[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Proposed Rules]
[Pages 64327-64355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24305]



[[Page 64327]]

Vol. 78

Monday,

No. 208

October 28, 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 the Bi-State Distinct Population Segment of Greater Sage-
Grouse; Proposed Rule

Federal Register / Vol. 78 , No. 208 / Monday, October 28, 2013 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-2013-0042; 4500030114]
RIN 1018-AZ70


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Bi-State Distinct Population Segment of 
Greater Sage-Grouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for the the Bi-State distinct population segment (DPS) 
of greater sage-grouse (Centrocercus urophasianus) under the Endangered 
Species Act (Act). In total, approximately 755,960 hectares (1,868,017 
acres) fall within the boundaries of the proposed critical habitat 
designation in Carson City, Lyon, Douglas, Mineral, and Esmeralda 
Counties, Nevada, and Alpine, Mono, and Inyo Counties, California. If 
we finalize this rule as proposed, it would extend the Act's 
protections to this DPS's critical habitat.

DATES: Comment Submission: We will accept comments received or 
postmarked on or before December 27, 2013. Comments submitted 
electronically using the Federal eRulemaking Portal (see ADDRESSES 
section, below) must be received by 11:59 p.m. Eastern Time on the 
closing date. We must receive requests for public hearings, in writing, 
at the address shown in FOR FURTHER INFORMATION CONTACT by December 12, 
2013. Public Meeting: Two public meetings will be held on this proposed 
rule: (1) November 5, 2013, from 4:00 p.m. to 6:00 p.m. (Pacific Time); 
and (2) November 6, 2013, from 1:00 p.m. to 3:00 p.m. (Pacific Time). 
People needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Jeannie Stafford, 
Nevada Fish and Wildlife Office, as soon as possible (see FOR FURTHER 
INFORMATION CONTACT).

ADDRESSES: Comment Submission: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
     http://www.regulations.gov. In the Search box, enter FWS-R8-ES-
2013-0042, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0042; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Public Meetings: The November 5, 2013, public meeting will be held 
at the Tri-County Fairgrounds, Home Economics Room, Sierra Street and 
Fair Drive, Bishop, CA 93514. The November 6, 2013, public meeting will 
be held at the Smith Valley Community Center, 2783 State Route 208, 
Wellington, NV 89444.
    Details of Units: 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 
www.regulations.gov at Docket No. FWS-R8-ES-2013-0042, the Reno Fish 
and Wildlife Office or on their Web site at http://www.fws.gov/nevada/, 
and at the Ventura Fish and Wildlife Office or on their Web site at 
http://www.fws.gov/ventura/ (see FOR FURTHER INFORMATION CONTACT). Any 
additional tools or supporting information that we may develop for this 
critical habitat designation will also be available at the Fish and 
Wildlife Service Web sites and Field Offices set out above, and may 
also be included in the preamble or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general information on the 
proposed critical habitat designation as well as information about the 
proposed critical habitat specific to Nevada (Carson City, Lyon, 
Douglas, Mineral, and Esmeralda Counties), contact Edward D. Koch, 
State Supervisor, U.S. Fish and Wildlife Service, Nevada Fish and 
Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502; 
telephone 775-861-6300; or facsimile 775-861-6301. For information 
about the proposed critical habitat specific to California (Alpine, 
Mono, and Inyo Counties), contact Diane Noda, Field Supervisor, or Carl 
Benz, Assistant Field Supervisor, Ventura Fish and Wildlife Office, 
U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 
93003; telephone 805-644-1766; facsimile 805-644-3958. 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. Elsewhere in today's Federal 
Register, we propose to list the Bi-State DPS of greater sage-grouse as 
a threatened species under the Endangered Species Act. Under the Act, 
critical habitat shall be designated, to the maximum extent prudent and 
determinable, for any species determined to be an endangered or 
threatened species under the Act. Designations and revisions of 
critical habitat can be completed only by issuing a rule.
    This rule proposes to designate critical habitat for the Bi-State 
DPS of greater sage-grouse (hereafter referred to as the Bi-State DPS 
of greater sage-grouse or the Bi-State DPS). Based on our proposal to 
list the Bi-State DPS as a threatened species, we are proposing 
critical habitat for the Bi-State DPS under the Act. In total, 
approximately 755,960 hectares (ha) (1,868,017 acres (ac)) are being 
proposed for designation as critical habitat in Carson City, Lyon, 
Douglas, Mineral, and Esmeralda Counties in Nevada, and Alpine, Mono, 
and Inyo Counties in California.
    The basis for our action. Under the Endangered Species Act, any 
species that is determined to be an endangered or threatened species 
shall, to the maximum extent prudent and determinable, have habitat 
designated that is considered to be critical habitat.
    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 he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species.
    We are preparing an economic analysis of the proposed designation 
of critical habitat. In order to consider economic impacts, we are 
preparing an

[[Page 64329]]

analysis of the economic impacts of the proposed critical habitat 
designation and related factors. We will announce the availability of 
the draft economic analysis as soon as it is completed, at which time 
we will seek additional public review and comment.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat proposal is based on 
scientifically sound data and analyses. We have invited these peer 
reviewers to comment on our specific assumptions and conclusions in 
this listing proposal. A thorough review of information that we relied 
on in making this determination--including information on taxonomy, 
habitat, distribution, population estimates and trends, and potential 
threats--is presented in the Bi-State DPS Species Report available at 
http://www.regulations.gov (Docket No. FWS-R8-ES-2013-0042). A summary 
of this analysis is found within the proposed listing rule published 
elsewhere in today's Federal Register. Because we will consider all 
comments and information we receive during the comment period, our 
final determination may differ from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:
    (a) The amount and distribution of the Bi-State DPS's habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the DPS, should be included in the designation and why;
    (c) The features essential to the conservation of the Bi-State DPS 
as described in the Physical and Biological Features section of this 
rule, in particular the currently unsuitable or less than suitable 
habitat that accommodates restoration identified in the Bi-State Action 
Plan (i.e., actions HIR1-1-PN, HIR-1-2-PN, HIR1-1-DCF, HIR1-2-DCF, 
HIR1-1-MG, HIR1-1-B, and HIR1-3-SM) (Bi-State Technical Advisory 
Committee (TAC) 2012, pp. 93-95).
    (d) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (e) What areas not occupied at the time of listing are essential 
for the conservation of the DPS and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Bi-State DPS and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular lands managed or utilized by 
the Department of Defense (U.S. Marine Corps' Mountain Warfare Training 
Center) and by the Los Angeles Water and Power District (LAPWD).
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    All previous Federal actions are described in the proposal to list 
the Bi-State DPS as a threatened species under the Act, which is 
published elsewhere in today's Federal Register.

Critical Habitat

Background

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

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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 is listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical and biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. We designate critical habitat in areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. 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, would continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools would continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation would 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.
    For the purposes of this proposed rule, we discuss the biology of 
the Bi-State DPS, its habitat, population abundance information, and 
other physical, biological, or geographical information within the 
context of the local management units (Population Management Units 
(PMUs)) used by the various land management agencies within the range 
of the DPS. Six PMUs were established in 2001 as management tools for 
defining and monitoring sage-grouse distribution in the Bi-State area 
(Sage-Grouse Conservation Planning Team 2001, p. 31). The PMU 
boundaries are based on aggregations of leks (communal breeding areas), 
known seasonal habitats, and telemetry data, which represent 
generalized subpopulations or local breeding complexes. The six PMUs 
(north to south) include: Pine Nut, Desert Creek-Fales, Bodie, Mount 
Grant, South Mono, and White Mountains PMUs. These six PMUs represent a 
total of four to eight demographically independent populations with a 
combined total of approximately 43 active leks (Service 2013a, pp. 17-
20). Please see the proposed listing rule published elsewhere in 
today's Federal Register or the Species Report (Service 2013a, entire) 
available at http://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0042 for more background information related to these PMUs. 
Additionally, the PMUs are identified in the Proposed Regulation 
Promulgation section of this proposed rule.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or

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    (2) Such designation of critical habitat would not be beneficial to 
the species.
    There is currently no imminent threat of take attributed to 
collection or vandalism according to the analysis presented in the 
Species Report (Service 2013a, entire) and summarized in our proposed 
rule to list the Bi-State DPS as threatened (published elsewhere in 
today's Federal Register). Identification and mapping of critical 
habitat is not expected to initiate any such threat. In the absence of 
finding that the designation of critical habitat would increase threats 
to a species, if there are any benefits to a critical habitat 
designation, then a prudent finding is warranted. Here, the potential 
benefits of designation include: (1) Triggering consultation under 
section 7 of the Act in new areas for actions in which there may be a 
Federal nexus where it would not otherwise occur because, for example, 
it is or has become unoccupied or the occupancy is in question; (2) 
focusing conservation activities on the most essential features and 
areas; (3) providing educational benefits to State or county 
governments or private entities; and (4) preventing people from causing 
inadvertent harm to the DPS. Therefore, because we have determined that 
the designation of critical habitat will not likely increase the degree 
of threat to the DPS and may provide some measure of benefit, we find 
that designation of critical habitat is prudent for the Bi-State DPS.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the eight 
species is determinable. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where the Bi-State DPS 
is located. This and other information represent the best scientific 
data available and lead us to conclude that the designation of critical 
habitat is determinable for the Bi-State DPS.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas within the geographical 
area occupied by the species at the time of listing to designate as 
critical habitat, we consider the physical or biological features that 
are essential to the conservation of the species and which may require 
special management considerations or protection. These include, but are 
not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Bi-State DPS from studies of this species' habitat, ecology, 
and life history as summarized in the proposed listing rule published 
elsewhere in today's Federal Register, and in greater detail in the 
Species Report (Service 2013a, entire) available at http://www.regulations.gov (in the Search box, enter FWS-R8-ES-2013-0042, 
which is the docket number for this rulemaking). We have determined 
that the following physical or biological features are essential to the 
conservation of the Bi-State DPS of greater sage-grouse:
Space for Individual and Population Growth and for Normal Behavior
    The Bi-State DPS of greater sage-grouse require large, 
interconnected expanses of sagebrush plant communities that contain a 
healthy understory composed primarily of native, herbaceous vegetation 
(Patterson 1952, p. 9; Knick et al. 2003, p. 623; Connelly et al. 2004, 
pp. 4-15; Pyke 2011, p. 532; Wisdom et al. 2011, entire). The Bi-State 
DPS uses a variety of habitats throughout its lifecycle, such as 
riparian and upland meadows, riparian areas with a shrub component, 
agricultural lands, and steppe dominated by native grasses and forbs. 
However, the Bi-State DPS of greater sage-grouse is considered a 
sagebrush obligate because of its near complete reliance on sagebrush 
as forage during the winter. In addition, the use of non-sagebrush 
habitats is contingent on the presence of sagebrush habitats in close 
proximity (Patterson 1952, p. 42; Braun et al. 1976, p. 168; Schroeder 
et al. 1999, pp. 4, 5; Connelly et al. 2000a, pp. 970-972; Connelly et 
al. 2004, pp. 4-1, 4-18, and references therein; Connelly et al. 2011b, 
p. 80; Casazza et al. 2011, p. 159).
    The Bi-State DPS of greater sage-grouse moves seasonally among 
various sagebrush-dominated vegetation communities. These moves are 
driven by breeding activities, nest and brood-rearing site requirements 
(such as mesic meadows or spring habitats (see also the ``Food, Water, 
Air, Light, Minerals, or Other Nutritional or Physiological 
Requirements'' section below)), seasonal changes in the availability of 
food resources, and response to weather conditions. Research findings 
have parsed the annual life cycle of greater sage-grouse into more or 
less unique seasonal habitat requirement categories, but in general 
annual habitat use can be categorized into three seasons (although 
these do not have to be mutually exclusive): (1) Breeding, (2) brood-
rearing summer, and (3) winter, as well as the pathways that link these 
habitats together (Connelly et al. 2011b, pp. 71-80). Research on 
greater sage-grouse suggests the species exhibits strong site fidelity 
(loyalty to a particular area) to migration corridors and seasonal 
habitats, including breeding, nesting, brood-rearing, and wintering 
areas, even when a particular area may no longer be of value (Connelly 
et al. 2004, p. 3-1; Connelly et al. 2011b, p. 82). Available data 
suggest birds within the Bi-State DPS appear to conform with this 
understanding (Weichman 2012, unpublished data; P. Coates 2012, pers. 
comm.). Adult greater sage-grouse rarely switch inter-annual use among 
these seasonal habitats once they have been selected, limiting the 
species' adaptability to habitat changes (Berry and Eng 1985, pp. 238-
240; Fischer et al. 1993, p. 1039; Holloran and Anderson 2005, p. 749; 
Connelly et al. 2011b, p. 82).
    Estimating an average annual home range size for the Bi-State DPS 
is difficult due to the large variation in sage-grouse movements both 
within and among populations. These variations are related to the 
spatial availability of habitats required for seasonal use as well as 
individual bird behavior. The pattern and scale of annual movements 
among populations of greater sage-grouse within the Bi-State area, and 
the degree to which a given habitat patch can fulfill the species' 
annual habitat needs, are dependent on the arrangement and quality of 
habitats across the landscape. Habitat structure and quality vary 
spatially over the

