Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ivesia webberi
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Final rule.
CFR Part: "50 CFR Part 17"
RIN Number: "RIN 1018-AZ57"
Citation: "79 FR 32126"
Document Number: "Docket No. FWS-R8-ES-2013-0080; 4500030113"
"Rules and Regulations"
SUMMARY: We, the
EFFECTIVE DATE: This rule is effective on
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at http://www.fws.gov/nevada/. Comments and materials we received, as well as some supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at:
The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080, and at the Nevada Fish and Wildlife Office (http://www.fws.gov/nevada) (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: Why we need to publish a rule. Under the Endangered Species Act of 1973, as amended (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.
Elsewhere in today's
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 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 requested opinions from three knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and whether or not we had used the best available information. We received no comments or information from these peer reviewers. We also considered all comments and information we received from the public during the comment period.
Previous Federal Actions
The proposed listing rule for Ivesia webberi (78 FR 46889;
On
Summary of Changes From
In this final critical habitat designation, we make final the minor changes that we proposed in the document that published in the
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical 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 presently occupied by a species only when a designation limited to its present 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 articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to 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 available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:
(1) Space for individual and population growth and for normal behavior;
(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.
We derive the specific physical or biological features essential for Ivesia webberi from studies of this species' habitat, ecology, and life history as described in the Critical Habitat section of the proposed rule to designate critical habitat published in the
Space for Individual and Population Growth and for Normal Behavior
Plant Community and Competitive Ability-- Ivesia webberi is primarily associated with Artemisia arbuscula Nutt. (low sagebrush) and other perennial, rock garden-type plants such as: Antennaria dimorpha (low pussytoes), Balsamorhiza hookeri (Hooker's balsamroot), Elymus elymoides (squirreltail), Erigeron bloomeri (scabland fleabane), Lewisia rediviva (bitter root), Poa secunda (Sandburg bluegrass), and Viola beckwithii (Beckwith's violet) (Witham 2000, p. 17; Morefield 2004, 2005, unpubl. survey;
Because Ivesia webberi is found in an open, sparsely vegetated plant community, it is likely a poor competitor. Nonnative, invasive plant species such as Bromus tectorum L. (cheatgrass), Taeniatherum caput-medusae (medusahead), and Poa bulbosa (bulbous bluegrass) form dense stands of vegetation that compete with native plant species, such as I. webberi, for the physical space needed to establish individuals and recruit new seedlings. This competition for space is compounded as dead or dying nonnative vegetation accumulates, eventually forming a dense thatch that obscures the soil crevices used by native species as seed accumulation and seedling recruitment sites (Davies 2008, pp. 110-111;
Elevation--Known populations of Ivesia webberi occur between 4,475 and 6,237 feet (ft) (1,364 and 1,901 meters (m)) in elevation (Steele and Roe 1996, unpubl. survey; Witham 2000, p.16;
Topography, Slope, and Aspect-- Ivesia webberi occurs on flats, benches, or terraces that are generally above or adjacent to large valleys. These sites vary from slightly concave to slightly convex or gently sloped (0-15 [degrees]) and occur on all aspects (Witham 2000, p. 16). Because plants have not been identified outside these landscape features or on slopes greater than 15 [degrees] , we have identified slightly concave, convex, and gently sloped (0-15 [degrees]) landscapes to be physical and biological features for I. webberi.
Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements
Soils--Populations of Ivesia webberi occur on a variety of soil series types, including, but not limited to:
The shallow, clay soils that Ivesia webberi inhabits are very rocky on the surface and tend to be wet in the spring, but dry out as the season progresses (Zamudio 1999, p. 1). The high clay content in the soils creates a shrink-swell behavior as the soils wet and dry, which helps to "heave" rocks in the soil profile to the surface and creates the rocky surface "pavement" (Zamudio 1999, p. 1). The unique soils and hydrology of I. webberi sites may exclude competition from other species, including Bromus tectorum (Zamudio 1999, p. 1; Witham 2000, p. 16). The shrink-swell of the clay zone, which extends into the subsoil, favors perennials with deep taproots or annuals with shallow roots that can complete their life cycle before the surface soil dries out (Zamudio 1999, p. 1; Witham 2000, pp. 16, 20). The root systems of tap-rooted perennial forbs are suited to soil with clay subsoils because the roots branch profusely under the crown, spread laterally, and penetrate the clay B horizon along vertical cracks (within the horizon) (Hugie et al. 1964, p. 200). The roots are flattened, but unbroken by shrink-swell activity (Hugie et al. 1964, p. 200). Early maturing plants, such as I. webberi, presumably prefer soils with these heavy clay horizons because of the abundant spring moisture, which essentially saturates the surface horizons with water. Based on the information above, we consider soil with an argillic horizon characterized by shrink-swell behavior to represent a physical or biological feature for I. webberi.
