[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Rules and Regulations]
[Pages 54781-54846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21013]



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Vol. 79

Friday,

No. 177

September 12, 2014

Part II





 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; Revised Designation of 
Critical Habitat for the Contiguous United States Distinct Population 
Segment of the Canada Lynx and Revised Distinct Population Segment 
Boundary; Final Rule

Federal Register / Vol. 79 , No. 177 / Friday, September 12, 2014 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0101; 4500030114]
RIN 1018-AZ77


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for the Contiguous United States 
Distinct Population Segment of the Canada Lynx and Revised Distinct 
Population Segment Boundary

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are finalizing two 
actions with this rule: We are designating revised critical habitat for 
the contiguous United States distinct population segment of the Canada 
lynx (Lynx canadensis) under the Endangered Species Act of 1973, as 
amended, and we are revising the boundary of the Canada lynx distinct 
population segment. These revisions fulfill our obligations under two 
settlement agreements and address issues raised by two courts regarding 
our previous critical habitat designation. This rule revises critical 
habitat for the lynx and extends the Endangered Species Act's 
protections to the species wherever it occurs in the contiguous United 
States, including New Mexico. The effect of this regulation is to 
conserve the Canada lynx and its habitats in the contiguous United 
States under the Endangered Species Act.

DATES: This rule becomes effective on October 14, 2014.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm. Comments and materials we received, as well as 
some supporting documentation we used in preparing this final rule, are 
available for public inspection at http://www.regulations.gov. All of 
the comments, materials, and documentation that we considered in this 
rulemaking are available by appointment, during normal business hours 
at: U.S. Fish and Wildlife Service, Montana Ecological Services Field 
Office, 585 Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-
5225.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0101, and at the Montana Ecological Services 
Field Office (http://www.fws.gov/montanafieldoffice/ (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we developed for this critical habitat designation will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be included in the preamble and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jodi Bush, Field Supervisor, U.S. Fish 
and Wildlife Service, Montana Ecological Services Field Office, 585 
Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225. If you 
use a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to revise the 
designation of critical habitat for the contiguous United States 
distinct population segment (DPS) of the Canada lynx (Lynx canadensis). 
Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.) (ESA or Act), any species that is determined to be an endangered 
or threatened species requires critical habitat to be designated, to 
the maximum extent prudent and determinable. Designations and revisions 
of critical habitat can only be completed by issuing a rule. This rule 
also rescinds the existing State-boundary-based definition of the lynx 
DPS and replaces it with a definition that extends the Act's 
protections to lynx ``where found'' in the contiguous United States. 
This change ensures that lynx, which are known for their long-distance 
dispersal capability and tendency to occur in places well outside of 
typical habitats, receive the Act's protections wherever they occur in 
the contiguous United States, including (but not limited to) New 
Mexico.
    On March 24, 2000, we, the U.S. Fish and Wildlife Service 
(Service), listed the contiguous United States DPS of the Canada lynx 
as threatened in 14 States (65 FR 16052). On September 26, 2013, we 
published in the Federal Register a proposed rule to rescind the State-
boundary-based definition of the lynx DPS and to revise the critical 
habitat designation for the lynx DPS (78 FR 59430). Section 4(b)(2) of 
the Act states that the Secretary shall designate critical habitat on 
the basis of the best available scientific data after taking into 
consideration the economic impact, national security impact, and any 
other relevant impact of specifying any particular area as critical 
habitat.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for lynx in the contiguous United 
States. Here we are designating approximately 38,954 square miles 
(mi\2\) (100,891 square kilometers (km\2\)) of critical habitat in five 
units in the States of Idaho, Maine, Minnesota, Montana, Washington, 
and Wyoming.
    This rule consists of: (1) Replacement of the existing State-
boundary-based definition of the range of the lynx DPS with a 
definition that extends the Act's protections to lynx ``where found'' 
in the contiguous United States, and (2) a final designation of revised 
critical habitat for the contiguous United States DPS of the Canada 
lynx.
    We have prepared an economic analysis of the designation of 
critical habitat. To consider economic impacts, we have prepared an 
analysis of the economic impacts of the critical habitat designations 
and related factors. We announced the availability of the draft 
economic analysis (DEA) in the Federal Register on June 20, 2014 (79 FR 
35303), allowing the public to provide comments on our analysis. In 
this rule, we have responded to comments we received on the economic 
analysis (see Summary of Comments and Recommendations section, below).
    We have prepared a National Environmental Policy Act analysis. 
Because this rule designates critical habitat in States within the 
jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we 
prepared an analysis in accordance with the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321 et seq.). We announced the 
availability of the draft environmental assessment in the Federal 
Register on June 20, 2014 (79 FR 35303), allowing the public to provide 
comments on our assessment. We have incorporated the comments and have 
completed the final environmental assessment and finding of no 
significant impact (FONSI) concurrently with this final determination.
    Peer review and public comment. We sought comments from appropriate 
and independent specialists to ensure that our designation is based on 
scientifically sound data and analyses. We obtained opinions from four 
knowledgeable individuals with scientific expertise to review our 
technical assumptions, analysis, and

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whether or not we had used the best available information. These peer 
reviewers generally concurred with our methods and conclusions and 
provided additional information, clarifications, and suggestions to 
improve this final rule. Information we received from peer review is 
incorporated in this final revised designation. We also considered all 
comments and information received from States, Tribes, Federal 
agencies, and the public during the comment periods.

Previous Federal Actions

    For more information on previous Federal actions concerning the 
lynx DPS, refer to the final listing rule published in the Federal 
Register on March 24, 2000 (65 FR 16052), the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076), the 
Recovery Outline for the Contiguous United States DPS of Canada Lynx 
(recovery outline; U.S. Fish and Wildlife Service 2005, entire), the 
final rule designating critical habitat for lynx published in the 
Federal Register on November 9, 2006 (71 FR 66008), the final rule 
designating revised critical habitat published in the Federal Register 
on February 25, 2009 (74 FR 8616), the 12-month finding on a petition 
to change the final listing of the DPS of the Canada lynx to include 
New Mexico published in the Federal Register on December 17, 2009 (74 
FR 66937), and the proposed rule to revise the designation of critical 
habitat and the boundary for the lynx DPS published in the Federal 
Register on September 26, 2013 (78 FR 59430). These documents and 
others addressing the status and conservation of lynx in the contiguous 
United States may be viewed and downloaded from the Service's Web site: 
http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the lynx DPS during two comment 
periods. The first (90-day) comment period associated with the 
publication of the proposed rule (78 FR 59430) opened on September 26, 
2013, and closed on December 26, 2013. We also requested comments on 
the proposed critical habitat designation and associated draft economic 
analysis and draft environmental assessment during a 30-day comment 
period that opened June 20, 2014, and closed on July 21, 2014 (79 FR 
35303). We held a public hearing in Helena, Montana, on November 25, 
2013. We also contacted appropriate Federal, State, Tribal, and local 
agencies; scientific organizations; and other interested parties and 
invited them to comment on the proposed rule, the economic analysis, 
and the draft environmental assessment during these comment periods.
    During the first comment period, we received 169 comment letters 
directly addressing the proposed critical habitat designation (one of 
which also included approximately 600 identical or nearly identical 
one-page form letters). During the second comment period, we received 
15 comment letters (one of which transmitted 1,999 identical or nearly-
identical one-page form letters) addressing the proposed critical 
habitat designation, the draft economic analysis, and/or the draft 
environmental assessment. During the November 25, 2013, public hearing, 
two individuals or organizations made comments on the proposed 
designation of critical habitat for the lynx DPS. All substantive 
information provided during comment periods has either been 
incorporated directly into this final determination or addressed below. 
Comments received were grouped into 49 general issues specifically 
relating to the proposed critical habitat designation for the lynx DPS, 
and are addressed in the following summary and incorporated into the 
final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from five appropriate and 
independent specialists with scientific expertise that included 
familiarity with the species, the geographic regions in which the 
species occurs, and conservation biology principles. We received 
responses from four peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the lynx DPS. The peer reviewers generally concurred with our methods, 
use of available scientific information, application of biological and 
ecological principles, and conclusions and provided additional 
information, clarifications, and suggestions to improve the final 
critical habitat rule. Several peer reviewers noted the challenges, 
given information gaps and the natural vagaries of lynx and snowshoe 
hare (Lepus americanus) population dynamics and habitats, in developing 
criteria to delineate critical habitat. Several also suggested that 
other areas should be considered or included in the designation. Peer 
reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer suggested that the Primary 
Constituent Element (PCE) for lynx critical habitat should include a 
landscape- or home range-scale snowshoe hare density threshold rather 
than the ``presence of snowshoe hares and their preferred habitat 
conditions'' as defined in the proposed rule. The reviewer felt that 
the proposed rule lacked clarity regarding what constitutes ``low'' (or 
``high'') hare densities and suggested that the Service develop working 
definitions of those terms to be applied at the scale of the landscape 
or home range.
    Our Response: We appreciate the potential advantages of using 
landscape-scale hare density as a component of the PCE. However, the 
available literature does not allow us to determine minimum snowshoe 
hare densities necessary to maintain lynx populations across the range 
of the DPS. Additionally, thresholds of hare density needed to support 
lynx populations likely differ between the western, Great Lakes, and 
northeastern parts of the DPS range, and the core range of Canada and 
Alaska, because of significant differences in habitat quality, 
quantity, and spatial arrangement; climate; magnitude and periodicity 
of hare cycles; presence, diversity, and density of competing hare 
predators; and relative connectivity of DPS populations with the core 
population in Canada. In the proposed rule (78 FR 59440) and in this 
final rule (Critical Habitat section, below), we present information, 
where available (Maine and Minnesota), regarding the differences in 
hare densities between areas that support lynx populations and areas 
that do not. However, we do not believe it would be appropriate to 
apply these densities as thresholds elsewhere within the range of the 
DPS, especially because it appears that lynx populations in some areas 
(e.g., the Greater Yellowstone Area and the Northern Cascades) persist 
despite relatively lower hare densities while other areas with higher 
densities of hares, at least in some places in some years, do not 
support lynx populations (e.g., the Kettle/Wedge area of northeastern 
Washington). Therefore, at this time, we do not believe that a 
scientifically defensible definition of a minimum hare density exists 
at any scale or that one should be applied as a component of the PCE 
for lynx critical habitat across the range of the DPS.
    (2) Comment: Two peer reviewers felt that our analysis of the 
potential effects of climate change on lynx emphasized

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reductions in snowfall but said little about other potential effects. 
One reviewer suggested that we include more discussion of the potential 
effects of climate change on spruce-fir forest distribution and 
provided citations that suggest these forests, particularly in the 
Northeast, may be susceptible to climate change, and that spruce-fir 
forests could disappear from New England and much of the upper Great 
Lakes region due to drought, thermal stress, increased competition from 
other tree species, decreased regeneration success, and increased 
susceptibility to pathogens and other forest insects. Given the 
importance of regenerating spruce-fir forests to snowshoe hares and 
lynx, this reviewer believed that the climate-induced northward 
contraction of the range of spruce-fir forests is a threat to the 
conservation of the lynx DPS. The other peer reviewer felt the climate 
effects section was too narrow in scope because it did not address the 
effects of climate change on alternate prey and the behavioral 
flexibility of lynx to use alternate prey as climate change progresses.
    Our Response: We agree that climate change is projected to cause a 
northward contraction of spruce-fir forests within the range of the DPS 
with potential negative consequences for both lynx and snowshoe hares. 
We have evaluated the sources provided by the reviewer and added a 
discussion of potential impacts of climate change on spruce-fir forests 
to our Climate Change section, below (also see our response to comment 
(18), below). We also agree that climate change could exert pressure on 
lynx to rely to a greater extent on alternate prey if it reduces future 
landscape-scale snowshoe hare densities. However, although alternate 
prey may be relatively more or less important to lynx seasonally and 
geographically (Aubry et al. 2000, p. 373), we are aware of no lynx 
populations that persist in areas where prey other than snowshoe hares 
contribute a majority of the biomass of the lynx diet. If climate 
change results in landscape-scale reductions in hare densities, some 
areas that currently support lynx populations may become less capable 
of doing so, and lynx could decline or disappear from these areas 
regardless of the diversity or abundance of alternate prey species. 
Such climate-induced impacts to hare habitats and populations could be 
accompanied by projected reductions in snow quantity, quality, and 
duration, thereby reducing the competitive advantage lynx have over 
other hare predators in the areas that currently support lynx 
populations. This would further diminish the likelihood that lynx could 
persist in areas of reduced hare density by switching to alternate 
prey, and lynx populations are unlikely to persist in areas where such 
a switch would be necessary over the long term.
    (3) Comment: One peer reviewer supported our proposed additions of 
the Van Buren and Herseytown-Staceyville areas to lynx critical habitat 
in Maine but disagreed with our determination that western Maine (south 
of the area designated in this final rule) does not contain the 
physical and biological features necessary to sustain lynx over time 
and is, therefore, not essential to lynx conservation. This reviewer 
(a) questioned our general characterization that spruce-fir forest is a 
lower percentage of the landscape in western than in northern Maine and 
noted that balsam fir (Abies balsamea) volumes are estimated to be 
higher in some parts of western Maine than in northern Maine areas 
designated as critical habitat; (b) contends that, although there 
currently is less high-quality hare habitat in western than in northern 
Maine, such habitats (and, therefore, hare densities) are expected to 
increase in western Maine over the next 25 years while concurrently 
decreasing in northern Maine; (c) believes that western Maine meets 
many if not all of the same criteria we used in determining that the 
Van Buren and Herseytown-Staceyville areas warrant designation as 
critical habitat; and (d) hypothesizes that western Maine may increase 
in importance to lynx conservation given the potential for higher 
elevations to moderate climate change effects on snow accumulation in 
the Northeast.
    Our Response: The latest modeling from University of Maine School 
of Forestry Resources indicates that the composition of Maine's 
northern forest will be influenced by complicated interactions between 
spruce budworm outbreaks and their severity, salvage forestry related 
to budworm outbreaks, other trends in forest management and land 
ownership, and climate change (Legaard et al. 2013 Unpublished Report, 
entire). Some projections predict a transition to a forest of more 
mixed composition, and especially the expansion of balsam fir (a 
significant component of hare/lynx habitat) on about 18 percent of the 
northern Maine forest (Simons-Legaard et al. 2013a, p. 12). This 
prediction is in contrast to broad predictions that spruce and fir will 
decline because of climate change (Iverson et al. 2008, pp. 400, 404). 
Although a trend toward expanding balsam fir (in area and timber 
volume) is evident in northern Maine, the modeling in the papers cited 
by the peer reviewer does not include western Maine. The same trends 
may occur there; however, this cannot be inferred from the cited 
studies.
    Although spruce and balsam fir occur in western Maine, the quality 
of habitat they provide for hare and lynx depends on the size and 
distribution of the patches and the age of the stands. The information 
the reviewer cites from McCaskill et al. (2011, p. 25) indicates that 
the average balsam fir volume/acre is greatest in Franklin County (a 
western Maine county), but much lower in Oxford County next to New 
Hampshire. However, McCaskill et al. (2011) provide information on only 
the volume/acre and not the age, patchiness, and aerial extent of 
spruce-fir-dominated stands. An alternative explanation for high fir 
volume in Franklin County is that forests are more mature in western 
Maine where forest management may be less intense than in northern 
Maine and a higher proportion of the land is in small woodlot 
ownership.
    Maps of the balsam fir volume in McCaskill et al. (2011, p. 25) 
show a particularly high volume in the Rangeley and Flagstaff Lakes 
region, where stands may be more mature because land parcels in these 
areas are typically small and privately owned, or because large areas 
are in State conservation ownership. Further north, especially along 
the Maine-Quebec border, stands may be more mature and have higher 
volume because of forest management practices of Maine Tribes. Balsam 
fir volume/acre for Somerset and Piscataquis Counties (about 40 percent 
of the area designated as critical habitat) are third and fourth 
highest in the State, respectively. However, the only area of high 
balsam fir volume on the map for the core lynx critical habitat area is 
in Baxter State Park, where stands are mature due to protection.
    Balsam fir volume/acre for Aroostook County (about 50 percent of 
the area designated as critical habitat) is the second highest in the 
State, yet no single area stands out on the map as having a 
particularly high volume, except a thin strip along the Route 11 
corridor north of Ashland, where stands may be more mature because land 
parcels are small and privately owned. Thus, absent the context of 
areal extent, spatial arrangement, and stand age, and how they relate 
to hare and lynx habitat quality, we conclude balsam fir volume/acre 
alone may not be a good surrogate for lynx habitat and does not justify 
the inclusion of western Maine within this final critical habitat 
designation.

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    In the proposed rule and this final rule, we acknowledge the 
expected decline in hare habitat in northern Maine resulting from the 
shift in timber harvest practices from clearcutting to partial 
harvesting and the seral succession of regenerating clearcuts, which 
currently produce high hare densities, to more mature stands that will 
support fewer hares. We agree that hare densities may increase in parts 
of western Maine over the next several decades while they are likely to 
decrease in parts of northern Maine. However, we are not convinced this 
change will result in increases in landscape-scale hare densities in 
western Maine or that western Maine will become essential to the 
persistence and conservation of lynx populations in Maine. First, if 
rates of harvest were the same in western as they were in northern 
Maine in the 1990s and 2000s, the amount of young forest created would 
be expected to be similar. Second, no information is provided on the 
extent, size, and type of cuts in western Maine, which are important 
factors for predicting the quality of future habitat. Third, because 
partial harvesting was the predominant form of forestry in the 1990s 
and 2000s, the regenerating young forest would be expected to support 
lower landscape-scale hare densities in both regions relative to the 
high hare densities that resulted from the extensive clearcutting of 
the 1970s and 1980s. And fourth, because the conifer-dominated habitats 
in western Maine are believed to be patchier and less contiguous than 
in northern Maine, landscape-scale hare densities in western Maine 
would be expected to be lower and less able to support lynx populations 
over time.
    Additionally, a study suggesting a possible southwesterly shift in 
lynx habitat (Simons 2009, pp. 153-163) was conducted in a 2,500-mi\2\ 
(6,475-km\2\) area that is in the southwest corner of the designated 
critical habitat and that extends only as far south as Moosehead Lake. 
The study did not include western Maine, and the analysis has not been 
extended to western Maine or to more northern portions of the critical 
habitat area. Consequently, the study does not address whether the 
habitat is more fragmented and patchy in western Maine. Simons (2009, 
pp. 162-163) acknowledges that, although snowshoe hare habitat may 
shift southward, the potential for lynx densities to increase in 
western Maine may be constrained by extrinsic factors including higher 
populations of bobcat (Lynx rufus; a competitor) and fisher (Martes 
pennanti; a competitor and predator), and less suitable snow 
conditions.
    We agree that, as with western Maine, survey information is 
inadequate to confirm lynx reproduction in the Van Buren and 
Herseytown-Staceyville areas where we have designated critical habitat. 
Although we are not using reproduction as a proxy for presence of the 
PCE, we believe that our analysis in the proposed rule supporting lynx 
occurrence in the Van Buren and Herseytown-Staceyville areas (78 FR 
59456) also supports the likelihood of lynx reproduction in these 
areas, which is indicative of the value of the area to the conservation 
of the species. We also acknowledge the low probabilities of lynx 
occurrence predicted for both the Van Buren unit (which we have 
designated) and western Maine (which we have not) by the Hoving et al. 
(2004) model, and the higher probabilities predicted for both areas by 
the Hoving et al. (2005) model. However, we do not find either of these 
models to be definitive in predicting lynx occurrence because they are 
derived from lynx survey and forest conditions from 1994-1999, and 
habitat conditions are constantly changing. Even the more sensitive 
model (Hoving et al. 2005) does not predict lynx occurrence in several 
areas currently known to support lynx. We also note that the Hoving et 
al. (2005) model predicts small, isolated pockets of fragmented, lower 
quality habitat in western Maine, unlike the more contiguous habitat in 
northwestern Maine, the Gaspe region of Quebec, and northern New 
Brunswick.
    We agree with the reviewer that lynx occurred in western Maine 
historically and that lynx have found their way to areas of suitable 
landscape-scale hare density in western Maine (as well as New Hampshire 
and Vermont). However, while we recognize that lynx currently occur in 
western Maine, we believe this area supports lynx only in low numbers 
because of the patchy distribution of suitable habitat. Lynx occupancy 
there appears to be in small, isolated pockets of habitat, and lynx do 
not seem to be occupying the high-elevation spruce-fir stands in 
western Maine, (although these areas have been poorly surveyed). We 
question whether the ``habitat islands'' of conifer habitat at high 
elevations that may remain in the future will be large enough and close 
enough to each other to maintain lynx home ranges. Additionally, as 
snow quantity, quality, and duration will likely decrease due to 
climate change, bobcats will occur at lower elevations and could shift 
their home ranges to higher elevations in summer, further reducing the 
probability that a lynx population could persist in western Maine.
    For the reasons above, we do not agree that western Maine has the 
physical and biological features essential to lynx in adequate quantity 
or spatial arrangement to support a lynx population over time or that 
western Maine is essential to the conservation of the DPS. Therefore, 
we have not designated critical habitat for lynx in western Maine.
    (4) Comment: One peer reviewer felt the Service used reasonable 
methods in developing the proposed critical habitat designation and 
that our approach was consistent with conservation biology theory 
addressing the dynamics of small populations supported by patchy and 
temporal habitats. The reviewer felt that all the information necessary 
to understand how we used the available data to inform our designation 
were contained in the proposed rule, but that it remained difficult to 
understand how all the information fit together in a larger way to 
define the distribution of the PCE and derive the proposal for critical 
habitat. The reviewer suggested that a challenge remains to explain the 
process more clearly to the public.
    Our Response: We agree that it is a challenge to clearly explain 
the unique and complex relationships between habitat characteristics 
and lynx and how they influence our efforts to designate critical 
habitat. Our goal is to distinguish between areas that contain the 
physical and biological features (PBFs) essential to the conservation 
of the DPS in adequate quantity and spatial arrangement from other 
areas that may appear to contain some or all of the PBFs and in which 
lynx may occur occasionally but which are incapable of supporting lynx 
populations over time. In this rule, we explain why evidence of a 
landscape's ability to provide for the conservation of lynx over time 
is a valid and necessary biological consideration (though not the only 
criterion we evaluate) and why we believe it is absolutely imperative 
to rely on verified data and not anecdotal information when assessing 
the historic record of lynx occurrence and distribution (also see our 
response to comment (23), below). We also try to explain the 
limitations in our ability to accurately map lynx and hare habitats 
across the range of the DPS and to establish range-wide criteria for 
minimum hare densities; snow depth, quality, and duration; and other 
habitat variables, and how these limitations prevent a reasonable and 
accurate range-wide mapping of the individual PBFs essential to 
conservation of the DPS. Finally, we try to better explain how

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designating areas that appear to have some or all of the PBFs in some 
measure would likely result in the designation of large areas that have 
never supported lynx other than occasional transient/dispersing 
individuals and that are very unlikely to ever support lynx populations 
regardless of designation and management regime.
    (5) Comment: One peer reviewer commented that, although our methods 
for determining lynx habitat requirements and the distribution of 
habitats containing the PCE were reasonably well explained, we did not 
provide sufficient detail regarding how we used available and limited 
information including geographical information system (GIS) coverages 
of forest and habitat types, snow depth, and topographic information. 
Other commenters also requested clarification regarding how we used 
snowfall and topographic considerations when delineating proposed 
critical habitat.
    Our Response: To a great extent, the Service relied on lynx habitat 
data and information compiled by our partner Federal and State 
agencies, most of which mapped lynx habitats on their management units 
in accordance with information developed by the Interagency Lynx 
Biology Team and articulated in the Lynx Conservation Assessment and 
Strategy (LCAS; Ruediger et al. 2000, entire). This information 
generally consisted of maps depicting cool, moist boreal or subalpine 
forests that support snowshoe hares and receive deep, powdery and 
persistent snow across landscapes large enough to support multiple lynx 
home ranges. We overlaid these areas with the geographic area occupied 
by lynx populations at the time of listing based on verified occurrence 
data. Although snow depth is thought to influence lynx distribution, 
other factors including snow consistency and persistence are also 
likely important, and we do not have enough information to support 
using thresholds for annual snowfall to delineate lynx critical 
habitat. Therefore, although snow conditions were a consideration, we 
did not establish or alter critical habitat boundaries based on 
specific thresholds for average annual snowfall, duration, or 
consistency. In critical habitat units 3 (Northern Rockies) and 4 
(North Cascades), the majority of lynx records and the boreal forest 
types containing the features essential to lynx generally are found 
above 4,000 feet (1,219 meters). Therefore we limited critical habitat 
in these units to areas above this elevation, except in unit 3: (a) 
East of the Continental Divide, where that elevation encompasses 
substantial areas of grasslands that do not contain the PBFs essential 
to lynx, and (b) in areas where site-specific information indicated 
that the PBFs occurred and other criteria were met at lower elevations.
    (6) Comment: One peer reviewer requested that the Service better 
articulate why denning and matrix habitats, which are not considered 
limiting for lynx within the DPS at large spatial scales, are 
considered essential and, therefore, defined as components of the PCE.
    Our Response: We agree that denning and matrix habitats are not 
limiting to lynx within the DPS; however, a feature or habitat variable 
need not be limiting to be considered an essential component of a 
species' habitat. Both denning and matrix habitats are essential 
components of landscapes capable of supporting lynx populations in the 
DPS because without them lynx could not persist in those landscapes. 
Both habitats fulfill essential lynx natural-history requirements by 
providing ``space for individual and population growth and for normal 
behavior; sites for breeding, reproduction, and rearing (or 
development) of offspring; and habitats that are protected from 
disturbance or are representative of the historic, geographical, and 
ecological distribution . . .'' of lynx in the contiguous United 
States.
    (7) Comment: One peer reviewer felt the Service should better 
clarify the use of jurisdictional (e.g., National Forest) boundaries 
and highways to delineate critical habitat given that such 
anthropogenic features seldom fall along natural vegetation (habitat) 
boundaries.
    Our Response: As described in our response to comment (6) above, we 
relied on habitat mapping and information from our partner agencies 
within the range of the DPS. In some cases, administrative boundaries 
were used because they encompassed habitats of similar type and extent 
within an area found to meet the criteria we developed for critical 
habitat. Roads and other human-made structures were used as boundaries 
for critical habitat where they clearly delineated areas with confirmed 
records of lynx and the presence of the PBFs essential to lynx.
    After the lynx DPS was listed as threatened under the Act in 2000, 
Federal land managers mapped potential lynx habitats on their units 
based on criteria and recommendations developed by the Interagency Lynx 
Biology Team and articulated in the LCAS (Ruediger et al. 2000, 
entire). As vegetation mapping and habitat modeling have improved, some 
managers have initiated re-mapping of lynx habitat to better reflect 
actual on-the-ground habitat conditions.
    In this rule, we have used the information from these habitat 
mapping refinements/improvements to adjust critical habitat boundaries 
to better reflect actual habitat conditions. This change has resulted 
in reduced reliance on administrative or other anthropogenic boundaries 
where better methods are available (revised mapping has not occurred on 
all land units within the range of the DPS). In particular, we used 
improved lynx habitat mapping to adjust critical habitat boundaries in 
the Idaho Panhandle National Forest and the Flathead National Forest in 
Unit 3 (U.S. Forest Service 2008a, entire; 2013a, entire); and in the 
Custer and Gallatin National Forests, Grand Teton National Park, and 
Bureau of Land Management (BLM) lands in the Pinedale and Kemmerer 
districts in Unit 5 (U.S. Fish and Wildlife Service 2013a, entire; 
2013b, entire; U.S. Forest Service 2013b, entire). In both these units, 
some areas previously designated or proposed for designation as 
critical habitat were removed and other areas not previously designated 
or proposed were added to lynx critical habitat. The adjusted critical 
habitat boundaries now follow habitat features and not administrative 
or other anthropogenic features in all places where we had data that 
allowed such refinements.
    (8) Comment: One peer reviewer felt that the benefits of critical 
habitat were presented generally for listed species but not 
specifically stated for lynx. The reviewer requested clarity regarding 
(a) the benefit of critical habitat to lynx, especially in the context 
of consultations under section 7 of the Act; (b) the difference between 
designated critical habitat and lynx habitat mapped in accordance with 
guidance in the LCAS, and whether (and if so, why) both are needed to 
recover lynx in the DPS; and (c) why critical habitat and ``mapped'' 
lynx habitat commonly depict different distributions of lynx habitat.
    Our Response: Compliance with section 4(a)(3) of the Act requires 
that critical habitat be designated for listed species, if prudent and 
determinable. Although listed species and the habitats upon which they 
depend are protected under provisions of the Act whether critical 
habitat is designated or not, a critical habitat designation identifies 
lands on which are found the physical and biological features essential 
to the conservation of the species that may require special management 
considerations. The identification of these essential areas is 
important to

[[Page 54787]]

guide management and provide for the recovery of the species. The 
general benefits of critical habitat for listed species also apply to 
lynx. In the Consideration of Impacts under Section 4(b)(2) of the Act 
section below we define these benefits for lynx.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. Federal 
agencies must consult with the Service on discretionary actions that 
may affect a listed species, and in addition, analyze the effects of 
such actions on critical habitat. The analysis of the effects on 
critical habitat is a separate and different analysis from that of the 
effects to the species, and may provide greater regulatory benefits to 
the recovery of a species than listing alone. In terms of section 7 
consultation, for activities with a Federal nexus in areas where lynx 
``may occur,'' but which are not designated as critical habitat, the 
Service's evaluation focuses on the jeopardy standard--i.e., whether a 
project is likely to jeopardize the continued existence of the DPS. In 
designated areas, we must additionally evaluate whether a project is 
likely to result in destruction or adverse modification of critical 
habitat.
    The difference between critical habitat and ``mapped'' lynx habitat 
is that critical habitat has been found to contain the physical and 
biological features essential to lynx in adequate quantity and spatial 
arrangement on the landscape to support a lynx population or 
subpopulation over time and, therefore, is essential to the 
conservation and recovery of the DPS. ``Mapped'' (or potential) lynx 
habitat is a tool for determining habitats in which lynx ``may be 
present'' (and therefore which may require consultation under section 
7), regardless of whether the area is occupied by lynx or has the 
physical and biological features essential to its conservation. The 
``may be present'' standard for consultation under section 7 is a lower 
bar than that for critical habitat designation, but it is required to 
address the possibility of adverse effects or take of lynx in areas not 
occupied by lynx populations but in which individual lynx may 
occasionally or intermittently occur as transients or dispersers.
    Many areas of ``mapped'' or potential lynx habitat have no verified 
records of lynx occurrence, no evidence that they ever supported lynx 
over time, and are not essential to lynx conservation and recovery. The 
Service consults on Federal projects in these areas out of recognition 
that lynx are capable of dispersing long distances from areas that 
support populations and during such movements have historically 
occurred intermittently and temporarily in suboptimal, marginal, and 
unsuitable habitats that do not contain the physical and biological 
features essential to lynx and cannot, therefore, support lynx over 
time. Critical habitat is a subset of ``mapped'' habitat that we have 
determined is essential to conservation and recovery of the DPS. The 
remainder of mapped habitat may have some or all of the features lynx 
need, but not in adequate quantity and/or spatial arrangement to 
support lynx over time--therefore such areas are not essential to 
conservation and recovery of the lynx DPS.
    (9) Comment: One peer reviewer found the structure of the proposed 
rule confusing because it proposed accomplishing two unrelated 
objectives: (a) Establishing that lynx will be protected where they 
occur and not based on State boundaries, and (b) revising the critical 
habitat designation for lynx in the contiguous United States.
    Our Response: We have provided clarifying language in the SUMMARY 
and Executive Summary sections above.
    (10) Comment: One peer reviewer noted that the term ``persistent 
population'' is difficult to define in the context of critical habitat 
and questioned whether the lynx population in Minnesota can be 
considered truly persistent given that lynx appeared to be absent from 
the State from about 1973 to 2003. The reviewer noted that the lynx 
population introduced to Colorado from 1999 through 2006 has persisted 
until the present, though its long-term persistence remains truly 
unknown. The reviewer suggested that the long-term persistence of lynx 
in Minnesota is similarly unknown, and that ``. . .the distinction of 
population persistence between Minnesota and Colorado as articulated in 
the proposed rule seems arbitrary, especially since there are probably 
many more lynx in Colorado than Minnesota.''
    Our Response: We agree that defining ``persistent'' lynx 
populations in the contiguous United States is a challenge due to the 
imperfect historical record of lynx occurrence and the absence of 
reliable long-term monitoring data for most places. Another 
contributing factor is that most lynx habitat in the range of the DPS 
is suboptimal, patchy, and supports lower hare densities compared to 
the core of the lynx range in Canada and Alaska, thus creating the 
likelihood that there may be times, likely related to inadequate 
densities of snowshoe hares, when lynx may be absent or at very low 
numbers even in the best lynx habitat within the range of the DPS with 
the most compelling evidence of persistent lynx populations.
    When we listed the lynx DPS as threatened in 2000, we noted that 
there were 76 verified records of lynx in Minnesota and 17 in Colorado 
as of 1999 (McKelvey et al. 1999a; 65 FR 16056, 16059). We noted at 
that time that (a) reproduction and home range maintenance documented 
in Minnesota in 1972 (Mech 1973, p. 152; 1980, p. 261), (b) consistent 
trapping records over 40 years (including during cyclic lows in lynx 
populations) in Minnesota and immediately adjacent habitat in Ontario 
that was similar and contiguous across the United States-Canada border, 
and (c) three verified lynx records in Minnesota in 1992-93, all 
provided some evidence of the existence of a resident population in 
Minnesota. However, we determined that the available data were 
insufficient to verify whether a resident lynx population existed in 
Minnesota historically or at the time of listing (65 FR 16056). In that 
rule, we also noted that ``The montane and subalpine forest ecosystems 
in Colorado are naturally highly fragmented (Thompson 1994), which we 
believe limits the size of lynx populations,'' and that the last 
verified lynx record was from 1974 (no verified records from 1975 to 
1999) despite large-scale snow-tracking efforts (Carney 1993, 
unpublished data, as cited by McKelvey et al. 2000a, p. 231). We 
concluded at that time that there were ``few if any'' native lynx in 
Colorado at the time of listing (65 FR 16059).
    In our 2003 remanded determination of status for the lynx DPS (68 
FR 40076), we noted that, in addition to the evidence (above) 
suggesting the potential existence of a resident lynx population in 
Minnesota historically and at the time of listing, there were 62 
additional verified lynx records from 2000 to 2003, including 6 that 
provided evidence of reproduction (68 FR 40088). In that rule, we 
concluded that, although Minnesota may not always support lynx, ``. . . 
northeastern Minnesota often supports a resident lynx population 
because there is ample boreal forest habitat directly connected with 
that in Ontario, there is a high number of historic lynx records, 
evidence of lynx reproduction and cyclically abundant snowshoe hares'' 
(68 FR 40088). In the same rule, we reemphasized the lack of compelling 
evidence that Colorado ever naturally supported a persistent, resident 
lynx population, stating ``. . .our original conclusion that the 
Southern Rocky Mountains supported an isolated resident lynx population 
may not be correct'' (68 FR 40081). We also

[[Page 54788]]

suggested that the few verified historic records in Colorado/the 
Southern Rockies may represent dispersing individual lynx that arrived 
during extreme highs in lynx populations to the north (68 FR 40081, 
40091). We concluded that, if there ever had been a resident population 
in Colorado, a viable resident population no longer existed there and 
the loss of a population (if one ever existed) would most likely have 
been the result of natural processes because the distance and isolation 
of Colorado and the Southern Rockies from source populations severely 
reduced, if not entirely precluded the immigration that was likely 
necessary for a lynx population of this region to sustain itself (68 FR 
40091).
    We do not find support for the statement that lynx were absent from 
Minnesota from 1973 through 2003. Mech (1980, entire) reported trapping 
37 lynx between 1972 and 1978, including one female that showed 
evidence of reproduction and nursing, and he also examined the 
carcasses of 32 other lynx trapped in Minnesota during that time. The 
continued occurrence of lynx in Minnesota in the late 1970s and early 
1980s was supported by State records of 161 lynx harvested in the 
period 1977-1983 (McKelvey et al. 2000a, p. 223). There were only three 
verified lynx records in Minnesota from 1984 to 1999, but lynx harvest 
was closed in 1984 and no surveys or research to document lynx 
presence, absence, or population trend occurred during this time period 
(65 FR 16056).
    In contrast, there are no verified records of lynx in Colorado 
between 1937 and 1968; single records in 1969 and 1972; and two records 
in 1974 (McKelvey et al. 2000a, p. 231), despite the unprecedented 
``explosions'' (irruptions) of lynx into the northern contiguous United 
States in the early 1960s and again in the early 1970s (McKelvey et al. 
2000a, pp. 219, 242). Trapping of lynx was permitted in Colorado until 
1970 and would likely have reflected the presence of lynx in the State 
if they had been there. After 1974, and despite large-scale snow-
tracking efforts (Carney 1993, unpublished data, as cited by McKelvey 
et al. 2000a, p. 231), there are no verified lynx records in Colorado 
until 1999 (McKelvey et al. 2000a, p. 231), when the State initiated 
its lynx translocation effort. The 2000 LCAS concurred with McKelvey et 
al. (2000a, p. 231) that no lynx specimens exist for Colorado from 1974 
to 1999 (Ruediger et al. 2000, p. 4-14), but suggested that other 
records indicate a small number of lynx may have been present during 
that time (Ruediger et al. 2000, p. 4-14--4-15). However, the reports 
upon which Ruediger et al. based their assessment (Halfpenny and Miller 
1981; Halfpenny et al. 1982; Thompson and Halfpenny 1989, 1991; Andrews 
1992; Carney 1993) were also available to and considered by McKelvey et 
al. (2000a, pp. 230-231), and the reported lynx occurrences were found 
to be unverified and, therefore, anecdotal. We consider McKelvey et al. 
(2000a, entire) the best available information regarding the historical 
distribution of lynx based on verified occurrence data. We also concur 
with McKelvey et al. (2008, entire) regarding the imperative need to 
rely only on verified data when evaluating historical and current 
ranges of rare and elusive species like lynx. In that peer-reviewed 
paper, the authors provide case studies of the kinds of errors and 
conservation consequences that can occur if anecdotal (unverified) data 
are relied upon for such species. In fact, they provide as an example 
the potential errors that could occur if bobcats were mistakenly 
identified anecdotally as lynx only 1 percent of the time (McKelvey et 
al. 2008, pp. 553-554). Therefore, based on our assessment of the 
information above, we conclude that there is no reliable evidence that 
lynx were able to establish and maintain populations in Colorado or 
elsewhere in the Southern Rockies for much of the past century.
    The best available information suggests that northeastern Minnesota 
has historically supported and currently supports a naturally resident 
and persistent lynx population, indicating that this area contains the 
physical and biological features essential to lynx in adequate quantity 
and spatial arrangement to support a lynx population over time. 
Therefore, it meets our definition of critical habitat. Conversely, 
verified evidence suggests that Colorado (as well as southern Wyoming, 
northeastern Utah, and northern New Mexico) did not historically 
support a naturally resident lynx population over time. Although this 
does not prove the absence (or disprove the potential presence) of the 
PCE from all parts of the Southern Rockies, it is one piece of evidence 
which suggests that these areas may not contain the physical and 
biological features essential to the conservation of lynx in adequate 
quantity and spatial arrangement to support a lynx population over 
time. As explained in more detail below, as well as in our response to 
comments (11) and (23), and in the ``Application of the Criteria to the 
Southern Rocky Mountains and Certain National Forests in Idaho and 
Montana'' section of this final rule, we have determined that the 
historic record of lynx occurrence and the available information on the 
quantity and distribution of lynx habitat and hare densities all 
combine to suggest that the Southern Rockies do not contain the PCE. 
Therefore, these areas do not meet our definition of critical habitat.
    We agree with the reviewer that the future persistence of lynx 
populations in Minnesota and Colorado is uncertain. However, the 
extensive boreal forest habitat in northeastern Minnesota, which is 
directly connected to similar and very extensive habitat and a 
persistent lynx population in immediately adjacent Ontario, supports 
our conclusion that future lynx persistence is more likely in Minnesota 
than in the patchy, marginal, and disjunct habitats in Colorado, which 
are isolated from other lynx habitats by more than 90 mi (150 km) of 
unsuitable lower-elevation habitats (McKelvey et al. 2000a, p. 230). We 
acknowledge that the Colorado population has persisted from its 1999-
2006 introduction until the present. We believe that this short-term 
persistence is not surprising given that the translocation of a large 
number of healthy lynx from Alaska and Canada over several consecutive 
years, which were held in captivity and brought into prime health 
through supplemental feeding prior to their release into Colorado, is 
much different than the likely intermittent historical arrival of a 
much smaller number of potentially less-fit lynx in the Southern 
Rockies that were likely dispersing away from food shortages associated 
with cyclic hare population crashes to the north. We also concur with 
the conclusions of Colorado Parks and Wildlife (CPW), which 
acknowledged that the future persistence of the introduced population 
is uncertain and hinges on the assumption that patterns of annual 
reproduction and survival observed as of 2010 repeat themselves during 
the next 20 or more years (Shenk 2008, p. 16; Shenk 2010, pp. 2, 5-6, 
11).
    Despite the persistence of the introduced population thus far, we 
anticipate, based on the historical record and the patchiness and 
marginal quality of lynx habitat and hare densities, that Colorado and 
the Southern Rockies, in the absence of additional translocations of 
lynx from elsewhere, are unlikely to support lynx over the long term. 
The area's distance from source populations of lynx reduces the 
likelihood that this area will receive the demographic support, via 
dispersal and immigration from other populations, thought to be 
important to

