[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Rules and Regulations]
[Pages 28874-28916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09219]
[[Page 28873]]
Vol. 88
Thursday,
No. 86
May 4, 2023
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Slickspot Peppergrass (Lepidium papilliferum); Final Rule
Federal Register / Vol. 88 , No. 86 / Thursday, May 4, 2023 / Rules
and Regulations
[[Page 28874]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2010-0071; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE61
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Slickspot Peppergrass (Lepidium papilliferum)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
finalize the designation of critical habitat for slickspot peppergrass
(Lepidium papilliferum) under the Endangered Species Act of 1973 as
amended (Act). In total, approximately 31,569 hectares (78,009 acres)
in Ada, Elmore, Gem, Payette, and Owyhee Counties in Idaho fall within
the boundaries of the final critical habitat designation. The effect of
this final rule is to designate critical habitat for the slickspot
peppergrass, which is a threatened species under the Act.
DATES: This rule is effective June 5, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov, under Docket No. FWS-R1-ES-2010-0071, and at
https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at https://www.regulations.gov under Docket No. FWS-R1-ES-
2010-0071.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at https://www.regulations.gov, under
Docket No. FWS-R1-ES-2010-0071, and at https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Additional supporting
information that we developed for this critical habitat designation
will be available on the Service's website (https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum), at https://www.regulations.gov, or both.
FOR FURTHER INFORMATION CONTACT: Lisa Ellis, State Supervisor, U.S.
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S
Vinnell Way, Room 368, Boise, ID 83709; telephone 208-378-5243.
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, any species that is
determined to be an endangered or threatened species requires critical
habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process. We reinstated slickspot peppergrass
as a threatened species under the Act effective September 16, 2016 (81
FR 55058, August 17, 2016), published an updated revised proposed rule
to designate critical habitat on July 23, 2020 (85 FR 44584), and are
now finalizing our designation of critical habitat for the species.
What this rule does. This final rule designates critical habitat
for slickspot peppergrass on approximately 31,569 hectares (ha) (78,009
acres (ac)) in Ada, Elmore, Gem, Payette, and Owyhee Counties in Idaho.
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary) to designate critical habitat
concurrent with listing to the maximum extent prudent and determinable.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographic area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographic area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any other relevant impacts of specifying any particular
area as critical habitat. Also, under section 4(b)(2) of the Act, the
Secretary may exclude an area from critical habitat if she determines
that the benefits of such an exclusion outweigh the benefits of
specifying such areas as part of critical habitat, unless she
determines, based on the best scientific data available, that the
failure to designate such area as critical habitat will result in the
extinction of the species.
The critical habitat we are designating in this rule, consisting of
four units and seven subunits comprising 31,569 ha (78,009 ac) for
slickspot peppergrass, constitutes our current best assessment of the
areas that meet the definition of critical habitat for the species.
Economic analysis. In order to consider economic impacts, we
previously prepared an analysis of the economic impacts of the proposed
critical habitat designation and related factors. The final economic
analysis, completed March 12, 2012, was based on the 2011 proposed
critical habitat and concluded that critical habitat designation would
not likely affect levels of economic activity or conservation measures
being implemented within the proposed critical habitat area. The final
economic analysis is available at https://www.regulations.gov under the
docket number for this rulemaking, which is FWS-R1-ES-2010-0071.
Previous Federal Actions
On December 7, 2009, slickspot peppergrass was listed as a
threatened species throughout its range (74 FR 52014, October 8, 2009).
On May 10, 2011, we published a proposed rule to designate critical
habitat for slickspot peppergrass (76 FR 27184). On August 8, 2012, the
District Court of Idaho vacated the final rule listing slickspot
peppergrass as a threatened species under the Act and remanded the rule
to the Service for further consideration consistent with the Court's
opinion (Gov. C.L. ``Butch'' Otter, et al. v. Ken Salazar, et al., Case
No. 1:11-cv-00358-CWD [D. Idaho]). On February 12, 2014, we
concurrently proposed reinstatement of threatened status for the
species and a revised proposed designation of critical habitat (79 FR
8416 and 79 FR 8402, respectively). On August 17, 2016, we published a
final rule reinstating threatened status for the species under the Act
(81 FR 55058). On July 23, 2020, we published an updated revised
proposed rule to designate critical habitat (85 FR 44584).
Summary of Changes From the Proposed Rule
Our July 23, 2020, revised proposed critical habitat rule (85 FR
44584) detailed changes from the previous
[[Page 28875]]
proposed and revised critical habitat rules (76 FR 27184, May 10, 2011;
79 FR 8402, February 12, 2014). Here, we summarize changes from our
July 23, 2020, proposed rule (85 FR 44584) to this final rule resulting
from the comments we received during the public comment period, as
discussed below under Summary of Comments and Recommendations.
1. We added six new Element Occurrences (EOs) (recorded species
locations) that were occupied at the time of listing but had not been
evaluated in our proposed rule for physical or biological features
(PBFs) essential to the conservation of the species. For this final
rule, we determined that these six EOs contained one or more PBFs. See
the Criteria and Methodology Used To Identify Critical Habitat section,
below, for details.
2. In our proposed rule, we did not include E.O. 57 based on
surveys that indicated it did not meet our PBF criteria. However, we
re-evaluated the PBFs for E.O. 57 and determined that it contained one
or more PBFs; therefore, we are including it in our final critical
habitat designation. See the Criteria and Methodology Used to Identify
Critical Habitat section, below, for details.
3. We included D-ranked EOs, which represent the lowest ranked
occupied EOs. The E.O. alphabetical ranking system measures viability
of a species or ecological integrity of the community and was developed
by NatureServe (2002, 2020b). The Idaho Department of Fish and Game
(IDFG) uses this system, and we relied on IDFG rankings to determine if
EOs contained one or more PBFs. Our rationale for including D-ranked
EOs is provided in the section Criteria and Methodology Used to
Identify Critical Habitat, below.
4. We increased the buffer around EOs from 250 meters (m) (820 feet
(ft)) to 500 m (1,640 ft). This increase is based on foraging distances
of most of the important pollinators of slickspot peppergrass instead
of using the foraging distance of a single pollinator (solitary bee),
which was how we determined the buffer size in our proposed rule. We
provided additional citations on foraging distances of the other
pollinator species to support this increase in the section Physical or
Biological Features Essential to the Conservation of the Species,
below.
5. We excluded approximately 2,736 ha (6,761 ac) of State of Idaho
land and 4,508 ha (11,141 ac) of private and municipal (county and
city) land from our critical habitat designation under section 4(b)(2)
of the Act, as detailed in Considerations of Impacts under Section
4(b)(2) of the Act, below.
6. We clarified our description of the PBFs to provide more context
but did not change their meaning. A description of PBFs is in the
section Physical or Biological Features Essential to the Conservation
of the Species with additional discussion provided under Criteria and
Methodology Used to Identify Critical Habitat, below.
7. We deleted ``honeybees'' from our description of PBF 4 under the
Summary of Essential Physical or Biological Features and from paragraph
(2)(iv) of the rule. Please see Physical or Biological Features
Essential to the Conservation of the Species for additional information
and citations.
8. We made small, nonsubstantive clarifications and corrections
throughout this final rule to ensure consistency, clarify information,
reduce redundancy, update scientific names of plants, and update or add
new references.
The combined effect of the changes we have made from our July 23,
2020, proposed rule (85 FR 44584) to this final rule result in an
increase from a proposed designation of critical habitat of 17,049 ha
(42,129 ac) to a final designation of critical habitat of approximately
31,569 ha (78,009 ac). The reasons for this increase are mentioned in
the list above and explained more thoroughly in the following sections
of the preamble.
Supporting Documents
In 2011, we sought comments from five independent specialists to
ensure that our proposed critical habitat designation was based on
scientifically sound data and analyses regarding the 2011 proposed
rule. We received responses from three of the individuals. In 2020, we
completed a species status assessment (SSA) report for slickspot
peppergrass. 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), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
In August 2018, we solicited expert opinion and received responses from
four independent specialists with scientific expertise on slickspot
peppergrass and its habitat regarding our draft SSA report. The purpose
of peer review is to ensure that our critical habitat designations are
based on scientifically sound data, assumptions, and analyses. The peer
reviewers generally concurred with our methods and conclusions, and
provided additional information, clarifications, and suggestions to
improve the SSA report. That information was incorporated into the
final SSA that informed our proposed and final designation of critical
habitat. We also considered all comments and information we received
from the public during comment periods for previous proposals (76 FR
27184, May 10, 2011; 79 FR 8402, February 12, 2014; 85 FR 44584, July
23, 2020).
The final economic analysis (dated March 12, 2012), which documents
the potential economic effects of the designation, considered all
public comments and any new information as of 2011 (IEc 2012).
The final SSA report (USFWS 2020) and final economic analysis (IEc
2012) are available at https://www.regulations.gov under Docket No.
FWS-R1-ES-2010-0071.
Summary of Comments and Recommendations
In our revised proposed rule published on July 23, 2020 (85 FR
44584), we requested that all interested parties submit written
comments on the proposal by September 21, 2020. We also stated in the
July 23, 2020, revised proposed rule (85 FR 44584) that comments
submitted during the previous comment periods for the May 10, 2011,
proposed rule (76 FR 27184) and the February 12, 2014, revised proposed
rule (79 FR 8402) would be considered. For all comment periods, we
reached out to appropriate Federal and State agencies, Tribes,
scientific experts and organizations, and other interested parties and
inviting them to comment on the proposal. Newspaper legal notices
requesting public comments were published in the Idaho Statesman. We
did not receive any requests for a public hearing during any of our
comment periods.
During the first comment period (76 FR 27184, May 10, 2011), we
received 16 comment letters addressing the proposed critical habitat
designation for slickspot peppergrass. Of these comments, 3 were from
peer reviewers and 13 were from public organizations or individuals.
During the second comment period (79 FR 8402, February 12, 2014), we
received 17 comment letters addressing the proposed critical habitat
designation or the draft economic analysis. For the most recent comment
period (85 FR 44584, July 23, 2020), we received 23 comment letters on
the proposed rule to designate
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critical habitat for slickspot peppergrass; the majority of commenters
supported the designation of critical habitat. All substantive
information provided during these comment periods was either
incorporated directly into this final rule or is addressed below.
Comments that we incorporated as changes in our revised proposed rules
(79 FR 8402, February 12, 2014; 85 FR 44584, July 23, 2020) or into
this final rule are not presented here or are addressed briefly. In
addition, we received comments outside the scope of this rulemaking
action such as comments related to threats (e.g., livestock grazing,
wildfire, Owyhee harvester ants, nonnative invasive plants, inadequate
management practices, pesticides, and off-road vehicle use),
conservation measures identified in conservation plans (CCA, State of
Idaho et al. 2006; CA, BLM 2014; INRMP, U.S. Air Force 2017), and
management actions, or the lack thereof, that commenters believed were
a threat to the conservation of slickspot peppergrass; we did not
respond to comments that were outside the scope of this rulemaking.
Comments regarding threats have been addressed in the slickspot
peppergrass final listing rule (74 FR 52014, October 8, 2009), the
reinstatement of the listing rule (81 FR 55058, August 17, 2016), and
the SSA (USFWS 2020). We consolidated the comments by topic and provide
a brief response, below.
Peer Reviewer Comments
We solicited expert opinion in 2011 from five appropriate and
independent specialists regarding the May 10, 2011, proposed rule (76
FR 27184). We received input from three of the individuals. Since that
time, we have implemented a standard practice of developing an SSA as
the scientific foundation to inform our section 4 rulemaking (e.g.,
listing determinations and recovery plans). In 2018, we initiated the
development of an SSA for slickspot peppergrass, and in August 2018, we
solicited expert opinion from four independent specialists with
scientific expertise on slickspot peppergrass and its habitat regarding
our draft SSA report. These four individuals generally concurred with
the information and conclusions in the draft SSA report, including our
use of data from the Idaho Department of Fish and Game (IDFG) (Kinter
and Miller 2016, entire). These data were used extensively in the
development of the SSA and in our proposed and final critical habitat
rules. Peer review comments are incorporated into the SSA report and
this final rule as appropriate.
Comment 1: One peer reviewer and several commenters expressed
concern that the proposed designation of critical habitat did not
include D-ranked EOs, (representing the lowest quality extant slickspot
peppergrass EOs). The reviewer stated that higher ranked EOs are likely
more important to the conservation of slickspot peppergrass; however,
the omission of the smaller EOs (which could be ranked lower) from the
designation fails to recognize that these populations may harbor
genetic variation important to the overall genetic variability of the
species. This peer reviewer added that given the prospect of climate
change and the continued deterioration of slickspot peppergrass
habitat, maintaining and protecting the highest possible levels of
genetic diversity may prove important to the long-term survival of the
species. Another peer reviewer agreed that several EOs should be added
to critical habitat.
Our Response: After careful consideration of the comments, we are
adding D-ranked EOs to our critical habitat designation for this final
rule. We present our rationale for adding D-ranked EOs in the Criteria
and Methodology Used to Identify Critical Habitat section, below.
Comment 2: One peer reviewer recommended that we include at least a
250-m (820-ft) area surrounding slickspot peppergrass habitat to ensure
that pollinators are able to maintain their populations. In addition,
multiple commenters disagreed with information in the proposed rule (85
FR 44584, July 23, 2020) regarding using a 250-m (820-ft) pollinator
buffer to reflect a ``reasonable mid-point'' for the foraging range of
a solitary bee when the actual mid-point of the range cited in the
proposed rule was 375 m (1,230 ft). Several commenters indicated that a
larger buffer (e.g., 600-m buffer) would be necessary to include all
potential pollinators that might benefit slickspot peppergrass.
Conversely, one commenter stated that we should use the shortest flight
distance (150 m (492 ft)) of a solitary bee cited in the proposed rule.
Another commenter questioned our use of scientific literature (i.e.,
Steffan-Dewenter et al. 2002; Gathmann and Tscharntke 2002) that used
research on solitary bees from study plots in Germany to extrapolate to
solitary bees in southern Idaho. They went on to say that these cited
works are not proven to be relevant to the sagebrush steppe where
slickspot peppergrass is found and, therefore, not the ``best science''
relevant to the species.
Our Response: After considering comments and reviewing additional
literature, we determined that increasing the buffer around occupied
EOs is appropriate. To ensure habitat of sufficient quantity and
quality is available to support nesting and egg laying, feeding, and
reproduction of slickspot peppergrass's pollinators, we increased the
buffer around each EO from 250 m (820 ft) to 500 m (1,640 ft) based on
our consideration of the foraging ranges of all important pollinators
of slickspot peppergrass and not solely on the foraging range of a
medium-sized solitary bee. Additional information and citations to
support this increase in the buffer can be found in the section,
Physical or Biological Features Essential to the Conservation of the
Species, below.
Regarding our use of peer-reviewed literature based on research
conducted in Germany, we used the best available scientific information
on pollinator foraging ranges. Although the studies were conducted in
Germany and not in sagebrush-steppe habitat, the information pertained
to flight distances based on bee body size, which we can extrapolate to
similarly sized bees occurring in sagebrush-steppe habitat.
Comment 3: One peer reviewer commented that the 250-m (820-ft) area
around EOs may not adequately protect adjacent suitable slick spots to
allow slickspot peppergrass populations to shift or expand as
conditions allow within current EOs and recommended increasing the
buffer to 500 m (1,640 ft). In addition, this reviewer and several
commenters recommended including unoccupied slick spots that border
proposed critical habitat areas. Another peer reviewer proposed
including more of the identified slickspot peppergrass habitat (slick
spots present) in the Mountain Home Area in Idaho as critical habitat.
This same reviewer also stated their opinion that more habitat needs to
be designated to address fragmentation, ensure pollination, and
maintain genetic diversity.
Our Response: Based on the best scientific information available,
we are designating EOs that are currently occupied by slickspot
peppergrass (i.e., EOs B-D) as well as increasing the buffer around
each occupied EO. The increased buffer will ensure habitat of
sufficient quantity and quality is available to support the nesting,
feeding, and reproduction for pollinators of slickspot peppergrass in
occupied slick spots. We are not designating any areas outside the
geographical area occupied by the species at the time of listing
because we did not identify any
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unoccupied areas that were essential for the conservation of the
species.
Comment 4: One peer reviewer recommended we include two recently
discovered EOs as critical habitat to allow for more connectivity. In
addition, several commenters requested that new EOs found during
surveys from 2017-2020 and reported by the Bureau of Land Management
(BLM) be included in our critical habitat designation.
Our Response: After receiving several comments on newly identified
EOs that were discovered during surveys by the BLM between 2016 and
2018, we identified nine EOs in IDFG's Idaho Fish and Wildlife
Information System (IFWIS) database that were unranked. At our request,
the IDFG reviewed all nine of the EOs. Six of the EOs (EOs 122 (Unit
3a), and 123, 124, 727, 728, 729 (Unit 4)) had enough associated
information for the IDFG to conduct their ranking process. All six met
our criteria for critical habitat as defined by the PBFs essential to
the conservation of the species. EO 122 was occupied at the time of
listing (2016). The other five EOs were found in 2017 and were likely
occupied at the time of listing because these slick spots had not been
surveyed prior to 2017, and slickspot peppergrass is not likely to
colonize new areas to the extent to which these EOs were populated
(number of plants ranged from 13 to 766 per EO) within a year.
Therefore, all six EOs are included in our final critical habitat
designation. We did not include the remaining three EOs (EOs 730, 731,
and 732) in Unit 4 because they lacked enough information to be ranked
according to IDFG's criteria, which we rely on to determine if an EO
has one or more PBFs.
State Comments
Comment 5: The State of Idaho commented that in 2019 the IDFG
relocated slickspot peppergrass at EO 114 and mapped additional plants
about 3 kilometers (km) (1.9 miles (mi)) to the southeast based on a
1911 herbarium collection. Another commenter stated that the proposed
critical habitat polygons imply that slickspot peppergrass populations
do not exist in significant numbers outside the defined area. They went
on to cite examples where additional occupied slick spots were found
during IDFG surveys (Miller and Kinter 2018, pp. 5, 7; Miller and
Kinter 2019, p. 5). The commenter further stated that unless we use
supporting research to delineate critical habitat boundaries, any
boundaries we designate would be arbitrary.
Our Response: For this final rule, we used the most current EO data
from the IDFG (IFWIS July 2021). As discussed above in our response to
Comment 4 and in Criteria and Methodology Used To Identify Critical
Habitat, we also added six new EOs to our critical habitat designation
that were in the IDFG database but had not been ranked by IDFG
biologists. And while some uncertainty will always exist, the
information used in this final rule represents the best available
scientific information upon which to make a critical habitat
designation for slickspot peppergrass. Further, survey and monitoring
work for this species and its habitat will continue into the future and
is not limited to critical habitat boundaries. Additional occupied
habitat identified during future surveys would be considered during
section 7 consultations if there is a Federal nexus (i.e., any action
funded, authorized (permitted), or carried out by a Federal agency) and
in our recovery efforts for the species. Please refer to the Background
section, below, for further discussion.
Comment 6: The State and one other commenter remarked that the
proposed rule (85 FR 44584, July 23, 2020) states that for an EO to
fulfill the criteria described in PBF 1, both the slick spot geological
feature needs to be present (PBF 1(a)), and the site needs to contain
sparse vegetation with absent, or limited to low to moderate, invasive
nonnative plant cover (PBF 1(b)). The commenters stated that based on
the habitat description associated with EOs ranked C and below, we are
proposing to include some EOs that do not meet PBF 1(b). Without both
of these features, the EO does not meet PBF 1 in its entirety and,
therefore, does not meet our definition of an ecologically functional
slick spot. In addition, the commenters stated that providing ``one''
PBF is not sufficient and if, for example, the slick spot is
ecologically functional (PBF 1a and 1b) but is not surrounded by
relatively intact sagebrush (PBF 2), then the interdependent habitat
requirements are also not met.
Our Response: The IDFG EO rankings do not necessarily correlate
directly to the PBFs. For example, as described in the Summary of
Essential Physical or Biological Features, below, PBF 1(b) states that
ecologically functional microsites or ``slick spots'' are characterized
by sparse vegetation, with introduced, invasive, nonnative plant
species cover absent or limited to low to moderate levels. However, the
IDFG EO rankings do not directly measure invasive, nonnative plant
cover within the actual slick spot. The assessments of condition were
based mostly on the EO habitat surrounding the slick spots, which
tended to be more invaded than the slick spots. So, even if a habitat
ranking was characterized as being moderately to highly invaded, the
slick spots themselves often had very low amounts of invasive species
(Kinter 2020, pers. comm.). Therefore, we used the IDFG EO rankings,
which constitute the best available information that we have, as
surrogates to help us determine which EOs provide the PBFs essential to
the conservation of the species that may require special management
considerations or protections. In addition, although some of the EOs
with lower ranks (CD- and D-ranked EOs) often have PBFs with degraded
conditions and may require special management considerations or
protection, we determined that including these lower ranked EOs is
essential to the conservation of the species. The Criteria and
Methodology Used To Identify Critical Habitat section, below, of this
final rule has been revised to reflect these clarifications.
