Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mazama Pocket Gophers
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Final rule.
CFR Part: "50 CFR Part 17"
RIN Number: "RIN 1018-AZ37"
Citation: "79 FR 19712"
Document Number: "Docket No. FWS-R1-ES-2013-0021; 4500030113"
"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 http://www.fws.gov/wafwo/mpg.html. Comments and materials we received, as well as some supporting documentation we used in preparing this final rule, are available for public inspection at http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0021. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at: http://www.regulations.gov under Docket No. FWS-R1-ES-2013-0021, at http://www.fws.gov/wafwo/mpg.html, and, 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. This is a final rule to designate critical habitat for the following three subspecies of the
We published a proposed rule to list as threatened and designate critical habitat for the
The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for the four
* Designates as critical habitat approximately 1,607 ac (650 ha) of land for the
* Exempts, under section 4(a)(3)(B)(i) of the Act, all 4,840 ac (1,958 ha) of critical habitat proposed for the
This rule consists of: A final designation of critical habitat for the
We have prepared an economic analysis of the designation of critical habitat. In order to consider economic impacts, we have prepared an analysis of the 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 whether or not we had used the best available information. These peer reviewers generally 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 revised designation. We also considered all comments and information received from the public during our three open comment periods, which were open a total of 135 days. We also held two public information workshops and a public hearing in
Previous Federal Actions
The full candidate history and previous Federal actions for the four
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the four
During the three public comment periods, we received approximately 220 comment letters and emails from individuals and organizations, as well as individual comments received as speaker testimony at the public hearing held on
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 four
Comments From
In accordance with our peer review policy published
(1) Comment: One peer reviewer recommended that peripheral areas that support pocket gopher populations, or could provide that support, should be included in the designation of critical habitat. The reviewer stated that the existence of peripheral populations, along with larger, core populations, is a reflection of overall population health, as those peripheral populations provide the evolutionarily important stepping-stone opportunities for gene exchange between core areas. These peripheral populations are likely to be ephemeral, because of poor or limited resources and overall size of the patch, but they are also likely to be recolonized on a regular basis.
Our Response: Although we are aware of the potential importance of peripheral populations, because of the size of the area these individual populations occupy (i.e., below the 50-ac (20-ha) minimum patch size identified in our primary constituent elements (PCEs)), they did not meet our definition of critical habitat for the subspecies. In addition, because of the inherent uncertainty of the long-term persistence of individual peripheral populations and their contribution to core populations, we did not believe we had sufficient justification to propose these areas as critical habitat in this case, as we do not consider them to provide the physical or biological features essential to the conservation of the species. However, this does not mean that these undesignated areas are unimportant or will not contribute to the long-term conservation of the
(2) Comment: One peer reviewer recommended that all soils that may be occupied or vegetative cover that may be used by any one of the subspecies be listed as "suitable" for the other subspecies.
Our Response: In our PCEs, vegetative cover was discussed as being the same for all subspecies. We have revised the soils discussion to more broadly include soil types (describing soil qualities) as well as including the soil series names which the various subspecies may occupy. However, not all soil series in which the four subspecies have been found occur within the presumed range of each of the four subspecies, and furthermore not all soil series occur within each of the units designated as critical habitat. Note that the PCEs only apply to areas identified as critical habitat; the regulatory effect of critical habitat does not apply anywhere outside of the designated units. Given the current level of uncertainty regarding the absolute ranges of the four
Comments From State Agencies
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 four
We received critical habitat comments from the
WDFW provided a number of recommended technical corrections or edits to the proposed critical habitat designation for the
(3) Comment: WDFW and another commenter observed that four proposed critical habitat subunits (1-A, 1-B, 1-C, and 1-D) had more than one subspecies name associated with each subunit. The other commenter asserted that because critical habitat subunits l-A, l-B, l-C and l-D appear to be occupied by two subspecies of the
Our Response: The critical habitat proposed for each of the subspecies of the
(4) Comment: WDFW stated that determining occupancy of an area by
Our Response: The Service agrees that occupancy of any site by
In our proposed designation, occupancy of critical habitat was determined at the subunit level based on a positive detection during a survey conducted within the previous 5 years on at least a portion of the subunit. Occupancy determinations were not made at less biologically relevant scales below the subunit level (e.g., at the individual ownership/parcel scale), so it is possible that a portion of a unit or a subunit may not be currently occupied, but is part of a larger unit or subunit that is considered occupied. However, even if pocket gophers are not detected in some portion of a subunit in any given year, because the PCEs are present (e.g., requisite soil and vegetation types, barriers to dispersal absent or permeable) and the area is adjacent or contiguous to an occupied portion of the subunit, we consider the whole subunit as likely occupied. This is the likely dynamic state of occupancy for the majority of areas included in critical habitat as units and subunits. It is known that some areas where
As described in our listing rule (published elsewhere in today's
(5) Comment: WDFW pointed out that the expert panel cited in the proposed critical habitat rule did not have the empirical data necessary to make an informed decision about minimum habitat patch size that would provide a high likelihood for long-term persistence of the
Our Response: The Service relies upon the best available scientific and commercial data to inform the decisions necessary for creating listing and critical habitat rules. In this case, we drew on the knowledge of a team of experts who were assembled to assist with the construction of a habitat modeling exercise. In the absence of studies demonstrating the minimum possible patch size for persistence of the
(6) Comment: WDFW stated that genetics and population dynamics of gophers suggest that the maintenance of networks of smaller habitat patches may be as important as preserving larger patches of isolated habitat.
Our Response: The Service agrees that both small and large habitat patches may be important to the recovery of the
Comments From Federal Agencies
(7) Comment: The
Our Response: The baseline utilized in the DEA is the existing state of regulation, prior to the designation of critical habitat, which provides protection to the species under the Act, as well as protection under other Federal, State, and local laws and guidelines. To characterize the "world without critical habitat," the DEA also endeavors to forecast these conditions into the future over the time frame of the analysis (20 years in this case), recognizing that such projections are subject to uncertainty. This baseline projection presumes that the species will be listed (as critical habitat would not be designated absent a listing) and therefore recognizes that the four
The Olympia Airport Unit contains the largest known area occupied by the
(8) Comment:
Our Response: The Service concurs with this assessment and has excluded this property from the final critical habitat designation for
Comments From the Public
(9) Comment: One commenter asserted that the Service has not demonstrated that the Rocky Prairie Unit for the
Our Response: In determining what areas meet the definition of critical habitat for the
(10) Comment: One commenter stated that the Service should not designate any private property as habitat for the
Our Response: According to section 4(a)(3)(A) of the Act, the Secretary of the Interior shall, to the maximum extent prudent and determinable, concurrently with making a determination that a species is an endangered species or a threatened species, designate critical habitat for that species. As directed by the Act, we proposed as critical habitat those areas that we believe are occupied by the species at the time of listing and that contain the physical or biological features essential for the conservation of the species, which may require special management considerations or protection. To the extent that those areas may not, in fact, be occupied, we conclude that they are nonetheless essential for conservation of the species.
