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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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

RIN 1018-AZ77

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, are finalizing two actions with this rule: We are designating revised critical habitat for the contiguous United States distinct population segment of the Canada lynx (

Lynx canadensis

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

DATES:

This rule becomes effective on October 14, 2014.

ADDRESSES:

This final rule is available on the internet at

http://www.regulations.gov

and

http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm.

Comments and materials we received, as well as some supporting documentation we used in preparing this final rule, are available for public inspection at

http://www.regulations.gov.

All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Montana Ecological Services Field Office, 585 Shepard Way, Suite 1, Helena, MT 59601; telephone 406-449-5225.

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

http://www.regulations.gov

at Docket No. FWS-R6-ES-2013-0101, and at the Montana Ecological Services Field Office (

http://www.fws.gov/montanafieldoffice/

(see

FOR FURTHER INFORMATION CONTACT

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

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

This is a final rule to revise the designation of critical habitat for the contiguous United States distinct population segment (DPS) of the Canada lynx (

Lynx canadensis

). Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531

et seq.

) (ESA or Act), any species that is determined to be an endangered or threatened species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule. This rule also rescinds the existing State-boundary-based definition of the lynx DPS and replaces it with a definition that extends the Act's protections to lynx “where found” in the contiguous United States. This change ensures that lynx, which are known for their long-distance dispersal capability and tendency to occur in places well outside of typical habitats, receive the Act's protections wherever they occur in the contiguous United States, including (but not limited to) New Mexico.

On March 24, 2000, we, the U.S. Fish and Wildlife Service (Service), listed the contiguous United States DPS of the Canada lynx as threatened in 14 States (65 FR 16052). On September 26, 2013, we published in the

Federal Register

a proposed rule to rescind the State-boundary-based definition of the lynx DPS and to revise the critical habitat designation for the lynx DPS (78 FR 59430). Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat.

The critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for lynx in the contiguous United States. Here we are designating approximately 38,954 square miles (mi

2

) (100,891 square kilometers (km

2

)) of critical habitat in five units in the States of Idaho, Maine, Minnesota, Montana, Washington, and Wyoming.

This rule consists of:

(1) Replacement of the existing State-boundary-based definition of the range of the lynx DPS with a definition that extends the Act's protections to lynx “where found” in the contiguous United States, and (2) a final designation of revised critical habitat for the contiguous United States DPS of the Canada lynx.

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

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

Federal Register

on June 20, 2014 (79 FR 35303), allowing the public to provide comments on our analysis. In this rule, we have responded to comments we received on the economic analysis (see Summary of Comments and Recommendations section, below).

We have prepared a National Environmental Policy Act analysis.

Because this rule designates critical habitat in States within the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we prepared an analysis in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321

et seq.

). We announced the availability of the draft environmental assessment in the

Federal Register

on June 20, 2014 (79 FR 35303), allowing the public to provide comments on our assessment. We have incorporated the comments and have completed the final environmental assessment and finding of no significant impact (FONSI) concurrently with this final determination.

Peer review and public comment.

We sought comments from appropriate and independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from four knowledgeable individuals with scientific expertise to review our technical assumptions, analysis, and

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

Previous Federal Actions

For more information on previous Federal actions concerning the lynx DPS, refer to the final listing rule published in the

Federal Register

on March 24, 2000 (65 FR 16052), the clarification of findings published in the

Federal Register

on July 3, 2003 (68 FR 40076), the

Recovery Outline for the Contiguous United States DPS of Canada Lynx

(recovery outline; U.S. Fish and Wildlife Service 2005, entire), the final rule designating critical habitat for lynx published in the

Federal Register

on November 9, 2006 (71 FR 66008), the final rule designating revised critical habitat published in the

Federal Register

on February 25, 2009 (74 FR 8616), the 12-month finding on a petition to change the final listing of the DPS of the Canada lynx to include New Mexico published in the

Federal Register

on December 17, 2009 (74 FR 66937), and the proposed rule to revise the designation of critical habitat and the boundary for the lynx DPS published in the

Federal Register

on September 26, 2013 (78 FR 59430). These documents and others addressing the status and conservation of lynx in the contiguous United States may be viewed and downloaded from the Service's Web site:

http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A073.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the lynx DPS during two comment periods. The first (90-day) comment period associated with the publication of the proposed rule (78 FR 59430) opened on September 26, 2013, and closed on December 26, 2013. We also requested comments on the proposed critical habitat designation and associated draft economic analysis and draft environmental assessment during a 30-day comment period that opened June 20, 2014, and closed on July 21, 2014 (79 FR 35303). We held a public hearing in Helena, Montana, on November 25, 2013. We also contacted appropriate Federal, State, Tribal, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule, the economic analysis, and the draft environmental assessment during these comment periods.

During the first comment period, we received 169 comment letters directly addressing the proposed critical habitat designation (one of which also included approximately 600 identical or nearly identical one-page form letters). During the second comment period, we received 15 comment letters (one of which transmitted 1,999 identical or nearly-identical one-page form letters) addressing the proposed critical habitat designation, the draft economic analysis, and/or the draft environmental assessment. During the November 25, 2013, public hearing, two individuals or organizations made comments on the proposed designation of critical habitat for the lynx DPS. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped into 49 general issues specifically relating to the proposed critical habitat designation for the lynx DPS, and are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five appropriate and independent specialists with scientific expertise that included familiarity with the species, the geographic regions in which the species occurs, and conservation biology principles. We received responses from four peer reviewers.

We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the lynx DPS. The peer reviewers generally concurred with our methods, use of available scientific information, application of biological and ecological principles, and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Several peer reviewers noted the challenges, given information gaps and the natural vagaries of lynx and snowshoe hare (

Lepus americanus

) population dynamics and habitats, in developing criteria to delineate critical habitat. Several also suggested that other areas should be considered or included in the designation. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

(1)

Comment:

One peer reviewer suggested that the Primary Constituent Element (PCE) for lynx critical habitat should include a landscape- or home range-scale snowshoe hare density threshold rather than the “presence of snowshoe hares and their preferred habitat conditions” as defined in the proposed rule. The reviewer felt that the proposed rule lacked clarity regarding what constitutes “low” (or “high”) hare densities and suggested that the Service develop working definitions of those terms to be applied at the scale of the landscape or home range.

Our Response:

We appreciate the potential advantages of using landscape-scale hare density as a component of the PCE. However, the available literature does not allow us to determine minimum snowshoe hare densities necessary to maintain lynx populations across the range of the DPS. Additionally, thresholds of hare density needed to support lynx populations likely differ between the western, Great Lakes, and northeastern parts of the DPS range, and the core range of Canada and Alaska, because of significant differences in habitat quality, quantity, and spatial arrangement; climate; magnitude and periodicity of hare cycles; presence, diversity, and density of competing hare predators; and relative connectivity of DPS populations with the core population in Canada. In the proposed rule (78 FR 59440) and in this final rule (Critical Habitat section, below), we present information, where available (Maine and Minnesota), regarding the differences in hare densities between areas that support lynx populations and areas that do not. However, we do not believe it would be appropriate to apply these densities as thresholds elsewhere within the range of the DPS, especially because it appears that lynx populations in some areas (e.g., the Greater Yellowstone Area and the Northern Cascades) persist despite relatively lower hare densities while other areas with higher densities of hares, at least in some places in some years, do not support lynx populations (e.g., the Kettle/Wedge area of northeastern Washington). Therefore, at this time, we do not believe that a scientifically defensible definition of a minimum hare density exists at any scale or that one should be applied as a component of the PCE for lynx critical habitat across the range of the DPS.

(2)

Comment:

Two peer reviewers felt that our analysis of the potential effects of climate change on lynx emphasized

reductions in snowfall but said little about other potential effects. One reviewer suggested that we include more discussion of the potential effects of climate change on spruce-fir forest distribution and provided citations that suggest these forests, particularly in the Northeast, may be susceptible to climate change, and that spruce-fir forests could disappear from New England and much of the upper Great Lakes region due to drought, thermal stress, increased competition from other tree species, decreased regeneration success, and increased susceptibility to pathogens and other forest insects. Given the importance of regenerating spruce-fir forests to snowshoe hares and lynx, this reviewer believed that the climate-induced northward contraction of the range of spruce-fir forests is a threat to the conservation of the lynx DPS. The other peer reviewer felt the climate effects section was too narrow in scope because it did not address the effects of climate change on alternate prey and the behavioral flexibility of lynx to use alternate prey as climate change progresses.

Our Response:

We agree that climate change is projected to cause a northward contraction of spruce-fir forests within the range of the DPS with potential negative consequences for both lynx and snowshoe hares. We have evaluated the sources provided by the reviewer and added a discussion of potential impacts of climate change on spruce-fir forests to our

Climate Change

section, below (also see our response to comment (18), below). We also agree that climate change could exert pressure on lynx to rely to a greater extent on alternate prey if it reduces future landscape-scale snowshoe hare densities. However, although alternate prey may be relatively more or less important to lynx seasonally and geographically (Aubry

et al.

2000, p. 373), we are aware of no lynx populations that persist in areas where prey other than snowshoe hares contribute a majority of the biomass of the lynx diet. If climate change results in landscape-scale reductions in hare densities, some areas that currently support lynx populations may become less capable of doing so, and lynx could decline or disappear from these areas regardless of the diversity or abundance of alternate prey species. Such climate-induced impacts to hare habitats and populations could be accompanied by projected reductions in snow quantity, quality, and duration, thereby reducing the competitive advantage lynx have over other hare predators in the areas that currently support lynx populations. This would further diminish the likelihood that lynx could persist in areas of reduced hare density by switching to alternate prey, and lynx populations are unlikely to persist in areas where such a switch would be necessary over the long term.

(3)

Comment:

One peer reviewer supported our proposed additions of the Van Buren and Herseytown-Staceyville areas to lynx critical habitat in Maine but disagreed with our determination that western Maine (south of the area designated in this final rule) does not contain the physical and biological features necessary to sustain lynx over time and is, therefore, not essential to lynx conservation. This reviewer (a) questioned our general characterization that spruce-fir forest is a lower percentage of the landscape in western than in northern Maine and noted that balsam fir (

Abies balsamea

) volumes are estimated to be higher in some parts of western Maine than in northern Maine areas designated as critical habitat; (b) contends that, although there currently is less high-quality hare habitat in western than in northern Maine, such habitats (and, therefore, hare densities) are expected to increase in western Maine over the next 25 years while concurrently decreasing in northern Maine; (c) believes that western Maine meets many if not all of the same criteria we used in determining that the Van Buren and Herseytown-Staceyville areas warrant designation as critical habitat; and (d) hypothesizes that western Maine may increase in importance to lynx conservation given the potential for higher elevations to moderate climate change effects on snow accumulation in the Northeast.

Our Response:

The latest modeling from University of Maine School of Forestry Resources indicates that the composition of Maine's northern forest will be influenced by complicated interactions between spruce budworm outbreaks and their severity, salvage forestry related to budworm outbreaks, other trends in forest management and land ownership, and climate change (Legaard

et al.

2013

Unpublished Report,

entire). Some projections predict a transition to a forest of more mixed composition, and especially the expansion of balsam fir (a significant component of hare/lynx habitat) on about 18 percent of the northern Maine forest (Simons-Legaard

et al.

2013a, p. 12). This prediction is in contrast to broad predictions that spruce and fir will decline because of climate change (Iverson

et al.

2008, pp. 400, 404). Although a trend toward expanding balsam fir (in area and timber volume) is evident in northern Maine, the modeling in the papers cited by the peer reviewer does not include western Maine. The same trends may occur there; however, this cannot be inferred from the cited studies.

Although spruce and balsam fir occur in western Maine, the quality of habitat they provide for hare and lynx depends on the size and distribution of the patches and the age of the stands. The information the reviewer cites from McCaskill

et al.

(2011, p. 25) indicates that the average balsam fir volume/acre is greatest in Franklin County (a western Maine county), but much lower in Oxford County next to New Hampshire. However, McCaskill

et al.

(2011) provide information on only the volume/acre and not the age, patchiness, and aerial extent of spruce-fir-dominated stands. An alternative explanation for high fir volume in Franklin County is that forests are more mature in western Maine where forest management may be less intense than in northern Maine and a higher proportion of the land is in small woodlot ownership.

Maps of the balsam fir volume in McCaskill

et al.

(2011, p. 25) show a particularly high volume in the Rangeley and Flagstaff Lakes region, where stands may be more mature because land parcels in these areas are typically small and privately owned, or because large areas are in State conservation ownership. Further north, especially along the Maine-Quebec border, stands may be more mature and have higher volume because of forest management practices of Maine Tribes. Balsam fir volume/acre for Somerset and Piscataquis Counties (about 40 percent of the area designated as critical habitat) are third and fourth highest in the State, respectively. However, the only area of high balsam fir volume on the map for the core lynx critical habitat area is in Baxter State Park, where stands are mature due to protection.

Balsam fir volume/acre for Aroostook County (about 50 percent of the area designated as critical habitat) is the second highest in the State, yet no single area stands out on the map as having a particularly high volume, except a thin strip along the Route 11 corridor north of Ashland, where stands may be more mature because land parcels are small and privately owned. Thus, absent the context of areal extent, spatial arrangement, and stand age, and how they relate to hare and lynx habitat quality, we conclude balsam fir volume/acre alone may not be a good surrogate for lynx habitat and does not justify the inclusion of western Maine within this final critical habitat designation.

In the proposed rule and this final rule, we acknowledge the expected decline in hare habitat in northern Maine resulting from the shift in timber harvest practices from clearcutting to partial harvesting and the seral succession of regenerating clearcuts, which currently produce high hare densities, to more mature stands that will support fewer hares. We agree that hare densities may increase in parts of western Maine over the next several decades while they are likely to decrease in parts of northern Maine. However, we are not convinced this change will result in increases in landscape-scale hare densities in western Maine or that western Maine will become essential to the persistence and conservation of lynx populations in Maine. First, if rates of harvest were the same in western as they were in northern Maine in the 1990s and 2000s, the amount of young forest created would be expected to be similar. Second, no information is provided on the extent, size, and type of cuts in western Maine, which are important factors for predicting the quality of future habitat. Third, because partial harvesting was the predominant form of forestry in the 1990s and 2000s, the regenerating young forest would be expected to support lower landscape-scale hare densities in both regions relative to the high hare densities that resulted from the extensive clearcutting of the 1970s and 1980s. And fourth, because the conifer-dominated habitats in western Maine are believed to be patchier and less contiguous than in northern Maine, landscape-scale hare densities in western Maine would be expected to be lower and less able to support lynx populations over time.