As stated in the proposed rule (85 FR 44584, July 23, 2020), and in
this final rule, areas are included in critical habitat if they contain
one or more of the PBFs; PBFs do not have to occur simultaneously to
constitute critical habitat for slickspot peppergrass.
Comment 7: The State and two commenters (Owyhee County
Commissioners and a private landowner) stated that all EOs and sub-EOs
that were assigned a condition or landscape factor rank of C, CD, or D
based on either Miller and Kinter's Snake River Plain and Adjacent
Foothills 2018 report or Miller and Kinter's Jarbidge Geographic Area
2019 report should not be designated as critical habitat. They added
that the EO assessments in the 2018 and 2019 reports provide context to
the 2016 rankings in many EOs and that these assessments should be used
to determine whether an EO meets the PBF criteria. They further state
that the 2018 and 2019 documents support the need to eliminate more
areas of proposed critical habitat as not meeting PBFs. They also state
that population size is not described as a PBF but is still one of
three factors determining an EO rank in the IDFG assessment with some
EOs most likely having a higher rating due to the population size, and
not because of the quality of the habitat itself. The State of Idaho
questioned if these habitats are essential for the conservation of the
species, noting that the occupied status of these EOs is not in
question, but whether the habitat truly meets the PBF criteria based on
site conditions detailed in the 2018 and
[[Page 28878]]
2019 reports (Miller and Kinter 2018 and 2019, entire).
Our Response: For our July 23, 2020, revised proposed rule (85 FR
44584) for slickspot peppergrass, we relied on information provided by
the IDFG that provided their most up-to-date assessments for slickspot
EOs, including updated EO ranks (Kinter and Miller 2016, entire).
Information contained in the 2016 report was from field surveys
conducted from 2012 through 2016. Miller and Kinter's 2018 report
includes the details of their field surveys from 2012 through 2016 for
the Foothills and Snake River Plain Geographic Areas. Miller and
Kinter's 2019 report also includes the details of their field surveys
during the period 2014-2015 for the Jarbidge Geographic Area. The 2016
report was a summary of all field surveys and contained the updated EO
ranks that were derived from data collected during the above-mentioned
survey periods. While supplemental information was considered, the EO
ranks reported in the 2016 report represent the best available
scientific data from which we made our final critical habitat
determination.
As the commenters noted, a portion of the EO ranking score was
based on the EO/sub-EO size. While EO size is not identified as a
specific PBF, population size does contribute to the resiliency of a
species; therefore, we clarified in the Criteria and Methodology Used
To Identify Critical Habitat section, below, that we used the IDFG
rankings as surrogates to help us determine which EOs provide the PBFs
essential to the conservation of the species that may need special
management. Also, please see our response to Comment 7.
With respect to the State's comment regarding which EOs meet our
definition of critical habitat, based on comments received during the
public comment period on our revised proposed critical habitat rule (85
FR 44584, July 23, 2020), we reevaluated our criteria for determining
which EOs contain PBFs and meet our definition of critical habitat. The
proposed rule did not include EOs ranked D or lower; however, in this
final rule we included all areas that were occupied at the time of
listing that are ranked B-D (there are currently no EOs ranked A or
AB). Our rationale for including D-ranked EOs is provided in the
Criteria and Methodology Used To Identify Critical Habitat section,
below.
Comment 8: The State of Idaho commented that, because private lands
cannot be subject to management actions and conservation measures
through the Endangered Species Act unless there is a Federal nexus
resulting in section 7 consultation, the proposed critical habitat rule
(85 FR 44584, July 23, 2020) provides no new conservation measures
across any of the sites, whether Federal, State, or privately owned.
They also stated that management actions through section 7 consultation
will not effectively address the threats of wildfires and invasive
species on private lands. Lastly, they commented that designation of
critical habitat on private land can lead to decreased land values and
possibly expose slickspot peppergrass to threats that cannot be
addressed by a section 7 consultation. Given these reasons, the State
believes that the benefits of exclusion (from critical habitat
designation) outweigh the benefits of inclusion on private land.
Our Response: As detailed in the Considerations of Impacts Under
Section 4(b)(2) of the Act section of this document, below, based on
our evaluation of the available information, we determined that the
benefits of excluding private lands outweighed the benefits of
including them in our critical habitat designation; therefore, we
excluded private land from the final designation. Activities with a
Federal nexus that may affect slickspot peppergrass plants on private
land will still require section 7 consultation under the Act. Actions
that may affect slickspot peppergrass plants on private lands without a
Federal nexus do not require section 7 consultation with the Service.
As a conservation tool, a critical habitat designation ensures that
when actions with a Federal nexus are proposed within critical habitat,
the Federal action agency reviews the proposed action and, if needed,
consults with the Service to determine if the action will adversely
modify critical habitat. Critical habitat does not require a Federal
agency or a private landowner proposing an action with a Federal nexus
to perform any conservation actions, although the Service and the
Federal action agency may identify conservation recommendations that
can be voluntarily implemented.
Comment 9: The State of Idaho and multiple commenters stated that
there are additional administrative costs of section 7 consultation
that are incurred under critical habitat designation, including land-
value depreciation. In addition, the State commented that the economic
analysis did not consider economic impacts to livestock permittees from
delaying the spring grazing season, indirectly eliminating grazing by
lowering turnout and, therefore, opportunity costs to private and State
endowment lands. Several other commenters urged the Service to
undertake an in-depth consideration of the potential impacts of the
critical habitat designation on the economy of the affected areas. One
commenter expressed concern that the economic analysis did not capture
the potential significant impacts on affected livestock permittees of
the implementation of existing livestock-grazing conservation measures.
Our Response: According to section 4(b)(1)(A) of the Act, the
listing of a species as threatened or endangered is a decision made
based ``solely on the basis of the best scientific and commercial data
available.'' However, in the case of designating critical habitat, the
Act requires additional considerations under section 4(b)(2) including
the economic, national security, and other impacts of designating a
particular area as critical habitat. Because of this distinction, we
must analyze the effects of a critical habitat designation separate
from any effects that may result from the listing of a species. To do
so, our guidelines for economic analyses of proposed critical habitat
designations, developed in accordance with the recommendations set
forth in Executive Order 12866 (``Regulatory Planning and Review''),
describe the need to measure the benefits and costs of a rule against a
baseline.
The analysis of economic impacts of a critical habitat designation
involves evaluating the baseline condition under two scenarios: one
with critical habitat and one without critical habitat. The impacts of
critical habitat equal the difference, or ``increment,'' between these
two scenarios. This is known as an ``incremental analysis.'' Measured
differences may include changes in land or resource use, environmental
quality, or time and effort expended on administrative and other
activities by Federal landowners, Federal action agencies, State and
local governments, or private third parties. Any differences that are
attributable solely to critical habitat are considered an incremental
impact of the designation. Most of the examples of impacts offered by
commenters were effects attributable to other conservation measures for
slickspot peppergrass that are already in place because of the listing
of the species (e.g., delaying turnout of cattle when soils are
saturated) and not due to critical habitat; such effects cannot be
considered an impact of critical habitat.
Currently, and as described in our final economic analysis, we do
not foresee a circumstance in which designation of critical habitat
will change the outcome or alter the timing
[[Page 28879]]
of future Federal agency section 7 consultations. Any conservation
measures implemented to minimize impacts to the species would likely be
sufficient to also minimize impacts to critical habitat.
Comment 10: The State of Idaho commented that the Idaho Department
of Lands (IDL) was part of the 2006 Candidate Conservation Agreement
(CCA) for slickspot peppergrass ensuring habitat is protected on Idaho
endowment lands, which negates the need for critical habitat
designation. In addition, the State commented that even though the CCA
has expired, the IDL continues to implement conservation measures
outlined in the 2006 CCA.
Our Response: As described in our response to Comment 9, above, we
have a statutory obligation to designate critical habitat for listed
species, based on the identification of those areas occupied by the
species at the time of listing, that provide the PBFs essential to the
conservation of the species, and that may require special management
considerations or protection. However, the Act additionally provides
the Secretary discretion to exclude areas from the final designation if
the benefits of excluding those areas outweigh those of including them
(and if such exclusion will not result in the extinction of the
species). As detailed in Considerations of Impacts Under Section
4(b)(2) of the Act below, following our review and evaluation of the
best available information, including the new 2021 conservation
agreement between the Service and the State of Idaho, we agree that the
benefits of excluding areas on State of Idaho lands outweigh the
benefits of including those areas in critical habitat, and we have
excluded all State-owned lands from this final designation of critical
habitat. This includes the State of Idaho endowment trust lands,
management of which is entrusted to the State Board of Land
Commissioners. The IDL is the administrative arm of the Board and
carries out the executive directives of the Board to meet the
constitutional trust mandate under article IX section 8 of the Idaho
Constitution to use the trust lands for the support of State
institutions.
Comment 11: The State of Idaho commented that several areas along
Idaho Department of Transportation rights-of-way (ROWs) are critical to
reduce the potential for fire starts from Interstate 84. They further
stated that the proposed designated critical habitat within these ROWs
puts large areas that have slickspot peppergrass outside of the ROW at
risk by potentially affecting the ability to implement mowing and other
preventative measures needed to halt fire starts from the Interstate.
Our Response: Rights-of-way (ROW) on Federal lands are not excluded
from critical habitat designation if they contain one or more of the
PBFs described within the final rule and are part of an EO ranked B,
BC, C, CD, or D or are within 500 m (1,640 ft) of those EOs. If an area
is designated as critical habitat, and there is a Federal nexus
associated with an ROW project, a section 7 consultation in this area
would evaluate the presence of any PBFs and note whether there are
effects from the action that may affect critical habitat. During
emergency events, the primary objective of the responding agency must
be to protect human life and property, and this objective takes
precedence over normal consultation requirements. In such events,
agencies can engage in emergency section 7 consultation with the
Service to expedite recommendations for minimizing adverse effects to
listed species and designated critical habitat areas that may be
adversely affected by emergency response activities.
Tribal Comments
Comment 12: The Shoshone-Bannock Tribes asked that the Service
consider ecological range characteristics, rather than simply presence
of slickspot peppergrass, when designating critical habitat and cited
examples (e.g., climate, elevation, soil characteristics, solar
irradiance, and community species composition characteristics), as
drivers for potential and occupied habitat. They indicated that this
type of scientific analysis would not result in the small and highly
fragmented critical habitat unit maps being proposed, and the analysis
may help the Service identify new EOs. They added that slickspot
peppergrass needs additional critical habitat outside the proposed
critical habitat units to facilitate spread and colonization. Further,
the Tribes and one additional commenter stated that surveys for
additional habitat should continue, as well as high-quality and
experimentally designed monitoring programs.
Our Response: Please see our responses to Comments 1-3. In response
to the comment regarding more survey, monitoring, and analysis being
needed, we recognize that critical habitat designated at a particular
point in time may not include all of the habitat areas that we may
later determine are necessary for the recovery of the species. We must
make this designation on the basis of the information available at this
time, and we may not delay our decision until more information about
the species and its habitat is available. This final rule expands on
the proposed critical habitat by including areas with D-ranked EOs,
which represent the lowest ranked occupied EOs, and increasing the
buffer around EOs from 250 meters (m) (820 feet (ft)) to 500 m (1,640
ft) in order to provide habitat for all of the important pollinators of
slickspot peppergrass.
While some uncertainty will always exist, the information used in
this final rule represents the best available information upon which to
make a critical habitat designation for slickspot peppergrass. It also
does not preclude future survey, monitoring, and analyses for this
species and its habitat, and it is not limited to critical habitat
boundaries. We will be developing a recovery plan with input from
stakeholders and partners that will establish priorities and measures
to recover the species, and which will consider ecological range
characteristics and address habitat fragmentation. During the recovery
planning process, a range of conservation tools, data, and analyses
will be used to determine how best to recover the species.
Comment 13: The Shoshone-Bannock Tribes commented that grazing
should not be allowed within occupied habitat if necessary to protect
the species from extinction. They stated that the best way to manage
grazing use on public lands is to implement strong management goals and
objectives that maintain high-quality biological soil crust communities
and enhance degraded biological soil crust communities where they have
been impacted from grazing and surface disturbances.
Our Response: We will be developing a recovery plan with input from
stakeholders and partners that will establish priorities and measures
to recover the species. These priorities will include measures to
prevent or reduce habitat degradation and will set goals to facilitate
the recovery of the species. Furthermore, the BLM's conservation
agreement (BLM 2014) outlines conservation measures for ongoing actions
authorized by the BLM including livestock grazing, rights-of-way
activities, and military training. These conservation measures
currently apply to slickspot peppergrass EOs and the surrounding area
out to 805 m (2,641 ft).
Public Comments
Comment 14: One commenter stated that the Service failed to
describe how many plants are present in each EO.
Our Response: We did not include the number of plants in the
proposed rule (85 FR 44584, July 23, 2020) because we
[[Page 28880]]
did not rely solely on the number of plants in an EO. Instead, we
followed an EO ranking method developed by NatureServe (NatureServe
2020b, entire) and used by the IDFG to rank EOs that combined measures
of population size and habitat quality; therefore, we did not provide
the number of plants in the EO descriptions.
Comment 15: One commenter expressed concern that designating
slickspot peppergrass critical habitat for those EOs with rankings of
CD or better continues to set the stage for additional habitat loss in
future assessments. They followed with this example, ``if an EO with a
C ranking now is found to have a D rank in 3-5 years, it is not clear
whether the USFWS would strip the critical habitat designation from the
particular EO.''
Our Response: In this final rule, we are designating all occupied
EOs ranked B-D as critical habitat. If, in subsequent years, an EO is
no longer found to be occupied, and it no longer contains the essential
PBFs, it would still be part of the critical habitat designation. A
future section 7 consultation in this area would evaluate the presence
of any PBFs and note whether or not there are effects from the action
that may affect the critical habitat. If we revise the critical habitat
designation in the future, we would take into consideration where the
species is present (occupied habitat) and whether any PBFs are present
in any area at the time of that revision.
Comment 16: One commenter stated that the 250-m (820-ft) area be a
guideline rather than a fixed rule so that it could be reduced when it
would include unsuitable habitat, such as roads, cropland, or
ecological sites without slick spots. The commenter also remarked that
crossing allotment boundaries when slick spots are not present in
adjacent allotments needlessly complicates the management of the
adjacent allotment.
Our Response: As described in this final rule, the designation of
critical habitat does not include roads or other developed sites such
as cropland, airports, and buildings. When determining critical habitat
boundaries within this final rule, we made every effort to avoid
including these types of developed areas because such lands lack the
PBFs for slickspot peppergrass. The scale of the maps we prepared under
the parameters for publication within the Code of Federal Regulations
may not perfectly reflect the exclusion of such developed lands.
However, any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat.
In reference to grazing allotment management, areas are included in
critical habitat if they are occupied by slickspot peppergrass (i.e.,
EOs B-D) or are within the additional 500-m (1,640-ft) pollinator
buffer area of those EOs. Furthermore, we do not anticipate or foresee
any changes to conservation measures currently in place for livestock
use. When projects proposed on BLM lands may affect listed species or
critical habitat, consultation with us is required under section
7(a)(2) of the Act. Currently, we do not foresee a circumstance in
which critical habitat will change the outcome of future section 7
consultations as all areas designated as critical habitat are also
included in BLM section 7 consultations addressing the effects of
actions on the species.
Comment 17: One commenter stated that the polygons associated with
Unit 2, Subunit 2a in Ada County are widely dispersed, covering
multiple Sections, Townships, and Ranges and that designating the
entire subunit as critical habitat made little sense considering the
wide distribution of plant EOs and the significant amount of
residential and commercial development that occupied the spaces between
populations.
Our Response: The critical habitat units are based on
geographically clustered EOs that meet our definition of critical
habitat. Only occupied EOs and their associated buffers are being
designated as critical habitat. In our proposed rules, we displayed
critical habitat surrounded by rectangular polygons on our unit and
subunit maps, which led to confusion about what was actually the
designated critical habitat. In our final rule, we updated our maps by
eliminating the rectangular polygons so that only critical habitat is
displayed.
Comment 18: One commenter responded that the Service recently
issued a proposed rule on defining habitat due, in part, to a decision
by the U.S. Supreme Court in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct.
361 (2018) and was concerned that this proposed definition of habitat
was not included in our July 23, 2020, revised proposed rule (85 FR
44584) for slickspot peppergrass.
Our Response: As stated in the revised regulations regarding the
definition of habitat (85 FR 81411, December 16, 2020), these
regulations apply only to critical habitat rulemakings for which a
proposed rule is published after January 15, 2021. We published our
revised proposed critical habitat rule for slickspot peppergrass on
July 23, 2020 (85 FR 44584). Therefore, the revised regulations
regarding the definition of habitat do not apply to this final critical
habitat rule for slickspot peppergrass. Furthermore, we rescinded the
habitat definition on June 24, 2022 (87 FR 37757) with an effective
date of July 25, 2022.
Comment 19: One commenter stated that critical habitat should not
be designated for slickspot peppergrass because any ``official
designation'' is meaningless for the preservation of the species in the
face of its primary threats: fire and invasive species. The commenter
added that slickspot peppergrass is a BLM- and State of Idaho-sensitive
species and that areas containing slickspot peppergrass already receive
priority status for fire-fighting activities; therefore, the
designation of critical habitat will not increase BLM's (and others')
ability or willingness to extinguish fires. The commenter concluded
that because there would be no change in how the primary threats are
managed, section 7 consultation is meaningless.
Our Response: We designate critical habitat by identifying the
areas that are essential to the conservation of the species based on
our understanding of the range of the species and the species'
essential PBFs. If an area meets those criteria for designating
critical habitat, we develop proposed critical habitat unit
designations. In addition, even if the designation of critical habitat
will not increase an action agency's ability to conserve the species,
the designation itself is still prudent because the areas meet the
definition of critical habitat and there are habitat-based threats
within the critical habitat boundaries.
Comment 20: One commenter stated that the rulemaking should include
a provision, to the extent permitted by the Act, that any EOs that are
burned by wildfire, so that they no longer contain the necessary
combinations of habitat PBFs, are automatically not considered to be
critical habitat from the date of the fire and continuing until further
rulemaking on the subject.
Our Response: Section 3 of the Act defines critical habitat, in
part, as having PBFs that are essential to the conservation of the
species, which may require special management considerations or
protection. If an area is designated as critical habitat and is
subsequently burned by wildfire such that it no longer contains the
essential PBFs, it would still be part of the critical habitat
designation but may need special management to restore some of the
PBFs.
Comment 21: One commenter stated that there is no science
demonstrating that any management considerations or methods of
protections will significantly
[[Page 28881]]
affect the survivability of slickspot peppergrass populations. They
stated that we lack information on the essential features to support
slickspot peppergrass, and, without knowledge of the soil chemistry at
a specific location, designation of critical habitat will be arbitrary
since that area (i.e., slick spot) may or may not contain the essential
features.
The commenter also questioned what science there is to demonstrate
that slickspot peppergrass pollination and seed production is different
between adjacent sagebrush habitat and non-sagebrush habitat and
requested information that substantiates the necessity to include
adjacent sagebrush habitat in the critical habitat designation.
Our Response: As required by section 4(b)(2) of the Act, we used
the best scientific data available in determining those specific areas
within the geographic area occupied at the time of listing that contain
the features essential to the conservation of slickspot peppergrass and
that may require special management considerations or protection. We
have reviewed and considered scientific and commercial data contained
in numerous technical reports, peer-reviewed published journal
articles, and other documents and based our determination of slickspot
peppergrass PBFs (including ecologically functioning microsites) on the
best available data regarding the plant's currently known habitat
requirements (See Physical or Biological Features Essential to the
Conservation of the Species, below, for more information). We
acknowledge that not all slick spots contain slickspot peppergrass.
