[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Rules and Regulations]
[Pages 61505-61589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23552]



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Vol. 78

Thursday,

No. 192

October 3, 2013

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Taylor's Checkerspot Butterfly and Streaked Horned Lark; 
Final Rule

Federal Register / Vol. 78 , No. 192 / Thursday, October 3, 2013 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES2013-0009; 4500030114]
RIN 1081-AZ36


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Taylor's Checkerspot Butterfly and Streaked Horned 
Lark

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical 
habitat for the Taylor's checkerspot butterfly (Euphydryas editha 
taylori) and streaked horned lark (Eremophila alpestris strigata) under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 1,941 acres (786 hectares) in Island, Clallam, and 
Thurston Counties in Washington, and in Benton County in Oregon, fall 
within the boundaries of the critical habitat designation for Taylor's 
checkerspot butterfly. Approximately 4,629 acres (1,873 hectares) in 
Grays Harbor, Pacific, and Wahkiakum Counties in Washington, and in 
Clatsop, Columbia, Marion, Polk, and Benton Counties in Oregon, fall 
within the boundaries of the critical habitat designation for streaked 
horned lark. The effect of this regulation is to designate critical 
habitat for the Taylor's checkerspot butterfly and streaked horned lark 
under the Act for the conservation of the species.

DATES: This rule is effective on November 4, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the Washington Fish and Wildlife Office. 
Comments and materials we received, as well as supporting documentation 
used in preparing this final rule, are available for public inspection, 
by appointment, during normal business hours, at: U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive SE., Suite 102, Lacey, WA 98503-1263. The office can be reached 
by telephone at 360-753-9440 or by facsimile at 360-753-9008.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R1-ES-2013-0009 and at http://www.fws.gov/wafwo/TCBSHL.html, or, by appointment, at the Washington Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we developed for this critical habitat 
designation will also be available at the Fish and Wildlife Service Web 
site and field office set out above, and may also be included at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ken Berg, Manager, U.S. Fish and 
Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond 
Drive, Suite 102, Lacey, WA 98503-1263; by telephone 360-753-9440; or 
by facsimile 360-753-9405. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why We Need to Publish a Rule. Under the Endangered Species Act 
(Act), any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable. Elsewhere in today's issue of the 
Federal Register, we list the Taylor's checkerspot butterfly as an 
endangered species and the streaked horned lark as a threatened 
species. 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. Additionally, the Act sets 
forth the requirement to finalize rules within 1 year of proposal.
    This rule designates critical habitat for the Taylor's checkerspot 
butterfly and streaked horned lark. On October 11, 2012, we published 
in the Federal Register (77 FR 61937) a proposed rule to list the 
Taylor's checkerspot butterfly and streaked horned lark and to 
designate critical habitat for these subspecies. The critical habitat 
areas we are designating in this final rule constitute our current best 
assessment of the areas that meet the definition of critical habitat 
for the Taylor's checkerspot butterfly and streaked horned lark. We are 
designating as critical habitat:
     Approximately 1,941 acres (ac) (786 hectares (ha)) in 
three units for the Taylor's checkerspot butterfly in Island, Clallam, 
and Thurston Counties in Washington; and in Benton County in Oregon.
     Approximately 4,629 ac (1,873 ha) in two units for the 
streaked horned lark in Grays Harbor, Pierce, Pacific, and Wahkiakum 
Counties in Washington; and in Clatsop, Columbia, Marion, Polk, and 
Benton Counties in Oregon.
    We have prepared an economic analysis of the designation of 
critical habitat. We have prepared an analysis of the probable economic 
impacts of the critical habitat designations and related factors. We 
announced the availability of the draft economic analysis (DEA) in the 
Federal Register on April 3, 2012 (78 FR 20074), allowing the public to 
provide comments on our analysis. We have incorporated the comments and 
have completed the final economic analysis (FEA) concurrently with this 
final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from two knowledgeable 
individuals with scientific expertise to review our technical 
assumptions and analysis, and to determine whether or not we had used 
the best available information. These peer reviewers concurred with our 
methods and conclusions, and provided additional information, 
clarifications, and suggestions to improve this final rule. Information 
we received from peer review is incorporated in this final designation. 
We also considered all comments and information we received from the 
public during the comment period.

Previous Federal Actions

    All previous Federal actions are described in the listing 
determination for the Taylor's checkerspot butterfly and streaked 
horned lark, which is published elsewhere in today's Federal Register.

Background

    For information related to the listing of the species, see the 
final rule listing Taylor's checkerspot butterfly as an endangered 
species and the streaked horned lark as a threatened species, which is 
published elsewhere in today's Federal Register.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Taylor's checkerspot butterfly 
and streaked horned lark during two comment periods. The first comment 
period,

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associated with the publication of the proposed rule (77 FR 61937; 
October 11, 2012), opened on October 11, 2012, and closed on December 
10, 2012. We then made available the draft economic analysis (DEA) of 
the proposed critical habitat designation and reopened the comment 
period on the proposed rule for an additional 30 days from April 3, 
2013, to May 3, 2013 (78 FR 20074; April 3, 2013). We also contacted 
appropriate Federal, State, tribal, county, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and the draft economic analysis. We 
held three public information workshops and a public hearing in April 
2013, on the proposed rule to list the subspecies and the associated 
critical habitat designations.
    During the two public comment periods, we received close to 100 
comment letters and emails from individuals and organizations, as well 
as speaker testimony at the public hearing held on April 18, 2013. 
These comments addressed the proposed critical habitat or proposed 
listing (or both) for Taylor's checkerspot butterfly and streaked 
horned lark. We received comment letters from two peer reviewers for 
Taylor's checkerspot butterfly and three peer reviewers for streaked 
horned lark, and also received comment letters from three State 
agencies, one Native American tribe, and seven Federal agencies, 
including the Department of the Army and Department of the Air Force. 
We coordinated the proposed critical habitat with the federally 
recognized Shoalwater Bay Tribe on a government-to-government basis in 
accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175; and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2).
    We contacted the only tribe potentially affected by the proposed 
designation (the Shoalwater Bay Tribe) and coordinated with them to 
discuss their ongoing or future management strategies for the Taylor's 
checkerspot butterfly and streaked horned lark.
    All substantive information provided during comment periods has 
either been incorporated directly into this final designation or is 
addressed below. Comments we received are grouped into general issues 
specifically relating to the proposed critical habitat designation for 
the Taylor's checkerspot butterfly and streaked horned lark, and are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Comments From Peer Reviewers

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from four knowledgeable 
individuals with scientific expertise that included familiarity with 
the Taylor's checkerspot butterfly and its habitats, biological needs, 
and threats, and from three knowledgeable individuals with scientific 
expertise that included familiarity with the streaked horned lark and 
its habitats, biological needs, and threats. We received responses from 
two of the peer reviewers for the Taylor's checkerspot butterfly. Both 
peer reviewers felt that the proposed rule was a thorough description 
of the status of Taylor's checkerspot butterfly. Both reviewers 
commented that they considered the proposed rule well researched and 
well written, and one commenter found the rule comprehensively 
represented the current scientific knowledge for the taxon. The two 
peer reviewers made no substantive comments relevant to the critical 
habitat designation for the Taylor's checkerspot butterfly.
    We received responses from three of the peer reviewers for the 
streaked horned lark. Two of the peer reviewers felt that the proposed 
rule was a thorough description of the status of the streaked horned 
lark, and that our assessment of the primary constituent elements of 
critical habitat was correct. Two peer reviewers made several 
substantive comments relevant to the proposed critical habitat 
designation for the streaked horned lark, which we respond to below and 
also in the Comments from the Public section in cases where we received 
a similar comment from the public. Our requests for peer review are 
limited to a request for review of the merits of the scientific 
information in our documents; if peer reviewers have volunteered their 
personal opinions on matters not directly relevant to the science of 
our designation, we do not respond to those comments here.
Streaked Horned Lark
    (1) Comment: One peer reviewer stated that the proposed designation 
of critical habitat was lacking formal agreements for lark conservation 
with land owners and managers of sites proposed for critical habitat, 
or at sites the peer reviewer believes should have been proposed as 
critical habitat.
    Our Response: Our requests for peer review are limited to a request 
for review of the scientific information in our documents. In this case 
the peer reviewer has offered his opinion on a non-scientific issue; 
however, management agreements are not a requirement for critical 
habitat designation. We will seek agreements with land owners and 
managers on lands designated as critical habitat and on other lands 
that are important to conservation of the streaked horned lark as we 
initiate a recovery program for the bird, but such agreements are not 
relevant to the designation of critical habitat unless we are 
considering whether to exclude an area from the designation pursuant to 
section 4(b)(2) of the Act. We did consider the additional sites the 
peer reviewer suggested should have been proposed as critical habitat; 
however, we concluded that the areas suggested did not meet our 
definition of critical habitat for the streaked horned lark.
    (2) Comment: One peer reviewer commented on our lack of discussion 
of wintering habitat requirements for the streaked horned lark. The 
peer reviewer suggested that if wintering habitats are the same as 
habitats used for breeding, we should state that explicitly. The peer 
reviewer also commented on the fact that all of the proposed critical 
habitat sites were identified as either breeding habitats or breeding 
and wintering habitats, but there were no sites identified as solely 
wintering sites.
    Our Response: Our current knowledge of habitat use by the streaked 
horned lark indicates that there are no sites that are used solely for 
wintering habitat. There are sites in Washington that have breeding 
populations in the spring and summer, but that are then abandoned by 
the streaked horned lark in the fall and winter. Other breeding sites 
on the Washington coast, in the Columbia River, and in the Willamette 
Valley are also used as wintering habitats. We have amended the 
description of critical habitat selection criteria to be clearer, as 
requested by the peer reviewer.
    (3) Comment: Two peer reviewers and several commenters expressed 
concern about relying on airports for streaked horned lark recovery 
because although airports harbor populations of larks, the sites may 
act as ``population sinks'' due to the constant habitat disturbance, 
hazing, and threat of aircraft strikes.
    Our Response: We share this concern. Streaked horned larks occur on 
airports because management to control hazardous wildlife and to 
maintain safe conditions for aviation has incidentally created suitable 
habitat for the subspecies; however, airports are not ideal locations 
for focusing recovery efforts for the streaked horned lark. First, the 
birds are at risk of mortality

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from plane collisions, and have frequently been documented in bird 
strikes at airports (Cleary and Dolbeer 2005, p. 101). Secondly, 
Federal Aviation Administration (FAA) regulations require airports to 
take immediate action to alleviate wildlife hazards whenever they are 
detected (14 CFR 139.337). This requirement to maintain airfields free 
of wildlife hazards would severely limit the potential to increase 
streaked horned lark populations on airports. Streaked horned larks at 
airports are therefore subject to the combined threats of plane strikes 
and constant management to minimize bird populations; although airports 
currently support some relatively large populations of the subspecies, 
airports are clearly not ideal for conservation and recovery efforts 
aimed at further increasing abundance of the bird. Airports will 
continue to be important for the consistent habitats they provide for 
some populations of the streaked horned lark, and we will work with 
airports to maintain stable populations of the subspecies. Our main 
recovery efforts for the streaked horned lark, however, will need to 
focus on establishing new populations and managing for the subspecies 
at locations where population growth is an acceptable management goal 
for the site.
    (4) Comment: One peer reviewer asked if industrial lands may be 
population sinks (i.e., they provide attractive locations for breeding 
but do not contribute to population growth), given their frequent 
disturbance without regard to the effect on the streaked horned lark, 
and further inquired if we had considered the possible long-term 
effects of the activities exempted in the special rule. The peer 
reviewer suggested that perhaps we should not encourage maintenance of 
sink habitats.
    Our Response: At this point, we do not know whether industrial 
lands function as sink habitats for breeding streaked horned larks; we 
will focus on gaining a better understanding of lark population 
dynamics in these habitats in the recovery program for the bird. We 
agree that this will be an important issue as we identify habitats that 
have the potential for contributing to the long-term conservation of 
the subspecies. We acknowledged this concern in response to another 
comment as well (see our response to Comment 3, above).
    (5) Comment: One peer reviewer and one commenter stated the 
designation of Coffeepot Island as critical habitat for the streaked 
horned lark is inconsistent with the rationale for other habitats 
proposed for designation (i.e., it is currently an unoccupied site), 
and believed this provided it with special recognition not warranted 
relative to many other sites where the streaked horned lark has 
occurred in the past or could occur in the future, or even more 
importantly, many other sites not being proposed as critical habitat 
where the streaked horned lark currently does occur.
    Our Response: We proposed critical habitat on a portion of 
Coffeepot Island based on indications that the U.S. Army Corps of 
Engineers (Corps) might add this area to their list of authorized 
dredge deposit sites (thus potentially creating suitable habitat for 
the streaked horned lark) and its proximity to other occupied deposit 
sites on the Columbia River. As such, we believed that even though it 
may be currently unoccupied, it could play an essential role in the 
conservation of the subspecies in the future. However, to date we have 
no indications that the Corps is actively pursuing inclusion of this 
island into their dredging and navigation channel maintenance program. 
Therefore, the site is unlikely to support streaked horned larks 
anytime within the foreseeable future. Based upon this information and 
input from peer reviewers, we have determined this unoccupied area is 
not essential to the conservation of the subspecies, and thus does not 
meet the definition of critical habitat. Coffeepot Island is not 
included in the final designation of critical habitat for the streaked 
horned lark.
    (6) Comment: One peer reviewer and several commenters recommended 
that we designate critical habitat on sites that are not known to be 
currently occupied by streaked horned lark, but could be managed to 
provide suitable habitat. These sites include privately owned 
agricultural lands in the Willamette Valley, industrial and restoration 
sites in the Portland area, and islands and mainland sites along the 
lower Columbia River.
    Our Response: Recovery of the streaked horned lark will likely 
require the restoration or creation of new habitat on some currently 
unoccupied sites. As described in the proposed rule, streaked horned 
larks require habitat with both a specific landscape context (flat and 
wide-open) and structure (low-stature vegetation with abundant bare 
ground). Given the appropriate landscape context, the structure is easy 
to create, which has fostered the hope of establishing new habitats for 
streaked horned larks at sites with conservation management as their 
main objective. There have recently been some attempts to create 
habitat for and to attract streaked horned larks to suitable but 
unoccupied habitats. An experimental approach, initially implemented by 
Metro (the Portland, Oregon, area regional government body) and later 
joined by the Center for Natural Lands Management (CNLM), a 
nongovernmental organization, has attempted to create habitat and 
attract streaked horned larks to the St. Johns Landfill in North 
Portland, Oregon, and to two sites at Joint Base Lewis-McChord (JBLM) 
in Washington; the effort at St. Johns Landfill began in 2009, and at 
JBLM in 2012. These efforts have combined habitat creation and the use 
of conspecific attraction techniques (streaked horned lark decoys and 
audio playback of recorded calls). The concept holds great promise, but 
so far has not been successful in establishing a new population of 
streaked horned larks at any of the three experimental sites. As we 
embark on recovery efforts for the streaked horned lark, we intend to 
continue to refine this approach and to work to create new habitats in 
areas with the proper landscape context, but it is clear that we do not 
yet know which sites will succeed in attracting and supporting new 
populations of streaked horned larks. Designating critical habitat at 
this time on sites that do not yet support use by streaked horned larks 
would be premature, since we cannot be sure that streaked horned larks 
will colonize sites that have been recommended as potential critical 
habitat, and the designation of unoccupied areas requires a 
determination that such areas are essential to the conservation of the 
subspecies. We may revisit the issue of critical habitat designation 
when we have better information about how to attract streaked horned 
larks to currently unoccupied sites. In addition, we will look to the 
guidance provided by the recovery plan that will be developed for the 
streaked horned lark to make future determinations regarding those 
unoccupied areas, if any, that may be essential for the conservation of 
the subspecies.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments we received from State agencies regarding the proposal to 
designate critical habitat for the Taylor's checkerspot butterfly and 
streaked horned lark are addressed below. We received comments from the 
Washington Department of Fish and Wildlife (WDFW) and Washington 
Department of Natural Resources (WDNR) related to biological

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information, threats, critical habitat exclusions, the inadequacy of 
regulatory mechanisms, and recommendations for the management of 
habitat. We did not receive any comments regarding critical habitat for 
the Taylor's checkerspot butterfly or streaked horned lark from 
agencies in the State of Oregon.
    Both agencies (WDFW and WDNR) provided a number of recommended 
technical corrections or edits to the proposed critical habitat 
designation for the Taylor's checkerspot butterfly and streaked horned 
lark. We have evaluated and incorporated this information into this 
final rule where appropriate to clarify the final critical habitat 
designation. In instances where the Service may have disagreed with an 
interpretation of the technical information that was provided, we have 
responded in separate communication with the agency.
    (7) Comment: WDFW noted that the critical habitat designation for 
Taylor's checkerspot butterfly in the Bald Hill area did not appear to 
include some historical Taylor's checkerspot butterfly locations with 
suitable habitat. WDFW believes both Fossil Rock and Bald Hill 1176 
Spur A Bald should have been included in proposed critical habitat.
    Our Response: We considered the WDFW's suggestion, but concluded 
the contiguous area proposed for designation as critical habitat in 
this area for Taylor's checkerspot butterfly would provide better 
management opportunities for the subspecies than would designating 
multiple, isolated patches. The focus of conservation work in the Bald 
Hill area has been in the vicinity of the State's Natural Area 
Preserve, and not on disjunct patches that are likely inaccessible to 
Taylor's checkerspot butterflies unless they were introduced 
(translocated) specifically into these isolated habitat patches.
    (8) Comment: WDFW encouraged the Service to not only ensure that 
the conservation measures provided for in the integrated natural 
resources management plan (INRMP) for JBLM are sufficient to preclude 
the need to designate critical habitat for the Taylor's checkerspot 
butterfly and streaked horned lark, but also that implementation of the 
plan can be assured. WDFW also requested we consider excluding WDFW 
properties addressed by their draft wildlife area habitat conservation 
plan (HCP).
    Our Response: Section 4(a)(3)(B)(i) of the Act specifically states 
that the Secretary shall not designate critical habitat on Department 
of Defense lands if the area is subject to an INRMP that provides a 
benefit to the species for which critical habitat is proposed. As 
discussed under the section Exemptions in this final rule, the 
Secretary has determined, in writing as required by the Act, that 
JBLM's INRMP provides such a benefit for Taylor's checkerspot butterfly 
and streaked horned lark under the endangered species management plans 
(ESMPs) developed specifically for these subspecies under their INRMP; 
therefore JBLM lands are not included in this final designation of 
critical habitat. Our experience with JBLM is that, when they commit to 
conservation actions, they have the funding required to ensure that 
implementation of the action will occur.
    When deciding whether to exclude an area from designation of 
critical habitat under section 4(b)(2) of the Act, the Service needs to 
assess not only the conservation measures outlined within management 
plans regardless of agency or organization, but also the level of 
assurance an agency can provide of actually funding and implementing 
the conservation measures identified within the plan. The same process 
would hold true when evaluating the WDFW wildlife area HCP. As 
described in the Exclusions section of this document, we have excluded 
the Wildlife Areas owned and managed by WDFW because of the management 
plans in place for these State Wildlife Areas (Scatter Creek and West 
Rocky Prairie Wildlife Areas) The exclusion of these Wildlife Areas was 
not based on WDFW's draft HCP because we have not received a complete 
draft HCP document to review, and furthermore, the HCP in question is 
not finalized. We would not be able to exclude the areas in question 
based on assurances for funding and implementation that may be provided 
through a future HCP process.
    (9) Comment: WDFW was concerned that, with the new helicopter 
brigade stationed at JBLM, the airstrip on TA 14 on 13th Division 
Prairie is now used almost daily during streaked horned lark breeding 
season, with many low-elevation flights and ``touch-and-go'' exercises 
occurring in the highest density occupied habitat. This is also a 
concern for adult Taylor's checkerspot butterflies at this site. They 
were also concerned with impacts associated with off-road training 
conducted in the 13th Division Prairie.
    Our Response: Activities conducted on JBLM, including air 
operations at 13th Division Prairie, the military airfields, and other 
areas, will be addressed in section 7 consultations after the 
subspecies are listed. The Service is currently coordinating with the 
Environmental and Natural Resource Division and staff from Range 
Control on training activities that impact the Taylor's checkerspot 
butterfly and streaked horned lark, and we are in negotiations on ways 
to further reduce impacts to these two subspecies specifically at this 
location. JBLM is aware that they will need to implement timing 
restrictions and avoid conducting training activities in certain 
locations or during the most sensitive time of year to minimize or 
avoid take of the subspecies after they are listed. This will include 
the areas adjacent to the Pacemaker runway and other portions of the 
13th Division Prairie where the Taylor's checkerspot butterfly and 
streaked horned lark occur.
    (10) Comment: WDNR was concerned that the safe use of pesticides to 
control nonnative, invasive insects, such as gypsy moth, may be 
impacted by the listing and designation of critical habitat for 
Taylor's checkerspot butterfly.
    Our Response: We do not see pesticide use in general to pose an 
adverse impact to Taylor's checkerspot butterflies unless individuals 
are directly exposed to the pesticides. The Service does not anticipate 
the need for pesticide spraying on habitat occupied by Taylor's 
checkerspot butterflies, as the subspecies does not occupy forested 
areas where such pesticides are generally applied. However, if 
pesticide were to be sprayed in areas where pesticide drift would 
expose Taylor's checkerspot butterflies to the pesticide(s), then we 
would be concerned with their application in these situations. The 
Service acknowledges the use of pesticides as harmful to Taylor's 
checkerspot butterfly at all life stages. We specifically discourage 
the use of insecticides such as Bacillus thuringiensis var. kurstaki 
(BtK) in forested areas adjacent to Taylor's checkerspot butterfly 
habitat. This insecticide, which is used for harmful defoliators like 
gypsy moth and spruce budworm, has been implicated in the loss of three 
populations of Taylor's checkerspot butterfly in Pierce County, 
Washington, during the early 1990s, when it was applied adjacent to 
Taylor's checkerspot butterfly habitat.

Comments From Federal Agencies

Department of Energy, Bonneville Power Administration
    (11) Comment: The Service should remove those portions of the 
Bonneville Power Administration's (BPA) rights-of-way that are composed 
of access roads and transmission towers and their related 
infrastructure from the critical habitat proposal, as the roads and 
structures do not exhibit the biological

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features required for recovery of Taylor's checkerspot butterfly.
    Our Response: We agree that some portions of the BPA rights-of-way 
in areas formerly occupied by Taylor's checkerspot butterfly do not 
contain biological features that are important for the subspecies; 
therefore we have made minor changes to the critical habitat boundaries 
to remove those areas that do not meet our definition of critical 
habitat. Furthermore, as explicitly described in this rule, critical 
habitat does not include manmade structures (such as buildings, 
aqueducts, runways, roads, and other paved areas) and the land on which 
they are located existing within the legal boundaries on the effective 
date of this rule (see DATES). Therefore, access roads and transmission 
towers and their related infrastructure are not considered critical 
habitat. Powerline rights-of-way are excellent areas to manage and 
support butterflies as the structure and composition of vegetation for 
the Taylor's checkerspot butterfly is compatible with right-of-way 
management.
    (12) Comment: BPA believes the geographic footprints of access 
roads and transmission structures do not contain the biological 
features essential for the conservation of Taylor's checkerspot 
butterfly, since they differ in character from the open meadow space 
more generally located within the rights-of-way that provide high-
quality habitat for the butterfly. Therefore, they should not be 
designated as critical habitat.
    Our Response: The critical habitat unit referred to by BPA (Unit 4-
D) is currently occupied by Taylor's checkerspot butterfly and provides 
several of the physical or biological features essential to the 
conservation of the species. Open areas that provide flight corridors 
between patches of suitable habitat are important for Taylor's 
checkerspot butterflies. In addition to the relative quality of 
habitat, there needs to be an avenue for movement, including movement 
between areas that may not provide high-quality habitat features. 
Access roads and other areas cleared of woody vegetation can provide 
important flight corridors used by Taylor's checkerspot butterflies, 
although roads and other structures are not consistent with critical 
habitat and are specifically not included in critical habitat by text, 
as described in our response to Comment 11, above.
Department of Transportation, Federal Aviation Administration
    (13) Comment: The Federal Aviation Administration (FAA) does not 
believe habitat on airports should be considered critical for the 
recovery of either the Taylor's checkerspot butterfly or streaked 
horned lark given that airport property encompasses only 2,948 ac 
(1,193 ha) out of 21,393 ac (8,657 ha) proposed for critical habitat 
designation, or approximately 14 percent of the total proposed acreage.
    Our Response: The Act defines critical habitat as those specific 
areas within the geographical area occupied by the species, at the time 
it is listed, on which are found those physical or biological features 
essential to the conservation of the species, and which may require 
special management considerations or protection. The test for whether 
an area is essential to the conservation of the species is applied to 
areas that are not occupied by the species at the time of listing. All 
airport lands proposed for critical habitat designation for the 
streaked horned lark are currently occupied by the subspecies and 
provide the essential physical or biological features, which may 
require special management considerations or protection. Therefore, all 
airport lands proposed meet the Act's definition of critical habitat 
for the streaked horned lark. However, our analysis under section 
4(b)(2) of the Act indicates that the benefits of including airport 
lands in critical habitat are outweighed by the benefits of excluding 
these areas. Therefore, all airport lands are excluded from this final 
designation of critical habitat for the streaked horned lark. Please 
see additional discussion under Exclusions.
    We did not propose any critical habitat on airport lands for the 
Taylor's checkerspot butterfly.
Department of the Air Force
    (14) Comment: The Department of the Air Force believes the 
designation of streaked horned lark critical habitat on military 
airfields is counter to Air Force instructions and could increase the 
risk to aircrews, aircraft, and the streaked horned lark; therefore, 
they requested that military airfields be excluded from critical 
habitat designation for the lark.
    Our Response: The military airfields proposed for critical habitat 
designation for the streaked horned lark are currently occupied by the 
species. Ongoing airfield maintenance activities that are conducted at 
both the military and non-federal airports have created suitable 
habitat for the streaked horned lark that provides the essential 
physical or biological features for the subspecies. It is our 
understanding that these maintenance activities would take place 
regardless of the presence of the streaked horned lark. We are aware 
that FAA regulations required for public safety are in direct conflict 
with increasing bird populations on airports, and as discussed in our 
4(b)(2) exclusion analysis for civilian airports, we do not intend to 
focus on airfields as part of the recovery efforts for the streaked 
horned lark (see Exclusions). Section 4(a)(3)(B)(i) of the Act 
specifically states that the Secretary shall not designate critical 
habitat on Department of Defense lands if the area is subject to an 
INRMP that provides a benefit to the species for which critical habitat 
is proposed for designation. As discussed in the Exemptions section 
below, the Secretary has determined that the endangered species 
management plan for the streaked horned lark developed under JBLM's 
INRMP provides adequate protection for the subspecies on the military 
airfields. Therefore, the military airfields are not included in the 
final critical habitat designation.
    (15) Comment: The Department of the Air Force and several other 
commenters were concerned that critical habitat designations at 
airports would restrict essential activities, including military 
training and hazardous wildlife control.
    Our Response: As described above in our responses to Comments 13 
and 14, we have excluded airports from the final critical habitat 
designation for the streaked horned lark under section 4(b)(2) of the 
Act and exempted all DOD lands at Joint Base Lewis-McChord (JBLM) under 
section 4(a)(3) of the Act, so the potential effects of critical 
habitat designation are moot. However, any activity by a Federal agency 
that may affect the streaked horned lark or any other listed species at 
an airport would be subject to consultation under section 7 of the Act. 
Under section 7(a)(2) of the Act, it is the duty of all Federal 
agencies to ensure that any actions they fund, authorize, or carry out 
are not likely to jeopardize the continued existence of a listed 
species. Review under section 7 may result in some changes to an 
agency's proposed action, consistent with their mandates, to advance 
the conservation of listed species.
Department of the Army, Joint Base Lewis-McChord
    (16) Comment: The Department of the Army believes the northern 
portion of the Range 72-79 unit for Taylor's checkerspot butterfly on 
JBLM should be excluded due to the fact that this area is of lower 
quality than the remainder

[[Page 61511]]

of the proposed unit and is used extensively for off-road vehicle 
maneuvers.
    Our Response: As described in the Exemptions section of this 
document, all JBLM lands have been removed from the final designation 
of critical habitat for both species under section 4(a)(3) of the Act.
    (17) Comment: The Range 50 subunit extends beyond the current and 
previous areas occupied by Taylor's checkerspot butterfly.
    Our Response: Range 50 is a site where introduced (translocated) 
Taylor's checkerspot butterflies have been placed since 2009. The 
translocation has taken hold, the population is increasing, and 
individual butterflies are dispersing to new food plants east and west 
of Range 50; therefore we consider this area to be currently occupied 
by the subspecies. Where the butterfly becomes established, it will be 
critical to provide areas of suitable habitat for dispersing 
individuals, and to allow for the establishment of meta-population 
structure that takes place on areas sufficiently large to allow for 
some local populations to ``blink on'' and ``blink off'' over time. 
This shift is typical and follows changes to habitat as the vegetation 
suitability (structure and composition) shifts between periods of 
restoration, or in the case of JBLM, inadvertent fires that 
periodically disturb the habitat, returning it to the early seral 
condition that provides suitable habitat for the Taylor's checkerspot 
butterfly.
    (18) Comment: The Department of the Army requests that the Service 
exempt those portions of the proposed critical habitat designations for 
the Taylor's checkerspot butterfly and streaked horned lark on JBLM.
    Our Response: Under section 4(a)(3) of the Act, we are required to 
not designate any lands or other geographical areas owned or controlled 
by the Department of Defense, or designated for its use, that are 
subject to a current INRMP, if the Secretary determines that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation. We have reviewed and approved the JBLM's 
endangered species management plans (ESMP) under their INRMP for the 
Taylor's checkerspot butterfly and streaked horned lark, and 
accordingly have exempted JBLM lands from our final critical habitat 
designations. Please see Exemptions for more information.
Natural Resources Conservation Service
    (19) Comment: The Natural Resources Conservation Service (NRCS) 
believes that continuation of the current level of grazing management 
by the Colvin Ranch has resulted in healthy native prairie populations 
and will continue to provide benefits to the native prairie 
populations, which exceed benefits provided by a critical habitat 
designation. Therefore, NRCS supports the request by the Colvin Ranch 
to exclude their property from critical habitat under section 4(b)(2) 
of the Act.
    Our Response: We considered the potential exclusion of Colvin Ranch 
from the final designation of critical habitat. Our evaluation under 
section 4(b)(2) of the Act led us to the conclusion that this private 
land should be excluded from the final designation of critical habitat, 
as the benefits of exclusion outweigh the benefits of inclusion in 
critical habitat. Please see Exclusions for more information.
    (20) Comment: NRCS and another commenter recommended that we 
withdraw the proposed designation of critical habitat for the streaked 
horned lark at M-DAC Farms in Oregon because the site no longer 
provides the primary constituent elements (PCEs) identified for 
critical habitat. M-DAC Farms is a privately owned property with a 
Wetlands Reserve Program easement, which is held by NRCS. NRCS 
expressed concern that M-DAC's designation as critical habitat could 
affect the agency's ability to accomplish the wetland restoration goals 
for which the conservation easement was originally purchased on the 
site.
    Our Response: Prior to NRCS's purchase of a conservation easement 
at M-DAC, the site was a perennial rye grass farm. The goals for the 
site include restoration of 100 (40 ha) acres of seasonal wetland, over 
100 (40 ha) acres of bottomland hardwood forest, and over 300 acres 
(120 ha) of wet prairie habitat. Though streaked horned larks used the 
site in large numbers when the ground was originally cleared to prepare 
for habitat restoration, we agree with the commenter that the 
vegetation at the site has since matured and no longer provides 
suitable habitat for the streaked horned lark, with the exception of 
limited areas along a road and perhaps in the seasonal mudflats 
adjacent to the wetlands. The site may continue to provide habitat for 
a few breeding pairs of streaked horned larks; however, the long-term 
goals for the site do not include increasing the area of suitable 
habitat for streaked horned larks. The site will not be a focus of 
active recovery for the streaked horned lark, and very little of the 
601 acres (240 ha) will provide suitable habitat for the subspecies.
    We have removed M-DAC Farms from the final designation of critical 
habitat based on information we received during the public comment 
period indicating that it does not meet the definition of critical 
habitat for the streaked horned lark. The site does not provide the 
requisite physical or biological features, and therefore does not meet 
our criteria for designation.
U.S. Forest Service, Olympic National Forest
    (21) Comment: The U.S. Forest Service believes that areas within 
Olympic National Forest proposed for critical habitat designation 
should be excluded under section 4(b)(2) of the Act due to ongoing 
management for Taylor's checkerspot butterfly habitat.
    Our Response: We have worked closely with the U.S. Forest Service, 
and Taylor's checkerspot butterfly has benefitted immensely from the 
conservation actions that have been implemented on the Olympic National 
Forest. We inadvertently indicated that we may exclude Olympic National 
Forest lands from the final designation of critical habitat. However, 
such an exclusion would run counter to the Congressional intent of the 
Act (stated in sections 2(c)(1) and 7(a)(1)) that Federal agencies have 
obligations to conserve endangered and threatened species and to carry 
out programs for the conservation of endangered and threatened species. 
In consideration of the explicit congressional direction that Federal 
agencies exercise their authorities to conserve listed species, we 
expect Federal agencies to contribute to conservation through the 
designation of critical habitat. Therefore, we have not excluded any 
Federal lands from critical habitat. Please see the section Federal 
Lands for more information.

Comments From Native American Tribes

    (22) Comment: The Shoalwater Bay Tribe requested that habitat on 
their reservation be excluded from the final critical habitat 
designation for the streaked horned lark. The Tribe is currently 
working with the Service and the Corps to develop an ecological 
restoration plan for the Tribal tidelands. This restoration plan will 
focus on maintaining and protecting habitat for listed species 
(including the streaked horned lark and western snowy plover 
(Charadrius nivosus nivosus)) and coastal resources important to the 
Tribe.
    Our Response: Based on our ongoing partnership with the Tribe and 
assurance that habitat will be protected at this site, we have excluded 
the Shoalwater Bay Indian Reservation from

[[Page 61512]]

the final critical habitat designation based on our discretionary 
4(b)(2) exclusion analysis. Based on our evaluation, we found that the 
benefits of exclusion outweigh those of inclusion. See the Exclusions 
section of this document for details.

