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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0026; 92210-1117-0000-B4]

RIN 1018-AV78

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate revised critical habitat for the contiguous United States distinct population segment of the Canada lynx (

Lynx canadensis

) (lynx) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 39,000 square miles (mi

2

) (101,010 square kilometers (km

2

)) fall within the boundaries of the revised critical habitat designation, in five units in the States of Maine, Minnesota, Montana, Wyoming, Idaho, and Washington.

DATES:

This rule becomes effective on March 27, 2009.

ADDRESSES:

Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours, at the Montana Ecological Services Office, 585 Shepard Way, Helena, MT 59601; telephone 406-449-5225. The final rule, environmental assessment, and economic analysis are available on the Internet at

http://www.regulations.gov

and at

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

.

FOR FURTHER INFORMATION CONTACT:

Mark Wilson, Field Supervisor, Montana Ecological Services Office (see

ADDRESSES

section) (406-449-5225); Lori Nordstrom, Field Supervisor, Maine Field Office (207-827-5938); Tony Sullins, Field Supervisor, Twin Cities Ecological Services Office (Minnesota) (612-725-3548); or Mark Miller, Field Supervisor, Upper Columbia Fish and Wildlife Office (Washington) (509-891-6839).

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only topics relevant to the revised designation of critical habitat in this rule. For more information about the listing of the Canada lynx, refer to the final listing rule published in the

Federal Register

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

Federal Register

on July 3, 2003 (68 FR 40076), the proposed rule to designate revised critical habitat rule published in the

Federal Register

on February 28, 2008 (73 FR 10860), and the notice announcing the availability of the draft economic analysis (DEA), draft environmental assessment, and reopening the comment period that published on October 21, 2008 (73 FR 62450).

Species Information

Canada lynx are medium-sized cats, generally measuring 30 to 35 inches (in) (75 to 90 centimeters (cm)) long and weighing 18 to 23 pounds (8 to 10.5 kilograms) (Quinn and Parker 1987, Table 1). They have large, well-furred feet and long legs for traversing snow; tufts on the ears; and short, black-tipped tails.

Lynx are highly specialized predators of snowshoe hare (

Lepus americanus

) (McCord and Cardoza 1982, p. 744; Quinn and Parker 1987, pp. 684-685; Aubry

et al.

2000, pp. 375-378). Lynx and snowshoe hares are strongly associated with what is broadly described as boreal forest (Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743; Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry

et al.

2000, pp. 378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey

et al.

2000b, pp. 211-232). The predominant vegetation of boreal forest is conifer trees, primarily species of spruce (

Picea

spp.) and fir (

Abies

spp.) (Elliot-Fisk 1988, pp. 34-35, 37-42). In the contiguous United States, the boreal forest types transition to deciduous temperate forest in the Northeast and Great Lakes and to subalpine forest in the west (Agee 2000, pp. 40-41). Lynx habitat can generally be described as moist boreal forests that have cold, snowy winters and a snowshoe hare prey base (Quinn and Parker 1987, p. 684-685; Agee 2000, pp. 39-47; Aubry

et al.

2000, pp. 373-375; Buskirk

et al.

2000b, pp. 397-405; Ruggiero

et al.

2000, pp. 445-447). In mountainous areas, the boreal forests that lynx use are characterized by scattered moist forest types with high hare densities in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest) with low hare densities. In these areas, lynx incorporate the matrix habitat (non-boreal forest habitat elements) into their home ranges and use it for traveling between patches of boreal forest that support high hare densities where most foraging occurs.

Snow conditions also determine the distribution of lynx (Ruggiero

et al.

2000, pp. 445-449). Lynx are morphologically and physiologically adapted for hunting snowshoe hares and surviving in areas that have cold winters with deep, fluffy snow for extended periods. These adaptations provide lynx a competitive advantage over potential competitors, such as bobcats (

Lynx rufus

) or coyotes (

Canis latrans

) (McCord and Cardoza 1982, p. 748; Buskirk

et al.

2000a, pp. 86-95; Ruediger

et al.

2000, p. 1-11; Ruggiero

et al.

