; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BD97

Endangered and Threatened Wildlife and Plants; Reclassifying
Fender's Blue Butterfly From Endangered to Threatened With a Section
4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
reclassifying Fender's blue butterfly (Icaricia icarioides fenderi)
from endangered to threatened under the Endangered Species Act of 1973,
as amended (Act). Fender's blue butterfly is endemic to the Willamette
Valley of Oregon. This action is based on our evaluation of the best
available scientific and commercial information, which indicates that
the species' status has improved such that it is not currently in
danger of extinction throughout all or a significant portion of its
range, but that it is still likely to become so in the foreseeable
future. We are also finalizing a rule issued under section 4(d) of the
Act that provides for the conservation of the species.

DATES: This rule is effective February 13, 2023.

ADDRESSES: The proposed rule and this final rule, the comments we
received on the proposed rule, and supporting documents are available
at https://www.fws.gov/oregonfwo and at https://www.regulations.gov
under Docket No. FWS-R1-ES-2020-0082.

FOR FURTHER INFORMATION CONTACT: Craig Rowland, Acting State
Supervisor, U.S. Fish and Wildlife Service, Oregon

[[Page 2007]]

Fish and Wildlife Office, telephone 503-319-9488. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of an endangered species (in danger of extinction
throughout all or a significant portion of its range). Fender's blue
butterfly is listed as endangered, and we are reclassifying Fender's
blue butterfly as threatened (i.e., ``downlisting'' the species)
because we have determined it is not currently in danger of extinction.
Reclassifying a species as a threatened species can be completed only
by issuing a rule through the Administrative Procedure Act rulemaking
process.
What this document does. This rule reclassifies Fender's blue
butterfly from endangered to threatened, with a rule issued under
section 4(d) of the Act (a ``4(d) rule''), based on the species'
current status, which has been improved through implementation of
conservation actions.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may downlist a species listed as
an endangered species if the best available commercial and scientific
data indicate the species no longer meets the Act's definition of an
endangered species. We have determined that Fender's blue butterfly is
no longer in danger of extinction and, therefore, does not meet the
Act's definition of an endangered species, but is still affected by the
following current and ongoing threats to the extent that the species
meets the Act's definition of a threatened species: the loss,
degradation, and fragmentation of prairie and oak savannah habitats,
including conversion to non-habitat land uses (e.g., urban development,
agriculture); elimination of natural disturbance regimes; encroachment
into prairie habitats by shrubs and trees due to fire suppression;
insecticides and herbicides; and invasion by nonnative plants.
We are promulgating a 4(d) rule. We are finalizing a 4(d) rule that
prohibits all intentional take of Fender's blue butterfly and
specifically allows incidental take by landowners or their agents while
conducting management for the creation, restoration, or enhancement of
short-stature native upland prairie or oak savannah conditions as a
means to provide protective mechanisms to our State and private
partners so that they may continue with certain activities that will
facilitate the conservation and recovery of the species.

Previous Federal Actions

On June 23, 2021, we published in the Federal Register (86 FR
32859) a proposed rule to reclassify Fender's blue butterfly from an
endangered species to a threatened species under the Act with a 4(d)
rule. Please refer to that proposed rule for a detailed description of
previous Federal actions concerning this species. The proposed rule and
supplemental documents are provided at https://www.regulations.gov
under Docket No. FWS-R1-ES-2020-0082.

Summary of Changes From the Proposed Rule

In preparing this final rule, we reviewed and fully considered all
comments we received from peer reviewers and the public during the
comment period on the proposed rule to downlist Fender's blue butterfly
(86 FR 32859; June 23, 2021). We made minor, nonsubstantive changes and
corrections throughout this document in response to those comments.
Additionally, after further internal review and consultation with
partners, in this rule, we amend the proposed 4(d) rule to allow manual
removal of invasive and/or nonnative plant species during Fender's blue
butterfly's flight period (April 15 to June 30). The long-term
conservation benefits to the species of allowing this type of work
during the flight season outweigh the potential negative effects to any
individuals on the landscape at that moment because removing invasive
plants improves habitat suitability for host lupine plants, which
improves butterfly viability. Overall, the information we received
during the proposed rule's comment period did not change our
determination that Fender's blue butterfly is no longer in danger of
extinction throughout all or a significant portion of its range and,
therefore, does not meet the Act's definition of an endangered species
but that it is still likely to become endangered in the foreseeable
future.
Lastly, during development of this final rule, we identified an
error in the entry for Kincaid's lupine (Lupinus sulphureus spp.
kincaidii; Fender blue butterfly's primary host plant) in the List of
Endangered and Threatened Plants in title 50 of the Code of Federal
Regulations (CFR) at Sec. 17.12(h) (50 CFR 17.12(h)). Therefore, we
are making one nonsubstantive, editorial correction to the date of the
listing rule provided in the ``Listing citations and applicable rules''
column in that entry. That column of the List of Endangered and
Threatened Plants is nonregulatory in nature and is provided for
informational and navigational purposes only (see 50 CFR 17.12(f)).
This correction is simply for the purposes of accuracy and clarity and
does not alter the species' status or protections under the Act; an
action changing this species' status or protections under the Act would
require a separate rulemaking following the procedures set forth at 50
CFR part 424.

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for
Fender's blue butterfly. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), our August 22, 2016,
memorandum updating and clarifying the role of peer review of listing
actions under the Act, we sought the expert opinions of 12 appropriate
and independent specialists with knowledge of the biology and ecology
of Fender's blue butterfly or its habitat regarding the SSA report. We
received feedback from 5 of the 12 peer reviewers contacted. The
purpose of peer review is to ensure that our determination regarding
the status of the species under the Act is based on scientifically
sound data, assumptions, and analyses. In preparing the proposed rule,
we incorporated the results of these reviews, as appropriate, into the
final SSA report, which is the foundation for this final rule.

[[Page 2008]]

I. Reclassification Determination

Background

Status Assessment for Fender's Blue Butterfly

We prepared an SSA report for Fender's blue butterfly (USFWS 2020,
entire) that presents a thorough review of the taxonomy, life history,
ecology, and overall viability of Fender's blue butterfly. In this
final rule, we present only a summary of the key results and
conclusions from the SSA report; the full report is available at
https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0082.
Fender's blue butterfly is found only in the prairie and oak
savannah habitats of the Willamette Valley of Oregon. Adult Fender's
blue butterflies are quite small, having a wingspan of approximately 25
millimeters (mm) (1 inch (in)). The upper wings of males are brilliant
blue in color with black borders and basal areas, whereas the upper
wings of females are brown.
Fender's blue butterfly relies primarily upon a relatively uncommon
lupine plant, the Kincaid's lupine (Lupinus sulphureus ssp. kincaidii),
also endemic to the Willamette Valley and listed as a threatened
species under the Act (65 FR 3875; January 25, 2000), as the host plant
for the larval (caterpillar) life stage (Hammond and Wilson 1993, p.
2). The only other host plants known for Fender's blue butterflies are
Lupinus arbustus (longspur lupine) and Lupinus albicaulis (sickle-
keeled lupine) (Schultz et al. 2003, pp. 64-67). Females lay single
eggs, up to approximately 350 eggs in total, on the underside of the
leaves of one of these three lupine species. Eggs hatch from mid-May to
mid-July, and the larvae feed on the lupine until the plants senesce
and the larvae go into diapause for the fall and winter. The larvae
break diapause in early spring, feed exclusively on the host lupine,
and metamorphose into adults, emerging as butterflies between mid-April
and the end of June. Adult Fender's blue butterflies only live 7 to 14
days, and feed exclusively on nectar from flowering plants (Schultz
1995, p. 36; Schultz et al. 2003, pp. 64-2012;65).
Given its short adult lifespan, Fender's blue butterfly has limited
dispersal ability. Butterflies are estimated to disperse approximately
0.75 kilometers (km) (0.5 miles (mi)) if they remain in their natal
lupine patch, and approximately 2 km (1.2 mi) if they disperse between
lupine patches (Schultz 1998, p. 290).

Recovery Planning and Recovery Criteria

Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the Lists of Endangered and
Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species, is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently, and that the
species is robust enough, that it no longer meets the Act's definition
of an endangered species or a threatened species. In other cases, we
may discover new recovery opportunities after having finalized the
recovery plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
In 2010, we finalized the Recovery Plan for the Prairie Species of
Western Oregon and Southwestern Washington (recovery plan), which
applied to a suite of endemic species including Fender's blue butterfly
(USFWS 2010, entire). The objective of the recovery plan is to achieve
viable populations of the listed species distributed across their
historical ranges in a series of interconnected populations. The
historical range of Fender's blue butterfly is considered to be the
Willamette Valley, which consists of nine counties in Oregon, because
that is where the prairie plants on which the species relies for its
survival and reproduction are distributed. The recovery plan objective
was to be accomplished by establishing metapopulations of Fender's blue
butterfly within restored prairie reserves across the geographic range
(USFWS 2010, p. v). The recovery plan set abundance and distribution
goals for Fender's blue butterfly by delineating three recovery zones
(Salem, Corvallis, and Eugene) encompassing the historical range of the
species in the Willamette Valley. The two downlisting criteria
established for Fender's blue butterfly are as follows:
(1) Each recovery zone has one functioning network (a
metapopulation with several interacting subpopulations, as defined in
the recovery plan) with a minimum count of 200 butterflies, distributed
among three subpopulations, for at least 10 years; in addition to this
network, there must be a second functioning network or two independent
populations with butterflies present each year in each recovery zone.
Downlisting goals were set at a 90 percent probability of persistence
for 25 years.
(2) Two functioning networks or one functioning network and two
independent populations in each zone must be protected and managed for
high-quality prairie habitat. The plan described high-quality prairie
as habitat consisting of a diversity of native, non-woody plant
species, various nectar plants that bloom throughout the flight season
of Fender's blue butterfly, low frequency of nonnative plant species
and encroaching woody species, and essential habitat elements (e.g.,
nest sites and food plants) for native pollinators. At least one of the
larval host plant species, Lupinus sulphureus ssp. kincaidii, L.
arbustus, or L. albicaulis, must be present.
All three recovery zones have at least two metapopulations (see
Table 1, below). The Baskett, Wren, West Eugene, and Willow Creek
metapopulations have had more than

[[Page 2009]]

200 butterflies each year for at least 10 consecutive years and are
therefore meeting the first (recovery) downlisting criterion. In
addition, the Gopher Valley, Oak Ridge, Butterfly Meadows, Greasy
Creek, Lupine Meadows, Coburg Ridge, and Oak Basin metapopulations have
had butterflies present for at least 10 years although they have not
exceeded the count of 200 butterflies. Thus, the species is currently
meeting the first criterion for downlisting. That said, concern remains
for the Corvallis recovery zone in the middle of the species' range,
with metapopulations that are generally less robust and more vulnerable
to deteriorating in condition over time.
The species is also currently meeting the second (habitat
management and protection) downlisting criterion. In each recovery
zone, there are at least three metapopulations with greater than 75
percent of their habitat protected (see Table 1, below). Managers of
protected land either have a habitat management plan in place or are in
the process of creating plans to maintain prairie quality for Fender's
blue butterfly. Although the recovery plan has identified the number of
nectar species and sufficient amount of nectar to make up high-quality
habitat, the metapopulations currently do not meet the strict
definition spelled out in the recovery plan. However, we find that for
the species to achieve recovery, it does not need to fulfill this part
of the second downlisting criterion as laid out in the recovery plan.
We will discuss this in greater detail below.