Therefore, based on the best scientific information available to us at
this time, we limited the critical habitat designation to areas known
to be occupied by the species (including some adjacent sagebrush-steppe
habitat to provide for ecosystem function). While we also acknowledge
that slickspot peppergrass has been infrequently documented outside of
slick spots, the vast majority of plants documented over the past 25
years of surveys and monitoring for the species are documented within
slick spot microsite habitats. For more information on slick spot
microsites, please see the 2009 listing rule (74 FR 52014, October 8,
2009) and the slickspot peppergrass SSA report (USFWS 2020, pp. 4, 6).
Comment 22: One commenter stated that the Service has not
adequately considered a broad body of current data (including GIS data
for native and nonnative vegetation, soils, development, etc.)
available on the degree and severity of habitat degradation that
currently exists (citing information used by the BLM in their Land Use
Plans), or used site-specific information on the current road,
livestock, energy, or other infrastructure and management schemes that
are being applied within the critical habitat designation. The
commenter stated that the proposed rule designates ``bits and pieces''
of critical habitat, which the commenter states will promote additional
fragmentation, make management of critical habitat difficult and less
economically feasible, and encourage more harmful fences and other
developments.
Our Response: Regarding the ecological setting of slickspot
peppergrass, the species' habitat is inherently fragmented because it
relies on isolated and non-contiguous slick spot habitats. We
identified areas within the geographic range of slickspot peppergrass
that were occupied at the time of listing and contain the PBFs
essential to the conservation of the species that may require special
management considerations or protection. Please see Criteria and
Methodology Used to Identify Critical Habitat, below, for more details
on how critical habitat was determined. Regarding the comment that we
did not use site-specific information on the current road, livestock,
energy, or other infrastructure and management schemes that are being
applied within the critical habitat designation, and the commenter's
statements regarding the BLM Land Use Plans, we will work with the BLM
to avoid or minimize these potential impacts during future section 7
consultations, as appropriate, and recommend the BLM take these
potential impacts into consideration when developing their management
plans.
On Federal land, it is the responsibility of the appropriate land
management agency to develop and implement resource management plans.
Projects with a Federal nexus would require section 7 consultation
under the adverse modification standard if they affected designated
critical habitat (see the Section 7 Consultation section, below, for
more discussion of this process). However, if project-related effects
may occur, areas occupied by slickspot peppergrass would require
section 7 consultation whether the area is designated as critical
habitat or not. In addition, as part of developing and implementing a
recovery strategy for a listed species, we consider site-specific
management strategies important to the conservation of the species, and
we also work with landowners, managers, researchers, and others to
develop and implement them, as appropriate, as part of the recovery
process.
Comment 23: One commenter stated that projected and reasonably
likely impacts of climate change on slickspot peppergrass are unknown,
as is the response to climate change by slickspot peppergrass. The
commenter added that future climate change is only a hypothesis based
on non-validated models, which cannot be proven. Conversely, two other
commenters stated that climate change is expected to exacerbate several
of the primary threats to slickspot peppergrass, and it is essential
that a much greater area (including occupied and unoccupied habitat and
areas located at the highest elevations available) be protected to
ensure the species' viability and aid efforts to buffer the species
from adverse climate change impacts. They also stated that it is
hypothesized that slick spots were created during the Pleistocene and
are no longer being formed and, therefore, all remaining slick spots
should be protected. The commenter also noted that climate change is
not mentioned in the body of the July 23, 2020, revised proposed
critical habitat rule (85 FR 44584).
Our Response: As described in our February 2020 slickspot
peppergrass SSA report (USFWS 2020, pp. 79-83), it is possible that
climate change has contributed to the downward trend in slickspot
peppergrass population numbers observed over the past decade and the
projected consequences of climate change could act to further
exacerbate the primary threats of frequent wildfire and invasive,
nonnative annual grasses on slickspot peppergrass throughout its range.
After considering the best available information as well as the
comments received, we are now including all occupied EOs ranked B-D and
extending the buffer around EOs from 250 m (820 ft) to 500 m (1,640
ft)). In addition, we are including six newly ranked EOs; five are
located in the Jarbidge geographic area, which contains the highest
elevation habitat. In Criteria and Methodology Used to Identify
Critical Habitat, below, we provide our rationale for making these
changes.
Regarding the comment about climate change not being addressed in
our July 23, 2020, revised proposed rule (85 FR 44584), we have
included a brief discussion in our Criteria and Methodology Used to
Identify Critical Habitat section, below. Information identified in the
SSA indicates that climate change has already amplified the effects of
wildfire and invasive,
[[Page 28882]]
nonnative plants on slickspot peppergrass and may have been a factor in
the continuing downward trend in slickspot peppergrass population
numbers observed over the past decade. Habitat is often dynamic and
species may move from one area to another over time, but most plant
species cannot naturally shift their geographic ranges fast enough to
keep up with predicted high projected rates of climate change. The
Intergovernmental Panel on Climate Change (IPCC) projects changes to
the global climate system in the 21st century will likely be greater
than those observed in the 20th century (IPCC 2007, p. 45; IPCC 2014,
pp. 10, 60). However, by designating critical habitat in all three
geographic areas (Foothills, Snake River Plain, and Jarbidge) where the
species occurs, including all B-D ranked EOs as well as the 500-m
(1,640-ft) pollinator buffer around designated EOs, we determined that
these areas will help support slickspot peppergrass under potential
climate change scenarios in the future. A complete description of the
potential effects from climate change and our evaluation of this threat
is found in the October 8, 2009, final listing rule (74 FR 52014), the
August 17, 2016, listing reinstatement rule (81 FR 55058), and our
February 2020 slickspot peppergrass SSA report (USFWS 2020, pp. 79-83).
In addition, we recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine necessary for the recovery of the species. For
these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be
required for recovery of the species. Areas that are important to the
conservation of slickspot peppergrass, both inside and outside a
critical habitat designation, would continue to be subject to: (1)
Conservation actions implemented under section 7(a)(1) of the Act, (2)
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species.
Comment 24: Two commenters did not support the section
4(a)(3)(B)(i) exemptions for the Mountain Home Air Force Base Juniper
Butte Range and the Idaho National Guard Army OCTC due to the growing
presence of military activity in southern Idaho, increasing threats
from military uses, and potential spread of weeds from personnel
accessing sites. One of the commenters stated that the OCTC and the
Juniper Butte Range should be included in the critical habitat
designation.
Our Response: The National Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108-136, 117 Stat. 1392) amended the Act,
specifically, section 4(a)(3)(B)(i) (16 U.S.C. 1533(a)(3)(B)(i)) to
provide that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense (DoD), or designated for its use, that are
subject to an integrated natural resources management plan prepared
under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' Both the
Mountain Home Air Force Base Juniper Butte Range (and associated
emitter sites and rights-of-way) and the Idaho Army National Guard OCTC
facilities have INRMPs prepared under section 101 of the Sikes Act. We
determined that conservation efforts identified in these INRMPs are
being implemented, are effective, and will provide a conservation
benefit to slickspot peppergrass occurring in habitats within or
adjacent to the identified lands. Examples of slickspot peppergrass
conservation benefit within these INRMPs can be found in the
Exemptions, Application of Section 4(a)(3) of the Act section below.
Therefore, lands within these two installations are exempt from
critical habitat designation under section 4(a)(3)(B)(i) of the Act,
and we do not have the discretion to include them as the commenter
recommends.
Comment 25: One commenter stated that the monetary and security
costs to the Idaho Army National Guard and U.S. Air Force from
designating slickspot peppergrass critical habitat in their training
ranges is not captured in the 2012 final economic analysis.
Our Response: We exempted, under section 4(a)(3)(B)(i) of the Act,
the Idaho Army National Guard's Orchard Combat Training Center (OCTC)
and U.S. Air Force's Juniper Butte Range from the critical habitat
designation based on development and implementation of approved INRMPs.
Given these areas are exempt from critical habitat designation, there
are no associated incremental costs of critical habitat designation to
consider in the economic analysis. Therefore, any costs to the Idaho
Army National Guard and U.S. Air Force are due to the listing of
slickspot peppergrass, not designation of critical habitat, and thus
will not be discussed in this final rule. Please see the Exemptions,
Application of Section 4(a)(3) of the Act, section of this final rule
for further information.
Comment 26: One commenter stated that the economic analysis
completed in March 2012 does not reflect accurate, timely, or most
recently available data. The commenter recommended that we conduct a
current economic analysis that takes a growing population, increased
development, climate change, and the economics of restricting livestock
grazing in and around critical habitat EOs into consideration. Our
Response: In the 2020 revised proposed critical habitat rule and in the
Exclusions Based on Economic Impacts section of this rule, we
articulate the reason why the incremental economic impacts of our
current revised proposed designation of critical habitat for slickspot
peppergrass will be similar to levels described in the 2012 final
economic analysis. The BLM indicated that any increase in cost
associated with critical habitat section 7 compliance would be limited
to increases in BLM staff costs, which have been minimal since 2012
when the economic analysis was completed, but not an increase in time
needed to conduct section 7 compliance (Kershaw 2020, pers. comm.).
Unless unforeseen changes occur to existing conservation measures or
the management of land-use activities, the incremental impacts of
critical habitat designation described in the 2012 final economic
analysis would continue to be limited to additional administrative
costs of section 7 consultations for Federal agencies, primarily BLM,
associated with considering the potential for adverse modification of
critical habitat.
In this final rule, we are also excluding State and private lands
from designation of critical habitat. Therefore, there are no section 7
critical habitat consultation requirements on those lands, although
they will still be subject to section 7 consultation on the species if
there is a Federal nexus. Therefore, we still find that the conclusion
of the 2012 final economic analysis applies to this final rule.
Comment 27: One commenter stated that Federal oversight is required
to conserve slickspot peppergrass, and that State of Idaho or private
lands should not be excluded given that the agreements typically relied
upon are voluntary and unenforceable. This commenter also said that
reluctance by private landowners to allow access to slickspot
peppergrass habitat will only further ensure that no oversight is
possible.
Our Response: The Act provides the Secretary with discretion to
exclude
[[Page 28883]]
areas from the final designation if the benefits of excluding those
areas outweigh those of including them (and if such exclusion will not
result in the extinction of the species). As detailed in the
Considerations of Impacts Under Section 4(b)(2) of the Act section,
below, based on our review and evaluation of the best available
information, we conclude that the benefits of excluding areas on State
of Idaho and private lands outweigh the benefits of including those
areas in critical habitat. We therefore excluded all State and private
lands from the final critical habitat designation.
Comment 28: Two commenters stated that our revised proposed rule
cited several documents (e.g., Gathmann and Tscharntke 2002; Steffan-
Dewenter et al. 2002; Kinter and Miller 2016) to support our findings,
but our document did not provide a list of references. They recommended
that these references be added when the revised proposed rule is
finalized.
Our Response: All references cited in our revised proposed rules
and our final rule are available on the internet at https://www.regulations.gov in Docket No. FWS-R1-ES-2010-0071 and upon request
from the Idaho Fish and Wildlife Office. All references for our July
23, 2020, revised proposed rule (85 FR 44584), including the three
references cited as examples in the comment above, can be found by
going to https://www.regulations.gov/document/FWS-R1-ES-2010-0071-0065
and downloading the ``Download File''. However, Gathmann and Tscharntke
(2002) was incorrectly cited as ``Achim Gathmann, A. and T.
Tscharntke'' and, therefore, was out of alphabetical order in our list
of references. We corrected this mistake in our final rule references
list.
Comment 29: Several commenters questioned whether the Service was
following its own Information Quality Act procedures.
Our Response: We have reviewed and considered scientific and
commercial data contained in numerous technical reports, published
journal articles, and other documents. We must base our critical
habitat designation for slickspot peppergrass on the best available
scientific data. We acknowledge that uncertainties exist; however,
section 4 of the Act mandates that we make our designation based on the
best scientific information available at the time of our determination.
We have designated critical habitat for slickspot peppergrass
consistent with our Policy on Information Standards Under the
Endangered Species Act (published in the Federal Register on July 1,
1994 (59 FR 34271)), the Information Quality Act (section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554; H.R. 5658)), and our associated Information Quality
Guidelines, to ensure that our decision is based on the best scientific
data available.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures 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. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those PBFs that are essential
to the conservation of the species (such as space, food, cover, and
protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
[[Page 28884]]
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available at the time of these planning efforts calls for a different
outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the PBFs that are essential
to the conservation of the species and that may require special
management considerations or protection. The regulations at 50 CFR
424.02 define ``physical or biological features essential to the
conservation of the species'' as the features that occur in specific
areas and that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic or
a more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity. For example, physical features essential
to the conservation of the species might include gravel of a particular
size required for spawning, alkaline soil for seed germination,
protective cover for migration, or susceptibility to flooding or fire
that maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or a particular level of nonnative species consistent with
conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
With rare exception, slickspot peppergrass occurs only in slick
spot microsites scattered within the greater, semiarid, sagebrush-
steppe ecosystem of southwestern Idaho. Slick spots provide habitats
that are representative of the historical, geographical, and ecological
distribution of slickspot peppergrass, and provide nutrients and water
for reproduction, germination, and seed dispersal. The restricted
distribution of slickspot peppergrass is likely due to its adaptation
to the specific conditions within these slick spot habitats. Slick
spots are distinguished from the surrounding sagebrush habitat as
having the following characteristics: microsites where water pools when
rain falls (Fisher et al. 1996, pp. 2, 4); sparse native vegetation;
distinct soil layers with a columnar or prismatic structure, higher
alkalinity and clay content, and natric (sodic, high sodium) properties
(Fisher et al. 1996, pp. 15-16; Meyer and Allen 2005, pp. 3-5, 8;
Palazzo et al. 2008, p. 378); and reduced levels of organic matter and
nutrients due to lower biomass production (Meyer and Quinney 1993, pp.
3, 6; Fisher et al. 1996, p. 4). Although the low permeability of slick
spots appears to help hold moisture (Moseley 1994, p. 8), once the thin
crust dries out, the survival of slickspot peppergrass seedlings
depends on the ability of the plant to extend the taproot into the
argillic horizon (soil layer with high clay content) to extract
moisture from the deeper natric zone (Fisher et al. 1996, p. 13).
Ecologically functional slick spots have the following three
primary layers: the surface silt layer, the middle restrictive layer,
and an underlying moist clay layer. Although slick spots can appear
homogeneous on the surface, the actual depth of the silt and
restrictive layer can vary throughout the slick spot (Meyer and Allen
2005, Tables 9, 10, and 11). The top two layers (surface silt and
restrictive) of slick spots are normally very thin; the surface silt
layer varies in thickness from a 0.25 to 3 centimeters (cm) (0.1 to 1.2
inches (in)) in slick spots known to support slickspot peppergrass, and
the restrictive layer varies in thickness from 1 to 3 cm (0.4 to 1.2
in) (Meyer and Allen 2005, p. 3). Fisher et al. (1996, p. 4) describe
the smooth surface layer of slick spots as crustlike, with prominent
vesicular pores. Below the surface layer, the soil clay content
increases abruptly and creates a strongly structured, finely textured
boundary (horizon) formed by the concentration of silicate clay
materials, known as an argillic horizon.
Slick spot soil profiles are distinctive and distinguished from the
surrounding
[[Page 28885]]
soil matrix by very thin surface layers that form prominently vesicular
crusts, natric-like argillic horizons that occur just below the soil
surface, and by increasingly saline and sodic conditions with depth
(Fisher et al. 1996, pp. 11, 16). Disturbances that alter the physical
properties of slick spot soil layers, such as deep disturbance and the
addition of organic matter, may lead to destruction and permanent loss
of slick spots. Slick spot soils are especially susceptible to
mechanical disturbances when wet (Rengasamy et al. 1984, p. 63; Seronko
2004, in litt., entire). Such disturbances disrupt the soil layers
important to slickspot peppergrass seed germination and seedling growth
and alter hydrological function.
The biological soil crust, also known as a microbiotic crust or
cryptogamic crust, is another component of quality habitat for
slickspot peppergrass. Such crusts are commonly found in semiarid and
arid ecosystems, and are formed by living organisms, primarily
bryophytes (mosses), lichens, algae, and cyanobacteria (blue-green
algae), that bind together surface soil particles (Moseley 1994, p. 9;
Johnston 1997, p. 4). Microbiotic crusts play an important role in
stabilizing the soil and preventing erosion, increasing the
availability of nitrogen and other nutrients in the soil, and
regulating water infiltration and evaporation levels (Johnston 1997,
pp. 8-10). In addition, an intact crust appears to aid in preventing
the establishment of invasive plants (Brooks and Pyke 2001, p. 4; Serpe
et al. 2006, pp. 174, 176). These crusts are sensitive to disturbances
that disrupt crust integrity, such as compression due to livestock
trampling or off-road vehicle use and are also vulnerable to damage by
fire. Recovery from disturbance is possible but occurs very slowly
(Johnston 1997, pp. 10-11).
The native, semiarid sagebrush-steppe habitat of southwestern Idaho
where slickspot peppergrass is found can be divided into two plant
associations, each dominated by the shrub Wyoming big sagebrush
(Artemisia tridentata ssp. wyomingensis): (1) Wyoming big sagebrush--
Thurber's needlegrass (Achnatherum thurberianum); and (2) Wyoming big
sagebrush--bluebunch wheatgrass (Pseudoroegneria spicatum) habitat
types. The perennial bunchgrasses Sandberg's bluegrass (Poa secunda)
and bottlebrush squirreltail (Elymus elymoides) are commonly found in
the understory of these habitats, and basin big sagebrush (Artemisia
tridentata ssp. tridentata), gray or rubber rabbitbrush (Ericameria
nauseosus), yellow rabbitbrush (Chrysothamnus viscidiflorus), strict
buckwheat (Eriogonum strictum), bitterbrush (Purshia tridentata), and
little-leafed horsebrush (Tetradymia glabrata) form a lesser component
of the shrub community. Under relatively undisturbed conditions, the
understory is populated by a diversity of perennial bunchgrasses and
forbs, including species such as Indian ricegrass (Achnatherum
hymenoides), common yarrow (Achillea millefolium), varileaf phacelia
(Phacelia heterophylla), Pursh's milkvetch (Astragalus purshii),
longleaf phlox (Phlox longifolia), and purple threeawn (Aristida
purpurea var. longiseta).
Slickspot peppergrass is primarily an outcrossing species requiring
pollen from separate plants for more successful fruit production; it
exhibits low seed set in the absence of insect pollinators (Robertson
2003, p. 9; Robertson and Klemash 2003, p. 338; Robertson and Ulappa
2004, p. 1707; Billinge 2006, p. 40; Robertson et al. 2006, p. 40;
Billinge and Robertson 2008, pp. 1005-1006). Insects from 25 families
have been observed on slickspot peppergrass flowers (Robertson and
Klemash, 2003, pp. 335-336). Of those 25 insect families, the primary
slickspot peppergrass pollinators include several families of bees
(Anthophoridae, Apidae, Colletidae, Halictidae, Sphecidae, and
Vespidae), flies (Bombyliidae, Syrphidae, Calliphoridae, and
Tachinidae), beetles (Cerambycidae, Dermestidae, Melyridae), and moths
(Gelechiidae) (Robertson and Hannon 2003, p. 6; Robertson and Klemash
2003, p. 336; Robertson and Leavitt 2011, p. 384).
Pollinators need a diversity of native plants with overlapping
bloom times to provide flowers for foraging throughout their active
season; nesting and egg-laying sites (e.g., bare ground, hollow stems,
bunchgrasses); sheltered, undisturbed places for overwintering; and
connected habitat patches (The Xerces Society 2018, pp. 15-17). In our
proposed rule, we used a 250-meter (m) (820-foot (ft)) pollinator use
area around each E.O. based on a foraging range of the solitary bee.
However, we received several comments supporting an expansion of the
pollinator-use buffer area to 500-m (1,640 ft) to account for the
foraging range of all the associated pollinators noted in the above
paragraph. After a thorough review of all the pollinator species for
slickspot peppergrass, we agreed that each E.O. should be surrounded by
a 500-m (1,640-ft) pollinator-use area to ensure that sufficient
habitat and a diversity of native flowering plants are available to
support the pollinator community required for the viability of
slickspot peppergrass populations.
To determine the size of the pollinator-use area or buffer, we
evaluated the pollinators of slickspot peppergrass and the distance
that those pollinators were likely to fly in search of food. Although
slickspot peppergrass is pollinated by a variety of insects, its
primary pollinators are composed of families of small- to medium-sized
solitary bees and flies, and larger, thread-waisted sphecid wasps
(Sphecidae), meloid beetles, moths, and butterflies (Robertson and
Leavitt 2011, pp. 384-385; Robertson 2020, pers. comm.). Flight
distances are generally correlated with body size in bees; larger bees
can fly farther than smaller bees (Gathmann and Tscharntke 2002,
entire; Greenleaf et al. 2007, pp. 592-594; Kendall et al. 2022, p. 4).
