Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Taylor’s Checkerspot Butterfly and Streaked Horned Lark
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Final rule.
CFR Part: "50 CFR Part 17"
RIN Number: "RIN 1081-AZ36"
Citation: "78 FR 61506"
Document Number: "Docket No. FWS-R1-ES2013-0009; 4500030114"
"Rules and Regulations"
SUMMARY: We, the
   DATES: This rule is effective on
   ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the Washington Fish and Wildlife Office. Comments and materials we received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at:
   The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009 and at http://www.fws.gov/wafwo/TCBSHL.html, or, by appointment, at the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the
   FOR FURTHER INFORMATION CONTACT:
   SUPPLEMENTARY INFORMATION:
Executive Summary
   Why We Need to Publish a Rule. Under the Endangered Species Act (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Elsewhere in today's issue of the
   Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Additionally, the Act sets forth the requirement to finalize rules within 1 year of proposal.
   This rule designates critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. On
    * Approximately 1,941 acres (ac) (786 hectares (ha)) in three units for the Taylor's checkerspot butterfly in
    * Approximately 4,629 ac (1,873 ha) in two units for the streaked horned lark in
   We have prepared an economic analysis of the designation of critical habitat. We have prepared an analysis of the probable economic impacts of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) in the
   Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from two knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available information. These peer reviewers concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation. We also considered all comments and information we received from the public during the comment period.
Previous Federal Actions
   All previous Federal actions are described in the listing determination for the Taylor's checkerspot butterfly and streaked horned lark, which is published elsewhere in today's
Background
   For information related to the listing of the species, see the final rule listing Taylor's checkerspot butterfly as an endangered species and the streaked horned lark as a threatened species, which is published elsewhere in today's
Summary of Comments and Recommendations
   We requested written comments from the public on the proposed designation of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark during two comment periods. The first comment period, associated with the publication of the proposed rule (77 FR 61937;
   During the two public comment periods, we received close to 100 comment letters and emails from individuals and organizations, as well as speaker testimony at the public hearing held on
   We contacted the only tribe potentially affected by the proposed designation (the
   All substantive information provided during comment periods has either been incorporated directly into this final designation or is addressed below. Comments we received are grouped into general issues specifically relating to the proposed critical habitat designation for the Taylor's checkerspot butterfly and streaked horned lark, and are addressed in the following summary and incorporated into the final rule as appropriate.
Comments From
   In accordance with our peer review policy published on
   We received responses from three of the peer reviewers for the streaked horned lark. Two of the peer reviewers felt that the proposed rule was a thorough description of the status of the streaked horned lark, and that our assessment of the primary constituent elements of critical habitat was correct. Two peer reviewers made several substantive comments relevant to the proposed critical habitat designation for the streaked horned lark, which we respond to below and also in the Comments from the Public section in cases where we received a similar comment from the public. Our requests for peer review are limited to a request for review of the merits of the scientific information in our documents; if peer reviewers have volunteered their personal opinions on matters not directly relevant to the science of our designation, we do not respond to those comments here.
Streaked Horned Lark
   (1) Comment: One peer reviewer stated that the proposed designation of critical habitat was lacking formal agreements for lark conservation with land owners and managers of sites proposed for critical habitat, or at sites the peer reviewer believes should have been proposed as critical habitat.
   Our Response: Our requests for peer review are limited to a request for review of the scientific information in our documents. In this case the peer reviewer has offered his opinion on a non-scientific issue; however, management agreements are not a requirement for critical habitat designation. We will seek agreements with land owners and managers on lands designated as critical habitat and on other lands that are important to conservation of the streaked horned lark as we initiate a recovery program for the bird, but such agreements are not relevant to the designation of critical habitat unless we are considering whether to exclude an area from the designation pursuant to section 4(b)(2) of the Act. We did consider the additional sites the peer reviewer suggested should have been proposed as critical habitat; however, we concluded that the areas suggested did not meet our definition of critical habitat for the streaked horned lark.
   (2) Comment: One peer reviewer commented on our lack of discussion of wintering habitat requirements for the streaked horned lark. The peer reviewer suggested that if wintering habitats are the same as habitats used for breeding, we should state that explicitly. The peer reviewer also commented on the fact that all of the proposed critical habitat sites were identified as either breeding habitats or breeding and wintering habitats, but there were no sites identified as solely wintering sites.
   Our Response: Our current knowledge of habitat use by the streaked horned lark indicates that there are no sites that are used solely for wintering habitat. There are sites in
   (3) Comment: Two peer reviewers and several commenters expressed concern about relying on airports for streaked horned lark recovery because although airports harbor populations of larks, the sites may act as "population sinks" due to the constant habitat disturbance, hazing, and threat of aircraft strikes.
   Our Response: We share this concern. Streaked horned larks occur on airports because management to control hazardous wildlife and to maintain safe conditions for aviation has incidentally created suitable habitat for the subspecies; however, airports are not ideal locations for focusing recovery efforts for the streaked horned lark. First, the birds are at risk of mortality from plane collisions, and have frequently been documented in bird strikes at airports (Cleary and Dolbeer 2005, p. 101). Secondly,
   (4) Comment: One peer reviewer asked if industrial lands may be population sinks (i.e., they provide attractive locations for breeding but do not contribute to population growth), given their frequent disturbance without regard to the effect on the streaked horned lark, and further inquired if we had considered the possible long-term effects of the activities exempted in the special rule. The peer reviewer suggested that perhaps we should not encourage maintenance of sink habitats.
   Our Response: At this point, we do not know whether industrial lands function as sink habitats for breeding streaked horned larks; we will focus on gaining a better understanding of lark population dynamics in these habitats in the recovery program for the bird. We agree that this will be an important issue as we identify habitats that have the potential for contributing to the long-term conservation of the subspecies. We acknowledged this concern in response to another comment as well (see our response to Comment 3, above).
   (5) Comment: One peer reviewer and one commenter stated the designation of
   Our Response: We proposed critical habitat on a portion of
   (6) Comment: One peer reviewer and several commenters recommended that we designate critical habitat on sites that are not known to be currently occupied by streaked horned lark, but could be managed to provide suitable habitat. These sites include privately owned agricultural lands in the
   Our Response: Recovery of the streaked horned lark will likely require the restoration or creation of new habitat on some currently unoccupied sites. As described in the proposed rule, streaked horned larks require habitat with both a specific landscape context (flat and wide-open) and structure (low-stature vegetation with abundant bare ground). Given the appropriate landscape context, the structure is easy to create, which has fostered the hope of establishing new habitats for streaked horned larks at sites with conservation management as their main objective. There have recently been some attempts to create habitat for and to attract streaked horned larks to suitable but unoccupied habitats. An experimental approach, initially implemented by Metro (the
Comments From States
   Section 4(i) of the Act states, "the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition." Comments we received from State agencies regarding the proposal to designate critical habitat for the Taylor's checkerspot butterfly and streaked horned lark are addressed below. We received comments from the
   Both agencies (WDFW and WDNR) provided a number of recommended technical corrections or edits to the proposed critical habitat designation for the Taylor's checkerspot butterfly and streaked horned lark. We have evaluated and incorporated this information into this final rule where appropriate to clarify the final critical habitat designation. In instances where the Service may have disagreed with an interpretation of the technical information that was provided, we have responded in separate communication with the agency.
   (7) Comment: WDFW noted that the critical habitat designation for Taylor's checkerspot butterfly in the Bald Hill area did not appear to include some historical Taylor's checkerspot butterfly locations with suitable habitat. WDFW believes both Fossil Rock and Bald Hill 1176 Spur A Bald should have been included in proposed critical habitat.
   Our Response: We considered the WDFW's suggestion, but concluded the contiguous area proposed for designation as critical habitat in this area for Taylor's checkerspot butterfly would provide better management opportunities for the subspecies than would designating multiple, isolated patches. The focus of conservation work in the Bald Hill area has been in the vicinity of the State's
   (8) Comment: WDFW encouraged the Service to not only ensure that the conservation measures provided for in the integrated natural resources management plan (INRMP) for JBLM are sufficient to preclude the need to designate critical habitat for the Taylor's checkerspot butterfly and streaked horned lark, but also that implementation of the plan can be assured. WDFW also requested we consider excluding WDFW properties addressed by their draft wildlife area habitat conservation plan (HCP).
   Our Response: Section 4(a)(3)(B)(i) of the Act specifically states that the Secretary shall not designate critical habitat on
   When deciding whether to exclude an area from designation of critical habitat under section 4(b)(2) of the Act, the Service needs to assess not only the conservation measures outlined within management plans regardless of agency or organization, but also the level of assurance an agency can provide of actually funding and implementing the conservation measures identified within the plan. The same process would hold true when evaluating the WDFW wildlife area HCP. As described in the Exclusions section of this document, we have excluded the Wildlife Areas owned and managed by WDFW because of the management plans in place for these State Wildlife Areas (
   (9) Comment: WDFW was concerned that, with the new helicopter brigade stationed at JBLM, the airstrip on TA 14 on 13th Division Prairie is now used almost daily during streaked horned lark breeding season, with many low-elevation flights and "touch-and-go" exercises occurring in the highest density occupied habitat. This is also a concern for adult Taylor's checkerspot butterflies at this site. They were also concerned with impacts associated with off-road training conducted in the 13th Division Prairie.
   Our Response: Activities conducted on JBLM, including air operations at 13th Division Prairie, the military airfields, and other areas, will be addressed in section 7 consultations after the subspecies are listed. The Service is currently coordinating with the Environmental and Natural Resource Division and staff from Range Control on training activities that impact the Taylor's checkerspot butterfly and streaked horned lark, and we are in negotiations on ways to further reduce impacts to these two subspecies specifically at this location. JBLM is aware that they will need to implement timing restrictions and avoid conducting training activities in certain locations or during the most sensitive time of year to minimize or avoid take of the subspecies after they are listed. This will include the areas adjacent to the Pacemaker runway and other portions of the 13th Division Prairie where the Taylor's checkerspot butterfly and streaked horned lark occur.
   (10) Comment: WDNR was concerned that the safe use of pesticides to control nonnative, invasive insects, such as gypsy moth, may be impacted by the listing and designation of critical habitat for Taylor's checkerspot butterfly.
   Our Response: We do not see pesticide use in general to pose an adverse impact to Taylor's checkerspot butterflies unless individuals are directly exposed to the pesticides. The Service does not anticipate the need for pesticide spraying on habitat occupied by Taylor's checkerspot butterflies, as the subspecies does not occupy forested areas where such pesticides are generally applied. However, if pesticide were to be sprayed in areas where pesticide drift would expose Taylor's checkerspot butterflies to the pesticide(s), then we would be concerned with their application in these situations. The Service acknowledges the use of pesticides as harmful to Taylor's checkerspot butterfly at all life stages. We specifically discourage the use of insecticides such as Bacillus thuringiensis var. kurstaki (BtK) in forested areas adjacent to Taylor's checkerspot butterfly habitat. This insecticide, which is used for harmful defoliators like gypsy moth and spruce budworm, has been implicated in the loss of three populations of Taylor's checkerspot butterfly in
Comments From Federal Agencies
   (11) Comment: The Service should remove those portions of the
   Our Response: We agree that some portions of the BPA rights-of-way in areas formerly occupied by Taylor's checkerspot butterfly do not contain biological features that are important for the subspecies; therefore we have made minor changes to the critical habitat boundaries to remove those areas that do not meet our definition of critical habitat. Furthermore, as explicitly described in this rule, 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 the effective date of this rule (see DATES). Therefore, access roads and transmission towers and their related infrastructure are not considered critical habitat. Powerline rights-of-way are excellent areas to manage and support butterflies as the structure and composition of vegetation for the Taylor's checkerspot butterfly is compatible with right-of-way management.
   (12) Comment: BPA believes the geographic footprints of access roads and transmission structures do not contain the biological features essential for the conservation of Taylor's checkerspot butterfly, since they differ in character from the open meadow space more generally located within the rights-of-way that provide high-quality habitat for the butterfly. Therefore, they should not be designated as critical habitat.
   Our Response: The critical habitat unit referred to by BPA (Unit 4-D) is currently occupied by Taylor's checkerspot butterfly and provides several of the physical or biological features essential to the conservation of the species. Open areas that provide flight corridors between patches of suitable habitat are important for Taylor's checkerspot butterflies. In addition to the relative quality of habitat, there needs to be an avenue for movement, including movement between areas that may not provide high-quality habitat features. Access roads and other areas cleared of woody vegetation can provide important flight corridors used by Taylor's checkerspot butterflies, although roads and other structures are not consistent with critical habitat and are specifically not included in critical habitat by text, as described in our response to Comment 11, above.
   (13) Comment: The
   Our Response: The Act defines critical habitat as those specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection. The test for whether an area is essential to the conservation of the species is applied to areas that are not occupied by the species at the time of listing. All airport lands proposed for critical habitat designation for the streaked horned lark are currently occupied by the subspecies and provide the essential physical or biological features, which may require special management considerations or protection. Therefore, all airport lands proposed meet the Act's definition of critical habitat for the streaked horned lark. However, our analysis under section 4(b)(2) of the Act indicates that the benefits of including airport lands in critical habitat are outweighed by the benefits of excluding these areas. Therefore, all airport lands are excluded from this final designation of critical habitat for the streaked horned lark. Please see additional discussion under Exclusions.
   We did not propose any critical habitat on airport lands for the Taylor's checkerspot butterfly.
   (14) Comment:
   Our Response: The military airfields proposed for critical habitat designation for the streaked horned lark are currently occupied by the species. Ongoing airfield maintenance activities that are conducted at both the military and non-federal airports have created suitable habitat for the streaked horned lark that provides the essential physical or biological features for the subspecies. It is our understanding that these maintenance activities would take place regardless of the presence of the streaked horned lark. We are aware that
   (15) Comment:
   Our Response: As described above in our responses to Comments 13 and 14, we have excluded airports from the final critical habitat designation for the streaked horned lark under section 4(b)(2) of the Act and exempted all
   (16) Comment:
   Our Response: As described in the Exemptions section of this document, all JBLM lands have been removed from the final designation of critical habitat for both species under section 4(a)(3) of the Act.
   (17) Comment: The Range 50 subunit extends beyond the current and previous areas occupied by Taylor's checkerspot butterfly.
   Our Response: Range 50 is a site where introduced (translocated) Taylor's checkerspot butterflies have been placed since 2009. The translocation has taken hold, the population is increasing, and individual butterflies are dispersing to new food plants east and west of Range 50; therefore we consider this area to be currently occupied by the subspecies. Where the butterfly becomes established, it will be critical to provide areas of suitable habitat for dispersing individuals, and to allow for the establishment of meta-population structure that takes place on areas sufficiently large to allow for some local populations to "blink on" and "blink off" over time. This shift is typical and follows changes to habitat as the vegetation suitability (structure and composition) shifts between periods of restoration, or in the case of JBLM, inadvertent fires that periodically disturb the habitat, returning it to the early seral condition that provides suitable habitat for the Taylor's checkerspot butterfly.
   (18) Comment:
   Our Response: Under section 4(a)(3) of the Act, we are required to not designate any lands or other geographical areas owned or controlled by the
   (19) Comment: The
   Our Response: We considered the potential exclusion of
   (20) Comment: NRCS and another commenter recommended that we withdraw the proposed designation of critical habitat for the streaked horned lark at
   Our Response: Prior to NRCS's purchase of a conservation easement at M-DAC, the site was a perennial rye grass farm. The goals for the site include restoration of 100 (40 ha) acres of seasonal wetland, over 100 (40 ha) acres of bottomland hardwood forest, and over 300 acres (120 ha) of wet prairie habitat. Though streaked horned larks used the site in large numbers when the ground was originally cleared to prepare for habitat restoration, we agree with the commenter that the vegetation at the site has since matured and no longer provides suitable habitat for the streaked horned lark, with the exception of limited areas along a road and perhaps in the seasonal mudflats adjacent to the wetlands. The site may continue to provide habitat for a few breeding pairs of streaked horned larks; however, the long-term goals for the site do not include increasing the area of suitable habitat for streaked horned larks. The site will not be a focus of active recovery for the streaked horned lark, and very little of the 601 acres (240 ha) will provide suitable habitat for the subspecies.