[[Page 64332]]

landscape; therefore, some areas may provide habitat for a single 
season, while other areas may provide habitat for one or more seasons 
(Connelly et al. 2011a; p. 59). In addition, plant community dynamics 
and natural or anthropogenic disturbance also result in a temporal 
component of habitat variability and suitability. Across the DPS, fine-
scale habitat structure data on which to delineate seasonal habitats 
currently do not exist.
    In the Bi-State area, greater sage-grouse home range size varies 
from 608 to 24,800 ha (0.9 to over 94.9 square miles) (Casazza et al. 
2009, p. 8; U.S. Geological Survey (USGS) 2012, unpublished data). 
Variation occurs among individuals as well as among populations, 
presumably due in part to behavior and juxtaposition of seasonal 
habitats (Connelly et al. 2011a, p. 59). Migratory movements (defined 
in Connelly et al. (2000a, p. 969) as moving more than 10 kilometers 
(km) (6 miles (mi)) between seasonal habitats) are uncommon among most 
individuals in the Desert Creek-Fales, Bodie, South Mono, and White 
Mountains PMUs; however, within these areas some individuals make 
seasonal movements that exceed this migratory definition (Casazza et 
al. 2009, p. 8). Further, recent research in the Pine Nut PMU has 
documented typical movements between breeding and brood-rearing summer 
habitats of greater than 40 km (24 mi), with at least one individual 
moving in excess of 160 km (100 mi) from its lek of capture to summer 
and winter habitats (USGS 2012, unpublished data).
    While not typical, the extensive migratory movements in the the 
Pine Nut PMU demonstrate the importance of migratory behaviors for the 
Bi-State DPS and the potential large-scale annual habitat requirements 
of the species. Migratory behavior is generally slow and meandering 
(flying or walking less than 1 km (0.6 mi) per day); however, more 
rapid movements are known and local migratory flights can occur (Dunn 
and Braun 1986, p. 89), including in the Bi-State area (USGS 2012, 
unpublished data). Migratory behavior in a population can have 
important ramifications on population dynamics (Berryman 2002, p. 441). 
Juvenile sage-grouse that moved farther distances to seasonal habitats 
had lower overall survival than did juveniles that moved relatively 
short distances (Beck et al. 2006, p. 1076). Thus, in populations where 
large movements are necessary to access seasonal habitat, an increased 
cost in terms of increased mortality may be incurred (Connelly et al. 
2011a, p. 67).
    Therefore, based on the species' year-round reliance on sagebrush 
and the various seasonal habitat requirements discussed above, we 
identify sagebrush plant communities and interspersed mesic areas of 
sufficient size and configuration to be a physical or biological 
feature essential to the conservation of this species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food resources used by the Bi-State DPS vary throughout the year 
because of seasonal changes in food availability and specific dietary 
requirements of adults and chicks. Greater sage-grouse diet is composed 
of nearly 100 percent sagebrush in the winter, while forbs, insects, 
and sagebrush are important dietary components during the remainder of 
the year (Wallestad et al. 1975, p. 629; Barnett and Crawford 1994, p. 
117; Schroeder et al. 1999, p. 5; Gregg et al. 2006, pp. 475-476).
    Pre-laying hens are particularly dependent on forbs and the insects 
supported by native herbaceous understories (Drut et al. 1994, pp. 173-
175; Barnett and Crawford 1994, p. 117; Coggins 1998, p. 30). This pre-
laying period is from approximately late-March to early April. While 
limited information is available on pre-nesting habitat selection, pre-
laying habitats for female sage-grouse need to provide a diversity of 
vegetation including forbs that are rich in calcium, phosphorous, and 
protein to meet the nutritional needs of females during the egg 
development period (Barnett and Crawford 1994, p. 117; Connelly et al. 
2000a, p. 970). During the pre-laying period, female sage-grouse select 
forbs that generally have higher amounts of calcium and crude protein 
than sagebrush (Barnett and Crawford 1994, p. 117).
    Forbs and insects are essential nutritional components for Bi-State 
DPS sage-grouse chicks and for brood-rearing sage-grouse (Klebenow and 
Gray 1968, pp. 81-83; Peterson 1970, pp. 149-151; Johnson and Boyce 
1991, p. 90; Connelly et al. 2004, p. 3-3; Dahlgren et al. 2006, p. 
981; Aldridge and Boyce 2007, pp. 522-523; Casazza et al. 2011, pp. 
158-159). During the first 3 weeks after hatching, insects are a 
critical food source of chicks (Patterson 1952, p. 201; Klebenow and 
Gray 1968, p. 81; Peterson 1970, pp. 150-151; Johnson and Boyce 1990, 
pp. 90-91; Johnson and Boyce 1991, p. 92; Drut et al. 1994, p. 93; Pyle 
and Crawford 1996, p. 320; Fischer et al. 1996a, p. 194). Diets of 4- 
to 8-week-old greater sage-grouse chicks were found to have more plant 
material as the chicks matured (Peterson 1970, p. 151). Succulent forbs 
are predominant in the diet until chicks exceed 3 months of age, at 
which time sagebrush becomes a major dietary component (Klebenow 1969, 
pp. 665-656; Connelly and Markham 1983, pp. 171-173; Fischer et al. 
1996b, p. 871; Schroeder et al. 1999, p. 5).
    Decreased availability of forbs corresponds to a decrease in the 
probability of successfully fledging offspring, number of chicks per 
female, and brood size (Barnett and Crawford 1994, p. 117; Dahlgren et 
al. 2006, p. 981; Aldridge and Boyce 2007, pp. 522-523; Casazza et al. 
2011, pp. 158-159). Population dynamics of greater sage-grouse are 
sensitive to adult survival, female reproductive success, and chick 
survival (Blomberg et al. 2012, pp. 11-12). Therefore, habitats that 
support sagebrush vegetation as well as a vegetative understory 
composed of native grasses and forbs are essential to key demographic 
rates.
    In most areas within the range of Bi-State DPS, the herbaceous 
understory component of sagebrush plant communities dries out as summer 
progresses. Habitats used by greater sage-grouse in summer through late 
fall are typically more mesic than surrounding habitats. These areas 
are used primarily for foraging because they provide reliable sources 
of green, herbaceous vegetation when this resource is seasonally 
limited on the landscape (Connelly et al. 2011b, pp. 76-77 and 
references therein). Specifically, these areas include: non-wooded 
riparian communities, springs, seeps, mesic upland meadows, or the 
margins of irrigated hay meadows and alfalfa fields (Casazza et al. 
2011, pp. 162-163; Connelly et al. 2011b, pp. 76-77 and references 
therein). However, brood-rearing habitats are selected for and provide 
for an increased probability of successful recruitment when sites have 
adequate perennial forb cover and plant species richness, adequate 
meadow to sagebrush edge (ratio of perimeter to area), and are farther 
from woodlands (Casazza et al. 2011, pp. 162-163).
    In winter, greater sage-grouse diet is almost exclusively 
sagebrush, although various species of sagebrush can be consumed 
(Rasmussen and Griner 1938, p. 855; Batterson and Morse 1948, p. 20; 
Patterson 1952, pp. 197-198; Wallestad et al. 1975, pp. 628-629; 
Remington and Braun 1985, pp. 1056-1057; Welch et al. 1988, p. 276; 
Welch et al. 1991, p. 462; Myers 1992, p. 55; Connelly et al. 2000a, p. 
972). While limited data are available on winter habitat use in the Bi-
State area, characteristics appear similar

[[Page 64333]]

to those identified across the range of greater sage-grouse (P. Coates 
2012, pers. comm.). Habitats used by greater sage-grouse during winter 
typically consist of 10 to 30 percent sagebrush cover and sagebrush 
heights of 25 to 35 centimeters (cm) (10 to 14 inches (in)), regardless 
of snow depth (Connelly et al. 2000a, p. 972). In all suitable winter 
habitats, the height of sagebrush must be tall enough so that leaves 
remain exposed when wintering areas are largely covered with snow 
(Connelly et al. 2011b, p. 79).
    Based on the information above, we identify sagebrush plant 
communities that contain herbaceous vegetation consisting of a 
diversity and abundance of forbs, insects, and grasses that fulfill all 
of the Bi-State DPS's seasonal dietary requirements to be a physical or 
biological feature essential to the conservation of this DPS. We also 
identify non-sagebrush habitats located adjacent to sagebrush plant 
communities that are used by sage-grouse for foraging during seasonally 
dry periods to be a physical or biological feature essential to the 
conservation of this DPS. These habitats are generally more mesic than 
surrounding habitat, and include wet meadows, riparian areas, and 
irrigated pastures.
Cover or Shelter
    Predation is the most commonly identified cause of direct mortality 
for greater sage-grouse during all life stages and the species relies 
on sagebrush and herbaceous vegetation yearlong for escape and hiding 
cover (Schroeder et al. 1999, p. 9; Connelly et al. 2000b, p. 228; 
Connelly et al. 2011a, p. 66). While limited data are available on 
specific predators in the Bi-State area, known and potential predators 
of adult birds include golden eagle (Aquila chrysaetos), coyote (Canis 
latrans), American badger (Taxidea taxus), and bobcat (Felis rufus) 
(Hartzler 1974, pp. 532-536; Schroeder et al. 1999, pp. 10-11; 
Schroeder and Baydack 2001, p. 25; Rowland and Wisdom 2002, p. 14; 
Hagen 2011, p. 97). Most raptor predation of greater sage-grouse is on 
juveniles and adult age classes during the breeding and late brood-
rearing periods when birds are more conspicuous and associated with 
more sparsely vegetated sites (Hagen 2011, p. 96). Juvenile greater 
sage-grouse also are killed by common ravens (Corvus corax), American 
badgers, coyotes, and weasels (Mustela spp.) (Braun 1995, entire; 
Schroeder et al. 1999, p. 10). Nest predators in the Bi-State area may 
include badgers, weasels, coyotes, common ravens, American crows 
(Corvus brachyrhynchos), magpies (Pica spp.), and domestic cows (Bovus 
spp.) (Coates et al. 2008, pp. 425-426). Coates (2012, pers. comm.) 
suggests that common ravens are likely the most prolific nest predator 
in the Bi-State area.
    While greater sage-grouse in the Bi-State DPS are depredated by a 
variety of predators across all life stages, they are not considered 
primary-prey for any one predator species. The top predators in the Bi-
State area (i.e., golden eagles, coyotes, bobcats, and common ravens) 
are considered generalists and focus more heavily on small mammals.
    Nest predation is influenced by the amount of cover surrounding the 
nest (Gregg et al. 1994, p. 164; Braun 1995, pp. 1-2; DeLong et al. 
1995, p. 90; Braun 1998, p. 149; Coggins 1998, p. 30; Connelly et al. 
2000a, p. 975; Schroeder and Baydack 2001, p. 25; Coates and Delehanty 
2008, p. 636; Kolada et al. 2009b, p. 1343). Females actively select 
nest sites with the presence of big sagebrush (Artemisia tridentata 
Nutt. ssp.), grass, and forb cover (Connelly et al. 2000a, p. 971), and 
nesting success of greater sage-grouse is positively correlated with 
these qualities (Schroeder and Baydack 2001, p. 25; Hagen et al. 2007, 
p. 46; Kolada et al. 2009b, p. 1343). In general, vegetation 
characteristics of successful nest sites include sagebrush canopy cover 
of greater than 15 percent, sagebrush heights of 30 to 80 centimeters 
(cm) (11.8 to 31.5 in), grass and forb heights of 18 cm (7.1 in), and 
grass and forb cover of greater than 15 percent (Connelly et al. 2000a, 
p. 977). While cover (canopy cover or shrubs, and understory cover or 
herbaceous plants) positively influences nesting success, the most 
important type of cover appears variable across the range of the 
greater sage-grouse (Connelly et al. 2000a, p. 971; Coates 2007, p. 
148). In the Bi-State area, shrub canopy cover appears to be most 
influential to both nest-site selection and nesting success (Kolada et 
al. 2009a, p. 1336; Kolada et al. 2009b, p. 1343).
    Furthermore, vegetation other than sagebrush (i.e., understory 
vegetation and other herbaceous cover) have a significant positive 
impact on nest success (Kolada et al. 2009b, p. 1343). While not 
readily apparent in the Bi-State area (Kolada et al. 2009b, p. 1344), 
both understory cover and height has been shown to influence nest 
success across the range of the greater sage-grouse (Gregg 1994, p. 
164; Hagen et al. 2007, p. 46). Additionally, reduced herbaceous cover 
for young chicks can increase their rate of predation (Schroeder and 
Baydack 2001, p. 27; Aldridge and Boyce 2008, p. 402). These studies 
taken collectively indicate the importance of sufficient cover to nest 
and brood success of sage-grouse in the Bi-State area.
    Fragmentation of large, intact habitats into smaller units due to 
anthropogenic or natural causes has been implicated to affect the Bi-
State DPS's susceptibility to mortality through predation. Local 
attraction of common ravens to nesting females may be facilitated by 
loss and fragmentation of native shrublands, which increases exposure 
of nests to potential predation (Aldridge and Boyce 2007, p. 522; Bui 
2009, p. 32; P. Coates 2012, pers. comm.). Reduction in patch size and 
diversity of sagebrush habitat, and increased edge, as well as the 
construction of fences, power lines, and other infrastructure also are 
likely to encourage the presence of the common raven (Coates et al. 
2008, p. 426; Bui 2009, p. 4). Greater sage-grouse are adapted to 
minimize predation by cryptic plumage and behavior (Hagen 2011, p. 96). 
Because sage-grouse are prey, predation will continue to have an effect 
on the Bi-State DPS; however, where habitat is not limited and is of 
good quality, predation appears to be less influential on population 
demographic rates (Coates 2007, pp. 154, 155; Hagen 2011, p. 100). 
Landscape fragmentation, habitat degradation, and human populations 
have the potential to increase predator populations through increasing 
ease of securing prey and subsidizing food sources and nest or den 
sites. Thus, otherwise suitable habitat may, in fact, act as a 
population sink, whereby predation affects mortality more quickly than 
the beneficial aspects of the habitat can affect recruitment (Aldridge 
and Boyce 2007, p. 517). Most sage-grouse research has failed to 
quantify predation rates in relation to habitat structure at a 
landscape level. Thus, while it is not currently possible to completely 
understand the relationships among habitat structure, sage-grouse 
demographic rates, and predator communities, available information 
suggests fragmentation of habitat can facilitate an increase in 
predation rates.
    Bi-State DPS of greater sage-grouse use sagebrush plant communities 
during the winter season for thermal cover and to meet nutritional 
needs. Sagebrush stand selection in winter is influenced by snow depth 
and available literature suggests sagebrush canopy cover should be 
greater than 10 percent and shrubs should have at least 25 cm exposed 
above the snow (Patterson 1952, pp. 188-189; Connelly 1982 as cited in 
Connelly et al. 2000a, p. 980). In some areas, topography influences 
sagebrush