[[Page 54789]]

the maintenance of lynx populations in the DPS. Further, climate 
projections suggest lynx habitat will decline here as elsewhere 
(Gonzalez et al. 2007, pp. 4, 8), making habitats in these areas even 
more marginal, patchy, and isolated and, therefore, even less capable 
of supporting lynx populations over time.
    Regardless, unlike the long-term presence of naturally resident and 
persistent populations in northeastern Minnesota and elsewhere within 
the range of the DPS (despite times when lynx numbers were likely very 
low in those places), the current presence of the introduced population 
in the Southern Rockies does not connote that habitats there contain 
the physical and biological features essential to lynx in quantities 
and spatial arrangements adequate to support lynx populations over 
time. It is possible that similar introductions in other places with 
few historical records and which also have likely not supported 
naturally resident lynx populations (e.g., northern Vermont, northern 
Michigan, northern Wisconsin, western and central Minnesota, 
southwestern Montana, central and southern Idaho, southern Washington 
and Oregon) would achieve results similar to those observed in 
Colorado. However, that finding also would not confirm the presence in 
those places of the essential physical and biological features in 
adequate quantity and spatial arrangement to support lynx populations 
over time. We believe it would be inappropriate and speculative to 
designate critical habitat in such areas that, based on the historical 
record of verified occurrence and assessment of the available 
information on habitat quantity and spatial configuration, appear 
historically and currently incapable of supporting viable lynx 
populations over time. We find no evidence that such areas can 
contribute meaningfully (let alone be essential) to the conservation 
and recovery of the lynx DPS. Therefore, we have not designated 
critical habitat in Colorado or the Southern Rockies despite the 
benchmarks achieved by the introduction program there.
    (11) Comment: One peer reviewer noted that there is scientific 
evidence that lynx populations in the contiguous United States are 
connected with those in Canada but that it is unclear (a) if the 
persistence of southern populations depends on their own productivity 
or if augmentation from Canada is truly needed, and (b) what role 
connectivity among southern populations plays in maintaining the 
overall metapopulation structure. The reviewer felt the proposed rule 
implied a higher degree of certainty regarding population connectivity 
than may be the case and contended that we stated, despite the absence 
of scientific evidence, that lynx use habitat ``stepping stones'' to 
connect Montana to the Greater Yellowstone Area (GYA). The reviewer 
suggested that lynx in the GYA may be maintained by pulses of lynx from 
populations in Canada rather than movements of animals from Montana 
populations, and that recognizing this uncertainty is important as it 
relates to lynx in Colorado. The reviewer felt the proposed rule 
downplayed the persistence of the Colorado population because it lacked 
habitat ``stepping stones'' from northern populations, and that the 
absence of habitat ``stepping stones'' did not prevent several lynx 
from the population introduced into Colorado from dispersing 
(northward) to the GYA.
    Our Response: The best available information indicates that lynx 
populations in the DPS rely on augmentation from populations in Canada. 
Based on genetic analyses, Schwartz et al. (2002, entire) concluded 
that the persistence of lynx populations in the contiguous United 
States depends on dispersal from larger populations (also see response 
to comment (23), below). As we stated in the proposed rule (78 FR 
59434), connectivity and interchange with lynx populations in Canada is 
thought to be essential to the maintenance and persistence of lynx 
populations in the contiguous United States (McKelvey et al. 2000b, p. 
33; U.S. Fish and Wildlife Service 2005, p. 2; Interagency Lynx Biology 
Team 2013, pp. 34, 42, 47, 54, 60, 65; Squires et al. 2013, p. 187). 
Additionally, we are aware of no persistent resident lynx populations 
in the DPS that are not directly (Maine, Minnesota, northern Montana 
and northern Idaho, and northern Washington) or indirectly (GYA) 
connected to lynx populations in Canada via suitable or potentially 
suitable boreal or subalpine forest habitat.
    We used the term ``habitat `stepping stones' '' in the Background 
section of the proposed rule (78 FR 59434) to describe the relative 
connectivity of populations in the Rockies to larger populations in 
Canada. We did not state that we are certain lynx use these habitat 
patches, but rather that patches of habitat potentially conducive to 
dispersal exist between the GYA and lynx populations to the north and, 
as noted previously by others (e.g., McKelvey et al. 2000a, p. 230; 
Interagency Lynx biology Team 2013, p. 50), that this is not the case 
in Colorado, where potential lynx habitat is separate and isolated from 
other potential lynx habitats and, thus, from northern lynx populations 
by more than 90 miles (150 km) of unsuitable lower-elevation desert and 
sagebrush habitats. We do not know to what extent this isolation 
contributed to the historical inability of lynx to naturally establish 
and maintain viable resident breeding populations in Colorado and 
elsewhere in the Southern Rockies, but we believe that it is reasonable 
to conclude that it is a factor. We also did not state or imply that 
the GYA lynx population is maintained by movements of animals from 
Montana populations; rather, we meant that the habitats that support 
lynx in northwest Montana are part of a potential dispersal corridor 
that may provide connectivity between lynx in the GYA and populations 
in Canada (78 FR 59434). We agree that the extent to which lynx use any 
potential dispersal corridors is uncertain.
    Finally, our intent is not to downplay the achievements of the 
introduction effort in Colorado, but rather to explain what we think 
the presence of the introduced lynx population does and does not tell 
us about whether the habitat contains the PCE and is essential to the 
conservation of the DPS (also see our response to comment (10), above). 
We acknowledged in the proposed rule that lynx are highly mobile and 
regularly move long distances (78 FR 59435) and that some lynx from the 
population introduced into Colorado dispersed widely, including north 
across the expanse of unsuitable habitat that separates potential lynx 
habitat in the Southern Rockies from lynx habitats to the north (78 FR 
59434, 59448-59449). Clearly lynx from the north also occasionally 
reached the Southern Rockies historically, as evidenced by the few 
verified records for Colorado and southern Wyoming. However, we find 
that the best available information suggests that Colorado and the 
Southern Rockies do not contain the physical and biological features 
essential to lynx in adequate quantity and spatial arrangement to 
support lynx populations over time, and we have not designated critical 
habitat in these areas.
    (12) Comment: One peer reviewer felt that our use of the term 
``transitional'' when describing boreal forests in the range of the DPS 
implied that lynx habitat used by southern populations is almost 
``ephemeral,'' and that our characterization that lynx habitat in the 
contiguous United States is transitional lacks support and is 
misleading.
    Our Response: We use the term ``transitional'' (78 FR 59433, 59434, 
59438) to describe the southern margin of the boreal forest that 
extends into the northern contiguous United States,

[[Page 54790]]

where it ``transitions'' to other more temperate forest types, which is 
consistent with its use in Mech (1980, p. 271), Agee (2000, pp. 40, 41, 
44), the 2000 listing rule for the lynx DPS (65 FR 16052, 16056, 16081-
16082), the 2003 clarification of findings (68 FR 40077), the 2007 
``Significant Portion of the Range'' clarification (72 FR 1188), the 
2009 revised critical habitat rule (74 FR 8616, 8635), the 2009 12-
month finding on a petition to include New Mexico in the lynx DPS (74 
FR 66939), and the revised Lynx Conservation Assessment and Strategy 
(LCAS; Interagency Lynx Biology Team 2013, pp. 39, 44, 52). It is 
important that readers understand that both lynx and snowshoe hares are 
true boreal forest species, and that most boreal forest habitats in the 
northern contiguous United States become patchy and marginal for both 
species as these forests transition to other forest types. The 
transitional nature of the boreal forest at its southern extent is 
believed (along with competition from other hare predators) to limit 
the numbers of both hares and lynx, preventing either from regularly 
achieving densities in the contiguous United States comparable to those 
regularly achieved in the classic boreal forests at the centers of 
their ranges in north-central Canada.
    Although some mature multistory forest stands may provide stable 
lynx and hare habitat over time (Interagency Lynx Biology Team 2013, p. 
29), in many parts of the DPS range lynx and hares fare best in areas 
with large proportions of young regenerating early-successional stands 
that exist temporarily following disturbance (Aubry et al. 2000, p. 
374; Interagency Lynx Biology Team 2013, pp. 28-29). In the absence of 
additional disturbance, many of these stands will, through natural 
forest succession, mature into stands with less dense vegetative cover 
at ground or snow level, providing less food and cover for hares and 
reducing the quality of foraging habitat for lynx. For example, much of 
the current higher quality hare and lynx foraging habitat in northern 
Maine occurs in 15- to 35-year-old dense, regenerating spruce-fir 
stands that were previously clearcut (78 FR 59456). As these stands 
continue to mature, and with timber harvest practices and regulations 
that have shifted away from clear-cut harvest and use of herbicides to 
promote conifer regeneration, hare and lynx habitats are expected to 
decline broadly across the area, with the lynx population projected to 
decline by 55 to 65 percent in the next 20 years (Simons 2009, p. 217). 
In a sense, then, some lynx habitats truly are ``temporary'' 
(Interagency Lynx Biology Team 2013, p. 29) and ephemeral.
    (13) Comment: One peer reviewer felt we inappropriately cited a 
non-peer-reviewed publication (Berg and Inman 2010) to support the 
statement that ``. . . important foraging habitat for lynx is often 
more limited and fragmented in the contiguous United States than it is 
in the northern boreal forests of Canada and Alaska'' (78 FR 59434).
    Our Response: We believe that our use of this citation is 
appropriate given the authors' histories of research and monitoring 
with regard to lynx, snowshoe hares, and other carnivores and their 
respective habitats. We also cited in the proposed rule (78 FR 59433) 
many other published references describing the marked differences 
between snowshoe hare (i.e., lynx foraging) habitats in the contiguous 
United States and those in the boreal forest of Canada and Alaska: 
Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 
1990, p. 849; Koehler and Aubry 1994, p. 84; Aubry et al. 2000, pp. 
373-375, 382, 394; Interagency Lynx Biology Team 2013, p. 77).
    (14) Comment: One peer reviewer felt that seasonal and geographic 
differences in lynx habitat were poorly described in the proposed rule 
and that clear articulation of how lynx habitat differs across the 
southern population would be helpful. As an example, the reviewer noted 
that the habitat used in winter by lynx in the Northern Rockies (mature 
multistoried forests with dense horizontal cover at ground/snow level; 
Squires et al. 2010, pp. 1648, 1653, 1656) is almost opposite the 
habitat used by lynx in Maine year-round (young, regenerating spruce-
fir; Vashon et al. 2012, pp. 15-16). The reviewer felt that (a) readers 
should understand that management actions in Maine may have actually 
created lynx habitat, (b) it is unclear whether Maine could support 
lynx without extensive forest management with herbicide treatment, and 
(c) the role that herbicide treatment of forests in Maine played to 
create/promote the conifer infill that lynx depend on should be 
discussed.
    Our Response: Although our introductory discussion of lynx habitat 
in the Background section of the proposed rule (78 FR 59434-59435) was 
general in nature, we provided much more detail on geographic and 
seasonal differences in lynx habitat in the Critical Habitat, Physical 
or Biological Features section, where we described differences in 
boreal forests and lynx habitat characteristics for each of the regions 
within the range of the DPS (78 FR 59437-59442). In that section, we 
specifically noted differences in lynx habitat use in winter versus 
summer (78 FR 59439). Similarly, we discussed in some detail in the 
Special Management Considerations or Protection section (78 FR 59445) 
and the Proposed Revised Critical Habitat Designation section (78 FR 
59456) the influence of industrial timber management and large-scale 
clearcutting on lynx habitat in Maine. However, we did not discuss the 
role of herbicides there, so we have added that information to the 
Critical Habitat, Boreal Forest Landscapes section of this final rule, 
and in our response to comment (19), below, where we provide additional 
detail regarding historic, recent, and projected future densities of 
lynx in Maine.
    (15) Comment: One peer reviewer felt that den habitat in the 
Northern Rockies was poorly defined and that the proposed rule did not 
clearly describe how lynx respond to environmental characteristics at 
dens at various spatial scales.
    Our Response: Although our discussion of denning habitat in the 
Background section (78 FR 59435) was general in nature, we included a 
more detailed and region-specific discussion in the Critical Habitat, 
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring section (78 FR 59441-59442), where we summarized the 
available pertinent information regarding lynx den-site selection for 
each region in the range of the DPS. However, we did not go into detail 
concerning lynx den selection in response to environmental cues at 
various spatial scales because we did not think it is germane to the 
discussion of critical habitat given that denning habitat is not 
thought to be a limiting factor for lynx anywhere within the range of 
the DPS.
    (16) Comment: One peer reviewer suggested that the designation of 
critical habitat apparently does little to alter Federal 
responsibilities for the species' management but that it is unclear how 
designation may affect lynx management and conservation on State and 
Tribal lands. The reviewer felt readers need to fully understand what 
the inclusion in or exclusion from a critical habitat designation means 
to lynx conservation and management on all lands, but especially for 
State and Tribal lands in Montana that were considered for exclusion in 
the proposed rule and which we have excluded from designation in this 
final rule. The reviewer also felt that our rationale and justification 
for excluding Tribal lands and lands managed in accordance with the 
Montana Department of Natural Resources and

[[Page 54791]]

Conservation (MDNRC) Forested State Trust Lands Habitat Conservation 
Plan (HCP) should be better articulated and fully explained in the 
final rule.
    Our Response: We described the general and specific regulatory 
benefits of critical habitat to lynx conservation in our response to 
comment (8), above, and in the Consideration of Impacts under Section 
4(b)(2) of the Act section, below. Because a Federal action or 
``nexus'' exists for all activities that may affect lynx on Federally 
managed lands, the regulatory benefits of consultation in accordance 
with section 7 of the Act are more likely to occur. Federal agencies 
must consult with the Service to ensure that no activity they carry 
out, permit, authorize, or fund will result in the destruction or 
adverse modification of designated critical habitat.
    Activities on State, Tribal, or private lands that involve a 
Federal nexus must similarly undergo section 7 consultation, though it 
is the Federal ``action agency'' that consults with the Service. 
However, there is no consultation requirement for activities on State, 
Tribal, or private lands for which a Federal nexus does not exist. With 
regard to lynx, the activities most likely to impact the species or its 
habitats involve timber harvest, fire/fuels management, or other 
vegetation or silvicultural treatments--activities that most often lack 
a Federal nexus on State, Tribal, or private lands. When evaluating 
whether to designate critical habitat in such places, we assess the 
benefits of inclusion versus the benefits of exclusion, and we only 
exclude areas for which the benefits of exclusion outweigh those of 
inclusion. In the case of Tribal lands and State or private lands with 
finalized lynx management plans or habitat conservation plans (HCPs), 
we have determined that Tribal management, and State and private 
management in accordance with finalized plans or HCPs, is more 
beneficial to lynx than a critical habitat designation would be. One 
component of this analysis is the recognition that many activities that 
could affect lynx on these lands lack a Federal nexus, thereby 
precluding opportunity to achieve conservation via section 7 
consultation resulting from designation. Therefore, management in 
accordance with Tribal forest and/or wildlife management plans and HCPs 
or other formal management plans on State or private lands is more 
likely to result in conservation of the lynx and its habitats than 
would be achieved via designation as critical habitat.
    With specific regard to lands managed in accordance with the MDNRC 
HCP (as well as those for other exclusions), we have in this final rule 
presented our detailed evaluation of the benefits of including these 
lands compared to the benefits of excluding them (see Consideration of 
Impacts under Section 4(b)(2) of the Act, below). We have determined 
that the benefits of excluding MDNRC lands outweigh the benefits of 
including them in the lynx critical habitat designation and that doing 
so will not result in the extinction of the lynx DPS.
    With specific regard to Tribal lands, in accordance with 
Secretarial Order 3206, ``American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act'' (June 5, 
1997); 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 relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2), we 
believe that fish, wildlife, and other natural resources on Tribal 
lands are better managed under Tribal authorities, policies, and 
programs than through Federal regulation wherever possible and 
practicable. Such designation is often viewed by Tribes as an unwanted 
intrusion into Tribal self-governance, thus compromising the 
government-to-government relationship essential to achieving our mutual 
goals of managing for healthy ecosystems upon which the viability of 
threatened and endangered species populations depend. We have added 
details on Tribal management goals and plans, land status, and lynx 
conservation efforts to our consideration of and rationale for these 
Tribal lands exclusions. See Exclusions Under Section 4(b)(2) of the 
Act, below, for a detailed discussion of why these lands have been 
excluded.
    (17) Comment: One peer reviewer suggested there is limited 
anecdotal evidence that lynx in the Greater Yellowstone Area (GYA) are 
declining, based on the failure to trap any ``native'' lynx there in 
2005-2006 (the only lynx encountered were thought to have been 
associated with the introduced population in Colorado).
    Our Response: We do not have evidence of a decline in the GYA lynx 
population. Although the GYA has a long history of lynx presence and 
recent evidence of reproduction (Squires and Laurion 2000, entire; 
Squires et al. 2001, entire; Murphy et al. 2006, entire), there are 
relatively few verified records of lynx from Yellowstone National Park 
and surrounding areas (65 FR 16058, 68 FR 40090). Additionally, lynx 
habitat in the GYA is naturally marginal (patchier and composed in many 
places of drier forest types), less capable of supporting snowshoe 
hares (Hodges et al. 2009, entire), and farther from source populations 
than most other parts of the DPS range (68 FR 40090). Given the 
naturally marginal habitat in this largely protected area, we believe 
it is unlikely that the GYA ever supported more than a handful of lynx 
home ranges in any given year. We find no evidence that the GYA once 
supported a larger or more robust lynx population than the small one 
suggested by verified historic and recent records and survey efforts.
    (18) Comment: One peer reviewer suggested that lynx habitat in the 
western United States has contracted significantly in the last decade 
from fire and insect outbreak, although these changes are fairly recent 
and thus not addressed in the scientific literature. The reviewer cited 
the almost complete die-off of Engelmann spruce (Pica engelmanii) from 
400,000 acres (161,874 hectares) of spruce-fir forests in the San Juan 
Mountains in Colorado because of spruce budworm infestation, and an 
increase in fire activity in the Northern Rockies since the mid-1980s 
at elevations that largely overlap lynx critical habitat.
    Our Response: Climate change has resulted in warmer and drier 
conditions that have increased the number and extent of wildfires in 
the western United States and in boreal forests in Canada, and 
projected climate changes suggest this trend will continue, with 
increases likely in the frequency of large, intense forest fires (IPCC 
2014a, p. 31; IPCC 2014b, p. 4; Joyce et al. 2014, p. 178; Mote et al. 
2014, p. 495). Climate change is also increasing the vulnerability of 
western forests to insect and tree-disease outbreaks; large-scale tree 
die-offs have already occurred and are likely to increase in the 
future, and the subalpine forests on which lynx in the western 
contiguous United States depend may be particularly at risk (Joyce et 
al. 2014, p. 177; Mote et al. 2014, pp. 495-496). However, the 
potential consequences of climate change for lynx populations and their 
habitats remain unquantified. Fire and insects have been important 
elements of these forests historically, helping to maintain the mosaic 
of forest successional stages thought to be important to lynx and 
snowshoe hares. We have no evidence that these factors (fires and 
insect outbreaks) have thus far altered lynx habitats to the extent 
that landscapes historically or recently capable of naturally 
supporting lynx populations can no longer do so, although climate 
projections suggest

[[Page 54792]]

such changes are possible in the future. If lynx habitat has indeed 
contracted, it may be a temporary effect, and as regeneration and 
regrowth of these areas progresses, they should return to lynx habitat 
so long as fire, insect outbreaks, and climate warming and drying have 
not permanently altered the vegetative capacity and climax forest 
potential of these sites.
    (19) Comment: One peer reviewer felt the proposed rule was unclear 
whether the projected reduction in lynx habitat in Maine was due 
primarily to a shift in timber harvest away from clearcutting to 
partial harvest, or if the herbicide use that had helped create 
conifer-dominated stands of value to lynx and hares has also been 
greatly curtailed. The reviewer also wondered if the decline would be a 
return to historical levels of lynx habitat in Maine prior to the 
extensive habitat fragmentation from earlier clearcutting and herbicide 
treatment and suggested we clarify this relationship in the final rule.
    Our Response: The current abundance of snowshoe hare habitat (and, 
therefore, lynx foraging habitat) in northern Maine was created by 
large-scale clear-cut timber harvest of about 55 percent of the 
forestlands in northern Maine in response to a 1973-1985 spruce budworm 
(Choristoneura fumiferana) outbreak (Simons 2009, pp. 64, 218). Some of 
these clearcuts were treated with herbicide to promote conifer 
regeneration by reducing competition from deciduous species (Scott 
2009, p. 7). From about 15 years to 35 years post-harvest, these 
regenerating stands provide excellent cover and forage for snowshoe 
hares (Simons 2009, pp. 217-218), and the prevalence of such stands is 
credited with the rapid increase in lynx numbers in Maine in the mid-
1990s and early 2000s (Simons 2009, pp. 64, 122; Vashon et al. 2012, 
pp. 56-57). As these stands mature beyond about 35 years post-harvest, 
hare densities begin to decline as cover and forage are reduced due to 
forest succession (Simons 2009, p. 217). The areal extent of these 
high-quality hare habitats is believed to have peaked between 2007 and 
2010, and lynx numbers in Maine also likely peaked at about that time 
(Simons 2009, p. 142; Vashon et al. 2012, pp. 50, 57). With the 
reductions in both clearcutting and herbicide application following 
enactment of the Maine Forest Practices Act of 1989, it is projected 
that lynx densities will decline by 55 to 65 percent by 2032 (Simons 
2009, p. 217). By then, the lynx population, which is thought to have 
peaked at between 750 and 1,000 adults in 2006, may decline by more 
than half to perhaps 300 adults, which is still three times as many 
lynx as are thought to have inhabited Maine during a population low in 
the 1970s (Vashon et al. 2012, pp. 57-60).
    How these numbers compare to historic lynx numbers in Maine is 
uncertain. Lynx have had a relatively constant presence in Maine since 
they were first documented in the State in 1833 (Hoving 2001, pp. 6-
38). In general, lynx likely occurred at low densities prior to 
European settlement, when relatively small amounts of the spruce-fir 
forests in the State are thought to have been composed of young stands 
(Lorimer 1977, entire; Vashon et al. 2012, pp. 45, 56), but they likely 
responded positively to stand-replacing fires, wind events, and insect 
outbreaks (Hoving 2001, p. 25). Audubon and Bachman (1852) described 
lynx as occurring in regenerating forest following fire in Maine, and 
H.D. Thoreau (1893) noted that lynx were common in the ``burnt lands.'' 
Lynx may have also responded to timber harvest, which by 1900 had 
expanded to smaller diameter spruce for a growing paper industry. It is 
likely, then, that lynx numbers in Maine have fluctuated since European 
settlement, depending on the size and distribution of natural and human 
disturbances and the resultant young regenerating forest stands. At 
times, lynx were considered very common, and in some years in the 
1800s, 200-300 lynx were harvested in Maine (Hoving et al. 2003, p. 
363).
    Finally, the extent to which herbicide treatment to favor conifer 
regeneration contributed to the development of optimal hare habitats in 
regenerating clearcuts (versus regeneration in untreated stands) is 
unclear. Herbicide treatment is expensive, and even in the 1980s, when 
herbicide application was highest, less than 20 percent of clear-cut 
stands were treated. The areal extent of herbicide application 
decreased by about 78 percent in 2000-2007 compared to peak application 
in the late 1980s, which may reduce the amount of conifer-dominated 
regenerating hare and lynx habitats in the future (Scott 2009, pp. 122-
123).
    (20) Comment: One peer reviewer commented that there was an 
assumption in the proposed rule that lynx populations within the DPS 
require demographic rescue periodically from populations in Canada. The 
reviewer suggested that it is unknown if augmentation from northern 
populations is sufficient for demographic rescue and that this 
uncertainty was poorly articulated in the proposed rule. The reviewer 
also suggested that it is unknown if the lagged synchrony observed in 
southern lynx populations resulted from the physical movement of lynx 
from the north or if southern populations increased due to a related 
environmental factor (e.g., increased hare abundance), and that this 
uncertainty also was not communicated in the proposed rule.
    Our Response: We agree that it is uncertain whether the demographic 
health of lynx populations in the DPS is reliant on augmentation from 
Canadian populations and, if so, to what extent, and whether current 
rates of interchange/immigration are sufficient to provide demographic 
rescue (also see response to comment (22), below). We recognized and 
articulated some of these uncertainties at several places in the 
proposed rule. For example, we stated that lynx in the contiguous 
United States appear to function as discrete subpopulations connected 
via dispersal to the larger Canadian metapopulation, that lynx disperse 
in both directions across the United States-Canada border, and that 
this interchange is thought to be essential to the maintenance and 
persistence of lynx populations in the DPS (78 FR 59434). We similarly 
stated that the degree to which regional lynx populations in the DPS 
are influenced by local hare population dynamics is unclear, and that 
lynx presence and population dynamics in the DPS appear to be more 
influenced by the occurrence of irruptions from Canada than by 
intrinsically generated hare population cycles within the DPS range (78 
FR 59436).
    (21) Comment: One peer reviewer suggested that the proposed rule 
assumes that peripheral southern lynx populations (outside proposed 
critical habitat) failed to persist due to unsuitable habitat 
conditions but did not mention that no large incursion of lynx has 
happened in the western United States in the absence of active 
persecution (i.e., trapping).
    Our Response: We believe the best available information indicates 
that we have included within the final critical habitat designation all 
places in the contiguous United States historically and currently 
capable of naturally supporting lynx populations and which will provide 
for the conservation of lynx. We are aware that no large irruptions of 
lynx from Canada into the contiguous United States have been documented 
since the DPS was listed and harvest was prohibited throughout its 
range. However, in the absence of trapping, which provided most of the 
data upon which the history of past irruptions was constructed, and 
with limited monitoring of lynx populations

[[Page 54793]]

on both sides of the border, there is uncertainty about the number of 
lynx that may be moving between populations in Canada and those in the 
contiguous United States.
    We have no evidence that lynx were disproportionately persecuted in 
areas outside those we have designated (secondary or peripheral areas), 
and lynx populations in designated areas have persisted despite being 
similarly exposed to hunting and trapping prior to listing. 
Additionally, other than relatively low levels of reported incidental 
trapping (with very few resulting in lynx mortality), lynx have not 
been persecuted in the past 14 years since listing. In that time, 
populations have persisted in the areas designated as critical habitat, 
while other areas (with the possible exception of small areas of 
northern New Hampshire, northern Vermont, and Maine outside the 
designated area) have failed to attract lynx and support establishment 
of populations. We interpret this as a strong indication that these 
secondary and peripheral areas lack one or more of the essential 
physical or biological features in adequate quantity and/or spatial 
arrangement, and that it is less likely, given the previously noted 
dispersal capabilities of lynx, that these areas represent good lynx 
habitat which lynx have been unable to locate and colonize (but see 
response to comment (22), below).
    (22) Comment: One peer reviewer noted that maintaining connectivity 
for lynx populations in the contiguous United States may become 
increasingly difficult in the future due to climate and anthropogenic 
change, that this added risk was not discussed in the proposed rule, 
and that a potentially dampened hare/lynx cycle in Canada (e.g., Ims et 
al. 2008, pp. 81, 85) may cause demographic and genetic impacts to 
southern lynx populations over time. However, the reviewer noted that 
lynx from the population introduced to Colorado made documented south-
to-north movements, demonstrating that connectivity with the native 
population in the GYA is possible.
    Our Response: Climate change and other anthropogenic change (human-
caused habitat degradation/loss/fragmentation) could result in smaller 
and more isolated lynx populations in the contiguous United States, 
with reduced connectivity to lynx populations in Canada. We noted in 
the Future of Lynx Habitat sections of the proposed rule (78 FR 59443) 
and this final rule (below) that climate change could reduce the amount 
and quality of lynx habitat in the DPS range, with habitat patches 
becoming smaller, more fragmented, and more isolated (Carroll 2007, pp. 
1099-1100; Johnston et al. 2012, p. 11), and that lynx populations 
could become more vulnerable to stochastic environmental and 
demographic events because of smaller population sizes and increased 
isolation (Carroll 2007, pp. 1100-1103). However, the level at which 
reduced connectivity might affect the demographic or genetic health of 
populations in the DPS is unknown.
    Schwartz et al. (2003, entire) documented reduced genetic variation 
(lower mean number of alleles per population and lower expected 
heterozygosity) among peripheral lynx populations compared to 
populations in the core of the lynx geographical range. While 
recognizing that small changes in genetic variation can lead to large 
changes in population fitness, the authors noted that the differences 
between core and peripheral populations in their study were small 
enough to suggest a lack of significant population subdivision (i.e., 
no indication of genetic isolation, substantial genetic drift, or 
potential genetic ``bottlenecks'' among DPS populations; Schwartz et 
al. 2003, p. 1814). This finding is consistent with their earlier work, 
which documented high levels of gene flow (the highest yet documented 
for any carnivore) between core and peripheral lynx populations despite 
large separation distances (Schwartz et al. 2002, pp. 520-522). Their 
results did not suggest that reduced genetic variation among peripheral 
populations was due to human disturbance (i.e., habitat loss/
fragmentation on the southern periphery of the geographic range; 
Schwartz et al. 2003, p. 1814), but they did imply that the persistence 
of lynx populations in the contiguous United States depends on 
dispersal from larger (core) populations (Schwartz et al. 2002, p. 
522).
    Currently, there is no indication that the levels of connectivity 
and gene flow between lynx populations in the DPS and those in the core 
of the lynx's range are inadequate to maintain the genetic health of 
DPS populations. Given the noted dispersal capabilities of lynx, it 
appears unlikely that levels of connectivity and gene flow will become 
inadequate in the foreseeable future. However, because demographic 
rescue (demographic stability of peripheral populations achieved via 
immigration from other populations sufficient to offset mortality and 
emigration in the peripheral population) requires much higher 
immigration rates than does genetic rescue (McKelvey et al. 2000b, pp. 
23-24), reduced connectivity due to climate change, habitat loss/
fragmentation, or a combination of these factors, is more likely to 
result in demographic rather than genetic impacts to lynx populations 
in the DPS. But, as with gene flow, the level of diminished 
connectivity at which DPS populations could suffer demographic impacts 
is unknown. Finally, how hare and lynx population cycles may be 
affected by climate change remains unclear (Yan et al. 2013, p. 3264); 
therefore, estimating the magnitude of potential future demographic and 
genetic impacts to southern lynx populations remains elusive. If 
climate change does dampen hare (e.g., Ims et al. 2008, pp. 81, 85) and 
lynx population cycles, and that dampening alters the periodicity and/
or reduces the magnitude of immigration from Canadian to DPS lynx 
populations (which is poorly understood to begin with), then 
demographic and genetic impacts are possible.
    (23) Comment: Peer reviewers and other commenters presented 
conflicting views on whether Colorado and other parts of the Southern 
Rockies (southern Wyoming, northeastern Utah, and northern New Mexico) 
should be included in the designation. Two peer reviewers agreed with 
our determination that Colorado and the Southern Rockies do not contain 
the PCE and are not essential to conservation of the lynx DPS. One peer 
reviewer questioned the consistency of our logic in not designating 
critical habitat in Colorado and the Southern Rockies relative to its 
application to native lynx populations. The reviewer thought we should 
consider designating critical habitat in Colorado and the Southern 
Rockies because (a) the introduced population may currently include 
more lynx than native lynx populations in northwest Wyoming or 
Minnesota, and (b) the area used by the introduced population in the 
San Juan Range of Colorado is larger than the area of montane forest 
that supports lynx in Wyoming. One peer reviewer disagreed with our 
decision not to designate critical habitat in Colorado or elsewhere in 
the Southern Rockies and with our determination that evidence is 
lacking to indicate that these areas historically supported resident 
lynx populations. The reviewer cited Cary (1911) and Meaney (2002) as 
evidence that Colorado historically supported a resident lynx 
population. The reviewer suggested that parts of western Colorado, 
southern Wyoming, and northern New Mexico contain the physical and 
biological features essential to lynx in adequate quantity

[[Page 54794]]

and spatial arrangement and that high elevations in these areas may 
become important to lynx conservation if climate change results in 
upslope movement of lynx and hare habitats, as some models suggest. 
Many other commenters urged us to designate critical habitat for lynx 
in Colorado and the Southern Rockies, while others supported our 
proposal not to designate critical habitat in these areas.
    Our Response: Neither the presence of the introduced lynx 
population or the large area it has used demonstrate that habitats in 
Colorado and other parts of the Southern Rockies contain the physical 
and biological features essential to lynx in adequate quantity and 
spatial arrangement to support lynx populations over time or that this 
area is essential to the conservation of the lynx DPS. We do not 
conclude that Cary (1911, pp. 44, 48, 165-167) and Meaney (2002, 
entire) provide reliable evidence based on verified lynx occurrence 
data that Colorado historically supported a resident lynx population.
    As described above in our responses to comments (10) and (11), the 
verified evidence suggests that habitats in Colorado and the Southern 
Rockies have not historically supported viable lynx populations or 
subpopulations. The importance of using only verified evidence and the 
need to avoid using anecdotal occurrence data to assess the ranges of 
rare and elusive species has been amply demonstrated by McKelvey et al. 
(2008, entire; see also our response to comment (10), above). The 
authors cautioned that this is particularly important when target 
species may be easily confused with other similar but more common 
species; using as an example the potential biological and conservation 
consequences of misidentifying even a small number of bobcats as Canada 
lynx (McKelvey et al. 2008, pp. 553-554). Halfpenny and Miller (1980, 
p. 8) indicated that Cary's (1911) summary was based largely on 
(unverified, anecdotal) observations by trappers, and the authors cited 
Armstrong (1972) who said these ``. . . ought to be regarded with a 
degree of caution.'' Similarly, Meaney's (2002, entire) unpublished 
review for the Colorado Department of Transportation of mostly 
anecdotal lynx records in the State points out many of the vagaries and 
inconsistencies of the anecdotal data, very unlikely high numbers of 
lynx reported as trapped in some counties in some years, and 
misidentification of large, pale bobcats as lynx, but then concludes, 
questionably in our opinion, that ``There is no doubt that established 
populations of lynx occurred in the northern mountains of Colorado'' 
(Meaney 2002, p. 5).
    Based on our evaluation of the historic record of verified lynx 
occurrence, we find that, although lynx clearly occurred occasionally 
in the Southern Rockies, there is no evidence that the Southern 
Rockies, including southern Wyoming, western Colorado, northeastern 
Utah, and northern New Mexico, historically supported lynx populations. 
We conclude that the few verified records from these areas were most 
likely transient animals dispersing during ``irruptions'' from northern 
lynx populations after cyclic hare population declines. As we discuss 
below, habitat in Colorado and the Southern Rockies is marginal, 
naturally fragmented, and disjunct, with poor to marginal hare 
densities. This, combined with its apparent historical inability to 
naturally supporting lynx populations, suggests that this area does not 
contain the PCE (see also the ``Application of the Criteria to the 
Southern Rocky Mountains and Certain National Forests in Idaho and 
Montana'' section, below).
    Also as we described above in our response to comment (10), the 
persistence, thus far, of the introduced lynx population in Colorado 
does not demonstrate that habitats there contain the essential physical 
and biological features in adequate quantity and spatial arrangement to 
support a lynx population over the long term. Like Colorado and the 
Southern Rockies, many areas across the northern border of the United 
States contain some amounts of the essential physical and biological 
features and have verified records of lynx (in fact, New York, 
Michigan, Wisconsin, and Idaho all have more verified historic lynx 
records than Colorado/Southern Rockies; McKelvey et al. 2000a, p. 210), 
but no evidence they have ever supported more than occasional 
dispersing lynx. The historic inability of these areas to naturally 
support resident lynx populations indicates either (a) that the 
quantity and/or spatial arrangement of one or more physical or 
biological features is inadequate, (b) the area's distance and relative 
isolation from other lynx habitats and populations prevents the 
consistent immigration needed to provide the demographic stability that 
may be necessary to maintain a viable lynx population, or (c) that a 
combination of these factors has prevented these areas from 
historically supporting lynx populations over time.
    The best available information does not allow us to simply measure 
and map each of the physical and biological features essential to lynx 
and thus distinguish areas that contain each in adequate quantity and 
spatial arrangement from other areas that do not (see also Criteria 
Used to Identify Critical Habitat, below). Nor does it allow us to 
determine at what specific distance and relative level of isolation 
from other lynx habitats and populations a particular area becomes 
unlikely to receive adequate demographic input (via immigration from 
other populations) thought to be necessary for population viability and 
persistence. Regardless, it is informative that Colorado and the 
Southern Rockies failed to attract lynx and support establishment and 
maintenance of lynx populations in the wake of two unprecedentedly 
large irruptions of lynx from Canada into the western United States in 
the early 1960s and again in the early 1970s (McKelvey et al. 2000a, 
pp. 219, 242). To what degree this failure resulted from the marginal 
quality of the habitat versus the area's distance and relative 
isolation is unclear. However, it is clear that, while lynx were unable 
to establish and maintain populations in Colorado or elsewhere in the 
Southern Rockies, other lynx populations in the DPS, where we have 
designated critical habitat, did persist, despite being exposed to 
similar habitat threats and harvest pressures. That is, we have no 
indication that habitat loss, degradation, or fragmentation or trapping 
pressures were greater in the Southern Rockies than in places where 
lynx populations persisted despite them. In fact, trapping lynx was 
prohibited in Colorado (1970) and Wyoming (1973) long before it was 
prohibited in most other States within the range of the DPS (Maine-
1967, Minnesota-1984, Washington-1990, Idaho-1996, Montana-2000).
    Finally, although recent climate projections suggest that snow 
water equivalent (the amount of water held in a given amount of snow) 
may decline less in Colorado than in other areas of the Southwest, it 
is nonetheless projected to decline by 26 percent by the end of this 
century (Garfin et al. 2014, p. 466). This will likely translate to a 
reduction in the areas that will continue to have snow conditions that 
provide a competitive advantage to lynx over bobcats and other hare 
predators. Additionally, when specifically modeling potential impacts 
of climate change on lynx, researchers concluded that potential snow 
and boreal forest habitat refugia were most likely to occur in the 
Bridger-Teton National Forest in northwestern Wyoming, the Superior 
National Forest in northeastern Minnesota, and across western Canada, 
while high-elevation parts of Colorado

[[Page 54795]]

are among the areas vulnerable to the loss of potential lynx habitat in 
the long term (Gonzalez et al. 2007, pp. 4, 8). Even if suitable snow 
conditions persist in Colorado and boreal and subalpine forests move 
upslope with continued climate warming, the amount of potential lynx 
habitat, already considered patchy and relatively isolated, will likely 
decrease, becoming even more patchy and isolated and less capable of 
supporting lynx populations over time.
    For these reasons, we conclude that habitat in Colorado and other 
parts of the Southern Rockies is marginal, naturally fragmented, and 
disjunct; that it has not been historically capable of supporting 
natural resident lynx populations; that it has not been demonstrated to 
contain all of the physical and biological features essential to lynx 
in adequate quantity and spatial arrangement to support lynx 
populations over the long term (i.e., it does not contain the PCE); and 
that it is not essential to the conservation of the DPS. Therefore, we 
have not designated critical habitat for lynx in Colorado or elsewhere 
in the Southern Rocky Mountains.
    (24) Comment: One peer reviewer, one Federal agency commenter, and 
several other commenters took exception to our description of the 
translocation of lynx from Alaska and Canada to Colorado as an 
``introduction'' rather than a ``reintroduction.''
    Our Response: As described above in our responses to comments (10), 
(11), and (23), we believe the weight of verified evidence suggests 
that Colorado did not historically support a resident native lynx 
population, and that the few verified records of lynx prior to the 
introduction of the current population were likely transient, 
dispersing animals. Although the translocation of lynx from Alaska and 
Canada to Colorado has often been referred to as a reintroduction, 
including in some documents by the Service, we believe it represents 
the establishment of a lynx population in a place that, based on our 
evaluation of the best available information, apparently did not 
support one previously and, therefore, is more accurately described as 
an introduced population. We have clarified the text throughout this 
rule to indicate that our use of the term ``introduction'' refers to 
the establishment of a lynx population in Colorado, as opposed to the 
reintroduction of individual lynx into an area where individual lynx 
rarely occurred historically.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from States regarding the proposal to designate 
critical habitat for the lynx DPS are addressed below. Other comments 
from States pertaining to other issues that may be beyond the scope of 
this final revised critical habitat designation (e.g., the lynx DPS's 
listing status under the Act, etc.) will be addressed in separate 
letters to the States.
    (25) Comment: The Maine Department of Inland Fisheries and Wildlife 
supported our determination that the Van Buren and Herseytown-
Staceyville areas of Maine, which we proposed to designate and which we 
have designated as lynx critical habitat in this final rule, contain 
the PCE and may be essential to lynx conservation. However, the agency 
provided its opinion that these areas were likely not occupied by lynx 
at the time of listing and included documentation of standardized lynx 
surveys conducted in northwestern Maine in 1995-1999 and 2003-2008, and 
other confirmed lynx occurrences from 1995-2000.
    Our Response: We reviewed the survey information provided by the 
agency and determined that the 1995-1999 and 2003-2008 surveys did not 
adequately cover the Herseytown-Staceyville or Van Buren areas and, 
therefore, do not sufficiently demonstrate that lynx were absent from 
these areas at the time of listing. We have reviewed additional lynx 
record data that indicate lynx have occupied the Herseytown-Staceyville 
and Van Buren areas historically and since the lynx DPS was listed 
under the Act, and which demonstrate occupancy at the time of listing 
in adjacent towns (Hoving 2001, pp. 16, 170-179; Hoving et al. 2003, 
entire; U.S. Fish and Wildlife Service 2013c, entire). For these 
reasons, we find that the best available information indicates that the 
newly designated Van Buren and Herseytown-Staceyville areas were likely 
occupied by lynx at the time of listing and that these areas contain 
the PCE. Also see our response to comment (3), above, and Recent Lynx 
Occurrence and Reproduction in Northern New Hampshire, Northern 
Vermont, and Eastern and Western Maine, below).
    (26) Comment: The Idaho Department of Lands noted that the proposed 
rule included 26 acres (0.04 mi\2\ (0.1 km\2\)) of State Endowment 
Trust lands in northern Idaho. The agency provided forest inventory 
data suggesting that most of the area consists of forest types not 
considered suitable for lynx and requested that these lands not be 
designated as critical habitat.
    Our Response: Although these State Endowment Trust lands do not 
consist entirely of forest types considered hare and lynx foraging 
habitat, more than a third of the area is subalpine fir, which is 
considered foraging habitat. The other portion of this land is 
consistent with the definition of matrix habitat in the PCE, which is 
considered an essential feature of lynx critical habitat and is a 
component of the PCE. Further, while this parcel is at the edge of the 
designated area, it is surrounded by and contiguous with other similar 
forest types that also meet the criteria for critical habitat despite 
being composed of both foraging and non-foraging (i.e., matrix) 
habitats. We have determined that these State lands contain the 
physical and biological features (PBFs) essential to the conservation 
of the lynx DPS and that they are part of the landscape that has 
supported a resident lynx population over time. Therefore, we have 
determined that these State Endowment Trust lands contain the PCE, and 
we have included this area within the final critical habitat 
designation.
    (27) Comment: The New Mexico Department of Agriculture requested 
that the State-boundary-based DPS range remain in place and that New 
Mexico be specifically excluded from it. The agency believes that a 
geographical DPS boundary based on the habitat requirements of lynx is 
more appropriate than the proposed revised ``verbal definition'' of the 
DPS that would extend the Act's protections to lynx wherever they may 
occur in the contiguous United States. The agency feels that the 
proposed change could increase section 7 consultation requirements for 
actions on Federal lands in northern New Mexico, negatively affecting 
ranching operations that hold Federal grazing permits on Forest Service 
or BLM lands, and perhaps precluding or delaying range improvement and 
watershed restoration projects on these lands.
    Our Response: Our 2000 listing rule (65 FR 16052) and our 2003 
clarification of findings (68 FR 40076) used State boundaries within 
what we understood to be the range of lynx in the contiguous United 
States at that time. Subsequently, lynx associated with the introduced 
population in Colorado were confirmed in northern New Mexico. Revising 
the existing range of the DPS with this rule addresses that