Comments From the Public

    Several commenters provided minor technical corrections or edits to 
the proposed critical habitat designation for Taylor's checkerspot 
butterfly and streaked horned lark. We have evaluated and incorporated 
this information into this final rule where appropriate to clarify the 
final critical habitat designation. In instances where the Service may 
have disagreed with an interpretation of the technical information that 
was provided, we have responded under separate comments.
    (23) Comment: One property owner in Subunit 1-D disputed the 
Service's authority to designate critical habitat on their lands for 
Taylor's checkerspot butterfly, arguing that the PCEs must be found on 
an area as a prerequisite to designation, and that the Act leaves no 
room for designation of land that may in the future contain the 
physical or biological features. The owner acknowledges that the 
property is currently unoccupied by the subspecies, but disagrees with 
the Service's conclusion that the available evidence indicates it was 
likely historically occupied by Taylor's checkerspot butterfly. The 
owner further claims that their property does not contain any of the 
specific physical or biological features that the Service has 
identified for Taylor's checkerspot butterfly at any stage of its 
development.
    Our Response: The Act provides two definitions for critical 
habitat: one applies to areas occupied by the species at the time of 
listing, the other applies to areas not occupied by the species at the 
time of listing. In the first case, the Act specifies that critical 
habitat means, ``the specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the provisions of section 4 of this Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection.'' This requirement that the physical or 
biological features be found does not apply in this particular 
situation, because the property in question is not presently occupied 
by Taylor's checkerspot butterfly. The lands in question were initially 
identified in the proposed rule as meeting our criteria for critical 
habitat under the second part of the definition of critical habitat in 
the Act, which adds that critical habitat includes, ``specific areas 
outside the geographical area occupied by the species at the time it is 
listed in accordance with the provisions of section 4 of this Act, upon 
a determination by the Secretary [of the Interior] that such areas are 
essential for the conservation of the species.'' We therefore re-
evaluated the unoccupied private property in question. We evaluated its 
context in relation to other occupied areas supporting the Taylor's 
checkerspot butterfly, and other protected areas where habitat has been 
improved sufficiently to support translocated Taylor's checkerspot 
butterflies. Based upon our analysis, we have determined the unoccupied 
property in question is not essential to the conservation of Taylor's 
checkerspot butterfly; therefore it is not included in the final 
designation.
    (24) Comment: One landowner stated that the designation of their 
property as critical habitat for Taylor's checkerspot butterfly is 
improper because the record does not contain evidence that shows 
specifically where the PCEs are located. To the contrary, they believe 
there is evidence that the property contains physical features that the 
proposed rule identifies as rendering habitat unusable for the 
butterfly. The commenter states that any designation of critical 
habitat by the Service must be limited to those areas that actually 
contain the physical or biological features essential to the 
conservation of the Taylor's checkerspot butterfly.
    Our Response: The property in question was proposed as unoccupied 
but essential critical habitat for the Taylor's checkerspot butterfly. 
As noted in various responses above, the standards for designation of 
critical habitat differ depending on whether the area in question is 
occupied at the time of listing or not. If the area is occupied at the 
time of listing, the PCEs for the species must be found on that area 
(however, the Service is not required to detail all the specific 
locations where each PCE may exist on an area proposed for 
designation). If the area is not occupied at the time of listing, it 
may be designated as critical habitat upon a determination by the 
Secretary that such area is essential for the conservation of the 
species. The reference to the presence of the essential physical or 
biological features does not appear in the definition of unoccupied 
areas, thus the commenter is incorrect in stating that the designation 
of critical habitat must be limited to those areas that contain such 
features in cases such as this where the area in question is not 
occupied by the species at the time of listing. In this case, we had 
proposed the lands in question as critical habitat believing they were 
essential to the conservation of the subspecies, based on similar 
habitats known to support Taylor's checkerspot butterfly found at other 
locations and from evidence of these habitat conditions being present 
on similar adjacent properties; the Service is particularly limited in 
specifying locations of the necessary habitat features on private 
property, where access is often not freely granted. Upon further 
examination, however, and in response to the information provided by 
the commenter, we determined that this property (located in subunit 1-D 
in the proposed rule, subunit 1-A Rocky Prairie in this document) is 
not essential to the conservation of the subspecies, and it is not 
included in the final designation.
    (25) Comment: One commenter suggested we remove the gravel pit in 
TA 7S, subunit 1-A, currently in use on JBLM, from the critical habitat 
delineated for Taylor's checkerspot butterfly. They state the gravel 
pit does not currently provide suitable habitat and would take enormous 
effort to restore to quality habitat, while the remaining extent of TA 
7S prairie is relatively intact and could more easily be restored to 
create suitable habitat.
    Our Response: It is our understanding that, in the past, Taylor's 
checkerspot butterfly was observed utilizing the puddles in the gravel 
pit. We understand the gravel pit is marginal habitat at best, but as a 
formerly occupied site containing some of the PCEs for the subspecies 
(Plantago and topographic diversity) and its location adjacent to TA 
7S, we considered that the area could potentially be restored to 
support Taylor's checkerspot butterfly (although critical habitat does 
not specifically require restoration).
    However, since the area in question is on JBLM, it has been 
exempted from the final designation. Under section 4(a)(3) of the Act, 
we are required to not designate any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to a current INRMP, if the Secretary determines 
that such plan provides a benefit to the species for which critical 
habitat is proposed for designation. We have reviewed and approved the 
JBLM ESMP for Taylor's checkerspot butterfly under the INRMP and 
accordingly have exempted any proposed critical habitat areas on JBLM 
from our final critical habitat designations under section 4(3)(a) of 
the Act. Please see the

[[Page 61513]]

Exemptions section of this document for more information.
    (26) Comment: One commenter asked the Service to consider excluding 
subunit 1-J Bald Hills, since they believe the Taylor's checkerspot 
butterfly is likely extirpated at the site and the landowner has 
committed to implementing a wildlife management plan at that site.
    Our Response: We do not disagree that the Taylor's checkerspot 
butterfly may have been extirpated from this site. Subunit 1-J Bald 
Hill was identified in the proposed rule as meeting our criteria for 
critical habitat under the second part of the definition of critical 
habitat in the Act, which states that critical habitat includes, 
``specific areas outside the geographical area occupied by the species 
at the time it is listed in accordance with the provisions of section 4 
of this Act, upon a determination by the Secretary [of the Interior] 
that such areas are essential for the conservation of the species.'' We 
were unable to consider these lands for exclusion under section 4(b)(2) 
of the Act because the Service had not received a management plan for 
this property; therefore, we were unable to assess the value of the 
conservation planning efforts being proposed or implemented on this 
private property. Without a management plan for evaluation, we have no 
potential basis for exclusion; therefore this property is included in 
the final designation of critical habitat.
    (27) Comment: One commenter recommended the Army Aviation Support 
Facility 1 (AASF1) in Salem be excluded from critical habitat 
because of the national security importance of the installation.
    Our Response: The AASF1, while it contributes to maintaining troop 
readiness for the National Guard, is not a Federal entity. This 
facility is a private/State holding with a military lease. The 
Secretary weighed the benefits of including versus excluding non-
Federal airports from critical habitat for the streaked horned lark, 
and concluded that the benefits of exclusion outweighed the benefits of 
inclusion; thus all non-Federal airport lands are excluded from the 
final designation of critical habitat (see the Exclusions section of 
this document). AASF1, being a non-Federal entity, is already excluded 
from critical habitat based on this analysis; therefore we did not 
consider the potential national security implications of the 
designation.
    (28) Comment: Several commenters suggested that the designation of 
critical habitat may act as a regulatory disincentive, and may 
discourage private landowners and others from cooperative, voluntary 
conservation efforts. Some commenters suggested that the Service pursue 
alternative forms of conservation, such as safe harbor agreements or 
habitat conservation plans. WDNR and WDFW encouraged the Service to 
fully consider the advantages and disadvantages of designating critical 
habitat where cooperative, nonregulatory approaches are in place to 
conserve the species and its habitat.
    Our Response: Section 4(a)(3)(A) of the Act requires us to 
designate critical habitat to the maximum extent prudent and 
determinable. The Act permits us to exclude areas that meet the 
definition of critical habitat only where we determine that the 
benefits of exclusion outweigh the benefits of designation. The 
regulatory consequence of critical habitat designation is the 
requirement that Federal agencies consult on actions that they may 
fund, authorize, or carry out to ensure that such actions do not result 
in the destruction or adverse modification of critical habitat. We 
recognize that in many cases there may not be a Federal nexus that 
invokes the protections afforded to designated critical habitat on non-
Federal lands, and that other instruments such as safe harbor 
agreements or habitat conservation plans have the potential to provide 
conservation measures that effect positive results for the species and 
its habitat. The conservation and recovery of endangered and threatened 
species, and the ecosystems upon which they depend, is the ultimate 
objective of the Act, and the Service recognizes the vital importance 
of voluntary, nonregulatory conservation measures in achieving that 
objective. To that end, we fully support and encourage the development 
of voluntary conservation agreements such as safe harbor agreements or 
habitat conservation plans with non-Federal landowners. Furthermore, 
where cooperative agreements are in place for the conservation of the 
species and its habitat, the Secretary gives full consideration to the 
relative benefits of excluding those lands from the final critical 
habitat designation, provided such exclusion would not result in the 
extinction of the species, in accordance with section 4(b)(2) of the 
Act.
    (29) Comment: One commenter suggested that the Service pursue 
conservation programs to provide economic incentives to private 
landowners to create or maintain suitable habitat for the streaked 
horned lark on agricultural lands, especially grass seed farms.
    Our Response: We appreciate the suggestion, and we will consider 
this and other creative ideas for achieving the conservation of the 
subspecies as we develop the recovery plan for the streaked horned 
lark. Such conservation measures are outside of the scope of the 
present rulemaking, however, which is restricted to the identification 
of those areas that meet the definition of critical habitat for the 
streaked horned lark.
    (30) Comment: One commenter stated the proposal fails to address 
private lands, which are likely to be key habitat for the persistence 
of the streaked horned lark. Positive incentives need to be proposed 
that will lead to recovery of the streaked horned lark.
    Our Response: In our proposed rule, we recognize the importance 
that private agricultural lands will play in the conservation and 
recovery of streaked horned lark, particularly in the Willamette Valley 
of Oregon (April 3, 2013; 78 FR 20074). However, we additionally 
explain that we cannot designate critical habitat in the agricultural 
fields in the Willamette Valley, most of which are privately owned, 
because we are unable to determine which areas within the large 
agricultural matrix in the valley will meet the definition of critical 
habitat at any time. Critical habitat, once designated, is static on 
the landscape until such time as it may be revised through an 
additional rulemaking process. Agricultural habitats on private lands 
can provide appropriate habitat conditions for streaked horned lark, 
but these conditions (large, open landscape context; low-stature 
vegetation; bare ground) occur unpredictably and vary in location from 
year to year. Because of the unpredictable and ephemeral nature of 
streaked horned lark habitat on private agricultural lands, we have no 
basis for concluding that any specific areas are essential for 
conservation, because we have no way of knowing where or how long the 
appropriate conditions will persist. Therefore, we have not designated 
critical habitat for the streaked horned lark on private lands in the 
Willamette Valley.
    As noted earlier, the consideration of recovery instruments such as 
incentive programs is outside of the scope of the present rulemaking, 
which is limited to the identification of those areas that meet the 
definition of critical habitat for the streaked horned lark.
    (31) Comment: One commenter stated that the Service failed to 
designate critical habitat on private agricultural lands in the 
Willamette Valley, despite the fact that a majority of breeding and 
wintering streaked horned larks rely on those areas. The commenter 
disagreed

[[Page 61514]]

with the Service's position that it was unable to determine which areas 
within the large agricultural matrix in the valley will meet the 
definition of critical habitat at any time. The commenter pointed to 
the Service's designation of large areas of critical habitat for the 
northern spotted owl and marbled murrelet across millions of acres of 
forest even though only a portion of the habitat is suitable for either 
bird at any time. The commenter recommended that the Service take a 
similar approach for streaked horned larks on agricultural lands in the 
Willamette Valley, recognizing that only a portion of those lands will 
be suitable at any given time.
    Our Response: The commenter's comparison to the critical habitat 
designations for the northern spotted owl (Strix occidentalis caurina) 
and marbled murrelet (Brachyramphus marmoratus) is not an apt one. The 
northern spotted owl and marbled murrelet rely primarily on Federal 
lands for their conservation, and their old-growth habitat takes 
decades to develop on those lands. In contrast, the habitat of the 
streaked horned lark can develop and disappear on farm lands in the 
space of a few weeks, and its appearance typically depends on human 
intervention, not natural processes. Designating large swaths of the 
Willamette Valley as critical habitat would not provide any useful 
information regarding the presence of the streaked horned lark or its 
habitat to landowners. We maintain that our concern about the ability 
to identify critical habitat for the streaked horned lark on private 
farm lands is valid, and the situation is not analogous to the critical 
habitat designations of other listed species found in old-growth 
forests.
    (32) Comment: One commenter stated the primary constituent elements 
(PCEs) and characteristics for habitat suitability for the streaked 
horned lark are fairly specific, yet noted habitat will change over 
time, and perhaps be suitable for only a limited period of time due to 
vegetation growth. Therefore, they asked if critical habitat 
designations will be time-limited or adjusted periodically.
    Our Response: Critical habitat is a designation that does not vary 
seasonally or over time, and is only subject to change through a 
rulemaking process to revise the designation. This relatively static 
nature of critical habitat is the very reason that we find we cannot 
identify critical habitat on the unpredictable and ephemeral habitats 
used by streaked horned larks in the agricultural areas of Oregon.
    (33) Comment: One commenter recommended that documented occupancy 
in any season during any life stage be the basis for determining 
critical habitat for the streaked horned lark. They believe the 
Service's definition of occupancy as occurrence only during the 
breeding season is too narrow. Occupancy should include documented 
presence of the subspecies outside of the breeding season as well. Uses 
of non[hyphen]breeding areas are important to the subspecies' survival, 
such as areas used for foraging and overwintering, as these sites may 
also become breeding sites in the future.
    Our Response: We do not know of any areas that are used only for 
wintering (most sites that are used during the winter are also used 
during the breeding season); however, we have modified our definition 
of occupancy to include usage by streaked horned larks during any 
season.
    (34) Comment: One commenter stated the economic and social factors 
driving conversion of Willamette Valley farmland to vineyards are 
likely to continue in the foreseeable future, and may accelerate as 
large California wineries are reportedly investing in Willamette Valley 
farmlands as a hedge against global climate change. As a result, the 
likelihood of a changing agricultural landscape should be recognized in 
the listing and critical habitat designation for the streaked horned 
lark.
    Our Response: The Service does not consider the acquisition of 
lands by the viticulture industry to be a significant factor in the 
reduction of breeding and nesting habitat for the streaked horned lark. 
We contacted Dr. William Boggess at Oregon State University's Oregon 
Wine Research Institute, and he described the ideal lands for 
viticulture as being 300 to 800 feet (ft) (91 to 244 meters (m)) in 
elevation, on a slope with a southern or western aspect. These optimal 
viticulture soils are shallow and nutrient poor, above the flood plain 
or on eroded rocky soils. These ideal conditions for grapes are not 
similar in characteristic to the primary constituent elements for 
streaked horned lark habitat. As such, we do not consider viticulture a 
factor affecting habitat loss for the streaked horned lark.
    (35) Comment: One commenter stated that it is important to 
designate critical habitat on Willamette Valley agricultural lands to 
``ensure that habitat is not converted to uses that will never be 
suitable for streaked horned lark, such as row crops or urban 
development, but rather are maintained as agriculture that at least 
part of the time supports streaked horned lark.''
    Our Response: Critical habitat designation only has a regulatory 
effect in instances where there is a Federal action (i.e., a Federal 
agency funds, authorizes, or carries out an action) that may affect 
designated critical habitat; this action is then reviewed through 
interagency consultation under section 7 of the Act between the Federal 
action agency and the Service. Designation of critical habitat on 
private lands will have no effect on a private landowner's ability to 
convert to another crop or to sell out completely if there is no 
Federal action involved. Contrary to the commenter's perception, 
critical habitat designation does not create a wildlife preserve or 
require any sort of response or management from a private landowner.
    (36) Comment: We received multiple conflicting comments suggesting 
that connectivity both is and is not a necessary consideration when 
designating critical habitat for the streaked horned lark.
    Our Response: We rely on the expertise of our Service staff 
biologists, as well as the peer review of our proposed rule by species 
experts who either support or refute our assertions. In this instance, 
both our staff biologists and our peer reviewers support the need for 
connectivity of critical habitat units to ensure the potential for 
genetic exchange and colonization by streaked horned larks.
    (37) Comment: Several commenters expressed great concern about the 
implications to public safety from designating critical habitat for the 
streaked horned lark at airports, and requested that we exclude 
airports from the critical habitat designation due to safety concerns.
    Our Response: Although we do not see a direct connection between 
the designation of critical habitat, which results in the requirement 
that Federal action agencies consult with us on activities that involve 
Federal funding, authorization, or implementation, and public safety, 
all airport lands have been excluded from our designation under section 
4(b)(2) of the Act for other reasons. Please see additional discussion 
under Exclusions.
    (38) Comment: Several commenters stated that critical habitat 
should not be designated for the streaked horned lark at airports, 
because airports are not suitable as sites for recovery of the 
subspecies.
    Our Response: We concur with these commenters that airports should 
not be focal points for streaked horned lark recovery. In section 3 of 
the Act, ``critical habitat'' is defined, in part, as the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which

[[Page 61515]]

are found those physical and biological features essential to the 
conservation of the species. ``Conservation'' is further defined in the 
Act as the use of all methods and procedures which are necessary to 
bring any endangered or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. These 
definitions clearly demonstrate that the purpose of critical habitat 
designation is to identify locations for recovery efforts for listed 
species. Airport managers have expressed great concern about the 
implied recovery purpose of critical habitat units; management to 
encourage increasing populations of birds at airports is untenable to 
airport managers. Airports unquestionably provide important habitat for 
streaked horned larks, and some of these sites have demonstrated the 
ability to sustain small, persistent populations of streaked horned 
larks; indeed, without airports there would be very few sites 
consistently managed to maintain the habitat conditions used by the 
streaked horned lark within the needed landscape context. Therefore, 
although airports clearly provide a benefit to the subspecies, and will 
likely continue to provide important habitat for small populations, 
recovery will require restoration and management of new sites that can 
sustain increasing populations of streaked horned larks in the long 
term, in more natural locations appropriate for conservation and that 
do not pose a heightened risk of mortality to the streaked horned lark 
from airstrikes. We have excluded civilian (non-Federal) airports from 
critical habitat designation for the reasons outlined in the Exclusions 
section of this document.
    (39) Comment: One commenter expressed concern that our proposed 
designation of critical habitat for the streaked horned lark relied 
almost exclusively on public lands. This commenter believes that 
private lands in the Willamette Valley will hold the key to the 
streaked horned lark's survival.
    Our Response: As we stated above, we do not yet know which 
unoccupied sites will be essential for the recovery of the streaked 
horned lark, and the unpredictable and highly variable occurrence of 
PCEs for streaked horned larks on private lands in the Willamette 
Valley precludes our ability to designate critical habitat in that 
area. The public lands included in the critical habitat designation 
(State Parks and the Willapa National Wildlife Refuge on the Washington 
coast; three units of the Willamette Valley National Wildlife Refuge 
Complex in Oregon (WVNWRC)) have a clear conservation mandate and are 
already working to conserve streaked horned lark populations on those 
sites. Many other sites will likely be needed to achieve recovery, but 
again, we do not yet know where those sites will be. As we begin to 
develop a recovery plan, and identify goals for population numbers and 
distribution of the streaked horned lark, we will identify areas to 
focus on for recovery. These areas will undoubtedly include many areas 
on private agricultural lands, for which we will seek partnerships with 
willing landowners to manage for streaked horned lark conservation. 
Finally, we note that the regulatory effect of critical habitat is 
limited to actions with a Federal nexus-activities that are funded, 
authorized, or carried out by a Federal agency. The conservation value 
of critical habitat is thus often the greatest on Federal lands, which 
always have a Federal nexus. The designation of critical habitat has no 
regulatory effect on private lands lacking a Federal connection. 
Critical habitat designation itself does not prevent development or 
alteration of the land, create a wildlife preserve, or require any sort 
of response or management from a private landowner.
    (40) Comment: One commenter stated that Ankeny National Wildlife 
Refuge in the Willamette Valley is not an appropriate site for 
designation of critical habitat for the streaked horned lark. The 
commenter asserted that, ``. . . Ankeny is not recognized among 
knowledgeable local birders as having any significant population'' of 
streaked horned larks, and is unlikely to serve as an ``anchor site'' 
for the bird's recovery.
    Our Response: Recent surveys have found up to five breeding pairs 
of streaked horned larks at Ankeny; therefore the site is occupied at 
the time of listing, and the refuge clearly provides the essential 
physical or biological features for the subspecies. Therefore, it meets 
the definition of critical habitat for the streaked horned lark. The 
WVNWRC included conservation measures in its comprehensive conservation 
plan for the streaked horned lark at each of the three refuge units, 
including Ankeny. We believe that Ankeny provides consistently 
available habitat for a small population of breeding streaked horned 
larks, and future management may increase the population. The WVNWRC is 
Federal land and has a clear conservation mandate, and so makes a good 
choice for critical habitat designation.
    (41) Comment: One commenter questioned our proposed designation of 
critical habitat for the streaked horned lark on the three units of the 
Willamette Valley National Wildlife Refuge Complex. These refuges were 
originally established as habitat for wintering dusky Canada geese 
(Branta canadensis occidentalis), and the commenter stated that the 
refuges cannot successfully manage for the two bird species at once.
    Our Response: Research at the three refuge units has shown that 
streaked horned larks breed successfully in fields that have been 
heavily grazed by wintering geese (Moore 2009, p. 12). The WVNWRC has a 
long history of managing for wintering geese, and has recently updated 
its comprehensive conservation plan to integrate streaked horned lark 
conservation into the goals for the three refuge units. We believe that 
the WVNWRC provides excellent habitat for streaked horned larks, and 
adaptive management of the sites will likely increase the numbers of 
streaked horned larks breeding at each of the refuge units.
    (42) Comment: Several commenters criticized the Service's failure 
to designate critical habitat on many sites that have had recent 
detections of streaked horned larks, primarily on privately owned 
agricultural lands in the Willamette Valley, and a few locations in the 
lower Columbia River. The commenters are concerned that the current 
critical habitat designation will not be adequate to recover the 
subspecies.
    Our Response: Streaked horned larks evolved to use a shifting 
mosaic of very early successional habitats, for which the primary 
requirement was the appropriate landscape context (large, relatively 
flat, and wide open). The streaked horned lark is unusual among species 
in that it does not now occur on remnants of its native habitats; 
indeed, most of the streaked horned lark's naturally occurring habitats 
no longer exist because the natural processes that historically created 
those early successional habitats, such as flooding and wildfire, no 
longer operate on the landscape. With the exception of sites on the 
Washington coast, where natural disturbance processes still operate to 
create habitat, nearly all of the sites currently used by streaked 
horned larks have been inadvertently created by humans and are 
industrial in nature. These sites are agricultural landscapes, dredge 
spoil deposition sites, and airports. These ``working landscapes'' are 
managed with little or no consideration for streaked horned lark 
conservation, and lark use of these sites seems to be highly 
opportunistic. Although streaked horned larks currently occur on these 
sites, given their intensive industrial uses, these

[[Page 61516]]

locations may have limited potential to support increased populations 
of streaked horned larks in the future, and may be inappropriate sites 
on which to establish a recovery program for the subspecies. For the 
streaked horned lark, we do not have obvious core sites of pristine, 
natural habitats on which to focus recovery efforts. In essence, the 
streaked horned lark persists in the Pacific Northwest, even though its 
natural habitats are all but gone.
    The sites that streaked horned larks currently use are highly 
fragmented and scattered. Developing a recovery program for the 
streaked horned lark will require identifying areas that have the 
essential landscape characteristics and which can be managed for 
conservation and recovery of the subspecies. Few of these areas have 
been determined thus far. In the Willamette Valley, large landscapes 
managed for native prairies will be needed, although it is very likely 
that some ``working lands'' in agricultural production will also be 
identified as interested landowners step up to implement practices to 
protect the streaked horned lark on their lands.
    Critical habitat is defined in section 3 of the Act as: (1) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (a) Essential to the conservation 
of the species, and (b) Which may require special management 
considerations or protection; and (2) Specific areas outside the 
geographical area occupied by the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. We are not designating critical habitat on every small 
and fragmented location recently known to be occupied or potentially 
occupied by streaked horned larks, because we do not consider all of 
these sites to meet the definition of critical habitat for the streaked 
horned lark. That is, we do not consider all of these sites to provide 
physical or biological features essential to the conservation of the 
species, because not all of these sites have the potential to make a 
substantial contribution to the recovery of the species. In addition, 
section 3(5)(C) of the Act specifically mandates that, except in those 
circumstances determined by the Secretary of the Interior, critical 
habitat shall not include the entire geographical area which can be 
occupied by the listed species. We are not suggesting that the sites 
currently used by streaked horned larks are unimportant; rather, 
recovery is more likely to be successful and cost-effective if we can 
focus our resources on larger, more permanent sites. Therefore, it is 
these larger, more permanent occupied sites that we consider to provide 
the physical or biological features that are truly essential to the 
conservation of the subspecies, and these are the areas that we are 
designating as critical habitat at this time. We do not contend that 
these sites will necessarily be sufficient to recover the subspecies, 
nor does the Act require that they do so. In the future, when we have 
better information on sites that will attract and support large, stable 
populations of streaked horned larks, and that can be managed for the 
long-term conservation of the subspecies, we may revisit this critical 
habitat designation, as appropriate.
    (43) Comment: One commenter recommended re-drawing the boundaries 
of proposed streaked horned lark critical habitat at Portland 
International Airport to exclude paved runways, taxiways, and runway 
safety areas.
    Our Response: All non-Federal airport lands are excluded under 
section 4(b)(2) of the Act from this final designation of critical 
habitat for the streaked horned lark; please see additional discussion 
under Exclusions. For the lands that we are designating as critical 
habitat, when determining critical habitat boundaries, we make every 
effort to avoid including developed areas such as lands covered by 
buildings, pavement (such as roads), and other structures because such 
lands lack the essential physical or biological features for streaked 
horned larks. Any such lands have been excluded by the text of this 
rule and are not included in critical habitat.
    (44) Comment: One commenter stated the PCE requiring only a minimum 
of 16 percent open ground would not support occupation of the known 
nesting sites for streaked horned larks on dredge sand islands in the 
Columbia River and may only be relevant for other sites (such as the 
Puget Prairie or Willamette Valley).
    Our Response: The PCE identifying 16 percent minimum open ground is 
a description of the habitat conditions, or physical or biological 
features, essential to the conservation of the streaked horned lark, 
not a management requirement. Based on research studies, streaked 
horned larks need areas with a minimum of 16 percent bare ground. Most 
of the currently occupied sites have much more bare ground than this, 
and many of the dredge deposit sites have more than 60 percent bare 
ground. The habitat description is based on research studies across the 
range of the subspecies. We do not expect land owners to manage sites 
for streaked horned larks to criteria that represent the minimum 
observed in the field.
    (45) Comment: One commenter suggested the limited number of 
territories and nesting pairs observed annually at Sanderson Field 
indicates this area provides only marginal habitat for the streaked 
horned lark and should not be designated as critical habitat.
    Our Response: The fact that streaked horned larks have consistently 
nested at Sanderson Field is an indication that the airport does 
provide suitable habitat. There are many occupied sites in Washington 
and throughout the range of the subspecies where the number of nesting 
territories is low (fewer than 10), and this is not considered an 
indication of marginal habitat. The smaller size of Sanderson Field, 
compared to the Olympia Airport, and the rapidly declining population 
of streaked horned larks in Washington are contributing factors to the 
number of territories at the Shelton Airport and other locations. It 
should be noted that Sanderson Field is the northernmost location 
within the current range of the subspecies where the streaked horned 
lark nests. As such, this particular airport serves an important role 
in maintaining the distribution of the subspecies. However, as 
described in the Exclusions section of this document, airport lands 
have been excluded from critical habitat for the streaked horned lark.
    (46) Comment: One commenter was concerned that the designation of 
critical habitat for the streaked horned lark at certain locations 
within the Columbia River would attract streaked horned larks to 
adjacent or nearby areas not proposed for designation and could limit 
operational and development activities of the Port of Kalama in these 
areas.
    Our Response: Sandy Island is currently occupied habitat, and the 
streaked horned lark has already been documented at the Port of 
Kalama's upland dredge deposit site. The designation of critical 
habitat on Sandy Island, or other islands in the Columbia River, will 
not affect existing streaked horned lark movements or limit operational 
and development activities on port property. The fact that the streaked 
horned lark has been documented on the Port of Kalama is an indication 
that the upland dredge deposit site is currently suitable habitat. 
Under the listing (see the final rule to list the Taylor's checkerspot 
butterfly and streaked horned lark published elsewhere in today's 
Federal Register), the port will be subject to take prohibitions under 
section 9 of the Act for activities conducted by the port that

[[Page 61517]]

adversely impact streaked horned larks, regardless of whether critical 
habitat is designated on Sandy Island. We recommend that the Port of 
Kalama work with the Service on the development of a habitat 
conservation plan under section 10 of the Act for activities that 
affect the subspecies or suitable habitat, including upland disposal 
and use of dredge material.

Comments on Economic Analysis

    Please note that the draft economic analysis (DEA) for the proposed 
designation addressed multiple species proposed for listing that occupy 
prairie habitats of Oregon and Washington, and included an analysis of 
the potential economic impacts stemming from the proposed critical 
habitat designation for Taylor's checkerspot butterfly, streaked horned 
lark, and four subspecies of the Mazama pocket gopher (Thomomys mazama 
ssp.). The proposed listing and critical habitat for the Mazama pocket 
gophers are addressed in separate rulemakings.
    (47) Comment: Several commenters took issue with the 
characterization of the baseline in the DEA concerning airport 
operations. For example, one commenter asserted that critical habitat 
may engender incremental impacts even when the streaked horned lark is 
present. In addition, the comment notes that favorable habitat at 
airports, containing the PCEs, is the result of voluntary activities by 
airport managers, which could be discontinued (i.e., as a result of 
lost Federal funding), in which case the PCEs could disappear, the 
sites would become unoccupied, and any subsequent consultation would 
result solely from critical habitat.
    Our Response: The U.S. Office of Management and Budget's (OMB) 
guidelines for best practices concerning the conduct of economic 
analysis of Federal regulations direct agencies to measure the costs of 
a regulatory action against a baseline, which it defines as the ``best 
assessment of the way the world would look absent the proposed 
action.'' 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 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, 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 streaked horned lark will be subject to a 
variety of Federal, State, and local protections throughout most of its 
ranges, due to its listed status under the Act and regardless of the 
designation of critical habitat.
    We note that significant debate has occurred regarding whether 
assessing the impact of critical habitat designations using this 
baseline approach is appropriate, with several courts issuing divergent 
opinions. Courts in several parts of the country, including the U.S. 
Court of Appeals for the Ninth Circuit, which has jurisdiction in 
Washington, Oregon, and California, have ruled that the decision about 
whether to exclude areas from critical habitat should be based on the 
incremental impacts of the rule. The Ninth Circuit cases were appealed 
to the Supreme Court, which declined to hear them.
    (48) Comment: Several commenters asserted that the DEA does not 
fully account for, or sufficiently acknowledge, potential impacts to 
airport development activities, revenues, and related opportunity 
costs.
    Our Response: During the preparation of the DEA, its authors 
reached out to management officials at each of the seven airports 
affected by the proposed designations and collected available planning 
documents. Chapter 3 of the DEA discusses a variety of airport-related 
projects and maintenance activities that would result in section 7 
consultation, and considers how these consultations might be affected 
by the presence of critical habitat. Based on the best available 
information and the incremental effects memorandum prepared by the 
Service, the DEA concludes that, for areas that are occupied by the 
subspecies, critical habitat designation will not result in incremental 
impacts beyond administrative costs incurred to consider adverse 
modification during consultation.
    (49) Comment: The Port of Portland states that their economic 
assessment concerning this proposed designation was not included in the 
DEA, and notes certain other issues, including: a clarification 
concerning airport development activities that receive funding through 
the U.S. Department of Transportation (USDOT) FAA; a typographical 
error regarding unit labeling; and an assertion that the estimated 
number of consultations is inaccurate.
    Our Response: The identified economic assessment was reviewed and 
utilized during the development of the DEA, and is cited in chapter 3 
of the report. In the final economic analysis (FEA), we added 
clarification concerning the USDOT FAA-funded source and fixed the unit 
numbering error. In addition, further detail concerning the number of 
consultations and analytic timeframe for the Port of Portland has been 
added to the FEA.
    (50) Comment: One submission expressed concern that critical 
habitat designation will constrain dredging activities and alter 
placement sites related to the Port of Kalama.
    Our Response: The DEA discusses potential effects of critical 
habitat designation on dredging activities, including those related to 
the Port of Kalama and Sandy Island. As noted in chapter 3 of the DEA, 
dredging activities occur on 8 of the 10 islands proposed for streaked 
horned lark critical habitat in the Columbia River. Deposition of 
dredge materials can create flat, open habitat that streaked horned 
larks prefer, but dredging activities that occur during the nesting 
season have the potential to increase individual mortality and cause 
nest failure. Based on the review of historical and projected 
conservation actions for the streaked horned lark concerning dredging 
activities, and given that these areas are considered occupied by the 
subspecies, the analysis concluded that critical habitat will not 
result in incremental economic impacts to dredging activities, beyond 
the administrative costs associated with consultation with the Service.
    (51) Comment: Two commenters expressed concern that the listing and 
designation of critical habitat for the Taylor's checkerspot butterfly 
and Mazama pocket gophers (which will be addressed in separate rules) 
may constrain gravel mining activities in Pierce and Thurston Counties, 
Washington. One comment expressed specific concern about impacts to 
planned gravel extraction in Subunit 1-D Rocky Prairie.
    Our Response: The proposed critical habitat acreage in these areas 
is considered to be occupied by at least one of the prairie species 
noted. As noted in the DEA and related incremental effects memorandum, 
should the six subspecies be formally listed under final rules, their 
presence within critical habitat will require implementation of certain 
conservation efforts to avoid jeopardy concerns. In occupied critical 
habitat, consultation would therefore consider not only the potential 
for jeopardy to the continued existence of the species, but also the 
potential for destruction or adverse modification of critical habitat. 
Because the ability of these subspecies to exist is very closely tied 
to the quality of their

[[Page 61518]]

habitats, significant alterations of their occupied habitat may result 
in jeopardy as well as adverse modification. Therefore, we anticipate 
that section 7 consultation analyses will likely result in no 
difference between recommendations to avoid jeopardy or adverse 
modification in occupied areas of habitat. The analysis concludes that 
incremental economic impacts of critical habitat designation will be 
limited to additional administrative costs of additionally considering 
critical habitat as part of section 7 consultation to the Service, 
other Federal agencies, and private third parties. Note, however, that 
additional detail concerning potential gravel mining activities in 
proposed critical habitat, along with related consultation 
requirements, has been added to the FEA.
    In addition, the specifically identified subunit, Subunit 1-D Rocky 
Prairie, was proposed as unoccupied critical habitat for Taylor's 
checkerspot butterfly. This subunit has been removed from the final 
designation upon a determination that this area is not essential to the 
conservation of the species.
    (52) Comment: One commenter stated that, in the DEA, economic costs 
are overstated and that many economic benefits have not been included 
in the analysis. Specifically, the comment asserted that there is no 
basis to determine that the designation of critical habitat for the 
streaked horned lark will have an additional economic impact beyond the 
listing itself, and notes that birdwatching and related livability 
amenities due to outdoor opportunities are important to Portland's 
social vitality.
    Our Response: A primary conclusion of the economic analysis is 
that, in areas of proposed designation occupied by the species, limited 
incremental impacts will occur beyond those administrative costs 
associated with consultation. Further, in chapter 3, the DEA does 
provide a qualitative discussion of potential ancillary benefits 
(including recreational use) attributable to the conservation of these 
species.
    (53) Comment: One commenter stated that the DEA dismisses the need 
to describe impacts in economic terms and instead focuses on biological 
benefits only, citing paragraph 4 in the Executive Summary of the DEA 
as an example.
    Our Response: This comment misconstrues the language of this 
paragraph. The DEA endeavors to provide a full rendering of the 
designation's potential economic impacts, including defining a baseline 
and assessing incremental effects, both direct and indirect. In the 
context of weighing these costs against the ``benefits'' of the 
designation, however, the benefits component focuses on the primary 
``biological'' benefit related to species conservation, and puts less 
emphasis on ancillary, or secondary, benefits flowing from species 
conservation (e.g., improved environmental quality yielding human 
health or recreational use benefits).
    (54) Comment: One commenter noted that, concerning potential 
ancillary benefits of the designation, airports are secure facilities 
with limited and controlled public access. Thus, none of the potential 
ancillary benefits cited in the DEA, such as recreational 
opportunities, is relevant to the airport environment.
    Our Response: We agree that, given the security environment at 
airports, human use benefits are limited at airports. We note, however, 
that the direct biological benefit of species conservation may still be 
attributable to airport locations, and that certain ancillary benefits 
(improved environmental quality due to landscape management) may also 
still accrue. As previously mentioned, all non-Federal airport lands 
are excluded from this final designation of critical habitat for the 
streaked horned lark. Please see additional discussion under 
Exclusions.
    (55) Comment: One commenter expressed concern that, even when care 
is taken in the review of projects and actions that are unlikely to 
harm the long-term viability of the Taylor's checkerspot butterfly, 
streaked horned lark, and Mazama pocket gopher, allowance of new 
development could leave the community subject to potential lawsuits.
    Our Response: Chapter 2 of the DEA discusses the issue of indirect 
impacts potentially related to critical habitat, including the 
triggering of other State and local laws, time delays, regulatory 
uncertainty, and stigma. Within this context, the effect of third-party 
litigation can represent an indirect effect. We note, however, that 
forecasting the likelihood of third-party litigation and related 
project delays or other constraints is considered too speculative for 
the economic analysis. In addition, the DEA attributes most economic 
effects to the presence of the species and jeopardy concerns, as 
opposed to the designation of critical habitat.