Additionally, a study suggesting a possible southwesterly shift in lynx habitat (Simons 2009, pp. 153-163) was conducted in a 2,500-mi

2

(6,475-km

2

) area that is in the southwest corner of the designated critical habitat and that extends only as far south as Moosehead Lake. The study did not include western Maine, and the analysis has not been extended to western Maine or to more northern portions of the critical habitat area. Consequently, the study does not address whether the habitat is more fragmented and patchy in western Maine. Simons (2009, pp. 162-163) acknowledges that, although snowshoe hare habitat may shift southward, the potential for lynx densities to increase in western Maine may be constrained by extrinsic factors including higher populations of bobcat (

Lynx rufus;

a competitor) and fisher (

Martes pennanti;

a competitor and predator), and less suitable snow conditions.

We agree that, as with western Maine, survey information is inadequate to confirm lynx reproduction in the Van Buren and Herseytown-Staceyville areas where we have designated critical habitat. Although we are not using reproduction as a proxy for presence of the PCE, we believe that our analysis in the proposed rule supporting lynx occurrence in the Van Buren and Herseytown-Staceyville areas (78 FR 59456) also supports the likelihood of lynx reproduction in these areas, which is indicative of the value of the area to the conservation of the species. We also acknowledge the low probabilities of lynx occurrence predicted for both the Van Buren unit (which we have designated) and western Maine (which we have not) by the Hoving

et al.

(2004) model, and the higher probabilities predicted for both areas by the Hoving

et al.

(2005) model. However, we do not find either of these models to be definitive in predicting lynx occurrence because they are derived from lynx survey and forest conditions from 1994-1999, and habitat conditions are constantly changing. Even the more sensitive model (Hoving

et al.

2005) does not predict lynx occurrence in several areas currently known to support lynx. We also note that the Hoving

et al.

(2005) model predicts small, isolated pockets of fragmented, lower quality habitat in western Maine, unlike the more contiguous habitat in northwestern Maine, the Gaspe region of Quebec, and northern New Brunswick.

We agree with the reviewer that lynx occurred in western Maine historically and that lynx have found their way to areas of suitable landscape-scale hare density in western Maine (as well as New Hampshire and Vermont). However, while we recognize that lynx currently occur in western Maine, we believe this area supports lynx only in low numbers because of the patchy distribution of suitable habitat. Lynx occupancy there appears to be in small, isolated pockets of habitat, and lynx do not seem to be occupying the high-elevation spruce-fir stands in western Maine, (although these areas have been poorly surveyed). We question whether the “habitat islands” of conifer habitat at high elevations that may remain in the future will be large enough and close enough to each other to maintain lynx home ranges. Additionally, as snow quantity, quality, and duration will likely decrease due to climate change, bobcats will occur at lower elevations and could shift their home ranges to higher elevations in summer, further reducing the probability that a lynx population could persist in western Maine.

For the reasons above, we do not agree that western Maine has the physical and biological features essential to lynx in adequate quantity or spatial arrangement to support a lynx population over time or that western Maine is essential to the conservation of the DPS. Therefore, we have not designated critical habitat for lynx in western Maine.

(4)

Comment:

One peer reviewer felt the Service used reasonable methods in developing the proposed critical habitat designation and that our approach was consistent with conservation biology theory addressing the dynamics of small populations supported by patchy and temporal habitats. The reviewer felt that all the information necessary to understand how we used the available data to inform our designation were contained in the proposed rule, but that it remained difficult to understand how all the information fit together in a larger way to define the distribution of the PCE and derive the proposal for critical habitat. The reviewer suggested that a challenge remains to explain the process more clearly to the public.

Our Response:

We agree that it is a challenge to clearly explain the unique and complex relationships between habitat characteristics and lynx and how they influence our efforts to designate critical habitat. Our goal is to distinguish between areas that contain the physical and biological features (PBFs) essential to the conservation of the DPS in adequate quantity and spatial arrangement from other areas that may appear to contain some or all of the PBFs and in which lynx may occur occasionally but which are incapable of supporting lynx populations over time. In this rule, we explain why evidence of a landscape's ability to provide for the conservation of lynx over time is a valid and necessary biological consideration (though not the only criterion we evaluate) and why we believe it is absolutely imperative to rely on verified data and not anecdotal information when assessing the historic record of lynx occurrence and distribution (also see our response to comment (23), below). We also try to explain the limitations in our ability to accurately map lynx and hare habitats across the range of the DPS and to establish range-wide criteria for minimum hare densities; snow depth, quality, and duration; and other habitat variables, and how these limitations prevent a reasonable and accurate range-wide mapping of the individual PBFs essential to conservation of the DPS. Finally, we try to better explain how

designating areas that appear to have some or all of the PBFs in some measure would likely result in the designation of large areas that have never supported lynx other than occasional transient/dispersing individuals and that are very unlikely to ever support lynx populations regardless of designation and management regime.

(5)

Comment:

One peer reviewer commented that, although our methods for determining lynx habitat requirements and the distribution of habitats containing the PCE were reasonably well explained, we did not provide sufficient detail regarding how we used available and limited information including geographical information system (GIS) coverages of forest and habitat types, snow depth, and topographic information. Other commenters also requested clarification regarding how we used snowfall and topographic considerations when delineating proposed critical habitat.

Our Response:

To a great extent, the Service relied on lynx habitat data and information compiled by our partner Federal and State agencies, most of which mapped lynx habitats on their management units in accordance with information developed by the Interagency Lynx Biology Team and articulated in the Lynx Conservation Assessment and Strategy (LCAS; Ruediger

et al.

2000, entire). This information generally consisted of maps depicting cool, moist boreal or subalpine forests that support snowshoe hares and receive deep, powdery and persistent snow across landscapes large enough to support multiple lynx home ranges. We overlaid these areas with the geographic area occupied by lynx populations at the time of listing based on verified occurrence data. Although snow depth is thought to influence lynx distribution, other factors including snow consistency and persistence are also likely important, and we do not have enough information to support using thresholds for annual snowfall to delineate lynx critical habitat. Therefore, although snow conditions were a consideration, we did not establish or alter critical habitat boundaries based on specific thresholds for average annual snowfall, duration, or consistency. In critical habitat units 3 (Northern Rockies) and 4 (North Cascades), the majority of lynx records and the boreal forest types containing the features essential to lynx generally are found above 4,000 feet (1,219 meters). Therefore we limited critical habitat in these units to areas above this elevation, except in unit 3: (a) East of the Continental Divide, where that elevation encompasses substantial areas of grasslands that do not contain the PBFs essential to lynx, and (b) in areas where site-specific information indicated that the PBFs occurred and other criteria were met at lower elevations.

(6)

Comment:

One peer reviewer requested that the Service better articulate why denning and matrix habitats, which are not considered limiting for lynx within the DPS at large spatial scales, are considered essential and, therefore, defined as components of the PCE.

Our Response:

We agree that denning and matrix habitats are not limiting to lynx within the DPS; however, a feature or habitat variable need not be limiting to be considered an essential component of a species' habitat. Both denning and matrix habitats are essential components of landscapes capable of supporting lynx populations in the DPS because without them lynx could not persist in those landscapes. Both habitats fulfill essential lynx natural-history requirements by providing “space for individual and population growth and for normal behavior; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distribution . . .” of lynx in the contiguous United States.

(7)

Comment:

One peer reviewer felt the Service should better clarify the use of jurisdictional (e.g., National Forest) boundaries and highways to delineate critical habitat given that such anthropogenic features seldom fall along natural vegetation (habitat) boundaries.

Our Response:

As described in our response to comment (6) above, we relied on habitat mapping and information from our partner agencies within the range of the DPS. In some cases, administrative boundaries were used because they encompassed habitats of similar type and extent within an area found to meet the criteria we developed for critical habitat. Roads and other human-made structures were used as boundaries for critical habitat where they clearly delineated areas with confirmed records of lynx and the presence of the PBFs essential to lynx.

After the lynx DPS was listed as threatened under the Act in 2000, Federal land managers mapped potential lynx habitats on their units based on criteria and recommendations developed by the Interagency Lynx Biology Team and articulated in the LCAS (Ruediger

et al.

2000, entire). As vegetation mapping and habitat modeling have improved, some managers have initiated re-mapping of lynx habitat to better reflect actual on-the-ground habitat conditions.

In this rule, we have used the information from these habitat mapping refinements/improvements to adjust critical habitat boundaries to better reflect actual habitat conditions. This change has resulted in reduced reliance on administrative or other anthropogenic boundaries where better methods are available (revised mapping has not occurred on all land units within the range of the DPS). In particular, we used improved lynx habitat mapping to adjust critical habitat boundaries in the Idaho Panhandle National Forest and the Flathead National Forest in Unit 3 (U.S. Forest Service 2008a, entire; 2013a, entire); and in the Custer and Gallatin National Forests, Grand Teton National Park, and Bureau of Land Management (BLM) lands in the Pinedale and Kemmerer districts in Unit 5 (U.S. Fish and Wildlife Service 2013a, entire; 2013b, entire; U.S. Forest Service 2013b, entire). In both these units, some areas previously designated or proposed for designation as critical habitat were removed and other areas not previously designated or proposed were added to lynx critical habitat. The adjusted critical habitat boundaries now follow habitat features and not administrative or other anthropogenic features in all places where we had data that allowed such refinements.

(8)

Comment:

One peer reviewer felt that the benefits of critical habitat were presented generally for listed species but not specifically stated for lynx. The reviewer requested clarity regarding (a) the benefit of critical habitat to lynx, especially in the context of consultations under section 7 of the Act; (b) the difference between designated critical habitat and lynx habitat mapped in accordance with guidance in the LCAS, and whether (and if so, why) both are needed to recover lynx in the DPS; and (c) why critical habitat and “mapped” lynx habitat commonly depict different distributions of lynx habitat.

Our Response:

Compliance with section 4(a)(3) of the Act requires that critical habitat be designated for listed species, if prudent and determinable. Although listed species and the habitats upon which they depend are protected under provisions of the Act whether critical habitat is designated or not, a critical habitat designation identifies lands on which are found the physical and biological features essential to the conservation of the species that may require special management considerations. The identification of these essential areas is important to

guide management and provide for the recovery of the species. The general benefits of critical habitat for listed species also apply to lynx. In the Consideration of Impacts under Section 4(b)(2) of the Act section below we define these benefits for lynx.

The consultation provisions under section 7(a) of the Act constitute the regulatory benefits of critical habitat. Federal agencies must consult with the Service on discretionary actions that may affect a listed species, and in addition, analyze the effects of such actions on critical habitat. The analysis of the effects on critical habitat is a separate and different analysis from that of the effects to the species, and may provide greater regulatory benefits to the recovery of a species than listing alone. In terms of section 7 consultation, for activities with a Federal nexus in areas where lynx “may occur,” but which are not designated as critical habitat, the Service's evaluation focuses on the jeopardy standard—i.e., whether a project is likely to jeopardize the continued existence of the DPS. In designated areas, we must additionally evaluate whether a project is likely to result in destruction or adverse modification of critical habitat.

The difference between critical habitat and “mapped” lynx habitat is that critical habitat has been found to contain the physical and biological features essential to lynx in adequate quantity and spatial arrangement on the landscape to support a lynx population or subpopulation over time and, therefore, is essential to the conservation and recovery of the DPS. “Mapped” (or potential) lynx habitat is a tool for determining habitats in which lynx “may be present” (and therefore which may require consultation under section 7), regardless of whether the area is occupied by lynx or has the physical and biological features essential to its conservation. The “may be present” standard for consultation under section 7 is a lower bar than that for critical habitat designation, but it is required to address the possibility of adverse effects or take of lynx in areas not occupied by lynx populations but in which individual lynx may occasionally or intermittently occur as transients or dispersers.

Many areas of “mapped” or potential lynx habitat have no verified records of lynx occurrence, no evidence that they ever supported lynx over time, and are not essential to lynx conservation and recovery. The Service consults on Federal projects in these areas out of recognition that lynx are capable of dispersing long distances from areas that support populations and during such movements have historically occurred intermittently and temporarily in suboptimal, marginal, and unsuitable habitats that do not contain the physical and biological features essential to lynx and cannot, therefore, support lynx over time. Critical habitat is a subset of “mapped” habitat that we have determined is essential to conservation and recovery of the DPS. The remainder of mapped habitat may have some or all of the features lynx need, but not in adequate quantity and/or spatial arrangement to support lynx over time—therefore such areas are not essential to conservation and recovery of the lynx DPS.

(9)

Comment:

One peer reviewer found the structure of the proposed rule confusing because it proposed accomplishing two unrelated objectives: (a) Establishing that lynx will be protected where they occur and not based on State boundaries, and (b) revising the critical habitat designation for lynx in the contiguous United States.

Our Response:

We have provided clarifying language in the

SUMMARY

and Executive Summary sections above.

(10)

Comment:

One peer reviewer noted that the term “persistent population” is difficult to define in the context of critical habitat and questioned whether the lynx population in Minnesota can be considered truly persistent given that lynx appeared to be absent from the State from about 1973 to 2003. The reviewer noted that the lynx population introduced to Colorado from 1999 through 2006 has persisted until the present, though its long-term persistence remains truly unknown. The reviewer suggested that the long-term persistence of lynx in Minnesota is similarly unknown, and that “. . .the distinction of population persistence between Minnesota and Colorado as articulated in the proposed rule seems arbitrary, especially since there are probably many more lynx in Colorado than Minnesota.”

Our Response:

We agree that defining “persistent” lynx populations in the contiguous United States is a challenge due to the imperfect historical record of lynx occurrence and the absence of reliable long-term monitoring data for most places. Another contributing factor is that most lynx habitat in the range of the DPS is suboptimal, patchy, and supports lower hare densities compared to the core of the lynx range in Canada and Alaska, thus creating the likelihood that there may be times, likely related to inadequate densities of snowshoe hares, when lynx may be absent or at very low numbers even in the best lynx habitat within the range of the DPS with the most compelling evidence of persistent lynx populations.

When we listed the lynx DPS as threatened in 2000, we noted that there were 76 verified records of lynx in Minnesota and 17 in Colorado as of 1999 (McKelvey

et al.