[[Page 54796]]

inconsistency between the current range of lynx and how the lynx DPS 
was delineated so that the lynx DPS is now consistent with our DPS 
policy. Because lynx may be present in northern New Mexico, Federal 
land managers and agencies that may authorize, fund, or permit 
activities where lynx may be present should review their actions to 
determine whether consultation with the Service is necessary to ensure 
that such activities do not jeopardize the lynx DPS. However, we do not 
foresee a dramatic increase in section 7 consultations because most of 
the potential lynx habitat in New Mexico occurs on the Carson and Santa 
Fe National Forests, and these Federal lands managers already 
coordinate with the Service to avoid potential impacts to lynx and 
their habitats. Further, because grazing by domestic livestock is not 
likely to adversely affect hare or lynx habitats (Interagency Lynx 
Biology Team 2013, p. 85), we do not anticipate additional regulatory 
burdens to Federal grazing permit holders. Finally, range improvement 
and watershed restoration projects can include measures to conserve 
lynx and hare habitats, and these considerations are unlikely to 
preclude or substantially delay such projects.
    (28) Comment: The New Mexico Department of Game and Fish commented 
that the likelihood of lynx entering and establishing a population in 
New Mexico remains remote, and the agency is extremely concerned that 
the extension of ESA protections to individual animals that may enter 
the State will have significant economic, cultural, and management 
impacts to currently lawful activities such as hunting, trapping, 
agency-approved wildlife management activities, and various other 
activities on public and private lands in northern New Mexico. The 
agency expressed concern that the level of these impacts may require 
the Service to conduct at least an environmental assessment and 
potentially an environmental impact statement to address them.
    Our Response: We agree that it is unlikely that lynx entering New 
Mexico from the introduced population in Colorado will establish a 
self-sustaining population in New Mexico. However, because at least 60 
lynx are documented to have traveled into New Mexico after their 
release in Colorado (Shenk 2007, p. 10; U.S. Forest Service 2009, pp. 
9-10), the ``may be present'' standard for initiating section 7 
consultation between the Service and Federal land managers and 
permitting agencies in northern New Mexico may be met for actions in 
these areas. Therefore, Federal land managers and agencies that carry 
out, fund, or permit activities that may affect lynx or lynx habitats 
should review their actions to determine whether consultation with the 
Service is necessary to ensure that these activities do not jeopardize 
the lynx DPS. We do not anticipate significant restrictions on 
otherwise lawful activities as a result of these consultations, and we 
expect little if any impacts to private landowners because activities 
on private lands would only undergo section 7 consultation if they had 
a Federal nexus (also see our responses to comments (8) and (16), 
above). Because the Act does not allow us to consider economic or 
social impacts when making listing determinations (such as redefining 
the range or boundaries of a listed species), it is not necessary, and 
would be inappropriate, to conduct NEPA analysis on the revision to the 
lynx DPS range.
    (29) Comment: The Wyoming Game and Fish Department, the county 
commissions of Lincoln, Park, Sublette, and Teton Counties, the 
Coalition of Local Governments representing the county commissions and 
conservation districts for Lincoln, Sweetwater, Uinta, and Sublette 
Counties, the State of Wyoming Select Committee on Federal Natural 
Resource Management, and the Wyoming Governor's Office all oppose the 
designation of lynx critical habitat in Wyoming, and in particular the 
proposed additions of lands in Grand Teton National Park in Teton 
County and on BLM, State, and private lands in Sublette and Lincoln 
Counties. Most of these commenters contend that habitats in Wyoming, 
including the proposed additions, do not contain the features essential 
to lynx and that evidence is lacking that they are occupied by lynx or 
that they currently support or historically supported a resident lynx 
population. They believe critical habitat designation in Wyoming, 
including in the additional areas, will have substantial impacts on 
economic development and management of other resources. Several of 
these commenters requested that the Service (a) designate lynx in 
Wyoming as an experimental, nonessential population in accordance with 
section 10(j) of the Act, and (b) collaborate with State agencies 
within the range of the DPS to complete a recovery plan for lynx prior 
to designating critical habitat so that the recovery plan can inform 
the eventual designation. Several other commenters similarly oppose 
designation in Wyoming, including the proposed additions, and one 
specifically opposes designation of any lands within the Shoshone 
National Forest. Many other commenters support the proposed additions 
to critical habitat in the GYA.
    Our Response: In our previous evaluations of critical habitat for 
lynx, we determined that habitats in the GYA, including portions of 
northwest Wyoming in Yellowstone National Park and the Bridger-Teton 
and Shoshone National Forests, contain the physical and biological 
features essential to the conservation of lynx, and that the area has a 
long history of lynx presence (70 FR 68294; 74 FR 8619, 8643-8644). As 
described in our response to comment (17), above, habitats in the GYA 
have been demonstrated to contain the essential features in sufficient 
quantity and spatial arrangement because they (a) have supported a 
small but persistent lynx population over time, and (b) were occupied 
by lynx at the time of listing (Squires and Laurion 2000, entire; 
Squires et al. 2001, entire; Murphy et al. 2006, entire). Therefore, 
the GYA meets our criteria for designation as critical habitat.
    In northwestern Wyoming and the GYA, lynx are generally associated 
with the Rocky Mountain Conifer Forest vegetation class, which is 
dominated by subalpine fir, Engelmann spruce, and lodgepole pine, and 
which often occurs in a patchy distribution within a mosaic of other 
vegetation types that do not support snowshoe hares at densities 
adequate to provide lynx foraging habitat (73 FR 10866). In areas with 
patchily distributed foraging habitats, like those typical of the GYA, 
lynx home ranges incorporate extensive areas of non-foraging ``matrix'' 
habitats that are used primarily for travel between patches of foraging 
habitat (74 FR 8644). Therefore, lynx home ranges and designated 
critical habitat in the GYA may contain substantial areas that do not 
contain all of the physical and biological features essential to lynx. 
However, such areas are a necessary component of the landscape that 
does contain the features. The areas of Grand Teton National Park and 
the predominantly BLM-managed lands east and south of the Bridger Teton 
National Forest that we have added to this final critical habitat 
designation also include matrix habitats, but they are part of the 
larger landscape that has supported a resident lynx population and, 
therefore, contains the PCE.
    Although habitat information and mapping for the areas we have 
added to the critical habitat designation in Wyoming were not received 
in time to evaluate them during the preparation of our previous 
designation in 2009, it was clear that lynx habitat did not stop at the 
boundary of the Bridger-Teton

[[Page 54797]]

National Forest. However, we designated critical habitat based on the 
best information available at the time. Since then, additional and 
refined habitat mapping has become available for these areas, along 
with recent verified use by lynx and/or information on hare habitats 
and abundance (U.S. Fish and Wildlife Service 2013a, entire; 2013b, 
entire). The areas we have added to the designation in Wyoming are 
natural extensions of adjacent designated lynx habitats and are part of 
the landscape that supports the GYA's small but persistent lynx 
population. We have worked closely with both the National Park Service 
and the BLM in Wyoming to ensure that our designation reflects the most 
appropriate interpretation of the best available information on lynx 
occurrence and habitat distribution so that our designation most 
accurately encompasses the areas that contain the features essential to 
the conservation of the lynx DPS.
    Finally, the Act does not allow us to designate an existing 
population as a 10(j) experimental, nonessential population. The 
section 10(j) provision of the Act can be applied only in cases where 
no population currently exists and is effective only upon release of 
animals brought from other populations. The best available information 
indicates that northwestern Wyoming had a small lynx population 
historically and at the time of listing, and that a small number of 
lynx currently persist and reproduce in the State. Thus, we cannot 
designate the Wyoming lynx population as a 10(j) nonessential 
experimental population because doing so would not conform to the Act.
    (30) Comment: The Montana Department of Natural Resources and 
Conservation (MDNRC) requested that we exclude lands covered by the 
MDNRC Forested State Trust Lands HCP from critical habitat designation 
in accordance with section 4(b)(2) of the Act, and the Washington State 
Department of Natural Resources (WDNR) requested that we similarly 
exclude lands covered by the WDNR Lynx Habitat Management Plan. Several 
other commenters requested that MDNRC lands not be excluded from 
designation, either because they felt these lands are essential to the 
conservation of the lynx DPS or because the MDNRC HCP is the subject of 
an ongoing court case.
    Our Response: We have weighed the benefits of designating the lands 
covered by these plans against the benefits of excluding them, and we 
have determined that the benefits of excluding them outweigh the 
benefits of including them in the final designation. Therefore, we have 
excluded the lands covered by both these conservation plans from lynx 
critical habitat. More details regarding our analyses of the benefits 
to lynx of these plans are presented in the Consideration of Impacts 
under section 4(b)(2) of the Act section, below (and see our response 
to comment (16), above). The Service and the MDNRC are currently 
defending the HCP in a lawsuit that challenges the HCP's adequacy with 
regard to the conservation of grizzly bears and bull trout. The HCP's 
adequacy with regard to lynx conservation was not challenged in the 
lawsuit.
    (31) Comment: The Washington Department of Fish and Wildlife (WDFW) 
agreed that the Kettle Range of northeastern Washington did not support 
a lynx population at the time of listing. Despite this, WDWF suggested 
that we consider designating the area because it may support lynx 
movement between larger areas of habitat in the Selkirk and Cascade 
Mountains, and because a lynx population could become re-established in 
the future because lynx harvest no longer occurs there and habitat 
conditions may improve as parts of the area continue to recover from 
large fires in the 1980s. Conversely, the Board of County Commissioners 
for Stevens County, Washington, supported our decision not to designate 
critical habitat in northeastern Washington.
    Our Response: The Kettle Range in northeastern Washington 
historically supported a lynx population (Stinson 2001, pp. 13-14), and 
boreal forest habitat within the Kettle Range appears to contain 
habitat for lynx; however, there is no evidence that the area was 
occupied by lynx at the time of listing. The Kettle/Wedge area was 
included as a core area in the recovery outline despite lacking recent 
evidence of reproduction and, therefore, did not completely meet the 
core area criteria in the outline (U.S. Fish and Wildlife Service 2005, 
pp. 3-5, 21). Moreover, while the Kettle Range contains physical and 
biological features important to lynx, its spatial configuration and 
quantity of habitat do not appear to be sufficient to provide for the 
conservation of lynx. Additionally, we are aware of no evidence that 
lynx travel between the Northern Rockies and the North Cascades via 
northeastern Washington. As with other areas that were not occupied at 
the time of listing (and described in more detail in our response to 
comment (32), below), we could not designate the Kettle/Wedge area as 
critical habitat unless we determine that the DPS could only be 
conserved and recovered if we were to do so (i.e., that the area is 
essential to the conservation of the DPS). We have not determined that 
this area is essential to the conservation and recovery of the DPS and 
we have not designated critical habitat in the Kettle/Wedge area in 
this final rule.

Public Comments

    (32) Comment: We received many public comments requesting that we 
designate additional areas as critical habitat, including the Southern 
Rocky Mountains (parts of western Colorado, northern New Mexico, 
northeastern Utah, and south-central Wyoming), the Kettle/Wedge and 
other areas of northeastern Washington, Oregon, additional areas of 
northern Idaho and western Montana, parts of central and southeastern 
Idaho, additional areas in northern Minnesota, and parts of northern 
New Hampshire and northern Vermont. Some commenters felt we should 
designate critical habitat in all areas identified as ``core areas'' in 
the recovery outline (U.S. Fish and Wildlife Service 2005, entire), 
while other commenters felt that ``secondary'' and ``peripheral'' areas 
identified in the outline also should be designated.
    Our Response: Critical habitat is defined in section 3 of the Act 
as: (1) The specific areas within the geographical area occupied by a 
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 a species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. Section 3(5)(C) also states that critical habitat 
``shall not include the entire geographical area which can be occupied 
by the threatened or endangered species'' except when the Secretary 
determines that the areas are essential for the conservation of the 
species. The term ``conservation'' as defined in section 3(3) of the 
Act means ``to use and the use of all methods and procedures which are 
necessary to bring an endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary.''
    With the exception of parts of western Colorado, where a lynx 
population was introduced just prior to our listing the DPS as 
threatened, there is no evidence that the places mentioned above were 
occupied by resident lynx populations at the time of listing and, for 
most, no

[[Page 54798]]

evidence that they are currently occupied by lynx or that they contain 
the PCE. In order to designate critical habitat in areas not occupied 
at the time of listing, we must determine that those areas are 
essential to the conservation and recovery of the DPS (i.e., that the 
DPS could only be conserved and recovered if we were to designate those 
areas). To determine what is essential to conservation and recovery, we 
must look at the threat for which the DPS was listed and determine 
whether designating unoccupied areas would contribute meaningfully to 
addressing and ameliorating that threat. The lynx DPS was listed as 
threatened due to the inadequacy, at the time of listing, of existing 
regulatory mechanisms and, unlike many species listed under the Act, 
not to any substantial documented population decline or significant 
range contraction (65 FR 16071-16082; 68 FR 40084-40101). We have 
determined that designating areas not occupied by lynx at the time of 
listing would not meaningfully address or ameliorate the threat for 
which the DPS was listed and that doing so would not improve the 
likelihood of recovery (the point at which the protections of the Act 
are no longer necessary and delisting the DPS would be appropriate). We 
do not find that the DPS can only be conserved and recovered if we were 
to designate areas not occupied at the time of listing. Because these 
areas are not essential to the conservation and recovery of the DPS, 
designating them would not comply with the Act. Therefore, we have not 
designated critical habitat in areas that were not occupied by lynx at 
the time of listing.
    Parts of Colorado were occupied by an introduced population of by 
lynx at the time of listing. However, habitats there apparently did not 
historically support a resident lynx population, and we have determined 
that these areas likely do not contain the physical and biological 
features essential to lynx in adequate quantity and/or spatial 
arrangement to support a lynx population over time. For additional 
details regarding our evaluation of the historic record of verified 
lynx occurrence in Colorado and the Southern Rockies and of the quality 
of potential lynx habitats there, see our responses to comments (10), 
(11), and (23), above, and Application of the Criteria to the Southern 
Rocky Mountains and Certain National Forests in Idaho and Montana under 
the Criteria Used to Identify Critical Habitat section, below.
    In the recovery outline, we defined six core areas for lynx as 
those having both persistent verified records of lynx occurrence over 
time and recent evidence of reproduction (U.S. Fish and Wildlife 
Service 2005, pp. 3-5, 20-21). However, as discussed above in our 
response to comment (31), the Kettle/Wedge area of northeastern 
Washington was included as a core area despite lacking recent evidence 
of reproduction and, therefore, it did not completely meet the core 
area criteria in the outline. We also defined the Southern Rocky 
Mountains of Colorado and southern Wyoming as a ``provisional'' core 
area because it contained an introduced lynx population that had 
demonstrated reproduction (U.S. Fish and Wildlife Service 2005, p. 4). 
Colorado otherwise does not meet the outline's criteria for core areas 
because prior to the introduced population it lacked persistent 
verified records of lynx occurrence over time. Southern Wyoming also 
lacked such records and also had no evidence of recent reproduction. 
Aside from these two areas (Kettle/Wedge and Southern Rockies), we have 
designated critical habitat that includes the vast majority of the 
other areas identified as core areas in the recovery outline.
    Regardless, the methodology we used in defining areas for lynx 
critical habitat did not mirror that used for the lynx recovery 
outline, although it did reflect the biological concepts considered in 
the recovery outline. We used the best scientific information available 
in determining which areas contained the features essential to the 
conservation of lynx. The areas we determined to be essential for the 
conservation of lynx do not include all the areas identified in the 
recovery outline. The criteria we used for determining areas essential 
to the conservation of lynx for the revised critical habitat 
designation are based on the critical habitat requirements of the Act, 
which are more selective than those used for delineating the recovery 
areas in the outline. The recovery outline more broadly encompasses 
older records of lynx, and the areas in the recovery outline were 
mapped conceptually, include substantial areas that do not contain the 
physical and biological features essential for lynx, or are both 
unoccupied and not essential for lynx conservation, and, therefore, do 
not meet the definition of critical habitat. We refined our mapping for 
the purposes of designating critical habitat in order to meet the 
statutory requirements associated with critical habitat. As a result, 
areas determined to be essential to the conservation of lynx for the 
purposes of critical habitat did not include all the areas delineated 
in the recovery outline.
    (33) Comment: One commenter contends that, because we acknowledge 
that the best available information does not allow us to simply measure 
and map all the physical and biological features essential to lynx 
across the range of the DPS, we have failed to demonstrate that 
designated areas actually contain all the essential features and, 
therefore, we should withdraw the designation until we have information 
adequate to map only those areas that contain all of the essential 
features. Another commenter argued that, because we concede that the 
best available information does not allow specific quantification of 
the essential physical and biological features, it is inappropriate to 
use ``adequate quantity and spatial arrangement'' of these features as 
a prerequisite for critical habitat and we should designate all areas 
that demonstrate they contain some quantity of the features.
    Our Response: The Act does not require that we have perfect 
information before designating critical habitat, only that we make our 
designations appropriately based on the best available information. 
Because we lack perfect information and tools adequate for measuring 
the precise distribution of all the essential features across the broad 
range of the DPS we must look at the history of verified lynx records, 
the results of lynx and hare surveys and habitat assessments, and 
evidence of an area's ability to support lynx over time to evaluate the 
historic and current distributions of habitats that contain the 
essential features. We have evaluated the available scientific and 
commercial information and believe that this critical habitat 
designation appropriately relies on that information to distinguish 
between areas that demonstrably contain the essential features in 
adequate quantity and spatial arrangement to support lynx populations 
and which, therefore, are essential to the conservation and recovery of 
the DPS from other areas for which such evidence is lacking.
    (34) Comment: Several commenters stated that we failed to identify 
and designate critical habitat in important linkage corridors they 
believe are essential to the conservation of the DPS. Other commenters 
believe that we should designate critical habitat in northeastern 
Washington because it serves as an important linkage between lynx 
populations in the Northern Rockies of Montana and Idaho and those in 
the North Cascades of north-central Washington.
    Our Response: We agree that providing protection for travel and 
dispersal are important for maintaining lynx populations over time. 
Critical habitat is designated for the

[[Page 54799]]

conservation of the PCE essential to the conservation of the lynx and 
necessary to support lynx life-history functions. The PCE comprises the 
essential features of the boreal forest types that provide, for 
example, prey, reproduction and denning habitat, and snow conditions 
that give lynx a competitive advantage over other hare predators. 
Critical habitat for lynx does provide habitat connectivity for travel 
within home ranges, and exploratory movements and dispersal within 
critical habitat units. Critical habitat in the final rule was 
delineated to encompass occupied areas containing features essential to 
the conservation of the lynx to provide connectivity within the 
particular regional unit and to maintain direct connectivity with lynx 
populations in Canada.
    Lynx populations in the contiguous United States are believed to be 
influenced by lynx population dynamics in Canada, and many of these 
populations in Canada are directly interconnected with U.S. 
populations. Therefore, retaining connectivity with the larger lynx 
population in Canada is thought to be important to ensuring long-term 
persistence of lynx populations in the United States. However, lynx are 
wide-ranging animals with a well-documented ability to make long 
journeys across both suitable and unsuitable habitats (68 FR 40079), 
and there is no evidence that human-caused factors have significantly 
reduced the ability of lynx to disperse or resulted in the loss of 
genetic or demographic interchange (65 FR 16079). As we highlighted in 
our response to comment (22), above, although the level of diminished 
connectivity at which DPS populations could be affected is unknown, we 
have no evidence that current levels of connectivity between lynx 
populations in the DPS and those in the core of the lynx's range are 
inadequate to maintain the genetic and demographic health of DPS 
populations or that this situation is likely to change in the 
foreseeable future. Finally, as stated above in our response to comment 
(31), we are aware of no evidence that lynx travel between the Northern 
Rockies and the North Cascades via northeastern Washington.
    (35) Comment: Some commenters questioned the adequacy of the 
environmental assessment and other aspects of our compliance with NEPA. 
They felt that the draft environmental assessment lacked information, 
did not address recovery, and did not address the full range of 
alternatives. Some recommended an alternative that includes all core 
areas identified in the recovery outline. Some felt that we should 
prepare an environmental impact statement (EIS) on this action.
    Our Response: We have complied with the requirements of NEPA for 
this critical habitat designation for lynx. An EIS is required only in 
instances where a proposed Federal action is expected to have a 
significant impact on the human environment. We prepared a draft 
environmental assessment and a draft economic analysis of the effects 
of the proposed designation to determine whether designation of 
critical habitat would have significant impacts. A notice of 
availability for public review of these documents was published in the 
Federal Register on June 20, 2014 (79 FR 35303). The draft documents 
have been available since that date on our Web site (http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm), at 
www.regulations.gov, and by request from the Service's Montana Field 
Office. We accepted public comment for 30 days after the posting. 
Following consideration of public comments, we prepared a final 
environmental assessment and determination that critical habitat 
designation does not constitute a major Federal action having a 
significant impact on the human environment. That determination is 
documented in our Finding of No Significant Impact (FONSI). Both the 
final environmental assessment and FONSI are available on our Web site 
and at www.regulations.gov (also see ADDRESSES section of this rule).
    The environmental assessment was prepared for this rule to identify 
alternatives, identify and analyze significant issues, and determine 
whether additional analysis was required in an EIS. Two alternatives 
were considered in the EA: The No Action (Baseline) Alternative and the 
Proposed Action. Two other alternatives were considered but not brought 
forward for analysis. The two alternatives not considered further were: 
(1) Critical habitat designation of all areas within the geographic 
range of the lynx in the contiguous United States, and (2) designation 
of all recovery areas (including core areas) as described in the lynx 
recovery outline. These alternatives were not carried forward because 
the Act specifies that, except in circumstances determined by the 
Secretary, critical habitat shall not include the entire geographic 
area that can be occupied by the species, and the recovery outline was 
not analyzed as an alternative because it did not meet the criteria for 
critical habitat defined in the proposed rule.
    The designation of critical habitat itself is not a recovery 
action, but identifies geographic areas that have the primary 
biological and physical elements necessary for conservation of lynx and 
that may require special management. We recognize that designation of 
critical habitat may not include all of the habitat area that may 
eventually be determined to be necessary for the recovery of a species. 
Critical habitat designations made on the basis of the best available 
information will not control the direction and substance of future 
recovery plans or planning efforts.

Comments on the Economic Analysis

    (36) Comment: The Small Business Association Office of Advocacy 
(Advocacy) expressed concern that we improperly certified that the 
proposed rule would not have a significant impact on a substantial 
number of small businesses based on the mistaken belief that critical 
habitat designations only impact Federal agencies. Advocacy asserts 
that small businesses, especially in the forestry industry, are 
concerned that we are not considering the impact this designation will 
have on the industry, and that we should publish an Initial Regulatory 
Flexibility Analysis (IRFA).
    Our Response: Our assessment of our responsibilities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), including the need 
for an IRFA, was provided in the Required Determinations--Amended 
section of the Notice of Availability published in the Federal Register 
on June 20, 2014 (79 FR 35308) and is reaffirmed in the Required 
Determinations section of this final rule (below). We evaluated the 
potential timber-related effects of the critical habitat designation in 
our environmental assessment (U.S. Fish and Wildlife Service 2014, pp. 
35-44, 81-82) and both our 2008 and 2014 economic analyses (IEc, Inc. 
2008, 4-1--4-39; U.S. Fish and Wildlife Service and IEc, Inc. 2014, pp. 
6-15). We concluded that critical habitat designation was unlikely to 
result in significant impacts to timber-related activities because 
these activities on Federal lands or for which a Federal nexus exists 
already must undergo consultation, because the additional prohibition 
on the destruction or adverse modification of designated critical 
habitat is unlikely to result in additional conservation measures or 
restrictions, and because these activities on private lands for which 
there is no Federal nexus typically will not require consultation under 
section 7 of the Act.
    (37) Comment: Multiple commenters stated that the economic 
screening analysis did not comply with ESA

[[Page 54800]]

Section 4(b)(2) or the 2010 Wyoming District Court decision, which 
enjoined the critical habitat designation in Washington State due to 
inadequacies that the court identified in the Service's 2009 critical 
habitat rulemaking. The commenter states that based on the Tenth 
Circuit's decision in New Mexico Cattle Growers Association v. U.S. 
Fish & Wildlife Service, 248 F. 3d 1277, 1285 (10th Cir. 2001), the 
District Court concluded that the Service cannot focus solely on the 
``quantifiable discounted future incremental costs.'' One commenter 
noted that the screening analysis used the baseline model and 
considered only the incremental effects of the designation of critical 
habitat. The commenter stated that new Service guidance endorsing the 
baseline approach does not relieve the Service from the order issued by 
the District Court in this case. The commenter goes on to state that 
the approach used in the screening analysis forecloses any possibility 
that the Service would give meaningful consideration to Washington 
State Snowmobile Association's (WASSA's) Section 4(b)(2) exclusion 
request.
    Our Response: The Service relied on both the economic screening 
analysis prepared for this revised designation (U.S. Fish and Wildlife 
Service and IEc, Inc. 2014, entire) and the Economic Analysis it 
prepared for the 2009 designation (IEc, Inc. 2008, entire) to evaluate 
the potential economic impacts from the critical habitat designation 
and to give meaningful consideration to the WASSA's exclusion request. 
The WASSA provided detailed comments about potential economic impacts, 
which were also considered by the Secretary when she determined whether 
or not to exclude any areas as a result of economics under section 
4(b)(2) of the ESA.
    (38) Comment: Multiple commenters stated that the economic analysis 
should consider impacts to all 41,547 square miles proposed for 
designation. One commenter stated that the Federal Register notice 
accompanying the DEA attempts to limit the analysis to consider just 
the incremental ``administrative costs of the 11 percent of the 
proposed critical habitat that is not already designated.'' The 
commenter stated that the screening analysis must include an analysis 
of the economic impacts of the entire designation that is being 
proposed.
    Our Response: Section 3 of the screening analysis does consider the 
incremental costs of the proposed rule across all 41,547 square miles 
proposed as critical habitat for the Canada lynx. In that section, we 
concluded that section 7-related costs of designating revised critical 
habitat for the lynx are likely to be limited to the additional 
administrative effort required to consider adverse modification based 
in part on the fact that all areas proposed as critical habitat lands 
are considered to be currently occupied by the species, which provides 
the species significant baseline protection under the Act. We then 
estimated the administrative cost of addressing adverse modification 
during the section 7 consultation at approximately $320,000 per year 
based on a future consultation rate of 12 formal consultations, 101 
informal consultations, and 48 technical assistances per year. Because 
this estimate may overstate the consultation rate for some field 
offices that were unable to limit the consultation history to only 
those areas proposed as critical habitat, it is likely conservative 
(i.e., it is more likely to overestimate these costs than it is to 
underestimate them). Section 4 of the screening analysis discusses 
other, non-section-7 effects of the proposed designation. These effects 
are only considered in newly added critical habitat, which consisted of 
888 mi\2\ or two percent of the proposed critical habitat. The analysis 
of other, non-section-7 costs was limited to newly added areas because 
these are areas where the revised designation may increase awareness 
among project proponents of the presence of the lynx and/or the need 
for lynx conservation. We also note that we carefully considered the 
Final Economic Analysis prepared for the 2009 designation (IEc, Inc. 
2008, entire) when considering areas for exclusion in this final rule 
under section 4(b)(2) of the ESA.
    (39) Comment: One commenter stated that the screening analysis 
fundamentally fails to account for proposed changes to the definition 
of ``destruction or adverse modification'' currently under 
consideration at 79 FR 27060. The commenter stated that the Service's 
conclusion that there will be no meaningful economic impacts is 
premised on the overlap between restrictions imposed under the jeopardy 
standard and the destruction or adverse modification standard. The 
commenter contended that the Service must analyze whether those 
assumptions hold true in light of proposed regulatory changes to the 
Service's definition at 50 CFR 402.02. According to the commenter, 
these concerns are particularly relevant with respect to fire ecology 
management on dry forest lands in Washington and Wyoming, as the 
proposed rule for revising the definition of adverse modification 
indicates that an activity could adversely modify critical habitat by 
preventing successional changes such as stand-replacing fires.
    Our Response: On May 12, 2014, we and the National Marine Fisheries 
Service published in the Federal Register and invited public comment on 
a proposed rule to revise the definition of ``destruction or adverse 
modification'' of critical habitat (79 FR 27060-27066). In the proposed 
rule we stated: ``In proposing a new definition for `destruction or 
adverse modification,' and setting out the accompanying clarifying 
discussion in this Preamble, the Services are establishing prospective 
standards only. Nothing in these proposed revised regulations is 
intended to require (now or at such time as these regulations may 
become final) that any previously completed biological opinions must be 
reevaluated on this basis'' (79 FR 27062). Similarly, we do not intend 
to evaluate the proposed revised definition's potential implications 
for this or other critical habitat designations, or to retroactively 
apply the eventual final definition to previously completed 
designations.
    Regardless, because section 7 consultations addressing the jeopardy 
standard for lynx already do, and likely will continue to, focus 
largely on potential impacts to snowshoe hare (i.e., lynx foraging) 
habitats, we do not expect the revised definition to appreciably 
diminish the overlap between restrictions imposed under the jeopardy 
standard and the destruction or adverse modification standard. 
Additionally, fire ecology management activities discussed by the 
commenter are unlikely to be undertaken solely to avoid adverse 
modification to lynx critical habitat resulting from wildfires, but 
also to protect other uses of forests in which these activities would 
be undertaken. Therefore, even without the critical habitat 
designation, fire ecology management activities are likely to occur in 
these areas.
    (40) Comment: Multiple commenters expressed concern about increased 
litigation-related costs associated with the final critical habitat 
rule. One commenter states that future claims may be brought against 
Federal agencies and developers alleging that a given project causes 
``adverse modification'' of critical habitat or asserting a higher 
analytical burden under the NEPA as a result of a project's location in 
critical habitat.
    Our Response: The Service does not consider the costs of litigation 
surrounding the critical habitat rule when considering the economic 
impacts of the rule itself. The extent to which litigation specifically 
regarding critical

[[Page 54801]]

habitat may add to the costs of the critical habitat designation is 
uncertain. While designation of critical habitat may stimulate 
additional legal actions, data do not exist to reliably estimate such 
impacts. That is, estimating the number, scope, timing, and costs of 
potential future legal challenges would require significant 
speculation.
    (41) Comment: One commenter stated that the screening analysis 
fails to account for the economic impact associated with unintentional 
impacts on forest management practices. The commenter stated that 
critical habitat designations negatively impact forest management 
practices by either creating too much ``red tape'' or by providing 
litigation angles to stop forest management projects, resulting in a 
decrease in forest health, an increase in catastrophic wildfires, and 
an increase in response to those wildfires.
    Our Response: The only forest management practices that may be 
impacted by the designation of critical habitat are those that occur on 
Federal lands or which require Federal funding, authorization, or 
permits. The Federal agency that manages the land or which funds, 
authorizes, or permits these activities must consult with the Service 
to ensure that their actions are not likely to jeopardize the continued 
existence of listed species or result in the destruction or adverse 
modification of their designated critical habitats. This final rule 
designates critical habitat for lynx only in areas that are currently 
occupied by lynx and which, therefore, already undergo section 7 
consultations for projects that could affect lynx. Because these 
consultations already focus on impacts to lynx habitats, the additional 
effort and cost to formally evaluate whether they will destroy or 
adversely modify designated critical habitat are expected to be minor 
and thus unlikely to result in unintentional impacts or additional 
economic or regulatory burdens.
    We are aware of no evidence suggesting that the designation of 
critical habitat will cause a decrease in forest health or an increase 
in catastrophic wildfires and associated responses, and none was 
provided by the commenters. Additionally, ecosystem restoration 
activities intended to reduce the risk of large, stand-replacing fires 
generally occur outside of lynx habitat in dry and mesic forest types 
at lower elevations (Interagency Lynx Biology Team 2013, p. 76). 
Because fire management activities are generally concentrated outside 
of lynx habitat, we do not expect the critical habitat designation to 
negatively affect forest management practices intended to decrease the 
risk of catastrophic wildfires. Finally, as described in our response 
to comment (40) above, the extent to which critical habitat designation 
may result in increased litigation is uncertain and speculative.
    (42) Comment: One commenter stated that the economic screening 
analysis should include costs of increased wetland mitigation required 
by the U.S. Army Corps of Engineers or by the U.S. Environmental 
Protection Agency in critical habitat areas.
    Our Response: As stated in Section 2 of the screening analysis, we 
base our forecast of future consultations on the robust consultation 
history available for the species as well as supplemental information 
provided by various Service field offices that consult on lynx. The 
consultation record does include several consultations for wetland 
mitigation projects; therefore, the administrative costs related to 
wetland mitigation activities are included in the estimates of 
incremental impacts included in the screening analysis. As discussed in 
Section 3, based on the substantial baseline protections afforded the 
lynx and the close relationship between adverse modification and 
jeopardy in occupied habitat, the incremental costs of the critical 
habitat designation are unlikely to result in any project modifications 
incremental to (i.e., above and beyond) the baseline.
    (43) Comment: One commenter stated that economic impacts in Wyoming 
will be greater than those described in the screening analysis. The 
commenter stated that, both in perception and reality, the threats of 
critical habitat designation on multiple-use lands in the expansion 
area chills activity and will have substantial impacts on economic 
development and management of other resources. According to the 
commenter, resource managers in the affected area note that critical 
habitat creates significant roadblocks for the development of projects 
that can benefit other wildlife species, recreational opportunities, 
and local and State economies. The commenter requests that the Service 
conduct a new economic analysis that considers the real costs of 
expanding critical habitat in Wyoming.
    Our Response: As stated in Section 3 of the screening analysis, we 
expect incremental costs to be limited to administrative costs based in 
part on the fact that all areas proposed as critical habitat lands are 
considered to be currently occupied by the species, which provides the 
species significant baseline protection under the Act. To estimate the 
magnitude of incremental costs, we rely on the robust consultation 
history as well as outreach to relevant Service field offices and other 
Federal stakeholders. In addition, the screening analysis considers 
information from publically available sources and public comments 
submitted in response to the proposed critical habitat rulemaking. 
Other, non-section-7 incremental costs are considered in Section 4 of 
the screening analysis. The commenter did not provide additional, 
actionable data or evidence of the categories of impacts raised in the 
public comment that could be used to revise the screening analysis.
    (44) Comment: One commenter stated that the fact that the screening 
analysis projects only 1 informal consultation per year in Washington 
and that the Service's Incremental Effects Memorandum (IEM) indicates 
that there were 195 informal lynx consultations in the State between 
2008 and 2014 cannot be reconciled.
    Our Response: As discussed in Section 3 of the screening analysis, 
geographic locations of the consultation history presented in the IEM 
were not readily available. Therefore, we contacted each field office 
to determine the subset of the consultations presented in the IEM that 
occur within the proposed critical habitat designation. As discussed in 
footnote 20 of the screening analysis, based on this follow-up, the 
Washington field office revised its consultation history to reflect 
only the subset of consultations for projects that occurred in areas 
proposed as critical habitat. Specifically, the Washington field office 
indicated that only 4 of the 195 informal consultations occurred within 
proposed critical habitat. This level of activity corresponds to 
approximately one informal consultation per year. According to the 
Washington field office, the relatively low consultation rate in the 
State of Washington is a reflection of existing conservation agreements 
and management plans, which minimize the administrative burden of 
section 7 consultation by precluding the need for action agencies to 
consult with the Service on each project individually.
    (45) Comment: One commenter stated that the total cost column in 
Exhibit 4 of the screening analysis does not reflect the sum of the 
previous cost columns, and that these errors artificially deflate the 
related administrative costs.
    Our Response: This comment reflects a transcription error. In 
Exhibit 4 of the screening analysis, the column titled ``Biological 
Assessment'' actually refers to the total cost of consultation without 
undertaking a biological assessment. Total costs in the columns titled

[[Page 54802]]

``Service'', ``Federal Agency'', and ``Third Party'' sum to the number 
in ``Biological Assessment.'' The column titled ``Total Costs'' refers 
to the total cost of consultation including a biological assessment. 
Therefore, the total cost of a biological assessment is the difference 
between the dollar amounts in ``Total Costs'' and ``Biological 
Assessment.'' When calculating total impacts, we use the amounts 
reported in the ``Total Costs'' column. The error in the table actually 
overestimated the costs in the ``Biological Assessment'' column but did 
not affect the values in the ``Total Costs'' column. Because we relied 
on the ``Total Costs'' column when calculating total economic impacts, 
there was no artificial deflation of related administrative costs.
    (46) Comment: Several commenters stated that the screening analysis 
should have used administrative cost information from the ``robust 
consultation history'' rather than a review of consultation records 
from 2002 adjusted to current dollar values. Another commenter stated 
that an applicant's participation in a single formal consultation under 
Section 7 of the Act for an oil and gas project typically costs between 
$75,000 and $150,000. The commenter stated that, if the cost of 
addressing critical habitat is approximately 20 to 25 percent of the 
total cost of consultation, the total incremental administrative costs 
of consultation would be $18,750 to $37,500, as compared to the per 
consultation cost of $5,000 used in our analysis. The commenter also 
stated that the total cost of considering critical habitat in a 
biological assessment ranges between $10,000 and $50,000.
    Our Response: The consultation history for the Canada lynx is 
limited to information on the number of consultations per year, by 
field office. The Service does not collect or track information on the 
costs incurred by each party participating in section 7 consultations. 
Accordingly, the Canada lynx consultation history does not provide any 
additional insights on the administrative cost of section 7 
consultation.
    To estimate the administrative costs associated with section 7 
consultation, the screening analysis relied on the best information 
available. As described in Exhibit 4 of the screening analysis, the 
consultation cost model is based on (a) data gathered from three 
Service field offices (including a review of consultation records and 
interviews with field office staff); (b) telephone interviews with 
action agency staff (e.g., BLM, Forest Service, U.S. Army Corps of 
Engineers); and (c) telephone interviews with private consultants who 
perform section 7 work in support of permittees. In the case of Service 
and Federal agency contacts, we determined the typical level of effort 
required to complete several different types of consultations (i.e., 
hours or days of time), as well as the typical Government Service (GS) 
level of the staff member performing this work. In the case of private 
consultants, we interviewed representatives of firms in California and 
New England to determine the typical cost charged to clients for these 
efforts (e.g., biological survey, preparation of materials to support a 
Biological Assessment). The model is periodically updated with new 
information received in the course of data collection efforts 
supporting economic analyses and public comment on more recent critical 
habitat rules. In addition, the GS rates have been updated annually.
    Finally, even if the estimated administrative cost of section 7 
consultation were adjusted upwards to $87,500 per consultation, the sum 
of the upper bounds estimates for incremental administrative costs of 
consultation and biological assessment provided by the commenter, the 
total incremental impacts ($14 million) still do not approach total 
costs in excess of $100 million in a given year; therefore it is not 
considered a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act (see Unfunded Mandates Reform Act, below).
    (47) Comment: One commenter stated that the designation of critical 
habitat creates a regulatory assumption that snowmobiling activity will 
be further curtailed, thereby discouraging future investment that is 
needed to support continued viability and further growth of the 
industry. The commenter cited sworn testimony from two members of the 
Washington State Snowmobile Association (WASSA), which indicates that, 
during the brief period that the critical habitat designation was in 
place in Washington, the snowmobiling industry in Washington 
experienced measurable economic impacts. The commenter states that the 
screening analysis notes these concerns but fails to meaningfully 
address this potential impact.
    Our Response: Section 4 of the screening analysis discusses 
potential impacts on snowmobiling in Washington. In this section, we 
note that in 2001, Washington State University and WASSA conducted a 
study estimating the annual economic contribution of the entire 
snowmobiling industry in Washington at approximately $92.7 million 
(2001 dollars). In response to the 2009 critical habitat designation, 
WASSA estimated that snowmobiling accounted for nearly $8.5 million in 
direct expenditures and $4.1 million in indirect spending in the Methow 
Valley, an area adjacent to designated critical habitat. As discussed 
in Section 4, annual data on snowmobiling participation in Washington 
since 2009 are not readily available. As such, existing data are 
insufficient to quantify the proportion of the annual economic 
contribution of the snowmobiling industry that may be affected by the 
final rule. In addition, stakeholders contacted for the 2014 economic 
analysis do not anticipate the proposed rule to result in any 
significant changes to the management of snowmobiling activities in 
Washington State. We also contacted the Maine and Minnesota Service 
field offices to determine whether or how snowmobiling activities may 
have been affected as a result of snowmobiling trails proposed in 
critical habitat designated there since 2009. According to these 
discussions, no significant changes in snowmobiling activities have 
been observed since the 2009 designation of critical habitat in Maine 
and Minnesota or since the preparation of the Final Economic Analysis 
of the 2009 designation (IEc, Inc. 2008, entire).
    (48) Comment: One commenter stated that the screening analysis 
should include costs resulting from the uncertainty and risk imposed on 
developers of projects located in proposed critical habitat.
    Our Response: Section 4 of the screening analysis discusses the 
possible perceptional effects of the proposed rule on private property 
values. Specifically, this section discusses comments and concerns 
submitted in response to previous critical habitat rulemakings that the 
designation of critical habitat may affect the value of a private 
property due to the public perception that the Act may preclude, limit, 
or slow development, or somehow alter the highest and best use of the 
property. To assess the likelihood of such an outcome, the screening 
analysis examined data on development activities in areas proposed as 
critical habitat where the designation of critical habitat increases 
awareness of the presence of the species or the need for protection of 
its habitat. Based on the available data, we concluded that, due to low 
population densities, existing zoning laws, and the distance of 
proposed critical habitat areas from existing development or public 
infrastructure (e.g., public roads), the proposed critical habitat 
designation is

[[Page 54803]]

unlikely to result in measurable perceptional effects. The commenter 
did not provide data or information that could be used to revise the 
screening analysis to consider the potential for project developers to 
face greater uncertainty or risk due to the proposed rule.
    (49) Comment: Multiple commenters stated that the screening 
analysis omits the economic benefits of critical habitat designation. 
One commenter cited increased recreational use of forests as a result 
of decreased forest degradation as an example of these benefits. 
Another commenter states that this one-sided analysis has a distorting 
effect as readers of the analysis may interpret the results as 
indicating that lynx protection is ``costly'' in a net sense. The 
commenter stated that the screening analysis provides no discussion as 
to whether any efforts were expended to review the literature regarding 
the availability of estimates of the benefit of lynx habitat 
conservation.
    Our Response: As stated in Section 5 of the screening analysis, the 
primary intended benefit of critical habitat designation for the Canada 
lynx is to support the species' long-term conservation. Critical 
habitat designation may also generate ancillary benefits, which are 
defined as favorable impacts of a rulemaking that are typically 
unrelated, or secondary, to the statutory purpose of the rulemaking 
(U.S. Office of Management and Budget 2003, entire). Critical habitat 
aids in the conservation of species specifically by protecting the PCEs 
on which the species depends. To this end, management actions 
undertaken to conserve a species or habitat may have coincident, 
positive social welfare implications, such as increased recreational 
opportunities in a region or improved property values on nearby 
parcels.
    As described in Section 2 of the screening analysis, incremental 
changes in land management as a result of the designation of critical 
habitat are unlikely. This finding is based primarily on the fact that 
all areas proposed as critical habitat are considered occupied by the 
species and, therefore, receive baseline protection from the listing of 
the species under the Act. Thus, in this instance, critical habitat 
designation will likely add minimal conservation benefits to those 
already provided by baseline conservation efforts (e.g., efforts 
resulting from the listing of the species under the Act). For the same 
reason, it follows that the designation will likely add minimal 
ancillary benefits above those provided in the baseline.

