[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Proposed Rules]
[Pages 59429-59474]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23189]
[[Page 59429]]
Vol. 78
Thursday,
No. 187
September 26, 2013
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Contiguous U.S. Distinct Population Segment of
the Canada Lynx and Revised Distinct Population Segment Boundary;
Proposed Rule
Federal Register / Vol. 78 , No. 187 / Thursday, September 26, 2013 /
Proposed Rules
[[Page 59430]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2013-0101; 4500030114]
RIN 1018-AZ77
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Contiguous U.S. Distinct
Population Segment of the Canada Lynx and Revised Distinct Population
Segment Boundary
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate
revised critical habitat for the contiguous U.S. distinct population
segment (DPS) of the Canada lynx under the Endangered Species Act of
1973, as amended, and to revise the boundary of the Canada lynx DPS.
These proposed revisions fulfill our obligations under two settlement
agreements. The revised critical habitat proposed rule also addresses
issues raised by two courts in 2010. If we finalize this rule as
proposed, it would extend the Endangered Species Act's protections to
the Canada lynx wherever it occurs in the contiguous United States,
including New Mexico, and it would revise this species' critical
habitat. The effect of this regulation is to conserve the Canada lynx
and its habitats in the contiguous United States under the Endangered
Species Act.
DATES: We will accept comments received or postmarked on or before
December 26, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time on the closing date. Public Hearing: A public
hearing will be held on this proposed rule on Monday, November 25,
2013, from 6:00 p.m. to 9:00 p.m. (Mountain Time). The formal public
hearing will be preceded by an open house and general information
meeting from 2:00 p.m. to 5:00 p.m.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R6-ES-2013-0101,
which is the docket number for this rulemaking. You may submit a
comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R6-ES-2013-0101; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
Public Hearing: A public hearing will be held on this proposed rule
on Monday, November 25, 2013, from 6:00 p.m. to 9:00 p.m. (Mountain
Time) at the Red Lion Colonial Hotel, 2301 Colonial Drive, Helena,
Montana, 59601. The formal public hearing will be preceded by an open
house and general information meeting from 2:00 p.m. to 5:00 p.m.
Public Meeting: An informational public meeting will be held on
Monday, November 4, 2013, from 7:00 p.m. to 9:00 p.m. at the George W.
Stearns High School auditorium at 199 State Street, Millinocket, Maine
04462.
People needing reasonable accommodations in order to attend and
participate in the public hearing or meeting should contact Jodi Bush,
Montana Fish and Wildlife Office, as soon as possible (see FOR FURTHER
INFORMATION CONTACT).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/montanafieldoffice/, http://www.regulations.gov at Docket No. FWS-R6-
ES-2013-0101, and at the Montana Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this critical habitat designation
will also be available at the Fish and Wildlife Service Web site and
Field Office set out above, and may also be included in the preamble
and/or at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jodi Bush, Field Supervisor, U.S. Fish
and Wildlife Service, Montana Ecological Services Field Office, 585
Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225. If you
use a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act
(Act), any species that is determined to be threatened or endangered
requires critical habitat to be designated, to the maximum extent
prudent and determinable. Designations and revisions of critical
habitat and revisions to definitions of listed entities can only be
completed by issuing a rule. This is a proposed rule to revise the
designation of critical habitat for the threatened contiguous United
States (U.S.) distinct population segment (DPS) of the Canada lynx
(Lynx canadensis) and to revise the DPS boundary to extend the
protections of the Act to lynx everywhere they occur in the contiguous
United States, including New Mexico. The lynx DPS was listed as
threatened in 2000. We designated critical habitat for the lynx DPS in
2006 and revised the designation in 2009. Also in 2009, we determined
that adding lynx in New Mexico to the listing of the lynx DPS was
warranted because lynx that were introduced into Colorado were
regularly crossing the State border into New Mexico. In 2010, the U.S.
District Courts in the Districts of Montana and Wyoming remanded the
revised critical habitat designation to the Service. The Service agreed
to submit to the Federal Register a proposed rule on the revised
designation of critical habitat for the Canada lynx by September 1,
2013. This date was extended to September 20, 2013 by stipulation. As
part of the 2011 multidistrict litigation (MDL) agreement, we committed
to propose adding lynx in New Mexico to the DPS by September 2013.
This rule would revise the definition of the lynx DPS. We propose
to rescind the existing boundary of the lynx DPS, which is based on
State boundaries within the historic distribution of lynx, and replace
it with a DPS definition that extends the protections of the Act to
lynx wherever they occur in the contiguous United States. This revised
boundary would include lynx that occur in New Mexico as a result of
lynx introduction efforts in Colorado.
This rule would revise the designation of critical habitat for the
lynx DPS. In total, we propose to designate 41,547 square miles (mi\2\)
(107,607 square kilometers (km\2\)) of critical habitat in five units
in the States of Idaho, Maine, Minnesota, Montana, Washington, and
Wyoming. We propose to redesignate those areas we designated in 2009
along with additional areas in northern Maine and northwestern Wyoming
(see details and list of counties under Proposed Revised Critical
Habitat Designation, below). We propose to exclude from critical
habitat Tribal lands and some State and private lands managed in
[[Page 59431]]
accordance with approved lynx conservation plans. If these exclusions
are finalized, the area designated as critical habitat would be 39,632
mi\2\ (102,647 km\2\), which would be 632 mi\2\ (1,637 km\2\)--1.6
percent--larger than the area we designated in 2009.
The basis for our revised critical habitat action. Section 4(b)(2)
of the Act states that the Secretary shall designate and make revisions
to critical habitat on the basis of the best available scientific data
after taking into consideration the economic impact, national security
impact, and any other relevant impact of specifying any particular area
as critical habitat. The Secretary may exclude an area from critical
habitat if she determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless she determines, based on the best scientific data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species. We will consider excluding from the
final designation (1) Tribal lands, (2) lands in Maine managed in
accordance with the Natural Resources Conservation Service's Healthy
Forest Reserve Program, (3) lands in Montana managed in accordance with
the Montana Department of Natural Resources and Conservation (DNRC)
Forested State Trust Lands Habitat Conservation Plan, and (4) lands in
Washington managed in accordance with the Washington Department of
Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed
Lands.
We will prepare an economic analysis. We prepared a final economic
analysis to evaluate the potential economic impacts of our 2009
critical habitat designation. To ensure that we adequately consider the
economic impacts of the current proposed designation, we will prepare
an economic analysis of this proposed designation and make it available
for public comment.
We will prepare a National Environmental Policy Act analysis.
Because this rule proposes designation of critical habitat in States
within the jurisdiction of the U.S. Court of Appeals for the Tenth
Circuit, we will prepare an analysis in accordance with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). We will update
and revise our 2009 NEPA analysis based on the current proposed
critical habitat designation and notify the public of the availability
of the draft environmental assessment.
We will seek peer review. We are seeking comments from independent
specialists to ensure that our critical habitat designation is based on
scientifically sound data, assumptions, and analyses. We have invited
these peer reviewers to comment on our specific assumptions and
conclusions in this revised critical habitat designation. Because we
will consider all comments and information received during the comment
period, our final determinations may differ from this proposal. In
addition to public and peer-review comments received on this proposed
rule, between the proposed and final rules, the Service will continue
to evaluate (1) any new information that becomes available regarding
the status and distribution of lynx in the contiguous United States,
(2) any refinements of or improvements to lynx habitat mapping and/or
modeling, particularly those efforts currently under way on National
Forest lands, (3) new information regarding the potential effects of
climate change on lynx and its habitats, (4) new information regarding
the potential effects of forest management on lynx and its habitats,
and (5) any other new information that was not considered previously to
determine the relevance of such information in revising critical
habitat for lynx. If necessary and appropriate, revisions to this
proposed rule will be made to address such information.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of lynx habitat in the contiguous
United States;
(b) What areas that were occupied at the time of listing and that
contain features essential to the conservation of the DPS should be
included in the designation and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change and changing forest
management practices; and
(d) What areas not occupied at the time of listing may be essential
for the conservation of the DPS and why, including areas that remain
unoccupied, such as the ``Kettle Range'' in Ferry County, Washington,
and areas recently occupied, such as northern New Hampshire (in
northern Coos County), northeastern Vermont (in northern Essex County),
western Maine in Somerset, Franklin, and northern Oxford Counties,
including portions of the White Mountain National Forest, and eastern
Maine in northern Washington County.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed revised critical
habitat.
(4) Comments or information that may assist in identifying or
clarifying the primary constituent element.
(5) Whether lands in the Southern Rocky Mountains of Colorado,
northern New Mexico, and southern Wyoming (a) contain the physical and
biological features essential for the conservation of the DPS, (b)
contain these features in the quantities and spatial arrangements
across landscapes necessary to support lynx populations over time, and
(c) are essential to the conservation of the DPS, and the basis for why
that might be so.
(6) Whether lands in the Clearwater and Nez Perce National Forests
in Idaho, the Bitterroot National Forest in Idaho and Montana, the
Beaverhead-Deerlodge National Forest in Montana, and parts of the
Helena and Lolo National Forests in Montana not currently proposed for
designation (a) contain the physical and biological features essential
for the conservation of the DPS, (b) contain these features in the
quantities and spatial arrangements across landscapes necessary to
support lynx populations over time, and (c) are essential to the
conservation of the DPS, and the basis for why that might be so.
(7) How the proposed boundaries of the revised critical habitat
designation could be refined to more closely circumscribe the boreal
forest landscapes essential to the conservation of lynx.
(8) Information on the projected and reasonably likely impacts of
climate change on lynx and proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be
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included in the final designation; in particular, any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(10) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area. In
particular, we are considering excluding all Tribal lands (Maine,
Minnesota, and Montana) as well as lands in (a) Maine, managed in
accordance with the Natural Resources Conservation Service's Healthy
Forest Reserve Program (75 FR 6539, February 10, 2010), (b) Montana,
managed in accordance with the Montana DNRC Forested State Trust Lands
Habitat Conservation Plan (Montana DNRC and U.S. Fish and Wildlife
Service 2010), and (c) Washington, managed in accordance with the
Washington DNR Lynx Habitat Management Plan for DNR-managed Lands
(Washington DNR 2006).
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. You may request
at the top of your document that we withhold personal information such
as your street address, phone number, or email address from public
review; however, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Montana Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Previous Federal Actions
For more information on previous Federal actions concerning the
lynx, refer to the final listing rule published in the Federal Register
on March 24, 2000 (65 FR 16052), the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076), the
Recovery Outline for the Contiguous United States DPS of Canada Lynx
(Recovery Outline; U.S. Fish and Wildlife Service 2005, entire) the
final rule designating critical habitat for lynx published in the
Federal Register on November 9, 2006 (71 FR 66008), the final rule
designating revised critical habitat published in the Federal Register
on February 25, 2009 (74 FR 8616), and the 12-month finding on a
petition to change the final listing of the DPS of the Canada lynx to
include New Mexico published in the Federal Register on December 17,
2009 (74 FR 66937). These documents and others addressing the status
and conservation of lynx in the contiguous United States may be viewed
and downloaded from the Service's Web site: http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073.
On July 28, 2010, the U.S. District Court for the District of
Montana remanded the 2009 revised critical habitat final rule to the
Service because of flaws it perceived in the Service's rationale for
its decision not to designate critical habitat in Colorado and in the
Beaverhead-Deerlodge, Bitterroot, Clearwater, and Nez Perce National
Forests in Idaho and Montana, and in portions of the Helena and Lolo
National Forests in Montana not included in the designation. The court
ordered the Service to determine whether areas occupied by lynx
introduced into Colorado possess the physical and biological features
essential to the conservation of the species, and consider the physical
and biological features of occupied forests in Montana and Idaho to
determine whether they should be designated as critical habitat. The
court also ordered that the 2009 final critical habitat rule ``. . .
shall remain in place until the Service issues a new final rule on lynx
critical habitat, at which time the current, invalidated Final Rule (74
FR 8616) will be superseded.''
On September 10, 2010, because of its concerns with the Service's
consideration of potential economic impacts to recreational
snowmobiling interests in Washington State, the U.S. District Court for
the District of Wyoming enjoined the final critical habitat rule ``. .
. pending review and consideration by the Secretary of the full
analysis of all the economic impacts, and a determination on the
exclusion request of the Washington State Snowmobile Association . .
.''. The Court enjoined the final rule only in regard to National
Forest Lands in Washington State (Unit 4) ``. . . currently managed by
. . .'' the Lynx Conservation Assessment and Strategy (LCAS).
In this proposed rule, the Service addresses the issues raised by
the courts, evaluates recent lynx research and data, considers
additional areas for inclusion in critical habitat and other areas for
exclusion under section 4(b)(2) of the Act, and proposes this revised
critical habitat designation based on the best available scientific and
commercial data.
We also propose to rescind the existing State-boundary-based
definition of the lynx DPS and replace it with a definition that
extends the Act's protections to lynx ``where found'' in the contiguous
United States. This change would ensure that lynx, which are known for
their long-distance dispersal capability and tendency to occur in
places well outside of typical habitats, receive the Act's protections
wherever they occur in the contiguous United States, including (but not
limited to) New Mexico.
Revised Definition of the Contiguous U.S. Distinct Population Segment
of the Canada Lynx
In the final listing rule for the Canada lynx, dated March 24,
2000, the Service defined the contiguous U.S. DPS of lynx based on the
international boundary with Canada and state boundaries of all 14
States in the historic and current range of lynx (65 FR 16052; 74 FR
66937). With that definition, New Mexico was not included in the listed
area because no lynx occurred there, historic records did not show lynx
in the State, and it lacked lynx habitat.
On December 17, 2009, the Service published a 12-month ``warranted
but precluded'' finding in the Federal Register on a petition to expand
the listing of the Canada lynx to include the State of New Mexico (74
FR 66937). That finding was made in response to an August 8, 2007,
petition from a coalition of environmental groups and a 2008 settlement
agreement. In the finding, the Service acknowledged that lynx
associated with a lynx introduction effort in Colorado were regularly
and frequently crossing the State boundary between Colorado and New
Mexico and that, when they did, they were no longer protected by the
Act because New Mexico was not included in the listed DPS area. In
2011, as part of the MDL settlement agreement, the Service agreed to
amend the listing rule to include New Mexico so that lynx entering New
Mexico from Colorado would no longer lose Federal protection under the
Act upon crossing the State boundary.
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We have determined that lynx entering New Mexico, or any other
States not currently included in the DPS as described in the 2000 final
listing rule, should not lose their protection under the Act upon doing
so. Therefore, with this rule, we propose to rescind the State-
boundary-based definition of the contiguous U.S. lynx DPS and replace
it in regulation with a definition of the DPS that extends the Act's
protections to lynx ``where found within contiguous United States.''
This change will ensure that all lynx in the contiguous United States
receive protection under the Act regardless of where they may wander,
including New Mexico.
Designation of Revised Critical Habitat for the Contiguous U.S.
Distinct Population Segment of the Canada Lynx
Background
It is our intent to discuss below only topics relevant to the
revised designation of critical habitat in this proposed rule. For more
information about the listing of the Canada lynx, please refer to the
Previous Federal Actions section above.
Species Information
Taxonomy and Species Description
The Canada lynx (order Carnivora; family Felidae) is a medium-sized
cat with long legs and large, well-furred paws. Its long, black ear
tufts and short, black-tipped tail distinguish the lynx from the
similar but much more common bobcat (Lynx rufus). In winter, the lynx's
fur is dense and has a grizzled appearance with grayish-brown mixed
with buff or pale brown fur on the back, and grayish-white or buff-
white fur on the belly, legs and feet. In summer, its fur is more
reddish to gray-brown (McCord and Cardoza 1982, p. 730). Lynx generally
measure 30 to 35 inches (in) (75 to 90 centimeters (cm)) long and weigh
14 to 31 pounds (lb) (6 to 14 kilograms (kg)) (Quinn and Parker 1987,
Table 1; Moen et al. 2010a, Figure 2; Maine Department of Inland
Fisheries and Wildlife 2012, unpublished data). The lynx's large feet
and long legs make it highly adapted for traversing and hunting in deep
snow. Lynx hybridization with bobcats has been documented in Minnesota,
Maine, and New Brunswick (Schwartz et al. 2004, entire; Homyack et al.
2008, entire), where male bobcats bred with female lynx to produce
fertile offspring with lynx-like ear tufts, intermediate foot-size, and
bobcat-like fur (Interagency Lynx Biology Team 2013, p. 35). Canada
lynx are related to the somewhat larger Eurasian lynx (Lynx lynx),
which occupies a similar boreal forest distribution in northern Europe,
northern Russia, and central Asia (von Arx et al. 2001, pp. 8-10).
Distribution
The Canada lynx is broadly distributed across northern North
America from eastern Canada to Alaska (McCord and Cardoza 1982, p.
729). It is strongly associated with the expansive, continuous boreal
forests of those areas, and its range largely overlaps that of its
primary prey, the snowshoe hare (Lepus americanus), also a boreal
forest specialist (Bittner and Rongstad 1982, p. 146; Mowat et al.
2000, pp. 268-269; Aubry et al. 2000, p. 375). The southern periphery
of the boreal forest extends into parts of the northern contiguous
United States, where it transitions to the Acadian forest in the
Northeast (Seymour and Hunter 1992, pp. 1, 3), deciduous temperate
forest in the Great Lakes regions, and subalpine forest in the Rocky
Mountains and Cascade Mountains in the west (Agee 2000, pp. 40-41). In
the contiguous United States, these transitional boreal forests become
discontinuous and patchy, preventing both lynx and hares from broadly
achieving densities similar to those of the northern boreal forests
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler
1990, p. 849; Koehler and Aubry 1994, p. 84; Aubry et al. 2000, pp.
373-375, 382, 394). These forests eventually become too fragmented and
isolated in the contiguous United States to support hares at the
landscape densities and distributions necessary to support lynx home
ranges (Interagency Lynx Biology Team 2013, p. 77) or lynx populations
over time (see also Habitat and Biology, below).
Snow conditions also determine the distribution of lynx (Ruggiero
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically
adapted for hunting snowshoe hares and surviving in areas that have
cold winters with deep, fluffy snow for extended periods. These
adaptations provide lynx a competitive advantage over potential
competitors, such as bobcats or coyotes (Canis latrans) (McCord and
Cardoza 1982, p. 748; Buskirk et al. 2000b, pp. 86-95; Ruediger et al.
2000, pp. 1-11; Ruggiero et al. 2000, pp. 445, 450). Bobcats and
coyotes have a higher foot load (more weight per surface area of foot),
which causes them to sink into the snow more than lynx. Therefore,
bobcats and coyotes cannot hunt efficiently in fluffy or deep snow and
are at a competitive disadvantage to lynx. Long-term snow conditions
presumably limit the winter distribution of potential lynx competitors
such as bobcats (McCord and Cardoza 1982, p. 748) or coyotes. These
adaptations may also help lynx avoid predators such as mountain lions
(Puma concolor; Squires and Laurion 2000, p. 346) and fisher (Martes
pennanti; Vashon et al. 2012, p. 20), which also have higher foot-
loading, making them less efficient in deep, fluffy snow conditions
(Krohn et al. 2005, entire).
Lynx occurrence has been documented in 24 States in the northern
contiguous United States (McKelvey et al. 2000a, entire). However,
northern (Canadian and Alaskan) lynx populations are cyclic, with large
population swings occurring over 8- to 11-year intervals and lagging a
year or two behind snowshoe hare population cycles (Elton and
Nicholoson 1942, entire; Mowat et al. 2000, pp. 281-294; Interagency
Lynx Biology Team 2013, p. 33). When hares are abundant, northern lynx
populations increase quickly and dramatically; when hare numbers
subsequently decline, large numbers of lynx disperse widely in search
of food (Slough and Mowat 1996, pp. 956-957; Mowat et al. 2000, pp.
281-294). Historically, during and after these events, often referred
to as lynx population ``irruptions,'' many lynx dispersed into the
northern contiguous United States, often occurring temporarily in
habitats that are incapable of supporting lynx populations over time
(Thiel 1987, entire; McKelvey et al. 2000a, pp. 241-242, 253). Many
records of lynx in the contiguous United States appear to be related to
such events (McKelvey et al. 2000a, entire; see also Biology and
Criteria Used To Identify Critical Habitat, below).
Persistent, productive lynx populations (interbreeding lynx
populations that have occupied particular areas consistently over time)
in the contiguous United States occur in northern Maine, northeast
Minnesota, northwest Montana/northeast Idaho, north-central Washington,
and the Greater Yellowstone Area of southwest Montana and northwest
Wyoming. Recently, lynx reproduction also has been documented in
northern New Hampshire (in 2010 and 2011), northern Vermont (in 2009,
20011, and 2012), eastern Maine (in 2010), and breeding is likely in
some areas of western Maine (U.S. Fish and Wildlife Service 2013a, p.
1). Whether the small breeding populations in New Hampshire and Vermont
will persist is uncertain (Interagency Lynx Biology Team 2013, p. 23),
and regional-scale modeling suggests that habitat and snow conditions
there are likely insufficient
[[Page 59434]]
to support viable lynx populations over time (Hoving et al. 2005, pp.
739, 749). Additionally, from 1999 to 2006, researchers captured 218
lynx in Alaska and Canada and released them into high-elevation forests
in western Colorado (Devineau et al. 2010, entire). Although 122 (56
percent) of these lynx had died by June 2010 (Shenk 2010, pp. 1, 5),
some subsequently established home ranges in Colorado and produced
kittens in some years. Some also dispersed into northern New Mexico,
northeastern Utah, and southern and western Wyoming, though no
reproduction has been documented among any of the lynx that left
Colorado. Other lynx from this introduced population traveled through
Wyoming, Montana, and Idaho, and into southern Canada, and others
traveled to Arizona, southern Utah, eastern Nevada, Kansas, Nebraska,
Iowa, and South Dakota, with most of the latter animals ultimately
dying in inhospitable habitats in those places (Devineau et al. 2010,
p. 526, Figure 1).
Populations that are composed of a number of discrete
subpopulations, connected by dispersal, are called metapopulations
(Hanski and Gilpin 1991, entire; McKelvey et al. 2000b, p. 25). Lynx
populations in the contiguous United States appear to function as
metapopulations (McKelvey et al. 2000b, pp. 21, 33; 65 FR 16052-16082;
68 FR 40077-40099; 71 FR 66025-66035; 74 FR 8616-8641). They are
generally small populations isolated from one another, though most are
directly connected to larger lynx populations in Canada (McKelvey et
al. 2000b, pp. 25-34; U.S Fish and Wildlife Service 2005, p. 2). Lynx
disperse in both directions across the Canada-U.S. border (Aubry et al.
2000, pp. 386-387; Moen et al. 2010b, pp. ii, 17, 19; Vashon et al.
2012, p. 22), and this connectivity and interchange with lynx
populations in Canada is thought to be essential to the maintenance and
persistence of lynx populations in the contiguous United States
(McKelvey et al. 2000b, p. 33; U.S Fish and Wildlife Service 2005, p.
2; Interagency Lynx Biology Team 2013, p. 34, 42, 47, 54, 60, 65;
Squires et al. 2013, p. 187).
The small number of breeding lynx in northeastern Vermont, northern
New Hampshire, and western and eastern Maine are indirectly connected
to the Canadian population via extensive core habitat in northern
Maine. The small lynx population in the Greater Yellowstone Area of
southwest Montana and northwest Wyoming is indirectly connected to the
Canadian population via the Northern Rocky Mountains lynx population in
northwest Montana and northeast Idaho, and by dispersal corridors
(habitat ``stepping stones'') between northwest Montana and the Greater
Yellowstone Area. The Southern Rocky Mountains, particularly in
Colorado, lack such habitat ``stepping stones'' from the north, and the
subalpine forests there appear to be functionally disjunct from
northern lynx populations and habitats (McKelvey et al. 2000a, p. 230;
Interagency Lynx Biology Team 2013, pp. 50, 54). Although some of the
lynx released into Colorado subsequently dispersed northward, these
movements should be interpreted with caution and may not be
representative of natural lynx dispersal behavior. During
unprecedentedly large irruptions of lynx from Canada into the
contiguous United States in the early 1960s and again in the early
1970s, few lynx were documented in Colorado, despite large-scale survey
efforts, and no viable populations of lynx occurred there prior to the
State's introduction efforts (McKelvey et al. 2000a, pp. 231, 242).
Habitat
Lynx are highly specialized predators of snowshoe hares and are
dependent on landscapes with high-density snowshoe hare populations for
survival and reproduction (McCord and Cardoza 1982, p. 744; Quinn and
Parker 1987, pp. 684-685; Aubry et al. 2000, pp. 375-378). Estimates of
landscape-scale hare densities needed to support lynx populations in
the contiguous United States have ranged from 0.2 to 0.7 hares per acre
(ac) (0.5 to 1.8 hares per hectare (ha)) (Ruggiero et al. 2000, pp.
446-447; Steury and Murray 2004, p. 137; Moen et al. 2012, p. 352;
Simons-Legaard et al. 2013, p. 574). Lynx and snowshoe hares are
strongly associated with what is broadly described as boreal forest
(Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743;
Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry et al. 2000, pp.
378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey et
al. 2000a, pp. 211-232). The predominant vegetation of boreal forest is
conifer trees, primarily species of spruce (Picea spp.) and fir (Abies
spp.) (Elliot-Fisk 1988, pp. 34-35, 37-42). Lynx habitat can generally
be described as moist boreal forests that have cold, snowy winters and
a snowshoe hare prey base (Quinn and Parker 1987, pp. 684-685; Agee
2000, pp. 39-47; Aubry et al. 2000, pp. 373-375; Buskirk et al. 2000a,
pp. 397-405; Ruggiero et al. 2000, pp. 445-447). The boreal forests
that lynx use in the contiguous United States are characterized by
patchily-distributed moist forest types with high hare densities in a
matrix of other habitats (e.g., hardwoods, dry forest, non-forest) with
low landscape hare densities. In these areas, lynx incorporate the
matrix habitat (non-boreal forest habitat elements) into their home
ranges and use it for traveling between patches of boreal forest that
support high hare densities where most lynx foraging occurs.