Summary of Changes From Proposed Rule

    We are designating a total of 1,941 ac (786 ha) of critical habitat 
for the Taylor's checkerspot butterfly and a total of 4,629 ac (1,873 
ha) of critical habitat for the streaked horned lark. We received a 
number of site-specific comments related to critical habitat for these 
two subspecies; completed our analysis of areas considered for 
exclusion under section 4(b)(2) of the Act or for exemption under 
section 4(a)(3) of the Act; reviewed the application of our criteria 
for identifying critical habitat across the range of these two 
subspecies to refine our designations; and completed the final economic 
analysis of the designation as proposed. We fully considered all 
comments from the public and peer reviewers on the proposed rule and 
the associated economic analysis to develop this final designation of 
critical habitat for the Taylor's checkerspot butterfly and streaked 
horned lark. This final rule incorporates changes to our proposed 
critical habitat based on the comments that we received and have 
responded to in this document, and considers completed final management 
plans to conserve the subspecies under consideration. Although we 
received additional distribution data for the streaked horned lark on 
agricultural lands in the Willamette Valley, this information did not 
necessitate the designation of additional critical habitat. Because of 
the fragmented and ephemeral nature of those areas on private lands, we 
determined they do not meet our definition of critical habitat for the 
streaked horned lark.
    We have made some technical corrections to the document, and our 
final designation of critical habitat reflects the following changes 
from the proposed rule:
    (1) We added one additional adult nectar resource to the list of 
plants in the primary constituent elements for Taylor's checkerspot 
butterfly: wild strawberry (Fragaria virginiana).
    (2) Based on our analysis of the total area necessary for the 
conservation of Taylor's checkerspot butterfly in Washington and 
Oregon, we determined that approximately 447 ac (181 ha) of the 
unoccupied critical habitat that we proposed are not essential for the 
conservation of the subspecies based on comments and information 
received. This finding of ``not essential'' did not result in the 
removal of entire subunits for the Taylor's checkerspot butterfly, as 
it did for the streaked horned lark (see below), but did reduce the 
area of several subunits for the subspecies, both in Washington and 
Oregon.
    Our analysis of the proposed critical habitat for the streaked 
horned lark determined that two of proposed critical habitat subunits 
(in their entirety) do not meet the definition of critical habitat; 
therefore these subunits were removed from the final designation. The

[[Page 61519]]

first of these two critical habitat subunits was identified as subunit 
3-J in the proposed critical habitat rule and is commonly known as 
Coffeepot Island. This small island of approximately 25 ac (10 ha) in 
the Columbia River is not occupied by the streaked horned lark, and 
although it presently supports some of the physical or biological 
features utilized by the lark, without ongoing management it will not 
maintain these characteristics into the foreseeable future. (Please 
note, in this final rule, the critical habitat units have been 
renumbered sequentially and the designation of critical habitat subunit 
3-J is now assigned to Whites/Brown Island (see Table 2)). As we find 
it unlikely that Coffeepot Island will provide suitable habitat for the 
streaked horned lark in the future, we determined that this subunit is 
not essential to the conservation of the subspecies, and does not meet 
our definition of critical habitat.
    In the second case, we determined that the subunit identified as 4-
G in the proposed critical habitat rule, M-DAC Farms in Oregon, does 
not meet our definition of critical habitat for the streaked horned 
lark. Although occupied at the time of listing, the PCEs at this site 
are in a state of steady decline due to a conservation agreement that 
focuses on restoring the landscape to wetland, a vegetative structure 
unsuitable to maintaining habitat for the streaked horned lark. This 
site is therefore unlikely to contribute to the recovery of the 
streaked horned lark, and as it lacks the PCEs for the streaked horned 
lark, it does not meet our definition of critical habitat for the 
subspecies. M-DAC Farms (601 ac (243 ha) was therefore removed from the 
final designation of critical habitat for the streaked horned lark.
    (3) The Service approved the DOD's endangered species management 
plans (ESMPs) under the INRMP for military installation JBLM for the 
Taylor's checkerspot butterfly and streaked horned lark. The ESMPs are 
species-specific, and contain site-specific conservation actions that 
will be implemented as a component of the larger INRMP for the 
installation. The Secretary has exempted lands at JBLM from critical 
habitat under section 4(a)(3) of the Act, based on the approval of 
these ESMPs. Lands exempted include approximately 2,324 ac (940 ha) for 
the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the 
streaked horned lark on JBLM. The area exempted represents 
approximately 34 percent of the area proposed as critical habitat for 
Taylor's checkerspot butterfly and 23 percent of the area proposed as 
critical habitat for the streaked horned lark. For Taylor's checkerspot 
butterfly, the exemption of military lands from critical habitat 
resulted in the removal of three critical habitat subunits within Unit 
1 and sequential renumbering of the remaining subunits designated in 
this final rule (see Table 1). Training Area 7 South (TA7S), 91st 
Division Prairie, and 13th Division Prairie were numbered 1-A, 1-B, and 
1-C in the proposed rule, respectively. For the streaked horned lark, 
the exemption of military lands combined with the exclusion under 
section 4(b)(2) of the Act for non-Federal airports (see below) 
resulted in the removal of Unit 1 in its entirety. Subunits in Unit 4 
for the streaked horned lark were sequentially renumbered due to the 
exclusion of non-Federal airports in Oregon (see Table 2 and Exclusions 
section of this document).
    (4) We carefully considered the benefits of inclusion and the 
benefits of exclusion of specific areas in proposed critical habitat 
under section 4(b)(2) of the Act, particularly in areas where 
management plans specific to the Taylor's checkerspot butterfly and 
streaked horned lark are in place, and where the maintenance and 
fostering of important conservation partnerships were a consideration. 
Based on the results of our analysis, we are excluding approximately 
2,184 ac (885 ha) from our final critical habitat designation for 
Taylor's checkerspot butterfly and 4,114 ac (1,664 ha) for the streaked 
horned lark (see Exclusions, below). For Taylor's checkerspot 
butterfly, two entire subunits of proposed critical habitat in Oregon 
were excluded based on the Benton County Prairie Species HCP; these 
include Fort Hoskins Historic Park (proposed critical habitat subunit 
number 4-1) and Beazell Memorial Forest (proposed critical habitat 
subunit number 4-2). The area excluded represents approximately 32 
percent of the area proposed as critical habitat for the Taylor's 
checkerspot butterfly and 32 percent of the area proposed as critical 
habitat for the streaked horned lark.
    Exclusion from critical habitat should not be interpreted as a 
determination that these areas are unimportant, that they do not 
provide physical or biological features essential to the conservation 
of the species (for occupied areas), or are not otherwise essential for 
conservation (for unoccupied areas); exclusion merely reflects the 
Secretary's determination that the benefits of excluding those 
particular areas outweigh the benefits of including them in the 
designation.
    Due to these changes in our final critical habitat designation, we 
have updated our subunit numbering, descriptions, and critical habitat 
maps, all of which can be found later in this document. This final 
designation of critical habitat represents a reduction of 4,934 ac 
(1,996 ha) from our proposed critical habitat for the Taylor's 
checkerspot butterfly and 7,530 ac (3,047 ha) for the streaked horned 
lark, for the reasons detailed above. Additional minor differences 
between proposed and final critical habitat for both subspecies on the 
order of roughly 20 ac (8 ha) beyond those detailed above are due to 
minor boundary adjustments and simple rounding error.

Critical Habitat

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the Taylor's 
checkerspot butterfly and streaked horned lark in this section of the 
rule.

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) essential to the conservation of the species, and
    (b) which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies

[[Page 61520]]

ensure, in consultation with the Service, that any action they 
authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow the government or 
public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. Our regulations direct us to designate critical habitat in 
areas outside the geographical area occupied by a species only when a 
designation limited to its range would be inadequate to ensure the 
conservation of the species. Furthermore, except in certain 
circumstances determined by the Secretary, critical habitat is not to 
include the entire geographical area which can be occupied by the 
listed species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
listed species. Similarly, critical habitat designations made on the 
basis of the best available information at the time of designation will 
not control the direction and substance of future recovery plans, 
habitat conservation plans (HCPs), or other species conservation 
planning efforts if new information available at the time of these 
planning efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derived the specific physical or biological features essential 
for the Taylor's checkerspot butterfly and streaked horned lark from 
studies of each subspecies' habitat, ecology, and life history as 
described in detail in the Critical Habitat section of the proposed 
rule to designate critical habitat published in the Federal Register on 
October 11, 2012 (77 FR 61937). Additional information can also be 
found in the final listing rule for the Taylor's checkerspot butterfly 
and streaked horned lark, which is published elsewhere in today's 
Federal Register. We have determined that the physical and or 
biological features described in the proposed rule (October 11, 2012; 
77 FR 61937) are essential to the conservation of the Taylor's 
checkerspot butterfly and streaked horned lark, and have further 
determined that these features may require special management 
considerations or protection.
    The designation of critical habitat is an authority restricted to 
the boundaries of the United States; critical habitat cannot be 
designated in a foreign country (50 CFR 424.12(h)). Both Taylor's 
checkerspot butterfly and streaked horned lark range into Canada or 
historically occurred there. In the

[[Page 61521]]

final listing rule, published elsewhere in the Federal Register today, 
we discuss the population in Canada for the purpose of evaluating the 
viability of the species and to inform our determination of those areas 
within the United States that are essential for the conservation of the 
subspecies. We do not have the authority to designate critical habitat 
in Canada.
Taylor's Checkerspot Butterfly
    Primary Constituent Elements for the Taylor's Checkerspot 
Butterfly--Under the Act and its implementing regulations, we are 
required to identify the physical or biological features essential to 
the conservation of Taylor's checkerspot butterfly in areas occupied at 
the time of listing, focusing on the features' primary constituent 
elements. We consider primary constituent elements to be the elements 
of physical or biological features that provide for the subspecies' 
life-history processes and are essential to the conservation of the 
subspecies.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the 
subspecies' life-history processes, we determine that the primary 
constituent elements specific to the Taylor's checkerspot butterfly 
are:
    (i) Patches of early seral, short-statured, perennial bunchgrass 
plant communities composed of native grass and forb species in a 
diverse topographic landscape ranging in size from less than 1 ac up to 
100 ac (0.4 to 40 ha) with little or no overstory forest vegetation 
that have areas of bare soil for basking that contain:
    (a) In Washington and Oregon, common bunchgrass species found on 
northwest grasslands include Festuca roemeri (Roemer's fescue), 
Danthonia californica (California oat grass), Koeleria cristata 
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra 
(rough bentgrass), and on cooler, high-elevation sites typical of 
coastal bluffs and balds, Festuca rubra (red fescue).
    (b) On moist grasslands found near the coast and in the Willamette 
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia 
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less 
abundant forbs found on the grasslands include, but are not limited to, 
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago 
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot 
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert 
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy 
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common 
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and 
sickle-keeled lupine (Lupinus albicaulis).
    (ii) Primary larval host plants (narrow-leaved plantain and harsh 
paintbrush) and at least one of the secondary annual larval host plants 
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis 
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several 
species of speedwell (marsh speedwell (Veronica scutella), American 
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V. 
serpyllifolia).
    (iii) Adult nectar sources for feeding that include several species 
found as part of the native (and one nonnative) species mix on 
northwest grasslands, including, but not limited to: narrow-leaved 
plantain; harsh paintbrush; Puget balsam root; woolly sunshine; nine-
leaved desert parsley; fine-leaved desert parsley or spring gold; 
common camas; showy fleabane; Canada thistle; common yarrow; prairie 
lupine; sickle-keeled lupine, and wild strawberry (Fragaria 
virginiana).
    (iv) Aquatic features such as wetlands, springs, seeps, streams, 
ponds, lakes, and puddles that provide moisture during periods of 
drought, particularly late in the spring and early summer. These 
features can be permanent, seasonal, or ephemeral.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the subspecies, through the identification of the primary constituent 
elements essential to support the life-history processes of the 
subspecies. We are designating critical habitat within the geographical 
area occupied by the subspecies at the time of listing. In addition, we 
are designating some specific areas outside the geographical area 
occupied by the subspecies at the time of listing that were 
historically occupied, but are presently unoccupied, because we have 
determined that these areas are essential for the conservation of the 
subspecies.
Streaked Horned Lark
    Primary Constituent Elements for the Streaked Horned Lark--Under 
the Act and its implementing regulations, we are required to identify 
the physical or biological features essential to the conservation of 
the streaked horned lark in areas occupied at the time of listing, 
focusing on the features' primary constituent elements. We consider 
primary constituent elements to be the elements of physical or 
biological features that provide for the subpecies' life-history 
processes and are essential to the conservation of the subspecies.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the 
subspecies' life-history processes, we determine that the primary 
constituent elements specific to the streaked horned lark are areas 
having a minimum of 16 percent bare ground that have sparse, low-
stature vegetation composed primarily of grasses and forbs less than 13 
in (33 cm) in height found in:
    (1) Large (300-ac (120-ha)), flat (0-5 percent slope) areas within 
a landscape context that provides visual access to open areas such as 
open water or fields, or
    (2) Areas smaller than described in (1), but that provide visual 
access to open areas such as open water or fields.
    With this designation of critical habitat, we intend to identify 
the physical or biological features essential to the conservation of 
the subspecies, through the identification of the primary constituent 
elements sufficient to support the life-history processes of the 
subspecies. All of the units designated as critical habitat are 
currently occupied by the streaked horned lark and contain the primary 
constituent elements to support the life-history needs of the 
subspecies.
    Special Management Considerations or Protections--All areas we are 
designating as critical habitat will require some level of management 
to address the current and future threats to the Taylor's checkerspot 
butterfly and streaked horned lark and to maintain or restore the PCEs. 
A detailed discussion of activities influencing the Taylor's 
checkerspot butterfly and streaked horned lark and their habitats can 
be found in the final listing rule published elsewhere in today's 
Federal Register. Threats to the physical or biological features that 
are essential to the conservation of these subspecies and that may 
warrant special management considerations or protection include, but 
are not limited to: (1) Loss of habitat from conversion to other uses; 
(2) control of nonnative, invasive species; (3) development; (4) 
construction and maintenance of roads and utility corridors; and (5) 
habitat modifications brought on by succession of vegetation from the 
lack of disturbance, both small and large scale. These threats also 
have the potential to affect the PCEs if they are conducted within or 
adjacent to designated units.

[[Page 61522]]

Taylor's Checkerspot Butterfly

    The physical or biological features essential to the conservation 
of the Taylor's checkerspot butterfly may require special management 
considerations or protection to improve the viability and distribution 
of habitat suitable for the subspecies. These include preventing the 
establishment of invasive, nonnative and native woody species, and 
hastening restoration by actively managing sites to establish native 
plant species and the structure of the plant community that is suitable 
for the Taylor's checkerspot butterfly. Restoration and maintenance of 
occupied Taylor's checkerspot butterfly sites will require active 
management to plan, restore, enhance, and manage habitat using an 
approach that resets the vegetation composition and structure to an 
early seral stage. Management actions that produce suitable conditions 
for Taylor's checkerspot butterflies and reset the ecological clock to 
early seral conditions favored by the butterfly include prescribed 
fires, mechanical harvesting of trees, activities such as hand planting 
or mechanical planting of grasses and forbs, and the judicious use of 
herbicides for nonnative, invasive species control.
    These early-seral conditions favor the production and maintenance 
of plantain, paintbrush, and other larval host plants in a short-
structure vegetation community that allows utilization of the plants by 
the Taylor's checkerspot butterfly. Areas where the Taylor's 
checkerspot butterfly occupies a site should have limited soil and 
vegetation disturbance at times when the larvae are active, which 
extends from late February when post-diapause larvae are active to late 
June when pre-diapause larvae are on site. Other activities that could 
cause trampling or impacts to the larvae and that should be minimized, 
reduced, or restricted during larval feeding include use of the site by 
off-road vehicles, military training using vehicles or impacts caused 
by large infantry (foot soldiers), or activities that transport or 
spread nonnative plants, and the risk of wildfire or prescribed fire. 
We reemphasize here the acknowledgement that Taylor's checkerspot 
butterfly, while most obvious during the flight period and when larvae 
are active, are year-round residents and may be vulnerable to most 
types of direct disturbance throughout the year.

Streaked Horned Lark

    The physical or biological features essential to the conservation 
of the streaked horned lark may require special management 
considerations or protection to ensure the provision of early seral 
conditions and landscape context of sufficient quantity and quality for 
long-term conservation and recovery of the subspecies. Activities such 
as mowing, burning, grazing, tilling, herbicide treatment, grading, 
beach nourishment, or placement of dredge material can be used to 
maintain or restore nesting and wintering habitats. Regular disturbance 
is necessary to create and maintain suitable habitat, but the timing of 
management is important. The management actions should be conducted 
outside of the breeding season to avoid the destruction of nests and 
young, or if habitat management must be done during the breeding 
season, it should be done in a way that minimizes destruction of nests 
or harassment of individuals. Nesting success is highest in locations 
with restricted public use or entry such as military facilities, 
airports, islands, wildlife refuges, or sites that are remote or 
difficult to access.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available to designate critical habitat. 
We review available information pertaining to the habitat requirements 
of the species, and begin by assessing the specific geographic areas 
occupied by the species at the time of listing. If such areas are not 
sufficient to provide for the conservation of the species, in 
accordance with the Act and its implementing regulation at 50 CFR 
424.12(e), we then consider whether designating additional areas 
outside the geographic areas occupied at the time of listing may be 
essential to ensure the conservation of the species. We consider 
unoccupied areas for critical habitat when a designation limited to the 
present range of the species may be inadequate to ensure the 
conservation of the species. In this case, since we are listing 
simultaneously with the designation of critical habitat, all areas 
presently occupied by Taylor's checkerspot butterfly or streaked horned 
lark are presumed to constitute those areas occupied at the time of 
listing; those areas currently occupied by the subspecies are 
identified as such in each of the unit or subunit descriptions below. 
These descriptions similarly identify which of the units or subunits 
are believed to be unoccupied at the time of listing. Our determination 
of the areas occupied at the time of listing and our rationale for how 
we determined specific unoccupied areas to be essential the 
conservation of the subspecies are provided below.
    We plotted the known locations of the Taylor's checkerspot 
butterfly and streaked horned lark where they occur in Washington and 
Oregon using 2011 National Agriculture Imagery Program (NAIP) digital 
imagery in ArcGIS, version 10 (Environmental Systems Research 
Institute, Inc.), a computer geographic information system program.
    To determine if the currently occupied areas contain the primary 
constituent elements, we assessed the life-history components and the 
distribution of the subspecies through element occurrence records in 
State natural heritage databases and natural history information on 
each of the subspecies as they relate to habitat. We first considered 
whether the presently occupied areas were sufficient to conserve the 
subspecies. If not, to determine if any unoccupied sites met the 
criteria for critical habitat, we then considered: (1) The importance 
of the site to the overall status of the subspecies to prevent 
extinction and contribute to future recovery of the subspecies; (2) 
whether the area presently provides the essential physical or 
biological features, or could be managed and restored to contain the 
necessary physical or biological features to support the subspecies; 
and (3) whether individuals were likely to colonize the site. We also 
considered the potential for reintroduction of the subspecies, where 
anticipated to be necessary (for Taylor's checkerspot butterfly only).
    As required by section 4(b)(2) of the Act, we used the best 
scientific data available to designate critical habitat. We reviewed 
available information pertaining to the habitat requirements of these 
subspecies. In accordance with the Act and its implementing regulation 
at 50 CFR 424.12(e), we considered whether designating additional 
areas--outside those currently occupied as well as those occupied at 
the time of listing--are necessary to ensure the conservation of the 
subspecies. We are designating critical habitat in areas within the 
geographical area occupied by the subspecies at the time of listing in 
2013. For Taylor's checkerspot butterfly only, we also are designating 
specific areas outside the geographical area occupied by the subspecies 
at the time of listing that were historically occupied, but may be 
presently unoccupied, based on the Secretary's determination that these 
areas are essential for the conservation of the subspecies.
    When we are determining which areas should be designated as 
critical habitat,

[[Page 61523]]

our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, other unpublished materials, or experts' opinions or 
personal knowledge. In this case we used existing occurrence data for 
each subspecies and identified the habitat and ecosystems upon which 
they depend. These sources of information included, but were not 
limited to:
    (1) Data used to prepare the proposed and final rules to list the 
subspecies;
    (2) Information from biological surveys;
    (3) Peer-reviewed articles, various agency reports, and databases;
    (4) Information from the U.S. Department of Defense--Joint Base 
Lewis-McChord (JBLM) and other cooperators;
    (5) Information from species experts;
    (6) Data and information presented in academic research theses; and
    (7) Regional Geographic Information System (GIS) data (such as 
species occurrence data, land use, topography, aerial imagery, soil 
data, and land ownership maps) for area calculations and mapping.
    The critical habitat designation is defined by the maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R1-ES-
2013-0009, on our Web site at http://www.fws.gov/wafwo/TCBSHL.html/, 
and, by appointment, at the Service's Washington Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT, above).
    In all cases, when determining critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement (such as roads), and other structures because 
such lands lack the essential physical or biological features for the 
Taylor's checkerspot butterfly and streaked horned lark. The scale of 
the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this rule have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
a Federal action involving these lands would not trigger section 7 
consultation with respect to critical habitat and the requirement of no 
adverse modification unless the specific action would affect the 
physical or biological features in the adjacent critical habitat.
Taylor's Checkerspot Butterfly
    Occupied Areas--For the Taylor's checkerspot butterfly, we are 
designating critical habitat within the geographical area occupied by 
the subspecies at the time of listing, as well as in unoccupied areas 
that we have determined to be essential for the conservation of the 
subspecies (described below). These presently occupied areas provide 
the physical or biological features essential to the conservation of 
the subspecies, which may require special management considerations or 
protection. We determined occupancy in these areas based on recent 
survey information. All sites occupied by Taylor's checkerspot 
butterfly have survey data as recently as 2011, except for the U.S. 
Forest Service sites on the north Olympic Peninsula where data are as 
recent as 2010 (Potter 2011; Linders 2011; Ross 2011; Holtrop 2010; 
Severns and Grossboll 2011). In addition, there have been some recent 
experimental translocations of Taylor's checkerspot butterflies to 
sites where it had been extirpated within its historical range. If 
translocated populations have been documented as successfully 
reproducing, we considered those sites to be presently occupied by the 
subspecies. Areas designated as critical habitat for Taylor's 
checkerspot butterfly are representative of the known historical 
geographic distribution for the subspecies, outside of Canada.
    We are designating three units of critical habitat based on 
sufficient elements of physical or biological features being present to 
support life-history processes for the Taylor's checkerspot butterfly. 
These 3 units are further divided into 11 subunits. Some subunits 
within the units contain all of the identified elements of physical and 
biological features and support multiple life-history processes; some 
subunits contain at least one or more elements of the physical and 
biological features necessary to support the Taylor's checkerspot 
butterfly's particular use of that habitat. Because we determined that 
the areas presently occupied by Taylor's checkerspot butterfly are not 
sufficient to provide for the conservation of the subspecies, we have 
additionally identified some subunits that are presently unoccupied, 
but that the Secretary has determined to be essential to the 
conservation of the subspecies. Therefore, we are also designating 
these unoccupied areas as critical habitat for the Taylor's checkerspot 
butterfly, as explained below.
    Unoccupied Areas--We are designating six subunits as critical 
habitat for the Taylor's checkerspot butterfly that are not presently 
occupied by the subspecies, but that the Secretary has determined 
essential for the conservation of the subspecies. There has been a 
rapid decline in the spatial distribution of prairies (grassland 
habitat) throughout the range of the Taylor's checkerspot butterfly; as 
a result, the present distribution of Taylor's checkerspot butterfly is 
disjunct and isolated throughout the subspecies' historical range. If 
the Taylor's checkerspot butterfly is to recover, there must be 
sufficient suitable habitat available for population expansion and 
growth that is potentially connected in such a way as to allow for 
dispersal, and these sites must receive routine and sustained 
management to maintain the early seral conditions essential to the 
conservation of the subspecies. We therefore evaluated areas outside 
the presently occupied patches to identify unoccupied habitat areas 
essential for the conservation of the subspecies. We are designating as 
critical habitat some areas adjacent to known occurrences of the 
Taylor's checkerspot butterfly but that may currently be unoccupied to 
provide for population expansion and growth, which is essential for the 
conservation of the subspecies.
    We have identified these unoccupied areas as essential for the 
conservation of the Taylor's checkerspot butterfly because they are 
located strategically between, and in some cases, adjacent to, occupied 
areas from which the butterfly may disperse; these areas contain one or 
more of the PCEs for the Taylor's checkerspot butterfly (although the 
presence of one or more PCEs is not a statutory requirement for 
unoccupied critical habitat), and are all receiving or are slated to 
receive restoration treatments that will increase the amount of 
suitable habitat available.
Streaked Horned Lark
    Occupied Areas--We are designating two units of critical habitat 
for the streaked horned lark based on sufficient elements of physical 
or biological features being present to support life-history processes 
during the breeding or

[[Page 61524]]

winter seasons. These 2 units are further divided into 16 subunits. All 
of the units designated as critical habitat are presently occupied by 
the streaked horned lark. Some subunits within the units contain all of 
the identified elements of physical or biological features and support 
multiple life-history processes; some subunits contain at least one or 
more elements of the physical or biological features necessary to 
support the streaked horned lark's particular use of that habitat.
    Unoccupied Areas--There are no unoccupied subunits designated as 
critical habitat for the streaked horned lark.

Final Critical Habitat Designation

    We are designating four units total as critical habitat for the 
Taylor's checkerspot butterfly and streaked horned lark. The critical 
habitat areas described below constitute our best assessment at this 
time of areas that meet the definition of critical habitat for these 
subspecies. Those four units are:
    (1) The South Sound Unit (Unit 1), which has critical habitat 
subunits for only the Taylor's checkerspot butterfly.
    (2) The Strait of Juan de Fuca Unit (Unit 2), which has critical 
habitat subunits for only the Taylor's checkerspot butterfly.
    (3) The Washington Coast and Columbia River Unit (Unit 3), which 
has critical habitat subunits for only the streaked horned lark.
    (4) The Willamette Valley Unit (Unit 4), which has critical habitat 
subunits for both the Taylor's checkerspot butterfly and streaked 
horned lark.

Taylor's Checkerspot Butterfly--Units 1, 2, and 4

    We are designating three units as critical habitat for the Taylor's 
checkerspot butterfly. The critical habitat areas we describe below 
constitute our current best assessment of areas that meet the 
definition of critical habitat for the subspecies. The three units we 
designate as critical habitat are: Unit 1, South Sound--1,143 ac (462 
ha) in Washington State (545 ac (220 ha) of County ownership, 420 ac 
(170 ha) of private ownership, and 178 ac (72 ha) of lands owned by a 
Port, local municipality, or nonprofit conservation organization); Unit 
2, Strait of Juan de Fuca--779 ac (315 ha) in Washington State (160 ac 
(65 ha) of Federal ownership, 188 ac (76 ha) of State ownership, 201 ac 
(81) of private ownership, and 229 ac (93 ha) of land owned by a Port, 
local municipality, or nonprofit organization); and Unit 4-D, 
Willamette Valley--20 ac (8 ha) of privately owned lands in Oregon. The 
approximate area of each critical habitat unit and its relevant 
subunits, as well as land ownership within each unit, is shown in Table 
1.

 Table 1--Critical Habitat Units Designated for Taylor's Checkerspot Butterfly. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All
                                                      Land Within Critical Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Unit 1: South Sound                             Federal        State        County        Private       Other *      Currently
-------------------------------------------------------------------------------------------------------------------------------------------   occupied
                                                                                                                                           -------------
                                              Subunit Name               Ac(Ha)        Ac-(Ha)       Ac(Ha)        Ac(Ha)        Ac(Ha)          Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-A...............................  Rocky Prairie...................             0             0             0             0       43 (17)             N
1-B...............................  Tenalquot Prairie...............             0             0             0             0      135 (55)             N
1-C...............................  Glacial Heritage................             0             0     545 (220)             0             0             Y
1-D...............................  Rock Prairie....................             0             0             0      244 (99)             0             N
1-E...............................  Bald Hill.......................             0             0             0      176 (71)             0             N
                                    Unit 1 Totals...................         0 (0)         0 (0)     545 (220)     420 (170)      178 (72)  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 2: Strait of Juan De Fuca:
-----------------------------------
2-A...............................  Deception Pass State Park.......             0      149 (60)             0             0             0             N
2-B...............................  Central Whidbey.................             0       39 (16)             0             0      190 (77)             N
2-C...............................  Elwha...........................             0             0             0       51 (20)       39 (16)             Y
2-D...............................  Sequim..........................             0             0             0      151 (61)             0             Y
2-E...............................  Dungeness.......................      160 (65)             0             0             0             0             Y
                                    Unit 2 Totals...................      160 (65)      188 (76)             0      201 (81)      229 (93)  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
-----------------------------------
    4-D...........................  Fitton Green-Cardwell Hill......             0             0             0        20 (8)         0 (0)             Y
                                    Unit 4 Totals...................             0             0             0        20 (8)         0 (0)  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    Grand Total--all Units..........      160 (65)      188 (76)     545 (220)     642 (259)     407 (166)  ............
                                                                     ===================================================================================
                                    GRAND TOTAL ALL UNITS, ALL        ............  ............   1,941 (786)  ............  ............  ............
                                     OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Taylor's checkerspot 
butterfly, below.

Unit 1: South Sound--Taylor's Checkerspot Butterfly

    The South Sound Unit consists of 1,143 acres (462 ha) of land 
designated for the Taylor's checkerspot butterflies in five subunits. 
This unit is found entirely in Thurston County, Washington.
Subunit Descriptions
    1-A Rocky Prairie--(Thurston County, Washington). The Rocky Prairie 
critical habitat subunit is composed of two disjunct habitat patches 
comprising a total of 43 ac (17 ha). The first patch is a linear strip 
of prairie under private ownership. It is approximately 15 ac (6 ha) in 
size and bounded on the north by residential homes, on the east by the 
Burlington Northern railroad line, the south by forest (approximately 
443 ft (135 m) north of where the Burlington Northern rail line 
intersects Old Hwy 99), and on the west by the Washington Department of 
Natural Resources Rocky Prairie Natural Area Preserve (NAP). The second 
prairie patch of this subunit is 29 ac (12 ha) of property owned by a 
conservation organization known as

[[Page 61525]]

Wolf Haven International. It is located southeast of the Burlington 
Northern habitat patch. Wolf Haven is bounded on the north by Offut 
Lake Road, and bounded by a service road in all but the extreme 
northeastern corner of the property. The landscape on the east, west, 
and south boundaries of the prairie at Wolf Haven is delineated by 
mixed Garry oak and conifer forest (east), or conifer forest (west and 
south). Both habitat patches within this subunit are unoccupied at the 
time of listing.
    This subunit is within a matrix of historically occupied patches 
from which Taylor's checkerspot butterfly has been completely 
extirpated. We have determined this subunit is essential for the 
conservation of the Taylor's checkerspot butterfly because it has the 
potential for restoration of the physical or biological features 
sufficient to enable the reintroduction of Taylor's checkerspot 
butterfly. In addition, although currently unoccupied, this area 
presently provides many of the essential features to support long-term 
conservation and recovery of the Taylor's checkerspot butterfly. The 
subunit is composed of grasslands and includes oak woodland margins, 
and some transitional, colonization (first growth) Douglas-fir forest 
within the greater prairie landscape. Several PCEs, including landscape 
heterogeneity and diverse and abundant larval and adult plants 
resources, are present.
    1-B Tenalquot Prairie--(Thurston County, Washington). The Tenalquot 
Prairie subunit is a privately owned conservation area of approximately 
135 ac (55 ha) in size and part of the larger, historically contiguous 
Tenalquot Prairie, the majority of which occurs on JBLM. The northern 
boundary of this subunit is a fenceline boundary, which separates South 
Weir prairie on JBLM from the adjacent private land. The western 
boundary of this subunit is a large pasture clearly delineated by a 
fence line, and it is bordered on the southeast by Military Road. This 
subunit is unoccupied at the time of listing.
    We have determined this subunit is essential for the conservation 
of the Taylor's checkerspot butterfly because it would provide for the 
reintroduction and reestablishment of Taylor's checkerspot butterfly. 
Although currently unoccupied, this area presently provides many of the 
physical or biological features necessary to support the long-term 
conservation and recovery of Taylor's checkerspot butterfly and has the 
potential to serve as metapopulation center within a larger prairie 
landscape context (~2,000 ac (810 ha) in the south region of Thurston 
County. The physical or biological features present at this site 
include landscape heterogeneity, bare ground for basking, and diverse 
and abundant larval and adult plant resources. This subunit is 
periodically managed using prescribed burning as well as with 
mechanical methods to remove Scot's broom (Cytisus scoparius) and to 
sustain early seral conditions.
    1-C Glacial Heritage--(Thurston County, Washington). Glacial 
Heritage is a large, County-owned property managed with conservation, 
research, and education as its primary objectives. The property 
consists of more than 1,200 acres, with approximately 545 ac (220 ha) 
designated as critical habitat. The northwestern boundary is an 
abandoned railroad line, and to the direct north are rural residential 
properties; the eastern boundary of the preserve is the Black River, 
and the southern boundary is owned by two private landowners: one is a 
large industrial tree farm where conifer seedlings are grown, and the 
other is dominated by pasture grown for haying. The southern border is 
clearly defined by the land use change along the fenceline. This 
subunit is occupied at the time of listing, and provides the essential 
physical or biological features for the Taylor's checkerspot butterfly, 
including diverse topography, abundant and diverse larval and adult 
nectar plant resources, a water course, and areas of bare ground for 
basking due to ongoing, active management.
    Threats to the physical or biological features that are essential 
to the conservation of this species and may warrant special management 
considerations or protections include, but are not limited to, the 
inadvertent short-term negative impacts of restoration activities, such 
as burning, mowing, and the use of herbicides; control of native and 
nonnative invasive woody species such as Scot's broom and Douglas fir 
(Pseudotsuga menziesii), as well as control of invasive Mediterranean 
grasses; habitat modifications brought on by succession of vegetation 
from the lack of disturbance, at a small and large scale; disease 
affecting larval host plants; and the effects of climate change. 
Special management considerations may be required to provide protection 
to larval and adult food resources by reducing human disturbance during 
the flight season, and when eggs and early instar larvae are present.
    1-D Rock Prairie--(Thurston County, Washington). We are designating 
approximately 244 ac (99 ha) of critical habitat on the northern 
portion of Rock Prairie, a large, privately owned property in south 
Thurston County. The subunit has diverse landscape features with 
mounded prairie, old field pasture, oak woodland, and conifer forest. 
The northern boundary is delineated by dense conifer forests, the 
southern border is State Highway 99 (referred to as old 99), the 
western boundary is clearly delineated by rural residential lots, and 
the eastern border is the urban growth boundary for the town of Tenino, 
Washington. This subunit is unoccupied at the time of listing.
    This historically occupied subunit is essential for the 
conservation of the Taylor's checkerspot butterfly as it presently 
provides many of the features necessary to support long-term 
conservation and recovery of the Taylor's checkerspot butterfly. These 
include diverse topography with swales and terraces, abundant and 
diverse larval and adult food resources, and a location close to a 
water course formed by Scatter Creek.
    1-E Bald Hill--(Thurston County, Washington). The Bald Hill subunit 
is a collection of balds (shallow-soil areas without typical conifer 
vegetation) and former clearcut areas that have not regenerated and now 
maintain features of open habitat that produce larval and adult food 
resources that can be utilized by the Taylor's checkerspot butterfly. 
All independent, isolated habitat patches are surrounded by conifer 
forests on all sides. Some patches are bordered by WDNR roads, and 
others are bordered by private roads used for fire control and to 
access the forested property. The Bald Hill subunit comprises a total 
of 176 ac (71 ha) (rounded up). The western habitat patch of this 
subunit is approximately 110 ac (45 ha), and the eastern patch is 
approximately 65 ac (26 ha); both are unoccupied at the time of 
listing.
    The Taylor's checkerspot butterfly was recently extirpated from 
this historically occupied subunit. We have determined it is essential 
for the conservation of the Taylor's checkerspot butterfly because it 
has the potential to provide for the reintroduction and reestablishment 
of Taylor's checkerspot butterfly and to support recovery of the 
subspecies. This area presently contains many of the features to 
support long-term conservation and recovery of the Taylor's checkerspot 
butterfly, including a diverse topography of balds, steep slopes, 
canyons, oak glades, a rich diversity of larval and adult food 
resources, and patches of bare soil for basking and resting. This 
particular critical habitat subunit is unique in that it provides the 
only bald habitat for Taylor's checkerspot butterfly at low elevation 
within Thurston County.