[[Page 64334]]

stand selection (Beck 1977, p. 22; Crawford et al. 2004, p. 5). Winter 
sagebrush use areas are associated with drainages, ridges, or southwest 
aspects with slopes less than 15 percent (Beck 1977, p. 22). Lower, 
flat areas and shorter sagebrush along ridge tops provide roosting 
areas. In extreme winter conditions, greater sage-grouse will spend 
nights and portions of the day burrowed into ``snow burrows'' (Back et 
al. 1987, p. 488), and we expect the Bi-State DPS to exhibit the same 
behavior. During severe winters in the Bi-State area, significant 
percentages of birds from the various PMUs can be highly concentrated 
in localized sites. In these conditions, tall, late-seral sagebrush 
stands are an especially important food source and in some instances 
birds have been observed digging through several inches of snow to 
access shrubs (Casazza et al. 2009, p. 33).
    Therefore, based on the information above, we identify sagebrush 
plant communities consisting of adequate shrub and herbaceous structure 
to provide year-round escape and hiding cover, as well as areas that 
provide concealment of nests and broods during the breeding season, and 
winter season thermal cover to be a physical or biological feature 
essential to the conservation of this DPS. Quantitative information on 
cover can be found in the Primary Constituent Elements for the Bi-State 
DPS section, below.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Lek Sites. Lek sites can be located on areas of bare soil, wind-
swept ridges, exposed knolls, low-statured sagebrush communities, 
meadows, and other relatively open sites with good visibility and low-
vegetation structure (Connelly et al. 1981, pp. 153-154; Gates 1985, 
pp. 219-221; Klott and Lindzey 1989, pp. 276-277; Connelly et al. 2004, 
p. 3-7 and references therein). In addition, leks are usually located 
on flat to gently sloping areas of less than 15 percent grade 
(Patterson 1952, p. 83; Giezentanner and Clark 1974, p. 218; Wallestad 
1975, p. 17; Autenrieth 1981, p. 13). Leks are often surrounded by 
denser shrub-steppe cover, which is used for escape, and thermal and 
feeding cover. Leks can be formed opportunistically at any appropriate 
site within or adjacent to nesting habitat (Connelly et al. 2000a, p. 
970). However, adult male sage-grouse demonstrate strong yearly 
fidelity to lek sites (Patterson 1952, p. 91; Dalke et al. 1963, pp. 
817-818), and some leks in the Bi-State area have been used since the 
1950s. Across the entire Bi-State DPS, approximately 35 to 45 leks are 
considered active as of 2013. In general, lek habitat availability is 
not considered to be a limiting factor for sage-grouse (Schroeder 1997, 
p. 939).
    Nesting Habitat. Greater sage-grouse typically select nest sites 
under sagebrush cover with some forb and grass cover, and successful 
nests are found in areas with higher shrub density and greater forb and 
grass cover than unsuccessful nests (Connelly et al. 2011b, p. 73). 
While the importance of nesting cover remains apparent in the Bi-State 
area, local data suggest slight deviations from the generally accepted 
standards for the greater sage-grouse, which were largely derived from 
research conducted outside the southern Great Basin. Specifically, 
Kolada et al. (2009a, p. 1336; 2009b, p. 1343) found that nesting 
success improved when nesting habitat contained greater than 20 percent 
sagebrush canopy cover and greater than 40 percent total shrub cover 
while shrub height did not appear to influence nesting success. This 
canopy cover standard in the Bi-State area is generally greater than 
those reported elsewhere across the range of the species. Additionally, 
there is currently little support in the Bi-State area for a positive 
influence of understory cover and height on either nest site selection 
or nest success (Kolada et al. 2009a, p. 1336; Kolada et al. 2009b, p. 
1343). Similar findings are apparent in other locations in Nevada, but 
these investigations also suggest a trade-off between overstory and 
understory cover (Coates and Delehanty 2010, pp. 245-246). This implies 
that the need for understory cover diminishes as overstory cover 
increases, and vice versa. Thus, while shrub canopy and grass cover 
provide concealment for sage-grouse nests and young and are critical 
for reproductive success, the composition of these cover components 
appears to vary regionally (Barnett and Crawford 1994, pp. 116-117; 
Gregg et al. 1994, pp. 164-165; DeLong et al. 1995, pp. 90-91; Connelly 
et al. 2004, p. 4-4, Kolada et al. 2009a, p. 1336; Kolada et al. 2009b, 
p. 1343). In the southern Great Basin and in the Bi-State area 
specifically, there is strong support for the importance of greater 
shrub canopy cover on nesting success.
    Female greater sage-grouse exhibit strong fidelity to nesting 
locations (Lyon 2000, p. 20; Connelly et al. 2004, pp. 4-5; Holloran 
and Anderson 2005, p. 747). Interannual distances between nests are 
frequently less than 1 km and often much less than this (Connelly et 
al. 2011b, p. 74 and references therein). Additionally, re-nesting 
attempts are also frequently in close proximity to the original nest 
(Weichman 2012, unpublished data).
    Brood-rearing Habitat. Early brood-rearing habitat is found close 
to nest sites (Connelly et al. 2000a, p. 971), although individual 
females with broods may move large distances (Connelly 1982, as cited 
in Connelly et al. 2000a, p. 971). These sites typically contain a 
greater amount of perennial forbs, with horizontal and vertical 
structural diversity that provides an insect prey base and herbaceous 
forage for newly hatched chicks but additionally for pre-laying and 
nesting hens (Schroeder et al. 1999, p. 11; Connelly et al. 2000a, p. 
971; Connelly et al. 2004, pp. 4-5--4-8; Casazza et al. 2011, pp. 158-
159). By mid-summer and into early fall, birds move to mesic sagebrush 
plant communities that continue to provide green forbs. Casazza et al. 
(2011, pp. 158-163) found that sage-grouse in the Bi-State area with 
broods selected areas with increased plant species richness, greater 
forb cover, and increased meadow edge, and they avoided areas in 
proximity to trees (e.g., riparian sites, conifer encroached sites). 
While broods are known to utilize edges of hay meadows, data indicate 
that small, irregularly shaped meadows are of greater importance to 
broods than are large agricultural fields (Casazza et al. 2011, p. 
163). However, due to relatively limited meadow habitat in the Bi-State 
area, the edges of irrigated agricultural fields are likely important 
in brood production.
    Therefore, based on the information above, we identify sagebrush 
plant communities with the appropriate shrub and herbaceous vegetation 
structure to meet all the needs for all the Bi-State DPS of greater 
sage-grouse reproductive activities (including lekking, nesting, and 
brood-rearing) to be a physical or biological feature essential to the 
conservation of this DPS. Quantitative information on appropriate 
levels of vegetation structure and composition can be found in the 
Primary Constituent Elements for the Bi-State DPS section, below.
Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species
    Greater sage-grouse in the Bi-State area historically occurred from 
at least the Pine Nut Mountains area to south of the Mono County and 
Inyo County border near Bishop, California. Additionally, there are 
areas that are presumed to have been historically occupied that are no 
longer occupied and are now unsuitable for sage-grouse occupancy (i.e., 
Smith Valley,

[[Page 64335]]

Gardnerville, and Bridgeport). Suitable habitat for the Bi-State DPS 
within the geographic area currently occupied by the species is 
approximately 590,184 ha (1,458,381 ac) (Service 2013a, Table 1 p. 20). 
The remaining habitat within the Bi-State area is fragmented, resulting 
in varying degrees of isolation among local breeding populations. Many 
of these fragmented areas serve as unused corridors/sites between 
seasonal habitats for a given population of sage-grouse contained 
within the Bi-State DPS. These corridors are a physical or biological 
feature essential to the conservation of this DPS based on greater 
sage-grouse research, which suggests that sage-grouse exhibit strong 
site fidelity (loyalty to a particular area) to migration corridors and 
seasonal habitats, including breeding, nesting, brood-rearing, and 
wintering areas, even when a particular area may seemingly no longer be 
of value (Connelly et al. 2004, p. 3-1; Connelly et al. 2011b, p. 82)
    The currently suitable sagebrush plant communities and the 
intervening or adjacent fragmented areas (including corridors/sites 
between seasonal habitat areas) that are proposed for designation 
contain physical and biological features that are representative of the 
historical and geographical distribution of the Bi-State DPS. We 
believe the currently unused corridors/sites that contain plant 
communities (primarily woodland encroached sites that are not suitable 
for use) that are proposed for designation were all likely historically 
used by the DPS and also represent historic biological and ecological 
distribution within the the DPS's present range. These corridors/sites 
are intermixed within suitable habitat areas currently utilized by the 
Bi-State DPS during various life stages, as described above. These 
corridors/sites are limiting the extent of sagebrush habitat throughout 
the current range of the DPS, especially in the PMUs with the smallest 
populations (i.e., Pine Nut, Mount Grant, Desert Creek-Fales, and White 
Mountain PMUs), and are creating varying degrees of isolation among 
local breeding populations. Restoration of these corridors/sites can 
facilitate movements among populations and allow the DPS to recovery 
its historical distribution within its present range. To inform our 
decision on specific locations of these corridors/sites, we used the 
2012 Bi-State Action Plan (Bi-State TAC 2012a, entire). The Bi-State 
Action Plan identifies areas for possible restoration activity within 
the present range of the species that would improve overall habitat 
quality and quantity and provide improved connectivity among local 
breeding populations across the Bi-State DPS.
    Therefore, based on the information above, we identify corridors/
sites that currently contain unsuitable/unused plant communities that 
are interspersed with sagebrush habitats that exhibit one or more of 
the physical or biological features described above, to be a physical 
or biological feature essential to the conservation of the Bi-State 
DPS. Once special management designed to improve the condition of these 
interspersed corridors/sites has been implemented, they will help 
ensure long-term conservation of the DPS, and most importantly provide 
connectivity between currently fragmented areas.

Climate Change

    Climate change projections in the Great Basin suggest a hotter and 
stable-to-declining level of precipitation, and a shift in 
precipitation events to the summer months; fire frequency is expected 
to accelerate, fires may become larger and more severe, and fire 
seasons will be longer (Brown et al. 2004, pp. 382-383; Neilson et al. 
2005, p. 150; Chambers and Pellant 2008, p. 31; Global Climate Change 
Impacts in the United States 2009, p. 83). With these projections, 
drought (which is a natural part of the sagebrush ecosystem) is likely 
to be exacerbated.
    Specifically within the Bi-State area, we anticipate climate change 
will act synergistically with other impacts to the Bi-State DPS to 
further diminish habitat, including features such as water, food, cover 
or shelter, and sites for breeding and reproduction. Predicting the 
impact of global climate change on sage-grouse populations is 
challenging due to the relatively small spatial extent of the Bi-State 
area. It is likely that vegetation communities will not remain static 
and the amount of sagebrush shrub habitat will decrease. Further, 
increased variation in drought cycles due to climate change will likely 
place additional stress on the populations. However, while it is 
reasonable to assume the Bi-State area will experience vegetation 
changes into the future, we do not know with precision the nature of 
these changes or ultimately the effect this will have on the Bi-State 
DPS. Regardless, we anticipate the area will likely become generally 
less suitable to invasion by Bromus tectorum (cheatgrass). It is 
similarly likely that the current extent of suitable shrub habitat 
(e.g., areas for cover, shelt, breeding, and reproduction) will 
decrease, as the conditions that make the reduction in cheatgrass 
possible also suggest a less suitable climate condition for sagebrush 
and improved suitability for woodland and drier vegetation communities, 
which are not favorable to sage-grouse in the Bi-State DPS. For 
additional discussion on this topic, see the ``Climate Change'' section 
of the proposed listing rule published elsewhere in today's Federal 
Register.