While researchers have reported that some solitary bee species,
particularly larger bodied ones, are capable of foraging greater than 1
kilometer (km) (0.6 mile (mi)) (Zurbuchen et al. 2010, pp. 671-672),
the majority of these species are central-place foragers (i.e., remain
close to their nest), thus foraging distances tend to be 500 m (1,640
ft) or less (Steffan-Dewenter 2003, p. 1041; BLM 2012, p. 19; Danforth
et al. 2019, p. 207; O'Neill 2019, pp. 108-109; Antoine and Forrest
2021, p. 152). Syrphid flies, which are not central-place foragers,
have been documented carrying pollen up to 400 m (1,312 ft) (Rader et
al. 2011, pp. 522-525). Other noncentral-place foragers like moths and
butterflies are capable of foraging over larger areas and could use
areas within EOs and their associated buffers and beyond. Therefore, we
find that a 500-m (1,640-ft) buffer is adequate for flies, moths, and
butterflies, as well as the solitary bee pollinators of slickspot
peppergrass.
In addition, honeybees were identified as a pollinator of slickspot
peppergrass in our 2020 proposed rule (85 FR 44584). However, they are
a nonnative species and compete for floral resources with native insect
pollinators and spread diseases to native bees (Cane and Tepedino 2017,
entire; Wojcik et al. 2018, pp. 827-829; Alger et al. 2019, pp. 5-7;
Iwasaki and Hogendoorn 2022, pp. 7-8). Because of the potential
negative impact they may have on the diverse native pollinator
community associated with slickspot peppergrass, we do not consider
them essential to the conservation of the species in this final rule.
The areas designated as critical habitat will ensure maintenance
and continuity of foraging and nesting habitats for insect pollinators
adjacent to occupied slick spots, thus promoting
[[Page 28886]]
a healthy pollinator community. This healthy pollinator community, in
turn, helps to increase seed viability and production of slickspot
peppergrass and is essential for maintaining genetic diversity in the
species over the long term. In addition, the provision of sufficient
native sagebrush-steppe habitat protects slickspot peppergrass from
wildfire, nonnative plant invasions, and colonization by Owyhee
harvester ants (see our final listing rule (74 FR 52014, October 8,
2009), the reinstatement of the listing rule (81 FR 55058, August 17,
2016), and the SSA (USFWS 2020) for a description of these threats),
and it helps to maintain local ecosystem characteristics within the
larger landscape, which are crucial for protecting the species and its
persistent seed bank. The seed bank is an essential feature of
slickspot peppergrass's biology because it provides the species with
resilience in the face of stochastic impacts and variation in
environmental conditions.
Summary of Essential Physical or Biological Features
Based on our current knowledge of habitat characteristics required
to sustain the species' life-history processes, we determine that the
PBFs essential to the conservation of slickspot peppergrass are:
(1) Ecologically functional microsites or ``slick spots'' that are
characterized by:
(a) A high sodium and clay content, and a three-layer soil profile,
which allows for successful seed germination, seedling growth, and
maintenance of the seed bank. The surface horizon consists of a thin,
silty, vesicular, pored (small cavity) layer that forms a physical
crust (the silt layer). The subsoil horizon is a restrictive clay layer
with an abruptic (referring to an abrupt change in texture) boundary
with the surface layer, that is natric or natric-like in properties (a
type of argillic (clay-based) horizon with distinct structural and
chemical features) (the restrictive layer). The second argillic subsoil
layer (that is less distinct than the upper argillic horizon) retains
moisture through part of the year (the moist clay layer); and
(b) Sparse vegetation with invasive, nonnative plant species cover
absent or limited to low to moderate levels.
(2) Relatively intact, native Wyoming big sagebrush (Artemisia
tridentata ssp. wyomingensis) vegetation assemblages, represented by
native bunchgrasses, shrubs, and forbs, within 500 m (1,640 ft) of
slickspot peppergrass element occurrences to protect slick spots and
slickspot peppergrass from disturbance from wildfire, slow the invasion
of slick spots by nonnative plant species and native harvester ants,
and provide the habitats needed by slickspot peppergrass' pollinators.
(3) A diversity of native plants whose blooming times overlap to
provide pollinator species with flowers for foraging throughout the
seasons and to provide nesting and egg-laying sites; appropriate
nesting materials; and sheltered, undisturbed places for hibernation
and overwintering of pollinator species. In order for genetic exchange
of slickspot peppergrass to occur, pollinators must be able to move
freely between slick spots. Alternative pollen and nectar sources
(other plant species within the surrounding sagebrush vegetation) are
needed to support pollinators during times when slickspot peppergrass
is not flowering, when distances between slick spots are long, and in
years when slickspot peppergrass is not a prolific flowerer.
(4) Sufficient pollinators for successful fruit and seed
production, particularly pollinator species of the sphecid and vespid
wasp families, species of the bombyliid and tachnid fly families, and
halictid bee species, most of which are solitary insects that nest
outside of slick spots in the surrounding sagebrush-steppe vegetation,
both in the ground and within the vegetation.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. A detailed discussion of the threats affecting the PBFs
essential to the conservation of slickspot peppergrass, and that may
require special management consideration or protection, can be found in
the final listing rule published in the Federal Register on October 8,
2009 (74 FR 52014), the 2016 final rule reinstating threatened status
for the species under the Act (81 FR 55058, August 17, 2016), in the
recently completed SSA report (USFWS 2020, pp. 59-83, 85-103), and in
the latest 5-year review (USFWS 2021).
The primary threats to the PBFs for slickspot peppergrass include
the following direct and indirect effects: the current wildfire regime
(i.e., increasing frequency, size, and duration), invasive, nonnative
plant species (e.g., cheatgrass), and habitat loss and fragmentation
due to agricultural and urban development. One of the indirect threats
experienced by slickspot peppergrass is the negative impact on insect
pollinators caused by conversion and fragmentation of native habitats
due to invasive, nonnative plant species and various forms of
development. Another indirect threat is the potential increase in seed
predation by Owyhee harvester ants resulting from the conversion of
sagebrush-steppe to grasslands. Livestock pose a threat to slickspot
peppergrass, primarily through mechanical damage to individual plants
and slick spot habitats; however, current livestock management
conditions and associated conservation measures address this potential
threat such that it does not pose a significant risk to the viability
of the species as a whole.
In the 2009 listing rule (74 FR 52014, October 8, 2009), climate
change in and of itself was not considered to represent a significant
range-wide threat to slickspot peppergrass; however, it was
acknowledged that climate change potentially plays an important
supporting role in intensifying the primary threats to the species.
Information identified in the SSA (USFWS 2020, pp. 79-82) indicated
that climate change has already amplified the effects of wildfire and
invasive, nonnative plants on slickspot peppergrass, and through its
influence on invasive, nonnative annual grass spread, climate change
may have been a factor in the continuing downward trend in slickspot
peppergrass population numbers observed over the past decade. Other,
less significant factors that have the potential to impact the species
include the effects from rangeland revegetation projects, wildfire
management practices, recreation, and military use.
All areas of critical habitat may require some level of management
to address current and future threats to slickspot peppergrass and to
maintain or restore the PBFs. Special management to protect the
features essential to the conservation of slickspot peppergrass from
the effects of the current wildfire regime may include preventing or
restricting the establishment of invasive, nonnative plant species,
post-wildfire restoration with native plant species, and reducing the
likelihood of wildfires affecting the nearby plant community
components. Rapid response to wildfires from local and government fire
agencies can potentially limit the size of wildfires and the spread of
wildfire into slickspot peppergrass habitat. For fires that do occur in
critical habitat, post-fire restoration plans can identify ways to
limit invasive, nonnative vegetation and restore habitat using native
plants.
Special management to protect the features essential to the
conservation of
[[Page 28887]]
slickspot peppergrass from the effects of invasive, nonnative unseeded
plant species and seeded nonnative plants (also referred to as ``highly
competitive nonnative seeded plants'' (USFWS 2020, p. 68)) may include
the following: (1) protecting remnant blocks of native vegetation, (2)
educating the public about invasive, nonnative species, (3) supporting
research and funding for nonnative plant species control and native
species restoration, (4) preventing or restricting the establishment of
nonnative plant species, (5) washing vehicles prior to travel into
areas containing slickspot peppergrass, and (6) reducing the likelihood
of wildfires.
Special management to protect the features essential to the
conservation of slickspot peppergrass from the effects of livestock use
may include conservation measures and actions to minimize the effects
of livestock use on these lands. Existing conservation plans and land
use plans contain numerous measures to avoid, mitigate, and monitor the
effects of livestock use on slickspot peppergrass. For example,
livestock-grazing conservation measures are implemented through the
conservation agreement between the Bureau of Land Management (BLM) and
the Service (BLM 2014, pp. 8-12) and the Mountain Home Air Force Base
Integrated Natural Resources Management Plan (INRMP; U.S. Air Force
2017, p. 192). Existing conservation measures include prescribing a
minimum distance for the placement of salt and water troughs,
identifying livestock use restrictions to reduce trampling of slick
spots during wet periods, constructing fences, or potentially modifying
current livestock use. We recognize the potential for negative impacts
to slickspot peppergrass populations and slick spots that may result
from seasonal, localized trampling events. However, under current
management conditions, we do not consider livestock use to pose a
significant threat to slickspot peppergrass. We encourage the continued
implementation of conservation measures and associated monitoring to
ensure potential impacts of livestock trampling to slickspot
peppergrass are avoided or minimized.
Special management to protect the features essential to the
conservation of slickspot peppergrass from the effects of residential
and agricultural development may include the following: (1) creating
managed plant reserves and open spaces, (2) limiting disturbances to
and within suitable habitats, (3) increasing compliance inspections
with livestock grazing permit holders, (4) requiring project fencing
with adjacent construction activities, (5) disallowing new roads, and
(6) evaluating the need for, and conducting, restoration efforts or
revegetation of native plants in open spaces, plant preserves, or
disturbed areas.
Special management to protect the features essential to the
conservation of slickspot peppergrass from the effects of Owyhee
harvester ant seed predation are addressed under the special management
considerations for the current wildfire regime and invasive nonnative
plants.
Finally, the protection of pollinators and their habitat is
essential to the conservation of slickspot peppergrass. General
pollinator management practices include: (1) maintaining a diversity of
native plants with overlapping bloom times to provide flowers for
foraging throughout the pollinators' active season, (2) nesting and
egg-laying sites (e.g., bare ground, hollow stems, bunchgrasses, and
larval host plants), (3) sheltered, undisturbed places for
overwintering, (4) a landscape free of pesticides and high levels of
pathogens, and (5) connected habitat patches (The Xerces Society 2018,
pp. 15-17).
The designation of critical habitat does not imply that lands
outside of critical habitat do not play an important role in the
conservation of slickspot peppergrass. Activities with a Federal nexus
that may affect those areas outside of critical habitat, such as
development, agricultural, or road construction activities, are still
subject to review under section 7 of the Act if they may affect
slickspot peppergrass.
Criteria and Methodology Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species at the time of
listing because we did not identify any unoccupied areas that were
essential for the conservation of the species and, therefore, met the
definition of critical habitat.
We delineated critical habitat units within the three geographic
areas where slickspot peppergrass occurs in order to represent genetic
variability across the species' range. These areas include the
Foothills, the Snake River Plain, and the Jarbidge (USFWS 2020, p. 5).
Each critical habitat unit contains polygons of critical habitat
consisting of slickspot peppergrass populations known as Element
Occurrences (EO) and associated pollinator buffers that extend 500 m
(1,640 ft) from the outer edge of the EOs. EOs are based on the
standards and methods developed by NatureServe (NatureServe 2002,
entire; NatureServe 2020a, entire; NatureServe 2020b, entire) and
adopted by the Idaho Department of Fish and Game (IDFG). Slickspot
peppergrass EOs are groups of plants that occur within 1 km (0.6 mi) of
each other. Therefore, an EO can consist of one occupied slick spot or
several occupied slick spots aggregated into one EO providing they are
within the 1-km (0.6 mi) distance of one another. IDFG botanists track
EOs and enter them into the Idaho Fish and Wildlife Information System
(IFWIS), which is managed by the IDFG. The IDFG uses NatureServe
guidance (NatureServe 2020b) to rank slickspot peppergrass EOs.
Information used to inform the rankings was based on a systematic
assessment of field data collected from summer 2012 through spring 2016
(Kinter and Miller 2016), plus data provided to the IDFG by the BLM for
surveys from 2016 to 2018.
As per the NatureServe guidance, IDFG botanists ranked slickspot
peppergrass EOs based on three factors: size, condition, and landscape
context (Kinter and Miller 2016, p. 3). Possible EO ranks include A, B,
C, D, E, F, H, or X; higher rankings (the highest rank is A) indicate
sites with greater habitat quality and larger population sizes, which
we infer are more likely to persist and sustain the species. Rankings
of B, BC, C, CD, and D refer to states of decreased abundance and
quality of detectable plants, native plant community, habitat
condition, and overall landscape context within 1 km (0.6 mi) of
occupied slick spots. Areas ranked E are those records with confirmed
slickspot peppergrass presence but for which no additional habitat
information is available. Rankings of F indicate areas where slickspot
peppergrass was previously found, but no individuals were found when
last visited by a qualified surveyor. Areas ranked H indicate
historical occurrences where old location information is too vague to
allow the EO to be found again. Rankings of X denote extirpated
occurrences due to habitat destruction associated with development or
agricultural conversion.
[[Page 28888]]
We based our criteria for the identification of critical habitat on
IDFG's EO rankings. EO rankings are used for assessing estimated
viability or probability of persistence as well as for prioritizing
conservation planning or actions (NatureServe 2020b, p. 2, 12). IDFG
botanists ranked each EO and sub-EO (a smaller, distinct area within
the EO that is delineated for localized management) based on measures
of habitat quality (EO and sub-EO condition and surrounding landscape
context) and species abundance. Weighted calculations used by the IDFG
to determine the ranking of each EO and sub-EO were as follows:
33 percent of the EO ranking score was based on the EO/
sub-EO size (highest number of plants observed in at least 1 of up to
the past 6 years of available IDFG data);
45 percent of the EO ranking score was based on habitat
condition within EOs/sub-EOs as documented during IDFG recent field
reviews; and
22 percent of the EO ranking score was based on habitat
condition of the landscape within 1 km (0.6 mi) of EOs/sub-EOs as
documented during IDFG recent field reviews.
These IDFG rankings do not necessarily correlate directly to the
PBFs. For example, as described above in Summary of Essential Physical
or Biological Features, PBF 1(b) states that ecologically functional
microsites or ``slick spots'' are characterized by sparse vegetation,
with introduced, invasive, nonnative plant species cover absent or
limited to low to moderate levels. However, the IDFG rankings do not
directly measure invasive, nonnative plant cover within the actual
slick spot. The assessments of condition were based mostly on the EO
habitat surrounding the slick spots, which tended to be more invaded
than the slick spots. So, even if a habitat ranking was characterized
as moderately to highly invaded, the slick spots themselves often had
very low amounts of invasive species (Kinter 2020, pers. comm.).
Therefore, we used the IDFG rankings, which constitute the best
available information, as surrogates to help us determine which EOs
provided the PBFs essential to the conservation of the species (i.e.,
the EOs most likely to provide for populations of slickspot peppergrass
that will contribute to the conservation and recovery of the species).
Based on comments received during the public comment period on our
revised proposed critical habitat rule (85 FR 44584, July 23, 2020), we
reevaluated our criteria for determining which EOs contain PBFs and
meet our definition of critical habitat. The proposed rule included
slickspot peppergrass EOs with IDFG rankings of B, BC, C, and CD as
designated critical habitat. However, in this final rule, we also
included all areas that were occupied at the time of listing that are
ranked D. Although some of the EOs with D rankings often have PBFs with
degraded conditions and may need special management, we determined that
including these lower ranked EOs is essential to the conservation of
the species in part because we no longer have any excellent (A-ranked)
or excellent to good (AB ranked) EOs, and we need these lower ranked
EOs to increase the redundancy of populations across the species'
range. Since 2006, there have been no A- or AB-ranked EOs of slickspot
peppergrass (Kinter and Miller 2016, p. 8; Colket et al. 2006, p. 11;
IFWIS database (IDFG Database 2021)). Ultimately, we conclude that
every EO included in critical habitat was occupied at the time of
listing and has one or more of the PBFs sufficient to justify
designation.
Slickspot peppergrass is a species endemic to southwest Idaho with
a relatively small geographic range and limited, finite habitat. Slick
spot microsites are believed to have formed during the Pleistocene, and
current climate conditions may not allow for the formation of new slick
spots; therefore, the loss of slick spot microsites within the range of
slickspot peppergrass seems to be permanent (USFWS 2020, pp. 6-7). A
statistical analysis of 11 years of range-wide monitoring data
demonstrated that across all three geographic areas, slickspot
peppergrass is declining (Bond 2017, p. 11), and without new tools and
management to reduce or ameliorate the primary threats (increased
wildfire and invasive plants) to the species, slickspot peppergrass is
predicted to continue to decline into the future (USFWS 2020, pp. 121,
124-130).
In addition, we expect climate change to magnify the severity and
scope of the primary threats of changing wildfire regimes and invasive
nonnative plants to slickspot peppergrass, thereby reducing resiliency,
representation, and redundancy of slickspot peppergrass populations
rangewide (USFWS 2020, pp. 79-82). In the 2009 listing rule (74 FR
52014, October 8, 2009), we did not consider climate change to
represent a significant range-wide threat to slickspot peppergrass.
However, information identified in the SSA indicates that climate
change has already amplified the effects of wildfire and invasive,
nonnative plants on slickspot peppergrass. Through its influence on the
spread of invasive, nonnative annual grasses, climate change may have
been a factor in the continuing downward trend in slickspot peppergrass
population numbers observed over the past decade.
Elevations for slickspot peppergrass populations range from a low
of 756 m (2,480 ft) at EO 68 south of New Plymouth, Idaho, in the
Foothills geographic area to a high of 1,654 m (5,425 ft) at EO 97
south of the Juniper Butte Range in the Jarbidge geographic area. Both
extremes of low- and high-elevation areas contain slickspot peppergrass
populations assessed by IDFG as having good population viability (B-
ranked), although the lower elevation populations of the Foothills
geographic area are smaller in area and more isolated, likely due to
more fragmented habitats. The current higher fragmentation levels and
projected future increased risk for wildfire and invasive, nonnative
plants (particularly cheatgrass) make lower elevation populations more
vulnerable to the effects of climate change than the higher elevation
populations in the Jarbidge geographic area because these threats are
likely to be amplified in lower elevation areas as temperatures
increase. Most plant species cannot naturally shift their geographic
ranges fast enough to keep up with predicted high projected rates of
climate change in most landscapes. However, by designating critical
habitat in all three geographic areas (Foothills, Snake River Plain,
and Jarbidge) where the species occurs, including all B-D ranked EOs as
well as the 500-m (1,640-ft) pollinator buffer around designated EOs,
we have determined that these areas will help support slickspot
peppergrass under potential climate change scenarios in the future.
We also continue to include areas that may have been partially
degraded in the past by threats such as wildfire. The Act defines
critical habitat as the specific areas within the geographical area
occupied by the species, at the time it is listed, on which are found
those physical or biological features essential to the conservation of
the species and which may require special management considerations or
protections. A combination of special management activities such as
habitat enhancement or threat-reduction actions may be appropriate to
maintain (and possibly increase) slickspot-peppergrass population
resiliency and species persistence over time. Including lower ranked
EOs (CD and D) will help ensure we retain the flexibility to consider
various paths to recovery. In summary, after considering the best
available information, we determined that all
[[Page 28889]]
occupied slickspot peppergrass EOs ranked B-D contain one or more of
the physical or biological features essential to the conservation of
the species and, therefore, meet our definition of critical habitat.
We have determined that 113 EOs (42 B-ranked, 2 BC-ranked, 33 C-
ranked, 7 CD-ranked, and 29 D-ranked) meet our criteria for critical
habitat designation. These 113 EOs reflect the merging of 2 C-ranked
EOs (EOs 19 and 41) into B-ranked EO 18, the addition of CD-ranked EOs
23 and 57 that were not included in the proposed rule (85 FR 44584,
July 23, 2020), and the addition of 6 new EOs. These six EOs include EO
122 (Unit 3a; C rank) and EOs 123, 124, 727, 728, and 729 (Unit 4, B
rank). These EOs were ranked by the IDFG after publication of our July
23, 2020, revised proposed rule (85 FR 44584) and meet our definition
of critical habitat. EO 122 was occupied at the time of listing (2016).