2000, pp. 445, 450). Bobcats and coyotes have a higher foot load (more weight per surface area of foot), which causes them to sink into the snow more than lynx. Therefore, bobcats and coyotes cannot efficiently hunt in fluffy or deep snow and are at a competitive disadvantage to lynx. Long-term snow conditions presumably limit the winter distribution of potential lynx competitors such as bobcats (McCord and Cardoza 1982, p. 748) or coyotes.

Lynx Habitat Requirements

Because of the patchiness and temporal nature of high-quality snowshoe hare habitat, lynx populations require large boreal forest landscapes to ensure that sufficient high quality snowshoe hare habitat is available and to ensure that lynx may move freely among patches of suitable habitat and among subpopulations of lynx. Populations that are composed of a number of discrete subpopulations, connected by dispersal, are called metapopulations (McKelvey

et al.

2000c, p. 25). Individual lynx maintain large home ranges (reported as generally ranging between 12 to 83 mi

2

(31 to 216 km

2

)) (Koehler 1990, p. 847; Aubry

et al.

2000, pp. 382-386; Squires and Laurion 2000, pp. 342-347; Squires

et al.

2004b, pp. 13-16, Table 6; Vashon

et al.

2005a, pp. 7-11). The size of lynx home ranges varies depending on abundance of prey, the animal's gender and age, the season, and the density of lynx populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and Mowat 1996, pp. 951, 956; Aubry

et al.

2000, pp. 382-386; Mowat

et al.

2000, pp. 276-280; Vashon

et al.

2005a, pp. 9-10). When densities of snowshoe hares decline, for example, lynx enlarge their home ranges to obtain sufficient amounts of food to survive and reproduce.

In the contiguous United States, the boreal forest landscape is naturally patchy and transitional because it is the southern edge of the boreal forest range. This generally limits snowshoe hare populations in the contiguous United States from achieving densities similar to those of the expansive northern

boreal forest in Canada (Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84). Additionally, the presence of more snowshoe hare predators and competitors at southern latitudes may inhibit the potential for high-density hare populations (Wolff 1980, p. 128). As a result, lynx generally occur at relatively low densities in the contiguous United States compared to the high lynx densities that occur in the northern boreal forest of Canada (Aubry

et al.

2000, pp. 375, 393-394) or the densities of species such as the bobcat, which is a habitat and prey generalist.

Lynx are highly mobile and generally move long distances (greater than 60 mi (100 km)) (Aubry

et al.

2000, pp. 386-387; Mowat

et al.

2000, pp. 290-294). Lynx disperse primarily when snowshoe hare populations decline (Ward and Krebs 1985, pp. 2821-2823; O'Donoghue

et al.

1997, pp. 156, 159; Poole 1997, pp. 499-503). Subadult lynx disperse even when prey is abundant (Poole 1997, pp. 502-503), presumably to establish new home ranges. Lynx also make exploratory movements outside their home ranges (Aubry

et al.

2000, p. 386; Squires

et al.

2001, pp. 18-26).

The boreal forest landscape is naturally dynamic. Forest stands within the landscape change as they undergo succession after natural or human-caused disturbances such as fire, insect epidemics, wind, ice, disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000, pp. 47-69). As a result, lynx habitat within the boreal forest landscape is typically patchy because the boreal forest contains stands of differing ages and conditions, some of which are suitable as lynx foraging or denning habitat (or will become suitable in the future due to forest succession) and some of which serve as travel routes for lynx moving between foraging and denning habitat (McKelvey

et al.

2000a, pp. 427-434; Hoving

et al.

2004, pp. 290-292).

Snowshoe hares comprise a majority of the lynx diet (Nellis

et al.

1972, pp. 323-325; Brand

et al.

1976, pp. 422-425; Koehler 1990, p. 848; Apps 2000, pp. 358-359, 363; Aubry

et al.

2000, pp. 375-378; Mowat

et al.

2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires

et al.

2004b, p. 15, Table 8). When snowshoe hare populations are low, female lynx produce few or no kittens that survive to independence (Nellis

et al.

1972, pp. 326-328; Brand

et al.

1976, pp. 420, 427; Brand and Keith 1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996, pp. 953-958; O'Donoghue

et al.

1997, pp. 158-159; Aubry

et al.