Primary Constituent Elements for the Bi-State DPS

    According to 50 CFR 424.12(b), we are required to identify the 
physical or biological features essential to the conservation of the 
Bi-State DPS in areas occupied at the time of listing, focusing on the 
features' primary constituent elements (PCEs). We consider primary 
constituent elements to be 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.
    We only consider areas as critical habitat if they meet the 
``Landscape-scale Primary Constituent Element'' (PCE 1) because small, 
isolated patches of sagebrush do not support the Bi-State DPS. If an 
area meets the landscape scale requirement, then a particular site is 
considered critical habitat if it contains one or more of the ``Site-
scale Primary Constituent Elements'' (PCEs 2 through 4); Landscape 
scale may also contain the plant communities discussed above.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the PCEs specific to the Bi-
State DPS of greater sage-grouse are:
Landscape-scale Primary Constituent Element
    Primary Constituent Element 1--Areas with vegetation composed 
primarily of sagebrush plant communities of sufficient size and 
configuration to encompass all seasonal habitats for a given population 
of greater sage-grouse, or facilitate movements within and among 
populations. This includes former sagebrush communities in specific 
locations that are currently primarily woodland encroached sites that 
potentially provide connectivity between populations.
Site-Scale Primary Constituent Elements
    Primary Constituent Element 2--Breeding habitat composed of 
sagebrush plant communities with structural characteristics within the 
ranges described in Table 1, below. Habitat structure values are 
average values.

[[Page 64336]]



 Table 1--Bi-State DPS of Greater Sage-Grouse Structural Guidelines for
                            Breeding Habitat
------------------------------------------------------------------------
                                             Amount of occurrence in the
            Vegetation variable                        habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover....................  >20 percent.
Non-sagebrush Canopy Cover................  >20 percent.
Total Shrub Canopy Cover..................  >40 percent.
Sagebrush Height..........................  >30 cm (12 in).
Perennial Grass Cover.....................  No less than 5 percent but
                                             >10 percent if total shrub
                                             cover <25 percent.
Annual Grass Cover........................  <5 percent.
Forb Cover................................  >10 percent.
Grass/Forb Height.........................  >18 cm (7 in).
------------------------------------------------------------------------

    Primary Constituent Element 3--Brood-rearing habitat composed of 
sagebrush plant communities and mesic habitats used primarily in the 
summer to late fall season. These sites include, but are not limited 
to, riparian communities, springs, seeps, and mesic meadows with 
structural characteristics within the ranges described in Table 2, 
below.

 Table 2--Bi-State DPS of Greater Sage-Grouse Structural Guidelines for
                          Brood-Rearing Habitat
------------------------------------------------------------------------
                                             Amount of occurrence in the
            Vegetation variable                        habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover....................  10 to 25 percent.
Total Shrub Canopy Cover..................  14 to 25 percent.
Sagebrush Height..........................  >30 cm (12 in).
Perennial Grass Cover.....................  >7 percent.
Perennial Forb Diversity..................  >5 species present.
Forb Cover................................  >7 percent.
Grass/Forb Height.........................  18 cm (7 in).
Meadow Edge (ratio perimeter to area).....  >0.015.
Species Richness..........................  >5 species.
------------------------------------------------------------------------

    Primary Constituent Element 4--Winter habitat composed of sagebrush 
plant communities with sagebrush canopy cover greater than 10 percent 
and sagebrush height of greater than 25 cm (9.8 in) above snow level.
    For the PCEs 2 through 4, we adopt the values from the literature 
on greater sage-grouse, but we modify them where available with 
specific research conducted in the Bi-State area and southern Great 
Basin. These data combined provide structural habitat values for Bi-
State DPS of greater sage-grouse in all seasonal habitats. Source data 
include structural vegetation data collected in the breeding season 
(Connelly et al. 2000a; Hagen et al. 2007; Kolada et al. 2009a; Kolada 
et al. 2009b; Coates and Delehanty 2010; Blomberg et al. 2012), summer-
fall (Casazza et al. 2011; Coates et al. in prep. a), and winter 
(Connelly et al. 2000a; Coates et al. in prep. b). To the greatest 
extent possible, these structural habitat values are representative of 
the southern Great Basin and the Bi-State area specifically, and 
reflect the shrub structure, understory structure, and understory 
composition selected for by greater sage-grouse in this region. As 
such, these values are based on the most current and comprehensive 
assessment of the Bi-State DPS habitat structure. We consider an area 
critical habitat if its average vegetation values are within the values 
for the majority of structural categories for any given PCE (see Tables 
1 and 2, above).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. All units proposed for designation as critical habitat, as 
described below, require some level of management to address the 
current and future threats to the physical and biological features 
essential to the conservation of Bi-State DPS of greater sage-grouse. 
In all of the described units, special management may be required to 
ensure that the habitat is able to provide for the biological needs of 
this DPS.
    A detailed discussion of the current and future threats to the Bi-
State DPS of greater sage grouse can found in the Species Report 
available at http://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0042 and summarized in the proposed listing rule to list the 
species as threatened, which is published elsewhere in today's Federal 
Register, in the section entitled Summary of Factors Affecting the 
Species. In general, the features essential to the conservation of the 
Bi-State DPS may require special management considerations or 
protection to reduce the following individual threats and their 
interactions: The spread of invasive plant species and associated 
changes in sagebrush plant community structure and dynamics; wildfire 
and altered fire regime; residential and commercial development, 
including associated land-clearing activities for the construction of 
access roads, utilities, and fences; increased recreational use of 
roads and trails; the proliferation of predators; improper grazing 
management; and other activities that result in the loss or degradation 
of sagebrush plant communities. The largest, overarching concern to the 
Bi-State DPS is multiple threats acting upon the landscape that are 
resulting in habitat fragmentation. The aforementioned activities are 
having direct and indirect effects on the birds' habitat and behavior, 
and are cumulatively and individually increasing habitat fragmentation.
    The physical and biological features contained within the units 
designated as critical habitat may require special management 
considerations or protection to address the threats mentioned above. 
Based on our analysis of threats to the Bi-State DPS of greater sage-
grouse, management activities that could ameliorate these threats 
include, but are not limited to:
    (1) Comprehensive land-use planning and implementation that 
prevents a net decrease in the extent and quality of the DPS's habitat 
through the prioritization and protection of habitats and monitoring; 
protection of lands by fee title acquisition or the establishment of 
permanent conservation easements;
    (2) Management of recreational use to minimize direct disturbance 
and habitat loss;
    (3) Control of nonnative, invasive plants and native, invasive 
plants to reduce further habitat loss and reduce the potential for 
wildfires;
    (4) Management of domestic and wild ungulate use to ensure the 
suitable sage-grouse habitat meets or exceeds the structural habitat 
components required by sage-grouse;
    (5) Monitoring and management of predator communities to determine 
impacts and help reduce potential predation;
    (6) Coordinated and monitored habitat restoration or improvement 
projects to increase the amount of suitable habitat, particularly 
within fragemented areas and migration corridors; and
    (7) Implementation of wildfire suppression, particularly in big 
sagebrush plant associations, to reduce further loss of big sagebrush 
communities that sage-grouse rely on for multiple life stages.
    Such special management activities may be required to protect the 
physical and biological features essential to the conservation of the 
DPS, and support the conservation of the DPS by preventing or reducing 
the loss, degradation, and fragmentation of sagebrush landscapes. 
Additionally, management of critical habitat features can increase the 
amount of suitable

[[Page 64337]]

habitat and enhance connectivity among sage-grouse populations in the 
Bi-State area through the restoration of lands that were previously 
composed of sagebrush plant communities. The limited extent of 
sagebrush habitat throughout the DPS's current range (as well as the 
significantly fragemented nature of the remaining sagebrush habitat) 
emphasizes the need for special management of these corridors/sites for 
the Bi-State DPS' use, thus potentially providing unfragmented habitat 
needed to survive and recover.
    In some cases, continuing current land management practices may be 
appropriate and beneficial for the Bi-State DPS. For instance, 
continued irrigation and maintenance of hay and alfalfa fields on 
private lands near sagebrush habitats may help provide or enhance 
brood-rearing, mesic habitats for the Bi-State DPS. We acknowledge the 
ongoing and proposed conservation efforts of many entities across the 
range of the Bi-State DPS, such as the Natural Resource Conservation 
Service (NRCS) Sage Grouse Initiative (http://www.nrcs.usda.gov/wps/portal/nrcs/site/national/home/), that include many partners to 
implement conservation actions. We are currently coordinating with 
Federal agencies to ensure a seamless continuation of conservation 
practices if final rules are published for a listing determination and 
critical habitat designation.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied at the time of listing that contain the features essential to 
the conservation of the species. If, after identifying these specific 
areas, a determination is made whether these areas are inadequate to 
ensure conservation of the species, in accordance with the Act and our 
implementing regulations at 50 CFR 424.12(e), we then consider whether 
designating additional areas--outside of the geographical area 
currently occupied--are essential for the conservation of the species. 
As a result of this analysis, we are proposing to designate critical 
habitat within the geographical area occupied by the species at the 
time of listing (currently occupied) on which are found those physical 
or biological features essential to the conservation of the DPS and 
which may require special management considerations or protection. Some 
of the units we are proposing to designate as critical habitat contain 
corridors/sites that are currently unsuitable for use because of 
woodland encroachment. These corridors/sites are interspersed within 
sutiable habitat that is currently used by the DPS. These sites provide 
essential connectivity corridors and habitat extent necessary for the 
conservation and recovery of the DPS (see the Physical or Biological 
Features section above). Once special management designed to improve 
the condition of these interspersed corridors/sites has been 
implemented, they will help ensure long-term conservation of the DPS 
and provide connectivity between currently fragmented areas. We are not 
proposing to designate specific areas outside the geographical area 
currently occupied by the DPS.
    We delineated the critical habitat unit boundaries as follows:
    We based our identification of lands that contain physical and 
biological features essential to the conservation of the Bi-State DPS 
of greater sage-grouse on polygons delineated and defined by the Bi-
State TAC during the development of the 2012 Bi-State greater sage-
grouse Preliminary Priority Habitat (PPH) Map (Bi-State TAC 2012b), and 
a map product depicting occupied habitat developed by the Bureau of 
Land Management (BLM) in conjunction with the U.S. Forest Service in 
2008 (BLM 2008). The Bi-State TAC is comprised of biologists 
representing the California Department of Fish and Wildlife (CDFW), 
Nevada Department of Wildlife (NDOW), BLM, the U.S. Forest Service, 
NRCS, USGS, and our offices (i.e., the Service). Both of these products 
(i.e., the PPH map and BLM map) largely correlate with one another, 
although the combined map encompasses more area than either product 
individually. The PPH map developed in 2012, was largely informed by 
Resource Selection Function (RSF) equations. RSFs are ranked habitat 
suitability factors that predict what areas an animal will use or 
avoid. We consider polygons derived through modeling RSFs to be the 
area currently suitable for sage-grouse in the Bi-State area. RSFs 
predict suitable habitat and thus likely overestimate the currently 
utilized habitat; however, a significant amount of sage-grouse 
population and habitat use data specific to the Bi-State area were used 
to develop these data layers, thus resulting in a high-quality mapping 
product for use as the best available information. Ground-truthing of 
many of these areas confirms this mapping effort is accurate for 
predicting use by sage-grouse (Coates 2012, pers. comm.). Thus, we 
consider the polygons delineated through this process to be currently 
occupied. The 2008 BLM map was informed by the delineation of existing 
vegetation and expert opinion, and similarly we consider the polygons 
delineated through this process to be currently suitable habitat in 
this proposal. Therefore, combining the PPH map derived by RSFs and the 
2008 BLM map contributes to our understanding of what constitutes 
currently suitable and potentially usable habitat.
    RSFs are a data-driven approach used to identify suitable habitat. 
The RSF process used readily available, broad-scale, vegetation maps; 
more than 7 years of radio telemetry data; and on-the-ground vegetation 
data collected from across the range of the Bi-State DPS. Specifically, 
the approach used to identify the critical habitat units includes the 
following steps:
    (1) A land cover map was developed for Nevada and California. This 
map is a synthesis of multiple, existing, broad-scale, vegetation 
mapping products (e.g., SynthMap, LANDFIRE, SageStitch, FRAP). 
Additional map layers were developed for environmental factors thought 
to be important to the Bi-State DPS, including maps of pinyon-juniper 
vegetation (dominated by Pinus edulis (pinyon pine) and various 
Juniperus (juniper) species that can encroach upon, infill, and 
eventually replace sagebrush habitat) cover classes used as surrogates 
for phases of encroachment, topographic variables (i.e., elevation, 
ruggedness, and slope), agricultural areas, and anthropogenic factors 
(i.e., urbanization, roads, and recreation).
    (2) RSFs were developed by modeling the relative probability of 
occurrence as a function of different environmental factors. These 
factors consisted of vegetation types, pinyon-juniper cover classes, 
agricultural areas, elevation, ruggedness, slope, roads, recreation, 
and urbanization. The factors were measured at multiple spatial scales 
that reflect movement patterns of the Bi-State DPS. The modeling 
process contrasted these environmental factors for sites used by Bi-
State DPS of greater sage-grouse (which included more than 12,500 
individual sage-grouse telemetry locations) to available sites (which 
were randomly generated locations distributed throughout each PMU). 
Contrasting the environmental factors in areas known to be used by the 
species versus areas available provided information about what factors 
(e.g., urbanization, pinyon-juniper woodland sites) correlated with the 
Bi-State DPS's