Water-- Ivesia webberi is restricted to sites with soils that are vernally moist (Zamudio 1999a, p. 1; Witham 2000, p. 16). From this finding, we infer that sufficient winter and spring moisture not only contributes to the physical properties of the substrate in which I. webberi occurs (i.e., the shrink-swell pattern that contributes to the formation of soil crevices), but also triggers biological responses in I. webberi, in the form of stimulating germination, growth, flowering, and seed production. Moisture retention is influenced by site topography as well as soil properties. Therefore, we consider soils that are vernally moist as a physical or biological feature for I. webberi.
Light--Although little is known regarding the light requirements of Ivesia webberi, inferences are possible from the plant species and the plant community from which I. webberi is associated (described under the "
Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring
Reproduction-- Ivesia webberi is a perennial plant species that is not rhizomatous or otherwise clonal. Therefore, like other Ivesia species, reproduction in I. webberi is presumed to occur primarily via sexual means (i.e., seed production and seedling recruitment). As with most plant species, I. webberi does not require separate sites for breeding, rearing, and reproduction other than the locations in which parent plants occur and any area necessary for pollinators and seed dispersal. Seeds of I. webberi are relatively large and unlikely to be dispersed by wind or animal vectors; upon maturation of the inflorescence and fruit, seeds are likely to fall to the ground in the immediate vicinity of parent plants (Witham 2000, p. 20). Depressions and crevices in soil frequently serve as seed accumulation or seedling establishment sites in arid ecosystems because they trap seeds and often have higher soil water due to trapped snow and accumulated precipitation (Reichman 1984, pp. 9-10; Eckert et al. 1986, pp. 417-420). The cracks of the shrink-swell clay soils that typify I. webberi habitat are thought to trap seeds and retain them on-site, and may serve to protect seeds from desiccation from sunlight or wind. Although the long-term viability of these seeds is unknown, I. webberi seeds held within these crevices may accumulate and function as a seedbank for I. webberi reproduction. Thus, the physical and biological feature of soil with an argillic horizon and shrink-swell behavior identified above under the " Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements" section also has an important reproduction function for I. webberi.
Pollination--Pollinators specific to Ivesia webberi have not been identified. However, most Ivesia species reproduce from seed with insect-mediated pollination occurring between flowers of the same or different plants (Witham 2000, p. 20). Floral visitors have been observed frequenting the flowers of I. aperta var. canina, which co-occurs with I. webberi at one population (USFWS 5;
Successful transfer of pollen among Ivesia webberi populations, therefore, may be inhibited if populations are separated by distances greater than pollinators can travel, or if a pollinator's nesting habitat or behavior is negatively affected (BLM 2012b, p. 2). Some bees such as bumblebees and other social species are able to fly extremely long distances. However, evidence suggests that their habitat does not need to remain contiguous, but it is more important that the protected habitat is large enough to maintain floral diversity to attract these pollinators (BLM 2012b, p. 18). By contrast, most solitary bees remain close to their nest; thus foraging distance tends to be 1,640 ft (500 m) or less (BLM 2012b, p. 19). Conservation strategies that strive to maintain not just I. webberi, but the range of associated native plant species (many of which are also insect-pollinated) would therefore serve to attract a wide array of insect pollinators, both social and solitary, that may also serve as pollinators of I. webberi (BLM 2012b, pp. 5-6, 19). Because annual, nonnative, invasive grasses (such as Bromus tectorum) are wind-pollinated, they offer no reward for pollinators; as such nonnative species become established, pollinators are likely to become deterred from visiting areas occupied by I. webberi. Therefore, we consider an area of sufficient size with an intact assemblage of native plant species to provide for pollinator foraging and nesting habitat to be a physical or biological feature for I. webberi.
Habitats Protected From Disturbance or Representative of the Historical, Geographical, and Ecological Distributions of the Species
The long-term conservation of Ivesia webberi is dependent on several factors, including, but not limited to: Maintenance of areas necessary to sustain natural ecosystem components, functions, and processes (such as light and intact soil hydrology); and sufficient adjacent suitable habitat for vegetative reproduction, population expansion, and pollination.
Disturbance--Soils with a high content of shrink-swell clays, such as those where Ivesia webberi is found, often create an unstable soil environment to which this species is presumably adapted (Belnap 2001, p. 183). These micro-scale disturbances are of light to moderate intensity; we are unaware of information to indicate that I. webberi has evolved with or is tolerant of moderate to heavy, landscape-scale disturbances. Moderate to heavy soil disturbances such as off-highway vehicle (OHV) use, road corridors, residential or commercial development, and livestock grazing can impact the species and its seedbank through habitat loss, fragmentation, and degradation due to soil compaction and altered soil hydrology (Witham 2000, Appendix 1, p. 1; Bergstrom 2009, pp. 25-26).
Climate change projections in the
Managing for appropriate disturbance regimes (in terms of the type or intensity of disturbance) is difficult, because sources of disturbance are numerous and our ability to predict the effects of multiple, interacting disturbance regimes upon species and their habitats is limited. For the reasons discussed above, we identify areas not subject to moderate to heavy, landscape-scale disturbances, such as impacts from vehicles driven off established roads or trails, development, livestock grazing, and frequent wildfire, to be a physical or biological feature for I. webberi.
Primary Constituent Elements for Ivesia webberi
Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Ivesia webberi in areas occupied at the time of listing, focusing on the features' primary constituent elements. 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.
Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the species' life-history processes, we determine that the primary constituent elements specific to Ivesia webberi are:
(i) Plant community.
(A) Open to sparsely vegetated areas composed of generally short-statured associated plant species.
(B) Presence of appropriate associated species that can include (but are not limited to): Antennaria dimorpha, Artemisia arbuscula, Balsamorhiza hookeri, Elymus elymoides, Erigeron bloomeri, Lewisia rediviva, Poa secunda, and Viola beckwithii.
(C) An intact assemblage of appropriate associated species to attract the floral visitors that may be acting as pollinators of Ivesia webberi.
(ii) Topography. Flats, benches, or terraces that are generally above or adjacent to large valleys. Occupied sites vary from slightly concave to slightly convex or gently sloped (0-15 [degrees]) and occur on all aspects.
(iii) Elevation. Elevations between 4,475 and 6,237 ft (1,364 and 1,901 m).
(iv) Suitable soils and hydrology.
(A) Vernally moist soils with an argillic horizon that shrink and swell upon drying and wetting; these soil conditions are characteristic of known Ivesia webberi populations and are likely important in the maintenance of the seedbank and population recruitment.
(B) Suitable soils that can include (but are not limited to):
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. All areas designated as critical habitat contain features that will require some level of management to address the current and future threats. In all units, special management will be required to ensure that the habitat is able to provide for the growth and reproduction of the species.
A detailed discussion of threats to Ivesia webberi and its habitat can be found in the Ivesia webberi Species Report (Service 2014, pp. 22-32). The features essential to the conservation of I. webberi (plant community and competitive ability, and suitable topography, elevation, soils, and hydrology required for the persistence of adults as well as successful reproduction of such individuals and the formation of a seedbank) may require special management considerations or protection to reduce threats. The current range of I. webberi is subject to human-caused modifications from the introduction and spread of nonnative invasive species including Bromus tectorum, Poa bulbosa, and Taeniatherum caput-medusae; modified wildfire regime; increased access and fragmentation of habitat by new roads and OHVs; agricultural, residential, and commercial development; and soil and seedbank disturbance by livestock (Service 2014, pp. 22-32).
Special management considerations or protection are required within critical habitat areas to address these threats. Management activities that could ameliorate these threats include (but are not limited to): Treatment of nonnative, invasive plant species; minimization of OHV access and placement of new roads away from the species and its habitat; regulations or agreements to minimize the effects of development in areas where the species resides; minimization of livestock use or other disturbances that disturb the soil or seeds; and minimization of habitat fragmentation. Where the species occurs on private lands, protection and management could be enhanced by various forms of land acquisition from willing sellers, ranging from the purchase of conservation easements to fee title acquisition. These activities would protect the primary constituent elements for the species by preventing the loss of habitats and individuals, protecting the habitat and soils from undesirable patterns or levels of disturbance, and facilitating the management for desirable conditions, including disturbance regimes.
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 specific areas within the geographical area occupied by the species at the time of listing that contain the features essential to the conservation of the species. If, after identifying these specific areas, we determine the 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 of the geographic area occupied by the species are essential for the conservation of the species. We are not designating any areas outside the geographical area presently occupied by the species because its present range is sufficient to ensure the conservation of Ivesia webberi.
We delineated the critical habitat unit boundaries for Ivesia webberi using the following steps:
(1) In determining what areas were occupied by Ivesia webberi, we used polygon data collected by the
(2) We extended the boundaries of the polygon defining each population or subpopulation by 1,640 ft (500 m) to provide for sufficient pollinator habitat. This creates an area that is large enough to maintain flora diversity that would protect nesting areas of solitary pollinator species, while creating a large enough patch of flora diversity to attract social, wide-ranging pollinator species (as described above under the " Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring" section; BLM 2012b, p. 19).
(3) We then removed areas not containing the physical or biological features essential to the conservation of I. webberi within the 1,640-ft-wide (500-m-wide) area surrounding each population. We used a habitat model to identify areas lacking physical or biological features. The habitat model was developed by comparing occupied areas and the known environmental variables of these areas, such as elevation, slope, and soil type that we determined to be physical and biological features for this species. The environmental variables with the highest predictive ability influenced the habitat the model identified. Finally, we used ESRI ArcGIS (Geographic Information Systems) Imagery Basemap satellite imagery to exclude forested areas within the areas the model selected because this is not the vegetation type that is a physical and biological feature for I. webberi.
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, and other structures because such lands lack physical or biological features for Ivesia webberi. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the final rule and are not designated as critical habitat. Therefore, a Federal action involving these lands will not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080, on our Internet site at http://www.fws.gov/nevada/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above).
We are designating lands that we have determined are the specific areas within the geographical area presently occupied by the species, that contain the physical or biological features to support life-history processes essential for the conservation of Ivesia webberi as critical habitat.
Sixteen units (two of which contain subunits) are designated based on the physical or biological features being present to support Ivesia webberi' s life processes. Some units contain all of the physical or biological features and support multiple life processes. Some segments contain only some of the physical or biological features necessary to support Ivesia webberi's particular use of that habitat.
