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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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

RIN 1081-AZ36

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, designate critical habitat for the Taylor's checkerspot butterfly (

Euphydryas editha taylori

) and streaked horned lark (

Eremophila alpestris strigata

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

DATES:

This rule is effective on November 4, 2013.

ADDRESSES:

This final rule is available on the Internet at

http://www.regulations.gov

and at the Washington Fish and Wildlife Office. Comments and materials we received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at: U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office, 510 Desmond Drive SE., Suite 102, Lacey, WA 98503-1263. The office can be reached by telephone at 360-753-9440 or by facsimile at 360-753-9008.

The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at

http://www.regulations.gov

at Docket No. FWS-R1-ES-2013-0009 and at

http://www.fws.gov/wafwo/TCBSHL.html,

or, by appointment, at the Washington Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

). Any additional tools or supporting information that we developed for this critical habitat designation will also be available at the Fish and Wildlife Service Web site and field office set out above, and may also be included at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Executive Summary

Why We Need to Publish a Rule.

Under the Endangered Species Act (Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Elsewhere in today's issue of the

Federal Register

, we list the Taylor's checkerspot butterfly as an endangered species and the streaked horned lark as a threatened species. Designations and revisions of critical habitat can only be completed by issuing a rule.

Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Additionally, the Act sets forth the requirement to finalize rules within 1 year of proposal.

This rule

designates critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. On October 11, 2012, we published in the

Federal Register

(77 FR 61937) a proposed rule to list the Taylor's checkerspot butterfly and streaked horned lark and to designate critical habitat for these subspecies. The critical habitat areas we are designating in this final rule constitute our current best assessment of the areas that meet the definition of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. We are designating as critical habitat:

• Approximately 1,941 acres (ac) (786 hectares (ha)) in three units for the Taylor's checkerspot butterfly in Island, Clallam, and Thurston Counties in Washington; and in Benton County in Oregon.

• Approximately 4,629 ac (1,873 ha) in two units for the streaked horned lark in Grays Harbor, Pierce, Pacific, and Wahkiakum Counties in Washington; and in Clatsop, Columbia, Marion, Polk, and Benton Counties in Oregon.

We have prepared an economic analysis of the designation of critical habitat.

We have prepared an analysis of the probable economic impacts of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) in the

Federal Register

on April 3, 2012 (78 FR 20074), allowing the public to provide comments on our analysis. We have incorporated the comments and have completed the final economic analysis (FEA) concurrently with this final determination.

Peer review and public comment.

We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from two knowledgeable individuals with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available information. These peer reviewers concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation. We also considered all comments and information we received from the public during the comment period.

Previous Federal Actions

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

Federal Register

.

Background

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

Federal Register

.

Summary of Comments and Recommendations

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

associated with the publication of the proposed rule (77 FR 61937; October 11, 2012), opened on October 11, 2012, and closed on December 10, 2012. We then made available the draft economic analysis (DEA) of the proposed critical habitat designation and reopened the comment period on the proposed rule for an additional 30 days from April 3, 2013, to May 3, 2013 (78 FR 20074; April 3, 2013). We also contacted appropriate Federal, State, tribal, county, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and the draft economic analysis. We held three public information workshops and a public hearing in April 2013, on the proposed rule to list the subspecies and the associated critical habitat designations.

During the two public comment periods, we received close to 100 comment letters and emails from individuals and organizations, as well as speaker testimony at the public hearing held on April 18, 2013. These comments addressed the proposed critical habitat or proposed listing (or both) for Taylor's checkerspot butterfly and streaked horned lark. We received comment letters from two peer reviewers for Taylor's checkerspot butterfly and three peer reviewers for streaked horned lark, and also received comment letters from three State agencies, one Native American tribe, and seven Federal agencies, including the Department of the Army and Department of the Air Force. We coordinated the proposed critical habitat with the federally recognized Shoalwater Bay Tribe on a government-to-government basis in accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2).

We contacted the only tribe potentially affected by the proposed designation (the Shoalwater Bay Tribe) and coordinated with them to discuss their ongoing or future management strategies for the Taylor's checkerspot butterfly and streaked horned lark.

All substantive information provided during comment periods has either been incorporated directly into this final designation or is addressed below. Comments we received are grouped into general issues specifically relating to the proposed critical habitat designation for the Taylor's checkerspot butterfly and streaked horned lark, and are addressed in the following summary and incorporated into the final rule as appropriate.

Comments From Peer Reviewers

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with the Taylor's checkerspot butterfly and its habitats, biological needs, and threats, and from three knowledgeable individuals with scientific expertise that included familiarity with the streaked horned lark and its habitats, biological needs, and threats. We received responses from two of the peer reviewers for the Taylor's checkerspot butterfly. Both peer reviewers felt that the proposed rule was a thorough description of the status of Taylor's checkerspot butterfly. Both reviewers commented that they considered the proposed rule well researched and well written, and one commenter found the rule comprehensively represented the current scientific knowledge for the taxon. The two peer reviewers made no substantive comments relevant to the critical habitat designation for the Taylor's checkerspot butterfly.

We received responses from three of the peer reviewers for the streaked horned lark. Two of the peer reviewers felt that the proposed rule was a thorough description of the status of the streaked horned lark, and that our assessment of the primary constituent elements of critical habitat was correct. Two peer reviewers made several substantive comments relevant to the proposed critical habitat designation for the streaked horned lark, which we respond to below and also in the

Comments from the Public

section in cases where we received a similar comment from the public. Our requests for peer review are limited to a request for review of the merits of the scientific information in our documents; if peer reviewers have volunteered their personal opinions on matters not directly relevant to the science of our designation, we do not respond to those comments here.

Streaked Horned Lark

(1)

Comment:

One peer reviewer stated that the proposed designation of critical habitat was lacking formal agreements for lark conservation with land owners and managers of sites proposed for critical habitat, or at sites the peer reviewer believes should have been proposed as critical habitat.

Our Response:

Our requests for peer review are limited to a request for review of the scientific information in our documents. In this case the peer reviewer has offered his opinion on a non-scientific issue; however, management agreements are not a requirement for critical habitat designation. We will seek agreements with land owners and managers on lands designated as critical habitat and on other lands that are important to conservation of the streaked horned lark as we initiate a recovery program for the bird, but such agreements are not relevant to the designation of critical habitat unless we are considering whether to exclude an area from the designation pursuant to section 4(b)(2) of the Act. We did consider the additional sites the peer reviewer suggested should have been proposed as critical habitat; however, we concluded that the areas suggested did not meet our definition of critical habitat for the streaked horned lark.

(2)

Comment:

One peer reviewer commented on our lack of discussion of wintering habitat requirements for the streaked horned lark. The peer reviewer suggested that if wintering habitats are the same as habitats used for breeding, we should state that explicitly. The peer reviewer also commented on the fact that all of the proposed critical habitat sites were identified as either breeding habitats or breeding and wintering habitats, but there were no sites identified as solely wintering sites.

Our Response:

Our current knowledge of habitat use by the streaked horned lark indicates that there are no sites that are used solely for wintering habitat. There are sites in Washington that have breeding populations in the spring and summer, but that are then abandoned by the streaked horned lark in the fall and winter. Other breeding sites on the Washington coast, in the Columbia River, and in the Willamette Valley are also used as wintering habitats. We have amended the description of critical habitat selection criteria to be clearer, as requested by the peer reviewer.

(3)

Comment:

Two peer reviewers and several commenters expressed concern about relying on airports for streaked horned lark recovery because although airports harbor populations of larks, the sites may act as “population sinks” due to the constant habitat disturbance, hazing, and threat of aircraft strikes.

Our Response:

We share this concern. Streaked horned larks occur on airports because management to control hazardous wildlife and to maintain safe conditions for aviation has incidentally created suitable habitat for the subspecies; however, airports are not ideal locations for focusing recovery efforts for the streaked horned lark. First, the birds are at risk of mortality

from plane collisions, and have frequently been documented in bird strikes at airports (Cleary and Dolbeer 2005, p. 101). Secondly, Federal Aviation Administration (FAA) regulations require airports to take immediate action to alleviate wildlife hazards whenever they are detected (14 CFR 139.337). This requirement to maintain airfields free of wildlife hazards would severely limit the potential to increase streaked horned lark populations on airports. Streaked horned larks at airports are therefore subject to the combined threats of plane strikes and constant management to minimize bird populations; although airports currently support some relatively large populations of the subspecies, airports are clearly not ideal for conservation and recovery efforts aimed at further increasing abundance of the bird. Airports will continue to be important for the consistent habitats they provide for some populations of the streaked horned lark, and we will work with airports to maintain stable populations of the subspecies. Our main recovery efforts for the streaked horned lark, however, will need to focus on establishing new populations and managing for the subspecies at locations where population growth is an acceptable management goal for the site.

(4)

Comment:

One peer reviewer asked if industrial lands may be population sinks (

i.e.,

they provide attractive locations for breeding but do not contribute to population growth), given their frequent disturbance without regard to the effect on the streaked horned lark, and further inquired if we had considered the possible long-term effects of the activities exempted in the special rule. The peer reviewer suggested that perhaps we should not encourage maintenance of sink habitats.

Our Response:

At this point, we do not know whether industrial lands function as sink habitats for breeding streaked horned larks; we will focus on gaining a better understanding of lark population dynamics in these habitats in the recovery program for the bird. We agree that this will be an important issue as we identify habitats that have the potential for contributing to the long-term conservation of the subspecies. We acknowledged this concern in response to another comment as well (see our response to Comment 3, above).

(5)

Comment:

One peer reviewer and one commenter stated the designation of Coffeepot Island as critical habitat for the streaked horned lark is inconsistent with the rationale for other habitats proposed for designation (i.e., it is currently an unoccupied site), and believed this provided it with special recognition not warranted relative to many other sites where the streaked horned lark has occurred in the past or could occur in the future, or even more importantly, many other sites not being proposed as critical habitat where the streaked horned lark currently does occur.

Our Response:

We proposed critical habitat on a portion of Coffeepot Island based on indications that the U.S. Army Corps of Engineers (Corps) might add this area to their list of authorized dredge deposit sites (thus potentially creating suitable habitat for the streaked horned lark) and its proximity to other occupied deposit sites on the Columbia River. As such, we believed that even though it may be currently unoccupied, it could play an essential role in the conservation of the subspecies in the future. However, to date we have no indications that the Corps is actively pursuing inclusion of this island into their dredging and navigation channel maintenance program. Therefore, the site is unlikely to support streaked horned larks anytime within the foreseeable future. Based upon this information and input from peer reviewers, we have determined this unoccupied area is not essential to the conservation of the subspecies, and thus does not meet the definition of critical habitat. Coffeepot Island is not included in the final designation of critical habitat for the streaked horned lark.

(6)

Comment:

One peer reviewer and several commenters recommended that we designate critical habitat on sites that are not known to be currently occupied by streaked horned lark, but could be managed to provide suitable habitat. These sites include privately owned agricultural lands in the Willamette Valley, industrial and restoration sites in the Portland area, and islands and mainland sites along the lower Columbia River.

Our Response:

Recovery of the streaked horned lark will likely require the restoration or creation of new habitat on some currently unoccupied sites. As described in the proposed rule, streaked horned larks require habitat with both a specific landscape context (flat and wide-open) and structure (low-stature vegetation with abundant bare ground). Given the appropriate landscape context, the structure is easy to create, which has fostered the hope of establishing new habitats for streaked horned larks at sites with conservation management as their main objective. There have recently been some attempts to create habitat for and to attract streaked horned larks to suitable but unoccupied habitats. An experimental approach, initially implemented by Metro (the Portland, Oregon, area regional government body) and later joined by the Center for Natural Lands Management (CNLM), a nongovernmental organization, has attempted to create habitat and attract streaked horned larks to the St. Johns Landfill in North Portland, Oregon, and to two sites at Joint Base Lewis-McChord (JBLM) in Washington; the effort at St. Johns Landfill began in 2009, and at JBLM in 2012. These efforts have combined habitat creation and the use of conspecific attraction techniques (streaked horned lark decoys and audio playback of recorded calls). The concept holds great promise, but so far has not been successful in establishing a new population of streaked horned larks at any of the three experimental sites. As we embark on recovery efforts for the streaked horned lark, we intend to continue to refine this approach and to work to create new habitats in areas with the proper landscape context, but it is clear that we do not yet know which sites will succeed in attracting and supporting new populations of streaked horned larks. Designating critical habitat at this time on sites that do not yet support use by streaked horned larks would be premature, since we cannot be sure that streaked horned larks will colonize sites that have been recommended as potential critical habitat, and the designation of unoccupied areas requires a determination that such areas are essential to the conservation of the subspecies. We may revisit the issue of critical habitat designation when we have better information about how to attract streaked horned larks to currently unoccupied sites. In addition, we will look to the guidance provided by the recovery plan that will be developed for the streaked horned lark to make future determinations regarding those unoccupied areas, if any, that may be essential for the conservation of the subspecies.