Table 1--Fender's Blue Butterfly Distribution, Abundance, and Protection Across Recovery Zones
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Number
At least 200 butterflies for consecutive Time period Butterflies present for past Habitat
Metapopulation 10 years years >=200 with >=200 10 years protection (%)
butterflies butterflies
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Salem Recovery Zone:
Baskett............................ Yes............................ 18 2000-2018 Yes........................... 100
Gopher Valley...................... No............................. 7 2012-2018 Yes........................... 100
Hagg Lake.......................... No............................. 8 2011-2018 No............................ 100
Moores Valley...................... No............................. 0 .............. No............................ 100
Oak Ridge.......................... No............................. 6 2013-2018 Yes........................... 35
Turner Creek....................... No............................. 0 .............. No............................ 45
Corvallis Recovery Zone:
Butterfly Meadows.................. No............................. 6 2003-2009 Yes........................... 24
Finley............................. No............................. 3 2016-2018 No............................ 100
Greasy Creek....................... No............................. 0 .............. Yes........................... 4
Lupine Meadows..................... No............................. 6 2003-2009 Yes........................... 100
Wren............................... Yes............................ 12 2006-2018 Yes........................... 93
Eugene Recovery Zone:
Coburg Ridge....................... No............................. 2 2006-2007 Yes........................... 77
Oak Basin.......................... No............................. 0 .............. Yes........................... 100
West Eugene........................ Yes............................ 15 2003-2018 Yes........................... 100
Willow Creek....................... Yes............................ 25 1993-2018 Yes........................... 100
--------------------------------------------------------------------------------------------------------------------------------------------------------

While Fender's blue butterfly meets downlisting criteria, the
species does not meet delisting criteria. The three delisting criteria
established for Fender's blue butterfly are as follows:
(1) Each of the three recovery zones has a combination of
functioning networks and independent populations such that the
probability of persistence is 95 percent over the next 100 years;
annual population surveys in each functioning network and independent
population must contain at least the minimum number of adult
butterflies as described in Table IV-2 in the recovery plan (Table 2)
for 10 consecutive years.
(2) Sites supporting populations of Fender's blue butterflies
considered in delisting criterion (1) must be protected and managed for
high-quality prairie habitat as described in the recovery plan.
(3) Monitoring of populations following delisting will verify the
ongoing recovery of the species, provide a basis for determining
whether the species should be again placed under the protection of the
Act, and provide a means of assessing the continuing effectiveness of
management actions.

[[Page 2010]]

Table 2--Distribution and Abundance Goals for Delisting Fender's Blue
Butterfly
[Table is taken from recovery plan Table IV-2]
------------------------------------------------------------------------

------------------------------------------------------------------------
Delisting Goals
------------------------------------------------------------------------
Delisting goals are set at a 95% probability of persistence for 100
years. Each row below represents a combination of functioning networks
and independent populations within a recovery zone. If each of the
three recovery zones meets the criteria in one row below, the species
would be projected to have a 95 percent probability of persistence for
100 years. Attainment of these population targets, together with the
criteria for distribution, habitat quality and management described in
the text, would indicate that the species has recovered and could be
considered for delisting. Note that the minimum population size in the
table represents the minimum population count in a network or
independent population in each of 10 consecutive years. The average
population size in a network or independent population corresponding to
these minima would be substantially larger.
------------------------------------------------------------------------
Number of functioning networks Minimum Minimum
(FN) and independent populations population size population size
(IP) per network over per independent
in a recovery zone 10 years population over
10 years
------------------------------------------------------------------------
2 FN + 0 IP....................... 4,500 n/a
2 FN + 2 IP....................... 800 3,000
2 FN + 2 IP....................... 1,000 1,000
2 FN + 2 IP....................... 1,500 500
2 FN + 3 IP....................... 1,000 700
2 FN + 3 IP....................... 1,500 300
3 FN + 0 IP....................... 1,000 n/a
3 FN + 1 IP....................... 800 200
3 FN + 2 IP....................... 500 250
4 FN + 0 IP....................... 400 n/a
------------------------------------------------------------------------

Delisting may be achieved with a variety of combinations of
metapopulations and independent populations in each recovery zone as
detailed in the recovery plan. Currently, each recovery zone has at
least four metapopulations, meaning that each metapopulation would need
a minimum of 400 butterflies in each of 10 consecutive years to meet
delisting criterion 1 (Table 2). At this time, none of the recovery
zones meet this criterion. For delisting criterion 2, many of the sites
for Fender's blue butterfly have protection in place. Currently, we
have three habitat conservation plans (HCPs), 17 safe harbor agreements
(SHAs), and many Partners for Fish and Wildlife (PFW) agreements in
place. These agreements help maintain the species' habitat through
prairie habitat restoration and enhancement. Overall, there is
currently management and protection for Fender's blue butterfly
habitat. However, these sites do not possess a sufficient number of
butterflies to meet delisting criterion 1. Additionally, we also do not
have post-delisting monitoring plans or agreements in place to assure
habitat management will continue for this conservation-reliant species
per delisting criterion 3. Therefore, although there are management
plans in place for the species' habitat, because there are not a
sufficient number of butterflies within the metapopulations and there
are no long-term agreements for continual habitat management, this
species does not meet the threshold for delisting.
The extinction thresholds underlying downlisting and delisting
criteria were derived from a census-based population viability analysis
(PVA) conducted shortly after we listed Fender's blue butterfly (USFWS
2010, pp. IV-29-IV-31, IV-34). However, for the reasons described
below, we are conducting a new PVA using an individual-based population
model and reevaluating the delisting recovery criteria in light of the
best scientific data that are now available. As described in the SSA
report, the PVA used to develop the initial recovery criteria relied
upon several assumptions that, based on our improved understanding of
the ecology of the butterfly, we now know are outdated and require
modification. We also have an additional decade of monitoring data and
increased confidence in the accuracy of a standardized monitoring
protocol implemented in 2012 (USFWS 2020, pp. 47-52). Furthermore, the
recovery plan set specific targets for the abundance and diversity of
nectar species required to be of high-habitat quality to support
Fender's blue butterfly, as well as a minimum density of lupine leaves
(the host plant for the species' larval life stage). For various
reasons detailed in the SSA report, including a limited dataset and
conflicting results regarding the correlation between these resources
and densities of Fender's blue butterfly, these targets are also now in
question (USFWS 2020, pp. 65-67).
Because we are in the process of reevaluating the current recovery
criteria for Fender's blue butterfly as presented in the recovery plan
for the species (USFWS 2010, pp. IV-29-IV-31 and IV-34), we did not
assess the status of Fender's blue butterfly relative to all of the
existing habitat targets. However, in our SSA, we did consider the
status of the species relative to the overarching goals of protecting
existing populations, securing the habitat, and managing for high-
quality prairie habitats; all of these were downlisting and delisting
considerations described in the recovery plan (USFWS 2010, p. IV-9). In
addition, our evaluation under the SSA framework (USFWS 2016) reflects
the fundamental concepts captured in the recovery plan strategy of
achieving multiple populations with connectivity between them
distributed across the historical range of the species. For example, we
find that the minimum number threshold from the recovery plan remains
valid because population size targets based on minimum population size
eliminate confounding variation from stochastic events that may not
reflect demographic changes. In other words, averages may be
artificially high or low if there is one unusual weather year.
Additionally, we partially rely upon the habitat targets for nectar
species for evaluating the status of the species. We acknowledge that
the species needs a variety of different species as nectar sources. The
recovery plan identifies the quantity of nectar needed per area and

[[Page 2011]]

the number of native nectar species. However, we do not find that the
quantity defined in these recovery plan habitat targets is needed for
the recovery of the species as we have seen sites maintain viability
despite not meeting the target (i.e., there are sites that are able to
maintain viability with lower quantities of nectar and nonnative nectar
species). We also explicitly considered the quality of the prairie
habitat, using the recommended guidelines for prairie quality and
nectar availability in the recovery plan, and the management and
protection status of butterfly occurrences (see, e.g., USFWS 2010, pp.
IV-13, IV-29-IV-31).

Taxonomy

Fender's blue butterfly was first described in 1931 as Plebejus
maricopa fenderi based on specimens collected near McMinnville, Oregon,
in Yamhill County (Macy 1931, pp. 1-2). Fender's blue butterfly was
classified in the Lycaenidae family within the subfamily Polyommatinae
as a subspecies of Boisduval's blue butterfly based on adult characters
and geographic distribution. The species maricopa was considered a
synonym of the species icarioides and was later determined to be a
member of the genus Icaricia, rather than the genus Plebejus. The
worldwide taxonomic arrangement of the subtribe Polyommatina (which
contains blue butterflies) was fluctuating between Plebejus and
Icaricia until it was revised in 2013 as Icaricia. The current
scientific name, Icaricia icarioides fenderi, was validated by the
Integrated Taxonomic Information System (ITIS) and experts at the
McGuire Center for Lepidoptera and Biodiversity, a division of the
Florida Museum of Natural History at the University of Florida (see
USFWS 2020, p. 15, for all citations).

Population Terminology

In some instances, populations that are spatially separated
interact, at least on occasion, as individual members move from one
population to another. In the case of Fender's blue butterfly, the
clear delineation of discrete populations and subpopulations is
challenging because of the uncertainty regarding the extent to which
individuals at known sites interact with each other or with other
individuals on the landscape of adjacent private lands that are
inaccessible to researchers and remain unsurveyed. Thus, in the SSA
report and in this document, we use the term ``metapopulation'' as a
rough analog to the more familiar term ``population.'' We use the term
metapopulation to describe groups of sites occupied by Fender's blue
butterflies that are within 2 km (1.2 mi) of one another and not
separated by barriers. We chose this distance because it is the
estimated dispersal distance of Fender's blue butterfly (Schultz 1998,
p. 290). We assume that butterflies within a metapopulation are capable
of at least occasional interchange of individuals. We do not anticipate
that metapopulations across the range of the species will interact with
one another given the distance and structural barriers between them.
The definition of metapopulation used here and in the SSA report is not
the same as the ``functioning network'' defined in the recovery plan.
The recovery plan defines a functioning network as three or more
potentially interacting subpopulations that are no more than 2 km (1.2
mi) from one another. This definition is problematic because it
requires knowledge of subpopulation boundaries, and it excludes
metapopulations comprised of only two subpopulations. It also included
a requirement for a minimum patch size of 18 hectares (ha) (44 acres
(ac)) for each network, which we now know is not necessary, as the
butterfly can thrive in much smaller patch sizes. Further information
regarding these definitions is detailed in the SSA report (USFWS 2020,
pp. 41-42).
Locations containing Fender's blue butterfly occur across multiple
land ownerships, have varying degrees of habitat protection, and are
managed in different ways. We use the term ``site'' to identify a
management unit or land ownership designation; multiple sites may
therefore comprise a single metapopulation. An ``independent group'' of
Fender's blue butterfly refers to occupied sites that are more than 2
km (1.2 mi) from another occupied site and/or are separated by barriers
from other occupied sites such that butterflies are unable to interact.

Historical and Current Abundance and Distribution

Due to the limited information collected on this subspecies prior
to its description in 1931, we do not know the precise historical
(prior to 1989) distribution of Fender's blue butterfly. Only a limited
number of collections were made between the time of the subspecies'
discovery and its presumed last observation on May 23, 1937, in Benton
County, Oregon, leading the scientific community to assume the species
was extinct (Hammond and Wilson 1993, p. 3).
Fender's blue butterfly was rediscovered in 1989, at the McDonald
State Forest, Benton County, Oregon, on the uncommon plant, Kincaid's
lupine. Surveys since its rediscovery indicate that the current
distribution, which is identical to its historical distribution, of
Fender's blue butterfly is restricted to the Willamette Valley in
Benton, Lane, Linn, Polk, Yamhill, and Washington Counties in Oregon.
While we do not know the precise historical abundance or
distribution of Fender's blue butterfly, at the time the species was
listed as endangered in 2000, we knew of approximately 3,391
individuals on 32 sites (USFWS 2020, p. 35). By retroactively applying
the criteria for our refined population terminology, we calculate there
would have been 12 metapopulations of Fender's blue butterfly
distributed across approximately 165 ha (408 ac) of occupied prairie in
four counties at the time of listing (see Table 3, below). Those
numbers have now grown across all three recovery zones identified for
Fender's blue butterfly (see Recovery Planning and Recovery Criteria,
above) as a result of population expansion, discovery, and creation;
currently, 15 Fender's blue butterfly metapopulations and 6 independent
groups are distributed throughout the Willamette Valley in Benton,
Lane, Linn, Polk, Washington, and Yamhill Counties. There are 137 total
sites, containing more than 13,700 Fender's blue butterfly individuals,
throughout an area totaling approximately 344 ha (825 ac) of occupied
prairie habitat with a broad range of land ownerships and varying
degrees of land protection and management (USFWS 2020, pp. 52-53). In
2016, the estimated number of Fender's blue butterflies hit a presumed
all-time high of nearly 29,000 individuals (USFWS 2020, p. 71). Maps
showing the historical and current distribution of Fender's blue
butterfly throughout its range are available in the SSA report (USFWS
2020, pp. 51, 54-56).