   We have removed
   (21) Comment:
   Our Response: We have worked closely with the
Comments From Native American Tribes
   (22) Comment:
   Our Response: Based on our ongoing partnership with the Tribe and assurance that habitat will be protected at this site, we have excluded the
Comments From the Public
   Several commenters provided minor technical corrections or edits to the proposed critical habitat designation for Taylor's checkerspot butterfly and streaked horned lark. We have evaluated and incorporated this information into this final rule where appropriate to clarify the final critical habitat designation. In instances where the Service may have disagreed with an interpretation of the technical information that was provided, we have responded under separate comments.
   (23) Comment: One property owner in Subunit 1-D disputed the Service's authority to designate critical habitat on their lands for Taylor's checkerspot butterfly, arguing that the PCEs must be found on an area as a prerequisite to designation, and that the Act leaves no room for designation of land that may in the future contain the physical or biological features. The owner acknowledges that the property is currently unoccupied by the subspecies, but disagrees with the Service's conclusion that the available evidence indicates it was likely historically occupied by Taylor's checkerspot butterfly. The owner further claims that their property does not contain any of the specific physical or biological features that the Service has identified for Taylor's checkerspot butterfly at any stage of its development.
   Our Response: The Act provides two definitions for critical habitat: one applies to areas occupied by the species at the time of listing, the other applies to areas not occupied by the species at the time of listing. In the first case, the Act specifies that critical habitat means, "the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." This requirement that the physical or biological features be found does not apply in this particular situation, because the property in question is not presently occupied by Taylor's checkerspot butterfly. The lands in question were initially identified in the proposed rule as meeting our criteria for critical habitat under the second part of the definition of critical habitat in the Act, which adds that critical habitat includes, "specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary [of the Interior] that such areas are essential for the conservation of the species." We therefore re-evaluated the unoccupied private property in question. We evaluated its context in relation to other occupied areas supporting the Taylor's checkerspot butterfly, and other protected areas where habitat has been improved sufficiently to support translocated Taylor's checkerspot butterflies. Based upon our analysis, we have determined the unoccupied property in question is not essential to the conservation of Taylor's checkerspot butterfly; therefore it is not included in the final designation.
   (24) Comment: One landowner stated that the designation of their property as critical habitat for Taylor's checkerspot butterfly is improper because the record does not contain evidence that shows specifically where the PCEs are located. To the contrary, they believe there is evidence that the property contains physical features that the proposed rule identifies as rendering habitat unusable for the butterfly. The commenter states that any designation of critical habitat by the Service must be limited to those areas that actually contain the physical or biological features essential to the conservation of the Taylor's checkerspot butterfly.
   Our Response: The property in question was proposed as unoccupied but essential critical habitat for the Taylor's checkerspot butterfly. As noted in various responses above, the standards for designation of critical habitat differ depending on whether the area in question is occupied at the time of listing or not. If the area is occupied at the time of listing, the PCEs for the species must be found on that area (however, the Service is not required to detail all the specific locations where each PCE may exist on an area proposed for designation). If the area is not occupied at the time of listing, it may be designated as critical habitat upon a determination by the Secretary that such area is essential for the conservation of the species. The reference to the presence of the essential physical or biological features does not appear in the definition of unoccupied areas, thus the commenter is incorrect in stating that the designation of critical habitat must be limited to those areas that contain such features in cases such as this where the area in question is not occupied by the species at the time of listing. In this case, we had proposed the lands in question as critical habitat believing they were essential to the conservation of the subspecies, based on similar habitats known to support Taylor's checkerspot butterfly found at other locations and from evidence of these habitat conditions being present on similar adjacent properties; the Service is particularly limited in specifying locations of the necessary habitat features on private property, where access is often not freely granted. Upon further examination, however, and in response to the information provided by the commenter, we determined that this property (located in subunit 1-D in the proposed rule, subunit 1-A Rocky Prairie in this document) is not essential to the conservation of the subspecies, and it is not included in the final designation.
   (25) Comment: One commenter suggested we remove the gravel pit in TA 7S, subunit 1-A, currently in use on JBLM, from the critical habitat delineated for Taylor's checkerspot butterfly. They state the gravel pit does not currently provide suitable habitat and would take enormous effort to restore to quality habitat, while the remaining extent of TA 7S prairie is relatively intact and could more easily be restored to create suitable habitat.
   Our Response: It is our understanding that, in the past, Taylor's checkerspot butterfly was observed utilizing the puddles in the gravel pit. We understand the gravel pit is marginal habitat at best, but as a formerly occupied site containing some of the PCEs for the subspecies (Plantago and topographic diversity) and its location adjacent to TA 7S, we considered that the area could potentially be restored to support Taylor's checkerspot butterfly (although critical habitat does not specifically require restoration).
   However, since the area in question is on JBLM, it has been exempted from the final designation. Under section 4(a)(3) of the Act, we are required to not designate any lands or other geographical areas owned or controlled by the
   (26) Comment: One commenter asked the Service to consider excluding subunit 1-
   Our Response: We do not disagree that the Taylor's checkerspot butterfly may have been extirpated from this site. Subunit 1-J Bald Hill was identified in the proposed rule as meeting our criteria for critical habitat under the second part of the definition of critical habitat in the Act, which states that critical habitat includes, "specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary [of the Interior] that such areas are essential for the conservation of the species." We were unable to consider these lands for exclusion under section 4(b)(2) of the Act because the Service had not received a management plan for this property; therefore, we were unable to assess the value of the conservation planning efforts being proposed or implemented on this private property. Without a management plan for evaluation, we have no potential basis for exclusion; therefore this property is included in the final designation of critical habitat.
   (27) Comment: One commenter recommended the Army Aviation Support Facility #1 (AASF1) in
   Our Response: The AASF1, while it contributes to maintaining troop readiness for the
   (28) Comment: Several commenters suggested that the designation of critical habitat may act as a regulatory disincentive, and may discourage private landowners and others from cooperative, voluntary conservation efforts. Some commenters suggested that the Service pursue alternative forms of conservation, such as safe harbor agreements or habitat conservation plans. WDNR and WDFW encouraged the Service to fully consider the advantages and disadvantages of designating critical habitat where cooperative, nonregulatory approaches are in place to conserve the species and its habitat.
   Our Response: Section 4(a)(3)(A) of the Act requires us to designate critical habitat to the maximum extent prudent and determinable. The Act permits us to exclude areas that meet the definition of critical habitat only where we determine that the benefits of exclusion outweigh the benefits of designation. The regulatory consequence of critical habitat designation is the requirement that Federal agencies consult on actions that they may fund, authorize, or carry out to ensure that such actions do not result in the destruction or adverse modification of critical habitat. We recognize that in many cases there may not be a Federal nexus that invokes the protections afforded to designated critical habitat on non-Federal lands, and that other instruments such as safe harbor agreements or habitat conservation plans have the potential to provide conservation measures that effect positive results for the species and its habitat. The conservation and recovery of endangered and threatened species, and the ecosystems upon which they depend, is the ultimate objective of the Act, and the Service recognizes the vital importance of voluntary, nonregulatory conservation measures in achieving that objective. To that end, we fully support and encourage the development of voluntary conservation agreements such as safe harbor agreements or habitat conservation plans with non-Federal landowners. Furthermore, where cooperative agreements are in place for the conservation of the species and its habitat, the Secretary gives full consideration to the relative benefits of excluding those lands from the final critical habitat designation, provided such exclusion would not result in the extinction of the species, in accordance with section 4(b)(2) of the Act.
   (29) Comment: One commenter suggested that the Service pursue conservation programs to provide economic incentives to private landowners to create or maintain suitable habitat for the streaked horned lark on agricultural lands, especially grass seed farms.
   Our Response: We appreciate the suggestion, and we will consider this and other creative ideas for achieving the conservation of the subspecies as we develop the recovery plan for the streaked horned lark. Such conservation measures are outside of the scope of the present rulemaking, however, which is restricted to the identification of those areas that meet the definition of critical habitat for the streaked horned lark.
   (30) Comment: One commenter stated the proposal fails to address private lands, which are likely to be key habitat for the persistence of the streaked horned lark. Positive incentives need to be proposed that will lead to recovery of the streaked horned lark.
   Our Response: In our proposed rule, we recognize the importance that private agricultural lands will play in the conservation and recovery of streaked horned lark, particularly in the
   As noted earlier, the consideration of recovery instruments such as incentive programs is outside of the scope of the present rulemaking, which is limited to the identification of those areas that meet the definition of critical habitat for the streaked horned lark.
   (31) Comment: One commenter stated that the Service failed to designate critical habitat on private agricultural lands in the
   Our Response: The commenter's comparison to the critical habitat designations for the northern spotted owl (Strix occidentalis caurina) and marbled murrelet (Brachyramphus marmoratus) is not an apt one. The northern spotted owl and marbled murrelet rely primarily on Federal lands for their conservation, and their old-growth habitat takes decades to develop on those lands. In contrast, the habitat of the streaked horned lark can develop and disappear on farm lands in the space of a few weeks, and its appearance typically depends on human intervention, not natural processes. Designating large swaths of the
   (32) Comment: One commenter stated the primary constituent elements (PCEs) and characteristics for habitat suitability for the streaked horned lark are fairly specific, yet noted habitat will change over time, and perhaps be suitable for only a limited period of time due to vegetation growth. Therefore, they asked if critical habitat designations will be time-limited or adjusted periodically.
   Our Response: Critical habitat is a designation that does not vary seasonally or over time, and is only subject to change through a rulemaking process to revise the designation. This relatively static nature of critical habitat is the very reason that we find we cannot identify critical habitat on the unpredictable and ephemeral habitats used by streaked horned larks in the agricultural areas of
   (33) Comment: One commenter recommended that documented occupancy in any season during any life stage be the basis for determining critical habitat for the streaked horned lark. They believe the Service's definition of occupancy as occurrence only during the breeding season is too narrow. Occupancy should include documented presence of the subspecies outside of the breeding season as well. Uses of non-breeding areas are important to the subspecies' survival, such as areas used for foraging and overwintering, as these sites may also become breeding sites in the future.
   Our Response: We do not know of any areas that are used only for wintering (most sites that are used during the winter are also used during the breeding season); however, we have modified our definition of occupancy to include usage by streaked horned larks during any season.
   (34) Comment: One commenter stated the economic and social factors driving conversion of
   Our Response: The Service does not consider the acquisition of lands by the viticulture industry to be a significant factor in the reduction of breeding and nesting habitat for the streaked horned lark. We contacted Dr.
   (35) Comment: One commenter stated that it is important to designate critical habitat on
   Our Response: Critical habitat designation only has a regulatory effect in instances where there is a Federal action (i.e., a Federal agency funds, authorizes, or carries out an action) that may affect designated critical habitat; this action is then reviewed through interagency consultation under section 7 of the Act between the Federal action agency and the Service. Designation of critical habitat on private lands will have no effect on a private landowner's ability to convert to another crop or to sell out completely if there is no Federal action involved. Contrary to the commenter's perception, critical habitat designation does not create a wildlife preserve or require any sort of response or management from a private landowner.
   (36) Comment: We received multiple conflicting comments suggesting that connectivity both is and is not a necessary consideration when designating critical habitat for the streaked horned lark.
   Our Response: We rely on the expertise of our Service staff biologists, as well as the peer review of our proposed rule by species experts who either support or refute our assertions. In this instance, both our staff biologists and our peer reviewers support the need for connectivity of critical habitat units to ensure the potential for genetic exchange and colonization by streaked horned larks.
   (37) Comment: Several commenters expressed great concern about the implications to public safety from designating critical habitat for the streaked horned lark at airports, and requested that we exclude airports from the critical habitat designation due to safety concerns.
   Our Response: Although we do not see a direct connection between the designation of critical habitat, which results in the requirement that Federal action agencies consult with us on activities that involve Federal funding, authorization, or implementation, and public safety, all airport lands have been excluded from our designation under section 4(b)(2) of the Act for other reasons. Please see additional discussion under Exclusions.
   (38) Comment: Several commenters stated that critical habitat should not be designated for the streaked horned lark at airports, because airports are not suitable as sites for recovery of the subspecies.
   Our Response: We concur with these commenters that airports should not be focal points for streaked horned lark recovery. In section 3 of the Act, "critical habitat" is defined, in part, as the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical and biological features essential to the conservation of the species. "Conservation" is further defined in the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. These definitions clearly demonstrate that the purpose of critical habitat designation is to identify locations for recovery efforts for listed species. Airport managers have expressed great concern about the implied recovery purpose of critical habitat units; management to encourage increasing populations of birds at airports is untenable to airport managers. Airports unquestionably provide important habitat for streaked horned larks, and some of these sites have demonstrated the ability to sustain small, persistent populations of streaked horned larks; indeed, without airports there would be very few sites consistently managed to maintain the habitat conditions used by the streaked horned lark within the needed landscape context. Therefore, although airports clearly provide a benefit to the subspecies, and will likely continue to provide important habitat for small populations, recovery will require restoration and management of new sites that can sustain increasing populations of streaked horned larks in the long term, in more natural locations appropriate for conservation and that do not pose a heightened risk of mortality to the streaked horned lark from airstrikes. We have excluded civilian (non-Federal) airports from critical habitat designation for the reasons outlined in the Exclusions section of this document.
   (39) Comment: One commenter expressed concern that our proposed designation of critical habitat for the streaked horned lark relied almost exclusively on public lands. This commenter believes that private lands in the
   Our Response: As we stated above, we do not yet know which unoccupied sites will be essential for the recovery of the streaked horned lark, and the unpredictable and highly variable occurrence of PCEs for streaked horned larks on private lands in the
   (40) Comment: One commenter stated that
   Our Response: Recent surveys have found up to five breeding pairs of streaked horned larks at
   (41) Comment: One commenter questioned our proposed designation of critical habitat for the streaked horned lark on the three units of the
   Our Response: Research at the three refuge units has shown that streaked horned larks breed successfully in fields that have been heavily grazed by wintering geese (Moore 2009, p. 12). The WVNWRC has a long history of managing for wintering geese, and has recently updated its comprehensive conservation plan to integrate streaked horned lark conservation into the goals for the three refuge units. We believe that the WVNWRC provides excellent habitat for streaked horned larks, and adaptive management of the sites will likely increase the numbers of streaked horned larks breeding at each of the refuge units.
   (42) Comment: Several commenters criticized the Service's failure to designate critical habitat on many sites that have had recent detections of streaked horned larks, primarily on privately owned agricultural lands in the
   Our Response: Streaked horned larks evolved to use a shifting mosaic of very early successional habitats, for which the primary requirement was the appropriate landscape context (large, relatively flat, and wide open). The streaked horned lark is unusual among species in that it does not now occur on remnants of its native habitats; indeed, most of the streaked horned lark's naturally occurring habitats no longer exist because the natural processes that historically created those early successional habitats, such as flooding and wildfire, no longer operate on the landscape. With the exception of sites on the Washington coast, where natural disturbance processes still operate to create habitat, nearly all of the sites currently used by streaked horned larks have been inadvertently created by humans and are industrial in nature. These sites are agricultural landscapes, dredge spoil deposition sites, and airports. These "working landscapes" are managed with little or no consideration for streaked horned lark conservation, and lark use of these sites seems to be highly opportunistic. Although streaked horned larks currently occur on these sites, given their intensive industrial uses, these locations may have limited potential to support increased populations of streaked horned larks in the future, and may be inappropriate sites on which to establish a recovery program for the subspecies. For the streaked horned lark, we do not have obvious core sites of pristine, natural habitats on which to focus recovery efforts. In essence, the streaked horned lark persists in the
   The sites that streaked horned larks currently use are highly fragmented and scattered. Developing a recovery program for the streaked horned lark will require identifying areas that have the essential landscape characteristics and which can be managed for conservation and recovery of the subspecies. Few of these areas have been determined thus far. In the
   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. We are not designating critical habitat on every small and fragmented location recently known to be occupied or potentially occupied by streaked horned larks, because we do not consider all of these sites to meet the definition of critical habitat for the streaked horned lark. That is, we do not consider all of these sites to provide physical or biological features essential to the conservation of the species, because not all of these sites have the potential to make a substantial contribution to the recovery of the species. In addition, section 3(5)(C) of the Act specifically mandates that, except in those circumstances determined by the Secretary of the Interior, critical habitat shall not include the entire geographical area which can be occupied by the listed species. We are not suggesting that the sites currently used by streaked horned larks are unimportant; rather, recovery is more likely to be successful and cost-effective if we can focus our resources on larger, more permanent sites. Therefore, it is these larger, more permanent occupied sites that we consider to provide the physical or biological features that are truly essential to the conservation of the subspecies, and these are the areas that we are designating as critical habitat at this time. We do not contend that these sites will necessarily be sufficient to recover the subspecies, nor does the Act require that they do so. In the future, when we have better information on sites that will attract and support large, stable populations of streaked horned larks, and that can be managed for the long-term conservation of the subspecies, we may revisit this critical habitat designation, as appropriate.