Comments From States

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

information, threats, critical habitat exclusions, the inadequacy of regulatory mechanisms, and recommendations for the management of habitat. We did not receive any comments regarding critical habitat for the Taylor's checkerspot butterfly or streaked horned lark from agencies in the State of Oregon.

Both agencies (WDFW and WDNR) provided a number of recommended technical corrections or edits to the proposed critical habitat designation for the Taylor's checkerspot butterfly and streaked horned lark. We have evaluated and incorporated this information into this final rule where appropriate to clarify the final critical habitat designation. In instances where the Service may have disagreed with an interpretation of the technical information that was provided, we have responded in separate communication with the agency.

(7)

Comment:

WDFW noted that the critical habitat designation for Taylor's checkerspot butterfly in the Bald Hill area did not appear to include some historical Taylor's checkerspot butterfly locations with suitable habitat. WDFW believes both Fossil Rock and Bald Hill 1176 Spur A Bald should have been included in proposed critical habitat.

Our Response:

We considered the WDFW's suggestion, but concluded the contiguous area proposed for designation as critical habitat in this area for Taylor's checkerspot butterfly would provide better management opportunities for the subspecies than would designating multiple, isolated patches. The focus of conservation work in the Bald Hill area has been in the vicinity of the State's Natural Area Preserve, and not on disjunct patches that are likely inaccessible to Taylor's checkerspot butterflies unless they were introduced (translocated) specifically into these isolated habitat patches.

(8)

Comment:

WDFW encouraged the Service to not only ensure that the conservation measures provided for in the integrated natural resources management plan (INRMP) for JBLM are sufficient to preclude the need to designate critical habitat for the Taylor's checkerspot butterfly and streaked horned lark, but also that implementation of the plan can be assured. WDFW also requested we consider excluding WDFW properties addressed by their draft wildlife area habitat conservation plan (HCP).

Our Response:

Section 4(a)(3)(B)(i) of the Act specifically states that the Secretary shall not designate critical habitat on Department of Defense lands if the area is subject to an INRMP that provides a benefit to the species for which critical habitat is proposed. As discussed under the section Exemptions in this final rule, the Secretary has determined, in writing as required by the Act, that JBLM's INRMP provides such a benefit for Taylor's checkerspot butterfly and streaked horned lark under the endangered species management plans (ESMPs) developed specifically for these subspecies under their INRMP; therefore JBLM lands are not included in this final designation of critical habitat. Our experience with JBLM is that, when they commit to conservation actions, they have the funding required to ensure that implementation of the action will occur.

When deciding whether to exclude an area from designation of critical habitat under section 4(b)(2) of the Act, the Service needs to assess not only the conservation measures outlined within management plans regardless of agency or organization, but also the level of assurance an agency can provide of actually funding and implementing the conservation measures identified within the plan. The same process would hold true when evaluating the WDFW wildlife area HCP. As described in the Exclusions section of this document, we have excluded the Wildlife Areas owned and managed by WDFW because of the management plans in place for these State Wildlife Areas (Scatter Creek and West Rocky Prairie Wildlife Areas) The exclusion of these Wildlife Areas was not based on WDFW's draft HCP because we have not received a complete draft HCP document to review, and furthermore, the HCP in question is not finalized. We would not be able to exclude the areas in question based on assurances for funding and implementation that may be provided through a future HCP process.

(9)

Comment:

WDFW was concerned that, with the new helicopter brigade stationed at JBLM, the airstrip on TA 14 on 13th Division Prairie is now used almost daily during streaked horned lark breeding season, with many low-elevation flights and “touch-and-go” exercises occurring in the highest density occupied habitat. This is also a concern for adult Taylor's checkerspot butterflies at this site. They were also concerned with impacts associated with off-road training conducted in the 13th Division Prairie.

Our Response:

Activities conducted on JBLM, including air operations at 13th Division Prairie, the military airfields, and other areas, will be addressed in section 7 consultations after the subspecies are listed. The Service is currently coordinating with the Environmental and Natural Resource Division and staff from Range Control on training activities that impact the Taylor's checkerspot butterfly and streaked horned lark, and we are in negotiations on ways to further reduce impacts to these two subspecies specifically at this location. JBLM is aware that they will need to implement timing restrictions and avoid conducting training activities in certain locations or during the most sensitive time of year to minimize or avoid take of the subspecies after they are listed. This will include the areas adjacent to the Pacemaker runway and other portions of the 13th Division Prairie where the Taylor's checkerspot butterfly and streaked horned lark occur.

(10)

Comment:

WDNR was concerned that the safe use of pesticides to control nonnative, invasive insects, such as gypsy moth, may be impacted by the listing and designation of critical habitat for Taylor's checkerspot butterfly.

Our Response:

We do not see pesticide use in general to pose an adverse impact to Taylor's checkerspot butterflies unless individuals are directly exposed to the pesticides. The Service does not anticipate the need for pesticide spraying on habitat occupied by Taylor's checkerspot butterflies, as the subspecies does not occupy forested areas where such pesticides are generally applied. However, if pesticide were to be sprayed in areas where pesticide drift would expose Taylor's checkerspot butterflies to the pesticide(s), then we would be concerned with their application in these situations. The Service acknowledges the use of pesticides as harmful to Taylor's checkerspot butterfly at all life stages. We specifically discourage the use of insecticides such as

Bacillus thuringiensis

var.

kurstaki

(BtK) in forested areas adjacent to Taylor's checkerspot butterfly habitat. This insecticide, which is used for harmful defoliators like gypsy moth and spruce budworm, has been implicated in the loss of three populations of Taylor's checkerspot butterfly in Pierce County, Washington, during the early 1990s, when it was applied adjacent to Taylor's checkerspot butterfly habitat.

Comments From Federal Agencies

Department of Energy, Bonneville Power Administration

(11)

Comment:

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

features required for recovery of Taylor's checkerspot butterfly.

Our Response:

We agree that some portions of the BPA rights-of-way in areas formerly occupied by Taylor's checkerspot butterfly do not contain biological features that are important for the subspecies; therefore we have made minor changes to the critical habitat boundaries to remove those areas that do not meet our definition of critical habitat. Furthermore, as explicitly described in this rule, critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule (see

DATES

). Therefore, access roads and transmission towers and their related infrastructure are not considered critical habitat. Powerline rights-of-way are excellent areas to manage and support butterflies as the structure and composition of vegetation for the Taylor's checkerspot butterfly is compatible with right-of-way management.

(12)

Comment:

BPA believes the geographic footprints of access roads and transmission structures do not contain the biological features essential for the conservation of Taylor's checkerspot butterfly, since they differ in character from the open meadow space more generally located within the rights-of-way that provide high-quality habitat for the butterfly. Therefore, they should not be designated as critical habitat.

Our Response:

The critical habitat unit referred to by BPA (Unit 4-D) is currently occupied by Taylor's checkerspot butterfly and provides several of the physical or biological features essential to the conservation of the species. Open areas that provide flight corridors between patches of suitable habitat are important for Taylor's checkerspot butterflies. In addition to the relative quality of habitat, there needs to be an avenue for movement, including movement between areas that may not provide high-quality habitat features. Access roads and other areas cleared of woody vegetation can provide important flight corridors used by Taylor's checkerspot butterflies, although roads and other structures are not consistent with critical habitat and are specifically not included in critical habitat by text, as described in our response to Comment 11, above.

Department of Transportation, Federal Aviation Administration

(13)

Comment:

The Federal Aviation Administration (FAA) does not believe habitat on airports should be considered critical for the recovery of either the Taylor's checkerspot butterfly or streaked horned lark given that airport property encompasses only 2,948 ac (1,193 ha) out of 21,393 ac (8,657 ha) proposed for critical habitat designation, or approximately 14 percent of the total proposed acreage.

Our Response:

The Act defines critical habitat as those specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection. The test for whether an area is essential to the conservation of the species is applied to areas that are not occupied by the species at the time of listing. All airport lands proposed for critical habitat designation for the streaked horned lark are currently occupied by the subspecies and provide the essential physical or biological features, which may require special management considerations or protection. Therefore, all airport lands proposed meet the Act's definition of critical habitat for the streaked horned lark. However, our analysis under section 4(b)(2) of the Act indicates that the benefits of including airport lands in critical habitat are outweighed by the benefits of excluding these areas. Therefore, all airport lands are excluded from this final designation of critical habitat for the streaked horned lark. Please see additional discussion under Exclusions.

We did not propose any critical habitat on airport lands for the Taylor's checkerspot butterfly.

Department of the Air Force

(14)

Comment:

The Department of the Air Force believes the designation of streaked horned lark critical habitat on military airfields is counter to Air Force instructions and could increase the risk to aircrews, aircraft, and the streaked horned lark; therefore, they requested that military airfields be excluded from critical habitat designation for the lark.

Our Response:

The military airfields proposed for critical habitat designation for the streaked horned lark are currently occupied by the species. Ongoing airfield maintenance activities that are conducted at both the military and non-federal airports have created suitable habitat for the streaked horned lark that provides the essential physical or biological features for the subspecies. It is our understanding that these maintenance activities would take place regardless of the presence of the streaked horned lark. We are aware that FAA regulations required for public safety are in direct conflict with increasing bird populations on airports, and as discussed in our 4(b)(2) exclusion analysis for civilian airports, we do not intend to focus on airfields as part of the recovery efforts for the streaked horned lark (see Exclusions). Section 4(a)(3)(B)(i) of the Act specifically states that the Secretary shall not designate critical habitat on Department of Defense lands if the area is subject to an INRMP that provides a benefit to the species for which critical habitat is proposed for designation. As discussed in the Exemptions section below, the Secretary has determined that the endangered species management plan for the streaked horned lark developed under JBLM's INRMP provides adequate protection for the subspecies on the military airfields. Therefore, the military airfields are not included in the final critical habitat designation.

(15)

Comment:

The Department of the Air Force and several other commenters were concerned that critical habitat designations at airports would restrict essential activities, including military training and hazardous wildlife control.

Our Response:

As described above in our responses to Comments 13 and 14, we have excluded airports from the final critical habitat designation for the streaked horned lark under section 4(b)(2) of the Act and exempted all DOD lands at Joint Base Lewis-McChord (JBLM) under section 4(a)(3) of the Act, so the potential effects of critical habitat designation are moot. However, any activity by a Federal agency that may affect the streaked horned lark or any other listed species at an airport would be subject to consultation under section 7 of the Act. Under section 7(a)(2) of the Act, it is the duty of all Federal agencies to ensure that any actions they fund, authorize, or carry out are not likely to jeopardize the continued existence of a listed species. Review under section 7 may result in some changes to an agency's proposed action, consistent with their mandates, to advance the conservation of listed species.

Department of the Army, Joint Base Lewis-McChord

(16)

Comment:

The Department of the Army believes the northern portion of the Range 72-79 unit for Taylor's checkerspot butterfly on JBLM should be excluded due to the fact that this area is of lower quality than the remainder

of the proposed unit and is used extensively for off-road vehicle maneuvers.

Our Response:

As described in the Exemptions section of this document, all JBLM lands have been removed from the final designation of critical habitat for both species under section 4(a)(3) of the Act.

(17)

Comment:

The Range 50 subunit extends beyond the current and previous areas occupied by Taylor's checkerspot butterfly.

Our Response:

Range 50 is a site where introduced (translocated) Taylor's checkerspot butterflies have been placed since 2009. The translocation has taken hold, the population is increasing, and individual butterflies are dispersing to new food plants east and west of Range 50; therefore we consider this area to be currently occupied by the subspecies. Where the butterfly becomes established, it will be critical to provide areas of suitable habitat for dispersing individuals, and to allow for the establishment of meta-population structure that takes place on areas sufficiently large to allow for some local populations to “blink on” and “blink off” over time. This shift is typical and follows changes to habitat as the vegetation suitability (structure and composition) shifts between periods of restoration, or in the case of JBLM, inadvertent fires that periodically disturb the habitat, returning it to the early seral condition that provides suitable habitat for the Taylor's checkerspot butterfly.

(18)

Comment:

The Department of the Army requests that the Service exempt those portions of the proposed critical habitat designations for the Taylor's checkerspot butterfly and streaked horned lark on JBLM.

Our Response:

Under section 4(a)(3) of the Act, we are required to not designate any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to a current INRMP, if the Secretary determines that such plan provides a benefit to the species for which critical habitat is proposed for designation. We have reviewed and approved the JBLM's endangered species management plans (ESMP) under their INRMP for the Taylor's checkerspot butterfly and streaked horned lark, and accordingly have exempted JBLM lands from our final critical habitat designations. Please see Exemptions for more information.

Natural Resources Conservation Service

(19)

Comment:

The Natural Resources Conservation Service (NRCS) believes that continuation of the current level of grazing management by the Colvin Ranch has resulted in healthy native prairie populations and will continue to provide benefits to the native prairie populations, which exceed benefits provided by a critical habitat designation. Therefore, NRCS supports the request by the Colvin Ranch to exclude their property from critical habitat under section 4(b)(2) of the Act.