Final Critical Habitat Designation
We are designating 16 units as critical habitat for Ivesia webberi, all of which are occupied. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat. Those 16 units are: (1)
Table 1--Designated Critical Habitat Units for Ivesia webberi. [Area estimates reflect all land within the critical habitat boundary] CH unit Population Unit or Federally State or Privately Total area and (USFWS) subunit name owned land local owned land acres subunit acres government acres (hectares) (hectares) owned land (hectares) acres (hectares) 1 1 Sierra Valley 51 44 179 274 (21) (18) (73) (111) 2 2 Constantia 155 155 (63) (63) 3 3 East of HJWA, 22 100 122 Evans Canyon (9) (41) (49) 4 4 Hallelujah 69 69 Junction WA (28) (28) 5: 5a 5 Dog Valley 386 386 Meadow (156) (156) 5b 5 Upper Dog 12 17 29 Valley (5) (7) (12) 6 6 White Lake 98 11 109 Overlook (40) (4) (44) 7: 7a 7 Mules Ear Flat 31 34 65 (13) (14) (27) 7b 7 Three Pine 3 65 68 Flat; Jeffrey (1) (26) (27) Pine Saddle 8 8 Ivesia Flat 62 62 (25) (25) 9 9 Stateline Road 186 7 193 1 (75) (3) (78) 10 10 Stateline Road 66 66 2 (27) (27) 11 11 Hungry Valley 56 56 (23) (23) 12 12 Black Springs 133 30 163 (54) (12) (66) 13 13 Raleigh 229 24 253 Heights (93) (10) (103) 14 14 Dutch Louie 13 41 54 Flat (5) (17) (22) 15 15 The Pines 32 32 Powerline (13) (13) 16 16 Dante Mine 10 4 14 Road (4) (2) (6) Total 1,513 214 444 2,170 (612) (86) (180) (879) Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for Ivesia webberi, below.
Unit 1:
Unit 1 consists of 274 ac (111 ha) of Federal, State, and private lands. This unit is located near the junction of
Unit 2: Constantia
Unit 2 consists of 155 ac (63 ha) of Federal land. This unit is located east of
Unit 3: East of
Unit 3 consists of 122 ac (49 ha) of Federal and State lands. This unit is located east of
Unit 4 consists of 69 ac (28 ha) of State lands. This unit is located west of
Unit 5: Subunit 5a-Dog Valley Meadow and Subunit 5b-
Subunit 5a-Dog Valley Meadow
Subunit 5a consists of 386 ac (156 ha) of Federal lands. This subunit is located east of
Subunit 5b--
Subunit 5b consists of 29 ac (12 ha) of Federal and private lands. This subunit is located west of
Unit 6: White Lake Overlook
Unit 6 consists of 109 ac (44 ha) of Federal and private lands. This unit is located north of
Unit 7: Subunit 7a--Mules Ear Flat and Subunit 7b--Three Pine Flat and Jeffrey Pine Saddle
Subunit 7a--Mules Ear Flat
Subunit 7a consists of 65 ac (27 ha) of Federal and private lands. This subunit is located west of the
Subunit 7b--Three Pine Flat and Jeffrey Pine Saddle
Subunit 7b consists of 68 ac (27 ha) of Federal and private lands. This subunit is located east of the
Unit 8: Ivesia Flat
Unit 8 consists of 62 ac (25 ha) of Federal land. This unit is located south of
Unit 9:
Unit 9 consists of 193 ac (78 ha) of Federal and private lands. This unit is located along the
Unit 10:
Unit 10 consists of 66 ac (27 ha) of Federal land. This unit is located along the
Unit 11:
Unit 11 consists of 56 ac (23 ha) of Federal land. This unit is located west of
Unit 12:
Unit 12 consists of 163 ac (66 ha) of Federal and private lands. This unit is located northwest of
Unit 13:
Unit 13 consists of 253 ac (103 ha) of Federal and private lands. This unit is located northwest of
Unit 14: Dutch Louie Flat
Unit 14 consists of 54 ac (22 ha) of Federal and private lands. This unit is located southwest of
Unit 15: The Pines Powerline
Unit 15 consists of 32 ac (13 ha) of private lands. This unit is located southwest of
Unit 16:
Unit 16 consists of 14 ac (6 ha) of Federal and private lands. This unit is located east of
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our regulatory definition of "destruction or adverse modification" (50 CFR 402.02) (see
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the
As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define "reasonable and prudent alternatives" (at 50 CFR 402.02) as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended purpose of the action,
(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.
Application of the "Adverse Modification" Standard
The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter the physical or biological features to an extent that appreciably reduces the conservation value of critical habitat for Ivesia webberi. As discussed above, the role of critical habitat is to support life-history needs of the species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.
Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for Ivesia webberi. These activities include, but are not limited to:
(1) Actions that would lead to the destruction or alteration of plants, their seedbank, or their habitat; or actions that destroy or result in continual or excessive disturbance of the clay soils where Ivesia webberi is found. Such activities could include, but are not limited to: Activities associated with road construction and maintenance; excessive OHV use; activities associated with commercial and residential development, including roads and associated infrastructure; utility corridors or infrastructure; and excessive livestock grazing. These activities could lead to the loss of individuals; reduce plant numbers by prohibiting recruitment; remove the seedbank; fragment the habitat; introduce nonnative, invasive species; and alter the soil such that important shrink and swell processes no longer occur.