   (43) Comment: One commenter recommended re-drawing the boundaries of proposed streaked horned lark critical habitat at
   Our Response: All non-Federal airport lands are excluded under section 4(b)(2) of the Act from this final designation of critical habitat for the streaked horned lark; please see additional discussion under Exclusions. For the lands that we are designating as critical habitat, when determining critical habitat boundaries, we make every effort to avoid including developed areas such as lands covered by buildings, pavement (such as roads), and other structures because such lands lack the essential physical or biological features for streaked horned larks. Any such lands have been excluded by the text of this rule and are not included in critical habitat.
   (44) Comment: One commenter stated the PCE requiring only a minimum of 16 percent open ground would not support occupation of the known nesting sites for streaked horned larks on dredge sand islands in the
   Our Response: The PCE identifying 16 percent minimum open ground is a description of the habitat conditions, or physical or biological features, essential to the conservation of the streaked horned lark, not a management requirement. Based on research studies, streaked horned larks need areas with a minimum of 16 percent bare ground. Most of the currently occupied sites have much more bare ground than this, and many of the dredge deposit sites have more than 60 percent bare ground. The habitat description is based on research studies across the range of the subspecies. We do not expect land owners to manage sites for streaked horned larks to criteria that represent the minimum observed in the field.
   (45) Comment: One commenter suggested the limited number of territories and nesting pairs observed annually at Sanderson Field indicates this area provides only marginal habitat for the streaked horned lark and should not be designated as critical habitat.
   Our Response: The fact that streaked horned larks have consistently nested at Sanderson Field is an indication that the airport does provide suitable habitat. There are many occupied sites in
   (46) Comment: One commenter was concerned that the designation of critical habitat for the streaked horned lark at certain locations within the
   Our Response:
Comments on Economic Analysis
   Please note that the draft economic analysis (DEA) for the proposed designation addressed multiple species proposed for listing that occupy prairie habitats of
   (47) Comment: Several commenters took issue with the characterization of the baseline in the DEA concerning airport operations. For example, one commenter asserted that critical habitat may engender incremental impacts even when the streaked horned lark is present. In addition, the comment notes that favorable habitat at airports, containing the PCEs, is the result of voluntary activities by airport managers, which could be discontinued (i.e., as a result of lost Federal funding), in which case the PCEs could disappear, the sites would become unoccupied, and any subsequent consultation would result solely from critical habitat.
   Our Response:
   We note that significant debate has occurred regarding whether assessing the impact of critical habitat designations using this baseline approach is appropriate, with several courts issuing divergent opinions. Courts in several parts of the country, including the
   (48) Comment: Several commenters asserted that the DEA does not fully account for, or sufficiently acknowledge, potential impacts to airport development activities, revenues, and related opportunity costs.
   Our Response: During the preparation of the DEA, its authors reached out to management officials at each of the seven airports affected by the proposed designations and collected available planning documents. Chapter 3 of the DEA discusses a variety of airport-related projects and maintenance activities that would result in section 7 consultation, and considers how these consultations might be affected by the presence of critical habitat. Based on the best available information and the incremental effects memorandum prepared by the Service, the DEA concludes that, for areas that are occupied by the subspecies, critical habitat designation will not result in incremental impacts beyond administrative costs incurred to consider adverse modification during consultation.
   (49) Comment: The Port of
   Our Response: The identified economic assessment was reviewed and utilized during the development of the DEA, and is cited in chapter 3 of the report. In the final economic analysis (FEA), we added clarification concerning the USDOT FAA-funded source and fixed the unit numbering error. In addition, further detail concerning the number of consultations and analytic timeframe for the Port of
   (50) Comment: One submission expressed concern that critical habitat designation will constrain dredging activities and alter placement sites related to the
   Our Response: The DEA discusses potential effects of critical habitat designation on dredging activities, including those related to the
   (51) Comment: Two commenters expressed concern that the listing and designation of critical habitat for the Taylor's checkerspot butterfly and
   Our Response: The proposed critical habitat acreage in these areas is considered to be occupied by at least one of the prairie species noted. As noted in the DEA and related incremental effects memorandum, should the six subspecies be formally listed under final rules, their presence within critical habitat will require implementation of certain conservation efforts to avoid jeopardy concerns. In occupied critical habitat, consultation would therefore consider not only the potential for jeopardy to the continued existence of the species, but also the potential for destruction or adverse modification of critical habitat. Because the ability of these subspecies to exist is very closely tied to the quality of their habitats, significant alterations of their occupied habitat may result in jeopardy as well as adverse modification. Therefore, we anticipate that section 7 consultation analyses will likely result in no difference between recommendations to avoid jeopardy or adverse modification in occupied areas of habitat. The analysis concludes that incremental economic impacts of critical habitat designation will be limited to additional administrative costs of additionally considering critical habitat as part of section 7 consultation to the Service, other Federal agencies, and private third parties. Note, however, that additional detail concerning potential gravel mining activities in proposed critical habitat, along with related consultation requirements, has been added to the FEA.
   In addition, the specifically identified subunit, Subunit 1-
   (52) Comment: One commenter stated that, in the DEA, economic costs are overstated and that many economic benefits have not been included in the analysis. Specifically, the comment asserted that there is no basis to determine that the designation of critical habitat for the streaked horned lark will have an additional economic impact beyond the listing itself, and notes that birdwatching and related livability amenities due to outdoor opportunities are important to
   Our Response: A primary conclusion of the economic analysis is that, in areas of proposed designation occupied by the species, limited incremental impacts will occur beyond those administrative costs associated with consultation. Further, in chapter 3, the DEA does provide a qualitative discussion of potential ancillary benefits (including recreational use) attributable to the conservation of these species.
   (53) Comment: One commenter stated that the DEA dismisses the need to describe impacts in economic terms and instead focuses on biological benefits only, citing paragraph 4 in the Executive Summary of the DEA as an example.
   Our Response: This comment misconstrues the language of this paragraph. The DEA endeavors to provide a full rendering of the designation's potential economic impacts, including defining a baseline and assessing incremental effects, both direct and indirect. In the context of weighing these costs against the "benefits" of the designation, however, the benefits component focuses on the primary "biological" benefit related to species conservation, and puts less emphasis on ancillary, or secondary, benefits flowing from species conservation (e.g., improved environmental quality yielding human health or recreational use benefits).
   (54) Comment: One commenter noted that, concerning potential ancillary benefits of the designation, airports are secure facilities with limited and controlled public access. Thus, none of the potential ancillary benefits cited in the DEA, such as recreational opportunities, is relevant to the airport environment.
   Our Response: We agree that, given the security environment at airports, human use benefits are limited at airports. We note, however, that the direct biological benefit of species conservation may still be attributable to airport locations, and that certain ancillary benefits (improved environmental quality due to landscape management) may also still accrue. As previously mentioned, all non-Federal airport lands are excluded from this final designation of critical habitat for the streaked horned lark. Please see additional discussion under Exclusions.
   (55) Comment: One commenter expressed concern that, even when care is taken in the review of projects and actions that are unlikely to harm the long-term viability of the Taylor's checkerspot butterfly, streaked horned lark, and
   Our Response: Chapter 2 of the DEA discusses the issue of indirect impacts potentially related to critical habitat, including the triggering of other State and local laws, time delays, regulatory uncertainty, and stigma. Within this context, the effect of third-party litigation can represent an indirect effect. We note, however, that forecasting the likelihood of third-party litigation and related project delays or other constraints is considered too speculative for the economic analysis. In addition, the DEA attributes most economic effects to the presence of the species and jeopardy concerns, as opposed to the designation of critical habitat.
Summary of Changes From Proposed Rule
   We are designating a total of 1,941 ac (786 ha) of critical habitat for the Taylor's checkerspot butterfly and a total of 4,629 ac (1,873 ha) of critical habitat for the streaked horned lark. We received a number of site-specific comments related to critical habitat for these two subspecies; completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act or for exemption under section 4(a)(3) of the Act; reviewed the application of our criteria for identifying critical habitat across the range of these two subspecies to refine our designations; and completed the final economic analysis of the designation as proposed. We fully considered all comments from the public and peer reviewers on the proposed rule and the associated economic analysis to develop this final designation of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. This final rule incorporates changes to our proposed critical habitat based on the comments that we received and have responded to in this document, and considers completed final management plans to conserve the subspecies under consideration. Although we received additional distribution data for the streaked horned lark on agricultural lands in the
   We have made some technical corrections to the document, and our final designation of critical habitat reflects the following changes from the proposed rule:
   (1) We added one additional adult nectar resource to the list of plants in the primary constituent elements for Taylor's checkerspot butterfly: wild strawberry (Fragaria virginiana).
   (2) Based on our analysis of the total area necessary for the conservation of Taylor's checkerspot butterfly in
   Our analysis of the proposed critical habitat for the streaked horned lark determined that two of proposed critical habitat subunits (in their entirety) do not meet the definition of critical habitat; therefore these subunits were removed from the final designation. The first of these two critical habitat subunits was identified as subunit 3-J in the proposed critical habitat rule and is commonly known as
   In the second case, we determined that the subunit identified as 4-G in the proposed critical habitat rule,
   (3) The Service approved the
   (4) We carefully considered the benefits of inclusion and the benefits of exclusion of specific areas in proposed critical habitat under section 4(b)(2) of the Act, particularly in areas where management plans specific to the Taylor's checkerspot butterfly and streaked horned lark are in place, and where the maintenance and fostering of important conservation partnerships were a consideration. Based on the results of our analysis, we are excluding approximately 2,184 ac (885 ha) from our final critical habitat designation for Taylor's checkerspot butterfly and 4,114 ac (1,664 ha) for the streaked horned lark (see Exclusions, below). For Taylor's checkerspot butterfly, two entire subunits of proposed critical habitat in
   Exclusion from critical habitat should not be interpreted as a determination that these areas are unimportant, that they do not provide physical or biological features essential to the conservation of the species (for occupied areas), or are not otherwise essential for conservation (for unoccupied areas); exclusion merely reflects the Secretary's determination that the benefits of excluding those particular areas outweigh the benefits of including them in the designation.
   Due to these changes in our final critical habitat designation, we have updated our subunit numbering, descriptions, and critical habitat maps, all of which can be found later in this document. This final designation of critical habitat represents a reduction of 4,934 ac (1,996 ha) from our proposed critical habitat for the Taylor's checkerspot butterfly and 7,530 ac (3,047 ha) for the streaked horned lark, for the reasons detailed above. Additional minor differences between proposed and final critical habitat for both subspecies on the order of roughly 20 ac (8 ha) beyond those detailed above are due to minor boundary adjustments and simple rounding error.
Critical Habitat
   It is our intent to discuss below only those topics directly relevant to the designation of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark in this section of the rule.
Background
   Critical habitat is defined in section 3 of the Act as:
   (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:
   (a) essential to the conservation of the species, and
   (b) which may require special management considerations or protection; and
   (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
   Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
   Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
   Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.
   Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations direct us to 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. Furthermore, except in certain circumstances determined by the Secretary, critical habitat is not to include the entire geographical area which can be occupied by the listed species.
   Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
   Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this listed species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Physical or Biological Features
   In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
   (1) Space for individual and population growth and for normal behavior;
   (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
   (3) Cover or shelter;
   (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
   (5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
   We derived the specific physical or biological features essential for the Taylor's checkerspot butterfly and streaked horned lark from studies of each subspecies' habitat, ecology, and life history as described in detail in the Critical Habitat section of the proposed rule to designate critical habitat published in the
   The designation of critical habitat is an authority restricted to the boundaries of
Taylor's Checkerspot Butterfly
   Primary Constituent Elements for the Taylor's Checkerspot Butterfly-- Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Taylor's checkerspot butterfly in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for the subspecies' life-history processes and are essential to the conservation of the subspecies.
   Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the subspecies' life-history processes, we determine that the primary constituent elements specific to the Taylor's checkerspot butterfly are:
   (i) Patches of early seral, short-statured, perennial bunchgrass plant communities composed of native grass and forb species in a diverse topographic landscape ranging in size from less than 1 ac up to 100 ac (0.4 to 40 ha) with little or no overstory forest vegetation that have areas of bare soil for basking that contain:
   (a) In Washington and
   (b) On moist grasslands found near the coast and in the
   (ii) Primary larval host plants (narrow-leaved plantain and harsh paintbrush) and at least one of the secondary annual larval host plants (blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several species of speedwell (marsh speedwell (Veronica scutella), American speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V. serpyllifolia).
   (iii) Adult nectar sources for feeding that include several species found as part of the native (and one nonnative) species mix on northwest grasslands, including, but not limited to: narrow-leaved plantain; harsh paintbrush;
   (iv) Aquatic features such as wetlands, springs, seeps, streams, ponds, lakes, and puddles that provide moisture during periods of drought, particularly late in the spring and early summer. These features can be permanent, seasonal, or ephemeral.
   With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the subspecies, through the identification of the primary constituent elements essential to support the life-history processes of the subspecies. We are designating critical habitat within the geographical area occupied by the subspecies at the time of listing. In addition, we are designating some specific areas outside the geographical area occupied by the subspecies at the time of listing that were historically occupied, but are presently unoccupied, because we have determined that these areas are essential for the conservation of the subspecies.
Streaked Horned Lark
   Primary Constituent Elements for the Streaked Horned Lark-- Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the streaked horned lark in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for the subpecies' life-history processes and are essential to the conservation of the subspecies.
   Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the subspecies' life-history processes, we determine that the primary constituent elements specific to the streaked horned lark are areas having a minimum of 16 percent bare ground that have sparse, low-stature vegetation composed primarily of grasses and forbs less than 13 in (33 cm) in height found in:
   (1) Large (300-ac (120-ha)), flat (0-5 percent slope) areas within a landscape context that provides visual access to open areas such as open water or fields, or
   (2) Areas smaller than described in (1), but that provide visual access to open areas such as open water or fields.
   With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the subspecies, through the identification of the primary constituent elements sufficient to support the life-history processes of the subspecies. All of the units designated as critical habitat are currently occupied by the streaked horned lark and contain the primary constituent elements to support the life-history needs of the subspecies.
   Special Management Considerations or Protections-- All areas we are designating as critical habitat will require some level of management to address the current and future threats to the Taylor's checkerspot butterfly and streaked horned lark and to maintain or restore the PCEs. A detailed discussion of activities influencing the Taylor's checkerspot butterfly and streaked horned lark and their habitats can be found in the final listing rule published elsewhere in today's
Taylor's Checkerspot Butterfly
   The physical or biological features essential to the conservation of the Taylor's checkerspot butterfly may require special management considerations or protection to improve the viability and distribution of habitat suitable for the subspecies. These include preventing the establishment of invasive, nonnative and native woody species, and hastening restoration by actively managing sites to establish native plant species and the structure of the plant community that is suitable for the Taylor's checkerspot butterfly. Restoration and maintenance of occupied Taylor's checkerspot butterfly sites will require active management to plan, restore, enhance, and manage habitat using an approach that resets the vegetation composition and structure to an early seral stage. Management actions that produce suitable conditions for Taylor's checkerspot butterflies and reset the ecological clock to early seral conditions favored by the butterfly include prescribed fires, mechanical harvesting of trees, activities such as hand planting or mechanical planting of grasses and forbs, and the judicious use of herbicides for nonnative, invasive species control.