Our Response:

We considered the potential exclusion of Colvin Ranch from the final designation of critical habitat. Our evaluation under section 4(b)(2) of the Act led us to the conclusion that this private land should be excluded from the final designation of critical habitat, as the benefits of exclusion outweigh the benefits of inclusion in critical habitat. Please see Exclusions for more information.

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Comment:

NRCS and another commenter recommended that we withdraw the proposed designation of critical habitat for the streaked horned lark at M-DAC Farms in Oregon because the site no longer provides the primary constituent elements (PCEs) identified for critical habitat. M-DAC Farms is a privately owned property with a Wetlands Reserve Program easement, which is held by NRCS. NRCS expressed concern that M-DAC's designation as critical habitat could affect the agency's ability to accomplish the wetland restoration goals for which the conservation easement was originally purchased on the site.

Our Response:

Prior to NRCS's purchase of a conservation easement at M-DAC, the site was a perennial rye grass farm. The goals for the site include restoration of 100 (40 ha) acres of seasonal wetland, over 100 (40 ha) acres of bottomland hardwood forest, and over 300 acres (120 ha) of wet prairie habitat. Though streaked horned larks used the site in large numbers when the ground was originally cleared to prepare for habitat restoration, we agree with the commenter that the vegetation at the site has since matured and no longer provides suitable habitat for the streaked horned lark, with the exception of limited areas along a road and perhaps in the seasonal mudflats adjacent to the wetlands. The site may continue to provide habitat for a few breeding pairs of streaked horned larks; however, the long-term goals for the site do not include increasing the area of suitable habitat for streaked horned larks. The site will not be a focus of active recovery for the streaked horned lark, and very little of the 601 acres (240 ha) will provide suitable habitat for the subspecies.

We have removed M-DAC Farms from the final designation of critical habitat based on information we received during the public comment period indicating that it does not meet the definition of critical habitat for the streaked horned lark. The site does not provide the requisite physical or biological features, and therefore does not meet our criteria for designation.

U.S. Forest Service, Olympic National Forest

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Comment:

The U.S. Forest Service believes that areas within Olympic National Forest proposed for critical habitat designation should be excluded under section 4(b)(2) of the Act due to ongoing management for Taylor's checkerspot butterfly habitat.

Our Response:

We have worked closely with the U.S. Forest Service, and Taylor's checkerspot butterfly has benefitted immensely from the conservation actions that have been implemented on the Olympic National Forest. We inadvertently indicated that we may exclude Olympic National Forest lands from the final designation of critical habitat. However, such an exclusion would run counter to the Congressional intent of the Act (stated in sections 2(c)(1) and 7(a)(1)) that Federal agencies have obligations to conserve endangered and threatened species and to carry out programs for the conservation of endangered and threatened species. In consideration of the explicit congressional direction that Federal agencies exercise their authorities to conserve listed species, we expect Federal agencies to contribute to conservation through the designation of critical habitat. Therefore, we have not excluded any Federal lands from critical habitat. Please see the section

Federal Lands

for more information.

Comments From Native American Tribes

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Comment:

The Shoalwater Bay Tribe requested that habitat on their reservation be excluded from the final critical habitat designation for the streaked horned lark. The Tribe is currently working with the Service and the Corps to develop an ecological restoration plan for the Tribal tidelands. This restoration plan will focus on maintaining and protecting habitat for listed species (including the streaked horned lark and western snowy plover (

Charadrius nivosus nivosus

)) and coastal resources important to the Tribe.

Our Response:

Based on our ongoing partnership with the Tribe and assurance that habitat will be protected at this site, we have excluded the Shoalwater Bay Indian Reservation from

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

Comments From the Public

Several commenters provided minor technical corrections or edits to the proposed critical habitat designation for Taylor's checkerspot butterfly and streaked horned lark. We have evaluated and incorporated this information into this final rule where appropriate to clarify the final critical habitat designation. In instances where the Service may have disagreed with an interpretation of the technical information that was provided, we have responded under separate comments.

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Comment:

One property owner in Subunit 1-D disputed the Service's authority to designate critical habitat on their lands for Taylor's checkerspot butterfly, arguing that the PCEs must be found on an area as a prerequisite to designation, and that the Act leaves no room for designation of land that may in the future contain the physical or biological features. The owner acknowledges that the property is currently unoccupied by the subspecies, but disagrees with the Service's conclusion that the available evidence indicates it was likely historically occupied by Taylor's checkerspot butterfly. The owner further claims that their property does not contain any of the specific physical or biological features that the Service has identified for Taylor's checkerspot butterfly at any stage of its development.

Our Response:

The Act provides two definitions for critical habitat: one applies to areas occupied by the species at the time of listing, the other applies to areas not occupied by the species at the time of listing. In the first case, the Act specifies that critical habitat means, “the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection.” This requirement that the physical or biological features be found does not apply in this particular situation, because the property in question is not presently occupied by Taylor's checkerspot butterfly. The lands in question were initially identified in the proposed rule as meeting our criteria for critical habitat under the second part of the definition of critical habitat in the Act, which adds that critical habitat includes, “specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary [of the Interior] that such areas are essential for the conservation of the species.” We therefore re-evaluated the unoccupied private property in question. We evaluated its context in relation to other occupied areas supporting the Taylor's checkerspot butterfly, and other protected areas where habitat has been improved sufficiently to support translocated Taylor's checkerspot butterflies. Based upon our analysis, we have determined the unoccupied property in question is not essential to the conservation of Taylor's checkerspot butterfly; therefore it is not included in the final designation.

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Comment:

One landowner stated that the designation of their property as critical habitat for Taylor's checkerspot butterfly is improper because the record does not contain evidence that shows specifically where the PCEs are located. To the contrary, they believe there is evidence that the property contains physical features that the proposed rule identifies as rendering habitat unusable for the butterfly. The commenter states that any designation of critical habitat by the Service must be limited to those areas that actually contain the physical or biological features essential to the conservation of the Taylor's checkerspot butterfly.

Our Response:

The property in question was proposed as unoccupied but essential critical habitat for the Taylor's checkerspot butterfly. As noted in various responses above, the standards for designation of critical habitat differ depending on whether the area in question is occupied at the time of listing or not. If the area is occupied at the time of listing, the PCEs for the species must be found on that area (however, the Service is not required to detail all the specific locations where each PCE may exist on an area proposed for designation). If the area is not occupied at the time of listing, it may be designated as critical habitat upon a determination by the Secretary that such area is essential for the conservation of the species. The reference to the presence of the essential physical or biological features does not appear in the definition of unoccupied areas, thus the commenter is incorrect in stating that the designation of critical habitat must be limited to those areas that contain such features in cases such as this where the area in question is not occupied by the species at the time of listing. In this case, we had proposed the lands in question as critical habitat believing they were essential to the conservation of the subspecies, based on similar habitats known to support Taylor's checkerspot butterfly found at other locations and from evidence of these habitat conditions being present on similar adjacent properties; the Service is particularly limited in specifying locations of the necessary habitat features on private property, where access is often not freely granted. Upon further examination, however, and in response to the information provided by the commenter, we determined that this property (located in subunit 1-D in the proposed rule, subunit 1-A Rocky Prairie in this document) is not essential to the conservation of the subspecies, and it is not included in the final designation.

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Comment:

One commenter suggested we remove the gravel pit in TA 7S, subunit 1-A, currently in use on JBLM, from the critical habitat delineated for Taylor's checkerspot butterfly. They state the gravel pit does not currently provide suitable habitat and would take enormous effort to restore to quality habitat, while the remaining extent of TA 7S prairie is relatively intact and could more easily be restored to create suitable habitat.

Our Response:

It is our understanding that, in the past, Taylor's checkerspot butterfly was observed utilizing the puddles in the gravel pit. We understand the gravel pit is marginal habitat at best, but as a formerly occupied site containing some of the PCEs for the subspecies (

Plantago

and topographic diversity) and its location adjacent to TA 7S, we considered that the area could potentially be restored to support Taylor's checkerspot butterfly (although critical habitat does not specifically require restoration).

However, since the area in question is on JBLM, it has been exempted from the final designation. Under section 4(a)(3) of the Act, we are required to not designate any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to a current INRMP, if the Secretary determines that such plan provides a benefit to the species for which critical habitat is proposed for designation. We have reviewed and approved the JBLM ESMP for Taylor's checkerspot butterfly under the INRMP and accordingly have exempted any proposed critical habitat areas on JBLM from our final critical habitat designations under section 4(3)(a) of the Act. Please see the

Exemptions section of this document for more information.

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Comment:

One commenter asked the Service to consider excluding subunit 1-J Bald Hills, since they believe the Taylor's checkerspot butterfly is likely extirpated at the site and the landowner has committed to implementing a wildlife management plan at that site.

Our Response:

We do not disagree that the Taylor's checkerspot butterfly may have been extirpated from this site. Subunit 1-J Bald Hill was identified in the proposed rule as meeting our criteria for critical habitat under the second part of the definition of critical habitat in the Act, which states that critical habitat includes, “specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary [of the Interior] that such areas are essential for the conservation of the species.” We were unable to consider these lands for exclusion under section 4(b)(2) of the Act because the Service had not received a management plan for this property; therefore, we were unable to assess the value of the conservation planning efforts being proposed or implemented on this private property. Without a management plan for evaluation, we have no potential basis for exclusion; therefore this property is included in the final designation of critical habitat.

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Comment:

One commenter recommended the Army Aviation Support Facility #1 (AASF1) in Salem be excluded from critical habitat because of the national security importance of the installation.

Our Response:

The AASF1, while it contributes to maintaining troop readiness for the National Guard, is not a Federal entity. This facility is a private/State holding with a military lease. The Secretary weighed the benefits of including versus excluding non-Federal airports from critical habitat for the streaked horned lark, and concluded that the benefits of exclusion outweighed the benefits of inclusion; thus all non-Federal airport lands are excluded from the final designation of critical habitat (see the Exclusions section of this document). AASF1, being a non-Federal entity, is already excluded from critical habitat based on this analysis; therefore we did not consider the potential national security implications of the designation.

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Comment:

Several commenters suggested that the designation of critical habitat may act as a regulatory disincentive, and may discourage private landowners and others from cooperative, voluntary conservation efforts. Some commenters suggested that the Service pursue alternative forms of conservation, such as safe harbor agreements or habitat conservation plans. WDNR and WDFW encouraged the Service to fully consider the advantages and disadvantages of designating critical habitat where cooperative, nonregulatory approaches are in place to conserve the species and its habitat.

Our Response:

Section 4(a)(3)(A) of the Act requires us to designate critical habitat to the maximum extent prudent and determinable. The Act permits us to exclude areas that meet the definition of critical habitat only where we determine that the benefits of exclusion outweigh the benefits of designation. The regulatory consequence of critical habitat designation is the requirement that Federal agencies consult on actions that they may fund, authorize, or carry out to ensure that such actions do not result in the destruction or adverse modification of critical habitat. We recognize that in many cases there may not be a Federal nexus that invokes the protections afforded to designated critical habitat on non-Federal lands, and that other instruments such as safe harbor agreements or habitat conservation plans have the potential to provide conservation measures that effect positive results for the species and its habitat. The conservation and recovery of endangered and threatened species, and the ecosystems upon which they depend, is the ultimate objective of the Act, and the Service recognizes the vital importance of voluntary, nonregulatory conservation measures in achieving that objective. To that end, we fully support and encourage the development of voluntary conservation agreements such as safe harbor agreements or habitat conservation plans with non-Federal landowners. Furthermore, where cooperative agreements are in place for the conservation of the species and its habitat, the Secretary gives full consideration to the relative benefits of excluding those lands from the final critical habitat designation, provided such exclusion would not result in the extinction of the species, in accordance with section 4(b)(2) of the Act.

(29)

Comment:

One commenter suggested that the Service pursue conservation programs to provide economic incentives to private landowners to create or maintain suitable habitat for the streaked horned lark on agricultural lands, especially grass seed farms.

Our Response:

We appreciate the suggestion, and we will consider this and other creative ideas for achieving the conservation of the subspecies as we develop the recovery plan for the streaked horned lark. Such conservation measures are outside of the scope of the present rulemaking, however, which is restricted to the identification of those areas that meet the definition of critical habitat for the streaked horned lark.

(30)

Comment:

One commenter stated the proposal fails to address private lands, which are likely to be key habitat for the persistence of the streaked horned lark. Positive incentives need to be proposed that will lead to recovery of the streaked horned lark.

Our Response:

In our proposed rule, we recognize the importance that private agricultural lands will play in the conservation and recovery of streaked horned lark, particularly in the Willamette Valley of Oregon (April 3, 2013; 78 FR 20074). However, we additionally explain that we cannot designate critical habitat in the agricultural fields in the Willamette Valley, most of which are privately owned, because we are unable to determine which areas within the large agricultural matrix in the valley will meet the definition of critical habitat at any time. Critical habitat, once designated, is static on the landscape until such time as it may be revised through an additional rulemaking process. Agricultural habitats on private lands can provide appropriate habitat conditions for streaked horned lark, but these conditions (large, open landscape context; low-stature vegetation; bare ground) occur unpredictably and vary in location from year to year. Because of the unpredictable and ephemeral nature of streaked horned lark habitat on private agricultural lands, we have no basis for concluding that any specific areas are essential for conservation, because we have no way of knowing where or how long the appropriate conditions will persist. Therefore, we have not designated critical habitat for the streaked horned lark on private lands in the Willamette Valley.