[[Page 61526]]

Unit 2: Strait of Juan de Fuca--Taylor's Checkerspot Butterfly

    The Strait of Juan de Fuca Unit is composed of 779 acres (315 ha) 
made up of balds, former clearcuts, coastal bluffs, coastal back dunes, 
and prairie in five subunits located in Clallam County and Island 
County, Washington.
Subunit descriptions
    2-A Deception Pass State Park--(Island County, Washington). 
Deception Pass State Park is owned and managed by Washington State 
Parks. The subunit contains approximately 149 ac (60 ha) of designated 
critical habitat found along low-lying beaches (coastal dunes) and on 
balds along high, south-facing slopes within the park. These areas 
include the shoreline along Bowman Bay, Bowman Hill and Beach, 
Reservation Head, Pass Island, Goose Rock, and West Beach, all within 
the park. Deception Pass State Park is divided by Highway State 20, and 
bordered by the portion of Puget Sound that forms Deception Pass to the 
north, and to the south by private rural residential properties. This 
park was historically occupied by Taylor's checkerspot butterfly, but 
at this time the subunit is unoccupied.
    We have determined this subunit is essential for the conservation 
of the subspecies because it has the potential for reintroduction and 
reestablishment of the Taylor's checkerspot butterfly to support 
recovery. In addition, although currently unoccupied, this area 
presently provides many of the features to support a reintroduced 
population of Taylor's checkerspot butterfly, including diverse 
topography with balds and beaches, abundant larval and adult food 
resources, areas of bare soil for basking of larvae and adults, and 
water sources made up of saltwater along the western shoreline and a 
freshwater wetland.
    2-B Central Whidbey--(Island County, Washington). This subunit is 
located on Whidbey Island in Washington, and comprises a total of 229 
ac (92 ha), and includes Ebey's Landing (~87 ac (35 ha)), the Naas-
Admiralty Inlet Conservation Area (~8 ac (3 ha)), and the former Smith 
Prairie (~134 ac (54 ha)). The Central Whidbey subunit is made up of 
two distinct patches: one is located along the central-west coast on 
coastal bluffs of the island (Ebey), and the second (Smith Prairie) is 
located on relatively flat prairie located centrally-north on the 
island. The coastal area is bordered by Puget Sound to the west, and 
rural residential property and farmland to the east. The Smith Prairie 
is surrounded by rural residential properties on all sides; Parker Road 
runs along the western border of the property, and Morse Road is found 
along the south boundary. This subunit was historically occupied but is 
currently unoccupied.
    We have determined this subunit is essential for the conservation 
of the subspecies because it has the potential for reintroduction and 
reestablishment of Taylor's checkerspot butterfly to support recovery. 
In addition, although currently unoccupied, this area presently 
provides many of the features to support a reintroduced population of 
Taylor's checkerspot butterfly, including diverse topography with 
coastal bluffs and beaches, abundant larval and adult food resources, 
areas of bare soil, and water sources made up of a freshwater wetland, 
and saltwater along the western shoreline.
    2-C Elwha--(Clallam County, Washington). The Elwha critical habitat 
subunit is composed of private lands in Clallam County made up of 
balds, and former clear cut areas within a landscape of conifer 
forests. The subunit polygons adjoin occupied patches owned and managed 
by the WDNR, one is owned and managed by a nongovernmental conservation 
organization, the Center for Natural Lands Management, and the other 
small parcel is owned by a private timber company. These two patches 
are found primarily on the south slope of Dan Kelly Ridge, and they are 
separated by essential habitat owned by WDNR that has been excluded due 
to an HCP providing for species-specific habitat management.
    The habitat patches at both locations are bounded by conifer 
forests. The balds at each of these locations are presently occupied by 
the Taylor's checkerspot butterfly, which has been observed flying up 
and down the steep slopes and onto private lands. Both of these 
locations contain essential physical or biological features, including 
topographic heterogeneity, abundant and diverse larval and adult food 
resources, and bare soil for basking and resting. Puddles on the road 
provide a water source during the adult flight season.
    Threats to the physical or biological features that are essential 
to the conservation of this species and may warrant special management 
considerations or protections include, but are not limited to, 
development; the inadvertent short-term negative impacts of restoration 
activities, such as control of native and nonnative, invasive, woody 
species such as Scot's broom, snowberry (Symphoricarpos albus), and 
Douglas fir; the use of herbicides; habitat modifications brought on by 
succession of vegetation from lack of disturbance, at a small and large 
scale; disease affecting larval host plants; and the effects of climate 
change. The physical or biological features essential to the 
conservation of the species may require special management 
considerations or protection to sustain the open conditions that are 
needed to manage for and sustain the larval and adult food resources. 
Special management considerations may be required to provide protection 
to larval and adult food resources by reducing human disturbance during 
the flight season, and when eggs and early instar larvae are present.
    2-D Sequim--(Clallam County, Washington). Sequim is a private 
property estate and farm of low-lying stabilized dune habitat of 
approximately 151 ac (61 ha). The subunit includes stabilized dunes and 
beach habitat adjacent to the Strait of Juan de Fuca; it is 
approximately 20 ft (6 m) above sea level. The landowner has been 
working cooperatively with the WDFW to manage their property for 
multiple uses, including the conservation of Taylor's checkerspot 
butterfly. The subunit is occupied at the time of listing.
    The Sequim subunit contains several essential physical or 
biological features, including landscape heterogeneity with fore and 
back dune areas and terraces; rich and abundant larval and adult food 
resources; a marsh; and bare soil for basking and resting.
    Threats to the physical or biological features that are essential 
to the conservation of this species and may warrant special management 
considerations or protections include, but are not limited to, 
development; the inadvertent short-term negative impacts of restoration 
activities; habitat modifications brought on by succession of 
vegetation from lack of disturbance, at a small and large scale; 
disease affecting larval host plants; and the effects of climate 
change. The physical or biological features essential to the 
conservation of the species may require special management 
considerations or protection to sustain the open conditions that are 
needed to manage for and sustain the larval and adult food resources. 
Special management considerations may be required to provide protection 
to larval and adult food resources by reducing human disturbance during 
the flight season, and when eggs and early instar larvae are present.
    2-E Dungeness--(Clallam County, Washington). The Dungeness subunit 
is found entirely on U.S. Forest Service (USFS) land on the northeast 
Olympic Peninsula. This subunit comprises a

[[Page 61527]]

total of 160 ac (65 ha) and is composed of bald habitat, and former 
clearcuts that function similarly to balds. The three occupied areas 
within this subunit and are known as Bear Mountain (low elevation), 3 
O'Clock Ridge (middle elevation) (which is composed of two habitat 
patches), and the upper Dungeness (highest elevation). These locations 
on USFS lands are the highest elevations known to be occupied by 
Taylor's checkerspot butterflies. The Bear Mountain location is 
entirely surrounded by conifer forests and originated as a small 
harvest unit that functions similar to a bald. 3 O'Clock ridge is 
bounded by the upper Dungeness Road on the northwest boundary, Cougar 
Creek to the northeast, Bungalow creek to the southwest, and conifer 
forests to the southeast of the occupied unit. Upper Dungeness is 
bounded by an unnamed creek to the northeast and Mueller Creek to the 
southwest, and by conifer forests to the southeast of the occupied 
unit. All habitat patches within this subunit are presently occupied by 
the Taylor's checkerspot butterfly.
    The subunit contains several essential physical or biological 
features, including landscape heterogeneity, abundant larval and adult 
food resources, nearby streams, and plentiful areas of bare ground for 
basking and resting. Early restoration work conducted by USFS has 
included tree harvesting and removal, which has resulted in the 
expansion of larval and adult food resources in this habitat.
    Threats to the physical or biological features that are essential 
to the conservation of this species and may warrant special management 
considerations or protections include, but are not limited to, the 
inadvertent short-term negative impacts of restoration activities and 
control of native and nonnative, woody species; the use of herbicides 
that my impact larval and adult nectar resources; habitat modification 
brought on by succession of vegetation from lack of disturbance, at a 
small and large scale; disease affecting larval host plants; and the 
effects of climate change. The physical or biological features 
essential to the conservation of the species may require special 
management considerations or protection to sustain the open conditions 
that are needed to manage for and sustain the larval and adult food 
resources. Special management considerations may be required to provide 
protection to larval and adult food resources by reducing human 
disturbance during the flight season, and when eggs and early instar 
larvae are present.

Unit 4: Willamette Valley--Taylor's Checkerspot Butterfly

    Unit 4, located in the Willamette Valley, is the only critical 
habitat unit that includes critical habitat for both the streaked 
horned lark and Taylor's checkerspot butterfly. Unit 4 includes four 
subunits in the State of Oregon; three for the streaked horned lark (4-
A, 4-B, and 4-C; described below), and a single subunit (4-D) for the 
Taylor's checkerspot butterfly in Benton County.
    Unit 4-D Fitton Green-Cardwell Hill--(Benton County, Oregon). 
Fitton Green-Cardwell Hill is located in the eastern foothills of the 
Coastal Range on the western edge of the Willamette Valley. The habitat 
is composed of multiple small natural openings of approximately 3 ac (1 
ha) in size within a conifer-oak forest landscape. These habitat 
patches collectively comprise the 20 ac (8 ha) that constitute Subunit 
4-D. The northern patch of this subunit is a BPA right-of-way that 
passes through a large occupied patch of county-owned habitat that 
provides conservation benefit to the Taylor's checkerspot butterfly 
through the Benton County Prairie Species HCP. This subunit is 
currently occupied by the Taylor's checkerspot butterfly.
    This subunit contains several of the essential physical or 
biological features for the Taylor's checkerspot butterfly, including 
native perennial bunchgrass plant communities with abundant larval and 
adult food resources, landscape heterogeneity, and bare soil for 
basking and resting.
    Threats to the physical or biological features that are essential 
to the conservation of this species and may warrant special management 
considerations or protections include, but are not limited to, the 
inadvertent short-term negative impacts of restoration activities such 
as control of native and nonnative, invasive, woody species and 
invasive Mediterranean grasses through mechanical means and with 
herbicide; habitat modification due to succession of vegetation in the 
absence of disturbance, at a small and large scale; impacts of disease 
on larval food plants; and climate change. The physical or biological 
features essential to the conservation of Taylor's checkerspot 
butterfly may require special management considerations or protection 
to sustain short-statured vegetation structure and to reduce human 
disturbance during the flight season or when eggs and early instar 
larvae are present. The physical or biological features of this site 
may be particularly vulnerable to the effects of recreational use, such 
as trampling of vegetation.

Streaked Horned Lark--Units 3 and 4

    We are designating as critical habitat areas that we have 
determined are occupied at the time of listing and contain sufficient 
elements of physical or biological features to support life-history 
processes essential to the conservation of the streaked horned lark. We 
are designating two units as critical habitat for the streaked horned 
lark. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the subspecies. The two units we designate as critical 
habitat are: Unit 3--Washington Coast and Columbia River (with 13 
subunits), and Unit 4--Willamette Valley (with 3 subunits). The 
Washington Coast and Columbia River Unit (Unit 3) totals 2,900 ac 
(1,173 ha) and includes 564 ac (228 ha) of Federal ownership, 2,209 ac 
(894 ha) of State-owned lands, and 126 ac (51 ha) of private lands. The 
Willamette Valley Unit (Unit 4) totals 1,729 ac (700 ha) and is 
entirely composed of Federal lands. We are designating a total of 4,629 
ac (1,873 ha) of critical habitat for the streaked horned lark 
rangewide.
    The streaked horned lark has been documented nesting on all of the 
subunits within the last few years, and all subunits are therefore 
considered occupied at the time of listing. All of the subunits 
currently have one or more of the physical or biological features 
essential to the conservation of the streaked horned lark, and which 
may require special management considerations or protection.
    The critical habitat areas described below constitute our best 
assessment of areas that meet the definition of critical habitat for 
the streaked horned lark. The approximate area and landownership of 
each critical habitat unit and associated subunit is shown in Table 2.

[[Page 61528]]



 Table 2--Critical Habitat Units for Streaked Horned Lark. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within Critical
                                                                 Habitat Unit Boundaries
--------------------------------------------------------------------------------------------------------------------------------------------------------
      Unit 3: Washington Coast and Columbia River Islands            Federal          State           Private         Tribal       Other*     Currently
--------------------------------------------------------------------------------------------------------------------------------------------   occupied
                                                                                                                                            ------------
                                          Subunit name               Ac (Ha)         Ac (Ha)          Ac (Ha)        Ac (Ha)      Ac (Ha)        Y/N
--------------------------------------------------------------------------------------------------------------------------------------------------------
3-A............................  Damon Point...................               0       456 (185)           24 (10)            0            0            Y
3-B............................  Midway Beach..................               0       611 (247)                 0            0            0            Y
3-C............................  Shoalwater Spit...............               0       377 (152)          102 (41)            0            0            Y
3-D............................  Leadbetter Point..............       564 (228)        101 (41)                 0            0            0            Y
3-E............................  Rice Island...................               0        224 (91)                 0            0            0            Y
3-F............................  Miller Sands..................               0        123 (50)                 0            0            0            Y
3-G............................  Pillar Rock/Jim Crow..........               0         44 (18)                 0            0            0            Y
3-H............................  Welch Island..................               0         43 (18)                 0            0            0            Y
3-I............................  Tenasillahe Island............               0          23 (9)                 0            0            0            Y
3-J............................  Whites/Brown..................               0         98 (39)                 0            0            0            Y
3-K............................  Wallace Island................               0          13 (5)                 0            0            0            Y
3-L............................  Crims Island..................               0         60 (24)                 0            0            0            Y
3-M............................  Sandy Island..................               0         37 (15)                 0            0            0            Y
                                                                ----------------------------------------------------------------------------------------
                                 Unit 3 Totals.................       564 (228)     2,209 (894)          126 (51)            0            0  ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 4: Willamette Valley:
--------------------------------
4-A............................  Baskett Slough NWR............     1,006 (407)               0                 0            0            0            Y
4-B............................  Ankeny NWR....................       264 (107)               0                 0            0            0            Y
4-C............................  William L Finley NWR..........       459 (186)               0                 0            0            0            Y
                                                                ----------------------------------------------------------------------------------------
                                 Unit 4 Totals.................     1,729 (700)               0                 0            0            0            Y
                                 Grand Total--all Units........     2,293 (928)     2,209 (894)          126 (51)            0            0  ...........
                                                                ----------------------------------------------------------------------------------------
                                 GRAND TOTAL OF ALL UNITS, ALL   ..............  ..............     4,629 (1,873)  ...........  ...........  ...........
                                  OWNERSHIP.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Other = Ports, local municipalities, and nonprofit conservation organizations.

Unit 3: Washington Coast and Columbia River--Streaked Horned Lark

    On the Washington coastal sites, the streaked horned lark occurs on 
sandy beaches and breeds in the sparsely vegetated, low dune habitats 
of the upper beach. We are designating four subunits (Subunits 3-A, 3-
B, 3-C, and 3-D) and a total of 2,235 ac (904 ha) as critical habitat 
on the Washington coast. The coastal sites are owned and managed by 
Federal, State, and private entities. The physical or biological 
features essential to the conservation of the streaked horned lark may 
require special management considerations or protection to reduce human 
disturbance during the nesting season, and the continued encroachment 
of invasive, nonnative plants requires special management to restore or 
retain the open habitat preferred by the streaked horned lark. Subunits 
3-A, 3-B, 3-C, and 3-D overlap areas that are designated as critical 
habitat for the western snowy plover. The snowy plover nesting areas 
are posted and monitored during the spring and summer to keep 
recreational beach users away from the nesting areas; these management 
actions also benefit the streaked horned lark.
    In the lower Columbia River, we are designating nine island 
subunits (Subunits 3-E through 3-M) for a total of 665 ac (269 ha). The 
island subunits are owned by the States of Oregon and Washington. On 
the Columbia River island sites, only a small portion of each island is 
designated as critical habitat for the streaked horned lark; most of 
the areas mapped are used by the Corps for dredge material deposition 
in its channel maintenance program. Within any deposition site, only a 
portion is likely to be used by the streaked horned lark in any year, 
as the area of habitat shifts within the deposition site over time as 
new materials are deposited and as older deposition sites become too 
heavily vegetated for use by streaked horned larks. All of the island 
subunits are small, but are adjacent to open water, which provides the 
open landscape context needed by streaked horned larks.
    The main threats to the essential features in the critical habitat 
subunits designated on the Columbia River islands are invasive 
vegetation and direct impacts associated with deposition of dredge 
material onto streaked horned lark nests during the nesting season. In 
all subunits, the physical or biological features essential to the 
conservation of each subspecies may require special management 
considerations or protection to manage, protect, and maintain the PCEs 
supported by the subunits. For those threats that are common to all 
subunits, special management considerations or protections may be 
required to address direct or indirect habitat loss due to the location 
and timing of dredge material placement to areas that have become 
unsuitable for streaked horned lark nesting and wintering habitat.
    Subunit 3-A: Damon Point--(Grays Harbor County, Washington). This 
critical habitat subunit is about 481 ac (194 ha) in size; of this, 456 
ac (185 ha) are owned by the State, and 24 ac (10 ha) are under private 
ownership. It extends from the Ocean Shores wastewater treatment plant 
on the western edge through the Oyhut wildlife management unit and 
Damon Point spit (also called Protection Island). The vast majority of 
this area (~95 percent) is managed by the State of Washington (WDFW, 
WDNR, and Washington State Parks). This subunit is currently occupied 
and provides the physical or biological features essential to the 
conservation of the subspecies. The site has both the open landscape 
context and sparse, low-growing vegetation that make up the physical or 
biological features essential to the conservation of the subspecies. 
Streaked horned larks currently nest and winter on Damon Point and have 
also been documented nesting along the beach just west of the treatment 
plant. The physical or

[[Page 61529]]

biological features essential to the conservation of the streaked 
horned lark may require special management considerations or protection 
to reduce human disturbance during the nesting season and encroachment 
by invasive, nonnative plants that render the habitat too dense for use 
by streaked horned larks.
    Subunit 3-B: Midway Beach--(Pacific County, Washington). This 
subunit is about 611 ac (247 ha) in size. The northern edge of the 
subunit starts at Grayland Beach State Park and extends south to the 
Warrenton Cannery road. The landward extent is defined by the 
vegetation and ownership line in the mid-dune area. This site is owned 
by the State of Washington (Washington State Parks and Recreation 
Department). This subunit is currently occupied and provides the 
physical or biological features essential to the conservation of the 
subspecies. Both open landscape context and the sparse, low-growing 
vegetation that make up the physical or biological features essential 
to the conservation of the subspecies are present at the site, and 
Midway Beach is used by streaked horned larks for both nesting and 
wintering. The physical or biological features essential to the 
conservation of the streaked horned lark may require special management 
considerations or protection to reduce human disturbance during the 
nesting season and encroachment by invasive, nonnative plants that 
render the habitat too dense for use by streaked horned larks.
    Subunit 3-C: Shoalwater/Graveyard Spit--(Pacific County, 
Washington). This subunit is about 479 ac (194 ha); of this, 377 ac 
(152 ha) are owned by the State, and 102 ac (41 ha) are under private 
ownership. The central portion of the subunit (182 ac; 74 ha) is within 
the Shoalwater Bay Indian Reservation and has been excluded under 
section 4(b)(2) (see Exclusions), dividing the subunit into northwest 
and southeast sections. Streaked horned larks have been documented off 
and on at this site during the breeding season since 2000. Although the 
site has been unoccupied for the past couple of years, singing male 
streaked horned larks were documented at this site during surveys in 
June 2012; therefore, we consider this site to be currently occupied. 
As with the other areas along the Washington coast, streaked horned 
larks use this site for both nesting and wintering. The subunit is a 
dynamic area and has a constantly changing sand spit that supports the 
essential features for nesting and wintering habitat. The physical or 
biological features essential to the conservation of the streaked 
horned lark may require special management considerations or protection 
to reduce human disturbance during the nesting season and encroachment 
by invasive, nonnative plants that render the habitat too dense for use 
by streaked horned larks.
    Subunit 3-D: Leadbetter Point--(Pacific County, Washington). This 
subunit contains about 665 ac (269 ha) at the northern tip of the Long 
Beach Peninsula. This subunit is on the Willapa National Wildlife 
Refuge and the Seashore Conservation Area (managed by Washington 
State). This site is occupied and provides the physical or biological 
features essential to the conservation of the subspecies. Most of the 
streaked horned larks at this site nest within the habitat restoration 
area and in ponded swales landward of the restoration area that go dry 
in the summer (Ritchie 2012, pers. comm.). The site has the open 
landscape context and sparse, low-growing vegetation that make up the 
physical or biological features essential to the conservation of the 
subspecies. The Willapa National Wildlife Refuge completed its 
comprehensive conservation plan in August 2011, and manages habitat at 
the tip of Leadbetter Spit for the western snowy plover, streaked 
horned lark, and other native coastal species. These management 
activities are compatible with streaked horned lark conservation. As 
with the other coastal sites, Leadbetter is used by streaked horned 
larks year-round. The physical or biological features essential to the 
conservation of the streaked horned lark may require special management 
considerations or protection to maintain the early seral vegetation 
required by the subspecies and to minimize nest destruction and 
disturbance during the breeding season.
    Subunit 3-E: Rice Island--(Clatsop County, Oregon, and Wahkiakum 
County, Washington). This subunit is about 224 ac (91 ha) in size. The 
island is located at river mile (RM) 21, approximately 7 mi (11 km) 
upstream of the Astoria-Megler Bridge near the mouth of the Columbia 
River. Although the island is within the planning boundary of the Julia 
Butler Hansen National Wildlife Refuge, Rice Island is owned by the 
Oregon Department of State Lands. A very small portion of the subunit 
is in Wahkiakum County and on Washington State lands. The Corps uses 
this site for dredge material disposal as part of its maintenance of 
the Columbia River shipping channel. This subunit is occupied and 
provides the features essential to the conservation of the subspecies. 
Streaked horned larks currently nest and winter on Rice Island. The 
physical or biological features essential to the conservation of the 
streaked horned lark may require special management considerations or 
protection to maintain the early seral vegetation required by the 
subspecies and to minimize nest destruction and disturbance during the 
breeding season.
    Subunit 3-F: Miller Sands Spit--(Clatsop County, Oregon). Miller 
Sands Spit is across the shipping channel from Rice Island at RM 24. 
The subunit is a sand spit 2 mi (1.2 km) long and about 123 ac (50 ha) 
in size on the northern shore of the island. The subunit is currently 
occupied and provides the physical or biological features essential to 
the conservation of the subspecies for nesting and wintering habitat. 
The island is owned by the Oregon Department of State Lands, but is 
also within the planning unit boundary for the Julia Butler Hansen 
National Wildlife Refuge. The Corps uses this site for dredge material 
disposal as part of its maintenance of the Columbia River shipping 
channel. The physical or biological features essential to the 
conservation of the streaked horned lark may require special management 
considerations or protection to maintain the early seral vegetation 
required by the subspecies and to minimize nest destruction and 
disturbance during the breeding season.
    Subunit 3-G: Pillar Rock/Jim Crow Sands--(Clatsop County, Oregon). 
This island is located at about RM 27 on the Columbia River. The 
subunit is about 44 ac (18 ha) in size. Pillar Rock is currently 
occupied and provides the physical or biological features essential to 
the conservation of the subspecies. Streaked horned larks nest and 
winter at the site. The island is owned by the Oregon Department of 
State Lands and is within the planning unit boundary for the Julia 
Butler Hansen National Wildlife Refuge. The Corps uses this site for 
dredge material disposal as part of its maintenance of the Columbia 
River shipping channel. The physical or biological features essential 
to the conservation of the streaked horned lark may require special 
management considerations or protection to maintain the early seral 
vegetation required by the subspecies and to minimize nest destruction 
and disturbance during the breeding season.
    Subunit 3-H: Welch Island--(Clatsop County, Oregon). This island is 
at RM 34 and is owned by the Oregon Department of State Lands. The 
critical habitat subunit is about 43 ac (18 ha) on the northeastern 
shore of the island. This site is currently occupied and provides the 
physical or biological features essential to the conservation of

[[Page 61530]]

the subspecies. The Corps uses this site for dredge material disposal 
as part of its maintenance of the Columbia River shipping channel. The 
physical or biological features essential to the conservation of the 
streaked horned lark may require special management considerations or 
protection to maintain the early seral vegetation required by the 
subspecies and to minimize nest destruction and disturbance during the 
breeding season.
    Subunit 3-I: Tenasillahe Island--(Columbia County, Oregon). This 
island is at RM 38; the subunit is on a small unnamed spit at the 
southern tip of Tenasillahee Island. The subunit is about 23 ac (9 ha) 
in size. This site is currently occupied and provides the physical or 
biological features essential to the conservation of the subspecies. 
The site is owned by the Oregon Department of State Lands. The Corps 
uses this site for dredge material disposal as part of its maintenance 
of the Columbia River shipping channel. The physical or biological 
features essential to the conservation of the streaked horned lark may 
require special management considerations or protection to maintain the 
early seral vegetation required by the subspecies and to minimize nest 
destruction and disturbance during the breeding season.
    Subunit 3-J: Whites/Brown Island--(Wahkiakum County, Washington). 
Whites/Brown Island is connected to the southern end of Puget Island at 
RM 46 and is owned by WDFW. The subunit is a small spit at the southern 
end of Whites/Brown Island and is about 98 ac (39 ha) in size. The site 
is used by the Corps for dredge material disposal as part of its 
maintenance of the Columbia River shipping channel. This site is 
currently occupied and provides the physical or biological features 
essential to the conservation of the subspecies. Whites/Brown Island 
supports one of the largest populations of streaked horned larks in the 
lower Columbia River islands. The physical or biological features 
essential to the conservation of the streaked horned lark may require 
special management considerations or protection to maintain the early 
seral vegetation required by the subspecies and to minimize nest 
destruction and disturbance during the breeding season.
    Subunit 3-K: Wallace Island--(Columbia County, Oregon). Wallace 
Island is located across the channel from Whites/Brown Island at RM 47. 
Streaked horned larks were detected at the site in 2012, which is about 
13 ac (5 ha) in size; therefore we consider the subunit presently 
occupied. The area is owned by the Oregon Department of State Lands. 
This site is not a dredge material disposal site. This subunit 
currently contains the physical or biological features essential to the 
conservation of the species, but may require special management to 
maintain the low vegetative structure required by streaked horned 
larks.
    Subunit 3-L: Crims Island--(Columbia County, Oregon). This island 
is located upstream of Wallace Island at RM 57. The subunit is about 60 
ac (24 ha) in size. The subunit is currently occupied and provides the 
physical or biological features essential to the conservation of the 
subspecies. The area is owned by the Oregon Department of State Lands, 
but is also within the planning unit boundary for the Julia Butler 
Hansen National Wildlife Refuge. Crims Island is an approved Corps 
dredge material disposal site. The physical or biological features 
essential to the conservation of the streaked horned lark may require 
special management considerations or protection to maintain the early 
seral vegetation required by the subspecies and to minimize nest 
destruction and disturbance during the breeding season.
    Subunit 3-M: Sandy Island--(Columbia County, Oregon). This island, 
at RM 76, is the island farthest upstream that is known to be used by 
streaked horned lark for nesting. The subunit is about 37 ac (15 ha) in 
size on the southern end of Sandy Island and is owned by the Oregon 
Department of State Lands. This subunit is currently occupied and 
provides the physical or biological features essential to the 
conservation of the subspecies. The Corps uses this site for dredge 
material disposal as part of its maintenance of the Columbia River 
shipping channel. The physical or biological features essential to the 
conservation of the streaked horned lark may require special management 
considerations or protection to maintain the early seral vegetation 
required by the subspecies and to minimize nest destruction and 
disturbance during the breeding season.

Unit 4: Willamette Valley--Streaked Horned Lark

    Unit 4 (Willamette Valley) includes critical habitat subunits for 
both the Taylor's checkerspot butterfly and streaked horned lark, all 
in the State of Oregon. We are designating three subunits for the 
streaked horned lark in the Willamette Valley, all on the Willamette 
Valley National Wildlife Refuge Complex. The total acreage is 1,729 ac 
(700 ha). All of the subunits are occupied at the time of listing and 
contain the physical or biological features essential to the 
conservation of the subspecies that may require special management 
considerations or protection. These subunits are managed mainly to 
provide forage for wintering dusky Canada geese, and this management is 
compatible with maintaining the essential features for the streaked 
horned lark. The refuge complex has incorporated management for 
streaked horned lark into its recently completed comprehensive 
conservation plan, and streaked horned lark habitat conservation is 
being implemented in the refuge units.
    Subunit 4-A: Baskett Slough National Wildlife Refuge--(Polk County, 
Oregon). There are two parts to this critical habitat subunit, the area 
of which totals 1,006 ac (407 ha). Subunit 4-A North is 181 ac (73 ha) 
and is in the North Morgan Reservoir area of the refuge. Subunit 4-A 
South is 825 ac (334 ha) and is the South Baskett Slough Agricultural 
area of the refuge; State Route 22 forms the southeast boundary of the 
south subunit. Both of the subunits are agricultural fields that are 
heavily grazed by dusky Canada geese in the winter. This subunit is 
currently occupied and contains the physical or biological features 
essential to the conservation of the subspecies. Baskett Slough 
National Wildlife Refuge has large areas of agricultural lands and 
restored native prairies, which provide the landscape context and 
vegetation structure required by streaked horned larks. The refuge 
manages primarily for wintering dusky Canada geese, which also provides 
suitable management for streaked horned larks. This subunit is 
consistently used by streaked horned larks in the breeding season. The 
physical or biological features essential to the conservation of the 
streaked horned lark may require special management considerations or 
protection to maintain the early seral vegetation required by the 
subspecies and to minimize nest destruction and disturbance during the 
breeding season.
    Subunit 4-B: Ankeny National Wildlife Refuge--(Marion County, 
Oregon). This site is in the middle of the Ankeny Refuge, in the Field 
6 Complex; the northeast boundary of the subunit is formed by the 
Sydney Ditch. The critical habitat subunit is 264 ac (107 ha). The site 
is composed of agricultural fields that are heavily grazed by dusky 
Canada geese in the winter. The subunit is currently occupied and has 
consistent use by streaked horned larks in the breeding season. This 
subunit contains all of the physical or biological features essential 
to the conservation of the subspecies. Ankeny National Wildlife Refuge 
has both agricultural lands and restored native prairies, which provide 
the landscape context and vegetation

[[Page 61531]]

structure required by streaked horned larks. The refuge manages 
primarily for wintering dusky Canada geese, which also provides 
suitable management for streaked horned larks. The physical or 
biological features essential to the conservation of the streaked 
horned lark may require special management considerations or protection 
to maintain the early seral vegetation required by the subspecies and 
to minimize nest destruction and disturbance during the breeding 
season.
    Subunit 4-C: William L. Finley National Wildlife Refuge--(Benton 
County, Oregon). This critical habitat subunit is on Fields 11 and 12 
in the South Finley Agricultural Lands area of the refuge; Bruce Road 
bisects the subunit, and McFarland Road forms the southern boundary of 
the site. The subunit is 459 ac (186 ha) in size. This subunit is 
currently occupied and contains the physical or biological features 
essential to the conservation of the subspecies. The site is composed 
of agricultural fields that are heavily grazed by dusky Canada geese in 
the winter, and it has consistent use by streaked horned larks in the 
breeding season; streaked horned larks also winter at the refuge. 
Finley National Wildlife Refuge has large areas of agricultural lands 
and restored native prairies, which provide the landscape context and 
vegetation structure required by streaked horned larks. The refuge 
manages primarily for wintering dusky Canada geese, which also provides 
suitable management for streaked horned larks. The physical or 
biological features essential to the conservation of the streaked 
horned lark may require special management considerations or protection 
to maintain the early seral vegetation required by the subspecies and 
to minimize nest destruction and disturbance during the breeding 
season.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Taylor's checkerspot 
butterfly or the streaked horned lark. As discussed above, the role of 
critical habitat is to support life-history needs of the species and 
provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such

[[Page 61532]]

habitat, or that may be affected by such designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Taylor's checkerspot butterfly or streaked horned 
lark. These activities include, but are not limited to:
    (1) Actions that restore, alter, or degrade habitat features 
through development, agricultural activities, burning, mowing, 
herbicide use or other means in suitable habitat for the Taylor's 
checkerspot butterfly or the streaked horned lark.
    (2) Actions that would alter the physical or biological features of 
critical habitat including modification of the composition and 
structure of vegetation in suitable habitat for the Taylor's 
checkerspot butterfly or the streaked horned lark. Such activities 
could include, but are not limited to, construction, grading or other 
development, mowing, conversion of habitat, or use of herbicides to 
remove vegetation (recreational use, off-road vehicles on Federal, 
State, private, or Tribal lands). These activities may affect the 
physical or biological features of critical habitat for the Taylor's 
checkerspot butterfly and streaked horned lark, by removing sources of 
food, shelter, nesting or oviposition sites, or otherwise impacting 
habitat essential for completion of life history.
    (3) Actions that would reduce the open landscape context required 
by the streaked horned lark, such as construction of buildings or 
planting tall trees adjacent to a suitable site.
    (4) Deposition of dredge materials on occupied streaked horned lark 
habitats during the breeding season.
    (5) Installation of shoreline stabilization structures or 
modification of beaches and open shorelines where occupied by the 
streaked horned lark or where critical habitat occurs for the streaked 
horned lark.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
critical habitat designation for the Taylor's checkerspot butterfly and 
streaked horned lark to determine if they meet the criteria for 
exemption from critical habitat under section 4(a)(3) of the Act. The 
following areas are Department of Defense lands with completed, 
Service-approved INRMPs within the critical habitat designation.
Approved INRMPs
    U.S. Army Joint Base Lewis-McChord--JBLM, formerly known as Fort 
Lewis, is an 86,500-ac (35,000-ha) U.S. Army military reservation in 
western Washington, south of Tacoma and east of the Puget Sound. JBLM 
contains some of the largest remaining intact prairies in the south 
Puget Sound basin, with approximately 20,352 ac (8,236 ha) of prairies, 
one of the rarest ecosystems in the United States, which also supports 
both the Taylor's checkerspot butterfly and streaked horned lark. Since 
2003, JBLM has managed the prairies located on the base according to 
their Prairie Management Plan, which was collaboratively prepared by 
Robert Altman of the American Bird Conservancy (ABC), the Environmental 
and Natural Resources Division of JBLM's Wildlife Branch, and The 
Nature Conservancy (TNC) of Washington. The prairies found on JBLM are 
currently managed by JBLM's Fish and Wildlife Program and the primary 
mission for the JBLM prairies is to provide an open environment for 
military training. JBLM has a history of applying an ecosystem 
management strategy to their prairies to provide for multiple 
conservation goals, which have included promoting native biological 
diversity, maintaining and restoring unique plant communities, and 
providing habitat for several rare prairie species. There are 2,324 ac 
(941 ha) of lands within the boundary of JBLM that were identified in 
the proposed critical habitat designation for the Taylor's checkerspot 
butterfly; these lands included all of subunits 1-A, 1-B, 1-C, and 1-E 
in the proposed rule (77 FR 61937; October 11, 2012). JBLM has the 
largest naturally occurring population of the Taylor's checkerspot 
butterfly anywhere in its range. This significant Federal landholding 
provides the largest contiguous block of prairie in Washington as well.
    JBLM has an INRMP in place that was approved in 2006, which JBLM is 
in the process of updating. In 2012, JBLM amended their existing INRMP 
with specific regard to the Taylor's checkerspot butterfly by 
completing an ESMP that includes guidelines for protecting, 
maintaining, and enhancing habitat essential to support the Taylor's 
checkerspot butterfly on JBLM. The Service has found, in writing, that 
the ESMP under the JBLM INRMP provides a conservation benefit to the 
Taylor's checkerspot butterfly.
    JBLM's ESMPs identify management objectives for the conservation of 
Taylor's checkerspot butterfly and streaked horned lark. For the 
Taylor's checkerspot butterfly, the ESMP specifically includes nine 
proposed ``priority habitat'' focus areas on JBLM for management of the 
Taylor's checkerspot butterfly and its associated habitat. The 
management objective is to improve the populations of Taylor's 
checkerspot butterflies both on and off JBLM. JBLM's Fish and Wildlife 
Program proposes several management objectives to attain this goal: (1) 
They will coordinate with the Service and WDFW on increasing the number 
of populations and expand their distribution on and off the base; (2) 
the JBLM Fish and Wildlife Program will

[[Page 61533]]

monitor occupied Taylor's checkerspot butterfly populations to detect 
habitat degradation, weather, and climate factors that influence 
populations dynamics; and (3) they will evaluate the efficacy of their 
ESMP, and adapt their management if required. JBLM has also committed 
to restore and sustain priority habitat areas through a number of 
management efforts. This will be accomplished by controlling invasive, 
nonnative plant species and encroaching conifers, and as land is 
cleared they will replant with the larval host and adult nectar plants 
for Taylor's checkerspot butterfly. Restoration actions to enhance and 
maintain suitable habitat conditions includes ecological prescribed 
burning, mowing, application of herbicides where needed, girdling of 
encroaching conifers, manual removal, and biological control using 
integrated pest management. Another objective is to purchase lands off 
JBLM for the express purpose of managing the locations for Taylor's 
checkerspot butterfly habitat and translocation. To date, over 4,000 ac 
(1,620 ha) have been acquired using Area Compatible Use Buffer (ACUB) 
program funding.
    There are 2,813 ac (1,138 ha) of lands within the boundary of JBLM 
that were identified in the proposed critical habitat designation for 
the streaked horned lark; these lands included all of subunits 1-B, 1-
C, 1-D, and 1-E in the proposed rule (77 FR 61937; October 11, 2012). 
The ESMP for the streaked horned lark identifies management objectives 
that are applied in specific locations on JBLM where this subspecies 
nests, including McChord Airfield, Gray Army Airfield, 13th Division 
Prairie (Training Area 14), and the eastern portion of the 91st 
Division Prairie. The management objectives that are applied for the 
protection of streaked horned larks include: (1) Scheduled mowing 
regimes to minimize impacts to streaked horned lark at the military 
airfields during the nesting season. The mowing restrictions are done 
in coordination with the FAA to meet airport safety requirements for 
vegetation management; (2) limiting off-road vehicle use in areas where 
streaked horned larks are nesting; (3) annual surveys for streaked 
horned larks in coordination with the CNLM and the WDFW at all of the 
known occupied sites. Protection buffers will be applied around the 
nesting areas at 13th Division Prairie and all training activities will 
be seasonally restricted in these areas; and (4) evaluating the 
efficacy of their ESMP, and adapt their management if required. As 
described above, JBLM maintains and restores the prairie areas on base, 
including areas used by the streaked horned lark. The Service has 
found, in writing, that the ESMP under the JBLM INRMP provides a 
conservation benefit to the streaked horned lark.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified 
Department of Defense lands are subject to the JBLM INRMP and that 
conservation efforts identified in the ESMPs under the INRMP will 
provide a conservation benefit to the Taylor's checkerspot butterfly 
and streaked horned lark. Therefore, lands within this installation are 
exempt from critical habitat designation under section 4(a)(3) of the 
Act. We are not including approximately 2,324 ac (941 ha) of habitat 
for the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the 
streaked horned lark in this final critical habitat designation because 
of this exemption. The lands exempted under section 4(a)(3) are 
identified in Tables 3 and 4.