In the contiguous United States, the boreal forest landscape is
naturally patchy and transitional because it is the southern edge of
the boreal forest range, where there also is increased prevalence of
non-forested land uses (e.g., agriculture, development). This generally
limits snowshoe hare populations in the contiguous United States from
achieving landscape densities similar to those of the expansive
northern boreal forest in Canada, where snowshoe hares are generally
more abundant and more evenly distributed across the landscape (Wolff
1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 1990, p.
849; Koehler and Aubry 1994, p. 84). Consequently, important foraging
habitat for lynx is often more limited and fragmented in the contiguous
United States than it is in the northern boreal forests of Canada and
Alaska (Berg and Inman 2010, p. 6) and overall habitat quality is
lower. In some areas, patches of habitat containing snowshoe hares
become so small and fragmented that the landscape cannot support lynx
home ranges (Interagency Lynx Biology Team 2013, p. 77) or populations.
Additionally, the presence of more snowshoe hare predators and
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx
generally occur at relatively low densities in the contiguous U.S.
compared to the high lynx densities that occur in the northern boreal
forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or the densities
of species such as the bobcat, which is a habitat and prey generalist.
The boreal forest landscape is naturally dynamic. Forest stands
within the landscape change as they undergo succession (transition from
one stage in the development of a mature forest to another) after
natural or human-caused disturbances such as fire, insect epidemics,
wind, ice, disease, and forest management (Elliot-Fisk 1988, pp. 47-48;
Agee 2000, pp. 47-69). As a result, lynx habitat within the boreal
forest landscape is a shifting mosaic of habitat patches of variable
and continually changing quality. That is, boreal forests contain
stands of differing ages and conditions, some of which provide lynx
[[Page 59435]]
foraging or denning habitat (or may provide these in the future
depending on patterns of disturbance and forest succession) and some of
which serve as travel routes for lynx moving between foraging and
denning habitats (McKelvey et al. 2000c, pp. 427-434; Hoving et al.
2004, pp. 290-292).
Because lynx population dynamics, survival, and reproduction are
closely tied to snowshoe hare availability, snowshoe hare habitat is
the primary component of lynx habitat. Lynx generally concentrate their
foraging and hunting activities in areas where snowshoe hare densities
are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985, pp. 2821-
2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp. 155,
159-160 and 1998, pp. 178-181; Simons-Legaard et al. 2013, pp. 573-
575). Snowshoe hares feed on conifers, deciduous trees, and shrubs
(Hodges 2000b, pp. 181-183) and are most abundant in forests with dense
understories that provide forage, cover to escape from predators, and
protection during extreme weather (Wolfe et al. 1982, pp. 665-669;
Litvaitis et al. 1985, pp. 869-872; Hodges 2000a, pp. 136-140 and
2000b, pp. 183-195).
Over much of the lynx's range, hare densities are higher in
regenerating, earlier successional forest stages because they often
have greater understory structure than mature forests (Buehler and
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp.
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, pp. 63, 141; Griffin
2004, pp. 84-88). Because understory density within a forest stand
changes over time as the stand undergoes succession, (i.e., as earlier
successional stages with dense understories advance to more mature
stands with reduced understory structure), hare habitat quality and
corresponding hare densities also shift continually across boreal
forest landscapes. However, snowshoe hares can be abundant in mature
forests with dense understories, particularly in the Northern Rocky
Mountains portion of the DPS (Griffin 2004, pp. 53-54; Hodges et al.
2009, p. 876; Squires et al. 2010, pp. 1648, 1653-1657; Berg et al.
2012, pp. 1483-1487), and these mature forests may be a source of hares
for other adjacent forest types (Griffin and Mills 2009, pp. 1492,
1495-1496). Lynx do not occur everywhere within the range of snowshoe
hares in the contiguous United States (Bittner and Rongstad 1982, p.
146; McCord and Cardoza 1982, p. 729). This may be due to inadequate
abundance, density, or spatial distribution of hares in some places, or
the absence of snow conditions that would allow lynx to express a
competitive advantage over other hare predators, or a combination of
these factors.
Within the boreal forest, lynx den sites are located where coarse
woody debris, such as downed logs and windfalls, provides security and
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744;
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion
2000, pp. 346-347; Organ et al. 2008, entire; Squires et al. 2008, pp.
1497, 1501-1505; Moen and Burdett 2009, entire). The amount of
structure (e.g., downed, large, woody debris) appears to be more
important than the age of the forest stand for lynx denning habitat
(Mowat et al. 2000, pp. 274-275), although in western Montana, 80
percent of documented dens occurred in mature stands (Squires et al.
2008, p. 1497).
Biology
Because of the patchiness and temporal nature of high-quality
snowshoe hare habitat across much of the range of lynx in the
contiguous United States, lynx populations in the DPS require large
boreal forest landscapes with high average snowshoe hare densities to
ensure that sufficient high-quality snowshoe hare habitat is available
and to ensure that lynx may move freely among patches of habitat and
among subpopulations of lynx. Individual lynx maintain large home
ranges, reported as generally ranging from 12 to 83 mi\2\ (31 to 216
km\2\) (Koehler 1990, p. 847; Aubry et al. 2000, pp. 382-386; Squires
and Laurion 2000, pp. 342-347; Squires et al. 2004a, pp. 13-16, Table
6; Vashon et al. 2005a, pp. 7-11, Vashon et al. 2008, p. 1479). The
size of lynx home ranges varies depending on abundance of snowshoe
hares, the lynx's gender and age, the season, and the density of lynx
populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and
Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-386; Mowat et al.
2000, pp. 276-280; Vashon et al. 2005a, pp. 9-10; Vashon et al. 2008,
pp. 1482-1485). When hare densities decline, for example, lynx enlarge
their home ranges to obtain sufficient amounts of food to survive and
reproduce (Slough and Mowat 1996, p. 956; Mowat et al. 2000, pp. 265,
278). When hare densities are very low and lynx hunting success
declines, many lynx abandon home ranges and disperse, often over long
distances, in search of areas with greater food resources (Slough and
Mowat 1996, pp. 956-957; Mowat et al. 2000, pp. 290-294). Although some
of these dispersing lynx survive and reestablish home ranges elsewhere,
many never find areas of high hare densities and die en route, often
soon after initiating dispersal (Mowat et al. 2000, p. 293).
Lynx are highly mobile and regularly move long distances (greater
than 60 mi (100 km)) (Aubry et al. 2000, pp. 386-387; Mowat et al.
2000, pp. 290-294; Moen et al. 2010b, pp. ii, 17-19; Vashon et al.
2012, pp. 21-22). Lynx disperse primarily when previously adequate
habitats become temporarily inadequate due to snowshoe hare population
declines (Ward and Krebs 1985, pp. 2821-2823; Slough and Mowat 1996, p.
956; O'Donoghue et al. 1997, pp. 156, 159; Poole 1997, pp. 499-503).
Lynx may disperse at any time of year (Moen et al. 2010b, pp. ii, 5).
Subadult lynx disperse even when hares are abundant (Poole 1997, pp.
502-503), presumably to establish new home ranges. Lynx also make
exploratory movements outside their home ranges (Aubry et al. 2000, p.
386; Squires et al. 2001, pp. 18-26).
Snowshoe hares comprise a majority of the lynx diet throughout its
range (Nellis et al. 1972, pp. 323-325; Brand et al. 1976, pp. 422-425;
Koehler 1990, p. 848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000,
pp. 375-378; Mowat et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-
38; Squires et al. 2004a, p. 15, Table 8), and hare abundance is the
major driver of lynx population dynamics (see below). Lynx prey
opportunistically on other small mammals and birds, particularly during
lows in snowshoe hare populations, but alternate prey species do not
sufficiently compensate for low availability of snowshoe hares, and
lynx populations cannot persist over time in areas with consistently
low hare densities (Brand et al. 1976, pp. 422-425; Brand and Keith
1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat et al. 2000, pp.
267-268).
Lynx populations in Canada fluctuate in response to the cycling of
snowshoe hare populations (Elton and Nicholson 1942, pp. 241-243;
Hodges 2000a, pp. 118-123; Mowat et al. 2000, pp. 265-272), with
synchronous fluctuations in lynx numbers emanating from the core of the
Canadian population and spreading over vast areas, generally lagging
hare numbers by one year (McKelvey et al. 2000a, pp. 232, 239; Mowat et
al. 2000, pp. 266, 270). When hares are abundant, lynx have larger
litter sizes, higher kitten survival, and lower adult mortality,
resulting in rapid population growth during the increase phase of the
hare cycle (Slough and Mowat 1996, pp. 955-956; Mowat et al. 2000, pp.
266, 270-272, 281-289). When snowshoe hare populations are low, female
lynx produce few or no
[[Page 59436]]
kittens that survive to independence (Nellis et al. 1972, pp. 326-328;
Brand et al. 1976, pp. 420, 427; Brand and Keith 1979, pp. 837-838,
847; Poole 1994, pp. 612-616; Slough and Mowat 1996, pp. 953-958;
O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000, pp. 388-389;
Mowat et al. 2000, pp. 285-287). When hares decline, lynx mortality
rates increase, largely because of starvation, as do home range sizes
and dispersal/emigration rates (Ward and Krebs 1985, pp. 2821-2823;
O'Donoghue et al. 1997, pp. 156, 159; Poole 1997, pp. 499-503; Mowat et
al. 2000, pp. 265-272, 278, 281-294). Lynx numbers decline dramatically
during the ``crash'' phase of the hare cycle (Slough and Mowat 1996, p.
956; Mowat et al. 2000, p. 283), with large numbers of lynx dispersing
in search of food. Historically, this has resulted in irruptions--large
numbers of lynx entering the northern contiguous U.S.--such as the
unprecedented ``explosions'' of lynx observed in the 1960s and 1970s
(McKelvey et al. 2000a, p. 242). During these events, many lynx
occurred in anomalous habitats, suffered high mortality, and numbers
declined dramatically within a few years of irruptive peaks (Thiel
1987, entire; McKelvey et al. 2000a, p. 242).
Although snowshoe hare populations in Canada show strong, regular
population cycles, these types of synchronous, intrinsically generated
fluctuations are generally much less pronounced or absent entirely
among hare populations in the contiguous United States (Hodges 2000b,
pp. 165-173; Hodges et al. 2009, pp. 870, 875-876; Scott 2009, pp. 1-
44). In the contiguous United States, the degree to which regional lynx
population fluctuations are influenced by local snowshoe hare
population dynamics is unclear. However, it is anticipated that because
of variability in the timing and intensity of lynx irruptions from
Canada, and natural fluctuations in snowshoe hare populations, there
will be periods when lynx densities within the DPS are extremely low.
This dynamic likely predated the historical lynx record and we consider
such fluctuations, including periods of very low lynx density, to be a
natural part of lynx dynamics in the contiguous U.S. DPS. Where lynx
populations are contiguous with cyclic hare populations in Canada, lynx
presence and population dynamics in the contiguous United States appear
to be more influenced by the occurrence of irruptions from Canada than
by intrinsically generated snowshoe hare population cycles within the
DPS range.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data
[[Page 59437]]
available. They require our biologists, to the extent consistent with
the Act and with the use of the best scientific data available, to use
primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species (if one has been completed), 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 generally dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time the species is determined to be an endangered or
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that
the designation of critical habitat is not prudent when one or both of
the following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) such designation of critical habitat would not be beneficial to
the species.
There is currently no imminent threat of take attributed to
collection or vandalism under Factor B for Canada lynx, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In the absence of finding that the
designation of critical habitat would increase threats to a species, if
there are any benefits to a critical habitat designation, then a
prudent finding is warranted. Here, the potential benefits of
designation include: (1) Triggering consultation under section 7 of the
Act, in new areas for actions in which there may be a Federal nexus
where it would not otherwise occur because, for example, it is or has
become unoccupied or the occupancy is in question; (2) focusing
conservation activities on the most essential features and areas; (3)
providing educational benefits to state or county governments or
private entities; and (4) preventing people from causing inadvertent
harm to the species. Therefore, because we have determined that the
designation of critical habitat will not likely increase the degree of
threat to the species and may provide some measure of benefit, we find
that designation of critical habitat is prudent for the Canada lynx
DPS.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for lynx is
determinable. Our regulations at 50 CFR 424.12(a)(2) state that
critical habitat is not determinable when one or both of the following
situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where lynx occur. This
and other information represent the best scientific data available and
led us to conclude that the designation of critical habitat is
determinable for the Canada lynx DPS.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Contiguous U.S. DPS of the Canada lynx from studies of this
species' habitat, ecology, and life history as described below.
Additional information on the habitat, ecology, and life history of the
lynx DPS can be found in the documents listed above under Previous
Federal Actions. We have determined, as we did in the 2009 final
critical habitat rule, that the following physical or biological
features are essential for lynx:
Space for Individual and Population Growth and for Normal Behavior
Boreal Forest Landscapes
Lynx populations respond to biotic and abiotic factors at different
scales. At the regional scale, boreal forests, snow conditions, and
competitors (especially bobcat) influence the species' range (Aubry et
al. 2000, pp. 378-380; McKelvey et al. 2000a, pp. 242-253; Hoving et
al., 2005 p. 749). At the
[[Page 59438]]
landscape scale within each region, natural and human-caused
disturbance processes (e.g., fire, wind, insect infestations, forest
management, and development) may influence the spatial and temporal
distribution of lynx populations by affecting the distribution of high
quality habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger et
al. 2000, pp. 1-3, 2-2--2-6, 7-3). At the stand-level (vegetation
community) scale, the quality, quantity, and juxtaposition of habitats
influence home range location and size, productivity, and survival
(Aubry et al. 2000, pp. 380-390; Vashon et al. 2005a, pp. 9-11). At the
smaller substand (within-stand) scale, the spatial distribution and
abundance of prey and microclimate likely influence lynx movements,
hunting behavior, and den and resting site locations (Organ et al.
2008, entire; Squires et al. 2008, entire; Moen and Burdett 2009, p.
16; Squires et al. 2010, pp. 1648, 1654-1657).
All of the physical and biological features of critical habitat for
lynx are found only within large landscapes in what is broadly
described as the boreal forest or cold temperate forest (Frelich and
Reich 1995, p. 325; Agee 2000, pp. 43-46). That is, no individual
small-scale area or site is likely to have all of the physical and
biological features lynx need to survive. Rather, lynx in the DPS use
very large areas as home ranges that incorporate landscape features
that may be widely separated from one another to satisfy all of their
life-history needs. In contrast to the extensive homogenous boreal
forest found in the core of lynx range in northern Canada and Alaska,
the southern terminus of the boreal forest type that extends into parts
of the northern contiguous United States becomes transitional with
other forest types--the Acadian forest in the Northeast (Seymour and
Hunter 1992, pp. 1, 3), deciduous temperate forest in the Great Lakes,
and subalpine forest in the west (Agee 2000, pp. 43-46). In this rule,
we use the term ``boreal forest'' because it generally encompasses most
of the vegetative descriptions of the transitional forest types that
comprise lynx habitat in the contiguous United States (Agee 2000, pp.
40-41).
Because of the transitional nature and patchy distribution of
boreal forest in the contiguous United States, species that are
specifically adapted to the classic boreal forest farther north, like
the lynx, must contend with aspects of their habitat at the southern
extent of the boreal forest for which they are not well-adapted. For
example, southern transitional boreal forests often have lower
landscape snowshoe hare densities than boreal forests further north
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler
1990, p. 849; Koehler and Aubry 1994, p. 84). This requires lynx in the
contiguous United States to incorporate more land area into their home
ranges than lynx do in the north to acquire adequate food (Mowat et al.
2000, pp. 265, 277-278). At some point, landscape hare densities become
too low, making some areas incapable of supporting lynx survival and
reproduction. Larger home ranges likely require more energy output
associated with greater foraging effort (Apps 2000, p. 364) and
possibly increased exposure to predation and other mortality factors
than lynx face in the core of their range. All of this likely leads to
lower reproductive output and tentative conservation status in many
parts of the DPS relative to those in Canada and Alaska (Buskirk et al.
2000b, p. 95).
Throughout the range of the DPS, lynx habitat occurs within boreal
forest vegetation types that support high landscape densities of
snowshoe hares and have deep snow for extended periods. In eastern
North America, lynx distribution was strongly associated with areas of
deep snowfall and large (40-mi\2\ (100-km\2\)) landscapes that had been
heavily cut and treated with herbicides and had a high proportion of
regenerating forest (Hoving 2001, pp. 75, 143). Hoving et al. (2004, p.
291) concluded that the broad geographic distribution of lynx in
eastern North America is most influenced by snowfall, but within areas
of similarly deep snowfall, measures of forest succession become more
important factors in determining lynx distribution. Second-order
habitat selection in the Acadian forest region is influenced by hare
density (a surrogate for early successional forest) and mature conifer
forest, despite its association with low hare densities (Simons-Legaard
et al. 2013 pp. 573-574). In the Northern Rocky Mountains, lynx habitat
relationships appear to be less tied to early successional forest
stages; high lynx use and hare densities, especially in the critical
winter season, occur in mature multistoried forest stands where conifer
branches reach the snow surface and thereby provide hare forage
(Squires et al. 2006a, p. 15; Squires et al. 2010, pp. 1653-1657; Berg
et al. 2012, entire).
Boreal forests used by lynx are generally cool, moist, and
dominated by conifer tree species, primarily spruce and fir (Agee 2000,
pp. 40-46; Aubry et al. 2000, pp. 378-382; Ruediger et al. 2000, pp. 4-
3, 4-8--4-11, 4-25--4-26, 4-29--4-30). Boreal forest landscapes used by
lynx are heterogeneous mosaics of vegetative cover types and
successional forest stages created by natural and human-caused
disturbances (McKelvey et al. 2000c, pp. 426-434). In many places
periodic vegetation disturbances stimulate development of dense
understory or early successional habitat for snowshoe hares (Ruediger
et al. 2000, pp. 1-3--1-4, 7-4--7-5). In Maine, lynx were positively
associated with landscapes altered by clearcutting 15 to 25 years
previously (Hoving et al. 2004, p. 291; Simons-Legaard et al. 2013, pp.
573-574). In other places, such as the Northern Rocky Mountains and
Greater Yellowstone Area, mature multistoried conifer forests as well
as dense regenerating conifer stands provide foraging habitat for lynx
(Squires et al. 2010, pp. 1648, 1653-1657; Berg et al. 2012, entire).
The overall quality of the boreal forest landscape and the
juxtaposition of stands of high-quality habitat within the landscape
are important for both lynx and snowshoe hares in that both can
influence connectivity or movements between habitat patches,
availability of food and cover, and spatial structuring of populations
or subpopulations (Hodges 2000b, pp. 184-195; McKelvey et al. 2000c,
pp. 431-432; Walker 2005, p. 79). For example, lynx foraging habitat
must be near denning habitat to allow females to adequately provision
dependent kittens, especially when the kittens are relatively immobile
(Moen et al. 2008a, p. 1507; Vashon et al. 2012, p. 16). In north-
central Washington, hare densities were higher in landscapes with an
abundance of dense boreal forest interspersed with small patches of
open habitat, in contrast to landscapes composed primarily of open
forest interspersed with few patches containing dense vegetation
(Walker 2005, p. 79; Lewis et al. 2011, p. 565). Similarly, in
northwest Montana, connectivity of dense patches within the forest
matrix benefited snowshoe hares (Ausband and Baty 2005, p. 209). In
mountainous areas, lynx appear to prefer relatively gentle slopes (Apps
2000, p. 361; McKelvey et al. 2000d, p. 333; von Kienast 2003, p. 21,
Table 2; Maletzke 2004, pp. 17-18).
Individual lynx require large areas of boreal forest landscapes to
support their home ranges and to facilitate dispersal and exploratory
travel. The size of lynx home ranges is strongly influenced by the
quality of the habitat, particularly the abundance of snowshoe hares,
in addition to other factors such as gender, age, season, and density
of the lynx population (Aubry et al. 2000, pp. 382-385; Mowat et al.
2000, pp. 276-280). Generally, females with kittens have the smallest
home ranges while males have the largest home ranges (Moen et al.
[[Page 59439]]
2005, p. 11; Burdett et al. 2007, p. 463). Reported average home range
sizes vary greatly from 12 mi\2\ (31 km\2\) for females and 26 mi\2\
(68 km\2\) for males in Maine (Vashon et al. 2005a, p. 7), 8 mi\2\ (21
km\2\) for females and 119 mi\2\ (307 km\2\) for males in Minnesota
(Moen et al. 2005, p. 12), and 34 mi\2\ (88 km\2\) for females and 83
mi\2\ (216 km\2\) for males in northwest Montana (Squires et al. 2004a,
p. 13). Home range sizes of lynx introduced into Colorado averaged 29
mi\2\ (75 km\2\) among reproductive females, 40 mi\2\ (103 km\2\) among
attending (reproductive) males, and 252 mi\2\ (654 km\2\) among all
non-reproductive lynx (Shenk 2008, pp. 1, 10). Based on data presented
in Shenk (2008, p. 10) and combining reproductive and non-reproductive
lynx, home range estimates for lynx in Colorado averaged 181 mi\2\ (470
km\2\) for females and 106 mi\2\ (273 km\2\) for males.
Forest Type Associations in the Contiguous United States
Maine
Stands of regenerating sapling (15-35 years old) spruce-fir forest
that provide dense cover are preferred by both snowshoe hares and lynx
in Maine (Robinson 2006, pp. 26-36; Vashon et al. 2012, p. 15). Lynx
were more likely to occur in large (40 mi\2\ (100 km\2\)) landscapes
with regenerating forest, and less likely to occur in landscapes with
very recent clearcut or partial harvest, (Hoving et al. 2004, pp. 291-
292). Regenerating stands used by lynx generally develop after forest
disturbance and are characterized by dense horizontal structure and
high stem density within a meter of the ground. These habitats support
high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison
2005, pp. 716,719; Vashon et al. 2005a, pp. 10-11). At the stand scale,
lynx in northwestern Maine selected older (11- to 26-year-old), tall
(15 to 24 feet (ft) (4.6 to 7.3 meters (m)) regenerating clearcut
stands and older (11- to 21-year-old) partially harvested stands
(Fuller et al. 2007, pp. 1980, 1983-1985). At the home range scale,
lynx also selected mature conifer forest (Simons-Legaard et al. 2013,
pp. 572-573). Lynx may use partial harvested and mature conifer stands
associated with low hare densities because of increased ease of travel
and prey access along the extensive edges with high-quality
(regenerating clearcut) habitats (Simons-Legaard et al. 2013 p. 574).
Minnesota
In Minnesota, lynx primarily occur in the Northern Superior Uplands
Ecological Section of the Laurentian Mixed Forest Province.
Historically, this area was dominated by red pine (Pinus resinosa) and
white pine (P. strobus) mixed with aspen (Populus spp.), paper birch
(Betula papyrifera), spruce, balsam fir (A. balsamifera) and jack pine
(P. banksiana) (Minnesota Department of Natural Resources [Minnesota
DNR] 2003, p. 2). Lynx habitats in Minnesota were associated with
Lowland Conifer, Upland Conifer, Mixed Conifer, and Regenerating Forest
cover types, with lynx selecting the latter because it provides
snowshoe hare habitat (Moen et al. 2008a, p. 1511; Moen et al. 2008b,
pp. 18-29). Moen et al. (2008b, pp. 23-25) reported that lynx also
selected for the edges between different cover types, presumably
because they could more efficiently capture hares along the edges
between stands than in the dense interior understory of regenerating
stands.
Northern Rocky Mountains (Idaho, Montana, and Northwestern Wyoming)
In the Northern Rocky Mountains, most lynx occurrences are
associated with the Rocky Mountain Conifer Forest or Western Spruce-Fir
Forest vegetative class (Kuchler 1964, p. 4; McKelvey et al. 2000a, p.
246) and most occur above 4,101 ft (1,250 m) elevation (Aubry et al.
2000, pp. 378-380; McKelvey et al. 2000a, pp. 243-245). The dominant
vegetation that constitutes lynx habitat in these areas is subalpine
fir (A. lasiocarpa), Engelmann spruce (P. engelmanii) and lodgepole
pine (P. contorta) (Aubry et al. 2000, p. 379; Ruediger et al. 2000,
pp. 4-8--4-10). Within in the boreal forest landscape, lodgepole pine
is seral to (i.e., is an earlier successional stage) subalpine fir and
Engelmann spruce, which are climax forest habitat types. In winter,
lynx preferentially used mature multistoried stands, predominantly
spruce-fir, with dense horizontal cover and avoided clearcuts and large
forest openings (Squires et al. 2010, pp. 1648, 1653-1656). In summer,
lynx also selected young stands with dense spruce-fir saplings, and
avoidance of openings was not apparent (Squires et al. 2010, pp. 1648,
1654-1655). Dry forest types (e.g., ponderosa pine (Pinus ponderosa),
dry Douglas-fir (Pseudotsuga menziesii)) do not provide lynx habitat
(Berg 2009, p. 20; Squires et al. 2010, p. 1655).
Washington
In the North Cascades in Washington, most lynx occurrences were
found above 4,101 ft (1,250 m) (McKelvey et al. 2000a, p. 243, 2000d,
p. 321; von Kienast 2003, p. 28, Table 2; Maletzke 2004, p. 17). In
this area, lynx selected Engelmann spruce--subalpine fir forest cover
types in winter (von Kienast 2003, p. 28; Maletzke 2004, pp. 16-17;
Koehler et al. 2008, p. 1518). As in the Northern Rockies, lodgepole
pine is a dominant tree species in the earlier successional stages of
these climax cover types. Seral (intermediate stage of ecological
succession) lodgepole stands contained dense understories and,
therefore, received high use by snowshoe hares and lynx (Koehler 1990,
pp. 847-848; McKelvey et al. 2000d, pp. 332-335). Douglas-fir and
ponderosa pine forests, openings, recent burns, open canopy and
understory cover, and steep slopes were all avoided habitat types
(Koehler et al. 2008, p. 1518).