The other five EOs were found in 2017 and were likely occupied at the
time of listing because these slick spots had not been surveyed prior
to 2017, and slickspot peppergrass is not likely to colonize new areas
to the extent to which these EOs were populated (number of plants
ranged from 13 to 766 per EO) within a year. Therefore, all six EOs are
included in our final critical habitat designation.
In the 2009 final listing rule (74 FR 52014, October 8, 2009), we
described the total area of known EOs (that is, area covered by the EOs
themselves) as being approximately 6,500 hectares (ha) (16,000 acres
(ac)). This area reflected only the known locations of individuals of
the plant, as recognized in the IDFG IFWIS database as of 2009, and is
a small portion of the overall geographic range of the species. In the
May 10, 2011, proposed critical habitat rule (76 FR 27184), we
described in detail the criteria used to identify critical habitat,
including a 250-m (820-ft) buffer around EO polygons to provide areas
for pollinator support and to minimize disturbance to the plant's
habitat. We have since reassessed the size of the pollinator buffer
and, in this final rule, we are increasing the buffer around EOs to 500
m (1,640 ft) (see the section Physical or Biological Features Essential
to the Conservation of the Species, above, for details).
In this final rule, we used Geographic Information System (GIS)
software (ESRI ArcGIS 10.7.1) to more precisely map areas that meet the
definition of critical habitat rather than the mapping methodology we
used in our 2011 and 2014 proposed rules (76 FR 27184, May 10, 2011; 79
FR 8402, February 12, 2014), which used the Public Land Survey System
Quarter-Quarter section method. The GIS-based method involves
delineation of B- through D-ranked slickspot peppergrass EOs surrounded
by 500-m (1,640-ft) pollinator buffers to create polygons of slickspot
peppergrass critical habitat. In contrast, critical habitat maps in
2011 and 2014 were created by selecting all Quarter-Quarter sections
that intersected with B- through CD-ranked EOs or their surrounding
250-m (820-ft) pollinator buffers. The use of Quarter-Quarter sections,
which represent land survey boundaries rather than biologically based
boundaries, resulted in large areas outside of the GIS-generated
polygons being included as proposed critical habitat in the 2011
proposed critical habitat rule (76 FR 27184, May 10, 2011) and the 2014
revised proposed critical habitat rule (79 FR 8402, Feb. 12, 2014). Use
of GIS-based information represents a more precise method of
delineating critical habitat that does not include extraneous areas.
The use of B- through D-ranked EO polygons and their surrounding
500-m (1,640-ft) pollinator buffers to create a more biologically sound
critical habitat designation method is feasible, and is consistent with
current Service regulations (77 FR 25611, May 1, 2012; 81 FR 7414, Feb.
11, 2016; 84 FR 45020, August 27, 2019) as well as with other Service
critical habitat rules (e.g., White Bluffs bladderpod (78 FR 76995,
December 20, 2013), Webber's ivesia (79 FR 32126, June 3, 2014),
beardless chinchweed (86 FR 31830, June 15, 2021)).
When determining final critical habitat boundaries, we made every
effort to avoid including developed areas such as lands covered by
buildings, pavement, and other structures because such lands lack PBFs
necessary for slickspot peppergrass. These areas lacking PBFs were
identified in GIS using aerial imagery from the ArcGIS World Imagery
layer, aerial imagery from Google Earth Pro, and the 2019 National
Agricultural Imagery Program (NAIP) Idaho layer, which has a spatial
resolution of a 60-centimeter ground sample distance. Areas that lacked
PBFs were then manually clipped out of our critical habitat polygons.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final rule have been
excluded by text in the final rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification, unless the specific action will
affect the PBFs in the adjacent critical habitat.
Therefore, we are designating as critical habitat lands that we
determined were occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the PBFs that are essential
to support life-history processes of the species, and that may require
special management considerations or protections. The four units each
contain one or more of the physical or biological features that support
multiple life-history processes for slickspot peppergrass.
The final critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, and presented at
the end of this document under Regulation Promulgation. We will make
the coordinates or plot points or both on which each map is based
available to the public on https://www.regulations.gov at Docket No.
FWS-R1-ES-2010-0071, and on our internet site here: https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum.
Final Critical Habitat Designation
We are designating approximately 31,569 ha (78,009 ac) of critical
habitat in four units and seven subunits for slickspot peppergrass. The
four units are the: (1) Payette and Gem Counties Unit, (2) Gem and Ada
Counties Unit, (3) Ada and Elmore Counties Unit, and (4) Owyhee County
Unit. Table 1 shows the critical habitat units and the approximate area
of each unit. All units are considered occupied at the time of listing.
The critical habitat areas we describe below constitute our current
best assessment of areas that meet the definition of critical habitat
for slickspot peppergrass.
[[Page 28890]]
Table 1--Critical Habitat Units for Slickspot Peppergrass
[Area estimates reflect all critical habitat within critical habitat unit or subunit boundaries.]
----------------------------------------------------------------------------------------------------------------
Federal land in hectares (acres)
-------------------------------------- Total land in
Unit Subunit Bureau of Land Bureau of hectares (acres)
Management Reclamation
----------------------------------------------------------------------------------------------------------------
1-Payette and Gem Counties....... .................... 695 (1,718) 9 (23) 704 (1,741)
----------------------------------------------------------------------------------------------------------------
2-Gem and Ada Counties........... 2a.................. 874 (2,160) 0 874 (2,160)
2b.................. 5,423 (13,401) 0 5,423 (13,401)
2c.................. 657 (1,623) 0 657 (1,623)
2d.................. 1,689 (4,173) 18 (45) 1,707 (4,218)
--------------------------------------------------------
Unit 2 Total........ 8,643 (21,357) 18 (45) 8,661 (21,402)
----------------------------------------------------------------------------------------------------------------
3-Ada and Elmore Counties........ 3a.................. 1,502 (3,711) 52 (128) 1,554 (3,839)
3b.................. 1,821 (4,502) 32 (80) 1,854 (4,582)
3c.................. 2,453 (6,062) 32 (80) 2,485 (6,142)
--------------------------------------------------------
Unit 3 Total........ 5,777 (14,275) 117 (288) 5,894 (14,563)
----------------------------------------------------------------------------------------------------------------
4-Owyhee County.................. .................... 16,310 (40,303) 0 16,310 (40,303)
--------------------------------------------------------
Total........................ .................... 31,424 (77,652) 144 (356) 31,569 (78,009)
----------------------------------------------------------------------------------------------------------------
Notes: Area sizes may not sum due to rounding.
We present brief descriptions of all final critical habitat units,
identify the EOs included in each, and provide the reasons why they
meet the definition of critical habitat for slickspot peppergrass,
below.
Unit 1: Payette and Gem Counties
Critical habitat in Unit 1 (Payette and Gem Counties Unit) consists
of 704 ha (1,741 ac) located in portions of Payette and Gem Counties
within the Foothills geographic area. The northern boundary of Unit 1
is approximately 7.0 km (4.3 mi) south of New Plymouth, Idaho. This
unit contains five slickspot peppergrass EOs: 66, 68, 69, 70, and 114,
all of which were occupied at the time of the species' listing. All
designated critical habitat is federally managed by either the BLM Four
Rivers Field Office area (695 ha (1,718 ac)) or the Bureau of
Reclamation (BOR) (9 ha (23 ac)). We have excluded 76 ha (188 ac) of
private land from portions of all five EOs in this unit (see Exclusions
Based on Other Relevant Impacts, below). Unit 1 critical habitat
polygons contain all PBFs: slick spot microsites, suitable vegetation
composition and structure, sufficient habitat components to support
insect pollinators, and insect pollinators to allow for sufficient
fruit and seed production. Unit 1 is important to the conservation of
the species because it contains the northernmost occurrences for
slickspot peppergrass and potentially has the highest numbers of
individual plants. This unit helps to maintain the geographic range of
the species and provide opportunity for population growth. In Unit 1,
special management considerations or protection of the PBFs may be
required to address the threats posed by the current wildfire regime,
invasive nonnative plant species, and incompatible livestock use. These
threats are being addressed or coordinated with our partners, including
the BLM and BLM livestock permittees, to implement needed actions for
species recovery.
Unit 2: Gem and Ada Counties
Critical habitat in Unit 2 (Gem and Ada Counties Unit) consists of
8,661 ha (21,402 ac) divided into four subunits: 2a, 2b, 2c, and 2d.
This unit contains 26 slickspot peppergrass EOs split among the 4
subunits. All designated critical habitat in this unit is federally
managed by the BLM (8,643 ha (21,357 ac)) and BOR (18 ha (45 ac)). All
subunits contain the PBFs essential to the conservation of the species,
as described in more detail below. This unit is important to the
conservation of slickspot peppergrass because it contains a large
remaining intact area of sagebrush-steppe habitat that has experienced
little impact from wildfire.
Subunit 2a
Subunit 2a lies within the Foothills geographic area and contains
the city of Eagle, Idaho, and the southern boundary of the subunit is
approximately 1.8 km (1.1 mi) northwest of Boise, Idaho. Subunit 2a
contains five EOs: 52, 56, 76, 108 and 118, all of which were occupied
at the time of the species' listing. Approximately 874 ha (2,160 ac) of
subunit 2a are federally managed by the BLM. We have excluded 1,572 ha
(3,886 ac) of private land and 41 ha (102 ac) of State land from
portions of EOs 52, 56, 76, 108, and 118 and wholly from EOs 12, 23,
36, 38, 65, and 107 (see Exclusions Based on Other Relevant Impacts,
below). Subunit 2a is important to the conservation of the species
because it contains several large populations of slickspot peppergrass
in the Foothills area. This subunit helps to maintain the geographic
range of the species and provide opportunity for population growth.
Subunit 2a critical habitat polygons contain one or more PBFs: slick
spot microsites, suitable vegetation composition and structure,
sufficient habitat components to support insect pollinators, and insect
pollinators to allow for sufficient fruit and seed production. In
Subunit 2a, special management considerations or protection of the PBFs
may be required to address the threats posed by the current wildfire
regime, invasive nonnative plant species, and incompatible livestock
use. These threats are being addressed or coordinated with our
partners, including the BLM and BLM livestock permittees, to implement
needed actions for species recovery.
Subunit 2b
The northern boundary of Subunit 2b is approximately 3.2 km (2.0
mi) south of Kuna, Idaho, within the Snake River Plain geographic area.
Critical habitat in Subunit 2b comprises 5,423 ha (13,401
[[Page 28891]]
ac) of federally managed BLM land and contains eight EOs: 18, 24, 25,
42, 43, 57, 58, and 105, all of which were occupied at the time of the
species' listing. We have excluded 64 ha (159 ac) of private land and
171 ha (423 ac) of State land from portions of EOs 18 and 25 (see
Exclusions Based on Other Relevant Impacts, below). BLM lands in
Subunit 2b are within the Morley Nelson Snake River Birds of Prey
National Conservation Area. This subunit is important to the
conservation of the species because it contains EO 18, which supports
high numbers of individual plants. Subunit 2b helps to maintain the
geographic range of the species and provide opportunity for population
growth. Although impacted from past fires, Subunit 2b critical habitat
polygons contain one or more PBFs: slick spot microsites, suitable
vegetation composition and structure, sufficient habitat components to
support insect pollinators, and insect pollinators to allow for
sufficient fruit and seed production. In Subunit 2b, special management
considerations or protection of the PBFs may be required to address the
threats posed by the current wildfire regime, invasive nonnative plant
species, and incompatible livestock use. These threats are being
addressed or coordinated with our partners, including the BLM and BLM
livestock permittees, to implement needed actions for species recovery.
Subunit 2c
The northern boundary of Subunit 2c is approximately 6.0 km (3.7
mi) southwest of Boise, Idaho, within the Snake River Plain geographic
area. It contains four EOs: 32, 48, 49, and 102, all of which were
occupied at the time of the species' listing. Critical habitat in
Subunit 2c consists of approximately 657 ha (1,623 ac) of BLM land
within the Four Rivers Field Office area. We have excluded 793 ha
(1,959 ac) of private land and 149 ha (367 ac) of State land from
portions of EOs 32, 48, 49, and 102 and wholly from EOs 22, 64, and 101
(see Exclusions Based on Other Relevant Impacts, below). Subunit 2c is
important to the conservation of the species because it provides for
connectivity between the species' populations at the eastern and
western portions of the species' range. This subunit helps to maintain
the geographic range of the species and provide opportunities to expand
populations. Subunit 2c critical habitat polygons contain one or more
PBFs: slick spot microsites, suitable vegetation composition and
structure, sufficient habitat components to support insect pollinators,
and insect pollinators to allow for sufficient fruit and seed
production. In Subunit 2c, special management considerations or
protection of the PBFs may be required to address the threats posed by
the current wildfire regime, invasive nonnative plant species, and
incompatible livestock use. These threats are being addressed or
coordinated with our partners, including the BLM and BLM livestock
permittees, to implement needed actions for species recovery.
Subunit 2d
The northern boundary of subunit 2d is approximately 23.0 km (14.3
mi) southeast of Boise, Idaho, within the Snake River Plain geographic
area. Subunit 2d contains nine EOs: 27, 28, 54, 67, 72, 77, 103, 104,
and 119, all of which were occupied at the time of the species'
listing. Critical habitat in Subunit 2d consists of approximately 1,707
ha (4,218 ac) of land managed by the BLM (1,689 ha (4,173 ac)) and the
BOR (18 ha (45 ac)). We have excluded 112 ha (277 ac) of private land
and 1,182 ha (2,921 ac) of State land from portions of EOs 27, 54, 67,
72, 77, 103, and 104 (see Exclusions Based on Other Relevant Impacts,
below).
Subunit 2d is located, in part, within the boundary of the BLM
Morley Nelson Snake River Birds of Prey National Conservation Area.
This subunit helps to maintain the geographic range of the species and
provide an opportunity to expand slickspot peppergrass populations.
Subunit 2d critical habitat polygons contain one or more PBFs: slick
spot microsites, suitable vegetation composition and structure,
sufficient habitat components to support insect pollinators, and insect
pollinators to allow for sufficient fruit and seed production. In
Subunit 2d, special management considerations or protection of the PBFs
may be required to address the threats posed by the current wildfire
regime, invasive nonnative plant species, and incompatible livestock
use. These threats are being addressed or coordinated with our
partners, including the BLM and BLM livestock permittees, to implement
needed actions for species recovery.
Unit 3: Ada and Elmore Counties
Critical habitat in Unit 3 (Ada and Elmore Counties Unit) consists
of 5,996 ha (14,816 ac) within the Snake River Plain geographic area
that is managed by the BLM (5,845 ha (14,444 ac)) and the BOR (150 ha
(372 ac)). It contains three subunits: 3a, 3b, and 3c. This unit is
composed of 26 slickspot peppergrass EOs. All subunits contain the PBFs
essential to the conservation of the species, as described in more
detail below. Unit 3 is important to the conservation of the species
because it contains EOs with higher quality habitat, represents a
substantial portion of the species' range, and contains several EOs
with high numbers of slickspot peppergrass plants.
Subunit 3a
The northern boundary of Subunit 3a is approximately 6.3 km (3.9
mi) south of Mayfield, Idaho, while the southern boundary is
approximately 19.6 km (12.2 mi) northwest of Mountain Home, Idaho.
Subunit 3a is composed of seven EOs: 15, 20, 30, 31, 60, 112, and 122,
all of which were occupied at the time of the species' listing.
Critical habitat in Subunit 3a consists of approximately 1,554 ha
(3,839 ac) of land managed by the BLM (1,502 ha (3,711 ac)) and the BOR
(52 ha (128 ac)). We have excluded 1,059 ha (2,618 ac) of private land
from portions of all seven EOs in this unit (see Exclusions Based on
Other Relevant Impacts, below). Subunit 3a is bisected by Interstate 84
and old Highway 30; past burns and associated drill-seeding of crested
wheatgrass (Agropyron cristatum) are evident in portions of this
subunit. This subunit contains PBFs essential to the conservation of
slickspot peppergrass. Subunit 3a is important to the conservation of
the species because it contains some EOs supporting high numbers of
slickspot peppergrass plants. This subunit helps to maintain the
geographic range of the species and provide opportunity for population
growth. Subunit 3a critical habitat polygons contain one or more PBFs:
slick spot microsites, suitable vegetation composition and structure,
sufficient habitat components to support insect pollinators, and insect
pollinators to allow for sufficient fruit and seed production. Special
management considerations or protection of the PBFs may be required in
Subunit 3a to address the threats posed by the current wildfire regime,
invasive nonnative plant species, incompatible livestock use, and off-
road vehicle use. These threats are being addressed or coordinated with
partners, including the BLM and BLM livestock permittees, to implement
needed actions for species recovery.
Subunit 3b
The boundaries of Subunit 3b include the city of Mountain Home,
Idaho, while the northern boundary is approximately 55.7 km (34.6 mi)
southeast of Boise, Idaho. Subunit 3b is composed of 14 EOs: 10, 21,
29, 50, 51,
[[Page 28892]]
61, 62, 111, 113, 115, 116, 117, 120, and 121, all of which were
occupied at the time of the species' listing. Critical habitat in
Subunit 3b consists of approximately 1,957 ha (4,835 ac) of land
managed by the BLM (1,890 ha (4,671 ac)) and the BOR (66 ha (164 ac)).
We have excluded 185 ha (458 ac) of private land and 134 ha (330 ac) of
State land from portions of EOs, 21, 50, 61, 62, 115, and 121 (see
Exclusions Based on Other Relevant Impacts, below). BLM lands within
Subunit 3b are located within both the Four Rivers Field Office area
and the Morley Nelson Birds of Prey National Conservation Area. Subunit
3b is important to the conservation of the species because it provides
connectivity between other units across the range of the species. This
subunit helps to maintain the geographic range of the species and
provide opportunity for population growth. Subunit 3b critical habitat
polygons contain one or more PBFs: slick spot microsites, suitable
vegetation composition and structure, sufficient habitat components to
support insect pollinators, and insect pollinators to allow for
sufficient fruit and seed production. Subunit 3b contained substantial
biological soil crust cover and relatively low cheatgrass cover;
however, a wildfire that occurred in the area in 2012 (USFWS 2013, p.
3) likely reduced habitat quality in the subunit. In Subunit 3b,
special management considerations or protection of the PBFs may be
required to address the threats posed by the current wildfire regime,
invasive nonnative plant species, and incompatible livestock use. These
threats are being addressed or coordinated with our partners, including
the BLM and BLM livestock permittees, to implement needed actions for
species recovery.
Subunit 3c
The southern boundary of Subunit 3c is approximately 1.6 km (1.0
mi) northeast of Hammett, Idaho, while the western boundary is 19.6 km
(12.2 mi) southeast of Mountain Home, Idaho. This subunit is composed
of four EOs: 8, 26, 63, and 106, all of which were occupied at the time
of the species' listing. Critical habitat in Subunit 3c consists of
approximately 2,485 ha (6,142 ac) of land managed by the BLM (2,453 ha
(6,062 ac)) and the BOR (32 ha (80 ac)). We have excluded 643 ha (1,589
ac) of private land from portions of EOs 8, 26, and 63 (see Exclusions
Based on Other Relevant Impacts, below). BLM lands in Subunit 3c are
primarily within the Four Rivers Field Office area. Subunit 3c is
important to the conservation of the species because it contains the
most northeastern occurrences for slickspot peppergrass and has two EOs
(8 and 26) with large numbers of plants. This subunit helps to maintain
the geographic range of the species and provide opportunity for
population growth. Subunit 3c critical habitat polygons contain one or
more PBFs: slick spot microsites, suitable vegetation composition and
structure, sufficient habitat components to support insect pollinators,
and insect pollinators to allow for sufficient fruit and seed
production. Biological soil crust cover is high in some areas of the
subunit. In Subunit 3c, special management considerations or protection
of the PBFs may be required to address the threats posed by the current
wildfire regime, invasive nonnative plant species, incompatible
livestock use, and recreational use. These threats are being addressed
or coordinated with our partners, including the BLM and BLM livestock
permittees, to implement needed actions for species recovery.