Summary of Changes From Proposed Rule

    In our proposed rule, published September 26, 2013 (78 FR 59430), 
we proposed to designate 41,547 mi\2\ (107,607 km\2\) of critical 
habitat for the Canada lynx DPS in five units in six States. The 
proposed critical habitat represented 23,811 mi\2\ (61,669 km\2\; 57 
percent) on Federal lands, 4,129 mi\2\ (10,695 km\2\; 10 percent) on 
State lands, 13,050 mi\2\ (33,800 km\2\; 31 percent) on private lands, 
535 mi\2\ (1,385 km\2\; 1 percent) on Tribal lands, and 23 mi\2\ (58 
km\2\; 0.1 percent) on lands owned by local municipalities or in 
``other'' ownership.
    We received a number of site-specific comments related to critical 
habitat for the Canada lynx; completed our analysis of areas considered 
for exemption under section 4(a)(3)(B)(i) of the Act and for exclusion 
under section 4(b)(2) of the Act; reviewed the application of our 
criteria for identifying critical habitat across the range of the lynx 
DPS to refine our designation; and completed and carefully considered 
the final economic analysis of the designation as proposed. We fully 
considered all substantive comments from peer reviewers, States, 
Tribes, and the public on the proposed critical habitat rule and the 
associated economic and environmental analyses to develop this final 
critical habitat designation for the lynx DPS. This final rule 
incorporates changes to our proposed critical habitat based on the 
comments we received and to which we have responded in this document; 
reflects refined lynx habitat mapping provided by Federal and State 
partners in Idaho, Montana, and Wyoming; and considers completed final 
management and habitat conservation plans for lynx in Maine, Montana, 
and Washington.
    With this final rule, we designate 38,954 mi\2\ (100,891 km\2\) of 
critical habitat for the Canada lynx DPS in five units in six States. 
This final designation represents 23,402 mi\2\ (60,612 km\2\; 60 
percent) on Federal lands, 3,945 mi\2\ (10,217 km\2\; 10 percent) on 
State lands, 11,584 mi\2\ (30,003 km\2\; 30 percent) on private lands, 
and 23 mi\2\ (59 km\2\; 0.1 percent) on lands owned by local 
municipalities or in ``other'' ownership. Changes from the proposed 
rule are described below for each critical habitat unit.
    Unit 1--We have excluded all Tribal lands, about 96 mi\2\ (248 
km\2\), from critical habitat in this unit; this area is slightly 
larger than the area identified in the proposed rule (87 mi\2\ (225 
km\2\)) due to improved mapping data provided by the Tribes. We have 
corrected the list of Tribes whose lands occur within the final 
critical habitat boundary--only Passamaquoddy Tribe and Penobscot 
Indian Nation lands are within the boundary, and these lands are 
excluded from this final designation. We have also excluded about 943 
mi\2\ (2,443 km\2\) of private lands enrolled in the Natural Resources 
Conservation Service's Healthy Forest Reserve Program (HFRP). With this 
final rule, we designate 10,123 mi\2\ (26,218 km\2\) of critical 
habitat in this unit, which represents a 1,039-mi\2\ (2,691-km\2\; 9.3-
percent) reduction from the proposed designation. See Consideration of 
Impacts under Section 4(b)(2) of the Act, below, for details regarding 
lands excluded from designation in this unit.
    Unit 2--We have excluded about 78 mi\2\ (202 km\2\) of Tribal lands 
from critical habitat in this unit. With this final rule, we designate 
8,069 mi\2\ (20,899 km\2\) of critical habitat in this unit, which 
represents a 78-mi\2\ (202-km\2\, 1.0-percent) reduction from the 
proposed designation. See Consideration of Impacts under Section 
4(b)(2) of the Act, below, for details regarding lands excluded from 
designation in this unit.
    Unit 3--We have excluded from critical habitat in this unit about 
370 mi\2\ (958 km\2\) of Tribal lands as well as 271 mi\2\ (702 km\2\) 
of State lands managed in accordance with the MDNRC Forested State 
Trust Lands HCP. See Consideration of Impacts under Section 4(b)(2) of 
the Act, below, for details regarding lands excluded from designation 
in this unit. We have added about 61 mi\2\ (158 km\2\) of Federal land 
and 39 mi\2\ (101 km\2\) of private lands; and we have removed about 73 
mi\2\ (189 km\2\) of Federal land, 77 mi\2\ (189 km\2\) of private 
land, and 28 mi\2\ (73 km\2\) of State Trust land in the vicinity of 
Flathead National Forest in Montana due to improved lynx habitat 
mapping on this National Forest (U.S. Forest Service 2013a, entire)--a 
net reduction of 78 mi\2\ (202 km\2\) in this area. However, due to 
improved ownership data, the final designation represents a net 
increase of about 136 mi\2\ (352 km\2\) of Federal lands in this unit. 
With this final rule, we designate 9,783 mi\2\ (25,337 km\2\) of 
critical habitat in this unit, which represents a 691-mi\2\ (1,790-
km\2\; 6.6-percent) reduction from the proposed designation.
    Unit 4--We have excluded about 164 mi\2\ (425 km\2\) of State lands 
managed in accordance with the WDNR Lynx Habitat Management Plan. With 
this final rule, we designate 1,834 mi\2\ (4,751 km\2\) of critical 
habitat in this unit, which represents a 164-mi\2\ (425-km\2\, 8.2-
percent) reduction from the

[[Page 54804]]

proposed designation. See Consideration of Impacts under Section 
4(b)(2) of the Act, below, for details regarding lands excluded from 
designation in this unit.
    Unit 5--We have excluded 1.3 mi\2\ (3.4 km\2\) of State land 
managed in accordance with the MDNRC HCP. See Consideration of Impacts 
under Section 4(b)(2) of the Act, below, for details regarding lands 
excluded from designation in this unit. We have also removed about 543 
mi\2\ (1,406 km\2\) of Federal lands, 6 mi\2\ (16 km\2\) of State 
lands, and 71 mi\2\ (184 km\2\) of private lands on and adjacent to the 
Gallatin and Custer National Forests in Montana and BLM lands in 
Wyoming due to improved lynx habitat mapping and information from those 
agencies (U.S. Fish and Wildlife Service 2013a, entire; 2013b, entire; 
U.S. Forest Service 2013b, entire). With this final rule, we designate 
9,146 mi\2\ (23,687 km\2\) of critical habitat in this unit, which 
represents a 620-mi\2\ (1,606-km\2\; 6.4-percent) reduction from the 
proposed designation in this unit.
    Overall, this final designation represents a reduction on (1) 
Federal lands of 409 mi\2\ (1,059 km\2\; 1.7 percent); (2) State lands 
of 184 mi\2\ (477 km\2\; 4.5 percent); (3) private lands of 1,466 mi\2\ 
(3,797 km\2\; 11.2 percent), and (4) Tribal lands of 535 mi\2\ (1,386 
km\2\; 100 percent) from the area proposed for designation. With this 
final rule, we designate 38,954 mi\2\ (100,891 km\2\) of critical 
habitat for the Canada lynx DPS. This represents a 2,593-mi\2\ (6,716-
km\2\; 6.2-percent) reduction from the area identified in the September 
26, 2013, proposed rule (78 FR 59430).

Revised Definition of the Contiguous United States Distinct Population 
Segment of the Canada Lynx

    In the final listing rule for the Canada lynx, dated March 24, 
2000, the Service defined the contiguous United States DPS of lynx 
based on the international boundary with Canada and State boundaries of 
all 14 States in the historic and current range of lynx (65 FR 16052; 
74 FR 66937). With that definition, New Mexico was not included in the 
listed area because no lynx occurred there, historic records did not 
show lynx in the State, and it lacked lynx habitat.
    On December 17, 2009, the Service published a 12-month ``warranted 
but precluded'' finding in the Federal Register on a petition to expand 
the listing of the Canada lynx to include the State of New Mexico (74 
FR 66937). That finding was made in response to an August 8, 2007, 
petition from a coalition of environmental groups and a 2008 settlement 
agreement. In the finding, the Service acknowledged that lynx 
associated with a lynx population introduced into Colorado were 
``regularly and frequently'' crossing the State boundary between 
Colorado and New Mexico and that, when they did, they were no longer 
protected by the Act because New Mexico was not included in the listed 
DPS area. In 2011, as part of a settlement agreement reached in Multi-
District litigation, the Service agreed to amend the listing rule to 
include New Mexico so that lynx entering New Mexico from Colorado would 
no longer lose Federal protection under the Act upon crossing the State 
boundary.
    We have determined that lynx entering New Mexico, or any other 
States not currently included in the DPS as described in the 2000 final 
listing rule, should not lose their protection under the Act upon doing 
so. Therefore, with this final rule, we have rescinded the State-
boundary-based definition of the range of the contiguous United States 
lynx DPS and replace it in regulation with a definition of the DPS 
range that extends the Act's protections to lynx ``where found within 
the contiguous United States.'' This change ensures that all lynx in 
the contiguous United States receive protection under the Act 
regardless of where they occur, including (but not limited to) New 
Mexico.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological

[[Page 54805]]

features that provide for a species' life-history processes and are 
essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the 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 or 
recovery outline for the species (if one has been completed), articles 
in peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, other unpublished materials, or experts' opinions or 
personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the lynx DPS from studies of this species' habitat, ecology, and 
life history as described in the Background and Critical Habitat 
sections of the proposed rule to designate critical habitat published 
in the Federal Register on September 26, 2013 (78 FR 59430), and in the 
information presented below. Additional information on the habitat, 
ecology, and life history of the lynx DPS can be found in the documents 
listed above under Previous Federal Actions. We have determined that 
lynx require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior

Boreal Forest Landscapes

    Lynx populations respond to biotic and abiotic factors at different 
scales. At the regional scale, boreal forests, snow conditions, and 
competitors (especially bobcat) influence the species' range (Aubry et 
al. 2000, pp. 378-380; McKelvey et al. 2000a, pp. 242-253; Hoving et 
al., 2005 p. 749). At the landscape scale within each region, natural 
and human-caused disturbance processes (e.g., fire, wind, insect 
infestations, forest management, and development) may influence the 
spatial and temporal distribution of lynx populations by affecting the 
distribution of high-quality habitat for snowshoe hares (Agee 2000, pp. 
47-73; Ruediger et al. 2000, pp. 1-3, 2-2--2-6, 7-3). At the stand-
level (vegetation community) scale, the quality, quantity, and 
juxtaposition of habitats influence home range location and size, 
productivity, and survival (Aubry et al. 2000, pp. 380-390; Vashon et 
al. 2005a, pp. 9-11). At the smaller substand (within-stand) scale, the 
spatial distribution and abundance of prey and microclimate likely 
influence lynx movements, hunting behavior, and den and resting site 
locations (Organ et al. 2008, entire; Squires et al. 2008, entire; Moen 
and Burdett 2009, p. 16; Squires et al. 2010, pp. 1648, 1654-1657).
    Generally, the physical and biological features of critical habitat 
for lynx are found within relatively large landscapes (large enough to 
support multiple lynx home ranges) in what is broadly described as the 
boreal forest or cold temperate forest (Frelich and Reich 1995, p. 325; 
Agee 2000, pp. 43-46). That is, no individual small-scale area or site 
is likely to have all of the physical and biological features lynx need 
to survive. However, small lynx populations can persist in areas with 
relatively small areas of boreal forest habitat, as they do in the 
Garnet Mountains in western Montana and in the Wyoming Range in 
northwestern Wyoming (Squires 2014, pers. comm.). Lynx in the DPS use 
very large areas as home ranges that incorporate landscape

[[Page 54806]]

features that may be widely separated from one another to satisfy all 
of their life-history needs. In contrast to the extensive homogenous 
boreal forest found in the core of lynx range in northern Canada and 
Alaska, the southern terminus of the boreal forest type that extends 
into parts of the northern contiguous United States becomes 
transitional with other forest types--the Acadian forest in the 
Northeast (Seymour and Hunter 1992, pp. 1, 3), deciduous temperate 
forest in the Great Lakes, and subalpine forest in the west (Agee 2000, 
pp. 43-46). In this rule, we use the term ``boreal forest'' because it 
generally encompasses most of the vegetative descriptions of the 
transitional forest types that comprise lynx habitat in the contiguous 
United States (Agee 2000, pp. 40-41).
    Because of the transitional nature and patchy distribution of 
boreal forest in the contiguous United States, species that are 
specifically adapted to the classic boreal forest farther north, like 
the lynx, must contend with aspects of their habitat at the southern 
extent of the boreal forest for which they are not as well-adapted. For 
example, southern transitional boreal forests often have lower 
landscape snowshoe hare densities than boreal forests further north 
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 
1990, p. 849; Koehler and Aubry 1994, p. 84). This difference requires 
lynx in the contiguous United States to incorporate more land area into 
their home ranges than lynx do in the north to acquire adequate food 
(Mowat et al. 2000, pp. 265, 277-278). At some point, landscape hare 
densities become too low, making some areas incapable of supporting 
lynx. Larger home ranges likely require more energy output associated 
with greater foraging effort (Apps 2000, p. 364) and possibly increased 
exposure to predation and other mortality factors than lynx face in the 
core of their range. All of these factors likely lead to lower 
reproductive output and more tenuous conservation status in many parts 
of the DPS relative to those in Canada and Alaska (Buskirk et al. 
2000a, p. 95).
    Throughout the range of the DPS, lynx habitat occurs within boreal 
forest vegetation types that support relatively high landscape 
densities of snowshoe hares and have deep snow for extended periods. In 
eastern North America, lynx are strongly associated with areas of deep 
snowfall and large (40-mi\2\ (100-km\2\)) landscapes that have been 
heavily cut and treated with herbicides and have a high proportion of 
young regenerating forest (Hoving 2001, pp. 75, 143). Hoving et al. 
(2004, p. 291) concluded that the broad geographic distribution of lynx 
in eastern North America is most influenced by snowfall, but within 
areas of similarly deep snowfall, measures of forest succession become 
more important factors in determining lynx distribution. Second-order 
habitat selection in the Acadian forest region is influenced by hare 
density (a surrogate for early successional forest) and by mature 
conifer forest, despite its association with lower hare densities 
(Simons-Legaard et al. 2013b, pp. 573-574). In the Northern Rocky 
Mountains, lynx appear to be less tied to early successional forest 
stages; high lynx use and hare densities, especially in the critical 
winter season, occur in mature multistoried forest stands where conifer 
branches reach the snow surface and thereby provide hare forage 
(Squires et al. 2006a, p. 15; Squires et al. 2010, pp. 1653-1657; Berg 
et al. 2012, entire).
    Boreal forests used by lynx are generally cool, moist, and 
dominated by conifer tree species, primarily spruce and fir (Agee 2000, 
pp. 40-46; Aubry et al. 2000, pp. 378-382; Ruediger et al. 2000, pp. 4-
3, 4-8--4-11, 4-25--4-26, 4-29--4-30). Boreal forest landscapes used by 
lynx are heterogeneous mosaics of vegetative cover types and 
successional forest stages created by natural and human-caused 
disturbances (McKelvey et al. 2000c, pp. 426-434). In many places, 
periodic vegetation disturbances stimulate development of dense 
understory or early successional habitat for snowshoe hares (Ruediger 
et al. 2000, pp. 1-3--1-4, 7-4--7-5). In Maine, lynx are positively 
associated with landscapes that were clearcut 15 to 35 years previously 
(Hoving et al. 2004, p. 291; Simons-Legaard et al. 2013b, pp. 573-574), 
some of which were also treated with herbicides to promote conifer 
regeneration (Scott 2009, p. 7). In other places, such as the Northern 
Rocky Mountains and Greater Yellowstone Area, mature multistoried 
conifer forests as well as dense regenerating conifer stands provide 
foraging habitat for lynx (Squires et al. 2010, pp. 1648, 1653-1657; 
Berg et al. 2012, entire).
    The overall quality of the boreal forest landscape and the 
juxtaposition of stands of high-quality habitat within the landscape 
are important for both lynx and snowshoe hares in that both can 
influence connectivity or movements between habitat patches, 
availability of food and cover, and spatial structuring of populations 
or subpopulations (Hodges 2000, pp. 184-195; McKelvey et al. 2000c, pp. 
431-432; Walker 2005, p. 79). For example, lynx foraging habitat must 
be near denning habitat to allow females to adequately provision 
dependent kittens, especially when the kittens are relatively immobile 
(Moen et al. 2008a, p. 1507; Vashon et al. 2012, p. 16). In north-
central Washington, hare densities are higher in landscapes with an 
abundance of dense boreal forest interspersed with small patches of 
open habitat, in contrast to landscapes composed primarily of open 
forest interspersed with few patches containing dense vegetation 
(Walker 2005, p. 79; Lewis et al. 2011, p. 565). Similarly, in 
northwest Montana, connectivity of dense patches within the forest 
matrix benefits snowshoe hares (Ausband and Baty 2005, p. 209). In 
mountainous areas, lynx appear to prefer relatively gentle slopes (Apps 
2000, p. 361; McKelvey et al. 2000d, p. 333; von Kienast 2003, p. 21, 
Table 2; Maletzke 2004, pp. 17-18).
    Individual lynx require large areas of boreal forest landscapes to 
support their home ranges and to facilitate dispersal and exploratory 
travel. The size of lynx home ranges is strongly influenced by the 
quality of the habitat, particularly the abundance of snowshoe hares, 
in addition to other factors such as gender, age, season, and density 
of the lynx population (Aubry et al. 2000, pp. 382-385; Mowat et al. 
2000, pp. 276-280). Generally, females with kittens have the smallest 
home ranges while males have the largest home ranges (Moen et al. 2005, 
p. 11; Burdett et al. 2007, p. 463). Reported average home range sizes 
vary greatly from 12 mi\2\ (31 km\2\) for females and 26 mi\2\ (68 
km\2\) for males in Maine (Vashon et al. 2005a, p. 7), 8 mi\2\ (21 
km\2\) for females and 119 mi\2\ (307 km\2\) for males in Minnesota 
(Moen et al. 2005, p. 12), and 34 mi\2\ (88 km\2\) for females and 83 
mi\2\ (216 km\2\) for males in northwest Montana (Squires et al. 2004a, 
p. 13). Home range sizes of lynx in the population introduced into 
Colorado averaged 29 mi\2\ (75 km\2\) among reproductive females, 40 
mi\2\ (103 km\2\) among attending (reproductive) males, and 252 mi\2\ 
(654 km\2\) among all non-reproductive lynx (Shenk 2008, pp. 1, 10). 
Based on data presented in Shenk (2008, p. 10) and combining 
reproductive and non-reproductive lynx, home range estimates for lynx 
in Colorado averaged 181 mi\2\ (470 km\2\) for females and 106 mi\2\ 
(273 km\2\) for males.
Forest Type Associations in the Contiguous United States
Maine
    Stands of regenerating sapling (15-35 years old) spruce-fir forest 
that provide dense cover are preferred by both snowshoe hares and lynx 
in Maine

[[Page 54807]]

(Robinson 2006, pp. 26-36; Vashon et al. 2012, p. 15). Lynx are more 
likely to occur in large (40 mi\2\ (100 km\2\)) landscapes with 
regenerating forest, and less likely to occur in landscapes with very 
recent clear-cut or partial harvest (Hoving et al. 2004, pp. 291-292). 
Regenerating stands used by lynx generally develop after forest 
disturbance and are characterized by dense horizontal structure and 
high stem density within a meter of the ground. These habitats support 
high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison 
2005, pp. 716, 719; Vashon et al. 2005a, pp. 10-11). At the stand 
scale, lynx in northwestern Maine select older (11- to 26-year-old), 
tall (15 to 24 feet (ft) (4.6 to 7.3 meters (m)) regenerating clear-cut 
stands and older (11- to 21-year-old) partially harvested stands 
(Fuller et al. 2007, pp. 1980, 1983-1985). At the home range scale, 
lynx also select mature conifer forest (Simons-Legaard et al. 2013b, 
pp. 572-573). Lynx may use partial harvested and mature conifer stands 
associated with low hare densities because of increased ease of travel 
and prey access along the extensive edges with high-quality 
(regenerating clear-cut) habitats (Simons-Legaard et al. 2013b, p. 
574). Most of the high-quality hare and lynx habitat in northern Maine 
is the result of landscape-scale clear-cut timber harvesting in 
response to a spruce budworm outbreak in the 1970s-1980s (Simons 2009, 
pp. 64, 218). Some of these clearcuts were also treated with herbicides 
to promote conifer regeneration by suppressing deciduous tree species. 
Both the current amount of high-quality habitat and the lynx population 
in Maine are likely larger than occurred prior to European settlement, 
when a relatively smaller proportion of the forest was in an early 
successional stage (Lorimer 1977, entire; Vashon et al. 2012, pp. 45, 
56), likely because the natural disturbance regime resulted in smaller 
frequent disturbances and long intervals between larger disturbances.
Minnesota
    In Minnesota, lynx primarily occur in the Northern Superior Uplands 
Ecological Section of the Laurentian Mixed Forest Province. 
Historically, this area was dominated by red pine (Pinus resinosa) and 
white pine (P. strobus) mixed with aspen (Populus spp.), paper birch 
(Betula papyrifera), spruce, balsam fir (A. balsamifera) and jack pine 
(P. banksiana) (Minnesota Department of Natural Resources [Minnesota 
DNR] 2003, p. 2). Lynx habitats in Minnesota are associated with 
Lowland Conifer, Upland Conifer, Mixed Conifer, and Regenerating Forest 
cover types, with lynx selecting the latter because it provides 
snowshoe hare habitat (Moen et al. 2008a, p. 1511; Moen et al. 2008b, 
pp. 18-29). Moen et al. (2008b, pp. 23-25) reported that lynx also 
select for the edges between different cover types, presumably because 
they can more efficiently capture hares along the edges between stands 
than in the dense interior understory of regenerating stands.
Northern Rocky Mountains (Idaho, Montana, and Northwestern Wyoming)
    In the Northern Rocky Mountains, most lynx occurrences are 
associated with the Rocky Mountain Conifer Forest or Western Spruce-Fir 
Forest vegetative class (K[uuml]chler 1964, p. 4; McKelvey et al. 
2000a, p. 246) and most occur above 4,101 ft (1,250 m) elevation (Aubry 
et al. 2000, pp. 378-380; McKelvey et al. 2000a, pp. 243-245). The 
dominant vegetation that constitutes lynx habitat in these areas is 
subalpine fir (A. lasiocarpa), Engelmann spruce, and lodgepole pine 
(Aubry et al. 2000, p. 379; Ruediger et al. 2000, pp. 4-8--4-10). 
Within the boreal forest landscape, lodgepole pine is seral to (i.e., 
is an earlier successional stage) subalpine fir and Engelmann spruce, 
which are climax forest habitat types. In winter, lynx preferentially 
use mature multistoried stands, predominantly spruce-fir, with dense 
horizontal cover and avoid clearcuts and large forest openings (Squires 
et al. 2010, pp. 1648, 1653-1656). In summer, lynx also select young 
stands with dense spruce-fir saplings and do not appear to avoid 
openings (Squires et al. 2010, pp. 1648, 1654-1655). Dry forest types 
(e.g., ponderosa pine (Pinus ponderosa), dry Douglas-fir (Pseudotsuga 
menziesii)) do not provide lynx habitat (Berg 2009, p. 20; Squires et 
al. 2010, p. 1655).
Washington
    In the North Cascades in Washington, most lynx occur above 4,101 ft 
(1,250 m) (McKelvey et al. 2000a, p. 243, 2000d, p. 321; von Kienast 
2003, p. 28, Table 2; Maletzke 2004, p. 17). In this area, lynx select 
Engelmann spruce--subalpine fir forest cover types in winter (von 
Kienast 2003, p. 28; Maletzke 2004, pp. 16-17; Koehler et al. 2008, p. 
1518). As in the Northern Rockies, lodgepole pine is a dominant tree 
species in the earlier successional stages of these climax cover types. 
Seral (intermediate stage of ecological succession) lodgepole stands 
contain dense understories and, therefore, receive high use by snowshoe 
hares and lynx (Koehler 1990, pp. 847-848; McKelvey et al. 2000d, pp. 
332-335). Lynx in this area avoid Douglas-fir and ponderosa pine 
forests, openings, recent burns, open canopy and understory cover, and 
steep slopes (Koehler et al. 2008, p. 1518).
Southern Rocky Mountains (Western Colorado, Northern New Mexico, 
Southern Wyoming)
    Lynx in the population introduced into Colorado use high-elevation 
(generally above 9,500 ft (2,900 m)) mature Engelmann spruce/subalpine 
fir, mixed spruce/fir/aspen, and riparian/mixed riparian habitats in 
Subalpine and Upper Montane forest zones, and avoid lower elevation 
Montane forests of Douglas fir and ponderosa pine (Shenk 2006, p. 10; 
Shenk 2008, pp. 1-2, 12, 15; Devineau et al. 2010, p. 525; Ivan 2011a, 
pp. 21, 27). However, it remains uncertain whether these habitats can 
sustain a viable lynx population over time (Shenk 2008, p. 16; Shenk 
2010, pp. 2, 5-6, 11). Lynx from the population introduced into 
Colorado also have wandered into mountainous areas of northern New 
Mexico that contain relatively small and fragmented areas of similar 
high-elevation spruce/fir and cold mixed-conifer habitats (U.S. Forest 
Service 2009, pp. 5-10). There is no evidence that lynx occupied these 
areas historically, no reproduction has been documented among lynx from 
the population introduced into Colorado that have traveled into 
northern New Mexico, and habitats in New Mexico are thought to be 
incapable of supporting a self-sustaining lynx population (U.S. Forest 
Service 2009, pp. 2, 10, 16-17).
    Based on the information above, we identify boreal forest 
landscapes that support relatively high densities of snowshoe hares, 
have deep snow for extended periods, and are large enough to support 
multiple lynx home ranges over time to contain the physical and 
biological features needed to support and maintain lynx populations 
over time and which, therefore, are essential for the conservation of 
the lynx DPS.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

Food (Snowshoe Hares)

    Snowshoe hare density is the most important factor explaining the 
persistence of lynx populations (Steury and Murray 2004, p. 136). 
Snowshoe hare density differences among areas of boreal forest in the 
contiguous United States are also thought to explain many lynx 
distribution patterns historically and at present. While seemingly all 
of the physical aspects usually associated

[[Page 54808]]

with lynx habitat may be present in a landscape, if snowshoe hare 
densities are inadequate to support reproduction, recruitment, and 
survival over time, lynx populations will not persist. Minimum snowshoe 
hare densities necessary to maintain lynx populations across the range 
of the DPS have not been determined, although Ruggiero et al. (2000, 
pp. 446-447) suggested that at least 0.2 hares per ac (0.5 hares per 
ha) may be necessary. Hare densities in areas known to support lynx 
home ranges in the contiguous United States are 0.26 hares per ac (0.64 
hares per ha) in northeast Minnesota (Moen et al. 2012, p. 352) and 
0.30 hares per ac (0.74 hares per ha) in northern Maine (Simons-Legaard 
et al. 2013b, p. 574). Hare density in Voyageurs National Park in 
northern Minnesota was estimated at 0.14 hares per ac (0.35 hares per 
ha) and does not support resident breeding lynx (Moen et al. 2012, pp. 
352-354). In northern Maine, landscapes with hare densities less than 
0.2 hares per ac (0.5 hares per ha) are not occupied by lynx (Simons-
Legaard et al. 2013b, pp. 567, 575).
    Steury and Murray (2004, entire) modeled lynx and snowshoe hare 
populations and predicted that a minimum of 0.4 to 0.7 hares per ac 
(1.1 to 1.8 hares per ha) would be required for persistence of a 
reintroduced lynx population in the portion of the lynx range in the 
contiguous United States. In areas used by the introduced lynx 
population in west-central Colorado, Zahratka and Shenk (2008, pp. 906, 
910) reported hare densities ranging from 0.03 to 0.5 hares per ac 
(0.08 to 1.32 hares per ha) in mature Engelmann spruce-subalpine fir 
stands and from 0.02 to 0.14 hares per ac (0.06 to 0.34 hares per ha) 
in mature lodgepole pine stands. In ``purportedly good'' hare habitat 
also in west-central Colorado in the area used by the introduced 
population, Ivan (2011b, pp. iv-v, 71, 92) estimated summer hare 
densities of 0.08 to 0.27 hares per ac (0.2 to 0.66 hares per ha) in 
stands of ``small'' lodgepole, 0.004 to 0.01 hares per ac (0.01 to 0.03 
hares per ha) in ``medium'' lodgepole, and 0.004 to 0.1 hares per ac 
(0.01 to 0.26 hares per ha) in spruce-fir stands.
    The boreal forest landscape is naturally dynamic and usually 
contains a mosaic of forest stand successional stages. In some areas, 
particularly in the eastern portion of the DPS, stands that support 
high densities of snowshoe hares are of a young successional stage and 
are in a constant state of transition to other more mature stages. 
Conversely, if the vegetation potential (or climax forest type) of a 
particular forest stand is conducive to supporting abundant snowshoe 
hares, it likely will also go through successional stages that are of 
lesser value as lynx foraging habitat (i.e., times when snowshoe hare 
abundance is low) or lynx denning habitat (Agee 2000, pp. 62-72; 
Buskirk et al. 2000b, pp. 403-408) as part of a natural forest 
succession process. For example, a boreal forest stand where there has 
been recent disturbance, such as fire or timber harvest, resulting in 
little or no understory structure will support fewer snowshoe hares 
and, therefore, lower quality lynx foraging habitat. However, that 
temporarily low-quality stand would regenerate into higher quality 
snowshoe hare (lynx foraging) habitat within 10 to 25 years, depending 
on local conditions (Ruediger et al. 2000, pp. 1-3--1-4, 2-2--2-5). The 
continuation of this naturally dynamic pattern of succession exhibited 
in boreal forests is crucial for lynx survival due to their dependence 
on intermediate successional stages in many areas. In places where lynx 
are dependent on mature forest stages, forest stand turnover still 
occurs, but on a longer time scale requiring the ability to recruit new 
mature forest stands as others are lost to fire, insect infestation, or 
human activities.
    Forest management techniques that thin the understory may reduce 
habitat quality for hares and, thus, for lynx (Ruediger et al. 2000, 
pp. 2-4--3-2; Hoving et al. 2004, pp. 291-292; Homyack et al. 2007, 
entire), at least temporarily (Griffin and Mills 2007, entire). Stands 
may continue to provide good snowshoe hare habitat for many years until 
woody stems in the understory become too sparse, as a result of 
undisturbed forest succession or management (e.g., clearcutting or 
thinning) (Griffin and Mills 2007, entire). Thus, if the vegetation 
potential of the stand is appropriate, a stand that is not currently in 
a condition that supports abundant snowshoe hares for lynx foraging or 
coarse woody debris for den sites would improve as habitat for snowshoe 
hares (and thus lynx foraging) with time. Therefore, we consider lynx 
habitat to include forested areas with the potential, through natural 
succession, to produce high-quality snowshoe hare habitat, regardless 
of their current stage of forest succession.
    Snowshoe hares feed on conifers, deciduous trees, and shrubs 
(Hodges 2000, pp. 181-183), and they prefer boreal forest stands that 
have a dense horizontal understory to provide food, as well as cover 
and security from predators. Snowshoe hare density is correlated to 
understory cover between about 3 and 10 ft (1 to 3 m) above the ground 
or snow level (Hodges 2000, p. 184). Snowshoe hares most heavily use 
stands with shrubs, stands that are densely stocked, and stands at ages 
where branches provide more lateral cover (Hodges 2000, p. 184; Lewis 
et al. 2011, pp. 561, 564-565). Generally, earlier successional forest 
stages provide a greater density of horizontal understory and support 
more snowshoe hares (Buehler and Keith 1982, p. 24; Wolfe et al. 1982, 
pp. 668-669; Koehler 1990, pp. 847-848; Hodges 2000, pp. 184-191; 
Griffin 2004, pp. 84-88). However, snowshoe hares can be abundant in 
mature forests with dense understories, particularly in the western 
part of the DPS range (Griffin 2004, pp. 53-54, 88; Hodges et al. 2009, 
p. 876; Squires et al. 2010, pp. 1648, 1653-1657; Berg et al. 2012, pp. 
1484-1488), and such mature forests may be a source of hares for other 
adjacent forest types (Griffin and Mills 2009, pp. 1492, 1495-1496).
    In Maine, snowshoe hare densities are highest in regenerating 
softwood (spruce and fir) and mixed-wood stands with high conifer stem 
densities (Homyack 2003, p. 195; Fuller and Harrison 2005, pp. 716, 
719; Robinson 2006, p. 69). However, when exploiting high-density hare 
habitats, lynx focus foraging efforts in stands with intermediate hare 
densities and structural complexity that occurred at the edges of the 
highest density habitat, suggesting that lynx balance between hare 
abundance and accessibility (Fuller and Harrison 2010, pp. 1276-1277; 
Simons-Legaard et al. 2013b, p. 574). In northeastern Minnesota, lynx 
use areas with relatively higher proportions of coniferous forest, 
young (10- to 30-year-old) regenerating forest, and shrubby grassland, 
and these habitats support the highest hare densities (McCann and Moen 
2011, pp. 509, 515).
    In montane and subalpine forests in northwest Montana, the highest 
snowshoe hare densities in summer are generally in younger stands with 
dense forest structure, but winter hare densities are as high or higher 
in mature stands with dense understory forest structure (Griffin 2004, 
p. 53). In Montana in winter, hare and lynx use multistoried stands, 
often in older-age classes, where the tree boughs touch the snow 
surface but where the stem density is low (Squires et al. 2006a, p. 15; 
Griffin and Mills 2009, pp. 1492, 1495-1496; Squires et al. 2010, pp. 
1648, 1653-1656). In the North Cascades of north-central Washington, 
snowshoe hare density was highest in 20-year-old lodgepole pine stands 
where the average density of trees and shrubs was 15,840 stems per ha 
(6,415 stems

[[Page 54809]]

per ac) (Koehler 1990, pp. 847-848), and hare density was associated 
with large shrubs and saplings within a stand (Lewis et al. 2011, pp. 
561, 564-565). In western Wyoming, late-seral multistoried forests 
support a greater abundance of snowshoe hares than regenerating even-
aged forests (Berg et al. 2012, p. 1). Similarly, in Yellowstone 
National Park, where hares were rare and patchily distributed, hare 
presence and relative abundance are linked to mature forest stands 
(Hodges et al. 2009, p. 876). In western Colorado areas used by the 
introduced lynx population, Zahratka and Shenk (2008, pp. 906, 910) 
estimated higher hare densities in spruce-fir stands than in lodgepole 
pine, but Ivan (2011b, pp. iv, 71, 92) estimated hare densities as 
highest in stands of small lodgepole pine, intermediate in spruce-fir 
stands, and lowest in stands of medium lodgepole pine.
    Habitats supporting abundant snowshoe hares must be present in a 
sufficient proportion (though not necessarily the majority) of the 
landscape to support a viable lynx population. Landscapes with more 
contiguous hare habitat, or where patches of high-quality habitat occur 
in a matrix with patches of similar quality, support more hares than 
fragmented habitats or those in which patches of hare habitat occur 
within a matrix of poor-quality habitat (Lewis et al. 2011, p. 565). 
Broad-scale snowshoe hare density estimates are not available for all 
of the areas being designated as lynx critical habitat. Available 
snowshoe hare density estimates are helpful in determining where 
snowshoe hares exist, but each estimate is specific to both a location 
and a point in time. Due to intrinsic, rapid fluctuations often seen in 
snowshoe hare populations, density estimates cannot be considered 
definitive for any particular area. If enough data were gathered for a 
specific area over several years, these data could be used to calculate 
an average density (with margins of error included). Lynx do not occur 
everywhere within the range of snowshoe hares in the contiguous United 
States (Bittner and Rongstad 1982, p. 146; McCord and Cardoza 1982, p. 
729). This may be due to inadequate abundance, density, or spatial 
distribution of hares in some places, to the absence of snow conditions 
that would allow lynx to express a competitive advantage over other 
hare predators, or to a combination of these factors.
    Based on the information above, we identify relatively high 
densities of snowshoe hares broadly and consistently distributed across 
boreal forest landscapes to be a physical or biological feature needed 
to support and maintain lynx populations over time and which, 
therefore, is essential to the conservation of the lynx DPS.

Snow Conditions (Other Physiological Requirements)

    Snow conditions also determine the distribution of lynx and 
snowshoe hares. Deep, fluffy snow conditions likely restrict potential 
lynx competitors such as bobcat or coyote from effectively encroaching 
on or hunting hares in winter lynx habitat. In addition to snow depth, 
other snow properties, including surface hardness or sinking depth, 
also influence lynx foraging success and, ultimately may be important 
factors in the spatial, ecological, and genetic structuring of the 
species (Stenseth et al. 2004, entire). Gonzalez et al. (2007, pp. 4, 
7) compared 496 lynx locations with snow cover over the period 1966-
2005 and concluded that lynx require 4 months (December through March) 
of continuous winter snow coverage.
    In eastern North America, snowfall is the strongest predictor of 
lynx occurrence at a regional scale (Hoving et al. 2005, p. 746, Table 
5), and lynx in the northeastern United States are most likely to occur 
in areas with a 10-year mean annual snowfall greater than 105 in (268 
cm) (Hoving 2001, p. 75; Hoving et al. 2005, p. 749). The Northern 
Superior Uplands section of northeast Minnesota, which supports a 
resident lynx population, receives more of its precipitation as snow 
than any other part of the State, and has the longest period of snow 
cover (Minnesota DNR 2003, p. 2). Average annual snowfall from 1971 to 
2000 in this area was generally greater than 55 in (149 cm) (University 
of Minnesota 2013).
    Information on average snowfall or snow depths in mountainous areas 
such as the Cascade and Northern Rocky Mountains is limited because few 
weather stations in these regions have measured snow fall or snow depth 
over time. An important consideration in mountainous areas is that 
topography strongly influences local snow conditions. For example, in 
the Cascades, annual snowfall averaged 121 in (307 cm) at Mazama, WA 
(elevation 2,106 ft (642 m)), and 15 in (38 cm) at Omak, WA (elevation 
1,299 ft (396 m)) (Western Regional Climate Center 2013). In areas of 
western Montana that support lynx populations, annual snowfall averaged 
90 in (229 cm) in Troy (elevation 1,950 ft (594 m)) and 120 in (305 cm) 
at Seeley Lake (elevation 4,200 ft (1,280 m)) (Western Regional Climate 
Center 2013).
    Based on the information above, we identify winter conditions that 
provide and maintain deep, fluffy snow for extended periods in boreal 
forest landscapes to be a physical or biological feature needed to 
support and maintain lynx populations over time and which, therefore, 
are essential to the conservation of the lynx DPS.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

Denning Habitat

    Lynx den sites are found in mature and younger boreal forest stands 
that have a large amount of cover and downed, large woody debris. The 
structural components of lynx den sites are common features in managed 
(logged) and unmanaged (e.g., insect-damaged, wind-throw) stands. 
Downed trees provide excellent cover for den sites and kittens and 
often are associated with dense woody stem growth.
    In northern Maine, 12 of 26 natal dens occurred in conifer-
dominated sapling stands, and 5 dens were found in mature or mixed 
multistoried forest stands dominated by conifers (Organ et al. 2008, p. 
1515). Modeling sub-stand characteristics of these 26 dens, the authors 
determined that 2 variables, tip-up mounds of blown-down trees and 
visual obscurity at 16 ft (5 m) from the den, were most useful for 
predicting lynx den-site selection in managed forests (Organ et al. 
2008, p. 1514). Lynx essentially select dense cover in a cover-rich 
area for denning, with blowdown, deadfalls, and root wads providing 
denning habitat. Coarse woody debris alone is not a useful predictor of 
lynx den-site selection, despite its abundance, and denning habitat is 
not considered limiting in northern Maine (Organ et al. 2008, p. 1516). 
Den sites in Maine often occur at the interface of two stands of 
different ages or in dense regenerating conifer stands, suggesting that 
females select den sites near prey sources to minimize time spent away 
from kittens while foraging (Vashon et al. 2012, p. 16).
    In northern Minnesota, structural components of forests such as 
blowdown and deadfalls appear to be more important than forest cover 
type in determining lynx denning habitat (Interagency Lynx Biology Team 
2013, p. 46). Most den sites in Minnesota are found in blowdown and are 
associated with small patches of uplands surrounded by low-lying 
wetland areas (Moen and Burdett 2009, pp. 5, 11). Although lowland 
conifer cover types appear to provide the forest structure used most 
often for denning in northern

[[Page 54810]]

Minnesota (Moen et al. 2008a, p. 1510), other forest cover types are 
used if they contained recent blowdowns (Moen and Burdett 2009, p. 16). 
Very dense horizontal cover in the immediate vicinity of the den site 
also appears to be a determinant (Moen and Burdett 2009, p. 16). Female 
lynx forage within approximately 1.2-1.8 mi (2-3 km) of den sites when 
kittens are at the den, and the landscape composition within the 
foraging radius around a den site contains more lowland conifer, upland 
conifer, and regenerating forest than do home ranges (Moen et al. 
2008a, p. 1507). Denning habitat does not appear to be limiting in 
northern Minnesota (Moen and Burdett 2009, p. 16).
    In northwestern Montana, lynx generally den in mature spruce-fir 
forests among downed logs or root wads of wind-thrown trees in areas 
with abundant coarse woody debris and dense understories with high 
horizontal cover in the immediate areas around dens (Squires et al. 
2004a, Table 3; Squires et al. 2008, pp. 1497, 1501-1505). Few dens are 
located in young regenerating or thinned stands with discontinuous 
canopies (Squires et al. 2008, p. 1497). Many dens have northeasterly 
aspects and are farther from forest edges than random expectation 
(Squires et al. 2008, p. 1497).
    In the North Cascades, Washington, lynx den in mature (older than 
250 years) stands with an overstory of Engelmann spruce, subalpine fir, 
and lodgepole pine with an abundance of downed woody debris (Koehler 
1990, p. 847). In that study, all detected den sites occurred on north-
northeast aspects (Koehler 1990, p. 847).
    Lynx in the population introduced into Colorado den at higher 
elevations and on steeper slopes compared to general use areas, with 
den sites tending to have northerly aspects and dense understories of 
coarse woody debris (Shenk 2008, p. 2).
    Den site availability, although not thought to be limiting for lynx 
populations in the DPS (Moen et al. 2008a, p. 1512; Organ et al. 2008, 
pp. 1514, 1516-1517; Squires et al. 2008, p. 1505), is an essential 
component of the boreal forest landscapes that lynx need to satisfy a 
key life-history process (reproduction). Therefore, based on the 
information above, we identify denning habitat to be a physical or 
biological feature needed to support and maintain lynx populations over 
time and which, therefore, is essential to the conservation of the lynx 
DPS.
Habitats Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distributions of the Species