As noted earlier, the consideration of recovery instruments such as incentive programs is outside of the scope of the present rulemaking, which is limited to the identification of those areas that meet the definition of critical habitat for the streaked horned lark.

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Comment:

One commenter stated that the Service failed to designate critical habitat on private agricultural lands in the Willamette Valley, despite the fact that a majority of breeding and wintering streaked horned larks rely on those areas. The commenter disagreed

with the Service's position that it was unable to determine which areas within the large agricultural matrix in the valley will meet the definition of critical habitat at any time. The commenter pointed to the Service's designation of large areas of critical habitat for the northern spotted owl and marbled murrelet across millions of acres of forest even though only a portion of the habitat is suitable for either bird at any time. The commenter recommended that the Service take a similar approach for streaked horned larks on agricultural lands in the Willamette Valley, recognizing that only a portion of those lands will be suitable at any given time.

Our Response:

The commenter's comparison to the critical habitat designations for the northern spotted owl (

Strix occidentalis caurina

) and marbled murrelet (

Brachyramphus marmoratus

) is not an apt one. The northern spotted owl and marbled murrelet rely primarily on Federal lands for their conservation, and their old-growth habitat takes decades to develop on those lands. In contrast, the habitat of the streaked horned lark can develop and disappear on farm lands in the space of a few weeks, and its appearance typically depends on human intervention, not natural processes. Designating large swaths of the Willamette Valley as critical habitat would not provide any useful information regarding the presence of the streaked horned lark or its habitat to landowners. We maintain that our concern about the ability to identify critical habitat for the streaked horned lark on private farm lands is valid, and the situation is not analogous to the critical habitat designations of other listed species found in old-growth forests.

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Comment:

One commenter stated the primary constituent elements (PCEs) and characteristics for habitat suitability for the streaked horned lark are fairly specific, yet noted habitat will change over time, and perhaps be suitable for only a limited period of time due to vegetation growth. Therefore, they asked if critical habitat designations will be time-limited or adjusted periodically.

Our Response:

Critical habitat is a designation that does not vary seasonally or over time, and is only subject to change through a rulemaking process to revise the designation. This relatively static nature of critical habitat is the very reason that we find we cannot identify critical habitat on the unpredictable and ephemeral habitats used by streaked horned larks in the agricultural areas of Oregon.

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Comment:

One commenter recommended that documented occupancy in any season during any life stage be the basis for determining critical habitat for the streaked horned lark. They believe the Service's definition of occupancy as occurrence only during the breeding season is too narrow. Occupancy should include documented presence of the subspecies outside of the breeding season as well. Uses of non‐breeding areas are important to the subspecies' survival, such as areas used for foraging and overwintering, as these sites may also become breeding sites in the future.

Our Response:

We do not know of any areas that are used only for wintering (most sites that are used during the winter are also used during the breeding season); however, we have modified our definition of occupancy to include usage by streaked horned larks during any season.

(34)

Comment:

One commenter stated the economic and social factors driving conversion of Willamette Valley farmland to vineyards are likely to continue in the foreseeable future, and may accelerate as large California wineries are reportedly investing in Willamette Valley farmlands as a hedge against global climate change. As a result, the likelihood of a changing agricultural landscape should be recognized in the listing and critical habitat designation for the streaked horned lark.

Our Response:

The Service does not consider the acquisition of lands by the viticulture industry to be a significant factor in the reduction of breeding and nesting habitat for the streaked horned lark. We contacted Dr. William Boggess at Oregon State University's Oregon Wine Research Institute, and he described the ideal lands for viticulture as being 300 to 800 feet (ft) (91 to 244 meters (m)) in elevation, on a slope with a southern or western aspect. These optimal viticulture soils are shallow and nutrient poor, above the flood plain or on eroded rocky soils. These ideal conditions for grapes are not similar in characteristic to the primary constituent elements for streaked horned lark habitat. As such, we do not consider viticulture a factor affecting habitat loss for the streaked horned lark.

(35)

Comment:

One commenter stated that it is important to designate critical habitat on Willamette Valley agricultural lands to “ensure that habitat is not converted to uses that will never be suitable for streaked horned lark, such as row crops or urban development, but rather are maintained as agriculture that at least part of the time supports streaked horned lark.”

Our Response:

Critical habitat designation only has a regulatory effect in instances where there is a Federal action (i.e., a Federal agency funds, authorizes, or carries out an action) that may affect designated critical habitat; this action is then reviewed through interagency consultation under section 7 of the Act between the Federal action agency and the Service. Designation of critical habitat on private lands will have no effect on a private landowner's ability to convert to another crop or to sell out completely if there is no Federal action involved. Contrary to the commenter's perception, critical habitat designation does not create a wildlife preserve or require any sort of response or management from a private landowner.

(36)

Comment:

We received multiple conflicting comments suggesting that connectivity both is and is not a necessary consideration when designating critical habitat for the streaked horned lark.

Our Response:

We rely on the expertise of our Service staff biologists, as well as the peer review of our proposed rule by species experts who either support or refute our assertions. In this instance, both our staff biologists and our peer reviewers support the need for connectivity of critical habitat units to ensure the potential for genetic exchange and colonization by streaked horned larks.

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Comment:

Several commenters expressed great concern about the implications to public safety from designating critical habitat for the streaked horned lark at airports, and requested that we exclude airports from the critical habitat designation due to safety concerns.

Our Response:

Although we do not see a direct connection between the designation of critical habitat, which results in the requirement that Federal action agencies consult with us on activities that involve Federal funding, authorization, or implementation, and public safety, all airport lands have been excluded from our designation under section 4(b)(2) of the Act for other reasons. Please see additional discussion under Exclusions.

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Comment:

Several commenters stated that critical habitat should not be designated for the streaked horned lark at airports, because airports are not suitable as sites for recovery of the subspecies.

Our Response:

We concur with these commenters that airports should not be focal points for streaked horned lark recovery. In section 3 of the Act, “critical habitat” is defined, in part, as the specific areas within the geographical area occupied by the species at the time it is listed on which

are found those physical and biological features essential to the conservation of the species. “Conservation” is further defined in the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. These definitions clearly demonstrate that the purpose of critical habitat designation is to identify locations for recovery efforts for listed species. Airport managers have expressed great concern about the implied recovery purpose of critical habitat units; management to encourage increasing populations of birds at airports is untenable to airport managers. Airports unquestionably provide important habitat for streaked horned larks, and some of these sites have demonstrated the ability to sustain small, persistent populations of streaked horned larks; indeed, without airports there would be very few sites consistently managed to maintain the habitat conditions used by the streaked horned lark within the needed landscape context. Therefore, although airports clearly provide a benefit to the subspecies, and will likely continue to provide important habitat for small populations, recovery will require restoration and management of new sites that can sustain increasing populations of streaked horned larks in the long term, in more natural locations appropriate for conservation and that do not pose a heightened risk of mortality to the streaked horned lark from airstrikes. We have excluded civilian (non-Federal) airports from critical habitat designation for the reasons outlined in the Exclusions section of this document.

(39)

Comment:

One commenter expressed concern that our proposed designation of critical habitat for the streaked horned lark relied almost exclusively on public lands. This commenter believes that private lands in the Willamette Valley will hold the key to the streaked horned lark's survival.

Our Response:

As we stated above, we do not yet know which unoccupied sites will be essential for the recovery of the streaked horned lark, and the unpredictable and highly variable occurrence of PCEs for streaked horned larks on private lands in the Willamette Valley precludes our ability to designate critical habitat in that area. The public lands included in the critical habitat designation (State Parks and the Willapa National Wildlife Refuge on the Washington coast; three units of the Willamette Valley National Wildlife Refuge Complex in Oregon (WVNWRC)) have a clear conservation mandate and are already working to conserve streaked horned lark populations on those sites. Many other sites will likely be needed to achieve recovery, but again, we do not yet know where those sites will be. As we begin to develop a recovery plan, and identify goals for population numbers and distribution of the streaked horned lark, we will identify areas to focus on for recovery. These areas will undoubtedly include many areas on private agricultural lands, for which we will seek partnerships with willing landowners to manage for streaked horned lark conservation. Finally, we note that the regulatory effect of critical habitat is limited to actions with a Federal nexus-activities that are funded, authorized, or carried out by a Federal agency. The conservation value of critical habitat is thus often the greatest on Federal lands, which always have a Federal nexus. The designation of critical habitat has no regulatory effect on private lands lacking a Federal connection. Critical habitat designation itself does not prevent development or alteration of the land, create a wildlife preserve, or require any sort of response or management from a private landowner.

(40)

Comment:

One commenter stated that Ankeny National Wildlife Refuge in the Willamette Valley is not an appropriate site for designation of critical habitat for the streaked horned lark. The commenter asserted that, “. . . Ankeny is not recognized among knowledgeable local birders as having any significant population” of streaked horned larks, and is unlikely to serve as an “anchor site” for the bird's recovery.

Our Response:

Recent surveys have found up to five breeding pairs of streaked horned larks at Ankeny; therefore the site is occupied at the time of listing, and the refuge clearly provides the essential physical or biological features for the subspecies. Therefore, it meets the definition of critical habitat for the streaked horned lark. The WVNWRC included conservation measures in its comprehensive conservation plan for the streaked horned lark at each of the three refuge units, including Ankeny. We believe that Ankeny provides consistently available habitat for a small population of breeding streaked horned larks, and future management may increase the population. The WVNWRC is Federal land and has a clear conservation mandate, and so makes a good choice for critical habitat designation.

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Comment:

One commenter questioned our proposed designation of critical habitat for the streaked horned lark on the three units of the Willamette Valley National Wildlife Refuge Complex. These refuges were originally established as habitat for wintering dusky Canada geese (

Branta canadensis occidentalis

), and the commenter stated that the refuges cannot successfully manage for the two bird species at once.

Our Response:

Research at the three refuge units has shown that streaked horned larks breed successfully in fields that have been heavily grazed by wintering geese (Moore 2009, p. 12). The WVNWRC has a long history of managing for wintering geese, and has recently updated its comprehensive conservation plan to integrate streaked horned lark conservation into the goals for the three refuge units. We believe that the WVNWRC provides excellent habitat for streaked horned larks, and adaptive management of the sites will likely increase the numbers of streaked horned larks breeding at each of the refuge units.

(42)

Comment:

Several commenters criticized the Service's failure to designate critical habitat on many sites that have had recent detections of streaked horned larks, primarily on privately owned agricultural lands in the Willamette Valley, and a few locations in the lower Columbia River. The commenters are concerned that the current critical habitat designation will not be adequate to recover the subspecies.

Our Response:

Streaked horned larks evolved to use a shifting mosaic of very early successional habitats, for which the primary requirement was the appropriate landscape context (large, relatively flat, and wide open). The streaked horned lark is unusual among species in that it does not now occur on remnants of its native habitats; indeed, most of the streaked horned lark's naturally occurring habitats no longer exist because the natural processes that historically created those early successional habitats, such as flooding and wildfire, no longer operate on the landscape. With the exception of sites on the Washington coast, where natural disturbance processes still operate to create habitat, nearly all of the sites currently used by streaked horned larks have been inadvertently created by humans and are industrial in nature. These sites are agricultural landscapes, dredge spoil deposition sites, and airports. These “working landscapes” are managed with little or no consideration for streaked horned lark conservation, and lark use of these sites seems to be highly opportunistic. Although streaked horned larks currently occur on these sites, given their intensive industrial uses, these

locations may have limited potential to support increased populations of streaked horned larks in the future, and may be inappropriate sites on which to establish a recovery program for the subspecies. For the streaked horned lark, we do not have obvious core sites of pristine, natural habitats on which to focus recovery efforts. In essence, the streaked horned lark persists in the Pacific Northwest, even though its natural habitats are all but gone.

The sites that streaked horned larks currently use are highly fragmented and scattered. Developing a recovery program for the streaked horned lark will require identifying areas that have the essential landscape characteristics and which can be managed for conservation and recovery of the subspecies. Few of these areas have been determined thus far. In the Willamette Valley, large landscapes managed for native prairies will be needed, although it is very likely that some “working lands” in agricultural production will also be identified as interested landowners step up to implement practices to protect the streaked horned lark on their lands.

Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We are not designating critical habitat on every small and fragmented location recently known to be occupied or potentially occupied by streaked horned larks, because we do not consider all of these sites to meet the definition of critical habitat for the streaked horned lark. That is, we do not consider all of these sites to provide physical or biological features essential to the conservation of the species, because not all of these sites have the potential to make a substantial contribution to the recovery of the species. In addition, section 3(5)(C) of the Act specifically mandates that, except in those circumstances determined by the Secretary of the Interior, critical habitat shall not include the entire geographical area which can be occupied by the listed species. We are not suggesting that the sites currently used by streaked horned larks are unimportant; rather, recovery is more likely to be successful and cost-effective if we can focus our resources on larger, more permanent sites. Therefore, it is these larger, more permanent occupied sites that we consider to provide the physical or biological features that are truly essential to the conservation of the subspecies, and these are the areas that we are designating as critical habitat at this time. We do not contend that these sites will necessarily be sufficient to recover the subspecies, nor does the Act require that they do so. In the future, when we have better information on sites that will attract and support large, stable populations of streaked horned larks, and that can be managed for the long-term conservation of the subspecies, we may revisit this critical habitat designation, as appropriate.

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Comment:

One commenter recommended re-drawing the boundaries of proposed streaked horned lark critical habitat at Portland International Airport to exclude paved runways, taxiways, and runway safety areas.

Our Response:

All non-Federal airport lands are excluded under section 4(b)(2) of the Act from this final designation of critical habitat for the streaked horned lark; please see additional discussion under Exclusions. For the lands that we are designating as critical habitat, when determining critical habitat boundaries, we make every effort to avoid including developed areas such as lands covered by buildings, pavement (such as roads), and other structures because such lands lack the essential physical or biological features for streaked horned larks. Any such lands have been excluded by the text of this rule and are not included in critical habitat.

(44)

Comment:

One commenter stated the PCE requiring only a minimum of 16 percent open ground would not support occupation of the known nesting sites for streaked horned larks on dredge sand islands in the Columbia River and may only be relevant for other sites (such as the Puget Prairie or Willamette Valley).

Our Response:

The PCE identifying 16 percent minimum open ground is a description of the habitat conditions, or physical or biological features, essential to the conservation of the streaked horned lark, not a management requirement. Based on research studies, streaked horned larks need areas with a minimum of 16 percent bare ground. Most of the currently occupied sites have much more bare ground than this, and many of the dredge deposit sites have more than 60 percent bare ground. The habitat description is based on research studies across the range of the subspecies. We do not expect land owners to manage sites for streaked horned larks to criteria that represent the minimum observed in the field.

(45)

Comment:

One commenter suggested the limited number of territories and nesting pairs observed annually at Sanderson Field indicates this area provides only marginal habitat for the streaked horned lark and should not be designated as critical habitat.

Our Response:

The fact that streaked horned larks have consistently nested at Sanderson Field is an indication that the airport does provide suitable habitat. There are many occupied sites in Washington and throughout the range of the subspecies where the number of nesting territories is low (fewer than 10), and this is not considered an indication of marginal habitat. The smaller size of Sanderson Field, compared to the Olympia Airport, and the rapidly declining population of streaked horned larks in Washington are contributing factors to the number of territories at the Shelton Airport and other locations. It should be noted that Sanderson Field is the northernmost location within the current range of the subspecies where the streaked horned lark nests. As such, this particular airport serves an important role in maintaining the distribution of the subspecies. However, as described in the Exclusions section of this document, airport lands have been excluded from critical habitat for the streaked horned lark.

(46)

Comment:

One commenter was concerned that the designation of critical habitat for the streaked horned lark at certain locations within the Columbia River would attract streaked horned larks to adjacent or nearby areas not proposed for designation and could limit operational and development activities of the Port of Kalama in these areas.

Our Response:

Sandy Island is currently occupied habitat, and the streaked horned lark has already been documented at the Port of Kalama's upland dredge deposit site. The designation of critical habitat on Sandy Island, or other islands in the Columbia River, will not affect existing streaked horned lark movements or limit operational and development activities on port property. The fact that the streaked horned lark has been documented on the Port of Kalama is an indication that the upland dredge deposit site is currently suitable habitat. Under the listing (see the final rule to list the Taylor's checkerspot butterfly and streaked horned lark published elsewhere in today's

Federal Register

), the port will be subject to take prohibitions under section 9 of the Act for activities conducted by the port that

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

Comments on Economic Analysis

Please note that the draft economic analysis (DEA) for the proposed designation addressed multiple species proposed for listing that occupy prairie habitats of Oregon and Washington, and included an analysis of the potential economic impacts stemming from the proposed critical habitat designation for Taylor's checkerspot butterfly, streaked horned lark, and four subspecies of the Mazama pocket gopher (

Thomomys mazama

ssp.). The proposed listing and critical habitat for the Mazama pocket gophers are addressed in separate rulemakings.

(47)

Comment:

Several commenters took issue with the characterization of the baseline in the DEA concerning airport operations. For example, one commenter asserted that critical habitat may engender incremental impacts even when the streaked horned lark is present. In addition, the comment notes that favorable habitat at airports, containing the PCEs, is the result of voluntary activities by airport managers, which could be discontinued (i.e., as a result of lost Federal funding), in which case the PCEs could disappear, the sites would become unoccupied, and any subsequent consultation would result solely from critical habitat.

Our Response:

The U.S. Office of Management and Budget's (OMB) guidelines for best practices concerning the conduct of economic analysis of Federal regulations direct agencies to measure the costs of a regulatory action against a baseline, which it defines as the “best assessment of the way the world would look absent the proposed action.” The baseline utilized in the DEA is the existing state of regulation, prior to the designation of critical habitat, which provides protection to the species under the Act, as well as under other Federal, State, and local laws and guidelines. To characterize the “world without critical habitat,” the DEA also endeavors to forecast these conditions into the future over the time frame of the analysis, recognizing that such projections are subject to uncertainty. This baseline projection presumes that the species will be listed (as critical habitat would not be designated absent a listing) and therefore recognizes that the streaked horned lark will be subject to a variety of Federal, State, and local protections throughout most of its ranges, due to its listed status under the Act and regardless of the designation of critical habitat.

We note that significant debate has occurred regarding whether assessing the impact of critical habitat designations using this baseline approach is appropriate, with several courts issuing divergent opinions. Courts in several parts of the country, including the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction in Washington, Oregon, and California, have ruled that the decision about whether to exclude areas from critical habitat should be based on the incremental impacts of the rule. The Ninth Circuit cases were appealed to the Supreme Court, which declined to hear them.

(48)

Comment:

Several commenters asserted that the DEA does not fully account for, or sufficiently acknowledge, potential impacts to airport development activities, revenues, and related opportunity costs.

Our Response:

During the preparation of the DEA, its authors reached out to management officials at each of the seven airports affected by the proposed designations and collected available planning documents. Chapter 3 of the DEA discusses a variety of airport-related projects and maintenance activities that would result in section 7 consultation, and considers how these consultations might be affected by the presence of critical habitat. Based on the best available information and the incremental effects memorandum prepared by the Service, the DEA concludes that, for areas that are occupied by the subspecies, critical habitat designation will not result in incremental impacts beyond administrative costs incurred to consider adverse modification during consultation.

(49)

Comment:

The Port of Portland states that their economic assessment concerning this proposed designation was not included in the DEA, and notes certain other issues, including: a clarification concerning airport development activities that receive funding through the U.S. Department of Transportation (USDOT) FAA; a typographical error regarding unit labeling; and an assertion that the estimated number of consultations is inaccurate.

Our Response:

The identified economic assessment was reviewed and utilized during the development of the DEA, and is cited in chapter 3 of the report. In the final economic analysis (FEA), we added clarification concerning the USDOT FAA-funded source and fixed the unit numbering error. In addition, further detail concerning the number of consultations and analytic timeframe for the Port of Portland has been added to the FEA.

(50)

Comment:

One submission expressed concern that critical habitat designation will constrain dredging activities and alter placement sites related to the Port of Kalama.

Our Response:

The DEA discusses potential effects of critical habitat designation on dredging activities, including those related to the Port of Kalama and Sandy Island. As noted in chapter 3 of the DEA, dredging activities occur on 8 of the 10 islands proposed for streaked horned lark critical habitat in the Columbia River. Deposition of dredge materials can create flat, open habitat that streaked horned larks prefer, but dredging activities that occur during the nesting season have the potential to increase individual mortality and cause nest failure. Based on the review of historical and projected conservation actions for the streaked horned lark concerning dredging activities, and given that these areas are considered occupied by the subspecies, the analysis concluded that critical habitat will not result in incremental economic impacts to dredging activities, beyond the administrative costs associated with consultation with the Service.

(51)

Comment:

Two commenters expressed concern that the listing and designation of critical habitat for the Taylor's checkerspot butterfly and Mazama pocket gophers (which will be addressed in separate rules) may constrain gravel mining activities in Pierce and Thurston Counties, Washington. One comment expressed specific concern about impacts to planned gravel extraction in Subunit 1-D Rocky Prairie.

Our Response:

The proposed critical habitat acreage in these areas is considered to be occupied by at least one of the prairie species noted. As noted in the DEA and related incremental effects memorandum, should the six subspecies be formally listed under final rules, their presence within critical habitat will require implementation of certain conservation efforts to avoid jeopardy concerns. In occupied critical habitat, consultation would therefore consider not only the potential for jeopardy to the continued existence of the species, but also the potential for destruction or adverse modification of critical habitat. Because the ability of these subspecies to exist is very closely tied to the quality of their

habitats, significant alterations of their occupied habitat may result in jeopardy as well as adverse modification. Therefore, we anticipate that section 7 consultation analyses will likely result in no difference between recommendations to avoid jeopardy or adverse modification in occupied areas of habitat. The analysis concludes that incremental economic impacts of critical habitat designation will be limited to additional administrative costs of additionally considering critical habitat as part of section 7 consultation to the Service, other Federal agencies, and private third parties. Note, however, that additional detail concerning potential gravel mining activities in proposed critical habitat, along with related consultation requirements, has been added to the FEA.

In addition, the specifically identified subunit, Subunit 1-D Rocky Prairie, was proposed as unoccupied critical habitat for Taylor's checkerspot butterfly. This subunit has been removed from the final designation upon a determination that this area is not essential to the conservation of the species.

(52)

Comment:

One commenter stated that, in the DEA, economic costs are overstated and that many economic benefits have not been included in the analysis. Specifically, the comment asserted that there is no basis to determine that the designation of critical habitat for the streaked horned lark will have an additional economic impact beyond the listing itself, and notes that birdwatching and related livability amenities due to outdoor opportunities are important to Portland's social vitality.

Our Response:

A primary conclusion of the economic analysis is that, in areas of proposed designation occupied by the species, limited incremental impacts will occur beyond those administrative costs associated with consultation. Further, in chapter 3, the DEA does provide a qualitative discussion of potential ancillary benefits (including recreational use) attributable to the conservation of these species.

(53)

Comment:

One commenter stated that the DEA dismisses the need to describe impacts in economic terms and instead focuses on biological benefits only, citing paragraph 4 in the Executive Summary of the DEA as an example.

Our Response:

This comment misconstrues the language of this paragraph. The DEA endeavors to provide a full rendering of the designation's potential economic impacts, including defining a baseline and assessing incremental effects, both direct and indirect. In the context of weighing these costs against the “benefits” of the designation, however, the benefits component focuses on the primary “biological” benefit related to species conservation, and puts less emphasis on ancillary, or secondary, benefits flowing from species conservation (e.g., improved environmental quality yielding human health or recreational use benefits).

(54)

Comment:

One commenter noted that, concerning potential ancillary benefits of the designation, airports are secure facilities with limited and controlled public access. Thus, none of the potential ancillary benefits cited in the DEA, such as recreational opportunities, is relevant to the airport environment.

Our Response:

We agree that, given the security environment at airports, human use benefits are limited at airports. We note, however, that the direct biological benefit of species conservation may still be attributable to airport locations, and that certain ancillary benefits (improved environmental quality due to landscape management) may also still accrue. As previously mentioned, all non-Federal airport lands are excluded from this final designation of critical habitat for the streaked horned lark. Please see additional discussion under Exclusions.

(55)

Comment:

One commenter expressed concern that, even when care is taken in the review of projects and actions that are unlikely to harm the long-term viability of the Taylor's checkerspot butterfly, streaked horned lark, and Mazama pocket gopher, allowance of new development could leave the community subject to potential lawsuits.

Our Response:

Chapter 2 of the DEA discusses the issue of indirect impacts potentially related to critical habitat, including the triggering of other State and local laws, time delays, regulatory uncertainty, and stigma. Within this context, the effect of third-party litigation can represent an indirect effect. We note, however, that forecasting the likelihood of third-party litigation and related project delays or other constraints is considered too speculative for the economic analysis. In addition, the DEA attributes most economic effects to the presence of the species and jeopardy concerns, as opposed to the designation of critical habitat.