The Act does not provide for any distinction between landownerships in those areas that meet the definition of critical habitat. However, the Act does allow the Secretary to consider whether certain areas may be excluded from final critical habitat. An area may be excluded under section 4(b)(2) of the Act if the benefits of excluding it outweigh the benefits of including it in critical habitat, unless that exclusion would result in the extinction of the species. In this case, as directed by the statute, the Secretary has considered whether any areas should be excluded from the final designation based on economic impacts, national security impacts, or other relevant impacts. In the case of private landowners, the Secretary has excluded private lands from the final designation of critical habitat in cases where she has determined that the benefits of excluding areas with conservation agreements or other partnerships outweighs the benefits of including those areas in critical habitat (see Exclusions section of this document).
The area known as
According to documents submitted to the Service, the privately held portion of the Rocky Prairie Unit was surveyed on
(11) Comment: One commenter stated that designating critical habitat on lands that will require maintenance or restoration of the PCEs is not appropriate. Another commenter stated that the designation of critical habitat would require special management of the habitat under section 7 of the Act, based on the requirement for individuals or organizations who receive Federal funds to consult on any alterations to known occupied habitat, such as construction, grading, and activities as simple as mowing.
Our Response: By definition under section 3(5)(A)(i) of the Act, the essential physical or biological features associated with occupied critical habitat "may require special management considerations or protection." The prairies of western
Critical habitat may require special management to maintain optimal condition for listed species, but the designation of critical habitat does not, by itself, impose a duty on the landowner to engage in those special management activities. Anywhere a Federal nexus exists, any Federal agency activity that may affect the species or its designated critical habitat is subject to consultation under section 7. In these cases, a Federal agency proposing an action that may affect the listed species or its designated critical habitat would be required to conduct an evaluation to determine whether or not it may affect the species, and if critical habitat is designated, whether or not it may affect that habitat.
(12) Comment: Some commenters questioned whether it was necessary to designate critical habitat for the four
Our Response: The Act requires that we designate critical habitat for listed species on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. In our proposed rule, it is our practice to identify all areas that meet our definition of critical habitat for the species. In the case of the
(13) Comment: One commenter suggested that
Our Response: The Service has no data to support the commenter's conclusion, but careful consideration of
(14) Comment: One commenter noted that the proposed rule specifically identifies modification of soil profiles or composition and structure of vegetation, including actions such as grading and mowing, as actions that would adversely modify critical habitat. The commenter interprets this to mean that a landowner would essentially be prohibited from grading or mowing his or her property because such activities would put the property owner at risk of violating the "take" prohibitions in the Act. The commenter also states that a citizen suit could be brought under the Act asserting such a take has occurred or been wrongfully permitted by the
Our Response: We believe the commenter is confusing the regulatory effects that may be associated with the listing of the species under the Act, and the automatic protections associated with listing itself, with the regulatory effects separately attributable to the designation of critical habitat. The prohibition against "take" of a listed species under section 9 of the Act applies to individuals of the listed species. Therefore, if the listed species is present, it is accurate that the landowner risks violation of section 9 of the Act if they should implement some action that results in take of that species (the Act defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct"), but section 9 is not attributable to the designation of critical habitat. Although in most cases "take" refers to a direct effect on an individual of the species, "take" may also apply to actions that result in modification of the habitat of the species, in cases where such modification may be considered to constitute "harm" to the listed species. Once a species is listed under the Act, the provisions prohibiting take come into effect. These prohibitions are, however, completely independent of the designation of critical habitat. That is, the prohibition against take of the listed species applies regardless of whether critical habitat is designated.
It is possible that there could be some economic impact associated with actions required to avoid take of a listed species; however, section 4(b)(1)(A) of the Act is clear that listing decisions are to be made solely on the basis of the best scientific and commercial data available. The Act does not provide for the consideration of potential economic impacts in association with a listing determination; therefore such impacts are not factored into our economic analysis.
Section 4(b)(2) of the Act, on the other hand, requires the consideration of potential economic impacts associated with the designation of critical habitat. However, as we have explained elsewhere, the regulatory effect of critical habitat under the Act directly impacts only Federal agencies, as a result of the requirement that those agencies avoid "adverse modification" of critical habitat. Specifically, section 7(a)(2) of the Act states that, "Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical . . ." This then, is the direct regulatory impact of a critical habitat designation, and serves as the foundation of our economic analysis. We define it as an "incremental impact" because it is an economic impact that is incurred above and beyond the baseline impacts that may stem from the listing of the species (for example, costs associated with avoiding take under section 9 of the Act, mentioned by the commenter), thus it "incrementally" adds to those baseline costs. However, in most cases, and especially where the habitat in question is already occupied by the listed species, if there is a Federal nexus, the action agency already consults with the Service to ensure its actions will not jeopardize the continued existence of the species; thus the additional costs of consultation to further ensure the action will not destroy or adversely modify critical habitat are usually relatively minimal. Because the Act provides for the consideration of economic impacts associated only with the designation of critical habitat, and because the direct regulatory effect of critical habitat is the requirement that Federal agencies avoid destruction or adverse modification of critical habitat, the direct economic impacts of a critical habitat designation in occupied areas are generally limited to the costs of consultations on actions with a Federal nexus, and are primarily borne by Federal action agencies. As described in our final economic analysis, in some cases private individuals may incur some costs as third-party applicants in an action with a Federal nexus. Beyond this, while small business entities may possibly experience some economic impacts as a result of a listing of a species as endangered or threatened under the Act, small businesses generally do not experience any economic impacts as a direct result of the designation of critical habitat.
We encourage any landowner concerned about potential take of listed species on their property to contact the Service (see FOR FURTHER INFORMATION CONTACT) to explore options for developing a safe harbor agreement or habitat conservation plan that can provide for the conservation of the species and offer management options to landowners, associated with a permit for protect the party from violations under section 9 of the Act.
(15) Comment: One commenter stated that the designation of critical habitat on agricultural lands would be a "death blow" for many members of the agricultural community. Another commenter had specific questions about the effects of critical habitat designation on property values and how potential loss of value might be mitigated or compensated to the owner.