Unit 4: Owyhee County
Critical habitat in Unit 4 (Owyhee County Unit) consists of 16,310
ha (40,303 ac) of land managed by the BLM within the Jarbidge
geographic area. The northern boundary of Unit 4 is approximately 83.8
km (52.1 mi) south of Mountain Home, Idaho, while the eastern boundary
is 52.0 km (32.3 mi) west of Rogerson, Idaho. This unit is important to
the conservation of slickspot peppergrass because it contains the
largest amount of contiguous habitat with little fragmentation or
development, helps to maintain the geographic range of the species, and
provides an opportunity for population growth. In addition, it contains
the most high-elevation habitat, which will be more resilient to
climate change. This unit is composed of 24 EOs (EOs 73, 74, 75, 78,
79, 80, 81, 83, 84, 85, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,
123, 124) and 22 sub-EOs (sub-EOs 700, 701, 702, 703, 704, 705, 706,
708, 709, 712, 715, 716, 717, 719, 720, 721, 722, 725, 726, 727, 728,
729), which are components of the EO 16 metapopulation. The EO 16
metapopulation is a ``parent'' EO to all sub-EOs numbered 700 or
greater. Each of these EOs and sub-EOs were occupied at the time of the
species' listing. We have excluded 3 ha (7 ac) of private land and
1,059 ha (2,618 ac) of State land from portions of EOs 74, 75, 80, 83,
84, 85, 96, 97, 124, and sub-EOs 700-729 (see Exclusions Based on Other
Relevant Impacts, below). Unit 4 critical habitat polygons contain all
PBFs: slick spot microsites, suitable vegetation composition and
structure, sufficient habitat components to support insect pollinators,
and insect pollinators to allow for sufficient fruit and seed
production. In Unit 4, special management considerations or protection
of the PBFs may be required to address the threats posed by the current
wildfire regime, invasive nonnative plant species, and incompatible
livestock use. These threats are being addressed or coordinated with
our partners, including the BLM and BLM livestock permittees, to
implement needed actions for species recovery (portions of Unit 4
contain past drill-seedings of crested wheatgrass and other highly
competitive nonnative species).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final regulation with a revised definition of
``destruction or adverse modification'' on August 27, 2019 (84 FR
44976). Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the Act's
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation. The Bureau of Land Management has conducted
section 7 compliance on slickspot peppergrass
[[Page 28893]]
proposed critical habitat since it was initially proposed in 2011.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support PBFs essential to the
conservation of a listed species and provide for the conservation of
the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to: Actions that would remove a
significant number of slick spot microsites, a significant portion of
remnant native sagebrush steppe habitat, or a significant amount of
pollen and nectar source plants, and actions that would result in
significant ground disturbance. Such activities could include, but are
not limited to, residential and commercial development, infrastructure
projects, and conversion to agricultural fields. These activities could
permanently eliminate or reduce the habitat necessary for the growth
and reproduction of slickspot peppergrass.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that: ``The Secretary shall not
designate as critical habitat any lands or other geographic areas owned
or controlled by the Department of Defense (DoD), or designated for its
use, that are subject to an INRMP prepared under section 101 of the
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that
such plan provides a benefit to the species for which critical habitat
is proposed for designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for slickspot peppergrass to
determine if they met the criteria for exemption from critical habitat
under section 4(a)(3) of the Act. The following areas are designated
for the use of DoD with completed, Service-approved INRMPs.
Approved INRMPs
Military activities within the range of slickspot peppergrass
include ordnance-impact areas, training activities, and military
development. Military-training activities occur at, or near, four EOs:
three at the OCTC in the Snake River Plain area, and a portion of one
EO at the U.S. Air Force Juniper Butte Range
[[Page 28894]]
in the Jarbidge area. INRMPs have been developed and implemented for
both the Juniper Butte Range and the OCTC that include conservation
measures for a suite of species including slickspot peppergrass. The
INRMPs provide management direction and conservation measures to
address or eliminate the effects from military-training exercises on
slickspot peppergrass and its habitat. Both the Idaho Army National
Guard (Kinter et al. 2014, p. i) and the U.S. Air Force (Conley 2018,
p. 3) conduct annual monitoring to ensure impacts to the species due to
training activities are either avoided or minimized. In addition, the
Sikes Act requires that INRMPs and its effects be regularly reviewed
every five years by the Service and appropriate state agencies.
Idaho Army National Guard--Orchard Combat Training Center
The Idaho Army National Guard's OCTC on the Snake River Plain has
had an INRMP in place since 1991. Subsequent revisions and reviews were
completed in 1997, 2004, and 2013 and included conservation benefits
for slickspot peppergrass. Because the last INRMP revision was in 2013,
the Idaho Army National Guard is in the process of reviewing and
renewing the INRMP. In the meantime, OCTC is currently managed under an
Operational INRMP that includes continued implementation of all
slickspot peppergrass conservation measures from the 2013 INRMP until
the INRMP revision and review is completed (Stitt 2022, in litt.,
entire).
In addition, the Idaho Army National Guard is adding approximately
11,505 ha (28,430 ac) of land to the OCTC under the revised INRMP
(Stitt 2022, in litt., entire; IDARNG 2021, p. 1). This new area is
called the Simco Training Area and contains 124 ha (307 ac) of land
that meets the definition of slickspot peppergrass critical habitat but
is exempted under the Operational INRMP (Stitt 2022, in litt., entire).
These lands will be managed to avoid or minimize impacts on slickspot
peppergrass, slick spot microsites, and sagebrush-steppe habitats.
With the addition of the Simco Training Area land, the OCTC
contains 4,898 ha (12,102 ac) of occupied slickspot peppergrass habitat
and represents a majority of the highest quality, occupied slickspot
peppergrass habitat in the Snake River Plain area. The continuing high
quality of this habitat indicates the conservation measures are
effective in maintaining generally intact, native-plant vegetation and
limiting anthropogenic disturbances on the OCTC (Sullivan and Nations
2009, p. 91).
The INRMP for the OCTC provides a framework for managing natural
resources. Conservation measures included in the INRMP help the Idaho
Army National Guard avoid or minimize impacts on slickspot peppergrass,
slick spot microsites, and sagebrush-steppe habitat, while allowing for
the continued implementation of the Idaho Army National Guard's
mission. These measures include management actions such as restricting
off-road motorized vehicle use, intensive wildfire suppression efforts,
and the restriction of ground-operated military training to areas where
the plants are not found. For example, the INRMP includes objectives
for maintaining and improving slickspot peppergrass habitat and
restoring areas damaged by wildfire. The plan specifies that the OCTC
will use native species and broadcast seeding, collecting, and planting
small amounts of native seed not commercially available, and will
monitor the success of seeding efforts (Idaho Army National Guard
(IDARNG) 2013, pp. 104, 107-108). Since 1991, the OCTC, using
historical records, has restored several areas using native seed and
vegetation that was present prior to past wildfires.
The Idaho Army National Guard continues to use restoration methods
that avoid or minimize impacts to slickspot peppergrass or its habitat,
with an emphasis on maintaining representation of species that were
present in presettlement times (IDARNG 2013, p. 34). Since 1987, the
Idaho Army National Guard has demonstrated that efforts to suppress
wildfire, along with the use of native species with minimal ground-
disturbing activities, are effective in reducing the wildfire threat,
as well as in reducing rates of spread of nonnative, invasive species
associated with wildfire management activities (IDARNG 2013, p. 34). In
2008, the Idaho Army National Guard also initiated maintenance on a
series of identified fuel breaks on the OCTC. These fuel breaks are
designed to act as barriers to prevent fires ignited by military
training activities from spreading into adjacent slickspot peppergrass
habitat (BLM 2008, p. 20).
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the Idaho Army National Guard's OCTC INRMP and that
conservation efforts identified in the INRMP are being actively
implemented, are effective, and will provide a benefit to slickspot
peppergrass occurring in habitats within or adjacent to the OCTC.
Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3)(B)(i) of the Act. Through use
of GIS-based critical habitat designation methodology, we determined
that 4,898 ha (12,102 ac) of habitat within the OCTC currently meet our
definition of critical habitat; however, we are not including these
4,898 ha (12,102 ac) of habitat in the final critical habitat
designation because of this exemption.
Mountain Home Air Force Base--Juniper Butte Range
The U.S. Air Force, Mountain Home Air Force Base, which includes
the Juniper Butte Range in the Jarbidge area, has an INRMP that has
been in place for this military training facility since 2004. The
Mountain Home Air Force Base 2017 INRMP remains active (Echeverria
2022, pers. comm.). The U.S. Air Force manages occupied slickspot
peppergrass habitat within the Juniper Butte Range. Conservation
measures and implementation actions for slickspot peppergrass include
reseeding disturbed areas with native vegetation, eradicating noxious
weeds prior to their spreading, cleaning vehicles and equipment to
remove nonnative invasive plants, avoiding pesticide use within 8 m (25
ft) of slick spots, and delaying livestock turnout onto the range if
slick spot microsites are saturated (U.S. Air Force 2017, pp. 183-185,
189, 191-192, 200). The INRMP contains specific measures developed to
minimize the impacts from military training at the local level, or
general measures designed to improve the ecological condition of
native, sagebrush-steppe vegetation at a landscape scale, inclusive of
areas supporting slickspot peppergrass, while allowing for the
continued implementation of the Air Force mission. For example, the
U.S. Air Force has a number of ongoing efforts to address wildfire
prevention and suppression on the entire 4,913 ha (12,141 ac) Juniper
Butte Range. Prevention measures that are implemented on the Juniper
Butte Range include reducing standing fuels and weeds, planting fire-
resistant vegetation in areas with a higher potential for ignition
sources, such as along roads, and using wildfire indices to determine
when to restrict military activities when the wildfire hazard rating is
extreme (U.S. Air Force 2017, pp. 215-218). As a result of implementing
these measures, the threat from wildfire to slickspot peppergrass
associated with U.S. Air Force training activities has been effectively
reduced within the Juniper Butte Range.
Based on the above considerations, and in accordance with section
[[Page 28895]]
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the U.S. Air Force INRMP for the Juniper Butte Range
(Mountain Home Air Force Base) and that conservation efforts identified
in the INRMP are being implemented, are effective, and will provide a
conservation benefit to slickspot peppergrass occurring in habitats
within or adjacent to the Juniper Butte Range. Therefore, lands within
this installation are exempt from critical habitat designation under
section 4(a)(3)(B)(i) of the Act. Through use of our current GIS-based
critical habitat mapping methodology, 4,150 ha (10,256 ac) within the
Juniper Butte Range currently meet our definition of critical habitat;
however, we are not including these 4,150 ha (10,256 ac) of habitat in
the final critical habitat designation because of this exemption.
Considerations of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--both
of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable. The Secretary may exclude an area from critical
habitat if she determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless she determines, based on the best scientific data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species. In making the determination to
exclude a particular area, the statute on its face, as well as the
legislative history, are clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
We describe below the process that we undertook for taking into
consideration each category of impacts and our analyses of the relevant
impacts.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and the implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (Industrial Economics (IEc) 2011). We made the draft analysis,
dated July 22, 2011, available for public review and comment from
October 26, 2011, through December 12, 2011 (76 FR 66250). Following
the close of the comment period, we developed a final analysis (FEA,
dated March 12, 2012) of the potential economic effects of the
designation, taking into consideration the public comments and any new
information (IEc 2012). In developing this final revised critical
habitat designation, we found that the economic impacts will be similar
to levels described in the 2012 FEA. Our rationale regarding the
applicability of the 2012 FEA to this final critical habitat
designation is described in further detail below.
The intent of the FEA is to evaluate the potential economic impacts
associated with the designation of critical habitat for slickspot
peppergrass. The analysis first describes existing conservation plans
and other provisions that provide protection to slickspot peppergrass
and its habitat. We consider these existing protections and
conservation measures already in place--whether due to the listed
status of the species, other statutory or regulatory provisions, or
ongoing voluntary efforts--to be ``baseline'' protections for slickspot
peppergrass that would contribute to both costs and conservation of the
species even absent the designation of critical habitat. We analyze the
incremental economic impact of the final critical habitat designation
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario is the
``baseline'' for the incremental analysis. The baseline, therefore,
represents the impacts that would occur regardless of whether or not
critical habitat is designated. The ``with critical habitat'' scenario
describes the incremental impacts associated specifically with the
designation of critical habitat for the species. The incremental
conservation efforts and associated impacts are those not expected to
occur absent the designation of critical habitat for the species. In
other words, the incremental costs are those attributable solely to the
designation of critical habitat above and beyond the baseline costs;
these are the costs we consider in the final designation of critical
habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation, and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures the extent to which the designation may
reduce economic efficiency associated with residential and commercial
development and public projects and activities, such as economic
impacts on transportation projects, Federal lands, small entities, and
the energy industry. Decisionmakers can use this information to assess
whether the effects of the designation might unduly burden a particular
group or economic sector. Finally, the FEA considers potential economic
impacts to activities from 2012 through 2031 (IEc 2012, p. 4-1). The
FEA focuses analysis of the potential impacts on the following
categories of activity:
(1) Wildfire and invasive nonnative species management;
(2) Commercial and residential development;
(3) Utility and transportation activities; and
(4) Livestock use.
The analysis concludes that critical habitat designation of
slickspot peppergrass is not likely to affect levels of economic
activity or conservation measures being implemented within the proposed
critical habitat areas. The incremental impacts of critical habitat
designation for slickspot peppergrass will likely be limited to
additional administrative costs of section 7 consultations associated
with considering the potential for adverse modification of critical
habitat. The total value incremental impacts of critical habitat for
slickspot peppergrass were estimated to be $161,000 (IEc 2012, p. 4-1).
Therefore, the incremental costs associated with critical habitat are
unlikely to exceed $100 million in any single year and, therefore,
would not be significant (see Executive Order (E.O.) 12866 Regulatory
Planning and Review).
[[Page 28896]]
The primary reason critical habitat is unlikely to generate
economic impacts beyond administrative costs of consultation is that
approximately 99 percent of the critical habitat is Federal land
managed by the BLM, which is a party to a binding conservation
agreement established for the purpose of slickspot peppergrass
conservation. All projects and activities on these public lands within
the critical habitat designation are already subject to section 7
consultation for slickspot peppergrass. The BLM currently consults for
slickspot peppergrass on projects within 805 m (2,641 ft) around
occupied slickspot peppergrass areas and implements conservation
measures within these areas. As such, the BLM is currently implementing
conservation within an area larger than the 500-m (1,640-ft) buffer
area around occupied EOs that are included in the final critical
habitat designation (IEc 2012, p. 3-3). Even though our final
designation has changed since the FEA was published in 2012, we do not
expect the changes to have any meaningful practical effect on
consultation costs because the BLM, as the primary Federal action
agency, continues to conduct section 7 consultation on the potential
effects of their actions on the species to an additional 302 m (991 ft)
beyond the 500-m (1,640-ft) final critical habitat buffer. As stated in
the FEA, we do not expect additional conservation efforts as a result
of designation of critical habitat since the conservation measures
currently specified in the BLM's conservation agreement are being
applied across BLM lands and are sufficiently protective to avoid
adverse modification of slickspot peppergrass habitat (IEc 2012, p. ES-
6). The BLM has indicated that any increase in cost associated with
critical habitat section 7 compliance would be limited to increases in
BLM staff costs, which have been minimal since 2012 when the economic
analysis was completed, but not an increase in time needed to conduct
section 7 compliance (Kershaw 2020, pers. comm.). Therefore, the
conclusions of the 2012 final economic analysis still apply to the
final designation of critical habitat.
In addition, the FEA notes that across the entire area proposed for
critical habitat designation, project proponents and land managers are
already aware of the presence of the listed slickspot peppergrass EOs
and the requirement to consult on projects with a Federal nexus that
may affect the species or its habitat. The IDFG IFWIS database has
mapped slickspot peppergrass habitat, and this information is made
available to landowners and project proponents. In addition, previous
proposed slickspot peppergrass critical habitat rules, which included
maps of occupied EOs, along with a current range map, are available on
the Service's website at https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum. Proponents of activities with a
Federal nexus are, therefore, already undertaking section 7
consultations that consider potential impacts on slickspot peppergrass
(IEc 2012, p. ES-6).
Non-Federal lands are excluded from the final critical habitat
designation. Therefore, section 7 consultation of slickspot peppergrass
critical habitat is not required on these lands, and thus there is no
incremental impact of the designation of slickspot peppergrass critical
habitat on non-Federal lands. Potential impacts from projects with a
Federal nexus that may affect slickspot peppergrass plants on non-
Federal land will continue to be subject to section 7 consultation to
ensure that those projects do not jeopardize the continued existence of
the species. Given that all projects and activities occurring on public
lands within critical habitat are already subject to section 7
consultation for the species, and non-Federal lands have been excluded
from final critical habitat designation, we conclude that the
incremental impacts of our final designation of critical habitat for
slickspot peppergrass will similarly be limited to the additional
administrative costs of section 7 consultations associated with
considering the potential for adverse modification of critical habitat,
and that administrative costs of section 7 consultations will not
appreciably change from levels described in the 2012 final economic
analysis.
We considered the economic impacts of the critical habitat
designation. The Secretary is not exercising her discretion to exclude
any areas from this designation of critical habitat for slickspot
peppergrass based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Idaho Fish and Wildlife Office (see ADDRESSES) or by
downloading from the internet at https://www.regulations.gov (search
for docket number FWS-R1-ES-2010-0071).
Exclusions Based on Impacts on National Security and Homeland Security
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), national-security or
homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
Nevertheless, when designating critical habitat under section 4(b)(2),
we must consider impacts on national security, including homeland
security, on lands or areas not covered by section 4(a)(3)(B)(i).
Accordingly, we will always consider excluding from the designation
areas for which DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns. All lands within the
designation of critical habitat for slickspot peppergrass owned or
managed by DoD or DHS are already exempted from the designation under
section 4(a)(3)(B)(i). Consequently, the designation of critical
habitat for the slickspot peppergrass will not have an impact on
national security or homeland security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area, such as habitat
conservation plans, safe harbor agreements, or candidate conservation
agreements with assurances (CCAAs), or whether there are non-permitted
conservation agreements and partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
look at the existence of Tribal conservation plans and partnerships and
consider the government-to-government relationship of the United States
with Tribal entities. We also consider any social impacts that might
occur because of the designation.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection
[[Page 28897]]
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. In addition, continued implementation of
an ongoing management plan that provides equal to or more conservation
than a critical habitat designation would reduce the benefits of
including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential PBFs; whether there is a reasonable
expectation that the conservation management strategies and actions
contained in a management plan will be implemented into the future;
whether the conservation strategies in the plan are likely to be
effective; and whether the plan contains a monitoring program or
adaptive management to ensure that the conservation measures are
effective and can be adapted in the future in response to new
information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion, as
well as additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in our four final
critical habitat units are appropriate for exclusion from the final
designation under section 4(b)(2) of the Act. If the analysis indicates
that the benefits of excluding lands from the final designation
outweigh the benefits of designating those lands as critical habitat,
then the Secretary may exercise her discretion to exclude the lands
from the final designation. In the paragraphs below, we provide a
detailed balancing analysis of the areas being excluded under section
4(b)(2) of the Act.
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement or in partnership with the
Service.
We evaluate a variety of factors to determine how the benefits of
any exclusion and the benefits of inclusion are affected by the
existence of private or other non-Federal conservation plans or
agreements and their attendant partnerships when we undertake a
discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list
of factors that we will consider for non-permitted plans or agreements
is shown below. These factors are not required elements of plans or
agreements, and all items may not apply to every plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species.
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen
conservation measures.
(iv) The degree to which the record of the plan supports a
conclusion that a critical habitat designation would impair the
realization of benefits expected from the plan, agreement, or
partnership.
(v) The extent of public participation in the development of the
conservation plan.
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate.
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
For the slickspot peppergrass, we have evaluated these factors with
respect to Idaho State Endowment Lands and to private lands.
Idaho State Endowment Lands: In the July 23, 2020, revised proposed
rule (85 FR 44584), we identified approximately 1,200 ha (2,965 ac) of
State of Idaho Endowment (State) lands as critical habitat in Units 2,
3, and 4. In this final rule, we considered comments received on the
proposed rule and used the best available science to identify critical
habitat, which resulted in 2,736 ha (6,761 ac) of State land meeting
our definition of critical habitat.
In response to our May 10, 2011, proposed critical habitat rule (76
FR 27184), we received a request from the State of Idaho to exclude
State lands covered by their candidate conservation agreement (CCA).
The BLM, State of Idaho Governor's Office of Species Conservation
(OSC), IDFG, IDL, Idaho National Guard, and several nongovernmental
cooperators signed a CCA in 2003 (State of Idaho et al. 2003, entire)
and renewed the plan in 2006 (State of Idaho et al. 2006, entire). The
Service did not sign the CCA but provided technical advice towards its
development (State of Idaho et al. 2006, entire). Finally, this 2006
CCA should not be confused with CCAs developed between the Service and
Federal partners, or with a candidate conservation agreement with
assurances that is developed between the Service and non-Federal
entities.