   These early-seral conditions favor the production and maintenance of plantain, paintbrush, and other larval host plants in a short-structure vegetation community that allows utilization of the plants by the Taylor's checkerspot butterfly. Areas where the Taylor's checkerspot butterfly occupies a site should have limited soil and vegetation disturbance at times when the larvae are active, which extends from late February when post-diapause larvae are active to late June when pre-diapause larvae are on site. Other activities that could cause trampling or impacts to the larvae and that should be minimized, reduced, or restricted during larval feeding include use of the site by off-road vehicles, military training using vehicles or impacts caused by large infantry (foot soldiers), or activities that transport or spread nonnative plants, and the risk of wildfire or prescribed fire. We reemphasize here the acknowledgement that Taylor's checkerspot butterfly, while most obvious during the flight period and when larvae are active, are year-round residents and may be vulnerable to most types of direct disturbance throughout the year.
Streaked Horned Lark
   The physical or biological features essential to the conservation of the streaked horned lark may require special management considerations or protection to ensure the provision of early seral conditions and landscape context of sufficient quantity and quality for long-term conservation and recovery of the subspecies. Activities such as mowing, burning, grazing, tilling, herbicide treatment, grading, beach nourishment, or placement of dredge material can be used to maintain or restore nesting and wintering habitats. Regular disturbance is necessary to create and maintain suitable habitat, but the timing of management is important. The management actions should be conducted outside of the breeding season to avoid the destruction of nests and young, or if habitat management must be done during the breeding season, it should be done in a way that minimizes destruction of nests or harassment of individuals. Nesting success is highest in locations with restricted public use or entry such as military facilities, airports, islands, wildlife refuges, or sites that are remote or difficult to access.
Criteria Used To Identify Critical Habitat
   As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species, and begin by assessing the specific geographic areas occupied by the species at the time of listing. If such areas are not sufficient to provide for the conservation of the species, in accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we then consider whether designating additional areas outside the geographic areas occupied at the time of listing may be essential to ensure the conservation of the species. We consider unoccupied areas for critical habitat when a designation limited to the present range of the species may be inadequate to ensure the conservation of the species. In this case, since we are listing simultaneously with the designation of critical habitat, all areas presently occupied by Taylor's checkerspot butterfly or streaked horned lark are presumed to constitute those areas occupied at the time of listing; those areas currently occupied by the subspecies are identified as such in each of the unit or subunit descriptions below. These descriptions similarly identify which of the units or subunits are believed to be unoccupied at the time of listing. Our determination of the areas occupied at the time of listing and our rationale for how we determined specific unoccupied areas to be essential the conservation of the subspecies are provided below.
   We plotted the known locations of the Taylor's checkerspot butterfly and streaked horned lark where they occur in
   To determine if the currently occupied areas contain the primary constituent elements, we assessed the life-history components and the distribution of the subspecies through element occurrence records in State natural heritage databases and natural history information on each of the subspecies as they relate to habitat. We first considered whether the presently occupied areas were sufficient to conserve the subspecies. If not, to determine if any unoccupied sites met the criteria for critical habitat, we then considered: (1) The importance of the site to the overall status of the subspecies to prevent extinction and contribute to future recovery of the subspecies; (2) whether the area presently provides the essential physical or biological features, or could be managed and restored to contain the necessary physical or biological features to support the subspecies; and (3) whether individuals were likely to colonize the site. We also considered the potential for reintroduction of the subspecies, where anticipated to be necessary (for Taylor's checkerspot butterfly only).
   As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of these subspecies. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered 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 subspecies. We are designating critical habitat in areas within the geographical area occupied by the subspecies at the time of listing in 2013. For Taylor's checkerspot butterfly only, we also are designating specific areas outside the geographical area occupied by the subspecies at the time of listing that were historically occupied, but may be presently unoccupied, based on the Secretary's determination that these areas are essential for the conservation of the subspecies.
   When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge. In this case we used existing occurrence data for each subspecies and identified the habitat and ecosystems upon which they depend. These sources of information included, but were not limited to:
   (1) Data used to prepare the proposed and final rules to list the subspecies;
   (2) Information from biological surveys;
   (3) Peer-reviewed articles, various agency reports, and databases;
   (4) Information from the U.S. Department of Defense--
   (5) Information from species experts;
   (6) Data and information presented in academic research theses; and
   (7) Regional Geographic Information System (GIS) data (such as species occurrence data, land use, topography, aerial imagery, soil data, and land ownership maps) for area calculations and mapping.
   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 Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009, on our Web site at http://www.fws.gov/wafwo/TCBSHL.html/, and, by appointment, at the Service's Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT, above).
   In all cases, when determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement (such as roads), and other structures because such lands lack the essential physical or biological features for the Taylor's checkerspot butterfly and streaked horned lark. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, 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.
Taylor's Checkerspot Butterfly
   Occupied Areas-- For the Taylor's checkerspot butterfly, we are designating critical habitat within the geographical area occupied by the subspecies at the time of listing, as well as in unoccupied areas that we have determined to be essential for the conservation of the subspecies (described below). These presently occupied areas provide the physical or biological features essential to the conservation of the subspecies, which may require special management considerations or protection. We determined occupancy in these areas based on recent survey information. All sites occupied by Taylor's checkerspot butterfly have survey data as recently as 2011, except for the
   We are designating three units of critical habitat based on sufficient elements of physical or biological features being present to support life-history processes for the Taylor's checkerspot butterfly. These 3 units are further divided into 11 subunits. Some subunits within the units contain all of the identified elements of physical and biological features and support multiple life-history processes; some subunits contain at least one or more elements of the physical and biological features necessary to support the Taylor's checkerspot butterfly's particular use of that habitat. Because we determined that the areas presently occupied by Taylor's checkerspot butterfly are not sufficient to provide for the conservation of the subspecies, we have additionally identified some subunits that are presently unoccupied, but that the Secretary has determined to be essential to the conservation of the subspecies. Therefore, we are also designating these unoccupied areas as critical habitat for the Taylor's checkerspot butterfly, as explained below.
   Unoccupied Areas-- We are designating six subunits as critical habitat for the Taylor's checkerspot butterfly that are not presently occupied by the subspecies, but that the Secretary has determined essential for the conservation of the subspecies. There has been a rapid decline in the spatial distribution of prairies (grassland habitat) throughout the range of the Taylor's checkerspot butterfly; as a result, the present distribution of Taylor's checkerspot butterfly is disjunct and isolated throughout the subspecies' historical range. If the Taylor's checkerspot butterfly is to recover, there must be sufficient suitable habitat available for population expansion and growth that is potentially connected in such a way as to allow for dispersal, and these sites must receive routine and sustained management to maintain the early seral conditions essential to the conservation of the subspecies. We therefore evaluated areas outside the presently occupied patches to identify unoccupied habitat areas essential for the conservation of the subspecies. We are designating as critical habitat some areas adjacent to known occurrences of the Taylor's checkerspot butterfly but that may currently be unoccupied to provide for population expansion and growth, which is essential for the conservation of the subspecies.
   We have identified these unoccupied areas as essential for the conservation of the Taylor's checkerspot butterfly because they are located strategically between, and in some cases, adjacent to, occupied areas from which the butterfly may disperse; these areas contain one or more of the PCEs for the Taylor's checkerspot butterfly (although the presence of one or more PCEs is not a statutory requirement for unoccupied critical habitat), and are all receiving or are slated to receive restoration treatments that will increase the amount of suitable habitat available.
Streaked Horned Lark
   Occupied Areas-- We are designating two units of critical habitat for the streaked horned lark based on sufficient elements of physical or biological features being present to support life-history processes during the breeding or winter seasons. These 2 units are further divided into 16 subunits. All of the units designated as critical habitat are presently occupied by the streaked horned lark. Some subunits within the units contain all of the identified elements of physical or biological features and support multiple life-history processes; some subunits contain at least one or more elements of the physical or biological features necessary to support the streaked horned lark's particular use of that habitat.
   Unoccupied Areas-- There are no unoccupied subunits designated as critical habitat for the streaked horned lark.
Final Critical Habitat Designation
   We are designating four units total as critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat for these subspecies. Those four units are:
   (1) The South Sound Unit (Unit 1), which has critical habitat subunits for only the Taylor's checkerspot butterfly.
   (2) The Strait of Juan de Fuca Unit (Unit 2), which has critical habitat subunits for only the Taylor's checkerspot butterfly.
   (3)
   (4) The Willamette Valley Unit (
Taylor's Checkerspot Butterfly--Units 1, 2, and 4
   We are designating three units as critical habitat for the Taylor's checkerspot butterfly. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the subspecies. The three units we designate as critical habitat are: Unit 1, South Sound--1,143 ac (462 ha) in
Table 1--CriticalHabitat Units Designated for Taylor's Checkerspot Butterfly. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries Unit 1: South Sound Federal State County Private Other * Current- ly occupied Subunit Name Ac(Ha) Ac-(Ha) Ac(Ha) Ac(Ha) Ac(Ha) Y/N 1-A Rocky 0 0 0 0 43 (17) N Prairie 1-B Tenalquot 0 0 0 0 135 (55) N Prairie 1-C Glacial 0 0 545 0 0 Y Heritage (220) 1-D Rock Prairie 0 0 0 244 (99) 0 N 1-E Bald Hill 0 0 0 176 (71) 0 N Unit 1 0 (0) 0 (0) 545 420 178 (72) Totals (220) (170) Unit 2: Strait of Juan De Fuca: 2-A Deception 0 149 (60) 0 0 0 N Pass State Park 2-B Central 0 39 (16) 0 0 190 (77) N Whidbey 2-C Elwha 0 0 0 51 (20) 39 (16) Y 2-D Sequim 0 0 0 151 (61) 0 Y 2-E Dungeness 160 (65) 0 0 0 0 Y Unit 2 160 (65) 188 (76) 0 201 (81) 229 (93) Totals Unit 4: Willamette Valley: 4-D Fitton 0 0 0 20 (8) 0 (0) Y Green- Cardwell Hill Unit 4 0 0 0 20 (8) 0 (0) Totals Grand 160 (65) 188 (76) 545 642 407 Total--all (220) (259) (166) Units GRAND TOTAL 1,941 ALL UNITS, (786) ALL OWNERSHIP * Other = Ports, local municipalities, and nonprofit conservation organizations.
   We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Taylor's checkerspot butterfly, below.
Unit 1: South Sound--Taylor's Checkerspot Butterfly
   The South Sound Unit consists of 1,143 acres (462 ha) of land designated for the Taylor's checkerspot butterflies in five subunits. This unit is found entirely in
Subunit Descriptions
   1-A Rocky Prairie-- (
   This subunit is within a matrix of historically occupied patches from which Taylor's checkerspot butterfly has been completely extirpated. We have determined this subunit is essential for the conservation of the Taylor's checkerspot butterfly because it has the potential for restoration of the physical or biological features sufficient to enable the reintroduction of Taylor's checkerspot butterfly. In addition, although currently unoccupied, this area presently provides many of the essential features to support long-term conservation and recovery of the Taylor's checkerspot butterfly. The subunit is composed of grasslands and includes oak woodland margins, and some transitional, colonization (first growth) Douglas-fir forest within the greater prairie landscape. Several PCEs, including landscape heterogeneity and diverse and abundant larval and adult plants resources, are present.
   1-
   We have determined this subunit is essential for the conservation of the Taylor's checkerspot butterfly because it would provide for the reintroduction and reestablishment of Taylor's checkerspot butterfly. Although currently unoccupied, this area presently provides many of the physical or biological features necessary to support the long-term conservation and recovery of Taylor's checkerspot butterfly and has the potential to serve as metapopulation center within a larger prairie landscape context ( [approx.] 2,000 ac (810 ha) in the south region of
   1-C Glacial Heritage-- (
   Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, the inadvertent short-term negative impacts of restoration activities, such as burning, mowing, and the use of herbicides; control of native and nonnative invasive woody species such as Scot's broom and Douglas fir (Pseudotsuga menziesii), as well as control of invasive Mediterranean grasses; habitat modifications brought on by succession of vegetation from the lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.
   1-
   This historically occupied subunit is essential for the conservation of the Taylor's checkerspot butterfly as it presently provides many of the features necessary to support long-term conservation and recovery of the Taylor's checkerspot butterfly. These include diverse topography with swales and terraces, abundant and diverse larval and adult food resources, and a location close to a water course formed by
   1-E Bald Hill-- (
   The Taylor's checkerspot butterfly was recently extirpated from this historically occupied subunit. We have determined it is essential for the conservation of the Taylor's checkerspot butterfly because it has the potential to provide for the reintroduction and reestablishment of Taylor's checkerspot butterfly and to support recovery of the subspecies. This area presently contains many of the features to support long-term conservation and recovery of the Taylor's checkerspot butterfly, including a diverse topography of balds, steep slopes, canyons, oak glades, a rich diversity of larval and adult food resources, and patches of bare soil for basking and resting. This particular critical habitat subunit is unique in that it provides the only bald habitat for Taylor's checkerspot butterfly at low elevation within
Unit 2: Strait of
   The Strait of Juan de Fuca Unit is composed of 779 acres (315 ha) made up of balds, former clearcuts, coastal bluffs, coastal back dunes, and prairie in five subunits located in
Subunit descriptions
   2-A
   We have determined this subunit is essential for the conservation of the subspecies because it has the potential for reintroduction and reestablishment of the Taylor's checkerspot butterfly to support recovery. In addition, although currently unoccupied, this area presently provides many of the features to support a reintroduced population of Taylor's checkerspot butterfly, including diverse topography with balds and beaches, abundant larval and adult food resources, areas of bare soil for basking of larvae and adults, and water sources made up of saltwater along the western shoreline and a freshwater wetland.
   2-B Central Whidbey-- (
   We have determined this subunit is essential for the conservation of the subspecies because it has the potential for reintroduction and reestablishment of Taylor's checkerspot butterfly to support recovery. In addition, although currently unoccupied, this area presently provides many of the features to support a reintroduced population of Taylor's checkerspot butterfly, including diverse topography with coastal bluffs and beaches, abundant larval and adult food resources, areas of bare soil, and water sources made up of a freshwater wetland, and saltwater along the western shoreline.
   2-C Elwha-- (
   The habitat patches at both locations are bounded by conifer forests. The balds at each of these locations are presently occupied by the Taylor's checkerspot butterfly, which has been observed flying up and down the steep slopes and onto private lands. Both of these locations contain essential physical or biological features, including topographic heterogeneity, abundant and diverse larval and adult food resources, and bare soil for basking and resting. Puddles on the road provide a water source during the adult flight season.
   Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, development; the inadvertent short-term negative impacts of restoration activities, such as control of native and nonnative, invasive, woody species such as Scot's broom, snowberry (Symphoricarpos albus), and Douglas fir; the use of herbicides; habitat modifications brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.
   2-D Sequim-- (
   The Sequim subunit contains several essential physical or biological features, including landscape heterogeneity with fore and back dune areas and terraces; rich and abundant larval and adult food resources; a marsh; and bare soil for basking and resting.
   Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, development; the inadvertent short-term negative impacts of restoration activities; habitat modifications brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.
   2-E Dungeness-- (
   The subunit contains several essential physical or biological features, including landscape heterogeneity, abundant larval and adult food resources, nearby streams, and plentiful areas of bare ground for basking and resting. Early restoration work conducted by USFS has included tree harvesting and removal, which has resulted in the expansion of larval and adult food resources in this habitat.
   Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, the inadvertent short-term negative impacts of restoration activities and control of native and nonnative, woody species; the use of herbicides that my impact larval and adult nectar resources; habitat modification brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.