Our Response: The Service proposed to designate 775 acres (ac) (314 hectares (ha)) of active agricultural land as critical habitat in the proposed rule, wholly owned by three individual landowners. One landowner had a long-standing conservation agreement that allowed us to exclude his entire property, totaling 378 ac (153 ha), due to demonstrable benefit to the
(16) Comment: One commenter stated that there is enough conserved habitat upon which to recover the four subspecies of the
Our Response: The designation of critical habitat is not an optional exercise. According to section 4(a)(3)(A) of the Act, the Secretary of the Interior shall, to the maximum extent prudent and determinable, concurrently with making a determination that a species is an endangered species or a threatened species, designate critical habitat for that species. We have determined that critical habitat is both prudent and determinable for the four
The Service acknowledges that there are conserved prairies that superficially appear to have potential
Comments on Economic Analysis
(17) Comment: One commenter said the Service must factor the economic impact of the critical habitat designation into account when assessing whether to exclude areas from critical habitat designations, and decide whether the benefits of including the area outweigh the benefits of excluding it. They further stated that this in turn requires an assessment of whether any additional regulatory benefits will come from critical habitat designation that can outweigh the burdens the designation imposes.
Our Response: Our economic analysis identifies those economic impacts that are attributable specifically to the designation of critical habitat, for the purposes of considering whether the benefits of excluding those areas (for example, to avoid disproportionate economic impacts) may outweigh the benefit of including them in critical habitat. It is the Service's position that, at a minimum, critical habitat almost always carries with it at least some educational value for landowners, in terms of clearly identifying those areas that we consider to provide physical or biological features essential for the conservation of the species. In addition, critical habitat carries with it the requirement under section 7(a)(2) of the Act that Federal agencies avoid actions that will destroy or adversely modify critical habitat; this is a benefit that is not conveyed by existing regulatory mechanisms absent a formal Federal rulemaking to designate critical habitat. In our analyses, as described in detail in the Exclusions section of this document, we weigh the benefits that come with critical habitat against the burdens or costs that may be associated with it.
In the case of the four
(18) Comment: One commenter stated that the Draft Economic Analysis failed to address the impact of the designation of critical habitat in an area that contains a gravel mining operation.
Our Response: The proposed critical habitat acreage in the area mentioned by the commenter is considered to be occupied by the
In addition, to be conservative, we considered the potential economic impacts of the designation on the gravel mining operation in question as if the area were not occupied by the
(19) Comment: Several commenters stated that areas where subspecies of the
Our Response: The Act, as it was written, does not allow the economic effects of listing a species as an endangered species or threatened species to be considered when making a status determination. Potential economic impacts are allowable for consideration only in association with the designation of critical habitat. The mandate of the Act is to examine the evidence of threats to a species (or subspecies) in an unbiased way, based on the best scientific and commercial data available, and determine whether or not it is in danger of extinction (endangered) or likely to become so within the foreseeable future (threatened). We have determined that the
The Act only provides for the consideration of economic impacts in association with critical habitat, and not in association with the listing of a species; therefore our analysis of potential economic impacts is limited to the consideration of those impacts that are attributable solely to the designation of critical habitat. As previously stated, determinations regarding the status of the species are to be made "solely on the basis of the best scientific and commercial data available" to the Secretary. Therefore, any actual or perceived "burdens" imposed by the listing of the species (for example, actions that may be necessary to avoid violating section 9 of the Act) are not considered in the weighing process for evaluating the relative benefits of including an area in critical habitat versus the benefits of excluding it from the final designation, as the regulatory consequences of listing the species will be incurred regardless of whether critical habitat is designated.
(20) Comment: One local
Our Response: Again, we believe the commenter is confusing the regulatory effects that may be associated with the listing of the species under the Act, and the associated automatic protections of the listing, with the regulatory effects separately attributable to the designation of critical habitat (see response to Comment (14), above). In this case, we believe the commenter has erred by attributing potential costs under section 9 of the Act to critical habitat designation. Section 9 addresses acts that are prohibited with respect to any endangered or threatened species of fish or wildlife listed pursuant to section 4 of the Act; there is no prohibited act under section 9 that would occur as a consequence of critical habitat designation. As described in our response to Comment (14), the regulatory effect of critical habitat is the requirement under section 7 of the Act that Federal agencies insure that any action they authorize, fund, or carry out is not likely to destroy or adversely modify critical habitat. As a result, the greatest economic impact of critical habitat is most frequently associated with the additional costs of section 7 consultation and compliance above and beyond the jeopardy standard (in occupied areas), under the standard of adverse modification.
We do not anticipate significant additional costs to be incurred on adjacent properties as a result of critical habitat designation at the
(21) Comment: Several commenters expressed concern that the designation of
Our Response: Chapter 3 of the DEA states that potential project modifications for all activities, including development projects, in critical habitat areas occupied by the four
(22) Comment: One commenter requested substantiated data demonstrating a positive benefit (e.g., to economic growth, to the ecosystem) from listing the four
Our Response: As detailed in our response to Comment (19), above, in making a determination as to whether a species meets the Act's definition of an endangered species or threatened species, under section 4(b)(1)(A) of the Act, the Secretary is to make that determination based solely on the basis of the best scientific and commercial data available (emphasis added). Producing a positive benefit to the listing, cannot by law enter into the determination. The evaluation of economic impacts comes into play only in association with the designation of critical habitat under section 4(b)(2) of the Act, as described in detail in our response to Comment (14). Chapter 3 of the DEA does provide a qualitative discussion of potential benefits attributable to the conservation of the species. Specifically, the DEA focuses on potential benefits related to critical habitat designation. It concludes that, because material changes in land or water management are not envisioned as a result of critical habitat designation, no incremental economic benefits are forecast to result from designation of critical habitat. There may be ancillary benefits related to species conservation resulting from the listing of the species. For example, species conservation efforts may result in improved environmental quality, which in turn may have collateral human health or recreational use benefits. In addition, conservation efforts undertaken for the benefit of an endangered or threatened species may enhance shared habitat for other wildlife.