[[Page 2012]]

Table 3--Comparison of Fender's Blue Butterfly Abundance and
Distribution Between Time of Listing 2000 and Survey Results From 2018
[USFWS 2020, Table 3.4]
------------------------------------------------------------------------
Listed as Survey results as
endangered (2000) of 2018 *
------------------------------------------------------------------------
Number of metapopulations....... 12................ 15.
Number of independent groups.... 0................. 6.
Total abundance (number of 3,391............. 13,700.
individuals).
Number of sites................. 32................ 137.
Area of prairie habitat known to 165 (408)......... 344 (825).
be occupied, in hectares
(acres).
Counties known to be occupied... 4 (Benton, Lane, 6 (Benton, Lane,
Polk, and Linn, Polk,
Yamhill). Washington, and
Yamhill).
------------------------------------------------------------------------
* Note this is not a total count, as not all sites can be surveyed every
year; thus, the number of individuals reported in 2018 is an
underestimate of the rangewide abundance.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species,
issuing protective regulations for threatened species, and designating
critical habitat for threatened and endangered species. In 2019,
jointly with the National Marine Fisheries Service, the Service issued
final rules that revised the regulations in 50 CFR parts 17 and 424
regarding how we add, remove, and reclassify threatened and endangered
species and the criteria for designating listed species' critical
habitat (84 FR 45020 and 84 FR 44753; August 27, 2019). At the same
time the Service also issued final regulations that, for species listed
as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (collectively, the 2019 regulations).
As with the proposed rule, we are applying the 2019 regulations for
this final rule because the 2019 regulations are the governing law just
as they were when we completed the proposed rule. Although there was a
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations
therefore governed, the 2019 regulations are now in effect and govern
listing and critical habitat decisions (see Center for Biological
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby
reinstating the pre-2019 regulations)) and In re: Cattlemen's Ass'n,
No. 22-70194 (9th Cir. Sept. 21, 2022) (staying the vacatur of the 2019
regulations and thereby reinstating the 2019 regulations until a
pending motion for reconsideration before the district court is
resolved)).
Our analysis for this decision applied the 2019 regulations.
However, given that litigation remains regarding the court's vacatur of
the 2019 regulations, we also undertook an analysis of whether the
decision would be different if we were to apply the pre-2019
regulations. We concluded that the decision would have been the same if
we had applied the pre-2019 regulations. The analyses under both the
pre-2019 regulations and the 2019 regulations are included in the
decision file for this decision.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened (50 CFR
424.11(c) and (d)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations

[[Page 2013]]

at 50 CFR 424.11(d) set forth a framework for evaluating the
foreseeable future on a case-by-case basis. The term ``foreseeable
future'' extends only so far into the future as the Services can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be reclassified as a threatened species
under the Act. However, it does provide the scientific basis that
informs our regulatory decisions, which involve the further application
of standards within the Act and its implementing regulations and
policies. The following is a summary of the key results and conclusions
from the full SSA report, which may be found at Docket No. FWS-R1-ES-
2020-0082 on https://www.regulations.gov.
To assess Fender's blue butterfly viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Factors Affecting Fender's Blue
Butterfly

In this discussion, we review the biological condition of the
species and its resource needs, and the threats that influence the
species' current and future condition, in order to assess the species'
overall viability and the risks to that viability.

Summary of Species Needs

Table 4 summarizes the key ecological resources required by
individual Fender's blue butterflies at various life stages, as
presented in the SSA report (from USFWS 2020, Table 2.4).

Table 4--Resource Needs of Fender's Blue Butterfly at the Level of the
Individual by Life Stage
------------------------------------------------------------------------
Life stage Timeline Resource needs
------------------------------------------------------------------------
Egg........................... Mid-April through Kincaid's
June. lupine, longspur
lupine, or sickle-
keeled lupine.
Larva (including diapause).... Mid-May through Kincaid's
early April lupine, longspur
(including lupine, or sickle-
diapause). keeled lupine.
Pupa.......................... April through May Kincaid's
lupine, longspur
lupine, or sickle-
keeled lupine.
Adult butterfly............... Mid-April through Early seral
June. upland prairie, wet
prairie, or oak
savannah habitat
with a mosaic of low-
growing grasses and
forbs, an open
canopy, and a
disturbance regime
maintaining the
habitat.
Kincaid's
lupine, longspur
lupine, or sickle-
keeled lupine.
Variety of
nectar flowers.
------------------------------------------------------------------------

Based on our evaluation as detailed in the SSA report, we
determined that for the species to be highly resilient, Fender's blue
butterfly metapopulations need an abundance of lupine host plants and
nectar plants within prairie patches of sufficient size, with habitat
heterogeneity and minimal amounts of invasive plants and woody
vegetation. Healthy metapopulations would also contain individuals
distributed across multiple groups (redundancy) in lupine patches that
are in close proximity of one another. Ideally, at the species level,
highly resilient metapopulations would be distributed across the
historical range of the species (redundancy and representation) and
have multiple ``stepping stone'' habitats for connectivity across the
landscape (redundancy and representation) (USFWS 2020, p. 33). A
``stepping stone'' habitat is a prairie patch that provides both lupine
and nectar plants, and occurs in an area with barrier-free movement for
butterflies; such areas are likely too small to support a subpopulation
or metapopulation of butterflies over the long term, but they provide
sufficient resources to support multi-generational movement of
individuals between larger areas of habitat. The key resources and
circumstances required to support resiliency in Fender's blue butterfly
metapopulations, and redundancy and representation at the species
level, are identified below in Table 5 (from USFWS 2020, Table 2.5).
Based on the

[[Page 2014]]

biology of the species and the information presented in the recovery
plan, as synthesized in the SSA report, these are the characteristics
of Fender's blue butterfly metapopulations that we conclude would
facilitate viability in the wild over time (USFWS 2020, pp. 31-34).

Table 5--Resources and Circumstances Needed To Support Resiliency in
Fender's Blue Butterfly Metapopulations and Redundancy and
Representation at the Species Level, Based on the Conditions Required
for the Species as Described in the Recovery Plan
[USFWS 2020, Table 2.5]
------------------------------------------------------------------------
Metapopulation needs
-------------------------------------------------------------------------
Habitat quantity/quality Abundance Distribution
------------------------------------------------------------------------
Abundant density of lupine host Minimum of 200 0.5-1.0 km (0.3-
plants. adult butterflies 0.6 mi) between
per lupine patches
metapopulation within a
for 10 years. metapopulation.
A diversity of nectar plant Consists of Across the
species throughout the flight multiple sites species' range.
season. with butterflies.
Prairie relatively free of Not applicable (n/ Stepping stone
invasive plants and woody a). prairie patches
vegetation, especially those with lupine and/
that prevent access to lupine or nectar to
or nectar (e.g., tall grasses). facilitate
connectivity
within a
metapopulation.
Patch sizes of at least 6 ha n/a............... n/a.
(14.8 ac) per metapopulation.
Heterogeneity of habitat, n/a............... n/a.
including varying slopes and
varying microtopography.
------------------------------------------------------------------------

Factors Affecting the Viability of the Species

At the time we listed Fender's blue butterfly as endangered (65 FR
3875; January 25, 2000), we considered the loss, degradation, and
fragmentation of native prairie habitat in the Willamette Valley to
pose the greatest threat to the species' survival. Forces contributing
to the loss of the little remaining native prairie included urban
development (named as the largest single factor threatening the species
at the time); agricultural, forestry, and roadside maintenance
activities, including the use of herbicides and insecticides; and heavy
levels of grazing. In addition, habitat loss through vegetative
succession from prairie to shrubland or forest resulting from the
absence of natural disturbance processes, such as fire, was identified
as a long-term threat, and the invasion of prairies by nonnative plants
was identified as a significant contributor to habitat degradation.
Although predation is a natural condition affecting the species, the
listing rule considered that predation may significantly impact
remaining populations of Fender's blue butterfly because they had been
reduced to such low numbers. Small population size was also identified
as posing a threat of extinction due to the increased risk of loss
through random genetic or demographic factors, especially in fragmented
or localized populations. Small population size is not a threat in and
of itself; however, it may exacerbate the impacts from threats.
Christmas tree farms were also identified as a threat due to habitat
loss. However, we have not found Christmas tree farming has negatively
affected the species or its habitat since 1992. Similarly, we have not
found a population-level effect to the species from non-herbicide road
maintenance by private landowners. We developed a state-wide Habitat
Conservation Plan to address all routine maintenance activities along
rights-of-ways adjacent to roads managed by the Oregon Department of
Transportation. While insect herbivory on host lupine plants was
considered a possible indirect threat to Fender's blue butterfly, this
threat has not manifested in reduced butterfly reproduction or
survival. The possibility that the rarity of Fender's blue butterfly
could render it vulnerable to overcollection by butterfly enthusiasts
was cited as a potential threat. However, we have no evidence that
collection of Fender's blue butterfly has occurred either before or
since listing. Finally, the listing rule pointed to the inadequacies of
existing regulatory mechanisms to protect Fender's blue butterfly or
its habitat, especially on lands under private ownership. With
assistance from partner organizations, we have undertaken steps to
manage and protect butterfly habitat on both private and public lands,
which includes Habitat Conservation Plans for roadside maintenance and
other activities, Safe Harbor Agreements, Partners for Fish and
Wildlife agreements, and individual site management plans. Threats not
recognized or considered at the time of listing, but now evaluated,
include the potential impacts resulting from climate change (Factor E).

Habitat Loss, Degradation, and Fragmentation

As discussed in the SSA report, habitat loss from land conversion
for agriculture and urbanization, and from heavy grazing (Factor A),
has decreased since the time of listing due to land protection efforts
and management agreements; these activities are still occurring at some
level, especially in Lane and Polk Counties, but not at the scope and
magnitude seen previously (USFWS 2020, pp. 57-59; see also Conservation
Measures, below). Habitat degradation due to invasion of prairies by
nonnative, invasive plants and by woody species (Factors A and E) has
decreased in many metapopulations due to active management using
herbicides, mowing, and prescribed fire to maintain or restore prairie
habitats, as well as augmentation of Kincaid's lupine and nectar
species (USFWS 2020, appendix C; see also Conservation Measures,
below). Some nonnative plants, such as the tall oatgrass, can be
difficult to effectively manage, thereby requiring development of new
methods to combat these invasive plants. While threats have been
reduced across the species' range, ongoing habitat management is
required to maintain these improvements over time and will be critical
to the viability of Fender's blue butterfly. In addition, habitat
degradation due to invasion of prairies by nonnative, invasive plants
and by woody species, which may potentially be exacerbated in the
future by the effects of climate change, remains a significant and
ongoing threat at sites

[[Page 2015]]

that are not managed for prairie conditions.
The overall number of sites supporting Fender's blue butterfly has
increased across all land ownership categories since listing, as has
the percentage of sites with habitat management. Although the
percentage of sites that are protected has remained roughly the same
(just over 70 percent) relative to the time of listing, we now have a
far greater number of sites that are protected (101 out of 137 sites
protected, compared to 23 of 32 sites at the time of listing). More
importantly, there is a significant increase in the proportion of sites
that are actively managed by private and partner agencies to maintain
or restore prairie habitat. At listing, only 31 percent of known sites
(10 of 32) and only 44 percent of protected sites (10 of 23) were
managed for prairie habitat to any degree. At present, 74 percent of
current sites (101 of 137) and 100 percent of protected sites (101 of
101) are managed for prairie habitat. In addition, three HCPs, 17 SHAs,
and a programmatic agreement for non-Federal landowners are now in
place to undertake proactive conservation and restoration actions to
benefit native prairie and minimize and mitigate effects to Fender's
blue butterfly (see Conservation Measures). These projects will help
maintain and may improve or expand the species' habitat. This
significant increase in the number of sites protected and managed to
benefit Fender's blue butterfly and its habitat represents substantial
progress since listing in addressing the threat of habitat loss and
degradation and demonstrates the effectiveness of existing conservation
actions and regulatory mechanisms. Impacts from habitat conversion,
woody succession, and invasive plant species are decreasing in areas
with existing metapopulations of Fender's blue butterflies due to
active habitat management and protection; these impacts are more likely
to stay the same or increase in areas of remaining prairie that are not
currently protected or managed (USFWS 2020, p. 59). With continued
protection and proper habitat management, greater range expansion is
possible, as explored in detail under Future Scenario 3 (see Future
Species Condition, below), potentially increasing representation and
redundancy of Fender's blue butterfly.