   Unit 4, located in the
   Unit 4-D Fitton Green-Cardwell Hill --(
   This subunit contains several of the essential physical or biological features for the Taylor's checkerspot butterfly, including native perennial bunchgrass plant communities with abundant larval and adult food resources, landscape heterogeneity, and bare soil for basking and resting.
   Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, the inadvertent short-term negative impacts of restoration activities such as control of native and nonnative, invasive, woody species and invasive Mediterranean grasses through mechanical means and with herbicide; habitat modification due to succession of vegetation in the absence of disturbance, at a small and large scale; impacts of disease on larval food plants; and climate change. The physical or biological features essential to the conservation of Taylor's checkerspot butterfly may require special management considerations or protection to sustain short-statured vegetation structure and to reduce human disturbance during the flight season or when eggs and early instar larvae are present. The physical or biological features of this site may be particularly vulnerable to the effects of recreational use, such as trampling of vegetation.
Streaked Horned Lark--Units 3 and 4
   We are designating as critical habitat areas that we have determined are occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential to the conservation of the streaked horned lark. We are designating two units as critical habitat for the streaked horned lark. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the subspecies. The two units we designate as critical habitat are: Unit 3--
   The streaked horned lark has been documented nesting on all of the subunits within the last few years, and all subunits are therefore considered occupied at the time of listing. All of the subunits currently have one or more of the physical or biological features essential to the conservation of the streaked horned lark, and which may require special management considerations or protection.
   The critical habitat areas described below constitute our best assessment of areas that meet the definition of critical habitat for the streaked horned lark. The approximate area and landownership of each critical habitat unit and associated subunit is shown in Table 2.
Table 2--CriticalHabitat Units for Streaked Horned Lark. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within CriticalHabitat Unit Boundaries Unit 3: Washington Federal State Private Tribal Other * Current- Coast and Columbia ly River Islands Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) occupied Y/N Subunit name 3-A Damon Point 0 456 24 (10) 0 0 Y (185) 3-B Midway Beach 0 611 0 0 0 Y (247) 3-C Shoalwater 0 377 102 (41) 0 0 Y Spit (152) 3-D Leadbetter 564 101 (41) 0 0 0 Y Point (228) 3-E Rice Island 0 224 (91) 0 0 0 Y 3-F Miller Sands 0 123 (50) 0 0 0 Y 3-G Pillar Rock/ 0 44 (18) 0 0 0 Y Jim Crow 3-H Welch Island 0 43 (18) 0 0 0 Y 3-I Tenasillahe 0 23 (9) 0 0 0 Y Island 3-J Whites/Brown 0 98 (39) 0 0 0 Y 3-K Wallace 0 13 (5) 0 0 0 Y Island 3-L Crims Island 0 60 (24) 0 0 0 Y 3-M Sandy Island 0 37 (15) 0 0 0 Y Unit 3 564 2,209 126 (51) 0 0 Totals (228) (894) Unit 4: Willamette Valley: 4-A Baskett 1,006 0 0 0 0 Y Slough NWR (407) 4-B Ankeny NWR 264 0 0 0 0 Y (107) 4-C William L 459 0 0 0 0 Y Finley NWR (186) Unit 4 1,729 0 0 0 0 Y Totals (700) Grand 2,293 2,209 126 (51) 0 0 Total--all (928) (894) Units GRAND TOTAL 4,629 OF ALL (1,873) UNITS, ALL OWNERSHIP * Other = Ports, local municipalities, and nonprofit conservation organizations.
Unit 3:
   On the Washington coastal sites, the streaked horned lark occurs on sandy beaches and breeds in the sparsely vegetated, low dune habitats of the upper beach. We are designating four subunits (Subunits 3-A, 3-B, 3-C, and 3-D) and a total of 2,235 ac (904 ha) as critical habitat on the Washington coast. The coastal sites are owned and managed by Federal, State, and private entities. The physical or biological features essential to the conservation of the streaked horned lark may require special management considerations or protection to reduce human disturbance during the nesting season, and the continued encroachment of invasive, nonnative plants requires special management to restore or retain the open habitat preferred by the streaked horned lark. Subunits 3-A, 3-B, 3-C, and 3-D overlap areas that are designated as critical habitat for the western snowy plover. The snowy plover nesting areas are posted and monitored during the spring and summer to keep recreational beach users away from the nesting areas; these management actions also benefit the streaked horned lark.
   In the lower
   The main threats to the essential features in the critical habitat subunits designated on the
   Subunit 3-A:
   Subunit 3-B: Midway Beach-- (
   Subunit 3-C:
   Subunit 3-D:
   Subunit 3-E:
   Subunit 3-F:
   Subunit 3-G: Pillar Rock/
   Subunit 3-H:
   Subunit 3-I:
   Subunit 3-J:
   Subunit 3-K:
   Subunit 3-L:
   Subunit 3-M:
   Unit 4 (
   Subunit 4-A:
   Subunit 4-B:
   Subunit 4-C:
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
   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
   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 the Taylor's checkerspot butterfly or the streaked horned lark. 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 Taylor's checkerspot butterfly or streaked horned lark. These activities include, but are not limited to:
   (1) Actions that restore, alter, or degrade habitat features through development, agricultural activities, burning, mowing, herbicide use or other means in suitable habitat for the Taylor's checkerspot butterfly or the streaked horned lark.
   (2) Actions that would alter the physical or biological features of critical habitat including modification of the composition and structure of vegetation in suitable habitat for the Taylor's checkerspot butterfly or the streaked horned lark. Such activities could include, but are not limited to, construction, grading or other development, mowing, conversion of habitat, or use of herbicides to remove vegetation (recreational use, off-road vehicles on Federal, State, private, or Tribal lands). These activities may affect the physical or biological features of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark, by removing sources of food, shelter, nesting or oviposition sites, or otherwise impacting habitat essential for completion of life history.
   (3) Actions that would reduce the open landscape context required by the streaked horned lark, such as construction of buildings or planting tall trees adjacent to a suitable site.
   (4) Deposition of dredge materials on occupied streaked horned lark habitats during the breeding season.
   (5) Installation of shoreline stabilization structures or modification of beaches and open shorelines where occupied by the streaked horned lark or where critical habitat occurs for the streaked horned lark.
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
   (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 geographical areas owned or controlled by the
   We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the critical habitat designation for the Taylor's checkerspot butterfly and streaked horned lark to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are
Approved INRMPs
   U.
   JBLM has an INRMP in place that was approved in 2006, which JBLM is in the process of updating. In 2012, JBLM amended their existing INRMP with specific regard to the Taylor's checkerspot butterfly by completing an ESMP that includes guidelines for protecting, maintaining, and enhancing habitat essential to support the Taylor's checkerspot butterfly on JBLM. The Service has found, in writing, that the ESMP under the JBLM INRMP provides a conservation benefit to the Taylor's checkerspot butterfly.
   JBLM's ESMPs identify management objectives for the conservation of Taylor's checkerspot butterfly and streaked horned lark. For the Taylor's checkerspot butterfly, the ESMP specifically includes nine proposed "priority habitat" focus areas on JBLM for management of the Taylor's checkerspot butterfly and its associated habitat. The management objective is to improve the populations of Taylor's checkerspot butterflies both on and off JBLM. JBLM's Fish and Wildlife Program proposes several management objectives to attain this goal: (1) They will coordinate with the Service and WDFW on increasing the number of populations and expand their distribution on and off the base; (2) the JBLM Fish and Wildlife Program will monitor occupied Taylor's checkerspot butterfly populations to detect habitat degradation, weather, and climate factors that influence populations dynamics; and (3) they will evaluate the efficacy of their ESMP, and adapt their management if required. JBLM has also committed to restore and sustain priority habitat areas through a number of management efforts. This will be accomplished by controlling invasive, nonnative plant species and encroaching conifers, and as land is cleared they will replant with the larval host and adult nectar plants for Taylor's checkerspot butterfly. Restoration actions to enhance and maintain suitable habitat conditions includes ecological prescribed burning, mowing, application of herbicides where needed, girdling of encroaching conifers, manual removal, and biological control using integrated pest management. Another objective is to purchase lands off JBLM for the express purpose of managing the locations for Taylor's checkerspot butterfly habitat and translocation. To date, over 4,000 ac (1,620 ha) have been acquired using Area Compatible Use Buffer (ACUB) program funding.
   There are 2,813 ac (1,138 ha) of lands within the boundary of JBLM that were identified in the proposed critical habitat designation for the streaked horned lark; these lands included all of subunits 1-B, 1-C, 1-D, and 1-E in the proposed rule (77 FR 61937;
   Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified
Table 3--Areas Exempted From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under Section 4(a)(3) of the Act by CriticalHabitat Unit Unit Specific area Areas Areas meeting the exempted in definition acres of critical (hectares) habitat in acres (hectares) 1 TA7S 78 (32) 78 (32) 1 91st Division Prairie 1,377 (557) 1,377 (557) 1 13th Division Prairie 647 (262) 647 (262) 1 Tenalquot Prairie 222 (90) 222 (90) Total 2,324 (941) 2,324 (941)
Table 4--Areas Exempted From the Designation of Critical Habitat for the Streaked Horned Lark Under Section 4(a)(3) of the Act by Critical Habitat Unit Unit Specific area Areas Areas meeting the exempted in definition acres of critical (hectares) habitat in acres (hectares) 1 McChord Airforce Base 759 (307) 759 (307) 1 Gray Army Airfield 347 (140) 347 (140) 1 91st Division Prairie 888 (359) 888 (359) 1 13th Division Prairie 819 (331) 819 (331) Total 2,813 2,813 (1,138) (1,138)
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 s/he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless s/he 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 the Taylor's checkerspot butterfly and streaked horned lark, the benefits of critical habitat include public awareness of the presence of Taylor's checkerspot butterflies and streaked horned larks and the importance of habitat protection, and, in cases where a Federal nexus exists, increased habitat protection for these species due to the protection from adverse modification or destruction of critical habitat.
   When we evaluate the existence of a conservation or management 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 and information in our files, we evaluated whether certain lands in the proposed critical habitat were appropriate for exclusion from this final designation pursuant to section 4(b)(2) of the Act. We considered the areas discussed below for exclusion under section 4(b)(2) of the Act, and present our detailed analysis below. For those areas in which the Secretary has exercised her discretion to exclude, we conclude that:
   (1) Their value for conservation will be preserved in the near future by existing protective actions; or
   (2) The benefits of excluding the particular area outweigh the benefits of their inclusion, based on the "other relevant factor" provisions of section 4(b)(2) of the Act.
Taylor's Checkerspot Butterfly
   Table 5 shows the areas we are excluding from critical habitat for the Taylor's checkerspot butterfly.
Table 5--Areas Excluded From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under Section 4(b)(2) of the Act by CriticalHabitat Unit Unit Specific area Areas Areas meeting excluded the in acres definition (hectares) of critical habitat in acres (hectares) 1 Rocky Prairie NAP 38 (16) 38 (16) 1 Mima Mounds NAP 406 (164) 406 (164) 1 Scatter Creek 731 (296) 731 (296) 1 Rock Prairie 621 (251) 378 (153) 1 Bald Hill 422 (171) 247 (100) 1 West Rocky Prairie 134 (54) 134 (54) 2 Elwha 235 (95) 143 (58) 4 Fort Hoskins 6 (3) 6 (3) 4 Beazell Memorial Forest 61 (25) 61 (25) 4 Fitton Green--Cardwell Hill 59 (24) 40 (16) Total 2,713 2,184 (885) (1,098)
Streaked Horned Lark
   Table 6 shows the areas we are excluding from critical habitat for the streaked horned lark.
Table 6--Areas Excluded From the Designation of Critical Habitat for the Streaked Horned Lark Under Section 4(b)(2) of the Act by Critical Habitat Unit Unit Specific area Areas Areas meeting excluded the in acres definition (hectares) of critical habitat in acres (hectares) 1 Sanderson Field 376 (152) 376 (152) 1 Olympia Airport 575 (233) 575 (233) 3 Shoalwater Spit 661 (267) 182 (74) 3 Portland International Airport 431 (174) 431 (174) 4 McMinnville Municipal Airport 600 (243) 600 (243) 4 Salem Municipal Airport 534 (216) 534 (216) 4 Corvallis Municipal Airport 1,103 (446) 1,103 (446) 4 Eugene Airport 313 (126) 313 (126) Total 4,593 4,114 (1,857) (1,664)
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 order to consider economic impacts, we prepared an economic analysis of the proposed critical habitat designation and related factors (
   The intent of the final economic analysis (FEA) (IEc 2013) is to quantify the economic impacts of all potential conservation efforts for the six prairie taxa, including the Taylor's checkerspot butterfly and streaked horned lark; some of these costs will likely be incurred regardless of whether we designate critical habitat (we consider such costs to be "baseline" costs). The economic impact of the final critical habitat designation is analyzed by comparing scenarios both "with critical habitat" and "without critical habitat." The "without critical habitat" scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The "with critical habitat" scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat above and beyond the baseline costs; these are the costs we consider in the final designation of critical habitat.
   The FEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on government agencies, private businesses, and individuals. The FEA measures lost economic efficiency associated with residential and commercial development and public projects and activities, such as economic impacts on water management and transportation projects, Federal lands, small entities, and the energy industry. Decision-makers can use this information to assess whether the effects of the designation might unduly burden a particular group or economic sector. The FEA considers those costs that may occur in the 20 years following the designation of critical habitat, which was determined to be the appropriate period for analysis because limited planning information was available for most activities to reasonably forecast activity levels for projects beyond a 20-year timeframe . The FEA quantifies the economic impacts of Taylor's checkerspot butterfly, streaked horned lark, and
   As noted above, the FEA identifies and analyzes the potential economic impacts associated with critical habitat designations proposed for six prairie taxa: Taylor's checkerspot butterfly and streaked horned lark, as well as four subspecies of
   The total present value impact anticipated to result from the designation of all areas proposed as critical habitat for the Taylor's checkerspot butterfly, streaked horned lark, and the four subspecies of
   We have not excluded any areas from the final designation of critical habitat based on economic impacts. A copy of the FEA with supporting documents may be obtained by contacting the Service's Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT) or by downloading from http://www.regulations.gov at docket number FWS-R1-ES-2013-0009.
Exclusions Based on National Security Impacts
   In preparing this final rule, we have exempted from the designation of critical habitat those
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 species specific management plans for the area that would benefit the Taylor's checkerspot butterfly or streaked horned lark, 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
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 the same or better level of protection from adverse modification or destruction than that provided through a consultation under section 7 of the Act;
   (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 find that the
   As a result of considering other relevant impacts, we have additionally excluded non-Federal airports from final critical habitat for the streaked horned lark, based upon the Secretary's determination that the benefit of excluding such areas outweighs the benefit of including them in critical habitat, as described below.
   The WDNR State Trust Lands HCP covers approximately 1.7 million (730,000 ha) of State lands in
   The HCP addresses multiple species through a combination of strategies. The HCP includes a series of NAPs and Natural Resource Conservation Areas (NRCAs), including Rocky Prairie NAP, Mima Mounds NAP, and Bald Hill NAP. These preserves are managed consistent with the Natural Areas Preserve Act, forever protecting the highest quality examples of native ecosystems and rare plant and animal species, in addition to other natural features of State, regional or national significance. These preserves are used for education, scientific research, and to maintain Washington's native biological diversity. This network of preserves includes nearly 31,000 ac (12,550 ha) throughout the State, which range in size from 8 ac (3.2 ha) to 3,500 ac (1,416 ha). Management plans are developed for each NAP, which guide the actions necessary to protect each area's natural features, including research, monitoring, restoration, and other active management. In addition, there are approximately 132 ac (23 ha) in the Elwha drainage at
   The NAP properties at
   Although both
   Benefits of Inclusion--
   The inclusion of these areas as critical habitat could therefore provide some additional Federal regulatory benefits for the species consistent with the conservation standard based on the
   The Service has coordinated with WDNR on conservation actions to be implemented for the Taylor's checkerspot butterfly at the three NAPs located in
   Another potential benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by identifying areas of high conservation value for the Taylor's checkerspot butterfly. The designation of critical habitat informs State agencies and local governments about areas that could be conserved under State laws or local ordinances. Any additional information about the needs of the Taylor's checkerspot butterfly or its habitat that reaches a wider audience can be of benefit to future conservation efforts. During the spring of 2013 alone, the Service hosted two prairie workshops, one public hearing, and two local
   The incremental benefit of inclusion is reduced because of the long-standing management planning and implementation efforts for each site, as discussed above. In addition, the NAP restoration plans provide greater protection to Taylor's checkerspot butterfly habitat than would the designation of critical habitat, since the planning effort is intended to actively improve the structure and composition of the habitat (critical habitat does not carry any requirement for habitat restoration or improvement). Although both
   Benefits of Exclusion--
   If lands within the WDNR HCP plan area are designated as critical habitat, it would also likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly large, regional HCPs that involve numerous participants or address landscape-level conservation of species and habitats. This HCP has served as a model for several completed and ongoing HCP efforts, including the Washington State Forest Practices HCP. By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation actions in the future because other parties see our exclusion as a sign that the Service will not impose duplicative regulatory burdens on landowners who have developed an HCP.
