# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Dakota Skipper and Poweshiek Skipperling > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-24184 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** October 1, 2015 - **Citation:** 80 FR 59248 ## Text DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R3-ES-2013-0017; 4500030113] RIN 1018-AZ58 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Dakota Skipper and Poweshiek Skipperling AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Dakota skipper ( Hesperia dacotae ) under the Endangered Species Act (Act). In total, approximately 19,903 acres (8,054 hectares) in Chippewa, Clay, Kittson, Lincoln, Murray, Norman, Pipestone, Polk, Pope, and Swift Counties, Minnesota; McHenry, McKenzie, Ransom, Richland, and Rolette Counties, North Dakota; and Brookings, Day, Deuel, Grant, Marshall, and Roberts Counties, South Dakota, fall within the boundaries of the critical habitat designation for Dakota skipper. We also designate critical habitat for the Poweshiek skipperling ( Oarisma poweshiek ). In total, approximately 25,888 acres (10,477 hectares) in Cerro Gordo, Dickinson, Emmet, Howard, Kossuth, and Osceola Counties, Iowa; Hilsdale, Jackson, Lenawee, Livingston, Oakland, and Washtenaw Counties, Michigan; Chippewa, Clay, Cottonwood, Douglas, Kittson, Lac Qui Parle, Lincoln, Lyon, Mahnomen, Murray, Norman, Pipestone, Polk, Pope, Swift, and Wilkin Counties, Minnesota; Richland County, North Dakota; Brookings, Day, Deuel, Grant, Marshall, Moody, and Roberts Counties, South Dakota; and Green Lake and Waukesha Counties, Wisconsin, fall within the boundaries of the critical habitat designation for Poweshiek skipperling. The effect of this regulation is to designate critical habitat for the Dakota skipper ( Hesperia dacotae ) and the Poweshiek skipperling ( Oarisma poweshiek ) under the Endangered Species Act. DATES: This rule becomes effective on November 2, 2015. ADDRESSES: This final rule is available on the internet at http://www.regulations.gov and http://www.fws.gov/midwest/Endangered/. 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, Twin Cities Field Office, 4101 American Boulevard East, Bloomington, Minnesota, 55425; (612) 725-3548; (612) 725-3609 (facsimile). 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-R3-ES-2013-0017, and at the Twin Cities Field Office ( http://www.fws.gov/midwest/Endangered/ ) (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: Peter Fasbender, Field Supervisor, U.S. Fish and Wildlife Service, Twin Cities Ecological Services Fish and Wildlife Office, 4101 American Boulevard East, Bloomington, Minnesota 55425; telephone (612) 725-3548; facsimile (612) 725-3609. 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 designate critical habitat for the Dakota skipper and Poweshiek skipperling. Under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) (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. We, the U.S. Fish and Wildlife Service (Service), listed the Dakota skipper as a threatened species and the Poweshiek skipperling as an endangered species on October 24, 2014 (79 FR 63672). On October 24, 2013, we published in the Federal Register a proposed critical habitat designation for the Dakota skipper and Poweshiek skipperling (78 FR 63625). 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 the Dakota skipper and Poweshiek skipperling. Here we are designating approximately 19,903 acres (8,054 hectares) of native prairies and connecting dispersal habitats for the Dakota skipper and approximately 25,888 acres (10,477 hectares) of native prairies and connecting dispersal habitats for the Poweshiek skipperling. This rule consists of: A final designation of critical habitat for the Dakota skipper and the Poweshiek skipperling. The Dakota skipper and Poweshiek skipperling have been listed under the Act. This rule finalizes designation of critical habitat necessary for the conservation of the Dakota skipper and Poweshiek skipperling. We have prepared an economic analysis of the designation of critical habitat. In order 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 September 23, 2014 (79 FR 56704), allowing the public to provide comments on our analysis. We have incorporated the comments and have completed the final economic analysis (FEA) concurrently with this final determination. Peer review and public comment. We sought comments from independent specialists to ensure that our designation is based on scientifically sound data and analyses. We obtained opinions from seven 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 the public during the comment period. Previous Federal Actions We, the U.S. Fish and Wildlife Service (Service), listed the Dakota skipper as a threatened species and the Poweshiek skipperling as an endangered species on October 24, 2014 (79 FR 63672) with a rule issued under section 4(d) of the Act for the Dakota skipper. This rule followed publication on October 24, 2013, of a proposal to list the Dakota skipper as threatened with a section 4(d) rule and the Poweshiek skipperling as endangered (78 FR 63573). Also on October 24, 2013, we published in the Federal Register a proposed critical habitat designation for the Dakota skipper and Poweshiek skipperling (78 FR 63625). Summary of Comments and Recommendations We requested written comments from the public on the proposed designation of critical habitat for the Dakota skipper and Poweshiek skipperling during two comment periods. The first comment period associated with the publication of the proposed rule (78 FR 63625) opened on October 24, 2013, and closed on December 23, 2013, during which we held public meetings on November 5, 2013, in Minot, North Dakota; November 6, 2013, in Milbank, South Dakota; November 7, 2013, in Milford, Iowa; November 13, 2013, in Holly, Michigan, and November 14, 2013, in Berlin, Wisconsin. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened September 23, 2014, and closed on October 23, 2014 (79 FR 56704). We published a news release stating that we would continue to accept comments during the time period between December 23, 2013, and the end of the second public comment period. We did not receive any requests for a public hearing. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these comment periods. During the first comment period, we received approximately 33 comment letters addressing the proposed critical habitat designation. We also received several additional comment letters posted to the listing docket, but that also addressed the proposed critical habitat designation. Comment letters addressing the proposed listing rule were addressed in the final listing ruling document. We received 7 comment letters after the 1st comment period closed but before the 2nd comment period opened on the proposed critical habitat, and approximately 15 comments on the listing docket that also addressed critical habitat. During the second comment period, we received 21 comment letters addressing the proposed critical habitat designation or the draft economic analysis. We also received 5 additional comment letters posted to the listing docket, but that also addressed the proposed critical habitat designation. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below. Comments received were grouped into several general issues specifically relating to the critical habitat designation for the Dakota skipper and the Poweshiek skipperling 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 ten knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from seven of the peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding critical habitat for the Dakota skipper and Poweshiek skipperling. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. Peer Reviewer Comments General Comments (1) Comment: Several peer reviewers stated that the best available scientific information was used to develop the proposed critical habitat designation and the Service's analysis of the available information was scientifically sound. Peer reviewers provided updated information on Dakota skipper and Poweshiek skipperling populations and stressors throughout the ranges of these species. Minor edits to specific details and interpretation of data did not affect their endorsement of the proposal and its conclusions. Our Response: We have incorporated the updated information into the Background section of this final rule. Some of the new information received resulted in minor changes or refinements of critical habitat unit boundaries, removal or addition of units, or the occupancy status of some units. (2) Comment: One peer reviewer asked if the definition of critical habitat, specifically, the geographical area occupied by the species, refers to the total range of the species—interpreted as the area bounding all known occurrences, or the spatial extent of particular colonies or populations ( e.g., the area used by the species in one prairie site). Our Response: Critical habitat is a term defined and used in the Act. It is those specific geographic areas that contain features essential to the conservation of a threatened or endangered species and that may require special management and protection. Critical habitat may include areas that are not currently occupied by the species, but that will be needed for its conservation. (3) Comment: One peer reviewer asked if the definition of critical habitat, specifically, areas outside the geographical area occupied by the species, refers to the geographical area outside of the documented range of the species or sites within that range that are not known to be occupied at the time of listing? Our Response: That clause in the definition of critical habitat under section 3(5)(A)(ii) of the Act refers to any areas that are not occupied at the time the species is listed. These could be areas that fall outside the documented historical range of the species, or specific sites within the documented range of the species that were known to be occupied at one point, but which are not occupied when the species is listed ( e.g., the species has been extirpated from that site). For the designation of critical habitat for the Dakota skipper and Poweshiek skipperling, all areas that we include as critical habitat under this prong of the definition were historically occupied, but some are not thought to be currently occupied by the species. (4) Comment: One peer reviewer, with particular experience in Iowa and Minnesota, agrees with the locations proposed as critical habitat, as they are a good representation of the recent historical range for both species. Our Response: We thank you for your comment. Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements (5) Comment: One peer reviewer stated that the assertion that Dakota skipper larvae are “particularly vulnerable to desiccation during dry summer months” was a hypothesis with no confirming evidence. The paper cited only surveyed occupied habitat and did not test unoccupied areas for the same parameters. Our Response: We recognize the limitations of Royer's 2008 study, and have corrected our interpretations accordingly; specifically, the sampling design (edaphic parameters (such as bulk density and soil moisture) were measured only in occupied areas and no unoccupied areas were examined to test the significance of the findings) does not allow for statistically significant conclusions. (6) Comment: One peer reviewer questioned why an increase in bulk density (compaction) is relevant in tilled lands, as tilling destroys the habitat in ways that are far more fundamental than changing bulk density. Our Response: We agree that tilling land alters the native remnant prairies in many ways, such that they are no longer inhabitable to the Dakota skipper or Poweshiek skipperling. Tilling alters the physical state of the soil, and bulk density is just one component of soils that has been measured before and after tilling. (7) Comment: One peer reviewer did not understand the statement about Dakota skipper distribution and isolation. “The distribution” would normally be understood as meaning the same as “range,” but the reviewer questioned what about the Dakota skipper's range led the Service to describe it as isolated. If what is intended is to describe the current distribution as consisting of small colonies highly isolated from each other, it would be better stated this way. Our Response: We did not intend for distribution to mean range in this context. We have corrected this information in the Physical or Biological Features section of this final rule to clarify that we mean that the species currently exists in small, isolated areas. (8) Comment: One peer reviewer suggested that we verify the accuracy of the following sentence: “In Michigan, Poweshiek skipperling live on prairie fens, which occur on the lower slopes of glacial moraines or ice contact ridges (Albert 1995 in Michigan Natural Features Inventory 2012, p. 1) where coarse glacial deposits provide high hydraulic connectivity that forces groundwater to the surface (Moran 1981 in Michigan Natural Features Inventory 2012, p. 1)”. Our Response: We have checked additional sources and have modified the language in the Physical or Biological Features section of this final rule to correctly state that “In Michigan, Poweshiek skipperling live on prairie fens, which occur on poorly drained outwash channels and outwash plains in the interlobate regions of southern Lower Michigan (Kost et al. 2007 pp. 69-73, Cohen et al. 2014, pp. 70-73). Prairie fens are typically found where these glacial outwash features abut coarse-textured end moraine or ice-contact features and where coarse glacial deposits provide high hydraulic connectivity that forces groundwater to the surface (Moran 1981 in Michigan Natural Features Inventory 2012, p. 1).” (9) Comment: One peer reviewer commented that populations of Poweshiek skipperlings in southwest Minnesota did not appear to need low wet areas that provide shelter and relief from high summer temperatures and fire. Areas like this were not present, or were located well away from areas where the Poweshiek skipperling was observed. Our Response: We have clarified