Southern Rocky Mountains (Western Colorado, Northern New Mexico,
Southern Wyoming)
Lynx introduced into Colorado used high-elevation mature Engelmann
spruce/subalpine fir, mixed spruce/fir/aspen, and riparian/mixed
riparian habitats in Subalpine and Upper Montane forest zones, and
avoided lower elevation Montane forests of Douglas fir and ponderosa
pine (Shenk 2008, pp.1-2, 12, 15; Devineau et al. 2010, p. 525; Ivan
2011a, pp. 21, 27). However, it remains uncertain whether these
habitats can sustain a viable lynx population over time (Shenk 2008, p.
16; Shenk 2010, pp. 2, 5-6, 11). Introduced lynx from Colorado also
have wandered into mountainous areas of northern New Mexico, which
contain relatively small and fragmented areas of similar high-elevation
spruce/fir and cold mixed-conifer habitats (U.S. Forest Service 2009,
pp. 5-10). No evidence exists that lynx occupied these areas
historically; reproduction among introduced lynx that have traveled
from Colorado into northern New Mexico has not been documented; and
habitats in New Mexico are thought to be incapable of supporting a
self-sustaining lynx population (U.S. Forest Service 2009, pp. 2, 10,
16-17).
Based on the information above, we identify large boreal forest
landscapes that support high densities of snowshoe hares and have deep
snow for extended periods to contain the physical and biological
features needed to support and maintain lynx populations over time and
which, therefore, are essential for the conservation of the lynx DPS.
[[Page 59440]]
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food (Snowshoe Hares)
Snowshoe hare density is the most important factor explaining the
persistence of lynx populations (Steury and Murray 2004, p. 136).
Snowshoe hare density differences among areas of boreal forest in the
contiguous United States are also thought to explain many lynx
distribution patterns historically and at present. While seemingly all
of the physical aspects usually associated with lynx habitat may be
present in a landscape, if snowshoe hare densities are inadequate to
support reproduction, recruitment, and survival over time, lynx
populations will not persist. Minimum landscape snowshoe hare densities
necessary to maintain persistent, reproducing lynx populations across
the range of the DPS have not been determined, although Ruggiero et al.
(2000, pp. 446-447) suggested that at least 0.2 hares per ac (0.5 hares
per ha) may be necessary. Landscape hare densities in areas known to
support lynx home ranges in the contiguous United States were 0.26
hares per ac (0.64 hares per ha) in northeast Minnesota (Moen et al.
2012, p. 352) and 0.30 hares per ac (0.74 hares per ha) in northern
Maine (Simons-Legaard et al. 2013, p. 574). Landscape hare density in
Voyageurs National Park in northern Minnesota was estimated at 0.14
hares per ac (0.35 hares per ha) and did not support resident breeding
lynx (Moen et al. 2012, pp. 352-354). In northern Maine, areas with
landscape hare densities less than 0.2 hares per ac (0.5 hares per ha)
were not occupied by lynx (Simons-Legaard et al. 2013, pp. 567, 575).
Steury and Murray (2004, entire) modeled lynx and snowshoe hare
populations and predicted that a minimum of 0.4 to 0.7 hares per ac
(1.1 to 1.8 hares per ha) would be required for persistence of a
reintroduced lynx population in the portion of the lynx range in the
contiguous United States. In areas used by introduced lynx in west-
central Colorado, Zahratka and Shenk (2008, pp. 906, 910) reported hare
densities that ranged from 0.03 to 0.5 hares per ac (0.08 to 1.32 hares
per ha) in mature Engelmann spruce-subalpine fir stands and from 0.02
to 0.14 hares per ac (0.06 to 0.34 hares per ha) in mature lodgepole
pine stands. In ``purportedly good'' hare habitat also in west-central
Colorado in the area used by introduced lynx, Ivan (2011c, pp. iv-v,
71, 92) estimated summer hare densities of 0.08 to 0.27 hares per ac
(0.2 to 0.66 hares per ha) in stands of ``small'' lodgepole, 0.004 to
0.01 hares per ac (0.01 to 0.03 hares per ha) in ``medium'' lodgepole,
and 0.004 to 0.1 hares per ac (0.01 to 0.26 hares per ha) in spruce-fir
stands.
The boreal forest landscape is naturally dynamic and usually
contains a mosaic of forest stand successional stages. In some areas,
particularly in the eastern portion of the DPS, stands that support
high densities of snowshoe hares are of a young successional stage and
are in a constant state of transition to other more mature stages.
Conversely, if the vegetation potential (or climax forest type) of a
particular forest stand is conducive to supporting abundant snowshoe
hares, it likely will also go through successional stages that are of
lesser value as lynx foraging habitat (i.e., times when snowshoe hare
abundance is low) or lynx denning habitat (Agee 2000, pp. 62-72;
Buskirk et al. 2000a, pp. 403-408) as part of a natural forest
succession process. For example, a boreal forest stand where there has
been recent disturbance, such as fire or timber harvest, resulting in
little or no understory structure will support fewer snowshoe hares
and, therefore, lower quality lynx foraging habitat. However, that
temporarily low-quality stand would regenerate into higher-quality
snowshoe hare (lynx foraging) habitat within 10 to 25 years, depending
on local conditions (Ruediger et al. 2000, pp. 1-3--1-4, 2-2--2-5). The
continuation of this naturally dynamic pattern of succession exhibited
in boreal forests is crucial for lynx survival due to their dependence
on intermediate successional stages in many areas. In places where lynx
are dependent on mature forest stages, forest stand turnover still
occurs, but on a longer time scale requiring the ability to recruit new
mature forest stands as others are lost to fire, insect infestation, or
human activities.
Forest management techniques that thin the understory may reduce
habitat quality for hares and, thus, for lynx (Ruediger et al. 2000,
pp. 2-4--3-2; Hoving et al. 2004, pp. 291-292; Homyack et al. 2007,
entire), at least temporarily (Griffin and Mills 2007, entire). Stands
may continue to provide good snowshoe hare habitat for many years until
woody stems in the understory become too sparse, as a result of
undisturbed forest succession or management (e.g., clearcutting or
thinning) (Griffin and Mills 2007, entire). Thus, if the vegetation
potential of the stand is appropriate, a stand that is not currently in
a condition that supports abundant snowshoe hares for lynx foraging or
coarse woody debris for den sites would improve as habitat for snowshoe
hares (and thus lynx foraging) with time. Therefore, we consider lynx
habitat to include forest areas with the potential, through natural
succession, to produce high-quality snowshoe hare habitat, regardless
of their current stage of forest succession.
Snowshoe hares feed on conifers, deciduous trees, and shrubs
(Hodges 2000b, pp. 181-183), and they prefer boreal forest stands that
have a dense horizontal understory to provide food, as well as cover
and security from predators. Snowshoe hare density is correlated to
understory cover between approximately 3 to 10 ft (1 to 3 m) above the
ground or snow level (Hodges 2000b, p. 184). Habitats most heavily used
by snowshoe hares are stands with shrubs, stands that are densely
stocked, and stands at ages where branches have more lateral cover
(Hodges 2000b, p. 184; Lewis et al. 2011, pp. 561, 564-565). Generally,
earlier successional forest stages provide a greater density of
horizontal understory and support more snowshoe hares (Buehler and
Keith 1982, p. 24; Wolfe et al. 1982, pp. 668-669; Koehler 1990, pp.
847-848; Hodges 2000b, pp. 184-191; Griffin 2004, pp. 84-88). However,
snowshoe hares can be abundant in mature forests with dense
understories, particularly in the western part of the DPS range
(Griffin 2004, pp. 53-54, 88; Hodges et al. 2009, p. 876; Squires et
al. 2010, pp. 1648, 1653-1657; Berg et al. 2012, pp. 1484-1488), and
such mature forests may be a source of hares for other adjacent forest
types (Griffin and Mills 2009, pp. 1492, 1495-1496).
In Maine, snowshoe hare densities were highest in regenerating
softwood (spruce and fir) and mixed-wood stands with high conifer stem
densities (Homyack 2003, p. 195; Fuller and Harrison 2005, pp. 716,
719; Robinson 2006, p. 69). However, when exploiting high-density hare
habitats, lynx focused foraging efforts in stands with intermediate
hare densities and structural complexity that occurred at the edges of
the highest density habitat, suggesting that lynx must balance between
hare abundance and accessibility (Fuller and Harrison 2010, pp. 1276-
1277; Simons-Legaard et al. 2013, p. 574). In northeastern Minnesota,
lynx used areas with relatively higher proportions of coniferous
forest, young (10- to 30-year-old) regenerating forest, and shrubby
grassland, and these habitats supported the highest hare densities
(McCann and Moen 2011, pp. 509, 515).
In montane and subalpine forests in northwest Montana, the highest
snowshoe hare densities in summer were generally in younger stands with
[[Page 59441]]
dense forest structure, but winter hare densities were as high or
higher in mature stands with dense understory forest structure (Griffin
2004, p. 53). In Montana in winter, hare and lynx used multistoried
stands, often in older-age classes, where the tree boughs touch the
snow surface but where the stem density is low (Squires et al. 2006a,
p. 15; Griffin and Mills 2009, pp. 1492, 1495-1496; Squires et al.
2010, pp. 1648, 1653-1656). In the North Cascades of north-central
Washington, snowshoe hare density was highest in 20-year-old lodgepole
pine stands where the average density of trees and shrubs was 15,840
stems per ha (6,415 stems per ac) (Koehler 1990, pp. 847-848), and hare
density was associated with large shrubs and saplings within a stand
(Lewis et al. 2011, pp. 561, 564-565). In western Wyoming, late-seral
multistoried forests supported a greater abundance of snowshoe hares
than regenerating even-aged forests (Berg et al. 2012, p. 1).
Similarly, in Yellowstone National Park, where hares were rare and
patchily distributed, hare presence and relative abundance were linked
to mature forest stands (Hodges et al. 2009, p. 876). In western
Colorado areas used by introduced lynx, Zahratka and Shenk (2008, pp.
906, 910) estimated higher hare densities in spruce-fir stands than in
lodgepole pine, but Ivan (2011c, pp. iv, 71, 92) estimated hare
densities as highest in stands of small lodgepole pine, intermediate in
spruce-fir stands, and lowest in stands of medium lodgepole pine.
Habitats supporting abundant snowshoe hares must be present in a
sufficient proportion (though not necessarily the majority) of the
landscape to support a viable lynx population. Landscapes with more
contiguous hare habitat, or where patches of high-quality habitat occur
in a matrix with patches of similar quality, support more hares than
fragmented habitats or those in which patches of hare habitat occur
within a matrix of poor-quality habitat (Lewis et al. 2011, p. 565).
Broad-scale snowshoe hare density estimates are not available for all
of the areas being proposed as lynx critical habitat. Available
snowshoe hare density estimates are helpful in determining where
snowshoe hares exist, but each estimate is specific to both a location
and a point in time. Due to intrinsic, rapid fluctuations often seen in
snowshoe hare populations, density estimates cannot be considered
definitive for any particular area. If enough data were gathered for a
specific area over several years, these data could be used to calculate
an average density (with margins of error included). Lynx do not occur
everywhere within the range of snowshoe hares in the contiguous United
States (Bittner and Rongstad 1982, p. 146; McCord and Cardoza 1982, p.
729). This may be due to inadequate abundance, density, or spatial
distribution of hares in some places, to the absence of snow conditions
that would allow lynx to express a competitive advantage over other
hare predators, or to a combination of these factors.
Based on the information above, we identify high densities of
snowshoe hares broadly distributed across boreal forest landscapes to
be a physical or biological feature needed to support and maintain lynx
populations over time and which, therefore, is essential to the
conservation of the lynx DPS.
Snow Conditions (Other Physiological Requirements)
Snow conditions also determine the distribution of lynx and
snowshoe hares. Deep, fluffy snow conditions likely restrict potential
lynx competitors such as bobcat or coyote from effectively encroaching
on or hunting hares in winter lynx habitat. In addition to snow depth,
other snow properties, including surface hardness or sinking depth,
also influence lynx foraging success and, ultimately may be important
factors in the spatial, ecological, and genetic structuring of the
species (Stenseth et al. 2004, entire). Gonzalez et al. (2007, pp. 4,
7) compared 496 lynx locations with snow cover over the period 1966-
2005 and concluded that lynx require 4 months (December through March)
of continuous winter snow coverage.
In eastern North America, snowfall was the strongest predictor of
lynx occurrence at a regional scale (Hoving et al. 2005, p. 746, Table
5), and lynx in the northeastern United States were most likely to
occur in areas with a 10-year mean annual snowfall greater than 105 in
(268 cm) (Hoving 2001, p. 75; Hoving et al. 2005, p. 749). The Northern
Superior Uplands section of northeast Minnesota, which supports a
persistent lynx population, receives more of its precipitation as snow
than any other part of the State, and has the longest period of snow
cover and shortest growing season (Minnesota DNR 2003, p. 2). Average
annual snowfall from 1971 to 2000 in this area was generally greater
than 55 in (149 cm) (University of Minnesota 2005).
Information on average snowfall or snow depths in mountainous areas
such as the Cascade and Northern Rocky Mountains is limited because few
weather stations in these regions have measured snow fall or snow depth
over time. An important consideration in mountainous areas is that
topography strongly influences local snow conditions. For example, in
the Cascades, annual snowfall averaged 121 in (307 cm) at Mazama, WA
(elevation 2,106 ft (642 m)), and 15 in (38 cm) at Omak, WA (elevation
1,299 ft (396 m)) (Western Regional Climate Center 2013). In western
Montana areas that support lynx populations, annual snowfall averaged
90 in (229 cm) in Troy (elevation 1,950 ft (594 m)) and 120 in (305 cm)
at Seeley Lake (elevation 4,200 ft (1,280 m)) (Western Regional Climate
Center 2013).
Based on the information above, we identify winter conditions that
provide and maintain deep, fluffy snow for extended periods in boreal
forest landscapes to be a physical or biological feature needed to
support and maintain lynx populations over time and which, therefore,
are essential to the conservation of the lynx DPS.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Denning Habitat
Lynx den sites are found in mature and younger boreal forest stands
that have a large amount of cover and downed, large woody debris. The
structural components of lynx den sites are common features in managed
(logged) and unmanaged (e.g., insect damaged, wind-throw) stands.
Downed trees provide excellent cover for den sites and kittens and
often are associated with dense woody stem growth.
In northern Maine, 12 of 26 natal dens occurred in conifer-
dominated sapling stands, and 5 dens were found in mature or mixed
multistoried forest stands dominated by conifers (Organ et al. 2008, p.
1515). Modeling sub-stand characteristics of these 26 dens determined
that 2 variables, tip-up mounds of blown-down trees and visual
obscurity at 5 m from the den, were most useful for predicting lynx
den-site selection in managed forests (Organ et al. 2008, p. 1514).
Lynx essentially selected dense cover in a cover-rich area for denning.
Denning habitat was provided by blowdown, deadfalls, and root wads.
Coarse woody debris alone was not a useful predictor of lynx den-site
selection, despite its abundance, and denning habitat was not
considered limiting in northwest Maine (Organ et al. 2008, p. 1516).
Den sites in Maine often occurred at the interface of two stands of
different ages or in dense regenerating conifer stands, suggesting that
females select den sites near prey sources to minimize time spent away
[[Page 59442]]
from kittens while foraging (Vashon et al. 2012, p. 16).
In northern Minnesota, structural components of forests, such as
blowdown and deadfalls, appear to be more important than forest cover
type in determining lynx denning habitat (Interagency Lynx Biology Team
2013, p. 46). Most den sites in Minnesota were found in blowdown and
were associated with small patches of uplands surrounded by low-lying
wetland areas (Moen and Burdett 2009, pp. 5, 11). Although lowland
conifer cover types appeared to provide the forest structure used most
often for denning in northern Minnesota (Moen et al. 2008a, p. 1510),
other forest cover types were used if they contained recent blowdowns
(Moen and Burdett 2009, p. 16). Very dense horizontal cover in the
immediate vicinity of the den site also appeared to be a determinant
(Moen and Burdett 2009, p. 16). Female lynx foraged within
approximately 1.2-1.8 mi (2-3 km) of den sites when kittens were at the
den; at the scale of the foraging radius around a den site, landscape
composition contained more lowland conifer, upland conifer, and
regenerating forest than did home ranges (Moen et al. 2008a, p. 1507).
Denning habitat does not appear to be limiting in northern Minnesota
(Moen and Burdett 2009, p. 16).
In northwestern Montana, lynx generally denned in mature spruce-fir
forests among downed logs or root wads of wind-thrown trees in areas
with abundant coarse woody debris and dense understories with high
horizontal cover in the immediate areas around dens (Squires et al.
2004a, Table 3; Squires et al. 2008, pp. 1497, 1501-1505). Few dens
were located in young regenerating or thinned stands with discontinuous
canopies (Squires et al. 2008, p. 1497). Many dens had northeasterly
aspects and were farther from forest edges than random expectation
(Squires et al. 2008, p. 1497).
In the North Cascades, Washington, lynx denned in mature (older
than 250 years) stands with an overstory of Engelmann spruce, subalpine
fir, and lodgepole pine with an abundance of downed woody debris
(Koehler 1990, p. 847). In this study, all den sites were located on
north-northeast aspects (Koehler 1990, p. 847). Den site availability,
although not thought to be limiting for lynx populations in the DPS
(Moen et al. 2008a, p. 1512; Organ et al. 2008, pp. 1514, 1516-1517;
Squires et al. 2008, p. 1505), is an essential component of the boreal
forest landscapes that lynx need to satisfy a key life-history process
(reproduction).
Introduced lynx in Colorado denned at higher elevations and on
steeper slopes compared to general use areas, with den sites tending to
have northerly aspects and dense understories of coarse woody debris
(Shenk 2008, p. 2).
Based on the information above, we identify denning habitat as
described above to be a physical or biological feature needed to
support and maintain lynx populations over time and which, therefore,
is essential to the conservation of the lynx DPS.
Habitats Protected From Disturbance or Representative of the Historic
Geographical and Ecological Distributions of the Species
Climate Change
Our analyses under the Act include consideration of ongoing and
projected changes in climate. The terms ``climate'' and ``climate
change'' are defined by the Intergovernmental Panel on Climate Change
(IPCC). In 2007, the IPCC released its Fourth Assessment Report, which
represents the current scientific consensus on global and regional
climate change and the best scientific data available in this rapidly
changing field. ``Climate'' refers to the mean and variability of
different types of weather conditions over time, with 30 years being a
typical period for such measurements, although shorter or longer
periods also may be used (IPCC 2007a, p. 78). The term ``climate
change'' thus refers to a change in the mean or variability of one or
more measures of climate (e.g., temperature or precipitation) that
persists for an extended period, typically decades or longer, whether
the change is due to natural variability, human activity, or both (IPCC
2007a, p. 78). Various types of changes in climate can have direct or
indirect effects on species. These effects may be positive, neutral, or
negative and they may change over time, depending on the species and
other relevant considerations, such as the effects of interactions of
climate with other variables (e.g., habitat fragmentation) (IPCC 2007a,
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh
relevant information, including uncertainty, in our consideration of
various aspects of climate change.
Previous IPCC assessments concluded that temperatures across the
globe have increased by about 1.8 [deg]Fahrenheit (F) (1 [deg]Celsius
(C)) over the last century (IPCC 2001, p. 7). The IPCC projection for
eastern and western North America within the range of the lynx DPS is
climate warming of 1.8 [deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by
the year 2050 (IPCC 2007b, p. 889). The range of warming projected over
the next century runs from 3.6 [deg]F (2 [deg]C) to 10.8 [deg]F (6
[deg]C) for North America, with warming higher than this average in
areas that are inland, northerly, or mountainous. The IPCC concludes
that continued warming in North America, with lower snow accumulation
and earlier spring snowmelt, is very likely (IPCC 2007b, p. 887).
Climate history and projections from regional climate models for
regions within the lynx DPS corroborate global models indicating that
both eastern and western North America, including all portions of the
lynx DPS, have warmed in the last century and are likely to warm 1.8
[deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by the year 2050 (IPCC
2007b, p. 889). For example, in the Northern Rocky Mountains at Glacier
National Park, mean summer temperatures have increased 3.0 [deg]F (1.66
[deg]C) between 1910 and 1980 (Hall and Fagre 2003, pp. 134-137)
resulting in lower snowpack, earlier spring melt, and distributional
shifts in vegetation (Hall and Fagre 2003, pp. 138-139; Fagre 2005, pp.
4-9). These changes are predicted to continue and accelerate under
future climate scenarios (Hall and Fagre 2003, Fig. 7). An analysis of
potential snow cover under a range of IPCC future climate scenarios and
modeling of vegetation using a dynamic vegetation model indicates that
potential lynx habitat could decrease by as much as two-thirds in the
contiguous United States by the end of this century (Gonzalez et al.
2007, pp. 4, 7-8, 10, 13-14).
Across their worldwide distribution, lynx are dependent on deep
snow that persists for long periods of time. Warmer winter temperatures
are reducing snow pack in all portions of the lynx DPS through a
combination of a higher proportion of precipitation falling as rain and
higher rates of snowmelt during winter (Hamlet and Lettenmaier 1999, p.
1609; Brown 2000, p. 2347; Hoving 2001, pp. 73-75; Mote 2003, p. 3-1;
Christensen et al. 2004, p. 347; Knowles et al. 2006, pp. 4548-4549).
This trend is expected to continue with future warming (Hamlet and
Lettenmaier 1999, p. 1611; Christensen et al. 2004, p. 347; Mote et al.
2005, p. 48; IPCC 2007b, p. 850). The IPCC (2007b, p. 850) concludes
that ``snow season length and snow depth are very likely to decrease in
most of North America except in the northernmost part of Canada where
maximum snow depth is likely to increase.'' Shifts in the timing of the
initiation of spring runoff toward earlier dates in western North
America are also well documented (Hamlet and
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Lettenmaier 1999, p. 1609; Brown 2000, p. 2347; Cayan et al. 2001, pp.
409-410; Christensen et al. 2004, p. 347; Mote et al. 2005, p. 41;
Knowles et al. 2006, p. 4554). In addition, a feedback effect causes
the loss of snow cover due to the reflective nature of snow and the
relative heat-absorbing properties of non-snow-covered ground. This
feedback effect leads to the highest magnitude of warming occurring at
the interface of snow-covered and exposed areas, increasing the rate at
which melting occurs in spring (Groisman et al. 1994a, pp. 1637-1648;
Groisman et al. 1994b, pp. 198-200). This effect has led to the average
date of peak snowmelt to shift three weeks earlier in spring in the
Intermountain West (Fagre 2005, p. 4).
Snow accumulation and duration are expected to decline generally in
the geographic areas that contain the central and eastern portion of
the lynx DPS (IPCC 2007c, p. 891; Burns et al. 2009, p. 31). Due to the
importance to lynx of prolonged periods of deep fluffy snow, current
habitats that lose this feature would decline in value for lynx (Hoving
2001, p. 73; Carroll 2007, p. 1092; Gonzalez et al. 2007, entire).
Reduced snow depth and duration may reduce lynx's competitive advantage
over bobcats, which have similar ecology to lynx but are not as well-
adapted to hunting hares in deep fluffy snow (Hoving 2001, pp. 23-24;
Carroll 2007, p. 1102; Interagency Lynx Biology Team 2013, p. 69, 71).
Changes in temperature and rainfall patterns are expected to shift
the distribution of ecosystems northward and up mountain slopes
(McDonald and Brown 1992, pp. 411-412; Danby and Hik 2007, pp. 358-359;
IPCC 2007c, pp. 230, 232). As climate changes over a landscape, the
ecosystems that support lynx are likely to shift, tracking the change
of temperature, but with a time lag depending on the ability of
individual plant and animal species to migrate (McDonald and Brown
1992, pp. 413-414; Hall and Fagre 2003, p. 138; Peterson 2003, p. 652).
In the contiguous United States, researchers expect that lynx in
mountainous habitat will, to some extent, track climate changes by
using higher elevations on mountain slopes, assuming that vegetation
communities supportive of lynx and hare habitats also move upslope
(Gonzalez et al. 2007, p. 7).
Future of Lynx Habitat
In 2003, we determined that climate change was not a threat to lynx
within the contiguous U.S. DPS because the best available science we
had at that time (Hoving 2001) was too uncertain in nature (68 FR
40083). Since that time, new information on regional climate changes
and potential effects to lynx habitat has been developed (e.g., Knowles
et al. 2006, pp. 4545-4559; Carroll 2007, pp. 1098-1102; Danby and Hik
2007, pp. 358-359; Gonzalez et al. 2007, entire; Burns et al. 2009, p.
31; Johnston et al. 2012, pp. 6-13), and much of this new information
suggests that climate change is likely to be a significant issue of
concern for the future conservation of the lynx DPS. These studies
predict lynx distribution and habitat are likely to shift upward in
elevation within its currently occupied range and recede northward as
temperatures increase (Gonzalez et al. 2007, pp. 7, 13-14, 19; Jacobson
et al. 2009, pp. 26-27, 30-31; Vashon et al. 2012, pp. 60, 64;
Interagency Lynx Biology Team 2013, p. 69). Climate modeling suggests
that lynx habitat and populations are anticipated to decline
accordingly (Carroll 2007, pp. 1098-1102) and may disappear completely
from parts of the range of the DPS by the end of this century (Johnston
et al. 2012, pp. 6-13). Climate change is expected to substantially
reduce the amount and quality of lynx habitat in the contiguous United
States, with patches of high-quality habitat becoming smaller, more
fragmented, and more isolated (Carroll 2007, pp. 1099-1100; Johnston et
al. 2012, p. 11). Remaining lynx populations would likely be smaller
than at present and, because of small population size and increased
isolation, populations would likely be more vulnerable to stochastic
environmental and demographic events (Carroll 2007, pp. 1100-1103).
Aside from predicted elevational and latitudinal shifts in areas
currently occupied by lynx, we are aware of no models that predict
specific areas not currently of value for lynx that will become so as a
result of climate-induced changes (e.g., Johnston et al. 2012, p. 11).