[[Page 64338]]

selection or avoidance of a specific location. The Pine Nut PMU was 
analyzed separately from the other five PMUs because the population 
within this PMU exhibits strong differences in behavior and influential 
environmental factors compared to other greater sage-grouse populations 
in the Bi-State area.
    (3) RSFs were applied to the map layers developed in Step 1 to 
calculate an overall probability of use per pixel. This created a 
single habitat suitability map and resulted in a surface of predicted 
use by sage-grouse across the range of the Bi-State DPS. This surface 
was represented by probability values that ranged across a continuous 
spectrum of 0.0 to 1.0.
    (4) To identify currently usable habitat, the values from the 
habitat suitability map were extracted for 1,300 independent sage-
grouse telemetry point locations within the Bi-State area. These newly 
derived habitat suitability values are associated with areas known to 
be used by the Bi-State DPS based on independent telemetry point data. 
We then reclassified this data into binary values (i.e., suitable 
habitat and potentially unsuitable or less than suitable habitat) for 
each PMU.
    (5) The raster cells classified as suitable habitat were converted 
to polygons and smoothed using a distance of 1 km (0.6 mi). This value 
was used because it was sufficiently coarse to alleviate pixilation 
associated with raster data sets but not overly coarse to where the 
resulting map altered significantly from the original layers. Thus, the 
resulting map provided a more easily interpretable layer conducive to 
management.
    (6) All urban areas were digitized and based on model performance 
at multiple scales; large-bodied standing water areas and other areas 
that exceeded 1 square km (247 ac) were removed because they are not 
considered suitable habitat.
    (7) A second independent telemetry data set (more than 1,000 
points) was used to validate the modeling; greater than 99 percent of 
the telemetry points fell within the mapped PPH areas generated from 
the RSF. This step validated that this data-driven approach to identify 
suitable habitat performed well.
    A spatially explicit habitat-suitability model developed for the 
Bi-State DPS (Bi-State Technical Team 2012, unpublished data) predicts 
the location of usable habitat within the current range of the Bi-State 
DPS. The best available data from modeling exercises (as discussed 
above in this section) includes roughly 590,184 ha (1,458,381 ac) of 
suitable habitat within the range of the DPS.
    (8) To identify acres that are currently less than suitable (e.g., 
areas exhibiting less than optimal habitat conditions within the 
present range of the DPS that were either known or likely to be 
historically utilized), we examined information pertaining to potential 
woodland restoration sites identified in the 2012 Bi-State Action Plan 
(Bi-State TAC 2012a, pp. 90-95).
    We identified potential habitat as unused habitats that could be 
suitable for occupation of sage-grouse if practical management was 
applied. These corridors/sites are most commonly former sagebrush areas 
overtaken by pinyon-juniper woodlands. To further refine these areas, 
we identified locations that are: (1) Contiguous with currently 
utilized habitat that occurs within the present range, (2) provide for 
connectivity between and within populations, and (3) identified within 
the 2012 Bi-State Action Plan. We consider the size and degree of 
isolation among various populations contained within the Bi-State DPS 
to be a significant conservation concern; therefore, regaining 
historical connectivity among populations is essential to the 
conservation of the species. The corridors/sites are all contained 
within the borders of the delineated PMUs.
    (9) To match the approach adopted during the development of the RSF 
product, we adjusted the 2008 BLM map utilizing a similar process by 
converting the raster cells to polygons and smoothing the polygons 
using a distance of 1 km (0.6 mi). These three datasets were then 
merged together into a unified layer within a GIS.
    (10) Utilizing the unified data layer, we identified small, 
isolated, and disjunct polygons that were not considered to meet the 
intent of the landscape-scale primary constituent element (PCE 1) and 
were not considered necessary for the recovery of the species. These 
polygons were removed from the dataset resulting in our proposed 
critical habitat map. We specifically request comments on this and 
other criteria described above.
    As described in more detail in the Species Report (Service 2013a, 
pp. 17-29) and the proposed listing rule for the Bi-State DPS of 
greater sage-grouse (published elsewhere in today's Federal Register), 
there are currently six PMUs delineated in the Bi-State area: (1) Pine 
Nut, (2) Desert Creek-Fales, (3) Bodie, (4) Mount Grant, (5) South 
Mono, and (6) White Mountains (see Background section above, and the 
Background section of the proposed listing rule published elsewhere in 
today's Federal Register).
    Proposed critical habitat units for the Bi-State DPS collectively 
contain relatively small and discrete populations that are needed to 
ensure resilience in the face of environmental fluctuations and 
catastrophic events, and to ensure the continuation of evolutionary 
process (see ``Species Information'' section of the proposed listing 
rule published elsewhere in today's Federal Register, and the ``Current 
Range/Distribution and Population Estimates/Annual Lek Counts'' section 
of the Species Report (Service 2013a, pp. 17-28). Thus, the units 
contain the physical and biological features that are essential to the 
conservation of the species. The corridors/sites that are currently 
experiencing woodland encroachment are contiguous with the suitable 
habitat, and are a feature that is essential to the conservation of the 
Bi-State DPS. These corridors/sites provide connectivity between the 
current populations and reduce habitat fragmentation, which in turn 
impacts sage-grouse population dynamics. Once special management 
designed to improve the condition of these corridors/sites has been 
implemented, they would provide needed connectivity among currently 
disjunct populations and additional habitat extent, thereby increasing 
overall habitat redundancy. The best available information indicates 
that, with proper protection and management, the proposed critical 
habitat units are sufficient to provide for the conservation of the 
species.
    While there are six PMUs, we are proposing four units as critical 
habitat for the Bi-State DPS. Units are proposed for designation based 
on sufficient elements of physical or biological features being present 
to support the Bi-State DPS's life-history processes. All units 
individually contain all of the identified elements of physical and 
biological features, and each unit as a whole supports multiple life-
history processes.
    We are proposing for designation of critical habitat lands that we 
have determined are within the geographical area occupied at the time 
of listing and contain the physical or biological features essential to 
the conservation of the DPS.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the Bi-State DPS. The 
scale of the maps we prepared under the parameters for publication 
within the Code of

[[Page 64339]]

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 proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document in the rule portion. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points or both on which each map is based available to the public at 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0042, on our 
Internet sites (Reno Fish and Wildlife Office (http://www.fws.gov/nevada/) and Ventura Fish and Wildlife Office (http://www.fws.gov/ventura/)), and at the field office responsible for the designation 
(see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing to designate approximately 755,960 ha (1,868,017 
ac) in four units as critical habitat for the Bi-State DPS of greater 
sage-grouse, all of which are considered currently occupied. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the Bi-State DPS. The four units we propose as critical habitat 
correspond to the four populations recognized by the Western 
Association of Fish and Wildlife Agencies (WAFWA), which include: (1) 
Pine Nut, (2) North Mono Lake, (3) South Mono Lake, and (4) White 
Mountains. These units are contained within the PMU boundaries (which 
are identified on the maps in the Proposed Regulation Promulgation 
section of this proposed rule); however, the proposed North Mono Lake 
Unit (Unit 2) combines three PMUs (Desert Creek-Fales, Bodie, and Mount 
Grant PMUs) into a single unit. Approximately 75 percent (about 564,578 
ha (1,395,103 ac)) of the area within the four units is currently 
suitable habitat and approximately 25 percent (about 191,381 ha 
(472,914 ac)) is contiguous with currently suitable habitat but is 
considered less than suitable for current use. Table 3 shows land 
ownership and approximate areas of the proposed designated areas for 
the Bi-State DPS.

 Table 3--Proposed Critical Habitat Units for the Bi-State DPS in Nevada
                             and California
      [Area estimates reflect all land within critical habitat unit
                              boundaries.]
------------------------------------------------------------------------
                                Land ownership       Size of unit in
    Critical habitat unit           by type          hectares (acres)
------------------------------------------------------------------------
1. Pine Nut..................  Tribal..........          10,401 (25,701)
                               Federal.........         92,324 (228,137)
                               State...........           4,822 (11,917)
                               Private.........          14,197 (35,081)
Subtotal Unit 1..............  ................        121,744 (300,836)
2. North Mono Lake...........  Tribal..........                  16 (40)
                               Federal.........        294,775 (728,404)
                               State...........            3,374 (8,338)
                               Local Agency....            1,295 (3,200)
                               Private.........         46,031 (113,744)
Subtotal Unit 2..............  ................        345,491 (853,726)
3. South Mono Lake...........  Tribal..........                161 (398)
                               Federal.........        138,905 (343,242)
                               State...........            1,345 (3,323)
                               Local Agency....          13,312 (32,894)
                               Private.........           7,750 (19,151)
Subtotal Unit 3..............  ................        161,473 (399,008)
4. White Mountains...........  Tribal..........              521 (1,286)
                               Federal.........        123,831 (305,994)
                               Private.........            2,901 (7,167)
                              ------------------------------------------
    Subtotal Unit 4..........  ................        127,252 (314,447)
------------------------------------------------------------------------
        Subtotal.............  Tribal..........          11,099 (27,425)
                               Federal.........      526,128 (1,605,777)
                               State...........           9,541 (23,578)
                               Local Agency....          14,607 (36,094)
                               Private.........         70,878 (175,143)
                              ------------------------------------------
    GRAND TOTAL..............  ................     755,960 (1,868,017)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of the four units and reasons why 
they meet the definition of critical habitat for the Bi-State DPS, 
below.

Unit 1: Pine Nut

    The Pine Nut Unit consists of approximately 121,744 ha (300,836 ac) 
and is located in Mono and Alpine Counties, California, and Douglas, 
Lyon, and Carson City Counties, Nevada. The unit encompasses the Pine 
Nut Mountains and represents the northern extent of the DPS. It extends 
from the Carson River south to the West Fork Walker River. The 
southwestern boundary extends into California encompassing Slinkard 
Valley near

[[Page 64340]]

Woodford, California. Land ownership within this unit consists of 
approximately 92,324 ha (228,137 ac) of Federal land, 4,822 ha (11,917 
ac) of State land, 10,401 ha (25,701 ac) of Washoe Tribe of Nevada and 
California tribal land, and 14,197 ha (35,081 ac) of private land. The 
Pine Nut Unit includes lands in the Humboldt-Toiyabe National Forest 
and lands managed by the Carson City District Office of the BLM. State 
lands within this unit include Slinkard/Little Antelope Valley Wildlife 
Area.
    This unit is considered to be within the geographical area occupied 
by the species at the time of listing and contains the physical or 
biological features essential to the conservation of the DPS. This unit 
is important for the conservation of the DPS due to the redundancy and 
additional distributional extent it affords the remainder of the Bi-
State DPS. The physical or biological features essential to the 
conservation of the Bi-State DPS in the Pine Nut Unit may require 
special management considerations or protection due to the presence of 
fire; woodland encroachment; nonnative, invasive species; urbanization 
and human disturbance; infrastructure; feral horses; predation; and 
additional localized and less severe impacts.