Climate Change

    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). In 2014, the IPCC released its Fifth Assessment Report, which 
represents the current scientific consensus on global and regional 
climate change and the best scientific data available in this rapidly 
changing field. The Fifth Assessment Report largely reaffirms the 
conclusions of previous reports that the global climate is warming at 
an accelerating rate and that this warming is largely the result of 
human activities and the associated release of carbon dioxide and other 
greenhouse gases into the atmosphere (IPCC 2014a, entire).
    ``Climate'' refers to the mean and variability of different types 
of weather conditions over time, with 30 years being a typical period 
for such measurements, although shorter or longer periods also may be 
used (IPCC 2007a, p. 78). The term ``climate change'' thus refers to a 
change in the mean or variability of one or more measures of climate 
(e.g., temperature or precipitation) that persists for an extended 
period, typically decades or longer, whether the change is due to 
natural variability, human activity, or both (IPCC 2007a, p. 78). 
Various types of changes in climate can have direct or indirect effects 
on species. These effects may be positive, neutral, or negative and 
they may change over time, depending on the species and other relevant 
considerations, such as the effects of interactions of climate with 
other variables (e.g., habitat fragmentation) (IPCC 2007a, pp. 8-14, 
18-19). In our analyses, we weigh relevant information, including 
uncertainty, in our consideration of various aspects of climate change.
    The IPCC's Fifth Assessment Report concludes that the strongest and 
most comprehensive evidence of the impacts of climate change is in 
natural systems, where many species have responded by shifting their 
geographic ranges, seasonal activities, migration patterns, abundances, 
and species interactions (IPCC 2014a, p. 4). The report also concludes 
that projected climate change during and beyond the 21st Century will 
increase extinction risk for many terrestrial and freshwater species 
(IPCC 2014a, pp. 14-15). In North America, observed impacts 
attributable to climate change that may affect lynx habitats and 
distribution include upslope and northward shifts in species 
distributions across multiple taxa, and increased wildfire activity, 
fire frequency and duration in boreal and subarctic conifer forests of 
Canada and the western United States (IPCC 2014a, p. 31).
    Previous IPCC assessments concluded that temperatures across the 
globe have increased by about 1.8 [deg]Fahrenheit (F) (1 [deg]Celsius 
(C)) over the last century (IPCC 2001, p. 7). The IPCC projection for 
eastern and western North America within the range of the lynx DPS is 
climate warming of 1.8 [deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by 
the year 2050 (IPCC 2007b, p. 889). The range of warming projected over 
the next century runs from 3.6 [deg]F (2 [deg]C) to 10.8 [deg]F (6 
[deg]C) for North America, with warming higher than this average in 
areas that are inland, northerly, or mountainous. The IPCC concludes 
that continued warming in North America, with lower snow accumulation 
and earlier spring snowmelt, is very likely (IPCC 2007b, p. 887). 
Climate history and projections from regional climate models for 
regions within the lynx DPS corroborate global models indicating that 
both eastern and western North America, including all portions of the 
lynx DPS, have warmed in the last century and are likely to warm 1.8 
[deg]F (1 [deg]C) to 5.4 [deg]F (3 [deg]C) by the year 2050 (IPCC 
2007b, p. 889). For example, in the Northern Rocky Mountains at Glacier 
National Park, mean summer temperatures have increased 3.0 [deg]F (1.66 
[deg]C) between 1910 and 1980 (Hall and Fagre 2003, pp. 134-137) 
resulting in lower snowpack, earlier spring melt, and distributional 
shifts in vegetation (Hall and Fagre 2003, pp. 138-139; Fagre 2005, pp. 
4-9). These changes are predicted to continue and accelerate under 
future climate scenarios (Hall and Fagre 2003, Fig. 7). An analysis of 
potential snow cover under a range of IPCC future climate scenarios and 
modeling of vegetation using a dynamic vegetation model indicates that 
potential lynx habitat could decrease by as much as two-thirds in the 
contiguous United States by the end of this century (Gonzalez et al. 
2007, pp. 4, 7-8, 10, 13-14).
    Across their worldwide distribution, lynx are dependent on deep 
snow that persists for long periods of time. Warmer winter temperatures 
are reducing snow pack in all portions of the lynx DPS through a 
combination of a higher proportion of precipitation falling as rain and 
higher rates of snowmelt during winter (Hamlet and Lettenmaier 1999, p. 
1609; Brown 2000, p. 2347; Hoving 2001, pp. 73-75; Mote

[[Page 54811]]

2003, p. 3-1; Christensen et al. 2004, p. 347; Knowles et al. 2006, pp. 
4548-4549). This trend is expected to continue with future warming 
(Hamlet and Lettenmaier 1999, p. 1611; Christensen et al. 2004, p. 347; 
Mote et al. 2005, p. 48; IPCC 2007b, p. 850). The IPCC (2007b, p. 850) 
concludes that ``snow season length and snow depth are very likely to 
decrease in most of North America except in the northernmost part of 
Canada where maximum snow depth is likely to increase.'' Shifts in the 
timing of the initiation of spring runoff toward earlier dates in 
western North America are also well documented (Hamlet and Lettenmaier 
1999, p. 1609; Brown 2000, p. 2347; Cayan et al. 2001, pp. 409-410; 
Christensen et al. 2004, p. 347; Mote et al. 2005, p. 41; Knowles et 
al. 2006, p. 4554). In addition, a feedback effect causes the loss of 
snow cover due to the reflective nature of snow and the relative heat-
absorbing properties of non-snow-covered ground. This feedback effect 
leads to the highest magnitude of warming occurring at the interface of 
snow-covered and exposed areas, increasing the rate at which melting 
occurs in spring (Groisman et al. 1994a, pp. 1637-1648; Groisman et al. 
1994b, pp. 198-200). This effect has led to the average date of peak 
snowmelt to shift 3 weeks earlier in spring in the Intermountain West 
(Fagre 2005, p. 4).
    Snow accumulation and duration are expected to decline generally in 
the geographic areas that contain the central and eastern portion of 
the lynx DPS (IPCC 2007c, p. 891; Burns et al. 2009, p. 31). Due to the 
importance to lynx of prolonged periods of deep fluffy snow, current 
habitats that lose this feature would decline in value for lynx (Hoving 
2001, p. 73; Carroll 2007, p. 1092; Gonzalez et al. 2007, entire). 
Reduced snow depth and duration may reduce lynx's competitive advantage 
over bobcats, which have similar ecology to lynx but are not as well-
adapted to hunting hares in deep fluffy snow (Hoving 2001, pp. 23-24; 
Carroll 2007, p. 1102; Interagency Lynx Biology Team 2013, pp. 69, 71).
    Changes in temperature and rainfall patterns are expected to shift 
the distribution of ecosystems northward and up mountain slopes 
(McDonald and Brown 1992, pp. 411-412; Danby and Hik 2007, pp. 358-359; 
IPCC 2007c, pp. 230, 232). As climate changes over a landscape, the 
ecosystems that support lynx are likely to shift, tracking the change 
of temperature, but with a time lag depending on the ability of 
individual plant and animal species to migrate (McDonald and Brown 
1992, pp. 413-414; Hall and Fagre 2003, p. 138; Peterson 2003, p. 652). 
In the contiguous United States, researchers expect that lynx in 
mountainous habitat will, to some extent, track climate changes by 
using higher elevations on mountain slopes, assuming that vegetation 
communities supportive of lynx and hare habitats also move upslope 
(Gonzalez et al. 2007, p. 7).

Future of Lynx Habitat

    In 2003, we determined that climate change was not a threat to lynx 
within the contiguous United States DPS because the best available 
science we had at that time (Hoving 2001) was too uncertain in nature 
(68 FR 40083). Since that time, new information on regional climate 
changes and potential effects to lynx habitat has been developed (e.g., 
Knowles et al. 2006, pp. 4545-4559; Carroll 2007, pp. 1098-1102; Danby 
and Hik 2007, pp. 358-359; Gonzalez et al. 2007, entire; Iverson et al. 
2008, pp. 390-400; Beckage et al. 2008, entire; Burns et al. 2009, p. 
31; Johnston et al. 2012, pp. 6-13), and much of this new information 
suggests that climate change is likely to be a significant issue of 
concern for the future conservation of the lynx DPS. These studies 
predict lynx and hare habitats--boreal spruce-fir and subalpine 
forests--and, therefore, lynx distribution, are likely to shift upward 
in elevation within its currently occupied range and recede northward 
as temperatures increase (Gonzalez et al. 2007, pp. 7, 13-14, 19; 
Beckage et al. 2008, entire; Jacobson et al. 2009, pp. 26-27, 30-31; 
Vashon et al. 2012, pp. 60, 64; Interagency Lynx Biology Team 2013, p. 
69). The boreal spruce-fir forests that provide habitat for lynx and 
snowshoe hares is thought to be limited by summer temperatures and 
drought (Iverson and Prasad 2001, pp. 192-196) and, under a suite of 
emissions and climate change scenarios, is projected to diminish 
dramatically or disappear from much of the eastern United States 
(Iverson and Prasad 2001, p. 196; Iverson et al. 2008, pp. 390-400).
    Climate modeling suggests that lynx habitat and populations are 
anticipated to decline accordingly (Carroll 2007, pp. 1098-1102) and 
may disappear completely from parts of the range of the DPS by the end 
of this century (Johnston et al. 2012, pp. 6-13). Climate change is 
expected to substantially reduce the amount and quality of lynx habitat 
in the contiguous United States, with patches of high-quality boreal 
and subalpine forest habitat becoming smaller, more fragmented, and 
more isolated (Carroll 2007, pp. 1099-1100; Johnston et al. 2012, p. 
11). Remaining lynx populations would likely be smaller than at present 
and, because of small population size and increased isolation, 
populations would likely be more vulnerable to stochastic environmental 
and demographic events (Carroll 2007, pp. 1100-1103).
    Aside from predicted elevational and latitudinal shifts in areas 
currently occupied by lynx, we are aware of no models that predict 
specific areas not currently of value for lynx that will become so as a 
result of climate-induced changes (e.g., Johnston et al. 2012, p. 11). 
Therefore, at this time, we find it appropriate to designate critical 
habitat for the lynx only in areas occupied by the DPS that currently 
contain the physical and biological features essential to the 
conservation of the lynx. Although it is not within our authority to 
designate critical habitat in Canada (in the event that the range of 
lynx recedes northward out of the contiguous United States), the 
revised critical habitat units in this final rule include, to the 
extent practicable and reasonable based on habitat potential, higher 
elevation habitats within the range of the DPS that would facilitate 
long-term lynx adaptation to an elevational shift in habitat should one 
occur. As climate change scenarios and ecosystem responses become more 
regionally certain, revisions to critical habitat may be necessary to 
accommodate shifts in the range of the essential physical and 
biological features and any corresponding shift in the range of lynx in 
the contiguous United States.

Primary Constituent Elements for Canada Lynx

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of lynx in areas occupied at the time of listing, focusing 
on the features' primary constituent elements (PCEs). Primary 
constituent elements are those specific elements of the physical or 
biological features that provide for a species' life-history processes 
and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine, as we did in the 2009 final 
critical habitat rule and in the 2013 proposed rule, that the PCE 
specific to lynx in the contiguous United States is:
    (1) Boreal forest landscapes supporting a mosaic of differing 
successional forest stages and containing:
    (a) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of

[[Page 54812]]

young trees, shrubs or overhanging boughs that protrude above the snow, 
and mature multistoried stands with conifer boughs touching the snow 
surface;
    (b) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time;
    (c) Sites for denning that have abundant coarse woody debris, such 
as downed trees and root wads; and
    (d) Matrix habitat (e.g., hardwood forest, dry forest, non-forest, 
or other habitat types that do not support snowshoe hares) that occurs 
between patches of boreal forest in close juxtaposition (at the scale 
of a lynx home range) such that lynx are likely to travel through such 
habitat while accessing patches of boreal forest within a home range.
    With this final designation of critical habitat, we have identified 
the physical or biological features essential to the conservation of 
the species, through the identification of the appropriate quantity and 
spatial arrangement of the features' PCE sufficient to conserve the 
species. For lynx, the distinction between areas that may contain some 
of each of the physical and biological features described above and 
areas that have all of the physical and biological features, each in 
adequate quantities and spatial arrangements to support populations 
(i.e., contains the PCE), is very important for the reasons discussed 
below.
    Many places in the contiguous United States have (1) some amount of 
boreal forest supporting a mosaic of successional stages, (a) snowshoe 
hares and their habitats, (b) deep, fluffy snow for extended periods, 
(c) denning habitat, and (d) other habitat types interspersed among 
boreal forest patches, but which do not and cannot support lynx 
populations. That is, not all boreal forest landscapes supporting a 
mosaic of differing successional forest stages contain the physical and 
biological features essential to lynx in adequate quantities and 
spatial arrangements on the landscape to support lynx populations over 
time. Lynx may occasionally (even regularly, if intermittently) occur 
temporarily in places that do not contain all of the elements of the 
PCE, especially during ``irruptions'' of lynx into the northern 
contiguous United States following hare population crashes in Canada 
(as described in the proposed rule (78 FR 59433-59436) and below under 
Criteria Used To Identify Critical Habitat). Other areas may contain 
all the essential physical and biological features but in quantities 
and spatial arrangements that are inadequate to support lynx over time. 
For example, although evidence of lynx reproduction confirms the 
presence of the essential physical and biological features, short-term, 
sporadic, or inconsistent reproduction that is inadequate to maintain a 
population over time (i.e., where reproduction and recruitment are too 
low to consistently offset mortality and emigration over the long term) 
suggests that the quantity or spatial arrangement (or both) of one or 
more of the essential features is inadequate. These areas do not 
contain the PCE, are likely population ``sinks,'' and as such do not 
contribute to lynx conservation or recovery.

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 that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    In listing the lynx as threatened under the Act due to the 
inadequacy of existing regulatory mechanisms to ensure the conservation 
of the DPS, the Service recognized the need for special management 
considerations or protection for lynx in the contiguous United States. 
The need for specific management direction and conservation measures 
for lynx was likewise recognized during development of the interagency 
Lynx Conservation Assessment and Strategy (LCAS; Ruediger et al. 2000, 
entire). The U.S. Forest Service (USFS), Bureau of Land Management 
(BLM), National Park Service, and the Service developed the LCAS using 
the best available science at the time specifically to provide a 
consistent and effective approach to conserve lynx and lynx habitat on 
Federal lands. The overall goals of the 2000 LCAS were to recommend 
lynx conservation measures, to provide a basis for reviewing the 
adequacy of USFS and BLM land and resource management plans with regard 
to lynx conservation, and to facilitate conferencing and consultation 
under section 7 of the Act. The LCAS identified an inclusive list of 17 
potential risk factors for lynx or lynx habitat that could be addressed 
under programs, practices, and activities within the authority and 
jurisdiction of Federal land management agencies. The risks identified 
in the LCAS were based on effects to individual lynx, lynx populations, 
or to lynx habitat.
    With the listing of the lynx DPS in 2000, Federal agencies across 
the contiguous United States range of the lynx consulted with the 
Service on actions that may affect lynx. The LCAS assisted Federal 
agencies in planning activities and projects in ways that benefit lynx 
or avoid adverse impacts to lynx or lynx habitat. In most cases, if 
projects were designed that failed to meet the standards in the LCAS, 
the biologists using the LCAS would arrive at an adverse effect 
determination for lynx. The 2000 LCAS used the best information 
available at the time to ensure that the appropriate mosaic of habitat 
would be provided for lynx conservation on Federal lands. Although the 
LCAS was written specifically for Federal lands, many of the 
conservation measures were considered equally applicable to non-Federal 
lands.
    Lynx conservation depends on management that supports boreal forest 
landscapes of sufficient size to encompass the temporal and spatial 
changes in habitat and snowshoe hare populations to support 
interbreeding lynx populations over time. At the time it was written, 
the LCAS recommended the most appropriate level of management or 
protection for lynx. The LCAS conservation measures addressed risk 
factors affecting lynx habitat and lynx productivity and were designed 
to be implemented at the scale necessary to conserve lynx. This level 
of management is appropriate for Federal lands because they account for 
the majority of lynx habitat in the contiguous United States (except in 
Maine), and also because the inadequacy of regulatory mechanisms to 
conserve lynx on these lands was the primary reason we listed the lynx 
as threatened under the Act in 2000.
    After the LCAS was written, research on lynx, hares, and their 
habitats and distributions continued throughout the range of the DPS. 
The Service and land management agencies recognized that, as new 
scientific information became available, it should supplement the LCAS 
and be taken into account by land managers. The USFS considered such 
new information when it proposed to revise Forest Plans under the 
Northern (U.S. Forest Service 2007, entire) and Southern (U.S. Forest 
Service 2008b, entire) Rocky Mountains Lynx Amendments. Some of the 
LCAS standards were changed to guidelines because the Service 
determined that some risk factors were not negatively affecting the 
lynx DPS as a whole. For example, after publication of the LCAS, lynx 
in the contiguous United States were shown to use a variety of sites 
and conditions for denning, and den site availability is not believed 
to be a limiting factor for lynx in the DPS (U.S.

[[Page 54813]]

Fish and Wildlife Service 2007, pp. 48-49; Interagency Lynx Biology 
Team 2013, p. 30). Similarly, after evaluating Bunnell et al. (2006, 
entire) and Kolbe et al. (2007, entire), the Service determined that 
the best information available did not indicate that compacted snow 
routes increased competition from other species to levels that 
adversely impact lynx populations in the Northern Rocky Mountain Lynx 
Amendment (NRLA) area (U.S. Fish and Wildlife Service 2007, pp. 53-55). 
Also since the LCAS was written, new information revealed the 
importance of multistoried stands for lynx in western areas (Squires et 
al. 2006a, p. 15); based on this, the USFS adopted a standard in the 
NRLA not identified in the LCAS for conserving such stands.
    Federal agencies across most of the range of the DPS have amended 
or revised land management plans to include specific management 
direction to conserve lynx and lynx habitat (Interagency Lynx Biology 
Team 2013, p. 88). This direction was developed in accordance with the 
National Forest Management Act of 1976 and the regulations that 
implement the statute (36 CFR 219.22), which requires public review and 
comment as part of the decisionmaking process. The USFS has completed 
such amendments or revisions to Land and Resource Management Plans in 
its Eastern, Northern, Rocky Mountain, and Intermountain regions. In 
the Pacific Northwest Region, forest plans for national forests with 
lynx habitat are currently being revised (Interagency Lynx Biology Team 
2013, p. 4).
    To address the substantial volume of new information on lynx, 
hares, and their habitats and distributions that has accumulated from 
more than a decade of continuing research throughout the range of the 
DPS, the LCAS was revised in 2013 (Interagency Lynx Biology Team 2013, 
entire). The current revision synthesizes all the available research 
relevant to lynx, their primary prey, and anthropogenic influences on 
the conservation of lynx in the contiguous United States. Most USFS 
Land and Resource Management Plans within the current range of lynx 
have been formally amended or revised to incorporate lynx and hare 
conservation standards and guidelines. Standards and guidelines were 
primarily based on those in the 2000 LCAS, but many Forests used the 
LCAS to develop goals, objectives, and standards and guidelines 
formulated or adapted for specific geographic areas or Forest units. 
Therefore, the Lynx Biology Team deemed it appropriate to abandon the 
use of prescriptive measures such as those in the 2000 LCAS because 
they are no longer necessary. Thus, the 2013 revision provides 
recommended conservation measures to be considered in project planning 
and implementation and which may help inform future amendments or 
revisions of USFS forest plans.
    The 2013 LCAS revision presents the most current source of such 
information and will continue to inform the special management 
considerations necessary for conserving lynx on Federal lands. Notably, 
the 2013 revision concludes that recent studies in the contiguous 
United States generally suggest that lynx are rarer and more patchily 
distributed in the west and in the Great Lakes region, and more 
abundant in Maine, than previously thought (Interagency Lynx Biology 
Team 2013, p. 23). It recommends focusing limited conservation 
resources on those ``. . . relatively limited areas that support 
persistent lynx populations and have evidence of recent reproduction, 
with less stringent protection and greater flexibility given in areas 
that only support lynx intermittently'' (Interagency Lynx Biology Team 
2013, p. 2).
    The LCAS was developed to provide a consistent and effective 
approach to conserve lynx on Federal lands in the conterminous United 
States. In northern New England, the only place the LCAS would apply is 
on Federal land in the White Mountain National Forest. However, in 
northern New England, most lynx habitat is on private commercial timber 
lands, and lynx populations there occur in extensive boreal forest 
landscapes where large, contiguous stands of young, regenerating 
spruce-fir habitat are prevalent (due to past clear-cut timber harvest) 
and support high densities of snowshoe hares. Although lynx and hare 
habitats were likely created historically by natural forest 
disturbances (e.g., fire, insects and disease, and windthrow), the 
current extensive habitats in northern Maine are the result of large-
scale industrial forest management. Maintaining lynx populations there 
will require forest management practices that produce extensive stands 
supporting high hare densities into the future. The Service developed 
Canada Lynx Habitat Management Guidelines for Maine (McCollough 2007, 
entire), which specify the special management--recommendations on land 
use, forest conditions, landscape conditions, and silviculture 
requirements--needed to support lynx populations based on the best 
available science (see discussion of Healthy Forest Reserve Program 
under Exclusions, below, for further details).
    Four northern Maine landowners with collective ownership of 
approximately 8.5 percent of occupied lynx habitat have developed lynx 
forest management plans through the Natural Resource Conservation 
Service's Healthy Forest Reserve Program. These landowners commit to 
employ the Service's lynx habitat management guidelines (McCollough 
2007, entire), which include greater use of even-aged silviculture that 
creates large patches of high-quality hare habitat and landscape hare 
densities that will continue to support lynx. All other private lands 
occupied by lynx in Maine currently lack specific forest management 
plans for lynx, indicating a continuing need for special management 
considerations there.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify occupied areas at the time of listing that 
contain the features essential to the conservation of the species. If, 
after identifying currently occupied areas, we determine that those 
areas are inadequate to ensure conservation of the species, in 
accordance with the Act and our implementing regulations at 50 CFR 
424.12(e), we then consider whether additional areas--outside those 
occupied at the time of listing--are essential for the conservation of 
the species (i.e., whether the species can only be conserved and 
recovered via the designation of additional areas). In this final rule, 
we are designating critical habitat only in areas within the 
geographical area occupied by the species at the time of listing in 
2000 because we have determined that these areas are sufficient for the 
conservation of the lynx DPS and that designating areas that were not 
occupied at the time of listing would not address or ameliorate the 
threat for which the DPS was listed (the inadequacy, at the time of 
listing, of existing regulatory mechanisms). Because designating areas 
not occupied at the time of listing would not address the threat for 
which the lynx DPS was listed, doing so would not improve the 
likelihood of recovery (the point at which the protections of the Act 
are no longer necessary and delisting the DPS would be appropriate). 
Therefore, we have

[[Page 54814]]

determined that areas outside those occupied at the time of listing are 
not essential to the conservation and recovery of the lynx DPS (i.e., 
we do not find that the DPS could only be conserved and recovered if we 
were to designate areas not occupied at the time of listing).
    To determine those specific areas occupied by the species at the 
time it was listed on which are found those physical or biological 
features essential to the conservation of the species, as required by 
section 3(5)(a)(i) of the Act, we reviewed the approach to the 
conservation of the lynx provided in the LCAS (Ruediger et al. 2000, 
entire; Interagency Lynx Biology Team 2013, entire); the recovery 
outline (U.S. Fish and Wildlife Service 2005, entire); information from 
State, Federal and Tribal agencies; and information from academia and 
private organizations that have collected scientific data on lynx. We 
reviewed available information that pertains to the habitat 
requirements of lynx and its principal prey, the snowshoe hare. This 
information included data in reports submitted by researchers holding 
recovery permits under section 10(a)(1)(A) of the Act; research 
published in peer-reviewed articles or presented in academic theses; 
agency reports and unpublished data; and various Geographic Information 
System (GIS) coverages (e.g., land-cover type information, land 
ownership information, snow depth information, topographic information, 
locations of lynx obtained from radio- or GPS-collars and locations of 
lynx confirmed via DNA analysis or other verified records).
    In designating critical habitat for the lynx, we used the best 
scientific data available to identify areas that possess appropriate 
quantities and spatial arrangements of the physical and biological 
features essential to the conservation of the DPS and that may require 
special management considerations or protection. In identifying areas 
as critical habitat, we first conducted a two-part analysis: (1) We 
relied on information used during listing of the species, and any 
available newer information, to delineate the geographic area occupied 
by the species at the time of listing, and (2) we used the best 
available scientific information to determine which occupied areas 
contain the physical and biological features in adequate quantities and 
spatial arrangements to support lynx populations over time, thus 
demonstrating that they are essential to the conservation of the lynx.
    To delineate critical habitat for lynx, we must be able to 
distinguish across the extensive range of the species in the contiguous 
United States, areas that contain all essential physical and biological 
features in adequate quantity and spatial arrangement to support lynx 
populations over time (areas with the PCE, as described above under 
``Primary Constituent Element for Canada Lynx'') from other areas that 
may contain some or all of the features but in inadequate quantities 
and/or spatial arrangements of one or more feature (and which, 
therefore, by definition do not contain the PCE). However, the 
scientific literature does not confer precisely what quantities and 
spatial arrangements of the physical and biological features are needed 
to support lynx populations throughout the range of the DPS. We lack 
range-wide site-specific information or tools that would allow us to 
analyze boreal forests across much of the range of the DPS and 
determine which specific areas contain the spatial and temporal mosaic 
of habitats and hare densities that lynx populations need to persist.
    Delineating critical habitat for lynx is complicated by a number of 
factors related to (1) the animals' biology and population dynamics; 
(2) the biology and population dynamics of its primary prey, the 
snowshoe hare; (3) the patchily distributed, temporally and spatially 
dynamic successional habitat features that shift continually across 
landscapes, and which drive populations of both lynx and hares at the 
southern peripheries of both species' ranges; (4) our imperfect 
understanding of the above factors; and (5) the resulting difficulty in 
determining with certainty and quantifying which specific habitat 
features, in what specific amounts and spatial and temporal 
arrangements, are necessary to provide the boreal forest mosaic 
essential to lynx conservation. The task is further complicated by an 
imperfect historical record of lynx occurrence in the contiguous United 
States. Finally (but importantly), the differences between areas 
capable of supporting lynx populations over time and other areas that 
look like they should, but do not, are often subtle and cannot be 
distinguished over broad areas using traditional vegetation/habitat 
mapping, remote sensing (aerial photos, satellite data), or available 
habitat modeling techniques (e.g., see Ivan 2011a, p. 27).
    As described in the Distribution and Biology sections of the 
proposed rule (78 FR 59433-59436), lynx populations throughout most of 
their range are irruptive. In central Canada where they inhabit a 
large, relatively homogenous boreal forest landscape, lynx respond 
quickly to cyclic fluctuations in hare populations. When hares are 
abundant, lynx respond with increased productivity and survival and, 
therefore, increased population sizes (Slough and Mowat 1996, pp. 955-
956; Mowat et al. 2000, pp. 266, 272). Typically, after hare numbers 
peak, they begin to decline rapidly and dramatically, forcing large 
numbers of lynx to disperse--to abandon home ranges in areas with 
dwindling prey bases no longer capable of supporting the large number 
of lynx that resulted from the earlier prey abundance (Slough and Mowat 
1996, pp. 956-957; Mowat et al. 2000, pp. 291-294). These periodic mass 
dispersal events (irruptions) appear to start at the core of the 
species' range in Canada and radiate outward (McKelvey et al. 2000a, p. 
239). At the southern periphery of the lynx's range, these events 
sometimes result in large numbers of lynx dispersing into a variety of 
habitats in some areas of the northern contiguous United States in 
search of adequate food resources (Thiel 1987, entire; McKelvey et al. 
2000a, pp. 239-242). Some of these dispersing lynx survive and 
reestablish home ranges elsewhere, but many die en route, often soon 
after initiating dispersal (Mowat et al. 2000, p. 293), and some appear 
to remain temporarily in areas not capable of supporting all of their 
life-history needs over time (Thiel 1987, entire).
    Canadian populations of lynx have historically been the most 
reliable source for lynx populations in many areas of the contiguous 
United States, tending to replenish them within the DPS about every 10 
years as the lynx/hare cycle ebbs and flows (McKelvey et al. 2000a, 
entire). These events can be pictured as a ``wave'' of lynx that 
occasionally washes over many of the northern tier of States. Over time 
the wave recedes, leaving remnant lynx populations or ``puddles'' of 
lynx in a variety of habitats. These puddles of lynx shrink over time 
as many lynx perish in inhospitable habitats or disperse elsewhere in 
search of adequate hare densities. When these waves recede, lynx may 
disappear abruptly from areas of unsuitable habitat or more gradually 
from suboptimal or marginal habitats.
    In both cases, lynx perish in or leave many of the places where 
they occurred temporarily because the habitats in such places, due to 
insufficient prey densities or inadequacy of one or more other physical 
or biological features, are incapable of supporting them over time. In 
a few places in the northern contiguous United States, in landscapes 
with relatively high snowshoe hare densities and adequate quantities 
and spatial arrangements of other essential physical and biological 
features, the

[[Page 54815]]

puddles tend to persist. It is these remnant ``puddle'' areas that 
demonstrate the capacity to support lynx population resiliency--the 
ability of lynx to persist through lows in their own populations and 
those of their primary prey--that we have determined are essential to 
conservation of the contiguous United States lynx DPS.
    In terms of lynx conservation, it is important to distinguish 
between areas that support lynx populations over time (the lasting 
``puddles'') and areas in which lynx may occasionally and temporarily 
(even if somewhat regularly) occur during and for some time after 
population irruptions (the temporary or shrinking ``puddles''). The 
former are likely ``source'' subpopulations within the lynx 
metapopulation. In addition to their ability to persist through lows in 
hare and lynx numbers, those areas, during times of hare abundance, 
produce excess lynx that may either subsequently bolster the local 
population or disperse into adjacent areas, should habitats and hare 
numbers in those areas become favorable. The latter areas are likely 
``sinks''--places where lynx may occasionally occur temporarily but 
where reproduction and recruitment, if any occur at all, are unlikely 
to offset mortality. Such areas do not support lynx over time or 
produce excess lynx and, therefore, do not contribute to the health and 
stability of the metapopulation.
    Lynx are wide-ranging animals that regularly make long-distance 
movements through both suitable and unsuitable habitats. They also are 
habitat and prey specialists, inferring natural selection pressures 
favoring the ability to identify, locate, and occupy habitats conducive 
to survival and reproduction. The historic record shows that lynx 
occurred only occasionally in some parts of the southern periphery of 
its range in the contiguous United States during and for variable lag 
times after the wave-like population irruptions described above, with 
long periods of apparently complete absence between irruptions 
(McKelvey et al. 2000a, entire). This finding suggests that lynx 
dispersing from areas where hare numbers were declining arrived at many 
such places looking for but not finding the physical and biological 
features they needed to survive over the long term (Mowat et al. 2000, 
p. 293). Additionally, lynx were listed under the Act because 
regulatory mechanisms at the time were deemed inadequate to conserve 
lynx habitats in the places they did occur, not because of any 
documented population decline, range contraction, or large-scale 
habitat loss in the contiguous United States (65 FR 16052, 68 FR 
40076). For the reasons given above, we conclude it is unlikely that 
there are areas within the DPS range that contain the PCE (i.e., 
adequate quantity and spatial arrangement of all essential physical and 
biological features) that lynx have been unable to locate and occupy. 
Based on surveys both within and outside of designated critical habitat 
and in many of the secondary areas defined in the recovery outline, and 
on responses from peer reviewers and discussions with other lynx 
researchers, we also conclude that it is very unlikely that there are 
other resident lynx populations within the range of the DPS that have 
remained undetected.
    Finally, the Act indicates that the function of critical habitat is 
to provide for the recovery of the species. We designate critical 
habitat in areas that contain, based on our assessment of the best data 
available to us, the physical and biological features in the 
appropriate quantities and spatial arrangements (the PCE), to provide 
for the conservation of the species. For some species, critical habitat 
may include unoccupied areas if the currently occupied areas are not 
sufficient to recover the species. For other species, critical habitat 
may be a subset of the occupied areas, if the occupied areas have 
differences in quality that relate to their ability to contribute 
meaningfully to recovery of the species. The Act does not require that 
we designate critical habitat in every area that has some components or 
some amount of the PCE, nor does it require that we demonstrate that 
all other areas lack the PCE. We make these determinations on a case-
by-case basis based upon the best information available as to what the 
species needs for recovery.
    By specifically allowing revisions to critical habitat designations 
if and when new information becomes available, the Act recognizes the 
potential limitations of the best available information at any point in 
time. For lynx, we have determined that not all areas where lynx 
occasionally occur are necessary for recovery. We believe that lynx 
recovery in the contiguous United States can be accomplished by 
conserving high-quality habitat occupied by naturally resident lynx 
populations across the range of the DPS, and addressing the threats to 
lynx in those areas.
    In summary, lynx have a demonstrated ability to disperse large 
distances in search of favorable habitats. Further, natural selection 
theory implies the ability of lynx to locate and occupy areas conducive 
to their survival and population viability. Nonetheless, due to 
inherent swings in densities of their primary prey, lynx regularly 
occur temporarily in habitats that are not capable of supporting 
populations over time, usually during irruptions after cyclic hare 
population crashes in Canada. In designating critical habitat for lynx, 
it is essential to distinguish between areas capable of supporting 
populations over time (areas with all essential physical and biological 
features in adequate quantities and spatial arrangements and which, 
therefore, demonstrably contain the PCE) and areas that may have some 
or all of the features but with inadequate quantities and/or spatial 
arrangements of one or more of them (and which, therefore, do not 
contain the PCE). Exactly how much of each of the physical and 
biological features must be present and specifically how each must be 
spatially arranged within boreal forest landscapes to support lynx 
populations over time is unknown.
    In the absence of site-specific information, we do not have tools 
or techniques (e.g., remote sensing or vegetation mapping technologies 
of adequate resolution) that would allow us to distinguish across broad 
landscapes throughout all of the range of the DPS between those areas 
that contain the PCE and other areas that contain the physical and 
biological features but in inadequate quantity and/or spatial 
arrangement. Nonetheless, we use the best available information to 
identify where the physical and biological features occur in adequate 
quantity and spatial arrangement to provide for the conservation of the 
species. Within this context, we developed the strategy described below 
for identifying, delineating, and designating critical habitat for the 
contiguous United States DPS of the Canada lynx.
    The focus of our strategy in considering lands for designation as 
critical habitat is on boreal forest landscapes of sufficient size to 
encompass the temporal and spatial changes in habitat and snowshoe hare 
populations to support interbreeding lynx populations over time. These 
factors are included in the PCE for lynx. As defined in the recovery 
outline, areas that meet these criteria and have recent evidence of 
reproduction are considered ``core areas'' for lynx (U.S. Fish and 
Wildlife Service 2005, pp. 3-4). However, we do not consider 
reproduction as a proxy for the PCE in this final rule.
    In determining the geographic area occupied by the species at the 
time of listing, we used data providing verified

[[Page 54816]]

evidence of lynx occurrence. We eliminated areas from consideration in 
two ways: (1) areas outside the known historical range and (2) data 
older than 1995 were not considered valid to our assessment of areas 
occupied by lynx populations at the time of listing. We used data on 
the known historical range of the lynx (e.g., McKelvey et al. 2000a, 
pp. 207-232; Hoving et al. 2003, entire) to eliminate areas outside the 
historical range of the species.
    We then focused on records since 1995 to ensure that this critical 
habitat designation is based on the data that most closely represent 
the current status of lynx in the contiguous United States and the 
geographical area known to be occupied by the species at the time of 
listing. Although the average lifespan of a wild lynx is not known, we 
assumed that a lynx born in 1995 could have been alive in 2000 or 2003, 
when the final listing rule and the clarification of findings were 
published. Data after 1995 were considered a valid indicator of 
occupancy at the time of listing. Recent verified lynx occurrence 
records were provided by Federal research entities, State wildlife 
agencies, academic researchers, Tribes, and private individuals or 
organizations.
    We used only verified lynx records, because we wanted to rely on 
the best available data to evaluate specific areas and their features 
for critical habitat designation. The reliability of lynx occurrence 
reports can be questionable because the bobcat, a common species in 
much of the range of the lynx DPS, can easily be confused with the 
lynx. Additionally, many surveys are conducted by snow tracking in 
which correct identification of tracks can be difficult because of 
variable conditions affecting the quality of the track and variable 
expertise of the tracker. Our definition of a verified lynx record is 
based on McKelvey et al. (2000a, p. 209): (1) an animal (live or dead) 
in hand or observed closely by a person knowledgeable in lynx 
identification, (2) genetic (DNA) confirmation, (3) snow tracks only 
when confirmed by genetic analysis (e.g., McKelvey et al. 2006, 
entire), or (4) location data from radio or GPS-collared lynx. 
Documentation of lynx reproduction consists of lynx kittens in hand, or 
observed with the mother by someone knowledgeable in lynx 
identification, or snow tracks demonstrating family groups traveling 
together, as identified by a person highly knowledgeable in 
identification of carnivore tracks. However, we made an exception and 
accepted snow track data from Maine, New Hampshire, and Vermont because 
of the stringent protocols, the confirmation of lynx tracks by trained, 
highly qualified biologists, and the absence of species in the area 
with tracks that could be easily misidentified as lynx (Maine Dept. of 
Inland Fisheries and Wildlife 2003, entire).
    To define critical habitat according to section 3(5)(A) of the Act, 
we then delineated, within the geographical area occupied by the 
species at the time of listing, areas containing physical and 
biological features essential to the conservation of the lynx. The 
adequacy of the quantities and spatial arrangements of the physical and 
biological features (as defined above) essential to the conservation of 
the DPS is informed by the recovery outline for the species (as 
discussed below), the nature of the threats in a particular geographic 
area, and the conservation needs for the species in a particular 
geographic area.
    In the North Cascades and Northern Rockies, the features essential 
to the conservation of lynx, the majority of lynx records, and the 
boreal forest types are typically, though not always, found above 4,000 
ft (1,219 m) in elevation (McKelvey et al. 2000b, pp. 243-245; 
McAllister et al. 2000, entire). Thus, we limited the delineation of 
critical habitat to lands above this elevation unless we had habitat 
data indicating that high-quality habitat exists below this elevation. 
Additionally, in the North Cascades, features essential to the 
conservation of the lynx and the majority of the lynx records occur 
east of the crest of the Cascade Mountains.

Application of the Criteria to the Southern Rocky Mountains and Certain 
National Forests in Idaho and Montana

    As described above under Previous Federal Actions, the District 
Court for the District of Montana found several flaws with our 2009 
critical habitat designation for lynx. The following section discusses 
the issues raised by the court.