Pesticides

Insecticides and herbicides can directly kill eggs, larvae, and
adult butterflies during application of the chemicals to vegetation or
from drift of the chemicals from nearby applications in agricultural
and urban areas. For instance, Bacillus thuringiensis var. kurstaki, a
bacterium that is lethal to all butterfly and moth larvae, is
frequently used to control unwanted insects and has been shown to drift
at toxic concentrations over 3 km (2 mi) from the point of application
(Barry et al. 1993, p. 1977). Sublethal effects may indirectly kill all
life stages by reducing lupine host plant vigor, decreasing fecundity,
reducing survival, or affecting development time. Both insecticides and
herbicides are used in agricultural practices, while herbicides are
also used for timber reforestation and roadside maintenance and to
control invasive species and woody vegetation encroachment. The threat
to Fender's blue butterflies that may occur in roadside populations has
been reduced through the development of several HCPs that specifically
address pesticide application practices in these areas (e.g., Oregon
Department of Transportation HCP; see Conservation Measures, below).
The potential for exposure of Fender's blue butterfly to herbicides or
insecticides remains throughout the species' range, especially in
agricultural areas. However, we do not have any record of documented
exposure or other data to inform our evaluation of the magnitude of any
possible exposure, or the degree to which herbicides or insecticides
may be potentially affecting the viability of the species (USFWS 2020,
pp. 60-61). That said, while we cannot quantify the magnitude of
possible exposure, agricultural land is widely distributed throughout
the Willamette Valley, more lands are being converted to agriculture,
and pesticide use is generally occurring more now than at any other
time in history (Forister et al. 2019, p. 4). Because pesticides are
used on most agricultural crops to increase crop yield and prevent
disease spread, pesticide use in the Willamette Valley is likely to
affect multiple metapopulations.

Predation and Small Population Sizes

Although the listing rule stated that predation may have a
significant negative impact on Fender's blue butterfly due to the
reduced size of populations, the best available information does not
indicate that predation is a limiting factor for the species. Small
population size was also identified as posing a threat of extinction
due to the increased risk of loss through random genetic or demographic
factors, especially in fragmented or localized populations (Factor E).
Some very small, isolated populations of Fender's blue butterfly known
at the time of listing do appear to have become extirpated (USFWS 2020,
pp. 51-52), and existing small metapopulations or independent groups
remain especially vulnerable to extirpation. Overall, however, the
threat of small population size has decreased since listing due to the
discovery of new metapopulations, the expansion of existing
metapopulations, and the creation of new metapopulations from
reintroductions of Fender's blue butterflies. Most, but not all,
metapopulations of Fender's blue butterfly have increased in abundance
relative to the time of listing, and the total population size has
increased from just over 3,000 individuals in 12 metapopulations
distributed across four counties, to well over 13,000 individuals in 15
metapopulations distributed across six counties (USFWS 2020, pp. 52-
53).

Climate Change

The severity of threat posed to Fender's blue butterfly from the
impacts of climate change is difficult to predict. The Willamette
Valley, and prairies specifically, may fare better than other regions;
however, various changes in average annual temperatures and
precipitation are predicted and may affect Fender's blue butterfly or
its habitat (Bachelet et al. 2011, p. 424; USFWS 2017, p. B-10; USFWS
2020, pp. 61-62). Such potential changes include higher water levels in
wet prairies during winter and spring, increased spring flooding
events, and prolonged summer droughts. Two models have been used to
conduct climate change vulnerability assessments for butterfly species
within the Willamette Valley using the Special Report on Emissions
Scenarios (SRES) created by the Intergovernmental Panel on Climate
Change (IPCC). Under the SRES B1 scenario (comparable to the
representative concentration pathway (RCP) 4.5 scenario), both models
ranked Fender's blue butterfly as stable. Under the SRES A1B scenario
(RCP6.0), both models ranked Fender's blue butterfly as moderately
vulnerable. Under the SRES A2 scenario (RCP8.5), however, Fender's blue
butterfly was ranked as extremely vulnerable under one model and highly
vulnerable under the other model due to its limited range and loss of
both nectar and host plants. While the models do not agree on the
degree of vulnerability, both models did show an increase in
vulnerability as climate change scenarios worsened due to the species'
limited range and the potential for loss of both nectar and host
plants, as well as a possible increase in invasive, nonnative plants
(Steel et al. 2011, p. 5; Kaye et al. 2013, pp. 23-24).

[[Page 2016]]

Conservation Measures

Because of extensive loss of native prairie habitats in the
Willamette Valley and the resulting Federal listing of multiple endemic
plant and animal species, the region has been the focus of intensive
conservation efforts. Numerous entities, including Federal, State, and
county agencies, nongovernmental organizations such as land trusts, and
private landowners, have all become engaged in efforts to restore
native Willamette Valley prairie and oak savannah habitats and the
associated endemic animal communities. Collectively, the agencies and
organizations that manage lands have acquired conservation easements
and conducted management actions to benefit prairie and oak savannah
habitats; in many cases, conservation efforts have been designed
specifically to benefit Fender's blue butterfly. Various types of
agreements have been established with private landowners to perform
voluntary conservation actions on their land, while agencies are
working collaboratively on habitat restoration and active prairie
management under interagency agreements.
Our SSA report summarizes the conservation measures implemented
across the range of Fender's blue butterfly since the species was
listed in 2000 (USFWS 2020, pp. 62-65). These measures include native
prairie habitat restoration and management on public lands or lands
that are managed by a conservation organization, including Baskett
Slough National Wildlife Refuge and surrounding areas, William L.
Finley National Wildlife Refuge, Fern Ridge Reservoir, West Eugene
Wetlands, Willow Creek Preserve, Yamhill Oaks Preserve, Coburg Ridge,
Lupine Meadows, Hagg Lake, a small portion of the McDonald State
Forest, and some Benton County public lands. The long-term viability of
Fender's blue butterfly is dependent on an ongoing, consistent
commitment to active management to remove woody vegetation and invasive
plants, thereby maintaining the native plant community and open prairie
conditions required by this species.
The contributions of private landowners have also made a
significant impact on the conservation of Fender's blue butterfly.
Approximately 96 percent of the Willamette Valley ecoregion is in
private ownership (Oregon Department of Fish and Wildlife 2006), and
the majority (66 percent) of designated critical habitat for Fender's
blue butterfly is on private lands (see 50 CFR 17.95(i) and 71 FR
63862, October 31, 2006). Thus, the conservation and recovery of
Fender's blue butterfly, Kincaid's lupine, and the suite of native
species associated with them relies in large part on the voluntary
actions of willing non-Federal landowners to conserve, enhance,
restore, reconnect, and actively manage the native prairie habitats
that support these species. Many Fender's blue butterfly sites on
private or other non-Federal lands across the range of the species now
have PFW agreements, SHAs, or HCPs in place with the Service.
Through many PFW agreements in place with private landowners in the
Willamette Valley, we provide technical assistance to landowners for
the enhancement and restoration of native habitats on their lands;
these conservation actions benefit multiple native species, including
Fender's blue butterfly. We administer and implement a programmatic SHA
for the benefit of Fender's blue butterfly. This program encourages
non-Federal landowners to undertake proactive conservation and
restoration actions to benefit native prairie, as well as Fender's blue
butterfly and Kincaid's lupine, in Benton, Lane, Linn, Marion, Polk,
Washington, and Yamhill Counties, Oregon (USFWS 2016, entire). Since
2021, 17 properties covering approximately 595 ha (1,471 ac) are
enrolled under the programmatic SHA as of November 2020; another 12
agreements that will cover an additional 417 ha (1,031 ac) are in
development. In addition, three HCPs in place are designed to minimize
and mitigate effects to Fender's blue butterfly: the Benton County HCP
(2011; 50-year term), Yamhill County Road Rights-of-Way HCP (2014; 30-
year term), and the Oregon Department of Transportation HCP (2017; 25-
year term). These agreements include various provisions ensuring the
implementation of best management practices and offsetting any
potential negative impacts of activities through augmenting or
enhancing populations of Fender's blue butterfly or prairie habitats.
Finally, nongovernmental organizations have actively pursued
conservation easements and acquisition of properties throughout the
Willamette Valley to benefit native prairies and Fender's blue
butterfly. Specific examples include the 2005 acquisition and
establishment of the Lupine Meadow Preserve by the Greenbelt Land
Trust, and the 2008 acquisition and establishment of the Yamhill Oaks
Preserve by The Nature Conservancy.
Overall, there are 137 total sites containing Fender's blue
butterfly that occur over a broad range of land ownerships with varying
degrees of land protection and management. Forty-four sites are on
tracts of public land owned by the U.S. Army Corps of Engineers, Bureau
of Land Management, Bureau of Reclamation, Oregon State University, or
the Service, all of which are being managed for prairie habitat to
varying degrees given funding and personnel. Fourteen sites are in
public rights-of-way managed by the Oregon Department of Transportation
or County Public Works, and all are being managed for prairie habitat.
Thirty sites are on private land without any form of protection or
active management for Fender's blue butterfly or its habitat. Another
43 sites are on private land with some level of protection via a
conservation easement (20 sites) or under a cooperative agreement (23
sites) and are being managed for prairie habitat. More information on
conservation measures performed by nongovernmental organizations
specific to each metapopulation of Fender's blue butterfly are listed
in the SSA report under Metapopulation Descriptions under Current
Conditions (USFWS 2020, appendix C).
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis. For
Fender's blue butterfly, we analyzed the cumulative effects of habitat
loss, conversion, and fragmentation; habitat succession to shrubs and
woody plant species; encroachment of nonnative plants; application of
pesticides; and climate change. We considered the source, immediacy,
scope, and trajectory of each stressor; the life stages impacted, and
the benefit conservation measures, such as habitat management and
protection provided.

[[Page 2017]]

Current Species Condition

After assessing the biology of Fender's blue butterfly and the
information presented in its recovery plan, we determined that the
resiliency of a metapopulation of the species relies on an abundant
supply of lupine host plants and nectar plants within prairie patches
at least 6 ha (14.8 ac) in size, habitat heterogeneity, and minimal
amounts of invasive plants and woody vegetation. Healthy
metapopulations would also contain a minimum of 200 butterflies
(resiliency) distributed across multiple groups within a metapopulation
(redundancy) in lupine patches that are within 0.5 to 1.0 km (0.31 to
0.62 mi) of one another. At the species level, a highly resilient
metapopulations would ideally be distributed across the historical
range of the species (representation and redundancy across
metapopulations) and have numerous habitat ``stepping stones'' for
connectivity across the landscape (redundancy and representation).
In our evaluation, we used the best scientific data available to
evaluate the current condition of each Fender's blue butterfly
metapopulation in terms of resiliency. We developed criteria to assess
specific habitat and demographic factors contributing to the overall
resilience of metapopulations, and to rank each metapopulation as to
whether it is in high, moderate, or low condition; these categories
reflected our estimate of the probability of persistence over a period
of 25 to 35 years (explained below; see Future Species Condition), as
detailed in the SSA report (USFWS 2020, pp. 71-73). Criteria used to
score metapopulation condition included the number of sites
contributing to the metapopulation, butterfly abundance, connectivity,
habitat patch size, lupine density, presence of nectar species, and
measures of prairie quality and habitat heterogeneity (USFWS 2020,
Table 6.2, p. 73).
Five of the existing 15 Fender's blue butterfly metapopulations are
ranked as having a high current condition, while 3 are ranked as
moderate, 6 are ranked low, and one may be extirpated (see Table 6,
below). Overall, the majority of metapopulations, 8 out of 15, are
ranked as either in high or moderate condition, indicating a degree of
resiliency across the range of the species. Fender's blue butterfly
currently demonstrates a good degree of metapopulation redundancy, with
multiple metapopulations occurring both within and across the three
recovery zones spanning the historical range of the species. Although
no direct measures of genetic or ecological diversity are available, we
consider the species to have a good degree of representation, as there
are multiple metapopulations and groups of Fender's blue butterfly
distributed relatively evenly across the geographic range of the
species (six in the Salem recovery zone, five in the Corvallis recovery
zone, and four in the Eugene recovery zone), in all known habitat types
(both prairie and oak savannah) and elevations.