Unit 2: North Mono Lake

    The North Mono Lake Unit consists of approximately 345,491 ha 
(853,726 ac) and is located in Alpine and Mono Counties, California and 
Lyon, Douglas, and Mineral Counties, Nevada. The unit extends from 
southern Smith Valley, Nevada in the north to Mono Lake, California in 
the south, and the Wassuk Range in Nevada in the east to the foothills 
of the Sierra Nevada mountain range in the west. Land ownership within 
this unit consists of approximately 294,775 ha (728,404 ac) of Federal 
land, 3,374 ha (8,338 ac) of State land, 1,295 ha (3,200 ac) of local 
agency (County or City) lands, 16 ha (40 ac) of Bridgeport Paiute 
Indian Colony tribal lands, and 46,031 ha (113,744 ac) of private land. 
The North Mono Lake Unit includes lands in the Humboldt-Toiyabe 
National Forest (including Forest Service lands utilized for military 
readiness via a 40-year special use permit with the Marine Corps' 
Mountain Warfare Training Center), and BLM's Bishop Field Office and 
Carson City District Office. State lands within this unit include the 
Green Creek, East Walker River, Slinkard/Little Antelope Valley, and 
Pickel Meadow Wildlife Areas.
    This unit is considered to be within the geographical area occupied 
by the DPS at the time of listing and contains the physical or 
biological features essential to the conservation of the DPS. The Bodie 
Hills population contained within this unit represents one of the two 
largest (core) populations within the Bi-State DPS and as such, the 
habitat in this unit is important for the conservation of the DPS. The 
Bodie Hills population harbors greater than 30 percent of the entire 
Bi-State DPS sage-grouse population, providing both resiliency and 
redundancy to the DPS. In addition, several peripheral populations in 
the Desert Creek-Fales and Mount Grant PMUs are contained within this 
unit and afford additional redundancy and distributional extent. The 
physical or biological features essential to the conservation of the 
Bi-State DPS in the North Mono Lake Unit may require special management 
considerations or protection due to the risk posed by fire; woodland 
encroachment; infrastructure; urbanization; mineral and energy 
development; feral horses; nonnative, invasive species; human 
disturbance; and other localized and less severe threats.

Unit 3: South Mono Lake

    The South Mono Lake Unit consists of approximately 161,473 ha 
(399,008 ac), and is located entirely within Mono County, California. 
The unit extends from Mono Lake in the north to Lake Crowley in the 
south, and from the Nevada and California border in the east to the 
foothills of the Sierra Nevada Mountains in the west. Land ownership 
within this unit consists of approximately 138,905 ha (343,242 ac) of 
Federal land, 1,345 ha (3,323 ac) of State land, 13,312 ha (32,894 ac) 
of local agency land, 161 ha (398 ac) of Utu Utu Gwaitu Paiute Tribe of 
the Benton Paiute Reservation (California), and 7,750 ha (19,151 ac) of 
private land. The South Mono Lake Unit includes lands in the Inyo 
National Forest and the BLM Bishop Field Office. The majority of City 
lands within this unit are owned by the City of Los Angeles and managed 
by the Los Angeles Department of Water and Power.
    This unit is considered to be within the geographical area occupied 
by the species at the time of listing and contains the physical or 
biological features essential to the conservation of the DPS. The Long 
Valley population contained within this unit represents one of the two 
largest remaining populations within the Bi-State DPS and as such 
habitat in this unit is important for the conservation of the DPS. The 
Long Valley population harbors approximately 30 percent of the entire 
Bi-State DPS sage-grouse population, providing both resiliency and 
redundancy to the DPS. The physical or biological features essential to 
the conservation of the Bi-State DPS in the South Mono Lake Unit may 
require special management considerations or protection due to the risk 
presented by fire, human footprint (e.g., urbanization (such as mesic 
areas for late sage-grouse brood-rearing), infrastructure, recreation), 
woodland expansion, and other localized and less severe threats.

Unit 4: White Mountains

    The White Mountains Unit consists of approximately 127,252 ha 
(314,447 ac) and is located in Inyo and Mono Counties, California and 
Esmeralda and Mineral Counties, Nevada. The White Mountains Unit is 
situated in the southern extent of the Bi-State DPS's range. The unit 
extends from the Candelaria Hills and Truman Meadows areas in the north 
to California Highway 168 in the south, and from California Highway 6 
in the west to the Silver Peak Range in Nevada. Land ownership within 
this unit consists of approximately 123,831 ha (305,994 ac) of Federal 
land, 521 ha (1,286 ac) of Death Valley Timbi-sha Shoshone tribal land, 
and 2,901 ha (7,167 ac) of private land. The White Mountains Unit 
includes lands in the Inyo and Humboldt-Toiyabe National Forests, and 
the Bishop, Tonopah, and Stillwater Field Offices of the BLM.
    This unit is considered to be within the geographical area occupied 
by the species at the time of listing and contains the physical or 
biological features essential to the conservation of the DPS. This unit 
is important for the conservation of the DPS due to the redundancy, 
resiliency, and representation it affords the remainder of the Bi-State 
DPS. The population represents approximately 5 to 10 percent of the 
entire DPS. The unit remains generally remote and isolated and lacks 
many of the immediate anthropogenic stressors apparent in other 
portions of the DPS; thus the additional redundancy and resiliency 
afforded by this area may influence conservation of the entire DPS in 
the future. Additionally, this population has a unique genetic 
signature and occurs at high elevation on the extreme southwest portion 
of the DPS's range, thereby adding ecological and genetic 
representation not found elsewhere across the DPS's range. The physical 
or biological features essential to the conservation of the Bi-State 
DPS in the White Mountains Unit may require special management 
considerations or protection due to the presence of

[[Page 64341]]

woodland expansion; urbanization; feral horses; nonnative, invasive 
species; fire; and limited population size among other more localized 
and less severe stressors.

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 that 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.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other manmade structures because such lands 
lack physical and biological features necessary for greater sage-
grouse. 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 sites. Therefore, if the critical habitat 
is finalized as proposed, a Federal action involving these lands would 
not trigger section 7 consultation with respect to critical habitat and 
the requirement of no adverse modification unless the specific action 
would affect the physical and biological features in the adjacent 
critical habitat.
    Likewise, due to past land uses, vegetation changes, or a number of 
other natural or manmade factors, some areas within the mapped proposed 
critical habitat may currently lack the site-specific physical and 
biological features (primary constituent elements) necessary to support 
bi-state DPS of greater sage-grouse (see section, Primary Constituent 
Elements for Bi-state DPS of Greater Sage-grouse). If critical habitat 
is designated, for actions involving lands that lack the primary 
constituent elements for this species, section 7 consultation as it 
relates to critical habitat would not be required.
    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 Bi-State DPS. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Bi-State

[[Page 64342]]

DPS. These activities include, but are not limited to:
    (1) Actions that would result in the loss of sagebrush overstory 
plant cover or height. Such activities could include, but are not 
limited to, the removal of native shrub vegetation by any means for any 
infrastructure construction project; direct conversion to agricultural 
land use; habitat improvement or restoration projects involving actions 
such as (but not limited to) mowing, brush-beating, disking, plowing, 
or prescribed burning; and fire suppression activities. These 
activities could eliminate or reduce the habitat necessary for the 
growth and reproduction of sage-grouse in the Bi-State area, at least 
on a short-term basis.
    (2) Actions that would result in the loss or reduction in native 
herbaceous understory plant cover or height; a reduction or loss of 
associated arthropod communities; or ground disturbance that would 
result in removal or depletion of surface and ground water resources 
that impact brood-rearing habitat. Such activities could include, but 
are not limited to, improper livestock grazing; application of 
herbicides or insecticides; prescribed burning and fire suppression 
activities; seeding of nonnative plant species that would compete with 
native species for water, nutrients, and space; groundwater pumping; 
and water diversions for irrigation and livestock watering. These 
activities could eliminate or reduce the quality of the habitat 
necessary for the growth and reproduction of sage-grouse in the Bi-
State area through a reduction in food quality and quantity, and 
increased exposure to predation.
    (3) Actions that would result in the Bi-State DPS's avoidance of an 
area during one or more seasonal periods. Such activities could 
include, but are not limited to, the construction of vertical 
structures such as power lines, fences, communication towers, and 
buildings; motorized and non-motorized recreational use; and activities 
such as well drilling, operation, and maintenance, which would entail 
significant human presence, noise, and infrastructure. These activities 
could result in the direct and functional loss of habitat if sage-
grouse avoid or reduce use of otherwise suitable habitat in the 
vicinity of these structures or concentrated activity centers 
throughout the Bi-State area.

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 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.
    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
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 
proposed critical habitat designation for the Bi-State DPS to determine 
if they meet the criteria for exemption from critical habitat under 
section 4(a)(3) of the Act. Department of Defense lands with a 
completed, Service-approved INRMP within the proposed critical habitat 
designation include the Hawthorne Army Depot. The Marine Corps' 
Mountain Warfare Training Center occurs outside of the proposed 
critical habitat boundary but conducts training via a 40-year special 
use permit on U.S. Forest Service lands within the proposed area (see 
discussion below under the ``Exclusions Based on National Security 
Impacts'' section). The Marine Corps does not currently have an INRMP; 
however, should the Marine Corps' Mountain Warfare Training Center 
complete an INRMP, we would conduct an analysis to determine if they 
meet the criteria for exemption from the final critical habitat 
designation under section 4(a)(3) of the Act.

Approved INRMPs

Hawthorne Army Depot, 5,421 ha (13,397 ac)

    The Hawthorne Army Depot is located on lands in Mineral County 
surrounding the town of Hawthorne, Nevada, approximately 209 km (130 
mi) southeast of Reno, Nevada, on the southern shore of Walker Lake. 
The 59,584-ha (147,236-ac) installation encompasses lands in the Wassuk 
Range, centered on Mount Grant, where overlap with the Bi-State DPS 
distribution occurs. The Hawthorne Army Depot's military mission is to 
test and demilitarize munitions, maintain equipment, provide high-
desert training facilities for military units, and provide tenant 
support while maintaining ecosystem viability to support the military 
mission.
    The U.S. Army's INRMP is a planning document that guides the 
management and conservation of natural resources under the 
installation's control, specifically to guide the natural resources 
management program from 2013 to 2018, and provide a solid foundation 
for Hawthorne Army Depot on which to build the program beyond 2018 (DOD 
2013, p. ES-1). Implementing this INRMP will allow Hawthorne Army Depot 
to achieve its goal to ensure the sustainability to test and 
demilitarize munitions, maintain equipment, and provide tenant support 
while maintaining ecosystem viability (DOD 2013, p. ES-1). Compliance 
with this INRMP ensures that natural resource conservation measures and 
Army activities on Hawthorne Army Depot land are integrated and 
consistent with Federal stewardship requirements (DOD 2013, p. ES-1). 
The most recent INRMP (updated from previous versions) was approved by 
the Service on August 28, 2013 (DOD 2013, entire), is currently being 
implemented, and provides a conservation benefit to the Bi-State DPS. 
Approximately 5,421 ha (13,397 ac) of lands (occurring within the 
footprint of Unit 2) within this installation supports habitat 
currently occupied by the Bi-State DPS that provides a conservation 
benefit to the DPS.
    The INRMP includes Bi-State DPS management as a high priority 
project, specifically by implementing conservation strategies as 
identified

[[Page 64343]]

through continued multi-agency coordination. Hawthorne Army Depot's 
primary objective for managing special-status species (including the 
Bi-State DPS) is to: (1) Maintain conditions that buffer the effects of 
the military mission on the species and their habitat, (2) support 
monitoring efforts to document the health of species, and (3) enhance 
the habitats of the species (DOD 2013, p. 3-17). Management actions 
that provide a conservation benefit to the Bi-State DPS (i.e., managing 
and increasing the population of and habitat quality for sage-grouse) 
include, but are not limited to:
    (1) Reducing population loss from poachers.
    (2) Improving habitat in the Mount Grant North Cat area by 
installing rock dikes or similar infrastructure to minimize snowmelt 
runoff and to create riparian habitat in the meadow area.
    (3) Possible removal of pinyon-juniper communities at higher 
elevations of Mount Grant to increase sage-grouse populations and 
minimize predation.
    (4) Preventing hunting on the installation. And
    (5) Implementing conservation strategies identified through multi-
agency efforts (e.g., Bi-State Action Plan) (DOD 2013, pp. 3-17-3-18).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the Hawthorne Army Depot INRMP and that conservation 
efforts identified in the INRMP will provide a benefit to the Bi-State 
DPS. Therefore, lands within this installation are exempt from critical 
habitat designation under section 4(a)(3) of the Act. We are not 
including 5,421 ha (13,397 ac) of habitat in this proposed critical 
habitat designation because of this exemption.

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 he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    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 Bi-State DPS, the benefits of critical habitat 
include public awareness of sage-grouse presence and the importance of 
habitat protection, and in cases where a Federal nexus exists, 
increased habitat protection for the Bi-State DPS due to the protection 
from adverse modification or destruction of critical habitat. In 
practice, a Federal nexus exists primarily on Federal lands or for 
projects undertaken by Federal agencies. Since the Bi-State DPS and its 
habitat primarily occur on Federal lands, we have been coordinating 
with Federal agencies on their efforts to conserve the Bi-State DPS, 
and we would anticipate a significant amount of coordination via 
section 7 consultations if the proposed listing and proposed critical 
habitat are finalized. The coordination with Federal partners conducted 
to date has resulted in multiple conservation plans or strategies for 
Federal lands (and to some extent on private lands) throughout the Bi-
State area.
    When we evaluate a management plan during our consideration of the 
benefits of exclusion, we assess 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 we receive, we will evaluate 
whether certain lands in the proposed critical habitat units are 
appropriate for exclusion from the final designation under section 
4(b)(2) of the Act. If the analysis indicates that the benefits of 
excluding lands from the final designation outweigh the benefits of 
designating those lands as critical habitat, then the Secretary may 
exercise her discretion to exclude the lands from the final 
designation.
    We are considering excluding the following areas under section 
4(b)(2) of the Act from the final critical habitat designation for the 
Bi-State DPS. Table 4 below provides approximate areas (ha, ac) of 
lands that meet the definition of critical habitat but are under our 
consideration for possible exclusion under section 4(b)(2) of the Act 
from the final critical habitat rule.