that the Poweshiek skipperling may not need low and wet areas at all sites in the Physical or Biological Features section of this final rule. Primary Constituent Elements (10) Comment: One peer reviewer commented that we should not use the precisely quantified soil parameters as stated in primary constituent element (PCE) 1b for the Dakota skipper. Our Response: We agree and have modified PCE 1b for Dakota skippers. Royer (2008) only examined occupied areas for these parameters; therefore, the statistical and biological significance of these edaphic variables cannot be determined from his study. Why Occupied Areas are not Sufficient for the Conservation of the Species (11) Comment: One peer reviewer asked whether we assume there is some possibility that sites with unknown occupancy may still harbor populations. Our Response: In areas with unknown occupancy, we believe there is a possibility that the species still exists at the location. If these areas still do harbor a population, they would be important for species recovery for various reasons. For example, the remaining individuals may hold potential genetic representation, or a small population could be augmented to help establish a robust population or individuals from a large population may be used for reintroductions to other locations. (12) Comment: One peer reviewer questioned what genetic material would be preserved if the species is truly absent from locations where we are currently uncertain of the occupancy? Our Response: We agree that if the species is proven to be absent from a location that there will be no genetic material to preserve at that location. However, because we are uncertain of the occupancy, we believe there is some possibility that the species still exists there. If the species does exist at those locations, it would be important to preserve the genetic material at that location. Maintaining redundancy of genetic representation is important in case genetically similar populations are lost. Unit-Specific Comments (13) Comment: One reviewer recommended that Dakota skipper critical habitat units DS MN 13A and 13B in Kittson County, Minnesota, be expanded to include locations referred to as “Spot G” and “Spot H” in Rigney (2013a). The reviewer supported that recommendation by stating that, although no Dakota skippers were observed at Lake Bronson in 2013, there was one highly likely sighting there, and the area continues to contain moderate-quality habitat. Our Response: We have reviewed this new information and have found that “Spot G” and “Spot H” were greater than the estimated 1-km (0.6-mi) dispersal distance from the closest sites where the species have been documented (those sites within MN Unit 13A and 13B), and we believe the habitat areas are too small (1 ac (0.4 ha) and 12 ac (5 ha), respectively) to qualify as independent sub-units. These areas, however, may be useful as potential reintroduction sites, which we will consider during recovery planning. (14) Comment: One peer reviewer questioned why no areas in far northwestern Minnesota were proposed as critical habitat for Poweshiek skipperlings, given the close proximity of the extant Manitoba population to the U.S. border, the similarity between occupied habitats in Manitoba and in Minnesota, and the historical Poweshiek skipperling records in Kittson County. Our Response: We reviewed the known locations of Poweshiek skipperlings in northwestern Minnesota, and, based on new information that we received, we revised the proposed critical habitat (79 FR 56704) and included critical habitat for the Poweshiek skipperling in Polk and Kittson counties, Minnesota (PS MN Units 19 and 20) in this final designation. See the Critical Habitat section of this final rule and the textual descriptions of units (available online at http://www.fws.gov/midwest/Endangered/insects/dask ) for details of specific units. (15) Comment: One reviewer recommended the addition of several units in Minnesota as critical habitat for the Poweshiek skipperling. These areas included the following: Lake Bronson, North Clow 36, North Clow 35, Richardville 28 and 29, and the West Caribou Wildlife Management Area (WMA) sites identified in the 2013 Kittson County surveys (Rigney 2013a). The reviewer asserted that these areas have equivalent habitat and opportunity to encounter the Poweshiek skipperling as does the Lake Bronson site, which was included in the proposal; although no Poweshiek skipperlings were observed at these sites in 2013, they do provide moderate-quality habitat. Our Response: We reviewed the information in the 2013 reports and have designated critical habitat for the Poweshiek skipperling in the Lake Bronson Area (PS MN Unit 19), which was the only aforementioned location that met our criteria for critical habitat. Specifically, most of the Poweshiek skipperling records in the sites the reviewer recommended for inclusion were relatively old (1992 or earlier), the habitat was rated as relatively poor, or the sizes of the parcels were likely too small to sustain a viable population. The Poweshiek skipperling was last observed at the North Clow 35 location in 1992, and the site is very small (6 ac (2.4 ha)). North Clow 35 consists of four separate areas, ranging in size from 1 to 5 ac (0.4 to 2 ha), recently rated as moderate quality (Rigney 2013a, p. 3), but these areas are on the fringes of a densely forested area surrounded by agriculture and only equated to a total of approximately 9 ac (3.6 ha). The Poweshiek skipperling was last observed at both West Caribou WMA and North Clow 36 in 1991, but the habitat at West Caribou was recently considered to be of only fair quality (Rigney 2013a, pp. 7-9). The habitat at North Clow 36 was reported as good (Rigney 2013a, pp. 5-6), but the habitat equates to less than 5 ac (2 ha) in size. Richardville 28 and 29 each had Poweshiek skipperling records from 1991, but equate to less than 4 ac (1.6 ha) in size combined. (16) Comment: One peer reviewer commented that all of the Dakota skipper critical habitat units in North Dakota are essential and should be included as critical habitat. Our Response: We thank you for your comment, which supports the designations in North Dakota. Based on new information, we have made some refinements to a few of the aforementioned critical habitat units, and other units have been partially or entirely removed from designation, due to these units no longer meeting our criteria for critical habitat. We have also excluded some of the areas in North Dakota that were proposed as critical habitat because of existing partnerships that outweigh the benefits of critical habitat (see Exclusions discussion below). (17) Comment: One peer reviewer commented that the three proposed Poweshiek skipperling critical habitat units in North Dakota were not enough and recommended additional land be considered as critical habitat. The reviewer further explained that, given the probable historical extent of habitat for this species in North Dakota, the designation of only 263 ac (106 ha) is not sufficient to represent the species' complete potential range within the State. For that reason, the reviewer recommended expanding the critical habitat designation to include other sites, particularly within the Sheyenne National Grassland (Richland-Ransom County) area. Our Response: We reviewed the available data on the occurrence of the Poweshiek skipperling in the Sheyenne National Grasslands, and found few records for the species in those areas. The single record of the species, from 1996, was unverified and the habitat was considered to be poor in 2012 (Royer 2012, p. 87). Thus, we have not included any areas as critical habitat for the Poweshiek skipperling in the Sheyenne National Grassland. However, there may be suitable habitat within the Sheyenne National Grasslands that may be important in recovery efforts for both species, such as potential sites for future reintroductions. For example, in light of new ecological information, we have refined the boundaries of North Dakota Critical Habitat Units 11 and 12 to better reflect Dakota skipper habitat—this area may also be utilized for Poweshiek skipperling recovery. PS North Dakota Unit 3 was removed from proposed critical habitat designation because we received new or updated information that indicates that this area no longer meets our criteria for critical habitat as described in this final critical habitat rule. This unit is dominated by Kentucky blue grass, and site managers “are unsure if we can bring the site back to a more native dominated site,” which has been either burned or grazed every spring from 2009 through 2013 (Askertooth, 2014, pers. comm.). North Dakota Unit 3 was 47 ha (117 ac) of federally owned land and included Krause Wildlife Production Area in Sargent County. (18) Comment: One peer reviewer asked if the site with the most recent historic sites for Dakota skipper in Iowa should be included as critical habitat for that species. Other sites that are included in the Poweshiek skipperling designations (PS Iowa Unit 3, PS Iowa Unit 11) may also contain good habitat for the Dakota skipper. Our Response: In Iowa, the Dakota skipper was recorded from two locations in 1911 and 1906, which did not meet our criteria for critical habitat because the records were old, and there is currently no suitable habitat at those locations. The Dakota skipper was observed at one additional site in Iowa in 1992. This area was not designated as critical habitat due to the relatively old record and because there were few records of the species in the State; therefore, we did not think that Iowa sites would help fulfill the conservation principles of redundancy, resiliency, and representation for the Dakota skipper. Some of the areas designated as critical habitat for the Poweshiek skipperling may also be important areas for Dakota skipper recovery efforts, however. (19) Comment: One peer reviewer noted that the Florenceville Prairie in Howard County, Iowa, may be another possible addition to the Poweshiek skipperling critical habitat units. Our Response: We examined Florenceville Prairie for its potential for critical habitat designation. The Poweshiek skipperling was last observed in this location in 1994. Other than the record, we had very little information regarding the habitat and management of the site, which appears to be approximately 25 ac (10 ha) from our aerial photograph interpretation. Because of its small size and little more information, this site did not fit our criteria for critical habitat. The Florenceville Prairie may be an important area for recovery. (20) Comment: One peer reviewer suggested that our discussion of the time for prairie habitat to degrade to non-habitat due to woody encroachment and invasive species would benefit from additional literature review, because there is much variation among sites. Our Response: We agree that there may be site-specific variation, which is why we attempted to verify habitat on the ground. There are few long-term studies of prairies without a management component that estimate the time of natural succession from prairie to non-prairie habitat. We have included citations from several sources that studied long-term succession across varying management regimes. Federal Agency Comments General Comments (21) Comment: North Dakota Natural Resources Conservation Service (ND NRCS) commented that a substantial percentage of the literature cited in the proposed rule was internal documents and not peer-reviewed or published literature. Our Response: Under the Act, we are obligated to use the best available scientific and commercial information, including results from surveys, reports by scientists and biological consultants, natural heritage data, and expert opinion from biologists with extensive experience studying the Dakota skippers and Poweshiek skipperling and their habitats, whether published or unpublished. We acknowledge that some of the reports we utilized were unpublished reports, most of which were reports of butterfly surveys that were submitted directly to various agencies. The Service's databases were also referenced several times within the document ( e.g., USFWS 2014, unpublished geodatabase). These databases were built using hundreds of sources, including unpublished reports, published papers, and State heritage data. We referenced these databases in the proposed and final critical habitat document in places where we summarized data across many sources. All of the reports utilized in these databases are publically available, upon request. Our licenses to use State natural heritage data for internal purposes have data sharing restrictions. Management Concerns (22) Comment: Several agencies expressed interest in working with the Service to manage Dakota skipper and Poweshiek skipperling habitat and establish best management practices for the species. Our Response: We look forward to continuing to work with Federal agencies and other interested parties to explore management approaches and their benefit to the species and their habitat. Exclusions (23) Comment: The North Dakota Army National Guard (NDARNG) requested exemptions from listing and critical habitat designations on lands that they use for training in North Dakota where they have an Integrated Natural Resources Management Plan (INRMP) in place in accordance with the Sikes Act. Our Response: Neither Camp Grafton South nor Garrison Training Area were proposed for critical habitat designations, nor are they included in our final designations. Primary Constituent Elements (24) Comment: North Dakota State Department of Trust Lands commented that non-invasive grasses, such as Kentucky bluegrass and smooth brome, exceed the five percent threshold as defined for PCE 1d for the Dakota skipper and PCE 1e for the Poweshiek skipperling. They further state that data show that managed grazing has limited the dominance of Kentucky bluegrass, whereas no management results in a total dominance of Kentucky bluegrass. Our Response: We realize that non-native plant species in some areas designated as critical habitat may currently exceed five percent of the area, and that