Table 6--Current Condition of Fender's Blue Butterfly Metapopulations
------------------------------------------------------------------------
Metapopulation Current condition
------------------------------------------------------------------------
Salem Recovery Zone
------------------------------------------------------------------------
Baskett................................... High.
Gopher Valley............................. Moderate.
Hagg Lake................................. High.
Moores Valley............................. Possible extirpation.
Oak Ridge................................. Moderate.
Turner Creek.............................. Low.
------------------------------------------------------------------------
Corvallis Recovery Zone
------------------------------------------------------------------------
Butterfly Meadows......................... Low.
Finley.................................... Moderate.
Greasy Creek.............................. Low.
Lupine Meadows............................ Low.
Wren...................................... High.
------------------------------------------------------------------------
Eugene Recovery Zone
------------------------------------------------------------------------
Coburg Ridge.............................. Low.
Oak Basin................................. Low.
West Eugene............................... High.
Willow Creek.............................. High.
------------------------------------------------------------------------

The discovery of Fender's blue butterflies in additional counties
since the listing of the species, as well as the expansion of existing
metapopulations, increases both the geographic range of the species and
connectivity throughout the landscape. An increased number of
metapopulations, composed of a greater number of individuals and with
expanded distribution and connectivity across the range of Fender's
blue butterfly (see Table 3, above), means the species has a greater
chance of withstanding stochastic events (resiliency), surviving
potentially catastrophic events (redundancy), and adapting to changing
environmental conditions (representation) over time.

Future Species Condition

To understand the potential future condition of Fender's blue
butterfly with respect to resiliency, redundancy, and representation,
we considered a range of potential scenarios that incorporate important
influences on the status of the species, and that are reasonably likely
to occur. We additionally forecast the relative likelihood of each
scenario occurring, based on our experience with the species and best
professional judgment (see USFWS 2020, p. 78). Through these future
scenarios, we forecast the viability of Fender's blue butterfly over
the next 25 to 35 years. We chose this timeframe because it represents
up to 35 generations of Fender's blue butterfly, and therefore provides
an adequate timeframe to consider the species' response to threats. The
recovery plan also used this general timeframe for the determination of
downlisting criteria, and this timeframe can reveal the immediate
effects of habitat management strategies given that our current interim
protections (e.g., HCPs, SHAs) have a lifespan ranging from 10 to 50
years. We bracketed our timeframe to a shorter period based on our
knowledge of the species and our ability to project current and future
threats and conservation efforts. We scored the projected future
condition of each metapopulation based on a ruleset incorporating
abundance and trend data, quality of prairie habitat, level of habitat
protection, and type of habitat management (see USFWS 2020, pp. 77-83).
In addition to the high, moderate, and low condition categories, we
added a fourth category in our future scenarios accounting for possible
extirpation. The purpose of evaluating the status of Fender's blue
butterfly under a range of plausible future scenarios is to create a
risk profile for the species into the future, allowing for an
evaluation of its viability over time.
Scenario 1 assumes ``continuing efforts''--Fender's blue butterfly
will continue on its current trajectory and influences on viability,
habitat management, and conservation measures will all continue at
their present levels. Due to our analysis of current management
actions, protections, and threats, we consider this scenario as highly
likely to play out over the next 25 to 35 years. Scenario 2 is based on
an increased level of impact from negative influences on viability,
particularly alterations in environmental conditions as a result of
climate change. We consider this scenario moderately likely to occur
over the next 25 to 35 years due to greater uncertainty in assessing
the degree of climate change and the impact it may have on the species.
Scenario 3 is based on increased conservation effort, including the
potential for improved habitat conditions at currently occupied sites;
metapopulation expansion by restoring currently unoccupied prairie
sites; and augmentation, translocation,

[[Page 2018]]

and/or introduction of butterflies. In this scenario, we evaluated the
potential for expansion at currently protected sites and protected
areas identified as possible introduction sites (USFWS 2020, pp. 81-
104). Due to questions regarding potential funding, personnel, and
other conservation agreements needed to provide additional protections,
we consider this scenario as also moderately likely to occur over the
next 25 to 35 years. The results from these three scenarios describe a
range of possible conditions in terms of viability of Fender's blue
butterfly (USFWS 2020, pp. 104-106; see Table 7, below). We used two
different methodologies for assessing future conditions. Under
scenarios 1 and 2, we analyzed trends in population number and habitat
quality and projected that out into the future. Meanwhile, in scenario
3, we mapped out and identified potential areas for conservation and
worked with partners on the feasibility of conservation actions there.
We then used these responses to project habitat enhancement in these
areas and the impact that enhancement will have on the species'
population trends. While these two methods differ, both apply our
knowledge of the species and current and planned or potential
management actions in order to project what its condition will be in
the future.

Table 7--Condition Scores for Metapopulation Resiliency, Comparing Current Condition to Three Plausible Future
Scenarios as Described in the Text. Relative Likelihoods of Each Scenario at 25 to 35 Years are Also Provided;
see USFWS 2020, p. 77, for an Explanation of Confidence Terminologies Used To Estimate the Likelihood of
Scenario Occurrence
----------------------------------------------------------------------------------------------------------------
Number of metapopulations
-----------------------------------------------------------------
Scenario 1-- Scenario 2-- Scenario 3--
Condition score continuing considerable conservation
Current efforts impacts efforts
condition (highly (moderately (moderately
likely) likely) likely)
----------------------------------------------------------------------------------------------------------------
High.......................................... 5 7 3 7
Moderate...................................... 3 1 5 5
Low........................................... 6 5 0 2
Possible Extirpation.......................... 1 2 7 1
----------------------------------------------------------------------------------------------------------------

Because the natural processes that historically maintained this
ecosystem and Fender's blue butterfly's early seral habitat are now
largely absent from the Willamette Valley, the species is reliant upon
ongoing management that sets back succession and controls invasive tall
grasses and woody plant species. Therefore, an important consideration
in our evaluation of the viability of the species is whether or not
management actions will continue that restoration and maintenance of
prairie systems, including actions that maintain populations of the
lupine host plants and nectar resources in the Willamette Valley.
Scenario 1 results in improved condition for several
metapopulations currently ranked as moderate as conservation efforts
continue. On the other hand, metapopulations that are currently in low
condition or already at risk of extirpation would likely either remain
in that state or (in one case) degrade in condition from low to
possible extirpation. Overall, we expect that the viability of Fender's
blue butterfly under this scenario would improve relative to its
current condition, characterized by increases in resiliency of existing
metapopulations. Seven metapopulations would be in high condition, one
in moderate condition, five in low, and two at risk of possible
extirpation. There would be at least two metapopulations in high
condition in each of the three recovery zones; the Salem recovery zone
would be in the best condition, with three metapopulations in high
condition. The resiliency of metapopulations would be lowest in the
Corvallis recovery zone, with three of five metapopulations ranked
either low or at risk of extirpation. Thus, there is a possibility for
some loss of redundancy, with the Corvallis recovery zone at greatest
risk. We anticipate that most, but not all, of the current
metapopulations would maintain viability under this scenario.
Scenario 2 would be expected to result in decreases in resiliency
and redundancy, with seven metapopulations subject to possible
extirpation. While some metapopulations would likely retain their
resiliency, more than half of the current metapopulations would be at
risk of extinction within the next 25 to 35 years under this scenario.
That said, we projected that all recovery zones would still maintain at
least one metapopulation in high condition. We anticipate that, under
these conditions, Fender's blue butterfly would persist, but its long-
term viability in terms of resiliency, redundancy, and representation
would be greatly diminished even with continued management for the
conservation of the species.
Under Scenario 3, we expect resiliency to increase as several
metapopulations remain at or move into high condition, with others
transitioning from low to moderate condition; seven metapopulations
would be in high condition, five in moderate condition, two in low
condition, and one at risk of extirpation. Redundancy and
representation would be maintained in all recovery zones; all recovery
zones would have a minimum of two metapopulations in high condition. We
anticipate that all of the currently extant metapopulations would
maintain viability under this scenario, with the exception of one that
is small and at risk of extirpation under all scenarios considered.
For the reasons described above under Future Species Condition, we
forecast the future condition of Fender's blue butterfly out for a
period of 25 to 35 years. Although information exists regarding
potential impacts from climate change beyond this timeframe, the
projections depend on an increasing number of assumptions as they move
forward in time, and thus become more uncertain with increasingly long
timeframes. For our purposes, as detailed above, we concluded that a
foreseeable future of 25 to 35 years was the most reasonable period of
time over which we could reasonably rely upon predictions of the future
conservation status of Fender's blue butterfly.

Summary of Comments and Recommendations

In the proposed rule published on June 23, 2021 (86 FR 32859), we

[[Page 2019]]

requested that all interested parties submit written comments on the
proposal by August 23, 2021. We also contacted appropriate State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. A newspaper notice
inviting public to provide comments was published in The Oregonian on
July 4, 2021. We did not receive any requests for a public hearing. All
substantive information we received during the comment period has been
incorporated directly into the final determination or is addressed
below. We received five public comments on the proposed rule, two of
which included substantive comments that are summarized below and
incorporated into this final rule as appropriate.

Peer Reviewer Comments

As discussed under Supporting Documents above, we received
responses from five peer reviewers. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions,
and provided additional information, clarifications, and suggestions to
improve the final SSA report.

Public Comments

(1) Comment: One commenter stated that the species should not be
downlisted until the effects of wildfire, exacerbated by climate
change, on Fender's blue butterfly's critical habitat is better
understood.
Response: We may downlist a species listed as an endangered species
if the best available commercial and scientific data indicate the
species no longer meets the Act's definition of an endangered species,
which is the case for Fender's blue butterfly. Prior research suggests
that fire can increase lupine leaf density and that Fender's blue
butterfly adults recolonize burned areas from nearby unburned lupine
patches by laying eggs on lupine in burned areas the seasons following
fire, such that butterfly abundance quickly rebounds and potentially
exceeds pre-fire levels. In Fall 2019, a prescribed fire at Baskett
Slough National Wildlife Refuge expanded beyond its planned boundaries,
resulting in a significant portion of occupied butterfly habitat being
burned. A multi-year project began in 2020 to gain a better
understanding of the rates of Fender's blue butterfly mortality and the
patterns of recolonization after fire. Preliminary results indicate
that there was no difference in egg density in burned versus unburned
plots even though there were fewer lupine leaves in burned plots; that
there was less larvae activity in burned plots; and that recolonization
occurred within 100 meters of the unburned areas.
Further research may provide important information on the effects
of wildfire on the species, but we know that fire is an essential
ecosystem component, is necessary to maintain prairie habitat so that
it is not converted to shrub land and forest, and is a tool used to
prevent succession to woody vegetation on the landscape. Regular fires
reduce the abundance of shrubs and trees and favor the growth of
grasses needed for Fender's blue butterfly habitat. Based on two
climate change vulnerability models, it appears likely that Fender's
blue butterfly may be negatively affected by long-term consequences of
climate change; however, we are not able to specifically quantify the
magnitude of effects to the species. While vulnerability was influenced
by loss of nectar and host plants, the source of this loss was
identified as invasive plants, not as wildfire. We have made no changes
to the rule in response to this comment.
(2) Comment: One commenter stated that the Service's definition of
a resilient population, 200 butterflies per metapopulation, does not
equate to a healthy or resilient population. The commenter reiterated
the fact that the Service identified the presence of at least 6 ha of
high-quality habitat across three subpopulations (for a total of 18 ha)
as necessary for a healthy population. The commenter stated that the
Service needs to provide more up-to-date analysis in line with the
research that has been done since the recovery plan was published.
Response: The minimum population of 200 mature individuals and 6 ha
of high-quality habitat are both criteria identified in our recovery
plan. Recovery plans provide a roadmap for us and our partners on
methods of enhancing conservation and minimizing threats to listed
species, as well as measurable criteria against which to evaluate
progress towards recovery and assess the species' likely future
condition. They rely on voluntary participation from landowners, land
managers, and other recovery partners. However, they are not regulatory
documents and do not substitute for the determinations and promulgation
of regulations required under section 4(a)(1) of the Act. Recovery is a
dynamic process requiring adaptive management that may or may not fully
follow the guidance provided in an earlier recovery plan. A
determination of whether a valid, extant species should be downlisted
or delisted is made solely on the question of whether it meets the
Act's definition of an ``endangered species'' or of a ``threatened
species.''
In determining whether a metapopulation is of low, moderate, or
high resiliency, we rely on multiple lines of evidence in addition to
the ones the commenter mentioned. In our analysis, a minimum population
criterion of 200 adults is used to gauge how long (in consecutive
years) a metapopulation exists above this threshold. In addition to
this factor, we also considered the average 5-year abundance of a
metapopulation, connectivity within the metapopulation, average prairie
patch size, lupine density, and other demographic and habitat factors
to assess resiliency (see table 6.2 in the SSA for the complete list).
The 200-adult threshold alone does not determine the resiliency of the
population. Rather, it is one of the factors we considered, in addition
to the other factors briefly mentioned here, to determine the
resiliency of a metapopulation.
Continued research and management activities since the recovery
plan was completed have revealed that highly resilient populations do
not necessarily need 6 ha of high-quality habitat. We have observed
multiple populations that thrived in smaller habitat size (Menke 2018,
entire). As noted above, while our recovery plan provides the general
criteria for assessing the status of the species, it is not a
regulatory document, and we are not required to fulfill all of its
provisions and criteria to make a determination under section 4(a)(1)
of the Act that a listed species should be downlisted or delisted. That
said, the recommendation in our SSA and proposed rule that Fender's
blue butterfly populations with high resiliency have 6 ha of high-
quality habitat was to create a baseline for assessing the health of
the metapopulation. The 6 ha of high-quality habitat was not used as a
hard line for determining high versus low resiliency of
metapopulations.
(3) Comment: One commenter stated that the Service did not clearly
identify what ``high-quality habitat'' means.
Response: We acknowledge the imprecise definition of high-quality
habitat in the recovery plan. To address this issue, we split habitat
condition into factors. Some of these factors, such as prairie patch
size and lupine density, are mentioned in our response to the second
comment. In addition to those factors, we also examined the diversity
of nectar species, the composition of