  Table 3--Areas Exempted From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
                               Section 4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical  Areas exempted in acres
                 Unit                       Specific area           habitat in acres            (hectares)
                                                                       (hectares)
----------------------------------------------------------------------------------------------------------------
1....................................  TA7S...................                  78 (32)                  78 (32)
1....................................  91st Division Prairie..              1,377 (557)              1,377 (557)
1....................................  13th Division Prairie..                647 (262)                647 (262)
1....................................  Tenalquot Prairie......                 222 (90)                 222 (90)
                                                               -------------------------------------------------
    Total............................  .......................              2,324 (941)              2,324 (941)
----------------------------------------------------------------------------------------------------------------


   Table 4--Areas Exempted From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
                                   4(a)(3) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting the
                                                                 definition of critical  Areas exempted in acres
                 Unit                       Specific area           habitat in acres            (hectares)
                                                                       (hectares)
----------------------------------------------------------------------------------------------------------------
1....................................  McChord Airforce Base..                759 (307)                759 (307)
1....................................  Gray Army Airfield.....                347 (140)                347 (140)
1....................................  91st Division Prairie..                888 (359)                888 (359)
1....................................  13th Division Prairie..                819 (331)                819 (331)
                                                               -------------------------------------------------
    Total............................  .......................            2,813 (1,138)            2,813 (1,138)
----------------------------------------------------------------------------------------------------------------

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if s/he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless s/he determines, 
based on the best scientific data available, that the failure to 
designate such area as critical habitat will result in the extinction 
of the species. In making that determination, the statute on its face, 
as well as the legislative history, are clear that the Secretary has 
broad discretion regarding

[[Page 61534]]

which factor(s) to use and how much weight to give to any factor.
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise her discretion to exclude the area only if such exclusion 
would not result in the extinction of the species.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from adverse modification or destruction as a result of 
actions with a Federal nexus; the educational benefits of mapping 
essential habitat for recovery of the listed species; and any benefits 
that may result from a designation due to State or Federal laws that 
may apply to critical habitat.
    When identifying the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation; the continuation, strengthening, or encouragement of 
partnerships; or implementation of a management plan that provides 
equal to or more conservation than a critical habitat designation would 
provide.
    In the case of the Taylor's checkerspot butterfly and streaked 
horned lark, the benefits of critical habitat include public awareness 
of the presence of Taylor's checkerspot butterflies and streaked horned 
larks and the importance of habitat protection, and, in cases where a 
Federal nexus exists, increased habitat protection for these species 
due to the protection from adverse modification or destruction of 
critical habitat.
    When we evaluate the existence of a conservation or management plan 
when considering the benefits of exclusion, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan will be implemented into the future; whether the 
conservation strategies in the plan are likely to be effective; and 
whether the plan contains a monitoring program or adaptive management 
to ensure that the conservation measures are effective and can be 
adapted in the future in response to new information.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction. If exclusion of an area from critical habitat will result 
in extinction, we will not exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received and information in our 
files, we evaluated whether certain lands in the proposed critical 
habitat were appropriate for exclusion from this final designation 
pursuant to section 4(b)(2) of the Act. We considered the areas 
discussed below for exclusion under section 4(b)(2) of the Act, and 
present our detailed analysis below. For those areas in which the 
Secretary has exercised her discretion to exclude, we conclude that:
    (1) Their value for conservation will be preserved in the near 
future by existing protective actions; or
    (2) The benefits of excluding the particular area outweigh the 
benefits of their inclusion, based on the ``other relevant factor'' 
provisions of section 4(b)(2) of the Act.
Taylor's Checkerspot Butterfly
    Table 5 shows the areas we are excluding from critical habitat for 
the Taylor's checkerspot butterfly.

  Table 5--Areas Excluded From the Designation of Critical Habitat for the Taylor's Checkerspot Butterfly Under
                               Section 4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting  the
                                                                definition  of critical     Areas excluded  in
                 Unit                       Specific area           habitat in  acres       acres  (hectares)
                                                                       (hectares)
----------------------------------------------------------------------------------------------------------------
1....................................  Rocky Prairie NAP......                  38 (16)                  38 (16)
1....................................  Mima Mounds NAP........                406 (164)                406 (164)
1....................................  Scatter Creek..........                731 (296)                731 (296)
1....................................  Rock Prairie...........                621 (251)                378 (153)
1....................................  Bald Hill..............                422 (171)                247 (100)
1....................................  West Rocky Prairie.....                 134 (54)                 134 (54)
2....................................  Elwha..................                 235 (95)                 143 (58)
4....................................  Fort Hoskins...........                    6 (3)                    6 (3)
4....................................  Beazell Memorial Forest                  61 (25)                  61 (25)
4....................................  Fitton Green--Cardwell                   59 (24)                  40 (16)
                                        Hill.
                                                               -------------------------------------------------
    Total............................  .......................            2,713 (1,098)              2,184 (885)
----------------------------------------------------------------------------------------------------------------

Streaked Horned Lark
    Table 6 shows the areas we are excluding from critical habitat for 
the streaked horned lark.

[[Page 61535]]



   Table 6--Areas Excluded From the Designation of Critical Habitat for the Streaked Horned Lark Under Section
                                   4(b)(2) of the Act by Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                                                                   Areas meeting  the
                                                                definition  of critical     Areas excluded  in
                 Unit                       Specific area           habitat in acres        acres  (hectares)
                                                                       (hectares)
----------------------------------------------------------------------------------------------------------------
1....................................  Sanderson Field........                376 (152)                376 (152)
1....................................  Olympia Airport........                575 (233)                575 (233)
3....................................  Shoalwater Spit........                661 (267)                 182 (74)
3....................................  Portland International                 431 (174)                431 (174)
                                        Airport.
4....................................  McMinnville Municipal                  600 (243)                600 (243)
                                        Airport.
4....................................  Salem Municipal Airport                534 (216)                534 (216)
4....................................  Corvallis Municipal                  1,103 (446)              1,103 (446)
                                        Airport.
4....................................  Eugene Airport.........                313 (126)                313 (126)
                                                               -------------------------------------------------
    Total............................  .......................            4,593 (1,857)            4,114 (1,664)
----------------------------------------------------------------------------------------------------------------

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an economic analysis of the 
proposed critical habitat designation and related factors (April 3, 
2013; 78 FR 20074). This economic analysis addressed a total of six 
prairie taxa proposed for listing under the Act. In addition to the 
Taylor's checkerspot butterfly and streaked horned lark, the economic 
analysis included four subspecies of the Mazama pocket gopher (Thomomys 
mazama ssp.). The Mazama pocket gophers are being addressed in separate 
rulemakings.
    The intent of the final economic analysis (FEA) (IEc 2013) is to 
quantify the economic impacts of all potential conservation efforts for 
the six prairie taxa, including the Taylor's checkerspot butterfly and 
streaked horned lark; some of these costs will likely be incurred 
regardless of whether we designate critical habitat (we consider such 
costs to be ``baseline'' costs). The economic impact of the final 
critical habitat designation is analyzed by comparing scenarios both 
``with critical habitat'' and ``without critical habitat.'' The 
``without critical habitat'' scenario represents the baseline for the 
analysis, considering protections already in place for the species 
(e.g., under the Federal listing and other Federal, State, and local 
regulations). The baseline, therefore, represents the costs incurred 
regardless of whether critical habitat is designated. The ``with 
critical habitat'' scenario describes the incremental impacts 
associated specifically with the designation of critical habitat for 
the species. The incremental conservation efforts and associated 
impacts are those not expected to occur absent the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. The FEA considers those costs that may occur in the 
20 years following the designation of critical habitat, which was 
determined to be the appropriate period for analysis because limited 
planning information was available for most activities to reasonably 
forecast activity levels for projects beyond a 20-year timeframe. The 
FEA quantifies the economic impacts of Taylor's checkerspot butterfly, 
streaked horned lark, and Mazama pocket gopher conservation efforts 
associated with the following categories of activity: military 
activities; recreation and habitat management; airports and 
agricultural activities; transportation; electricity distribution and 
forestry activities; and dredging and other activities, including 
private gravel mining operations and development.
    As noted above, the FEA identifies and analyzes the potential 
economic impacts associated with critical habitat designations proposed 
for six prairie taxa: Taylor's checkerspot butterfly and streaked 
horned lark, as well as four subspecies of Mazama pocket gopher (the 
Roy Prairie, Olympia, Tenino, and Yelm pocket gophers). The Mazama 
pocket gopher subspecies are addressed in separate rulemakings. All 
estimates in the FEA are for all six taxa; therefore, estimates for 
individual taxa are less than the totals estimated in the FEA and 
summarized here.
    The total present value impact anticipated to result from the 
designation of all areas proposed as critical habitat for the Taylor's 
checkerspot butterfly, streaked horned lark, and the four subspecies of 
Mazama pocket gophers is $800,000 over the next 20 years, assuming a 7 
percent discount rate, or $70,000 on an annualized basis. The greatest 
incremental impacts of critical habitat apply to airports and 
agricultural activities at $600,000 over the next 20 years, followed by 
recreation and habitat management at $100,000, military activities at 
$55,000, transportation at $34,000, and electricity distribution and 
forestry activities at $9,300 (present values over 20 years assuming a 
7 percent discount rate). For the most part, the incremental impacts of 
the critical habitat designation are limited to the additional 
administrative costs of consultations within occupied areas. In 
addition, some incremental project modifications may occur on 
unoccupied subunits for the Taylor's checkerspot butterfly on JBLM; 
these costs are expected to be relatively small. Of the total costs, 
the analysis estimates that approximately 51 percent will be incurred 
by the Service, 31 percent by Federal action agencies, and 18 percent 
by third parties. The impacts estimated in the FEA apply to the 
proposed critical habitat in its entirety, and do not reflect final 
exclusions or exemptions.

[[Page 61536]]

    We have not excluded any areas from the final designation of 
critical habitat based on economic impacts. A copy of the FEA with 
supporting documents may be obtained by contacting the Service's 
Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT) or by downloading from  http://www.regulations.gov at docket 
number FWS-R1-ES-2013-0009.

Exclusions Based on National Security Impacts

    In preparing this final rule, we have exempted from the designation 
of critical habitat those DOD lands with completed INRMPS that have 
been determined to provide a benefit to the Taylor's checkerspot 
butterfly and streaked horned lark. We have subsequently determined 
that the remaining lands within the designation of critical habitat for 
the Taylor's checkerspot butterfly and streaked horned lark are not 
owned or managed by the Department of Defense; therefore we anticipate 
no impact on national security. Consequently, the Secretary is not 
exercising her discretion to exclude any areas from this final 
designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other species specific management 
plans for the area that would benefit the Taylor's checkerspot 
butterfly or streaked horned lark, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at any tribal issues, and 
consider the government-to-government relationship of the United States 
with tribal entities. We also consider any social impacts that might 
occur because of the designation.

Land and Resource Management Plans, Conservation Plans, or Agreements 
Based on Conservation Partnerships

    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides 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 Rocky Prairie, Mima Mounds, and Bald Hill Natural 
Area Preserves (NAPs), as well as WDNR-owned parcels on Dan Kelly Ridge 
and in Eden Valley (all of which are covered under the WDNR State Trust 
Lands HCP); the WDFW Scatter Creek Wildlife Area Management Plan (which 
also covers the adjacent private land); the WDFW West Rocky Prairie 
Wildlife Area Management Plan; the Merrill and Ring Voluntary Habitat 
Conservation Plan; the NRCS Colvin Ranch Grassland Reserve Program 
Management Plan; and the Benton County Prairie Species HCP, all fulfill 
the above criteria. We are excluding these non-Federal lands covered by 
these plans because the plans adequately provide for the long-term 
conservation of the Taylor's checkerspot butterfly and the Secretary 
has determined that the benefits of excluding such areas outweigh the 
benefits of including them in critical habitat.
    As a result of considering other relevant impacts, we have 
additionally excluded non-Federal airports from final critical habitat 
for the streaked horned lark, based upon the Secretary's determination 
that the benefit of excluding such areas outweighs the benefit of 
including them in critical habitat, as described below.
Washington Department of Natural Resources State Trust Lands HCP
    The WDNR State Trust Lands HCP covers approximately 1.7 million 
(730,000 ha) of State lands in Washington. The permit associated with 
this HCP, issued January 30, 1997, was announced in the Federal 
Register on April 5, 1996 (61 FR 15297), has a term of 70 to 100 years, 
and covers activities primarily associated with commercial forest 
management, but also includes limited nontimber activities such as some 
recreational activities. The HCP covers all species, including the 
Taylor's checkerspot butterfly and other listed and unlisted species. 
We are excluding Washington State lands totaling approximately 823 ac 
(334 ha) that are covered and managed by the WDNR under their State 
Trust Lands HCP from Units 1 and 2 of this critical habitat designation 
under section 4(b)(2) of the Act.
    The HCP addresses multiple species through a combination of 
strategies. The HCP includes a series of NAPs and Natural Resource 
Conservation Areas (NRCAs), including Rocky Prairie NAP, Mima Mounds 
NAP, and Bald Hill NAP. These preserves are managed consistent with the 
Natural Areas Preserve Act, forever protecting the highest quality 
examples of native ecosystems and rare plant and animal species, in 
addition to other natural features of State, regional or national 
significance. These preserves are used for education, scientific 
research, and to maintain Washington's native biological diversity. 
This network of preserves includes nearly 31,000 ac (12,550 ha) 
throughout the State, which range in size from 8 ac (3.2 ha) to 3,500 
ac (1,416 ha). Management plans are developed for each NAP, which guide 
the actions necessary to protect each area's natural features, 
including research, monitoring, restoration, and other active 
management. In addition, there are approximately 132 ac (23 ha) in the 
Elwha drainage at Dan Kelly Ridge and Eden Valley that are also owned 
by WDNR and managed for Taylor's checkerspot butterfly under a separate 
plan. WDNR actively manages these three NAPs and the two additional 
sites (Dan Kelly and Eden Valley) to maintain high-quality prairie and 
bald habitats. All of these locations contain many of the essential 
physical or biological features to support the Taylor's checkerspot 
butterfly. Although these sites are not currently occupied by the 
Taylor's checkerspot butterfly, they have the potential to serve as the 
site of future translocations to re-establish the subspecies.
    The NAP properties at Rocky Prairie, Mima Mounds, and Bald Hill, 
and the sites at Dan Kelly Ridge and Eden Valley (these last two are 
managed under a single plan), each have species-specific management 
plans that provide for the conservation of the Taylor's checkerspot 
butterfly, and these sites have been managed for the conservation of 
prairie species, including Taylor's checkerspot butterfly specifically. 
This ongoing practice of habitat management and conservation has 
fostered a diverse variety of larval and adult nectar resources for 
Taylor's checkerspot butterfly that complement the wide range of 
topographic variation within and between sites. The management planning 
for each of these areas has established a decades-long track record of 
activity focused on enhancing prairie composition and structure at each 
location: Rocky Prairie NAP Management Plan (WDNR 1989b), Mima Mounds 
NAP Management Plan (WDNR

[[Page 61537]]

1989a), Bald Hill NAP Management Plan (WDNR 1988), and WDNR Olympic 
Taylor's Checkerspot Butterfly Management Plan (Horton, 2010). The 
conservation measures applied at the three NAPs have more recently been 
refocused through the development of site-specific restoration plans 
for each location to benefit the Taylor's checkerspot butterfly and 
other rare prairie butterflies. These restoration plans (Wilderman and 
Davenport 2011a, 2011b, 2011c) provide for the needs of Taylor's 
checkerspot butterfly by protecting and managing all the WDNR NAPs in 
Thurston County, and implementing species-specific conservation 
measures designed to avoid and minimize impacts to the Taylor's 
checkerspot butterfly. The management guidelines were developed for 
areas that are currently occupied as well as areas that have suitable 
habitat but that are not known to be currently occupied by the Taylor's 
checkerspot butterfly. Because of the high success rate of recent 
Taylor's checkerspot butterfly translocations, the planning group that 
oversees the schedule for translocation would give weighted 
consideration to each of these high-quality prairie locations for 
future introductions of the Taylor's checkerspot butterfly.
    Although both Dan Kelly Ridge and Eden Valley lack established, 
long-term, site-specific restoration plans, they are subject to an 
adaptive management restoration strategy implemented by WDFW rare 
species experts who are focused on the maintenance and expansion of 
appropriate habitat at and around the occupied areas. These restoration 
efforts at Dan Kelly Ridge and Eden Valley have been supported through 
a number of funding streams, including monies from the Service and DOD. 
Additionally, WDNR provides work crews to conduct tree and shrub 
removal which reflects an ongoing and increasing investment on the part 
of the land owner. Support provided in crew hours totaled $5,000 in 
years past and has more than doubled that amount in 2013, indicating a 
significant investment in and commitment to the ongoing stewardship of 
these occupied properties.
    Benefits of Inclusion--Rocky Prairie, Mima Mounds, and Bald Hill 
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites 
under the WDNR State Trust Lands HCP--The primary effect of designating 
any particular area as critical habitat is the requirement for Federal 
agencies to consult with us under section 7 of the Act to ensure 
actions they carry out, authorize, or fund do not adversely modify 
designated critical habitat. Absent critical habitat designation in 
occupied areas, Federal agencies remain obligated under section 7 of 
the Act to consult with us on actions that may affect a federally 
listed species to ensure such actions do not jeopardize the species' 
continued existence. All three of the NAPs are currently unoccupied by 
the Taylor's checkerspot butterfly; therefore, a jeopardy analysis 
would not be triggered by a Federal agency action for Rocky Prairie, 
Mima Mounds, or Bald Hill NAPs. If the NAPs were designated as critical 
habitat, such an action would trigger consultation solely under the 
adverse modification standard of section 7. The WDNR-owned Dan Kelly 
Ridge and Eden Valley sites are both occupied and have been undergoing 
restoration through a federally-funded program (Wildlife and Sport Fish 
Restoration Program), thus any proposed actions for habitat restoration 
would trigger section 7 consultation for both the subspecies and the 
designated critical habitat. The benefits of inclusion in critical 
habitat at these sites would be minimized since they are occupied by 
Taylor's checkerspot butterfly, as any potential consultation under 
section 7 of the Act will evaluate the effects of the action on the 
conservation or functionality of the habitat for the subspecies 
regardless of whether critical habitat is designated for these lands. 
The analytical requirements to support a jeopardy determination on 
excluded land are similar, but not identical, to the requirements in an 
analysis for an adverse modification determination on included land. 
The additional benefit of consultation under the adverse modification 
standard at these occupied sites would therefore be reduced.
    The inclusion of these areas as critical habitat could therefore 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard based on the Ninth Circuit 
Court's decision in Gifford Pinchot Task Force v. United States Fish 
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a 
potential benefit of inclusion would be the requirement of a Federal 
agency to ensure that their actions on these non-Federal lands would 
not likely result in the destruction or adverse modification of 
critical habitat. Any Federal nexus on these lands would likely result 
from actions to restore or maintain favorable habitat conditions, 
carried out under the HCP or granting of Federal funds for beneficial 
management of prairie-associated species, such as Taylor's checkerspot 
butterfly. The incremental benefit to the Taylor's checkerspot 
butterfly from the small amount of resultant section 7 consultation 
required by this habitat management funding is likely minimal, 
especially considering that the action being consulted on is itself 
intended to benefit prairie-associated species.
    The Service has coordinated with WDNR on conservation actions to be 
implemented for the Taylor's checkerspot butterfly at the three NAPs 
located in Thurston County, Washington, as well as the two sites at Dan 
Kelly Ridge and Eden Valley in Clallam County, Washington. An NAP is a 
land designation used by the State of Washington to protect the best 
examples of rare and vanishing flora, fauna, plant and animal 
communities, geological, and natural historical value, consistent with 
the Washington Natural Areas Preserves Act of 1972 (RCW 79.70). The two 
other sites (Dan Kelly Ridge and Eden Valley) are managed separately 
under their own plan, but are not designated as NAPs. Management of the 
NAPs in Thurston County is guided in large part by the South Puget 
Sound Prairie Landscape Working Group. The Service is a charter member 
of this partnership group, which was established in 1994, to promote 
and improve the management and planning of conservation actions on 
south Puget Sound prairies and associated habitats. The Working Group 
includes WDNR, JBLM, NRCS, WDFW, CNLM, the Washington Department of 
Transportation (WSDOT), as well as other Federal, State, county, city, 
nongovernmental, and private group entities, each with knowledge and 
expertise in prairie ecosystem management. The Working Group 
coordinates regularly, meeting twice-yearly to share information and 
discuss priorities, and making significant improvements on the ground 
in prairies and oak woodlands. At one of our south Puget Sound 
locations, volunteers implement restoration and recovery actions for 
prairie species every Tuesday throughout the year. This is a well-
established group that is expected to continue its coordination efforts 
into the foreseeable future, regardless of the designation of critical 
habitat. Management of the Dan Kelly Ridge and Eden Valley sites 
receive oversight from the Taylor's Checkerspot Butterfly Working 
Group, a multi-agency working group that has been in existence since 
2004. Participants in the working group include JBLM, NRCS, USFS, WDNR, 
WDFW, WSDOT, University of Washington researchers, CNLM, and other 
Federal, State, county, city, nongovernmental, private entities and

[[Page 61538]]

individuals, each with knowledge and expertise on the Taylor's 
checkerspot butterfly, its conservation, habitat, and restoration 
needs. Designation of these areas as critical habitat would therefore 
likely yield no additional benefit to the outputs of the working 
groups, their members, or their ease of coordination. The active, long-
term restoration efforts already in place at these sites thus reduce 
the potential benefit of critical habitat.
    Another potential benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. This helps focus and promote conservation efforts by 
identifying areas of high conservation value for the Taylor's 
checkerspot butterfly. The designation of critical habitat informs 
State agencies and local governments about areas that could be 
conserved under State laws or local ordinances. Any additional 
information about the needs of the Taylor's checkerspot butterfly or 
its habitat that reaches a wider audience can be of benefit to future 
conservation efforts. During the spring of 2013 alone, the Service 
hosted two prairie workshops, one public hearing, and two local 
Thurston County events attended by nearly 1,000 people to publicize and 
educate local community members of the subspecies' declining 
distribution, and the threat to the native flora and fauna found on 
western Washington prairies. An important conservation measure that is 
gained through these outreach networks is the ability to educate the 
public about the historical role and current importance of prairies to 
our local community and economy. Included among the outreach measures 
is the distribution of educational material, and encouraging landowners 
to conduct prairie restoration activities on their properties. At least 
two presentations resulting from research conducted at the Dan Kelly 
Ridge and Eden Valley sites have been given and additional work for 
these two sites is expected to be concluded in the near future that may 
further elevate public awareness in Clallam County about the 
conservation needs of the Taylor's checkerspot butterfly on the north 
Olympic Peninsula. Additional events are expected to occur in the 
future, and designation of the NAPs or the WDNR-owned Dan Kelly Ridge 
and Eden Valley sites as critical habitat is not expected to increase 
the number of such meetings or improve their outcomes; the additional 
educational value of critical habitat is therefore minimized.
    The incremental benefit of inclusion is reduced because of the 
long-standing management planning and implementation efforts for each 
site, as discussed above. In addition, the NAP restoration plans 
provide greater protection to Taylor's checkerspot butterfly habitat 
than would the designation of critical habitat, since the planning 
effort is intended to actively improve the structure and composition of 
the habitat (critical habitat does not carry any requirement for 
habitat restoration or improvement). Although both Dan Kelly Ridge and 
Eden Valley lack established, long-term, site-specific restoration 
plans, they are subject to an adaptive management restoration strategy 
implemented by WDFW rare species experts focused on the maintenance and 
expansion of appropriate habitat at and around the occupied areas. 
These restoration efforts at Dan Kelly Ridge and Eden Valley have been 
supported through a number of funding streams, including monies from 
the Service. Therefore, designation of critical habitat on these areas 
would not provide any additional management focus that is not already 
occurring at these locations under Washington State management 
authority, through plans developed through our recovery program, or 
through the DOD ACUB funding authority, which has provided funding 
support for many of our local protected prairies, including the NAPs, 
Dan Kelly Ridge, and Eden Valley sites.
    Benefits of Exclusion--Rocky Prairie, Mima Mounds, Bald Hill 
Natural Area Preserves, and the Dan Kelly Ridge and Eden Valley sites 
under the WDNR State Trust Lands HCP--The benefits of excluding these 
areas from critical habitat are relatively greater. A benefit of 
excluding lands within this HCP from critical habitat designation is 
that it would encourage the State and other parties to continue to work 
toward Taylor's checkerspot butterfly conservation. Since issuance of 
this HCP, a number of land transactions and land exchanges within the 
HCP area have occurred. These transactions have included creation of 
additional NRCAs and NAPs (land designations with high degree of 
protection), and have also included large land exchanges and purchases 
that have changed the footprint of the HCP. These land-based 
adjustments have facilitated better management on many important 
parcels and across larger landscapes than would otherwise have been 
possible. If lands within HCP plan areas are designated as critical 
habitat, it would likely have a negative effect on the willingness of 
various groups and funding sources to accomplish these land-ownership 
adjustments because of a reluctance to acquire lands designated as 
critical habitat as well as a reduced willingness on the part of WDNR 
to accommodate the Service's goals. This HCP is located in key 
landscapes across the State, and the NAPs at Rocky Prairie, Mima 
Mounds, and Bald Hill, as well as the two sites at Dan Kelly Ridge and 
Eden Valley--which are covered by the HCP--contribute meaningfully to 
the recovery of the Taylor's checkerspot butterfly.
    If lands within the WDNR HCP plan area are designated as critical 
habitat, it would also likely have a negative effect on our ability to 
establish new partnerships to develop HCPs, particularly large, 
regional HCPs that involve numerous participants or address landscape-
level conservation of species and habitats. This HCP has served as a 
model for several completed and ongoing HCP efforts, including the 
Washington State Forest Practices HCP. By excluding these lands, we 
preserve our current private and local conservation partnerships and 
encourage additional conservation actions in the future because other 
parties see our exclusion as a sign that the Service will not impose 
duplicative regulatory burdens on landowners who have developed an HCP.
    HCPs typically provide for greater conservation benefits to a 
covered species than section 7 consultations because HCPs ensure the 
long-term protection and management of a covered species and its 
habitat. In addition, funding for such management is ensured through 
the Implementation Agreement. Such assurances are typically not 
provided by section 7 consultations, which, in contrast to HCPs, often 
do not commit the project proponent to long-term, special management 
practices or protections. Thus, a section 7 consultation typically does 
not afford the lands it covers similar extensive benefits as an HCP. 
The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide the conservation efforts and assist in species 
conservation, and the creation of innovative solutions to conserve 
species while meeting the needs of the applicant. In this case, 
substantial information has been developed from the research, 
monitoring, and surveys conducted by WDNR. Therefore, exclusion is a 
benefit because it maintains and fosters the development of biological 
information and innovative solutions.

[[Page 61539]]

    Exclusion of these areas will additionally help us maintain an 
important and successful partnership with other Washington State 
conservation partners (via the South Puget Sound Prairie Landscape 
Working Group and the Taylor's Checkerspot Butterfly Working Group) who 
made a commitment more than a decade ago to include the Taylor's 
checkerspot butterfly in their management and restoration plans, as 
well as encouraging others to join in this and other conservation 
partnerships.
    Benefits of Exclusion Outweigh Benefits of Inclusion--Rocky 
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan 
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands 
HCP--The Secretary has determined that the benefits of excluding the 
WDNR-managed Rocky Prairie, Mima Mounds, and Bald Hill NAPs found in 
Thurston County, and the Dan Kelly Ridge and Eden Valley sites in 
Clallam County, from the designation of critical habitat for Taylor's 
checkerspot butterfly outweigh the benefits of including these areas in 
critical habitat. Any Federal nexus on these lands would likely result 
from actions to restore or maintain favorable habitat conditions, 
undertaken under the HCP or granting of Federal funds for beneficial 
management of prairie-associated species, such as Taylor's checkerspot 
butterfly. If one were to occur, it would most likely be with the 
Service or DOD, and their actions will be geared toward the 
conservation benefits of restoring and enhancing habitat specifically 
for the Taylor's checkerspot butterfly, or other rare butterflies. This 
type of management would benefit Taylor's checkerspot butterfly if 
focused on the maintenance of open, short-statured vegetative 
conditions that Taylor's checkerspot butterfly typically occupies. The 
incremental benefit to the Taylor's checkerspot butterfly from the 
small amount of resultant section 7 consultation required by this 
habitat management funding is likely minimal, especially considering 
that the action being consulted on is itself intended to benefit 
prairie-associated species.
    The South Puget Sound Prairie Landscape Working Group partnership, 
which contributes to management planning on the NAPs, and the Taylor's 
Checkerspot Butterfly Working Group, which provides guidance for the 
sites at Dan Kelly Ridge and Eden Valley, would not be additionally 
benefitted due to inclusion of these areas in critical habitat, as 
these working groups are well-established, cohesive, and productive 
groups that have yielded and will continue to yield positive 
conservation outcomes for the Taylor's checkerspot butterfly on south 
Puget Sound prairies and the north Olympic Peninsula, including these 
sites, regardless of the designation of critical habitat. The 
conservation strategies of each NAP restoration plan and the ongoing 
adaptive habitat restoration strategies for are designed to protect and 
enhance habitat for the Taylor's checkerspot butterfly. These 
strategies include species-specific management actions to support 
Taylor's checkerspot butterflies, avoidance and minimization measures, 
and monitoring requirements to ensure proper implementation, which 
further minimizes the benefits of including these areas in a 
designation of critical habitat.
    The WDNR State Trust Lands HCP provides for significant 
conservation and management within geographical areas that contain the 
physical or biological features essential to the conservation of 
Taylor's checkerspot butterfly, and helps achieve recovery of this 
subspecies through the conservation measures of the HCP. Exclusion of 
these lands from critical habitat will help foster the partnership we 
have developed with WDNR, through the development and continuing 
implementation of the HCP and the area management plans. It will also 
help us maintain and foster an important and successful partnership 
with our Washington State conservation partners in the South Puget 
Sound Prairie Landscape Working Group as well as with the species-
specific Taylor's Checkerspot Butterfly Working Group, which shares 
significant overlap with the South Puget Sound Prairie Landscape 
Working Group and, by doing so, bridges between ecosystem management 
strategies and species-specific conservation actions. Both WDNR and the 
working groups have encouraged others to join in conservation 
partnerships as well, and exclusion of these lands will encourage the 
future development of such beneficial conservation partnerships. For 
these reasons, we have determined that the benefits of exclusion 
outweigh the benefits of inclusion in this case.
    Exclusion Will Not Result in the Extinction of the Species--Rocky 
Prairie, Mima Mounds, Bald Hill Natural Area Preserves, and the Dan 
Kelly Ridge and Eden Valley sites under the WDNR State Trust Lands 
HCP--We have determined that exclusion of approximately 38 ac (16 ha) 
for the Rocky Prairie NAP (Unit 1-Rocky Prairie), 406 ac (164 ha) for 
the Mima Mounds NAP (Unit 1-Mima Mounds/Glacial Heritage), 247 ac (100 
ha) for the Bald Hill NAP (Unit 1-Bald Hills), 109 ac (44 ha) for the 
Dan Kelly Ridge site (Unit 2-Elwha), and 23 ac (9 ha) for the Eden 
Valley site (Unit 2-Elwha), all of which are covered under the WDNR 
State Trust Lands HCP, will not result in the extinction of Taylor's 
checkerspot butterfly. Actions covered by the HCP will not result in 
extinction of Taylor's checkerspot butterfly because: (1) the NAPs are 
not currently occupied by the subspecies, and; (2) and the occupied 
sites (Dan Kelly Ridge and Eden Valley) both have special dispensation 
from site designation as a source of merchantable timber, which allows 
for the removal of otherwise merchantable trees in favor of enhancing 
Taylor's checkerspot butterfly habitat. In all of these areas the State 
Trust Lands HCP provides for the future needs of the Taylor's 
checkerspot butterfly by restoring, maintaining, and creating habitat 
within these areas, and supporting management of Taylor's checkerspot 
butterfly habitat and that of other rare species through HCP 
compliance. Additionally, each of the areas operates under a specific 
management plan to guide long-term site management, and more recently 
developed restoration plans to direct the habitat enhancement 
activities at each location. For these reasons, we find that exclusion 
of these lands covered by the WNDR State Trust Lands HCP will not 
result in extinction of the Taylor's checkerspot butterfly. Based on 
the above discussion, the Secretary is exercising her discretion under 
section 4(b)(2) of the Act to exclude from this final critical habitat 
designation portions of the proposed critical habitat units or subunits 
that are within the WDNR State Trust Lands HCP-covered lands as 
identified above, totaling about 823 ac (334 ha).
Scatter Creek Wildlife Area and Adjacent Private Land, and the West 
Rocky Prairie Wildlife Area
    We are excluding 767 ac (310 ha) of Washington State lands 
designated as Wildlife Areas, and 98 ac (40 ha) of private land 
inholding from this critical habitat designation under section 4(b)(2) 
of the Act. These Wildlife Areas are known as the Scatter Creek 
Wildlife Area (633 ac (256 ha)) (Unit 1-Scatter Creek) and West Rocky 
Prairie Wildlife Area (134 ac (54 ha)) (Unit 1-West Rocky Prairie), 
both owned and managed by WDFW. The private inholding is associated 
with the Scatter Creek Wildlife Area (Unit 1-Scatter Creek) and is 
managed by WDFW identically to the Wildlife Area itself. Wildlife Areas 
provide a variety of habitat for endangered and threatened species, 
including the Taylor's

[[Page 61540]]

checkerspot butterfly, and are managed for that purpose, among others. 
Each Wildlife Area operates under a Wildlife Area Management Plan 
specific to the unique management needs of that area. Species-specific 
management plans have been written for a subset of the Wildlife Areas, 
including Scatter Creek and West Rocky Prairie. WDFW's land acquisition 
strategy for Wildlife Areas requires their purchases provide the 
highest benefit to fish, wildlife, and the public. In addition, WDFW is 
currently developing an HCP for lands in Wildlife Areas with the help 
of the Service, which will incorporate a landscape-level approach to 
managing at-risk species, including Taylor's checkerspot butterfly.
    WDFW developed a management plan for the Scatter Creek Wildlife 
Area and adjacent private land in 2010 that specifically details the 
habitat needs of Taylor's checkerspot butterfly and continues to refine 
habitat conservation measures through collaboration with local 
conservation partners from the Service, WDNR, the University of 
Washington, and CNLM (Hays 2010). WDFW also has a draft management plan 
to guide prairie management at the West Rocky Prairie Wildlife Area 
(WDFW 2011), which will be this area's guiding document until 
finalized. Prior to the management plan being developed, the site was 
managed for an array of species and recreational activities, including 
restoration actions designed to improve the prairie conditions for the 
Taylor's checkerspot butterfly, mardon skipper butterfly (Polites 
mardon), and Mazama pocket gopher. The Scatter Creek Wildlife Area and 
adjacent private lands are currently occupied by the Taylor's 
checkerspot butterfly; the West Rocky Prairie Wildlife Area is not 
known to be occupied by the subspecies.
    Benefits of Inclusion--Scatter Creek Wildlife Area and Adjacent 
Private Land; West Rocky Prairie Wildlife Area--The primary effect of 
designating any particular area as critical habitat is the requirement 
for Federal agencies to consult with us under section 7 of the Act to 
ensure actions they carry out, authorize, or fund do not adversely 
modify designated critical habitat. Absent critical habitat designation 
in occupied areas, Federal agencies remain obligated under section 7 of 
the Act to consult with us on actions that may affect a federally 
listed species to ensure such actions do not jeopardize the species' 
continued existence.
    The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
the difference in outcomes of these two analyses represents the 
regulatory benefit of critical habitat. The regulatory standard is 
different, as the jeopardy analysis investigates the action's impact on 
the survival and recovery of the species, while the adverse 
modification analysis focuses on the action's effects on the designated 
habitat's contribution to conservation. This will, in many instances, 
lead to different results and different regulatory requirements. Thus, 
critical habitat designations have the potential to provide greater 
benefit to the recovery of a species than would listing alone.
    The inclusion of these covered lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard based on the Ninth Circuit 
Court's decision in Gifford Pinchot Task Force v. United States Fish 
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted above, a 
potential benefit of inclusion would be the requirement of a Federal 
agency to ensure that their actions on these non-Federal lands would 
not likely result in the destruction or adverse modification of 
critical habitat. However, this additional analysis to determine 
whether a Federal action is likely to result in destruction or adverse 
modification of critical habitat is not likely to be significant 
because these covered lands are not under Federal ownership, making the 
application of section 7 less likely. As often as not, any actions 
required to restore or maintain favorable habitat conditions are not 
associated with a Federal action, and thus would not trigger any 
protections afforded by the designation of critical habitat. The 
granting of Federal funds for beneficial management of prairie-
associated species such as Taylor's checkerspot butterfly would provide 
the only foreseeable Federal nexus for these non-Federal lands. WDFW 
has received funding specifically to improve habitat features such as 
vegetation composition, and structure to support rare and threatened 
butterflies, including the Taylor's checkerspot butterfly, mardon 
skipper butterfly, and valley silverspot butterfly (Speyeria zerene 
bremnerii). This funding will support activities through 2017. Funding 
is also provided to WDFW from the DOD ACUB program, which is a high 
priority program for DOD. Leadership at DOD has confirmed that the 
program will continue into the future (Jeff Foster, pers. comm. 2013). 
The small amount of resultant section 7 consultation required by this 
habitat management funding is not likely to provide much added benefit 
to the species, as one of the primary threats to the Taylor's 
checkerspot butterfly is the loss and degradation of its habitat, 
therefore habitat considerations will already play into the jeopardy 
determination for the subspecies in the currently occupied area at 
Scatter Creek, and the additional consideration of adverse modification 
of critical habitat is unlikely to result in a different outcome. In 
addition, for both Scatter Creek and West Rocky Prairie, the action 
most likely to be consulted on is itself intended to benefit prairie-
associated species, therefore the outcome of consultation is unlikely 
to provide a significant additional benefit to the species as a result 
of critical habitat designation.
    The Service has coordinated with WDFW on conservation actions to be 
implemented for the Taylor's checkerspot butterfly at the Scatter Creek 
Wildlife Area and West Rocky Prairie Wildlife Area in south Thurston 
County, Washington. As with the NAPs in Thurston County, management of 
the prairie Wildlife Areas in Thurston County is guided in large part 
by the South Puget Sound Prairie Landscape Working Group, which was 
established in 1994, to promote and improve the management and planning 
of conservation actions on south Puget Sound prairies and associated 
habitats. This is a well-established group that is expected to continue 
its coordination efforts into the foreseeable future. Designation of 
these Wildlife Areas as critical habitat would yield no additional 
benefit to the outputs of the Working Group, its members, or their ease 
of coordination, as the active, long-term efforts of this group are 
expected to continue regardless of the designation of critical habitat. 
The incremental benefit from designating critical habitat for Taylor's 
checkerspot butterfly in these areas is further minimized because of 
the long-standing management planning efforts that have been 
implemented and planned for the two Wildlife Areas and the associated 
private land inholding, which is managed using the same management 
methods as the Wildlife Areas. These properties have implemented 
management for the conservation of prairie habitat and prairie 
associated species. Each Wildlife Area focuses their management to 
promote the production of larval host and adult nectar food resources 
for the Taylor's checkerspot butterfly, and these areas contain several 
of the essential physical or biological features to support the 
subspecies. Management planning for each of the Wildlife Areas has