non-native plants will likely increase if these areas are not managed properly. Through active management, such as managed grazing, we will strive to reduce the amount of non-native invasive plants in critical habitat areas. Unit-Specific Comments (25) Comment: The U.S. Forest Service recommended that the Service consider making boundary adjustments to Dakota skipper North Dakota Units 11 and 12. The Forest Service used a butterfly habitat model (Foli and Sjursen 2005) to develop recommendations for boundary adjustments that eliminate lands cultivated in the early 1900s that are dominated by non-native plants. Our Response: In light of this new ecological information, we have refined the boundaries of North Dakota Critical Habitat Units 11 and 12 to better reflect Dakota skipper habitat. Comments From States General Comments (26) Comment: The Minnesota Department of Natural Resources (MN DNR) supports the Service's decision to designate critical habitat for the Dakota skipper and Poweshiek skipperling in Minnesota and concurs with the Service's determination that designation of critical habitat for these species will be beneficial to their conservation. Our Response: Thank you for your comment. (27) Comment: The MN DNR recommends that areas with plans for restoration of severely degraded prairie be considered for exclusion under section 4(b)(2) of the Act. They commented that this would necessitate an explicit distinction between prairie remnants requiring maintenance-level management and remnants requiring restoration-level management, and would allow for more liberal use of management in lands targeted for restoration and support cautious management in restored areas. As such, prairie restoration practices are critical to connecting existing prairie remnants, countering the effects of habitat fragmentation and isolation, and are a focus of the Minnesota Prairie Conservation Plan (MPCP). Our Response: To exclude areas from critical habitat, the benefit of exclusion of that land must outweigh inclusion as critical habitat. The critical habitat designation for these two butterflies focused on relatively high-quality native remnant prairie, which may need maintenance-level management, with limited areas of lesser quality habitat included as dispersal areas. Four units in Minnesota contain lesser quality dispersal habitat (DS/PS Minnesota Unit 2, DS/PS Minnesota subunit 7A, PS Minnesota Unit 11 and PS Minnesota Unit 13), where restoration management may be appropriate. There are several areas included in the MPCP that are designated as critical habitat. We determined that degraded or poor-quality prairies and dispersal areas would benefit from inclusion in the designation because the species may use these areas during the short adult period. The Service will work with the MN DNR and other stakeholders to help identify varying habitat types and is looking forward to working together to develop methods and practices for restoring habitat for the two butterfly species. We hope to work with those involved in the MPCP to develop mutually acceptable management on these areas. See the Consideration of Impacts Under Section 4(b)(2) of the Act section of this final rule for more details on our balancing analysis for critical habitat exclusions. (28) Comment: The North Dakota Department of Agriculture suggested the addition of public informational meetings throughout the range of the butterflies in North Dakota and requested that there be more discussion on the potential impacts to private landowners, Federal funding programs, and current and future easements with the Service. Our Response: The Service will continue to conduct public outreach and coordinate with the U.S. Department of Agriculture and other stakeholders throughout the recovery planning and implementation process for these species. Proposed projects in areas where one or both species may be present, or on designated critical habitat that has a Federal nexus (in other words, funded, authorized or carried out by a Federal agency), will be required to undergo consultation with the Service under section 7 of the Act. We suggest that action agencies contact the Service's Ecological Services Office in their State if they are planning an activity with a Federal nexus that may affect the species or its critical habitat. For more information about section 7 consultations, visit the Service's Web site ( http://www.fws.gov/endangered/what-we-do/consultations-overview.html ). (29) Comment: North Dakota Game and Fish and South Dakota Department of Game, Fish, and Parks commented that including private land in the designation of critical habitat increases the threat of conversion of privately owned grassland. Benefits may be derived from the triggering of consultation under section 7 of the ESA for activities that have a Federal nexus on State and Federal lands. However, benefits of consultation or regulatory protections afforded by the implementation of section 7 of the ESA are lost when applied on private land. The Service should take this concern seriously and continue to investigate suitable alternatives to critical habitat designation. The Service should consult with each private landowner individually and directly to determine their potential impacts. Our Response: We agree that conversion of native prairies to agricultural or other uses is a threat to both species and have discussed this threat in the final listing determination, published in the Federal Register on October 24, 2014 (79 FR 63671). The Service is committed to working with private landowners, public land managers, conservation agencies, nongovernmental organizations, and the scientific community to conserve the Dakota skipper and Poweshiek skipperling and their habitats. For example, in recognition of efforts that provide for conservation and management of the Dakota skipper and its habitat in a manner consistent with the purposes of the Act, we finalized a rule under section 4(d) of the Act (79 FR 63671) that exempts incidental take of Dakota skippers that may result from livestock grazing since we believe this is necessary and advisable for the conservation of the species and facilitates the habitat protection, coordination, and partnerships needed to recover the species. During development of the proposed critical habitat designation, the Service notified each private landowner of record of the proposed designation and requested that landowners submit information, in the form of public comments, about potential impacts. While efforts to consult directly with each private landowner are outside the scope of this effort, the Service has considered this issue and has held some meetings with individual landowners to discuss their concerns. We focused initial meetings with private landowners in Minnesota, North Dakota, and South Dakota, which is where we received several comments from private landowners who had concerns about the implications of listing and critical habitat designations. Additionally, we have excluded some areas that are covered by conservation partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling from final critical habitat designation in this final rule. It is important for private individuals to understand that only those proposed projects in areas where one or both species may be present, or on designated critical habitat, and that have a Federal nexus (in other words, funded, authorized or carried out by a Federal agency), will be required to undergo consultation with the Service under section 7 of the Act. The responsibility of this consultation is that of the Federal agency, not the private landowner. (30) Comment: The South Dakota Department of Agriculture asked how a private landowner would be compensated, if during the course of the Service's activities for monitoring the critical habitat areas, the land or property is damaged. Our Response: Surveys for either species on private lands would only be conducted with landowner permission. Furthermore, surveys are not destructive in nature and have little, if any, impact to the land. (31) Comment: South Dakota Department of Agriculture suggested that further research should be conducted to determine if the Poweshiek skipperling is present in South Dakota. Because the Poweshiek skipperling is not found in South Dakota, this commenter submitted that South Dakota should not be included in the critical habitat designation for that species. Our Response: According to our data and analysis, the presence of Poweshiek skipperling is unknown at 36 of the total 69 sites where the species has been documented in South Dakota. The species was detected at least once at all 36 of these sites in 1993 or later; of those, 19 had positive detections in 2002 or later. No surveys were conducted for the species between 2007 and 2011 at these 36 sites. Many of these 36 sites were surveyed in 2012 and/or 2013, but we cannot presume that the species is truly absent at sites with only 1 or 2 years of negative data. The most recent detection of the species in South Dakota was at three sites in 2008. At several South Dakota sites, the species persisted for longer than 20 years. South Dakota is in the range of the Poweshiek skipperling and the species is listed throughout its range. Critical habitat is defined in the Endangered Species Act as specific areas within the geographic area occupied by a species, at the time it is listed, on which are found those biological or physical features that are essential to the conservation of the species and may require special management considerations or protection. Additionally, specific areas outside the geographic area occupied by a species at the time of listing may be considered for critical habitat designation if they are essential for the conservation of the species. The areas we have designated as critical habitat are important for the resiliency, redundancy, and representation concepts of species recovery, as discussed in the Criteria Used To Identify Critical Habitat section of this final rule. We addressed the comment regarding additional surveys or research in the final listing rule, published in the Federal Register on October 24, 2014 (79 FR 63671). (32) Comment: North Dakota Game and Fish commented that the proposal infers that the Service has identified skipper habitat in addition to critical habitat in North Dakota. If that is correct, does the Service have specific legal descriptions where such habitat exists and what restrictions will be placed on that habitat? Our Response: The Dakota skipper and the Poweshiek skipperling are both closely tied to native prairie habitats. Dakota skipper and Poweshiek skipperling are among a group of species endemic to North American tallgrass and mixed-grass prairie. In addition, these butterflies are not likely to inhabit reconstructed prairies, such as former cropland replanted to native prairie species. The Service has records of the Dakota skipper and Poweshiek skipperling in areas that are not designated as critical habitat, but these sites did not meet our criteria for critical habitat as described in this final ruling. However, they may still be important for recovery. The Service recognizes that there may be areas of suitable habitat for the species where surveys have never occurred or the survey effort was insufficient to know if the species were truly absent from a location. We do not have specific legal descriptions of all potential habitat areas. Therefore, the Service recommends that, to determine whether a section 7 consultation may be required or recommended, action agencies should first provide the U.S. Fish and Wildlife Service Ecological Services field office (FWS-ES) with a description of the area. (33) Comment: The North Dakota Farm Bureau and several other organizations noted that incentive-based voluntary programs that work well for other species may be a better solution to listing and critical habitat designations. Our Response: We appreciate any assistance to incentivize landowners to conserve these species. Voluntary action can have a significant contribution to conservation, and if such measures are in place when we are evaluating a species for listing, we consider them in that decision. The Service's policy, Expanding Incentives for Voluntary Conservation Actions Under the Act (77 FR 15352, March 15, 2012), encourages voluntary conservation actions for non-listed species ( http://www.gpo.gov/fdsys/pkg/FR-2012-03-15/pdf/2012-6221.pdf ). However, if such voluntary actions are not in place when we are evaluating a species for listing, or if those actions are not sufficient to affect the need to list a species, the Service must make a determination based on the status of the species. Furthermore, under the ESA, the Service must propose critical habitat concurrently, or within 1 year of the final listing ruling, if it is found to be prudent. In this final critical habitat designation, we are excluding lands covered by conservation partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling. See the Consideration of Impacts under section 4(b)(2) of the Act section of this final rule for more details on these easements and the benefits of excluding these areas. (34) Comment: North Dakota Game and Fish supported the removal of Poweshiek skipperling North Dakota Unit 3 from the final designation as proposed on September 23, 2014. Our Response: We proposed some changes to our critical habitat proposal on September 23, 2014, based on updated biological or ecological information. Based on the information we received, the habitat in the aforementioned unit no longer met our criteria for critical habitat and has been removed. (35) Comment: The North Dakota Department of Agriculture suggests removing all critical habitat designations from any lands that are not currently inhabited by either species. Both species rarely travel more than 1 mile in their lifetime, so it is highly unlikely that unoccupied areas will be re-colonized without artificial reintroduction. It would not be beneficial to the species to designate critical habitat that will not be re-colonized naturally. Our Response: Some of the lands we are considering to be “unoccupied” for critical habitat analyses have actually had recent records of the species' presence and have only had 1 or t2 years of negative surveys (no detections during the survey season). It is beneficial to designate these areas as critical habitat in light of the potential for recovery of the species on these lands as discussed in the Critical Habitat section of this rule. Economic Concerns (36) Comment: The South Dakota Department of Agriculture requested that all private lands be removed from the critical habitat designations due to economic impacts. The average size of the farms in the South Dakota counties selected for critical habitat for both species is 675 acres (USDA National Agricultural Statistics Service 2013). These are small family farms that support the local county economy. The National Agricultural Statistics Service reported that the total livestock and crop cash receipts for these counties are $1,447,861,000. The Service proposed to designate about 0.20 percent of total farmed acres as critical habitat. This could potentially result in a loss of $2.5 million to the local economies. Our Response: The Service must consider the economic impacts of designating critical habitat and has done so for these two species. As noted in the notice of availability for the draft economic analysis (79 FR 56708; September 23, 2014), the Service evaluated the economic impact of designating critical habitat for the Dakota skipper and Poweshiek skipperling in the “Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling.” The screening analysis was made available for public review and comment on September 23, 2014. As a result of our analysis, we concluded that the proposed critical habitat designation for the Dakota skipper and Poweshiek skipperling is unlikely to generate costs exceeding $100 million in a single year; therefore, the rule is unlikely to meet the threshold for an economically significant rule. Private property owners have expressed concern that the designation of critical habitat for the two butterflies may affect their property values. Data limitations prevented the quantification of the possible incremental reduction in property values; however, data on current land values suggest that, even if such costs occur, the rule is unlikely to reach the threshold of an economically significant rulemaking when possible perception effects are combined with the other incremental costs. The commenters' calculation of a potential loss of $2.5 million to the local economies assumes that all livestock and crop income will be lost in those counties. The designation of critical habitat does not have such far-reaching effects. Furthermore, several privately owned areas have been removed due to new ecological information indicating unsuitable habitat or excluded based on the existence of conservation partnerships as described in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule. (37) Comment: The North Dakota Department of Agriculture (NDDA) and a few private individuals are concerned that the designation of critical habitat on private lands could jeopardize current private conservation efforts or result in fewer private-public partnerships to preserve native grassland, and they suggest the Service remove all critical habitat designations from private lands. They further commented that, whether the impacts associated with a critical habitat designation are real or perceived, private land designated as critical habitat has decreased value economically. It is less marketable to future buyers, both for agriculture and development. The Service's September 8, 2014, memorandum concludes that proposed critical habitat designation does not reach the threshold of an “economically significant rulemaking,” however, it is very significant for current and future landowners. Our Response: As the commenter notes, this issue was discussed in a September 8, 2014, memorandum titled “Supplemental Information on Land Value—Critical Habitat Designation for the Dakota skipper and Poweshiek skipperling.” Data limitations prevent the quantification of the possible incremental reduction in property values due to the designation of critical habitat, but the memorandum presents information on the total value of the private lands (excluding conservation lands) included in the proposed critical habitat designation as an estimate of the upper bound on possible costs. It also identifies the relative value of private land across the proposed units. In this final critical habitat designation, we have made modifications to some of the critical habitat units due to new ecological information, including the removal of some unsuitable private lands. We also exclude lands covered by Service permanent conservation easements and certain lands covered by current management agreements with the Service's Partners for Fish and Wildlife Program (PFW). See the Consideration of Impacts under section 4(b)(2) of the Act section of the preamble to this final rule for more details on these easements and the benefits of excluding these areas. The public perceptions supplement to the draft economic analysis discusses the idea that public attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed (stigma effects). As the public becomes aware of the true regulatory burden imposed by critical habitat, the impact of the designation on property markets may decrease. Although stigma impacts may occur when critical habitat is first designated, and may be a real concern to landowners, research shows those impacts should be temporary. As described in the memorandum, small entities are generally not directly involved in the consultation process between NRCS or U.S. Department of Agriculture (USDA) and the Service. As a result, impacts to small ranchers are not anticipated. Management Concerns (38) Comment: MN DNR recommended that a clear distinction be made regarding management activities that will be permitted in designated critical habitat that is occupied by one or both species and critical habitat that is not currently occupied by either species. Furthermore, this commenter requested that the Service provide clear guidance to support distinguishing between “occupied” and “unoccupied” habitat in terms of the required frequency of surveys upon which to base conclusions regarding occupancy years since the last observation for a site to be considered occupied; number of individuals observed for a site to be considered occupied; distance from a site with more recent, larger, or more certain observation for a site to be considered occupied; and when artificial reintroduction of a listed species into an unoccupied site would be permitted, and when the site would then be considered occupied. Our Response: Stakeholders and project proponents should provide U.S. Fish and Wildlife Service Ecological Services field office (FWS-ES) with a description of the area that would be affected, directly or indirectly, by the proposed or ongoing action to determine whether it is occurring in an area that is occupied by the species and what the appropriate management activities would be at the particular location. We discuss species occupancy in the Criteria Used to Identify Critical Habitat section of this final rule, which we used to determine the occupancy status of critical habitat units at the time of the publication of this final rule. (39) Comment: The South Dakota Department of Agriculture expressed concern that management restrictions implemented on critical habitat may have an impact on noxious weed and pest management on adjacent private lands. They asked what steps the Service will take to ensure that the management practices on critical habitat do not adversely affect adjacent private lands. Our Response: Proposed projects on designated critical habitat with a Federal nexus (in other words, funded, authorized or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. We are not aware of any management restrictions that would affect noxious weed and pest management on property adjacent to critical habitat areas. (40) Comment: The North Dakota Department of Transportation is concerned that all activity related to highway construction and maintenance projects adjacent to or within critical habitat of the Dakota skipper will have to undergo consultation with the Service. There are six proposed critical habitat units for Dakota skipper that are located adjacent to highways in North Dakota (DS Units 5, 6, 7, 9, 10, and 14). Our Response: In the section 4(d) rule for Dakota skipper, published with the final listing rule, we exempted take of Dakota skippers caused by mowing native grassland for hay after July 15 within transportation rights-of-way. See the Designation section of this final rule for maps of our final designations—we have made adjustments to some of the aforementioned units due to new ecological information, and we have excluded some lands in some of those units—see Consideration of Impacts Under Section 4(b)(2) of the Act section of this final rule. However, new highway construction projects in critical habitat would need to undergo consultation if they have a Federal nexus. (41) Comment: The South Dakota Department of Game, Fish and Parks (SDGFP) commented that they have a cooperative agreement with the Service for the conservation of endangered and threatened animals. As such, they have coordinated and funded numerous butterfly surveys, published a butterfly field guide, developed specific management recommendations for Hartford Beach State Park and Pickerel Lake Recreation Area, and are developing a management plan for the Crystal Springs GPA to benefit prairie wildlife species. The SDGFP submitted this information as documentation of their past, current, and future commitment to assist with rare tallgrass prairie butterfly species recovery. They hope this will facilitate management of the critical habitat owned and managed by SDGFP. Our Response: We appreciate your continued efforts towards conservation of the two species and look forward to working with the SDGFP to that end. Exclusion Comments (42) Comment: The MN DNR commented that exclusions under section 4(b)(2) of the Act should be exercised cautiously and reserved only for circumstances in which the benefit of exclusion will clearly outweigh the benefit of designation and treat all landowners equitably. Our Response: We agree. Exclusions under Section 4(b)(2) of the Act must outweigh the benefit of inclusion in the critical habitat designation. This weighing analysis was completed for several situations, including lands with established partnerships with the Service such as private lands on which the Service has secured conservation easements and private properties that are covered by existing conservation agreements under the Service's Partners for Fish and Wildlife Program. Exclusions are discussed in detail in the Consideration of Impacts Under Section 4(b)(2) of the Act section of this rule. (43) Comment: The MN DNR discouraged the Service from invoking participation in the Minnesota Prairie Conservation Plan (MPCP) to justify exclusion of land from critical habitat. The agency believes that the designation of critical habitat is concordant with a landowner's participation in the MPCP and, in many cases, will enhance the effectiveness and further the goals of the MPCP. Our Response: The Service did not exclude any land from critical habitat designation based solely on participation in the Minnesota Prairie Conservation Plan. (44) Comment: The MN DNR recommended that relief from regulatory restrictions be provided to private landowners within designated critical habitat, rather than exclusion from critical habitat under section 4(b)(2), such as those provided under section 10 of the Act. For example, the agency requested that the Service consider working with them and other stakeholders to develop habitat conservation plans and incidental take permits under section 10 of the Act to provide for a balance between prohibited and permitted activities, which may result in a strategy to accommodate beneficial management rather than excluding the land. Our Response: The Service hopes to work with the State to develop ways to conserve the two butterfly species. See the Consideration of Impacts under section 4(b)(2) of the Act section of this final rule for a discussion of the lands that were excluded from final designations. (45) Comment: The MN DNR recommends that areas with plans for restoration of severely degraded prairie should be considered as eligible for exclusion under section 4(b)(2) of the Act. This will necessitate that the Service draw an explicit distinction between prairie remnants requiring maintenance-level management and remnants requiring restoration-level management. Our Response: To exclude areas from critical habitat, the benefit of exclusion of that land must clearly outweigh inclusion. The critical habitat designation focused on relatively high-quality native remnant prairie with limited areas of lesser quality habitat included as dispersal areas. Some degraded areas were considered for exclusions, for example, if they were part of a conservation agreement as described in the Consideration of Impacts under Section 4(b)(2) of the Act section of this rule. We did not, however, use degraded areas with plans for restoration as the sole basis for exclusion from critical habitat. Furthermore, several critical habitat boundaries were modified prior to our exclusion analysis to remove degraded areas from critical habitat due to the poor habitat quality. The Service will work with the MN DNR and other stakeholders to help identify varying habitat types and is looking forward to working with the MN DNR and others to develop methods and practices for restoring habitat for the two butterfly species. Comments on the Section 4(d) Rule Related to Critical Habitat (46) Comment: ND Game and Fish and ND State Department of Trust Lands stated that the list of counties in which the 4(d) rule did not allow take caused by grazing—Eddy, McHenry, Richland, Rolette, Sargent, and Stutsman—did not directly correspond to the list of counties in which critical habitat was