[[Page 2020]]

prairie habitat (woody versus shrub vegetation, and percentages of
invasive species), and the heterogeneity in habitat types. These
metrics allow us to better analyze and determine quality of Fender's
blue butterfly's habitat. Second, we have learned more about the
habitat requirements for Fender's blue butterfly since the completion
of the recovery plan, and we incorporated this new information into our
analysis of current and future conditions in the SSA report.
(4) Comment: One commenter stated that the three future scenarios
in the SSA report intermix potential effects due to climate change and
habitat management effort. The commenter suggested that the Service
introduce three additional scenarios to better capture potential
impacts due to climate change. The commenter provided an example of
changes to Fender's blue butterfly's phenology over the past three
decades as a factor the Service should consider in the future condition
analysis of the SSA. Additionally, the commenter expresses concerns
about the continuing effects of climate change, in light of the
recently released IPCC report in August 2021.
Response: Given the uncertainty inherent in projecting future
biological status, we use scenarios to consider a range of plausible
assumptions about both future stressors, such as climate change, and
conservation efforts, such as habitat management, that may affect
Fender's blue butterfly. Because we have limited confidence in any
single projection of the species' future condition, our future
scenarios seek to capture the range of plausible outcomes. Therefore,
we are not attempting to quantify every effect from climate change or
habitat management in our scenarios. We recognize the effects of
climate change on this species based on climate vulnerability studies
and seek to understand how different types and levels of management
efforts will respond to different climate change scenarios. We thus
create scenarios that examine what the species' future condition will
be in different climate projection models and different levels of
management activities.
The intermixing of climate change and habitat management actions,
therefore, was intentional. In assessing the status of the species, we
considered the risk of extinction across the range of plausible
scenarios. Because the probability of any one scenario occurring is
incalculable, we concluded that adding additional scenarios would not
necessarily better capture potential impacts of climate change. While
the new IPCC report provides a global perspective on projected changes
in climate, a downscaled model specific to the Pacific Northwest has
not yet been released. As a result, we continue to rely on the best
available scientific and commercial information to assess the impact of
climate change on this species.
With regards to considering plant phenology in our future
conditions, we reviewed the information presented in the paper cited in
the comment. While the paper reports that peak flight activity for this
species has changed, the trends in abundance based on phenological
response has not. However, uncertainty remains regarding potential
phenological mismatch with both host and nectar plants, and what, if
any, the impacts will be to Fender's blue butterfly. Our future
scenarios were designed to reflect the major stressors that could
affect the species now and within the foreseeable. Therefore, we
determined that plant phenology does not at present rise to the level
where we would need to incorporate it into our future analysis.
(5) Comment: The commenter provided recommendations on changes to
the proposed 4(d) rule. Broadly, these suggested changes revolved
around tightening the timeframe for habitat management activities for
invasive woody species and the equipment or methods used.
Response: We consulted internal and external experts on this issue.
Overall, their response was that the suggestion was too restrictive and
would interfere with habitat management beneficial to Fender's blue
butterfly. While we acknowledge that larva are on the landscape,
restricting the suggested time period for when landowners can perform
various types of habitat improvements for the butterfly is not
beneficial. The majority of land management activities that reduce
invasive and/or nonnative plant species occur during the spring growing
season, prior to the flight season. Therefore, by restricting
activities outside the flight period (February to April timeline), we
would restrict activities such as mowing tall grasses that can
outcompete lupine and cause further habitat issues in the future.
Overall, the benefit to the species by these management actions
outweighs the potential impacts to individual larvae.

Determination of Fender's Blue Butterfly's Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or
threatened species. The Act defines an ``endangered species'' as a
species that is in danger of extinction throughout all or a significant
portion of its range, and a ``threatened species'' as a species that is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of endangered
species or threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment
of its habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that Fender's blue butterfly has experienced a marked
increase in resiliency, redundancy, and representation across its
historical range, contributing to an overall increase in viability. We
listed Fender's blue butterfly as endangered in 2000, upon a
determination at that time that the species was presently in danger of
extinction throughout all or a significant portion of its range (65 FR
3875, January 25, 2000, p. 3886). Since then, our evaluation of the
best scientific and commercial data available indicates that the
abundance and distribution of Fender's blue butterfly has improved as a
result of metapopulation expansion, metapopulation discovery, and
metapopulation creation, as well as a marked increase in habitat
protection and management across the range of the species. The presence
of Fender's blue butterflies in new counties, the expansion of existing
metapopulations, and the creation of new metapopulations increase both
the geographic range of the species and potential connectivity
throughout the landscape. In addition, active recovery efforts
occurring since Fender's blue butterfly was listed have led to the
amelioration of threats to the species, as detailed above under
Conservation Measures. As described in the Summary of Biological Status
and Factors Affecting Fender's Blue Butterfly, there has been a marked
reduction in threats to the species posed by land conversion for
agriculture and urbanization, heavy grazing, and invasion of prairies
by nonnative, invasive plants and by

[[Page 2021]]

woody species (Factors A and E), helped in large part by effective
habitat restoration and management efforts in the Willamette Valley
(Factor D). Furthermore, threats identified at the time of listing
under such as, overcollection (Factor B) and predation (Factor C) have
not materialized as originally anticipated. Our assessment of the
present condition of the species demonstrates that Fender's blue
butterfly is currently found in 137 sites totaling 15 metapopulations
and 6 independent groups. The metapopulations primarily ranked in high
to moderate condition throughout all three recovery zones established
for the species within its historical range, exhibiting an appreciable
degree of resiliency, redundancy, and representation such that the
species is no longer currently in danger of extinction. Thus, after
assessing the best available information, we conclude that Fender's
blue butterfly no longer meets the Act's definition of an endangered
species.
We next consider whether Fender's blue butterfly meets the Act's
definition of a threatened species. Although threats to the species
have been reduced relative to the time of listing, the species remains
vulnerable. The potential for exposure to pesticides (herbicides,
insecticides) is an ongoing threat to the species throughout its range,
due to the close proximity of Fender's blue butterfly occurrence sites
to agricultural lands as well as areas subject to spraying to control
gypsy moths or mosquitoes. In addition, we have yet to develop an
effective method for eradicating tall oatgrass, a nonnative, invasive
plant that is rapidly expanding into prime prairie habitats and posing
a growing management concern. The low availability of lupine host
plants, and inadequate supply of appropriate lupine seed for
restoration efforts, is also a limiting factor for Fender's blue
butterfly. The threat of overcollection to the long-term viability of
the species is currently unknown but could have negative impacts.
However, these acts are currently prohibited, likely reducing the
threat. Next, we consider Fender's blue butterfly to be a
``conservation-reliant'' species (sensu Scott et al. 2010, p. 92), and
it remains highly vulnerable to loss of its prairie habitat should
active management cease. Because it relies on consistent disturbance to
maintain its early seral prairie habitat, the future viability of
Fender's blue butterfly is dependent upon ongoing management to set
back succession and control the invasion of tall grasses and woody
plant species since the natural processes that once historically
maintained this ecosystem are now largely absent from the Willamette
Valley. The viability of Fender's blue butterfly over the long term
will therefore require addressing influences on viability including
ongoing habitat conversion, loss of habitat disturbance resulting in
habitat succession, invasion by nonnative plants, and exposure to
insecticides and herbicides, as well as continued conservation and
management efforts.
As noted in our endangered determination, there has been marked
improvement in addressing many of the threats affecting the species
including habitat loss due to conversion and invasion by non-native
species. However, these efforts were achieved through management
actions undertaken by the Service and our partners. The continuation of
these efforts is vital due to the fact that succession of Fender's blue
butterfly habitat by invasive species is an ongoing process.
Controlling these invasives through management activities is essential
to preventing succession. If these activities were downscaled or
reduced, it could have drastically harmful effects on the species. This
is demonstrated through our future scenarios in which we project out to
35 years.
Under the Continuing Effects scenario which assumes management
activities continue at the current level, we project the number of
metapopulations with high resiliency will increase from five to seven.
This increase came from metapopulations whose current conditions were
rated as low and moderate. This trend is also reflected in the
Conservation Effort scenario where the number of metapopulations with
high resiliency is projected to increase. However, under the
Considerable Impacts scenario where management efforts are reduced, we
project the species will occur in eight metapopulations with high or
moderate resiliency and zero metapopulations with low resiliency; seven
metapopulations may be extirpated. Under current condition, one
metapopulation may be extirpated. The Considerable Impacts scenario
represents a significant decline because we project a possible
extirpation of almost half of all existing metapopulations. These
declines are due to the stressors discussed above including succession
of native habitats due to invasive species. The potential loss of so
many metapopulations would have severe impacts on the species'
redundancy and representation as these potential losses occur across
all three recovery zones. Overall, our future scenarios demonstrate
that Fender's blue butterfly is a conservation reliant species and
ensuring the continuation of management activities is vital to sustain
and improve the species' condition.
In addition to our future scenarios, we also reviewed the delisting
criteria as identified in the recovery plan. Using those criteria,
eleven of the 15 metapopulations do not meet the minimum criteria of
200 butterflies each year, and connectivity both within and between
metapopulations remains limited due to the reduction and fragmentation
of native prairie habitats, as well as the relative rarity and patchy
distribution of the primary host plant, Kincaid's lupine. In
particular, concern remains for the Corvallis recovery zone in the
middle of the species' range, with metapopulations that are generally
less robust and more vulnerable to deteriorating in condition over time
(under current conditions, only one metapopulation in this zone is
considered highly resilient, compared to two or more in the other
zones).
Thus, after assessing the best available information, including,
but not limited to, the current status of the species, ongoing threats
to the species, and predicted status of Fender's blue butterfly under
various future scenarios, including the consequences of climate change,
we conclude that Fender's blue butterfly is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect of
the Final Policy on Interpretation of the Phrase ``Significant Portion
of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (Final Policy; 79 FR
37578; July 1, 2014) that provided that the Service does not undertake
an analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and

[[Page 2022]]