(2) Actions that would result in the loss of pollinators or their habitat, such that reproduction could be diminished. Such activities could include, but are not limited to: Destroying ground nesting habitat; habitat fragmentation that prohibits pollinator movement from one area to the next; spraying pesticides that would kill pollinators; and eliminating other plant species on which pollinators are reliant for floral resources (this could include the replacement of native forb species with nonnative, invasive annual grasses, which do not provide floral resources for pollinators). These activities could result in reduced reproduction, fruit production, and recruitment in Ivesia webberi.
(3) Actions that would result in excessive plant competition at Ivesia webberi populations. These activities could include, but are not limited to, using highly competitive species in restoration efforts or creating disturbances that allow establishment of nonnative, invasive species such as Bromus tectorum, Poa bulbosa, and Taeniatherum caput-medusae. These activities could cause I. webberi to be outcompeted and subsequently either lost or reduced in numbers of individuals.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: "The Secretary shall not designate as critical habitat any lands or other geographic areas owned or controlled by the
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.
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 (composed of three documents, i.e.,
Our economic analysis quantifies economic impacts of Ivesia webberi conservation efforts associated with the following categories of activity: (1) Federal lands management (
We determined that the section 7-related costs of designating critical habitat for Ivesia webberi are likely to be limited to the additional administrative effort required to consider adverse modification in a small number of consultations. This finding is based on:
(1) All units are considered occupied, providing baseline protection resulting from the listing of the species as threatened under the Act.
(2) Activities occurring within designated critical habitat with a potential to affect the species' habitat are also likely to adversely affect the species, either directly or indirectly.
(3) Project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy in occupied habitat.
(4) Federal agencies operating in critical habitat areas are already aware of the presence of Ivesia webberi and also are experienced with consulting with us under section 7 of the Act on other federally listed species.
Thus, in the baseline, they are likely to consult even in buffer areas surrounding the species included in the designation to ensure protection of pollinator habitat.
The incremental administrative burden resulting from the designation is unlikely to reach
Also as announced in our
As a result of this reevaluation (Lee 2014, pers. comm.) of the information analyzed in our DEA (IEc 2013; IEc 2014; Service 2013), we reaffirm that we did not identify any disproportionate costs that are likely to result from the designation. Consequently, the Secretary is not exercising her discretion to exclude any areas from this designation of critical habitat for Ivesia webberi based on economic impacts.
Exclusions Based on National Security Impacts or Homeland Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we also consider any other relevant impacts resulting from the designation of critical habitat. We consider a number of factors, including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues and consider the government-to-government relationship of
In preparing this final rule, we have determined that there are currently no permitted HCPs or other management plans for Ivesia webberi, and the final designation does not include any tribal lands or tribal trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this critical habitat designation. Accordingly, the Secretary is not exercising her discretion to exclude any areas from this final designation based on other relevant impacts.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for Ivesia webberi during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 46862) opened on
During the first comment period, we received 10 comment letters directly addressing the proposed critical habitat designation. During the second comment period, we received four comment letters addressing the proposed critical habitat designation or the draft economic analysis. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below. Comments we received are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Review
In accordance with our peer review policy published on
Comments From States
Section 4(i) of the Act states, "the Secretary shall submit to the State agency a written justification for [her] failure to adopt regulations consistent with the agency's comments or petition." We did not receive any comments from the States of
Comments From Federal Agencies
(1) Comment:
Our Response: We agree with this comment, and have simplified the boundaries of these critical habitat units accordingly. Additionally, per 2013 survey information provided to us from
(2) Comment:
Our Response: Plant species (such as Ivesia webberi) that have a restricted range, specialized habitat requirements, and limited recruitment and dispersal have a higher risk of extinction due to demographic uncertainty and random environmental events (
(3) Comment:
Our Response: We agree with this comment; these factors will receive full consideration during recovery planning and implementation.
Public Comments
(4) Comment: One commenter recognized that the law requires the Service to designate critical habitat for listed species, but expressed the view that proposing critical habitat concurrent with listing was "pre-decisional" and "counterintuitive."
Our Response: When prudent and determinable, the Act requires the Service to designate any habitat considered to be critical habitat concurrently with making a determination that a species is an endangered or threatened species. The Act's section 4(a)(3)(A)(i) states that the Secretary "shall, concurrently with making a determination . . . that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat."
(5) Comment: One commenter stated that it was a contradiction to state that critical habitat (as discussed under the Background section of the proposed rule) does not affect land ownership (or establish a similar type of refuge or conserved area) and then indicate (under the Special Management Considerations or Protection section of the proposed rule) that special management would be required to conserve the species' habitat. This commenter asked why the identification of special management considerations does not, in effect, create a conservation area.