[[Page 61541]]

established a track record of activity focused on enhancing 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 Taylor's checkerspot butterfly and other rare prairie 
butterflies (Hays 2013). The restoration being implemented and the 
guidance from the management plan provides greater protection to 
Taylor's checkerspot butterfly habitat than the designation of critical 
habitat, since the planning effort is intended to actively improve the 
structure and composition of the habitat (the designation of critical 
habitat does not require any active management). Therefore, the 
existing management at this site will provide greater benefit than the 
regulatory designation of critical habitat, which only requires the 
avoidance of adverse modification and does not require the creation, 
improvement, or restoration of habitat.
    Another potential benefit of including Wildlife Area lands in a 
critical habitat designation is that it serves to educate landowners, 
State and local governments, and the public regarding the potential 
conservation value of an area. This helps focus and promote 
conservation efforts by other parties by identifying areas of high 
conservation value for the Taylor's checkerspot butterfly. The 
designation of critical habitat informs State agencies and local 
governments about areas that could be conserved under State laws or 
local ordinances. Any additional information about the needs of the 
Taylor's checkerspot butterfly or its habitat that reaches a wider 
audience can be of benefit to future conservation efforts. During the 
spring of 2013 alone, the Service hosted two prairie workshops, one 
public hearing, and two local Thurston County events attended by nearly 
1,000 people to publicize and educate local community members of the 
species' declining distribution, and the threat to the native flora and 
fauna found on western Washington prairies. An important conservation 
measure that is gained through these outreach networks is the ability 
to educate the public about the historical role and current importance 
of prairies to our local community and economy. Included among the 
outreach measures is the distribution of educational material, and 
encouraging landowners to conduct prairie restoration activities on 
their properties. Additional events are expected to occur in the 
future, and designation of the Wildlife Areas as critical habitat is 
not expected to increase the number of such meetings or improve their 
outcomes. Therefore, the incremental benefit of critical habitat in 
terms of education value is negligible.
    The incremental benefit of inclusion is minimized because of the 
long-standing management planning efforts for each Wildlife Area, and 
the associated private inholding, as discussed above. In addition, the 
restoration plans provide greater protection to Taylor's checkerspot 
butterfly habitat than the designation of critical habitat, since the 
planning effort is intended to actively improve the structure and 
composition of the habitat. Therefore, designation of critical habitat 
on these areas would not provide any additional management focus that 
is not already occurring at these locations under Washington State 
management authority, through plans developed through the Service's 
recovery program, or through the DOD ACUB funding authority which has 
provided funding support for many of our local protected prairies, 
including these Wildlife Areas.
    Benefits of Exclusion--Scatter Creek Wildlife Area and Adjacent 
Private Land; West Rocky Prairie Wildlife Area--The benefits of 
excluding these two Wildlife Areas and the associated private inholding 
from designated critical habitat are substantial. We have worked to 
sustain a close partnership with WDFW through regular coordination and 
the development of the Wildlife Area management plans. The management 
plans contain provisions that will improve the conservation status of 
the Taylor's checkerspot butterfly. Measures contained in the 
management plans are consistent with recommendations from the Service 
for the conservation of the Taylor's checkerspot butterfly, and will 
afford benefits to the subspecies and its habitat.
    Excluding these Wildlife Areas and associated private inholding 
from critical habitat designation will provide significant benefits in 
terms of sustaining and enhancing the excellent partnership between the 
Service, WDFW, and the private landowner, as well as other partners who 
participate in prairie management decision-making, with positive 
consequences for conservation. The willingness of WDFW and the private 
landowner to undertake conservation efforts for the benefit of the 
Taylor's checkerspot butterfly and to work with the Service to develop 
new management plans for the species will continue to reinforce those 
conservation efforts and our partnership, which will support the 
recovery process for Taylor's checkerspot butterfly. We consider this 
voluntary partnership in conservation vital to our understanding of the 
status of Taylor's checkerspot butterfly on WDFW lands and throughout 
western Washington, and necessary for us to implement recovery actions 
such as habitat protection, restoration, and beneficial management 
actions for the subspecies. Furthermore, exclusion from critical 
habitat could have the benefit of encouraging other landowners to 
engage in similar conservation partnerships and efforts, with positive 
outcomes for the conservation of listed species.
    The designation of critical habitat could have an unintended 
negative effect on our relationship with non-Federal landowners due to 
the perceived imposition of redundant government regulation. If lands 
within the area managed by WDFW for the benefit of the Taylor's 
checkerspot butterfly are designated as critical habitat, it could have 
a dampening effect on our continued ability to seek new partnerships 
with future participants including States, counties, local 
jurisdictions, conservation organizations, and private landowners, 
which together can implement various conservation actions (such as safe 
harbor agreements (SHAs), HCPs, and other conservation plans, 
particularly large, regional conservation plans that involve numerous 
participants or address landscape-level conservation of species and 
habitats) that we would be unable to accomplish otherwise. Our WDFW 
conservation partners made a commitment more than a decade ago to 
include the Taylor's checkerspot butterfly in their Wildlife Area 
implementation plan, and they have engaged with and encouraged others 
to join in conservation partnerships, such as the South Puget Sound 
Prairie Landscape Working Group. In addition, the private landowner 
serves as a model of voluntary conservation and may aid in fostering 
future voluntary conservation efforts by other private parties in other 
locations for the benefit of listed species; this is a significant 
benefit, since the majority of listed species occur on private lands. 
We consider the positive effect of excluding proven conservation 
partners from critical habitat to be a significant benefit of 
exclusion.
    Benefits of Exclusion Outweigh Benefits of Inclusion--Scatter Creek 
Wildlife Area and Adjacent Private Land; West Rocky Prairie Wildlife 
Area--We have determined that the benefits of excluding these prairie 
Wildlife Areas (Scatter Creek and adjacent private land, and West Rocky

[[Page 61542]]

Prairie) from the designation of critical habitat for the Taylor's 
checkerspot butterfly outweigh the benefits of including these areas in 
critical habitat. The regulatory and informational benefits of 
inclusion will be minimal. As noted above, a potential benefit of 
inclusion would be the requirement of a Federal agency to ensure that 
their actions on these non-Federal lands would not likely result in the 
destruction or adverse modification of critical habitat. However, this 
additional analysis to determine whether a Federal action is likely to 
result in destruction or adverse modification of critical habitat is 
not likely to be significant because these covered lands are not under 
Federal ownership, making the application of section 7 less likely. Any 
additional benefits of inclusion on the section 7 process are therefore 
relatively unlikely because a Federal nexus on these lands would rarely 
occur. If a Federal nexus were to occur, it would most likely be with 
the Service or DOD, and the proposed actions would be geared toward the 
conservation benefits of restoring and enhancing habitat specifically 
for the Taylor's checkerspot butterfly, or other rare butterflies. This 
type of proactive management, if focused on the maintenance of open, 
short-statured vegetative conditions that the Taylor's checkerspot 
butterfly typically occupies, will outweigh any benefit from the 
regulatory designation of critical habitat, which only requires the 
avoidance of adverse modification and does not require the creation, 
improvement, or restoration of habitat.
    The South Puget Sound Prairie Landscape Working Group partnership, 
which assists with guiding management on the Wildlife Areas, would not 
be additionally benefitted due to inclusion of the Wildlife Areas in 
critical habitat, as this is a well-established, cohesive, and 
productive group that has and will continue to yield positive 
conservation outcomes for Taylor's checkerspot butterfly on south Sound 
prairies, including these Wildlife Areas, regardless of critical 
habitat. The conservation strategies of each Wildlife Area management 
plan are crafted to protect and enhance habitat for the Taylor's 
checkerspot butterfly. These plans includes species-specific management 
actions to support Taylor's checkerspot butterfly, avoidance and 
minimization measures, and monitoring requirements to ensure proper 
implementation, which further minimizes the benefits of including these 
areas in a designation of critical habitat.
    A significant benefit of excluding these lands is that it will help 
us maintain and foster an important and successful partnership with our 
Washington State conservation partners who made a decision to include 
the Taylor's checkerspot butterfly in their Wildlife Area 
implementation plan in 2007, when it was a State endangered species 
(and a Federal candidate species). They have encouraged others to join 
in conservation partnerships as well. Recognizing the important 
contributions of our conservation partners through exclusion from 
critical habitat helps to preserve these partnerships, and helps foster 
future partnerships for the benefit of listed species, the majority of 
which do not occur on Federal lands; we consider this to be a 
substantial benefit of exclusion. For these reasons, we have determined 
that the benefits of exclusion outweigh the benefits of inclusion in 
this case.
    Exclusion Will Not Result in the Extinction of the Species--Scatter 
Creek Wildlife Area and Adjacent Private Land; West Rocky Prairie 
Wildlife Area--We have determined that exclusion of approximately 633 
ac (256 ha) in the Scatter Creek Wildlife Area owned by WDFW, 98 ac (40 
ha) of private land that is managed by WDFW in the same way as Scatter 
Creek Wildlife Area, and 134 ac (54 ha) of the West Rocky Prairie 
Wildlife Area, lands covered by management plans vetted by several 
conservation partners working in south Puget Sound, will not result in 
the extinction of Taylor's checkerspot butterfly. Actions covered by 
the Wildlife Area management plans will not result in extinction of 
Taylor's checkerspot butterfly because the plans provide for the needs 
of the species by protecting, restoring, and enhancing all the known 
occupied and potentially suitable Taylor's checkerspot butterfly 
habitat under the jurisdiction of the State; committing to the 
enhancement and recruitment of additional habitat through management on 
each Wildlife Area to support meta-population structure within the 
Wildlife Areas; and implementing species-specific conservation measures 
designed to avoid and minimize impacts to the Taylor's checkerspot 
butterfly. Further, for projects having a Federal nexus and potentially 
affecting the Taylor's checkerspot butterfly in occupied areas, the 
jeopardy standard of section 7 of the Act, coupled with protection 
provided by the voluntary Taylor's checkerspot butterfly conservation 
plans that are available to landowners if they so choose, would provide 
a level of assurance that this subspecies will not go extinct as a 
result of excluding these lands from the critical habitat designation. 
Additionally, each of the Wildlife Areas has a specific management plan 
to guide long-term management to direct the habitat enhancement 
activities at each location. The subspecies is also protected from take 
under section 9 of the Act on all properties where the subspecies is 
found. Federal agencies would be required to minimize the effects of 
incidental take, and would be encouraged to avoid incidental take 
through the section 7 consultation process. For these reasons, we find 
that exclusion of these lands covered by these specific Wildlife Area 
management plans will not result in extinction of the Taylor's 
checkerspot butterfly. Based on the above discussion, the Secretary is 
exercising her discretion under section 4(b)(2) of the Act to exclude 
from this final critical habitat designation portions of the proposed 
critical habitat units or subunits that are owned or managed by WDFW, 
totaling about 865 ac (350 ha).
Merrill and Ring Company Voluntary Habitat Conservation Plan
    Private lands totaling 10 ac (4 ha) in Unit 2 (Elwha) and covered 
under the Merrill and Ring Company voluntary habitat conservation plan 
are excluded from this critical habitat designation under section 
4(b)(2) of the Act. Merrill and Ring Company is a private forest 
landowner whose property abuts occupied Taylor's checkerspot butterfly 
habitat. Merrill and Ring Company has collaboratively developed a 
voluntary habitat conservation plan for the Taylor's checkerspot 
butterfly (Schaaf and Davis 2010) in partnership with WDFW, which was 
approved and signed by WDFW and Merrill and Ring Company on February 
10, 2010, and was recently extended from an expiration date of December 
31, 2014, to December 31, 2020 (Schaff and Carlson 2013). The portion 
of WDFW's Taylor's checkerspot butterfly management site on Merrill and 
Ring Company property is approximately 7 ac (3 ha) in size and is 
situated on the south side of the ridge which separates Eden Valley 
from Indian Creek Valley. Despite the small actual acreage of the 
management area for Taylor's checkerspot owned by Merrill and Ring, the 
voluntary habitat conservation plan covers 100 ac (40 ha) of their 
property and acknowledges the potential for Taylor's checkerspot 
butterfly habitat to change in extent and quality over time. The 
management plan commits to actions focused on protecting available 
habitat from various types of traffic and ground disturbance, and the 
corporation has no plan to implement any logging within the

[[Page 61543]]

occupied Taylor's checkerspot butterfly management area at any time. 
Merrill and Ring's voluntary habitat conservation plan defers all 
logging actions through 2020, and at that time, tree harvesting will 
only be implemented in the adjacent commercial forests, where a 
thinning operation may be considered. The voluntary habitat 
conservation plan provides assurances for the restriction of pesticides 
(which will not be applied aerially within 1 mile (1.6 kilometers) of 
the site) and herbicides (which will be applied through ground-based 
methods only and provides greater selectivity in the application 
process). Merrill and Ring Company has cooperated with WDFW to allow 
ongoing surveys of Taylor's checkerspot butterflies, which will serve 
as the foundation for the monitoring of populations and habitat 
conditions.
    Benefits of Inclusion--Merrill and Ring Company Voluntary Habitat 
Conservation Plan--The primary effect of designating any particular 
area as critical habitat is the requirement for Federal agencies to 
consult with us under section 7 of the Act to ensure actions they carry 
out, authorize, or fund do not adversely modify designated critical 
habitat. Absent critical habitat designation in occupied areas, Federal 
agencies remain obligated under section 7 of the Act to consult with us 
on actions that may affect a federally listed species to ensure such 
actions do not jeopardize the species' continued existence.
    The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
the difference in outcomes of these two analyses represents the 
regulatory benefit of critical habitat. The regulatory standard is 
different, as the jeopardy analysis investigates the action's impact on 
the survival and recovery of the species, while the adverse 
modification analysis focuses on the action's effects on the designated 
habitat's contribution to conservation. This will, in many instances, 
lead to different results and different regulatory requirements. Thus, 
critical habitat designations have the potential to provide greater 
benefit to the recovery of a species than would listing alone.
    The inclusion of these private lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard addressed in the Ninth 
Circuit Court's decision in Gifford Pinchot Task Force v. United States 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). As noted 
above, a potential benefit of inclusion would be the requirement of a 
Federal agency to ensure that their actions on these non-Federal lands 
would not likely result in the destruction or adverse modification of 
critical habitat. However, this additional analysis to determine 
whether a Federal action is likely to result in destruction or adverse 
modification of critical habitat is not likely to be significant 
because these covered lands are not under Federal ownership, making the 
application of section 7 less likely. The granting of Federal funds for 
beneficial management of Taylor's checkerspot butterfly habitat would 
provide the only possibility for a Federal nexus covering these lands. 
Although this forest landowner may apply for a Forest Practices permit 
from the State of Washington to harvest timber, it is unlikely to 
trigger a section 7 consultation, as they would not require Federal 
funding or authorization for this operation. Merrill and Ring's 
proposed management actions that may be slated for this location are 
expected to involve tree removal, which would not likely expose 
Taylor's checkerspot butterfly to actions that would cause harm or take 
of the species. The action of removing trees has the potential to 
improve conditions that would be favorable to Taylor's checkerspot 
butterflies by reducing shade, increasing open areas, and stimulating 
the establishment and growth of host plant seeds stored in the soil 
(e.g., Castilleja hispida, Plantago lanceolata), thereby providing a 
benefit to the Taylor's checkerspot butterfly.
    Another benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, private landowners, and the public regarding the potential 
conservation value of an area. This helps focus and promote 
conservation efforts by all parties by identifying areas of high 
conservation value for the Taylor's checkerspot butterfly. The 
designation of critical habitat informs State agencies and local 
governments about areas that could be conserved under State laws or 
local ordinances. Any additional information about the needs of the 
Taylor's checkerspot butterfly or its habitat that reaches a wider 
audience can be of benefit to future conservation efforts and the 
designation of critical habitat increases our ability to educate 
private landowners and the public during outreach events concerning the 
historical role and current importance of grassland balds. We notified 
the general public about outreach events and hearings through a Federal 
Register notice on April 3, 2013 (78 FR 20074). Our outreach measures 
included the distribution of educational material, and encouragement of 
landowners to conduct Taylor's checkerspot habitat restoration 
activities on their own properties. Additional events are expected to 
occur in the future, and designation of this property as critical 
habitat is not expected to increase the number of such meetings or 
improve their outcomes, therefore the potential educational value of 
critical habitat is minimized.
    The incremental benefit from designating critical habitat for 
Taylor's checkerspot butterfly is further reduced due to the long-
standing management planning efforts for the adjacent WDNR land and the 
recently acquired conservation property managed by CNLM. These 
properties have been managed for the conservation of bald-associated 
species and each property provides larval host plants and adult nectar 
resources for Taylor's checkerspot butterflies. For this reason, they 
contain many of the PCEs to support the butterfly. The management 
planning for each of these properties has established a track record of 
positive conservation actions focused on enhancing grassland bald 
composition and structure at each location. All of these lands have 
benefited from the conservation measures implemented by WDFW (Hays 2011 
p. 53), the planning efforts for WDNR managed lands, and the voluntary 
habitat conservation plan for Merrill and Ring Company. These 
conservation plans provide greater protection to Taylor's checkerspot 
butterfly habitat than the designation of critical habitat since the 
planning effort is intended to improve the structure and composition of 
the habitat, and as often as not this work may not be associated with a 
Federal action.
    The voluntary habitat conservation plan from Merrill and Ring 
provides for the needs of Taylor's checkerspot butterfly by protecting 
and managing the grassland balds and implements species-specific 
conservation measures designed to avoid and minimize impacts to 
Taylor's checkerspot butterfly.
    The voluntary habitat conservation plan developed by Merrill and 
Ring Company specifies that no roads would be constructed within 400 
feet (ft) (122 meters (m)) of currently occupied balds and access to 
the property is restricted by a gate. Merrill and Ring Company has 
committed to no timber harvest on the lands covered by the voluntary 
habitat conservation plan through the year 2020, at which time they may 
consider a thinning operation. There are plans to conduct a 
regeneration harvest of the

[[Page 61544]]

forested stands in 2033, and Merrill and Ring Company agrees to buffer 
their managed lands from Taylor's checkerspot butterfly habitat after 
consultation with WDFW and the Service.
    Because of the recent success of Taylor's checkerspot butterfly 
translocations, the planning group who oversees the schedule for 
translocations would give priority consideration to this location for 
future introductions of Taylor's checkerspot butterfly onto high 
quality bald habitat. Therefore, designation of critical habitat would 
not provide any additional management planning effort that is not 
already occurring at these locations under WDFW management authority, 
voluntary conservation planning efforts, or restoration actions 
developed through our recovery program, or through DOD ACUB funding 
authority, which provided the funding support for CNLM to purchase the 
adjacent property located at Dan Kelly Ridge.
    Benefits of Exclusion--Merrill and Ring Company Voluntary Habitat 
Conservation Plan--The benefits of excluding this private property from 
designated critical habitat are substantial. We have worked to sustain 
a close partnership with WDFW and the landowner through regular 
coordination and the development of the Merrill and Ring Company 
voluntary habitat conservation plan. The voluntary habitat conservation 
plan contains provisions that will improve the conservation status of 
the Taylor's checkerspot butterfly. Measures contained in the plan are 
consistent with recommendations from the Service for the conservation 
of the Taylor's checkerspot butterfly, and will afford benefits to the 
subspecies and its habitat.
    Excluding this private property from critical habitat designation 
will provide significant benefit in terms of sustaining and enhancing 
the ongoing partnership between the Service, WDFW, and the private 
landowner, with positive consequences for conservation. The willingness 
of the private landowner to undertake conservation efforts for the 
benefit of the Taylor's checkerspot butterfly and to work with WDFW and 
the Service to develop and employ species conservation actions will 
continue to reinforce those conservation efforts and our partnership, 
which contribute toward achieving recovery of the Taylor's checkerspot 
butterfly. We consider this voluntary partnership in conservation vital 
to our understanding of the status of the Taylor's checkerspot 
butterfly on agricultural lands in western Washington, and necessary 
for us to implement recovery actions such as habitat protection and 
restoration, and beneficial management actions for this subspecies.
    The designation of critical habitat could have an unintended 
negative effect on our relationship with non-Federal landowners due to 
the perceived imposition of redundant government regulation. If these 
private lands, which have been managed under preexisting conservation 
plans for the benefit of Taylor's checkerspot butterfly, are designated 
as critical habitat, it could have a dampening effect on our continued 
ability to seek new partnerships with future participants including 
States, counties, local jurisdictions, conservation organizations, and 
private landowners, which together can implement various conservation 
actions (such as SHAs, HCPs, and other conservation plans, particularly 
large, regional conservation plans that involve numerous participants 
and address landscape-level conservation of species and habitats) that 
we would be unable to accomplish otherwise. This private landowner made 
a commitment to conserve Taylor's checkerspot butterflies and their 
habitat in their voluntary habitat conservation plan. This private 
landowner serves as a model of voluntary conservation and may aid in 
fostering future voluntary conservation efforts by other parties in 
other locations for the benefit of listed species. We consider the 
positive effect of excluding proven conservation partners from critical 
habitat to be a significant benefit of exclusion.
    Benefits of Exclusion Outweigh Benefits of Inclusion--Merrill and 
Ring Company Voluntary Habitat Conservation Plan--In summary, we 
determine that the benefits of excluding the private land parcel owned 
and managed by Merrill and Ring Company, situated adjacent to lands 
conserved for Taylor's checkerspot managed by the WDNR and the CNLM, 
outweigh the benefits of including this property in critical habitat. 
As described above, the regulatory and informational benefits of 
inclusion will be minimal, as these lands are already being managed for 
the conservation of Taylor's checkerspot butterfly under a voluntary 
habitat conservation plan. Any additional benefits of inclusion in 
critical habitat based on the section 7 process are unlikely because a 
Federal nexus on these lands is not expected to occur.
    In addition, the conservation strategies of Merrill and Ring 
Company voluntary habitat conservation plan for the Taylor's 
checkerspot butterfly are designed to protect, restore, and enhance 
habitat for the subspecies. This plan includes species-specific 
management actions to support the Taylor's checkerspot butterfly, 
avoidance and minimization measures, and annual monitoring requirements 
to ensure proper implementation, which further minimizes the benefits 
that would be provided as a result of a critical habitat designation.
    The benefit of excluding this private land parcel is that it will 
help us maintain an important and successful conservation partnership 
with private and non-governmental partners, as well as with our State 
conservation partners, WDFW, and WDNR, all of whom have made a 
commitment to manage for this subspecies and work cooperatively and 
collaboratively with the Service. We further believe that by 
recognizing the voluntary habitat conservation plan negotiated by WDFW 
and Merrill and Ring Company, this voluntary plan can serve as a model 
for other landowners in developing conservation partnerships for the 
benefit of endangered or threatened species, whether that partnership 
is with the Service, the State, or another entity. As the majority of 
listed species occur on private lands, we consider these partnerships 
with private landowners to be a significant benefit for conservation. 
For these reasons, we have determined that the benefits of exclusion 
outweigh the benefits of inclusion in this case.
    Exclusion Will Not Result in the Extinction of the Species--Merrill 
and Ring Company Voluntary Habitat Conservation Plan--We have 
determined that exclusion of approximately 10 ac (4 ha) of private 
timber lands covered by a voluntary habitat conservation plan by 
Merrill and Ring Company will not result in the extinction of the 
Taylor's checkerspot butterfly. Although Taylor's checkerspot butterfly 
is known to occupy an adjacent property, it is not known to occur at 
present on the Merrill and Ring lands in question. Actions covered by 
the voluntary habitat conservation plan will not result in extinction 
of the Taylor's checkerspot butterfly because the voluntary habitat 
conservation plan provides for the needs of the butterfly primarily by 
avoiding any actions that may perpetuate take of the species or its 
habitat by deferring any actions in the vicinity of Taylor's 
checkerspot butterfly habitat for the next decade. Any action taken at 
that time would be in the form of forest thinning (e.g., tree removal 
on the margins of the bald habitat), which could contribute to the 
restoration and enhancement of the currently known occupied and 
potentially suitable Taylor's checkerspot

[[Page 61545]]

butterfly habitat under the jurisdiction of the State. There is little 
likelihood of this timber company project having a Federal nexus and 
therefore having an adverse effect to Taylor's checkerspot butterfly in 
occupied areas, which would trigger the jeopardy standard of section 7 
of the Act. Additionally, the voluntary habitat conservation plan for 
Taylor's checkerspot butterfly entered into by the company would 
provide a level of assurance that this subspecies will not go extinct 
as a result of excluding these lands from the critical habitat 
designation. The subspecies is protected from take under section 9 of 
the Act on all properties where the subspecies is found. For these 
reasons, we find that exclusion of these private lands covered by the 
voluntary habitat conservation plan for the Taylor's checkerspot 
butterfly will not result in extinction of the Taylor's checkerspot 
butterfly. Based on the above discussion, the Secretary is exercising 
her discretion under section 4(b)(2) of the Act to exclude from this 
final critical habitat designation portions of the proposed critical 
habitat unit or subunit that are owned and managed by the private 
timber company, Merrill and Ring.
Colvin Ranch Grassland Reserve Program Management Plan
    Private lands totaling 378 ac (153 ha) that are covered under an 
NRCS Grassland Reserve Program Management Plan are excluded from Unit 
1-Rock Prairie 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 Rock Prairie that lies south of Old Hwy 99 (hereafter known 
as Colvin Ranch). Colvin Ranch has been managed for approximately 10 
years under a long-term Grassland Reserve Program Management Plan (GRP 
plan), and 530 ac (215 ha) of the property is conserved in perpetuity 
by a conservation easement held by NRCS, of which a portion (378 ac 
(153 ha)) is excluded from critical habitat. Under the GRP plan, the 
landowners manage their land using a livestock grazing guideline for 
western Washington prairies developed in partnership with NRCS. The GRP 
plan uses intensive livestock grazing as the primary tool to minimize 
the invasion of prairies by Douglas fir and other woody native and 
nonnative shrub species. Additionally, pasture grasses that are often 
in competition for resources with the native prairie species are 
consumed by the livestock, which makes room for native prairie species 
in the process of restoring prairie composition, structure and 
function. All of these practices provide a positive conservation 
benefit for the Taylor's checkerspot butterfly and its habitat. The 
Service has been coordinating with the landowners regarding the 
potential use of Colvin Ranch for the reintroduction of the Taylor's 
checkerspot butterfly to Rock Prairie.
    Benefits of Inclusion-Colvin Ranch Grassland Reserve Program 
Management Plan--The primary effect of designating any particular area 
as critical habitat is the requirement for Federal agencies to consult 
with us under section 7 of the Act to ensure actions they carry out, 
authorize, or fund do not adversely modify designated critical habitat. 
Absent critical habitat designation in occupied areas, Federal agencies 
remain obligated under section 7 of the Act to consult with us on 
actions that may affect a federally listed species to ensure such 
actions do not jeopardize the species' continued existence. Colvin 
Ranch is not currently occupied by the Taylor's checkerspot butterfly; 
therefore a Federal action would not trigger a jeopardy analysis, but 
would only trigger an analysis of adverse modification should critical 
habitat be designated. The benefits derived from including critical 
habitat for this property would most likely be derived from the 
potential Federal nexus resulting from the granting of Federal funds 
intended to manage the lands to benefit prairie associated species, 
such as the Taylor's checkerspot butterfly. However, we anticipate that 
section 7 consultation related to habitat management funding is not 
likely to provide much added benefit to the species, since the action 
being consulted on is itself intended to benefit prairie-associated 
species, including the Taylor's checkerspot butterfly.
    Another benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. This helps focus and promote conservation efforts by other 
parties by identifying areas of high conservation value for Taylor's 
checkerspot butterfly. Designation of critical habitat informs State 
agencies and local governments about areas that could be conserved 
under State laws or local ordinances. Any additional information about 
the needs of the Taylor's checkerspot butterfly or its habitat that 
reaches a wider audience can be of benefit to future conservation 
efforts.
    During the spring of 2013 alone, the Service hosted four prairie 
focused workshops and one public hearing specifically related to the 
proposed listing and designation of critical habitat. We also 
participated in two local prairie education events in Thurston County 
attended by nearly 1,000 people to publicize and educate local 
community members of the declining distributions and threats to the 
native flora and fauna found on the west-side prairies. One of these 
events was hosted and held at Colvin Ranch. An important conservation 
measure gained through these outreach networks is our ability to 
educate the public about the historical role and current importance of 
prairies to our local community and economy. Included among the 
outreach measures is the distribution of educational material and the 
benefit derived from encouraging landowners to conduct prairie 
restoration activities on their own properties. Additional events are 
expected to occur in the future, and designation of Colvin Ranch as 
critical habitat is not expected to increase the number of such 
meetings or improve their outcomes. As Colvin Ranch is already serving 
as a center of educational information regarding the conservation of 
prairie habitats and their associated species, including Taylor's 
checkerspot butterfly, any potential additional benefit stemming from 
the designation of critical habitat on this property is negligible.
    The incremental benefit from designating critical habitat for the 
Taylor's checkerspot butterfly is further minimized due to the long-
standing management planning efforts implemented on Colvin Ranch. The 
property owner has implemented management for the conservation of 
prairie habitat that provides larval host and adult nectar foods for 
the Taylor's checkerspot butterfly, and the land itself contains many 
of the essential physical or biological features to support the 
butterfly. The implementation of the GRP plan for Colvin Ranch has 
established a track record of activity focused on enhancing prairie 
plant composition and structure. The conservation measures applied at 
Colvin Ranch have more recently been refocused through the development 
of site-specific implementation plans for each location to benefit 
Taylor's checkerspot butterflies and other rare prairie butterflies. 
The implementation of Colvin Ranch GRP plan provides greater protection 
to Taylor's checkerspot butterfly habitat than the designation of 
critical habitat since the

[[Page 61546]]

management is intended to improve the habitat structure and composition 
of the several native prairie dominated paddocks on Colvin Ranch 
(critical habitat designation does not require active management). In 
many cases, this work is accomplished without Federal funding, which 
highlights the landowner's willingness to continue the partnership.
    Colvin Ranch has been an active working ranch in Thurston County 
since 1865. Originally over 3,000 ac (1,214 ha) in size, it is now 
approximately 1,000 ac (405 ha) and located in southern Thurston 
County. Grazing systems have been modified dramatically during this 
time period. Colvin Ranch required an improvement to the infrastructure 
in order to accomplish the goal of improving native prairie composition 
on the ranch through intensive grazing, a practice of grazing greater 
numbers of cows on specific pastures (paddocks) for shorter time 
periods. Miles of fencing were erected to partition the fields into 
intensively managed paddocks, and in each paddock a water source was 
made available. The intensive management regime requires that livestock 
be moved often according to vegetation height or soil condition changes 
specified in the GRP management plan. The Colvin Ranch has been 
partitioned into 35 paddocks, with nearly 300 ac (120 ha) managed for 
the production of native prairie plant composition. Colvin Ranch is 
presently being managed for the benefit of the Taylor's checkerspot 
butterfly and its habitat; we have no information to suggest that the 
designation of critical habitat on this property would generate any 
added benefit to the already positive management efforts being 
implemented.
    Benefits of Exclusion--Colvin Ranch Grassland Reserve Program 
Management Plan--The benefits of excluding this private property from 
designated critical habitat are substantial. We have developed a close 
partnership with the landowner and NRCS through regular coordination 
and outreach activities, using Colvin Ranch as an example of land uses 
that are compatible with prairie conservation. The GRP plan provisions 
that will improve the conservation status of the Taylor's checkerspot 
butterfly include novel grazing practices which have resulted in the 
dramatic increase and maintenance of diverse larval and adult food 
resources for the subspecies. Measures contained in the GRP plan are 
consistent with recommendations from the Service for the conservation 
of the Taylor's checkerspot butterfly, and will afford benefits to the 
subspecies and its habitat.
    Excluding this private property from critical habitat designation 
will provide a significant benefit in terms of sustaining and enhancing 
the excellent partnership between the Service, NRCS, and the private 
landowner, as well as other partners who participate in prairie 
management decision-making, with positive consequences for 
conservation. The willingness of the private landowner to undertake 
conservation efforts for the benefit of the Taylor's checkerspot 
butterfly and work with NRCS and the Service to develop and employ 
conservation actions, will continue to reinforce those conservation 
efforts and our partnership, which contribute toward achieving recovery 
of the Taylor's checkerspot butterfly. We consider this voluntary 
partnership in conservation vital to the development of our 
understanding of the status of Taylor's checkerspot butterfly on 
agricultural lands in western Washington, and necessary for us to 
implement recovery actions such as habitat protection, restoration, and 
beneficial management actions for this subspecies.
    The designation of critical habitat could have an unintended 
negative effect on our relationship with non-Federal landowners due to 
the perceived imposition of government redundant regulation. 
Designation of critical habitat on private lands that are managed for 
the benefit of prairie species, including the Taylor's checkerspot 
butterfly, could have a dampening effect on our continued ability to 
seek new partnerships with future participants including States, 
counties, local jurisdictions, conservation organizations, and private 
landowners. Together, these parties can implement various cooperative 
conservation actions (such as SHAs, HCPs, and other conservation plans, 
particularly large, regional conservation plans that involve numerous 
participants and/or address landscape-level conservation of species and 
habitats) that we would be unable to accomplish otherwise. This private 
landowner made a commitment almost a decade ago to develop and 
implement this GRP management plan, which has restored much of Rock 
Prairie to habitat favorable to the reintroduction of the Taylor's 
checkerspot butterfly, and they have engaged with and encouraged other 
parties, both public and private, to join in conservation partnerships. 
Further, we have been coordinating with this landowner about the 
potential for using Rock Prairie as a reintroduction site for the 
Taylor's checkerspot butterfly. We believe Colvin Ranch would be less 
likely to participate in the reintroduction of the Taylor's checkerspot 
butterfly to Rock Prairie or to encourage others to participate in 
similar grazing intensive ranching practices that restore Taylor's 
checkerspot butterfly habitat if critical habitat were to be designated 
on this property. This private landowner serves as a model of voluntary 
conservation and may aid in fostering future voluntary conservation 
efforts by other parties in other locations for the benefit of listed 
species. Most endangered or threatened species do not occur on Federal 
lands. As the recovery of these species will therefore depend on the 
willingness of non-Federal landowners to partner with us to engage in 
conservation efforts, we consider the positive effect of excluding 
proven conservation partners from critical habitat to be a significant 
benefit of exclusion.
    Benefits of Exclusion Outweigh Benefits of Inclusion--Colvin Ranch 
Grassland Reserve Program Management Plan--In summary, we determine 
that the benefits of excluding the NRCS GRP managed prairies at Colvin 
Ranch from the designation of critical habitat for the Taylor's 
checkerspot butterfly outweigh the benefits of including these areas in 
critical habitat. The regulatory and informational benefits of 
inclusion will be minimal. Furthermore, any potential additional 
benefits of inclusion on the section 7 process are relatively unlikely 
because a Federal nexus on these lands would rarely occur. If one were 
to occur, it would most likely be with the Service or NRCS, and their 
actions will be geared toward the conservation benefits of restoring 
and enhancing habitat specifically for the Taylor's checkerspot 
butterfly, or other rare butterflies. This type of management is 
focused on the maintenance of open, short statured vegetative 
conditions that Taylor's checkerspot butterflies typically occupy. 
Since any action likely to be the subject of consultation under the 
adverse modification standard on this unoccupied area would be focused 
on providing positive habitat benefits for the Taylor's checkerspot 
butterfly, we find it unlikely that critical habitat would result in 
any significant additional benefit to the subspecies. Furthermore, the 
benefits of including this area in critical habitat are reduced since 
significant management actions are already underway to restore the 
prairie habitat in this area for the benefit of rare butterflies, 
including Taylor's checkerspot butterfly. In this instance, the GRP 
plan for Colvin Ranch contains