(2) the species is in danger of extinction in that portion. Depending
on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for Fender's blue butterfly, we choose to
address the status question first--we considered information pertaining
to the geographic distribution of both the species and the threats that
the species faces to identify any portions of the range where the
species is endangered.
For Fender's blue butterfly, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats:
habitat loss from land conversion for agriculture and urbanization;
habitat degradation resulting from invasion of prairies by nonnative
plants or by succession to woody species; insecticides and herbicides;
effects of climate change; small population size; and the cumulative
effects of these threats.
Given the small size of the Willamette Valley, its relatively
homogenous geological features, and the consistent vegetation structure
and composition in Fender's blue butterfly habitat, threats to the
species are equally present throughout its range. For instance, the
human population, and the resulting urbanization and agricultural
needs, are increasing throughout the Willamette Valley such that
habitat loss is not concentrated in any portion of the range (Oregon
Department of Administrative Services 2013). Similarly, habitat
degradation due to invasion by nonnative plants and woody succession
have been detected in all occupied Fender's blue butterfly habitat
(USFWS 2020, p. 59). Insecticides and herbicides are used for both
roadside maintenance and for management to maintain or restore prairie
habitats. Although treatments occur in different habitat areas, we did
not find these activities to be concentrated in any Fender's blue
butterfly metapopulation (USFWS 2020, p. 61).
Due to the limited geographic scope of the Willamette Valley,
climatic variables such as temperature and precipitation do not vary
significantly in different portions of the range currently. Temperature
is projected to increase or somewhat increase throughout the Willamette
Valley while hydrological variables are projected to remain neutral
(Kaye et al. 2013, P. 13). While climate vulnerability models project
that there could be changes in plant composition rangewide (Kaye et al.
2013, pp. 24-25), the impacts from phenological changes to Fender's
blue butterfly metapopulations would likely differ based on their
current conditions rather on their geographic location.
Additionally, the Fender's blue butterfly diet, physical habitat,
and reproductive needs are all consistent throughout its range. Because
of the small geographic scale of the Willamette Valley, the lack of
habitat differences, the same biological requirements, and the uniform
distribution of threats, we have determined that neither individual nor
cumulative threats are concentrated to a degree in the current Fender's
blue butterfly range such that the species would have a different
biological status in any one recovery zone or metapopulation.
We found no concentration of threats in any portion of the range of
Fender's blue butterfly at a biologically meaningful scale, and there
is no evidence to suggest that these threats affect any of the
metapopulations to a greater degree. Additionally, metapopulations that
are in low condition are distributed throughout the species range and
are not concentrated in any single portion of the range. Thus, there
are no portions of the species' range where threats facing the species
are concentrated to a degree where the species in that portion would
have a different status from its rangewide status.
Therefore, no portion of the species' range provides a basis for
determining that the species is in danger of extinction in a
significant portion of its range, and we determine that the species is
likely to become in danger of extinction within the foreseeable future
throughout all of its range. This does not conflict with the courts'
holdings in Desert Survivors v. Department of the Interior, 321 F.
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because,
in reaching this conclusion, we did not need to consider whether any
portions are significant and, therefore, did not apply the aspects of
the Final Policy's definition of ``significant'' that those court
decisions held were invalid.

Determination of Status

Our review of the best available scientific and commercial
information indicates that Fender's blue butterfly meets the Act's
definition of a threatened species. Therefore, we are reclassifying
Fender's blue butterfly as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.

II. Final Rule Issued Under Section 4(d) of the Act

It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a listing on
proposed and ongoing activities within the range of the listed species.
The Act allows the Secretary to promulgate protective regulations for
threatened species pursuant to section 4(d) of the Act. Because we are
reclassifying this species as a threatened species, the prohibitions in
section 9 of the Act will not apply directly. We are, therefore,
adopting a set of regulations to provide for the conservation of the
species in accordance with the Act's section 4(d), which also
authorizes us to apply any of the prohibitions in section 9 to a
threatened species. The 4(d) rule, which includes a description of the
kinds of activities that will or will not constitute a violation,
complies with this policy.

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited

[[Page 2023]]

under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting one or more of the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this 4(d) rule would promote conservation of
Fender's blue butterfly by encouraging management of the habitat for in
ways that facilitate conservation for the species. The provisions of
this 4(d) rule are one of many tools that we would use to promote the
conservation of Fender's blue butterfly.
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.
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 Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.

Provisions of the Final 4(d) Rule

Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a rule that is designed to address the specific
threats and conservation needs of Fender's blue butterfly. As discussed
above in the Summary of Biological Status and Factors Affecting
Fender's Blue Butterfly, we have concluded that Fender's blue butterfly
is likely to become in danger of extinction within the foreseeable
future primarily due to loss and degradation of habitat, including
impacts from habitat conversion, woody succession, and invasive plant
species (Factors A and E); and the potential exposure of Fender's blue
butterfly to herbicides or insecticides and changes in vegetation
composition due to climate change (Factor E). Although the condition of
Fender's blue butterfly has improved, the species remains vulnerable to
these threats due to the small size of many of its metapopulations,
limited connectivity between metapopulations as a consequence of
fragmentation and the reduced extent of native prairie habitats, and
the relative rarity of its lupine host plants on the landscape. Section
4(d) requires the Secretary to issue such regulations as she deems
necessary and advisable to provide for the conservation of each
threatened species and authorizes the Secretary to include among those
protective regulations any of the prohibitions that section 9(a)(2) of
the Act prescribes for endangered species. We find that the
protections, prohibitions, and exceptions in this rule as a whole
satisfy the requirement in section 4(d) of the Act to issue regulations
deemed necessary and advisable to provide for the conservation of
Fender's blue butterfly.
The protective regulations we are finalizing for Fender's blue
butterfly incorporate prohibitions from section 9(a)(1) to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; or selling or offering for sale
in interstate or foreign commerce. This protective regulation includes
all of these prohibitions for Fender's blue butterfly because the
species is at risk of extinction in the foreseeable future and putting
these prohibitions in place will help to regulate a range of human
activities that have the potential to affect Fender's blue butterfly,
including agricultural or urban development; certain agricultural
practices (e.g., pesticide use); heavy levels of grazing; mowing; some
practices associated with forestry (e.g., road construction); roadside
maintenance activities; control of nonnative, invasive plant species;
and direct capture, injury, or killing of Fender's blue butterfly.
We include the prohibition of import, export, interstate and
foreign commerce, and sale or offering for sale in such commerce
because, while the number of metapopulations and abundance within most
metapopulations has increased since the time of listing, Fender's blue
butterfly is not thriving to the degree that the species is considered
to be capable of sustaining trade. Rare butterflies such as Fender's
blue are easily subject to overcollection, and the potential for
population declines as a result of increased collection was one of the
factors considered in the original listing of Fender's blue butterfly
as an endangered species. Fortunately, the potential threat of
overcollection has not thus far been realized, but any increased
incentive for capture of Fender's blue butterfly from the wild would be
highly likely to result in negative impacts to the long-term viability
of the species.
Fender's blue butterfly remains likely to become an endangered
species within the foreseeable future throughout all of its range.
Although the status of the species has improved relative to when it was
first listed as an endangered species, the species has not recovered to
the point that it is capable of sustaining

[[Page 2024]]

unrestricted capture or collection from the wild without the likelihood
of negative impacts to the long-term viability of the species. Because
capture and collection of Fender's blue butterfly remains prohibited as
discussed below, maintaining the complementary prohibition on
possession and other acts with illegally taken Fender's blue butterfly
will further discourage such illegal take. Thus, the possession, sale,
delivery, carrying, transporting, or shipping of illegally taken
Fender's blue butterflies will continue to be prohibited in order to
continue progress toward the conservation and recovery of the species.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental and intentional take will help preserve the remaining
metapopulations of Fender's blue butterfly.
Although the number of metapopulations, and abundance within most
metapopulations, has increased since the time of listing, Fender's blue
butterfly remains a vulnerable species and has not yet attained full
recovery. We do not consider Fender's blue butterfly capable of
withstanding unregulated take, either intentional or incidental to
otherwise lawful activities, without likely negative impacts to the
long-term viability of the species. There are a few circumstances in
which allowing incidental take may ultimately benefit Fender's blue
butterfly as a species and further its recovery. We have outlined such
circumstances below as exceptions to the prohibitions of take. By
allowing take under specified circumstances, the rule will provide
needed protection to the species while allowing management flexibility
to benefit the species' long-term conservation. Anyone taking,
attempting to take, or otherwise possessing a Fender's blue butterfly,
or parts thereof, in violation of section 9 of the Act will still be
subject to a penalty under section 11 of the Act, except for the
actions that are specifically excepted under the 4(d) rule.
Incidental take by landowners or their agents is allowed while
conducting management for the creation, restoration, or enhancement of
short-stature native upland prairie or oak savannah conditions within
areas occupied by Fender's blue butterfly, subject to the restrictions
described herein and as long as reasonable care is practiced. An
important aspect of prairie management is the timing and location of
treatment. Lupine is patchy and distributed in small clumps low to the
ground whereas invasive tall grasses are more uniform. This means the
person doing the herbicide spray or other removal work needs to be able
to recognize the plants to be sure they are treating the correct areas,
the correct species, and know when to treat the area before the seed
has set. To help avoid potential issues, we require a qualified
biologist to be involved in the planning even if the landowners do the
treatment themselves. The biologist does not need to be present on-site
on the day of the treatment but does need to be consulted and involved
beforehand. Reasonable care may include but is not limited to: (1)
Procuring and/or implementing technical assistance from a qualified
biologist on timing and location of habitat management activities prior
to implementation; and (2) using best efforts to avoid trampling or
damaging Fender's blue butterflies (eggs, larvae, pupae, adults) and
their host and nectar plants during all activities.
Fender's blue butterfly is a conservation-reliant species. Active
management for prairie conditions within the historical range of
Fender's blue butterfly is essential for long-term viability and is one
of the key recovery actions identified for the species. Allowing
certain forms of active management for the purpose of creating,
restoring, or enhancing native upland prairie or oak savannah
conditions is necessary to facilitate and encourage the implementation
of conservation measures that will address one of the primary threats
to Fender's blue butterfly, the loss or degradation of native short-
stature prairie or oak savannah habitat within the Willamette Valley.
Restoration actions may include manual, mechanical, and herbicidal
treatments for invasive and nonnative plant control that does not
result in ground disturbance, including mowing and planting by hand of
native vegetation, especially native food resources for Fender's blue
butterfly larvae (Kincaid's, longspur, or sickle-keeled lupine) or
adults (native nectar species). Prescribed burning is a complex
endeavor, and there is potential for impacts to Fender's blue butterfly
beyond that which local metapopulations or subpopulations may be
capable of withstanding should the burn exceed its intended geographic
limits; therefore, we do not provide an exception for take as a result
of prescribed burning in the 4(d) rule. Take coverage for prescribed
burning can be obtained through section 7 consultation, a section
10(a)(1)(A) permit, or through the Programmatic Restoration Opinion for
Joint Ecosystem Conservation by the Services (PROJECTS) program.
Providing landowners management flexibility facilitates the
creation, restoration, and enhancement of native upland prairie and oak
savannah habitats. Habitat is considered occupied by Fender's blue
butterfly if it is within the historical range of the species and
supports or may support lupine, unless a qualified biologist using
direct observation has conducted surveys for adult Fender's blue
butterfly during the April 15 to June 30 flight period and documented
no adult butterflies. Occupied habitat also includes all nectar habitat
within 0.5 km (0.3 miles) of habitat containing at least one of the
three host lupine species and that is occupied by Fender's blue
butterfly. Unsurveyed areas within 2 km (1.25 mi) of a known Fender's
blue butterfly population shall be assumed occupied if no surveys are
conducted. This 4(d) rule authorizes landowners to plant native
vegetation by hand; conduct mechanical and manual treatments to control
woody and invasive nonnative plants; perform tractor and hand mowing;
and apply herbicides within occupied Fender's blue butterfly habitat.
To prevent possible negative effects on Fender's blue butterfly or its
host lupine, the following time restrictions apply to the exceptions to
take by landowners in areas occupied by Fender's blue butterfly:
(1) Mechanical treatments for control of woody and invasive and
nonnative plant species that do not result in ground disturbance are
authorized within occupied habitat outside of the butterfly flight
period (April 15 to June 30) to avoid impacts to adult butterflies.
(2) To prevent invasive plant species establishment, tractor mowing
is authorized throughout sites with Fender's blue butterflies before
February 15 (when lupine emerges) and after August 15 (when lupine
undergoes senescence). Mowing with handheld mowers is authorized
throughout the year; however, a buffer of at least 8 m (25 ft) must be
maintained between the mower and any individual lupine plant during
Fender's blue butterfly's flight season (April 15 to June 30).
(3) Weed wiping and broadcast application of herbicides are
authorized outside of the flight period of April 15 to June 30;
however, additional timing and use restrictions are required based on
the chemicals used. Contact the Oregon Fish and Wildlife Office prior
to herbicide implementation for a list of

[[Page 2025]]

currently acceptable herbicides, their application methods, their
appropriate timing of use, and best management practices associated
with herbicide use.
To better refine conservation activities affecting the species, we
are amending the proposed rule on manual treatment. In this final rule,
manual treatments for control of woody and invasive and nonnative plant
species that do not result in ground disturbance are authorized within
occupied habitat year-round. Additionally, planting by hand of native
vegetation is authorized year-round.
We expect that the actions and activities that are allowed under
this 4(d) rule, while they may cause some minimal level of harm or
disturbance to individual Fender's blue butterflies, will on balance
facilitate efforts to conserve and recover the species because they
will make it easier for our State and private partners to implement
recovery actions and restore the habitats required by Fender's blue
butterfly. The loss or degradation of early seral prairie habitats is
one of the primary threats to Fender's blue butterfly, and disturbance
(such as that described under the take exemptions provided here) is
required to restore or maintain the habitat characteristics that are
essential to the survival of this conservation-reliant species.
In addition to other standard exceptions applied to this species in
this 4(d) rule, we may issue permits to carry out otherwise prohibited
activities, including those described above, involving threatened
wildlife under certain circumstances. Regulations governing permits are
codified at 50 CFR 17.32. With regard to threatened wildlife, a permit
may be issued for the following purposes: for scientific purposes, to
enhance propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, will be able to conduct
activities designed to conserve Fender's blue butterfly that may result
in otherwise prohibited take without additional authorization.
Nothing in this 4(d) rule will change in any way the recovery
planning provisions of section 4(f) of the Act, the consultation
requirements under section 7 of the Act, or our ability to enter into
partnerships for the management and protection of Fender's blue
butterfly. However, interagency cooperation may be further streamlined
through planned programmatic consultations for the species between us
and other Federal agencies, such as the existing programmatic
consultation on habitat restoration actions in the existing PROJECTS
biological opinion (USFWS 2015, entire), which includes provisions for
management actions that benefit Fender's blue butterfly.