(23) Comment: One commenter requested that a portion of the proposed critical habitat designation on the
Our Response: All areas proposed as critical habitat at the
Summary of Changes From Proposed Rule
In our proposed rule, published
We received a number of site-specific comments related to critical habitat for the four
As described in our Response to Comment (3), above (see Summary of Comments and Recommendations), in our proposed rule we inadvertently perpetuated an error reflecting the range of the
As we have now determined that only one subspecies occurs in each of the critical habitat subunits that were initially proposed, it no longer makes sense to amalgamate the critical habitat for all four subspecies of the
* Critical habitat for the
* Critical habitat for the
* Critical habitat for the
As described elsewhere, although critical habitat was identified for the
In addition to the changes described above, our final designation of critical habitat reflects the following changes from the proposed rule:
(1) As directed by section 4(a)(3)(B)(i) of the Act, we have exempted 6,345 ac (2,567 ha) of
(2) As indicated for consideration in our proposed rule, we have excluded 1,281 ac (518 ha) of State and private lands under section 4(b)(2) of the Act, based on existing land management plans and conservation partnerships that the Secretary deemed to provide greater conservation benefit to the four
(3) We note that the proposed West Rocky Prairie Subunit 1-F has been excluded under section 4(b)(2) based on a beneficial management plan for the
(4) All subunits proposed as critical habitat were occupied by the
(5) Due to the exemption and exclusion of proposed critical habitat subunits in their entirety, and due to the clarification of the range of each subspecies, as described above, the critical habitat that remains has been renamed and renumbered to make it clear that each unit is designated for a single subspecies of the
Table 1--Summary of Changes From Proposed Rule in Critical Habitat Unit Identification and Subspecies Occupancy of Units Proposed rule Final rule Subunit Name Subspecies Critical Location Corrected identified at habitat name subspecies time of proposed unit present at listing and time of designation final listing and designation 1-A 91st Roy NA NA Roy Exempted. Division Prairie, Prairie Prairie Yelm pocket pocket gopher gophers 1-B Marion Roy NA NA Roy Exempted. Prairie Prairie, Prairie Yelm pocket pocket gopher gophers 1-C Olympia Olympia, Olympia Pocket Olympia Olympia Designated. Airport Yelm Gopher Critical Airport pocket pocket Habitat Unit gopher gophers 1-D Rocky Tenino, Tenino Pocket Rocky Tenino Designated Prairie Yelm Gopher Critical Prairie pocket (some areas pocket Habitat Unit gopher excluded). gophers 1-E Tenalquot Yelm Yelm Pocket Tenalquot Yelm Designated Prairie pocket Gopher Critical Prairie pocket (some areas gopher Habitat Subunit gopher exempted). 1-F West Rocky Olympia NA NA Olympia Excluded. Prairie pocket pocket gopher gopher 1-G Scatter Yelm NA NA Yelm Excluded. Creek pocket pocket gopher gopher 1-H Rock Yelm Yelm Pocket Rock Yelm Designated Prairie pocket Gopher Critical Prairie pocket (some areas gopher Habitat Subunit gopher excluded).
(6) Based on information received from our Federal and State partners and from the public during our three open comment periods, we have made numerous technical corrections and clarifications throughout the rule. We specifically clarified the language referencing the primary constituent elements (PCEs) in relation to soils, and we specified the application of those PCEs to make it clear that PCEs only exist within the boundaries of the final critical habitat units (
(7) We updated the Physical or Biological Features section and PCEs in the preamble of this document to specify the soil series and soil series complexes that define the critical habitat of each subspecies and to accurately reflect the PCEs as described in the Regulation Promulgation section of this rule, including a more thorough description of barriers.
(8) As noted under (1), above, the exemption of critical habitat on JBLM under section 4(a)(3)(B)(i) of the Act resulted in the elimination of all critical habitat that was proposed for the
In this final rule, we are designating 1,607 ac (650 ha) in
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resource 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. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
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.
Habitat is dynamic, and species may move from one area to another over time, and may use only small portions of designated critical habitat at any given 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 species. Similarly, critical habitat designations made on the basis of the best scientific data available 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 derive the specific physical or biological features essential for the four
Space for Individual and Population Growth and for Normal Behavior
Pocket gophers have low vagility, meaning they have a limited dispersal range (Williams and Baker 1976, p. 303). Thomomys mazama pocket gophers are smaller in size than other sympatric (occurring within the same geographic area; overlapping in distribution) or parapatric (immediately adjacent to each other but not significantly overlapping in distribution) Thomomys species (Verts and Carraway 2000, p. 1). Both dispersal distances and home range size are therefore likely to be smaller than for other Thomomys species. Dispersal distances may vary based on surface or soil conditions and size of the animal. For other, larger, Thomomys species, dispersal distances average about 131 ft (40 m) (
The home range of a
Work done by
Therefore, based on the information above, we identify patches of breeding and foraging habitat that are equal to or greater than 50 ac (20 ha) in size or within dispersal distance of each other, as well as corridors of suitable dispersal habitat, as physical or biological features essential to the conservation of the four
Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements and Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring
The four
Of the glacial outwash prairie soils or prairie-like soils present in western
In order to support typical
Although some soils used by
Encroachment of woody vegetation into the habitat of the four
Therefore, based on the information above, we identify soil series and soil series complexes that are known to support the
Habitats That Are Protected From Disturbance or Are Representative of the Historical, Geographical, and Ecological Distributions of a Species
Predation, specifically feral and domestic cat and dog predation, is a threat to the four
In Washington it is currently illegal to trap or poison
Therefore, based on the information above, we identify areas where gophers are protected from predation by feral or domestic animals, as well as from human disturbance in the form of trapping and poisoning, as physical or biological features essential to the conservation of the
Primary Constituent Elements for the Four Thurston/Pierce Subspecies of the Mazama Pocket Gopher
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the four
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 four
(1) Soils that support the burrowing habits of the
a.
i. Alderwood;
ii. Cagey;
iii.
iv. Godfrey;
v. Indianola;
vi. Kapowsin;
vii. McKenna;
viii. Nisqually;
x. Spana;
xi.
xii. Spanaway-Nisqually complex; and
xiii.
b.
i. Alderwood;
ii.
iii.
iv.
v. Nisqually;
vi. Spana-Spanaway-Nisqually complex; and
vii.
c.
i. Alderwood;
ii. Cagey;
iii.
iv.
v. Kapowsin;
vi. Nisqually;
vii. Norma;
viii.
ix. Spanaway-Nisqually complex; and
x.
d.
i. Alderwood;
ii. Cagey;
iii.
iv. Godfrey;
v. Indianola;
vi. Kapowsin;
vii. McKenna;
viii. Nisqually;
ix. Norma;
x.
xi. Spanaway-Nisqually complex; and
xii.
(2) Areas equal to or larger than 50 ac (20 ha) in size that provide for breeding, foraging, and dispersal activities, found in the soil series or soil series complexes listed in (1), above, that have:
a. Less than 10 percent woody vegetation cover;
b. Vegetative cover suitable for foraging by gophers. Pocket gophers' diet includes a wide variety of plant material, including leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs and grasses that
c. Few, if any, barriers to dispersal within the unit or subunit. Barriers to dispersal may include, but are not limited to, forest edges, roads (paved and unpaved), abrupt elevation changes, Scot's broom thickets, (Olson 2012b, p. 3), highly cultivated lawns, inhospitable soil types (Olson 2008, p. 4) or substrates, development and buildings, slopes greater than 35 percent, and open water.
With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the four
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. Here we describe the type of special management considerations or protections that may be required to protect the physical or biological features identified as essential for
All areas designated as critical habitat will require some level of management to address the current and future threats to the four
The physical or biological features essential to the conservation of the four
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b) we review available information pertaining to the habitat requirements of the species and identify occupied areas at the time of listing that contain the features essential to the conservation of the species. If after identifying currently occupied areas, a determination is made that those areas are inadequate to ensure conservation of the species, in accordance with the Act and our implementing regulations at 50 CFR 424.12(e) we then consider whether designating additional areas--outside those currently occupied--is essential for the conservation of the species.