proposed—McHenry, McKenzie, Ransom, Richland, Rolette, and Wells. Our Response: We revised the 4(d) rule to exempt take caused by grazing throughout the range of the species, and not limited to certain counties. Thus, the final 4(d) rule exempts take of Dakota skippers caused by livestock grazing on all private, State, tribal, and other non-Federal ( e.g., county) lands, regardless of where critical habitat is designated. Unit-Specific Comments (47) Comment: The North Dakota State Department of Trust Lands requested that their land be removed from critical habitat, because cultivation on these lands is prohibited by the North Dakota State constitution. Due to this lack of cultivation, the Dakota skipper is still found on North Dakota School Trust Lands. Our Response: Although cultivation is prohibited on these lands, we still conclude that the benefits of excluding these lands do not outweigh the benefits of including them as critical habitat as described in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule. We will work with the North Dakota School Department of Trust Lands to conserve Dakota skipper habitat and hope to develop a mutually acceptable partnership with them. (48) Comment: The North Dakota State Department of Trust Lands stated that Kentucky bluegrass is the dominant species in two of the four tracts of North Dakota trust land in McHenry County that were proposed as critical habitat. The third tract has been actively grazed, which has reduced the amount of Kentucky bluegrass, and the fourth tract is tallgrass prairie in good condition that had previously been hayed in the fall. Our Response: The Dakota skipper has been consistently observed in all four of the units partially or entirely owned by the North Dakota State Land Department and was observed during 2012 surveys at all four units. In light of new ecological information, however, we have refined the boundaries of DS North Dakota Unit 3, and corrected a mapping error in North Dakota Unit 8 to better reflect Dakota skipper habitat. (49) Comment: The North Dakota State Department of Trust Lands requested that the following counties be excluded from critical habitat for the Dakota skipper: Adams, Billings, Bowman, Burleigh, Dunn (southern), Emmons, Golden Valley, Grant, Hettinger, Logan Mercer, McIntosh, McKenzie (southern), Oliver, Sioux, and Slope. The commenter requested exclusion because these counties are not part of the historical range of the species, they do not contain suitable habitat, the cost of conducting surveys in these counties is significant, and their inclusion as critical habitat will cause significant economic harm. Our Response: Of the counties listed in this comment, only one, McKenzie County, contains critical habitat for the Dakota skipper and Poweshiek skipperling. The economic analysis does not anticipate incremental impacts resulting from additional surveying efforts for the butterflies in the critical habitat areas in McKenzie County because all are considered occupied or of uncertain occupancy. Therefore, any surveying effort would likely occur with or without the critical habitat designation, as a result of the listing of the species. Dunn, McKenzie, and Oliver counties are within the range of the species and are included in the final listing determination, which was published on October 24, 2014 (79 FR 63671). (50) Comment: The MN DNR stated that the Service should include Camden and Split Rock Creek state parks as critical habitat. Our Response: We have considered Camden State Park and Split Rock Creek State Park for critical habitat, but neither meets our criteria as described in this final rule. Split Rock Creek State Park may, however, be important for recovery of the species. Comments From Other Organizations General (51) Comment: Wild Earth Guardians, North Oakland Headwaters Land Conservancy, and The Nature Conservancy (TNC) in Minnesota, North Dakota, and South Dakota support the proposed rules to list and designate critical habitat for the Dakota skipper and Poweshiek skipperling as published in the proposed rule in the Federal Register of September 23, 2014. One organization asked for protection for all inhabited and uninhabited potential habitat under a critical habitat designation. Our Response: We appreciate your support for the listing and critical habitat designations and look forward to working with our partners to conserve both species. The criteria for critical habitat are discussed in Criteria Used To Identify Critical Habitat section of this final rule. In brief, some areas did not meet these criteria, for example, if the habitat has been severely degraded and is no longer in a suitable condition to support the species. Areas not included in our designations may still be important for recovery of one or both species as discussed in the Critical Habitat section of the rule. (52) Comment: TNC commented that it was not clear exactly how the unoccupied sites are contributing to the long-term goals of the critical habitat and ultimately the recovery of the species. They encouraged the Service to further clarify its rationale for designating unoccupied sites as critical habitat and how that designation contributes to the long-term recovery goals for both species. Our Response: Federal agencies must ensure that their activities do not adversely modify critical habitat to the point that it will no longer aid in the species' recovery. In many cases, this level of protection is very similar to that already provided to species by the “jeopardy standard.” However, areas that are currently unoccupied by the species, but which are needed for the species' recovery, are protected by the prohibition against adverse modification of critical habitat. Such unoccupied areas are rarely protected by the prohibition against jeopardizing the survival of the species. The importance of including unoccupied areas for recovery of one or both species is discussed in the Critical Habitat section of the rule. (53) Comment: The American Petroleum Institute commented that the Service had not conducted the analysis required under the ESA to designate critical habitat and had not shown that critical habitat is determinable. They stated that absent important elements of the statutory analysis, the Service's proposed critical habitat designations are impermissible or, at a minimum, premature and unsupported. They further stated that this analysis cannot be made because the Service has yet to evaluate the economic impacts of the critical habitat designation. Our Response: We have described how we determined critical habitat areas in detail in the Critical Habitat section of this final rule. In the Critical Habitat section of our proposed rule, published on October 23, 2013 (78 FR 63574), we discussed determinability. In brief, we reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Dakota skipper and Poweshiek skipperling. For critical habitat designations, the Service must consider the economic impacts of designating critical habitat and has done so for these two species. The draft economic report was made available for public review on September 23, 2014. (54) Comment: One organization and one private citizen commented that the Service's suggestion that the Regulatory Flexibility Act (RFA), and case law thereunder, absolves the Service of its obligation to consider impacts of critical habitat designations misinterprets and misapplies the RFA and stands at odds with nearly every other critical habitat designation proposed by listing agencies. Private entities, including small businesses, can, and do, incur significant costs, which must be analyzed in the RFA. The requirement of an RFA is well-supported throughout the administrative record, and has been clearly established by other agencies, including the Small Business Administration's Office of Advocacy. The Service's suggestion that “only Federal action agencies will be directly regulated by this designation” is erroneous and unsupported by the record. An economic analysis required by section 4 of the ESA and the RFA must be completed. Our Response: Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 801 et seq. ), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. In this final rule, we are certifying that the critical habitat designation for the Dakota skipper and the Poweshiek skipperling will not have a significant economic impact on a substantial number of small entities. See the Consideration of Impacts under section 4(b)(2) of the Act section of this final rule for a discussion explaining our rationale. (55) Comment: The ND Stockmen's Association asked what kind of expansion of critical habitat landowners might expect over time. They further asked about the process for designating additional habitat and how much time would be given to survey the species in question in order to determine whether an expansion is necessary before more land would be designated. Our Response: We acknowledge that the Act authorizes the Service to make revisions to designated critical habitat. If, in the future, the best available information at that time indicates revision of critical habitat is appropriate, and if resources are available, we may revise this critical habitat designation. While the Service does not anticipate changing critical habitat for these two species at this time, if we determine that the critical habitat needs future revision, we would complete that revision through the rulemaking process, including publication of a proposed rule and comment period before the final ruling publication. Additional areas that may harbor thus far undocumented populations of one or both species may be important for recovery. (56) Comment: The Society for Range Management stated that the comment period occurred in the winter when the landowners and other interested parties could not assess the proposed areas on the ground. Our Response: On December 17, 2013, the Service announced plans to open an additional public comment period in 2014, once a draft economic analysis on the potential impacts of critical habitat became available. In that announcement, we stated that we would continue to accept comments via mail or hand delivery on the proposal for critical habitat and the proposal for listing between Dec. 23, 2013, and the close of the second public comment period. The second public comment period opened on September 23, 2014, and closed on October 23, 2014. (57) Comment: The ND Stockmen's Association commented that the Service states that “habitat is dynamic, and species may move from one place to another over time.” The association asked if that is the case, then how can earmarking specific parcels as critical habitat be an effective strategy to conserve a species? This group noted that the Service also states that “. . . critical habitat at a particular point in time may not include all of the habitat areas that we later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal habitat outside the designated area is unimportant or may not be needed for the recovery of a species.” These statements do not give landowners assurance that these proposals will be effective and do not encourage landowner cooperation, especially when critical habitat designations will affect their ability to manage their property as they see fit. Our Response: The purpose of this statement is to recognize that there may be other lands, outside of designated critical habitat areas, that may be important to conserve and recover the species. (58) Comment: The North Dakota Stockmen's Association requested clarification on whether the polygons on the maps delineate critical habitat or whether the entire county is designated as critical habitat. They further commented that Eddy and Stutsman Counties in North Dakota are on the list for inclusion as critical habitat, yet neither is included in the mapped areas. Our Response: Critical habitat areas are specific geographic regions identified in the maps in this final critical habitat rule, not the entire counties. There are no areas designated as critical habitat in Eddy County or Stutsman County, North Dakota. Unit-specific textual descriptions are available online at http://www.fws.gov/midwest/Endangered/insects/dask. (59) Comment: The North Dakota Farmer's Union stated that landowners were notified by mail just prior to publication of the proposed rules. The organization further stated that the Service should have contacted landowners months prior to publication so they could develop a candidate conservation agreement that would allow landowners to voluntarily commit to conservation actions that would help stabilize or restore these species, thereby eliminating the need for listing. Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. As discussed in conservation measures of Factor A of the final listing rule (published in the Federal Register on October 24, 2014), the Service and other conservation agencies have recognized the need to address the status of prairie butterflies for more than 30 years beginning with a 1980 workshop held to initiate studies of Dakota skippers and other prairie butterflies. The Service funded management activities intended to benefit the Dakota skipper, including habitat management, landowner education on conservation practices, and prairie vegetation restoration. As described in detail in the Previous Federal Actions section of the proposed listing rule (78 FR 63574), the Service determined that the Dakota skipper met the definition of a candidate species in 2002 (67 FR 40657). By making the species a candidate, the Service was signaling that we believed the species warrants listing and were awaiting funding and resources to proceed with that listing. Similarly, the Service identified the Poweshiek skipperling as a candidate species, with a listing priority number of 2, in a notice of review published in the Federal Register on October 26, 2011 (76 FR 66370). As part of our annual Candidate Notice of Review process, both species were subsequently reevaluated each year to determine if we believed they still warranted listing, up until the time we proposed them for listing. Those annual reevaluations were published in the Federal Register , and thus were publicly available. (60) Comment: Delta Waterfowl commented that, when the Service is considering the designation of critical habitat, special consideration should be given to landowners who are involved in any conservation effort via conservation agreement, easement, grazing system, or other action with the Service, conservation organizations, U.S. Department of Agriculture—NRCS or other recognized conservation or agricultural entities. Our Response: Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies. We have excluded some areas that are covered by conservation partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling from final critical habitat designation in this rule. See the Consideration of Impacts under section 4(b)(2) of the Act section of the preamble of this final rule for more details on these easements and the benefits of excluding these areas. Economic Concerns (61) Comment: The North Dakota Farmers Union stated that due to the historical loss of native mixed-grass and tallgrass prairie in Iowa, Illinois, and Indiana, a disproportionate share of the survival of these butterflies is dependent upon remaining native prairie habitat in North Dakota and South Dakota, which places an unfair burden on landowners in those States. Native prairie in North Dakota is predominantly used for livestock grazing—the sole source of income and livelihood for ranchers, as well as those who hold grazing contracts on Federal land. The Farmers Union further stated that, to curb livestock grazing, haying, and other practices on critical habitat would devastate ranching operations. Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. For this reason, the Service published a 4(d) rule that exempts incidental take by routine grazing activities for Dakota skipper on October 24, 2014 (79 FR 63671). Proposed projects in areas where one or both species may be present or on designated critical habitat that have a Federal nexus (in other words, projects that are funded, authorized, or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. We suggest that action agencies contact the Service's Ecological Services Office in their State if they are planning an activity with a Federal nexus that may affect the species or its critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The notice of availability of the draft economic analysis was published in the Federal Register on September 23, 2014. (62) Comment: The North Dakota Farmers Union commented that critical habitat for the Poweshiek skipperling will encompass 283 acres of Federal land in North Dakota, and, if it is listed as an endangered species, no grazing will be allowed on this land. The Farmers Union stated that this is especially disconcerting for livestock producers if habitat is expanded to include private land. Our Response: We have refined the boundaries of some units in North Dakota based on new information. Critical habitat for the Poweshiek skipperling is now two units in North Dakota, for a total of approximately 166 ac (67 ha). Although the Poweshiek skipperling may still be present in these areas, that likelihood is low, and we are considering the units to be unoccupied at the time of listing. Therefore, Federal activities in unoccupied units that may affect the Poweshiek skipperling will need to undergo consultation under section 7 of the Act, but we do not anticipate that grazing will be prohibited on those Federal lands. (63) Comment: The North Dakota Farmers Union questioned the need to designate critical habitat for the Poweshiek skipperling since it has not been found in North Dakota, according to the information presented by Service at the public meeting in North Dakota. Designating three units of Federal land for recovery of the Poweshiek skipperling could seriously impact the economics of ranching and farming operations in North Dakota. Our Response: As presented at the public meeting in November 2013, the Service is aware of 18 locations in North Dakota where the Poweshiek skipperling has been recorded. The Poweshiek skipperling was last observed in North Dakota in 2001; however, we are unaware of any surveys for the species between 2003 and 2011. The species was not detected at 4 North Dakota sites with previous records that were surveyed in 2012 or at 5 additional North Dakota sites with previous records that were surveyed in 2013. The Service can designate critical habitat occupied at the time of listing and in unoccupied areas, and has done so for the Poweshiek skipperling, for instance, at two locations in North Dakota, where the species may no longer be present. The importance of unoccupied areas is discussed in detail in the Critical Habitat section of this rule. Critical habitat for the Poweshiek skipperling now comprises two unoccupied federally owned units in North Dakota. In these units, only Federal activities will need to undergo consultation under section 7 of the ESA, if those activities may affect the Poweshiek skipperling critical habitat. The economics of these consultations is discussed in the draft economic analysis, the notice of which was published in the Federal Register on September 23, 2014, but we do not expect designation of 166 acres of Federal land as Poweshiek skipperling critical habitat in North Dakota will seriously impact the economics of ranching and farming operations in North Dakota. (64) Comment: Several organizations and individuals commented that the critical habitat designation would restrict private property rights and have economically significant ramifications, particularly for livestock producers. They further expressed that the threat of being subject to additional government requirements could be enough to encourage the conversion of these lands to other uses. They commented that designating critical habitat for the two butterflies will result in regulatory takings of an individual's livelihood and, ultimately, his or her property. Our Response: As stated in our proposed rule, the Service has followed Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”). The designation of critical habitat is not anticipated to have significant takings implications for private property rights. As discussed in the Critical Habitat section of this final rule, the designation of critical habitat affects only Federal actions. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation plans or issuance of incidental take permits to authorize actions that require permits. Due to current public knowledge of the species' protections and the prohibition against take of the two species both within and outside of the proposed areas, we do not anticipate that property values would be affected by the critical habitat designation. Our economic analysis for proposed critical habitat designation found only limited incremental impacts of the designation and small impacts on activities on private lands. The notice of availability of the draft economic analysis was published in the Federal Register on September 23, 2014. (65) Comment: Several private citizens noted that the designation of critical habitat will lead to a decrease in the value of privately owned land. They further stated that the designation would place restrictions on the landowner's ability to subdivide and sell the land. Our Response: We have considered this and have provided a supplemental data memorandum available online at ( http://www.fws.gov/midwest/Endangered/insects/dask/pdf/TwoButterfliesPerceptionEffectsMemo8Sept2014.pdf ) supporting the conclusion that the designation of critical habitat for the two butterflies is unlikely to reach the threshold of an economically significant rulemaking, with regard to costs, under Executive Order (E.O.) 12866. The supplemental memorandum specifically concludes that public perception regarding land use restrictions does not result in land value reductions approaching this threshold when perception effects are combined with the other incremental costs that could result from designation of critical habitat for the two butterflies. The draft economic analysis discusses public attitudes about the limits or restrictions that critical habitat may impose, which can cause real economic effects to property owners, regardless of whether such limits are actually imposed (stigma effects). As the public becomes aware of the true regulatory burden imposed by critical habitat, the impact of the designation on property markets may decrease. Thus, although stigma impacts may occur when critical habitat is first designated, and may be a real concern to landowners, research shows those impacts should be temporary. Regulatory Concerns (66) Comment: Minnkota Power Cooperative commented that emergency response events due to storms or other causes demand that we be able to react quickly to restore damaged systems ( e.g. , transmission lines) without delay. Our Response: Rain and snow storms may be considered a disaster or an act of God under section 7 of the Endangered Species Act (50 CFR 402.05). Therefore, consultation under section 7 may be required only if there may be an effect to a listed species or its critical habitat resulting from activities that have occurred during or immediately following an emergency situation. We suggest contacting your State's Ecological Services office to discuss typical actions taken during emergencies that may affect a species or its critical habitat. Management Concerns (67) Comment: The Society for Range Management commented that listing and critical habitat designation in North Dakota will have a negative effect on the conservation of native grasslands. They further stated that conservation and management plans are a viable option to maintaining and improving native grasslands in North Dakota and that management of native grasslands is essential to maintaining their ecological integrity. The Society indicated that threats to native grasslands not only include conversion to cropland but also detrimental invasive plants such as leafy spurge, Kentucky bluegrass, and smooth brome, and that control of these species can only be provided by the ranchers who are also the reason that the Dakota skipper population has remained stable in North Dakota. Our Response: We agree that conservation of Dakota skipper populations relies on careful implementation of management practices that conserve its habitat while minimizing adverse effects. Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies. (68) Comment: The Basin Electric Cooperative stated that the large amount of the proposed critical habitat for the Dakota skipper and Poweshiek skipperling is either private or State-owned land. They encouraged the Service to work with States and private landowners to preserve habitat and to educate private landowners on best practices, particularly regarding grazing, as this would greatly benefit both species. Furthermore, they stated that industry-specific agencies and groups may have greater access to farmers and ranchers and may be able to provide insight into the most effective way to educate private landowners. Our Response: We agree that education regarding the practices to maintain and enhance those habitats through grazing or other measures is a crucial part of endangered species conservation. The Service has been working with private landowners to encourage conservation and will continue to do so. Exclusion Comments (69) Comment: The South Dakota Chapter of the Wildlife Society commented that, due to the importance of private lands to the recovery of these species, the Service should consider potential concerns from private landowners with lands proposed for critical habitat designation. Many of the landowners with lands proposed for critical habitat are already engaged as conservation partners through agreements with the Service, Natural Resources Conservation Service, or Farm Services Agency and we encourage the Service to use those existing partnerships as you weigh the benefits of excluding parcels of land in the final designation. However, others may be less familiar with opportunities to work cooperatively with the Service. The organization recommends that the Service exercise maximum flexibility when considering requests for critical habitat exclusions. Our Response: We have repeatedly contacted private landowners who own land within the boundaries of proposed critical habitat and specifically requested their input on any conservation plans, programs, or partnerships in place on any or all of their land, if a critical habitat designation would change how any of those plans, partnerships, or agreements were implemented, and if they had any other comments on potential impacts of critical habitat designations on their property. As discussed in detail in the Consideration of Impacts under section 4(b)(2) of the Act section of this rule, we are excluding some areas that are covered by a variety of conservation plans and partnerships that provide a conservation benefit to Dakota skipper or Poweshiek skipperling. Primary Constituent Elements (70) Comment: The South Dakota Chapter of the Wildlife Society commented that Primary Constituent Element (PCE) 3 for Dakota skipper and PCE 4 for Poweshiek skipperling deviate significantly from what is described in the listing rule as important habitat for both species. PCE 3 for Dakota skipper and PCE 4 for Poweshiek skipperling describe dispersal habitat that would be designated as critical habitat even though such areas may be entirely composed of nonnative grasslands or previously plowed ground. Since native prairie with a quality forb component is the key habitat needed for these species, we encourage the Service to rethink whether designation of tracts of invasive nonnative grass species should be included as critical habitat for these species. There is not good documentation provided in the proposed rule that invasive nonnative grasslands provide good dispersal habitat for these butterfly species and, therefore, if the Service chooses to designate such areas as critical habitat, we recommend providing additional documentation that nonnative grasslands really provide an essential habitat for these species versus just an