Therefore, at this time, we find it appropriate to propose critical
habitat for the lynx only in areas occupied by the DPS that currently
contain the physical and biological features essential to the
conservation of the lynx. Although it is not within our authority to
designate critical habitat in Canada (in the event that the range of
lynx recedes northward out of the contiguous United States), the
revised critical habitat units in this proposed rule include, to the
extent practicable, higher elevation habitats within the range of the
DPS that would facilitate long-term lynx adaptation to an elevational
shift in habitat should one occur. As climate change scenarios and
ecosystem responses become more regionally certain, revisions to
critical habitat may be necessary to accommodate shifts in the range of
the essential physical and biological features and any corresponding
shift in the range of lynx in the contiguous United States.
Primary Constituent Element for Canada Lynx
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of lynx in areas occupied at the time of listing, focusing
on the features' primary constituent elements (PCEs). We consider PCEs
to be the elements of physical or biological features that, when laid
out in the appropriate quantity and spatial arrangement to provide for
a species' life-history processes, are essential to the conservation of
the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine, as we did in the 2009 final
critical habitat rule, that the PCE specific to lynx in the contiguous
United States is:
(1) Boreal forest landscapes supporting a mosaic of differing
successional forest stages and containing:
(a) Presence of snowshoe hares and their preferred habitat
conditions, which include dense understories of young trees, shrubs or
overhanging boughs that protrude above the snow, and mature
multistoried stands with conifer boughs touching the snow surface;
(b) Winter conditions that provide and maintain deep fluffy snow
for extended periods of time;
(c) Sites for denning that have abundant coarse woody debris, such
as downed trees and root wads; and
(d) Matrix habitat (e.g., hardwood forest, dry forest, non-forest,
or other habitat types that do not support snowshoe hares) that occurs
between patches of boreal forest in close juxtaposition (at the scale
of a lynx home range) such that lynx are likely to travel through such
habitat while accessing patches of boreal forest within a home range.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the
appropriate quantity and spatial arrangement of the features' PCE
sufficient to support the recovery of the species. For lynx, the
distinction
[[Page 59444]]
between areas that may contain some of each of the physical and
biological features described above and areas that have all of the
physical and biological features, each in adequate quantities and
spatial arrangements to support populations, is very important for the
reasons discussed below.
Many places in the contiguous United States have (1) some amount of
boreal forest supporting a mosaic of successional stages, (a) snowshoe
hares and their habitats, (b) deep, fluffy snow for extended periods,
(c) denning habitat, and (d) other habitat types interspersed among
boreal forest patches, but which do not and cannot support lynx
populations. That is, not all boreal forest landscapes supporting a
mosaic of differing successional forest stages contain the physical and
biological features essential to lynx in adequate quantities and
spatial arrangements on the landscape to support lynx populations over
time. Lynx may occasionally (even regularly, if intermittently) occur
temporarily in places that do not contain all of the elements of the
PCE, especially during ``irruptions'' of lynx into the northern
contiguous United States following hare population crashes in Canada
(as described above under Species Information and below under Criteria
Used To Identify Critical Habitat). However, because lynx reproduction
and recruitment in such places, if any occur at all, do not offset
mortality and dispersal, these areas are likely population ``sinks,''
and as such do not contribute to lynx conservation or recovery. We have
determined that these population ``sink'' areas do not contain the PCE
and, therefore, are not essential to the conservation and recovery of
the lynx DPS.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The need for specific management direction and conservation
measures for lynx was recognized during development of the interagency
Lynx Conservation Assessment and Strategy (LCAS; Ruediger et al. 2000,
entire). The U.S. Forest Service (USFS), Bureau of Land Management
(BLM), National Park Service, and the Service developed the LCAS using
the best available science at the time specifically to provide a
consistent and effective approach to conserve lynx and lynx habitat on
Federal lands. The overall goals of the 2000 LCAS were to recommend
lynx conservation measures, to provide a basis for reviewing the
adequacy of USFS and BLM land and resource management plans with regard
to lynx conservation, and to facilitate conferencing and consultation
under section 7 of the Act. The LCAS identified an inclusive list of 17
potential risk factors for lynx or lynx habitat that could be addressed
under programs, practices, and activities within the authority and
jurisdiction of Federal land management agencies. The risks identified
in the LCAS were based on effects to individual lynx, lynx populations,
or to lynx habitat.
Potential risk factors the LCAS addressed that may affect lynx
productivity included: timber management, wildland fire management,
recreation, forest/backcountry roads and trails, livestock grazing, and
other human developments. Potential risk factors the LCAS addressed
that may affect lynx mortality included: trapping, predator control,
incidental or illegal shooting, and competition and predation as
influenced by human activities and highways. Potential risk factors the
LCAS addressed that may affect lynx movement included: highways,
railroads and utility corridors, land ownership pattern, and ski areas
and large resorts. Other potential large-scale risk factors for lynx
addressed by the LCAS included: fragmentation and degradation of lynx
refugia, lynx movement and dispersal across shrub-steppe habitats, and
habitat degradation by nonnative and invasive plant species.
With the listing of the lynx DPS in 2000, Federal agencies across
the contiguous U.S. range of the lynx were required to consult with the
Service on actions that may affect lynx. The LCAS assisted Federal
agencies in planning activities and projects in ways that benefit lynx
or avoid adverse impacts to lynx or lynx habitat. In most cases, if
projects were designed that failed to meet the standards in the LCAS,
the biologists using the LCAS would arrive at an adverse effect
determination for lynx. The 2000 LCAS used the best information
available at the time to ensure that the appropriate mosaic of habitat
would be provided for lynx conservation on Federal lands. Although the
LCAS was written specifically for Federal lands, many of the
conservation measures were considered equally applicable to non-Federal
lands.
A Conservation Agreement between the USFS and the Service (U.S.
Forest Service and U.S. Fish and Wildlife Service 2000, entire) and a
similar Agreement between the BLM and the Service (Bureau of Land
Management and U.S. Fish and Wildlife Service 2000, entire) committed
the USFS and BLM to use the LCAS in determining the effects of actions
on lynx until Forest and Land Management Plans were amended or revised
to adequately conserve lynx. A programmatic biological opinion pursuant
to section 7 of the Act confirmed the adequacy of the LCAS and its
conservation measures to conserve lynx, and concluded that USFS and BLM
land management plans, as implemented in accordance with the
Conservation Agreements, would not jeopardize the continued existence
of lynx (U.S. Fish and Wildlife Service 2000, entire).
Lynx conservation depends on management that supports boreal forest
landscapes of sufficient size to encompass the temporal and spatial
changes in habitat and snowshoe hare populations to support
interbreeding lynx populations over time. At the time it was written,
the LCAS recommended the most appropriate level of management or
protection for lynx. The LCAS conservation measures addressed risk
factors affecting lynx habitat and lynx productivity and were designed
to be implemented at the scale necessary to conserve lynx. This level
of management is appropriate for Federal lands because they account for
the majority of high-quality lynx habitat in the contiguous United
States (except for Maine), and also because the inadequacy, at the time
of listing, of regulatory mechanisms to conserve lynx on these lands
was the primary reason for listing the lynx as a threatened species
under the Act.
After the LCAS was written, research on lynx, hares, and their
habitats and distributions continued throughout the range of the DPS.
The Service and land management agencies recognized that, as new
scientific information became available, it should supplement the LCAS
and be taken into account by land managers. The USFS considered such
new information when it proposed to revise 18 Forest Plans under a
programmatic plan amendment called the Northern Rocky Mountain Lynx
Amendment (NRLA) (U.S. Forest Service 2007). Some of the LCAS standards
were changed to guidelines because the Service determined that some
risk factors were not negatively affecting the lynx DPS as a whole. For
example, after publication of the LCAS, lynx studied in the contiguous
United States were shown to use a variety of sites and conditions for
denning, and
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den site availability is not believed to be a limiting factor for lynx
in the DPS (U.S. Fish and Wildlife Service 2007, pp. 48-49; Interagency
Lynx Biology Team 2013, p. 30). Similarly, after evaluating Bunnell et
al. (2006, entire) and Kolbe et al. (2007, entire), the Service
determined that the best information available did not indicate that
compacted snow routes increased competition from other species to
levels that adversely impact lynx populations in the NRLA area (U.S.
Fish and Wildlife Service 2007, pp. 53-55). Also since the LCAS was
written, new information revealed the importance of multistoried stands
for lynx in western areas (Squires et al. 2006a, p. 15); based on this,
the USFS adopted a standard in the NRLA not identified in the LCAS for
conserving such stands.
In addition to diverging from the standards in the LCAS because of
new information, the NRLA also deviated from the LCAS by allowing
additional fuels-reduction projects in areas within the wildlands-
urban-interface (WUI). In our analysis of the NRLA, we determined that
the management in the NRLA area would provide for the recovery of lynx
in these areas by addressing the major reason we listed the lynx in
2000--the lack of guidance for conservation of lynx in Federal land
management plans. Consultation under section 7 of the Act was completed
for the NRLA in 2007, and it is now official land management direction
for the National Forests that adopted it. In 2008, the USFS and the
Service coordinated on the development of the similar Southern Rocky
Mountains Lynx Amendment to guide section 7 consultation and
conservation of lynx introduced into Colorado and their potential
habitats on seven National Forests in Colorado and southern Wyoming
(U.S. Fish and Wildlife Service 2008, entire; U.S. Forest Service
2008a, entire).
Federal agencies across most of the range of the DPS have amended
or revised land management plans to include specific management
direction to conserve lynx and lynx habitat (Interagency Lynx Biology
Team 2013, p. 88). This direction was developed in accordance with the
National Forest Management Act (NFMA) of 1976 and the regulations that
implement the statute (36 CFR 219.22), which requires public review and
comment as part of the decision-making process. The USFS has completed
such amendments or revisions to Land and Resource Management Plans in
its Eastern, Northern, Rocky Mountain, and Intermountain regions. In
the Pacific Northwest Region, forest plans for national forests with
lynx habitat are currently being revised (Interagency Lynx Biology Team
2013, p. 4).
To address the substantial volume of new information on lynx,
hares, and their habitats and distributions that has accumulated from
more than a decade of continuing research throughout the range of the
DPS, the LCAS, completed in January of 2000 and revised in August of
2000, was again revised in 2013 (Interagency Lynx Biology Team 2013,
entire). The current revision synthesizes all the available research
relevant to lynx, their primary prey, and anthropogenic influences on
the conservation of lynx in the contiguous United States. Most USFS
Land and Resource Management Plans within the current range of lynx
have been formally amended or revised to incorporate lynx and hare
conservation standards and guidelines. Standards and guidelines were
primarily based on those in the 2000 LCAS, but many Forests used the
LCAS to develop goals, objectives, and standards and guidelines
formulated or adapted for specific geographic areas or Forest units.
Therefore, the Lynx Biology Team deemed it appropriate to abandon the
use of prescriptive measures such as those in the 2000 LCAS, and in the
2013 revision provide recommended conservation measures to be
considered in project planning and implementation and which may help
inform future amendments or revisions of USFS forest plans.
The 2013 LCAS revision presents the most current source of such
information and will continue to inform the special management
considerations necessary for conserving lynx on Federal lands. Notably,
the 2013 revision concludes that recent studies in the contiguous
United States generally suggest that lynx are rarer and more patchily
distributed in the western U.S. and Great Lakes regions, and more
abundant in Maine, than previously thought (Interagency Lynx Biology
Team 2013, p. 23). It recommends focusing limited conservation
resources on those ``. . . relatively limited areas that support
persistent lynx populations and have evidence of recent reproduction,
with less stringent protection and greater flexibility given in areas
that only support lynx intermittently'' (Interagency Lynx Biology Team
2013, p. 2). By proposing critical habitat only in areas that contain
the PCE (have all physical and biological features in adequate
quantities and spatial arrangements), the Service, with this rule,
adopts the LCAS recommendation to focus conservation in areas capable
of supporting lynx populations over time.
The LCAS was developed to provide a consistent and effective
approach to conserve lynx on Federal lands in the conterminous United
States. In northern New England, the only place the LCAS would apply is
on Federal land in the White Mountain National Forest. However, in
northern New England, most lynx habitat is on private commercial timber
lands, and lynx populations there occur in extensive boreal forest
landscapes where large, contiguous stands of young, regenerating
spruce-fir habitat are prevalent (due to past clearcut timber harvest)
and support high densities of snowshoe hares. Although lynx and hare
habitats were likely created historically by natural forest
disturbances (e.g., fire, insects and disease, and windthrow), the
current extensive habitats in northern Maine are the result of large-
scale industrial forest management. Maintaining lynx populations there
will require forest management practices that produce extensive stands
supporting high hare densities into the future. The Service developed
Canada Lynx Habitat Management Guidelines for Maine (McCollough 2007,
entire), which specify the special management--recommendations on land
use, forest conditions, landscape conditions, and silviculture
requirements--needed to support lynx populations based on the best
available science (see discussion of Healthy Forest Reserve Program
under Exclusions, below, for further details).
Assuring adequate management of most lynx habitat on private lands
in northern New England has been limited success. Extensive
clearcutting in the 1970s and 1980s to salvage conifers damaged by
spruce budworm created much of the habitat currently used by lynx. The
Maine Forest Practices Act of 1989 regulated clearcuts, resulting in a
shift in timber-harvesting practices toward a greater reliance on
partial harvesting, which supports lower hare densities (Robinson 2006,
entire). Without forest management planning, likely silviculture
scenarios are expected to cause declines of 55-65 percent in lynx
habitat and populations by 2032 (Simons 2009, p. 217). Four northern
Maine landowners with collective ownership of approximately 8.5 percent
of occupied lynx habitat have developed lynx forest management plans
through the Natural Resource Conservation Service's Healthy Forest
Reserve Program. These landowners commit to employ the Service's lynx
habitat management guidelines (McCollough 2007, entire), which include
greater use of even-aged
[[Page 59446]]
silviculture that creates large patches of high-quality hare habitat
and landscape hare densities that will continue to support lynx. All
other private lands occupied by lynx in Maine currently lack specific
forest management plans for lynx, indicating a continuing need for
special management considerations there.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
do not currently propose to designate any areas outside the geographic
area occupied by lynx at the time of listing because we have determined
that occupied areas are sufficient for the conservation of the lynx
DPS.
To determine those specific areas occupied by the species at the
time it was listed on which are found those physical or biological
features essential to the conservation of the species, as required by
section 3(5)(a)(i) of the Act, we reviewed the approach to the
conservation of the lynx provided in the LCAS (Ruggiero et al. 2000,
entire; Interagency Lynx Biology Team 2013, entire); the Recovery
Outline (U.S. Fish and Wildlife Service 2005, entire); information from
State, Federal and Tribal agencies; and information from academia and
private organizations that have collected scientific data on lynx. We
reviewed available information that pertains to the habitat
requirements of lynx and its principal prey, the snowshoe hare. This
information included data in reports submitted by researchers holding
recovery permits under section 10(a)(1)(A) of the Act; research
published in peer-reviewed articles or presented in academic theses;
agency reports and unpublished data; and various Geographic Information
System (GIS) coverages (e.g., land cover type information, land
ownership information, snow depth information, topographic information,
locations of lynx obtained from radio- or GPS-collars and locations of
lynx confirmed via DNA analysis or other verified records).
In proposing critical habitat for the lynx, we used the best
scientific data available to evaluate areas that possess appropriate
quantities and spatial arrangements of the physical and biological
features essential to the conservation of the DPS and that may require
special management considerations or protection. In evaluating areas as
critical habitat, we first conducted a two-part analysis: (1) We relied
on information used during listing of the species, and any available
newer information, to delineate the geographic area occupied by the
species at the time of listing, and (2) we used the best available
scientific information to determine which occupied areas contain the
physical and biological features in adequate quantities and spatial
arrangements to support lynx populations over time, thus demonstrating
that they are essential to the conservation of the lynx.
To delineate critical habitat for lynx, we must be able to
distinguish, across the extensive range of the species in the
contiguous United States, areas that contain all essential physical and
biological features in adequate quantities and spatial distributions to
support lynx populations over time (areas with the PCE, as described
above under ``Primary Constituent Element for Canada Lynx'') from other
areas that may contain some or all of the features but in inadequate
quantities and/or spatial arrangements of one or more feature (and
which, therefore, by definition do not contain the PCE). However, the
scientific literature does not confer precisely what quantities and
spatial arrangements of the physical and biological features are needed
to support lynx populations throughout the range of the DPS. We lack
range-wide site-specific information or tools that would allow us to
analyze boreal forests across much of the range of the DPS and
determine which specific areas contain the spatial and temporal mosaic
of habitats and hare densities that lynx populations need to persist.
Delineating critical habitat for lynx is complicated by a number of
factors related to (1) the animals' biology and population dynamics;
(2) the biology and population dynamics of its primary prey, the
snowshoe hare; (3) the patchily distributed, temporally and spatially
dynamic successional habitat features that shift continually across
landscapes, and which drive populations of both lynx and hares at the
southern peripheries of both species' ranges; (4) our imperfect
understanding of the above factors; and (5) the resulting difficulty in
determining with certainty and quantifying which specific habitat
features, in what specific amounts and spatial and temporal
arrangements, are necessary to provide the boreal forest mosaic
essential to lynx conservation. The task is further complicated by an
imperfect historical record of lynx occurrence in the contiguous United
States. Finally (but importantly), the differences between areas
capable of supporting lynx populations over time and other areas that
look like they should, but do not, are often subtle and cannot be
distinguished over broad areas using traditional vegetation/habitat
mapping, remote sensing (aerial photos, satellite data), or available
habitat modeling techniques (e.g., see Ivan 2011a, p. 27).
As described above (see Distribution and Biology), lynx populations
throughout most of their range are irruptive. In central Canada where
they inhabit a large, relatively homogenous boreal forest landscape,
lynx respond quickly to cyclic fluctuations in hare populations. When
hares are abundant, lynx respond with increased productivity and
survival and, therefore, increased population sizes (Slough and Mowat
1996, pp. 955-956; Mowat et al. 2000, pp. 266, 272). Typically, after
hare numbers peak, they begin to decline rapidly and dramatically,
forcing large numbers of lynx to disperse--to abandon home ranges in
areas with dwindling prey bases no longer capable of supporting the
large number of lynx that resulted from the earlier prey abundance
(Slough and Mowat 1996, pp. 956-957; Mowat et al. 2000, pp. 291-294).
These periodic mass dispersal events (irruptions) appear to start at
the core of the species' range in Canada and radiate outward (McKelvey
et al. 2000a, p. 239). At the southern periphery of the lynx's range,
these events sometimes result in large numbers of lynx dispersing into
a variety of habitats in some areas of the northern contiguous United
States in search of adequate food resources (Thiel 1987, entire;
McKelvey et al. 2000a, pp. 239-242). Some of these dispersing lynx
survive and reestablish home ranges elsewhere, but many die en route,
often soon after initiating dispersal (Mowat et al. 2000, p. 293), and
some appear to remain temporarily in areas not capable of supporting
all of their life-history needs over time (Thiel 1987, entire).
Canadian populations of lynx have historically been the most
reliable source for lynx populations in many areas of the contiguous
United States, tending to replenish them within the DPS about every ten
years as the lynx/hare cycle ebbs and flows (McKelvey et al. 2000a,
entire). These events can be pictured as a ``wave'' of lynx that
occasionally washes over many of the northern tier of States. Over time
the wave recedes, leaving remnant lynx populations or ``puddles'' of
lynx in a
[[Page 59447]]
variety of habitats. These puddles of lynx shrink over time as many
lynx perish in inhospitable habitats or disperse elsewhere in search of
adequate hare densities. When these waves recede, lynx may disappear
abruptly from areas of unsuitable habitat or more gradually from
suboptimal or marginal habitats. In both cases, lynx perish in or leave
many of the places where they occurred temporarily because the habitats
in such places, due to insufficient prey densities or inadequacy of one
or more other physical or biological features, are incapable of
supporting them over time. In a few places in the northern contiguous
United States, in landscapes with high snowshoe hare densities and
adequate quantities and spatial arrangements of other essential
physical and biological features, the puddles tend to persist. It is
these remnant ``puddle'' areas that demonstrate the capacity to support
lynx population resiliency--the ability of lynx to persist through lows
in their own populations and those of their primary prey--that we have
determined are essential to conservation of the contiguous U.S. lynx
DPS.
In terms of lynx conservation, it is important to distinguish
between areas that support lynx populations over time (the lasting
``puddles'') and areas in which lynx may occasionally and temporarily
(even if somewhat regularly) occur during and for some time after
population irruptions (the temporary or shrinking ``puddles''). The
former are likely ``source'' subpopulations within the lynx
metapopulation. In addition to their ability to persist through lows in
hare and lynx numbers, those areas, during times of hare abundance,
produce excess lynx that may either subsequently bolster the local
population or disperse into adjacent areas, should habitats and hare
numbers in those areas become favorable. The latter areas are likely
``sinks''--places where lynx may occasionally occur temporarily but
where reproduction and recruitment, if any occur at all, are unlikely
to offset mortality. Such areas do not produce excess lynx and,
therefore, do not contribute to the health and stability of the
metapopulation.
Lynx are wide-ranging animals that regularly make long-distance
movements through both suitable and unsuitable habitats. They also are
habitat and prey specialists, inferring natural selection pressures
favoring the ability to identify, locate, and occupy habitats conducive
to survival and reproduction. The historic record shows that lynx
occurred only occasionally in some parts of the southern periphery of
its range in the contiguous United States during and for variable lag
times after the wave-like population irruptions described above, with
long periods of apparently complete absence between irruptions
(McKelvey et al. 2000a, entire). This finding suggests that lynx
dispersing from areas where hare numbers were declining arrived at many
such places looking for but not finding the physical and biological
features they needed to survive over the long term (Mowat et al. 2000,
p. 293). Additionally, lynx were listed under the Act because
regulatory mechanisms at the time were deemed inadequate to conserve
lynx habitats in the places they did occur, not because of any
documented population decline or range contraction in the contiguous
United States. For the reasons given above, we conclude it is unlikely
that there are areas within the DPS range that contain the PCE (i.e.,
adequate amounts and spatial arrangements of all essential physical and
biological features) that lynx have been unable to locate and occupy.
We further conclude that areas supporting persistent lynx populations
within the range of the DPS are unlikely to have remained undetected.
Finally, the Act indicates that the function of critical habitat is
to provide for the recovery of the species. We designate critical
habitat in areas that contain, based on our assessment of the best data
available to us, the physical and biological features in the
appropriate quantities and spatial arrangements (the PCE), to provide
for the conservation of the species. For some species, critical habitat
may include unoccupied areas if the currently occupied areas are not
sufficient to recover the species. For other species, critical habitat
may be a subset of the occupied areas, if the occupied areas have
differences in quality that relate to their ability to contribute
meaningfully to recovery of the species. The Act does not require that
we designate critical habitat in every area that has some components or
some amount of the PCE, nor does it require that we demonstrate that
all other areas lack the PCE. We make these determinations on a case-
by-case basis based upon the best information available as to what the
species needs for recovery.
By specifically allowing revisions to critical habitat designations
if and when new information becomes available, the Act recognizes the
potential limitations of the best available information at any point in
time. For lynx, we have determined that not all areas where lynx
occasionally occur are necessary for recovery. We believe that lynx
recovery in the contiguous United States can be accomplished by
conserving high-quality habitat occupied by persistent lynx populations
across the range of the DPS, and addressing the threats to lynx in
those areas.
In summary, lynx have a demonstrated ability to disperse large
distances in search of favorable habitats. Further, natural selection
theory implies the ability of lynx to locate and occupy areas conducive
to their survival and population viability. Nonetheless, due to
inherent swings in densities of their primary prey, lynx regularly
occur temporarily in habitats that are not capable of supporting
populations over time, usually during irruptions after cyclic hare
population crashes in Canada. In proposing critical habitat for lynx,
it is essential to distinguish between areas capable of supporting
populations over time (areas with all essential physical and biological
features in adequate quantities and spatial arrangements and which,
therefore, demonstrably contain the PCE) and areas that may have some
or all of the features but with inadequate quantities and/or spatial
arrangements of one or more of them (and which, therefore, do not
contain the PCE). Exactly how much of each of the physical and
biological features must be present and specifically how each must be
spatially arranged within boreal forest landscapes to support lynx
populations over time is unknown. In the absence of site-specific
information, we do not have tools or techniques (e.g., remote sensing
or vegetation mapping technologies of adequate resolution) that would
allow us to distinguish across broad landscapes throughout all of the
range of the DPS between those areas that contain the PCE and other
areas that contain the physical and biological features but in
inadequate quantity and/or spatial arrangement. Nonetheless, we use the
best available information to identify where the physical and
biological features occur in adequate quantity and spatial arrangement
to provide for the conservation of the species. Within this context, we
developed the strategy described below for identifying, delineating,
and proposing to designate critical habitat for the contiguous U.S. DPS
of the Canada lynx.
The focus of our strategy in considering lands for designation as
critical habitat is on boreal forest landscapes of sufficient size to
encompass the temporal and spatial changes in habitat and snowshoe hare
populations to support interbreeding
[[Page 59448]]
lynx populations over time. These factors are included in the PCE for
lynx. As defined in the Recovery Outline, areas that meet these
criteria and have recent evidence of reproduction are considered ``core
areas'' for lynx (U.S. Fish and Wildlife Service 2005, pp. 3-4).
In determining the geographic area occupied by the species at the
time of listing, we used data providing verified evidence of lynx
occurrence. We eliminated areas from consideration in two ways: (1)
areas outside the known historical range and (2) data older than 1995
were not considered valid to our assessment of areas occupied by lynx
populations at the time of listing. We used data on the known
historical range of the lynx (e.g., McKelvey et al. 2000a, pp. 207-232;
Hoving et al. 2003, entire) to eliminate areas outside the historical
range of the species.