We plotted the known locations of the four
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.
Occupied Areas
For all of the
As described in the Physical or Biological Features section, above, although some areas utilized by the
Potentially Unoccupied Areas
If an intermittently occupied site were not considered "occupied" in years when
In the specific case of the Rocky Prairie Unit for the
We have also determined that the Rock Prairie Subunit of
We further conclude that, for each of the subspecies, if the critical habitat designations were strictly limited to parcels with documented occurrence within the subunits delineated in the proposed rule, they would be inadequate to ensure the subspecies' conservation. Because of the extremely limited geographic range of each of the
When determining critical habitat boundaries within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement (such as roads and airport runways), and other structures because such lands lack physical or biological features for the
The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We 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-2013-0021, at http://www.fws.gov/wafwo/mpg.html, and, by appointment, at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT above).
Units and subunits are designated based on sufficient elements of physical or biological features being present to support life processes of the
Final Critical Habitat Designation
We are designating three units, totaling 1,607 ac (650 ha) as critical habitat for the
Table 2--Designated Critical Habitat for theOlympia ,Tenino , andYelm Subspecies of the Mazama Pocket Gopher [Area estimates reflect all land within critical habitat unit boundaries.] Critical Location Subunit as Federal State Private Other * habitat name identified Ac (Ha) Ac (Ha) Ac (Ha) Ac (Ha) unit in proposed rule Olympia Olympia 1-C 0 0 0 676 (274) Pocket Airport Gopher Unit Critical Habitat Tenino Rocky 1-D 0 0 399 (162) 0 Pocket Prairie Gopher Unit Critical Habitat Yelm Tenalquot 1-E 0 0 154 (62) 135 (55) Pocket Prairie Gopher Subunit Critical Habitat Rock 1-H 0 0 243 (98) 0 Prairie Subunit Totals 0 0 796 (322) 811 (329) * Other = Local municipalities and nonprofit conservation organization. Note: Area sizes may not sum due to rounding.
We present brief descriptions of all critical habitat units and subunits and reasons why they meet the definition of critical habitat for the
All critical habitat units are occupied by the subspecies at the time of listing (see the final listing rule for the four subspecies of the
Olympia Pocket Gopher Critical Habitat--Olympia Airport Unit. This unit consists of 676 ac (274 ha) and is made up of land owned by the
Tenino Pocket Gopher Critical Habitat--Rocky Prairie Unit. This unit consists of 399 ac (162 ha) and is owned by one commercial land owner and
Yelm Pocket Gopher Critical Habitat--Tenalquot Prairie Subunit. This subunit consists of 289 ac (117 ha) and contains lands owned by one commercial landowner and
Yelm Pocket Gopher Critical Habitat--Rock Prairie Subunit. This subunit consists of 243 ac (98 ha) and contains lands owned by one private residential and commercial landowner. As proposed (subunit 1-H), this subunit included 378 ac (153 ha) of private ranch land, which has been excluded under section 4(b)(2) of the Act (see Exclusions for details). The Rock Prairie Subunit is likely occupied by the
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 listed or proposed to be listed under the Act or result in the destruction or adverse modification of proposed or finalized 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
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
(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
(2) Actions that would alter the physical or biological features of critical habitat including modification of soil profiles or the composition and structure of vegetation in suitable habitat for the
(3) Activities within or adjacent to critical habitat that affect or degrade the conservation value or function of the physical or biological features of critical habitat for the
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
Approved INRMPs
U.
The mission of JBLM is to maintain trained and ready forces for Army and
Mazama pocket gophers exist on prairies on JBLM lands where vehicular traffic is currently restricted to established roads, but prior to their proposed listing, JBLM had not implemented any specific restrictions on military training to protect
JBLM actively manages prairie habitat as part of its INRMP (
(1) Requirement to conserve listed species;
(2) Requirement not to jeopardize listed species;
(3) Requirement to consult and confer;
(4) Requirement to conduct a biological assessment; and
(5) Requirement to not take listed fish and wildlife species or to remove or destroy listed plant species (
Two regional programs managed under the INRMP and its associated ESMPs and funded by the
The JBLM Legacy program is dedicated to "protecting, enhancing, and conserving natural and cultural resources on
JBLM has an INRMP in place that was approved in 2006, which JBLM is in the process of updating. In 2014, JBLM amended their existing INRMP to specifically include the
In accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the JBLM INRMP and that conservation efforts identified in the ESMP under the INRMP will provide a conservation benefit to the
Table 3--Areas Exempted From the Designation of Critical Habitat for the Roy Prairie Pocket Gopher and Yelm Pocket Gopher Under Section 4(a)(3)(B)(i) of the Act by Critical Habitat Unit Subunit as Area of Subspecies Areas meeting Areas exempted proposed subunit present the definition under section exempted of critical 4(a)(3)(B)(i) habitat in of the act in acres acres (hectares) (hectares) 1-A, 91st entire Roy Prairie 4,120 (1,667) 4,120 (1,667) Division pocket gopher Prairie (T. m. glacialis) 1-B, Marion entire Roy Prairie 720 (291) 720 (291) Prairie pocket gopher (T. m. glacialis) 1-E, Tenalquot partial Yelm pocket 1,793 (726) 1,505 (609) Prairie gopher (T. m. yelmensis) Total 6,633 (2,684) 6,345 (2,567)
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless 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.
Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise his 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
When we evaluate the existence of a conservation plan when considering the benefits of exclusion, we consider a variety of factors, including but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.
After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.
Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we 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 are excluding the following areas from critical habitat designation for the
TABLE 4--Areas Excluded From Critical Habitat Designation Under Section 4(b)(2) of the Act Subunit as Unit as named Specific area Areas meeting Areas excluded proposed in final rule the definition from critical of critical habitat, in habitat, in acres acres (hectares) (hectares) 1-D, Rocky Tenino Pocket Rocky Prairie 43 (178) 38 (16) Prairie Gopher NAP Critical Habitat--Rocky Prairie Unit 1-F, West NA (occupied West Rocky 134 (54) 134 (54) Rocky Prairie by Olympia Prairie WLA pocket gopher, but excluded in entirety) 1-G, Scatter NA (occupied Scatter Creek 730 (296) 730 (296) Creek by Yelm pocket WLA gopher, but excluded in entirety) 1-H, Rock Yelm Pocket Colvin Ranch 621 (251) 378 (153) Prairie Gopher Critical Habitat--Rock Prairie Subunit Total Area 1,280 (518) Excluded
Consideration of 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 a draft economic analysis (DEA) of the proposed critical habitat designation and related factors (IEc 2013a). The draft analysis, dated
The intent of the final economic analysis (FEA) is to quantify the economic impacts of all potential conservation efforts for the four
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. Finally, 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 forecast activity levels for projects beyond a 20-year timeframe.