occasional or theoretical dispersal corridor. Our Response: During mapping of critical habitat areas, those areas suitable for dispersal were kept to a minimum amount of land to connect two or more good or better quality native prairies. Several dispersal areas have been excluded from our designations including 252 ac (102 ha) of dispersal habitat at DS North Dakota Unit 3, a total of 425 ac (172 ha) at PS South Dakota Unit 3B, and 156 ac (ha) at DS North Dakota Unit 5. The largest area of dispersal habitat in the designation is approximately 160 ac (65 ha). There are no critical habitat units that consist solely of PCE 3 for Dakota skipper and PCE 4 for Poweshiek skipperling. These corridors are essential to connect areas of higher quality habitat. (71) Comment: The South Dakota Chapter of the Wildlife Society commented that, if the Service chooses to include dispersal habitat as critical habitat between two or more tracts of property, at least one of the tracts should actually be occupied by the species. In the proposed critical habitat rule there are numerous tracts of private land proposed as dispersal critical habitat that connect only unoccupied parcels of native prairie. The commenter questioned designation of dispersal critical habitat on private lands between other unoccupied parcels when there is no plan to attain occupancy on those parcels. Our Response: Some of the lands we are considering to be “unoccupied” for critical habitat analyses have actually had very recent records of the species but have had only 1 or 2 years of negative surveys (no detections during the survey season). So, even though the Service has analyzed them as if they are unoccupied for the purposes of determining if the areas were essential for conservation of the species, there is still a reasonable chance that populations exist in those “unknown” areas. In our designation, there are 12 Poweshiek skipperling units and 7 Dakota skipper units with dispersal areas that connect higher quality native prairies. For Dakota skipper, most dispersal areas connect native prairies where the species was observed in 2012, so there is a reasonable chance that the species exists at those locations. In addition, two units had dispersal areas connecting native prairies with slightly older records (2008 and 2006). The Dakota skipper unit with an older record (1997) of the species is largely under Federal ownership (111 ac), with some State (6 ac) and private (2 ac) ownership. The private land is largely in a railroad right-of-way and serves as dispersal habitat. Eight of the 12 Poweshiek skipperling units with dispersal habitat have records in 2005 or more recently, so there is a reasonable chance that the species may exist at some of those locations as well. Many of the private areas in these units have been excluded (see our Consideration of Impacts under section 4(b)(2) of the Act section of this rule for details on exclusions). For the four other units, one is entirely owned by The Nature Conservancy, and three have some private land (<72 ac). One of these units overlaps entirely with the Dakota skipper unit described above with the railroad right-of-way. The private land at one of the two remaining Poweshiek skipperling units consists of about 28 ac (11 ha) of native prairie and 43 ac (17 ha) dispersal habitat. The 22 ac (9 ha) of private land in PS Minnesota Unit 11 is purely dispersal area. Since dispersal areas ( e.g. , previously tilled areas, areas dominated by nonnative species, etc.) are not suitable for larval growth, the dispersal areas are only utilized during the adult flight period. Therefore, the likelihood of take of the species outside of June or July would be highly unlikely. Only those projects or actions that occur in areas where the butterflies may be present or on designated critical habitat and that have a Federal nexus (in other words, funded, authorized, or carried out by a Federal agency) must undergo consultation with the Service under section 7 of the Act. In such cases, it is the responsibility of the Federal agency involved to complete the consultation. (72) Comment: The South Dakota Chapter of the Wildlife Society commented that critical habitat designations of unoccupied habitat on non-Federal lands are likely to make future reintroductions or translocations much more difficult because of potential landowner opposition resulting from critical habitat designation without consent. Our Response: See our response to the previous comment regarding unoccupied lands. To maintain conservation partnerships with private landowners, we have excluded many parcels of private land due to existing conservation efforts (see Consideration of Impacts under section 4(b)(2) of the Act section of this final rule). Property owners are often willing partners in species recovery, however, some property owners may be reluctant to undertake activities that support or attract listed species on their properties, due to fear of future restrictions related to the Act. There are tools available to address this concern, such as a safe harbor agreement (SHA) that provides assurances to participating landowners that future property use restrictions will not occur. SHAs are intended to provide a net conservation benefit that contributes to the recovery of the covered species. We recommend that landowners who are interested in conservation partnerships discuss opportunities with the Service Ecological Services Field Office in their State. Criteria for Critical Habitat (73) Comment: One commenter suggested that the Service's methodology for classifying occupancy for purposes of identifying critical habitat for recovery is well supported. Given the difficulties of detecting these small butterflies most observable in the brief period per year when they are in the adult life stage, a conservative approach is justified. The timing of the adult flight period and the species' abundance varies greatly among years, due to climatic variation. At least 3 years of surveys are needed before an area should be considered extirpated. Furthermore, those 3 years of surveys need to be detailed efforts per survey, with multiple dates of surveys per year. Our Response: Thank you for your comment. We agree that multiple dates of surveys per year are desired to verify non-detection of the species in a given year. We have added language to clarify that point in the Background section of this final rule as well as the final listing rule published on October 24, 2014 (79 FR 63671). (74) Comment: The Nature Conservancy in Minnesota, North Dakota, and South Dakota stated that while all the sites designated as critical habitat were based on current or very recent occupancy, inventory work leading to the identification of those sites in the past has been sporadic and not comprehensive. Not all potential habitat was surveyed, and the inventory work that was done tended to focus on the same easily accessible prairie tracts. Restricting critical habitat to only the tracts inventoried may miss other potentially suitable habitat. A landscape analysis identifying areas of suitable habitat based on the description of physical and biological features necessary to support both species as described in the proposed critical habitat would strengthen the justification and objectivity for critical habitat designations. Our Response: We agree that there has not been a range-wide systematic sampling design implemented to identify new locations of the Dakota skipper and Poweshiek skipperling. The search for additional potential locations of both species has been conducted using a variety of different approaches over the years and potential sites have been narrowed down on the landscape by examining topographic and aerial maps, State natural heritage habitat mapping data, aerial surveys, roadside surveys, and other methods. Other sites have been surveyed due to a proposed project and the potential for suitable habitat in the area or proximity to other known locations of one or both species. Many sites are repeatedly surveyed in order to understand long-term trends in the presence of the species or to quantify other population parameters. Although only a small fraction of all grassland in North Dakota, South Dakota, and Minnesota has been surveyed for Dakota skippers, a significant proportion of the unsurveyed area is likely not suitable for Dakota skipper. For example, the species was never detected at approximately 108 additional locations in North Dakota that were surveyed for the species from 1991 through 2013 (USFWS 2014, unpubl. geodatabase). Similarly, in South Dakota and Minnesota, 79 and 148 additional locations, respectively, were surveyed for the species from 1991 through 2013 (USFWS 2014, unpubl. geodatabase). Many of these sites have been surveyed multiple times over several years. Surveys for the Dakota skipper are typically conducted only in areas where floristic characteristics are indicative of their presence. New potential sites surveyed are generally focused on prairie habitats that appear suitable for the species and have a good potential of finding the species; in other words, sites are not randomly selected across the landscape. Therefore, these sites have a higher likelihood of detecting the species than at sites randomly selected across the landscape. Based on these surveys, the likelihood that significant numbers of undiscovered Dakota skipper populations occur in North Dakota, South Dakota, and Minnesota is low. Likewise, the likelihood that significant numbers of undiscovered Poweshiek skipperling populations occur in its range is low. We acknowledge that there may be some undiscovered populations and additional areas of suitable habitats, however, and are starting to explore the potential of using spatially explicit modeling to develop probability occurrence maps of both species to help direct future surveys and conservation efforts. (75) Comment: The Nature Conservancy in Minnesota, North Dakota, and South Dakota supported the Service's justification for why representation, redundancy, and resiliency are important for conservation of species. While good evidence is presented as to how the sites proposed as critical habitat provide good redundancy across the species' historic geographic ranges, evidence that these areas will be sufficient to support viable populations of butterflies long term is lacking. They further encouraged the Service to make explicit the rationale for critical habitat designation and the goals of critical habitat designation. A spatially explicit population viability analysis would be a valuable addition to the information provided and would help provide clarity to the need for designating critical habitat in unoccupied areas. Data or evidence to suggest that currently occupied habitat is insufficient or that the current portfolio of occupied and unoccupied sites is sufficient would strengthen the case for designating all the sites as critical habitat. Our Response: We are interested in potentially utilizing spatially explicit population viability analysis as a tool for determining important recovery areas in addition to our designated critical habitat units, to help support viable populations of butterflies into the future. To conduct this type of analysis, it will be important to gather additional population demography and habitat data. For the long term, for example, it would be important to have models that predicted response of prairie remnant habitats to climate change and other landscape-level stressors. The rationale and importance of critical habitat designation is discussed in the Critical Habitat section of this rule. (76) Comment: The South Dakota Chapter of the Wildlife Society stated that areas that have never been surveyed for the butterflies can be considered occupied if near occupied areas, but within a critical habitat unit comprising multiple landowners, there can be wide disparity between management practices among owners that can heavily influence occupancy. Therefore, they encouraged the Service to revise the idea of identifying private lands within a critical habitat unit as occupied if those private lands have not been surveyed or surveyed within the last 3 to 5 years. Furthermore, they encouraged the Service to identify within the Dakota skipper critical habitat units which tracts were found to be occupied rather than assigning occupancy to the entire unit. For example, in extreme cases, surveys dating to 1993 and conducted on a Federal land parcel could be used to assign occupancy onto private lands that have never been surveyed and then propose those private lands for designation as occupied critical habitat. The organization stated that this level of overreach, to assert Dakota skipper occupancy onto unsurveyed private lands, will likely make the partnerships needed for reintroductions or translocations much more difficult. Our Response: There are five Dakota skipper critical habitat units which we analyzed as unoccupied that do not have recent records (since 2002). Two of the five Dakota skipper units have portions owned by private citizens, totaling 21 acres (8 ha). Since the Dakota skipper has an estimated maximum dispersal of about 1 km (0.8 mi) during its adult flight period, we assume that the butterfly could move across ownerships unless there was a barrier to dispersal. When determining if areas were suitable for inclusion in our designations, we closely examined the land using aerial photography interpretation coupled with recent on-the-ground information that was provided to us. Although we did these analyses using only biological and ecological information (without looking at landownership), it was usually very clear from the aerial photographs, when land was managed in ways that were not conducive to the species. Unless those areas provided dispersal areas between two high-quality native remnant prairies, those areas were not included in our designations. Unit-Specific Comments (77) Comment: Several organizations and private citizens provided suggestions for specific revisions to some units. Our Response: We have considered the comments and made revisions as appropriate, based on our