   HCPs typically provide for greater conservation benefits to a covered species than section 7 consultations because HCPs ensure the long-term protection and management of a covered species and its habitat. In addition, funding for such management is ensured through the Implementation Agreement. Such assurances are typically not provided by section 7 consultations, which, in contrast to HCPs, often do not commit the project proponent to long-term, special management practices or protections. Thus, a section 7 consultation typically does not afford the lands it covers similar extensive benefits as an HCP. The development and implementation of HCPs provide other important conservation benefits, including the development of biological information to guide the conservation efforts and assist in species conservation, and the creation of innovative solutions to conserve species while meeting the needs of the applicant. In this case, substantial information has been developed from the research, monitoring, and surveys conducted by WDNR. Therefore, exclusion is a benefit because it maintains and fosters the development of biological information and innovative solutions.
   Exclusion of these areas will additionally help us maintain an important and successful partnership with other
   Benefits of Exclusion Outweigh Benefits of Inclusion--
   
   The WDNR State Trust Lands HCP provides for significant conservation and management within geographical areas that contain the physical or biological features essential to the conservation of Taylor's checkerspot butterfly, and helps achieve recovery of this subspecies through the conservation measures of the HCP. Exclusion of these lands from critical habitat will help foster the partnership we have developed with WDNR, through the development and continuing implementation of the HCP and the area management plans. It will also help us maintain and foster an important and successful partnership with our
   Exclusion Will Not Result in the Extinction of the Species--
   We are excluding 767 ac (310 ha) of
   WDFW developed a management plan for the
   Benefits of Inclusion--
   The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. The regulatory standard is different, as the jeopardy analysis investigates the action's impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action's effects on the designated habitat's contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations have the potential to provide greater benefit to the recovery of a species than would listing alone.
   The inclusion of these covered lands as critical habitat could provide some additional Federal regulatory benefits for the species consistent with the conservation standard based on the
   The Service has coordinated with WDFW on conservation actions to be implemented for the Taylor's checkerspot butterfly at the
   Another potential benefit of including Wildlife Area lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for the Taylor's checkerspot butterfly. The designation of critical habitat informs State agencies and local governments about areas that could be conserved under State laws or local ordinances. Any additional information about the needs of the Taylor's checkerspot butterfly or its habitat that reaches a wider audience can be of benefit to future conservation efforts. During the spring of 2013 alone, the Service hosted two prairie workshops, one public hearing, and two local
   The incremental benefit of inclusion is minimized because of the long-standing management planning efforts for each Wildlife Area, and the associated private inholding, as discussed above. In addition, the restoration plans provide greater protection to Taylor's checkerspot butterfly habitat than the designation of critical habitat, since the planning effort is intended to actively improve the structure and composition of the habitat. Therefore, designation of critical habitat on these areas would not provide any additional management focus that is not already occurring at these locations under
   Benefits of Exclusion--
   Excluding these Wildlife Areas and associated private inholding from critical habitat designation will provide significant benefits in terms of sustaining and enhancing the excellent partnership between the Service, WDFW, and the private landowner, as well as other partners who participate in prairie management decision-making, with positive consequences for conservation. The willingness of WDFW and the private landowner to undertake conservation efforts for the benefit of the Taylor's checkerspot butterfly and to work with the Service to develop new management plans for the species will continue to reinforce those conservation efforts and our partnership, which will support the recovery process for Taylor's checkerspot butterfly. We consider this voluntary partnership in conservation vital to our understanding of the status of Taylor's checkerspot butterfly on WDFW lands and throughout western Washington, and necessary for us to implement recovery actions such as habitat protection, restoration, and beneficial management actions for the subspecies. Furthermore, exclusion from critical habitat could have the benefit of encouraging other landowners to engage in similar conservation partnerships and efforts, with positive outcomes for the conservation of listed species.
   The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If lands within the area managed by WDFW for the benefit of the Taylor's checkerspot butterfly are designated as critical habitat, it could have a dampening effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as safe harbor agreements (SHAs), HCPs, and other conservation plans, particularly large, regional conservation plans that involve numerous participants or address landscape-level conservation of species and habitats) that we would be unable to accomplish otherwise. Our WDFW conservation partners made a commitment more than a decade ago to include the Taylor's checkerspot butterfly in their Wildlife Area implementation plan, and they have engaged with and encouraged others to join in conservation partnerships, such as the
   Benefits of Exclusion Outweigh Benefits of Inclusion--
   
   A significant benefit of excluding these lands is that it will help us maintain and foster an important and successful partnership with our
   Exclusion Will Not Result in the Extinction of the Species--
   Private lands totaling 10 ac (4 ha) in Unit 2 (Elwha) and covered under the
   Benefits of Inclusion --
   The analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. The regulatory standard is different, as the jeopardy analysis investigates the action's impact on the survival and recovery of the species, while the adverse modification analysis focuses on the action's effects on the designated habitat's contribution to conservation. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations have the potential to provide greater benefit to the recovery of a species than would listing alone.
   The inclusion of these private lands as critical habitat could provide some additional Federal regulatory benefits for the species consistent with the conservation standard addressed in the
   Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, private landowners, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by all parties by identifying areas of high conservation value for the Taylor's checkerspot butterfly. The designation of critical habitat informs State agencies and local governments about areas that could be conserved under State laws or local ordinances. Any additional information about the needs of the Taylor's checkerspot butterfly or its habitat that reaches a wider audience can be of benefit to future conservation efforts and the designation of critical habitat increases our ability to educate private landowners and the public during outreach events concerning the historical role and current importance of grassland balds. We notified the general public about outreach events and hearings through a
   The incremental benefit from designating critical habitat for Taylor's checkerspot butterfly is further reduced due to the long-standing management planning efforts for the adjacent WDNR land and the recently acquired conservation property managed by CNLM. These properties have been managed for the conservation of bald-associated species and each property provides larval host plants and adult nectar resources for Taylor's checkerspot butterflies. For this reason, they contain many of the PCEs to support the butterfly. The management planning for each of these properties has established a track record of positive conservation actions focused on enhancing grassland bald composition and structure at each location. All of these lands have benefited from the conservation measures implemented by WDFW (Hays 2011 p. 53), the planning efforts for WDNR managed lands, and the voluntary habitat conservation plan for
   The voluntary habitat conservation plan from
   The voluntary habitat conservation plan developed by
   Because of the recent success of Taylor's checkerspot butterfly translocations, the planning group who oversees the schedule for translocations would give priority consideration to this location for future introductions of Taylor's checkerspot butterfly onto high quality bald habitat. Therefore, designation of critical habitat would not provide any additional management planning effort that is not already occurring at these locations under WDFW management authority, voluntary conservation planning efforts, or restoration actions developed through our recovery program, or through DOD ACUB funding authority, which provided the funding support for CNLM to purchase the adjacent property located at
   Benefits of Exclusion --
   Excluding this private property from critical habitat designation will provide significant benefit in terms of sustaining and enhancing the ongoing partnership between the Service, WDFW, and the private landowner, with positive consequences for conservation. The willingness of the private landowner to undertake conservation efforts for the benefit of the Taylor's checkerspot butterfly and to work with WDFW and the Service to develop and employ species conservation actions will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the Taylor's checkerspot butterfly. We consider this voluntary partnership in conservation vital to our understanding of the status of the Taylor's checkerspot butterfly on agricultural lands in western Washington, and necessary for us to implement recovery actions such as habitat protection and restoration, and beneficial management actions for this subspecies.
   The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of redundant government regulation. If these private lands, which have been managed under preexisting conservation plans for the benefit of Taylor's checkerspot butterfly, are designated as critical habitat, it could have a dampening effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement various conservation actions (such as SHAs, HCPs, and other conservation plans, particularly large, regional conservation plans that involve numerous participants and address landscape-level conservation of species and habitats) that we would be unable to accomplish otherwise. This private landowner made a commitment to conserve Taylor's checkerspot butterflies and their habitat in their voluntary habitat conservation plan. This private landowner serves as a model of voluntary conservation and may aid in fostering future voluntary conservation efforts by other parties in other locations for the benefit of listed species. We consider the positive effect of excluding proven conservation partners from critical habitat to be a significant benefit of exclusion.
   Benefits of Exclusion Outweigh Benefits of Inclusion --
   In addition, the conservation strategies of
   The benefit of excluding this private land parcel is that it will help us maintain an important and successful conservation partnership with private and non-governmental partners, as well as with our State conservation partners, WDFW, and WDNR, all of whom have made a commitment to manage for this subspecies and work cooperatively and collaboratively with the Service. We further believe that by recognizing the voluntary habitat conservation plan negotiated by WDFW and
   Exclusion Will Not Result in the Extinction of the Species --
Colvin Ranch Grassland Reserve Program Management Plan
   Private lands totaling 378 ac (153 ha) that are covered under an NRCS Grassland Reserve Program Management Plan are excluded from Unit 1-
   Benefits of Inclusion-Colvin Ranch Grassland Reserve Program Management Plan-- The primary effect of designating any particular area as critical habitat is the requirement for Federal agencies to consult with us under section 7 of the Act to ensure actions they carry out, authorize, or fund do not adversely modify designated critical habitat. Absent critical habitat designation in occupied areas, Federal agencies remain obligated under section 7 of the Act to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species' continued existence.
   Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for Taylor's checkerspot butterfly. Designation of critical habitat informs State agencies and local governments about areas that could be conserved under State laws or local ordinances. Any additional information about the needs of the Taylor's checkerspot butterfly or its habitat that reaches a wider audience can be of benefit to future conservation efforts.
   During the spring of 2013 alone, the Service hosted four prairie focused workshops and one public hearing specifically related to the proposed listing and designation of critical habitat. We also participated in two local prairie education events in
   The incremental benefit from designating critical habitat for the Taylor's checkerspot butterfly is further minimized due to the long-standing management planning efforts implemented on
   
   Benefits of Exclusion--Colvin Ranch Grassland Reserve Program Management Plan-- The benefits of excluding this private property from designated critical habitat are substantial. We have developed a close partnership with the landowner and NRCS through regular coordination and outreach activities, using
   Excluding this private property from critical habitat designation will provide a significant benefit in terms of sustaining and enhancing the excellent partnership between the Service, NRCS, and the private landowner, as well as other partners who participate in prairie management decision-making, with positive consequences for conservation. The willingness of the private landowner to undertake conservation efforts for the benefit of the Taylor's checkerspot butterfly and work with NRCS and the Service to develop and employ conservation actions, will continue to reinforce those conservation efforts and our partnership, which contribute toward achieving recovery of the Taylor's checkerspot butterfly. We consider this voluntary partnership in conservation vital to the development of our understanding of the status of Taylor's checkerspot butterfly on agricultural lands in western Washington, and necessary for us to implement recovery actions such as habitat protection, restoration, and beneficial management actions for this subspecies.
   The designation of critical habitat could have an unintended negative effect on our relationship with non-Federal landowners due to the perceived imposition of government redundant regulation. Designation of critical habitat on private lands that are managed for the benefit of prairie species, including the Taylor's checkerspot butterfly, could have a dampening effect on our continued ability to seek new partnerships with future participants including States, counties, local jurisdictions, conservation organizations, and private landowners. Together, these parties can implement various cooperative conservation actions (such as SHAs, HCPs, and other conservation plans, particularly large, regional conservation plans that involve numerous participants and/or address landscape-level conservation of species and habitats) that we would be unable to accomplish otherwise. This private landowner made a commitment almost a decade ago to develop and implement this GRP management plan, which has restored much of
   Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch Grassland Reserve Program Management Plan-- In summary, we determine that the benefits of excluding the NRCS GRP managed prairies at
   A significant benefit of excluding these lands is that it will help us maintain and foster an important and successful partnership with this private landowner partner and NRCS. They have consistently supported stewardship of prairie habitat beneficial to the conservation of the Taylor's checkerspot butterfly and have consistently encouraged others to join in conservation partnerships as well. The exclusion of
   Exclusion Will Not Result in the Extinction of the Species--Colvin Ranch Grassland Reserve Program Management Plan-- We have determined that exclusion of approximately 378 ac (153 ha) for the portion of
Benton County Prairie Species HCP,
   Approximately 106 ac (43 ha) of lands owned by
   Covered activities include ground-disturbing construction activities associated with home building, farming, and forestry practices; management of public lands and lands owned or managed by conservation organizations; and activities providing essential public services in the County (e.g., transportation and water system management, and utilities construction and maintenance). Cooperators under the HCP include: the City of Corvallis,
   The overall biological goal of this HCP is to achieve sustainable populations of covered species, while maintaining local populations and fostering habitat connectivity. The County and cooperators will support sustainable population numbers through conservation measures designed to enhance existing populations of covered species, support their habitat, and increase the distribution and connectivity of their populations in
   The Benton County Prairie Species HCP has management goals and objectives for sites that currently support Taylor's checkerspot butterflies (
   Benefits of Inclusion-Benton County Prairie Species HCP-- We find that there is minimal benefit from designating critical habitat for the Taylor's checkerspot butterfly within the area covered by the Benton County Prairie Species HCP because, as explained above, these covered lands are already managed for the conservation of the subspecies over the term of the HCP. The Benton County Prairie Species HCP includes a species-specific management plan for the Taylor's checkerspot butterfly; avoidance and minimization measures; and monitoring requirements to ensure proper implementation. The Benton County Prairie Species HCP provides for the needs of the Taylor's checkerspot butterfly by protecting and managing all current and former known habitat areas on County owned lands and implementing conservation measures designed to avoid and minimize impacts to individual Taylor's checkerspot butterflies. Management guidelines were developed for areas currently occupied by the subspecies as well as areas that have suitable habitat conditions but that are not known to be currently occupied. The conservation measures provided by the HCP will provide greater protection to Taylor's checkerspot butterfly habitat than the designation of critical habitat since they are intended to improve habitat conditions (critical habitat only requires the avoidance of adverse modification; it does not require actions to improve habitat). Therefore, the HCP contains provisions for protecting and maintaining Taylor's checkerspot butterfly habitat that exceed the conservation benefits that would be afforded through section 7 consultation.
   The inclusion of these covered lands as critical habitat could provide some additional Federal regulatory benefits for the species consistent with the conservation standard based on the
   Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for the Taylor's checkerspot butterfly. Designation of critical habitat informs State agencies and local governments about areas that could be conserved under State laws or local ordinances. Any additional information about the needs of the Taylor's checkerspot butterfly or its habitat that reaches a wider audience can be of benefit to future conservation efforts. However, the Benton County Prairie Species HCP has already gone through public review and included public meetings about the prairie conservation strategy. An important conservation measure that is implemented under the HCP is public outreach. Included among the outreach measures is the distribution of educational materials, holding prairie conservation workshops, and encouraging landowners to conduct prairie restoration activities on their own properties. Additional educational and informational benefits that might arise from critical habitat designation have already largely occurred through public meetings and review of the draft HCP and are going to continue to occur through implementation of the conservation measures of the final HCP. The potential educational value of critical habitat in this instance is therefore further reduced.