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). This includes listing, delisting, and reclassification
rules, as well as critical habitat designations and species-specific
protective regulations promulgated concurrently with a decision to list
or reclassify a species as threatened. The courts have upheld this
position (e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)
(critical habitat); Center for Biological Diversity v. U.S. Fish and
Wildlife Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005)
(concurrent 4(d) rule)).

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 Tribes will
be affected by this rule because there are no Tribal lands or interests
within or adjacent to Fender's blue butterfly habitat.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov under Docket No. FWS-R1-
ES-2020-0082 or upon request from the Oregon Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this rule are the staff members of the U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--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. 17.11, paragraph (h), amend the List of Endangered and
Threatened Wildlife by revising the entry for ``Butterfly, Fender's
blue'' under INSECTS to read as follows:

[[Page 2026]]

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Butterfly, Fender's blue........ Icaricia icarioides Wherever found..... T............... 65 FR 3875, 1/25/
fenderi. 2000; 88 FR
[INSERT Federal
Register PAGE
WHERE THE
DOCUMENT BEGINS],
1/12/2023; 50 CFR
17.47(f); \4d\ 50
CFR 17.95(i).\CH\

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

0
3. In Sec. 17.12, paragraph (h), amend the List of Endangered and
Threatened Plants by revising the entry for ``Lupinus sulphureus ssp.
kincaidii'' under FLOWERING PLANTS to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Lupinus sulphureus ssp. Kincaid's lupine... Wherever found..... T............... 65 FR 3875, 1/25/
kincaidii. 2000; 50 CFR
17.96.\CH\

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

0
4. In Sec. 17.47, add paragraph (f) to read as follows:

Sec. 17.47 Special rules--insects.

* * * * *
(f) Fender's blue butterfly (Icaricia icarioides fenderi)--(1)
Definitions. As used in this paragraph (f), the following terms have
these meanings:
(i) Occupied habitat. Habitat within the historical range of
Fender's blue butterfly in the Willamette Valley of Oregon that
supports or may support lupine, unless a qualified biologist using
direct observation has conducted surveys for adult Fender's blue
butterfly during the April 15 to June 30 flight period and documented
no adult butterflies. Occupied habitat also includes all nectar habitat
within 0.5 kilometers (km) (0.3 miles (mi)) of habitat containing at
least one of the three host lupine species and that is occupied by
Fender's blue butterfly. Unsurveyed areas within 2 km (1.25 mi) of a
known Fender's blue butterfly population shall be assumed occupied if
no surveys are conducted.
(ii) Qualified biologist. An individual with a combination of
academic training in the area of wildlife biology or related discipline
and demonstrated field experience in the identification and life
history of Fender's blue butterfly, or in habitat restoration methods
to benefit Fender's blue butterfly. If capture of individuals is
required for accurate identification, the individual must hold a valid
permit under section 10(a)(1)(A) of the Act.
(iii) Lupine. Any one of the three species of lupines known to be
required as host plants for the larvae of Fender's blue butterfly:
Kincaid's lupine (Lupinus sulphureus ssp. kincaidii), longspur lupine
(L. arbustus), and sickle-keeled lupine (L. albicaulis).
(2) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to Fender's blue butterfly. Except as
provided under paragraph (f)(3) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(3) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iv) Take, as set forth at Sec. 17.31(b).
(v) Take incidental to an otherwise lawful activity caused by:
(A) Mechanical removal of invasive and/or nonnative plant species.
Mechanical treatments for invasive and nonnative plant control
(including encroaching native woody species) that do not result in
ground disturbance are

[[Page 2027]]

authorized within occupied habitat outside the butterfly's flight
period of April 15 to June 30, provided:
(1) Landowners or their agents conducting invasive or nonnative
plant removal use reasonable care, which includes, but is not limited
to, procuring and/or implementing technical assistance from a qualified
biologist on timing and location of habitat management activities and
avoidance of ground disturbance to avoid impacts to larvae or pupae.
Best management practices for felling of trees, removal of vegetation
off-site, and temporary piling of cut vegetation on-site are available
from the Oregon Fish and Wildlife Office.
(2) Reasonable care during all activities includes best efforts to
avoid trampling or damaging Fender's blue butterflies (eggs, pupae,
larvae, and adults) and their host and nectar plants. Foot traffic
shall be minimized in occupied habitat, and especially in the area of
any lupine plants.
(B) Manual removal of invasive and/or nonnative plant species.
Manual treatments for invasive and nonnative plant control (including
encroaching native woody species) that do not result in ground
disturbance are authorized within occupied habitat year-round,
provided:
(1) Landowners or their agents conducting invasive or nonnative
plant removal use reasonable care, which includes, but is not limited
to, procuring and/or implementing technical assistance from a qualified
biologist on location of habitat management activities and avoidance of
ground disturbance to avoid impacts to larvae or pupae. Best management
practices for felling of trees, removal of vegetation off-site, and
temporary piling of cut vegetation on-site are available from the
Oregon Fish and Wildlife Office.
(2) Reasonable care during all activities includes best efforts to
avoid trampling or damaging Fender's blue butterflies (eggs, pupae,
larvae, and adults) and their host and nectar plants. Foot traffic
shall be minimized in occupied habitat, and especially in the area of
any lupine plants.
(C) Mowing. Tractor mowing for invasive and nonnative plant control
(including encroaching native woody species) and the maintenance of
early seral conditions is authorized throughout occupied Fender's blue
butterfly habitat before February 15 when lupine emerges and after
August 15 when lupine undergoes senescence.
(1) Mowing with handheld mowers is authorized throughout the year;
however, a buffer of at least 8 meters (25 feet) must be maintained
between the mower and any individual lupine plant during Fender's blue
butterfly flight season (April 15 to June 30).
(2) Prior to and during mowing, landowners or their agents must use
reasonable care, which includes, but is not limited to, procuring and
implementing technical assistance from a qualified biologist on timing
and location of habitat management activities prior to conducting work;
avoidance of ground disturbance to avoid impacts to larvae or pupae;
and using best efforts during all activities to avoid trampling or
damaging Fender's blue butterflies (eggs, pupae, larvae, and adults)
and their host and nectar plants. Foot traffic shall be minimized in
occupied habitat, and especially in the area of any lupine plants.
(D) Herbicide application for removal of invasive and/or nonnative
plant species by hand wiping, wicking, and spot-spray applications.
Hand wiping, wicking, and spot-spray applications of herbicides for
either the removal of nonnative, invasive plant species or to prevent
resprouting of woody species subsequent to cutting are authorized year-
round.
(E) Herbicide application for removal of invasive and/or nonnative
plant species by weed wiping and broadcast application. Weed wiping and
broadcast application of herbicides are authorized outside of the
flight period of April 15 to June 30; however, additional timing and
use restrictions are required based on the chemicals used. Contact the
Oregon Fish and Wildlife Office prior to herbicide application for a
list of currently acceptable herbicides, their application methods,
their appropriate timing of use, and best management practices
associated with herbicide use.
(1) Prior to and during herbicide application, landowners or their
agents must use reasonable care, which includes, but is not limited to,
procuring and implementing technical assistance from a qualified
biologist on habitat management activities prior to conducting the
work; complying with all State and Federal regulations and guidelines
for application of herbicides; and avoiding broadcast spraying in areas
adjacent to occupied habitat if wind conditions are such that drift
into the occupied area is possible.
(2) Landowners or their agents conducting herbicide application
must use best efforts to avoid trampling or damaging Fender's blue
butterflies (eggs, pupae, larvae, and adults) and their host and nectar
plants. Foot traffic shall be minimized in occupied habitat, and
especially in the area of any lupine plants.
(F) Ground disturbance for the purpose of planting native
vegetation. Limited ground disturbance (digging and placement by hand)
is authorized for the purpose of planting native vegetation as part of
habitat restoration efforts, especially native food resources used by
larvae and adults, in areas occupied by Fender's blue butterfly.
(1) Larvae of Fender's blue butterfly require lupine. For adults,
preferred native nectar sources include, but are not limited to, the
following flower species: tapertip onion (Allium acuminatum),
narrowleaf onion (Allium amplectens), Tolmie's mariposa lily
(Calochortus tolmiei), small camas (Camassia quamash), Clearwater
cryptantha (Cryptantha intermedia), Oregon sunshine (Eriophyllum
lanatum), Oregon geranium (Geranium oreganum), Oregon iris (Iris
tenax), meadow checkermallow (Sidalcea campestris), rose checkermallow
(Sidalcea virgata), and purple vetch (Vicia americana).
(2) Prior to and during planting of native vegetation, landowners
or their agents must use reasonable care, which includes, but is not
limited to, procuring and implementing technical assistance from a
qualified biologist on timing and location of habitat management
activities and using best efforts during all activities to avoid
trampling or damaging Fender's blue butterflies (eggs, pupae, larvae,
and adults) and their host and nectar plants. Foot traffic shall be
minimized in occupied habitat, and especially in the area of any lupine
plants.
(G) Summary of authorized methods and timing of habitat restoration
activities for Fender's blue butterfly.

Table 1 to Paragraph (f)(3)(v)(G)
------------------------------------------------------------------------
Dates authorized for use in occupied
Management activity habitat
------------------------------------------------------------------------
Mechanical treatments............. Outside of the flight period of
April 15 to June 30.
Manual treatments................. Year-round.
Mowing--tractors.................. Before February 15 and after August
15.

[[Page 2028]]

Mowing--handheld.................. Year-round, with a buffer of 8
meters (25 feet) between the mower
and any individual lupine plant
during the flight period of April
15 to June 30.
Herbicides--hand wiping........... Year-round.
Herbicides--wicking............... Year-round.
Herbicides--spot-spray............ Year-round.
Herbicides--broadcast spray....... Outside of the flight period of
April 15 to June 30.*
Herbicides--weed wiping........... Outside of the flight period of
April 15 to June 30.*
Planting native vegetation........ Year-round.
------------------------------------------------------------------------
* Additional timing restrictions will apply based on the chemicals used.
Contact the Oregon Fish and Wildlife Office for additional
information.

(H) Reporting and disposal requirements. Any injury or mortality of
Fender's blue butterfly associated with the actions excepted under
paragraphs (f)(3)(v)(A) through (E) of this section must be reported to
the Service and authorized State wildlife officials within 5 calendar
days, and specimens may be disposed of only in accordance with
directions from the Service. Reports should be made to the Service's
Office of Law Enforcement (contact information is at Sec. 10.22 of
this subchapter) or the Service's Oregon Fish and Wildlife Office and
to the State of Oregon Department of Parks and Recreation, Stewardship
Section, which has jurisdiction over invertebrate species. The Service
may allow additional reasonable time for reporting if access to these
offices is limited due to closure.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-00037 Filed 1-11-23; 8:45 am]
BILLING CODE 4333-15-P