[[Page 61547]]

provisions for protecting and restoring prairie habitat for the 
Taylor's checkerspot butterfly on Rock Prairie that exceed the 
conservation benefits that would be afforded through section 7 
consultation.
    A significant benefit of excluding these lands is that it will help 
us maintain and foster an important and successful partnership with 
this private landowner partner and NRCS. They have consistently 
supported stewardship of prairie habitat beneficial to the conservation 
of the Taylor's checkerspot butterfly and have consistently encouraged 
others to join in conservation partnerships as well. The exclusion of 
Colvin Ranch will serve as a positive conservation model, and encourage 
other private landowners to partner with the Service for the purpose of 
conserving listed species. For these reasons, we have determined that 
the benefits of exclusion outweigh the benefits of inclusion in this 
case.
    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 Rock 
Prairie managed under the GRP management plan implemented at Colvin 
Ranch will not result in extinction of the Taylor's checkerspot 
butterfly. Presently, Rock Prairie is unoccupied by the Taylor's 
checkerspot butterfly, but it was previously known to fly in great 
abundance on Rock Prairie. Actions covered by the GRP management plan 
will not result in the extinction of the Taylor's checkerspot butterfly 
because: (i) The butterfly is not present on Colvin Ranch at this time; 
(ii) the management implemented on Colvin Ranch has continually 
improved the prairie habitat during the 9 years it has been practiced; 
and (iii) management of the prairie paddocks will continue and be 
modified over time as new information is gained through systematically 
monitoring the results of their intensive grazing system.
Benton County Prairie Species HCP, Oregon
    Approximately 106 ac (43 ha) of lands owned by Benton County 
(Oregon) and proposed as critical habitat for the Taylor's checkerspot 
butterfly are covered under the Benton County Prairie Species HCP and 
are excluded from Unit 4 of this critical habitat designation under 
section 4(b)(2) of the Act. The Benton County Prairie Species HCP has a 
50-year term and addresses lands owned or managed by Benton County and 
any private lands in the County that contain wet or upland prairie 
habitat in Benton County. This HCP includes provisions for long-term 
planning, avoiding and minimizing impacts to habitat for the species 
that are covered under the HCP, and mitigating for habitat losses when 
it is unavoidable. The Benton County Prairie Species HCP covers a total 
of roughly 11,700 ac (4,734 ha) of lands and rights-of-way within 
Benton County with prairie habitat, of which Benton County owns 
approximately 1,182 ac (478 ha). On January 14, 2011, a section 
10(a)(1)(B) permit was issued to the County under the Act. The seven 
species covered under this HCP exclusively occupy prairie and prairie-
like habitats and include the Taylor's checkerspot butterfly, Fender's 
blue butterfly (Icaricia icarioides fenderi), Bradshaw's lomatium 
(Lomatium bradshawii), Kincaid's lupine (Lupinus oreganus), peacock 
larkspur (Delphinium pavonaceum), Nelson's checkermallow (Sidalcea 
nelsoniana), and Willamette daisy (Erigeron decumbens).
    Covered activities include ground-disturbing construction 
activities associated with home building, farming, and forestry 
practices; management of public lands and lands owned or managed by 
conservation organizations; and activities providing essential public 
services in the County (e.g., transportation and water system 
management, and utilities construction and maintenance). Cooperators 
under the HCP include: the City of Corvallis, Oregon Department of 
Transportation, Oregon State University, Greenbelt Land Trust, Pioneer 
Telephone Cooperative, and NorthWest Natural Gas.
    The overall biological goal of this HCP is to achieve sustainable 
populations of covered species, while maintaining local populations and 
fostering habitat connectivity. The County and cooperators will support 
sustainable population numbers through conservation measures designed 
to enhance existing populations of covered species, support their 
habitat, and increase the distribution and connectivity of their 
populations in Benton County.
    The Benton County Prairie Species HCP has management goals and 
objectives for sites that currently support Taylor's checkerspot 
butterflies (Fitton Green and Beazell Memorial Forest), and Fort 
Hoskins, which has suitable habitat but has not had a documented 
occurrence of Taylor's checkerspot butterfly for several years. The 
Benton County Prairie Species HCP will undertake prairie habitat 
restoration and enhancement in the above locations.
    Benefits of Inclusion-Benton County Prairie Species HCP--We find 
that there is minimal benefit from designating critical habitat for the 
Taylor's checkerspot butterfly within the area covered by the Benton 
County Prairie Species HCP because, as explained above, these covered 
lands are already managed for the conservation of the subspecies over 
the term of the HCP. The Benton County Prairie Species HCP includes a 
species-specific management plan for the Taylor's checkerspot 
butterfly; avoidance and minimization measures; and monitoring 
requirements to ensure proper implementation. The Benton County Prairie 
Species HCP provides for the needs of the Taylor's checkerspot 
butterfly by protecting and managing all current and former known 
habitat areas on County owned lands and implementing conservation 
measures designed to avoid and minimize impacts to individual Taylor's 
checkerspot butterflies. Management guidelines were developed for areas 
currently occupied by the subspecies as well as areas that have 
suitable habitat conditions but that are not known to be currently 
occupied. The conservation measures provided by the HCP will provide 
greater protection to Taylor's checkerspot butterfly habitat than the 
designation of critical habitat since they are intended to improve 
habitat conditions (critical habitat only requires the avoidance of 
adverse modification; it does not require actions to improve habitat). 
Therefore, the HCP contains provisions for protecting and maintaining 
Taylor's checkerspot butterfly habitat that exceed the conservation 
benefits that would be afforded through section 7 consultation.
    The inclusion of these covered lands as critical habitat could 
provide some additional Federal regulatory benefits for the species 
consistent with the conservation standard based on the Ninth Circuit 
Court's decision in Gifford Pinchot Task Force v. United States Fish 
and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004). Because one of the 
primary threats to Taylor's checkerspot butterfly is habitat loss and 
degradation, the consultation process under section 7 of the Act for 
projects in occupied areas (Beazell Forest and Fitton Green) with a 
Federal nexus will, in evaluating effects to Taylor's checkerspot 
butterfly under the jeopardy standard, evaluate the effects of the 
action on the conservation or functionality of the habitat for the 
subspecies regardless of whether critical habitat is designated on 
these lands. The analytical requirements to support a jeopardy 
determination on excluded land are similar, but not identical, to the

[[Page 61548]]

requirements in an analysis for an adverse modification determination 
on included land. In unoccupied areas (Fort Hoskins), a potential 
benefit of inclusion would be the requirement of a Federal agency to 
ensure that their actions on these non-Federal lands would not likely 
result in the destruction or adverse modification of critical habitat. 
The Bonneville Power Administration (BPA) does have a transmission line 
corridor right-of-way across the northern portion of Fitton Green that 
falls within the boundaries of County-owned lands covered under the 
Benton County Prairie Species HCP. BPA conducts limited activities 
within the right-of-way that are intended to maintain the integrity of 
the powerlines to deliver electrical power. Routine maintenance 
activities are mostly related to removing trees that may come in 
contact with the powerlines. Tree removal is likely to assist in 
maintaining the open, short-statured vegetation communities that 
Taylor's checkerspot butterflies require, and most often use. Section 7 
consultation related to BPA right-of-way maintenance is not likely to 
provide much benefit in reducing impacts to critical habitat since the 
nature of routine maintenance activities that would be consulted on 
should be beneficial to the long-term maintenance of suitable habitat 
for the Taylor's checkerspot butterfly. In addition, as noted above, as 
this area is occupied by the subspecies, the effects of any Federal 
action will already be analyzed under the jeopardy standard in section 
7 consultation, including effects to the conservation value of the 
habitat. In general, any Federal agency authorizing, funding, or 
carrying out an action on these HCP-covered lands would have to 
consider the conservation restrictions on these lands and incorporate 
measures necessary to ensure the conservation of these resources, 
thereby reducing any incremental benefit critical habitat may have.
    Another benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. This helps focus and promote conservation efforts by other 
parties by identifying areas of high conservation value for the 
Taylor's checkerspot butterfly. Designation of critical habitat informs 
State agencies and local governments about areas that could be 
conserved under State laws or local ordinances. Any additional 
information about the needs of the Taylor's checkerspot butterfly or 
its habitat that reaches a wider audience can be of benefit to future 
conservation efforts. However, the Benton County Prairie Species HCP 
has already gone through public review and included public meetings 
about the prairie conservation strategy. An important conservation 
measure that is implemented under the HCP is public outreach. Included 
among the outreach measures is the distribution of educational 
materials, holding prairie conservation workshops, and encouraging 
landowners to conduct prairie restoration activities on their own 
properties. Additional educational and informational benefits that 
might arise from critical habitat designation have already largely 
occurred through public meetings and review of the draft HCP and are 
going to continue to occur through implementation of the conservation 
measures of the final HCP. The potential educational value of critical 
habitat in this instance is therefore further reduced.
    Benefits of Exclusion-Benton County Prairie Species HCP--Compared 
to the minimal benefits of inclusion of this area in critical habitat, 
the benefits of excluding from designated critical habitat the 
approximately 106 ac (43 ha) of lands currently managed under the HCP 
are considerable.
    HCP conservation measures that provide a benefit to the Taylor's 
checkerspot butterfly and its habitat have been implemented since its 
approval in 2011. Excluding the lands managed under the Benton County 
Prairie Species HCP from critical habitat designation will sustain and 
enhance the working relationship between the Service and the County.
    Excluding lands within HCPs from critical habitat designation can 
also facilitate our ability to seek new partnerships with future HCP 
participants including States, counties, local jurisdictions, non-
governmental conservation organizations, and private landowners, which 
together can implement conservation actions that we would be unable to 
accomplish otherwise. If lands within the HCP plan areas are designated 
as critical habitat, it would likely have a negative effect on our 
ability to establish new partnerships to develop HCPs, particularly 
larger HCPs that involve numerous participants and address the 
necessary landscape-level conservation of species and habitats. By 
excluding these lands, we preserve and enhance our current partnerships 
and encourage additional conservation actions in the future for the 
Taylor's checkerspot butterfly and other listed species.
    Benefits of Exclusion Outweigh the Benefits of Inclusion-Benton 
County Prairie Species HCP--In summary, we determine that the benefits 
of excluding areas covered by the Benton County Prairie Species HCP 
from the designation of critical habitat for the Taylor's checkerspot 
butterfly outweigh the benefits of including this area in critical 
habitat. The regulatory and informational benefits of inclusion will be 
minimal. In areas occupied by the Taylor's checkerspot butterfly, any 
potential consultation under section 7 of the Act will evaluate the 
effects of the action on the conservation or functionality of the 
habitat for the species regardless of whether critical habitat is 
designated for these lands. The analytical requirements to support a 
jeopardy determination on excluded land are similar, but not identical, 
to the requirements in an analysis for an adverse modification 
determination on included land. The most likely Federal nexus would be 
with BPA, and their actions are generally limited to maintaining the 
right-of-way to be free of encroaching trees that may eventually come 
in contact with the powerlines. This type of right-of-way maintenance 
should also maintain the open, short statured vegetative conditions 
that the Taylor's checkerspot butterfly typically occupies, and so 
benefits the subspecies. The additional benefit of consultation under 
the adverse modification standard is therefore minimal.
    In addition, the conservation strategies of the Benton County 
Prairie Species HCP are designed to protect and enhance habitat for the 
Taylor's checkerspot butterfly. The HCP includes a species-specific 
management plan for the Taylor's checkerspot butterfly, avoidance and 
minimization measures, and monitoring requirements to ensure proper 
implementation, which further minimizes the benefits that would be 
provided as a result of a critical habitat designation.
    The benefit of excluding these lands is that it will help us 
maintain an important and successful conservation partnership with a 
county government that voluntarily included the Taylor's checkerspot 
butterfly in its HCP when it was a Federal candidate species, and 
exclusion of these areas may encourage others to join in conservation 
partnerships as well. For these reasons, we have determined that the 
benefits of exclusion outweigh the benefits of inclusion in this case.
    Exclusion Will Not Result in Extinction of the Species-Benton 
County Prairie Species HCP--We have determined that exclusion of 
approximately 106 ac (43 ha) of lands covered under the Benton County

[[Page 61549]]

Prairie Species HCP will not result in extinction of the Taylor's 
checkerspot butterfly because the HCP provides for the needs of the 
butterfly by: protecting, restoring, and enhancing all the known 
occupied and potentially suitable Taylor's checkerspot butterfly 
habitat under the jurisdiction of the County; committing to the 
enhancement and recruitment of additional habitat over the term of the 
HCP; and, implementing species-specific conservation measures designed 
to avoid and minimize impacts to the Taylor's checkerspot butterfly. 
Further, for projects having a Federal nexus and affecting Taylor's 
checkerspot butterfly in occupied areas, the jeopardy standard of 
section 7 of the Act, coupled with protection provided by the Benton 
County Prairie Species HCP, would provide a level of assurance that 
this species will not go extinct as a result of excluding these lands 
from the critical habitat designation. The species is also protected 
from take under section 9 of the Act on all properties where the 
species is found. Federal agencies would be required to minimize the 
effects of incidental take, and would be encouraged to avoid incidental 
take through the section 7 consultation process. For these reasons, we 
find that exclusion of these lands covered by the Benton County Prairie 
Species HCP will not result in extinction of the Taylor's checkerspot 
butterfly. Based on the above discussion, the Secretary is exercising 
her discretion under section 4(b)(2) of the Act to exclude from this 
final critical habitat designation portions of the proposed critical 
habitat units or subunits that are within the Benton County Prairie 
Species HCP covered lands totaling about 106 ac (43 ha).
Non-Federal Airports
    The streaked horned lark occurs on airports because management to 
control hazardous wildlife has incidentally created suitable habitat 
for the subspecies. Airports create the large, open landscape context 
preferred by streaked horned larks, and mowing and other management 
practices to maintain short-statured vegetation for aviation safety 
similarly inadvertently provides the type of vegetation utilized by the 
subspecies. However, airports are not ideal locations for focusing 
recovery efforts for the streaked horned lark. First, larks are at risk 
of mortality from aircraft collisions, and have been documented as a 
hazardous species at airports (Cleary and Dolbeer 2005, p. 101). 
Secondly, Federal Aviation Administration (FAA) regulations require 
airports to take immediate action to alleviate wildlife hazards 
whenever they are detected (14 CFR 139.337). This requirement to 
maintain airfields free of wildlife hazards would severely limit the 
potential to increase streaked horned lark populations on airports. 
Given the combined threats of aircraft strikes and constant management 
to minimize bird populations, airports do not provide ideal conditions 
for the long-term conservation of the streaked horned lark.
    We received comments from the FAA, airports, and airport operators 
associations expressing concern that designating critical habitat for 
the streaked horned lark on airports implies that airports are desired 
locations to provide for conservation and recovery of the streaked 
horned lark, which is in conflict with their requirements to provide 
safe conditions for aviation. Several commenters recommended that 
airports should be excluded from critical habitat in favor of sites 
with the potential for long-term conservation management. This is also 
consistent with comments received from one of the proposed rule's peer 
reviewers: ``[hellip] bird conservation is not and should not be a 
desired component of airport management'' (Altman 2013, p. 6). We 
agree. Although airports currently support some of the largest 
populations of streaked horned larks, we consider airports to provide 
transitory suitable habitat for the subspecies, and we have no 
intention of encouraging an increase in populations of streaked horned 
larks on airports as part of our long-term recovery strategy. Although 
the development of a recovery plan will come subsequent to the listing 
of the streaked horned lark, it is our intention that the conservation 
and recovery of the subspecies will rely on the restoration and 
maintenance of more suitable natural habitats or habitats with more 
compatible land uses for the streaked horned lark.
    Benefits of Inclusion-Non-Federal Airports--We find there are 
minimal benefits to including non-Federal airport lands in critical 
habitat for the streaked horned lark. As discussed above, the 
designation of critical habitat invokes the provisions of section 7. 
Since the non-Federal airport lands in question are all occupied by the 
streaked horned lark, if a Federal nexus were to occur, section 7 
consultation would be triggered by the presence of the listed 
subspecies and the Federal agency would consider the effects of its 
actions on the subspecies through a jeopardy analysis. Because one of 
the primary threats to the streaked horned lark is habitat loss and 
degradation, the consultation process under section 7 of the Act for 
projects with a Federal nexus will, in evaluating effects to the 
streaked horned lark, evaluate the effects of the action on the 
conservation or functionality of the habitat for the subspecies 
regardless of whether critical habitat is designated for these lands. 
The analytical requirements to support a jeopardy determination on 
excluded lands are similar, but not identical, to the requirements in 
an analysis for an adverse modification determination on lands 
designated as critical habitat. However, the additional conservation 
value that could be attained through the adverse modification analysis 
for critical habitat under section 7 would likely not be significant, 
and would be triggered only in the event of a Federal action.
    Another benefit of including lands in a critical habitat 
designation is that it serves to educate landowners, State and local 
governments, and the public regarding the potential conservation value 
of an area. This helps focus and promote conservation efforts by other 
parties by identifying areas of high conservation value for the 
streaked horned lark. The designation of critical habitat at airports 
would highlight the stable habitats that have been unintentionally 
created on non-Federal airport lands, and which are known to be used by 
streaked horned larks as breeding and wintering habitats. However, 
airport managers are already aware of the presence of the streaked 
horned lark, and some airports have already incorporated management for 
the streaked horned lark into their operating plans (for example, 
Olympia Regional Airport; see Benefits of Exclusion-Non-Federal 
Airports, below); this existing knowledge reduces the benefits of 
including these non-Federal airport lands in the critical habitat 
designation. Since airport managers are already aware of the presence 
of the streaked horned lark on their lands, and in some cases existing 
management already benefits the streaked horned lark and would not be 
altered by the designation of critical habitat, we believe the 
potential educational benefit of critical on non-Federal airports will 
be extremely limited.
    The Service has no intention of promoting increased populations of 
streaked horned larks on airports as part of the long-term recovery and 
conservation strategy for the subspecies. Although non-Federal airports 
inadvertently provide suitable habitat for streaked horned larks, we 
consider airport habitats to be of relatively low conservation value 
over the long term. Our conservation strategy for the

[[Page 61550]]

streaked horned lark will focus on the restoration and management of 
natural habitats for the subspecies, free of the risks and disturbance 
associated with air traffic; the designation of critical habitat on 
airports would thus run counter to our overall conservation strategy 
for the streaked horned lark. Therefore, while we find some benefits of 
including non-Federal airport lands in the designation of critical 
habitat for the streaked horned lark, we find these benefits are 
reduced due to the known presence of streaked horned larks on their 
lands and existing management already benefiting the streaked horned 
lark. As described above, we believe the potential educational benefit 
of critical habitat on non-Federal airports will therefore be extremely 
limited. In addition, the benefits of including non-Federal airport 
lands are further reduced because all of these lands are presently 
occupied by the streaked horned lark, therefore should a project having 
a Federal nexus take place, section 7 consultation would occur under 
the jeopardy standard-- including the consideration of potential 
effects to habitat for the streaked horned lark--regardless of the 
designation of critical habitat. Finally, the benefits to the streaked 
horned lark of designating non-Federal airport lands as critical 
habitat are relatively minimal because, for reasons described above, we 
do not intend to focus conservation and recovery efforts on these lands 
over the long term.
    Benefits of Exclusion-Non-Federal Airports-- Compared to the 
minimal benefits of including non-Federal airport lands in critical 
habitat, the benefits of excluding non-Federal airport lands from 
designated critical habitat are more substantial.
    As mentioned above, managers of non-Federal airport lands occupied 
by streaked horned larks are generally aware of the presence of the 
subspecies, and in some cases airport managers have already developed 
management plans that provide benefits to the streaked horned lark. The 
exclusion of non-Federal airport lands from the designation of critical 
habitat would allow us to foster a positive conservation partnership 
with airport entities in the future, and encourage the development of 
beneficial management plans such as that developed for the Olympia 
Regional Airport in Washington. These conservation partnerships have 
the potential to produce tangible conservation results for the streaked 
horned lark as evidenced by the development of management plans that 
consider the needs of streaked horned larks and other prairie-dependent 
species. For example, the Olympia Regional Airport Master Plan (Airport 
Master Plan) and Sensitive Species and Priority Habitats Inventory and 
Management Plan that the Olympia Regional Airport is implementing will 
provide long-term protection for the streaked horned lark, and serves 
as a model that the Service will use in the development of partnership 
agreements with other airports after the subspecies is listed. 
Fostering these positive conservation partnerships is a significant 
benefit of exclusion from critical habitat. Below we present specific 
details of the conservation partnership with the Olympia Regional 
Airport as a model that we will use in discussions with other non-
Federal airports in partnering for the conservation of the streaked 
horned lark.
    The conservation partnership developed between the Service, WDFW, 
and the Olympia Regional Airport over many years has resulted in 
positive actions to address and minimize impacts or potential conflicts 
to prairie-dependent species, including the streaked horned lark, from 
activities conducted on airport property. As evidence of the positive 
benefits that have accrued from this partnership, and that could be 
gained from the pursuit of other similar partnerships, the Port of 
Olympia has agreed to protect the streaked horned lark at the Olympia 
Regional Airport and to inventory, manage and maintain habitat for the 
streaked horned lark and other prairie-dependent species on the 
airport. The Airport Master Plan outlines State, county, and city 
regulations and ordinances related to critical areas, as well as FAA 
safety regulations and compliance responsibilities, and strategies for 
the protection of State-listed and sensitive species while meeting the 
needs of the airport as an Essential Public Facility (Port Of Olympia 
2013, pp. 7-12). The June 2013 Update to the Airport Master Plan 
includes commitments to follow recommendations provided by WDFW for the 
protection of State-listed and sensitive species present on the 
airport, including: (1) Minimizing the amount of impervious surfaces; 
(2) maintaining and/or creating suitable habitat (sparsely vegetated 
areas with annual and native grasses, less than 10 percent woody 
shrubs, and high percent of bare ground); (3) avoiding activities such 
as mowing, special events, and off-road driving and recreational 
activities in or near the areas used by streaked horned larks during 
the nesting season (March 15 to August 15); (4) working cooperatively 
with the State on annual streaked horned lark surveys; and (5) avoiding 
development or construction of permanent buildings within approximately 
330 ft (100 m) of streaked horned lark nesting areas (Port of Olympia 
2013, pp. 15-17). The sensitive species management plan that the 
Olympia Regional Airport is implementing will provide long-term 
protection for the streaked horned lark and can serve as an example 
that other airports could use or follow in the development of 
partnership agreements with the Service after the subspecies is listed. 
Designating critical habitat on airports could negatively impact our 
ability to pursue and develop such beneficial conservation partnerships 
with other airports and would not provide any additional conservation 
benefits to the subspecies; therefore we have determined that fostering 
these positive conservation partnerships is a significant benefit of 
exclusion from critical habitat.
    An additional benefit of exclusion is signaling that we intend to 
direct the focus of recovery efforts for the streaked horned lark on 
other, more natural prairie or grassland habitats or habitats with more 
compatible uses with greater long-term conservation value, and avoiding 
the misperception that the Service wishes to concentrate on airports as 
sites essential for the recovery of the streaked horned lark. Section 
3(5)(A) of the Act defines ``critical habitat'' as the specific areas 
within the geographical area occupied by the species at the time it is 
listed on which are found those physical or biological features 
essential to the conservation of the species. ``Conservation'' is 
further defined in section 3(3) of the Act as the use of all methods 
and procedures which are necessary to bring any endangered or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. These definitions clearly 
demonstrate that the purpose of critical habitat designation is to 
serve as locations of recovery efforts for listed species. However, as 
noted above, streaked horned larks face a risk of mortality from 
airstrikes as a result of occupying airport lands. Although airports 
currently support some relatively large populations of the subspecies, 
airports are clearly not ideal for conservation and recovery efforts 
aimed at further increasing the abundance of streaked horned larks. 
Recovery efforts would be more effectively concentrated on areas 
capable of supporting long-term viable populations of streaked horned 
larks

[[Page 61551]]

with the potential for increases in population size. Although airports 
clearly provide an interim benefit to the subspecies (and will likely 
continue to provide habitat for small populations), recovery will 
require restoration and management of new sites that can sustain 
increasing populations of streaked horned larks in the long term, in 
locations that do not pose a heightened risk of mortality to streaked 
horned larks. The Service does not intend to focus on increasing 
populations of the streaked horned lark on airport lands as part of the 
subspecies' long-term recovery strategy. The exclusion of non-Federal 
airport lands would thus align with our long-term conservation strategy 
that we are likely to develop for the streaked horned lark, and more 
appropriately signal our intention to direct recovery efforts to the 
restoration and maintenance of more natural habitats for the 
subspecies; we consider this to be a significant benefit of exclusion 
as well.
    Benefits of Exclusion outweigh the Benefits of Inclusion-Non-
Federal Airports--The benefits of including non-Federal airport lands 
in the designation are small. Because one of the primary threats to the 
streaked horned lark is habitat loss and degradation, the consultation 
process under section 7 of the Act for projects with a Federal nexus 
will, in evaluating effects to the streaked horned lark, evaluate the 
effects of the action on the conservation or functionality of the 
habitat for the subspecies regardless of whether critical habitat is 
designated for these lands. The analytical requirements to support a 
jeopardy determination on excluded land are similar, but not identical, 
to the requirements in an analysis for an adverse modification 
determination on lands designated as critical habitat. Although not 
specifically intended to provide for the conservation of the streaked 
horned lark, management for aviation safety at airports already 
inadvertently results in actions that create and maintain streaked 
horned lark habitat, benefits that exceed the conservation benefits 
afforded through section 7 consultation. Since designation as critical 
habitat would not change these already positive management efforts, the 
benefits of including these lands in critical habitat are small, and 
are reduced by other considerations, as described below.
    The educational benefit of critical habitat is minimal in this 
case; since all non-Federal airport lands in question are occupied by 
streaked horned larks, any potential educational benefit of critical 
habitat is reduced by the fact that airport managers are already aware 
of the presence of the subspecies and its habitat needs. In fact, in 
some cases, airport managers have already incorporated conservation 
provisions for streaked horned larks and other prairie species into 
their management plans. Importantly, it is not the Service's intention 
to focus on airport lands as essential sites for recovery; although 
airports provide important interim habitat, they also carry an 
associated risk of mortality to the birds through airstrikes, and 
regulations requiring the minimization of wildlife hazards at airports 
are not compatible with efforts to increase populations of birds in 
these areas. The Service intends to focus long-term recovery efforts 
for the streaked horned lark on other, more natural areas of prairie or 
grassland habitat or habitat with more compatible land uses of higher 
conservation value. The designation of non-Federal airport lands as 
critical habitat would be at odds with our long-term recovery strategy 
that we are likely to develop for the streaked horned lark, thereby 
further reducing any benefit from including these lands in critical 
habitat.
    On the other hand, the benefits of exclusion are relatively 
substantial. Excluding airports would allow the Service to develop 
conservation partnerships with airport managers, and potentially result 
in the implementation of management plans at airports designed to 
benefit the conservation of the streaked horned lark. As we have seen 
through the example set at the Olympia Regional Airport, airport 
management plans have the potential to provide for significant 
conservation and management of streaked horned larks, to help maintain 
populations of this subspecies in the interim pending restoration of 
more natural habitats with compatible uses to achieve recovery of this 
subspecies. Exclusion of these lands from critical habitat will help 
foster partnerships we have developed with airport entities such as the 
Port of Olympia, which has developed an impressive management plan for 
the benefit of the streaked horned lark and other prairie species. 
Furthermore, this partnership may aid in fostering future cooperative 
relationships with other airport entities in other locations for the 
benefit of streaked horned larks.
    Another significant benefit of exclusion is signaling our intention 
to focus recovery efforts more appropriately on the restoration and 
management of other, more natural habitats with compatible uses for 
increasing populations of the streaked horned lark over the long term. 
Streaked horned larks are at risk of mortality from airstrikes at 
airports. Although airports may serve as interim habitat for the 
streaked horned lark, the inclusion of airports in critical habitat 
would be contrary to our long-term conservation strategy for the 
subspecies. As we do not wish to create the impression that we consider 
airport lands as sites essential for the recovery and conservation of 
streaked horned larks, exclusion of these lands would benefit the 
subspecies by directing recovery efforts to other natural areas with 
greater long-term conservation value.
    Based on our evaluation of the benefits of inclusion versus the 
benefits of exclusion, we determine that the benefits of excluding non-
Federal airport lands from the designation of critical habitat for the 
streaked horned lark outweigh the benefits of including these areas in 
critical habitat. The Secretary is therefore exercising her discretion 
under section 4(b)(2) of the Act to exclude the following airports from 
critical habitat for the streaked horned lark:
    (1) Sanderson Field in Unit 1--376 ac (152 ha).
    (2) Olympia Airport in Unit 1-- 575 ac (233 ha).
    (3) Portland International Airport and Broughton Beach in Unit 3--
431 ac (174 ha).
    (4) McMinnville Municipal Airport in Unit 4--600 ac (243 ha).
    (5) Salem Municipal Airport in Unit 4--534 ac (216 ha).
    (6) Corvallis Municipal Airport in Unit 4--1,103 ac (446 ha).
    (7) Eugene Airport in Unit 4--313 ac (126 ha).
    A small portion of land proposed for critical habitat is adjacent 
to Portland International Airport at Broughton Beach on the Columbia 
River; this parcel is owned by Metro (the regional government). The 
concerns discussed above also apply to this portion of the Portland 
International Airport; therefore, we are also excluding Broughton Beach 
from critical habitat designation. The total acreage of the exclusions 
described above is approximately 3,932 ac (1,590 ha).
    Occupied lands excluded under section 4(b)(2) of the Act are still 
considered essential to the conservation of the species. Such areas 
were proposed as critical habitat because they provide the essential 
physical or biological features to support the life history of the 
streaked horned lark. Exclusion should never be interpreted as meaning 
that such areas are unimportant to the conservation of the species. 
Exclusion is based upon a determination by the Secretary that the 
benefit of excluding these essential

[[Page 61552]]

areas outweighs the benefit of including them in critical habitat.
    Exclusion Will Not Result in the Extinction of the Species--Non-
Federal Airports--Exclusion will not result in extinction of the 
streaked horned lark because each of the airports proposed as critical 
habitat is occupied by the subspecies; therefore Federal agency actions 
that require section 7 consultation will be required to meet the 
jeopardy standard for any actions that may affect the streaked horned 
lark at those sites. This consultation requirement will safeguard the 
streaked horned lark from extinction, regardless of the area's 
designation as critical habitat.

Tribal Lands--Exclusions Under Section 4(b)(2) of the Act

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175; and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2), we coordinate with federally-recognized tribes on a 
government-to-government basis. Further, Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (1997) states that (1) critical 
habitat shall not be designated in areas that may impact tribal trust 
resources, may impact tribally-owned fee lands, or are used to exercise 
tribal rights unless it is determined essential to conserve a listed 
species; and (2) in designating critical habitat, the Service shall 
evaluate and document the extent to which the conservation needs of the 
listed species can be achieved by limiting the designation to other 
lands.
    We proposed 182 ac (74 ha) of critical habitat in an area currently 
occupied by the streaked horned lark and that provides one or more of 
the essential physical or biological features for the subspecies on 
lands reserved for the Shoalwater Bay Tribe (included in Unit 3--
Shoalwater Spit); these lands are directly adjacent to other occupied 
streaked horned lark habitat along the Washington Coast. Because the 
streaked horned lark moves between coastal sites and sites on the 
Columbia River Islands, based on site condition and season, 
connectivity among and within these habitats is essential for long-term 
persistence and recovery of streaked horned larks. Beach and intertidal 
habitat on and adjacent to the Shoalwater Bay Indian Reservation were 
determined to be important to maintain nesting, foraging, and wintering 
habitat, and to maintain connectivity between occupied breeding sites 
on the Washington Coast. The longstanding and distinctive relationship 
between Federal and tribal governments is defined by treaties, 
statutes, executive orders, judicial decisions, and agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal government.
    This relationship has given rise to a special Federal trust 
responsibility involving the legal responsibilities and obligations of 
the United States toward Native American tribes and the application of 
fiduciary standards of due care with respect to Indian lands, tribal 
trust resources, and the exercise of tribal rights. Accordingly, we are 
obligated to consult with tribes based on their unique relationship 
with the Federal government. In addition, we evaluate tribes' past and 
ongoing efforts for species conservation and the benefits of including 
or excluding tribal lands in the designation under section 4(b)(2) of 
the Act.
    We contacted the Shoalwater Bay Tribe and discussed their ongoing 
and future management strategies for the streaked horned lark. During 
the revision of critical habitat for the Pacific Coast population of 
the western snowy plover, we received a letter from the Tribe 
describing ongoing tribal management, conservation efforts, and 
coordination with the Corps, WDFW, and the Service to protect habitat 
for snowy plover and other coastal species important to the Tribe, 
including the streaked horned lark. The Tribe coordinates closely with 
the Service, Corps, and WDFW on western snowy plover and streaked 
horned lark surveys in conjunction with their coastal restoration 
project. In April, 2013, the Shoalwater Bay Tribe submitted a comment 
letter stating that they wish to be excluded from critical habitat 
designation for the streaked horned lark (or any other species). The 
Tribe is working with their legal counsel and State and Federal 
agencies (Corps, WDFW, Service) in partnership on the development of an 
Ecological Restoration Plan for the coastal beaches and tidelands on 
the reservation.
    We determined that approximately 182 ac (74 ha) of lands owned by, 
or under the jurisdiction of, the Tribe contained biological features 
essential to the conservation of the streaked horned lark, and 
therefore meet the definition of critical habitat under the Act. These 
tribal lands are located in the subunit identified as Shoalwater Spit 
of Unit 3 (the Washington Coast and Columbia River Islands). In making 
our final decision with regard to the designation of critical habitat 
for the streaked horned lark on these tribal lands, we considered 
several factors, including Secretarial Order 3206, Executive Order 
13175, the President's memorandum on ``Government-to-Government 
Relations with Native American Tribal Governments'' (59 FR 22951; April 
29, 1994), conservation measures in place on these lands that may 
benefit the streaked horned lark, economic impacts to tribes, our 
relationship with the Tribe, and impacts to current and future 
partnerships with the Shoalwater Bay Tribe and other tribes we 
coordinate with on endangered and threatened species issues. Under 
section 4(b)(2) of the Act, the Secretary is exercising her discretion 
to exclude approximately 182 ac (74 ha) of land composed entirely of 
reservation lands. We further exclude from this final critical habitat 
designation lands that develop by accretion, which we anticipate may 
become reservation lands in the near future. As described in our 
analysis below, this conclusion was reached after considering the 
relevant impacts of specifying this area as critical habitat.
Shoalwater Bay Tribe
    The Shoalwater Bay Tribe (Tribe) is a Federally-recognized Native 
American tribe with a relatively small (approximately one square mile) 
reservation in Pacific County, Washington. Lands within the Shoalwater 
Bay Indian Reservation boundary include upland forested terrestrial 
habitats, a small residential and commercial area, and coastal marine 
habitats. Critical habitat for the streaked horned lark was proposed in 
the portion of the reservation with coastal beaches. Through our 
ongoing coordination with the Tribe, we have established a partnership 
that has benefitted natural resource management on tribal lands. For 
our section 4(b)(2) balancing analysis we considered our partnership 
with the Tribe in our analysis of the benefits of including and 
excluding those lands under the sovereign control of the Tribe that met 
the definition of critical habitat.
    Benefits of Inclusion--Shoalwater Bay Tribe--The principal benefit 
of any designated critical habitat is that Federal activities will 
require section 7 consultations to ensure that adequate protection is 
provided to avoid adverse modification or destruction of critical 
habitat. This would provide an additional benefit beyond that provided 
under the jeopardy standard. In evaluating project effects on critical 
habitat, the Service must be satisfied that the PCEs and, therefore, 
the