[[Page 64344]]



   Table 4--Areas Meeting the Definition of Critical Habitat and Areas Being Considered for Exclusion From the
                                Critical Habitat Designation for the Bi-State DPS
----------------------------------------------------------------------------------------------------------------
                                                      Areas meeting the definition   Areas being considered for
              Unit                  Area considered      of critical habitat, in       exclusion, in hectares
                                     for exclusion          hectares (acres)                   (acres)
----------------------------------------------------------------------------------------------------------------
Unit 1. Pine Nut................  None..............             121,744 (300,836)                          None
                                                     -----------------------------------------------------------
Unit 2. North Mono Lake.........  Department of                  345,491 (728,404)                9,818 (26,262)
                                   Defense, Marine
                                   Corps Mountain
                                   Warfare Training
                                   Center.
                                  Los Angeles         ............................                 1,002 (2,478)
                                   Department of
                                   Water and Power.
Unit 3. South Mono Lake.........  Los Angeles                    161,473 (399,008)               14,533 (35,911)
                                   Department of
                                   Water and Power.
Unit 4. White Mountains.........  None..............             127,252 (314,448)                          None
                                                     -----------------------------------------------------------
    TOTAL.......................  ..................           755,960 (1,868,017)               25,353 (64,651)
----------------------------------------------------------------------------------------------------------------

    However, we specifically solicit comments on the inclusion or 
exclusion of the areas shown in Table 4. In the paragraphs below, we 
provide an analysis of our considered exclusion of these lands under 
section 4(b)(2) of the Act.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Although the majority of lands in the proposed critical 
habitat are federally owned, private lands are also present in all four 
units. Federal lands include areas with mining leases, geothermal 
energy development, grazing permits, rights-of-way for utilities and 
telecommunications, and recreational uses. Several State-owned parcels 
are included in some units where hunting, wildlife viewing, and other 
recreational activities occur, and tribal lands are also included. The 
economic analysis will estimate the economic impact of a potential 
designation of critical habitat on these activities.
    During the development of a final designation, we will consider 
economic impacts based on information in our economic analysis, public 
comments, and other new information, and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. Lands eligible for exclusion include those 
utilized by the Marine Corps (Mountain Warfare Training Center) for 
military readiness, as discussed above in Application of Section 
4(a)(3) of the Act.
    The Marine Corps' Mountain Warfare Training Center is located on 
lands in Mono County near Sonora Junction, California, approximately 
160 km (100 mi) south of Reno, Nevada. The approximately 243-ha (600-
ac) installation encompasses lands outside the range of the Bi-State 
DPS, but military training activities occur on U.S. Forest Service 
lands contained within our proposed critical habitat boundary. Training 
activities on U.S. Forest Service lands occur via a special use permit 
(Forest Service 2012a-d, entire). We have been in support of the 
requirements established under the special use permit and currently 
operating greater sage-grouse management direction. The Mountain 
Warfare Training Center is a training site for Marines preparing to 
serve in mountainous regions, with an emphasis on training for cold 
weather and high altitudes. Training activity primarily involves 
limited personnel pedestrian activities, helicopter landing and 
deployment sites, and vehicle exercises on established roads. 
Approximately 9,818 ha (26,262 ac) in Unit 2 of Forest Service land 
utilized by the Marine Corps for the Mountain Warfare Training Center 
supports habitat currently occupied by the Bi-State DPS that contains 
the physical and biological features essential to the conservation of 
the species, including nesting, brood-rearing, and wintering seasonal 
habitats.
    While we do not have information currently indicating that these 
lands utilized by the Department of Defense for military readiness and 
the remaining lands within the proposed designation of critical habitat 
for the Bi-State DPS will have an impact on national security, we may 
consider excluding certain lands in the final rule. Consequently, the 
Secretary does not propose to exert her discretion to exclude any areas 
from the final designation based on impacts on national security at 
this time. However, should the Marine Corps' Mountain Warfare Training 
Center or another entity identify impacts to national security that may 
result from designating critical habitat on lands owned, managed, or 
utilized by the Department of Defense, or on the remaining lands within 
the critical habitat footprint, we may consider excluding those lands 
in the final rule. Alternatively, should the Marine Corps' Mountain 
Warfare Training Center complete an INRMP, we would conduct an analysis 
to determine if it meets the criteria for exemption from the final 
critical habitat designation under section 4(a)(3) of the Act (see 
Application of Section 4(a)(3) of the Act, above).
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.

[[Page 64345]]

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

    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides a conservation benefit for 
the species and its habitat;
    (2) There is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) The plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We believe that the Los Angeles Department of Water and Power's 
(LADWP's) conservation strategy (which includes development of an 
memorandum of understanding (MOU)), along with our ongoing partnership 
with this agency, fulfills the above criteria, and we are considering 
the exclusion of lands covered by this conservation strategy that 
provides for the conservation of the Bi-State DPS. We are requesting 
comments on the benefit to the Bi-State DPS from this conservation 
strategy (see Information Requested section above) for this considered 
exclusion. At this time, we are not proposing the exclusion of any 
areas in the proposed critical habitat for the Bi-State DPS.

Los Angeles Department of Water and Power (LADWP) Conservation Strategy

    The LADWP owns and manages approximately 15,535 ha (38,389 ac) of 
the Bi-State DPS's habitat within the Bodie and South Mono PMUs (North 
Mono Lake Unit 2 and South Mono Lake Unit 3) in Mono County, 
California. The LADWP has been managing their lands for the 
conservation of the Bi-State DPS, including implementing measures that 
enhance the habitat and also reduce threats. Additionally, LADWP is 
developing an HCP that would provide a conservation benefit to the Bi-
State DPS and its habitat. The activities we anticipate to be covered 
in the HCP are fire and weed (i.e., nonnative, invasive plants) 
management, livestock grazing, irrigated agriculture (i.e., irrigated 
pasture management), recreation, road maintenance and closures (i.e., 
infrastructure--roads), power production, and power transmission (i.e., 
infrastructure--power lines). Past and current beneficial conservation 
actions implemented to date include (but are not limited to) the 
following:
    (1) Fire--A fire management plan has been implemented that 
emphasizes fire prevention and suppression, and follows guidelines 
developed by LADWP for lands in Inyo County (LADWP and Ecosystem 
Sciences 2010). This conservation strategy is important for protecting 
sagebrush communities (i.e., sage-grouse habitat) from its principle 
disturbance mechanism and preventing wildfires that can cause large-
scale habitat loss that leads to fragmentation and isolation of sage-
grouse populations. The wildland fire agencies in the area (i.e., 
CalFire, BLM, and Forest Service) and LADWP have an agreement in place 
to collaborate on suppressing fires in the region regardless of where 
the fire is located. If a wildfire starts on LADWP lands in sage-grouse 
habitat, the response will be a multi-agency effort to suppress the 
fire. This multi-agency effort means that potentially fewer acres of 
sage-grouse habitat will be lost during a wildfire event. Additionally, 
the LADWP reduces the threat of wildfires through implementation of a 
no campfire/campstove policy outside established, permitted 
campgrounds, and implementation of temporary closures of key sage-
grouse habitat use areas during the July 4th holiday.
    (2) Nonnative, Invasive Plants--LADWP has licensed staff that treat 
noxious weeds. Active treatment of nonnative, invasive plants reduces 
the likelihood that invasive species will become established in and 
negatively impact sagebrush ecosystems by altering plant community 
structure and composition, hydrology, and other aspects of the sage-
brush ecosystem on which sage-grouse in the Bi-State area rely.
    (3) Energy Development--Although there are no plans for energy 
development on LADWP lands in sage-grouse habitat, any potential future 
proposals would consider impacts to the DPS and its habitat (which may 
result in impacts such as, but not limited to, loss of sagebrush 
habitat from structure development, reduced water supply in brood-
rearing habitats, and sage-grouse behavioral impacts from increased 
human presence).
    (4) Sage-brush Removal--Although sagebrush removal may have 
occurred in the past, there are no ongoing or future sage-brush removal 
projects planned on LADWP land. This is important to ensure adequate 
sagebrush habitat for sage-grouse occurs on LADWP lands.
    (5) Grazing--All existing livestock grazing leases have a livestock 
grazing management plan with upland, riparian, and irrigated pasture 
management guidelines and monitoring. Approximately 60 percent (9,261 
ha (22,884 ac)) of LADWP lands are located in the South Mono Lake Unit 
3. Currently, there are no active livestock grazing leases on the 
remaining 40 percent (6,275 ha (15,505 ac)) of LADWP lands in the Mono 
Basin watershed, which is located in North Mono Lake Unit 2 and South 
Mono Lake Unit 3. The implementation of appropriate livestock grazing 
management plans on those LADWP lands grazed in the South Mono Lake 
Unit 3 (i.e., leased and grazed areas totaling 7,986 ha (19,734 ac), 
most of which is sage-grouse habitat) will prevent further loss of 
sagebrush habitat and/or the reduction of habitat quality for sage-
grouse on LADWP lands.
    (a) Upland Management--LADWP adopted BLM's livestock forage 
utilization guidelines for all upland areas (i.e., areas permitted for 
grazing in the Owens River watershed) in potential sage-grouse habitat 
(i.e., maximum 40 percent use on perennial bunchgrasses). Additionally, 
monitoring is conducted using identical protocols to those adapted by 
the BLM Bishop Field office and NRCS to evaluate land management 
practices with a focus towards improving sage-grouse habitat.
    (b) Riparian Management--Riparian pastures were created along the 
Upper Owens River, Convict Creek, McGee Creek and Mammoth Creek in the 
early 1990s with the goal of improving riparian habitat and fisheries 
(Hill et al. 2002, entire). For the past 13 years, livestock have 
grazed each riparian pasture once every three years. Grazing can begin 
in June on whichever riparian pasture is most suitable at the time 
given current climatic conditions. Cattle will be removed from riparian 
pastures at the end of the grazing period or when the average 
utilization of herbaceous forage has reached 30 percent, whichever 
comes first. Monitoring conducted in riparian pastures includes 
utilization, fixed photopoints, permanent riparian monitoring 
transects, and channel cross-section monitoring.
    (c) Irrigated Pasture Management--Lessees (in areas permitted for 
grazing activities in the Owens River watershed) are required to 
maintain irrigated pastures in good to excellent condition. Pastures 
are monitored and rated using NRCS's Guide to Pasture Condition Scoring 
system (Cosgrove et al. 2001, entire). Pastures in good to excellent 
condition will continue to provide a diverse variety of forbs and 
insects during the sage-grouse brood-rearing period, whereas pastures 
in lower

[[Page 64346]]