The CCA as signed in 2006 included range-wide efforts intended to
achieve the following goals: address the need to maintain and enhance
slickspot peppergrass habitat; reduce intensity, frequency, and size of
natural- and human-caused wildfires; minimize loss of habitat
associated with wildfire suppression activities; reduce the potential
for invasion by nonnative plant species after wildfire; minimize
habitat loss associated with rehabilitation and restoration techniques;
minimize the establishment of invasive nonnative species; minimize
habitat loss or degradation from off-highway vehicle use; mitigate the
negative effects of military training and other associated activities
on the OCTC; and minimize the impact of ground disturbances caused by
livestock trampling saturated soils (State of Idaho et al. 2006, p. 3).
Some specific conservation measures the BLM and
[[Page 28898]]
State of Idaho have implemented to help reduce, and continue to reduce,
the risk of livestock-related disturbances include working with
livestock permittees to place salt and supplements to draw livestock
away from EOs, avoiding livestock trailing through EOs when soils are
saturated, delaying livestock turnout when soils are saturated, and
confining vehicle use to established roads and tracks within EOs (USFWS
2020, p 101).
In the July 23, 2020, revised proposed critical habitat rule (85 FR
44584), we requested information with respect to the ongoing
implementation of the 2006 CCA and the performance or completion of any
additional activities that provide for the conservation of slickspot
peppergrass under the CCA. Based on current information and any
information submitted during the comment period, we stated we would
consider whether to exclude under section 4(b)(2) of the Act State
lands that are covered by the CCA. During the comment period, the State
of Idaho (OSC and IDL) stated that IDL continues to implement
conservation measures outlined in the 2006 CCA on State lands
designated as revised proposed critical habitat (OSC 2020, p. 6). To
memorialize the State of Idaho's commitment to implementing ongoing
conservation measures on State lands, the State of Idaho (IDL and OSC)
and the Service entered into a new conservation agreement in 2021 for
the continued conservation of slickspot peppergrass on State lands
managed by IDL (USFWS et al. 2021, entire).
The purpose of the new conservation agreement is to ``provide a
framework for communication, coordination, cooperation, and
implementation of conservation actions between the Service, OSC and IDL
for the conservation of slickspot peppergrass and its habitat on State
endowment lands managed by IDL'' (USFWS et al. 2021, p. 1). Roles and
responsibilities of IDL under this conservation agreement include
addressing the primary threats of wildfire and invasive annual grasses
to slickspot peppergrass through the support of Rangeland Fire
Protection Associations (RFPA) and the implementation of fuel-
management activities, such as through grazing, fuel breaks, and post-
fire restoration activities; including terms and conditions in grazing
leases within slickspot peppergrass habitat to minimize impacts from
livestock grazing; and working adaptively with the Service, OSC, and
other partners to address habitat and management concerns for the
species. The OSC has committed to continue addressing the primary
threats to slickspot peppergrass through supporting RFPA's fuel
management activities; working with grazing permittees, private
landowners, and citizens of Idaho; and working adaptively with IDL, the
Service, and other partners to support slickspot peppergrass recovery
efforts. We have committed to assist OSC and IDL with monitoring as
staffing and funding allows; to maintain close communication to share
management concerns, latest science, and funding opportunities; and to
continue working adaptively with IDL, OSC, and other partners to
support slickspot peppergrass recovery efforts. The agreement will be
reviewed by all parties at least once every five years, and the parties
will sign an addendum to document their review.
Benefits of Inclusion--Idaho State Lands: As discussed above, the
primary benefit that the species receives when the Service includes
State lands in critical habitat is the statutory mandate that Federal
actions must avoid the destruction or adverse modification of critical
habitat. In the case of slickspot peppergrass, we found it unlikely
that activities outside of Federal lands (e.g., development on State,
local, or private lands) will have a Federal nexus to trigger section 7
consultation (IEc 2012, p. 4-4). In addition, since all habitat
proposed for designation is occupied by the species, even if section 7
consultation were to occur, we anticipate critical habitat will not
affect the outcome of these consultations. Because such a consultation
would not change the conservation measures requested, any conservation
measures would be required as a result of the species' listing status
and the critical habitat designation would require no additional
measures (IEc 2012, p. 4-4). Therefore, we find there is limited, if
any, regulatory benefit to the species from inclusion of State lands
due to protection from adverse modification or destruction as a result
of actions with a Federal nexus.
The educational benefit of mapping the habitat essential for the
recovery of slickspot peppergrass on State lands is limited. The
economic analysis on the proposed designation reports, ``As the
location of occupied habitat for the species on private lands is well-
known, having been mapped by the Idaho Natural Heritage Program, it is
unlikely that critical habitat will provide new information to local
land managers and developers regarding the presence of the species''
(IEc 2012, p. 4-14). Because the State is already aware of the presence
of slickspot peppergrass and its conservation needs on their lands and
is already implementing positive conservation actions for the benefit
of the species, we conclude there is little, if any, educational
benefit from designating critical habitat for this species on State
lands. Furthermore, we are not aware of any additional State, County,
or Federal conservation benefits to the species that would be triggered
by the critical habitat designation. Based on the above, we conclude
there is, at best, a very limited conservation benefit to including the
2,736 ha (6,761 ac) of Idaho State lands within the designation of
critical habitat for slickspot peppergrass.
Benefits of Exclusion--Idaho State Lands: The State of Idaho
requested that we exclude lands owned and managed by the IDL. They
stated that the proposed critical habitat designation for slickspot
peppergrass has the potential to negatively impact the ability of the
Department of Lands to achieve its mission (which per their website is
to manage Idaho's endowment assets to maximize long-term financial
returns to public schools and other trust beneficiaries and to provide
professional assistance to the citizens of Idaho to use, protect, and
sustain their natural resources (IDL 2022, no pagination). They argue
that their mission would be affected by reducing the current economic
activities of State endowment trust lands and limiting future
opportunities for activities. The State further claims that, because
all of the State endowment lands within the critical habitat area are
leased for grazing, the State would realize a loss of revenue from the
impacted lands based on an assumption that the BLM would ban or
restrict grazing by requiring additional fencing or limiting turnout,
resulting in an inability to lease their trust lands at their current
value (OSC 2011, pp. 3, 14-15). The State was a signatory to the now-
expired 2006 CCA for slickspot peppergrass and has affirmed that it is
carrying out conservation actions outlined in the 2006 CCA for the
benefit of the species on their lands (IEc 2012, p. 3-6; OSC 2020, p.
6). The State of Idaho (IDL and OSC) entered into a new conservation
agreement with the Service in 2021 to further conservation for
slickspot peppergrass on land under the jurisdiction of the IDL (USFWS
et al. 2021, entire); the new agreement is similar to the 2006 CCA.
Our economic analysis of the proposed designation of critical
habitat for slickspot peppergrass does not support the State's argument
in full. The State was a signatory to the CCA for slickspot peppergrass
and has affirmed that it is carrying out the conservation
[[Page 28899]]
measures provided therein on their lands (IEc 2012, p. 3-6; OSC 2020,
p. 6). The CCA provides livestock management measures that we
considered adequate to offset the threat that grazing might pose to the
species (74 FR 52014, October 8, 2009, p. 52040). As noted above, we
found it is unlikely that activities outside of Federal lands would
trigger a section 7 consultation. However, in the event that such a
nexus should occur, we note that any recommended measures would be made
for the conservation of the species regardless of the critical habitat
designation and would thus be considered baseline protections for the
species. In other words, any such measures would not be attributable to
effects of critical habitat but on the listed species itself (IEc 2012,
p. 3-14). In contrast to the assertion of the State regarding potential
lost revenue due to grazing restrictions as a result of critical
habitat, the economic analysis confirmed that the BLM is in agreement
that including within the critical habitat designation lands managed by
the State's Department of Lands would not affect the types of
conservation measures implemented to avoid impacts of livestock use on
slickspot peppergrass and its habitat (IEc 2012, p. 3-13). Examples of
negative impacts of critical habitat provided by the State, such as
delayed turnout of cattle, are impacts that are attributable to
conservation measures already in place for the protection of the
species and, therefore, are not attributable to critical habitat. The
economic analysis indicated that the costs of critical habitat
designation are limited to the additional administrative costs of
section 7 consultations associated with considering the potential for
adverse modification of critical habitat and does not identify any
impact on the economic activities of State trust lands or revenues
associated with grazing leases that may be attributable to the
designation (IEc 2012, p. ES-5).
We do agree, however, that there is some potential for reduction in
value of the State's trust lands for future exchange, due to the
perception that such lands may be encumbered by additional regulatory
restrictions due to the designation of critical habitat. The final
economic analysis of the designation states, ``In some cases, the
public may perceive that critical habitat designation may result in
limitations on private property uses above and beyond those associated
with anticipated conservation efforts and regulatory uncertainty
described above. Public attitudes about the limits or restrictions that
critical habitat may impose can cause real economic effects to property
owners, regardless of whether such limits are actually imposed'' (IEc
2012, p. 2-10). The avoidance of any potential reduction in the value
of State trust lands could be a benefit of exclusion from critical
habitat.
In addition, in weighing the benefits of inclusion versus
exclusion, we considered the value of our conservation partnership with
the State of Idaho. They have demonstrated success by partnering with
public and private entities to further conservation in Idaho for a
variety of fish and wildlife species (Uriarte 2021, pers. comm.). These
efforts include, but are not limited to, helping to develop a CCA and
conservation agreement for slickspot peppergrass (State of Idaho et al.
2006, entire; USFWS et al. 2021, entire); leading the Sage-grouse
Actions Team to strategically put State legislative funding and partner
funding on the ground for the conservation of the greater sage-grouse
(Centrocercus urophasianus); and working closely with IDL and nine
RFPAs to provide State legislative funding to ensure these
organizations have the necessary equipment for early, initial attack
and wildfire suppression efforts.
The State was an active signatory to the CCA for slickspot
peppergrass between the State (IDL and OSC), BLM, Idaho National Guard,
and private landowners (State of Idaho et al. 2006, entire). This 2006
CCA contains measures intended to address the need to maintain and
enhance slickspot peppergrass habitat by minimizing the impact to the
species from wildfires, implementing rehabilitation and restoration
techniques, managing invasive nonnative species, and limiting off-
highway vehicle use and livestock use (State of Idaho et al. 2006, p.
3). Since 2006, the CCA appears to have reduced the impacts of
livestock use on slickspot peppergrass (USFWS 2020, pp. 100-101) but
has been less effective at reducing or eliminating the most significant
threats to the species from wildfire and invasive annual grasses (USFWS
2020, p. 165). The State of Idaho confirms that they continue to
implement conservation measures of the CCA on State lands proposed for
critical habitat designation (IEc 2012, p. 3-6; OSC 2020, p. 6). In
addition, in the State's comments submitted on the proposed rule (85 FR
44584, July 23, 2020), they highlight the importance of the
conservation measures implemented through the CCA, particularly
regarding livestock management.
In 2021, OSC, IDL, and the Service entered into a conservation
agreement to further conservation for slickspot peppergrass on IDL
lands (USFWS et al. 2021, entire). This conservation agreement contains
conservation measures targeted to reduce threats to slickspot
peppergrass that would not be implemented if not for this conservation
agreement or a Federal nexus requiring section 7 consultation. This
conservation agreement also builds upon conservation measures in the
2006 CCA by identifying additional roles and responsibilities for IDL,
OSC, and the Service to more effectively address the primary threats of
wildfire and annual invasive grasses to slickspot peppergrass (USFWS et
al. 2021, entire). Lastly, the conservation agreement emphasizes
continued communication, coordination, cooperation, and implementation
of slickspot peppergrass conservation measures by the Service, OSC, and
IDL. On State lands, these protections are equal to or better than what
the designation of critical habitat would provide, as described above
under ``Benefits of Inclusion.'' Exclusion of these State lands from
critical habitat will help maintain and strengthen our conservation
partnership with the State of Idaho and may foster future partnerships
for the benefit of other species as well.
Based on the above, we find that the exclusion of State lands from
the final designation would have the following benefits:
Avoidance of any possible reduction in the value of State
trust lands due to public perception of increased potential for
regulatory restrictions due to critical habitat;
Continued implementation of conservation measures provided
in the 2021 conservation agreement for slickspot peppergrass, including
but not limited to minimizing the impact of ground disturbance by
livestock, minimizing the establishment of nonnative plant species, and
reducing the intensity, frequency, and size of natural and human-caused
fires;
The opportunity to build upon a positive conservation
partnership with the State, by recognizing the efforts the State
contributes to the conservation of slickspot peppergrass;
Laying the foundation for future partnerships with the
State that would benefit other listed or candidate species, such as the
greater sage-grouse; and
Increasing the potential for understanding and acceptance
of proposed critical habitat designations for other species in the
State of Idaho.
Based on the above considerations, we conclude there are important
benefits to be gained by excluding the 2,736 ha (6,761 ac) of State
lands within
[[Page 28900]]
the designation of critical habitat for slickspot peppergrass.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Idaho
State Lands: We reviewed and evaluated the benefits of inclusion and
the benefits of exclusion of State lands identified in the proposed
designation of critical habitat for slickspot peppergrass; the benefits
of inclusion for the species are minimal. As noted in Exclusions Based
on Economic Impacts, we do not anticipate additional regulatory
protections from critical habitat designation through a Federal nexus
on these State lands (IEc 2012, pp. 4-4, C-2). As the State is already
aware of the presence of slickspot peppergrass on their lands, the
educational value of critical habitat is minimal (IEc 2012, p. 4-4),
particularly since the State participates in conservation measures for
the protection of the species through the conservation agreement (USFWS
et al. 2021, entire). We do not find evidence of any significant
benefits to inclusion of State lands in the designation.
We find that the benefits of exclusion, on the other hand, are
significant. The benefits that would stem from the exclusion of State
lands would be to alleviate any concerns that State trust lands could
decline in value due to perceived regulatory restrictions, as well as
to strengthen our conservation partnership with the State by
recognizing their efforts toward conservation of slickspot peppergrass
through implementation of the conservation measures provided in the
conservation agreement. The exclusion of State trust lands could lay
the groundwork for future partnerships for the benefit of other species
in conservation need. Because of the importance of State trust lands to
the State of Idaho, and the relevant impact of critical habitat to our
relationship with the State and other current and future conservation
partnerships, we have determined that the benefits of excluding these
State lands outweigh the benefits of including them in the designation
of critical habitat.
Exclusion Will Not Result in Extinction of the Species--Idaho State
Lands: We have determined that the exclusion of 2,736 ha (6,761 ac) of
habitat from the final designation of critical habitat for slickspot
peppergrass will not result in extinction of the species. Although
these lands were identified as critical habitat because they contain
PBFs essential to the conservation of the species, State lands
comprised approximately 7 percent of the proposed designation and the
remaining land in the final designation is sufficient for the
conservation of the species. Furthermore, critical habitat is one tool
in the suite of tools that together provide for conservation of listed
species under the Act. Most of the current and ongoing interagency
conservation efforts for the species are focused on management of
Federal lands, which contain the vast majority of occupied slickspot
peppergrass habitat. The consultation requirements of section 7(a)(2)
and the attendant requirement to avoid jeopardy to slickspot
peppergrass for projects with a Federal nexus will provide significant
protection to the species, particularly since approximately 86 percent
of its occupied habitat is on Federal lands managed by the BLM. In
addition, the State of Idaho is a signatory to the 2021 conservation
agreement, which provides protective measures to the species on their
lands regardless of critical habitat. Therefore, based on the above
discussion, the Secretary is exercising her discretion to exclude
approximately 2,736 ha (6,761 ac) of habitat from this final critical
habitat designation.
Private Lands: In our July 23, 2020, revised proposed critical
habitat rule (FR 85 44584), we identified 1,122 ha (2,773 ac) of
private land, including municipal land (county and city), that met the
definition of critical habitat. In this final rule, we considered
comments received on the proposed rule and used the best scientific
information available to identify critical habitat, which resulted in
identification of 4,508 ha (11,141 ac) of privately owned land that
meets the definition of critical habitat. The majority of the land that
met the definition of critical habitat (approximately 86 percent) was
under Federal ownership. In our July 23, 2020, revised proposed
critical habitat rule (85 FR 44584), we considered applying section
4(b)(2) of the Act to exclude currently occupied private and municipal
lands (hereafter private lands). We also requested specific information
concerning any current signed conservation or management plans on
private lands that we should consider to inform an exclusion analysis
under section 4(b)(2).
During the public comment period for our July 23, 2020, revised
proposed critical habitat rule (85 FR 44584), the State of Idaho
commented that a critical habitat designation provides no new
conservation measures across any land ownership. In addition, they
stated that designating private land as critical habitat can cause land
values to decrease and possibly expose slickspot peppergrass to threats
that cannot be addressed by a section 7 consultation. For these
reasons, the State of Idaho expressed the view that the benefits of
exclusion outweigh the benefits of including private land in the final
critical habitat designation for slickspot peppergrass (OSC 2020, p.
2).
Since publication of our July 23, 2020, revised proposed rule (85
FR 44584) to designate critical habitat for slickspot peppergrass, we
entered into a Memorandum of Understanding (MOU) with the State of
Idaho's OSC to provide non-Federal landowners (private and municipal)
an opportunity to enter into voluntary conservation agreements for
slickspot peppergrass (USFWS and OSC 2021, entire). These conservation
agreements can serve to memorialize existing conservation efforts and
outline commitments to maintain suitable habitat for the species on
specified lands into the future.
Benefits of Inclusion--Private Lands: The primary benefit that
slickspot peppergrass would receive from inclusion of private lands in
the critical habitat designation is the statutory mandate that Federal
actions (or actions with a Federal nexus) avoid the destruction or
adverse modification of critical habitat. However, in the case of
slickspot peppergrass, we found it unlikely that activities outside of
Federal lands (e.g., development on State, local, or private lands)
will have a Federal nexus to trigger section 7 consultation (IEc 2012,
p. 4-4). Given that there has been only one section 7 consultation on
private lands associated with Federal permitting and we have no
information to indicate a projected increase in federally funded
activities on these lands, we anticipate that there is a low likelihood
of section 7 consultations concerning slickspot peppergrass on private
lands in the future. Should additional section 7 consultations occur
after this final critical habitat designation, we expect that critical
habitat would not likely affect the outcome of future consultations as
we do not foresee any differences in recommended conservation measures
for units designated as critical habitat and those occupied by the
species (IEc 2012, pp. 4-4 and 4-5). Therefore, we find there is little
regulatory benefit to the species on private lands from inclusion due
to protection from adverse modification or destruction of critical
habitat as a result of actions with a Federal nexus.
Any educational benefit of mapping the habitat essential for the
recovery of slickspot peppergrass on private lands is likely minimal
and may in fact serve as a conservation disincentive. The economic
analysis on the proposed designation reports, ``As the location of
occupied habitat for the species on private lands is well-known, having
[[Page 28901]]
been mapped by the Idaho Natural Heritage Program, it is unlikely that
critical habitat will provide new information to local land managers
and developers regarding the presence of the species'' (IEc 2012, p. 4-
14). Therefore, we expect very little educational benefit to result
from the designation of critical habitat on private lands.
Based on the above, we conclude there is little, if any,
conservation benefit to including the 4,508 ha (11,141 ac) of privately
owned lands within the designation of critical habitat for slickspot
peppergrass.
Benefits of Exclusion--Private Lands: Slickspot peppergrass was the
subject of a CCA between the State of Idaho, BLM, the Idaho Army
National Guard, and private landowners (State of Idaho et al. 2006,
entire). The CCA was developed prior to the listing of the species to
provide the opportunity for adaptive management for slickspot
peppergrass on Federal, State, and private lands, with the goal of
maintaining and enhancing slickspot peppergrass habitat; reducing the
intensity, frequency, and size of fires; reducing the potential for
invasion from nonnative plant species; minimizing the impact of ground
disturbance caused by livestock trampling events when soils are
saturated; and other provisions.
This CCA garnered interest from private landowners. Twenty
individual nongovernmental cooperators/permittees were signatories to
this CCA, along with representatives from the BLM, State of Idaho, and
Idaho National Guard (State of Idaho et al. 2006, pp. 138-141). Six
individual private landowners signed on through Memorandum of
Agreements (MOAs) under the CCA covering 6,898 ha (17,045 ac). These
MOAs detailed specific conservation measures to implement on enrolled
private lands (State of Idaho et al. 2006, p. 162), which included
monitoring, livestock and pasture management, and invasive weed control
(State of Idaho et al. 2006, pp. 282-285). The CCA and its conservation
measures, since expired, were developed in an effort to preclude the
need to list slickspot peppergrass.