   Benefits of Exclusion-Benton County Prairie Species HCP-- Compared to the minimal benefits of inclusion of this area in critical habitat, the benefits of excluding from designated critical habitat the approximately 106 ac (43 ha) of lands currently managed under the HCP are considerable.
   HCP conservation measures that provide a benefit to the Taylor's checkerspot butterfly and its habitat have been implemented since its approval in 2011. Excluding the lands managed under the Benton County Prairie Species HCP from critical habitat designation will sustain and enhance the working relationship between the Service and the County.
   Excluding lands within HCPs from critical habitat designation can also facilitate our ability to seek new partnerships with future HCP participants including States, counties, local jurisdictions, non-governmental conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within the HCP plan areas are designated as critical habitat, it would likely have a negative effect on our ability to establish new partnerships to develop HCPs, particularly larger HCPs that involve numerous participants and address the necessary landscape-level conservation of species and habitats. By excluding these lands, we preserve and enhance our current partnerships and encourage additional conservation actions in the future for the Taylor's checkerspot butterfly and other listed species.
   Benefits of Exclusion Outweigh the Benefits of Inclusion-Benton County Prairie Species HCP-- In summary, we determine that the benefits of excluding areas covered by the Benton County Prairie Species HCP from the designation of critical habitat for the Taylor's checkerspot butterfly outweigh the benefits of including this area in critical habitat. The regulatory and informational benefits of inclusion will be minimal. In areas occupied by the Taylor's checkerspot butterfly, any potential consultation under section 7 of the Act will evaluate the effects of the action on the conservation or functionality of the habitat for the species regardless of whether critical habitat is designated for these lands. The analytical requirements to support a jeopardy determination on excluded land are similar, but not identical, to the requirements in an analysis for an adverse modification determination on included land. The most likely Federal nexus would be with BPA, and their actions are generally limited to maintaining the right-of-way to be free of encroaching trees that may eventually come in contact with the powerlines. This type of right-of-way maintenance should also maintain the open, short statured vegetative conditions that the Taylor's checkerspot butterfly typically occupies, and so benefits the subspecies. The additional benefit of consultation under the adverse modification standard is therefore minimal.
   In addition, the conservation strategies of the Benton County Prairie Species HCP are designed to protect and enhance habitat for the Taylor's checkerspot butterfly. The HCP includes a species-specific management plan for the Taylor's checkerspot butterfly, avoidance and minimization measures, and monitoring requirements to ensure proper implementation, which further minimizes the benefits that would be provided as a result of a critical habitat designation.
   The benefit of excluding these lands is that it will help us maintain an important and successful conservation partnership with a county government that voluntarily included the Taylor's checkerspot butterfly in its HCP when it was a Federal candidate species, and exclusion of these areas may encourage others to join in conservation partnerships as well. For these reasons, we have determined that the benefits of exclusion outweigh the benefits of inclusion in this case.
   Exclusion Will Not Result in Extinction of the Species-Benton County Prairie Species HCP-- We have determined that exclusion of approximately 106 ac (43 ha) of lands covered under the Benton County Prairie Species HCP will not result in extinction of the Taylor's checkerspot butterfly because the HCP provides for the needs of the butterfly by: protecting, restoring, and enhancing all the known occupied and potentially suitable Taylor's checkerspot butterfly habitat under the jurisdiction of the County; committing to the enhancement and recruitment of additional habitat over the term of the HCP; and, implementing species-specific conservation measures designed to avoid and minimize impacts to the Taylor's checkerspot butterfly. Further, for projects having a Federal nexus and affecting Taylor's checkerspot butterfly in occupied areas, the jeopardy standard of section 7 of the Act, coupled with protection provided by the Benton County Prairie Species HCP, would provide a level of assurance that this species will not go extinct as a result of excluding these lands from the critical habitat designation. The species is also protected from take under section 9 of the Act on all properties where the species is found. Federal agencies would be required to minimize the effects of incidental take, and would be encouraged to avoid incidental take through the section 7 consultation process. For these reasons, we find that exclusion of these lands covered by the Benton County Prairie Species HCP will not result in extinction of the Taylor's checkerspot butterfly. Based on the above discussion, the Secretary is exercising her discretion under section 4(b)(2) of the Act to exclude from this final critical habitat designation portions of the proposed critical habitat units or subunits that are within the Benton County Prairie Species HCP covered lands totaling about 106 ac (43 ha).
Non-Federal Airports
   The streaked horned lark occurs on airports because management to control hazardous wildlife has incidentally created suitable habitat for the subspecies. Airports create the large, open landscape context preferred by streaked horned larks, and mowing and other management practices to maintain short-statured vegetation for aviation safety similarly inadvertently provides the type of vegetation utilized by the subspecies. However, airports are not ideal locations for focusing recovery efforts for the streaked horned lark. First, larks are at risk of mortality from aircraft collisions, and have been documented as a hazardous species at airports (Cleary and Dolbeer 2005, p. 101). Secondly,
   We received comments from the
   Benefits of Inclusion-Non-Federal Airports-- We find there are minimal benefits to including non-Federal airport lands in critical habitat for the streaked horned lark. As discussed above, the designation of critical habitat invokes the provisions of section 7. Since the non-Federal airport lands in question are all occupied by the streaked horned lark, if a Federal nexus were to occur, section 7 consultation would be triggered by the presence of the listed subspecies and the Federal agency would consider the effects of its actions on the subspecies through a jeopardy analysis. Because one of the primary threats to the streaked horned lark is habitat loss and degradation, the consultation process under section 7 of the Act for projects with a Federal nexus will, in evaluating effects to the streaked horned lark, evaluate the effects of the action on the conservation or functionality of the habitat for the subspecies regardless of whether critical habitat is designated for these lands. The analytical requirements to support a jeopardy determination on excluded lands are similar, but not identical, to the requirements in an analysis for an adverse modification determination on lands designated as critical habitat. However, the additional conservation value that could be attained through the adverse modification analysis for critical habitat under section 7 would likely not be significant, and would be triggered only in the event of a Federal action.
   Another benefit of including lands in a critical habitat designation is that it serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by identifying areas of high conservation value for the streaked horned lark. The designation of critical habitat at airports would highlight the stable habitats that have been unintentionally created on non-Federal airport lands, and which are known to be used by streaked horned larks as breeding and wintering habitats. However, airport managers are already aware of the presence of the streaked horned lark, and some airports have already incorporated management for the streaked horned lark into their operating plans (for example,
   The Service has no intention of promoting increased populations of streaked horned larks on airports as part of the long-term recovery and conservation strategy for the subspecies. Although non-Federal airports inadvertently provide suitable habitat for streaked horned larks, we consider airport habitats to be of relatively low conservation value over the long term. Our conservation strategy for the streaked horned lark will focus on the restoration and management of natural habitats for the subspecies, free of the risks and disturbance associated with air traffic; the designation of critical habitat on airports would thus run counter to our overall conservation strategy for the streaked horned lark. Therefore, while we find some benefits of including non-Federal airport lands in the designation of critical habitat for the streaked horned lark, we find these benefits are reduced due to the known presence of streaked horned larks on their lands and existing management already benefiting the streaked horned lark. As described above, we believe the potential educational benefit of critical habitat on non-Federal airports will therefore be extremely limited. In addition, the benefits of including non-Federal airport lands are further reduced because all of these lands are presently occupied by the streaked horned lark, therefore should a project having a Federal nexus take place, section 7 consultation would occur under the jeopardy standard-- including the consideration of potential effects to habitat for the streaked horned lark--regardless of the designation of critical habitat. Finally, the benefits to the streaked horned lark of designating non-Federal airport lands as critical habitat are relatively minimal because, for reasons described above, we do not intend to focus conservation and recovery efforts on these lands over the long term.
   Benefits of Exclusion-Non-Federal Airports-- Compared to the minimal benefits of including non-Federal airport lands in critical habitat, the benefits of excluding non-Federal airport lands from designated critical habitat are more substantial.
   As mentioned above, managers of non-Federal airport lands occupied by streaked horned larks are generally aware of the presence of the subspecies, and in some cases airport managers have already developed management plans that provide benefits to the streaked horned lark. The exclusion of non-Federal airport lands from the designation of critical habitat would allow us to foster a positive conservation partnership with airport entities in the future, and encourage the development of beneficial management plans such as that developed for the
   The conservation partnership developed between the Service, WDFW, and the
   An additional benefit of exclusion is signaling that we intend to direct the focus of recovery efforts for the streaked horned lark on other, more natural prairie or grassland habitats or habitats with more compatible uses with greater long-term conservation value, and avoiding the misperception that the Service wishes to concentrate on airports as sites essential for the recovery of the streaked horned lark. Section 3(5)(A) of the Act defines "critical habitat" as the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features essential to the conservation of the species. "Conservation" is further defined in section 3(3) of the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. These definitions clearly demonstrate that the purpose of critical habitat designation is to serve as locations of recovery efforts for listed species. However, as noted above, streaked horned larks face a risk of mortality from airstrikes as a result of occupying airport lands. Although airports currently support some relatively large populations of the subspecies, airports are clearly not ideal for conservation and recovery efforts aimed at further increasing the abundance of streaked horned larks. Recovery efforts would be more effectively concentrated on areas capable of supporting long-term viable populations of streaked horned larks with the potential for increases in population size. Although airports clearly provide an interim benefit to the subspecies (and will likely continue to provide habitat for small populations), recovery will require restoration and management of new sites that can sustain increasing populations of streaked horned larks in the long term, in locations that do not pose a heightened risk of mortality to streaked horned larks. The Service does not intend to focus on increasing populations of the streaked horned lark on airport lands as part of the subspecies' long-term recovery strategy. The exclusion of non-Federal airport lands would thus align with our long-term conservation strategy that we are likely to develop for the streaked horned lark, and more appropriately signal our intention to direct recovery efforts to the restoration and maintenance of more natural habitats for the subspecies; we consider this to be a significant benefit of exclusion as well.
   Benefits of Exclusion outweigh the Benefits of Inclusion - Non-Federal Airports-- The benefits of including non-Federal airport lands in the designation are small. Because one of the primary threats to the streaked horned lark is habitat loss and degradation, the consultation process under section 7 of the Act for projects with a Federal nexus will, in evaluating effects to the streaked horned lark, evaluate the effects of the action on the conservation or functionality of the habitat for the subspecies regardless of whether critical habitat is designated for these lands. The analytical requirements to support a jeopardy determination on excluded land are similar, but not identical, to the requirements in an analysis for an adverse modification determination on lands designated as critical habitat. Although not specifically intended to provide for the conservation of the streaked horned lark, management for aviation safety at airports already inadvertently results in actions that create and maintain streaked horned lark habitat, benefits that exceed the conservation benefits afforded through section 7 consultation. Since designation as critical habitat would not change these already positive management efforts, the benefits of including these lands in critical habitat are small, and are reduced by other considerations, as described below.
   The educational benefit of critical habitat is minimal in this case; since all non-Federal airport lands in question are occupied by streaked horned larks, any potential educational benefit of critical habitat is reduced by the fact that airport managers are already aware of the presence of the subspecies and its habitat needs. In fact, in some cases, airport managers have already incorporated conservation provisions for streaked horned larks and other prairie species into their management plans. Importantly, it is not the Service's intention to focus on airport lands as essential sites for recovery; although airports provide important interim habitat, they also carry an associated risk of mortality to the birds through airstrikes, and regulations requiring the minimization of wildlife hazards at airports are not compatible with efforts to increase populations of birds in these areas. The Service intends to focus long-term recovery efforts for the streaked horned lark on other, more natural areas of prairie or grassland habitat or habitat with more compatible land uses of higher conservation value. The designation of non-Federal airport lands as critical habitat would be at odds with our long-term recovery strategy that we are likely to develop for the streaked horned lark, thereby further reducing any benefit from including these lands in critical habitat.
   On the other hand, the benefits of exclusion are relatively substantial. Excluding airports would allow the Service to develop conservation partnerships with airport managers, and potentially result in the implementation of management plans at airports designed to benefit the conservation of the streaked horned lark. As we have seen through the example set at the
   Another significant benefit of exclusion is signaling our intention to focus recovery efforts more appropriately on the restoration and management of other, more natural habitats with compatible uses for increasing populations of the streaked horned lark over the long term. Streaked horned larks are at risk of mortality from airstrikes at airports. Although airports may serve as interim habitat for the streaked horned lark, the inclusion of airports in critical habitat would be contrary to our long-term conservation strategy for the subspecies. As we do not wish to create the impression that we consider airport lands as sites essential for the recovery and conservation of streaked horned larks, exclusion of these lands would benefit the subspecies by directing recovery efforts to other natural areas with greater long-term conservation value.
   Based on our evaluation of the benefits of inclusion versus the benefits of exclusion, we determine that the benefits of excluding non-Federal airport lands from the designation of critical habitat for the streaked horned lark outweigh the benefits of including these areas in critical habitat. The Secretary is therefore exercising her discretion under section 4(b)(2) of the Act to exclude the following airports from critical habitat for the streaked horned lark:
   (1) Sanderson Field in Unit 1--376 ac (152 ha).
   (2)
   (3)
   (4)
   (5)
   (6)
   (7)
   A small portion of land proposed for critical habitat is adjacent to
   Occupied lands excluded under section 4(b)(2) of the Act are still considered essential to the conservation of the species. Such areas were proposed as critical habitat because they provide the essential physical or biological features to support the life history of the streaked horned lark. Exclusion should never be interpreted as meaning that such areas are unimportant to the conservation of the species. Exclusion is based upon a determination by the Secretary that the benefit of excluding these essential areas outweighs the benefit of including them in critical habitat.
   Exclusion Will Not Result in the Extinction of the Species--Non-Federal Airports-- Exclusion will not result in extinction of the streaked horned lark because each of the airports proposed as critical habitat is occupied by the subspecies; therefore Federal agency actions that require section 7 consultation will be required to meet the jeopardy standard for any actions that may affect the streaked horned lark at those sites. This consultation requirement will safeguard the streaked horned lark from extinction, regardless of the area's designation as critical habitat.
Tribal Lands--Exclusions Under Section 4(b)(2) of the Act
   In accordance with the President's memorandum of
   We proposed 182 ac (74 ha) of critical habitat in an area currently occupied by the streaked horned lark and that provides one or more of the essential physical or biological features for the subspecies on lands reserved for the
   This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Native American tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Accordingly, we are obligated to consult with tribes based on their unique relationship with the Federal government. In addition, we evaluate tribes' past and ongoing efforts for species conservation and the benefits of including or excluding tribal lands in the designation under section 4(b)(2) of the Act.
   We contacted the
   We determined that approximately 182 ac (74 ha) of lands owned by, or under the jurisdiction of, the Tribe contained biological features essential to the conservation of the streaked horned lark, and therefore meet the definition of critical habitat under the Act. These tribal lands are located in the subunit identified as
   
   Benefits of Inclusion--
   In
   The principal benefit of including an area in a critical habitat designation is the requirement for Federal agencies to ensure that actions they fund, authorize, or carry out are not likely to result in the destruction or adverse modification of any designated critical habitat, the regulatory standard of section 7(a)(2) of the Act under which consultation is completed. Federal agencies must also consult with us on actions that may affect a listed species and refrain from undertaking actions that are likely to jeopardize the continued existence of such species. The analysis of effects of a proposed project on critical habitat is separate and different from that of the effects of a proposed project on the species itself. The jeopardy analysis evaluates the action's impact to survival and recovery of the species, while the destruction or adverse modification analysis evaluates the action's effects to the designated habitat's contribution to conservation. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. This will, in many instances, lead to different results and different regulatory requirements. Thus, critical habitat designations may provide greater benefits to the recovery of a species than listing alone would do. However, for some species, and in some locations, the outcome of these analyses will be similar, because effects to habitat will often also result in effects to the species. The tribal lands considered for exclusion are occupied by the streaked horned lark and will be subject to the consultation requirements of the Act in the future. Although a jeopardy and adverse modification analysis must satisfy two different standards, because any modifications to proposed actions resulting from a section 7 consultation to minimize or avoid impacts to the streaked horned lark will be habitat-based, it is not possible to differentiate any measures implemented solely to minimize impacts to the critical habitat from those implemented to minimize impacts to the streaked horned lark. Therefore, in the case of the streaked horned lark, we believe the benefits of critical habitat designation are very similar to the benefits of listing, and in some respects would be indistinguishable from the benefits of listing.