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 the
In our final economic analysis of the critical habitat designation, we evaluated 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, and other activities. The analysis is based on the estimated impacts associated with the rulemaking as described in Appendix A of the analysis (IEc 2013b, pp. A-1--A-11). The estimated incremental impacts are primarily attributable to the administrative costs of section 7 consultation. The present value of total incremental cost of critical habitat designation is
In addition, in response to public comments, here we further consider the potential incremental impacts of the designation specifically on the
Airport operations (
As noted in our FEA (IEc 2013b, p. 3-23), all airports considered in our analysis receive Federal funding through the
For the
Gravel mining. We additionally specifically considered the potential economic impacts of critical habitat on gravel mining activities within the proposed designation. Critical habitat was proposed for the
First, we consider the potential incremental impacts of the designation under the scenario of occupancy by the listed species. The direct regulatory effect of critical habitat impacts only Federal agencies, and only applies when there is a Federal nexus. If a Federal nexus presence triggers consultation under section 7, the presence of a listed species will require implementation of certain conservation efforts to avoid jeopardy concerns. If the action in question may additionally affect designated critical habitat, consultation would 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 the
In the case at hand, because we consider the area of mineral extraction to be occupied by the
We did not have information to suggest a likely Federal nexus in regard to mineral or gravel extraction activities on private lands within the designation. Due to uncertainty regarding the timing of gravel extraction activities and uncertainty surrounding the potential for a Federal nexus, our economic analysis did not quantify a specific number of consultations that may occur or any related administrative burden. As the likelihood of a Federal nexus is small, it is most likely that critical habitat designation will not result in any economic impact to the landowner. However, were there a Federal nexus for the action in question, and if the
We additionally considered the potential incremental impact of the designation on mineral extraction interests if the lands in question were considered to be unoccupied by the
Should there be an unforeseen Federal nexus for a proposed action, however, and if the Federal action agency determines that their proposed action may affect or is likely to adversely affect unoccupied critical habitat, that agency is required to enter into formal consultation with the Service. A formal consultation concludes with the Service's issuance of a biological opinion. In conducting formal consultation, the Service works with the action agency and the applicant to consider project modifications to avoid, minimize, or mitigate adverse effects to critical habitat. To the extent adverse effects are likely to destroy or adversely modify its critical habitat, the Service is required to develop, in coordination with the Federal action agency and any applicant, a reasonable and prudent alternative (RPA) that avoids those outcomes.
In our experience, in most cases we are able to successfully work with the action agency to develop project modifications that avoid jeopardy or adverse modification, and no RPAs are necessary. In those cases, the consultation is concluded with the Service's issuance of a non-jeopardy, non-adverse modification biological opinion. In those cases where the Federal agency is unwilling or unable to make such modifications, the final biological opinion includes RPAs. The implementing regulations for section 7 of the Act define RPAs as alternatives that are economically and technologically feasible, are capable of being implemented in a manner consistent with the intended purpose of the proposed Federal action, and are consistent with the scope of the Federal action agency's legal authority and jurisdiction. Although some project modifications may be required, the designation of critical habitat will not prevent the action agency from proceeding, and although critical habitat may limit mineral extraction activities to some extent, in our experience it is unlikely to entirely preclude such operations on the property in question.
As there is no consultation history available for potential project modifications associated with
Exclusions Based on Economic Impacts
Our economic analysis did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exerting her discretion to exclude any areas from this designation of critical habitat for the
A copy of the FEA with supporting documents may be obtained by contacting the Washington Fish and Wildlife Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov or http://www.fws.gov/wafwo/mpg.html.
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 Factors
Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts to national security. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships or relationships that would be encouraged by designation of, or exclusion from, critical habitat. We also consider any other relevant impacts that might occur because of the designation. Our weighing of the benefits of inclusion versus exclusion considers all relevant factors in making a final determination as to what will result in the greatest conservation benefit to the listed species. Depending on the specifics of each situation, there may be cases where the designation of critical habitat will not necessarily provide enhanced protection, and may actually lead to a net loss of conservation benefit. Here we provide our analysis of areas proposed for the designation of critical habitat that may provide a greater conservation benefit to the
Benefits of Designating Critical Habitat
The process of designating critical habitat as described in the Act requires that the Service identify those lands within the geographical area occupied by the species at the time of listing on which are found the physical or biological features essential to the conservation of the species that may require special management considerations or protection, and those areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of the species.
The identification of areas that contain the features essential to the conservation of the species, or are otherwise essential for the conservation of the species if outside the geographical area occupied by the species at the time of listing, is a benefit resulting from the designation. The critical habitat designation process includes peer review and public comment on the identified physical and biological features and areas, and provides a mechanism to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This may help focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the species, and can be valuable to land owners and managers in developing conservation management plans by describing the essential physical and biological features and special management actions or protections that are needed for identified areas. Including lands in critical habitat also informs State agencies and local governments about areas that could be conserved under State laws or local ordinances.
The prohibition on destruction or adverse modification under Section 7(a)(2) of the Act constitutes the primary regulatory benefit of critical habitat designation. As discussed above, Federal agencies must consult with the Service on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. 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 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 also represents the regulatory benefit of critical habitat. For some species, and in some locations, the outcome of these analyses will be similar because effects on habitat will often result in effects on the species. However, these two regulatory standards are different. The jeopardy analysis evaluates how a proposed action is likely to influence the likelihood of a species' survival and recovery. The adverse modification analysis evaluates how an action affects the capability of the critical habitat to serve its intended conservation role (USFWS, in litt. 2004). Although these standards are different, it has been the Service's experience that in many instances proposed actions that affect both a listed species and its critical habitat and that constitute jeopardy also constitute adverse modification. In some cases, however, application of these different standards results in different section 7(a)(2) determinations, especially in situations where the affected area is mostly or exclusively unoccupied critical habitat. Thus, critical habitat designations may provide greater benefits to the recovery of a species than would listing alone.
There are two limitations to the regulatory effect of critical habitat. First, a section 7(a)(2) consultation is required only where there is a Federal nexus (an action authorized, funded, or carried out by any Federal agency)--if there is no Federal nexus, the critical habitat designation of non-Federal lands itself does not restrict any actions that destroy or adversely modify critical habitat. Aside from the requirement that Federal agencies ensure that their actions are not likely to result in destruction or adverse modification of critical habitat under section 7, the Act does not provide any additional regulatory protection to lands designated as critical habitat.