As stated above, the Service and State of Idaho recently entered
into a new MOU in 2021 whose purpose is to provide non-Federal
landowners (private and municipal) the opportunity to enter into
voluntary conservation agreements for slickspot peppergrass that can
serve to memorialize existing conservation efforts and outline
commitments to maintain suitable habitat for slickspot peppergrass on
specified lands into the future. This MOU contains roles and
responsibilities for the Service and the State of Idaho, including
outreach, providing technical assistance to landowners, maintaining
membership on the slickspot peppergrass Technical Team, and exploring
funding sources to obtain financial assistance to implement
conservation actions on private and municipal lands. The MOU also
contains responsibilities for monitoring to document and report
success, along with adaptive management that ensures current science is
incorporated into management. In addition, there is a non-exhaustive
list of proven and effective Best Management Practices for conserving
slickspot peppergrass and its habitat that can be included in
individual conservation agreements with private and municipal
landowners (USFWS and OSC 2021, entire; USFWS 2020, p. 101). Therefore,
we find that a conservation benefit would accrue to slickspot
peppergrass over time by encouraging voluntary participation in the
measures provided in the MOU and landowner-specific conservation
agreements.
In addition, we considered the value of our conservation
partnership with private landowners within the range of the slickspot
peppergrass in our weighing of the benefits of inclusion versus
exclusion. Private landowners have demonstrated success by partnering
with public and private entities to further conservation in Idaho for a
variety of wildlife and fish species (Uriarte 2021, pers. comm.).
In addition, we considered the value of our conservation
partnership with the State of Idaho in our weighing of benefits of
inclusion versus exclusion of private lands. The State of Idaho has
been instrumental in working with private landowners on various
conservation efforts throughout Idaho. These partnering efforts
include, but are not limited to, helping to develop the 2006 CCA for
slickspot peppergrass; leading the Sage-grouse Actions Team to
strategically put State legislative funding and partner funding on the
ground for the conservation of the greater sage-grouse; and working
closely with IDL and nine RFPAs to provide State legislative funding to
ensure these organizations have the necessary equipment and
coordination for initial attack and wildfire suppression efforts
(Uriarte 2021, pers. comm.).
The final economic analysis of the designation states, ``In some
cases, the public may perceive that critical habitat designation may
result in limitations on private property uses above and beyond those
associated with anticipated conservation efforts and regulatory
uncertainty described above. Public attitudes about the limits or
restrictions that critical habitat may impose can cause real economic
effects to property owners, regardless of whether such limits are
actually imposed'' (IEc 2012, p. 2-10). Although the economic analysis
concluded that any real economic impacts to private landowners are
unlikely given the low probability of a Federal nexus occurring on
their lands, it is clear from comments we received that critical
habitat is nonetheless perceived as an example of Federal Government
intrusion into private property rights in the State of Idaho. As
described above, we find that successful conservation partnerships with
private landowners are integral to the achievement of recovery for the
slickspot peppergrass and designation of critical habitat could be
detrimental to those efforts. Therefore, we conclude that the exclusion
of private lands from slickspot peppergrass critical habitat will
achieve greater benefits than designating critical habitat by
encouraging continued conservation of the species as well as future
conservation efforts due to the perceived avoidance of a regulatory
burden.
Based on the above, we have determined that the exclusion of
private lands from the final designation would have several potentially
significant benefits:
Demonstrating the Service's good-faith effort to recognize
the value of voluntary conservation partnerships by excluding private
lands from critical habitat, and encouraging future partnerships that
would benefit other listed or candidate species, such as the greater
sage grouse;
The conservation benefit that would accrue to slickspot
peppergrass over time by encouraging voluntary participation in the
measures provided in the MOU;
The opportunity to maintain and build positive
conservation partnerships with private landowners, by recognizing the
efforts these parties may contribute to the conservation of slickspot
peppergrass; and
Improving the perception of the Service as not imposing
unnecessary regulatory burdens on private landowners, potentially
increasing the understanding and acceptance of proposed critical
habitat designations for other species in the State of Idaho.
We conclude that there are important conservation benefits that may
be gained by excluding the 4,508 ha (11,141 ac) of privately owned
lands within the designation of critical habitat for slickspot
peppergrass, stemming
[[Page 28902]]
primarily from the encouragement of future conservation partnerships.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Private
Lands: We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of privately owned lands identified in the
proposed designation of critical habitat for slickspot peppergrass. As
articulated above, the benefits of inclusion for the species are
minimal at best. We expect that critical habitat would not likely
affect the outcome of future consultations as we do not foresee any
differences in recommended conservation measures for units designated
as critical habitat and those occupied by the species. Therefore, we do
not anticipate any regulatory protections stemming from a Federal nexus
on private lands through designation of critical habitat. As most
landowners likely are already aware of the presence of slickspot
peppergrass on their lands, the educational value of critical habitat
is minimal. In addition, as many private landowners view the presence
of a listed species on their property as a liability, information to
this effect may even be a conservation disincentive. Therefore, we
consider any possible benefits of inclusion to be minimal.
The benefits of exclusion, on the other hand, are significant.
Exclusion of these private lands would help build landowner trust,
encourage increased cooperation with private landowners, encourage
implementation of any ongoing and new voluntary measures identified in
the MOU for the conservation of slickspot peppergrass, and potentially
enable us to pursue future conservation partnerships on privately owned
lands--not only for slickspot peppergrass, but for other candidate or
listed species in the State of Idaho as well.
Some of the comments received during the public comment period
indicated strong support for the exclusion of these lands from the
final critical habitat designation. We are committed to fostering
working relationships with communities, including these private
landowners, to foster the conservation of slickspot peppergrass and
other threatened and endangered species. Therefore, in consideration of
the relevant impact to our relationship with these private landowners
and other current and future conservation partnerships, and for other
reasons mentioned above, we determined that the benefits of excluding
these lands outweigh the benefit of including them in the designation
of critical habitat for the slickspot peppergrass.
Exclusion Will Not Result in Extinction of the Species--Private
Lands: We determined that the exclusion of 4,508 ha (11,141 ac) of
habitat from the final designation of critical habitat for slickspot
peppergrass will not result in the extinction of the species. Although
these lands were identified as critical habitat because they contain
PBFs essential to the conservation of the species, private lands
comprise less than 12 percent of the areas that meet the definition of
critical habitat. Most of the current and ongoing interagency
conservation efforts for the species are focused on management of
Federal lands, where approximately 86 percent of the habitat occupied
by slickspot peppergrass occurs. The consultation requirements of
section 7(a)(2) and the attendant requirement to avoid jeopardy to
slickspot peppergrass for projects with a Federal nexus will provide
significant protection to the species even after excluding these areas.
In addition, conservation of slickspot peppergrass through
implementation of the MOU with the State of Idaho and private
landowners will provide more effective conservation for the species
than a critical habitat designation. Therefore, based on the discussion
above, the Secretary is exercising her discretion to exclude
approximately 4,508 ha (11,141 ac) of habitat from this final critical
habitat designation.
Summary of Exclusions
As discussed above, based on the information provided by entities
seeking exclusion, as well as any additional public comments received,
we evaluated whether certain lands in the proposed critical habitat
were appropriate for exclusion from this final designation pursuant to
section 4(b)(2) of the Act. We have determined that certain areas
totaling 7,265 hectares, or 17,956 acres, within the critical habitat
units were appropriate for exclusion from this final designation. Table
2 shows the areas we are excluding from critical habitat designation
for slickspot peppergrass.
Table 2--Areas Excluded From Critical Habitat Designation for Slickspot Peppergrass
----------------------------------------------------------------------------------------------------------------
Critical Ownership in hectares (acres)
Critical habitat unit habitat -------------------------------------- Totals
subunit State of Idaho Private
----------------------------------------------------------------------------------------------------------------
1-Payette and Gem Counties............. .............. 0 76 (188) 76 (188)
2-Gem and Ada Counties................. 2a 41 (102) 1,573 (3,886) 1,614 (3,988)
2b 171 (423) 64 (159) 235 (582)
2c 149 (367) 793 (1,959) 942 (2,326)
2d 1,182 (2,921) 112 (277) 1,294 (3,198)
3-Ada and Elmore Counties.............. 3a 0 1,059 (2,618) 1,059 (2,618)
3b 134 (330) 185 (458) 319 (788)
3c 0 643 (1,589) 643 (1,589)
4-Owyhee County........................ .............. 1,059 (2,618) 3 (7) 1,062 (2,625)
------------------------------------------------------------------------
Total.............................. .............. 2,736 (6,761) 4,508 (11,141) 7,244 (17,902)
----------------------------------------------------------------------------------------------------------------
Notes: Area sizes may not sum due to rounding. All excluded areas meet the definition of critical habitat.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The
[[Page 28903]]
Executive order directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself; in other words, the RFA does not require agencies to
evaluate the potential impacts to indirectly regulated entities. The
regulatory mechanism through which critical habitat protections are
realized is section 7 of the Act, which requires Federal agencies, in
consultation with the Service, to ensure that any action authorized,
funded, or carried out by the Agency is not likely to destroy or
adversely modify critical habitat. Therefore, under section 7, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, we certify that this
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
July 23, 2020, proposed rule (85 FR 44584) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. In our economic analysis, we did not find that the
designation of this critical habitat would significantly affect energy
supplies, distribution, or use. Furthermore, although it does include
areas where powerlines and power facility construction and maintenance
may occur in the future, it will not produce a Federal mandate of $100
million or greater in any year, that is, it is not a `significant
regulatory action' under the Unfunded Mandates Reform Act. Therefore,
this action is not a significant energy action, and no statement of
energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not
[[Page 28904]]
destroy or adversely modify critical habitat under section 7. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. Furthermore, to the extent that non-Federal
entities are indirectly impacted because they receive Federal
assistance or participate in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would not apply, nor would critical
habitat shift the costs of the large entitlement programs listed above
onto State governments.
(2) We do not believe this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a small government agency plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for slickspot peppergrass in a takings implications assessment.
The Act does not authorize us to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for slickspot
peppergrass does not pose significant takings implications for lands
within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Idaho. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The critical habitat designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the PBFs
of the habitat necessary for the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist State
and local governments in long-range planning because they no longer
have to wait for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the final rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the elements of PBFs essential to the conservation of the
species. The designated areas of critical habitat are presented on
maps, and the rule provides several options for the interested public
to obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and
[[Page 28905]]
to make information available to Tribes. We have determined that no
Tribal lands fall within the boundaries of the final critical habitat
for slickspot peppergrass, so no Tribal lands would be affected by the
critical habitat designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov in Docket No. FWS-R1-ES-
2010-0071 and upon request from the Idaho Fish and Wildlife Office (see
FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Idaho Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we hereby 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; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.12, in paragraph (h) in the List of Endangered and
Threatened Plants, by revising the entry for ``Lepidium papilliferum''
to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Lepidium papilliferum........... Slickspot Wherever found.... T 74 FR 52014, 10/8/2009;
peppergrass. 81 FR 55058, 8/17/
2016; 50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(h), by adding an entry for ``Family Brassicaceae:
Lepidium papilliferum (slickspot peppergrass)'' after the entry for
``Family Brassicaceae: Leavenworthia texana (Texas golden gladecress)''
to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Brassicaceae: Lepidium papilliferum (Slickspot Peppergrass)
(1) Critical habitat units are depicted for Ada, Elmore, Gem,
Owyhee, and Payette, Counties, Idaho, on the maps in this entry.
(2) Within these areas, the specific physical or biological
features (PBFs) essential to the conservation of slickspot peppergrass
consist of four components:
(i) Ecologically functional microsites or ``slick spots'' that are
characterized by:
(A) A high sodium and clay content, and a three-layer soil profile,
which allows for successful seed germination, seedling growth, and
maintenance of the seed bank. The surface horizon consists of a thin,
silty vesicular, pored (small cavity) layer that forms a physical crust
(the silt layer). The subsoil horizon is a restrictive clay layer, with
an abruptic (referring to an abrupt change in texture) boundary with
the surface layer, that is natric or natric-like in properties (a type
of argillic (clay-based) horizon with distinct structural and chemical
features); this is the restrictive layer. The second argillic subsoil
layer (that is less distinct than the upper argillic horizon) retains
moisture through part of the year (the moist clay layer).
(B) Sparse vegetation, with invasive, nonnative plant species cover
absent or limited to low to moderate levels.
(ii) Relatively intact, native Wyoming big sagebrush (Artemisia
tridentata ssp. wyomingensis) vegetation assemblages, represented by
native bunchgrasses, shrubs, and forbs, within 500 m (1,640 ft) of
slickspot peppergrass element occurrences to protect slick spots and
slickspot peppergrass from disturbance from wildfire, slow the invasion
of slick spots by nonnative plant species and native harvester ants,
and provide the habitats needed by slickspot peppergrass' pollinators.
(iii) A diversity of native plants whose blooming times overlap to
provide pollinator species with flowers for foraging throughout the
seasons and to provide nesting and egg-laying sites; appropriate
nesting materials; and sheltered, undisturbed places for hibernation
and overwintering of pollinator species. In order for genetic exchange
of slickspot peppergrass to occur, pollinators must be able to move
freely between slick spots. Alternative pollen and nectar sources
(other plant species within the surrounding sagebrush vegetation) are
needed to support pollinators during times when slickspot peppergrass
is not flowering, when distances between slick spots are long, and in
years when slickspot peppergrass is not a prolific flowerer.
(iv) Sufficient pollinators for successful fruit and seed
production, particularly pollinator species of the sphecid and vespid
wasp families, species of the bombyliid and tachnid fly families, and
halictid bee species, most of which are solitary insects that nest
outside of slick spots in the surrounding sagebrush-steppe vegetation,
both in the ground and within the vegetation.
(3) Critical habitat does not include human-made structures (such
as buildings, aqueducts, runways, roads, and other paved areas),
cultivated agricultural fields, areas dominated by turf grass such as
parks, and the land on which they are located existing within the legal
boundaries on June 5, 2023.
(4) Data layers defining map units were developed using ESRI ArcGIS
10.7.1 mapping software along with various spatial layers. Feature
class data for element occurrences (EOs) were derived from the Idaho
Department of Fish and Game's Idaho Fish and Wildlife Information
System (IFWIS) database (July 2021). EOs were depicted as points or
polygons in the IFWIS database, and an E.O. could consist of one or
more points or polygons. For ArcGIS analyses, we dissolved a 500-m
(1,640-ft) exterior insect pollinator buffer on each point or polygon
that comprised an E.O. and calculated acreages based on these
dissolved, buffered polygons. Overlapping polygons were merged to
prevent a double count of critical habitat hectares. Critical habitat
polygon outlines are exaggerated (using 1- or 2-point size,
[[Page 28906]]
depending on map scale) to allow for better visibility. The critical
habitat polygons were then overlaid upon aerial imagery, including the
ArcGIS World Imagery layer, aerial imagery from Google Earth Pro, and
the 2019 National Agricultural Imagery Program Idaho layer, which has a
spatial resolution of a 60-centimeter ground sample distance.
(i) Lands that visually lacked the necessary PBFs were manually
removed from the critical habitat polygons; any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule are excluded by this text and are not designated as
critical habitat. Areas that lack PBFs include land covered in human-
made structures (such as buildings, roads, runways, and other paved
areas), cultivated farmland, and riparian areas.
(ii) The maps in this entry, as modified by any accompanying
regulatory text, establish the boundaries of the critical habitat
designation. The coordinates or plot points or both on which each map
is based are available to the public at the Service's internet site at
https://www.fws.gov/species/slickspot-peppergrass-lepidium-papilliferum, at https://www.regulations.gov at Docket No. FWS-R1-ES-
2010-0071, and at the Idaho Fish and Wildlife Office. You may obtain
field office location information by contacting one of the Service
regional offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
[[Page 28907]]
Figure 1 to Lepidium papilliferum (slickspot peppergrass) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TR04MY23.103
(6) Unit 1: Payette and Gem Counties, Idaho.
(i) General Description: Unit 1 contains 704 ha (1,741 ac) of
critical habitat in Payette and Gem Counties, Idaho, consisting of
Bureau of Land Management (BLM) land in the Four Rivers Field Office
area (695 ha (1,718 ac)) and Bureau of Reclamation (BOR) land (9 ha (23
ac)).
(ii) Map of Unit 1 follows:
Figure 2 to Lepidium papilliferum (slickspot peppergrass) paragraph
(6)(ii)
[[Page 28908]]
[GRAPHIC] [TIFF OMITTED] TR04MY23.104
(7) Unit 2: Gem and Ada Counties, Idaho.
(i) Subunit 2a General Description: Subunit 2a contains 874 ha
(2,160 ac) of critical habitat on BLM land in Gem and Ada Counties,
Idaho.
(ii) Map of Unit 2, Subunit 2a follows:
Figure 3 to Lepidium papilliferum (slickspot peppergrass) paragraph
(7)(ii)
[[Page 28909]]
[GRAPHIC] [TIFF OMITTED] TR04MY23.105
(iii) Subunit 2b General Description: Subunit 2b contains 5,423 ha
(13,401 ac) of critical habitat in Ada County, Idaho, within the BLM's
Morley Nelson Snake River Birds of Prey National Conservation Area
south of Kuna, Idaho.
(iv) Map of Unit 2, Subunit 2b follows:
Figure 4 to Lepidium papilliferum (slickspot peppergrass) paragraph
(7)(iv)
[[Page 28910]]
[GRAPHIC] [TIFF OMITTED] TR04MY23.106
(v) Subunit 2c General Description: Subunit 2c contains 657 ha
(1,623 ac) of critical habitat in Ada County, Idaho, on BLM land within
the Four Rivers Field Office area.
(vi) Map of Unit 2, Subunit 2c follows:
Figure 5 to Lepidium papilliferum (slickspot peppergrass) paragraph
(7)(vi)
[[Page 28911]]
[GRAPHIC] [TIFF OMITTED] TR04MY23.107
(vii) Subunit 2d General Description: Subunit 2d contains 1,707 ha
(4,218 ac) of critical habitat in Ada County, Idaho, consisting of BLM
land (1,689 ha (4,173 ac)) and BOR land (18 ha (45 ac)). Critical
habitat within Subunit 2d is adjacent to the Idaho Army National Guard-
administered Orchard Combat Training Center (formerly known as the
Orchard Training Area).
(viii) Map of Unit 2, Subunit 2d follows:
Figure 6 to Lepidium papilliferum (slickspot peppergrass) paragraph
(7)(viii)
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(8) Unit 3: Ada and Elmore Counties, Idaho.
(i) Subunit 3a General Description: Subunit 3a contains 1,554 ha
(3,839 ac) of critical habitat in Ada and Elmore Counties, Idaho,
consisting of BLM, Four Rivers Field Office area land (1,502 ha (3,711
ac)) and BOR land (52 ha (128 ac)).
(ii) Map of Unit 3, Subunit 3a follows:
Figure 7 to Lepidium papilliferum (slickspot peppergrass) paragraph
(8)(ii)
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(iii) Subunit 3b General Description: Subunit 3b contains 1,957 ha
(4,835 ac) of critical habitat in Elmore County, Idaho, consisting of
BLM land (1,890 ha (4,671 ac)) and BOR land (66 ha (164 ac)). BLM land
includes the Four Rivers Field Office area and the Morley Nelson Birds
of Prey National Conservation Area.
(iv) Map of Unit 3, Subunit 3b follows:
Figure 8 to Lepidium papilliferum (slickspot peppergrass) paragraph
(8)(iv)
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(v) Subunit 3c General Description: Subunit 3c contains 2,485 ha
(6,142 ac) of critical habitat in Elmore County, Idaho consisting of
consisting of BLM land (2,453 ha (6,062 ac)) and BOR land (32 ha (80
ac)).
(vi) Map of Unit 3, Subunit 3c follows:
Figure 9 to Lepidium papilliferum (slickspot peppergrass) paragraph
(8)(vi)
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(9) Unit 4: Owyhee County, Idaho.
(i) General description: Unit 4 contains 16,310 ha (40,303 ac) of
critical habitat in Owyhee County, Idaho, within the BLM Jarbidge Field
Office area.
(ii) Map of Unit 4 follows:
Figure 10 to Lepidium papilliferum (slickspot peppergrass) paragraph
(9)(ii)
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* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-09219 Filed 5-3-23; 8:45 am]
BILLING CODE 4333-15-C