[[Page 61553]]

essential features of the critical habitat likely will not be altered 
or destroyed by proposed activities to the extent that the conservation 
of the affected species would be appreciably reduced. If critical 
habitat were designated in areas of unoccupied habitat or currently 
occupied areas subsequently become unoccupied, different outcomes or 
requirements are also likely because effects to unoccupied areas of 
critical habitat are not likely to trigger the need for a jeopardy 
analysis.
    In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 
2001), the Fifth Circuit Court of Appeals stated that the 
identification of habitat essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that critical habitat designation may focus and heighten 
public awareness of the plight of listed species and their habitats. 
Designation of critical habitat may contribute to conservation efforts 
by other parties by delineating areas of high conservation value for 
streaked horned lark. While we believe this educational outcome is 
important for streaked horned lark conservation, we believe it has 
already been achieved to some extent through the existing management, 
education, and public outreach efforts carried out by the Tribe. 
Designation of critical habitat on the aforementioned tribal lands 
would simply affirm the recognized conservation value of these lands, 
which is already widely accepted by conservationists, public agencies, 
and most of the public.
    The principal benefit of including an area in a critical habitat 
designation is the requirement for Federal agencies to ensure that 
actions they fund, authorize, or carry out are not likely to result in 
the destruction or adverse modification of any designated critical 
habitat, the regulatory standard of section 7(a)(2) of the Act under 
which consultation is completed. Federal agencies must also consult 
with us on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects of a proposed 
project on critical habitat is separate and different from that of the 
effects of a proposed project on the species itself. The jeopardy 
analysis evaluates the action's impact to survival and recovery of the 
species, while the destruction or adverse modification analysis 
evaluates the action's effects to the designated habitat's contribution 
to conservation. Therefore, the difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. This 
will, in many instances, lead to different results and different 
regulatory requirements. Thus, critical habitat designations may 
provide greater benefits to the recovery of a species than listing 
alone would do. However, for some species, and in some locations, the 
outcome of these analyses will be similar, because effects to habitat 
will often also result in effects to the species. The tribal lands 
considered for exclusion are occupied by the streaked horned lark and 
will be subject to the consultation requirements of the Act in the 
future. Although a jeopardy and adverse modification analysis must 
satisfy two different standards, because any modifications to proposed 
actions resulting from a section 7 consultation to minimize or avoid 
impacts to the streaked horned lark will be habitat-based, it is not 
possible to differentiate any measures implemented solely to minimize 
impacts to the critical habitat from those implemented to minimize 
impacts to the streaked horned lark. Therefore, in the case of the 
streaked horned lark, we believe the benefits of critical habitat 
designation are very similar to the benefits of listing, and in some 
respects would be indistinguishable from the benefits of listing.
    Public education is often cited as another possible benefit of 
including lands in critical habitat as it may help focus conservation 
efforts on areas of high value for certain species. Partnership efforts 
with the Shoalwater Bay Tribe to conserve the streaked horned lark and 
other coastal species of concern have resulted in heightened awareness 
about the subspecies. However, we believe there is little, if any, 
educational benefit attributable to critical habitat beyond those 
achieved from listing of the streaked horned lark under the Act, and 
the Tribe's efforts. The Shoalwater Bay Tribe coordinates regularly 
with the WDFW on annual surveys for the streaked horned lark and has 
partnered with the Service (Willapa National Wildlife Refuge and 
Ecological Services) to control nonnative or invasive species and 
restore habitat for the streaked horned lark and other coastal species 
on the reservation. Service coordination includes attending meetings 
with tribal resource staff to discuss ongoing projects, management 
plans, and other issues that arise. We believe our continuing 
coordination with the Shoalwater Bay Tribe will further promote 
awareness of the subspecies and its conservation needs, and will 
facilitate refinements to the existing Fish and Wildlife Codes and 
Title 23 of the Tribe's Environmental Ordinances that protect natural 
resources on the reservation.
    We believe existing tribal regulations, including the 2001 Tribal 
Environmental Codes that protect the saltmarsh and sand spit as natural 
areas, will ensure that any land use actions, including those funded, 
authorized, or carried out by Federal agencies, are not likely to 
result in the destruction or adverse modification of all lands 
considered for exclusion. The Tribe coordinates with the Service on all 
actions that have the potential to affect habitat for listed species on 
the reservation, including the streaked horned lark. In 2003, the 
Service completed a Planning Aid Letter, and in 2006, we wrote a Fish 
and Wildlife Coordination Act Report for the Corps (Shoalwater Bay 
Tribe is the project sponsor) on the Shoalwater Coastal Erosion 
Project, which entails beach nourishment along the sand spit used by 
the streaked horned lark. We completed a section 7 consultation for 
this project in 2012, which covered effects to both the streaked horned 
lark and western snowy plover. Due to construction delays, the project 
was not completed and is still ongoing. We are currently completing 
formal conferencing for potential effects to the streaked horned lark 
and proposed critical habitat related to this project. The Service 
coordinated with the Tribe and the Corps on the project design and will 
provided technical input and recommendations on the planting plan and 
long-term vegetation management on the dune. The Tribe is actively 
working with the State and Federal agencies in implementation of the 
project to avoid impacts to the streaked horned lark and its nesting 
habitat. The project is designed to restore the barrier spit that has 
been actively eroding over the decades. The spit provides protection 
from coastal storms and high winter waves for the Shoalwater Bay Indian 
Reservation.
    Surveys for both the western snowy plover and streaked horned lark 
have been conducted by WDFW and the Tribe on the reservation and 
adjacent lands since 2000. Surveys became more intensive in 2004 and 
later years (to present) when both the western snowy plover and 
streaked horned lark were documented nesting on tribal lands on 
Shoalwater spit. Although they may not nest there every year, male 
streaked horned larks were heard singing or have been seen on 
Shoalwater Spit during the nesting seasons of 2004, 2008, 2009, 2012, 
and 2013. The Tribe has played an active role in surveying for and 
protecting habitat for the streaked

[[Page 61554]]

horned lark. In emails and comments sent to the Service on August 31, 
2011, and April 3, 2013, the Tribe confirmed that they will continue to 
use their existing regulatory structure to provide habitat protection 
for coastal species (including the streaked horned lark) and ``keep 
trespassers off those areas considered most important to the species.'' 
The Corps worked closely with the WDFW and the Service in the 
development and implementation of a species protection plan for the 
western snowy plover and streaked horned lark habitat as part of the 
erosion control project. The Tribe, WDFW, and Service are coordinating 
with the Corps on the development of an Ecological Restoration Plan for 
the Shoalwater Bay Tribe which will include a planting and long-term 
vegetation management plan for the dune and restoration of the adjacent 
tidelands.
    Any potential impacts to the streaked horned lark from future 
proposed activities on tribal trust reservation lands will be addressed 
through a section 7 consultation using the jeopardy standard, and such 
activities would also be subject to the take prohibitions under section 
9 of the Act. As a result, we believe the regulatory benefits of 
critical habitat designation on tribal trust reservation land would 
largely be redundant with the combined benefits of listing and existing 
tribal regulations.
    The designation of critical habitat for the streaked horned lark 
may strengthen or reinforce some Federal laws, such as the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) or the Clean 
Water Act (33 U.S.C. 1251 et seq.). These laws analyze the potential 
for projects to significantly affect the environment. Critical habitat 
may signal the presence of sensitive habitat that could otherwise be 
missed in the review process for these other environmental law; 
however, the listing process and consultations (which includes 
conferencing on effects to critical habitat for the streaked horned 
lark off reservation lands) that have already occurred and/or are 
ongoing will provide this benefit. Therefore, in this case we view this 
benefit as redundant with the benefit the species will receive from 
listing under the Act.
    In summary, we believe that designating critical habitat on the 
Shoalwater Bay Indian Reservation will provide only minimal additional 
benefits for the streaked horned lark. Projects on these lands with a 
Federal nexus (e.g., funded, authorized, or carried out by Federal 
agencies, such as the U.S. Army Corps of Engineers) will require 
section 7 consultation with the Service (regardless of critical habitat 
designation) where the habitat is occupied or the species may otherwise 
be affected. Furthermore, a high level of protection is already 
provided on Shoalwater Bay Indian Reservation lands that meet the 
definition of critical habitat by existing conservation, regulations, 
and management. Ongoing coordination between the Service and the Tribe 
has already raised the level of awareness about the subspecies, and we 
believe our continued coordination with the Tribe will facilitate 
development of species-specific management actions for these lands to 
address the conservation of the streaked horned lark.
    Benefits of Exclusion--Shoalwater Bay Tribe--Under Secretarial 
Order 3206, American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Act, we recognize that we must carry out our 
responsibilities under the Act in a manner that harmonizes the Federal 
trust responsibility to tribes and tribal sovereignty while striving to 
ensure that tribes do not bear a disproportionate burden for the 
conservation of listed species, so as to avoid or minimize the 
potential for conflict and confrontation. In accordance with the 
Presidential memoranda of April 29, 1994, and November 9, 2009, we 
believe that, to the maximum extent possible, tribes are the 
appropriate governmental entities to manage their lands and tribal 
trust resources, and that we are responsible for strengthening 
government-to-government relationships with tribes. Federal regulation 
through critical habitat designation will adversely affect the tribal 
working relationships we now have and which we are strengthening 
throughout the United States. Maintaining positive working 
relationships with tribes is key to implementing natural resource 
programs of mutual interest, including habitat conservation planning 
efforts. In light of the above-mentioned orders and for a variety of 
other reasons described in their comment letters and communications, 
critical habitat designation is typically viewed by tribes as an 
unwarranted and unwanted intrusion into tribal self-governance.
    In the case of proposed critical habitat for the streaked horned 
lark (77 FR 61937; October 11, 2012), the Shoalwater Bay Tribe has 
requested to ``remain excluded from any critical habitat designation.'' 
In their comments sent to the Service on April 3, 2013, the Tribe 
stated that it is their goal to ``not only protect existing habitat for 
native (coastal) species but to also increase and improve habitat'' and 
to ``develop strategies for addressing threatened species and their 
habitat'' on tribal lands. In their comments submitted during revisions 
of critical habitat for the western snowy plover, the Tribe ``continues 
to demonstrate its desire to protect threatened and/or endangered 
species through its management and stewardship capabilities'' without 
``externally defined designated critical habitat designations.'' The 
Tribe stated that they wish to make ``their own determinations 
regarding the Reservation and tribal trust resources'' and we note that 
the Tribe has been able to provide for the streaked horned lark and 
steps are being taken to continue that effort in the most effective way 
possible. The Tribe has been working closely with the Willapa National 
Wildlife Refuge for several years on collection, propagation, and 
reintroduction of the native pink sand verbena (Abronia umbellata) and 
is propagating this species at their greenhouse on the reservation. 
This native plant has been extirpated in Washington and was recently 
rediscovered on the refuge. Efforts to reintroduce this species along 
coastal beaches that are currently occupied by the streaked horned lark 
(including the refuge and tribal lands) have been successful and are 
ongoing projects. The commitment by the Tribe to restore habitat for 
this native plant and efforts to control invasive species such as 
smooth cordgrass (Spartina alterniflora) supports their commitment to 
protect habitat for streaked horned lark and strengthens the ongoing 
partnership with the Service. In their comments to the Service on the 
proposed rule, the Tribe indicated they would use their existing 
regulations to protect streaked horned lark and its habitat. These 
communications clearly indicate that designation of tribal trust 
reservation lands as critical habitat for the streaked horned lark 
would impact future conservation partnership opportunities with the 
Tribe. Therefore, a critical habitat designation could potentially 
damage our relationship with the Shoalwater Bay Tribe.
    We believe significant benefits would be realized by excluding 
lands managed by the Shoalwater Bay Indian Tribe from critical habitat. 
These benefits include:
    (1) Continuing and strengthening of our effective relationship with 
the tribe to promote conservation of the streaked horned lark and its 
habitat; and
    (2) Allowing continued meaningful collaboration and cooperation in 
working toward recovering this subspecies, including conservation 
actions that might not otherwise occur.

[[Page 61555]]

    Because the Tribe is the entity that enforces protective 
regulations on tribal trust reservation land, and we have a working 
relationship with them, we believe exclusion of these lands will yield 
a significant partnership benefit. We will continue to work 
cooperatively with the Tribe on efforts to conserve the streaked horned 
lark. Therefore, excluding these lands from critical habitat provides 
the significant benefit of maintaining and strengthening our existing 
conservation partnerships and the potential of fostering new tribal 
partnerships.
    Benefits of Exclusion Outweigh Benefits of Inclusion--Shoalwater 
Bay Indian Tribe--Based on the above considerations and consistent with 
the direction provided in section 4(b)(2) of the Act, the Service has 
determined that the benefits of excluding the above tribal lands 
outweigh the benefits of including them as critical habitat. This 
conclusion is based on the following factors. It is possible, although 
unlikely, that Federal actions will be proposed that would be likely to 
destroy or adversely modify the habitat proposed as critical within the 
area governed by the Tribe. If such a project were proposed, due to the 
specific way in which jeopardy and adverse modification are analyzed 
for the streaked horned lark, discussed in detail earlier in this 
document, it would likely also jeopardize the continued existence of 
the subspecies. Few additional benefits are provided by including these 
tribal lands in this critical habitat designation beyond what will be 
achieved through the implementation of the existing tribal management 
or conservation plans. In addition, we expect that the benefit of 
informing the public of the importance of this area to streaked horned 
lark conservation would be low.
    We do not believe that inclusion of tribal lands will significantly 
improve habitat protections for the streaked horned lark beyond what is 
already provided for in the Tribe's own protective policies and 
practices, discussed below.
    The Tribe is working closely with the Corps and the Federal and 
State resource agencies on the development of an Ecological Restoration 
Plan for the Shoalwater Bay Tribe and have provided information 
detailing how they are addressing the habitat needs of the streaked 
horned lark on their lands and they are fully aware of the conservation 
value of their lands for many coastal species of concern. There are 
several benefits to excluding tribal lands. The long-standing and 
distinctive relationship between the Federal and tribal governments is 
defined by treaties, statutes, executive orders, judicial decisions, 
and agreements, which differentiate tribal governments from the other 
entities that deal with, or are affected by, the Federal government. 
This relationship has given rise to a special Federal trust 
responsibility involving the legal responsibilities and obligations of 
the United States toward Indian Tribes and the application of fiduciary 
standards of due care with respect to Indian lands, tribal trust 
resources, and the exercise of tribal rights. Under these authorities, 
Indian lands are recognized as unique and have been retained by Indian 
Tribes or have been set aside for tribal use. These lands are managed 
by Indian Tribes in accordance with tribal goals and objectives within 
the framework of applicable treaties and laws.
    Tribal lands are currently being managed on a voluntary basis in 
cooperation with the Service and others to conserve the streaked horned 
lark and achieve important conservation goals. We believe the streaked 
horned lark benefits from the Tribe's voluntary management actions due 
to their long-standing and broad application to tribal management 
decisions. Tribal cooperation and support is required to continue 
cooperative scientific efforts, to promote the recovery of the streaked 
horned lark, and to implement proactive conservation actions. This need 
for the tribal cooperation is especially acute because, in some cases, 
populations exist only on areas of tribal management or only on tribal 
lands. Future conservation efforts in this area require the continued 
cooperation and support of the Tribe. Exclusion of tribal lands from 
the critical habitat designation will help us maintain and improve our 
partnership with the Tribe by formally recognizing their positive 
contributions to streaked horned lark recovery, and by streamlining or 
reducing unnecessary regulatory oversight.
    Given the cooperative relationship between the Shoalwater Bay Tribe 
and the Service, and all of the conservation benefits taken together, 
we believe the additional regulatory and educational benefits of 
including the tribal lands as critical habitat are relatively small. 
The designation of critical habitat can serve to educate the public 
regarding the potential conservation value of an area, but this goal is 
already being accomplished through the identification of these areas in 
the tribal management planning, development of tribal Fish and Wildlife 
Codes, and through their outreach efforts.
    Because of the ongoing relationship between the Service and the 
Shoalwater Bay Tribe through a variety of forums, we find the benefits 
of these coordination efforts to be greater than the benefits of 
applying the Act's section 7 consultations for critical habitat to 
Federal activities on tribal lands. Based upon our consultations with 
the Tribes, we believe that designation of Indian lands as critical 
habitat would adversely impact our working relationship and the 
benefits resulting from this relationship.
    In contrast, although the benefits of encouraging participation in 
tribal management plans, and, more broadly, helping to foster 
cooperative conservation are indirect, enthusiastic tribal 
participation and an atmosphere of cooperation are crucial to the long-
term effectiveness of the endangered species program. Also, we have 
concluded that the Tribe's voluntary conservation efforts will provide 
tangible conservation benefits that will reduce the likelihood of 
extinction and increase the likelihood for streaked horned lark 
recovery. Therefore, we assign great weight to these benefits of 
exclusion. To the extent that there are regulatory benefits of 
including tribal lands in critical habitat, there would be associated 
costs that could be avoided by excluding the area from designation. As 
we expect the regulatory benefits to be low, we likewise give weight to 
avoidance of those associated costs, as well as the additional 
transaction costs related to section 7 compliance.
    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of Shoalwater Bay Tribe tribal trust reservation 
lands as critical habitat for the streaked horned lark. We believe 
past, present, and future coordination with the Shoalwater Bay Tribe 
has provided and will continue to provide streaked horned lark habitat 
conservation needs on tribal lands, such that there would be no 
additional benefit from designation of critical habitat. Further, 
because any potential impacts to the streaked horned lark from future 
projects will be addressed through a section 7 consultation with us 
under the jeopardy standard, we believe critical habitat designation on 
the Shoalwater Bay Indian Reservation would largely be redundant with 
the combined benefits of listing and existing tribal regulations and 
management. Therefore, the benefits of designating critical habitat on 
tribal trust reservation lands are not significant.
    On the other hand, the benefits of excluding the Shoalwater Bay 
Indian Reservation from critical habitat are significant. Exclusion of 
these lands from critical habitat will help preserve and strengthen the 
conservation

[[Page 61556]]

partnership we have developed with the Tribe and will foster future 
partnerships and development of management plans; whereas inclusion 
will negatively impact our relationships with the Tribe and other 
tribes. We are committed to working with the Shoalwater Bay Tribe to 
further the conservation of the streaked horned lark and other 
endangered and threatened species on the reservation. The Tribe will 
continue to use their existing regulatory structure to protect the 
streaked horned lark and its habitat. The Tribe continues to provide 
for indirect conservation of streaked horned lark habitat by 
implementing conservation measures for other coastal species (such as, 
the pink sand verbena) that have the same habitat requirements. 
Therefore, in consideration of the relevant impact to our partnership 
and our government-to-government relationship with the Shoalwater Bay 
Indian Tribe, and the ongoing conservation management practices of the 
Tribe and our current and future conservation partnerships with them, 
we determined the significant benefits of exclusion outweigh the 
benefits of inclusion in the critical habitat designation.
    In summary, we find that excluding the Shoalwater Bay Tribe tribal 
trust reservation lands from this revised final critical habitat will 
preserve our partnership and may foster future habitat management and 
species conservation plans with the Tribe now and in the future. These 
partnership benefits are significant and outweigh the minimal 
additional regulatory benefits of including these lands in final 
critical habitat for the streaked horned lark.
    Exclusion Will Not Result in Extinction of the Species--Shoalwater 
Bay Tribe--We determined that the exclusion of 182 ac (74 ha) of tribal 
trust reservation lands from the designation of streaked horned lark 
critical habitat will not result in extinction of the subspecies. The 
jeopardy standard of section 7 of the Act and routine implementation of 
conservation measures through the section 7 process due to streaked 
horned lark occupancy and protection provided by under Title 23 of the 
Tribal Environmental Ordinances and their Ecosystem Restoration Plan 
provide assurances that this subspecies will not go extinct as a result 
of excluding these lands from the critical habitat designation. 
Therefore, based on the above discussion the Secretary is exercising 
her discretion to exclude approximately 182 ac (74 ha) of tribal trust 
reservation lands managed by the Shoalwater Bay Tribe from this final 
critical habitat designation.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish 
a notice of rulemaking for any proposed or final rule, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a certification 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. In this final rule, we are certifying that the critical 
habitat designation for Taylor's checkerspot butterfly and streaked 
horned lark will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., 
airports, agriculture, recreation, and habitat management). We apply 
the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species is 
present, Federal agencies already are required to consult with us under 
section 7 of the Act on activities they authorize, fund, or carry out 
that may affect Taylor's checkerspot butterfly and streaked horned 
lark. Federal agencies

[[Page 61557]]

also must consult with us if their activities may affect critical 
habitat. Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification'' Standard).
    In our final economic analysis (FEA) of the critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listings of Taylor's checkerspot butterfly, streaked horned lark, and 
four subspecies of Mazama pocket gopher and the designation of critical 
habitat. The analysis is based on the estimated impacts associated with 
the rulemaking as described in Appendix A of the FEA (IEc 2013, pp. A-
1-A-11) and evaluates the potential for economic impacts related to: 
Military activities; recreation and habitat management; airport 
operations and agricultural activities; transportation, electricity 
distribution and forestry activities; and dredging, gravel mining, 
development, and other activities. The FEA determined that critical 
habitat designation will not result in impacts to small entities for 
the following activities (IEc 2013, p. A-4):
    (1) Military activities. As the affected base, JBLM is a Federal 
entity and it is, by definition, not small, and thus no impacts to 
small entities are expected.
    (2) Transportation. The impacts are limited to Washington State 
Department of Transportation. As State agencies are, by definition, not 
small, no impacts to small entities are expected related to 
transportation.
    (3) Electricity Distribution and Forestry Activities. The only 
electricity distribution activity within the proposed critical habitat 
is carried out by the Bonneville Power Administration (BPA), which is a 
Federal entity and, therefore, is not considered small. As such, there 
are no anticipated impacts to small entities related to BPA's 
electricity distribution activities. No incremental costs are 
anticipated for forestry activities and thus no impact to small 
entities related to forestry is anticipated.
    (4) Dredging. Dredging is conducted by the U.S. Army Corps of 
Engineers, which is a Federal entity and is, by definition, not small, 
and thus no impacts to small entities are expected.
    Estimated incremental impacts that may be borne by small entities 
are limited to the administrative costs of section 7 consultation 
related to airport operations and agriculture as well as by recreation 
and habitat restoration. Potential impacts on these sectors are 
evaluated here:
    Airport Operations and Agriculture. Chapter 3 of the FEA discuss 
the potential for the critical habitat designations to affect airports 
and agricultural activities. Overall, 214 consultations would be 
expected in relation to operations at 7 airports over the next 20 
years. Information on whether airports are large or small entities was 
available for some airports and not for others. For the purposes of the 
analysis, we made the conservative assumption that all airports within 
the proposed critical habitat are small entities. These seven entities 
represent 3 percent of the total small Other Airport Operations (NAICS 
code 488119) entities within the proposed critical habitat. The cost 
per entity, per consultation, to participate in forecast consultation 
is approximately $875 to $8,750 in any given year. The full cost to a 
third party of a single consultation is $875. If we assume that a 
single entity participates in multiple consultations in a single year, 
the administrative costs of such activity are likely to be less than 1 
percent of annual revenues (IEc 2013, p. A-5).
    We forecast two projects related to agriculture, one at Rock 
Prairie and one on M-DAC farms, which may involve small entities. 
Assuming that all agriculture and grazing impacts are borne by these 
two small entities, this amounts to less than one affected entity per 
year. The per entity impact, ranging from approximately $875 to $1,750, 
represents less than 2 percent of annual revenues (IEc 2013, p. A-5).
    Recreation and Habitat Management. A diverse group of Federal and 
State agencies, county-level governments, and private nonprofit 
organizations may be subject to the administrative burden of 
consultations associated with recreation and habitat management. 
However, of these, the Federal, State, and county-level governments are 
not considered small entities. Therefore, there are three projects 
within the proposed critical habitat that may involve private nonprofit 
organizations that qualify as small entities--Wolf Haven International, 
Whidbey/Camano Land Trust, and the Pacific Rim Institute for 
Environmental Stewardship. Assuming that all recreation and habitat 
restoration impacts are borne by these small private entities, this 
amounts to less than one affected entity per year. The per entity 
impact, ranging from approximately $875 to $2,625 in any given year, 
represents less than 1 percent of annual revenues (IEc 2013, p. A-6).
    Recreators at JBLM may incur unquantified losses in economic 
surplus in the form of reduced or restricted recreational use of JBLM 
lands proposed as critical habitat. However, because the recreators 
leasing JBLM lands are individuals, not entities, we do not address 
these impacts in this analysis.
    In summary, we considered whether this designation will result in a 
significant economic effect on a substantial number of small entities 
(IEc 2013, p. A-7). Based on the above reasoning and currently 
available information, we conclude that this rule will not result in a 
significant economic impact on a substantial number of small entities. 
Therefore, we are certifying that the designation of critical habitat 
for the Taylor's checkerspot butterfly and streaked horned lark will 
not have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration.
    The economic analysis finds that none of these criteria is relevant 
to this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with Taylor's checkerspot butterfly 
and streaked horned lark conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.''

[[Page 61558]]

These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments. The designation of critical habitat does not 
impose a legally binding duty on non-Federal Government entities or 
private parties. Under the Act, the only regulatory effect is that 
Federal agencies must ensure that their actions do not destroy or 
adversely modify critical habitat under section 7. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Therefore, this rule does not place an enforceable duty upon State, 
local, or Tribal governments, or on the private sector.
    Consequently, we do not believe that the critical habitat 
designation will significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Taylor's checkerspot butterfly and streaked horned 
lark in separate takings implications assessments. As discussed above, 
the designation of critical habitat affects only Federal actions. 
Although private parties that receive Federal funding, assistance, or 
require approval or authorization from a Federal agency for an action 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. The 
takings implications assessment concludes that this designation of 
critical habitat for Taylor's checkerspot butterfly and streaked horned 
lark does not pose significant takings implications for lands within or 
affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this critical habitat designation 
with appropriate State resource agencies in Washington and Oregon. We 
received comments from WDFW and solicited, but did not receive, 
comments from ODFW. We addressed the comments from WDFW in the Summary 
of Comments and Recommendations section of this rule, and we have 
incorporated informal comments and feedback from ODFW into this rule. 
The designation of critical habitat in areas currently occupied by 
Taylor's checkerspot butterfly and streaked horned lark imposes no 
additional restrictions to those put in place by the subspecies' 
listings and, therefore, has little incremental impact on State and 
local governments and their activities. The designation of critical 
habitat in areas currently unoccupied by Taylor's checkerspot butterfly 
may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments in that the areas that 
contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) will be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial

[[Page 61559]]

system and that it meets the applicable standards set forth in sections 
3(a) and 3(b)(2) of the Order. We are designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, the rule identifies the 
elements of physical or biological features essential to the 
conservation of Taylor's checkerspot butterfly and streaked horned 
lark. The designated areas of critical habitat are presented on maps, 
and the rule provides several options for the interested public to 
obtain more detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    In the proposed rule to designate critical habitat published in the 
Federal Register on October 11, 2012 (77 FR 61938), we proposed to 
designate about 661 ac (267 ha) of critical habitat for the streaked 
horned lark in subunit 3-C Shoalwater/Graveyard Spit, of which about 
182 ac (74 ha) was identified as within the Shoalwater Bay Indian 
Reservation. These lands are occupied by the streaked horned lark and 
meet our definition of critical habitat for the subspecies. We 
indicated that we were considering exclusion of the Shoalwater Bay 
tribal lands from the designation, due to the high degree of protection 
already provided by the Tribe. We coordinated with the Tribe to better 
understand their conservation management plans for this area, and 
specifically for the streaked horned lark. After further review and 
additional information provided by the Shoalwater Bay Tribe, the 
Secretary determined that the benefits of excluding these tribal lands 
outweigh the benefits of including them in critical habitat for the 
streaked horned lark, and further concluded that such exclusion will 
not result in the extinction of the subspecies. As a result, the 
Secretary is exercising her discretion to exclude the 182 ac (74 ac) of 
Shoalwater Bay Tribal lands from the final designation under section 
4(b)(2) of the Act (for details, see the Exclusions section of this 
document, above).

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Service's Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Washington and Oregon Fish and Wildlife Offices.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, 100 Stat. 
3500; unless otherwise noted.


0
2. Amend Sec.  17.95 by:
0
(a) In paragraph (b), adding an entry for ``Streaked horned lark 
(Eremophila alpestris strigata)'' in the same order that this species 
appears in the table in Sec.  17.11(h); and
0
(b) In paragraph (i), by adding an entry for ``Taylor's checkerspot 
butterfly (Euphydryas editha taylori)'' in the same order that this 
species appears in the table in Sec.  17.11(h).
    The additions read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *

Streaked horned lark (Eremophila alpestris strigata)

    (1) Critical habitat units are depicted for Grays Harbor, Pacific, 
and Wahkiakum Counties in Washington, and Clatsop, Columbia, Marion, 
Polk, and Benton Counties in Oregon, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
streaked horned lark consist of areas having a minimum of 16 percent 
bare ground that have sparse, low-stature vegetation composed primarily 
of grasses and forbs less than 13 inches (33 centimeters) in height 
found in:
    (i) Large (300-acre (120-hectare)), flat (0-5 percent slope) areas 
within a landscape context that provides visual access to open areas 
such as open water or fields; or
    (ii) Areas smaller than described in paragraph (2)(i) of this 
entry, but that provide visual access to open areas such as open water 
or fields.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
November 4, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created on 2010 aerial photography from U.S. Department of Agriculture, 
National Agriculture Imagery Program base maps

[[Page 61560]]

using ArcMap (Environmental Systems Research Institute, Inc.), a 
computer geographic information system (GIS) program. The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at the Service's Internet site (http://www.fws.gov/wafwo), at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009, and by 
appointment at the Service's Washington Fish and Wildlife Office. You 
may obtain field office location information by contacting one of the 
Service regional offices, the addresses of which are listed at 50 CFR 
2.2.
    (5) Index map of critical habitat units for the streaked horned 
lark follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR03OC13.000


[[Page 61561]]


    (6) Unit 3--Washington Coast and Columbia River Islands, Washington 
and Oregon.
    (i) Subunit 3-A: Damon Point/Oyhut, Washington. Map of Subunit 3-A 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.001


[[Page 61562]]


    (ii) Subunit 3-B: Midway Beach, Washington. Map of Subunit 3-B 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.002


[[Page 61563]]


    (iii) Subunit 3-C: Shoalwater, Washington. Map of Subunit 3-C 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.003


[[Page 61564]]


    (iv) Subunit 3-D: Leadbetter Point, Washington. Map of Subunit 3-D 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.004


[[Page 61565]]


    (v) Subunit 3-E: Rice Island, Oregon/Washington. Map of Subunit 3-E 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.005


[[Page 61566]]


    (vi) Subunit 3-F: Miller Sands, Oregon. Map of Subunit 3-F follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.006
    

[[Page 61567]]


    (vii) Subunit 3-G: Pillar Rock/Jim Crow Sands, Oregon. Map of 
Subunit 3-G follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.007


[[Page 61568]]


    (viii) Subunit 3-H: Welch Island, Oregon. Map of Subunit 3-H 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.008


[[Page 61569]]


    (ix) Subunit 3-I: Tenasillahe Island, Oregon. Map of Subunit 3-I 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.009


[[Page 61570]]


    (x) Subunit 3-J: Whites/Brown Island, Washington. Map of Subunit 3-
J follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.010


[[Page 61571]]


    (xi) Subunit 3-K: Wallace Island, Oregon. Map of Subunit 3-K 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.011


[[Page 61572]]


    (xii) Subunit 3-L: Crims Island, Oregon. Map of Subunit 3-L 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.012


[[Page 61573]]


    (xiii) Subunit 3-M: Sandy Island, Oregon. Map of Subunit 3-M 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.013


[[Page 61574]]


    (7) Unit 4--Willamette Valley, Oregon.
    (i) Subunit 4-A: Baskett Slough NWR, Oregon. Map of Subunit 4-A 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.014


[[Page 61575]]


    (ii) Subunit 4-B: Ankeny NWR, Oregon. Map of Subunit 4-B follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.015
    

[[Page 61576]]


    (iii) Subunit 4-C: William L. Finley NWR, Oregon. Map of Subunit 4-
C follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.016

* * * * *
    (i) Insects.
* * * * *

Taylor's Checkerspot Butterfly (Euphydryas editha taylori)

    (1) Critical habitat units are depicted for Island, Clallam, and 
Thurston Counties in Washington, and in Benton County in Oregon, on the 
maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Taylor's checkerspot butterfly consist of four components:
    (i) Patches of early seral, short-statured, perennial bunchgrass 
plant

[[Page 61577]]

communities composed of native grass and forb species in a diverse 
topographic landscape ranging in size from less than 1 ac up to 100 ac 
(0.4 to 40 ha) with little or no overstory forest vegetation that have 
areas of bare soil for basking that contain:
    (A) In Washington and Oregon, common bunchgrass species found on 
northwest grasslands include Festuca roemeri (Roemer's fescue), 
Danthonia californica (California oat grass), Koeleria cristata 
(prairie Junegrass), Elymus glaucus (blue wild rye), Agrostis scabra 
(rough bentgrass), and on cooler, high-elevation sites typical of 
coastal bluffs and balds, Festuca rubra (red fescue).
    (B) On moist grasslands found near the coast and in the Willamette 
Valley, there may be Bromus sitchensis (Sitka brome) and Deschampsia 
cespitosa (tufted hairgrass) in the mix of prairie grasses. Less 
abundant forbs found on the grasslands include, but are not limited to, 
Trifolium spp. (true clovers), narrow-leaved plantain (Plantago 
lanceolata), harsh paintbrush (Castilleja hispida), Puget balsamroot 
(Balsamorhiza deltoidea), woolly sunshine (Eriophyllum lanatum), nine-
leaved desert parsley (Lomatium triternatum), fine-leaved desert 
parsley (Lomatium utriculatum), common camas (Camassia quamash), showy 
fleabane (Erigeron speciosus), Canada thistle (Cirsium arvense), common 
yarrow (Achillea millefolium), prairie lupine (Lupinus lepidus), and 
sickle-keeled lupine (Lupinus albicaulis).
    (ii) Primary larval host plants (narrow-leaved plantain and harsh 
paintbrush) and at least one of the secondary annual larval host plants 
(blue-eyed Mary (Collinsia parviflora), sea blush (Plectritis 
congesta), or dwarf owl-clover (Triphysaria pusilla) or one of several 
species of speedwell (marsh speedwell (Veronica scutella), American 
speedwell (V. beccabunga var. americana), or thymeleaf speedwell (V. 
serpyllifolia).
    (iii) Adult nectar sources for feeding that include several species 
found as part of the native (and one nonnative) species mix on 
northwest grasslands, including: narrow-leaved plantain; harsh 
paintbrush; Puget balsam root; woolly sunshine; nine-leaved desert 
parsley; fine-leaved desert parsley or spring gold; common camas; showy 
fleabane; Canada thistle; common yarrow; prairie lupine; sickle-keeled 
lupine; and wild strawberry (Fragaria virginiana).
    (iv) Aquatic features such as wetlands, springs, seeps, streams, 
ponds, lakes, and puddles that provide moisture during periods of 
drought, particularly late in the spring and early summer. These 
features can be permanent, seasonal, or ephemeral.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, railroad tracks, and other paved 
areas) and the land on which they are located existing within the legal 
boundaries on November 4, 2013.
    (4) Critical habitat map units. Data layers defining the map unit 
were created on 2010 aerial photography from U.S. Department of 
Agriculture, National Agriculture Imagery Program base maps using 
ArcMap (Environmental Systems Research Institute, Inc.), a computer 
geographic information system (GIS) program. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation. The coordinates or plot points or 
both on which each map is based are available to the public at the 
Service's Internet site (http://www.fws.gov/wafwo/), at http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0009), and by 
appointment at the Service's Washington Fish and Wildlife Office. You 
may obtain field office location information by contacting one of the 
Service regional offices, the addresses of which are listed at 50 CFR 
2.2.

[[Page 61578]]

    (5) Index map of critical habitat units for the Taylor's 
checkerspot butterfly follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.017


[[Page 61579]]


    (6) Unit 1: South Sound, Washington.
    (i) Subunit 1-A: Rocky Prairie, Washington. Map of Subunit 1-A 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.018


[[Page 61580]]


    (ii) Subunit 1-B: Tenalquot Prairie, Washington. Map of Subunit 1-B 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.019


[[Page 61581]]


    (iii) Subunit 1-C: Glacial Heritage, Washington. Map of Subunit 1-C 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.020


[[Page 61582]]


    (iv) Subunit 1-D: Rock Prairie, Washington. Map of Subunit 1-D 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.021


[[Page 61583]]


    (v) Subunit 1-E: Bald Hill, Washington. Map of Subunit 1-E follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.022
    

[[Page 61584]]


    (7) Unit 2: Strait of Juan de Fuca, Washington.
    (i) Subunit 2-A: Deception Pass, Washington. Map of Subunit 2-A 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.023


[[Page 61585]]


    (ii) Subunit 2-B: Central Whidbey, Washington. Map of Subunit 2-B 
follows:
[GRAPHIC] [TIFF OMITTED] TR03OC13.024


[[Page 61586]]


    (iii) Subunit 2-C: Elwha, Washington. Map of Subunit 2-C follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.025
    

[[Page 61587]]


    (iv) Subunit 2-D: Sequim, Washington. Map of Subunit 2-D follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.026
    

[[Page 61588]]


    (v) Subunit 2-E: Dungeness, Washington. Map of Subunit 2-E follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.027
    

[[Page 61589]]


    (8) Unit 4: Willamette Valley, Oregon.
    (i) Subunit 4-D: Fitton Green-Cardwell Hill, Oregon.
    (ii) Map of Subunit 4-D follows:
    [GRAPHIC] [TIFF OMITTED] TR03OC13.028
    
* * * * *

    Dated: September 19, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-23552 Filed 10-2-13; 8:45 am]
BILLING CODE 4310-55-C