quality condition would be improved, which would benefit sage-grouse.
    (6) Mining--There are no current or proposed areas of mining or 
reclamation occurring on LADWP land in sage-grouse habitat. Any future 
proposed mining projects would consider impacts to sage-grouse and 
their habitat, which can include, but is not limited to, loss of 
sagebrush habitat, water contamination, and invasion of nonnative 
species.
    (7) Recreation--Recreation management follows the general 
guidelines and practices outlined in the Owens Valley Land Management 
Plan (LADWP and Ecosystem Sciences 2010). These guidelines direct 
various recreational activities to reduce potential impacts to sage-
grouse and their habitat, including, but not limited to, requiring 
permission for individual and group events, developing sage-grouse lek-
viewing guidelines through cooperation with BLM, and closing redundant 
roads or rerouting roads that exist in key sage-grouse habitat areas 
(e.g., Long Valley).
    (8) Urban Development--LADWP policy does not promote new urban or 
agricultural development in the Plan Area (the area covered in the 
draft HCP and that includes all of LADWP lands in Inyo and Mono 
Counties). LADWP is developing an HCP to cover its ongoing activities, 
which include water gathering, water distribution, hydroelectric power 
production, power transmission activities, and continuation of other 
land uses. These other land uses include irrigated agriculture, 
livestock grazing, recreation, fire and weed management, road 
maintenance and closures, and habitat enhancements for covered species 
(those species addressed in the draft HCP). One of the covered species 
in the draft HCP is the Bi-State DPS; therefore, the HCP would provide 
a conservation benefit to the Bi-State DPS and its habitat. The current 
draft HCP proposes to conserve all existing sage-grouse habitat for the 
life of the permit (i.e., 10 years), and possibly longer if the permit 
is renewed.
    (9) Infrastructure (Roads, Power Lines, and Transmission and 
Communication Towers)--The development of new infrastructure including 
roads, power lines, transmission towers, and communication towers 
within sage-grouse habitat will be avoided to the extent practicable. 
Impacts to sage-grouse will be considered to reduce effects such as 
habitat fragmentation and increased predator presence, and minimization 
measures will be implemented if new infrastructure does occur.
    (10) Infrastructure (Fencing)--Fences within 2 km (1.25 mi) of 
occupied leks are evaluated to determine if collisions are occurring or 
to determine the potential for collisions (following guidelines 
presented in the Service's Greater Sage-grouse Conservation Objectives 
Team (COT) Final Report (Service 2013b, p. 52). Future fencing will be 
evaluated for the potential impacts to sage-grouse. Unnecessary fencing 
in high-risk areas will be removed. Additionally, LADWP has been 
installing ``let down'' fencing (i.e., permanent metal fence posts with 
horizontal wire strands that can be effectively removed during the 
sage-grouse breeding season or when cattle are not present), thus 
reducing the likelihood of sage-grouse collisions. To date, LADWP has 
installed approximately 3.2 km (2 mi) of let-down fencing in the 
vicinity of the largest lek in Long Valley; another 0.8 km (0.5 mi) of 
fencing will be converted to let-down in 2013.
    To ensure the continuation of this management, LADWP has committed 
to developing and implementing a conservation strategy to proactively 
manage the Bi-State DPS on their lands within the Bodie and South Mono 
PMUs (B. Tillemans 2013, in litt.). To coordinate these efforts, we 
anticipate co-signing an MOU with LADWP (until such time as an HCP is 
completed) for implementing a sage-grouse conservation strategy that 
will address the threats to sage-grouse in the Bi-State area as 
outlined in the Service's COT Final Report (Service 2013b, entire). As 
a result, we will consider excluding LADWP lands from the final 
critical habitat designation based on the protections provided through 
our partnerhip with LADWP, and to the extent consistent with the 
requirements of section 4(b)(2) of the Act.
    The Secretary is considering exercising her discretion to exclude 
15,535 ha (38,389 ac) that meet the definition of critical habitat for 
the Bi-State DPS in the North Mono Lake Unit 2 and South Mono Lake Unit 
3. Habitat-related threats present on LADWP lands that may require 
special management considerations or proection include, but are not 
limited to, recreation, rangeland management, and surface water 
management (see the proposed listing rule for the Bi-State DPS 
(published elsewhere in today's Federal Register) for additional 
discussion of threats resulting in the present or threatened 
destruction, modification, or curtailment of the Bi-State DPS's habitat 
or range). The existing conservation actions being implemented by the 
LADWP and the proposed MOU help address these threats to the Bi-State 
DPS. We are considering excluding 15,535 ha (38,389 ac) in Units 2 and 
3 based on the protections provided through our partnership with LADWP, 
to the extent consistent with the requirements of section 4(b)(2) of 
the Act. We encourage any public comment regarding our consideration to 
exclude this area in the final critical habitat designation (see 
Information Requested section above).

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. A thorough review of information that we 
relied on in making this determination--including information on 
taxonomy, habitat, distribution, population estimates and trends, and 
potential threats--is presented in the Bi-State DPS Species Report 
available at http://www.regulations.gov (Docket No. FWS-R8-ES-2013-
0042). A summary of this analysis is found within the proposed listing 
rule published elsewhere in today's Federal Register. The purpose of 
peer review is to ensure that our critical habitat designation is based 
on scientifically sound data, and analyses. We have invited these peer 
reviewers to comment during this public comment period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of

[[Page 64347]]

Management and Budget 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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. Therefore, because 
Federal agencies are not small entities, the Service certifies that the 
proposed critical habitat rule will not have a significant economic 
impact on a substantial number of small entities.
    However, Executive Orders 12866 and 13563 direct Federal agencies 
to assess costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. In other 
words, while the effects analysis required under the RFA is limited to 
entities directly regulated by the rulemaking, the effects analysis 
under the Act, consistent with the E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, including small business entities, where 
practicable and reasonable. Our draft economic analysis will assess and 
consider the incremental costs of the proposed designation, to the 
extent practicable, to fulfill these requirements.

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. Energy distribution facilities (i.e., power lines and 
one geothermal facility) are present within this proposed critical 
habitat designation, athough we do not expect the designation of this 
proposed critical habitat to significantly affect energy supplies, 
distribution, or use. This is because, under section 7 of the Act, the 
lead agency for a proposed project would need to consider project 
modifications only if the project were to reach a threshold of 
jeopardizing the continued existence of the DPS or destroy or adversely 
modify its critical habitat, a scenario that is unlikely within the 
footprint of the existing power lines and geothermal facility for this 
DPS. Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a

[[Page 64348]]

condition of Federal assistance.'' It also excludes ``a duty arising 
from participation in a voluntary Federal program,'' unless the 
regulation ``relates to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and tribal 
governments under entitlement authority,'' if the provision would 
``increase the stringency of conditions of assistance'' or ``place caps 
upon, or otherwise decrease, the Federal Government's responsibility to 
provide funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; Aid to Families with Dependent 
Children work programs; Child Nutrition; Food Stamps; Social Services 
Block Grants; Vocational Rehabilitation State Grants; Foster Care, 
Adoption Assistance, and Independent Living; Family Support Welfare 
Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because the majority of lands (i.e., 
86 percent) being proposed for designation are Federal lands (including 
Humboldt-Toiyaba National Forest, Inyo National Forest, Carson City 
District BLM, Bishop Field Office-BLM, Tonopah Field Office-BLM, and 
Stillwater Field Office-BLM) and State lands (the Slinkard/Little 
Antelope Valley, Green Creek, East Walker River, and Pickel Meadow 
Wildlife Areas) in both Nevada and California. None of these government 
entities fits the definition of ``small governmental jurisdiction.'' 
Therefore, a Small Government Agency Plan is not required. However, we 
will further evaluate this issue (including with regards to the tribal 
lands (Washoe Tribe of Nevada and California, Bridgeport Paiute Indian 
Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation 
(California), and the Death Valley Timbi-sha Shoshone Tribe) and 
private lands that represent a significantly smaller proportion of the 
proposed critical habitat designation) as we conduct our economic 
analysis, and review and revise this assessment as warranted.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. As discussed above, the designation of critical habitat 
affects only Federal actions. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. Due to current 
public knowledge of the DPS's protections and, if we list the DPS, the 
prohibition against take of the DPS both within and outside of the 
proposed critical habitat units, we do not anticipate that property 
values will be affected by the critical habitat designation. However, 
we have not yet completed the economic analysis for this proposed rule. 
Once the economic analysis is available, we will review and revise this 
preliminary assessment as warranted, and prepare a takings implication 
assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior policy, we requested information from, and 
coordinated development of, this proposed critical habitat designation 
with appropriate State resource agencies in Nevada and California. The 
designation of critical habitat in areas currently occupied by the Bi-
State DPS imposes no additional restrictions to those that would be put 
in place by listing the DPS and, therefore, has little incremental 
impact on State and local governments and their activities. The 
designation may have some benefit to these governments because the 
areas that contain the physical or biological features essential to the 
conservation of the DPS are more clearly defined, and the elements of 
the features necessary to the conservation of the DPS are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the DPS, the 
rule identifies the elements of physical or biological features 
essential to the conservation of the DPS. 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 proposed 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

[[Page 64349]]

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.
    There are tribal lands in Nevada and California included in this 
proposed designation of critical habitat. These include lands owned or 
managed by the Washoe Tribe of Nevada and California, Bridgeport Paiute 
Indian Colony, Utu Utu Gwaitu Paiute Tribe of the Benton Paiute 
Reservation, and the Death Valley Timbi-sha Shoshone Tribe. Using the 
criteria found in the Criteria Used To Identify Critical Habitat 
section above, we have determined that all of the areas proposed for 
designation on tribal lands are essential to the conservation of the 
DPS. We will seek government-to-government consultation with these 
tribes throughout the proposal process and development of the final 
designation of critical habitat for the Bi-State DPS. At this time we 
are not considering any tribal lands for exclusion from final critical 
habitat designation. We recently informed all four tribes of how we are 
evaluating section 4(b)(2) of the Act and of our interest in consulting 
with them on a government-to-government basis.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov and upon request from the 
Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Pacific Southwest Regional Office, Nevada Fish and Wildlife Office, and 
Ventura Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.95, amend paragraph (b) by adding an entry for ``Bi-
State Distinct Population Segment of the Greater Sage-grouse 
(Centrocercus urophasianus),'' in the same alphabetical order that the 
species appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

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

Bi-State Distinct Population Segment of the Greater Sage-grouse 
(Centrocercus urophasianus)

    (1) Critical habitat units are depicted for Carson City, Douglas, 
Esmeralda, Lyon, and Mineral Counties, Nevada, and Alpine, Inyo, and 
Mono Counties, California, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Bi-State DPS of greater sage-grouse consist of four components:
    (i) Landscape-scale Primary Constituent Element 1. Areas with 
vegetation composed primarily of sagebrush plant communities of 
sufficient size and configuration to encompass all seasonal habitats 
for a given population of greater sage-grouse, or facilitate movements 
within and among populations. This includes former sagebrush 
communities in specific locations that are currently primarily woodland 
encroached sites that potentially provide connectivity between 
populations.
    (ii) Site-scale Primary Constituent Element 2. Breeding habitat 
composed of sagebrush plant communities with structural characteristics 
within the following ranges (habitat structure values are average 
values):

------------------------------------------------------------------------
                                             Amount of occurrence in the
            Vegetation variable                        habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover....................  >20 percent.
Non-sagebrush Canopy Cover................  >20 percent.
Total Shrub Canopy Cover..................  >40 percent.
Sagebrush Height..........................  >30 centimeters (12 inches).
Perennial Grass Cover.....................  No less than 5 percent but
                                             >10 percent if total shrub
                                             cover <25 percent.
Annual Grass Cover........................  <5 percent.
Forb Cover................................  >10 percent.
Grass/Forb Height.........................  >18 centimeters (7 inches).
------------------------------------------------------------------------


[[Page 64350]]

    (iii) Site-scale Primary Constituent Element 3. Brood-rearing 
habitat composed of sagebrush plant communities and mesic habitats used 
primarily in the summer to late fall season. These sites include, but 
are not limited to, riparian communities, springs, seeps, and mesic 
meadows, with structural characteristics within the following ranges:

------------------------------------------------------------------------
                                             Amount of occurrence in the
            Vegetation variable                        habitat
------------------------------------------------------------------------
Sagebrush Canopy Cover....................  10 to 25 percent.
Total Shrub Canopy Cover..................  14 to 25 percent.
Sagebrush Height..........................  >30 cm (12 in).
Perennial Grass Cover.....................  >7 percent.
Perennial Forb Diversity..................  >5 species present.
Forb Cover................................  >7 percent.
Grass/Forb Height.........................  18 cm (7 in).
Meadow Edge (ratio perimeter to area).....  >0.015.
Species Richness..........................  >5 species.
------------------------------------------------------------------------

    (iv) Site-scale Primary Constituent Element 4. Winter habitat 
composed of sagebrush plant communities with sagebrush canopy cover 
greater than 10 percent and sagebrush height of greater than 25 
centimeters (9.8 inches) above snow level.
    (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 
[EFFECTIVE DATE OF FINAL RULE].
    (4) Critical habitat map units. Data layers defining map units were 
created from a number of geospatial and informational data, including 
(but not limited to): The 2012 Bi-State greater sage-grouse Preliminary 
Priority Habitat (PPH) Map (Bi-State TAC PPH 2012b), a map product 
depicting occupied habitat developed by the Bureau of Land Management 
(BLM) in 2008 (BLM 2008), the 2012 Bi-State Action Plan (Service 
2012b), multiple broad-scale vegetation mapping products, and telemetry 
data sets. Critical habitat units were then mapped as shapefiles using 
Universal Transverse Mercator (UTM) Zone 11N coordinates. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's Internet site (http://www.fws.gov/nevada/ and 
http://www.fws.gov/ventura/), at http://www.regulations.gov at Docket 
No. FWS-R8-ES-2013-0042 and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
BILLING CODE 4310-55-P

[[Page 64351]]

    (5) Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP28OC13.010
    

[[Page 64352]]


    (6) Unit 1: Pine Nut; Carson City, Douglas, and Lyon Counties, 
Nevada, and Alpine and Mono Counties, California. Map of Unit 1 
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.011


[[Page 64353]]


    (7) Unit 2: North Mono Lake; Douglas, Lyon, and Mineral Counties, 
Nevada, and Alpine and Mono Counties, California. Map of Unit 2 
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.012


[[Page 64354]]


    (8) Unit 3: South Mono Lake; Mono County, California. Map of Unit 3 
follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.013


[[Page 64355]]


    (9) Unit 4: White Mountains; Esmeralda and Mineral Counties, 
Nevada, and Inyo and Mono Counties, California. Map of Unit 4 follows:
[GRAPHIC] [TIFF OMITTED] TP28OC13.014

* * * * *

    Dated: September 26, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-24305 Filed 10-25-13; 8:45 am]
BILLING CODE 4310-55-C