Our Response: Section 3 of the Act defines critical habitat, in part, as those specific areas that "may require special management considerations or protection." The identification of special management considerations, however, does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. As stated in the proposed rule, the designation of critical habitat, and specifically the identification of management that may be required to maintain physical and biological features for a given a species, does not impose a legally binding duty on non-Federal government entities or private parties. The designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners, nor is any conserved or preserved area created. Under section 7 of the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat. 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 with the Federal agency.
(6) Comment: Multiple commenters asked how the critical habitat designation would affect private property and private property owners. One commenter specifically asked whether special management considerations were required to be implemented by private property owners.
Our Response: As stated in the proposed rule, the designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties, or require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. See additional discussion above in our response to Comment (5).
(7) Comment: One commenter asked whether critical habitat designation represents a taking of private property.
Our Response: We analyzed the potential takings implications of designating critical habitat for Ivesia webberi and concluded that this final designation will not have significant takings implications (see Takings--Executive Order 12630 under the Required Determinations section). A person wishing to develop private land that has been designated as critical habitat, in accordance with State law, and with no Federal jurisdiction involved does not violate the Act. Critical habitat receives protection under section 7 of the Act through requiring Federal agencies to consult with us to ensure that action they carry out, fund, or authorize does not result in the destruction or adverse modification of critical habitat. If there is no Federal nexus, the critical habitat designation of private lands itself does not restrict any private activities. See also response to Comment 14.
(8) Comment: One commenter asked if property owners have been notified.
Our Response: The Act does not require us to notify individual property owners affected by a proposed listing or critical habitat designation. However, we conducted extensive outreach in accordance with 50 CFR 424.16, including giving notice of the proposed regulation to the public, Federal agencies, and State agencies; publishing a summary of the proposed regulation in the
(9) Comment: Several comments were received related to road closures and anticipated impacts upon recreational activities, particularly the use of OHVs (including 4-wheel drive vehicles). One commenter asked how road closures would protect Ivesia webberi. Another commenter stated that OHVs are used as their primary mode of transportation, and recommended that this be taken into consideration when roads or trails are considered for closure. One commenter asked how the species would be protected or affected if hiking is still allowed.
Our Response: Final rules designating critical habitat do not automatically eliminate or place restrictions on any recreational activities, such as hiking or OHV use, within critical habitat. A critical habitat designation does not establish any closures of roads or trails. Rather, once critical habitat is designated on Federal lands, it becomes the responsibility of the Federal agency with jurisdiction over those lands included in the designation to review the various kinds of recreational activities allowed on its lands to determine in consultation with the Service if these activities may result in the destruction or adverse modification of designated critical habitat. The decision to close or restrict recreational activities (OHV, hiking, or other) to potentially protect or reduce impacts to a listed species or its critical habitat is made by that Federal agency.
With regard to the question of how road closures would protect Ivesia webberi, we first reiterate that critical habitat designation does not establish road closures. However, road closures represent a means of addressing and reducing the patterns of disturbance to I. webberi habitat that are associated with road corridors subject to heavy use. Road corridors experiencing heavy use, and particularly those roads that serve to provide access (via off-road travel) into habitats occupied by I. webberi, are likely to eliminate conditions required by the species for persistence and reproduction. As noted in the Physical or Biological Features section above, moderate to heavy soil disturbances such as OHV use, road corridors, residential or commercial development, and livestock grazing can impact the species and its seedbank through habitat loss, fragmentation, and degradation due to soil compaction and altered soil hydrology (Witham 2000, Appendix 1, p. 1; Bergstrom 2009, pp. 25-26). For more information, please see " Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements" under the Physical or Biological Features section, above).
(10) Comment: One commenter requested that any location within the proposed critical habitat designation that has an adopted route travel management system be excluded from the final critical habitat designation, with a 50-ft (15-m) from centerline corridor established to allow space for parking.
Our Response: Travel or route planning documents, and any accompanying evaluations of the legal status of existing or potential travel routes, are planning and management actions within the jurisdiction of land management agencies. Critical habitat designations do not establish any planning documents or management plans; rather, the designation of critical habitat identifies those physical and biological features that may be essential to the conservation of a species and may require special management considerations and protections, and the land area on which those features are found. To the extent that certain areas within our critical habitat designation contain roads and other manmade structures (e.g., fences, houses, paved areas, and other structures), these features are not included within the critical habitat designation because they do not contain the primary constituent elements and because they do not meet the definition of critical habitat under the Act.
(11) Comment: One commenter stated that, in 2006, a 4-wheel drive club successfully blockaded about 1,000 linear ft (305 m) on the west edge of Dutch Louie Flat meadow with used utility poles to prevent vehicles and people from going into the meadow. This commenter then states that if Service,
Our Response: We are aware of this action having been undertaken in "Dutch Louie Flat meadow"; however, this area (the meadow) is not located within our critical habitat designation and does not contain Ivesia webberi. Unit 14 (Dutch Louie Flat, as described under the Final Critical Habitat Designation section, above) is located approximately 1.4 mi (2.3 km) northwest of the "Dutch Louie Flat meadow" where the 4-wheel drive club conducted their activities.