   Public education is often cited as another possible benefit of including lands in critical habitat as it may help focus conservation efforts on areas of high value for certain species. Partnership efforts with the
   We believe existing tribal regulations, including the 2001 Tribal Environmental Codes that protect the saltmarsh and sand spit as natural areas, will ensure that any land use actions, including those funded, authorized, or carried out by Federal agencies, are not likely to result in the destruction or adverse modification of all lands considered for exclusion. The Tribe coordinates with the Service on all actions that have the potential to affect habitat for listed species on the reservation, including the streaked horned lark. In 2003, the Service completed a Planning Aid Letter, and in 2006, we wrote a Fish and Wildlife Coordination Act Report for the Corps (
   Surveys for both the western snowy plover and streaked horned lark have been conducted by WDFW and the Tribe on the reservation and adjacent lands since 2000. Surveys became more intensive in 2004 and later years (to present) when both the western snowy plover and streaked horned lark were documented nesting on tribal lands on Shoalwater spit. Although they may not nest there every year, male streaked horned larks were heard singing or have been seen on
   Any potential impacts to the streaked horned lark from future proposed activities on tribal trust reservation lands will be addressed through a section 7 consultation using the jeopardy standard, and such activities would also be subject to the take prohibitions under section 9 of the Act. As a result, we believe the regulatory benefits of critical habitat designation on tribal trust reservation land would largely be redundant with the combined benefits of listing and existing tribal regulations.
   The designation of critical habitat for the streaked horned lark may strengthen or reinforce some Federal laws, such as the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) or the Clean Water Act (33 U.S.C.
   In summary, we believe that designating critical habitat on the
   Benefits of Exclusion--
   In the case of proposed critical habitat for the streaked horned lark (77 FR 61937;
   We believe significant benefits would be realized by excluding lands managed by the
   (1) Continuing and strengthening of our effective relationship with the tribe to promote conservation of the streaked horned lark and its habitat; and
   (2) Allowing continued meaningful collaboration and cooperation in working toward recovering this subspecies, including conservation actions that might not otherwise occur.
   Because the Tribe is the entity that enforces protective regulations on tribal trust reservation land, and we have a working relationship with them, we believe exclusion of these lands will yield a significant partnership benefit. We will continue to work cooperatively with the Tribe on efforts to conserve the streaked horned lark. Therefore, excluding these lands from critical habitat provides the significant benefit of maintaining and strengthening our existing conservation partnerships and the potential of fostering new tribal partnerships.
   Benefits of Exclusion Outweigh Benefits of Inclusion--
   We do not believe that inclusion of tribal lands will significantly improve habitat protections for the streaked horned lark beyond what is already provided for in the Tribe's own protective policies and practices, discussed below.
   The Tribe is working closely with the Corps and the Federal and State resource agencies on the development of an Ecological Restoration Plan for the
   Tribal lands are currently being managed on a voluntary basis in cooperation with the Service and others to conserve the streaked horned lark and achieve important conservation goals. We believe the streaked horned lark benefits from the Tribe's voluntary management actions due to their long-standing and broad application to tribal management decisions. Tribal cooperation and support is required to continue cooperative scientific efforts, to promote the recovery of the streaked horned lark, and to implement proactive conservation actions. This need for the tribal cooperation is especially acute because, in some cases, populations exist only on areas of tribal management or only on tribal lands. Future conservation efforts in this area require the continued cooperation and support of the Tribe. Exclusion of tribal lands from the critical habitat designation will help us maintain and improve our partnership with the Tribe by formally recognizing their positive contributions to streaked horned lark recovery, and by streamlining or reducing unnecessary regulatory oversight.
   Given the cooperative relationship between the
   Because of the ongoing relationship between the Service and the
   In contrast, although the benefits of encouraging participation in tribal management plans, and, more broadly, helping to foster cooperative conservation are indirect, enthusiastic tribal participation and an atmosphere of cooperation are crucial to the long-term effectiveness of the endangered species program. Also, we have concluded that the Tribe's voluntary conservation efforts will provide tangible conservation benefits that will reduce the likelihood of extinction and increase the likelihood for streaked horned lark recovery. Therefore, we assign great weight to these benefits of exclusion. To the extent that there are regulatory benefits of including tribal lands in critical habitat, there would be associated costs that could be avoided by excluding the area from designation. As we expect the regulatory benefits to be low, we likewise give weight to avoidance of those associated costs, as well as the additional transaction costs related to section 7 compliance.
   We reviewed and evaluated the benefits of inclusion and the benefits of exclusion of
   On the other hand, the benefits of excluding the
   In summary, we find that excluding the
   Exclusion Will Not Result in Extinction of the Species--
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
   ve Order 12866 provides that the
   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.
   Under the Regulatory Flexibility Act (RFA; 5 U.S.C.
   According to the
   To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (e.g., airports, agriculture, recreation, and habitat management). We apply the "substantial number" test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define "substantial number" or "significant economic impact." Consequently, to assess whether a "substantial number" of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.
   Designation of critical habitat only affects activities authorized, funded, or carried out by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they authorize, fund, or carry out that may affect Taylor's checkerspot butterfly and streaked horned lark. Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities (see Application of the "Adverse Modification" Standard).
   In our final economic analysis (FEA) of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listings of Taylor's checkerspot butterfly, streaked horned lark, and four subspecies of Mazama pocket gopher and the designation of critical habitat. The analysis is based on the estimated impacts associated with the rulemaking as described in Appendix A of the FEA (IEc 2013, pp. A-1-A-11) and evaluates the potential for economic impacts related to: Military activities; recreation and habitat management; airport operations and agricultural activities; transportation, electricity distribution and forestry activities; and dredging, gravel mining, development, and other activities. The FEA determined that critical habitat designation will not result in impacts to small entities for the following activities (IEc 2013, p. A-4):
   (1) Military activities. As the affected base, JBLM is a Federal entity and it is, by definition, not small, and thus no impacts to small entities are expected.
   (2) Transportation. The impacts are limited to
   (3) Electricity Distribution and Forestry Activities. The only electricity distribution activity within the proposed critical habitat is carried out by the
   (4) Dredging. Dredging is conducted by the
   Estimated incremental impacts that may be borne by small entities are limited to the administrative costs of section 7 consultation related to airport operations and agriculture as well as by recreation and habitat restoration. Potential impacts on these sectors are evaluated here:
   Airport Operations and Agriculture. Chapter 3 of the FEA discuss the potential for the critical habitat designations to affect airports and agricultural activities. Overall, 214 consultations would be expected in relation to operations at 7 airports over the next 20 years. Information on whether airports are large or small entities was available for some airports and not for others. For the purposes of the analysis, we made the conservative assumption that all airports within the proposed critical habitat are small entities. These seven entities represent 3 percent of the total small Other Airport Operations (NAICS code 488119) entities within the proposed critical habitat. The cost per entity, per consultation, to participate in forecast consultation is approximately
   We forecast two projects related to agriculture, one at
   Recreation and
   Recreators at JBLM may incur unquantified losses in economic surplus in the form of reduced or restricted recreational use of JBLM lands proposed as critical habitat. However, because the recreators leasing JBLM lands are individuals, not entities, we do not address these impacts in this analysis.
   In summary, we considered whether this designation will result in a significant economic effect on a substantial number of small entities (IEc 2013, p. A-7). Based on the above reasoning and currently available information, we conclude that this rule will not result in a significant economic impact on a substantial number of small entities. Therefore, we are certifying that the designation of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
   Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute "a significant adverse effect" when compared to not taking the regulatory action under consideration.
   The economic analysis finds that none of these criteria is relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with Taylor's checkerspot butterfly and streaked horned lark conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C.
   In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
   (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
   The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
   (2) We do not believe that this rule will significantly or uniquely affect small governments. 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. Therefore, this rule does not place an enforceable duty upon State, local, or Tribal governments, or on the private sector.
   Consequently, we do not believe that the critical habitat designation will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
   In accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Taylor's checkerspot butterfly and streaked horned lark in separate takings implications assessments. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. 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 incidental take permits to permit actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this designation of critical habitat for Taylor's checkerspot butterfly and streaked horned lark does not pose significant takings implications for lands within or affected by the designation.
Federalism--Executive Order 13132
   In accordance with Executive Order 13132 (Federalism), this rule does not have significant Federalism effects. A federalism impact summary statement is not required. In keeping with
   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) will be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
   In accordance with Executive Order 12988 (Civil Justice Reform), the
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
Government-to-Government Relationship With Tribes
   In accordance with the President's memorandum of
   In the proposed rule to designate critical habitat published in the
References Cited
   A complete list of all references cited is available on the Internet at http://www.regulations.gov and upon request from the Service's Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
   The primary authors of this rulemaking are the staff members of the Washington and Oregon Fish and Wildlife Offices.
List of Subjects in 50 CFR Part 17
   Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Regulation Promulgation
   Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
   1. The authority citation for part 17 continues to read as follows:
   Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, 100 Stat. 3500; unless otherwise noted.
   2. Amend SEC 17.95 by:
   (a) In paragraph (b), adding an entry for "Streaked horned lark (Eremophila alpestris strigata)" in the same order that this species appears in the table in SEC 17.11(h); and
   (b) In paragraph (i), by adding an entry for "Taylor's checkerspot butterfly (Euphydryas editha taylori)" in the same order that this species appears in the table in SEC 17.11(h).
   The additions read as follows:
SEC 17.95 Critical habitat--fish and wildlife.
* * * * *
   (b) Birds.
* * * * *
Streaked horned lark (Eremophila alpestris strigata)
   (1) Critical habitat units are depicted for
   (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the streaked horned lark consist of areas having a minimum of 16 percent bare ground that have sparse, low-stature vegetation composed primarily of grasses and forbs less than 13 inches (33 centimeters) in height found in:
   (i) Large (300-acre (120-hectare)), flat (0-5 percent slope) areas within a landscape context that provides visual access to open areas such as open water or fields; or
   (ii) Areas smaller than described in paragraph (2)(i) of this entry, but that provide visual access to open areas such as open water or fields.
   (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
   (4) Critical habitat map units. Data layers defining map units were created on 2010 aerial photography from
   (5) Index map of critical habitat units for the streaked horned lark follows:
BILLING CODE 4310-55-P
See Illustration in Original Document.
   (6) Unit 3--
   (i) Subunit 3-A:
See Illustration in Original Document.
   (ii) Subunit 3-B: Midway Beach, Washington. Map of Subunit 3-B follows:
See Illustration in Original Document.
   (iii) Subunit 3-C: Shoalwater, Washington. Map of Subunit 3-C follows:
See Illustration in Original Document.
   (iv) Subunit 3-D:
See Illustration in Original Document.
   (v) Subunit 3-E:
See Illustration in Original Document.
   (vi) Subunit 3-F: Miller Sands, Oregon. Map of Subunit 3-F follows:
See Illustration in Original Document.
   (vii) Subunit 3-G: Pillar Rock/Jim Crow Sands, Oregon. Map of Subunit 3-G follows:
See Illustration in Original Document.
   (viii) Subunit 3-H:
See Illustration in Original Document.
   (ix) Subunit 3-I:
See Illustration in Original Document.
   (x) Subunit 3-J:
See Illustration in Original Document.
   (xi) Subunit 3-K:
See Illustration in Original Document.
   (xii) Subunit 3-L:
See Illustration in Original Document.
   (xiii) Subunit 3-M:
See Illustration in Original Document.
   (7) Unit 4--
   (i) Subunit 4-A: Baskett Slough NWR, Oregon. Map of Subunit 4-A follows:
See Illustration in Original Document.
   (ii) Subunit 4-B: Ankeny NWR, Oregon. Map of Subunit 4-B follows:
See Illustration in Original Document.
   (iii) Subunit 4-C: William L. Finley NWR, Oregon. Map of Subunit 4-C follows:
See Illustration in Original Document.
* * * * *
   (i) Insects.
* * * * *
Taylor's Checkerspot Butterfly (Euphydryas editha taylori)
   (1) Critical habitat units are depicted for Island, Clallam, and Thurston Counties in Washington, and in Benton County in Oregon, on the maps below.
   (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Taylor's checkerspot butterfly consist of four components:
   (i) Patches of early seral, short-statured, perennial bunchgrass plant communities composed of native grass and forb species in a diverse topographic landscape ranging in size from less than 1 ac up to 100 ac (0.4 to 40 ha) with little or no overstory forest vegetation that have areas of bare soil for basking that contain:
   (A) In Washington and Oregon, common bunchgrass species found on northwest grasslands include Festuca roemeri (Roemer's fescue), Danthonia californica (California oat grass), Koeleria cristata (prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra (rough bentgrass), and on cooler, high-elevation sites typical of coastal bluffs and balds, Festuca rubra (red fescue).
   (B) On moist grasslands found near the coast and in the
   (ii) Primary larval host plants (narrow-leaved plantain and harsh paintbrush) and at least one of the secondary annual larval host plants (blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several species of speedwell (marsh speedwell (Veronica scutella), American speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V. serpyllifolia).
   (iii) Adult nectar sources for feeding that include several species found as part of the native (and one nonnative) species mix on northwest grasslands, including: narrow-leaved plantain; harsh paintbrush; Puget balsam root; woolly sunshine; nine-leaved desert parsley; fine-leaved desert parsley or spring gold; common camas; showy fleabane; Canada thistle; common yarrow; prairie lupine; sickle-keeled lupine; and wild strawberry (Fragaria virginiana).
   (iv) Aquatic features such as wetlands, springs, seeps, streams, ponds, lakes, and puddles that provide moisture during periods of drought, particularly late in the spring and early summer. These features can be permanent, seasonal, or ephemeral.
   (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, railroad tracks, and other paved areas) and the land on which they are located existing within the legal boundaries on
   (4) Critical habitat map units. Data layers defining the map unit were created on 2010 aerial photography from
   (5) Index map of critical habitat units for the Taylor's checkerspot butterfly follows:
See Illustration in Original Document.
   (6) Unit 1: South Sound, Washington.
   (i) Subunit 1-A:
See Illustration in Original Document.
   (ii) Subunit 1-B:
See Illustration in Original Document.
   (iii) Subunit 1-C: Glacial Heritage, Washington. Map of Subunit 1-C follows:
See Illustration in Original Document.
   (iv) Subunit 1-D:
See Illustration in Original Document.
   (v) Subunit 1-E: Bald Hill, Washington. Map of Subunit 1-E follows:
See Illustration in Original Document.
   (7) Unit 2:
   (i) Subunit 2-A:
See Illustration in Original Document.
   (ii) Subunit 2-B: Central Whidbey, Washington. Map of Subunit 2-B follows:
See Illustration in Original Document.
   (iii) Subunit 2-C: Elwha, Washington. Map of Subunit 2-C follows:
See Illustration in Original Document.
   (iv) Subunit 2-D: Sequim, Washington. Map of Subunit 2-D follows:
See Illustration in Original Document.
   (v) Subunit 2-E: Dungeness, Washington. Map of Subunit 2-E follows:
See Illustration in Original Document.
   (8) Unit 4:
   (i) Subunit 4-D: Fitton Green-Cardwell Hill, Oregon.
   (ii) Map of Subunit 4-D follows:
See Illustration in Original Document.
* * * * *
   Dated:
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-23552 Filed 10-2-13;
BILLING CODE 4310-55-C
Copyright: | (c) 2013 Federal Information & News Dispatch, Inc. |
Wordcount: | 60351 |
Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Taylor’s Checkerspot Butterfly and Threatened Status for…
Decision and Order: Clair L. Pettinger, M.D.
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