Colorado and the Southern Rocky Mountains

    The Montana District Court found, among other things, that we 
failed in our 2009 designation to determine whether ``areas occupied by 
lynx in Colorado possess the physical and biological features essential 
to the conservation of the species.''
    In the recovery outline, we defined six core areas for lynx as 
those having both persistent verified records of lynx occurrence over 
time and recent evidence of reproduction (U.S. Fish and Wildlife 
Service 2005, pp. 3-5, 20-21). We also defined the Southern Rocky 
Mountains of Colorado and southern Wyoming (which both lack persistent 
verified records of lynx occurrence over time) as a ``provisional'' 
core area because it contained an introduced lynx population that had 
demonstrated reproduction (U.S. Fish and Wildlife Service 2005, p. 4). 
``Provisional'' means: ``accepted or adopted tentatively; conditional; 
or temporary.'' In our 2009 critical habitat designation, after careful 
evaluation of the historic record of verified lynx occurrence in 
Colorado and the Southern Rockies, we determined that there was no 
compelling evidence that the area had ever supported lynx populations 
over time and that, therefore, it did not likely contain the PCE and 
did not meet our criteria for designating critical habitat (74 FR 
8641).
    For reasons that are described in more detail below (also see our 
responses to comments (10), (11), and (23), above), the available data 
do not support that Colorado and the Southern Rockies contain the 
physical and biological features essential to lynx in adequate quantity 
and spatial arrangement to support lynx populations over time, and we 
provide what evidence is available to determine whether the area, or 
any parts of it, contain the PCE.
    In 1999, just prior to lynx being listed under the Act, the 
Colorado Division of Wildlife (now Colorado Parks and Wildlife (CPW)) 
began an intensive effort to establish a lynx population in Colorado, 
eventually releasing 218 wild-caught Alaskan and Canadian lynx from 
1999 to 2006 (Devineau et al. 2010, p. 524). At least 122 (56 percent) 
of the introduced lynx died by June of 2010 (Shenk 2010, pp. 1, 5), but 
others survived and established home ranges in Colorado, produced 
kittens in some years, and now are distributed throughout forested 
areas of western Colorado. Some lynx from this introduced population 
have also traveled into northern New Mexico, eastern Utah, and southern 
and western Wyoming, though no reproduction outside of Colorado has 
been documented by these dispersers.
    The CPW has determined the lynx introduction effort to be a success 
based on attainment of several benchmarks (e.g., high post-release 
survival, low adult mortality rates, successful reproduction, 
recruitment equal to or greater than mortality over time; Ivan 2011a, 
p. 21 and 2011b, p. 11), but acknowledges that the future persistence 
of the population is uncertain and hinges on the assumption that 
patterns of annual reproduction and survival observed as of 2010 repeat 
themselves during the next 20 or more years (Shenk 2008, p. 16; Shenk 
2010,

[[Page 54817]]

pp. 2, 5-6, 11). However, CPW has discontinued the intensive monitoring 
necessary to determine if these patterns of reproduction and survival 
will persist over that time (Colorado Parks and Wildlife 2012, p. 1), 
instead embarking on a passive monitoring program to detect lynx 
presence (Ivan 2011c, entire).
    Although parts of Colorado and the Southern Rocky Mountains clearly 
contain some (perhaps all) of the physical and biological features lynx 
need, available evidence does not indicate that the area, or any parts 
of it, contain the features in the quantity and spatial arrangement 
necessary to provide for the conservation of the species. That is, the 
PCE is the elements of the PBFs in adequate quantity and spatial 
arrangement on a landscape scale. Some areas may contain some amounts 
of all the PBFs, but with one or more in inadequate quantity and/or 
spatial arrangement and, therefore, does not contain the PCE. The 
Southern Rocky Mountains (western Colorado, northern New Mexico, and 
southern Wyoming) are on the southern limit of the species' range and 
contain marginal lynx habitat (74 FR 8619), are disjunct from lynx 
habitats in the United States and Canada (McKelvey et al. 2000a, p. 
230; 68 FR 40090; Devineau et al. 2010, p. 525; Interagency Lynx 
Biology Team 2013, pp. 50, 54), and have patchily distributed habitat 
that limits snowshoe hare abundance (Interagency Lynx Biology team 
2013, p. 54). Snowshoe hares and their preferred habitats are described 
above as part of the PCE. The nearest lynx population occurs in the 
Greater Yellowstone Area, which supports a small, low-density 
population also disjunct from other lynx populations and which is 
unlikely to regularly supply dispersing lynx to the Southern Rockies. 
We previously determined that the Southern Rockies' distance and 
isolation from other lynx populations and habitats substantially reduce 
the potential for lynx from northern populations to naturally augment 
or colonize the area, that the immigration necessary to maintain a 
local lynx population is, therefore, naturally precluded, and that the 
contribution of the Southern Rockies to the persistence of lynx in the 
contiguous United States is presumably minimal (68 FR 40100-40101).
    Dolbeer and Clark (1975, p. 539) estimated 0.30 hares per ac (0.73 
hares per ha) on their study area in Summit County in central Colorado. 
Reed et al. (1999, unpublished, as cited by Hodges (2000, p. 185)) 
reported hare densities in Colorado ranging from 0.02 to 0.19 hares per 
ac (0.05 to 0.46 hares per ha). In areas used by introduced lynx in 
west-central Colorado, Zahratka and Shenk (2008, pp. 906, 910) reported 
hare densities that ranged from 0.03 to 0.5 hares per ac (0.08 to 1.32 
hares per ha) in mature Engelmann spruce-subalpine fir stands and from 
0.02 to 0.14 hares per ac (0.06 to 0.34 hares per ha) in mature 
lodgepole pine stands. The authors cautioned against comparing their 
results to other hare density estimates, as their use of the ``mean 
maximum distance moved'' method may have underestimated effective area 
trapped (Zahratka and Shenk 2008, p. 911), potentially resulting in 
overestimates of hare density.
    In ``purportedly good'' hare habitat also in west-central Colorado 
in the area used by introduced lynx, Ivan (2011b, pp. iv-v, 71, 92) 
estimated summer hare densities of 0.08 to 0.27 hares per ac (0.2 to 
0.66 hares per ha) in stands of ``small'' lodgepole pine, 0.004 to 0.01 
hares per ac (0.01 to 0.03 hares per ha) in ``medium'' lodgepole pine, 
and 0.004 to 0.1 hares per ac (0.01 to 0.26 hares per ha) in spruce-fir 
stands. The author reported that hare densities were less than 0.4 
hares per ac (<1.0 hare per ha) in all stand types and all seasons and, 
in most cases, were less than 0.12 hares per ac (0.3 hares per ha), and 
no combination of survival and recruitment estimates from any stand 
type in any year would result in a self-sustaining hare population, 
though hare recruitment may have been underestimated (Ivan 2011b, pp. 
95, 99).
    Ruggiero et al. (2000, pp. 446-447) concluded that a snowshoe hare 
density greater than 0.2 hares per ac (0.5 hares per ha) may be 
necessary for lynx persistence. Steury and Murray (2004, pp. 127, 137) 
modeled lynx and hare populations and determined that a hare density of 
0.4-0.7 hares per ac (1.1-1.8 hares per ha) would be needed for 
persistence of lynx translocated (i.e., introduced or reintroduced) to 
the southern portion of the species' range. Most hare density estimates 
for Colorado are well below those thought necessary to support an 
introduced lynx population over time (Steury and Murray 2004, entire), 
and many, even from areas considered ``good'' hare habitat, are lower 
than the density Ruggiero et al. (2000, pp. 446-447) considered 
necessary for lynx persistence. The generally low hare densities 
reported in most cases in what is considered good hare habitat in 
western Colorado and the very large home ranges (181 mi\2\ (470 km\2\) 
for females and 106 mi\2\ (273 km\2\) for males) reported by Shenk 
(2008, pp. 1, 10) suggest that even the best potential lynx habitat in 
the Southern Rocky Mountains is marginal and unlikely to support lynx 
populations over time.
    Some of the lynx introduced into Colorado have dispersed into 
mountainous areas of northern New Mexico, which contain relatively 
small and fragmented areas of similar high-elevation spruce/fir and 
cold mixed-conifer habitats (U.S. Forest Service 2009, pp. 5-10). No 
evidence exists that lynx occupied these or any other areas of New 
Mexico historically, and habitats in New Mexico are thought to be 
incapable of supporting a self-sustaining lynx population (U.S. Forest 
Service 2009, pp. 2, 10, 16-17). In addition, the lack of connectivity 
with northern lynx populations (McKelvey et al. 2000a, p. 230; Devineau 
et al. 2010, p. 525; Interagency Lynx Biology Team 2013, pp. 50, 54), 
which is considered necessary for the maintenance and conservation of 
lynx populations in the contiguous United States (Interagency Lynx 
Biology Team 2013, pp. 42, 47, 54, 60, 65), further suggests that lynx 
in the Southern Rockies, in the absence of continued translocations or 
introductions of lynx, are unlikely to receive the demographic and 
genetic exchange needed to maintain lynx populations over time.
    For these reasons, the Service has determined that the Southern 
Rocky Mountains likely do not possess the physical and biological 
features essential to lynx in sufficient quantity and spatial 
arrangement to sustain lynx populations over time. Therefore, we find 
that the habitat in Colorado and elsewhere in the Southern Rocky 
Mountains does not contain the PCE, is not essential for the 
conservation of the lynx DPS, and we are not designating critical 
habitat for the lynx DPS in the Southern Rockies.
    We acknowledge the efforts by the CPW and recognize that wildlife 
introductions are, by their nature, experiments whose fates are 
uncertain. However, it is always our goal for such efforts to be 
successful and, where possible, contribute to recovery of listed 
species. If Colorado's introduction effort is successful (i.e., if 
recruitment equals or exceeds combined mortality and emigration over 
the next 20 years (Shenk 2010, pp. 2, 5-6, 11)), it could contribute to 
recovery by providing an additional buffer against threats to the DPS. 
The potential contribution of Colorado to lynx recovery does not mean, 
however, that the habitat there is essential for the conservation of 
the DPS. In other words, the lynx population in Colorado is beneficial, 
but not essential, for recovery.

[[Page 54818]]

National Forests in Idaho and Montana

    The Montana District Court ordered the Service to determine 
specifically whether lands in the Clearwater and Nez Perce National 
Forests in Idaho, the Bitterroot National Forest in Idaho and Montana, 
the Beaverhead-Deerlodge National Forest in Montana, and additional 
parts of the Helena and Lolo National Forests (outside the areas 
currently designated) in Montana contain the physical and biological 
features essential for the conservation of the DPS. Although each of 
these areas clearly contain some (and perhaps all) of the physical and 
biological features lynx need, for the reasons discussed below, we find 
no evidence that any of the areas contain the elements in adequate 
quantity and spatial arrangement to provide for the conservation of 
lynx. We provide evidence, where available, that these areas were 
likely not occupied by lynx at the time of listing and are not 
currently occupied by lynx populations, and we summarize relevant 
survey results, all of which indicate that lynx do not occupy these 
areas or that the areas are lacking in either quantity or spatial 
arrangement (or both) of one or more of the essential features. We have 
determined that these areas do not contain the PCE, are not essential 
to the conservation of the lynx, and do not meet the definition of 
critical habitat. Therefore, based on the information summarized below, 
we have not included these National Forest lands in this final critical 
habitat designation.
    In the recovery outline, the Service classified these areas 
(outside the portions of the Helena and Lolo National Forests 
designated as critical habitat) as ``secondary areas'' because they 
lack evidence of lynx reproduction (U.S. Fish and Wildlife Service 
2005, pp. 4, 21). As described in detail below, recent surveys for lynx 
conducted in accordance with established and accepted protocols in many 
of these areas have failed to detect lynx presence, and the available 
evidence suggests these areas occasionally may provide temporary 
habitat for transient lynx dispersing from established lynx populations 
in the Northern Rocky Mountains of Canada, Idaho, and Montana, but that 
they likely do not contain all essential physical and biological 
features in adequate quantity or spatial arrangement to support lynx 
populations over time.
    There is no evidence that the Beaverhead-Deerlodge, Bitterroot, and 
Nez Perce National Forests were occupied by lynx at the time of 
listing, or that they are currently occupied by lynx populations. To 
date, surveys on these National Forests, which have been conducted 
according to established protocols, have failed to detect presence of 
any individual lynx, and they provide no indication of the presence of 
lynx populations. Surveys described below were conducted according to 
National Lynx Survey (McKelvey et al. 1999b, entire), and winter snow-
tracking survey (Squires et al. 2004b, entire) protocols. Snow-tracking 
surveys in particular, when conducted strictly according to appropriate 
protocols by experienced surveyors, which often results in collection 
of DNA and genetic verification of species identity, are highly 
effective at detecting lynx, even when only a few animals inhabit the 
survey area (Ulizio et al. 2007, p. 5; Squires et al. 2012, pp. 215, 
219-222).
    On the Beaverhead-Deerlodge National Forest, National Lynx Survey 
efforts in 1999-2001 detected no lynx (U.S. Forest Service 2002a, 
entire and 2002b, entire). During 2001-2005, in surveys designed to 
detect presence of lynx and wolverines, 11,220 mi (17,950 km) of winter 
snow-tracking surveys and trap route checks in the Anaconda-Pintler, 
Beaverhead, Flint Creek and Pioneer mountain ranges on the Beaverhead-
Deerlodge National Forest detected only a single ``putative'' lynx 
track, and no verified tracks (Squires et al. 2003, p. 4; Squires et 
al. 2006b, p. 15). Additional recent snow tracking surveys (Berg 2009, 
entire) also failed to detect any lynx, and the author concluded that, 
although some pockets of habitat appeared to support high densities of 
snowshoe hares, ``[m]ost of the [Beaverhead-Deerlodge National Forest] 
was and appeared to be dry lodgepole pine, which likely is not good 
lynx habitat . . .'' (Berg 2009, p. 20).
    During May and June of 2009, hair snares (642 snare-nights) and 
remote cameras (319 camera-nights) deployed in the Boulder, Flint 
Creek, and Pioneer mountain ranges also failed to detect any lynx 
(Porco 2009, entire). Additional hair snare surveys in summer 2012 
similarly failed to detect lynx (Pilgrim and Schwartz 2013, entire; 
U.S. Forest Service 2013c, entire). Snow-tracking surveys designed to 
detect presence of multiple forest carnivores, including lynx, 
conducted by the Idaho Department of Fish and Game from 2004 to 2006 
detected no lynx in the Beaverhead Mountains Section, just west of the 
Beaverhead-Deerlodge National Forest (Patton 2006, pp. 20-21, Table 
11). We conclude that the rigorous efforts described above collectively 
provide strong indication that lynx do not occupy the Beaverhead-
Deerlodge National Forest, and that the habitat quality and hare 
densities appear, based on the best available information, to be 
inadequate to support lynx. We find no scientific evidence that this 
area contains the physical and biological features essential to lynx in 
adequate quantity and spatial arrangement. Therefore, it does not 
contain the PCE and is not essential for the conservation of the lynx 
DPS.
    On the Bitterroot National Forest, National Lynx Survey efforts in 
2000-2002 and 2010-2011 detected no lynx (U.S. Forest Service 2000, 
entire, 2002c, entire, 2003a, entire, 2003b, entire; Pilgrim 2010, 
entire; Shortsleeve 2013, pers. comm.). Snow-tracking surveys designed 
to detect presence of multiple forest carnivores, including lynx, 
conducted by the Idaho Department of Fish and Game from 2004 to 2006 
detected no lynx in the Bitterroot Mountains Section (Patton 2006, pp. 
20-21, Table 11). Additionally, among 223 vegetation plots sampled in 
2010-2012 on the Forest, only 30 (16.1%) met minimum horizontal cover 
standards for snowshoe hare/lynx habitat (U.S. Forest Service 2012, 
unpublished data). Based on the information above, we conclude that 
lynx do not occupy the Bitterroot National Forest, and that the habitat 
quality and hare densities appear, based on the best available 
information, to be inadequate to support lynx. We find no scientific 
evidence that this area contains the physical and biological features 
essential to lynx in adequate quantity and spatial arrangement. 
Therefore, it does not contain the PCE and is not essential for the 
conservation of the lynx DPS.
    On the Nez Perce National Forest, winter snow-tracking surveys 
covering 448 mi (721 km) in 2007 did not detect any lynx (Ulizio et al. 
2007, entire). The authors concluded that (1) these surveys very likely 
would have detected the presence of a lynx population if one occurred 
on the Forest, (2) that the failure to detect lynx suggests that a lynx 
population does not inhabit the surveyed portion of the Forest, and (3) 
``[h]istorical sightings . . . may be the result of transient lynx 
moving through the forest, but the infrequency of such reports suggests 
lynx are incidental to the area'' (Ulizio et al. 2007, p. 5). Neither a 
partial hare-snare survey conducted in 2008 (though at fewer stations 
than recommended by the protocol) nor a partial snow-tracking survey 
conducted in 2009 (also less extensive than protocol) detected presence 
of lynx on the Forest. Snow-tracking surveys conducted according to 
established protocols and covering 553 mi (890 km) of forest roads were 
completed in 2013; these surveys also

[[Page 54819]]

failed to detect presence of any lynx on the Nez Perce National Forest 
(U.S. Forest Service 2013d, pp. 3-7). Snow-tracking surveys designed to 
detect presence of multiple forest carnivores, including lynx, 
conducted by the Idaho Department of Fish and Game from 2004 to 2006 
detected no lynx in the Clearwater Region, including parts of the Nez 
Perce National Forest (Patton 2006, p. 9, Table 2). Based on the 
information above, we conclude that lynx do not occupy the Nez Perce 
National Forest, and that the habitat quality and hare densities 
appear, based on the best available information, to be inadequate to 
support lynx. We find no scientific evidence that this area contains 
the physical and biological features essential to lynx in adequate 
quantity and spatial arrangement. Therefore, it does not contain the 
PCE and is not essential for the conservation of the lynx DPS.
    The paucity of verified historical records of lynx occurrence in 
these three National Forests, and the absence of recent verified 
records, despite numerous surveys designed to detect lynx presence and 
described in the preceding paragraphs, suggest these areas may rarely 
and temporarily support transient dispersing lynx (McKelvey et al. 
2000a, pp. 224-227; Ulizio et al. 2007, p. 5). Based on these surveys, 
historical records of lynx occurrence, the vegetation sampling data 
described above (U.S. Forest Service 2012, unpublished data), and 
expert opinion on habitat quality described above (Ulizio et al. 2007, 
p. 5), the Service has determined that habitats on these three National 
Forests are not occupied by lynx populations and do not contain the 
essential physical and biological features in appropriate quantity and 
spatial arrangement to support lynx over time. We have determined that 
these areas do not contain the PCE, do not meet the definition of 
critical habitat, and are not essential to the conservation of the lynx 
DPS. Therefore, we have not included the Bitterroot, Beaverhead-
Deerlodge, and Nez Perce National Forests within this final critical 
habitat designation.
    We recognize that all of the Clearwater and Lolo National Forests, 
and parts of the Helena National Forest (except for the disjunct Big 
Belt and Elkhorn mountain ranges) are considered ``occupied'' by lynx 
for purposes of consultations under section 7 of the Act. Occupancy in 
the context of section 7 consultation is intended to inform the ``may 
be present'' standard under section 7 and does not imply the presence 
of lynx populations or that the habitats in these areas contain the 
physical and biological features necessary to support a lynx population 
over time. For section 7 purposes, occupancy is determined on a Forest-
wide basis, so that two observations anywhere on a Forest confer 
permanent ``occupied'' status to the entire Forest, even in places 
where lynx have not been documented and where no lynx populations 
occur.
    The Clearwater National Forest is in an area classified in the 
recovery outline as a secondary area for lynx recovery (U.S. Fish and 
Wildlife Service 2005, p. 21) because there is no record of consistent 
lynx presence on the Forest. Snow-tracking surveys designed to detect 
presence of multiple forest carnivores, including lynx, conducted by 
the Idaho Department of Fish and Game from 2004 to 2006 detected no 
lynx in the Clearwater Region, including parts of the Clearwater 
National Forest (Patton 2006, p. 9, Table 2). Wirsing et al. (2002, 
entire) studied snowshoe hare demographics on study areas within the 
Clearwater National Forest. They concluded that hare habitat was 
fragmented; good hare habitat was rare and occurred as small isolated 
patches; and hares occurred at extremely low densities (0.04 hares per 
ac (0.09 per ha)), well below the range of densities typical of other 
southern hare populations, had low survival rates, and had poor 
juvenile recruitment (Wirsing et al. 2002, pp. 169-175). The authors 
identified hare predators including coyotes, raptors, mustelids, and 
bobcats (Wirsing et al. 2002, p. 172), but identified no predation 
attributable to lynx. Based on the best available information, 
summarized above, the habitat quality and hare densities in this area 
appear to be inadequate to support lynx. We find no scientific evidence 
that this area contains the physical and biological features essential 
to lynx in adequate quantity and spatial arrangement. We determine that 
habitats on the Clearwater National Forest do not contain the PCE, are 
not essential for the conservation of the lynx DPS, and do not meet the 
definition of critical habitat. As a result we have not designated 
critical habitat on this national forest.
    Portions of the Helena and Lolo National Forests are classified as 
``core areas'' for lynx recovery because they have evidence of 
consistent lynx occupancy and recent records of reproduction (U.S. Fish 
and Wildlife Service 2005, pp. 4, 21); these areas are designated as 
critical habitat. Because of this lynx occupancy, both Forests are 
designated as ``occupied'' in their entirety for section 7 purposes, 
even though the remainders of these two Forests are considered 
secondary areas in the recovery outline (U.S. Fish and Wildlife Service 
2005, pp. 6, 21) because they lack records of consistent lynx presence. 
The parts of these two forests that we have not designated continue to 
lack evidence of lynx occupancy, and surveys (described below) have 
failed to detect the presence of lynx populations.
    On the Helena National Forest, the Big Belt (in 2002, 2003, and 
2004) and Elkhorn (in 2003) mountain ranges were surveyed according to 
the National Lynx Survey protocol (McKelvey et al. 1999b, entire); no 
lynx were detected in any of these surveys (Pengeroth 2013, pers. 
comm.). On the Lolo National Forest, no lynx were detected during 941 
mi (1,514 km) of snow-tracking surveys targeting lynx in the vicinity 
of Lolo Pass in January-March 2001 (Squires et al. 2004c, p. 3). More 
recently, over 2,600 mi (4,184 km) of forest carnivore snow-tracking 
surveys were conducted according to accepted protocols (Squires et al. 
2004b, entire) by highly trained technicians from 2010 to 2013 across 
much of the Lolo National Forest and on some adjacent lands. These 
surveys resulted in 199 lynx detections over 4 years, only 1 of which 
occurred outside the portion of the forest designated as critical 
habitat in this rule (U.S. Forest Service 2013e, pp. 2-3). The single 
detection outside the critical habitat boundary was in an area 
surrounded by critical habitat but at a slightly lower elevation (U.S. 
Forest Service 2013e, pp. 2, 4). Based on the information summarized 
above, we conclude that lynx do not occupy the Helena and Lolo National 
Forests outside the areas we have designated, and that the habitat 
quality in these areas appears, based on the best available 
information, to be inadequate to support lynx. We find no scientific 
evidence that these areas contain the physical and biological features 
essential to lynx in adequate quantity and spatial arrangement. 
Therefore, it does not contain the PCE and is not essential for the 
conservation of the lynx DPS. As a result, we have determined that 
these areas do not meet the definition of critical habitat, and we have 
not included these areas in this final critical habitat designation.
    Based on historical records and available survey data summarized 
above (McKelvey et al. 2000a, pp. 224-227; U.S. Forest Service 2000, 
entire; U.S. Forest Service 2002a, 2002b, and 2002c, entire; Wirsing et 
al. 2002, entire; Squires et al. 2003, p. 4; U.S. Forest Service 2003a 
and 2003b, entire; Patton 2006, entire; Squires et al. 2006b, p. 15; 
Ulizio et al. 2007, entire; Berg 2009, entire; Porco 2009, entire; 
Pilgrim 2010,

[[Page 54820]]

entire; U.S. Forest Service 2012, unpublished data; Pengeroth 2013, 
pers. comm.; Pilgrim and Schwartz 2013, entire; Shortsleeve 2013, pers. 
comm.; U.S. Forest Service 2013c, 2013d, 2013e, entire), the Service 
has determined that habitats on the Beaverhead-Deerlodge, Bitterroot, 
Clearwater, and Nez Perce National Forests, and on the Helena and Lolo 
National Forests outside those areas designated as critical habitat, 
are not occupied by lynx populations and were likely not occupied at 
the time of listing. These areas may occasionally host transient 
dispersing lynx, but the best available information indicates that they 
do not contain the physical and biological features essential to lynx 
in adequate quantity and/or spatial arrangement to demonstrate that 
they contain the PCE, and, as a result, do not meet the definition of 
critical habitat. We have determined these areas are not essential to 
the conservation of the lynx DPS, and we have not included these areas 
in this final designation of critical habitat for the lynx DPS.
Recent Lynx Occurrence in Northern New Hampshire, Northern Vermont, and 
Eastern and Western Maine

Northern New Hampshire and Northern Vermont

    The historic status of lynx in New Hampshire and Vermont is poorly 
understood. Lynx occurred historically in central and northern New 
Hampshire, but there is no evidence that a resident breeding population 
existed there historically or recently (McKelvey et al. 2000a, pp. 212-
214). In 2003, the Service determined that, despite a lack of breeding 
records, a small resident lynx population likely occurred historically 
in New Hampshire but no longer existed at the time of listing (68 FR 
40087). A bounty program for lynx that persisted in New Hampshire until 
1965, along with a lack of dispersing lynx from Quebec, and habitat 
loss associated with forest management practices may have contributed 
to the extirpation of lynx from New Hampshire (Litvaitis et al. 1991, 
pp. 70, 73-74).
    Brocke et al. (1993, p. 14) similarly speculated that trapping 
mortality and the concurrent reduction in habitat resulting from large-
scale timber harvest led to the extirpation of lynx from New Hampshire. 
Surveys conducted in 1986 in high-elevation habitats in the White 
Mountain region of New Hampshire detected no lynx (Litvaitis et al. 
1991, pp. 70, 73). In 1992, an adult lynx killed by a vehicle collision 
in southern New Hampshire (McKelvey et al. 2000a, p. 213) was 
classified as a ``transient'' that did not belong to a resident 
population because hare densities where this lynx died are low and 
habitat conditions are considered unsuitable for home range 
establishment (Tur 2013, pers. comm.).
    The historic record for Vermont is scant, with only five records of 
lynx occurring from the period 1797 to 1968 and no evidence that a 
population of lynx ever occurred there (Kart et al. 2005, pp. 101-104). 
Prior to the listing of the DPS in 2000, the last lynx documented in 
Vermont was trapped at St. Albans in 1968 (Kart et al. 2005, p. A4-
101). Based on the best available data, summarized above, we conclude 
that New Hampshire and Vermont were not occupied by lynx at the time of 
listing.
    Although results of surveys to assess the current distribution and 
status of lynx in New Hampshire and Vermont are not yet complete, 
surveys to date in New Hampshire suggest that a small number of lynx 
are sparsely distributed through the northern half of the State, mostly 
likely as scattered transient animals, and breeding has only recently 
been documented by a few lynx in very small areas in the northeastern 
part of the State. Likewise, in Vermont, several lynx have been 
documented as breeding within a very small area in the northeast corner 
of the State. Lynx occurrence in northern New Hampshire and Vermont was 
documented beginning in 2006, and breeding was first documented in 
2009. To date, evidence of lynx reproduction in northern New Hampshire 
was documented in 2010 and 2011, all in the area encompassing the town 
of Pittsburg (Staats 2013a, pers. comm.). In Vermont, breeding was 
documented in 2009, 2011, and 2012, all at the Nulhegan National 
Wildlife Refuge (NWR) (Clich[eacute] 2013, pers. comm.).
    Historic records suggest that high-elevation habitats in New 
Hampshire's White Mountains contained lynx (Silver 1957, pp. 302-311; 
McKelvey et al. 2000a, p. 212); however, surveys conducted during the 
early 1990s in the White Mountain National Forest did not detect the 
species (Litvaitis et al. 1991, p. 15; Brocke et al. 1993, p. 14). No 
lynx have been detected by White Mountain National Forest staff during 
winter track surveys conducted since 2003 (Prout 2013, pers. comm.). 
However, in March 2013, New Hampshire Fish and Game Department staff 
confirmed the presence of lynx tracks in high-elevation habitat located 
in the area near Franconia Notch. In addition, snow track surveys 
conducted by the New Hampshire Fish and Game Department in 2012 and 
2013 detected lynx near Cambridge and Success, south of the Lake 
Umbagog NWR (which has lynx in its Maine portion). Additional records 
(2006-2013, n=6) occur as far south as Jefferson, NH, at the southern 
border of the Kilkenny Unit of the White Mountain National Forest. Lynx 
tracks have also been detected on the Pondicherry NWR, located in 
Whitefield, NH. Since 2006, New Hampshire has 18 confirmed records, 
totaling 28 individual animals.
    Habitat patches that support lynx in New Hampshire are much smaller 
than those in northern Maine (Litvaitis and Tash 2005, Fig. 2 and p. A-
298; Robinson 2006, Fig. 3.3, p. 99). Hoving estimated roughly 386 
mi\2\ (1,000 km\2\) of lynx habitat in New Hampshire (68 FR 40086-
40087). Litvaitis and Tash (2005, p. A-298), analyzing potential lynx 
habitat in New Hampshire based on the Hoving lynx model, reported an 
area of 2,000 mi\2\ (5,180 km\2\) with a greater than 50 percent 
probability of lynx occurrence. Within this area, ``enriched hare 
habitats'' (including high-elevation spruce-fir, clearcuts, and shrub-
dominated wetlands) consisted of 342 mi\2\ (886 km\2\), 17 percent of 
the total predicted lynx habitat area. The authors concluded that ``the 
modest abundance of high-density hare habitat supports the notion that 
New Hampshire does not contain sufficient habitat to support a viable, 
stand-alone population of lynx. Long-term persistence of lynx in New 
Hampshire is probably dependent on immigrants, and the State likely 
represents the southern limit of lynx in eastern North America'' 
(Litvaitis and Tash 2005, p. A-298). Similarly, Brocke et al. (1993, 
pp. 1-14) suggested that the persistence of New Hampshire's lynx 
population was dependent on receiving dispersing animals. Therefore, 
persistence of lynx in New Hampshire relies on continuity of habitat 
through western Maine to the core area of lynx habitat in northern 
Maine.
    Recent modeling to determine lynx habitat connectivity in the 
Northeast suggests that the Nulhegan River Basin contains Vermont's 
best lynx habitat (Farrell 2013, pers. comm.). The 205-mi\2\ (530-
km\2\) basin includes 41 mi\2\ (106 km\2\) managed by the Service, 34 
mi\2\ (89 km\2\) managed by the Vermont Department of Natural 
Resources, and 131 mi\2\ (340 km\2\) of private commercial timber lands 
(with easement). Bobcats occur in the area at moderate densities 
(Hoving 2001, Fig. 2.5 p. 55). Snow track surveys conducted by State 
and Service personnel during the winters of 2011 and 2012 (Nulhegan NWR 
only) and 2012 and 2013 (Nulhegan NWR and Victory Bog State Wildlife 
Management Area) indicate a small resident lynx population has become 
established on

[[Page 54821]]

the NWR. In areas outside of Nulhegan NWR, the presence of sporadic 
records indicates lynx have not established home ranges and are 
considered transient or absent.
    Portions of northern New Hampshire and northeastern Vermont contain 
boreal forest landscapes with a mosaic of habitats of various ages. 
Although stand-level hare densities in spruce-fir forest in these areas 
should be similar to densities documented in northern Maine (Litvaitis 
and Tash 2005, p. A-297), landscape-level hare densities are likely 
lower because spruce-fir habitat is a lower percentage of the landscape 
and more fragmented than in core lynx habitat in northern Maine (Hoving 
2001, Fig. 2.6, p. 56). The snow regime in northern New Hampshire and 
northern Vermont also appears adequate for lynx, especially in higher 
elevation areas, which experience deep, fluffy snow conditions that 
provide a competitive advantage for lynx, whereas shallower snow in 
lower elevations may provide competitive advantage to bobcats (Hoving 
2001, Fig. 2.2 p. 51). Litvaitis and Tash (2005, p. A-263) modeled 
bobcat habitat in New Hampshire and concluded that most low-elevation 
areas that were predicted to have a higher probability of lynx 
occurrence were also predicted to have moderate-to-high bobcat 
populations. Conversely, most high-elevation areas that were predicted 
to have a high probability of lynx occurrence were expected to be 
avoided by bobcats (at least in the winter). The elevation at which 
snow benefits lynx versus bobcats in the Northeast is unknown and 
likely variable.
    While historic records indicate that lynx use high-elevation areas 
in the Northeast, it is unknown if high elevations support high-quality 
foraging habitat in areas sufficiently large to support breeding 
individuals. The White Mountain National Forest has the most extensive 
high-elevation habitat in the Northeast, but only one recent record of 
lynx occurrence (Staats 2013b, pers. comm.).
    Litvaitis and Tash (2005, p. A-298) estimated that New Hampshire 
contains 342 mi\2\ (888 km\2\) of potential Canada lynx habitat. There 
are no comparable lynx habitat estimates for Vermont. Because these 
areas occur at the southern extreme of the lynx's current distribution, 
where habitat is interspersed with northern hardwood forests, as well 
as human-dominated land cover types (e.g., developed areas, roads, 
agricultural fields, etc.), habitat quality (percent of conifer forest, 
landscape-level hare density, intensity of forest management) is likely 
to be lower in New Hampshire and Vermont than in designated critical 
habitat in northern Maine. Although potential lynx habitat in New 
Hampshire and Vermont is fragmented, a recently completed habitat 
connectivity model demonstrated 100 percent connectivity for lynx 
movement/dispersal between these areas and the core area of northern 
Maine (Farrell 2013, pers. comm.). Breeding lynx in New Hampshire and 
Vermont are not directly connected to Canadian populations, but they 
are connected to the large population in northern Maine via western 
Maine.
    Due to the uncertainty regarding the long-term persistence of the 
lynx that now occur in these areas, the relative importance of these 
areas for conservation of the DPS is unclear. These are peripheral 
boreal forest areas with higher northern hardwood composition and 
patchier habitat (Hoving 2001, Fig. 2.6, p. 56), and they represent the 
southern extent of the lynx range (Litvaitis and Tash 2005, p. A-298). 
Northern Vermont and New Hampshire do not appear to contain adequate 
lynx habitat to support lynx populations; nor do lynx in these areas 
appear to be considered potential source populations (Litvaitis and 
Tash 2005, p. A-298). Although Brocke et al. (1993, pp. 1-14) predicted 
that, in the absence of trapping, New Hampshire's lynx population would 
be expected to increase at the very modest rate of 1.65 percent per 
year, this estimate did not account for other sources of lynx mortality 
(i.e., interspecific interactions with bobcat or vehicle mortality).
    As in Colorado, northern New Hampshire and northern Vermont clearly 
contain habitats that include some or all of the physical and 
biological features lynx require (some of the components of the PCE). 
However, it remains uncertain whether they consistently contain the 
features (e.g., snow conditions that allow lynx to outcompete bobcats, 
or landscape-level hare densities) in adequate quantity and spatial 
arrangement to support lynx over time. Moreover, because neither area 
was occupied by lynx at the time they were listed, to designate them as 
critical habitat we would have to determine that they are essential for 
the conservation of the DPS (i.e., that the DPS could not be recovered 
unless these areas were designated as critical habitat). We do not 
believe that is the case, and we do not expect that the current small 
numbers of breeding lynx in these areas will result in the 
establishment of permanent lynx populations.
    In summary, although lynx were known to occur historically in New 
Hampshire and Vermont, reliable evidence of the ability of these areas 
to support lynx populations over time is lacking. The best available 
data indicate that New Hampshire and Vermont were not occupied by lynx 
at the time of listing. If resident lynx occurred in these areas, they 
may have been extirpated when habitat was modified through forestry 
practices, a bounty program was in place that increased mortality, and 
the ability of animals to recolonize the area was compromised by 
regional-scale influences that suppressed lynx numbers in adjacent 
populations.
    Recently, habitats in these areas have regenerated and source 
populations of lynx in northern Maine have increased, likely resulting 
in dispersal of lynx to New Hampshire and Vermont, where small numbers 
of breeding lynx have been documented in small areas of northern New 
Hampshire and northern Vermont only over the past few years (since 
2009-2010). Their recent arrival and the complex ecological 
interactions functioning at landscape scales make it difficult to 
assess the long-term status of lynx in these areas, as well as their 
potential contribution to the conservation of the DPS. In addition, 
potential lynx habitat in these areas is fragmented, landscape-level 
hare densities are low, and bobcat densities are relatively high. 
Consequently, these areas are unlikely to support robust lynx 
populations capable of generating dispersing animals that could occupy 
other portions of the species' range. The persistence of lynx in New 
Hampshire is likely reliant upon frequent dispersers from other 
populations. Because habitats in Vermont are even more localized and 
fragmented, the same situation most likely exists there. Within these 
areas, the status of lynx and their habitats may deteriorate further as 
a result of climate change.
    Considering all of the factors above, we believe that northern New 
Hampshire and northern Vermont do not contain the physical and 
biological features essential to lynx in adequate quantity and spatial 
arrangement to support lynx over time. As a result, we have determined 
these areas do not contain the PCE and do not meet the definition of 
critical habitat. Further, because neither area was occupied by lynx at 
the time of listing, to designate these areas as critical habitat we 
would have to determine they are essential to the conservation of the 
DPS (i.e., that the DPS could not be recovered unless we designate 
these areas). We have determined that the small areas in New Hampshire 
and Vermont recently occupied by a small number of breeding lynx are 
not essential for the conservation of the lynx DPS, and we have not 
designated any areas in New

[[Page 54822]]

Hampshire or Vermont as critical habitat in this final rule.

Eastern and Western Maine

    Historically, lynx are believed to have occurred throughout Maine. 
Hoving et al. (2003, entire) assembled historical records dating to 
1833 to reconstruct the past distribution of lynx in the State. Prior 
to 1913, lynx were found throughout the State, with the exception of 
coastal areas. From 1913 to 1972, records occurred in western and 
northern Maine. In 1936 and 1939, game wardens described lynx as rare, 
but present, in most districts except along the coast (Aldous and 
Medall 1941, as cited in Vashon et al. 2012, pp. 28, 33). From 1973 to 
1999, most records occurred in western and northern Maine, although 
lynx also occurred in the central and eastern portions of the State. 
Between 1995 and 1999, the Maine Department of Inland Fisheries and 
Wildlife conducted snow track surveys for lynx in western and northern 
Maine (Vashon et al. 2012 pp. 34-35) and documented lynx only in 
northern Maine. Surveys conducted from 2003 to 2008 documented lynx in 
both western and northern Maine (Vashon et al. 2012, pp. 34-35). Snow 
surveys for lynx have not been conducted in high-elevation habitats in 
western Maine. Surveys were not conducted in eastern Maine because 
there was no evidence that lynx occurred there.
    Hoving et al. (2003, p. 371) documented 39 historic records 
spanning 135 years of lynx kittens representing a minimum of 21 
litters. Most breeding was documented in northern Maine. Prior to 
listing, the last documented breeding in western Maine was observed in 
1995 and in eastern Maine in 1896 (Hoving 2001, p. 173). Since listing, 
lynx have been documented consistently in western and northern Maine 
and occasionally in central and eastern parts of the State (Vashon et 
al. 2012, pp. 12, 59). Lynx breeding has been documented in western, 
northern, and eastern Maine (the latter at a single location in 2010) 
(Vashon et al. 2012, p. 64). Lynx travel widely during dispersal and 
occasional forays outside of their home ranges (Vashon et al. 2012, pp. 
22, 59; Maine Department of Inland Fisheries and Wildlife, unpublished 
data), which may explain occasional occurrences outside of western and 
northern Maine.
    Portions of eastern and western Maine contain boreal forest 
landscapes with a mosaic of habitats of various ages, but it is 
uncertain whether these areas contain the PCE (i.e., the physical and 
biological features essential to lynx in adequate quantity and spatial 
arrangement to support lynx populations over time) for the following 
reasons. Like New Hampshire and Vermont, these areas occur at the 
southern extreme of the species' current distribution, where habitat is 
interspersed with northern hardwood forests, as well as human-dominated 
land cover types (e.g., developed areas, roads, agricultural fields, 
etc.). Therefore, habitat quality (percent of conifer forest, 
landscape-level hare density, intensity of forest management) is likely 
to be lower in eastern and western Maine than in northern Maine. Hoving 
et al. (2004, Fig. 1, p. 290) predicted a low probability of lynx 
occurrence in western Maine and no lynx occurrence in eastern Maine. 
Although potential lynx habitat in western Maine is fragmented, it is 
directly connected to the core area in northern Maine (Farrell 2013, 
pers. comm.), which we have designated as critical habitat in this 
rule.
    Snowshoe hares were at relatively high densities in northern Maine 
from 2001 to 2006, but declined by about 50 percent afterward (Scott 
2009, pp. 1-44; Vashon et al. 2012, p. 14). Lynx populations were 
believed to have reached the carrying capacity of the habitat in about 
2006 (Vashon et al. 2012, p. 58). At that time, lynx were likely 
dispersing at greater rates into western, central, and eastern parts of 
the State (Vashon et al. 2012, Fig. 4.2, p. 59) and were likely the 
source of lynx in New Hampshire and Vermont.
    The snow regime is adequate for lynx in western Maine, especially 
in higher elevations (Hoving 2001, Fig. 2.2 p. 51), but snow conditions 
are likely unsuitable for lynx in eastern Maine. Stand-level hare 
densities also should be similar to those in northern Maine (Litvaitis 
and Tash 2005, p. A-297), although landscape-level hare densities in 
western Maine are likely lower because spruce-fir habitat is a lower 
percentage of the landscape and more fragmented than in core lynx 
habitat in northern Maine (Hoving 2001, Fig. 2.6, p. 56; Robinson 2006 
pp. 81-146). Hare habitat modeling in western Maine indicated patchier 
and more widely distributed hare habitats compared to northern Maine 
due to differences in the size and distribution of regenerating 
clearcuts (Robinson 2006, Fig. 3.3, pp. 99, 181). These areas of 
western Maine have a higher prevalence of northern hardwoods, which 
support much lower hare densities.
    Carroll (2007, entire) used the Hoving lynx model as a basis to 
predict lynx distribution in the Northeast under several scenarios 
affecting forestry, trapping in Canada, and climate change. A reduced 
snow model predicted lynx would disappear in all of Maine and persist 
only in the higher elevation areas of the Adirondacks and White 
Mountain National Forest. However, Hoving (2001, p. 76) used different 
snowfall projections and models that predict lynx would continue to 
occur in northern Maine with reduced snow. Carroll's (2007) climate 
change model was based on predicted annual snowfall for 2055. 
Predictions were derived from the output of the Parallel Climate Model, 
a general circulation model developed by a consortium of researchers in 
support of the IPCC (Kiehl and Gent 2004, entire). The IPCC climate 
scenario that was used is in the intermediate to high ranges among the 
35 scenarios evaluated by the IPCC. Because these predictions provided 
only coarse resolutions (~200 km), Carroll interpolated the percent 
change in annual snowfall predicted and multiplied by finer-scale data 
for current annual snowfall to produce a ``sharpened'' estimate of 
future snowfall patterns. Carroll's modelling included a lake effect 
and thus differed slightly in output from that used by Hoving et al. 
(2005).
    Although climate change models are being refined for the Northeast, 
additional information is needed to understand what areas may support 
lynx in the future under a variety of climate change projections and to 
resolve high levels of uncertainty. In addition to the potentially 
conflicting climate models that make projecting lynx conservation into 
the future challenging, the biological response of lynx to climate 
change at the regional and stand scales is complex and poorly 
understood at this time. Thus, we believe it is premature at this time 
to draw any conclusions regarding how much of Maine is likely to remain 
suitable for lynx in the future as a result of climate change.
    Western and eastern Maine have the highest densities of bobcats in 
the State (Hoving 2001, pp. 54-55). Maine is at the northern edge of 
the bobcat range, and their populations decline during severe winters 
(Morris 1986, entire; Parker et al. 1983, entire). In 2008 and 2009, 
Maine experienced two severe winters with deep snow that may have 
depressed bobcat populations in western and eastern parts of the State 
at the same time that larger numbers of lynx were dispersing from 
northern Maine. These conditions may have allowed lynx to establish 
home ranges in areas formerly inhabited by bobcats. However, whether 
lynx will persist in these areas as bobcat populations recover is 
uncertain.

[[Page 54823]]

    As in New Hampshire and northern Vermont, some habitats in eastern 
and western Maine clearly contain some or all of the physical and 
biological features lynx require. However, it remains uncertain whether 
they contain the PCE. Because neither area was occupied by lynx at the 
time they were listed, to designate them as critical habitat we would 
have to determine that they are essential for the conservation of the 
DPS (i.e., that the DPS could not be recovered unless these areas were 
designated as critical habitat). We do not believe that is the case, 
and we do not expect that the area is needed for the conservation of 
the species.
    In summary, although lynx were known to occur historically in 
eastern and western Maine, reliable evidence of the ability of these 
areas to support lynx populations over time is lacking. The best 
available data, summarized above, suggest that eastern Maine was not 
occupied by lynx at the time of listing. Within these areas, the status 
of lynx and their habitats may deteriorate further as a result of 
climate change. Considering all of these factors, we believe that 
although eastern and western Maine contain physical and biological 
features important to lynx, we do not find evidence that these areas 
contain the features in adequate quantity and spatial arrangement to 
support lynx populations over time. As a result, we have determined 
these areas do not contain the PCE and do not meet the definition of 
critical habitat. We have determined that these areas are not essential 
to the conservation of the lynx DPS, and we have not designated 
critical habitat in eastern and western Maine in this final rule.
    When determining 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 lynx. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Given the scale of the lynx critical habitat units, it was not 
feasible to completely avoid inclusion of water bodies, including 
lakes, reservoirs, and rivers; grasslands; or human-made structures 
such as buildings, paved and gravel roadbeds, parking lots, and other 
structures that lack the PCE for the lynx. These areas, including any 
developed areas and the land on which such structures are located, that 
exist inside critical habitat boundaries are not intended to be 
designated as critical habitat. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in this rule. Therefore, a Federal action 
involving these lands would not trigger section 7 consultation with 
respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We have made the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0101, on our Internet 
sites http://www.fws.gov/montanafieldoffice/, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT, 
above).
    We are designating as critical habitat areas that we have 
determined were occupied by lynx populations at the time of listing and 
which contain the physical and biological features essential to the 
conservation of the lynx DPS in sufficient quantity and spatial 
arrangement to support life-history processes essential to the 
conservation of lynx populations within the DPS. Units were selected 
for designation because they contain sufficient elements of the 
physical and biological features essential for supporting lynx life 
processes and lynx populations over time. All units contain all of the 
identified elements of physical or biological features in adequate 
quantity and spatial arrangements on the landscape and support multiple 
life processes that allow lynx populations to persist over time.

Final Critical Habitat Designation

    We are designating five units as critical habitat for the Canada 
lynx DPS. The critical habitat areas described below constitute our 
best assessment at this time of areas that meet the definition of 
critical habitat. The designated units are: Unit 1 in northern Maine 
(Aroostook, Franklin, Penobscot, Piscataquis, and Somerset Counties); 
Unit 2 in northeastern Minnesota (Cook, Koochiching, Lake, and St. 
Louis Counties); Unit 3 in the Northern Rocky Mountains of northwest 
Montana (Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, 
Missoula, Pondera, Powell and Teton Counties) and northeast Idaho 
(Boundary County); Unit 4 in the North Cascade Mountains of north-
central Washington (Chelan and Okanogan Counties); and Unit 5 in the 
Greater Yellowstone Area of southwest Montana (Carbon, Gallatin, Park, 
Stillwater, and Sweetgrass Counties) and northwest Wyoming (Fremont, 
Lincoln, Park, Sublette, and Teton Counties). All units were occupied 
by lynx populations at the time of listing and are currently occupied 
by lynx populations. The approximate area and ownership within each 
critical habitat unit is shown in Table 1, and the area and ownership 
by State is shown in Table 2.