(12) Comment: Two commenters made specific reference to the old road between
Our Response: 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. While we cannot be certain from the comment which road is being referenced here, we are aware that Unit 13 contains many roads that receive varied levels of use. The best available information indicates that Ivesia webberi grows sporadically within some of the road corridors in Unit 13, and along the shoulders of other road corridors within this unit (S. Kulpa,
(13) Comment: A commenter asked if any scientific studies have been conducted that indicate if livestock use within the critical habitat areas has an adverse effect on Ivesia webberi. The commenter believes the presence of the species within grazed areas should serve as an indication that livestock have not adversely affected the plant.
Our Response: We are not aware of studies specifically examining the effects of livestock grazing upon Ivesia webberi. However, as noted elsewhere in the proposed critical habitat designation and this final rule, moderate to heavy soil disturbances such as OHV use, road corridors, residential or commercial development, and livestock grazing can impact the species and its seedbank through habitat loss, fragmentation, and degradation due to soil compaction and altered soil hydrology (Witham 2000, Appendix 1, p. 1; Bergstrom 2009, pp. 25-26). We have specifically identified vernally moist soils with an argillic horizon that shrink and swell upon wetting and drying as a physical and biological feature essential for the conservation of I. webberi. Excessive or inadequately managed livestock grazing has the potential to eliminate these conditions that are required by the species for persistence and reproduction. See the Summary of Biological Status and Threats section of the proposed listing rule (78 FR 46889;
(14) Comment: One commenter stated that a portion of the private lands within Unit 1 has historically been used for livestock grazing, and asked who would determine whether special management considerations or protection would be required in this area, and how that special management or protections would be enforced.
Our Response: The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under section 7 of the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat. 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 (i.e., a Federal nexus exists), may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests with the Federal agency. Therefore, there is no requirement or enforcement of special management considerations or protections on the private lands within Unit 1 or any other private lands (without a Federal nexus) within the critical habitat designation for Ivesia webberi.
(15) Comment: One commenter advocated for public education to users of motorized recreational vehicles.
Our Response: We agree that public education is a vital component of any conservation program and will promote outreach for Ivesia webberi and its critical habitat through avenues such as (but not limited to) our continued coordination with partners and future recovery planning efforts.
(16) Comment: One commenter recommended that we consider geothermal energy sources as a threat to Unit 16 because it occurs near an active exploration area that is on
Our Response: Per our coordination with
Comments Related to the Draft Economic Analysis (DEA)
(17) Comment: One commenter stated that the DEA did not assess the economic benefits that may result from the designation of 114 ac (46 ha) of private, vacant lands as critical habitat in the
Our Response: The primary goal of critical habitat designation for Ivesia webberi is to promote the conservation of the species. Critical habitat designation may also generate ancillary benefits, which are defined as favorable impacts of a rulemaking that are typically unrelated, or secondary, to the statutory purpose of the rulemaking (
As described in our DEA (IEc 2014, p. 2), incremental changes in land management as a result of the designation of critical habitat are unlikely. This finding is based primarily on the fact that all areas designated as critical habitat are considered occupied by the species and therefore receive baseline protection from the listing of the species under the Act. Thus, in this instance, critical habitat designation will likely add a slight incremental conservation benefit to that already provided by baseline conservation efforts (e.g., efforts resulting from the listing of the species as threatened under the Act). For the same reason, it follows that the critical habitat designation will likely add slight incremental ancillary benefits above those provided in the baseline.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the
Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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.
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 destroy or adversely modify critical habitat. Therefore, under section 7 only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. There is no requirement under RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that this 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.
Based on information in the economic analysis, energy-related impacts associated with Ivesia webberi conservation activities within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both "Federal intergovernmental mandates" and "Federal private sector mandates." These terms are defined in 2 U.S.C. 658(5)-(7). "Federal intergovernmental mandate" includes a regulation that "would impose an enforceable duty upon State, local, or tribal governments" with two exceptions. It excludes "a condition of Federal assistance." It also excludes "a duty arising from participation in a voluntary Federal program," unless the regulation "relates to a then-existing Federal program under which
The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely affect small governments because it would not produce a Federal mandate of
(a) All units are considered occupied, providing baseline protection;
(b) Activities occurring within designated critical habitat with a potential to affect critical habitat are also likely to adversely affect the species, either directly or indirectly;
(c) In occupied habitat, project modifications requested to avoid adverse modification are likely to be the same as those needed to avoid jeopardy; and
(d) Federal agencies operating in designated critical habitat areas are already aware of the presence of the species and are also experienced consulting with the Service under section 7 of the Act on other federally listed species. Thus, they are likely to consult even in buffer areas applied to occupied habitat, included in the designation to ensure the protection of pollinator habitat.
Consequently, we do not believe that the critical habitat designation would 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 Ivesia webberi in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Our DEA found (and our FEA reaffirms) that no significant economic impacts are likely to result from the designation of critical habitat for Ivesia webberi. Because the Act's critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. Based on information contained in the DEA and described within this document, it is not likely that economic impacts to a property owner would be of a sufficient magnitude to support a takings action. Therefore, the takings implications assessment concludes that this designation of critical habitat for I. webberi does not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with
Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform), the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of
References Cited
A complete list of all references cited is available on the Internet at http://www.regulations.gov and upon request from the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the Pacific Southwest Regional Office and Nevada 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) Flowering plants.