analysis. (78) Comment: Several organizations and private citizens suggested that certain units be excluded from critical habitat. Our Response: We have considered the comments and made revisions as appropriate, based on our analysis. (79) Comment: The Michigan Nature Association (MNA) commented that the prairie fens in Michigan, which contain the remaining Poweshiek skipperling populations, are dependent upon functional fen hydrology. The high quality of these fen communities relies on consistent groundwater input and their related groundwater recharge areas. MNA stated that the critical habitat designated areas do not appear to address this hydrological component of the prairie fen dynamic or be at a scale that can address the hydrology of these fens, which is critical to maintaining the species. Our Response: We recognize the importance of maintaining functional hydrology in prairie wetlands, particularly prairie fens in Michigan. This is further discussed in the Habitats Protected from Disturbance or Representative of the Historical, Geographic, and Ecological Distributions of the Species section of this final rule. Primary Constituent Element 2d directly states that the prairie fens require functional hydrology necessary to maintain fen habitat, which will be considered during section 7 consultations for projects on critical habitat with a Federal nexus. We are interested in working with hydrologists during recovery planning and implementation for these species. Public Comments General (80) Comment: One commenter requested that the Service post the two internal Service documents that are cited in the proposed ruling. Our Response: The Service's databases were referenced several times within the document ( e.g. , USFWS 2014, unpublished geodatabase). These databases were built using hundreds of sources, including unpublished reports, published papers, and State heritage data. We referenced these databases in the proposed and final critical habitat document in places where we summarized data across many sources. Those sources, listed in the literature-cited supporting document, are available upon request from the Twin Cities Field Office. (81) Comment: One commenter stated that it is more appropriate to use public lands, rather than private lands, to protect the Poweshiek skipperling. This reviewer supported the protection of the species as long as doing so does not restrict the life, liberty, and pursuit of happiness of private citizens. Our Response: The Service considers physical and biological features needed for life processes and successful reproduction of the species, regardless of ownership, when proposing critical habitat areas. That analysis revealed that some of the most important areas for Poweshiek skipperling are on private lands. However, section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The notice of availability of the draft economic analysis was published in the Federal Register on September 23, 2014—the economic analysis examined the economic effects of critical habitat designations. In addition, we recognize the importance of maintaining conservation partnerships with landowners who have been participating in various programs, such as conservation easements that prevent cultivation of native grasslands, and have excluded those areas from this final designation. Conservation easements that prevent cultivation of native grasslands provide essential protections against this most basic and severe threat to the habitats of Dakota skipper and Poweshiek skipperling. See the Consideration of Impacts Under Section 4(b)(2) of the Act section of this final ruling for further details. Proposed projects in areas where one or both species may be present or on designated critical habitat that have a Federal nexus (in other words, funded, authorized or carried out by a Federal agency) will be required to undergo consultation with the Service under section 7 of the Act. (82) Comment: A few individuals asked why the public, and specifically, affected land owners, were not informed of the proposed critical habitat earlier in the process. Our Response: We notified landowners once we analyzed our information and developed the proposed rule. We were only able to notify landowners after the analysis was completed. (83) Comment: One individual commented that many of the proposed critical habitat tracts appear to be those areas where private landowners allowed surveyors to search for these butterflies. Its seems like the Service is now penalizing those landowners, who in the past cooperated with butterfly surveyors, by now proposing, without their permission, their private lands as critical habitat. The perception that the Service targeted those landowners who granted permission for surveys to propose their lands is very real and potentially damaging to the Service's brand. The commenter stated that, for the sake of good Service programs and the butterflies, the Service should address this in the final rule and be deferential to the wishes of landowners who protected habitat for these butterflies and allowed surveys. Our Response: The Service acknowledges the importance of landowner cooperation in conserving the Dakota skipper and Poweshiek skipperling. Landowners deserve credit for their stewardship and permission to allow surveys, and we want to encourage their management practices that support the butterflies. Some landowners responded to the proposed designation of critical habitat on their lands by refusing permission to conduct surveys for Dakota skipper. In 2014, for example, about half of the private landowners in North Dakota who had allowed access for surveys before the Service had proposed their land as critical habitat refused permission to the Service's contractor to access the site (Royer et al. 2014, p. v). We think that excluding lands covered by certain conservation plans from the final critical habitat designation will increase the likelihood that we will find the number of cooperative landowners that we will need to recover the species. For more information on which private lands were excluded, see the Consideration of Impacts Under Section 4(b)(2) of the Act section of this final rule. (84) Comment: The Service's definition of occupied critical habitat includes areas that have never been surveyed for these butterflies and instead relies upon surveys going back up to 20 years on nearby lands where the butterfly was found. That is then used as a reason to declare nearby private lands as occupied. This process is inappropriate and does not take into account the different management that can occur on private land tracts that can impact butterfly presence. This situation is not a good way to develop partnerships or promote endangered species conservation. The commenter recommended that the Service modify the definition of occupied critical habitat to require surveys that actually located the species on a tract of land within the last 3 years. Landowners who have cooperated by allowing surveys and doing conscientious management to keep Dakota skippers present should not be penalized with critical habitat designations unless they contact the Service and indicate their willingness to be included in critical habitat. Our Response: Most units that are considered occupied by the Dakota skipper for purposes of this designation have very recent records (2002 or more recently), with only a few exceptions. In areas without recent records or butterfly surveys, recent habitat evaluations (2010-2013) have confirmed the presence of suitable habitat. (85) Comment: One commenter wanted to know who was out in Critical Habitat Unit 12 to survey for butterflies. Our Response: Butterfly surveys in North Dakota and elsewhere were conducted by qualified surveyors with sufficient experience to identify the species and their habitats. Survey reports are cited in this final ruling and the final listing rule, published on October 24, 2014. (86) Comment: One commenter wanted to know if they could get the aerial photography of the butterflies. Our Response: The aerial photography we referred to in our proposals and this final designation is taken at a scale (approximately 1:1,000,00 to 1:6,000) that is unsuitable for detecting individual butterflies, instead, aerial photography is used for examining habitat. We conducted aerial photograph interpretation using the National Agriculture Imagery Program (NAIP) aerial imagery, which was acquired during the 2010-2011 agricultural growing seasons, to draw and refine polygons around areas that contain the physical or biological features essential for the conservation of the species. County-specific NAIP aerial imagery that we used is available upon request from the Twin Cities Field Office (See FOR FURTHER INFORMATION CONTACT ). Regularly updated aerial imagery is publically available at http://www.arcgis.com/home/webmap/viewer.html?webmap=c1c2090ed8594e0193194b750d0d5f83. Economic Concerns (87) Comment: One individual asked to be provided a copy of the critical habitat economic analysis when it becomes available for public review. In South Dakota, land that is designated as critical habitat is likely to be valued differently (lower) than a tract of similar land not so designated because future prospective buyers of that property will be wary of the Endangered Species Act. Thus, the commenter stated that if a landowner wants to sell land that is designated as critical habitat, they are likely to receive less money for that land than other non-encumbered similar land. It will be important for the economic analysis to consider property devaluation/resale value and incorporate it into the economic impact analysis being conducted. Our Response: We announced the public availability of the economic analysis on September 23, 2014, and sent copies of the news release and links to the draft economics memorandums to each private landowner within proposed critical habitat areas. We also made publically available a separate memorandum that analyzed the land value issue. See the Supplemental Information on Land Values—Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling regarding perceptions of monetary value of property designated as critical habitat. The draft Screening Analysis of the Likely Economic Impacts of Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling and the Supplemental Information on Land Values—Critical Habitat Designation for the Dakota Skipper and Poweshiek Skipperling became publically available on September 23, 2014, at http://www.fws.gov/midwest/Endangered/insects/dask/pdf/TwoButterfliesScreeningMemo8Sept2014.pdf and http://www.fws.gov/midwest/Endangered/insects/dask/pdf/TwoButterfliesPerceptionEffectsMemo8Sept2014.pdf. (88) Comment: One commenter stated that the critical habitat designation is not overly prohibitive to economic development. Our Response: The Service agrees with this statement. As summarized in the draft economic analysis screening memo released on September 23, 2014, the Service does not anticipate significant impacts as a result of this critical habitat designation. (89) Comment: One individual commented that, because the proposed critical habitat units would not be protected preserves, per se, development and agriculture could still exist on them. Practices would be limited in order to ensure the conservation of the species, but by and large, previous uses of the land could continue. This provides an economically conscious compromise for all parties. Locations with large amounts of industrial development are not included in the designations, which lessens the economic burden. Our Response: The commenter is correct that critical habitat designations do not equate to a preserve. Federal agencies are required to consult with the Service when a project they are funding, permitting, or working on is likely to affect the species for which critical habitat is designated. (90) Comment: One individual stated that, even though some lands proposed for critical habitat may be occupied at the present, it appears that many critical habitat tracts that the Service thinks are occupied by Dakota skipper now may not be so in the near future based on the information in the proposed rule for Minnesota and Iowa. The commenter wanted to know how the Service would evaluate the economic impacts of critical habitat for lands that shift from occupied to unoccupied status. Our Response: The occupancy status of the critical habitat units is that at the time of listing, which occurred on October 24, 2014. We suggest you contact the Service's Ecological Services Field Office in your State to determine whether or not the species may or may not be present. Projects with a Federal nexus, proposed in unoccupied critical habitat areas, will need to undergo consultation under section 7 of the Act. (91) Comment: An individual commented that they and the individual's family has maintained one of the two best examples of a natural fen in the world for the past 52 years. There is no assistance with taxes, trespassers, land quality maintenance, or treachery, and there are no protections afforded a land owner from fraudulent claims of eminent domain. The commenter wanted to know what is the benefit of supporting this initiative, what would this do to the family's ability to sell or otherwise use this land, and what assistance is available to mitigate the tax burden. Our Response: Landowners deserve credit for their stewardship, and we want to encourage their management practices that support the butterflies. We are unaware of a tax burden that would affect private property designated as critical habitat. The Service and other conservation agencies may purchase property from willing sellers, and we recommend you contact your State's Ecological Services Field Office to discuss further opportunities. (92) Comment: One individual wondered why a potential buyer would purchase a parcel inside of designated critical habitat when it would be easier to purchase land outside of designated critical habitat and avoid Federal permitting. Our Response: A critical habitat desi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-24184. Public record. Not legal advice.