Second, designating critical habitat does not create a management plan for the areas, does not establish numerical population goals or prescribe specific management actions (inside or outside of critical habitat), and does not have a direct effect on areas not designated as critical habitat. Specific management recommendations for critical habitat are addressed in recovery plans, management plans, and in section 7 consultation. The designation only limits destruction or adverse modification of critical habitat, not all adverse effects. By its nature, the prohibition on adverse modification ensures that the conservation role and function of those areas designated as critical habitat are not appreciably reduced as a result of a Federal action.
Once an agency determines that consultation under section 7(a)(2) of the Act is necessary, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect the species or critical habitat. However, if we determine through informal consultation that adverse impacts are likely to occur, then formal consultation is initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may recommend additional conservation measures to minimize adverse effects to primary constituent elements, but such measures would be discretionary on the part of the Federal agency.
The designation of critical habitat does not require that any management or recovery actions take place on the lands included in the designation. Even in cases where consultation has been initiated under section 7(a)(2) of the Act because of effects to critical habitat, the end result of consultation is to avoid adverse modification, but not necessarily to manage critical habitat or institute recovery actions on critical habitat. On the other hand, voluntary conservation efforts by landowners can remove or reduce known threats to a species or its habitat by implementing recovery actions. We believe that in many instances the regulatory benefit of critical habitat is minimal when compared to the conservation benefit that can be achieved through implementing HCPs under section 10 of the Act, or other voluntary conservation efforts or management plans. The conservation achieved through implementing HCPs or other habitat management plans can be greater than what we achieve through multiple site-by-site, project-by-project, section 7(a)(2) consultations involving project effects to critical habitat. Management plans can commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7(a)(2) consultations commit Federal agencies to preventing adverse modification of critical habitat caused by the particular project; consultation does not require Federal agencies to provide for conservation or long-term benefits to areas not affected by the proposed project. Thus, implementation of any HCP or management plan that incorporates enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation. The potential benefits of a critical habitat designation are therefore reduced when an effective conservation plan is in place. The Secretary places great value on the maintenance and encouragement of conservation partnerships with non-Federal landowners that enable the development of such voluntary measures for the benefit of listed species and species of conservation concern, for the reasons detailed below.
Considerations Specific to Non-Federal Lands With Conservation Agreements
As noted above, the Secretary may exclude areas from critical habitat if she determines that the benefits of exclusion outweigh the benefits of including those areas as part of the critical habitat (unless exclusion of those areas will result in the extinction of the species). We believe that in some cases designation can negatively impact the working relationships and conservation partnerships we have formed with private landowners, and may serve as a disincentive for the formation of future partnerships or relationships that would have the potential to provide conservation benefits.
The Service recognizes that most federally listed species in
Given the distribution of listed species with respect to landownership, the successful conservation of listed species in many parts of
Many non-Federal landowners derive satisfaction from voluntarily participating in the recovery of endangered or threatened species. Conservation agreements with non-Federal landowners,
We acknowledge that private landowners are often wary of the possible consequences of encouraging endangered species conservation on their property, and of regulatory action by the Federal government under the Act. Social science research has demonstrated that, for many private landowners, government regulation under the Act is perceived as a loss of individual freedoms, regardless of whether that regulation may in fact result in any actual impact to the landowner (Brook et al. 2003, pp. 1644-1648; Conley et al. 2007, p. 141). Furthermore, in a recent study of private landowners who have experience with regulation under the Act, only 2 percent of respondents believed the Federal Government rewards private landowners for good management of their lands and resources (Conley et al. 2007, pp. 141, 144). According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999, p. 1263; Bean 2002, p. 412; Brook et al. 2003, pp. 1644-1648). The magnitude of this negative outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, or control of invasive species) are necessary for species conservation (Bean 2002, pp. 412-413).
Since Federal actions such as the designation of critical habitat on private lands may reduce the likelihood that landowners will support and carry out conservation actions for the benefit of listed species, based on the research described above, we believe that in some cases the judicious exclusion of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a greater level of species conservation than critical habitat designation alone. In addition, we believe that States, counties, and communities will be more likely to develop conservation agreements such as HCPs, SHAs, CCAAs, or other plans that benefit listed species if they are relieved of any potential additional regulatory burden that might be imposed as a result of critical habitat designation. A benefit of exclusion from critical habitat is thus the unhindered, continued ability to maintain existing and seek new partnerships with future participants in the development of beneficial conservation plans, including States, Counties, local jurisdictions, conservation organizations, and private landowners. Together these entities can implement conservation actions that we would be unable to accomplish otherwise.
We believe that acknowledging the positive contribution non-Federal landowners are currently making to the conservation of the
In contrast, we believe there may be relatively little benefit to be gained by the designation of non-Federal lands with adequate conservation agreements in place. A potential benefit of designation would be the regulatory protections afforded to critical habitat under section 7(a)(2) of the Act. However, as described earlier, on non-Federal lands the regulatory protections of critical habitat only apply when there is a Federal nexus (actions funded, permitted, or otherwise carried out by the Federal government). All of the lands in this critical habitat designation are occupied by the
The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation is to trigger regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7(a)(2) of the Act. Where there is little likelihood of a Federal action, the benefits of this protection can be low. On the other hand, the benefits of excluding areas that are covered by voluntary conservation efforts can, in specific circumstances, be high. With the considerations described above in mind, here we describe our weighing of the benefits of exclusion versus inclusion of specific non-Federal lands with existing land and resource management plans, conservation plans, or agreements based on conservation partnerships from the final designation of critical habitat for the
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
The WDNR State Trust Lands HCP covers approximately 1.7 million ac (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 the Rocky Prairie NAP. These preserves are managed consistent with the Natural Areas Preserve Act, and is a land designation used by the
The NAP property at
Benefits of Inclusion--
The inclusion of Rocky Prairie NAP as critical habitat could potentially 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
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 can help focus and promote conservation efforts by identifying areas of high conservation value for the
The incremental benefit of inclusion is reduced because of the long-standing management planning and implementation efforts for the site, which presently benefit the conservation of the
Benefits of Exclusion--
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.