                                 Table 1--Designated Critical Habitat Units for Canada Lynx by Ownership (mi\2\ (km\2\))
                                  [Area estimates reflect all land within designated critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                             Unit                                    Federal            State            Private            Other             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.............................................................             0 (0)       819 (2,122)    9,281 (24,039)           22 (57)   10,123 (26,218)
2.............................................................    3,863 (10,005)    2,947 (7,633 )     1,259 (3,260)             0 (0)    8,069 (20,899)
3.............................................................    8,788 (22,761)         156 (404)       839 (2,172)             0 (0)    9,783 (25,337)
4.............................................................     1,829 (4,737)             0 (0)            5 (14)             0 (0)     1,834 (4,751)
5.............................................................    8,922 (23,109)           23 (60)         200 (518)         0.5 (1.3)    9,146 (23,687)
                                                               -----------------------------------------------------------------------------------------
    Total.....................................................   23,402 (60,612)    3,945 (10,217)   11,584 (30,003)           23 (59)  38,954 (100,891)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 54824]]


                                Table 2--Designated Critical Habitat for Canada Lynx by State and Ownership (mi\2\/km\2\)
                                  [Area estimates reflect all land within designated critical habitat unit boundaries]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Federal            State            Private            Other             Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho.........................................................          45 (117)        0.04 (0.1)             0 (0)             0 (0)          45 (117)
Maine.........................................................             0 (0)       819 (2,122)    9,281 (24,039)           22 (57)   10,123 (26,218)
Minnesota.....................................................    3,863 (10,005)     2,947 (7,633)     1,259 (3,206)             0 (0)    8,069 (20,899)
Montana.......................................................   10,978 (28,433)         168 (437)       979 (2,535)         0.5 (1.3)   12,126 (31,405)
Washington....................................................     1,829 (4,737)             0 (0)            5 (14)             0 (0)     1,834 (4,751)
Wyoming.......................................................    6,688 (17,321)           10 (26)          60 (155)             0 (0)    6,758 (17,502)
                                                               -----------------------------------------------------------------------------------------
    Total.....................................................   23,402 (60,612)    3,945 (10,217)   11,584 (30,003)           23 (59)  38,954 (100,891)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the lynx DPS, below.

Unit 1: Northern Maine

    Unit 1 consists of 10,123 mi\2\ (26,218 km\2\) located in northern 
Maine in portions of Aroostook, Franklin, Penobscot, Piscataquis, and 
Somerset Counties. This area was occupied by the lynx at the time of 
listing and is currently occupied by the species (Hoving et al. 2003, 
entire; Vashon et al. 2012, pp. 12-14, 58-60; Interagency Lynx Biology 
Team 2013, pp. 39-42). This area contains the physical and biological 
features essential to the conservation of the lynx DPS as it comprises 
the PCE and its components laid out in the appropriate quantity and 
spatial arrangement. Lynx in northern Maine have high productivity: 91 
percent of available adult females (greater than 2 years) produced 
litters, and litters averaged 2.83 kittens (Vashon et al. 2005b, pp. 4-
6; Vashon et al. 2012, p. 18). This area is also important for lynx 
conservation because it is the only area in the northeastern region of 
the lynx's range within the contiguous United States that currently 
supports a resident breeding lynx population and likely acts as a 
source or provides connectivity with Canada for more peripheral 
portions of the lynx's range in the Northeast.
    Timber harvest and management are the dominant land uses within the 
unit; therefore, special management may be required depending on the 
silvicultural practices implemented (68 FR 40075). Timber management 
practices that provide for a dense understory are beneficial for lynx 
and snowshoe hares. In this area, climate change is predicted to 
significantly reduce lynx habitat and population size. Carroll (2007, 
pp. 1100-1103) modeled a 59 percent decline in lynx numbers in the 
northeastern United States and eastern Canada by 2055 due to climate 
change, with greater vulnerability among small, peripheral, low-
elevation populations like that in Maine. Under this modeled scenario, 
populations would have difficulty sustaining themselves, and the lynx 
distribution would likely contract to the core of the population on the 
Gaspe Peninsula in Quebec, Canada (Carroll 2007, p. 1102). Gonzalez et 
al. (2007, p. 14) modeled potential climate-induced loss of snow and 
concluded that snow suitable for lynx may disappear from Maine entirely 
by the end of this century. Therefore, climate change represents a 
potential habitat-related threat to lynx in this unit.
    Changing forest management practices are also likely to result in 
reduced hare and lynx habitat in this unit. Much of the lynx and hare 
habitat in this unit is the result of broad-scale clear-cut timber 
harvest in the 1970s and 1980s in response to a spruce budworm outbreak 
and the subsequent treatment of some clearcuts with herbicide to 
promote conifer regeneration. These clear-cut stands are now at a 
successional (regrowth) stage (about 35 years postharvest) that 
features very dense conifer cover and provides optimal hare and lynx 
habitats, likely supporting many more hares and lynx than occurred 
historically. The Maine Forest Practices Act (1989) limited the size of 
clearcuts, resulting in a near complete shift away from clearcuts to 
partial harvesting. This transition to partial harvest timber 
management is unlikely to create or maintain the extensive tracts of 
hare and lynx habitats that currently exist as a result of previous 
clearcutting. As the clear-cut stands continue to age, their habitat 
value to hares and lynx is expected to decline. Even in the absence of 
climate change considerations, forest succession and reduced 
clearcutting are expected to result in a substantially smaller lynx 
population in this unit by 2035 (Simons 2009, pp. 153-154, 162-165, 
206, 216-220; Vashon et al. 2012, pp. 58-60). Therefore, the potential 
for forest management practices to result in reduced quantity and 
quality of lynx and hare habitats represents a habitat-related threat 
to lynx in this unit. Other potential habitat-related threats to lynx 
in this unit are habitat loss and fragmentation due to road and highway 
construction (along with associated increases in traffic volumes and/or 
speeds) and commercial, recreational, and wind-energy development.
    In this final rule, we have not designated critical habitat on 
Tribal lands in this unit nor on lands managed in accordance with the 
Natural Resources Conservation Service's Healthy Forest Reserve Program 
(see Consideration of Impacts under section 4(b)(2) of the Act, below).

Unit 2: Northeastern Minnesota

    Unit 2 consists of 8,069 mi\2\ (20,899 km\2\) located in 
northeastern Minnesota in portions of Cook, Koochiching, Lake, and St. 
Louis Counties, and Superior National Forest. In 2003, when we formally 
reviewed the status of the lynx, numerous verified records of lynx 
existed from northeastern Minnesota (68 FR 40076). The area was 
occupied at the time of listing and is currently occupied by the 
species (Moen et al. 2008b, pp. 29-32; Moen et al. 2010, entire; Catton 
and Loch 2010, entire; 2011, entire; 2012, entire; Interagency Lynx 
Biology Team 2013, pp. 44-47). Lynx are currently known to be 
distributed throughout northeastern Minnesota, as has been confirmed 
through DNA analysis, radio- and GPS-collared animals, and 
documentation of reproduction (Moen et al. 2008b, entire; Moen et al. 
2010, entire). This area contains the physical and biological features 
essential to the conservation of the lynx DPS as it comprises the PCE 
and its components laid out in the appropriate quantity and spatial 
arrangement. This area is essential to the conservation of lynx because 
it is the only area in the Great Lakes Region for which there is 
evidence of recent lynx reproduction. It likely acts as a source or 
provides connectivity for more peripheral portions of the lynx's range 
in the region.

[[Page 54825]]

    Timber harvest and management are dominant land uses (68 FR 40075). 
Therefore, special management may be required depending on the 
silvicultural practices implemented. Timber management practices that 
provide for a dense understory are beneficial for lynx and snowshoe 
hares. In this area, climate change may affect lynx and their habitats; 
however, Gonzalez et al. (2007, p. 14) suggested that snow conditions 
in northern Minnesota should continue to be suitable for lynx through 
the end of this century. Nonetheless, because climate change may alter 
vegetation communities and, hence, hare densities, it still represents 
a potential habitat-related threat to lynx in this unit. Fire 
suppression or fuels treatment, habitat fragmentation associated with 
road-building (and associated increases in traffic volumes and/or 
speeds), and commercial, recreational, and energy/mineral development 
pose other potential habitat-related threats to lynx in this unit. 
Incidental capture of lynx in traps set for other species has been 
documented recently in Minnesota, as have lynx mortalities from vehicle 
collisions (U.S. Fish and Wildlife Service 2013d, unpubl. database).
    In this final rule, we have not designated critical habitat on 
Tribal lands in this unit (see Consideration of Impacts under section 
4(b)(2) of the Act, below).

Unit 3: Northern Rocky Mountains

    Unit 3 consists of 9,783 mi\2\ (25,337 km\2\) located in 
northwestern Montana and a small portion of northeastern Idaho in 
portions of Boundary County in Idaho and Flathead, Glacier, Granite, 
Lake, Lewis and Clark, Lincoln, Missoula, Pondera, Powell, and Teton 
Counties in Montana. It includes National Forest lands and BLM lands in 
the Garnet Resource Area. This area was occupied by lynx at the time of 
listing and is currently occupied by the species (Squires et al. 2010, 
entire; Squires et al. 2012, entire; Squires et al. 2013, entire; 
Interagency Lynx Biology Team 2013, pp. 57-61). Lynx are known to be 
widely distributed throughout this unit, and breeding has been 
documented in multiple locations (Gehman et al. 2004, pp. 24-29; 
Squires et al. 2004a, pp. 8-10, 2004b, entire, and 2004c, pp. 7-10). 
This area contains the physical and biological features essential to 
the conservation of the lynx DPS as it comprises the PCE and its 
components laid out in the appropriate quantity and spatial 
arrangement. This area is essential to the conservation of lynx because 
it appears to support the highest density lynx populations in the 
Northern Rocky Mountain region of the lynx's range. It likely acts as a 
source for lynx and provides connectivity to other portions of the 
lynx's range in the Rocky Mountains, particularly the Greater 
Yellowstone Area.
    Timber harvest and management are dominant land uses (68 FR 40075); 
therefore, special management may be required depending on the 
silvicultural practices implemented. Timber management practices that 
provide for a dense understory are beneficial for lynx and snowshoe 
hares. In this area, climate change is expected to result in the 
potential loss of snow conditions suitable for lynx by the end of this 
century (Gonzalez et al. 2007, p. 14). Therefore, climate change 
represents a potential habitat-related threat to lynx in this unit. 
Fire suppression or fuels treatment, habitat fragmentation associated 
with road-building (and associated increases in traffic volumes and/or 
speeds), and commercial, recreational, and energy/mineral development 
pose other potential habitat-related threats to lynx in this unit.
    In this final rule, we have not designated critical habitat on 
Tribal lands in this unit nor on lands managed in accordance with the 
MDNRC HCP (see Consideration of Impacts under section 4(b)(2) of the 
Act, below).

Unit 4: North Cascades

    Unit 4 consists of 1,834 mi\2\ (4,751 km\2\) located in north-
central Washington in portions of Chelan and Okanogan Counties and 
includes mostly Okanogan-Wenatchee National Forest lands as well as BLM 
lands in the Spokane District and Loomis State Forest lands. This area 
was occupied at the time lynx was listed and is currently occupied by 
the species (Interagency Lynx Biology Team 2013, pp. 64-65). This area 
contains the physical and biological features essential to the 
conservation of the lynx DPS as it comprises the PCE and its components 
laid out in the appropriate quantity and spatial arrangement. This unit 
supports the highest densities of lynx in Washington (Stinson 2001, p. 
2). Evidence from recent research and DNA analysis shows lynx 
distributed within this unit, with breeding being documented (von 
Kienast 2003, p. 36; Koehler et al. 2008, entire; Maletzke et al. 2008, 
entire). Although researchers have fewer records in the portion of the 
unit south of Highway 20, few surveys have been conducted there. This 
area contains boreal forest habitat and the components essential to 
lynx conservation. Further, it is contiguous with the portion of the 
unit north of Highway 20, particularly in winter when deep snows close 
Highway 20. The northern portion of the unit adjacent to the Canada 
border also appears to support few recent lynx records; however, it is 
designated wilderness, so access to survey this area is difficult. This 
northern portion also contains extensive boreal forest vegetation types 
and the components essential to lynx conservation. Additionally, lynx 
populations exist in British Columbia directly north of this unit 
(Interagency Lynx Biology Team 2013, p. 65). This area is essential to 
the conservation of the lynx DPS because it is the only area in the 
Cascades region of the lynx's range that is known to support breeding 
lynx populations.
    Timber harvest and management are dominant land uses; therefore, 
special management may be required depending on the silvicultural 
practices implemented. Timber management practices that provide for a 
dense understory are beneficial for lynx and snowshoe hares. In this 
area, Federal land management plans are being amended to incorporate 
lynx conservation. Climate change is expected to reduce lynx habitat 
and numbers in this unit, with potential loss of snow suitable for lynx 
(Gonzalez et al. 2007, p. 14) and the potential complete disappearance 
of lynx from the area by the end of this century (Johnston et al. 2012, 
pp. 7-11). Therefore, climate change represents a potential habitat-
related threat to lynx in this unit. Fire suppression or fuels 
treatment, habitat fragmentation associated with road-building (and 
associated increases in traffic volumes and/or speeds), and 
recreational and energy/mineral development pose other potential 
habitat-related threats to lynx in this unit.
    In this final rule, we have not designated critical habitat in this 
unit on lands managed in accordance with the WDNR Lynx Habitat 
Management Plan (see Consideration of Impacts under section 4(b)(2) of 
the Act, below).

Unit 5: Greater Yellowstone Area

    Unit 5 consists of 9,146 mi\2\ (23,687 km\2\) located in 
Yellowstone National Park and surrounding lands of the Greater 
Yellowstone Area in southwestern Montana and northwestern Wyoming. 
Lands in this unit are found in Carbon, Gallatin, Park, Stillwater, and 
Sweetgrass Counties in Montana; and Fremont, Lincoln, Park, Sublette, 
and Teton Counties in Wyoming. This area was occupied by lynx at the 
time of listing and is thought to be currently occupied by a small but 
persistent lynx population (Squires and Laurion 2000, entire; Squires 
et al. 2001,

[[Page 54826]]

entire; Murphy et al. 2006, entire; Interagency Lynx Biology Team 2013, 
pp. 57-61). This area contains the physical and biological features 
essential to the conservation of the lynx DPS as it comprises the PCE 
and its components laid out in the appropriate quantity and spatial 
arrangement. The Greater Yellowstone Area is naturally marginal lynx 
habitat with highly fragmented foraging habitat (68 FR 40090; 71 FR 
66010, 66029; 74 FR 8624, 8643-8644; Hodges et al. 2009, entire). For 
this reason lynx home ranges in this unit are likely to be larger and 
incorporate large areas of non-foraging matrix habitat.
    Timber harvest and management are dominant land uses on National 
Forest System lands in this unit; therefore, special management may be 
required depending on the silvicultural practices implemented. Timber 
management practices that provide for a dense understory are beneficial 
for lynx and snowshoe hares. Climate change is expected to reduce lynx 
habitat and numbers in this unit, with potential loss of snow suitable 
for lynx over most of the area by the end of this century, though with 
potential snow refugia in the Wyoming Range Mountains (Gonzalez et al. 
2007, p. 14). Therefore, climate change represents a potential habitat-
related threat to lynx in this unit. Fire suppression or fuels 
treatment, habitat fragmentation associated with road-building (and 
associated increases in traffic volumes and/or speeds), and 
recreational and energy/mineral development pose other potential 
habitat-related threats to lynx in this unit. Therefore, special 
management is required depending on the fire suppression and fuels 
treatment practices conducted and the design of highway and energy 
development projects.
    In this final rule, we have not designated critical habitat in this 
unit on lands managed in accordance with the MDNRC HCP (see 
Consideration of Impacts under section 4(b)(2) of the Act, below).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
designated critical habitat.
    Decisions by the Fifth and Ninth 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, 434 (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 provisions of the Act, we determine 
destruction or adverse modification on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would continue to serve its intended conservation role for the 
species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, Tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the lynx 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

[[Page 54827]]

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, are required to undergo consultation 
in accordance with section 7 of the Act to evaluate potential impacts 
to habitats essential to the conservation of the lynx DPS. These 
activities include, but are not limited to:
    (1) Actions that would reduce or remove understory vegetation 
within boreal forest stands on a scale proportionate to the large 
landscape used by lynx. Such activities could include, but are not 
limited to, forest stand thinning, timber harvest, and fuels treatment 
of forest stands. These activities could significantly reduce the 
quality of snowshoe hare habitat such that the landscape's ability to 
produce adequate densities of snowshoe hares to support lynx 
populations is at least temporarily diminished.
    (2) Actions that would cause permanent loss or conversion of the 
boreal forest on a scale proportionate to the large landscape used by 
lynx. Such activities could include, but are not limited to, 
recreational area developments; certain types of mining activities and 
associated developments; and road building. Such activities could 
eliminate and fragment lynx and snowshoe hare habitat.
    (3) Actions that would increase traffic volume and speed on roads 
that divide lynx critical habitat. Such activities could include, but 
are not limited to, transportation projects to upgrade roads or 
development of a new tourist destination. These activities could reduce 
connectivity within the boreal forest landscape for lynx, and could 
result in increased mortality of lynx within the critical habitat 
units, because lynx are highly mobile and frequently cross roads during 
dispersal, exploratory movements, or travel within their home ranges.
    In matrix habitat, activities that change vegetation structure or 
condition would not be considered an adverse effect to lynx critical 
habitat unless those activities would create a barrier or impede lynx 
movement between patches of foraging habitat and between foraging and 
denning habitat within a potential home range, or if they would 
adversely affect adjacent foraging habitat or denning habitat. For 
example, a pre-commercial thinning or fuels reduction project in matrix 
habitat would not adversely affect lynx critical habitat, and would not 
require consultation. However, a new highway passing through matrix 
habitat that would impede lynx movement may be an adverse effect to 
lynx critical habitat, and would require consultation. The scale of any 
activity should be examined to determine whether direct or indirect 
alteration of habitat would occur to the extent that the value of 
critical habitat for the survival and recovery of lynx would be 
appreciably diminished.
    If you have questions regarding whether specific activities may 
constitute destruction or adverse modification of critical habitat, 
contact the Supervisor of the appropriate Ecological Services Field 
Office (see list below).

------------------------------------------------------------------------
             State                     Address             Phone No.
------------------------------------------------------------------------
Maine.........................  17 Godfrey Drive,         (207) 866-3344
                                 Suite 2, Orono, ME
                                 04473.
Minnesota.....................  4101 American             (612) 725-3548
                                 Boulevard East,
                                 Bloomington,
                                 Minnesota 55425.
Montana.......................  585 Shepard Way,          (406) 449-5225
                                 Suite 1, Helena,
                                 Montana 59601.
Idaho and Washington..........  11103 E. Montgomery       (509) 893-8015
                                 Drive, Spokane,
                                 Washington 99206.
Wyoming.......................  5353 Yellowstone          (307) 772-2374
                                 Road, Suite 308A,
                                 Cheyenne, Wyoming
                                 82009.
------------------------------------------------------------------------

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] 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.'' There are no 
Department of Defense lands with a completed INRMP within this final 
critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat upon a 
determination that the benefits of such exclusion outweigh the benefits 
of specifying such area as part of the critical habitat, unless doing 
so would, based on the best scientific data available, 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.
    When identifying the benefits of inclusion for an area, we consider 
the additional regulatory benefits that area would receive from the 
protection from destruction or adverse modification of critical habitat 
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 
conservation benefits equal to or greater than those provided by a 
critical habitat designation.
    In the case of the lynx DPS, the benefits of critical habitat 
include promotion of public awareness of the presence of the species 
and the importance of habitat protection, and in cases where a Federal 
nexus exists, potentially greater habitat protection for lynx due to 
the protection from destruction or adverse modification of critical 
habitat.
    When we evaluate the benefits of excluding particular areas for 
which conservation plans have been developed, we consider a variety of 
factors, including but not limited to, whether the plan is finalized; 
how it provides for the conservation of the essential physical or 
biological features; whether there is a reasonable expectation that the 
conservation management strategies and actions

[[Page 54828]]

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 cannot exclude it from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments received, we evaluated whether 
certain lands in the proposed critical habitat were appropriate for 
exclusion from this final designation pursuant to section 4(b)(2) of 
the Act. We are excluding the following areas from critical habitat 
designation for the Canada lynx DPS: (1) Tribal lands, which occur in 
units 1, 2, and 3; (2) private lands in Maine managed in accordance 
with the Natural Resources Conservation Service's (NRCS) Healthy Forest 
Reserve Program (75 FR 6539); (3) State lands in western Montana 
managed in accordance with the Montana Department of Natural Resources 
and Conservation (MDNRC) Forested State Trust Lands Habitat 
Conservation Plan (HCP) (Montana Department of Natural Resources and 
Conservation and U.S. Fish and Wildlife Service 2010a, entire; 2010b, 
entire; 2010c, entire); and (4) State lands in northern Washington 
managed in accordance with the State of Washington Department of 
Natural Resources (DNR) Lynx Habitat Management Plan for DNR-managed 
Lands (Washington DNR 2006, entire). Table 3 below provides approximate 
areas of lands that meet the definition of critical habitat but which 
we have excluded from the final critical habitat rule under section 
4(b)(2) of the Act. For additional details on these plans, see 
Exclusions Based on Other Relevant Impacts, below.

  Table 3--Areas Excluded From Critical Habitat Designation for Canada
                      Lynx by Critical Habitat Unit
------------------------------------------------------------------------
                                                          Area in mi\2\
                                                        (km\2\) excluded
             Unit                    Specific area         from final
                                                        critical habitat
                                                           designation
------------------------------------------------------------------------
1. Maine......................  Tribal Lands:                 95.7 (248)
                                 Passamaquoddy Tribe,
                                 Penobscot Indian
                                 Nation.
1. Maine......................  Maine Healthy Forest       943.2 (2,443)
                                 Reserve Program.
2. Minnesota..................  Tribal Lands: Grand          77.9 ( 202)
                                 Portage Reservation,
                                 Bois Forte
                                 Reservation--Vermilli
                                 on Lake District.
3. Northern Rocky Mountains...  Tribal Lands:                369.6 (957)
                                 Confederated Salish
                                 and Kootenai Tribes,
                                 Flathead Reservation.
3. Northern Rocky Mountains...  Montana DNRC                 271.4 (703)
                                 Multispecies Habitat
                                 Conservation Plan.
4. North Cascade Mountains....  Washington DNR Lynx          164.2 (425)
                                 Habitat Management
                                 Plan.
5. Greater Yellowstone Area...  Montana DNRC                     1.3 (3)
                                 Multispecies Habitat
                                 Conservation Plan.
------------------------------------------------------------------------

Consideration of Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. To consider 
economic impacts, we prepared an incremental effects memorandum (IEM) 
and screening analysis which, together with our narrative and 
interpretation of effects, we consider our draft economic analysis 
(DEA) of the proposed critical habitat designation and related factors 
(U.S. Fish and Wildlife Service and IEc, Inc. 2014, entire). The 
analysis, dated June 11, 2014, was made available for public review 
from June 20, 2014, through July 21, 2014 (79 FR 35303). The DEA 
addressed potential economic impacts of critical habitat designation 
for the lynx DPS. Following the close of the comment period, we 
reviewed and evaluated all information submitted during the comment 
period that may pertain to our consideration of the probable 
incremental economic impacts of this critical habitat designation. 
Based on that evaluation, the probable incremental economic impacts of 
critical habitat designation for the lynx DPS are summarized below. 
Additional information relevant to our evaluation of incremental 
economic impacts is available in the final economic analysis for the 
designation of critical habitat for the lynx DPS (U.S. Fish and 
Wildlife Service and IEc, Inc. 2014, entire), available at http://www.regulations.gov, and at our Web site: http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm.
    Revised critical habitat for the lynx DPS is very unlikely to 
generate incremental economic costs exceeding $100 million in a single 
year (see additional discussion of this threshold in the Unfunded 
Mandates Reform Act section, below). Data limitations prevent the 
quantification of benefits. The economic costs of implementing the rule 
through section 7 of the Act will most likely be limited to the 
additional administrative effort required to consider adverse 
modification during section 7 consultations for activities with a 
Federal nexus. This finding is based on the following factors:
    (1) All units are considered currently occupied, providing baseline 
protection via section 7 consultations addressing the jeopardy 
standard;
    (2) Activities occurring within designated critical habitat with a 
potential to affect critical habitat are also likely to jeopardize the 
species, either directly or indirectly;
    (3) Project modifications requested to avoid adverse modification 
are likely to be the same as those needed to avoid jeopardy;
    (4) On Federal lands, as well as some private and State lands, 
ongoing conservation efforts offer additional baseline protection; and
    (5) Critical habitat is unlikely to increase the annual 
consultation rate for two primary reasons:
    (a) The existing awareness of the need to consult due to the 
listing of the species; and
    (b) The fact that the 2009 critical habitat designation covered 89 
percent of the areas designated as critical habitat in this final rule.
    According to a review of consultation records and discussions with 
multiple Service field offices, the additional administrative cost of 
addressing adverse modification during the section 7 consultation 
process ranges from approximately $400 to $5,000 per consultation (2014 
dollars). Based on

[[Page 54829]]

the historical consultation activity, we forecast an annual 
consultation rate of approximately 161 per year, resulting in costs 
ranging from $64,400 to $805,000 annually (2014 dollars). Thus, the 
incremental administrative burden resulting from the rule is well below 
the threshold of $100 million in a given year.
    The revised designation of critical habitat for the lynx DPS is not 
expected to trigger additional requirements under State or local 
regulations. This assumption is based on the array of existing baseline 
protections for the lynx and the general awareness of State agencies of 
the presence of the species. The revised designation may cause land 
managers, landowners, or developers to perceive that private lands will 
be subject to use restrictions, resulting in costs. However, such 
impacts, if they occur, are very unlikely to reach $100 million in a 
given year.
    No additional section 7 efforts to conserve the lynx DPS are 
predicted to result from the revised designation of critical habitat. 
If, however, public perception of the effect of critical habitat causes 
changes in future land use, benefits to the species and environmental 
quality may occur. Due to existing data limitations, we are unable to 
assess the likely magnitude of such benefits.
    The majority of anticipated future consultations are expected to 
occur in Unit 5 (Greater Yellowstone Area). Costs resulting from public 
perception of the impact of critical habitat, if they occur, are more 
likely to occur in Unit 4 (North Cascades) and private lands located in 
Unit 1 (Northern Maine).

Exclusions Based on Economic Impacts

    Our 2014 and 2009 economic analyses did not identify any 
disproportionate costs that are likely to result from the designation. 
Consequently, the Secretary is not exercising her discretion to exclude 
any areas from this designation of critical habitat for the lynx DPS 
based on economic impacts.
    Both the current economic analysis (U.S. Fish and Wildlife Service 
and IEc, Inc. 2014, entire) and the final economic analysis completed 
for the 2009 critical habitat designation for the lynx DPS (IEc, Inc. 
2008, entire) specifically addressed potential economic impacts to the 
Washington State Snowmobile Association (WASSA) and the groups it 
represents. Both analyses, incorporated here by reference in their 
entireties, considered the comments and regional economic assessments 
provided by the WASSA in response to the 2008 and 2013 proposed 
designations. In our analyses, we have carefully evaluated potential 
impacts to snowmobiling interests throughout the critical habitat 
designation, and specifically with regard to the concerns of the WASSA 
and the Wyoming State Snowmobile Association.
    Snowmobiling occurs throughout the areas designated as lynx 
critical habitat, and understanding of the potential effects of 
snowmobiling on lynx continues to evolve. Concerns about potential 
negative impacts of snowmobiling are based primarily on the hypothesis 
that compacted over-the-snow trails could result in increased 
competition between lynx and other snowshoe hare predators, such as 
coyotes, in areas where deep snow would otherwise preclude or minimize 
such competition (Buskirk et al. 2000a, pp. 86-95). Research on the 
relationship between coyotes, lynx, and lynx habitat has provided mixed 
results regarding this hypothesis, with several studies showing that 
coyotes use compacted snow trails, but none indicating increased 
competition or substantial dietary overlap between lynx and coyotes 
(Interagency Lynx Biology Team 2013, pp. 80-82). In response to this 
uncertainty, the 2013 revisions to the LCAS provided more flexibility 
with respect to the management of recreational activities in lynx 
habitat, and snowmobiling stakeholders have largely expressed approval 
of the 2013 LCAS revisions (U.S. Fish and Wildlife Service and IEc, 
Inc. 2014, pp. 11-12).
    Between 3,000 and 5,000 miles of trails are available for 
snowmobiling in Washington, of which about 200 miles (4.0-6.7 percent) 
occur within the revised critical habitat designation. A 2003 study 
estimated that the number of people participating in snowmobiling would 
increase 43 percent by the year 2013 (State of Washington 2003, pp. 4, 
41); however, it is not clear whether this level of increase has 
occurred. In 2001, Washington State University and the WASSA conducted 
a snowmobile usage study and concluded that the annual economic impact 
of snowmobiling in Washington was $92.7 million dollars. In response to 
the 2009 critical habitat designation, WASSA estimated that 
snowmobiling accounted for nearly $8.5 million in direct expenditures 
and $4.1 million in indirect spending in Methow Valley, an area 
adjacent to designated critical habitat.
    The WASSA, which represents about 30,000 registered snowmobilers 
and nearly 100 snowmobile-related businesses, has again expressed 
concern that critical habitat designation may generate significant 
economic impacts to the snowmobiling industry. Specifically, the WASSA 
is concerned that people will perceive that the designation will limit 
snowmobiling and in turn will be less likely to invest in snowmobiling 
equipment, that the designation will prevent an increase in over-the-
snow trails thus resulting in congestion, and that the designation will 
present an additional regulatory burden for future attempts to expand 
or increase the number of trails in the area (U.S. Fish and Wildlife 
Service and IEc, Inc. 2014, p. 13).
    Although annual data on snowmobiling participation in Washington 
since 2009 are not readily available, the critical habitat designation 
is not anticipated to adversely change snowmobiling in Washington (U.S. 
Fish and Wildlife Service and IEc, Inc. 2014, p. 13). We evaluated 
whether and how snowmobiling activities in Maine and Minnesota were 
affected as a result of the 2009 critical habitat designation, and we 
found no significant changes in snowmobiling activities have been 
observed there since the 2009 designation (U.S. Fish and Wildlife 
Service and IEc, Inc. 2014, p. 13). We have had no reports of 
significant economic impacts to snowmobiling interests in the other 
areas designated as critical habitat in 2009 (western Montana, northern 
Idaho, and northwestern Wyoming).
    In response to our 2013 proposed critical habitat designation, the 
WASSA resubmitted the sector assessment study it previously 
commissioned on the regional economic impacts of the 2008 proposed 
critical habitat rule. The WASSA study assumes that lynx conservation 
efforts will result in an overall loss of winter visitors and tourism 
spending within the region. The study employs a regional input/output 
model, estimating the potential cost of the critical habitat 
designation to be $262,000 to $1,645,000 (2013 dollars) through the 
year 2025, assuming a seven percent discount rate. This present-value 
sum translates to approximately $27,000 to $168,500 on an annualized 
basis, assuming a seven percent discount rate.
    Based on both the current economic analysis (U.S. Fish and Wildlife 
Service and IEc, Inc. 2014, entire) and the final economic analysis 
completed for the 2009 critical habitat designation for the lynx DPS 
(IEc, Inc. 2008, entire), we have determined that the designation of 
critical habitat for the lynx DPS will not result in disproportionate 
economic impacts to snowmobiling interests anywhere within the 
designated areas, and specifically with regard to those interests 
represented by the WASSA and the Wyoming State Snowmobile Association. 
We have made this

[[Page 54830]]

evaluation available to the Secretary for her consideration when 
determining whether to exercise her discretion to exclude these or 
other areas based on baseline and incremental economic impacts. Based 
on her consideration of this evaluation, the Secretary is not 
exercising her discretion to exclude any areas from this designation of 
critical habitat for the lynx DPS based on economic impacts.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
the lynx DPS are owned or managed by the Department of Defense or 
Department of Homeland Security, and, therefore, we anticipate no 
impact on national security or homeland security. Consequently, the 
Secretary is not exercising her discretion to exclude any areas from 
this final designation based on impacts on national security or 
homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we also consider any other 
relevant impacts resulting from the designation of critical habitat. We 
consider a number of factors, including whether the landowners have 
developed any HCPs or other management plans for the area, or whether 
there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any Tribal issues and consider the government-to-government 
relationship of the United States with Tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
Consideration of Land and Resource Management Plans, Conservation 
Plans, or Agreements Based on Conservation Partnerships
    We consider a current land management or conservation plan (HCPs as 
well as other types) to provide adequate management or protection if it 
meets the following criteria:
    (1) The plan is complete and provides 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 have determined that the following partnerships, program, and 
plans fulfill the above criteria, and we are, therefore, excluding from 
critical habitat the areas of non-Federal lands covered by them because 
they provide for the conservation of the lynx DPS.
Tribal Lands Conservation Partnerships
    Tribal lands in Maine, Minnesota, and Montana fall within the 
boundaries of designated critical habitat in units 1 (Maine), 2 
(Minnesota), and 3 (Northern Rocky Mountains). Tribal lands include 
those of the Passamaquoddy Tribe and the Penobscot Indian Nation in 
Maine, the Grand Portage Indian Reservation and Bois Forte Indian 
Reservation--Vermillion Lake District in Minnesota, and the 
Confederated Salish and Kootenai Tribes of the Flathead Indian 
Reservation in Montana. The amount of Tribal lands that occur within 
the final designation is relatively small in size, totaling 
approximately 543.2 mi\2\ (1,407 km\2\), which represents 1.4 percent 
of the total final designation.
    In the proposed rule, we requested comments on whether Tribal lands 
in Maine, Minnesota, and the Northern Rockies should be excluded 
pursuant to Executive Order 3206. We also contacted a number of Tribes 
to discuss the proposed designation and, as they had done previously 
during discussions regarding the 2009 designation, the Tribes again 
requested that their lands not be designated as critical habitat 
because of their sovereign rights, in addition to concerns about 
economic impacts and the effect on their ability to manage natural 
resources.

Benefits of Inclusion

    The primary benefit of including Tribal lands in the lynx critical 
habitat designation would be education that could be exchanged on land 
management methods that would benefit the species. Potentially, some 
activities could be authorized, funded, or carried out by a Federal 
agency, which would require consultation and perhaps action 
modification to ensure that the physical and biological features 
essential to lynx are not destroyed or adversely modified.

Benefits of Exclusion

    Tribal lands are small in size relative to the large landscape 
required to sustain the lynx populations in these areas. The larger 
landscape in Maine comprises lands managed for commercial forestry, and 
in Minnesota and Montana the larger landscape is managed by the USFS, 
which revised its forest plans to address the conservation needs of 
lynx. Therefore, although these Tribal lands support lynx habitat and 
the PCE, they have a minor role in lynx conservation compared to the 
extensive commercial forestlands in Maine and National Forest lands in 
Minnesota and Montana. Due to Tribal natural resource management 
philosophies, plans, and practices that are designed to avoid adverse 
effects to lynx and lynx habitat, and that are already in place on 
Tribal lands, it is highly unlikely that activities approaching the 
threshold of adverse modification of critical habitat would occur.
    Tribal lands of the Passamaquoddy Tribe and the Penobscot Indian 
Nation fall within lynx critical habitat in Maine. These lands 
represent only 0.9 percent of the total critical habitat designation in 
Unit 1. The Environmental Mission of the Passamaquoddy Tribe is: ``to 
protect the environment and conserve natural resources within all 
Passamaquoddy lands, waters, and the air we share'' (Passamaquoddy 
Tribe 2014, entire). Through Federal grant programs, the Passamaquoddy 
Tribe is also conducting surveys and developing habitat models for lynx 
and snowshoe hare, which will likely lead to better understanding and 
management of lynx and hare habitats on Tribal lands. The mission of 
the Penobscot Indian Nation's Department of Natural Resources is: ``. . 
. to manage, develop and protect the Penobscot Nation's natural 
resources in a sustainable manner that protects and enhances the 
cultural integrity of the Tribe'' (Penobscot Indian Nation 2014, 
entire). Further, the Penobscot Indian Nation's Inland Fish and Game 
Regulations prohibit the hunting, trapping, or possessing of Canada 
lynx (Penobscot Indian Nation 2012, p. 15).
    Tribal lands of the Grand Portage Indian Reservation and the Bois 
Forte Indian Reservation--Vermillion Lake District fall within lynx 
critical habitat in Minnesota. These lands represent only 1 percent of 
the total critical habitat designation in Unit 2. The Grand Portage 
Band of Chippewa has been actively working on lynx conservation since 
2004. In October 2007, the Band hosted an international conference on 
lynx research and conservation where more than 50 researchers from the 
United States and Canada presented results of research on lynx diet, 
habitat, and management. Additionally, on-reservation timber sales and 
harvest practices follow an integrated management plan for priority 
wildlife

[[Page 54831]]

management, sustainable economic development, and recreational uses. 
The Band's timber management practices benefit populations of snowshoe 
hares, the lynx's primary prey (Deschampe 2008, entire).
    Tribal lands of the Confederated Salish and Kootenai Tribes, 
Flathead Indian Reservation fall within lynx critical habitat in 
Montana. These lands represent only 3.8 percent of the total critical 
habitat designation in Unit 3. The mission statement of the Tribes' 
Fish, Wildlife, Recreation and Conservation Division is: ``to protect 
and enhance the fish, wildlife, and wildland resources of the Tribes 
for continued use by the generations of today and tomorrow'' 
(Confederated Salish and Kootenai Tribes 2014a, entire). An objective 
of the Tribes' Tribal Wildlife Management Program Plan is to ``. . . 
develop and implement habitat management guidelines for Canadian lynx 
in coordination with the Forestry Department as specified in the Forest 
Management Plan'' (Confederated Salish and Kootenai Tribes. 2014b, p. 
5). The Forest Management Plan states that ``Standards for lynx 
management and habitat protection are set forth in the Canada Lynx 
Conservation Assessment and Strategy. This strategy guides land 
management activity in lynx foraging and denning habitat. Lynx 
occurrence and populations will continue to be monitored on the 
Reservation'' (Confederated Salish and Kootenai Tribes. 2000, p. 285). 
Additionally, most lynx and lynx habitat on the reservation occur in 
areas with formal protective status, including: (1) The long-designated 
Mission Mountains and Rattlesnake Tribal Wilderness Areas, which are 
largely roadless and managed for wilderness qualities; (2) the South 
Fork/Jocko Primitive Area, which is open to use only by Tribe members 
and in which commercial timber harvest is prohibited; and (3) the Nine-
mile Divide country, which is marginal in terms of lynx habitat, but 
which is also partly roadless (Courville 2014, pers. comm.).
    Because of the protected status of these areas and the prohibition 
on activities that could impact lynx and their habitats, it is unlikely 
that additional special management considerations are necessary for 
these Tribal lands or that additional benefit to lynx would result from 
designating them as critical habitat.
    Secretarial Order 3206, ``American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act'' (June 
5, 1997) states that, ``Critical habitat shall not be designated in 
such areas unless it is determined essential to conserve a listed 
species''. 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 relevant provision of the 
Departmental Manual of the Department of the Interior (512 DM 2) also 
emphasize that Tribal lands should be evaluated to determine whether 
their inclusion in a critical habitat designation is essential to the 
species. Therefore, we believe that fish, wildlife, and other natural 
resources on Tribal lands are better managed under Tribal authorities, 
policies, and programs than through Federal regulation wherever 
possible and practicable. Such designation is often viewed by Tribes as 
an unwanted intrusion into Tribal self-governance, thus compromising 
the government-to-government relationship essential to achieving our 
mutual goals of managing for healthy ecosystems upon which the 
viability of threatened and endangered species populations depend.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    Exclusion of Tribal lands is warranted because affected Tribes 
already take actions to avoid negative impacts to lynx and to conserve 
lynx and hare habitats. Through Federal grant programs, the 
Passamaquoddy Tribe is conducting surveys and habitat models for lynx 
and snowshoe hare, the Grand Portage Tribe is assessing lynx habitat on 
reservation lands, and lynx habitat is protected through a 
comprehensive conservation plan and non-development land designations 
on the Flathead Reservation in Montana. Information from these efforts 
will be used to inform management plans or strategies to promote the 
conservation of lynx on Tribal lands. Additionally, we received 
comments from Tribes voicing their commitment to ensuring that lynx 
remain a viable part of the ecosystem.
    We have determined that conservation of lynx can be achieved on 
Tribal lands within the critical habitat units through the continuation 
of the cooperative partnerships between the Service and the Tribes, and 
without designating them as critical habitat. The management plans, 
activities, and land-use designations being implemented on Tribal lands 
described above are likely to ensure continued conservation of lynx on 
Tribal lands. Given the importance of our government-to-government 
relationship with Tribes, the benefit of maintaining our commitment to 
the Executive Order by excluding these lands outweighs the benefit of 
including them in critical habitat. Therefore, pursuant to section 
4(b)(2) of the Act, we have not designated critical habitat for the 
lynx DPS on Tribal lands in Units 1, 2, and 3 in this final rule.