We then focused on records since 1995 to ensure that this critical
habitat designation is based on the data that most closely represent
the current status of lynx in the contiguous United States and the
geographical area known to be occupied by the species at the time of
listing. Although the average lifespan of a wild lynx is not known, we
assumed that a lynx born in 1995 could have been alive in 2000 or 2003,
when the final listing rule and the clarification of findings were
published. Data after 1995 were considered a valid indicator of
occupancy at the time of listing. Recent verified lynx occurrence
records were provided by Federal research entities, State wildlife
agencies, academic researchers, Tribes, and private individuals or
organizations.
We used only verified lynx records, because we wanted to rely on
the best available data to evaluate specific areas and their features
for critical habitat designation. The reliability of lynx occurrence
reports can be questionable because the bobcat, a common species in
much of the range of the lynx DPS, can easily be confused with the
lynx. Additionally, many surveys are conducted by snow tracking in
which correct identification of tracks can be difficult because of
variable conditions affecting the quality of the track and variable
expertise of the tracker. Our definition of a verified lynx record is
based on McKelvey et al. (2000a, p. 209): (1) an animal (live or dead)
in hand or observed closely by a person knowledgeable in lynx
identification, (2) genetic (DNA) confirmation, (3) snow tracks only
when confirmed by genetic analysis (e.g., McKelvey et al. 2006,
entire), or (4) location data from radio or GPS-collared lynx.
Documentation of lynx reproduction consists of lynx kittens in hand, or
observed with the mother by someone knowledgeable in lynx
identification, or snow tracks demonstrating family groups traveling
together, as identified by a person highly knowledgeable in
identification of carnivore tracks. However, we made an exception and
accepted snow track data from Maine, New Hampshire, and Vermont because
of the stringent protocols, the confirmation of lynx tracks by trained,
highly-qualified biologists, and the minimal number of species in the
area with which lynx tracks could be misidentified (Maine Dept. of
Inland Fisheries and Wildlife 2003, entire).
To define critical habitat according to section 3(5)(A) of the Act,
we then delineated, within the geographical area occupied by the
species at the time of listing, areas containing physical and
biological features essential to the conservation of the lynx. The
adequacy of the quantities and spatial arrangements of the physical and
biological features (as defined above) essential to the conservation of
the DPS is informed by the recovery outline for the species (as
discussed below), the nature of the threats in a particular geographic
area, and the conservation needs for the species in a particular
geographic area.
In the North Cascades and Northern Rockies, the features essential
to the conservation of lynx, the majority of lynx records, and the
boreal forest types are typically, though not always, found above 4,000
ft (1,219 m) in elevation (McKelvey et al. 2000b, pp. 243-245;
McAllister et al. 2000, entire). Thus, we limited the delineation of
critical habitat to lands above this elevation unless we had habitat
data indicating that high-quality habitat exists below this elevation.
Additionally, in the North Cascades, features essential to the
conservation of the lynx and the majority of the lynx records occur
east of the crest of the Cascade Mountains.
Application of the Criteria to the Southern Rocky Mountains;
Certain National Forests in Idaho and Montana; and Northern New
Hampshire, Northern Vermont, and Eastern and Western Maine
As described above under Previous Federal Actions, the District
Court for the District of Montana found several flaws with our 2009
critical habitat designation for lynx. The following section discusses
the issues raised by the court. We also provide an evaluation of the
recently documented small breeding populations of lynx in northern New
Hampsire, northern Vermont, and eastern and western Maine.
Colorado and the Southern Rocky Mountains
The Montana District Court found that we failed in our 2009
designation to determine whether ``areas occupied by lynx in Colorado
possess the physical and biological features essential to the
conservation of the species.''
In the Recovery Outline, we defined six core areas for lynx as
those having both persistent verified records of lynx occurrence over
time and recent evidence of reproduction (U.S. Fish and Wildlife
Service 2005, pp. 3-5, 20-21). We also defined the Southern Rocky
Mountains of Colorado and southern Wyoming as a ``provisional'' core
area because it contained an introduced lynx population that had
demonstrated reproduction (U.S. Fish and Wildlife Service 2005, p. 4).
``Provisional'' means: ``accepted or adopted tentatively; conditional;
or temporary.'' In our 2009 critical habitat designation, after careful
evaluation of the historic record of verified lynx occurrence in
Colorado and the Southern Rockies, we determined that there was no
compelling evidence that the area had ever supported lynx populations
over time and that, therefore, it did not likely contain the PCE and
did not meet our criteria for designating critical habitat (74 FR
8641). For reasons that are described in more detail below, the
available data do not support that Colorado and the Southern Rockies
contain the physical and biological features essential to lynx in
adequate quantities, quality, and spatial arrangements to support lynx
populations over time, and we provide what evidence is available to
determine whether the area, or any parts of it, contain the PCE.
In 1999, just prior to lynx being listed under the Act, the
Colorado Division of Wildlife (now Colorado Parks and Wildlife (CPW))
began an intensive effort to establish a lynx population in Colorado,
eventually releasing 218 wild-caught Alaskan and Canadian lynx from
1999 to 2006 (Devineau et al. 2010, p. 524). At least 122 (56 percent)
of the introduced lynx died by June of 2010 (Shenk 2010, pp. 1, 5), but
others survived and established home ranges in Colorado, produced
kittens in some years, and now are distributed throughout forested
areas of western Colorado. Some lynx from this introduced population
have also traveled into northern New Mexico, eastern Utah, and southern
and western Wyoming, though no reproduction outside of Colorado has
been documented by these dispersers.
The CPW has determined the lynx introduction effort to be a success
based
[[Page 59449]]
on attainment of several benchmarks (e.g., high post-release survival,
low adult mortality rates, successful reproduction, recruitment equal
to or greater than mortality over time; Ivan 2011a, p. 21 and 2011b, p.
11), but acknowledges that the future persistence of the population is
uncertain and hinges on the assumption that patterns of annual
reproduction and survival observed as of 2010 repeat themselves during
the next 20 or more years (Shenk 2008, p. 16; Shenk 2010, pp. 2, 5-6,
11). However, CPW has discontinued the intensive monitoring necessary
to determine if these patterns of reproduction and survival will
persist over that time (Colorado Parks and Wildlife 2012, p. 1),
instead embarking on a passive monitoring program to detect lynx
presence (Ivan 2011b, entire).
Although parts of Colorado and the Southern Rocky Mountains clearly
contain some (perhaps all) of the physical and biological features lynx
need, available evidence does not indicate that the area, or any parts
of it, contain the features in the quantities, quality, and spatial
arrangement necessary to provide for the conservation of the species
(i.e., to support lynx populations over the long term). The Southern
Rocky Mountains (western Colorado, northern New Mexico, and southern
Wyoming) are on the southern limit of the species' range and contain
marginal lynx habitat (74 FR 8619), are disjunct from lynx habitats in
the United States and Canada (McKelvey et al. 2000a, p. 230; 68 FR
40090; Devineau et al. 2010, p. 525; Interagency Lynx Biology Team
2013, pp. 50, 54), and have patchily distributed habitat that limits
snowshoe hare abundance (Interagency Lynx Biology team 2013, p. 54).
The nearest lynx population occurs in the Greater Yellowstone Area,
which supports a small, low density population also disjunct from other
lynx populations and which is unlikely to regularly supply dispersing
lynx to the Southern Rockies. We previously determined that the
Southern Rockies' distance and isolation from other lynx populations
and habitats substantially reduce the potential for lynx from northern
populations to naturally augment or colonize the area, that the
immigration necessary to maintain a local lynx population is,
therefore, naturally precluded, and that the contribution of the
Southern Rockies to the persistence of lynx in the contiguous United
States is presumably minimal (68 FR 40100-40101).
Dolbeer and Clark (1975, p. 539) estimated 0.30 hares per ac (0.73
hares per ha) on their study area in Summit County in central Colorado.
Reed et al. (1999, unpublished, as cited by Hodges (2000b, p. 185))
reported hare densities in Colorado ranging from 0.02 to 0.19 hares per
ac (0.05 to 0.46 hares per ha). In areas used by introduced lynx in
west-central Colorado, Zahratka and Shenk (2008, pp. 906, 910) reported
hare densities that ranged from 0.03 to 0.5 hares per ac (0.08 to 1.32
hares per ha) in mature Engelmann spruce-subalpine fir stands and from
0.02 to 0.14 hares per ac (0.06 to 0.34 hares per ha) in mature
lodgepole pine stands. The authors cautioned against comparing their
results to other hare density estimates, as their use of the ``mean
maximum distance moved'' method may have underestimated effective area
trapped (Zahratka and Shenk 2008, p. 911), potentially resulting in
overestimates of hare density. In ``purportedly good'' hare habitat
also in west-central Colorado in the area used by introduced lynx, Ivan
(2011c, pp. iv-v, 71, 92) estimated summer hare densities of 0.08 to
0.27 hares per ac (0.2 to 0.66 hares per ha) in stands of ``small''
lodgepole pine, 0.004 to 0.01 hares per ac (0.01 to 0.03 hares per ha)
in ``medium'' lodgepole pine, and 0.004 to 0.1 hares per ac (0.01 to
0.26 hares per ha) in spruce-fir stands. The author reported that hare
densities were less than 0.4 hares per ac (< 1.0 hare per ha) in all
stand types and all seasons and, in most cases, were less than 0.12
hares per ac (0.3 hares per ha), and no combination of survival and
recruitment estimates from any stand type in any year would result in a
self-sustaining hare population, though hare recruitment may have been
underestimated (Ivan 2011c, pp. 95, 99).
Ruggiero et al. (2000, pp. 446-447) concluded that a snowshoe hare
density greater than 0.2 hares per ac (0.5 hares per ha) may be
necessary for lynx persistence. Steury and Murray (2004, pp. 127, 137)
modeled lynx and hare populations and determined that a hare density of
0.4-0.7 hares per ac (1.1-1.8 hares per ha) would be needed for
persistence of lynx translocated (i.e., introduced or reintroduced) to
the southern portion of the species' range. Most hare density estimates
for Colorado are well below those thought necessary to support an
introduced lynx population over time (Steury and Murray 2004, entire),
and many, even from areas considered ``good'' hare habitat, are lower
than the density Ruggiero et al. (2000, pp. 446-447) considered
necessary for lynx persistence.
The generally low hare densities reported in most cases in what is
considered good hare habitat in western Colorado and the very large
home ranges (181 mi\2\ (470 km\2\) for females and 106 mi\2\ (273
km\2\) for males) reported by Shenk (2008, pp. 1, 10) suggest that even
the best potential lynx habitat in the Southern Rocky Mountains is
marginal and unlikely to support lynx populations over time. Some of
the lynx introduced into Colorado have dispersed into mountainous areas
of northern New Mexico, which contain relatively small and fragmented
areas of similar high-elevation spruce/fir and cold mixed-conifer
habitats (U.S. Forest Service 2009, pp. 5-10). No evidence exists that
lynx occupied these areas historically; no reproduction has been
documented among introduced lynx that have traveled from Colorado into
northern New Mexico; and habitats in New Mexico are thought to be
incapable of supporting a self-sustaining lynx population (U.S. Forest
Service 2009, pp. 2, 10, 16-17). The lack of connectivity with northern
lynx populations (McKelvey et al. 2000a, p. 230; Devineau et al. 2010,
p. 525; Interagency Lynx Biology Team 2013, pp. 50, 54), which is
considered necessary for the maintenance and conservation of lynx
populations in the contiguous United States (Interagency Lynx Biology
Team 2013, pp. 42, 47, 54, 60, 65), further suggests that lynx in the
Southern Rockies, in the absence of continued translocations or
introductions of lynx, are unlikely to receive the demographic and
genetic exchange needed to maintain lynx populations over time.
For these reasons, the Service has determined that the Southern
Rocky Mountains likely do not possess the physical and biological
features essential to lynx in sufficient quantities, quality, and
spatial arrangement to sustain lynx populations over time. Wildlife
introductions are, by their nature, experiments whose fates are
uncertain. However, it is always our goal for such efforts to be
successful and, where possible, contribute to recovery of listed
species. If Colorado's introduction effort is successful (i.e., if
recruitment equals or exceeds combined mortality and emigration over
the next 20 years (Shenk 2010, pp. 2, 5-6, 11)), it could contribute to
recovery by providing an additional buffer against threats to the DPS.
The potential contribution of Colorado to lynx recovery does not mean,
however, that the habitat there is essential for the conservation of
the DPS. In other words, the lynx population in Colorado is beneficial,
but not essential, for
[[Page 59450]]
recovery. Therefore, we find that the habitat in Colorado and elsewhere
in the Southern Rocky Mountains does not contain the essential physical
and biological features of lynx habitat, is not essential for the
conservation of the lynx DPS, and we are not proposing to designate
critical habitat for the lynx DPS in the Southern Rockies. However, as
a listed species, it should be noted that lynx in the Southern Rockies
are afforded protection pursuant to sections 7(a)(2) and 9 of the Act.
Section 7(a)(2) requires Federal agencies, when undertaking, funding,
or permitting actions that may affect listed species to consult with
the Service, and to ensure that the implementation of such actions do
not result in jeopardy to the species. Toward that end and pursuant to
section 7 of the Act, the Service may recommend measures to minimize
the effects (including incidental take) of the Federal action upon
listed species.
National Forests in Idaho and Montana
The Montana District Court ordered the Service to determine
specifically whether lands in the Clearwater and Nez Perce National
Forests in Idaho, the Bitterroot National Forest in Idaho and Montana,
the Beaverhead-Deerlodge National Forest in Montana, and additional
parts of the Helena and Lolo National Forests (outside the areas
currently proposed for designation) in Montana contain the physical and
biological features essential for the conservation of the DPS. Although
each of these areas clearly contain some (and perhaps all) of the
physical and biological features lynx need, for the reasons discussed
below we find no evidence that any of the areas contain the elements in
adequate quantities, quality, and spatial arrangements to support lynx
populations over time. We provide evidence, where available, that these
areas were not occupied by lynx at the time of listing and are not
currently occupied by lynx populations, and we summarize relevant
survey results, all of which indicate that lynx do not occupy these
areas or that the areas are lacking in either quantity or spatial
arrangement (or both) of one or more of the essential features.
Therefore, we determine that these areas do not contain the physical
and biological features in adequate quantities, quality, and spatial
arrangement, are not essential to the conservation of the lynx, and as
a result these areas do not meet the definition of critical habitat and
subsequently are not being proposed.
The historical record does not suggest that these areas (outside
those portions of the Helena and Lolo National Forests proposed for
designation as critical habitat) ever supported lynx populations
(McKelvey et al. 2000a, pp. 224-227). In the Recovery Outline, the
Service classified these as ``secondary areas'' because they lacked
evidence of lynx reproduction (U.S. Fish and Wildlife Service 2005, pp.
4, 21). As described in detail below, recent surveys for lynx in many
of these areas have failed to detect lynx presence, and the available
evidence suggests these areas occasionally may provide temporary
habitat for transient lynx dispersing from established lynx populations
in the Northern Rocky Mountains of Canada, Idaho, and Montana, but that
they likely do not contain all physical and biological features in
adequate quantities and spatial arrangements to support lynx
populations over time.
There is no evidence that the Beaverhead-Deerlodge, Bitterroot, and
Nez Perce National Forests were occupied by lynx at the time of
listing, nor that they are currently occupied by lynx populations. To
date, surveys on these National Forests, which have been conducted
according to established protocols, have failed to detect presence of
any individual lynx, and they provide no indication of the presence of
lynx populations. Surveys described below were conducted according to
National Lynx Survey (McKelvey et al. 1999, entire), and winter snow-
tracking survey (Squires et al. 2004b, entire) protocols. Snow-tracking
surveys in particular are highly effective at detecting lynx, even when
only a few animals inhabit the survey area (Ulizio et al. 2007, p. 5;
Squires et al. 2012, pp. 215, 219-222).
On the Beaverhead-Deerlodge National Forest, National Lynx Survey
efforts in 1999-2001 detected no lynx (U.S. Forest Service 2002a,
entire and 2002b, entire). During 2001-2005, in surveys designed to
detect presence of lynx and wolverines, 11,220 mi (17,950 km) of winter
snow-tracking surveys and trap route checks in the Anaconda-Pintler,
Beaverhead, Flint Creek and Pioneer mountain ranges on the Beaverhead-
Deerlodge National Forest detected only a single ``putative'' lynx
track, and no verified tracks (Squires et al. 2003, p. 4; Squires et
al. 2006b, p. 15). Additional recent snow tracking surveys (Berg 2009,
entire) also failed to detect any lynx, and the author concluded that,
although some pockets of habitat appeared to support high densities of
snowshoe hares, ``[m]ost of the [Beaverhead-Deerlodge National Forest]
was and appeared to be dry lodgepole pine, which likely is not good
lynx habitat . . .'' (Berg 2009, p. 20). During May and June of 2009,
hair snares (642 snare-nights) and remote cameras (319 camera-nights)
deployed in the Boulder, Flint Creek, and Pioneer mountain ranges also
failed to detect any lynx (Porco 2009, entire). Additional hair snare
surveys in summer 2012 similarly failed to detect lynx (Pilgrim and
Schwartz 2013, entire; U.S. Forest Service 2013a, entire). Snow-
tracking surveys designed to detect presence of multiple forest
carnivores, including lynx, conducted by the Idaho Department of Fish
and Game from 2004 to 2006 detected no lynx in the Beaverhead Mountains
Section, just west of the Beaverhead-Deerlodge National Forest (Patton
2006, pp. 20-21, Table 11).
On the Bitterroot National Forest, National Lynx Survey efforts in
2000-2002 and 2010-2011 detected no lynx (U.S. Forest Service 2000,
entire, 2002c, entire, 2003a, entire, 2003b, entire; Pilgrim 2010,
entire; Shortsleeve 2013, pers. comm.). Snow-tracking surveys designed
to detect presence of multiple forest carnivores, including lynx,
conducted by the Idaho Department of Fish and Game from 2004 to 2006
detected no lynx in the Bitterroot Mountains Section (Patton 2006, pp.
20-21, Table 11). Additionally, among 223 vegetation plots sampled in
2010-2012 on the Forest, only 30 (16.1%) met minimum horizontal cover
standards for snowshoe hare/lynx habitat (U.S. Forest Service 2012,
unpublished data).
On the Nez Perce National Forest, winter snow-tracking surveys
covering 448 mi (721 km) in 2007 did not detect any lynx (Ulizio et al.
2007, entire). The authors concluded that (1) these surveys very likely
would have detected the presence of a lynx population if one occurred
on the Forest, (2) that the failure to detect lynx suggests that a lynx
population does not inhabit the surveyed portion of the Forest, and (3)
``[h]istorical sightings. . . may be the result of transient lynx
moving through the forest, but the infrequency of such reports suggests
lynx are incidental to the area'' (Ulizio et al. 2007, p. 5). Neither a
partial hare-snare survey conducted in 2008 (though at fewer stations
than recommended by the protocol) nor a partial snow-tracking survey
conducted in 2009 (also less extensive than protocol) detected presence
of lynx on the Forest. Snow-tracking surveys conducted according to
established protocols and covering 553 mi (890 km) of forest roads were
completed in 2013; these surveys also failed to detect presence of any
lynx on the Nez Perce National Forest (U.S. Forest Service 2013b, pp.
3-7). Snow-tracking surveys designed to detect presence of multiple
forest carnivores, including lynx, conducted by the Idaho
[[Page 59451]]
Department of Fish and Game from 2004 to 2006 detected no lynx in the
Clearwater Region, including parts of the Nez Perce National Forest
(Patton 2006, p. 9, Table 2).
The paucity of verified historical records of lynx occurrence in
these three National Forests, and the absence of recent verified
records, despite surveys designed to detect lynx presence, suggest
these areas may rarely and temporarily support transient dispersing
lynx (McKelvey et al. 2000a, pp. 224-227; Ulizio et al. 2007, p. 5).
Based on these surveys, historical records of lynx occurrence, the
vegetation sampling data described above (U.S. Forest Service 2012,
unpublished data), and expert opinion on habitat quality described
above (Ulizio et al. 2007, p. 5), the Service has determined that
habitats on these three National Forests are not occupied by lynx
populations and do not contain the physical and biological features in
the appropriate quantity and spatial arrangement to be essential to
lynx conservation. Additionally, we have determined that these areas
are not essential to the conservation of the lynx DPS. Because we find
that these areas do not meet the definition of critical habitat we are
not proposing to designate the Bitterroot, Beaverhead-Deerlodge, and
Nez Perce National Forests as critical habitat.
We recognize that all of the Clearwater and Lolo National Forests,
and parts of the Helena National Forest (except for the disjunct Big
Belt and Elkhorn mountain ranges) are considered as ``occupied'' by
lynx for purposes of consultations under section 7 of the Act.
Occupancy in the context of section 7 consultation is intended to
inform the ``may be present'' standard under section 7 and does not
infer the presence of lynx populations or that habitats in these areas
contain the physical and biological features essential to lynx in
sufficient quantity and spatial arrangement to support a lynx
population. For section 7 purposes, occupany is determined on a Forest-
wide basis, so that two observations anywhere on a Forest confer
permanent ``occupied'' status to the entire Forest, even in places
where lynx have not been documented and where no lynx populations
occur.
The Clearwater National Forest is in an area classified as
secondary for lynx recovery (U.S. Fish and Wildlife Service 2005, p.
21) because there is no record of consistent lynx presence or
reproduction on the Forest. Snow-tracking surveys designed to detect
presence of multiple forest carnivores, including lynx, conducted by
the Idaho Department of Fish and Game from 2004 to 2006 detected no
lynx in the Clearwater Region, including parts of the Clearwater
National Forest (Patton 2006, p. 9, Table 2). Wirsing et al. (2002,
entire) studied snowshoe hare demographics on study areas on the
Clearwater National Forest. They concluded that: hare habitat was
fragmented; good hare habitat was rare and occurred as small isolated
patches; and that hares occurred at extremely low densities (0.04 hares
per ac (0.09 per ha)) well below the range of densities typical of
other southern hare populations, had low survival rates, and had poor
juvenile recruitment (Wirsing et al. 2002, pp. 169-175). The authors
identified hare predators including coyotes, raptors, mustelids, and
bobcats (Wirsing et al. 2002, p. 172), but identified no predation
attributable to lynx. The available evidence does not indicate that
this area possesses the physical and biological features essential to
the conservation of lynx in quantities and spatial arrangements
sufficient to support a lynx population over time or be essential to
lynx conservation. Therefore, we determine that habitats on the
Clearwater do not meet the definition of critical habitat, and as a
result we are not proposing to designate critical habitat on this
National Forest.
Portions of the Helena and Lolo National Forests are classified as
``core areas'' for lynx recovery because they have evidence of
consistent lynx occupancy and recent records of reproduction (U.S. Fish
and Wildlife Service 2005, pp. 4, 21); these areas are proposed for
designation as critical habitat. Because of this lynx occupancy, both
Forests are designated as ``occupied'' in their entirety for section 7
purposes, even though the remainders of these two Forests are
considered secondary areas in the Recovery Outline (U.S. Fish and
Wildlife Service 2005, pp. 6, 21) because they lack records of
consistent lynx presence or reproduction. The parts of these two
forests that are not proposed for designation do not contain the
physical and biological features in adequate quantities, quality, and
spatial arrangement, are not essential to the conservation of the lynx,
and as a result these areas do not meet the definition of critical
habitat and subsequently are not being proposed (as described below).
Furthermore, these areas continue to lack evidence of lynx occupancy,
and surveys (described below) have failed to detect the presence of
lynx populations.
On the Helena National Forest, the Big Belt (in 2002, 2003, and
2004) and Elkhorn (in 2003) mountain ranges were surveyed according to
the National Lynx Survey protocol (McKelvey et al. 1999, entire); no
lynx were detected in any of these surveys (Pengeroth 2013, pers.
comm.). On the Lolo National Forest, no lynx were detected during 941
mi (1,514 km) of snow-tracking surveys targeting lynx in the vicinity
of Lolo Pass in January-March 2001 (Squires et al. 2004c, p.3). More
recently, over 2,600 mi (4,184 km) of forest carnivore snow-tracking
surveys were conducted according to accepted protocols (Squires et al.
2004b, entire) by highly trained technicians from 2010 to 2013 across
much of the Forest and on some adjacent lands. These surveys resulted
in 199 lynx detections over 4 years, only 1 of which occurred outside
the portion of the forest designated as critical habitat in 2009 and
again proposed for critical habitat in this rule (U.S. Forest Service
2013c, pp. 2-3). The single detection outside the proposed critical
habitat boundary was in an area surrounded by proposed critical habitat
but at a slightly lower elevation (U.S. Forest Service 2013c, pp. 2,
4). Avialable information does not indicate that the portions of the
Helena and Lolo National Forests not proposed for critical habitat
designation possess the physical and biological features essential to
lynx in adequate quantities and spatial arrangements to support lynx
over time, or that lynx populations occupy these areas or did so at the
time of listing. As a result, these areas do not meet the definition of
critical habitat and subsequently are not being proposed.
Based on historical records and available survey data summarized
above, the Service has determined that habitats on the Beaverhead-
Deerlodge, Bitterroot, Clearwater, and Nez Perce National Forests, and
on the Helena and Lolo National Forests outside those areas proposed
for critical habitat designation, are not occupied by lynx populations
and were likely not occupied at the time of listing. These areas may
occasionally host transient dispersing lynx, but the best available
information indicates that they do not contain the physical and
biological features essential to lynx in adequate quantity and/or
spatial arrangement, are not essential to the conservation of the lynx,
and as a result these areas do not meet the definition of critical
habitat and subsequently are not being proposed. However, as described
above for lynx introduced into Colorado and the Southern Rockies, lynx
that may occur intermittently and infrequently as trasients or
dispersers on these National Forests are afforded protections
[[Page 59452]]
pursuant to sections 9 and 7(a)(2) of the Act.
Northern New Hampshire and Northern Vermont
The historic status of lynx in New Hampshire and Vermont is poorly
understood. Prior to the listing of the DPS in 2000, the last lynx
documented in Vermont was trapped at St. Albans in 1968 (Kart et al.
2005, p. A4-101). In New Hampshire, surveys conducted in 1986 in high-
elevation habitats in the White Mountain region detected no lynx
(Litvaitis et al. 1991, pp. 70, 73). In 1992, an adult lynx was killed
by a vehicle collision in southern New Hampshire (McKelvey et al.