The Washington DNR has requested that the lands covered by this HCP be excluded from critical habitat. This HCP is located in key landscapes across the State, and the NAP at
By excluding these lands, we preserve our current private and local conservation partnerships and encourage additional conservation such partnerships in the future. Exclusion of these areas will additionally help us maintain an important and successful partnership with other
Benefits of Exclusion Outweigh Benefits of Inclusion--
The South Puget Sound Prairie Landscape Working Group partnership, which contributes to management planning on the NAP, and the
In contrast, the benefits derived from excluding areas covered the
Exclusion Will Not Result in the Extinction of the--
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 may, in some 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
Management planning for each of the Wildlife Areas has established a track record of activity focused on enhancing native prairie composition and structure. The conservation measures regularly implemented at the Wildlife Areas have recently been refocused through the development of site specific restoration plans for each location to benefit the
Another potential benefit of including Wildlife Area lands and the adjacent private inholding 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 can help focus and promote conservation efforts by other parties by identifying areas of high conservation value for the
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
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, resulting in positive and ongoing consequences for conservation. The willingness of WDFW and the private landowner to undertake conservation efforts for the benefit of the
In addition, our understanding of the historical range of each the
As described above, 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
Excluding these areas from critical habitat designation provides significant benefit in terms of sustaining and enhancing the partnership between the Service, the
Benefits of Exclusion Outweigh Benefits of
The South Puget Sound Prairie Landscape Working Group partnership and the
In contrast, the benefits accrued from excluding areas within the
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--
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 proposed Subunit 1-H in this critical habitat designation under section 4(b)(2) of the Act. The Service has coordinated directly with NRCS regarding conservation actions that are being implemented on the portion of
Benefits of Inclusion--Colvin Ranch Grassland Reserve Program Management Plan-- We find there are minimal benefits to including
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 can help focus and promote conservation efforts by other parties by identifying areas of high conservation value for the
In this case, however, the potential educational benefit of critical habitat is reduced due to the extensive community outreach that is already taking place. 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
Colvin Ranch has been an active working ranch in southern
Benefits of Exclusion--Colvin Ranch Grassland Reserve Program Management Plan --The benefits of excluding this private property from designated critical habitat are relatively greater. 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
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 regulation. Designation of critical habitat on private lands that are managed for the benefit of prairie species, including the
Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch Grassland Reserve Program Management Plan --The Secretary has determined that the benefits of excluding the NRCS GRP managed prairies at
In contrast, the benefits derived from excluding
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 the
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive 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
The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, under these circumstances only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Federal Agencies are not small entities and to this end, there is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the final critical habitat designation will not have a significant economic impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated all information submitted during the comment period that may pertain to our consideration of the probable incremental economic impacts of this critical habitat designation. Based on this information, we affirm our certification that this final critical habitat designation will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. 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 are relevant to this analysis. Thus, based on information in the economic analysis, energy-related impacts associated with
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 the
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does not have significant Federalism effects. A Federalism summary impact 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 collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule does not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of
References Cited
A complete list of all references cited is available on the Internet at http://www.regulations.gov and upon request from the Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the Washington Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we 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; unless otherwise noted.
2. In
(a) Mammals.
* * * * *
(1) Critical habitat for the
(2) Within this area, the primary constituent elements of the physical or biological features essential to the conservation of the
(i) Friable, loamy, and deep soils, some with relatively greater content of sand, gravel, or silt, all generally on slopes less than 15 percent in the following soil series or soil series complex:
(A) Alderwood;
(B) Cagey;
(C)
(D) Godfrey;
(E)
(F) Kapowsin;
(G) McKenna;
(H) Nisqually;
(I) Norma;
(J) Spana;
(K)
(L) Spanaway-Nisqually complex; and
(M)
(ii) Areas equal to or larger than 50 ac (20 ha) in size that provide for breeding, foraging, and dispersal activities, found in the soil series listed in paragraph (2)(i) of this entry that have:
(A) Less than 10 percent woody vegetation cover;
(B) Vegetative cover suitable for foraging by gophers. Pocket gophers' diets include a wide variety of plant material, including leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs and grasses that
(C) Few, if any, barriers to dispersal. Barriers to dispersal may include, but are not limited to, forest edges, roads (paved and unpaved), abrupt elevation changes, Scot's broom thickets, highly cultivated lawns, inhospitable soil types or substrates, development and buildings, slopes greater than 35 percent, and open water.
(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 unit. Data layers defining map units were created on 2010 aerial photography from
(5) Olympia Airport Unit,
BILLING CODE 4310-55-P
See Illustration in Original Document.
BILLING CODE 4310-55-C
Tenino Pocket Gopher (Thomomys mazama tumuli)
(1) Critical habitat for the
(2) Within this area, the primary constituent elements of the physical or biological features essential to the conservation of
(i) Friable, loamy, and deep soils, some with relatively greater content of sand, gravel, or silt, all generally on slopes less than 15 percent in the following soil series or soil series complex:
(A) Alderwood;
(B) Cagey;
(C)
(D)
(E) Kapowsin;
(F) Nisqually;
(G) Norma;
(H)
(I) Spanaway-Nisqually complex; and
(J)
(ii) Areas equal to or larger than 50 ac (20 ha) in size that provide for breeding, foraging, and dispersal activities, found in the soil series listed in paragraph (2)(i) of this entry that have:
(A) Less than 10 percent woody vegetation cover;
(B) Vegetative cover suitable for foraging by gophers. Pocket gophers' diets include a wide variety of plant material, including leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs and grasses that
(C) Few, if any, barriers to dispersal. Barriers to dispersal may include, but are not limited to, forest edges, roads (paved and unpaved), abrupt elevation changes, Scot's broom thickets, highly cultivated lawns, inhospitable soil types or substrates, development and buildings, slopes greater than 35 percent, and open water.
(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 unit. Data layers defining the map unit were created on 2010 aerial photography from
(5) Rocky Prairie Unit,
BILLING CODE 4310-55-P
See Illustration in Original Document.
BILLING CODE 4310-55-C
Yelm Pocket Gopher (Thomomys mazama yelmensis)
(1) Critical habitat for the
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the
(i) Friable, loamy, and deep soils, some with relatively greater content of sand, gravel, or silt, all generally on slopes less than 15 percent in the following soil series or soils series complex:
(A) Alderwood;
(B) Cagey;
(C)
(D) Godfrey;
(E)
(F) Kapowsin;
(G) McKenna;
(H) Nisqually;
(I) Norma;
(J)
(K) Spanaway-Nisqually complex; and
(L)
(ii) Areas equal to or larger than 50 ac (20 ha) in size that provide for breeding, foraging, and dispersal activities, found in the soil series listed in paragraph (2)(i) of this entry that have:
(A) Less than 10 percent woody vegetation cover;
<p> (B) Vegetative cover suitable for foraging by gophers. Pocket gophers' diets include a wide variety of plant material, including leafy vegetation, succulent roots, shoots, tubers, and grasses. Forbs and grasses that
(C) Few, if any, barriers to dispersal. Barriers to dispersal may include, but are not limited to, forest edges, roads (paved and unpaved), abrupt elevation changes, Scot's broom thickets, highly cultivated lawns, inhospitable soil types or substrates, development and buildings, slopes greater than 35 percent, and open water.
(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 the map units were created on 2010 aerial photography from
(5)
Map follows:
BILLING CODE 4310-55-P
See Illustration in Original Document.
* * * * *
Dated:
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-07415 Filed 4-8-14;
BILLING CODE 4310-55-C
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