1999a; 65 FR 16056, 16059). We noted at that time that (a) reproduction and home range maintenance documented in Minnesota in 1972 (Mech 1973, p. 152; 1980, p. 261), (b) consistent trapping records over 40 years (including during cyclic lows in lynx populations) in Minnesota and immediately adjacent habitat in Ontario that was similar and contiguous across the United States-Canada border, and (c) three verified lynx records in Minnesota in 1992-93, all provided some evidence of the existence of a resident population in Minnesota. However, we determined that the available data were insufficient to verify whether a resident lynx population existed in Minnesota historically or at the time of listing (65 FR 16056). In that rule, we also noted that “The montane and subalpine forest ecosystems in Colorado are naturally highly fragmented (Thompson 1994), which we believe limits the size of lynx populations,” and that the last verified lynx record was from 1974 (no verified records from 1975 to 1999) despite large-scale snow-tracking efforts (Carney 1993,

unpublished data,

as cited by McKelvey

et al.

2000a, p. 231). We concluded at that time that there were “few if any” native lynx in Colorado at the time of listing (65 FR 16059).

In our 2003 remanded determination of status for the lynx DPS (68 FR 40076), we noted that, in addition to the evidence (above) suggesting the potential existence of a resident lynx population in Minnesota historically and at the time of listing, there were 62 additional verified lynx records from 2000 to 2003, including 6 that provided evidence of reproduction (68 FR 40088). In that rule, we concluded that, although Minnesota may not always support lynx, “. . . northeastern Minnesota often supports a resident lynx population because there is ample boreal forest habitat directly connected with that in Ontario, there is a high number of historic lynx records, evidence of lynx reproduction and cyclically abundant snowshoe hares” (68 FR 40088). In the same rule, we reemphasized the lack of compelling evidence that Colorado ever naturally supported a persistent, resident lynx population, stating “. . .our original conclusion that the Southern Rocky Mountains supported an isolated resident lynx population may not be correct” (68 FR 40081). We also

suggested that the few verified historic records in Colorado/the Southern Rockies may represent dispersing individual lynx that arrived during extreme highs in lynx populations to the north (68 FR 40081, 40091). We concluded that, if there ever had been a resident population in Colorado, a viable resident population no longer existed there and the loss of a population (if one ever existed) would most likely have been the result of natural processes because the distance and isolation of Colorado and the Southern Rockies from source populations severely reduced, if not entirely precluded the immigration that was likely necessary for a lynx population of this region to sustain itself (68 FR 40091).

We do not find support for the statement that lynx were absent from Minnesota from 1973 through 2003. Mech (1980, entire) reported trapping 37 lynx between 1972 and 1978, including one female that showed evidence of reproduction and nursing, and he also examined the carcasses of 32 other lynx trapped in Minnesota during that time. The continued occurrence of lynx in Minnesota in the late 1970s and early 1980s was supported by State records of 161 lynx harvested in the period 1977-1983 (McKelvey

et al.

2000a, p. 223). There were only three verified lynx records in Minnesota from 1984 to 1999, but lynx harvest was closed in 1984 and no surveys or research to document lynx presence, absence, or population trend occurred during this time period (65 FR 16056).

In contrast, there are no verified records of lynx in Colorado between 1937 and 1968; single records in 1969 and 1972; and two records in 1974 (McKelvey

et al.

2000a, p. 231), despite the unprecedented “explosions” (irruptions) of lynx into the northern contiguous United States in the early 1960s and again in the early 1970s (McKelvey

et al.

2000a, pp. 219, 242). Trapping of lynx was permitted in Colorado until 1970 and would likely have reflected the presence of lynx in the State if they had been there. After 1974, and despite large-scale snow-tracking efforts (Carney 1993,

unpublished data,

as cited by McKelvey

et al.

2000a, p. 231), there are no verified lynx records in Colorado until 1999 (McKelvey

et al.

2000a, p. 231), when the State initiated its lynx translocation effort. The 2000 LCAS concurred with McKelvey

et al.

(2000a, p. 231) that no lynx specimens exist for Colorado from 1974 to 1999 (Ruediger

et al.

2000, p. 4-14), but suggested that other records indicate a small number of lynx may have been present during that time (Ruediger

et al.

2000, p. 4-14—4-15). However, the reports upon which Ruediger

et al.

based their assessment (Halfpenny and Miller 1981; Halfpenny

et al.

1982; Thompson and Halfpenny 1989, 1991; Andrews 1992; Carney 1993) were also available to and considered by McKelvey

et al.

(2000a, pp. 230-231), and the reported lynx occurrences were found to be unverified and, therefore, anecdotal. We consider McKelvey

et al.

(2000a, entire) the best available information regarding the historical distribution of lynx based on verified occurrence data. We also concur with McKelvey

et al.

(2008, entire) regarding the imperative need to rely only on verified data when evaluating historical and current ranges of rare and elusive species like lynx. In that peer-reviewed paper, the authors provide case studies of the kinds of errors and conservation consequences that can occur if anecdotal (unverified) data are relied upon for such species. In fact, they provide as an example the potential errors that could occur if bobcats were mistakenly identified anecdotally as lynx only 1 percent of the time (McKelvey

et al.

2008, pp. 553-554). Therefore, based on our assessment of the information above, we conclude that there is no reliable evidence that lynx were able to establish and maintain populations in Colorado or elsewhere in the Southern Rockies for much of the past century.

The best available information suggests that northeastern Minnesota has historically supported and currently supports a naturally resident and persistent lynx population, indicating that this area contains the physical and biological features essential to lynx in adequate quantity and spatial arrangement to support a lynx population over time. Therefore, it meets our definition of critical habitat. Conversely, verified evidence suggests that Colorado (as well as southern Wyoming, northeastern Utah, and northern New Mexico) did not historically support a naturally resident lynx population over time. Although this does not prove the absence (or disprove the potential presence) of the PCE from all parts of the Southern Rockies, it is one piece of evidence which suggests that these areas may not contain the physical and biological features essential to the conservation of lynx in adequate quantity and spatial arrangement to support a lynx population over time. As explained in more detail below, as well as in our response to comments (11) and (23), and in the “

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

section of this final rule, we have determined that the historic record of lynx occurrence and the available information on the quantity and distribution of lynx habitat and hare densities all combine to suggest that the Southern Rockies do not contain the PCE. Therefore, these areas do not meet our definition of critical habitat.

We agree with the reviewer that the future persistence of lynx populations in Minnesota and Colorado is uncertain. However, the extensive boreal forest habitat in northeastern Minnesota, which is directly connected to similar and very extensive habitat and a persistent lynx population in immediately adjacent Ontario, supports our conclusion that future lynx persistence is more likely in Minnesota than in the patchy, marginal, and disjunct habitats in Colorado, which are isolated from other lynx habitats by more than 90 mi (150 km) of unsuitable lower-elevation habitats (McKelvey

et al.

2000a, p. 230). We acknowledge that the Colorado population has persisted from its 1999-2006 introduction until the present. We believe that this short-term persistence is not surprising given that the translocation of a large number of healthy lynx from Alaska and Canada over several consecutive years, which were held in captivity and brought into prime health through supplemental feeding prior to their release into Colorado, is much different than the likely intermittent historical arrival of a much smaller number of potentially less-fit lynx in the Southern Rockies that were likely dispersing away from food shortages associated with cyclic hare population crashes to the north. We also concur with the conclusions of Colorado Parks and Wildlife (CPW), which acknowledged that the future persistence of the introduced population is uncertain and hinges on the assumption that patterns of annual reproduction and survival observed as of 2010 repeat themselves during the next 20 or more years (Shenk 2008, p. 16; Shenk 2010, pp. 2, 5-6, 11).

Despite the persistence of the introduced population thus far, we anticipate, based on the historical record and the patchiness and marginal quality of lynx habitat and hare densities, that Colorado and the Southern Rockies, in the absence of additional translocations of lynx from elsewhere, are unlikely to support lynx over the long term. The area's distance from source populations of lynx reduces the likelihood that this area will receive the demographic support, via dispersal and immigration from other populations, thought to be important to

the maintenance of lynx populations in the DPS. Further, climate projections suggest lynx habitat will decline here as elsewhere (Gonzalez

et al.

2007, pp. 4, 8), making habitats in these areas even more marginal, patchy, and isolated and, therefore, even less capable of supporting lynx populations over time.

Regardless, unlike the long-term presence of naturally resident and persistent populations in northeastern Minnesota and elsewhere within the range of the DPS (despite times when lynx numbers were likely very low in those places), the current presence of the introduced population in the Southern Rockies does not connote that habitats there contain the physical and biological features essential to lynx in quantities and spatial arrangements adequate to support lynx populations over time. It is possible that similar introductions in other places with few historical records and which also have likely not supported naturally resident lynx populations (e.g., northern Vermont, northern Michigan, northern Wisconsin, western and central Minnesota, southwestern Montana, central and southern Idaho, southern Washington and Oregon) would achieve results similar to those observed in Colorado. However, that finding also would not confirm the presence in those places of the essential physical and biological features in adequate quantity and spatial arrangement to support lynx populations over time. We believe it would be inappropriate and speculative to designate critical habitat in such areas that, based on the historical record of verified occurrence and assessment of the available information on habitat quantity and spatial configuration, appear historically and currently incapable of supporting viable lynx populations over time. We find no evidence that such areas can contribute meaningfully (let alone be essential) to the conservation and recovery of the lynx DPS. Therefore, we have not designated critical habitat in Colorado or the Southern Rockies despite the benchmarks achieved by the introduction program there.

(11)

Comment:

One peer reviewer noted that there is scientific evidence that lynx populations in the contiguous United States are connected with those in Canada but that it is unclear (a) if the persistence of southern populations depends on their own productivity or if augmentation from Canada is truly needed, and (b) what role connectivity among southern populations plays in maintaining the overall metapopulation structure. The reviewer felt the proposed rule implied a higher degree of certainty regarding population connectivity than may be the case and contended that we stated, despite the absence of scientific evidence, that lynx use habitat “stepping stones” to connect Montana to the Greater Yellowstone Area (GYA). The reviewer suggested that lynx in the GYA may be maintained by pulses of lynx from populations in Canada rather than movements of animals from Montana populations, and that recognizing this uncertainty is important as it relates to lynx in Colorado. The reviewer felt the proposed rule downplayed the persistence of the Colorado population because it lacked habitat “stepping stones” from northern populations, and that the absence of habitat “stepping stones” did not prevent several lynx from the population introduced into Colorado from dispersing (northward) to the GYA.

Our Response:

The best available information indicates that lynx populations in the DPS rely on augmentation from populations in Canada. Based on genetic analyses, Schwartz

et al.

(2002, entire) concluded that the persistence of lynx populations in the contiguous United States depends on dispersal from larger populations (also see response to comment (23), below). As we stated in the proposed rule (78 FR 59434), connectivity and interchange with lynx populations in Canada is thought to be essential to the maintenance and persistence of lynx populations in the contiguous United States (McKelvey

et al.

2000b, p. 33; U.S. Fish and Wildlife Service 2005, p. 2; Interagency Lynx Biology Team 2013, pp. 34, 42, 47, 54, 60, 65; Squires

et al.

2013, p. 187). Additionally, we are aware of no persistent resident lynx populations in the DPS that are not directly (Maine, Minnesota, northern Montana and northern Idaho, and northern Washington) or indirectly (GYA) connected to lynx populations in Canada via suitable or potentially suitable boreal or subalpine forest habitat.

We used the term “habitat `stepping stones' ” in the Background section of the proposed rule (78 FR 59434) to describe the relative connectivity of populations in the Rockies to larger populations in Canada. We did not state that we are certain lynx use these habitat patches, but rather that patches of habitat potentially conducive to dispersal exist between the GYA and lynx populations to the north and, as noted previously by others (e.g., McKelvey

et al.

2000a, p. 230; Interagency Lynx biology Team 2013, p. 50), that this is not the case in Colorado, where potential lynx habitat is separate and isolated from other potential lynx habitats and, thus, from northern lynx populations by more than 90 miles (150 km) of unsuitable lower-elevation desert and sagebrush habitats. We do not know to what extent this isolation contributed to the historical inability of lynx to naturally establish and maintain viable resident breeding populations in Colorado and elsewhere in the Southern Rockies, but we believe that it is reasonable to conclude that it is a factor. We also did not state or imply that the GYA lynx population is maintained by movements of animals from Montana populations; rather, we meant that the habitats that support lynx in northwest Montana are part of a potential dispersal corridor that may provide connectivity between lynx in the GYA and populations in Canada (78 FR 59434). We agree that the extent to which lynx use any potential dispersal corridors is uncertain.

Finally, our intent is not to downplay the achievements of the introduction effort in Colorado, but rather to explain what we think the presence of the introduced lynx population does and does not tell us about whether the habitat contains the PCE and is essential to the conservation of the DPS (also see our response to comment (10), above). We acknowledged in the proposed rule that lynx are highly mobile and regularly move long distances (78 FR 59435) and that some lynx from the population introduced into Colorado dispersed widely, including north across the expanse of unsuitable habitat that separates potential lynx habitat in the Southern Rockies from lynx habitats to the north (78 FR 59434, 59448-59449). Clearly lynx from the north also occasionally reached the Southern Rockies historically, as evidenced by the few verified records for Colorado and southern Wyoming. However, we find that the best available information suggests that Colorado and the Southern Rockies do not contain the physical and biological features essential to lynx in adequate quantity and spatial arrangement to support lynx populations over time, and we have not designated critical habitat in these areas.

(12)

Comment:

One peer reviewer felt that our use of the term “transitional” when describing boreal forests in the range of the DPS implied that lynx habitat used by southern populations is almost “ephemeral,” and that our characterization that lynx habitat in the contiguous United States is transitional lacks support and is misleading.

Our Response:

We use the term “transitional” (78 FR 59433, 59434, 59438) to describe the southern margin of the boreal forest that extends into the northern contiguous United States,

where it “transitions” to other more temperate forest types, which is consistent with its use in Mech (1980, p. 271), Agee (2000, pp. 40, 41, 44), the 2000 listing rule for the lynx DPS (65 FR 16052, 16056, 16081-16082), the 2003 clarification of findings (68 FR 40077), the 2007 “Significant Portion of the Range” clarification (72 FR 1188), the 2009 revised critical habitat rule (74 FR 8616, 8635), the 2009 12-month finding on a petition to include New Mexico in the lynx DPS (74 FR 66939), and the revised Lynx Conservation Assessment and Strategy (LCAS; Interagency Lynx Biology Team 2013, pp. 39, 44, 52). It is important that readers understand that both lynx and snowshoe hares are true boreal forest species, and that most boreal forest habitats in the northern contiguous United States become patchy and marginal for both species as these forests transition to other forest types. The transitional nature of the boreal forest at its southern extent is believed (along with competition from other hare predators) to limit the numbers of both hares and lynx, preventing either from regularly achieving densities in the contiguous United States comparable to those regularly achieved in the classic boreal forests at the centers of their ranges in north-central Canada.