* * * * *
Family Rosaceae: Ivesia webberi (Webber's ivesia)
(1) Critical habitat units are depicted for
(2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of Ivesia webberi consist of four components:
(i) Plant community.
(A) Open to sparsely vegetated areas composed of generally short-statured associated plant species.
(B) Presence of appropriate associated species that can include (but are not limited to): Antennaria dimorpha, Artemisia arbuscula, Balsamorhiza hookeri, Elymus elymoides, Erigeron bloomeri, Lewisia rediviva, Poa secunda, and Viola beckwithii.
(C) An intact assemblage of appropriate associated species to attract the floral visitors that may be acting as pollinators of Ivesia webberi.
(ii) Topography. Flats, benches, or terraces that are generally above or adjacent to large valleys. Occupied sites vary from slightly concave to slightly convex or gently sloped (0-15 [degrees]) and occur on all aspects.
(iii) Elevation. Elevations between 4,475 and 6,237 feet (1,364 and 1,901 meters).
(iv) Suitable soils and hydrology.
(A) Vernally moist soils with an argillic horizon that shrink and swell upon drying and wetting; these soil conditions are characteristic of known Ivesia webberi populations and are likely important in the maintenance of the seedbank and population recruitment.
(B) Suitable soils that can include (but are not limited to):
(3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on
(4) Critical habitat map units. Data layers defining map units were created on the base of both satellite imagery (ESRI ArcGIS Imagery Basemap) as well as USGS geospatial quadrangle maps and were mapped using NAD 83 Universal Transverse Mercator (UTM), zone 11N coordinates. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0080, and at the field office responsible for this designation (i.e., Nevada Fish and Wildlife Office (http://www.fws.gov/nevada/)). You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4310-55-P
See Illustration in Original Document.
(6) Unit 1:
(i) Unit 1 includes 274 ac (111 ha).
(ii) Map of Unit 1 follows:
See Illustration in Original Document.
(7) Unit 2: Constantia,
(i) Unit 2 includes 155 ac (63 ha).
(ii) Map of Unit 2 follows:
See Illustration in Original Document.
(8) Unit 3: East of
(i) Unit 3 includes 122 ac (49 ha).
(ii) Map of Units 3 and 4 follows:
See Illustration in Original Document.
(9)
(i)
(ii) Map of
(10) Unit 5: Subunit 5a, Dog Valley Meadow, and Subunit 5b,
) Subunit 5a includes 386 ac (156 ha), and subunit 5b includes 29 ac (12 ha). Combined, Unit 5 includes 415 ac (168 ha).
(ii) Map of Unit 5 (Subunits 5a and 5b) follows:
See Illustration in Original Document.
(11) Unit 6: White Lake Overlook,
(i) Unit 6 includes 109 ac (44 ha).
(ii) Map of Units 6, 7, 8, 9, and 10 follows:
See Illustration in Original Document.
(12) Unit 7: Subunit 7a, Mules Ear Flat,
(i) Subunit 7a includes 65 ac (27 ha), and subunit 7b includes 68 ac (27 ha).
(ii) Map of Unit 7 is provided at paragraph (11)(ii) of this entry.
(13) Unit 8: Ivesia Flat,
(i) Unit 8 includes 62 ac (25 ha).
(ii) Map of Unit 8 is provided at paragraph (11)(ii) of this entry.
(14) Unit 9:
(i) Unit 9 includes 193 ac (78 ha).
(ii) Map of Unit 9 is provided at paragraph (11)(ii) of this entry.
(15) Unit 10:
(i) Unit 10 includes 66 ac (27 ha).
(ii) Map of Unit 10 is provided at paragraph (11)(ii) of this entry.
(16) Unit 11:
(i) Unit 11 includes 56 ac (23 ha).
(ii) Map of Unit 11 follows:
See Illustration in Original Document.
(17) Unit 12:
(i) Unit 12 includes 163 ac (66 ha).
(ii) Map of Units 12 and 13 follows:
See Illustration in Original Document.
(18) Unit 13:
(i) Unit 13 includes 253 ac (103 ha).
(ii) Map of Unit 13 is provided at paragraph (17)(ii) of this entry.
(19) Unit 14: Dutch Louie Flat,
(i) Unit 14 includes 54 ac (22 ha).
(ii) Map of Units 14 and 15 follows:
See Illustration in Original Document.
(20) Unit 15: The Pines Powerline,
(i) Unit 15 includes 32 ac (13 ha).
(ii) Map of Unit 15 is provided at paragraph (19)(ii) of this entry.
(21) Unit 16:
(i) Unit 16 includes 14 ac (6 ha).
(ii) Map of Unit 16 follows:
See Illustration in Original Document.
* * * * *
<p> Dated:
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-12629 Filed 6-2-14;
BILLING CODE 4310-55-C
| Copyright: | (c) 2014 Federal Information & News Dispatch, Inc. |
| Wordcount: | 20353 |
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