Summary of Changes From Proposed Rule

We are designating a total of 1,941 ac (786 ha) of critical habitat for the Taylor's checkerspot butterfly and a total of 4,629 ac (1,873 ha) of critical habitat for the streaked horned lark. We received a number of site-specific comments related to critical habitat for these two subspecies; completed our analysis of areas considered for exclusion under section 4(b)(2) of the Act or for exemption under section 4(a)(3) of the Act; reviewed the application of our criteria for identifying critical habitat across the range of these two subspecies to refine our designations; and completed the final economic analysis of the designation as proposed. We fully considered all comments from the public and peer reviewers on the proposed rule and the associated economic analysis to develop this final designation of critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. This final rule incorporates changes to our proposed critical habitat based on the comments that we received and have responded to in this document, and considers completed final management plans to conserve the subspecies under consideration. Although we received additional distribution data for the streaked horned lark on agricultural lands in the Willamette Valley, this information did not necessitate the designation of additional critical habitat. Because of the fragmented and ephemeral nature of those areas on private lands, we determined they do not meet our definition of critical habitat for the streaked horned lark.

We have made some technical corrections to the document, and our final designation of critical habitat reflects the following changes from the proposed rule:

(1) We added one additional adult nectar resource to the list of plants in the primary constituent elements for Taylor's checkerspot butterfly: wild strawberry (

Fragaria virginiana

).

(2) Based on our analysis of the total area necessary for the conservation of Taylor's checkerspot butterfly in Washington and Oregon, we determined that approximately 447 ac (181 ha) of the unoccupied critical habitat that we proposed are not essential for the conservation of the subspecies based on comments and information received. This finding of “not essential” did not result in the removal of entire subunits for the Taylor's checkerspot butterfly, as it did for the streaked horned lark (see below), but did reduce the area of several subunits for the subspecies, both in Washington and Oregon.

Our analysis of the proposed critical habitat for the streaked horned lark determined that two of proposed critical habitat subunits (in their entirety) do not meet the definition of critical habitat; therefore these subunits were removed from the final designation. The

first of these two critical habitat subunits was identified as subunit 3-J in the proposed critical habitat rule and is commonly known as Coffeepot Island. This small island of approximately 25 ac (10 ha) in the Columbia River is not occupied by the streaked horned lark, and although it presently supports some of the physical or biological features utilized by the lark, without ongoing management it will not maintain these characteristics into the foreseeable future. (Please note, in this final rule, the critical habitat units have been renumbered sequentially and the designation of critical habitat subunit 3-J is now assigned to Whites/Brown Island (see Table 2)). As we find it unlikely that Coffeepot Island will provide suitable habitat for the streaked horned lark in the future, we determined that this subunit is not essential to the conservation of the subspecies, and does not meet our definition of critical habitat.

In the second case, we determined that the subunit identified as 4-G in the proposed critical habitat rule, M-DAC Farms in Oregon, does not meet our definition of critical habitat for the streaked horned lark. Although occupied at the time of listing, the PCEs at this site are in a state of steady decline due to a conservation agreement that focuses on restoring the landscape to wetland, a vegetative structure unsuitable to maintaining habitat for the streaked horned lark. This site is therefore unlikely to contribute to the recovery of the streaked horned lark, and as it lacks the PCEs for the streaked horned lark, it does not meet our definition of critical habitat for the subspecies. M-DAC Farms (601 ac (243 ha) was therefore removed from the final designation of critical habitat for the streaked horned lark.

(3) The Service approved the DOD's endangered species management plans (ESMPs) under the INRMP for military installation JBLM for the Taylor's checkerspot butterfly and streaked horned lark. The ESMPs are species-specific, and contain site-specific conservation actions that will be implemented as a component of the larger INRMP for the installation. The Secretary has exempted lands at JBLM from critical habitat under section 4(a)(3) of the Act, based on the approval of these ESMPs. Lands exempted include approximately 2,324 ac (940 ha) for the Taylor's checkerspot butterfly and 2,813 ac (1,138 ha) for the streaked horned lark on JBLM. The area exempted represents approximately 34 percent of the area proposed as critical habitat for Taylor's checkerspot butterfly and 23 percent of the area proposed as critical habitat for the streaked horned lark. For Taylor's checkerspot butterfly, the exemption of military lands from critical habitat resulted in the removal of three critical habitat subunits within Unit 1 and sequential renumbering of the remaining subunits designated in this final rule (see Table 1). Training Area 7 South (TA7S), 91st Division Prairie, and 13th Division Prairie were numbered 1-A, 1-B, and 1-C in the proposed rule, respectively. For the streaked horned lark, the exemption of military lands combined with the exclusion under section 4(b)(2) of the Act for non-Federal airports (see below) resulted in the removal of Unit 1 in its entirety. Subunits in Unit 4 for the streaked horned lark were sequentially renumbered due to the exclusion of non-Federal airports in Oregon (see Table 2 and Exclusions section of this document).

(4) We carefully considered the benefits of inclusion and the benefits of exclusion of specific areas in proposed critical habitat under section 4(b)(2) of the Act, particularly in areas where management plans specific to the Taylor's checkerspot butterfly and streaked horned lark are in place, and where the maintenance and fostering of important conservation partnerships were a consideration. Based on the results of our analysis, we are excluding approximately 2,184 ac (885 ha) from our final critical habitat designation for Taylor's checkerspot butterfly and 4,114 ac (1,664 ha) for the streaked horned lark (see Exclusions, below). For Taylor's checkerspot butterfly, two entire subunits of proposed critical habitat in Oregon were excluded based on the Benton County Prairie Species HCP; these include Fort Hoskins Historic Park (proposed critical habitat subunit number 4-1) and Beazell Memorial Forest (proposed critical habitat subunit number 4-2). The area excluded represents approximately 32 percent of the area proposed as critical habitat for the Taylor's checkerspot butterfly and 32 percent of the area proposed as critical habitat for the streaked horned lark.

Exclusion from critical habitat should not be interpreted as a determination that these areas are unimportant, that they do not provide physical or biological features essential to the conservation of the species (for occupied areas), or are not otherwise essential for conservation (for unoccupied areas); exclusion merely reflects the Secretary's determination that the benefits of excluding those particular areas outweigh the benefits of including them in the designation.

Due to these changes in our final critical habitat designation, we have updated our subunit numbering, descriptions, and critical habitat maps, all of which can be found later in this document. This final designation of critical habitat represents a reduction of 4,934 ac (1,996 ha) from our proposed critical habitat for the Taylor's checkerspot butterfly and 7,530 ac (3,047 ha) for the streaked horned lark, for the reasons detailed above. Additional minor differences between proposed and final critical habitat for both subspecies on the order of roughly 20 ac (8 ha) beyond those detailed above are due to minor boundary adjustments and simple rounding error.

Critical Habitat

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

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

(a) essential to the conservation of the species, and

(b) which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies

ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations direct us to designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species. Furthermore, except in certain circumstances determined by the Secretary, critical habitat is not to include the entire geographical area which can be occupied by the listed species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this listed species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derived the specific physical or biological features essential for the Taylor's checkerspot butterfly and streaked horned lark from studies of each subspecies' habitat, ecology, and life history as described in detail in the Critical Habitat section of the proposed rule to designate critical habitat published in the

Federal Register

on October 11, 2012 (77 FR 61937). Additional information can also be found in the final listing rule for the Taylor's checkerspot butterfly and streaked horned lark, which is published elsewhere in today's

Federal Register

. We have determined that the physical and or biological features described in the proposed rule (October 11, 2012; 77 FR 61937) are essential to the conservation of the Taylor's checkerspot butterfly and streaked horned lark, and have further determined that these features may require special management considerations or protection.

The designation of critical habitat is an authority restricted to the boundaries of the United States; critical habitat cannot be designated in a foreign country (50 CFR 424.12(h)). Both Taylor's checkerspot butterfly and streaked horned lark range into Canada or historically occurred there. In the

final listing rule, published elsewhere in the

Federal Register

today, we discuss the population in Canada for the purpose of evaluating the viability of the species and to inform our determination of those areas within the United States that are essential for the conservation of the subspecies. We do not have the authority to designate critical habitat in Canada.

Taylor's Checkerspot Butterfly

Primary Constituent Elements for the Taylor's Checkerspot Butterfly—

Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of Taylor's checkerspot butterfly in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for the subspecies' life-history processes and are essential to the conservation of the subspecies.

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the subspecies' life-history processes, we determine that the primary constituent elements specific to the Taylor's checkerspot butterfly are:

(i) Patches of early seral, short-statured, perennial bunchgrass plant communities composed of native grass and forb species in a diverse topographic landscape ranging in size from less than 1 ac up to 100 ac (0.4 to 40 ha) with little or no overstory forest vegetation that have areas of bare soil for basking that contain:

(a) In Washington and Oregon, common bunchgrass species found on northwest grasslands include

Festuca roemeri

(Roemer's fescue),

Danthonia californica

(California oat grass),

Koeleria cristata

(prairie Junegrass),

Elymus glaucus

(blue wild rye),

Agrostis scabra

(rough bentgrass), and on cooler, high-elevation sites typical of coastal bluffs and balds,

Festuca rubra

(red fescue).

(b) On moist grasslands found near the coast and in the Willamette Valley, there may be

Bromus sitchensis

(Sitka brome) and

Deschampsia cespitosa

(tufted hairgrass) in the mix of prairie grasses. Less abundant forbs found on the grasslands include, but are not limited to,

Trifolium

spp. (true clovers), narrow-leaved plantain (

Plantago lanceolata

), harsh paintbrush (

Castilleja hispida

), Puget balsamroot (

Balsamorhiza deltoidea

), woolly sunshine (

Eriophyllum lanatum

), nine-leaved desert parsley (

Lomatium triternatum

), fine-leaved desert parsley (

Lomatium utriculatum

), common camas (

Camassia quamash),

showy fleabane (

Erigeron speciosus

), Canada thistle (

Cirsium arvense

), common yarrow (

Achillea millefolium

), prairie lupine (

Lupinus lepidus

), and sickle-keeled lupine (

Lupinus albicaulis

).

(ii) Primary larval host plants (narrow-leaved plantain and harsh paintbrush) and at least one of the secondary annual larval host plants (blue-eyed Mary (

Collinsia parviflora

), sea blush (

Plectritis congesta),

or dwarf owl-clover (

Triphysaria pusilla

) or one of several species of speedwell (marsh speedwell (

Veronica scutella

), American speedwell (

V. beccabunga

var.

americana

), or thymeleaf speedwell (

V. serpyllifolia

).

(iii) Adult nectar sources for feeding that include several species found as part of the native (and one nonnative) species mix on northwest grasslands, including, but not limited to: narrow-leaved plantain; harsh paintbrush; Puget balsam root; woolly sunshine; nine-leaved desert parsley; fine-leaved desert parsley or spring gold; common camas; showy fleabane; Canada thistle; common yarrow; prairie lupine; sickle-keeled lupine, and wild strawberry (

Fragaria virginiana

).

(iv) Aquatic features such as wetlands, springs, seeps, streams, ponds, lakes, and puddles that provide moisture during periods of drought, particularly late in the spring and early summer. These features can be permanent, seasonal, or ephemeral.

With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the subspecies, through the identification of the primary constituent elements essential to support the life-history processes of the subspecies. We are designating critical habitat within the geographical area occupied by the subspecies at the time of listing. In addition, we are designating some specific areas outside the geographical area occupied by the subspecies at the time of listing that were historically occupied, but are presently unoccupied, because we have determined that these areas are essential for the conservation of the subspecies.

Streaked Horned Lark

Primary Constituent Elements for the Streaked Horned Lark—

Under the Act and its implementing regulations, we are required to identify the physical or biological features essential to the conservation of the streaked horned lark in areas occupied at the time of listing, focusing on the features' primary constituent elements. We consider primary constituent elements to be the elements of physical or biological features that provide for the subpecies' life-history processes and are essential to the conservation of the subspecies.

Based on our current knowledge of the physical or biological features and habitat characteristics required to sustain the subspecies' life-history processes, we determine that the primary constituent elements specific to the streaked horned lark are areas having a minimum of 16 percent bare ground that have sparse, low-stature vegetation composed primarily of grasses and forbs less than 13 in (33 cm) in height found in:

(1) Large (300-ac (120-ha)), flat (0-5 percent slope) areas within a landscape context that provides visual access to open areas such as open water or fields, or

(2) Areas smaller than described in (1), but that provide visual access to open areas such as open water or fields.

With this designation of critical habitat, we intend to identify the physical or biological features essential to the conservation of the subspecies, through the identification of the primary constituent elements sufficient to support the life-history processes of the subspecies. All of the units designated as critical habitat are currently occupied by the streaked horned lark and contain the primary constituent elements to support the life-history needs of the subspecies.

Special Management Considerations or Protections—

All areas we are designating as critical habitat will require some level of management to address the current and future threats to the Taylor's checkerspot butterfly and streaked horned lark and to maintain or restore the PCEs. A detailed discussion of activities influencing the Taylor's checkerspot butterfly and streaked horned lark and their habitats can be found in the final listing rule published elsewhere in today's

Federal Register

. Threats to the physical or biological features that are essential to the conservation of these subspecies and that may warrant special management considerations or protection include, but are not limited to: (1) Loss of habitat from conversion to other uses; (2) control of nonnative, invasive species; (3) development; (4) construction and maintenance of roads and utility corridors; and (5) habitat modifications brought on by succession of vegetation from the lack of disturbance, both small and large scale. These threats also have the potential to affect the PCEs if they are conducted within or adjacent to designated units.