Although some mature multistory forest stands may provide stable lynx and hare habitat over time (Interagency Lynx Biology Team 2013, p. 29), in many parts of the DPS range lynx and hares fare best in areas with large proportions of young regenerating early-successional stands that exist temporarily following disturbance (Aubry

et al.

2000, p. 374; Interagency Lynx Biology Team 2013, pp. 28-29). In the absence of additional disturbance, many of these stands will, through natural forest succession, mature into stands with less dense vegetative cover at ground or snow level, providing less food and cover for hares and reducing the quality of foraging habitat for lynx. For example, much of the current higher quality hare and lynx foraging habitat in northern Maine occurs in 15- to 35-year-old dense, regenerating spruce-fir stands that were previously clearcut (78 FR 59456). As these stands continue to mature, and with timber harvest practices and regulations that have shifted away from clear-cut harvest and use of herbicides to promote conifer regeneration, hare and lynx habitats are expected to decline broadly across the area, with the lynx population projected to decline by 55 to 65 percent in the next 20 years (Simons 2009, p. 217). In a sense, then, some lynx habitats truly are “temporary” (Interagency Lynx Biology Team 2013, p. 29) and ephemeral.

(13)

Comment:

One peer reviewer felt we inappropriately cited a non-peer-reviewed publication (Berg and Inman 2010) to support the statement that “. . . important foraging habitat for lynx is often more limited and fragmented in the contiguous United States than it is in the northern boreal forests of Canada and Alaska” (78 FR 59434).

Our Response:

We believe that our use of this citation is appropriate given the authors' histories of research and monitoring with regard to lynx, snowshoe hares, and other carnivores and their respective habitats. We also cited in the proposed rule (78 FR 59433) many other published references describing the marked differences between snowshoe hare (i.e., lynx foraging) habitats in the contiguous United States and those in the boreal forest of Canada and Alaska: Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84; Aubry

et al.

2000, pp. 373-375, 382, 394; Interagency Lynx Biology Team 2013, p. 77).

(14)

Comment:

One peer reviewer felt that seasonal and geographic differences in lynx habitat were poorly described in the proposed rule and that clear articulation of how lynx habitat differs across the southern population would be helpful. As an example, the reviewer noted that the habitat used in winter by lynx in the Northern Rockies (mature multistoried forests with dense horizontal cover at ground/snow level; Squires

et al.

2010, pp. 1648, 1653, 1656) is almost opposite the habitat used by lynx in Maine year-round (young, regenerating spruce-fir; Vashon

et al.

2012, pp. 15-16). The reviewer felt that (a) readers should understand that management actions in Maine may have actually created lynx habitat, (b) it is unclear whether Maine could support lynx without extensive forest management with herbicide treatment, and (c) the role that herbicide treatment of forests in Maine played to create/promote the conifer infill that lynx depend on should be discussed.

Our Response:

Although our introductory discussion of lynx habitat in the Background section of the proposed rule (78 FR 59434-59435) was general in nature, we provided much more detail on geographic and seasonal differences in lynx habitat in the Critical Habitat,

Physical or Biological Features

section, where we described differences in boreal forests and lynx habitat characteristics for each of the regions within the range of the DPS (78 FR 59437-59442). In that section, we specifically noted differences in lynx habitat use in winter versus summer (78 FR 59439). Similarly, we discussed in some detail in the

Special Management Considerations or Protection

section (78 FR 59445) and the Proposed Revised Critical Habitat Designation section (78 FR 59456) the influence of industrial timber management and large-scale clearcutting on lynx habitat in Maine. However, we did not discuss the role of herbicides there, so we have added that information to the Critical Habitat,

Boreal Forest Landscapes

section of this final rule, and in our response to comment (19), below, where we provide additional detail regarding historic, recent, and projected future densities of lynx in Maine.

(15)

Comment:

One peer reviewer felt that den habitat in the Northern Rockies was poorly defined and that the proposed rule did not clearly describe how lynx respond to environmental characteristics at dens at various spatial scales.

Our Response:

Although our discussion of denning habitat in the Background section (78 FR 59435) was general in nature, we included a more detailed and region-specific discussion in the Critical Habitat,

Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

section (78 FR 59441-59442), where we summarized the available pertinent information regarding lynx den-site selection for each region in the range of the DPS. However, we did not go into detail concerning lynx den selection in response to environmental cues at various spatial scales because we did not think it is germane to the discussion of critical habitat given that denning habitat is not thought to be a limiting factor for lynx anywhere within the range of the DPS.

(16)

Comment:

One peer reviewer suggested that the designation of critical habitat apparently does little to alter Federal responsibilities for the species' management but that it is unclear how designation may affect lynx management and conservation on State and Tribal lands. The reviewer felt readers need to fully understand what the inclusion in or exclusion from a critical habitat designation means to lynx conservation and management on all lands, but especially for State and Tribal lands in Montana that were considered for exclusion in the proposed rule and which we have excluded from designation in this final rule. The reviewer also felt that our rationale and justification for excluding Tribal lands and lands managed in accordance with the Montana Department of Natural Resources and

Conservation (MDNRC) Forested State Trust Lands Habitat Conservation Plan (HCP) should be better articulated and fully explained in the final rule.

Our Response:

We described the general and specific regulatory benefits of critical habitat to lynx conservation in our response to comment (8), above, and in the Consideration of Impacts under Section 4(b)(2) of the Act section, below. Because a Federal action or “nexus” exists for all activities that may affect lynx on Federally managed lands, the regulatory benefits of consultation in accordance with section 7 of the Act are more likely to occur. Federal agencies must consult with the Service to ensure that no activity they carry out, permit, authorize, or fund will result in the destruction or adverse modification of designated critical habitat.

Activities on State, Tribal, or private lands that involve a Federal nexus must similarly undergo section 7 consultation, though it is the Federal “action agency” that consults with the Service. However, there is no consultation requirement for activities on State, Tribal, or private lands for which a Federal nexus does not exist. With regard to lynx, the activities most likely to impact the species or its habitats involve timber harvest, fire/fuels management, or other vegetation or silvicultural treatments—activities that most often lack a Federal nexus on State, Tribal, or private lands. When evaluating whether to designate critical habitat in such places, we assess the benefits of inclusion versus the benefits of exclusion, and we only exclude areas for which the benefits of exclusion outweigh those of inclusion. In the case of Tribal lands and State or private lands with finalized lynx management plans or habitat conservation plans (HCPs), we have determined that Tribal management, and State and private management in accordance with finalized plans or HCPs, is more beneficial to lynx than a critical habitat designation would be. One component of this analysis is the recognition that many activities that could affect lynx on these lands lack a Federal nexus, thereby precluding opportunity to achieve conservation via section 7 consultation resulting from designation. Therefore, management in accordance with Tribal forest and/or wildlife management plans and HCPs or other formal management plans on State or private lands is more likely to result in conservation of the lynx and its habitats than would be achieved via designation as critical habitat.

With specific regard to lands managed in accordance with the MDNRC HCP (as well as those for other exclusions), we have in this final rule presented our detailed evaluation of the benefits of including these lands compared to the benefits of excluding them (see Consideration of Impacts under Section 4(b)(2) of the Act, below). We have determined that the benefits of excluding MDNRC lands outweigh the benefits of including them in the lynx critical habitat designation and that doing so will not result in the extinction of the lynx DPS.

With specific regard to Tribal lands, in accordance with Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments;” and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on Tribal lands are better managed under Tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Such designation is often viewed by Tribes as an unwanted intrusion into Tribal self-governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend. We have added details on Tribal management goals and plans, land status, and lynx conservation efforts to our consideration of and rationale for these Tribal lands exclusions. See Exclusions Under Section 4(b)(2) of the Act, below, for a detailed discussion of why these lands have been excluded.

(17)

Comment:

One peer reviewer suggested there is limited anecdotal evidence that lynx in the Greater Yellowstone Area (GYA) are declining, based on the failure to trap any “native” lynx there in 2005-2006 (the only lynx encountered were thought to have been associated with the introduced population in Colorado).

Our Response:

We do not have evidence of a decline in the GYA lynx population. Although the GYA has a long history of lynx presence and recent evidence of reproduction (Squires and Laurion 2000, entire; Squires

et al.

2001, entire; Murphy

et al.

2006, entire), there are relatively few verified records of lynx from Yellowstone National Park and surrounding areas (65 FR 16058, 68 FR 40090). Additionally, lynx habitat in the GYA is naturally marginal (patchier and composed in many places of drier forest types), less capable of supporting snowshoe hares (Hodges

et al.

2009, entire), and farther from source populations than most other parts of the DPS range (68 FR 40090). Given the naturally marginal habitat in this largely protected area, we believe it is unlikely that the GYA ever supported more than a handful of lynx home ranges in any given year. We find no evidence that the GYA once supported a larger or more robust lynx population than the small one suggested by verified historic and recent records and survey efforts.

(18)

Comment:

One peer reviewer suggested that lynx habitat in the western United States has contracted significantly in the last decade from fire and insect outbreak, although these changes are fairly recent and thus not addressed in the scientific literature. The reviewer cited the almost complete die-off of Engelmann spruce (

Pica engelmanii

) from 400,000 acres (161,874 hectares) of spruce-fir forests in the San Juan Mountains in Colorado because of spruce budworm infestation, and an increase in fire activity in the Northern Rockies since the mid-1980s at elevations that largely overlap lynx critical habitat.

Our Response:

Climate change has resulted in warmer and drier conditions that have increased the number and extent of wildfires in the western United States and in boreal forests in Canada, and projected climate changes suggest this trend will continue, with increases likely in the frequency of large, intense forest fires (IPCC 2014a, p. 31; IPCC 2014b, p. 4; Joyce

et al.

2014, p. 178; Mote

et al.

2014, p. 495). Climate change is also increasing the vulnerability of western forests to insect and tree-disease outbreaks; large-scale tree die-offs have already occurred and are likely to increase in the future, and the subalpine forests on which lynx in the western contiguous United States depend may be particularly at risk (Joyce

et al.

2014, p. 177; Mote

et al.

2014, pp. 495-496). However, the potential consequences of climate change for lynx populations and their habitats remain unquantified. Fire and insects have been important elements of these forests historically, helping to maintain the mosaic of forest successional stages thought to be important to lynx and snowshoe hares. We have no evidence that these factors (fires and insect outbreaks) have thus far altered lynx habitats to the extent that landscapes historically or recently capable of naturally supporting lynx populations can no longer do so, although climate projections suggest

such changes are possible in the future. If lynx habitat has indeed contracted, it may be a temporary effect, and as regeneration and regrowth of these areas progresses, they should return to lynx habitat so long as fire, insect outbreaks, and climate warming and drying have not permanently altered the vegetative capacity and climax forest potential of these sites.

(19)

Comment:

One peer reviewer felt the proposed rule was unclear whether the projected reduction in lynx habitat in Maine was due primarily to a shift in timber harvest away from clearcutting to partial harvest, or if the herbicide use that had helped create conifer-dominated stands of value to lynx and hares has also been greatly curtailed. The reviewer also wondered if the decline would be a return to historical levels of lynx habitat in Maine prior to the extensive habitat fragmentation from earlier clearcutting and herbicide treatment and suggested we clarify this relationship in the final rule.

Our Response:

The current abundance of snowshoe hare habitat (and, therefore, lynx foraging habitat) in northern Maine was created by large-scale clear-cut timber harvest of about 55 percent of the forestlands in northern Maine in response to a 1973-1985 spruce budworm (

Choristoneura fumiferana

) outbreak (Simons 2009, pp. 64, 218). Some of these clearcuts were treated with herbicide to promote conifer regeneration by reducing competition from deciduous species (Scott 2009, p. 7). From about 15 years to 35 years post-harvest, these regenerating stands provide excellent cover and forage for snowshoe hares (Simons 2009, pp. 217-218), and the prevalence of such stands is credited with the rapid increase in lynx numbers in Maine in the mid-1990s and early 2000s (Simons 2009, pp. 64, 122; Vashon

et al.

2012, pp. 56-57). As these stands mature beyond about 35 years post-harvest, hare densities begin to decline as cover and forage are reduced due to forest succession (Simons 2009, p. 217). The areal extent of these high-quality hare habitats is believed to have peaked between 2007 and 2010, and lynx numbers in Maine also likely peaked at about that time (Simons 2009, p. 142; Vashon

et al.

2012, pp. 50, 57). With the reductions in both clearcutting and herbicide application following enactment of the Maine Forest Practices Act of 1989, it is projected that lynx densities will decline by 55 to 65 percent by 2032 (Simons 2009, p. 217). By then, the lynx population, which is thought to have peaked at between 750 and 1,000 adults in 2006, may decline by more than half to perhaps 300 adults, which is still three times as many lynx as are thought to have inhabited Maine during a population low in the 1970s (Vashon

et al.

2012, pp. 57-60).

How these numbers compare to historic lynx numbers in Maine is uncertain. Lynx have had a relatively constant presence in Maine since they were first documented in the State in 1833 (Hoving 2001, pp. 6-38). In general, lynx likely occurred at low densities prior to European settlement, when relatively small amounts of the spruce-fir forests in the State are thought to have been composed of young stands (Lorimer 1977, entire; Vashon

et al.

2012, pp. 45, 56), but they likely responded positively to stand-replacing fires, wind events, and insect outbreaks (Hoving 2001, p. 25). Audubon and Bachman (1852) described lynx as occurring in regenerating forest following fire in Maine, and H.D. Thoreau (1893) noted that lynx were common in the “burnt lands.” Lynx may have also responded to timber harvest, which by 1900 had expanded to smaller diameter spruce for a growing paper industry. It is likely, then, that lynx numbers in Maine have fluctuated since European settlement, depending on the size and distribution of natural and human disturbances and the resultant young regenerating forest stands. At times, lynx were considered very common, and in some years in the 1800s, 200-300 lynx were harvested in Maine (Hoving

et al.

2003, p. 363).