Exclusion Will Not Result in Extinction of the Species

    We have determined that exclusion of Tribal lands from the 
designation of critical habitat for the lynx will not result in the 
extinction of the species because the Passamaquoddy Tribe, Penobscot 
Indian Nation, Grand Portage Indians, Bois Forte Indians, and 
Confederated Salish and Kootenai Tribes of the Flathead Indian 
Reservation implement programs for the conservation of the species, and 
the physical and biological features essential to it, in occupied 
areas. The protections afforded to the lynx under the jeopardy standard 
will remain in place for the areas considered for exclusion from 
revised critical habitat. Therefore, and in light of Secretarial Order 
3206 and Tribal management of lynx and their habitat, 95.7 mi\2\ (248 
km\2\) of Tribal lands in Maine, 77.9 mi\2\ (202 km\2\) in Minnesota, 
and 369.6 mi\2\ (957 km\2\) in Montana have been excluded from lynx 
critical habitat designation in this final rule.
Maine Healthy Forest Reserve Program (HFRP)
    In 2003, Congress passed the Healthy Forest Restoration Act. Title 
V of this Act designates a Healthy Forest Reserve Program (HFRP) with 
objectives to: (1) promote the recovery of threatened and endangered 
species, (2) improve biodiversity, and (3) enhance carbon 
sequestration. In 2006, Congress provided the first funding for the 
HFRP, and Maine, Arkansas, and Mississippi were chosen as pilot States 
to receive funding through their respective Natural Resources 
Conservation Service (NRCS) State offices. Based on a successful pilot 
program, in 2008, the HFRP was reauthorized as part of the Farm Bill, 
and in 2010, NRCS published a final rule in the Federal Register (75 FR 
6539) amending regulations for the HFRP based on provisions amended by 
the bill.
    In 2006 and 2007, the NRCS offered the HFRP to landowners in the 
proposed Canada lynx critical habitat unit in Maine to promote 
development of Canada lynx forest management plans. At that time, five 
landowners enrolled in the Maine HFRP, and collectively signed 
contracts (with NRCS) committing to developing lynx forest management 
plans on 1,069.8 mi\2\ (2,770.7 km\2\). However, one of the

[[Page 54832]]

landowners has since discontinued enrollment in the program. Because of 
that and other mapping refinements, the amount of land currently 
managed in accordance with Maine HFRP is 943.2 mi\2\ (2,443 km\2\), or 
9.3 percent of the total designated critical habitat in Unit 1. Lynx 
maintain large home ranges; therefore, forest management plans at large 
landscape scales will provide substantive recovery benefits to lynx.
    The NRCS requires that lynx forest management plans must be based 
on the Service's ``Canada Lynx Habitat Management Guidelines for 
Maine'' (McCollough 2007, entire). These guidelines were developed from 
the best available science on lynx management for Maine and have been 
revised as new research results became available. The guidelines 
require maintenance of prescribed hare densities that have resulted in 
reproducing lynx populations in Maine. The guidelines are:
    (1) Avoid upgrading or paving dirt or gravel roads traversing lynx 
habitat. Avoid construction of new high-speed/high-traffic-volume roads 
in lynx habitat. Desired outcome: Avoid fragmenting potential lynx 
habitat with high-traffic/high-speed roads.
    (2) Maintain through time at least one lynx habitat unit of 35,000 
ac (14,164 ha) (~1.5 townships) or more for every 200,000 ac (80,937 
ha) (~9 townships) of ownership. At any time, about 20 percent of the 
area in a lynx habitat unit should be in the optimal mid-regeneration 
conditions (see Guideline 3). Desired outcome: Create a landscape that 
will maintain a continuous presence of a mosaic of successional stages, 
especially mid-regeneration patches that will support resident lynx.
    (3) Employ silvicultural methods that will create regenerating 
conifer-dominated stands 12-35 ft (3.7-10.7 m) in height with high stem 
density (7,000-15,000 stems/ac; 2,800-6,000 stems/ha) and horizontal 
cover above the average snow depth that will support greater than 2.7 
hares/ac (1.1 hares/ha). Desired outcome: Employ silvicultural 
techniques that create, maintain, or prolong use of stands by high 
populations of snowshoe hares.
    (4) Maintain land in forest management. Development and associated 
activities should be consolidated to minimize direct and indirect 
impacts. Avoid development projects that occur across large areas, 
increase lynx mortality, fragment habitat, or result in barriers that 
affect lynx movements and dispersal. Desired outcome: Maintain the 
current amount and distribution of commercial forest land in northern 
Maine. Prevent forest fragmentation and barriers to movements. Avoid 
development that introduces new sources of lynx mortality.
    (5) Encourage coarse woody debris for den sites by maintaining 
standing dead trees after harvest and leaving patches (at least .75 ac; 
.30 ha) of windthrow or insect damage. Desired outcome: Retain coarse 
woody debris for denning sites.
    Notably, HFRP forest management plans must provide a net 
conservation benefit for lynx, which will be achieved by employing the 
lynx guidelines, identifying baseline habitat conditions, and meeting 
NRCS standards for forest plans. Plans must meet NRCS HFRP criteria and 
guidelines and comply with numerous environmental standards. NEPA 
compliance will be completed for each plan. The NRCS held public 
informational sessions about the HFRP and advertised the availability 
of funds. Plans must be reviewed and approved by the NRCS with 
assistance from the Service. The details of the plans are proprietary 
and will not be made public per NRCS policy.
    Plans must be developed for a forest rotation (70 years) and 
include a decade-by-decade assessment of the location and anticipated 
condition of lynx habitat on the ownership. Some landowners are 
developing plans exclusively for lynx, and others are combining lynx 
management (umbrella species for young forest) with pine marten 
(umbrella species for mature forest) and other biodiversity objectives. 
Broad public benefits will derive from these plans, including benefits 
to many species of wildlife that share habitat with the lynx. 
Landowners are writing their own plans. The Nature Conservancy 
contracted with the University of Maine, Department of Wildlife Ecology 
to develop a lynx-pine marten plan that serves as a model for lynx/
biodiversity forest planning and will be shared with other northern 
Maine landowners.
    Landowners who are enrolled with the NRCS commit to a 10-year 
contract. Landowners must complete their lynx forest management plans 
within 2 years of enrollment. Currently, two plans are completed and 
two are in the final stage of editing. The majority (50 to 60 percent) 
of HFRP funds are withheld until plans are completed. By year 7, 
landowners must demonstrate on-the-ground implementation of their plan. 
The NRCS will monitor and enforce compliance with the 10-year 
contracts. At the conclusion of the 10-year cost-share contract, we 
anticipate that Safe Harbor Agreements or other agreements to provide 
regulatory assurances will be developed by all landowners as an 
incentive to continue implementing the plans.
    We completed a programmatic biological opinion for the HFRP in 2006 
that assesses the overall effects of the program on lynx habitat and on 
individual lynx and provides the required incidental take coverage. 
Separate biological opinions will be developed under this programmatic 
opinion for each of the four enrollees. These tiered opinions will 
document environmental baseline, net conservation benefits, and 
incidental take for each landowner. If additional HFRP funding is made 
available to Maine in the future, new enrollees will be tiered under 
this programmatic opinion. This programmatic opinion will be revised as 
new information is obtained, or if new rare, threatened, or endangered 
species are considered for HFRP funding.
    Commitments to the HFRP are strengthened by several other 
conservation efforts. The Nature Conservancy land enrolled in the HFRP 
is also enrolled in the Forest Stewardship Council (FSC) forest 
certification program, which requires safeguards for threatened and 
endangered species. The Forest Society of Maine is under contract to 
manage a conservation easement held by the State of Maine on the 
Katahdin Forest Management lands, which is also enrolled in the HFRP. 
This easement requires that threatened and endangered species be 
protected and managed. The Forest Society of Maine also holds a 
conservation easement on the Merriweather LLC-West Branch property, 
which contains requirements that threatened and endangered species be 
protected and managed. These lands are also certified under the 
Sustainable Forestry Initiative and FSC, which require the inclusion of 
programs for threatened and endangered species. The Passamaquoddy 
enrolled lands are managed as trust lands by the Bureau of Indian 
Affairs, and projects occurring on those lands are subject to NEPA 
review and section 7 consultation.
    In the final revised critical habitat designation, published in the 
Federal Register on February 25, 2009 (74 FR 8649-8652), we determined 
that the benefits of excluding lands managed in accordance with the 
Maine HFRP outweighed the benefits of including them in the 
designation, and that doing so would not result in extinction of the 
species. We affirm that determination based on the analysis below.

Benefits of Inclusion

    The primary benefit of including an area within a critical habitat 
designation

[[Page 54833]]

is the protection provided by section 7(a)(2) of the Act, which directs 
Federal agencies to ensure that actions they authorize, fund, or carry 
out are not likely to jeopardize the continued existence of a 
threatened or endangered species and do not result in the destruction 
or adverse modification of critical habitat. Consultation has already 
occurred on these lands, and it included consideration of lynx habitat. 
The regulatory benefit of designating critical habitat on the HFRP 
lands would be minimal because few Federal actions would trigger the 
consultation provisions under section 7(a)(2) of the Act. Forestry 
activities are exempt from the Clean Water Act, and few landowners in 
Maine obtain Federal funding for projects on their lands. Since the 
lynx was listed in 2000, few formal consultations on lynx have occurred 
in Maine; however, no consultations have taken place regarding Federal 
actions on lands owned by The Nature Conservancy, West Branch Project, 
Elliotsville Plantation, Inc., and Katahdin Forest Management lands. 
The Passamaquoddy Tribe, through the Bureau of Indian Affairs, has 
informally consulted with the Service on several timber sales during 
this time period, resulting in determinations that the projects were 
not likely to adversely affect lynx because the harvests would create 
early successional habitat beneficial to lynx. Consultations in 
northern Maine have been mostly on small Federal actions (less than 15 
ac; 6 ha) that have few consequences to lynx, which require large 
landscapes of 35,000 ac (14,164 ha) or more; therefore, the results of 
these informal consultations were that the projects would have no 
effect on lynx or would not likely adversely affect lynx.
    A potential benefit of critical habitat designation would be to 
signal the importance of these lands to Federal agencies, scientific 
organizations, State and local governments, and the public to encourage 
conservation efforts to benefit the lynx and its habitat. By 
publication of the proposed rule and this final rule, we are educating 
the public of the location of core lynx habitat and areas most 
important for the conservation and recovery of the lynx DPS. In 
addition, designation of critical habitat on HFRP enrollee lands could 
provide some educational benefit through the rulemaking process.

Benefits of Exclusion

    A Federal nexus on HFRP lands is rare, and development is unlikely 
because conservation easements exist on many of these lands. Section 
7(a)(2) review will not provide benefits to the physical and biological 
features essential to the conservation of lynx, because most Federal 
projects in northern Maine are small and will not benefit habitat at a 
geographic scale meaningful for lynx conservation. Therefore, the 
regulatory protection provided through the section 7(a)(2) process for 
critical habitat would likely be minimal. The HFRP goes beyond the 
standard of adverse modification to provide a net conservation benefit 
for lynx. The conservation measures for lynx included in the HFRP plans 
are affirmative obligations that address the physical and biological 
features, represent the best available science, and provide a net 
conservation benefit to the species by ensuring the quality and 
quantity of unfragmented lynx habitat on the landscape.
    Excluding HFRP lands from critical habitat designation would help 
strengthen partnerships and promote other aspects of recovery for the 
lynx. Since the lynx was listed in 2000, it has been difficult for us 
to effectively address lynx conservation across the forest landscape in 
northern Maine because of the numerous private industrial forest 
landowners with whom coordination is required. Participation in the 
HFRP will contribute to the conservation of the physical and biological 
features essential to lynx conservation in an area representing about 
9.3 percent of the designated critical habitat unit. Proactively 
developing conservation programs for lynx across large ownerships can 
be a more effective recovery strategy than project-by-project planning 
in a landscape where consultation under section 7 is rarely applicable. 
Lynx require large home ranges, and lynx and snowshoe hare habitat 
occurs in a habitat mosaic across the landscape that changes with time 
and space as forests age or disturbances occur (e.g., insect outbreaks 
or timber management). The HFRP plans address landscape-level planning 
and actions for forestry-related activities within the context of lynx-
specific guidelines, which can facilitate lynx recovery. The HFRP 
contracts operate under a programmatic biological opinion under section 
7(a)(2), enabling a coordinated, multi-landowner approach to lynx 
conservation on private lands.
    Contracts committing enrollees to implement the HFRP build on the 
ongoing partnership between the Service, the NRCS, the Maine Department 
of Inland Fisheries and Wildlife, and the HFRP enrollees. The contracts 
provide assurances to the Service that individual landowners will 
address the habitat requirements of lynx and facilitate the 
consideration and implementation of lynx conservation needs at a broad 
landscape scale. Although the HFRP contracts are for 10 years, lynx 
plans are required to address forest management for the next 70 years. 
Several incentives encourage enrollees to continue their plans after 
the conclusion of the 10-year contract:
    (1) Enrollees will be offered Safe Harbor Agreements or other 
mechanisms to extend incidental take coverage and regulatory assurances 
beyond the 10-year period. Most of the enrollees are in forest 
certification programs and have conservation easements.
    (2) HFRP plans meet the requirements of certification programs and 
easement requirements to document how they will manage for federally 
listed species.
    (3) Future HFRP funding may be available to promote continued 
management on these lands.
    (4) Landowners may be reimbursed at a graduated rate of up to 100 
percent for land put under conservation easements of 30-year and 99-
year duration.
    Most HFRP enrollees have a long track record of conservation in 
Maine. The Nature Conservancy has been working with the Service and 
other conservation partners since the 1970s. The Forest Society of 
Maine is a conservation easement holder in northern Maine, and has been 
working with the Service since the late 1990s. We have a long 
partnership with the Passamaquoddy Tribe that includes consulting on 
Tribal silvicultural projects, cooperative research, review of forest 
management plans, and implementation of Service conservation 
recommendations. Many of the HFRP enrollees contribute as members to 
the University of Maine Cooperative Forest Research Unit (CFRU). The 
CFRU has funded numerous lynx and snowshoe hare studies that have 
advanced our understanding of lynx population dynamics and habitat 
relationships. Landowners have facilitated research and surveys by 
allowing access to their lands and logistical support. The positive 
experiences from HFRP enrollment will promote continued support for 
funding and continued lynx research.
    Some of the enrolled lands could be sold, and it may be argued that 
new owners may not participate in long-term lynx management. However, 
new landowners could benefit from the incidental take coverage offered 
by HFRP or future Safe Harbor Agreements as a result of HFRP plans. 
Lands under conservation easements would require planning for Federally 
listed species,

[[Page 54834]]

and new landowners would have an incentive to continue to implement 
plans to meet their easement requirements. Many of the owners have SFI 
or FSC certifications, which have similar requirements for State and 
Federally listed species planning. Therefore, substantial incentives 
exist for a new landowner to honor existing lynx management plans.
    Some landowners do not trust that the regulatory effect of critical 
habitat designation is limited, and they do not want an additional 
layer of Federal regulation on their private property. They are 
concerned that additional State regulations or local restrictions may 
be imposed as a result of the designation of critical habitat. 
Enrollees in the HFRP are some of the largest landowners in Maine. The 
cooperation and partnership of these landowners is needed to achieve 
recovery of lynx in Maine. If designation causes their alienation, it 
would be counterproductive to designate on their lands.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have determined that there would be minimal benefit in 
designating lands enrolled in the HFRP as critical habitat for the lynx 
DPS within Unit 1. We evaluated the exclusion of approximately 943.2 
mi\2\ (2,443 km\2\) of lands enrolled in the HFRP and determined that 
inclusion of these lands would result in few benefits; minimal 
consultation under section 7, and minimal education related to lynx 
conservation would be realized.
    The HFRP lynx management plans will be effective and directly 
address all of the physical and biological features essential to lynx 
by incorporating the Service's lynx conservation guidelines. These 
conservation actions and management for the lynx and the physical and 
biological features essential to it within large landscapes exceed any 
conservation value provided as a result of regulatory protections that 
have been or may be afforded through critical habitat designation. The 
exclusion of these lands from critical habitat will help preserve 
partnerships developed with the landowners. Most of the HFRP enrollees 
have a demonstrated track record of working with the Service and 
helping to fund lynx research. The HFRP plans will have a high 
probability of implementation due to the 10-year contract with NRCS and 
significant incentives (e.g., Safe Harbor, requirements of forest 
certification and conservation easements, continued funding and 
possibly additional funds), and could continue for a 70-year period. 
Funding is assured because development of lynx forest management plans 
and initial implementation is being paid for by NRCS. The HFRP plans 
provide a high degree of public benefit for lynx and other wildlife 
that share their habitat.
    The benefits of excluding HFRP lands from critical habitat outweigh 
the benefits of retaining these lands as critical habitat. Educational 
benefits can be realized by critical habitat designation, which informs 
the public via the rulemaking process. However, education has already 
been realized through the HFRP. The best scientific information 
regarding the long-term conservation of lynx is being used and shared 
with landowners to assist in the development of their plans. We 
participate in the delivery of this information. We will continue to 
review Federal actions under Section 7(a)(2) of the Act, although the 
only likely Federal action we foresee on the lands enrolled in HFRP 
will be on the consultation required for development of the individual 
plans. A programmatic biological opinion has already been prepared, and 
it addresses lynx habitat in detail.
    The HFRP provides an opportunity for us to work in partnership with 
landowners across several landscape scales and ownerships. The HFRP 
demonstrates that our lynx management guidelines are a flexible, 
outcome-based approach to addressing lynx recovery in northern Maine 
that can be adapted to a variety of landowner types and landscapes. The 
HFRP lynx forest management plans will employ state-of-the-art habitat 
mapping, apply the best available science, and have a high likelihood 
of being carried out. We believe that the benefits of excluding lands 
managed in accordance with the HFRP outweigh the benefits of inclusion, 
particularly because these landowners have committed to developing 
long-term lynx habitat plans and on-the-ground management affecting 
large landscapes. Therefore, in this final rule, we have not designated 
critical habitat for the lynx DPS on HFRP-enrolled lands.

Exclusion Will Not Result in Extinction of the Species

    Exclusion of 943.2 mi\2\ (2,443 km\2\) from Unit 1 of this final 
revised critical habitat designation will not result in the extinction 
of the species, because the HFRP plans provide for the conservation of 
the species and the physical and biological features essential to it. 
The jeopardy standard of section 7(a)(2) of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
protections afforded the lynx under the jeopardy standard will remain 
in place for the areas excluded from revised critical habitat. We, 
therefore, exclude lands managed in accordance with the HFRP from Unit 
1 of this final revised designation of critical habitat for the lynx 
DPS.
State of Washington Department of Natural Resources Lynx Habitat 
Management Plan for DNR-Managed Lands (WDNR LHMP)
    The WDNR LHMP encompasses 197 mi\2\ (510 km\2\) of WDNR-managed 
lands distributed throughout north-central and northeastern Washington 
in areas delineated as Lynx Management Zones in the Washington State 
Lynx Recovery Plan (Stinson 2001, p. 39; Washington DNR 2006, pp. 5-
13). Of the area covered by the plan, 164.2 mi\2\ (425 km\2\) overlaps 
the area designated as critical habitat. The WDNR LHMP was finalized in 
2006, and is a revision of the lynx plan that WDNR had been 
implementing since 1996. The 1996 plan was developed as a substitute 
for a species-specific critical habitat designation required by 
Washington Forest Practices rules in response to the lynx being State-
listed as threatened (Washington DNR 2006, p. 5). The 2006 WDNR LHMP 
provided further provisions to avoid the incidental take of lynx 
(Washington DNR 2006, p. 6). WDNR is committed to following the LHMP 
until 2076, or until the lynx is delisted (Washington DNR 2006, p. 6). 
WDNR requested that lands subject to the plan be excluded from critical 
habitat.
    The WDNR LHMP contains measures to guide WDNR in creating and 
preserving quality lynx habitat through its forest management 
activities. The objectives and strategies of the LHMP are developed for 
multiple planning scales (ecoprovince and ecodivision, Lynx Management 
Zone, Lynx Analysis Unit (LAU), and ecological community), and include:
    (1) Encouraging genetic integrity at the species level by 
preventing bottlenecks between British Columbia and Washington by 
limiting size and shape of temporary non-habitat along the border and 
maintaining major routes of dispersal between British Columbia and 
Washington;
    (2) Maintaining connectivity between subpopulations by maintaining 
dispersal routes between and within zones and arranging timber harvest 
activities that result in temporary non-habitat patches among 
watersheds so

[[Page 54835]]

that connectivity is maintained within each zone;
    (3) Maintaining the integrity of requisite habitat types within 
individual home ranges by maintaining connectivity between and 
integrity within home ranges used by individuals and/or family groups; 
and
    (4) Providing a diversity of successional stages within each LAU 
and connecting denning sites and foraging sites with forested cover 
without isolating them with open areas by prolonging the persistence of 
snowshoe hare habitat and retaining coarse woody debris for denning 
sites (Washington DNR 2006, p. 29).
    The LHMP identifies specific guidelines to achieve the objectives 
and strategies at each scale; it also describes how WDNR will monitor 
and evaluate the implementation and effectiveness of the LHMP 
(Washington DNR 2006, pp. 29-63). WDNR has been managing for lynx for 
almost two decades, and the Service has concluded that the management 
strategies implemented are effective.
    In the final revised critical habitat designation, published in the 
Federal Register on February 25, 2009 (74 FR 8657-8658), we determined 
that the benefits of excluding lands managed in accordance with the 
WDNR LHMP outweighed the benefits of including them in the designation, 
and that doing so would not result in extinction of the species. We 
reaffirm that determination based on the analysis below.

Benefits of Inclusion

    On WDNR State lands, it is uncommon for an action with a Federal 
nexus that triggers consultation under section 7 of the Act to occur; 
therefore, little benefit would be realized through section 7 
consultation if these lands were included in the designation. Some 
educational benefits to designating critical habitat for lynx on WDNR-
managed lands may exist. However, we believe there is already 
substantial awareness of the lynx and conservation issues related to 
the lynx through the species being listed both under the Act and 
Washington State law; through the public review process for the WDNR 
LHMP, Washington's Lynx Recovery Plan, and the revision of the 
Okanogan-Wenatchee National Forest Management Plan; lynx and snowshoe 
hare research being conducted by the USFS Pacific Northwest Research 
Station, Washington State University, University of Washington, and the 
University of Montana; surveys being conducted by Washington Department 
of Fish and Wildlife and the USFS; and State of Washington Web sites 
(e.g., http://wdfw.wa.gov/wlm/diversty/soc/recovery/lynx/lynx.htm, 
www.dnr.wa.gov/htdocs/amp/sepa/lynx/1_toc.pdf).

Benefits of Exclusion

    The WDNR LHMP has provided substantial protection of features 
essential to the conservation of lynx on WDNR lands, and has provided a 
greater level of management for the lynx on these State lands than 
would be achieved with the designation of critical habitat. Because the 
LHMP provides lynx-specific objectives and strategies for different 
planning scales, guidelines to meet the objectives, and monitoring to 
evaluate implementation and effectiveness, the measures contained in 
the WDNR LHMP exceed any measures that might result from critical 
habitat designation. As a result, we do not anticipate any actions on 
these lands that would destroy or adversely modify habitats essential 
to the conservation of the lynx DPS. The exclusion of WDNR lands from 
critical habitat would help preserve the partnerships that we have 
developed with the State of Washington through development and 
implementation of the 2006 LHMP and the original 1996 lynx plan, both 
of which provide for long-term lynx conservation.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We evaluated the exclusion of approximately 164.2 mi\2\ (425 km\2\) 
of lands managed by the WDNR. Including WDNR lands managed in 
accordance with the LHMP in the final designation would likely not lead 
to any changes in WDNR management (to further avoid destroying or 
adversely modifying that habitat), and, therefore, the benefits of 
inclusion are low. We find that few additional conservation benefits 
would be realized through section 7 of the Act, because actions on 
these State lands rarely have a Federal nexus. The habitat conservation 
measures addressing the features essential to conservation of the lynx 
are already being implemented on WDNR lands under the WDNR LHMP, have a 
proven record of effectiveness, will be in place until at least 2076, 
and are providing for physical and biological features essential to the 
conservation of the species.
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we find that greater 
benefits to lynx will be achieved by excluding these WDNR lands from 
the final designation than would be achieved by including them. 
Therefore, in this final rule, we have not designated critical habitat 
for the lynx DPS on lands managed in accordance with the WDNR LHMP.

Exclusion Will Not Result in Extinction of the Species

    We have determined that the exclusion of lands managed in 
accordance with the WDNR LHMP from Unit 4 of this final revised 
critical habitat designation for the lynx DPS will not result in the 
extinction of the species because the WDNR plan provides for the 
conservation of the species and the physical and biological features 
essential to it. The jeopardy standard of section 7(a)(2) of the Act 
and routine implementation of conservation measures through the section 
7 process also provide assurances that the subspecies will not go 
extinct. The protections afforded to the lynx under the jeopardy 
standard will remain in place for the areas excluded from revised 
critical habitat. We, therefore, exclude 164.2 mi\2\ (425 km\2\) of 
lands managed in accordance with the WDNR LHMP from Unit 4 of this 
final revised lynx critical habitat designation.
Montana Department of Natural Resources and Conservation Forested Trust 
Lands Habitat Conservation Plan (MDNRC HCP)
    The Montana Department of Natural Resources and Conservation 
(MDNRC) Forested Trust Lands Habitat Conservation Plan (HCP; Montana 
Department of Natural Resources and Conservation and U.S. Fish and 
Wildlife Service 2010a, entire; 2010b, entire; 2010c, entire) was 
permitted in 2011 under section 10(a)(1)(B) of the Act for a period of 
50 years (U.S. Fish and Wildlife Service 2011a, entire; 2011b, entire). 
The HCP covers about 857 mi\2\ (2,220 km\2\) of forested State trust 
lands in western Montana. The HCP trust lands occur on both blocked and 
scattered parcels within three MDNRC land offices, the Northwestern, 
Central, and Southwestern Land Offices. Blocked lands are primarily 
three State Forests: Stillwater, Coal Creek, and Swan. Scattered 
parcels refer to all other HCP project lands outside of blocked lands. 
About 271.4 mi\2\ (703 km\2\) of lands managed in accordance with the 
HCP overlap the designated lynx critical habitat in Unit 3, and about 
1.3 mi\2\ (3.3 km\2\) of HCP-managed lands overlap critical habitat in 
Unit 5. Of this total, about 73 percent (200 mi\2\ (518 km\2\)) occurs 
in high-priority areas for lynx conservation known as Lynx Management 
Areas (LMAs), with the remainder in scattered blocks (Montana 
Department of Natural Resources and Conservation and U.S. Fish and 
Wildlife

[[Page 54836]]

Service 2010a, p. 4-365; 2010b, pp. 2-45-2-61; 2010c, p. D-67; U.S. 
Fish and Wildlife Service 2011a, pp. III-42-III-45).
    The HCP covers activities that are primarily associated with 
commercial forest management, but includes grazing on forested trust 
lands. In addition to lynx, the HCP also covers grizzly bears (Ursus 
arctos horribilis) and bull trout (Salvelinus confluentus), both listed 
as threatened under the Act, and two non-listed fish species, the 
westslope cutthroat trout (Oncorhynchus clarkii lewisi) and the 
Interior (Columbia River) redband trout (Oncorhynchus mykiss 
gairdneri).
    The HCP includes a Lynx Conservation Strategy (Montana Department 
of Natural Resources and Conservation and U.S. Fish and Wildlife 
Service 2010b, pp. 2-45-2-61) consisting of a suite of lynx habitat 
commitments that apply to all lands in the HCP project area supporting 
lynx habitat and additional commitments that apply to LMAs. The HCP was 
finalized in 2011, and MDNRC has been implementing the HCP Lynx 
Conservation Strategy since the first year of implementation in 2012 
(Montana Department of Natural Resources and Conservation 2013a, 2013b, 
2013c, entire; 2014a, 2014b, entire). The Lynx Conservation Strategy 
incorporates many of the existing Administration Rules of Montana 
(ARMs) for forest management activities, and it describes the 
additional HCP commitments based on recent information and research. 
The Lynx Conservation Strategy minimizes impacts of forest management 
activities on lynx and lynx critical habitat associated with the HCP, 
while allowing MDNRC to meet its fiduciary and stewardship trust 
responsibilities. MDNRC requested that lands subject to the HCP be 
excluded from critical habitat.
    The goal of the Lynx Conservation Strategy is to support Federal 
lynx conservation efforts by managing for habitat elements important to 
lynx and their prey that contribute to the landscape-scale occurrence 
of lynx. HCP commitments in the strategy are associated with two types 
of habitat areas: (1) lynx habitat on lands within the HCP, and (2) 
lynx habitat on specific LMA subunits of HCP lands where resident lynx 
are known to occur or likely to occupy the area periodically. The HCP 
includes specific objectives to achieve this goal:
    (1) Minimize potential for disturbance to known den sites;
    (2) Map potential lynx winter foraging, summer foraging, and 
temporarily non-suitable habitats;
    (3) Retain coarse woody debris and other denning attributes;
    (4) Limit conversion of suitable lynx habitat to temporarily 
nonsuitable habitat per decade in LMAs;
    (5) Ensure adequate amounts of foraging habitat are maintained in 
LMAs;
    (6) Provide for habitat connectivity where vegetation and ownership 
patterns allow; and
    (7) Maintain suitable lynx habitat on MDNRC scattered parcels 
outside LMAs (Montana Department of Natural Resources and Conservation 
and U.S. Fish and Wildlife Service 2010b, pp. 2-45-2-61).
    The Lynx Conservation Strategy through the HCP places additional 
conservation emphasis on geographic areas most likely to remain high-
priority areas to promote lynx conservation into the future (Montana 
Department of Natural Resources and Conservation and U.S. Fish and 
Wildlife Service 2010b, p. 2-53). These HCP lands occur in primary lynx 
habitat types, and are thus likely to provide snow depths and 
vegetation species compositions necessary to provide preferred winter 
foraging conditions, as well as ensure that the HCP helps support 
Federal efforts to provide adequate amounts of suitable lynx habitat. 
It also describes how MDNRC will monitor and evaluate the 
implementation and effectiveness of the HCP (Montana Department of 
Natural Resources and Conservation and U.S. Fish and Wildlife Service 
2010b, pp. 4-27-4-37). Prior to the HCP, MDNRC had been managing 
diligently for lynx for over a decade under existing ARMs. The HCP and 
the ARMS combined will ensure that habitat features important for 
conservation of lynx will occur on MDNRC's HCP-managed lands in the 
long term.

Benefits of Inclusion

    On MDNRC HCP State lands, it is relatively infrequent for an action 
with a Federal nexus that triggers consultation under section 7 of the 
Act to occur; therefore, little benefit would be realized through 
section 7 consultation if these lands were included in the critical 
habitat designation. Some educational benefits of designating critical 
habitat for lynx on MDNRC HCP managed lands may exist. However, we 
believe there is already substantial awareness of the lynx and 
conservation issues related to the lynx through the species being 
listed under the Act and addressed by Montana State law; through the 
public review process for the MDNRC HCP; MDNRC's forest management 
consistency with the Lynx recovery outline (U.S. Fish and Wildlife 
Service 2005, entire); the HCP support of Montana Department of Fish, 
Wildlife, and Parks' (MFWP) lynx strategy set forth in its 
Comprehensive Fish and Wildlife Conservation Strategy (Montana 
Department of Fish, Wildlife, and Parks 2005, pp. 400-402); lynx and 
snowshoe hare research being conducted by the USFS Rocky Mountain 
Research Station and the University of Montana; surveys being conducted 
by MFWP and the USFS; and State of Montana Web sites (e.g., http://fwp.mt.gov/fishandwildlife/species/threatened/canadaLynx/default.html, 
http://dnrc.mt.gov/HCP/Species.asp).

Benefits of Exclusion

    The MDNRC HCP provides substantial protection of features essential 
to the conservation of lynx on HCP-managed lands and provides a greater 
level of management for the lynx on these State lands than would be 
achieved with designation of critical habitat. Because the HCP provides 
lynx-specific objectives and strategies for different geographic 
locations, guidelines to meet the objectives, and monitoring to 
evaluate implementation and effectiveness, the measures contained in 
the HCP exceed any measures that might result from critical habitat 
designation. As a result, we do not anticipate any actions on these 
lands that would reduce the landscape-scale availability of important 
lynx and hare habitats or otherwise diminish the conservation value of 
these lands to the lynx DPS.
    The exclusion of MDNRC HCP-managed lands from critical habitat 
would help preserve the partnerships that have developed between the 
Service and the State through development and implementation of the 
HCP, the existing ARMs, the Comprehensive Fish and Wildlife 
Conservation Strategy, and the intent of the State Forest Land 
Management Plan, all of which provide for long-term lynx conservation. 
Requiring additional redundant processes of permit applicants/holders 
who have already undergone an extensive Federal process to apply for a 
permit also appreciably undermines the benefit of HCPs for cooperators 
and reduces the certainty otherwise provided by a single clear plan.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have evaluated the exclusion of approximately 272.7 mi\2\ (706 
km\2\) of lands managed by the MDNRC in accordance with the HCP. We 
have

[[Page 54837]]

determined that it is unlikely that including these HCP-managed areas 
in the final designation would lead to any changes in MDNRC management 
(i.e., no additional conservation measures would be recommended to 
further avoid impacts to lynx and hare habitats); therefore, the 
benefits of inclusion are low.
    We find that few (if any) additional conservation benefits would be 
realized through section 7 of the Act, because activities with a 
Federal nexus are infrequent on these State lands. Additionally, the 
habitat conservation measures addressing the features essential to 
conservation of the lynx are already being implemented on MDNRC lands 
under the MDNRC HCP, have been demonstrated to be effective, will be in 
place until at least 2061, and are providing for the maintenance and 
protection of the physical and biological features essential to the 
conservation of the lynx DPS.
    We have, therefore, determined that the benefits of excluding lands 
managed in accordance with the MDNRC HCP in Unit 3 and Unit 5 outweigh 
the benefits of including these lands as critical habitat. Based on the 
above considerations, and consistent with the direction provided in 
section 4(b)(2) of the Act, we find that greater benefits to lynx are 
likely to be achieved by excluding MDNRC HCP lands from the final 
designation than by including them.

Exclusion Will Not Result in Extinction of the Species

    The MDNRC HCP (1) provides biologically meaningful and quantifiable 
measures for the long-term conservation of the lynx and the physical 
and biological features essential to it, (2) includes long-term 
certainty of implementation, (3) employs rigorous monitoring and 
reporting requirements, and (4) applies an adaptive management 
approach. Therefore, it is our determination that the exclusion of 
MDNRC HCP lands from critical habitat will not result in the extinction 
of the DPS. We, therefore, exclude 271.4 mi\2\ (703 km\2\) of lands 
managed in accordance with the MDNRC HCP from Unit 3, and 1.3 mi\2\ 
(3.3 km\2\) from Unit 5 of this final revised lynx critical habitat 
designation.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 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 
(i.e., 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 manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the Agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7 only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that, if 
promulgated, the final critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

[[Page 54838]]

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

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The FEA concludes incremental impacts may occur due to 
administrative costs of section 7 consultations; however, these are not 
expected to significantly affect small governments. Incremental impacts 
stemming from various species conservation and development control 
activities are expected to be borne largely by the Federal Government 
not by any other organizations that could be considered small 
governments. Consequently, we do not believe that the critical habitat 
designation would significantly or uniquely affect small government 
entities. As such, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the lynx DPS in a takings implications 
assessment. We conducted an economic analysis which determined that (1) 
the designation of revised critical habitat for the lynx is unlikely to 
generate costs exceeding $100 million in a single year, (2) the 
economic costs of implementing the rule through section 7 of the Act 
will most likely be limited to the additional administrative effort 
required to consider adverse modification, and (3) the revised 
designation is not expected to trigger additional requirements under 
State or local regulations. We also completed a Takings Implication 
Assessment (TIA) in which we determined that revising the designation 
of critical habitat for the lynx would not deny anyone economically 
viable use of their property or result in a direct and immediate 
interference with property nor in physical occupation of anyone's 
property. We have concluded, therefore, that this designation is not 
likely to result in either a regulatory or a physical taking in 
accordance with the Fifth Amendment of the Constitution. Based on the 
best available information, the TIA concludes that this designation of 
critical habitat for the lynx does not pose significant takings 
implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of the proposed critical habitat designation with, 
appropriate State resource agencies in Idaho, Maine, Minnesota, 
Montana, Washington, and Wyoming. We received comments from Idaho 
(Office of Species Conservation, Department of Fish and Game, and 
Department of Lands); Maine (Department of Inland Fisheries and 
Wildlife); Montana (Department of Natural Resources and Conservation); 
New Mexico (Department of Agriculture and Department of Game and Fish); 
Washington (Department of Natural Resources); and Wyoming (Office of 
the Governor, Legislature's Select Committee on Federal Natural 
Resource Management, and Game and Fish Department), Fremont, Lincoln, 
Park,

[[Page 54839]]

and Sublette Counties Boards of County Commissioners and Shoshone 
Cooperating Agency Coalition; and the Coalition of Local Governments 
representing the County Commissions and Conservation Districts for 
Lincoln, Sweetwater, Uinta, and Sublette Counties) and have addressed 
them in the Summary of Comments and Recommendations section of the 
rule. From a federalism perspective, the designation of critical 
habitat directly affects only the responsibilities of Federal agencies. 
The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the rule does not have substantial direct effects either on the 
States, or on the relationship between the national government and the 
States, or on the distribution of powers and responsibilities among the 
various levels of government. The designation may have some benefit to 
these governments because the areas that contain the features essential 
to the conservation of the species are more clearly defined, and the 
physical and biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these local governments no longer have to 
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 applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the lynx 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 rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of lynx, under the Tenth Circuit ruling in Catron County Board of 
Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996), we undertake a NEPA analysis for critical habitat 
designation and notify the public of the availability of the draft 
environmental assessment for a proposal when it is finished.
    We performed the NEPA analysis, and the draft environmental 
assessment was made available for public comment on June 20, 2014 (79 
FR 35303). The final environmental assessment and FONSI has been 
completed and is available for review with the publication of this 
final rule. You may obtain a copy of the final environmental assessment 
and FONSI online at http://www.regulations.gov, by mail from the 
Montana Ecological Services Field Office (see ADDRESSES), or by 
visiting our Web site at http://www.fws.gov/montanafieldoffice/.
    In our environmental assessment, we concluded that designation of 
critical habitat would not have any direct effects on the environment, 
except through the section 7 consultation process. This is because 
critical habitat designation does not impose broad rules or 
restrictions on land use, nor does it automatically prohibit any land 
use activity. We also concluded that, although designation could alter 
or result in restrictions on some activities, mostly on Federal lands, 
it is not likely to result in substantial impacts to the physical or 
human environment. Our analysis did not identify any adverse effects 
unique to minority or low-income human populations in the affected 
areas nor the potential to cause irreversible or irretrievable 
environmental impacts, directly, indirectly, or cumulatively.

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.
    Tribal lands in Maine, Minnesota, and Montana fall within the 
boundaries of this final designation in the Maine (Unit 1), Minnesota 
(Unit 2), and Northern Rocky Mountains (Unit 3) critical habitat units. 
Tribal lands that fall within the designation include those of the 
Passamaquoddy Tribe and the Penobscot Indian Nation in Maine, the Grand 
Portage Indian Reservation and Bois Forte Indian Reservation-Vermillion 
Lake District in Minnesota, and the Confederated Salish and Kootenai 
Tribes, Flathead Indian Reservation in Montana.
    During development of the 2009 final rule, we contacted and met 
with a number of Tribes to discuss the proposed designation, and we 
also received comments from numerous Tribes requesting that their lands 
not be designated as critical habitat because of

[[Page 54840]]

their sovereign rights, in addition to concerns about economic impacts 
and the effect on their ability to manage natural resources. During 
development of the 2013 proposed rule and this final rule, we also 
contacted the Tribes whose lands were within the proposed revised 
designation, and they confirmed their continued preference that Tribal 
lands not be designated as lynx critical habitat. As described above 
(see Application of Section 4(b)(2) of the Act--Exclusions Based on 
Other Relevant Impacts), we determined in the 2009 final rule and 
reaffirm in this rule that the benefits of excluding these Tribal lands 
from the final lynx critical habitat designation outweigh the benefits 
of including them, and that doing so will not result in extinction of 
the lynx DPS. Therefore, we are not designating critical habitat for 
the lynx on Tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov, http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm, and upon request from the 
Montana Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Montana Fish and Wildlife Office, the Maine Fish and Wildlife Office, 
and the New England Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.11(h) by revising the entry for ``Lynx, Canada'' 
under ``Mammals'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                    Critical     Special
                                                          Historic range       endangered or          Status       When listed    habitat       rules
           Common name              Scientific name                              threatened
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             Mammals
 
                                                                      * * * * * * *
Lynx, Canada....................  Lynx canadensis....  U.S.A. (AK, CO, ID,  Where found within   T                         692     17.95(a)     17.40(k)
                                                        ME, MI, MN, MT,      contiguous U.S.A.
                                                        NH, NY, OR, UT,
                                                        VT, WA, WI, WY),
                                                        Canada,
                                                        circumboreal.
 
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0
3. In Sec.  17.95, amend paragraph (a) by revising the entry for 
``Canada Lynx (Lynx canadensis)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Canada Lynx (Lynx canadensis)
    (1) Critical habitat units are depicted on the maps below for the 
following States and counties:
    (i) Idaho: Boundary County;
    (ii) Maine: Aroostook, Franklin, Penobscot, Piscataquis, and 
Somerset Counties;
    (iii) Minnesota: Cook, Koochiching, Lake, and St. Louis Counties;
    (iv) Montana: Carbon, Flathead, Gallatin, Glacier, Granite, Lake, 
Lewis and Clark, Lincoln, Missoula, Park, Pondera, Powell, Stillwater, 
Sweetgrass, and Teton Counties;
    (v) Washington: Chelan and Okanogan Counties; and
    (vi) Wyoming: Fremont, Lincoln, Park, Sublette, and Teton Counties.
    (2) Within these areas the primary constituent element for the 
Canada lynx is boreal forest landscapes supporting a mosaic of 
differing successional forest stages and containing:
    (i) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees, shrubs or 
overhanging boughs that protrude above the snow, and mature 
multistoried stands with conifer boughs touching the snow surface;
    (ii) Winter conditions that provide and maintain deep fluffy snow 
for extended periods of time;
    (iii) Sites for denning that have abundant coarse woody debris, 
such as downed trees and root wads; and
    (iv) Matrix habitat (e.g., hardwood forest, dry forest, non-forest, 
or other habitat types that do not support snowshoe hares) that occurs 
between patches of boreal forest in close juxtaposition (at the scale 
of a lynx home range) such that lynx are likely to travel through such 
habitat while accessing patches of boreal forest within a home range.
    (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 
October 14, 2014.
    (4) Critical habitat map units. Data layers defining map units were 
created using a USA Contiguous Albers Equal Area Conic projection. The 
maps in this entry 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/montanafieldoffice/, at http://www.regulations.gov 
at Docket No. FWS-R6-ES-2013-0101, 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.

[[Page 54841]]

    (5) Note: Index map follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR12SE14.000


[[Page 54842]]


    (6) Unit 1: Maine--Aroostook, Franklin, Penobscot, Piscataquis, and 
Somerset Counties, ME. Map of Unit 1, Maine, follows:
[GRAPHIC] [TIFF OMITTED] TR12SE14.001


[[Page 54843]]


    (7) Unit 2: Minnesota--Cook, Koochiching, Lake, and St. Louis 
Counties, MN.
    Map of Unit 2, Minnesota, follows:
    [GRAPHIC] [TIFF OMITTED] TR12SE14.002
    

[[Page 54844]]


    (8) Unit 3: Northern Rockies--Boundary County, ID, and Flathead, 
Glacier, Granite, Lake, Lewis and Clark, Lincoln, Missoula, Pondera, 
Powell and Teton Counties, MT. Map of Unit 3, Northern Rockies, 
follows:
[GRAPHIC] [TIFF OMITTED] TR12SE14.003


[[Page 54845]]


    (9) Unit 4: North Cascades--Chelan and Okanogan Counties, WA. Map 
of Unit 4, North Cascades, follows:
[GRAPHIC] [TIFF OMITTED] TR12SE14.004


[[Page 54846]]


    (10) Unit 5: Greater Yellowstone Area--Carbon, Gallatin, Park, 
Stillwater, and Sweetgrass Counties, MT, and Fremont, Lincoln, Park, 
Sublette, and Teton Counties, WY. Map of Unit 5, Greater Yellowstone 
Area, follows:
[GRAPHIC] [TIFF OMITTED] TR12SE14.005

* * * * *

    Dated: August 27, 2014.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-21013 Filed 9-11-14; 8:45 am]
BILLING CODE 4310-55-C