Taylor's Checkerspot Butterfly

The physical or biological features essential to the conservation of the Taylor's checkerspot butterfly may require special management considerations or protection to improve the viability and distribution of habitat suitable for the subspecies. These include preventing the establishment of invasive, nonnative and native woody species, and hastening restoration by actively managing sites to establish native plant species and the structure of the plant community that is suitable for the Taylor's checkerspot butterfly. Restoration and maintenance of occupied Taylor's checkerspot butterfly sites will require active management to plan, restore, enhance, and manage habitat using an approach that resets the vegetation composition and structure to an early seral stage. Management actions that produce suitable conditions for Taylor's checkerspot butterflies and reset the ecological clock to early seral conditions favored by the butterfly include prescribed fires, mechanical harvesting of trees, activities such as hand planting or mechanical planting of grasses and forbs, and the judicious use of herbicides for nonnative, invasive species control.

These early-seral conditions favor the production and maintenance of plantain, paintbrush, and other larval host plants in a short-structure vegetation community that allows utilization of the plants by the Taylor's checkerspot butterfly. Areas where the Taylor's checkerspot butterfly occupies a site should have limited soil and vegetation disturbance at times when the larvae are active, which extends from late February when post-diapause larvae are active to late June when pre-diapause larvae are on site. Other activities that could cause trampling or impacts to the larvae and that should be minimized, reduced, or restricted during larval feeding include use of the site by off-road vehicles, military training using vehicles or impacts caused by large infantry (foot soldiers), or activities that transport or spread nonnative plants, and the risk of wildfire or prescribed fire. We reemphasize here the acknowledgement that Taylor's checkerspot butterfly, while most obvious during the flight period and when larvae are active, are year-round residents and may be vulnerable to most types of direct disturbance throughout the year.

Streaked Horned Lark

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

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we use the best scientific and commercial data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species, and begin by assessing the specific geographic areas occupied by the species at the time of listing. If such areas are not sufficient to provide for the conservation of the species, in accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we then consider whether designating additional areas outside the geographic areas occupied at the time of listing may be essential to ensure the conservation of the species. We consider unoccupied areas for critical habitat when a designation limited to the present range of the species may be inadequate to ensure the conservation of the species. In this case, since we are listing simultaneously with the designation of critical habitat, all areas presently occupied by Taylor's checkerspot butterfly or streaked horned lark are presumed to constitute those areas occupied at the time of listing; those areas currently occupied by the subspecies are identified as such in each of the unit or subunit descriptions below. These descriptions similarly identify which of the units or subunits are believed to be unoccupied at the time of listing. Our determination of the areas occupied at the time of listing and our rationale for how we determined specific unoccupied areas to be essential the conservation of the subspecies are provided below.

We plotted the known locations of the Taylor's checkerspot butterfly and streaked horned lark where they occur in Washington and Oregon using 2011 National Agriculture Imagery Program (NAIP) digital imagery in ArcGIS, version 10 (Environmental Systems Research Institute, Inc.), a computer geographic information system program.

To determine if the currently occupied areas contain the primary constituent elements, we assessed the life-history components and the distribution of the subspecies through element occurrence records in State natural heritage databases and natural history information on each of the subspecies as they relate to habitat. We first considered whether the presently occupied areas were sufficient to conserve the subspecies. If not, to determine if any unoccupied sites met the criteria for critical habitat, we then considered: (1) The importance of the site to the overall status of the subspecies to prevent extinction and contribute to future recovery of the subspecies; (2) whether the area presently provides the essential physical or biological features, or could be managed and restored to contain the necessary physical or biological features to support the subspecies; and (3) whether individuals were likely to colonize the site. We also considered the potential for reintroduction of the subspecies, where anticipated to be necessary (for Taylor's checkerspot butterfly only).

As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of these subspecies. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the subspecies. We are designating critical habitat in areas within the geographical area occupied by the subspecies at the time of listing in 2013. For Taylor's checkerspot butterfly only, we also are designating specific areas outside the geographical area occupied by the subspecies at the time of listing that were historically occupied, but may be presently unoccupied, based on the Secretary's determination that these areas are essential for the conservation of the subspecies.

When we are determining which areas should be designated as critical habitat,

our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge. In this case we used existing occurrence data for each subspecies and identified the habitat and ecosystems upon which they depend. These sources of information included, but were not limited to:

(1) Data used to prepare the proposed and final rules to list the subspecies;

(2) Information from biological surveys;

(3) Peer-reviewed articles, various agency reports, and databases;

(4) Information from the U.S. Department of Defense—Joint Base Lewis-McChord (JBLM) and other cooperators;

(5) Information from species experts;

(6) Data and information presented in academic research theses; and

(7) Regional Geographic Information System (GIS) data (such as species occurrence data, land use, topography, aerial imagery, soil data, and land ownership maps) for area calculations and mapping.

The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on

http://www.regulations.gov

at Docket No. FWS-R1-ES-2013-0009, on our Web site at

http://www.fws.gov/wafwo/TCBSHL.html/,

and, by appointment, at the Service's Washington Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

, above).

In all cases, when determining critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement (such as roads), and other structures because such lands lack the essential physical or biological features for the Taylor's checkerspot butterfly and streaked horned lark. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this rule have been excluded by text in the rule and are not designated as critical habitat. Therefore, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

Taylor's Checkerspot Butterfly

Occupied Areas—

For the Taylor's checkerspot butterfly, we are designating critical habitat within the geographical area occupied by the subspecies at the time of listing, as well as in unoccupied areas that we have determined to be essential for the conservation of the subspecies (described below). These presently occupied areas provide the physical or biological features essential to the conservation of the subspecies, which may require special management considerations or protection. We determined occupancy in these areas based on recent survey information. All sites occupied by Taylor's checkerspot butterfly have survey data as recently as 2011, except for the U.S. Forest Service sites on the north Olympic Peninsula where data are as recent as 2010 (Potter 2011; Linders 2011; Ross 2011; Holtrop 2010; Severns and Grossboll 2011). In addition, there have been some recent experimental translocations of Taylor's checkerspot butterflies to sites where it had been extirpated within its historical range. If translocated populations have been documented as successfully reproducing, we considered those sites to be presently occupied by the subspecies. Areas designated as critical habitat for Taylor's checkerspot butterfly are representative of the known historical geographic distribution for the subspecies, outside of Canada.

We are designating three units of critical habitat based on sufficient elements of physical or biological features being present to support life-history processes for the Taylor's checkerspot butterfly. These 3 units are further divided into 11 subunits. Some subunits within the units contain all of the identified elements of physical and biological features and support multiple life-history processes; some subunits contain at least one or more elements of the physical and biological features necessary to support the Taylor's checkerspot butterfly's particular use of that habitat. Because we determined that the areas presently occupied by Taylor's checkerspot butterfly are not sufficient to provide for the conservation of the subspecies, we have additionally identified some subunits that are presently unoccupied, but that the Secretary has determined to be essential to the conservation of the subspecies. Therefore, we are also designating these unoccupied areas as critical habitat for the Taylor's checkerspot butterfly, as explained below.

Unoccupied Areas—

We are designating six subunits as critical habitat for the Taylor's checkerspot butterfly that are not presently occupied by the subspecies, but that the Secretary has determined essential for the conservation of the subspecies. There has been a rapid decline in the spatial distribution of prairies (grassland habitat) throughout the range of the Taylor's checkerspot butterfly; as a result, the present distribution of Taylor's checkerspot butterfly is disjunct and isolated throughout the subspecies' historical range. If the Taylor's checkerspot butterfly is to recover, there must be sufficient suitable habitat available for population expansion and growth that is potentially connected in such a way as to allow for dispersal, and these sites must receive routine and sustained management to maintain the early seral conditions essential to the conservation of the subspecies. We therefore evaluated areas outside the presently occupied patches to identify unoccupied habitat areas essential for the conservation of the subspecies. We are designating as critical habitat some areas adjacent to known occurrences of the Taylor's checkerspot butterfly but that may currently be unoccupied to provide for population expansion and growth, which is essential for the conservation of the subspecies.

We have identified these unoccupied areas as essential for the conservation of the Taylor's checkerspot butterfly because they are located strategically between, and in some cases, adjacent to, occupied areas from which the butterfly may disperse; these areas contain one or more of the PCEs for the Taylor's checkerspot butterfly (although the presence of one or more PCEs is not a statutory requirement for unoccupied critical habitat), and are all receiving or are slated to receive restoration treatments that will increase the amount of suitable habitat available.

Streaked Horned Lark

Occupied Areas—

We are designating two units of critical habitat for the streaked horned lark based on sufficient elements of physical or biological features being present to support life-history processes during the breeding or

winter seasons. These 2 units are further divided into 16 subunits. All of the units designated as critical habitat are presently occupied by the streaked horned lark. Some subunits within the units contain all of the identified elements of physical or biological features and support multiple life-history processes; some subunits contain at least one or more elements of the physical or biological features necessary to support the streaked horned lark's particular use of that habitat.

Unoccupied Areas—

There are no unoccupied subunits designated as critical habitat for the streaked horned lark.

Final Critical Habitat Designation

We are designating four units total as critical habitat for the Taylor's checkerspot butterfly and streaked horned lark. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat for these subspecies. Those four units are:

(1) The South Sound Unit (Unit 1), which has critical habitat subunits for only the Taylor's checkerspot butterfly.

(2) The Strait of Juan de Fuca Unit (Unit 2), which has critical habitat subunits for only the Taylor's checkerspot butterfly.

(3) The Washington Coast and Columbia River Unit (Unit 3), which has critical habitat subunits for only the streaked horned lark.

(4) The Willamette Valley Unit (Unit 4), which has critical habitat subunits for both the Taylor's checkerspot butterfly and streaked horned lark.

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

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

Table 1—Critical Habitat Units Designated for Taylor's Checkerspot Butterfly. Note: Area Sizes May Not Sum Due to Rounding. Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries

Unit 1: South Sound

Subunit Name

Federal

Ac(Ha)

State

Ac-(Ha)

County

Ac(Ha)

Private

Ac(Ha)

Other *

Ac(Ha)

Currently

occupied

Y/N

1-A

Rocky Prairie

0

0

0

0

43 (17)

N

1-B

Tenalquot Prairie

0

0

0

0

135 (55)

N

1-C

Glacial Heritage

0

0

545 (220)

0

0

Y

1-D

Rock Prairie

0

0

0

244 (99)

0

N

1-E

Bald Hill

0

0

0

176 (71)

0

N

Unit 1 Totals

0 (0)

0 (0)

545 (220)

420 (170)

178 (72)

Unit 2: Strait of Juan De Fuca:

2-A

Deception Pass State Park

0

149 (60)

0

0

0

N

2-B

Central Whidbey

0

39 (16)

0

0

190 (77)

N

2-C

Elwha

0

0

0

51 (20)

39 (16)

Y

2-D

Sequim

0

0

0

151 (61)

0

Y

2-E

Dungeness

160 (65)

0

0

0

0

Y

Unit 2 Totals

160 (65)

188 (76)

0

201 (81)

229 (93)

Unit 4: Willamette Valley:

4-D

Fitton Green-Cardwell Hill

0

0

0

20 (8)

0 (0)

Y

Unit 4 Totals

0

0

0

20 (8)

0 (0)

Grand Total—all Units

160 (65)

188 (76)

545 (220)

642 (259)

407 (166)

GRAND TOTAL ALL UNITS, ALL OWNERSHIP

1,941 (786)

* Other = Ports, local municipalities, and nonprofit conservation organizations.

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

Unit 1: South Sound—Taylor's Checkerspot Butterfly

The South Sound Unit consists of 1,143 acres (462 ha) of land designated for the Taylor's checkerspot butterflies in five subunits. This unit is found entirely in Thurston County, Washington.

Subunit Descriptions

1-A Rocky Prairie—

(Thurston County, Washington). The Rocky Prairie critical habitat subunit is composed of two disjunct habitat patches comprising a total of 43 ac (17 ha). The first patch is a linear strip of prairie under private ownership. It is approximately 15 ac (6 ha) in size and bounded on the north by residential homes, on the east by the Burlington Northern railroad line, the south by forest (approximately 443 ft (135 m) north of where the Burlington Northern rail line intersects Old Hwy 99), and on the west by the Washington Department of Natural Resources Rocky Prairie Natural Area Preserve (NAP). The second prairie patch of this subunit is 29 ac (12 ha) of property owned by a conservation organization known as

Wolf Haven International. It is located southeast of the Burlington Northern habitat patch. Wolf Haven is bounded on the north by Offut Lake Road, and bounded by a service road in all but the extreme northeastern corner of the property. The landscape on the east, west, and south boundaries of the prairie at Wolf Haven is delineated by mixed Garry oak and conifer forest (east), or conifer forest (west and south). Both habitat patches within this subunit are unoccupied at the time of listing.