Finally, the extent to which herbicide treatment to favor conifer regeneration contributed to the development of optimal hare habitats in regenerating clearcuts (versus regeneration in untreated stands) is unclear. Herbicide treatment is expensive, and even in the 1980s, when herbicide application was highest, less than 20 percent of clear-cut stands were treated. The areal extent of herbicide application decreased by about 78 percent in 2000-2007 compared to peak application in the late 1980s, which may reduce the amount of conifer-dominated regenerating hare and lynx habitats in the future (Scott 2009, pp. 122-123).

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Comment:

One peer reviewer commented that there was an assumption in the proposed rule that lynx populations within the DPS require demographic rescue periodically from populations in Canada. The reviewer suggested that it is unknown if augmentation from northern populations is sufficient for demographic rescue and that this uncertainty was poorly articulated in the proposed rule. The reviewer also suggested that it is unknown if the lagged synchrony observed in southern lynx populations resulted from the physical movement of lynx from the north or if southern populations increased due to a related environmental factor (e.g., increased hare abundance), and that this uncertainty also was not communicated in the proposed rule.

Our Response:

We agree that it is uncertain whether the demographic health of lynx populations in the DPS is reliant on augmentation from Canadian populations and, if so, to what extent, and whether current rates of interchange/immigration are sufficient to provide demographic rescue (also see response to comment (22), below). We recognized and articulated some of these uncertainties at several places in the proposed rule. For example, we stated that lynx in the contiguous United States appear to function as discrete subpopulations connected via dispersal to the larger Canadian metapopulation, that lynx disperse in both directions across the United States-Canada border, and that this interchange is thought to be essential to the maintenance and persistence of lynx populations in the DPS (78 FR 59434). We similarly stated that the degree to which regional lynx populations in the DPS are influenced by local hare population dynamics is unclear, and that lynx presence and population dynamics in the DPS appear to be more influenced by the occurrence of irruptions from Canada than by intrinsically generated hare population cycles within the DPS range (78 FR 59436).

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Comment:

One peer reviewer suggested that the proposed rule assumes that peripheral southern lynx populations (outside proposed critical habitat) failed to persist due to unsuitable habitat conditions but did not mention that no large incursion of lynx has happened in the western United States in the absence of active persecution (i.e., trapping).

Our Response:

We believe the best available information indicates that we have included within the final critical habitat designation all places in the contiguous United States historically and currently capable of naturally supporting lynx populations and which will provide for the conservation of lynx. We are aware that no large irruptions of lynx from Canada into the contiguous United States have been documented since the DPS was listed and harvest was prohibited throughout its range. However, in the absence of trapping, which provided most of the data upon which the history of past irruptions was constructed, and with limited monitoring of lynx populations

on both sides of the border, there is uncertainty about the number of lynx that may be moving between populations in Canada and those in the contiguous United States.

We have no evidence that lynx were disproportionately persecuted in areas outside those we have designated (secondary or peripheral areas), and lynx populations in designated areas have persisted despite being similarly exposed to hunting and trapping prior to listing. Additionally, other than relatively low levels of reported incidental trapping (with very few resulting in lynx mortality), lynx have not been persecuted in the past 14 years since listing. In that time, populations have persisted in the areas designated as critical habitat, while other areas (with the possible exception of small areas of northern New Hampshire, northern Vermont, and Maine outside the designated area) have failed to attract lynx and support establishment of populations. We interpret this as a strong indication that these secondary and peripheral areas lack one or more of the essential physical or biological features in adequate quantity and/or spatial arrangement, and that it is less likely, given the previously noted dispersal capabilities of lynx, that these areas represent good lynx habitat which lynx have been unable to locate and colonize (but see response to comment (22), below).

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Comment:

One peer reviewer noted that maintaining connectivity for lynx populations in the contiguous United States may become increasingly difficult in the future due to climate and anthropogenic change, that this added risk was not discussed in the proposed rule, and that a potentially dampened hare/lynx cycle in Canada (e.g., Ims

et al.

2008, pp. 81, 85) may cause demographic and genetic impacts to southern lynx populations over time. However, the reviewer noted that lynx from the population introduced to Colorado made documented south-to-north movements, demonstrating that connectivity with the native population in the GYA is possible.

Our Response:

Climate change and other anthropogenic change (human-caused habitat degradation/loss/fragmentation) could result in smaller and more isolated lynx populations in the contiguous United States, with reduced connectivity to lynx populations in Canada. We noted in the

Future of Lynx Habitat

sections of the proposed rule (78 FR 59443) and this final rule (below) that climate change could reduce the amount and quality of lynx habitat in the DPS range, with habitat patches becoming smaller, more fragmented, and more isolated (Carroll 2007, pp. 1099-1100; Johnston

et al.

2012, p. 11), and that lynx populations could become more vulnerable to stochastic environmental and demographic events because of smaller population sizes and increased isolation (Carroll 2007, pp. 1100-1103). However, the level at which reduced connectivity might affect the demographic or genetic health of populations in the DPS is unknown.

Schwartz

et al.

(2003, entire) documented reduced genetic variation (lower mean number of alleles per population and lower expected heterozygosity) among peripheral lynx populations compared to populations in the core of the lynx geographical range. While recognizing that small changes in genetic variation can lead to large changes in population fitness, the authors noted that the differences between core and peripheral populations in their study were small enough to suggest a lack of significant population subdivision (i.e., no indication of genetic isolation, substantial genetic drift, or potential genetic “bottlenecks” among DPS populations; Schwartz

et al.

2003, p. 1814). This finding is consistent with their earlier work, which documented high levels of gene flow (the highest yet documented for any carnivore) between core and peripheral lynx populations despite large separation distances (Schwartz

et al.

2002, pp. 520-522). Their results did not suggest that reduced genetic variation among peripheral populations was due to human disturbance (i.e., habitat loss/fragmentation on the southern periphery of the geographic range; Schwartz

et al.

2003, p. 1814), but they did imply that the persistence of lynx populations in the contiguous United States depends on dispersal from larger (core) populations (Schwartz

et al.

2002, p. 522).

Currently, there is no indication that the levels of connectivity and gene flow between lynx populations in the DPS and those in the core of the lynx's range are inadequate to maintain the genetic health of DPS populations. Given the noted dispersal capabilities of lynx, it appears unlikely that levels of connectivity and gene flow will become inadequate in the foreseeable future. However, because demographic rescue (demographic stability of peripheral populations achieved via immigration from other populations sufficient to offset mortality and emigration in the peripheral population) requires much higher immigration rates than does genetic rescue (McKelvey

et al.

2000b, pp. 23-24), reduced connectivity due to climate change, habitat loss/fragmentation, or a combination of these factors, is more likely to result in demographic rather than genetic impacts to lynx populations in the DPS. But, as with gene flow, the level of diminished connectivity at which DPS populations could suffer demographic impacts is unknown. Finally, how hare and lynx population cycles may be affected by climate change remains unclear (Yan

et al.

2013, p. 3264); therefore, estimating the magnitude of potential future demographic and genetic impacts to southern lynx populations remains elusive. If climate change does dampen hare (e.g., Ims

et al.

2008, pp. 81, 85) and lynx population cycles, and that dampening alters the periodicity and/or reduces the magnitude of immigration from Canadian to DPS lynx populations (which is poorly understood to begin with), then demographic and genetic impacts are possible.

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Comment:

Peer reviewers and other commenters presented conflicting views on whether Colorado and other parts of the Southern Rockies (southern Wyoming, northeastern Utah, and northern New Mexico) should be included in the designation. Two peer reviewers agreed with our determination that Colorado and the Southern Rockies do not contain the PCE and are not essential to conservation of the lynx DPS. One peer reviewer questioned the consistency of our logic in not designating critical habitat in Colorado and the Southern Rockies relative to its application to native lynx populations. The reviewer thought we should consider designating critical habitat in Colorado and the Southern Rockies because (a) the introduced population may currently include more lynx than native lynx populations in northwest Wyoming or Minnesota, and (b) the area used by the introduced population in the San Juan Range of Colorado is larger than the area of montane forest that supports lynx in Wyoming. One peer reviewer disagreed with our decision not to designate critical habitat in Colorado or elsewhere in the Southern Rockies and with our determination that evidence is lacking to indicate that these areas historically supported resident lynx populations. The reviewer cited Cary (1911) and Meaney (2002) as evidence that Colorado historically supported a resident lynx population. The reviewer suggested that parts of western Colorado, southern Wyoming, and northern New Mexico contain the physical and biological features essential to lynx in adequate quantity

and spatial arrangement and that high elevations in these areas may become important to lynx conservation if climate change results in upslope movement of lynx and hare habitats, as some models suggest. Many other commenters urged us to designate critical habitat for lynx in Colorado and the Southern Rockies, while others supported our proposal not to designate critical habitat in these areas.

Our Response:

Neither the presence of the introduced lynx population or the large area it has used demonstrate that habitats in Colorado and other parts of the Southern Rockies contain the physical and biological features essential to lynx in adequate quantity and spatial arrangement to support lynx populations over time or that this area is essential to the conservation of the lynx DPS. We do not conclude that Cary (1911, pp. 44, 48, 165-167) and Meaney (2002, entire) provide reliable evidence based on verified lynx occurrence data that Colorado historically supported a resident lynx population.

As described above in our responses to comments (10) and (11), the verified evidence suggests that habitats in Colorado and the Southern Rockies have not historically supported viable lynx populations or subpopulations. The importance of using only verified evidence and the need to avoid using anecdotal occurrence data to assess the ranges of rare and elusive species has been amply demonstrated by McKelvey

et al.

(2008, entire; see also our response to comment (10), above). The authors cautioned that this is particularly important when target species may be easily confused with other similar but more common species; using as an example the potential biological and conservation consequences of misidentifying even a small number of bobcats as Canada lynx (McKelvey

et al.

2008, pp. 553-554). Halfpenny and Miller (1980, p. 8) indicated that Cary's (1911) summary was based largely on (unverified, anecdotal) observations by trappers, and the authors cited Armstrong (1972) who said these “. . . ought to be regarded with a degree of caution.” Similarly, Meaney's (2002, entire) unpublished review for the Colorado Department of Transportation of mostly anecdotal lynx records in the State points out many of the vagaries and inconsistencies of the anecdotal data, very unlikely high numbers of lynx reported as trapped in some counties in some years, and misidentification of large, pale bobcats as lynx, but then concludes, questionably in our opinion, that “There is no doubt that established populations of lynx occurred in the northern mountains of Colorado” (Meaney 2002, p. 5).

Based on our evaluation of the historic record of verified lynx occurrence, we find that, although lynx clearly occurred occasionally in the Southern Rockies, there is no evidence that the Southern Rockies, including southern Wyoming, western Colorado, northeastern Utah, and northern New Mexico, historically supported lynx populations. We conclude that the few verified records from these areas were most likely transient animals dispersing during “irruptions” from northern lynx populations after cyclic hare population declines. As we discuss below, habitat in Colorado and the Southern Rockies is marginal, naturally fragmented, and disjunct, with poor to marginal hare densities. This, combined with its apparent historical inability to naturally supporting lynx populations, suggests that this area does not contain the PCE (see also the “

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

” section, below).

Also as we described above in our response to comment (10), the persistence, thus far, of the introduced lynx population in Colorado does not demonstrate that habitats there contain the essential physical and biological features in adequate quantity and spatial arrangement to support a lynx population over the long term. Like Colorado and the Southern Rockies, many areas across the northern border of the United States contain some amounts of the essential physical and biological features and have verified records of lynx (in fact, New York, Michigan, Wisconsin, and Idaho all have more verified historic lynx records than Colorado/Southern Rockies; McKelvey

et al.

2000a, p. 210), but no evidence they have ever supported more than occasional dispersing lynx. The historic inability of these areas to naturally support resident lynx populations indicates either (a) that the quantity and/or spatial arrangement of one or more physical or biological features is inadequate, (b) the area's distance and relative isolation from other lynx habitats and populations prevents the consistent immigration needed to provide the demographic stability that may be necessary to maintain a viable lynx population, or (c) that a combination of these factors has prevented these areas from historically supporting lynx populations over time.

The best available information does not allow us to simply measure and map each of the physical and biological features essential to lynx and thus distinguish areas that contain each in adequate quantity and spatial arrangement from other areas that do not (see also

Criteria Used to Identify Critical Habitat,

below). Nor does it allow us to determine at what specific distance and relative level of isolation from other lynx habitats and populations a particular area becomes unlikely to receive adequate demographic input (via immigration from other populations) thought to be necessary for population viability and persistence. Regardless, it is informative that Colorado and the Southern Rockies failed to attract lynx and support establishment and maintenance of lynx populations in the wake of two unprecedentedly large irruptions of lynx from Canada into the western United States in the early 1960s and again in the early 1970s (McKelvey

et al.

2000a, pp. 219, 242). To what degree this failure resulted from the marginal quality of the habitat versus the area's distance and relative isolation is unclear. However, it is clear that, while lynx were unable to establish and maintain populations in Colorado or elsewhere in the Southern Rockies, other lynx populations in the DPS, where we have designated critical habitat, did persist, despite being exposed to similar habitat threats and harvest pressures. That is, we have no indication that habitat loss, degradation, or fragmentation or trapping pressures were greater in the Southern Rockies than in places where lynx populations persisted despite them. In fact, trapping lynx was prohibited in Colorado (1970) and Wyoming (1973) long before it was prohibited in most other States within the range of the DPS (Maine-1967, Minnesota-1984, Washington-1990, Idaho-1996, Montana-2000).

Finally, although recent climate projections suggest that snow water equivalent (the amount of water held in a given amount of snow) may decline less in Colorado than in other areas of the Southwest, it is nonetheless projected to decline by 26 percent by the end of this century (Garfin

et al.

2014, p. 466). This will likely translate to a reduction in the areas that will continue to have snow conditions that provide a competitive advantage to lynx over bobcats and other hare predators. Additionally, when specifically modeling potential impacts of climate change on lynx, researchers concluded that potential snow and boreal forest habitat refugia were most likely to occur in the Bridger-Teton National Forest in northwestern Wyoming, the Superior National Forest in northeastern Minnesota, and across western Canada, while high-elevation parts of Colorado

are among the areas vulnerable to the loss of potential lynx habitat in the long term (Gonzalez

et al.

2007, pp. 4, 8). Even if suitable snow conditions persist in Colorado and boreal and subalpine forests move upslope with continued climate warming, the amount of potential lynx habitat, already considered patchy and relatively isolated, will likely decrease, becoming even more patchy and isolated and less capable of supporting lynx populations over time.