2000a, p. 213). Because hare densities in the area where this lynx died
are low and habitat conditions were considered unsuitable for home
range establishment, this lynx was classified as a ``transient'' that
did not belong to a resident population (Tur 2013, pers. comm.). Based
on the best available data, we conclude that New Hampshire and Vermont
were not occupied by lynx at the time of listing.
Since listing, lynx occurrence in northern New Hampshire and
Vermont was documented beginning in 2006, and breeding was first
documented in 2009. To date, evidence of lynx reproduction in Vermont
has been documented in 2009, 2011, and 2012, all at the Nulhegan
National Wildlife Refuge (NWR) (Clich[eacute] 2013, pers. comm.). In
northern New Hampshire, breeding was documented in 2010 and 2011, all
in the area encompassing the town of Pittsburg (Staats 2013a, pers.
comm.).
The historic record for Vermont is scant, with only five records of
lynx occurring from the period 1797 to 1968 and no evidence that a
persistent breeding population of lynx ever occurred there (Kart et al.
2005, pp. 101-104). Conversely, lynx occurred historically in central
and northern New Hampshire. In 2003, the Service determined that,
despite a lack of breeding records, a small resident lynx population
likely occurred historically in New Hampshire but no longer exists (68
FR 40087). A bounty program for lynx that persisted in New Hampshire
until 1965, along with a lack of dispersing lynx from Quebec, and a
loss of habitat associated with forest management practices most likely
contributed to the extirpation of lynx from New Hampshire (Litvaitis et
al. 1991, pp. 70, 73-74). Similarly, Brocke et al. (1993, p. 14)
concluded that trapping mortality and the concurrent reduction in
habitat resulting from large-scale forest harvest led to the
extirpation of lynx from New Hampshire. While surveys to assess the
current distribution and status of lynx in Vermont and New Hampshire
are not yet complete, in Vermont, resident lynx are documented and
breeding within a very small area located in the northeast corner of
the State. In New Hampshire, survey efforts suggest that lynx are
sparsely distributed through the northern half of the State, mostly
likely as scattered transient animals, and breeding has been documented
only in a very small area in the northeastern part of the State.
Eastern and Western Maine
Historically, lynx occurred throughout Maine. Hoving et al. (2003,
entire) assembled historical records dating to 1833 to reconstruct the
past distribution of lynx in the State. Prior to 1913, lynx were found
throughout the State, with the exception of coastal areas. From 1913 to
1972, records occurred in western and northern Maine. In 1936 and 1939,
game wardens described lynx as rare, but present, in most districts
except along the coast (Aldous and Medall 1941, as cited in Vashon et
al. 2012, pp. 28, 33). From 1973 to 1999, most records occurred in
western and northern Maine, although lynx also occurred in the central
and eastern portions of the State. Between 1995 and 1999, the Maine
Department of Inland Fisheries and Wildlife conducted snow track
surveys for lynx in western and northern Maine (Vashon et al. 2012 pp.
34-35) and documented lynx only in northern Maine. Surveys conducted
from 2003 to 2008 documented lynx in both western and northern Maine
(Vashon et al. 2012, pp. 34-35). Surveys were not conducted in eastern
Maine because there was no evidence that lynx occurred there.
Hoving et al. (2003, p. 371) documented 39 historical records of
lynx kittens; these records represent a minimum of 21 litters and span
135 years. Most breeding was documented in northern Maine. Prior to
listing, the last documented breeding in western Maine was observed in
1995 and in eastern Maine in 1896 (Hoving 2001, p. 173).
Since listing, lynx have been documented consistently in western
and northern Maine and occasionally in central and northern parts of
the State (Vashon et al. 2012, pp. 12, 59). Lynx breeding has been
documented in western, northern, and eastern Maine (at a single
location in 2010) (Vashon et al. 2012, p. 64). Lynx travel widely
during dispersal and occasional forays outside of their home ranges
(Vashon et al. 2012, pp. 22, 59; Maine Department of Inland Fisheries
and Wildlife, unpublished data), which explains occasional occurrences
outside of western and northern Maine.
Snowshoe hares were at relatively high densities in northern Maine
from 2001 to 2006, but declined by about 50 percent afterward (Scott
2009, pp. 1-44; Vashon et al. 2012, p. 14). Lynx populations were
believed to have reached the carrying capacity of the habitat in about
2006 (Vashon et al. 2012, p. 58). At that time, lynx were likely
dispersing at greater rates into western, central, and eastern parts of
the State (Vashon et al. 2012, Fig. 4.2, p. 59) and were likely the
source of lynx in New Hampshire and Vermont.
Western and eastern Maine have the highest densities of bobcats in
the State (Hoving 2001, pp. 54-55). Maine is at the northern edge of
the bobcat range, and their populations decline during severe winters
(Morris 1986, entire; Parker et al. 1983, entire). In 2008 and 2009,
Maine experienced two severe winters with deep snow that may have
depressed bobcat populations in western and eastern parts of the State
at the same time that larger numbers of lynx were dispersing from
northern Maine. These conditions may have allowed lynx to establish
home ranges in areas formerly inhabitated by bobcats. However, it is
uncertain whether lynx will persist in these areas as bobcat
populations recover.
As in Colorado, despite recent breeding by lynx in northern Vermont
and New Hampshire and eastern and western Maine, it remains uncertain
whether these areas contain the PCE (i.e., the physical and biological
features essential to lynx in adequate quantity and spatial arrangement
to support persistent populations over time). Portions of northeast
Vermont, northern New Hampshire, and eastern and western Maine contain
boreal forest landscapes containing a mosaic of habitats of various
ages. Recent analysis estimated that New Hampshire contains 342 mi\2\
(888 km\2\) of Canada lynx habitat (Litvaitis and Tash 2005, p. A-298).
There are no comparable lynx habitat estimates for Vermont. Hoving et
al. (2004, Fig. 1, p. 290) predicted a low probability of lynx
occurrence in western Maine and no lynx occurrence in eastern Maine.
Because these areas occur at the southern extreme of the species'
current distribution, where habitat is interspersed with northern
hardwood forests, as well as human-dominated land cover types (e.g.,
developed areas, roads, agricultural fields, etc.), habitat quality
(percent of conifer forest, landscape hare density, intensity of forest
management) is likely to be lower in Vermont, New Hampshire, and
eastern and western
[[Page 59453]]
Maine than in northern Maine. The snow regime is unsuitable for lynx in
eastern Maine. Although potential high-quality lynx habitat in New
Hampshire, Vermont, and western Maine is fragmented, a recently
completed habitat connectivity model demonstrated 100 percent
connectivity for lynx movement/dispersal between these areas and core
areas (proposed for designation as critical habitat) in northern Maine
(Farrell 2013, pers. comm.). Breeding lynx in Vermont and New Hampshire
are connected to larger populations in northern Maine via western
Maine, but they are not directly connected to Canadian populations.
Recent modeling to determine lynx habitat connectivity in the
Northeast suggests that the Nulhegan River Basin contains Vermont's
best lynx habitat (Farrell 2013, pers. comm.). The 205-mi\2\ (530-
km\2\) basin includes 41 mi\2\ (106 km\2\) managed by the Service, 34
mi\2\ (89 km\2\) managed by the Vermont Department of Natural
Resources, and 131 mi\2\ (340 km\2\) of private commercial timber lands
(with easement). Bobcats occur in the area at moderate densities
(Hoving 2001, Fig. 2.5 p. 55). Snow track surveys conducted by State
and Service personnel during the winters of 2011and 2012 (Nulhegan NWR
only) and 2012 and 2013 (Nulhegan NWR and Victory Bog State Wildlife
Management Area) indicate a resident population has become established
on the NWR. In areas outside of Nulhegan NWR, the presence of sporadic
records indicates lynx have not established home ranges and are
considered transient or absent.
Historical records indicate that high-elevation habitats in New
Hampshire's White Mountains contained lynx (Silver 1957, pp. 302-311);
however, surveys conducted during the early 1990s in the White Mountain
National Forest did not detect the species (Litvaitis et al. 1991, p.
15; Brocke et al. 1993, p. 14). No lynx have been detected by White
Mountain National Forest staff during winter track surveys conducted
since 2003 (Prout 2013, pers. comm.). However, in March 2013, New
Hampshire Fish and Game Department staff confirmed the presence of lynx
tracks in high elevation habitat located in the area near Franconia
Notch. Snow surveys for lynx have not been conducted in high elevation
habitats in western Maine.
In addition, during snow track surveys conducted by the New
Hampshire Fish and Game Department in 2012 and 2013, lynx were detected
near Cambridge and Success, south of the Lake Umbagog NWR (which has
lynx in its Maine portion). Additional records (2006-2013, n=6) occur
as far south as Jefferson, New Hampshire, at the southern border of the
Kilkenny Unit of the White Mountain National Forest. Lynx tracks have
also been detected on the Pondicherry NWR, located in Whitefield, New
Hampshire. Since 2006, New Hampshire has 18 confirmed records, totaling
28 individual animals.
The extent and size of habitat patches that support lynx in New
Hampshire and western Maine are much smaller than those that occur in
northern Maine (Litvaitis and Tash 2005, Fig. 2 and p. A-298; Robinson
2006, Fig. 3.3, p. 99). Hoving estimated roughly 386 mi\2\ (1,000
km\2\) of lynx habitat in New Hampshire (68 FR 40086-40087). Litvaitis
and Tash (2005, p. A-298), analyzing potential lynx habitat in New
Hampshire based on the Hoving lynx model, reported an area of 2,000
mi\2\ (5,180 km\2\) with a greater than 50 percent probability of lynx
occurrence. Within this area, ``enriched hare habitats'' (including
high-elevation spruce-fir, clear cuts, and shrub-dominated wetlands)
consisted of 342 mi\2\ (886 km\2\), 17 percent of the total predicted
lynx habitat area. The authors concluded that ``the modest abundance of
high-density hare habitat supports the notion that New Hampshire does
not contain sufficient habitat to support a viable, stand-alone
population of lynx. Long-term persistence of lynx in New Hampshire is
probably dependent on immigrants and the State likely represents the
southern limit of lynx in eastern North America'' (Litvaitis and Tash
2005, p. A-298). Similarly, Brocke et al. (1993, pp. 1-14) suggested
that the persistence of New Hampshire's lynx population was dependent
on receiving dispersing animals. Therefore, persistence of lynx in New
Hampshire relies on continuity of habitat through western Maine to the
core area of lynx habitat in northern Maine.
The snow regime is adequate for lynx in northern Vermont, northern
New Hampshire, and western Maine, especially in higher elevations
(Hoving 2001, Fig. 2.2 p. 51). Higher elevation areas experience deep,
fluffy snow conditions that provide a competitive advantage for lynx,
whereas shallower snow in lower elevations may provide competitive
advantage to bobcats (Hoving 2001, Fig. 2.2, p. 51). Litvaitis and Tash
(2005, p. A-263) modeled bobcat habitat in New Hampshire and concluded
that most low-elevation areas that were predicted to have a higher
probability of lynx occurrence were also predicted to have moderate-to-
high bobcat populations. Conversely, most high-elevation areas that
were predicted to have a high probability of lynx occurrence were
expected to be avoided by bobcats. The elevation at which snow benefits
lynx versus bobcats in the Northeast is unknown and likely variable.
While historical records indicate that lynx use high-elevation areas in
the Northeast, it is unknown if high elevations support high-quality
foraging habitat in sufficiently large areas that would support
breeding individuals. The White Mountain National Forest has the most
extensive high-elevation habitat in the Northeast, but only one recent
record of lynx occurrence is available (Staats 2013b, pers. comm.).
Lynx may utilize these habitats, although it is possible that snow
conditions at high elevation are too severe, hare densities may be
insufficient to support lynx (or the habitat too dense for lynx to hunt
hares efficiently), the high elevations may not be large enough to
support home ranges, or lynx may have to compete with bobcats,
especially during summer months.
Stand-level hare densities in spruce-fir forest in western Maine,
northern New Hampshire, and Vermont should be similar to densities
documented in northern Maine (Litvaitis and Tash 2005, p. A-297).
However, landscape hare densities are likely lower because spruce-fir
habitat is a lower percentage of the landscape and more fragmented than
in core lynx habitat in northern Maine (Hoving 2001, Fig. 2.6, p. 56).
Hare habitat modeling in western Maine indicated patchier and more
widely distributed hare habitats compared to northern Maine due to
differences in the size and distribution of regenerating clearcuts
(Robinson 2006, Fig. 3.3, pp. 99, 181). These areas of western Maine
have a higher prevalence of northern hardwoods, which support much
lower hare densities. Snowshoe hare habitat in New Hampshire and
Vermont is likely patchy as well.
Carroll (2007, entire) used the Hoving lynx model as a basis to
predict lynx distribution in the Northeast under several scenarios
affecting forestry, trapping in Canada, and climate change. A reduced
snow model (p. 31) predicted lynx would disappear in all of Maine and
persist only in the higher elevation areas of the Adirondacks and White
Mountain National Forest. However, Hoving (2001, p.76) used different
snowfall projections and models that predict lynx would continue to
occur in northern Maine with reduced snow. Carroll's (2007) climate
change model was based on predicted annual snowfall for 2055.
Predictions were derived from the output of the Parallel Climate Model,
a general circulation model developed by a consortium of researchers in
support of the
[[Page 59454]]
Intergovernmental Panel on Climate Change (Kiehl and Gent 2004,
entire). The IPCC climate scenario that was used is in the intermediate
to high ranges among the 35 scenarios evaluated by the IPCC. Because
these predictions provided only coarse resolutions (~200 km), Carroll
interpolated the percent change in annual snowfall predicted and
multiplied by finer-scale data for current annual snowfall to produce a
``sharpened'' estimate of future snowfall patterns. Carroll's modelling
included a lake effect and thus differed slightly in output from that
used by Hoving et al. (2005). Although climate change models are being
refined for the Northeast, additional information is needed to
understand what areas may support lynx in the future under a variety of
climate change projections and to resolve high levels of uncertainty.
In addition to the potentially conflicting climate models which make
projecting lynx conservation into the future challenging, the
biological response of lynx to climate change at the regional and stand
scales is complex and poorly understood at this time.
Due to the uncertainty regarding the long-term persistence of the
newly established breeding areas, the relative importance of these
areas for conservation of the DPS is unclear. These are peripheral
boreal forest areas with higher northern hardwood composition and
patchier habitat (Hoving 2001, Fig. 2.6, p. 56), and they represent the
southern extent of the lynx range (Litvaitis and Tash 2005, p. A-298).
Based on the best available data, northern Vermont and New Hampshire do
not appear to contain adequate lynx habitat to support persistent
populations; nor do lynx in these areas appear to be considered
potential source populations (Litvaitis and Tash 2005, p. A-298).
Although Brocke et al. (1993, pp. 1-14) predicted that in the absence
of trapping, New Hampshire's lynx population would be expected to
increase at the very modest rate of 1.65 percent per year, this
estimate did not account for other sources of lynx mortality (i.e.,
interspecific interactions with bobcat or road mortality). Therefore,
the Service has determined that the small number of lynx currently
breeding in New Hampshire is unlikely to be a source population for
other areas. Similarly, because Vermont contains even smaller amounts
of lynx habitat, we surmise that Vermont is also unlikely to provide
surplus animals that would disperse to other areas. Additionally, lynx
habitat in eastern and western Maine are of lower quality (Hoving et
al. 2004, Fig. 1, p. 290), and eastern Maine lacks a snow regime that
favors lynx over bobcats. Western Maine is unlikely to be a source of
lynx for other areas, but it is an important corridor between
populations in northern Maine and New Hampshire and Vermont.
In summary, lynx reproduction in small areas of northern Vermont,
northern New Hampshire, and eastern and western Maine has been
documented since 2009-2010. Although lynx were known to occur in
Vermont and New Hampshire historically, evidence of persistent lynx
populations is lacking. Resident lynx likely were extirpated when
habitat was modified through forestry practices, a bounty program was
in place that increased mortality, and the ability of animals to
recolonize the area was compromised by regional-scale influences that
suppressed lynx populations. Since that time, habitat has regenerated
and source populations of lynx in Maine have recovered to the point
where lynx have dispersed and now occur in the Vermont and New
Hampshire part of their former range. Their recent arrival and the
complex ecological interactions functioning at landscape scales makes
it difficult to assess the long-term status of lynx in these areas, as
well as their potential contribution to the conservation of the DPS.
Lynx have had a persistent historical presence in western Maine, but no
documented breeding until 2010; therefore, western Maine was not
considered occupied at the time of listing. While surveys in western
Maine are incomplete and the status of lynx in that area is not well
known, those occurrences and habitat are contiguous with northern New
Hampshire. However, habitat is of lower quality and interactions with
bobcat populations are uncertain. In eastern Maine, lynx have
sporadically occurred, but the snow regime is not suitable for long-
term persistence.
The best available data indicates that Vermont, New Hampshire, and
eastern Maine were not occupied by lynx at the time of listing. In
addition, habitat within Vermont and New Hampshire is fragmented,
landscape-level hare densities are low, and bobcat densities are
relatively high; consequently, these areas are unlikely to support
robust lynx populations capable of generating dispersing animals that
could occupy other portions of the species' range. Additionally,
evaluations of lynx and their habitats indicate that lynx populations
in New Hampshire are reliant upon frequent dispersers from other
populations. Because habitats in Vermont are even more localized and
fragmented, the same situation most likely exists in that State. Within
these areas, the status of lynx and their habitats may deteriorate
further as a result of climate change. Taking all of these factors into
consideration, we conclude that Vermont, New Hampshire, and eastern and
western Maine likely do not contain the physical and biological
features in the appropriate quantity, quality, and spatial arrangement
to be essential to lynx conservation. Additionally, we find that these
areas are not essential to the conservation of the lynx DPS. As a
result, these areas do not meet the definition of critical habitat for
the lynx DPS. Consequently, we are not proposing to designate any areas
in New Hampshire, Vermont, or eastern or western Maine as critical
habitat for the contiguous U.S. lynx DPS.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for lynx. 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. Given the scale of the proposed lynx critical habitat units, it
was not feasible to completely avoid inclusion of water bodies,
including lakes, reservoirs and rivers; grasslands; or human-made
structures such as buildings, paved and gravel roadbeds, parking lots,
and other structures that lack the PCE for the lynx. These areas,
including any developed areas and the land on which such structures are
located, that exist inside proposed critical habitat boundaries are not
proposed for designation as critical habitat. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule.
Therefore, if the critical habitat is finalized as proposed, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We are proposing for designation of critical habitat lands that we
have determined were occupied by lynx at the time the DPS was listed
and which contain the PCE (sufficient quantities and spatial
arrangements of all the physical or biological features essential to
support lynx life-history processes). All proposed units and subunits
contain all of the identified elements of physical
[[Page 59455]]
or biological features in adequate quantities and spatial arrangements
and support multiple life-history processes and persistent lynx
populations.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0101, on our Internet
site http://www.fws.gov/montanafieldoffice, and at the Montana
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT
above).
Proposed Revised Critical Habitat Designation
We are proposing to designate five units as critical habitat for
the lynx (Table 1). The critical habitat units described below
constitute our best assessment at this time of areas: (1) We determined
to be occupied at the time of listing, (2) all the physical and
biological features in the appropriate quanity, quality, and spatial
arrangement found to be essential to the conservation of the species,
and (3) that may require special management considerations or
protection. The five areas proposed as critical habitat are Unit 1 in
northern Maine (Aroostook, Franklin, Penobscot, Piscataquis, and
Somerset Counties); Unit 2 in northeastern Minnesota (Cook,
Koochiching, Lake, and St. Louis Counties); Unit 3 in the Northern
Rocky Mountains of northwest Montana (Flathead, Glacier, Granite, Lake,
Lewis and Clark, Lincoln, Missoula, Pondera, Powell and Teton Counties)
and northeast Idaho (Boundary County); Unit 4 in the North Cascade
Mountains of north-central Washington (Chelan and Okanogan Counties);
and Unit 5 in the Greater Yellowstone Area of southwest Montana
(Carbon, Gallatin, Park, Stillwater, and Sweetgrass Counties) and
northwest Wyoming (Fremont, Lincoln, Park, Sublette, and Teton
Counties). To further understand the location of these proposed areas,
please see the associated maps found at the end of this proposed rule
(also available at our Web site: http://www.fws.gov/mountain-prairie/species/mammals/lynx/criticalhabitat.htm). Table 1 shows the proposed
critical habitat units, land ownership, and the approximate area being
proposed for designation as critical habitat. Table 2 shows proposed
critical habitat by ownership within each State included in the
proposed designation.
Table 1--Proposed Critical Habitat Units for Canada Lynx by Ownership (mi\2\ (km\2\))
[Area estimates reflect all land within proposed critical habitat unit boundaries, including areas considered for exclusion in accordance with section
4(b)(2) of the Act]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit Federal State Private Tribal Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... 0 (0) 823 (2,131) 10,230 (26,495) 87 (226) 11,162 (28,908)
2....................................................... 3,864 (10,007) 2,732 (7,076 ) 1,473 (3,816) 78 (202) 8,147 (21,101)
3....................................................... 8,652 (22,409) 381 (986) 1,072 (2,777) 370 (958) 10,474 (27,129)
4....................................................... 1,830 (4,739) 164 (426) 4 (11) 0 (0) 1,999 (5,176)
5....................................................... 9,465 (24,514) 30 (76) 271 (702) 0 (0) 9,766 (25,293)
-----------------------------------------------------------------------------------------------
Total............................................... 23,811 (61,669) 4,129 (10,695) 13,050 (33,800) 535 (1,385) 41,547 (107,607)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding and because minor ``Other'' ownership is not included.
Table 2--Proposed Critical Habitat for Canada Lynx by State and Ownership (mi\2\/km\2\)
[Area estimates reflect all land within proposed critical habitat unit boundaries, including areas considered for exclusion in accordance with section
4(b)(2) of the Act].
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Private Tribal Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho.......................................................... 45 (117) 0.04 (0.1) 0 (0) 0 (0) 0 (0)
Maine.......................................................... 0 (0) 823 (2,130) 10,230 (26,495) 87 (226) 22 (57)
Minnesota...................................................... 3,864 (10,007) 2,732 (7,076) 1,473 (3,816) 78 (202) 0 (0)
Montana........................................................ 11,326/(29,334) 395 (1,024) 1,276 (3,305) 370 (958) 0.5 (1.4)
Washington..................................................... 1,830 (4,739) 164 (426) 4 (11) 0 (0) 0 (0)
Wyoming........................................................ 6,746 (17,472) 15 (38) 68 (176) 0 (0) 0 (0)
----------------------------------------------------------------------------------------
Total...................................................... 23,811 (61,669) 4,129 (10,695) 13,050 (33,800) 535 (1,385) 23 (58)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions below of all units, the reasons why
they meet the definition of critical habitat for lynx, changes in the
current proposal from the 2009 designation, and other potential changes
that may be considered between this proposal and our subsequent final
designation.
Unit 1: Northern Maine
Unit 1 consists of 11,162 mi\2\ (28,908 km\2\) located in northern
Maine in portions of Aroostook, Franklin, Penobscot, Piscataquis, and
Somerset Counties. This area was occupied by the lynx at the time of
listing and is currently occupied by the species (Hoving et al. 2003,
entire; Vashon et al. 2012, pp. 12-14, 58-60; Interagency Lynx Biology
Team 2013, pp. 39-42). This area contains the physical and biological
features in the appropriate quantity, quality, and spatial arrangement
to be essential to lynx conservation and as a result these areas meet
the definition of critical habitat for the lynx DPS. Lynx in northern
Maine have high productivity: 91 percent of available adult females
(greater than 2years) produced litters, and litters averaged 2.83
kittens (Vashon et al. 2005b, pp. 4-6; Vashon et al. 2012, p. 18). This
area contains the physical and biological features essential to the
[[Page 59456]]
conservation of the lynx as it comprises the PCE and its components
laid out in the appropriate quantity and spatial arrangement. This area
is also important for lynx conservation because it is the only area in
the northeastern region of the lynx's range within the contiguous
United States that currently supports persistent breeding lynx
populations and likely acts as a source or provides connectivity with
Canada for more peripheral portions of the lynx's range in the
Northeast. Timber harvest and management is the dominant land use
within the unit; therefore, special management is required depending on
the silvicultural practices implemented (68 FR 40075; July 3, 2003).
Timber management practices that provide for a dense understory are
beneficial for lynx and snowshoe hares.
In this area, climate change is predicted to significantly reduce
lynx habitat and population size. Carroll (2007, pp. 1100-1103) modeled
a 59 percent decline in lynx numbers in the northeastern United States
and eastern Canada by 2055 due to climate change, with greater
vulnerability among small, peripheral, low-elevation populations like
that in Maine. Under this modeled scenario, there would be difficulty
sustaining such populations, and the lynx distribution would likely
contract to the core of the population on the Gaspe Peninsula in
Quebec, Canada (Carroll 2007, p. 1102). Gonzalez et al. (2007, p. 14)
modeled potential climate-induced loss of snow and concluded that snow
suitable for lynx may disappear from Maine entirely by the end of this
century.
Changing forest management practices are also likely to result in
reduced hare and lynx habitat in this unit. Much of the lynx and hare
habitat in this unit is the result of broad-scale clear-cut timber
harvest in the 1970s and 1980s in response to a spruce budworm
outbreak. These clear-cut stands are now at a successional (regrowth)
stage (about 35 years postharvest) that features very dense conifer
cover and provides optimal hare and lynx habitats, likely supporting
many more hares and lynx than occurred historically. The Maine Forest
Practices Act (1989) limited the size of clear-cuts resulting in a near
complete shift away from clear-cuts to partial harvesting. This
transition to partial harvest timber management is unlikely to create
or maintain the extensive tracts of hare and lynx habitats that
currently exist as a result of previous clear-cutting. As the clear-cut
stands continue to age, their habitat value to hares and lynx is
expected to decline. Even in the absence of climate change
considerations, forest succession and reduced clearcutting are expected
to result in a substantially smaller lynx population in this unit by
2035 (Simons 2009, pp. 153-154, 162-165, 206, 216-220; Vashon et al.