This subunit is within a matrix of historically occupied patches from which Taylor's checkerspot butterfly has been completely extirpated. We have determined this subunit is essential for the conservation of the Taylor's checkerspot butterfly because it has the potential for restoration of the physical or biological features sufficient to enable the reintroduction of Taylor's checkerspot butterfly. In addition, although currently unoccupied, this area presently provides many of the essential features to support long-term conservation and recovery of the Taylor's checkerspot butterfly. The subunit is composed of grasslands and includes oak woodland margins, and some transitional, colonization (first growth) Douglas-fir forest within the greater prairie landscape. Several PCEs, including landscape heterogeneity and diverse and abundant larval and adult plants resources, are present.

1-B Tenalquot Prairie

—(Thurston County, Washington). The Tenalquot Prairie subunit is a privately owned conservation area of approximately 135 ac (55 ha) in size and part of the larger, historically contiguous Tenalquot Prairie, the majority of which occurs on JBLM. The northern boundary of this subunit is a fenceline boundary, which separates South Weir prairie on JBLM from the adjacent private land. The western boundary of this subunit is a large pasture clearly delineated by a fence line, and it is bordered on the southeast by Military Road. This subunit is unoccupied at the time of listing.

We have determined this subunit is essential for the conservation of the Taylor's checkerspot butterfly because it would provide for the reintroduction and reestablishment of Taylor's checkerspot butterfly. Although currently unoccupied, this area presently provides many of the physical or biological features necessary to support the long-term conservation and recovery of Taylor's checkerspot butterfly and has the potential to serve as metapopulation center within a larger prairie landscape context (~2,000 ac (810 ha) in the south region of Thurston County. The physical or biological features present at this site include landscape heterogeneity, bare ground for basking, and diverse and abundant larval and adult plant resources. This subunit is periodically managed using prescribed burning as well as with mechanical methods to remove Scot's broom (

Cytisus scoparius

) and to sustain early seral conditions.

1-C Glacial Heritage—

(Thurston County, Washington). Glacial Heritage is a large, County-owned property managed with conservation, research, and education as its primary objectives. The property consists of more than 1,200 acres, with approximately 545 ac (220 ha) designated as critical habitat. The northwestern boundary is an abandoned railroad line, and to the direct north are rural residential properties; the eastern boundary of the preserve is the Black River, and the southern boundary is owned by two private landowners: one is a large industrial tree farm where conifer seedlings are grown, and the other is dominated by pasture grown for haying. The southern border is clearly defined by the land use change along the fenceline. This subunit is occupied at the time of listing, and provides the essential physical or biological features for the Taylor's checkerspot butterfly, including diverse topography, abundant and diverse larval and adult nectar plant resources, a water course, and areas of bare ground for basking due to ongoing, active management.

Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, the inadvertent short-term negative impacts of restoration activities, such as burning, mowing, and the use of herbicides; control of native and nonnative invasive woody species such as Scot's broom and Douglas fir (

Pseudotsuga menziesii

), as well as control of invasive Mediterranean grasses; habitat modifications brought on by succession of vegetation from the lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.

1-D Rock Prairie—

(Thurston County, Washington). We are designating approximately 244 ac (99 ha) of critical habitat on the northern portion of Rock Prairie, a large, privately owned property in south Thurston County. The subunit has diverse landscape features with mounded prairie, old field pasture, oak woodland, and conifer forest. The northern boundary is delineated by dense conifer forests, the southern border is State Highway 99 (referred to as old 99), the western boundary is clearly delineated by rural residential lots, and the eastern border is the urban growth boundary for the town of Tenino, Washington. This subunit is unoccupied at the time of listing.

This historically occupied subunit is essential for the conservation of the Taylor's checkerspot butterfly as it presently provides many of the features necessary to support long-term conservation and recovery of the Taylor's checkerspot butterfly. These include diverse topography with swales and terraces, abundant and diverse larval and adult food resources, and a location close to a water course formed by Scatter Creek.

1-E Bald Hill—

(Thurston County, Washington). The Bald Hill subunit is a collection of balds (shallow-soil areas without typical conifer vegetation) and former clearcut areas that have not regenerated and now maintain features of open habitat that produce larval and adult food resources that can be utilized by the Taylor's checkerspot butterfly. All independent, isolated habitat patches are surrounded by conifer forests on all sides. Some patches are bordered by WDNR roads, and others are bordered by private roads used for fire control and to access the forested property. The Bald Hill subunit comprises a total of 176 ac (71 ha) (rounded up). The western habitat patch of this subunit is approximately 110 ac (45 ha), and the eastern patch is approximately 65 ac (26 ha); both are unoccupied at the time of listing.

The Taylor's checkerspot butterfly was recently extirpated from this historically occupied subunit. We have determined it is essential for the conservation of the Taylor's checkerspot butterfly because it has the potential to provide for the reintroduction and reestablishment of Taylor's checkerspot butterfly and to support recovery of the subspecies. This area presently contains many of the features to support long-term conservation and recovery of the Taylor's checkerspot butterfly, including a diverse topography of balds, steep slopes, canyons, oak glades, a rich diversity of larval and adult food resources, and patches of bare soil for basking and resting. This particular critical habitat subunit is unique in that it provides the only bald habitat for Taylor's checkerspot butterfly at low elevation within Thurston County.

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

The Strait of Juan de Fuca Unit is composed of 779 acres (315 ha) made up of balds, former clearcuts, coastal bluffs, coastal back dunes, and prairie in five subunits located in Clallam County and Island County, Washington.

Subunit descriptions

2-A Deception Pass State Park—

(Island County, Washington). Deception Pass State Park is owned and managed by Washington State Parks. The subunit contains approximately 149 ac (60 ha) of designated critical habitat found along low-lying beaches (coastal dunes) and on balds along high, south-facing slopes within the park. These areas include the shoreline along Bowman Bay, Bowman Hill and Beach, Reservation Head, Pass Island, Goose Rock, and West Beach, all within the park. Deception Pass State Park is divided by Highway State 20, and bordered by the portion of Puget Sound that forms Deception Pass to the north, and to the south by private rural residential properties. This park was historically occupied by Taylor's checkerspot butterfly, but at this time the subunit is unoccupied.

We have determined this subunit is essential for the conservation of the subspecies because it has the potential for reintroduction and reestablishment of the Taylor's checkerspot butterfly to support recovery. In addition, although currently unoccupied, this area presently provides many of the features to support a reintroduced population of Taylor's checkerspot butterfly, including diverse topography with balds and beaches, abundant larval and adult food resources, areas of bare soil for basking of larvae and adults, and water sources made up of saltwater along the western shoreline and a freshwater wetland.

2-B Central Whidbey—

(Island County, Washington). This subunit is located on Whidbey Island in Washington, and comprises a total of 229 ac (92 ha), and includes Ebey's Landing (~87 ac (35 ha)), the Naas-Admiralty Inlet Conservation Area (~8 ac (3 ha)), and the former Smith Prairie (~134 ac (54 ha)). The Central Whidbey subunit is made up of two distinct patches: one is located along the central-west coast on coastal bluffs of the island (Ebey), and the second (Smith Prairie) is located on relatively flat prairie located centrally-north on the island. The coastal area is bordered by Puget Sound to the west, and rural residential property and farmland to the east. The Smith Prairie is surrounded by rural residential properties on all sides; Parker Road runs along the western border of the property, and Morse Road is found along the south boundary. This subunit was historically occupied but is currently unoccupied.

We have determined this subunit is essential for the conservation of the subspecies because it has the potential for reintroduction and reestablishment of Taylor's checkerspot butterfly to support recovery. In addition, although currently unoccupied, this area presently provides many of the features to support a reintroduced population of Taylor's checkerspot butterfly, including diverse topography with coastal bluffs and beaches, abundant larval and adult food resources, areas of bare soil, and water sources made up of a freshwater wetland, and saltwater along the western shoreline.

2-C Elwha—

(Clallam County, Washington). The Elwha critical habitat subunit is composed of private lands in Clallam County made up of balds, and former clear cut areas within a landscape of conifer forests. The subunit polygons adjoin occupied patches owned and managed by the WDNR, one is owned and managed by a nongovernmental conservation organization, the Center for Natural Lands Management, and the other small parcel is owned by a private timber company. These two patches are found primarily on the south slope of Dan Kelly Ridge, and they are separated by essential habitat owned by WDNR that has been excluded due to an HCP providing for species-specific habitat management.

The habitat patches at both locations are bounded by conifer forests. The balds at each of these locations are presently occupied by the Taylor's checkerspot butterfly, which has been observed flying up and down the steep slopes and onto private lands. Both of these locations contain essential physical or biological features, including topographic heterogeneity, abundant and diverse larval and adult food resources, and bare soil for basking and resting. Puddles on the road provide a water source during the adult flight season.

Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, development; the inadvertent short-term negative impacts of restoration activities, such as control of native and nonnative, invasive, woody species such as Scot's broom, snowberry (

Symphoricarpos albus

), and Douglas fir; the use of herbicides; habitat modifications brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.

2-D Sequim—

(Clallam County, Washington). Sequim is a private property estate and farm of low-lying stabilized dune habitat of approximately 151 ac (61 ha). The subunit includes stabilized dunes and beach habitat adjacent to the Strait of Juan de Fuca; it is approximately 20 ft (6 m) above sea level. The landowner has been working cooperatively with the WDFW to manage their property for multiple uses, including the conservation of Taylor's checkerspot butterfly. The subunit is occupied at the time of listing.

The Sequim subunit contains several essential physical or biological features, including landscape heterogeneity with fore and back dune areas and terraces; rich and abundant larval and adult food resources; a marsh; and bare soil for basking and resting.

Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, development; the inadvertent short-term negative impacts of restoration activities; habitat modifications brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.

2-E Dungeness—

(Clallam County, Washington). The Dungeness subunit is found entirely on U.S. Forest Service (USFS) land on the northeast Olympic Peninsula. This subunit comprises a

total of 160 ac (65 ha) and is composed of bald habitat, and former clearcuts that function similarly to balds. The three occupied areas within this subunit and are known as Bear Mountain (low elevation), 3 O'Clock Ridge (middle elevation) (which is composed of two habitat patches), and the upper Dungeness (highest elevation). These locations on USFS lands are the highest elevations known to be occupied by Taylor's checkerspot butterflies. The Bear Mountain location is entirely surrounded by conifer forests and originated as a small harvest unit that functions similar to a bald. 3 O'Clock ridge is bounded by the upper Dungeness Road on the northwest boundary, Cougar Creek to the northeast, Bungalow creek to the southwest, and conifer forests to the southeast of the occupied unit. Upper Dungeness is bounded by an unnamed creek to the northeast and Mueller Creek to the southwest, and by conifer forests to the southeast of the occupied unit. All habitat patches within this subunit are presently occupied by the Taylor's checkerspot butterfly.

The subunit contains several essential physical or biological features, including landscape heterogeneity, abundant larval and adult food resources, nearby streams, and plentiful areas of bare ground for basking and resting. Early restoration work conducted by USFS has included tree harvesting and removal, which has resulted in the expansion of larval and adult food resources in this habitat.

Threats to the physical or biological features that are essential to the conservation of this species and may warrant special management considerations or protections include, but are not limited to, the inadvertent short-term negative impacts of restoration activities and control of native and nonnative, woody species; the use of herbicides that my impact larval and adult nectar resources; habitat modification brought on by succession of vegetation from lack of disturbance, at a small and large scale; disease affecting larval host plants; and the effects of climate change. The physical or biological features essential to the conservation of the species may require special management considerations or protection to sustain the open conditions that are needed to manage for and sustain the larval and adult food resources. Special management considerations may be required to provide protection to larval and adult food resources by reducing human disturbance during the flight season, and when eggs and early instar larvae are present.

Unit 4: Willamette Valley—Taylor's Checkerspot Butterfly

Unit 4, located in the Willamette Valley, is the only critical habitat unit that includes critical habitat for both the streaked horned lark and Taylor's checkerspot butterfly. Unit 4 includes four subunits in the State of Oregon; three for the streaked horned lark (4-A, 4-B, and 4-C; described below), and a single subunit (4-D) for the Taylor's checkerspot butterfly in Benton County.

Unit 4-D Fitton Green-Cardwell Hill

—(Benton County, Oregon). Fitton Green-Cardwell Hill is located in the eastern foothills of the Coastal Range on the western edge of the Willamette Valley. The habitat is composed of multiple small natural openings of approximately 3 ac (1 ha) in size within a conifer-oak forest landscape. These habitat patches collectively comprise the 20 ac (8 ha) that constitute Subunit 4-D. The northern patch of this subunit is a BPA right-of-way that passes through a large occupied patch of county-owned habitat that provides conservation benefit to the Taylor's checkerspot butterfly through the Benton County Prairie Species HCP. This subunit is currently occupied by the Taylor's checkerspot butterfly.

This subunit contains several of the essential physical or biological features for the Taylor's checkerspot butterfly, including native perennial bunchgrass plant communities with abundant larval and adult food resources, lands

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