For these reasons, we conclude that habitat in Colorado and other parts of the Southern Rockies is marginal, naturally fragmented, and disjunct; that it has not been historically capable of supporting natural resident lynx populations; that it has not been demonstrated to contain all of the physical and biological features essential to lynx in adequate quantity and spatial arrangement to support lynx populations over the long term (i.e., it does not contain the PCE); and that it is not essential to the conservation of the DPS. Therefore, we have not designated critical habitat for lynx in Colorado or elsewhere in the Southern Rocky Mountains.

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Comment:

One peer reviewer, one Federal agency commenter, and several other commenters took exception to our description of the translocation of lynx from Alaska and Canada to Colorado as an “introduction” rather than a “reintroduction.”

Our Response:

As described above in our responses to comments (10), (11), and (23), we believe the weight of verified evidence suggests that Colorado did not historically support a resident native lynx population, and that the few verified records of lynx prior to the introduction of the current population were likely transient, dispersing animals. Although the translocation of lynx from Alaska and Canada to Colorado has often been referred to as a reintroduction, including in some documents by the Service, we believe it represents the establishment of a lynx population in a place that, based on our evaluation of the best available information, apparently did not support one previously and, therefore, is more accurately described as an introduced population. We have clarified the text throughout this rule to indicate that our use of the term “introduction” refers to the establishment of a lynx population in Colorado, as opposed to the reintroduction of individual lynx into an area where individual lynx rarely occurred historically.

Comments From States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from States regarding the proposal to designate critical habitat for the lynx DPS are addressed below. Other comments from States pertaining to other issues that may be beyond the scope of this final revised critical habitat designation (e.g., the lynx DPS's listing status under the Act, etc.) will be addressed in separate letters to the States.

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Comment:

The Maine Department of Inland Fisheries and Wildlife supported our determination that the Van Buren and Herseytown-Staceyville areas of Maine, which we proposed to designate and which we have designated as lynx critical habitat in this final rule, contain the PCE and may be essential to lynx conservation. However, the agency provided its opinion that these areas were likely not occupied by lynx at the time of listing and included documentation of standardized lynx surveys conducted in northwestern Maine in 1995-1999 and 2003-2008, and other confirmed lynx occurrences from 1995-2000.

Our Response:

We reviewed the survey information provided by the agency and determined that the 1995-1999 and 2003-2008 surveys did not adequately cover the Herseytown-Staceyville or Van Buren areas and, therefore, do not sufficiently demonstrate that lynx were absent from these areas at the time of listing. We have reviewed additional lynx record data that indicate lynx have occupied the Herseytown-Staceyville and Van Buren areas historically and since the lynx DPS was listed under the Act, and which demonstrate occupancy at the time of listing in adjacent towns (Hoving 2001, pp. 16, 170-179; Hoving

et al.

2003, entire; U.S. Fish and Wildlife Service 2013c, entire). For these reasons, we find that the best available information indicates that the newly designated Van Buren and Herseytown-Staceyville areas were likely occupied by lynx at the time of listing and that these areas contain the PCE. Also see our response to comment (3), above, and

Recent Lynx Occurrence and Reproduction in Northern New Hampshire, Northern Vermont, and Eastern and Western Maine,

below).

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Comment:

The Idaho Department of Lands noted that the proposed rule included 26 acres (0.04 mi

2

(0.1 km

2

)) of State Endowment Trust lands in northern Idaho. The agency provided forest inventory data suggesting that most of the area consists of forest types not considered suitable for lynx and requested that these lands not be designated as critical habitat.

Our Response:

Although these State Endowment Trust lands do not consist entirely of forest types considered hare and lynx foraging habitat, more than a third of the area is subalpine fir, which is considered foraging habitat. The other portion of this land is consistent with the definition of matrix habitat in the PCE, which is considered an essential feature of lynx critical habitat and is a component of the PCE. Further, while this parcel is at the edge of the designated area, it is surrounded by and contiguous with other similar forest types that also meet the criteria for critical habitat despite being composed of both foraging and non-foraging (i.e., matrix) habitats. We have determined that these State lands contain the physical and biological features (PBFs) essential to the conservation of the lynx DPS and that they are part of the landscape that has supported a resident lynx population over time. Therefore, we have determined that these State Endowment Trust lands contain the PCE, and we have included this area within the final critical habitat designation.

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Comment:

The New Mexico Department of Agriculture requested that the State-boundary-based DPS range remain in place and that New Mexico be specifically excluded from it. The agency believes that a geographical DPS boundary based on the habitat requirements of lynx is more appropriate than the proposed revised “verbal definition” of the DPS that would extend the Act's protections to lynx wherever they may occur in the contiguous United States. The agency feels that the proposed change could increase section 7 consultation requirements for actions on Federal lands in northern New Mexico, negatively affecting ranching operations that hold Federal grazing permits on Forest Service or BLM lands, and perhaps precluding or delaying range improvement and watershed restoration projects on these lands.

Our Response:

Our 2000 listing rule (65 FR 16052) and our 2003 clarification of findings (68 FR 40076) used State boundaries within what we understood to be the range of lynx in the contiguous United States at that time. Subsequently, lynx associated with the introduced population in Colorado were confirmed in northern New Mexico. Revising the existing range of the DPS with this rule addresses that

inconsistency between the current range of lynx and how the lynx DPS was delineated so that the lynx DPS is now consistent with our DPS policy. Because lynx may be present in northern New Mexico, Federal land managers and agencies that may authorize, fund, or permit activities where lynx may be present should review their actions to determine whether consultation with the Service is necessary to ensure that such activities do not jeopardize the lynx DPS. However, we do not foresee a dramatic increase in section 7 consultations because most of the potential lynx habitat in New Mexico occurs on the Carson and Santa Fe National Forests, and these Federal lands managers already coordinate with the Service to avoid potential impacts to lynx and their habitats. Further, because grazing by domestic livestock is not likely to adversely affect hare or lynx habitats (Interagency Lynx Biology Team 2013, p. 85), we do not anticipate additional regulatory burdens to Federal grazing permit holders. Finally, range improvement and watershed restoration projects can include measures to conserve lynx and hare habitats, and these considerations are unlikely to preclude or substantially delay such projects.

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Comment:

The New Mexico Department of Game and Fish commented that the likelihood of lynx entering and establishing a population in New Mexico remains remote, and the agency is extremely concerned that the extension of ESA protections to individual animals that may enter the State will have significant economic, cultural, and management impacts to currently lawful activities such as hunting, trapping, agency-approved wildlife management activities, and various other activities on public and private lands in northern New Mexico. The agency expressed concern that the level of these impacts may require the Service to conduct at least an environmental assessment and potentially an environmental impact statement to address them.

Our Response:

We agree that it is unlikely that lynx entering New Mexico from the introduced population in Colorado will establish a self-sustaining population in New Mexico. However, because at least 60 lynx are documented to have traveled into New Mexico after their release in Colorado (Shenk 2007, p. 10; U.S. Forest Service 2009, pp. 9-10), the “may be present” standard for initiating section 7 consultation between the Service and Federal land managers and permitting agencies in northern New Mexico may be met for actions in these areas. Therefore, Federal land managers and agencies that carry out, fund, or permit activities that may affect lynx or lynx habitats should review their actions to determine whether consultation with the Service is necessary to ensure that these activities do not jeopardize the lynx DPS. We do not anticipate significant restrictions on otherwise lawful activities as a result of these consultations, and we expect little if any impacts to private landowners because activities on private lands would only undergo section 7 consultation if they had a Federal nexus (also see our responses to comments (8) and (16), above). Because the Act does not allow us to consider economic or social impacts when making listing determinations (such as redefining the range or boundaries of a listed species), it is not necessary, and would be inappropriate, to conduct NEPA analysis on the revision to the lynx DPS range.

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Comment:

The Wyoming Game and Fish Department, the county commissions of Lincoln, Park, Sublette, and Teton Counties, the Coalition of Local Governments representing the county commissions and conservation districts for Lincoln, Sweetwater, Uinta, and Sublette Counties, the State of Wyoming Select Committee on Federal Natural Resource Management, and the Wyoming Governor's Office all oppose the designation of lynx critical habitat in Wyoming, and in particular the proposed additions of lands in Grand Teton National Park in Teton County and on BLM, State, and private lands in Sublette and Lincoln Counties. Most of these commenters contend that habitats in Wyoming, including the proposed additions, do not contain the features essential to lynx and that evidence is lacking that they are occupied by lynx or that they currently support or historically supported a resident lynx population. They believe critical habitat designation in Wyoming, including in the additional areas, will have substantial impacts on economic development and management of other resources. Several of these commenters requested that the Service (a) designate lynx in Wyoming as an experimental, nonessential population in accordance with section 10(j) of the Act, and (b) collaborate with State agencies within the range of the DPS to complete a recovery plan for lynx prior to designating critical habitat so that the recovery plan can inform the eventual designation. Several other commenters similarly oppose designation in Wyoming, including the proposed additions, and one specifically opposes designation of any lands within the Shoshone National Forest. Many other commenters support the proposed additions to critical habitat in the GYA.

Our Response:

In our previous evaluations of critical habitat for lynx, we determined that habitats in the GYA, including portions of northwest Wyoming in Yellowstone National Park and the Bridger-Teton and Shoshone National Forests, contain the physical and biological features essential to the conservation of lynx, and that the area has a long history of lynx presence (70 FR 68294; 74 FR 8619, 8643-8644). As described in our response to comment (17), above, habitats in the GYA have been demonstrated to contain the essential features in sufficient quantity and spatial arrangement because they (a) have supported a small but persistent lynx population over time, and (b) were occupied by lynx at the time of listing (Squires and Laurion 2000, entire; Squires

et al.

2001, entire; Murphy

et al.

2006, entire). Therefore, the GYA meets our criteria for designation as critical habitat.

In northwestern Wyoming and the GYA, lynx are generally associated with the Rocky Mountain Conifer Forest vegetation class, which is dominated by subalpine fir, Engelmann spruce, and lodgepole pine, and which often occurs in a patchy distribution within a mosaic of other vegetation types that do not support snowshoe hares at densities adequate to provide lynx foraging habitat (73 FR 10866). In areas with patchily distributed foraging habitats, like those typical of the GYA, lynx home ranges incorporate extensive areas of non-foraging “matrix” habitats that are used primarily for travel between patches of foraging habitat (74 FR 8644). Therefore, lynx home ranges and designated critical habitat in the GYA may contain substantial areas that do not contain all of the physical and biological features essential to lynx. However, such areas are a necessary component of the landscape that does contain the features. The areas of Grand Teton National Park and the predominantly BLM-managed lands east and south of the Bridger Teton National Forest that we have added to this final critical habitat designation also include matrix habitats, but they are part of the larger landscape that has supported a resident lynx population and, therefore, contains the PCE.

Although habitat information and mapping for the areas we have added to the critical habitat designation in Wyoming were not received in time to evaluate them during the preparation of our previous designation in 2009, it was clear that lynx habitat did not stop at the boundary of the Bridger-Teton

National Forest. However, we designated critical habitat based on the best information available at the time. Since then, additional and refined habitat mapping has become available for these areas, along with recent verified use by lynx and/or information on hare habitats and abundance (U.S. Fish and Wildlife Service 2013a, entire; 2013b, entire). The areas we have added to the designation in Wyoming are natural extensions of adjacent designated lynx habitats and are part of the landscape that supports the GYA's small but persistent lynx population. We have worked closely with both the National Park Service and the BLM in Wyoming to ensure that our designation reflects the most appropriate interpretation of the best available information on lynx occurrence and habitat distribution so that our designation most accurately encompasses the areas that contain the features essential to the conservation of the lynx DPS.

Finally, the Act does not allow us to designate an existing population as a 10(j) experimental, nonessential population. The section 10(j) provision of the Act can be applied only in cases where no population currently exists and is effective only upon release of animals brought from other populations. The best available information indicates that northwestern Wyoming had a small lynx population historically and at the time of listing, and that a small number of lynx currently persist and reproduce in the State. Thus, we cannot designate the Wyoming lynx population as a 10(j) nonessential experimental population because doing so would not conform to the Act.

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Comment:

The Montana Department of Natural Resources and Conservation (MDNRC) requested that we exclude lands covered by the MDNRC Forested State Trust Lands HCP from critical habitat designation in accordance with section 4(b)(2) of the Act, and the Washington State Department of Natural Resources (WDNR) requested that we similarly exclude lands covered by the WDNR Lynx Habitat Management Plan. Several other commenters requested that MDNRC lands not be excluded from designation, either because they felt these lands are essential to the conservation of the lynx DPS or because the MDNRC HCP is the subject of an ongoing court case.

Our Response:

We have weighed the benefits of designating the lands covered by these plans against the benefits of excluding them, and we have determined that the benefits of excluding them outweigh the benefits of including them in the final designation. Therefore, we have excluded the lands covered by both these conservation plans from lynx critical habitat. More details regarding our analyses of the benefits to lynx of these plans are presented in the Consideration of Impacts under section 4(b)(2) of the Act section, below (and see our response to comment (16), above). The Service and the MDNRC are currently defending the HCP in a lawsuit that challenges the HCP's adequacy with regard to the conservation of grizzly bears and bull trout. The HCP's adequacy with regard to lynx conservation was not challenged in the lawsuit.

(31)

Comment:

The Washington Department of Fish and Wildlife (WDFW) agreed that the Kettle Range of northeastern Washington did not support a lynx population at the time of listing. Despite this, WDWF suggested that we consider designating the area because it may support lynx movement between larger areas of habitat in the Selkirk and Cascade Mountains, and because a lynx population could become re-established in the future because lynx harvest no longer occurs there and habitat conditions may improve as parts of the area continue to recover from large fires in the 1980s. Conversely, the Board of County Commissioners for Stevens County, Washington, supported our decision not to designate critical habitat in northeastern Washington.

Our Response:

The Kettle Range in northeastern Washington historically supported a lynx population (Stinson 2001, pp. 13-14), and boreal forest habitat within the Kettle Range appears to contain habitat for lynx; however, there is no evidence that the area was occupied by lynx at the time of listing. The Kettle/Wedge area was included as a core area in the recovery outline despite lacking recent evidence of reproduction and, therefore, did not completely meet the core area criteria in the outline (U.S. Fish and Wildlife Service 2005, pp. 3-5, 21). Moreover, while the Kettle Range contains physical and biological features important to lynx, its spatial configuration and quantity of habitat do not appear to be sufficient to provide for the conservation of lynx. Additionally, we are aware of no evidence that lynx travel between the Northern Rockies and the North Cascades via northeastern Washington. As with other areas that were not occupied at the time of listing (and described in more detail in our response to comment (32), below), we could not designate the Kettle/Wedge area as critical habitat unless we determine that the DPS could only be conserved and recovered if we were to do so (i.e., that the area is essential to the conservation of the DPS). We have not determined that this area is essential to the conservation and recovery of the DPS and we have not designated critical habitat in the Kettle/Wedge area in this final rule.