2012, pp. 58-60). Therefore, lack of forest management planning
represents a habitat-related threat to lynx. Other habitat-related
threats to lynx in this unit are traffic and development (68 FR 40075).
The area currently proposed for designation in this unit includes
all lands that we designated in 2009 (FR 74 8616), as well as 87 mi\2\
(226 km\2\) of Tribal lands and 943 mi\2\ (2,443 km\2\) of lands
managed under the Maine Healthy Forest Reserve Program, both of which
were excluded from the 2009 designation and which we are again
considering excluding (see Exclusions and Government-to-Government
Relationship with Tribes, below). It also includes 108 mi\2\ (281
km\2\) formerly but no longer enrolled in the Healthy Forest Reserve
Program. The proposed unit also includes additional lands in the Van
Buren area of eastern Aroostook County (217 mi\2\ (562 km\2\)) and the
Herseytown-Stacyville area of northern Penobscot County (304 mi\2\ (788
km\2\)) that were not designated in 2009. New information on lynx and
habitats in these two areas demonstrates that they contain the physical
and biological features essential to the conservation of lynx and meet
the criteria (above) for designation as critical habitat. Radio-
telemetry data, incidental capture of lynx in traps set for other
species, and lynx mortalities from vehicle collisions have all recently
documented lynx occupancy in both areas (U.S. Fish and Wildlife Service
2013a, p. 12). Based on recent refined habitat mapping and
understanding of lynx use of this area, we have determined that both
proposed additions were likely occupied at the time of listing,
although occupancy data were not available then. Both areas are within
the ``core area'' classified in the Recovery Outline (U.S. Fish and
Wildlife Service 2005, pp. 3-5, 21), and both are contiguous with the
critical habitat area designated in 2009 and include similar habitats
and snow regimes, as well as comparable hare densities (U.S. Fish and
Wildlife Service 2013a, p. 12). The predominant land use in both areas
is commercial timber production, which requires special management
considerations for the conservation of lynx. The proposed Van Buren
addition is a contiguous area of forest connecting lynx habitat in
Maine with lynx habitats and populations in Quebec and New Brunswick.
Unit 2: Northeastern Minnesota
Unit 2 consists of 8,147 mi\2\ (21,101 km\2\) located in
northeastern Minnesota in portions of Cook, Koochiching, Lake, and St.
Louis Counties, and Superior National Forest. In 2003, when we formally
reviewed the status of the lynx, numerous verified records of lynx
existed from northeastern Minnesota (68 FR 40076, July 3, 2003). The
area was occupied at the time of listing and is currently occupied by
the species (Moen et al. 2008b, pp. 29-32; Moen et al. 2010b, entire;
Catton and Loch 2010, entire; 2011, entire; 2012, entire; Interagency
Lynx Biology Team 2013, pp. 44-47). Lynx are currently known to be
distributed throughout northeastern Minnesota, as has been confirmed
through DNA analysis, radio- and GPS-collared animals, and
documentation of reproduction (Moen et al. 2008b, entire; Moen et al.
2010b, entire). This area contains the physical and biological features
in the appropriate quantity, quality, and spatial arrangement to be
essential to lynx conservation and as a result these areas meet the
definition of critical habitat for the lynx DPS.
This area is essential to the conservation of lynx because it is
the only area in the Great Lakes Region for which we have evidence of
recent lynx reproduction. It likely acts as a source or provides
connectivity for more peripheral portions of the lynx's range in the
region. Timber harvest and management is a dominant land use (68 FR
40075). Therefore, special management is required depending on the
silvicultural practices conducted. Timber management practices that
provide for a dense understory are beneficial for lynx and snowshoe
hares. In this area, climate change may affect lynx and their habitats;
however, Gonzalez et al. (2007, p. 14) suggested that snow conditions
in northern Minnesota should continue to be suitable for lynx through
the end of this century. Fire suppression or fuels treatment, traffic
and habitat fragmentation associated with road-building, and
development are other habitat-related threats to lynx (68 FR 40075).
Incidental capture of lynx in traps set for other species has been
documented recently in Minnesota, as have lynx mortalities from vehicle
collisions (U.S. Fish and Wildlife Service 2013d, unpubl. database).
The area currently proposed for designation includes all lands that
we designated in 2009 (FR 74 8616), as well as 78 mi\2\ (202 km\2\) of
Tribal lands, which we excluded from the 2009 designation and which we
again propose to exclude (see Government-to-
[[Page 59457]]
Government Relationship with Tribes, below). No additional areas are
proposed for designation of critical habitat.
Unit 3: Northern Rocky Mountains
Unit 3 consists of 10,474 mi\2\ (27,129 km\2\) located in
northwestern Montana and a small portion of northeastern Idaho in
portions of Boundary County in Idaho and Flathead, Glacier, Granite,
Lake, Lewis and Clark, Lincoln, Missoula, Pondera, Powell and Teton
Counties in Montana. It includes National Forest lands and BLM lands in
the Garnet Resource Area. This area was occupied by lynx at the time of
listing and is currently occupied by the species (Squires et al. 2010,
entire; Squires et al. 2012, entire; Squires et al. 2013, entire;
Interagency Lynx Biology Team 2013, pp. 57-61). Lynx are known to be
widely distributed throughout this unit and breeding has been
documented in multiple locations (Gehman et al. 2004, pp. 24-29;
Squires et al. 2004a, pp. 8-10, 2004b, entire, and 2004c, pp. 7-10).
This area contains the physical and biological features in the
appropriate quantity, quality, and spatial arrangement to be essential
to lynx conservation and as a result these areas meet the definition of
critical habitat for the lynx DPS. This area is essential to the
conservation of lynx because it appears to support the highest density
lynx populations in the Northern Rocky Mountain region of the lynx's
range. It likely acts as a source for lynx and provides connectivity to
other portions of the lynx's range in the Rocky Mountains, particularly
the Yellowstone area. Timber harvest and management is a dominant land
use (68 FR 40075); therefore, special management is required depending
on the silvicultural practices conducted. Timber management practices
that provide for a dense understory are beneficial for lynx and
snowshoe hares. In this area, climate change is expected to result in
the potential loss of snow conditions suitable for lynx by the end of
this century (Gonzalez et al. 2007, p. 14). Fire suppression or fuels
treatment, traffic, and development are other habitat-related threats
to lynx (68 FR 40075).
The area currently proposed for designation includes lands that we
designated in 2009 (FR 74 8616), as well as 370 mi\2\ (958 km\2\) of
Tribal lands, which we excluded from the 2009 designation and which we
again propose to exclude (see Government-to-Government Relationship
with Tribes, below). It also includes State trust lands in western
Montana managed in accordance with the recently finalized State of
Montana Department of Natural Resources and Conservation Multi-species
Habitat Conservation Plan (HCP) (Montana DNRC and U.S. Fish and
Wildlife Service 2010, pp. 2-45--2-61, 4-27--4-36, 7-29--7-34). We are
proposing to exclude 271 mi\2\ (703 km\2\) of lands managed under this
HCP from designation as critical habitat in this unit (see Exclusions,
below). The area proposed for designation in northeast Idaho has been
adjusted to reflect improvements in lynx habitat mapping approved by
both the USFS and the Service (U.S. Forest Service 2008b, entire),
resulting in a reduction of about 5 mi\2\ (13 km\2\) of proposed
critical habitat in that portion of the unit. Other National Forests
with lands in this proposed critical habitat unit are working on
refinements to lynx habitat mapping protocols and/or modeling. If the
Service approves of the methodologies used to improve lynx habitat
mapping, the results may be considered in our subsequent final critical
habitat designation. At this time, no new areas are proposed for
designation of critical habitat in this unit.
Unit 4: North Cascades
Unit 4 consists of 1,999 mi\2\ (5,176 km\2\) located in north-
central Washington in portions of Chelan and Okanogan Counties and
includes mostly Okanogan-Wenatchee National Forest lands as well as BLM
lands in the Spokane District and Loomis State Forest lands. This area
was occupied at the time lynx was listed and is currently occupied by
the species (Interagency Lynx Biology Team 2013, pp. 64-65). This unit
supports the highest densities of lynx in Washington (Stinson 2001, p.
2). Evidence from recent research and DNA analysis shows lynx
distributed within this unit, with breeding being documented (von
Kienast 2003, p. 36; Koehler et al. 2008, entire; Maletzke et al. 2008,
entire). Although researchers have fewer records in the portion of the
unit south of Highway 20, few surveys have been conducted in this
portion of the unit. This area contains boreal forest habitat and the
components essential to the conservation of the lynx. Further, it is
contiguous with the portion of the unit north of Highway 20,
particularly in winter when deep snows close Highway 20. The northern
portion of the unit adjacent to the Canada border also appears to
support few recent lynx records; however, it is designated wilderness,
so access to survey this area is difficult. This northern portion
contains extensive boreal forest vegetation types and the components
essential to the conservation of the lynx. Additionally, lynx
populations exist in British Columbia directly north of this unit
(Interagency Lynx Biology Team 2013, pp. 65).
This area contains the physical and biological features in the
appropriate quantity, quality, and spatial arrangement to be essential
to lynx conservation and as a result these areas meet the definition of
critical habitat for the lynx DPS. This area is essential to the
conservation of lynx because it is the only area in the Cascades region
of the lynx's range that is known to support breeding lynx populations.
Timber harvest and management is a dominant land use; therefore,
special management is required depending on the silvicultural practices
conducted. Timber management practices that provide for a dense
understory are beneficial for lynx and snowshoe hares. In this area,
Federal land management plans are being amended to incorporate lynx
conservation. Climate change is expected to reduce lynx habitat and
numbers in this unit, with potential loss of snow suitable for lynx
(Gonzalez et al. 2007, p. 14) and the potential complete disappearance
of lynx from the area by the end of this century (Johnston et al. 2012,
pp. 7-11). Traffic and development are other habitat-related threats to
lynx (68 FR 40075).
The area currently proposed for designation includes all lands that
we designated in 2009 (FR 74 8616). It also includes 164 mi\2\ (425
km\2\) of lands managed in accordance with the State of Washington
Department of Natural Resources Lynx Habitat Management Plan
(Washington DNR 2006, entire), which we excluded from the 2009
designation and which we again propose to exclude under section 4(b)(2)
of the Act (see Exclusions below). No additional areas are proposed for
designation of critical habitat in this unit.
Unit 5: Greater Yellowstone Area
Unit 5 consists of 9,765 mi\2\ (25,293 km\2\) located in
Yellowstone National Park and surrounding lands of the Greater
Yellowstone Area in southwestern Montana and northwestern Wyoming.
Lands in this unit are found in Carbon, Gallatin, Park, Stillwater, and
Sweetgrass Counties in Montana; and Fremont, Lincoln, Park, Sublette,
and Teton Counties in Wyoming. This area was occupied by lynx at the
time of listing and is currently occupied by the species (Interagency
Lynx Biology Team 2013, pp. 57-61). This area contains the physical and
biological features in the appropriate quantity, quality, and spatial
arrangement to be essential to
[[Page 59458]]
lynx conservation and as a reuult these areas meet the definition of
critical habitat for the lynx DPS. The Greater Yellowstone Area is
naturally marginal lynx habitat with highly fragmented foraging habitat
(68 FR 40090; 71 FR 66010, 66029; 74 FR 8624, 8643-8644; Hodges et al.
2009, entire). For this reason lynx home ranges in this unit are likely
to be larger and incorporate large areas of non-foraging matrix
habitat. Climate change is expected to reduce lynx habitat and numbers
in this unit, with potential loss of snow suitable for lynx over most
of the area by the end of this century, though with potential snow
refugia in the Wyoming Range (Gonzalez et al. 2007, p. 14). Fire
suppression or fuels treatment, traffic, and development are other
habitat-related threats to lynx in this unit (68 FR 40075). Therefore,
special management is required depending on the fire suppression and
fuels treatment practices conducted and the design of highway
development projects.
The area currently proposed for designation includes all lands that
we designated in 2009 (FR 74 8616). It also includes a small amount of
State trust lands in southwestern Montana managed in accordance with
the recently finalized State of Montana Department of Natural Resources
and Conservation Multi-species Habitat Conservation Plan (HCP) (Montana
DNRC and U.S. Fish and Wildlife Service 2010, pp. 2-45--2-61, 4-27--4-
36, 7-29--7-34). We are proposing to exclude 1.3 mi\2\ (3.3 km\2\) of
lands managed under this HCP from designation as critical habitat in
this unit (see Exclusions, below). The proposed unit also includes
additional lands in Lincoln, western Sublette, and Teton counties that
were not designated in 2009. In particular, we propose to add 77 mi\2\
(200 km\2\) of lands in the northeast part of Grand Teton National Park
and 182 mi\2\ (470 km\2\) of BLM lands east of the Bridger-Teton
National Forest. Both areas are within the ``core area'' classified in
the Recovery Outline (U.S. Fish and Wildlife Service 2005, pp. 3-5,
21), both are contiguous with the critical habitat area designated in
2009, and both include similar habitats and snow regimes. Both areas
have recent verified occurrences of lynx, and are immediately adjacent
to an area known to support a small but persistent lynx subpopulation.
The areas proposed in Grand Teton National Park have had verified
lynx occurrences in the vicinity in the past 5 years (U.S. Fish and
Wildlife Service 2013b, p. 1). The proposed BLM lands are considered
occupied and are composed of high-quality lynx/snowshoe hare habitat
including mature spruce/fir, mixed conifer/aspen, and aspen stands with
documented corresponding high densities of hares (U.S. Fish and
Wildlife Service 2013c, pp. 1-2). These BLM lands also include a
documented movement corridor (often referred to as Hoback Rim or
Bondurant) through this area that may be of key importance to lynx
moving through the landscape from the WY Range to the Togwotee Pass
area to the north (U.S. Fish and Wildlife Service 2013c, p. 1). This
information suggests that these areas contain the physical and
biological features essential to the conservation of lynx and meet the
criteria (above) for designation as critical habitat (U.S. Fish and
Wildlife Service 2013b, entire and 2013c, entire). As in Unit 3, some
National Forests with lands in this proposed critical habitat unit are
working on refinements to lynx habitat mapping protocols and/or
modeling. To the extent that we receive the refinements in time, we
will evaluate the results for consideration in our subsequent final
critical habitat designation.
This proposed critical habitat designation is designed for the
conservation of the physical and biological features essential to the
conservation of the lynx and necessary to support lynx life-history
functions. The physical and biological features described in the PCE
defined above comprise the essential features of boreal forest that (1)
provide adequate prey resources necessary for the persistence of local
populations (subpopulations of the metapopulation) of lynx through
reproduction; (2) allow subpopulations to act as possible sources of
lynx for more peripheral boreal forested areas; (3) enable the
maintenance of lynx home ranges; (4) include snow conditions for which
lynx are highly specialized that give lynx a competitive advantage over
potential competitors; (5) provide denning habitat; and (6) provide
habitat connectivity for travel within home ranges, exploratory
movements, and dispersal within critical habitat units. Lynx use
habitat at a landscape scale, which means that no single locality
(small scale) contains all of the required habitat elements that lynx
need to ensure survival and reproduction. Therefore, individual
portions of each unit (for example, an individual forest stand) may not
contain all of the physical and biological features listed above;
however, each unit, as a landscape, does contain each of the physical
and biological features in adequate quantities and spatial arrangements
to support lynx populations over time, and it is the landscape as a
whole, therefore, that contains the PCE.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, Tribal, local, or private lands that are not Federally funded
or authorized, do not require section 7 consultation.
[[Page 59459]]
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Canada lynx. As discussed
above, the role of critical habitat is to support life-history needs of
the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the lynx. These activities include, but are not
limited to:
(1) Actions that would reduce or remove understory vegetation
within boreal forest stands on a scale proportionate to the large
landscape used by lynx. Such activities could include, but are not
limited to, forest stand thinning, timber harvest, and fuels treatment
of forest stands. These activities could significantly reduce the
quality of snowshoe hare habitat such that the landscape's ability to
produce adequate densities of snowshoe hares to support persistent lynx
populations is at least temporarily diminished.
(2) Actions that would cause permanent loss or conversion of the
boreal forest on a scale proportionate to the large landscape used by
lynx. Such activities could include, but are not limited to,
recreational area developments; certain types of mining activities and
associated developments; and road building. Such activities could
eliminate and fragment lynx and snowshoe hare habitat.
(3) Actions that would increase traffic volume and speed on roads
that divide lynx critical habitat. Such activities could include, but
are not limited to, transportation projects to upgrade roads or
development of a new tourist destination. These activities could reduce
connectivity within the boreal forest landscape for lynx, and could
result in increased mortality of lynx within the critical habitat
units, because lynx are highly mobile and frequently cross roads during
dispersal, exploratory movements, or travel within their home ranges.
In matrix habitat, activities that change vegetation structure or
condition would not be considered an adverse effect to lynx critical
habitat unless those activities would create a barrier or impede lynx
movement between patches of foraging habitat and between foraging and
denning habitat within a potential home range, or if they would
adversely affect adjacent foraging habitat or denning habitat. For
example, a pre-commercial thinning or fuels reduction project in matrix
habitat would not adversely affect lynx critical habitat, and would not
require consultation. However, a new highway passing through matrix
habitat that would impede lynx movement may be an adverse effect to
lynx critical habitat, and would require consultation. The scale of any
activity should be examined to determine whether direct or indirect
alteration of habitat would occur to the extent that the value of
critical habitat for the survival and recovery of lynx would be
appreciably diminished.
If you have questions regarding whether specific activities may
constitute destruction or adverse modification of critical habitat,
contact the Supervisor of the appropriate Ecological Services Field
Office (see list below).
------------------------------------------------------------------------
State Address Phone No.
------------------------------------------------------------------------
Maine......................... 17 Godfrey Drive, (207) 866-3344
Suite 2,
Orono, ME 04473.
Minnesota..................... 4101 American (612) 725-3548
Boulevard East,
Bloomington,
Minnesota 55425.
Montana....................... 585 Shepard Way, (406) 449-5225
Helena, Montana 59601.
Idaho and Washington.......... 11103 E. Montgomery (509) 893-8015
Drive, Spokane,
Washington 99206.
Wyoming....................... 5353 Yellowstone Road, (307) 772-2374
Suite 308A, Cheyenne,
Wyoming 82009.
------------------------------------------------------------------------
[[Page 59460]]
All of the units proposed as critical habitat, as well as specific
areas that are considered for exclusion under section 4(b)(2) of the
Act (below), contain features essential to the conservation of the lynx
DPS. All units are within the geographical range of the DPS, and all
are currently occupied by the species based on surveys and research
documenting the presence and reproduction of lynx (68 FR 40076, July 3,
2003). Under section 7 of the Act, Federal agencies already consult
with us on activities in areas currently occupied by the lynx, or if
the species may be affected by the action, to ensure that their actions
do not jeopardize the continued existence of the lynx.
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)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographic areas owned
or controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
There are no Department of Defense lands with a completed INRMP
within the critical habitat designation and, therefore, no analysis of
potential exclusions under section 4(a)(3) of the Act is necessary.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise her discretion to exclude the area only if such exclusion
would not result in the extinction of the species.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction 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; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
In the case of lynx, the benefits of critical habitat include
public awareness of lynx presence and the importance of habitat
protection, and in cases where a Federal nexus exists, increased
habitat protection for lynx due to the protection from adverse
modification or destruction of critical habitat. In practice, a Federal
nexus exists primarily on Federal lands or for projects undertaken by
Federal agencies. Since lynx were listed in 2000, we have had few
projects on privately owned lands that had a Federal nexus to trigger
consultation under section 7 of the Act. On Federal lands we have been
consulting with Federal agencies on their effects to lynx since lynx
were listed. These consultations have resulted in a series of
comprehensive conservation plans for Federal lands over much of the
range.
When we evaluate the existence of a conservation plan when
considering the benefits of exclusion, 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 physical or
biological features; 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. If exclusion of an area from critical habitat will result
in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments received, we will evaluate
whether certain lands in the proposed critical habitat units are
appropriate for exclusion from the final designation pursuant to
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
[[Page 59461]]
designating those lands as critical habitat, then the Secretary may
exercise her discretion to exclude the lands from the final
designation.
After considering the following areas under section 4(b)(2) of the
Act, we are considering excluding them from the critical habitat
designation for lynx. 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), the Department of the
Interior's manual at 512 DM 2, and Secretarial Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we are considering
excluding Tribal lands from the critical habitat designation (see also
Government-to-Government Relationship with Tribes, below).
We are also considering excluding from critical habitat designation
the following lands based on the management plans that govern
activities on them: (1) lands in Maine managed in accordance with the
Natural Resources Conservation Service's (NRCS) Healthy Forest Reserve
Program (75 FR 6539), (2) State lands in Washington managed in
accordance with the State of Washington Department of Natural Resources
(DNR) Lynx Habitat Management Plan for DNR-managed Lands (Washington
DNR 2006, entire), and (3) State lands in western Montana managed in
accordance with the Montana Department of Natural Resources and
Conservation (DNRC) Forested State Trust Lands Habitat Conservation
Plan (HCP) (Montana DNRC and U.S. Fish and Wildlife Service 2010,
entire). Table 3 below provides approximate areas (mi\2\, km\2\) of
lands that meet the definition of critical habitat but which we are
considering excluding from the final critical habitat rule under
section 4(b)(2) of the Act. For additional details on these plans, see
Exclusions Based on Other Relevant Impacts, below.
Table 3--Areas Considered for Exclusion by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Areas meeting the definition
Unit Specific area of critical habitat, in Areas considered for
mi\2\ (km\2\) exclusion, in mi\2\ (km\2\)
----------------------------------------------------------------------------------------------------------------
1. Maine........................ Tribal Lands: 87.2 (225.9) 87.2 (225.9)
Houlton Band of
Maliseet Indians,
Aroostook Band of
Micmac Indians,
Passamaquoddy
Tribe, Penobscot
Indian Nation.
1. Maine........................ Maine Healthy 943.2 (2,443.0) 943.2 (2,443.0)
Forest Reserve
Program.
2. Minnesota.................... Tribal Lands: 77.9 (201.9) 77.9 (201.9)
Grand Portage
Reservation, Bois
Forte
Reservation--Verm
illion Lake
District.
3. Northern Rocky Mountains..... Tribal Lands: 369.8 (957.7) 369.8 (957.7)
Flathead
Reservation.
3. Northern Rocky Mountains..... Montana DNRC Multi- 271.4 (703.0) 271.4 (703.0)
species Habitat
Conservation Plan.
4. North Cascade Mountains...... Washington DNR 164.2 (425.2) 164.2 (425.2)
Lynx Habitat
Management Plan.
5. Greater Yellowstone Area..... Montana DNRC Multi- 1.3 (3.3) 1.3 (3.3)
species Habitat
Conservation Plan.
----------------------------------------------------------------------------------------------------------------
If these areas are excluded from the final designation, a total of
1,915 mi\2\ (4,960 km\2\) would be excluded from the critical habitat
designation, reducing the total area proposed for designation to 39,632
mi\2\ (102,647 km\2\), which woud be 632 mi\2\ (1,637 km\2\)--1.6
percent--larger that the area we designated in 2009. However, we
specifically solicit comments on the inclusion or exclusion of such
areas. In the paragraphs below, we provide a more detailed analysis of
our consideration of exclusion of these lands under section 4(b)(2) of
the Act.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In our draft (73
FR 62450) and final (Industrial Economics, Inc. 2008, entire) economic
analyses of the 2009 final revised critical habitat designation, we
evaluated the potential economic effects on small business entities
from conservation actions related to the listing of the Canada lynx and
revised designation of the species' critical habitat. The activities
affected by Canada lynx conservation efforts may include land
development, transportation and utility operations, and conservation on
public and Tribal lands. The following is a summary of the information
contained in the final economic analysis:
(a) Development
According to the final economic analysis, Canada lynx development-
related costs accounted for less than 1 percent of forecast incremental
costs, and were estimated at $8,130 (in 2008 dollars) over 20 years.
The costs consisted of administrative costs of conducting consultations
under section 7 of the Act on development projects. As a result of this
information, we determined and certified that the final revised
designation was not anticipated to have a significant economic impact
on a substantial number of small businesses with respect to development
activities.
(b) Forest Management
Potential costs to forest management in designated habitat
accounted for another 16 percent of forecast costs. Undiscounted costs
were estimated at $233,000 (in 2008 dollars) over 20 years. The costs
consisted of administrative costs of conducting consultations under
section 7 of the Act on forest management. These costs were expected to
be borne by Federal and State governments, private timber landowners,
Tribal landowners, and other private landowners across the units of the
designation. The administrative costs would be divided among many
entities and projects over a 20-year period. As a result of this
information, we determined and certified that the final revised
designation was not anticipated to have a significant economic impact
on small forest management businesses.
(c) Recreation
Future costs associated with managing recreation accounted for an
additional 19 percent of forecast costs.
[[Page 59462]]
Costs were estimated to be $285,000 (in 2008 dollars) over 20 years.
The costs consisted of administrative costs of conducting consultations
under section 7 of the Act associated with managing recreation (i.e.,
reductions of snowmobile opportunities) in Unit 4 (North Cascades).
Incremental costs would be incurred by State and Federal agencies. The
final economic analysis specifically addressed the potential impacts to
recreational snowmobilers and supporting businesses in Washington State
(and elsewhere) and concluded that significant economic or other social
impacts were not anticipated (Industrial Economics, Inc. 2008, pp. 6-
3--6-16). As a result of this information, we determined and certified
that the final revised designation was not anticipated to have a
significant economic impact on a substantial number of small recreation
businesses.
(d) Lynx Management Plans
Future costs associated with development of lynx management plans
accounted for approximately one percent of forecast costs. Costs were
estimated to be $12,300 (in 2008 dollars) over 20 years. The costs
consisted of administrative costs of conducting consultations under
section 7 of the Act on lynx management plans by Federal agencies. As a
result of this information, we determined and certified that the final
revised designation of critical habitat was not anticipated to have a
significant economic impact on a substantial number of small
businesses.