Public Comments

(32)

Comment:

We received many public comments requesting that we designate additional areas as critical habitat, including the Southern Rocky Mountains (parts of western Colorado, northern New Mexico, northeastern Utah, and south-central Wyoming), the Kettle/Wedge and other areas of northeastern Washington, Oregon, additional areas of northern Idaho and western Montana, parts of central and southeastern Idaho, additional areas in northern Minnesota, and parts of northern New Hampshire and northern Vermont. Some commenters felt we should designate critical habitat in all areas identified as “core areas” in the recovery outline (U.S. Fish and Wildlife Service 2005, entire), while other commenters felt that “secondary” and “peripheral” areas identified in the outline also should be designated.

Our Response:

Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Section 3(5)(C) also states that critical habitat “shall not include the entire geographical area which can be occupied by the threatened or endangered species” except when the Secretary determines that the areas are essential for the conservation of the species. The term “conservation” as defined in section 3(3) of the Act means “to use and the use of all methods and procedures which are necessary to bring an endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary.”

With the exception of parts of western Colorado, where a lynx population was introduced just prior to our listing the DPS as threatened, there is no evidence that the places mentioned above were occupied by resident lynx populations at the time of listing and, for most, no

evidence that they are currently occupied by lynx or that they contain the PCE. In order to designate critical habitat in areas not occupied at the time of listing, we must determine that those areas are essential to the conservation and recovery of the DPS (i.e., that the DPS could only be conserved and recovered if we were to designate those areas). To determine what is essential to conservation and recovery, we must look at the threat for which the DPS was listed and determine whether designating unoccupied areas would contribute meaningfully to addressing and ameliorating that threat. The lynx DPS was listed as threatened due to the inadequacy, at the time of listing, of existing regulatory mechanisms and, unlike many species listed under the Act, not to any substantial documented population decline or significant range contraction (65 FR 16071-16082; 68 FR 40084-40101). We have determined that designating areas not occupied by lynx at the time of listing would not meaningfully address or ameliorate the threat for which the DPS was listed and that doing so would not improve the likelihood of recovery (the point at which the protections of the Act are no longer necessary and delisting the DPS would be appropriate). We do not find that the DPS can only be conserved and recovered if we were to designate areas not occupied at the time of listing. Because these areas are not essential to the conservation and recovery of the DPS, designating them would not comply with the Act. Therefore, we have not designated critical habitat in areas that were not occupied by lynx at the time of listing.

Parts of Colorado were occupied by an introduced population of by lynx at the time of listing. However, habitats there apparently did not historically support a resident lynx population, and we have determined that these areas likely do not contain the physical and biological features essential to lynx in adequate quantity and/or spatial arrangement to support a lynx population over time. For additional details regarding our evaluation of the historic record of verified lynx occurrence in Colorado and the Southern Rockies and of the quality of potential lynx habitats there, see our responses to comments (10), (11), and (23), above, and

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

under the

Criteria Used to Identify Critical Habitat

section, below.

In the recovery outline, we defined six core areas for lynx as those having

both

persistent verified records of lynx occurrence over time

and

recent evidence of reproduction (U.S. Fish and Wildlife Service 2005, pp. 3-5, 20-21). However, as discussed above in our response to comment (31), the Kettle/Wedge area of northeastern Washington was included as a core area despite lacking recent evidence of reproduction and, therefore, it did not completely meet the core area criteria in the outline. We also defined the Southern Rocky Mountains of Colorado and southern Wyoming as a “provisional” core area because it contained an introduced lynx population that had demonstrated reproduction (U.S. Fish and Wildlife Service 2005, p. 4). Colorado otherwise does not meet the outline's criteria for core areas because prior to the introduced population it lacked persistent verified records of lynx occurrence over time. Southern Wyoming also lacked such records and also had no evidence of recent reproduction. Aside from these two areas (Kettle/Wedge and Southern Rockies), we have designated critical habitat that includes the vast majority of the other areas identified as core areas in the recovery outline.

Regardless, the methodology we used in defining areas for lynx critical habitat did not mirror that used for the lynx recovery outline, although it did reflect the biological concepts considered in the recovery outline. We used the best scientific information available in determining which areas contained the features essential to the conservation of lynx. The areas we determined to be essential for the conservation of lynx do not include all the areas identified in the recovery outline. The criteria we used for determining areas essential to the conservation of lynx for the revised critical habitat designation are based on the critical habitat requirements of the Act, which are more selective than those used for delineating the recovery areas in the outline. The recovery outline more broadly encompasses older records of lynx, and the areas in the recovery outline were mapped conceptually, include substantial areas that do not contain the physical and biological features essential for lynx, or are both unoccupied and not essential for lynx conservation, and, therefore, do not meet the definition of critical habitat. We refined our mapping for the purposes of designating critical habitat in order to meet the statutory requirements associated with critical habitat. As a result, areas determined to be essential to the conservation of lynx for the purposes of critical habitat did not include all the areas delineated in the recovery outline.

(33)

Comment:

One commenter contends that, because we acknowledge that the best available information does not allow us to simply measure and map all the physical and biological features essential to lynx across the range of the DPS, we have failed to demonstrate that designated areas actually contain all the essential features and, therefore, we should withdraw the designation until we have information adequate to map only those areas that contain all of the essential features. Another commenter argued that, because we concede that the best available information does not allow specific quantification of the essential physical and biological features, it is inappropriate to use “adequate quantity and spatial arrangement” of these features as a prerequisite for critical habitat and we should designate all areas that demonstrate they contain some quantity of the features.

Our Response:

The Act does not require that we have perfect information before designating critical habitat, only that we make our designations appropriately based on the best available information. Because we lack perfect information and tools adequate for measuring the precise distribution of all the essential features across the broad range of the DPS we must look at the history of verified lynx records, the results of lynx and hare surveys and habitat assessments, and evidence of an area's ability to support lynx over time to evaluate the historic and current distributions of habitats that contain the essential features. We have evaluated the available scientific and commercial information and believe that this critical habitat designation appropriately relies on that information to distinguish between areas that demonstrably contain the essential features in adequate quantity and spatial arrangement to support lynx populations and which, therefore, are essential to the conservation and recovery of the DPS from other areas for which such evidence is lacking.

(34)

Comment:

Several commenters stated that we failed to identify and designate critical habitat in important linkage corridors they believe are essential to the conservation of the DPS. Other commenters believe that we should designate critical habitat in northeastern Washington because it serves as an important linkage between lynx populations in the Northern Rockies of Montana and Idaho and those in the North Cascades of north-central Washington.

Our Response:

We agree that providing protection for travel and dispersal are important for maintaining lynx populations over time. Critical habitat is designated for the

conservation of the PCE essential to the conservation of the lynx and necessary to support lynx life-history functions. The PCE comprises the essential features of the boreal forest types that provide, for example, prey, reproduction and denning habitat, and snow conditions that give lynx a competitive advantage over other hare predators. Critical habitat for lynx does provide habitat connectivity for travel within home ranges, and exploratory movements and dispersal within critical habitat units. Critical habitat in the final rule was delineated to encompass occupied areas containing features essential to the conservation of the lynx to provide connectivity within the particular regional unit and to maintain direct connectivity with lynx populations in Canada.

Lynx populations in the contiguous United States are believed to be influenced by lynx population dynamics in Canada, and many of these populations in Canada are directly interconnected with U.S. populations. Therefore, retaining connectivity with the larger lynx population in Canada is thought to be important to ensuring long-term persistence of lynx populations in the United States. However, lynx are wide-ranging animals with a well-documented ability to make long journeys across both suitable and unsuitable habitats (68 FR 40079), and there is no evidence that human-caused factors have significantly reduced the ability of lynx to disperse or resulted in the loss of genetic or demographic interchange (65 FR 16079). As we highlighted in our response to comment (22), above, although the level of diminished connectivity at which DPS populations could be affected is unknown, we have no evidence that current levels of connectivity between lynx populations in the DPS and those in the core of the lynx's range are inadequate to maintain the genetic and demographic health of DPS populations or that this situation is likely to change in the foreseeable future. Finally, as stated above in our response to comment (31), we are aware of no evidence that lynx travel between the Northern Rockies and the North Cascades via northeastern Washington.

(35)

Comment:

Some commenters questioned the adequacy of the environmental assessment and other aspects of our compliance with NEPA. They felt that the draft environmental assessment lacked information, did not address recovery, and did not address the full range of alternatives. Some recommended an alternative that includes all core areas identified in the recovery outline. Some felt that we should prepare an environmental impact statement (EIS) on this action.

Our Response:

We have complied with the requirements of NEPA for this critical habitat designation for lynx. An EIS is required only in instances where a proposed Federal action is expected to have a significant impact on the human environment. We prepared a draft environmental assessment and a draft economic analysis of the effects of the proposed designation to determine whether designation of critical habitat would have significant impacts. A notice of availability for public review of these documents was published in the

Federal Register

on June 20, 2014 (79 FR 35303). The draft documents have been available since that date on our Web site (

http://www.fws.gov/mountain-prairie/species/mammals/lynx/index.htm

), at

www.regulations.gov,

and by request from the Service's Montana Field Office. We accepted public comment for 30 days after the posting. Following consideration of public comments, we prepared a final environmental assessment and determination that critical habitat designation does not constitute a major Federal action having a significant impact on the human environment. That determination is documented in our Finding of No Significant Impact (FONSI). Both the final environmental assessment and FONSI are available on our Web site and at

www.regulations.gov

(also see

ADDRESSES

section of this rule).

The environmental assessment was prepared for this rule to identify alternatives, identify and analyze significant issues, and determine whether additional analysis was required in an EIS. Two alternatives were considered in the EA: The No Action (Baseline) Alternative and the Proposed Action. Two other alternatives were considered but not brought forward for analysis. The two alternatives not considered further were: (1) Critical habitat designation of all areas within the geographic range of the lynx in the contiguous United States, and (2) designation of all recovery areas (including core areas) as described in the lynx recovery outline. These alternatives were not carried forward because the Act specifies that, except in circumstances determined by the Secretary, critical habitat shall not include the entire geographic area that can be occupied by the species, and the recovery outline was not analyzed as an alternative because it did not meet the criteria for critical habitat defined in the proposed rule.

The designation of critical habitat itself is not a recovery action, but identifies geographic areas that have the primary biological and physical elements necessary for conservation of lynx and that may require special management. We recognize that designation of critical habitat may not include all of the habitat area that may eventually be determined to be necessary for the recovery of a species. Critical habitat designations made on the basis of the best available information will not control the direction and substance of future recovery plans or planning efforts.

Comments on the Economic Analysis

(36)

Comment:

The Small Business Association Office of Advocacy (Advocacy) expressed concern that we improperly certified that the proposed rule would not have a significant impact on a substantial number of small businesses based on the mistaken belief that critical habitat designations only impact Federal agencies. Advocacy asserts that small businesses, especially in the forestry industry, are concerned that we are not considering the impact this designation will have on the industry, and that we should publish an Initial Regulatory Flexibility Analysis (IRFA).

Our Response:

Our assessment of our responsibilities under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.

), including the need for an IRFA, was provided in the Required Determinations—Amended section of the Notice of Availability published in the

Federal Register

on June 20, 2014 (79 FR 35308) and is reaffirmed in the Required Determinations section of this final rule (below). We evaluated the potential timber-related effects of the critical habitat designation in our environmental assessment (U.S. Fish and Wildlife Service 2014, pp. 35-44, 81-82) and both our 2008 and 2014 economic analyses (IEc, Inc. 2008, 4-1—4-39; U.S. Fish and Wildlife Service and IEc, Inc. 2014, pp. 6-15). We concluded that critical habitat designation was unlikely to result in significant impacts to timber-related activities because these activities on Federal lands or for which a Federal nexus exists already must undergo consultation, because the additional prohibition on the destruction or adverse modification of designated critical habitat is unlikely to result in additional conservation measures or restrictions, and because these activities on private lands for which there is no Federal nexus typically will not require consultation under section 7 of the Act.

(37)

Comment:

Multiple commenters stated that the economic screening analysis did not comply with ESA

Section 4(b)(2) or the 2010 Wyoming District Court decision, which enjoined the critical habitat designation in Washington State due to inadequacies that the court identified in the Service's 2009 critical habitat rulemaking. The commenter states that based on the Tenth Circuit's decision in

New Mexico Cattle Growers Association

v.

U.S. Fish & Wildlife Service,

248 F. 3d 1277, 1285 (10th Cir. 2001), the District Court concluded that the Service cannot focus solely on the “quantifiable discounted future incremental costs.” One commenter noted that the screening analysis used the baseline model and considered only the incremental effects of the designation of critical habitat. The commenter stated that new Service guidance endorsing the baseline approach does not relieve the Service from the order issued by the District Court in this case. The commenter goes on to state that the approach used in the screening analysis forecloses any possibility that the Service would give meaningful consideration to Washington State Snowmobile Association's (WASSA's) Section 4(b)(2) exclusion request.

Our Response:

The Service relied on both the economic screening analysis prepared for this revised designation (U.S. Fish and Wildlife Service and IEc, Inc. 2014, entire) and the Economic Analysis it prepared for the 2009 designation (IEc, Inc. 2008, entire) to evaluate the potential economic impacts from the critical habitat designation and to give meaningful consideration to the WASSA's exclusion request. The WASSA provided detailed comments about potential economic impacts, which were also considered by the Secretary when she determined whether or not to exclude any areas as a result of economics under section 4(b)(2) of the ESA.

(38)

Comment:

Multiple commenters stated that the economic analysis should consider impacts to all 41,547 square miles proposed for designation. One commenter stated that the

Federal Register

notice accompanying the DEA attempts to limit the analysis to consider just the incremental “administrative costs of the 11 percent of the proposed critical habitat that is not already designated.” The commenter stated that the screening analysis must include an analysis of the economic impacts of the entire designation that is being proposed.

Our Response:

Section 3 of the screening analysis does consider the incremental costs of the proposed rule across all 41,547 square miles proposed as critical habitat for the Canada lynx. In that section, we concluded that section 7-related costs of designating revised critical habitat for the lynx are likely to be limited to the additional administrative effort required to consider adverse modification based in part on the fact that all areas proposed as critical habitat lands are considered to be currently occupied by the species, which provides the species significant baseline protection under the Act. We then estimated the administrative cost of addressing adverse modification during the section 7 consultation at approximately $320,000 per year based on a future consultation rate of 12 formal consultations, 101 informal consultations, and 48 technical assistances per year. Because this estimate may overstate the consultation rate for some field offices that were unable to limit the consultation history to only those areas proposed as critical habitat, it is likely conservative (i.e., it is more likely to overestimate these costs than it is to underestimate them). Section 4 of the screening analysis discusses other, non-section-7 effects of the proposed designation. These effects are only considered in newly added critical habitat, which consisted of 888 mi

2

or two percent of the proposed critical habitat. The analysis of other, non-section-7 costs was limited to newly added areas because these are areas where the revised designation may increase awareness among project proponents of the presence of the lynx and/or the need for lynx conservation. We also note that we carefully considered the Final Economic Analysis prepared for the 2009 designation (IEc, Inc. 2008, entire) when considering areas for exclusion in this final rule under section 4(b)(2) of the ESA.

(39)

Comment:

One commenter stated that the screening analysis fundamentally fails to account for proposed changes to the definition of “destruction or adverse modification” currently under consideration at 79 FR 27060. The commenter stated that the Service's conclusion that there will be no meaningful economic impacts is premised on the overlap between restrictions imposed under the jeopardy standard and the destruction or adverse modification standard. The commenter contended that the Service must analyze whether those assumptions hold true in light of proposed regulatory changes to the Service's definition at 50 CFR 402.02. According to the commenter, these concerns are particularly relevant with respect to fire ecology management on dry forest lands in Washington and Wyoming, as the proposed rule for revising the definition of adverse modification indicates that an activity could adversely modify critical habitat by preventing successional changes such as stand-replacing fires.

Our Response:

On May 12, 2014, we and the National Marine Fisheries Service published in the

Federal Register

and invited public comment on a proposed rule to revise the definition of “destruction or adverse modification” of critical habitat (79 FR 27060-27066). In the proposed rule we stated: “In proposing a new definition for `destruction or adverse modification,' and setting out the accompanying clarifying discussion in this Preamble, the Services are establishing prospective standards only. Nothing in these proposed revised regulations is intended to require (now or at such time as these regulations may become final) that any previously completed biological opinions must be reevaluated on this basis” (79 FR 27062). Similarly, we do not intend to evaluate the proposed revised definition's potential implications for this or other critical habitat designations, or to retroactively apply the eventual final definition to previously completed designations.

Regardless, because section 7 consultations addressing the jeopardy standard for lynx already do, and likely will continue to, focus largely on potential impacts to snowshoe hare (i.e., lynx foraging) habitats, we do not expect the revised definition to appreciably diminish the overlap between restrictions imposed under the jeopardy standard and the destruction or adverse modification standard. Additionally, fire ecology management activities discussed by the commenter are unlikely to be undertaken solely to avoid adverse modification to lynx critical habitat resulting from wildfires, but also to protect other uses of forests in which these activities would be undertaken. Therefore, even without the critical habitat designation, fire ecology management activities are likely to occur in these areas.

(40)

Comment:

Multiple commenters expressed concern about increased litigation-related costs associated with the final critical habitat rule. One commenter states that future claims may be brought against Federal agencies and developers alleging that a given project causes “adverse modification” of critical habitat or asserting a higher analytical burden under the NEPA as a result of a project's location in critical habitat.

Our Response:

The Service does not consider the costs of litigation surrounding the critical habitat rule when considering the economic impacts of the rule itself. The extent to which litigation specifically regarding critical

habitat may add to the costs of the critical habitat designation is uncertain. While designation of critical habitat may stimulate additional legal actions, data do not exist to reliably estimate such impacts. That is, estimating the number, scope, timing, and costs of potential future legal challenges would require significant speculation.

(41)

Comment:

One commenter stated that the screening analysis fails to account for the economic impact associated with unintentional impacts on forest management practices. The commenter stated that critical habitat designations negatively impact forest management practices by either creating too much “red tape” or by providing litigation angles to stop forest management projects, resulting in a decrease in forest health, an increase in catastrophic wildfires, and an increase in response to those wildfires.

Our Response:

The only forest management practices that may be impacted by the designation of critical habitat are those that occur on Federal lands or which require Federal funding, authorization, or permits. The Federal agency that manages the land or which funds, authorizes, or permits these activities must consult with the Service to ensure that their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of their designated critical habitats. This final rule designates critical habitat for lynx only in areas that are currently occupied by lynx and which, therefore, already undergo section 7 consultations for projects that could affect lynx. Because these consultations already focus on impacts to lynx habitats, the additional effort and cost to formally evaluate whether they will destroy or adversely modify designated critical habitat are expected to be minor and thus unlikely to result in unintentional impacts or additional economic or regulatory burdens.

We are aware of no evidence suggesting that the designation of critical habitat will cause a decrease in forest health or an increase in catastrophic wildfires and associated responses, and none was provided by the commenters. Additionally, ecosystem restoration activities intended to reduce the risk of large, stand-replacing fires generally occur outside of lynx habitat in dry and mesic forest types at lower elevations (Interagency Lynx Biology Team 2013, p. 76). Because fire management activities are generally concentrated outside of lynx habitat, we do not expect the critical habitat designation to negatively affect forest management practices intended to decrease the risk of catastrophic wildfires. Finally, as described in our response to comment (40) above, the extent to which critical habitat designation may result in increased litigation is uncertain and speculative.

(42)

Comment:

One commenter stated that the economic screening analysis should include costs of increased wetland mitigation required by the U.S. Army Corps of Engineers or by the U.S. Environmental Protection Agency in critical habitat areas.

Our Response:

As stated in Section 2 of the screening analysis, we base our forecast of future consultations on the robust consultation history available for the species as well as supplemental information provided by various Service field offices that consult on lynx. The consultation record does include several consultations for wetland mitigation projects; therefore, the administrative costs related to wetland mitigation activities are included in the estimates of incremental impacts included in the screening analysis. As discussed in Section 3, based on the substantial baseline protections afforded the lynx and the close relationship between adverse modification and jeopardy in occupied habitat, the incremental costs of the critical habitat designation are unlikely to result in any project modifications incremental to (i.e., above and beyond) the baseline.

(43)

Comment:

One commenter stated that economic impacts in Wyoming will be greater than those described in the screening analysis. The commenter stated that, both in perception and reality, the threats of critical habitat designation on multiple-use lands in the expansion area chills activity and will have substantial impacts on economic development and management of other resources. According to the commenter, resource managers in the affected area note that critical habitat creates significant roadblocks for the development of projects that can benefit other wildlife species, recreational opportunities, and local and State economies. The commenter requests that the Service conduct a new economic analysis that considers the real costs of expanding critical habitat in Wyoming.

Our Response:

As stated in Section 3 of the screening analysis, we expect incremental costs to be limited to administrative costs based in part on the fact that all areas proposed as critical habitat lands are considered to be currently occupied by the species, which provides the species significant baseline protection under the Act. To estimate the magnitude of incremental costs, we rely on the robust consultation history as well as outreach to relevant Service field offices and other Federal stakeholders. In addition, the screening analysis considers information from publically available sources and public comments submitted in response to the proposed critical habitat rulemaking. Other, non-section-7 incremental costs are considered in Section 4 of the screening analysis. The commenter did not provide additional, actionable data or evidence of the categories of impacts raised in the public comment that could be used to revise the screening analysis.

(44)

Comment:

One commenter stated that the fact that the screening analysis projects only 1 informal consultation per year in Washington and that the Service's Incremental Effects Memorandum (IEM) indicates that there were 195 informal lynx consultations in the State between 2008 and 2014 cannot be reconciled.

Our Response:

As discussed in Section 3 of the screening analysis, geographic locations of the consultation history presented in the IEM were not readily available. Therefore, we contacted each field office to determine the subset of the consultations presented in the IEM that occur within the proposed critical habitat designation. As discussed in footnote 20 of the screening analysis, based on this follow-up, the Washington field office revised its consultation history to reflect only the subset of consultations for projects that occurred in areas proposed as critical habitat. Specifically, the Washington field office indicated that only 4 of the 195 informal consultations occurred within proposed critical habitat. This level of activity corresponds to approximately one informal consultation per year. According to the Washington field office, the relatively low consultation rate in the State of Washington is a reflection of existing conservation agreements and management plans, which minimize the administrative burden of section 7 consultation by precluding the need for action agencies to consult with the Service on each project individually.

(45)

Comment:

One commenter stated that the total cost column in Exhibit 4 of the screening analysis does not reflect the sum of the previous cost columns, and that these errors artificially deflate the related administrative costs.

Our Response:

This comment reflects a transcription error. In Exhibit 4 of the screening analysis, the column titled “Biological Assessment” actually refers to the total cost of consultation

without

undertaking a biological assessment. Total costs in the columns titled

“Service”, “Federal Agency”, and “Third Party” sum to the number in “Biological Assessment.” The column titled “Total Costs” refers to the total cost of consultation including a biological assessment. Therefore, the total cost of a biological assessment is the difference between the dollar amounts in “Total Costs” and “Biological Assessment.” When calculating total impacts, we use the amounts reported in the “Total Costs” column. The error in the table actually

overestimated

the costs in the “Biological Assessment” column but did not affect the values in the “Total Costs” column. Because we relied on the “Total Costs” column when calculating total economic impacts, there was no artificial deflation of related administrative costs.

(46)

Comment:

Several commenters stated that the screening analysis should have used administrative cost information from the “robust consultation history” rather than a review of consultation records from 2002 adjusted to current dollar values. Another commenter stated that an applicant's participation in a single formal consultation under Section 7 of the Act for an oil and gas project typically costs between $75,000 and $150,000. The commenter stated that, if the cost of addressing critical habitat is approximately 20 to 25 percent of the total cost of consultation, the total incremental administrative costs of consultation would be $18,750 to $37,500, as compared to the per consultation cost of $5,000 used in our analysis. The commenter also stated that the total cost of considering critical habitat in a biological assessment ranges between $10,000 and $50,000.

Our Response:

The consultation history for the Canada lynx is limited to information on the number of consultations per year, by field office. The Service does not collect or track information on the costs incurred by each party participating in section 7 consultations. Accordingly, the Canada lynx consultation history does not provide any additional insights on the administrative cost of section 7 consultation.

To estimate the administrative costs associated with section 7 consultation, the screening analysis relied on the best information available. As described in Exhibit 4 of the screening analysis, the consultation cost model is based on (a) data gathered from three Service field offices (including a review of consultation records and interviews with field office staff); (b) telephone interviews with action agency staff (e.g., BLM, Forest Service, U.S. Army Corps of Engineers); and (c) telephone interviews with private consultants who perform section 7 work in support of permittees. In the case of Service and Federal agency contacts, we determined the typical level of effort required to complete several different types of consultations (i.e., hours or days of time), as well as the typical Government Service (GS) level of the staff member performing this work. In the case of private consultants, we interviewed representatives of firms in California and New England to determine the typical cost charged to clients for these efforts (e.g., biological survey, preparation of materials to support a Biological Assessment). The model is periodically updated with new information received in the course of data collection efforts supporting economic analyses and public comment on more recent critical habitat rules. In addition, the GS rates have been updated annually.

Finally, even if the estimated administrative cost of section 7 consultation were adjusted upwards to $87,500 per consultation, the sum of the upper bounds estimates for incremental administrative costs of consultation and biological assessment provided by the commenter, the total incremental impacts ($14 million) still do not approach total costs in excess of $100 million in a given year; therefore it is not considered a “significant regulatory action” under the Unfunded Mandates Reform Act (see

Unfunded Mandates Reform Act,

below).

(47)

Comment:

One commenter stated that the designation of critical habitat creates a regulatory assumption that snowmobiling activity will be further curtailed, thereby discouraging future investment that is needed to support continued viability and further growth of the industry. The commenter cited sworn testimony from two members of the Washington State Snowmobile Association (WASSA), which indicates that, during the brief period that the critical habitat designation was in place in Washington, the snowmobiling industry in Washington experienced measurable economic impacts. The commenter states that the screening analysis notes these concerns but fails to meaningfully address this potential impact.

Our Response:

Section 4 of the screening analysis discusses potential impacts on snowmobiling in Washington. In this section, we note that in 2001, Washington State University and WASSA conducted a study estimating the annual economic contribution of the entire snowmobiling industry in Washington at approximately $92.7 million (2001 dollars). In response to the 2009 critical habitat designation, WASSA estimated that snowmobiling accounted for nearly $8.5 million in direct expenditures and $4.1 million in indirect spending in the Methow Valley, an area adjacent to designated critical habitat. As discussed in Section 4, annual data on snowmobiling participation in Washington since 2009 are not readily available. As such, existing data are insufficient to quantify the proportion of the annual economic contribution of the snowmobiling industry that may be affected by the final rule. In addition, stakeholders contacted for the 2014 economic analysis do not anticipate the proposed rule to result in any significant changes to the management of snowmobiling activities in Washington State. We also contacted the Maine and Minnesota Service field offices to determine whether or how snowmobiling activities may have been affected as a result of snowmobiling trails proposed in critical habitat designated there since 2009. According to these discussions, no significant changes in snowmobiling activities have been observed since the 2009 designation of critical habitat in Maine and Minnesota or since the preparation of the Final Economic Analysis of the 2009 designation (IEc, Inc. 2008, entire).

(48)

Comment:

One commenter stated that the screening analysis should include costs resulting from the uncertainty and risk imposed on developers of projects located in proposed critical habitat.

Our Response:

Section 4 of the screening analysis discusses the possible perceptional effects of the proposed rule on private property values. Specifically, this section discusses comments and concerns submitted in response to previous critical habitat rulemakings that the designation of critical habitat may affect the value of a private property due to the public perception that the Act may preclude, limit, or slow development, or somehow alter the highest and best use of the property. To assess the likelihood of such an outcome, the screening analysis examined data on development activities in areas proposed as critical habitat where the designation of critical habitat increases awareness of the presence of the species or the need for protection of its habitat. Based on the available data, we concluded that, due to low population densities, existing zoning laws, and the distance of proposed critical habitat areas from existing development or public infrastructure (e.g., public roads), the proposed critical habitat designation is

unlikely to result in measurable perceptional effects. The commenter did not provide data or informatio

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