(e) Mining/Oil and Gas
Future costs associated with mining and oil and gas exploration and
development activities accounted for an additional 8 percent of
forecast costs. Costs were estimated at $115,000 (in 2008 dollars) over
20 years. The costs consisted of administrative costs of conducting
consultations under section 7 of the Act on mining and oil and gas
projects by Federal agencies in Units 2, 4, and 5. As a result of this
information, we determined and certified that the final revised
designation of critical habitat was not anticipated to have a
significant economic impact on a substantial number of small mining or
oil and gas businesses.
We are not proposing to exclude any areas under section 4(b)(2)
based solely on economic impacts. However, to evaluate potential
economic impacts of this proposed revised critical habitat designation,
we will update and revise the 2008 economic analysis based on public
comment, evaluation of potential impacts of proposed additions to the
2009 critical habitat designation as described in this proposed rule,
and to reflect current dollar values. The 2008 economic analysis is
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Montana Ecological Services
Field Office directly (see FOR FURTHER INFORMATION CONTACT section).
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for lynx are not owned or managed by the Department of
Defense, and, therefore, we anticipate no impact on national security.
Consequently, the Secretary does not propose to exert her discretion to
exclude any areas from the final designation based on impacts on
national 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. We consider a number of factors including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
Land and Resource Management Plans, Conservation Plans, or Agreements
based on Conservation Partnerships
We consider a current land management or conservation plan (HCPs as
well as other types) to provide adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides a conservation benefit for
the species and its habitat;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
We have made the preliminary determination that the Maine Healthy
Forest Reserve Program (HFRP), the State of Washington Department of
Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed
Lands, and the State of Montana Department of Natural Resources and
Conservation (DNRC) Forested State Trust Lands Habitat Conservation
Plan (HCP) fulfill the above criteria, and are considering the
exclusion of the non-Federal lands covered by these plans that provide
for the conservation of lynx.
Maine Healthy Forest Reserve Program (HFRP)
In 2003, Congress passed the Healthy Forest Restoration Act. Title
V of this Act designates a Healthy Forest Reserve Program with
objectives to: (1) Promote the recovery of threatened and endangered
species, (2) improve biodiversity, and (3) enhance carbon
sequestration. In 2006, Congress provided the first funding for the
HFRP, and Maine, Arkansas, and Mississippi were chosen as pilot States
to receive funding through their respective Natural Resources
Conservation Service (NRCS) State offices. Based on a successful pilot
program, in 2008, the HFRP was reauthorized as part of the Farm Bill,
and in 2010, NRCS published a final rule in the Federal Register (75 FR
6539) amending regulations for the HFRP based on provisions amended by
the bill.
In 2006 and 2007, the NRCS offered the HFRP to landowners in the
proposed Canada lynx critical habitat unit in Maine to promote
development of Canada lynx forest management plans. At that time, five
landowners enrolled in the Maine HFRP--the Passamaquoddy Tribe (42.8
mi\2\; 110.9 km\2\), The Nature Conservancy (284.5 mi\2\; 736.9 km\2\),
the Forest Society of Maine as conservation easement holder for the
Merriweather LLC-West Branch Project (444.2 mi\2\; 1,150.4 km\2\),
Katahdin Forest Products (213.4 mi\2\; 552.6 km\2\), and Elliotsville
Plantation, Inc., (84.9 mi\2\; 219.9 km\2\). Collectively, the
landowners signed contracts (with NRCS) committing to developing lynx
forest management plans on 1,069.8 mi\2\ (2,770.7 km\2\). However, one
of the
[[Page 59463]]
landowners has since discontinued enrollment in the program. Because of
that and other mapping refinements, the amount of land currently
managed in accordance with Maine HFRP is 943.2 mi\2\ (2,443.0 km\2\),
or 8.5 percent of the total proposed critical habitat in Unit 1. Lynx
maintain large home ranges; therefore, forest management plans at large
landscape scales will provide substantive recovery benefits to lynx.
The NRCS requires that lynx forest management plans must be based
on the Service's ``Canada Lynx Habitat Management Guidelines for
Maine'' (McCollough 2007, entire). These guidelines were developed from
the best available science on lynx management for Maine and have been
revised as new research results became available. The guidelines
require maintenance of prescribed hare densities that have resulted in
reproducing lynx populations in Maine. The guidelines are:
1. Avoid upgrading or paving dirt or gravel roads traversing lynx
habitat. Avoid construction of new high-speed/high-traffic-volume roads
in lynx habitat. Desired outcome: Avoid fragmenting potential lynx
habitat with high-traffic/high-speed roads.
2. Maintain through time at least one lynx habitat unit of 35,000
ac (14,164 ha) (~1.5 townships) or more for every 200,000 ac (80,937
ha) (~9 townships) of ownership. At any time, about 20 percent of the
area in a lynx habitat unit should be in the optimal mid-regeneration
conditions (see Guideline 3). Desired outcome: Create a landscape that
will maintain a continuous presence of a mosaic of successional stages,
especially mid-regeneration patches that will support resident lynx.
3. Employ silvicultural methods that will create regenerating
conifer-dominated stands 12-35 ft (3.7-10.7 m) in height with high stem
density (7,000-15,000 stems/ac; 2,800-6,000 stems/ha) and horizontal
cover above the average snow depth that will support greater than 2.7
hares/ac (1.1 hares/ha). Desired outcome: Employ silvicultural
techniques that create, maintain, or prolong use of stands by high
populations of snowshoe hares.
4. Maintain land in forest management. Development and associated
activities should be consolidated to minimize direct and indirect
impacts. Avoid development projects that occur across large areas,
increase lynx mortality, fragment habitat, or result in barriers that
affect lynx movements and dispersal. Desired outcome: Maintain the
current amount and distribution of commercial forest land in northern
Maine. Prevent forest fragmentation and barriers to movements. Avoid
development that introduces new sources of lynx mortality.
5. Encourage coarse woody debris for den sites by maintaining
standing dead trees after harvest and leaving patches (at least .75 ac;
.30 ha) of windthrow or insect damage. Desired outcome: Retain coarse
woody debris for denning sites.
Notably, HFRP forest management plans must provide a net
conservation benefit for lynx, which will be achieved by employing the
lynx guidelines, identifying baseline habitat conditions, and meeting
NRCS standards for forest plans. Plans must meet NRCS HFRP criteria and
guidelines and comply with numerous environmental standards. NEPA
compliance will be completed for each plan. The NRCS held public
informational sessions about the HFRP and advertised the availability
of funds. Plans must be reviewed and approved by the NRCS with
assistance from the Service. The details of the plans are proprietary
and will not be made public per NRCS policy.
Plans must be developed for a forest rotation (70 years) and
include a decade-by-decade assessment of the location and anticipated
condition of lynx habitat on the ownership. Some landowners are
developing plans exclusively for lynx, and others are combining lynx
management (umbrella species for young forest) with pine marten
(umbrella species for mature forest) and other biodiversity objectives.
Broad public benefits will derive from these plans, including benefits
to many species of wildlife that share habitat with the lynx.
Landowners are writing their own plans. The Nature Conservancy
contracted with the University of Maine, Department of Wildlife Ecology
to develop a lynx-pine marten plan that serves as a model for lynx/
biodiversity forest planning and will be shared with other northern
Maine landowners.
Landowners who are enrolled with the NRCS commit to a 10-year
contract. Landowners must complete their lynx forest management plans
within 2 years of enrollment. Currently, two plans are completed and
two are in the final stage of editing. The majority (50 to 60 percent)
of HFRP funds are withheld until plans are completed. By year 7,
landowners must demonstrate on-the-ground implementation of their plan.
The NRCS will monitor and enforce compliance with the 10-year
contracts. At the conclusion of the 10-year cost share contract, we
anticipate that Safe Harbor Agreements or other agreements to provide
regulatory assurances will be developed by all landowners as an
incentive to continue implementing the plans.
We completed a programmatic biological opinion for the HFRP in 2006
that assesses the overall effects of the program on lynx habitat and on
individual lynx and provides the required incidental take coverage.
Separate biological opinions will be developed under this programmatic
opinion for each of the four enrollees. These tiered opinions will
document environmental baseline, net conservation benefits, and
incidental take for each landowner. If additional HFRP funding is made
available to Maine in the future, new enrollees will be tiered under
this programmatic opinion. This programmatic opinion will be revised as
new information is obtained, or if new rare, threatened, or endangered
species are considered for HFRP funding.
Commitments to the HFRP are strengthened by several other
conservation efforts. The Nature Conservancy land enrolled in the HFRP
is also enrolled in the Forest Stewardship Council (FSC) forest
certification program, which requires safeguards for threatened and
endangered species. The Forest Society of Maine is under contract to
manage a conservation easement held by the State of Maine on the
Katahdin Forest Management lands, which is also enrolled in the HFRP.
This easement requires that threatened and endangered species be
protected and managed. The Forest Society of Maine also holds a
conservation easement on the Merriweather LLC--West Branch property,
which contains requirements that threatened and endangered species be
protected and managed. These lands are also certified under the
Sustainable Forestry Initiative and FSC, which require that there be
programs for threatened and endangered species. The Passamaquoddy
enrolled lands are managed as trust lands by the Bureau of Indian
Affairs, and projects occurring on those lands are subject to NEPA
review and section 7 consultation.
In the final revised critical habitat designation, published in the
Federal Register on February 25, 2009 (74 FR 8649-8652), we determined
that the benefits of excluding lands managed in accordance with the
Maine HFRP outweighed the benefits of including them in the
designation, and that doing so would not result in extinction of the
species. We, therefore, again consider excluding 943.2 mi\2\ (2,443.0
km\2\) of lands currently managed in accordance with the Maine HFRP
from the revised lynx critical habitat designation. However, in the
final rule, we will again
[[Page 59464]]
weigh the benefits of inclusion versus exclusion of these lands in the
final critical habitat designation.
State of Washington Department of Natural Resources Lynx Habitat
Management Plan for DNR-managed Lands (WDNR LHMP)
The WDNR LHMP encompasses 197 mi\2\ (510 km\2\) of WDNR-managed
lands distributed throughout north-central and northeastern Washington
in areas delineated as Lynx Management Zones in the Washington State
Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-
13). Of the area covered by the plan, 164.2 mi\2\ (425.2 km\2\)
overlaps the area proposed for designation as critical habitat. The
WDNR LHMP was finalized in 2006, and is a revision of the lynx plan
that WDNR had been implementing since 1996. The 1996 plan was developed
as a substitute for a species-specific critical habitat designation
required by Washington Forest Practices rules in response to the lynx
being State-listed as threatened (Washington DNR 2006, p. 5). The 2006
WDNR LHMP provided further provisions to avoid the incidental take of
lynx (Washington DNR 2006, p. 6). WDNR is committed to following the
LHMP until 2076, or until the lynx is delisted (Washington DNR 2006, p.
6). WDNR requested that lands subject to the plan be excluded from
critical habitat.
The WDNR LHMP contains measures to guide WDNR in creating and
preserving quality lynx habitat through its forest management
activities. The objectives and strategies of the LHMP are developed for
multiple planning scales (ecoprovince and ecodivision, Lynx Management
Zone, Lynx Analysis Unit (LAU), and ecological community), and include:
1. Encouraging genetic integrity at the species level by preventing
bottlenecks between British Columbia and Washington by limiting size
and shape of temporary non-habitat along the border and maintaining
major routes of dispersal between British Columbia and Washington;
2. Maintaining connectivity between subpopulations by maintaining
dispersal routes between and within zones and arranging timber harvest
activities that result in temporary non-habitat patches among
watersheds so that connectivity is maintained within each zone;
3. Maintaining the integrity of requisite habitat types within
individual home ranges by maintaining connectivity between and
integrity within home ranges used by individuals and/or family groups;
and
4. Providing a diversity of successional stages within each LAU and
connecting denning sites and foraging sites with forested cover without
isolating them with open areas by prolonging the persistence of
snowshoe hare habitat and retaining coarse woody debris for denning
sites (Washington DNR 2006, p. 29).
The LHMP identifies specific guidelines to achieve the objectives
and strategies at each scale; it also describes how WDNR will monitor
and evaluate the implementation and effectiveness of the LHMP
(Washington DNR 2006, pp. 29-63). WDNR has been managing for lynx for
almost two decades, and the Service has concluded that the management
strategies implemented are effective.
In the final revised critical habitat designation, published in the
Federal Register on February 25, 2009 (74 FR 8657-8658), we determined
that the benefits of excluding lands managed in accordance with the
WDNR LHMP outweighed the benefits of including them in the designation,
and that doing so would not result in extinction of the species. We,
therefore, again consider excluding 164.2 mi\2\ (425.2 km\2\) of lands
managed in accordance with the WDNR LHMP from the revised lynx critical
habitat designation. However, in the final rule, we will again weigh
the benefits of inclusion versus exclusion of these lands in the final
critical habitat designation.
State of Montana Department of Natural Resources and Conservation
Forested State Trust Lands Habitat Conservation Plan (MDNRC HCP)
The Montana DNRC worked closely with the Service in developing and
completing NEPA analysis on this multi-species HCP (Montana DNRC and
U.S. Fish and Wildlife Service 2010, entire). It includes a Lynx
Conservation Strategy that minimizes impacts of forest management
activities on lynx, complements lynx conservation objectives set forth
in the States' Comprehensive Fish and Wildlife Conservation Strategy
(Montana Department of Fish, Wildlife and Parks 2005, entire), and
describes conservation commitments that are based on recent information
from lynx research in Montana (Montana DNRC and U.S. Fish and Wildlife
Service 2010, pp. 2-45--2-61). It also commits to active lynx
monitoring and adaptive management programs (Montana DNRC and U.S. Fish
and Wildlife Service 2010, pp. 4-27--4-37).
In our biological opinion regarding potential impacts to lynx of
implementation of the HCP, the Service concluded that the HCP ``. . .
promotes the conservation of lynx and their habitat through increased
conservation commitments by DNRC for forest management practices,
maintenance of the habitat mosaic, structure, and components required
to support lynx and their primary prey, the snowshoe hare, monitoring,
and adaptive management'' (U.S. Fish and Wildlife Service 2011, p. III-
94). We determined that the proposed action is not likely to jeopardize
the continued existence of Canada lynx within the contiguous U.S. DPS
and that forest management activities managed under the conservation
commitments of the DNRC HCP would not appreciably reduce the likelihood
of survival and recovery of Canada lynx (U.S. Fish and Wildlife Service
2011, p. III-94). Therefore, we propose to exclude 271.4 mi\2\ (703.0
km\2\) of forested State Trust lands in western Montana managed in
accordance with the DNRC HCP from the revised lynx critical habitat
designation in Unit 3, and 1.3 mi\2\ (3.3 km\2\) in southwest Montana
from designation in Unit 5. However, we will weigh the benefits of
inclusion versus exclusion of these lands in the final critical habitat
designation.
Tribal Lands
Tribal lands in Maine, Minnesota, and Montana fall within the
boundaries of the proposed critical habitat designation in the Maine,
Minnesota, and Northern Rocky Mountains units. These Tribal lands
include those of the Houlton Band of Maliseet Indians, Aroostook Band
of Micmac Indians, Passamaquoddy Tribe, and Penobscot Indian Nation in
Maine (Unit 1), Grand Portage Indian Reservation and Bois Forte Indian
Reservation--Vermillion Lake District in Minnesota (Unit 2), and the
Flathead Indian Reservation in Montana (Unit 3). The amount of Tribal
lands that occur within the proposed designation is relatively small in
size, totaling approximately 534.9 mi\2\ (1,385.4 km\2\), or 1.3
percent of the total proposed designation. The areas being considered
for exclusion includes 87.2 mi\2\ (226 km\2\) in Maine, 77.9 mi\2\ (202
km\2\) in Minnesota, and 369.8 mi\2\ (958 km\2\) in Montana. In the
final rule designating revised critical habitat, published in the
Federal Register on February 25, 2009 (74 FR 8648-8649), we determined
that the benefits of excluding Tribal lands in Maine, Minnesota, and
Montana outweighed the benefits of including them. We determined that
exclusion of Tribal lands from the designation of critical habitat for
the lynx will not result in the extinction of the species because the
Houlton Band of Maliseet
[[Page 59465]]
Indians, Aroostook Band of Micmac Indians, Passamaquoddy Tribe,
Penobscot Indian Nation, Grand Portage Indians, Bois Forte Indians, and
Flathead Indian Reservation Tribes implement programs for the
conservation of the species, and physical and biological features
essential to it, in occupied areas. The protections afforded to the
lynx under the jeopardy standard will remain in place for the areas
considered for exclusion from revised critical habitat. Therefore, and
in light of Secretarial Order 3206 and Tribal management of lynx and
their habitat, we are considering excluding these Tribal lands from the
revised lynx critical habitat designation. (See also Government-to-
Government Relationship with Tribes, below).
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned.
We prepared a final economic analysis to evaluate the potential
economic impacts of our 2009 critical habitat designation. To ensure
that we adequately consider the economic impacts of the current
proposed designation, we will prepare an economic analysis of this
proposed designation and make it available for public comment. The
economic analysis will address issues raised by the court that were
described earlier in this proposed rule.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, and analyses. We have invited these peer reviewers to comment
during this public comment period.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
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 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(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 such businesses as 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 forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking only on those entities directly regulated by the
rulemaking itself, and not the potential impacts to indirectly affected
entities. The regulatory mechanism through which critical habitat
protections are realized is section 7 of the Act, which requires
Federal agencies, in
[[Page 59466]]
consultation with the Service, to ensure that any action authorized,
funded, or carried by the Agency is not likely to adversely modify
critical habitat. Therefore, only Federal action agencies are directly
subject to the specific regulatory requirement (avoiding destruction
and adverse modification) imposed by critical habitat designation.
Under these circumstances, it is our position that only Federal action
agencies will be directly regulated by this designation. Therefore,
because Federal agencies are not small entities, the Service certifies
that the proposed critical habitat rule will not have a significant
economic impact on a substantial number of small entities.
In conclusion, based on our interpretation of directly regulated
entities under the RFA and relevant case law, this designation of
critical habitat will directly regulate only Federal agencies, which
are not by definition small business entities. And as such, we certify
that, if promulgated, this designation of critical habitat will not
have a significant economic impact on a substantial number of small
business entities. Therefore, an initial 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. As described above, the final rule designating revised
critical habitat for lynx, published in the Federal Register on
February 25, 2009 (74 FR 8616), was considered a significant regulatory
action under E.O. 12866 due to potential novel legal and policy issues.
OMB's guidance in M-01-27 for implementing this Executive Order
outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared to no regulatory action. The final economic
analysis found that none of these outcomes would result from the
critical habitat designation for lynx (Industrial Economics, Inc.,
2008, refer to Appendix B). The costs consisted of administrative costs
of conducting consultations under section 7 of the Act on mining and
oil and gas projects by Federal agencies in Units 2, 4, and 5. As such,
we do not expect the designation of this proposed critical habitat to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required. However, we will further evaluate this
issue as we conduct our revised economic analysis, and review and
revise this assessment as warranted.
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 destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. The 2008 final economic analysis for
the final rule designating revised critical habitat, published in the
Federal Register on February 25, 2009 (74 FR 8616), evaluated potential
impacts of critical habitat designation for the Canada lynx on timber
management, recreation, land development, mining, oil and gas
development, and the development of management plans (Industrial
Economics, Inc., 2008, entire). The analysis estimated costs of the
rule to be $2.11 million at then-present value over a 20-year period
($142,000 annualized) assuming a 3 percent discount rate, and $1.49
million ($141,000 annualized) assuming a 7 percent discount rate (all
values are in 2008 dollars). Most of the impacts were expected to
affect Federal agencies through administrative costs associated with
consultations under section 7 of the Act. Impacts on small governments
were not anticipated, or they were anticipated to be passed through to
consumers. The SBA does not consider the Federal Government to be a
small governmental jurisdiction or entity. Consequently, we do not
believe that the designation of critical habitat for the Canada lynx
will significantly or uniquely affect small government entities. As
such, a Small Government Agency Plan is not required. However, we will
further evaluate this issue as we revise and update the economic
analysis to address this proposed designation, and we will review and
revise this assessment if appropriate.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), this rule is not anticipated to have significant takings
implications. As discussed above, the designation of critical habitat
affects only Federal actions. Critical habitat designation 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
[[Page 59467]]
incidental take permits to permit actions that do require Federal
funding or permits to go forward. Due to current public knowledge of
the species protections and the prohibition against take of the species
both within and outside of the proposed areas, we do not anticipate
that property values will be affected by the critical habitat
designation. However, we have not yet completed the economic analysis
for this proposed rule. Once the economic analysis is available, we
will review and revise this preliminary assessment as warranted, and
prepare a Takings Implication Assessment.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in Maine, Minnesota, Montana, Idaho, Washington, and Wyoming.
The designation of critical habitat in areas currently occupied by the
lynx may impose nominal additional regulatory restrictions to those
currently in place and, therefore, may have little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments because the areas that
contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features necessary to the conservation of the species are
specifically identified. This information does not alter where and what
Federally sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
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 any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (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)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of the Canada lynx, under the Tenth Circuit ruling in Catron
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75
F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for
critical habitat designation. We completed a NEPA analysis for the 2009
designation; we will update and revise that analysis based on the
current proposal and notify the public of the availability of the draft
environmental assessment for this proposal when it is finished.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
Tribal lands in Maine, Minnesota, and Montana fall within the
boundaries of the proposed critical habitat designation in the Maine,
Minnesota, and Northern Rocky Mountains units. Tribal lands that fall
within the proposed designation include those of the Houlton Band of
Maliseet Indians, Aroostook Band of Micmac Indians, Passamaquoddy
Tribe, and Penobscot Indian Nation in Maine (Unit 1), Grand Portage
Indian Reservation and Bois Forte Indian Reservation--Vermillion Lake
District in Minnesota (Unit 2), and the Flathead Indian Reservation in
Montana (Unit 3). During development of the 2009 final rule, we
contacted and met with a number of Tribes to discuss the proposed
designation, and we also received comments from numerous Tribes
requesting that their lands not be designated as critical habitat
because of their sovereign rights, in addition to concerns about
economic impacts and the effect on their ability to manage natural
resources. As described above (see Application of Section 4(b)(2) of
the Act--Exclusions Based on Other Relevant Impacts), we determined in
the 2009 final rule that the benefits of excluding these Tribal lands
from the proposed lynx critical habitat designation outweighed the
benefits of including them, and that doing so would not result in
extinction of the species.
[[Page 59468]]
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Montana Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
Montana Fish and Wildlife Office, the Maine Fish and Wildlife Office,
and the New England Fish andWildlife office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544;-4245; unless
otherwise noted.
0
2. In Sec. 17.11(h), revise the entry for ``Lynx, Canada'' under
``Mammals'' in the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Lynx, Canada.................... Lynx canadensis.... U.S.A. (AK, CO, ID, Where found within T........... 692........ 17.95(a)..... 17.40(k)
ME, MI, MN, MT, contiguous U.S.A.
NH, NY, OR, UT,
VT, WA, WI, WY),
Canada,
circumboreal.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (a) by revising the entry for
``Canada Lynx (Lynx canadensis)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Canada Lynx (Lynx canadensis)
(1) Critical habitat units are depicted on the maps below for the
following States and counties:
(i) Idaho: Boundary County;
(ii) Maine: Aroostook, Franklin, Penobscot, Piscataquis and
Somerset counties;
(iii) Minnesota: Cook, Koochiching, Lake, and St. Louis counties;
(iv) Montana: Carbon, Flathead, Gallatin, Glacier, Granite, Lake,
Lewis and Clark, Lincoln, Missoula, Park, Pondera, Powell, Stillwater,
Sweetgrass, and Teton counties;
(v) Washington: Chelan and Okanogan counties; and
(vi) Wyoming: Fremont, Lincoln, Park, Sublette, and Teton counties.
(2) Within these areas the primary constituent element for the
Canada lynx is boreal forest landscapes supporting a mosaic of
differing successional forest stages and containing:
(i) Presence of snowshoe hares and their preferred habitat
conditions, which include dense understories of young trees, shrubs or
overhanging boughs that protrude above the snow, and mature
multistoried stands with conifer boughs touching the snow surface;
(ii) Winter conditions that provide and maintain deep fluffy snow
for extended periods of time;
(iii) Sites for denning that have abundant coarse woody debris,
such as downed trees and root wads; and
(iv) Matrix habitat (e.g., hardwood forest, dry forest, non-forest,
or other habitat types that do not support snowshoe hares) that occurs
between patches of boreal forest in close juxtaposition (at the scale
of a lynx home range) such that lynx are likely to travel through such
habitat while accessing patches of boreal forest within a home range.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
[INSERT THE EFFECTIVE DATE OF THE FINAL RULE].
(4) Critical habitat map units. Data layers defining map units were
created using a USA Contiguous Albers Equal Area Conic projection. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site, http://www.fws.gov/montanafieldoffice/, at http://www.regulations.gov at
Docket No. FWS-R6-ES-2013-0101) and at the field office responsible for
this designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
[[Page 59469]]
(5) Note: Index map of critical habitat for Canada lynx follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.001
[[Page 59470]]
(6) Unit 1: Maine. Map of Unit 1, Maine, follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.002
[[Page 59471]]
(7) Unit 2: Minnesota. Map of Unit 2, Minnesota, follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.003
[[Page 59472]]
(8) Unit 3: Northern Rockies. Map of Unit 3, Northern Rockies,
follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.004
[[Page 59473]]
(9) Unit 4: North Cascades. Map of Unit 4, North Cascades, follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.005
[[Page 59474]]
(10) Unit 5: Greater Yellowstone Area. Map of Unit 5, Greater
Yellowstone Area, follows:
[GRAPHIC] [TIFF OMITTED] TP26SE13.006
* * * * *
Dated: September 16, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-23189 Filed 9-25-13; 8:45 am]
BILLING CODE 4310-55-P