2000, pp. 388-389; Mowat

et al.

2000, pp. 285-287). Lynx prey opportunistically on other small mammals and birds, particularly during lows in snowshoe hare populations, but alternate prey species may not sufficiently compensate for low availability of snowshoe hares, resulting in reduced lynx populations (Brand

et al.

1976, pp. 422-425; Brand and Keith 1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat

et al.

2000, pp. 267-268).

In northern Canada, lynx populations fluctuate in response to the cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat

et al.

2000, pp. 270-272). Although snowshoe hare populations in the northern portion of their range show strong, regular population cycles, these fluctuations are generally much less pronounced in the southern portion of their range in the contiguous United States (Hodges 2000b, pp. 165-173). In the contiguous United States, the degree to which regional lynx population fluctuations are influenced by local snowshoe hare population dynamics is unclear. However, it is anticipated that because of natural fluctuations in snowshoe hare populations, there will be periods when lynx densities are extremely low.

Because lynx population dynamics, survival, and reproduction are closely tied to snowshoe hare availability, snowshoe hare habitat is a component of lynx habitat. Lynx generally concentrate their foraging and hunting activities in areas where snowshoe hare populations are high (Koehler

et al.

1979, p. 442; Ward and Krebs 1985, pp. 2821-2823; Murray

et al.

1994, p. 1450; O'Donoghue

et al.

1997, pp. 155, 159-160 and 1998, pp. 178-181). Snowshoe hares are most abundant in forests with dense understories that provide forage, cover to escape from predators, and protection during extreme weather (Wolfe

et al.

1982, pp. 665-669; Litvaitis

et al.

1985, pp. 869-872; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-195). Generally, hare densities are higher in regenerating, earlier successional forest stages because they have greater understory structure than mature forests (Buehler and Keith 1982, p. 24; Wolfe

et al.

1982, pp. 665-669; Koehler 1990, pp. 847-848; Hodges 2000b, pp. 183-195; Homyack 2003, pp. 63, 141; Griffin 2004, pp. 84-88). However, snowshoe hares can be abundant in mature forests with dense understories (Griffin 2004, pp. 53-54).

Within the boreal forest, lynx den sites are located where coarse woody debris, such as downed logs and windfalls, provides security and thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744; Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion 2000, pp. 346-347; Organ 2001). The amount of structure (

e.g.

, downed, large, woody debris) appears to be more important than the age of the forest stand for lynx denning habitat (Mowat

et al.

2000, pp. 10-11).

Future of Lynx Habitat

In 2003, we determined that climate change was not a threat to lynx within the contiguous U.S. DPS because the best available science we had at that time (Hoving 2001) was too uncertain in nature (68 FR 40083). Since that time, new information on regional climate changes and potential effects to lynx habitat has been developed (e.g., Gonzalez

et al.

2007, entire; Knowles

et al.

2006, pp. 4545-4559; Danby and Hick 2007, pp. 358-359), and this new information suggests that climate change may be an issue of concern for the future conservation of lynx because lynx distribution and habitat is likely to shift upward in elevation within its currently occupied range as temperatures increase (Gonzalez

et al.

2007, pp. 7, 13-14, 19). This information, combined with the information in Hoving 2001, still needs to be evaluated further to determine how climate change might affect lynx and lynx habitat. We are evaluating this information in the 5-year review we are conducting for lynx.

At this time, we find it appropriate to designate critical habitat for the lynx in areas occupied by the species that currently contain the physical and biological features essential to the conservation of the lynx. Revisions to the critical habitat designation may be necessary in the future to accommodate shifts in the occupied range of the lynx. The revised critical habitat units in this rule include higher-elevation habitats that lynx would be able to continue to use if lynx distribution or habitat shifted upward in elevation.

Previous Federal Actions

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

Federal Register

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

Federal Register

on July 3, 2003 (68 FR 40076), and the final rule designating critical habitat for lynx published in the

Federal Register

on November 9, 2006 (71 FR 66007). On July 20, 2007, we announced that we would review the November 9, 2006, final critical habitat rule after questions were raised about the integrity of scientific information used and whether the decision made was consistent with the appropriate legal standards. Based on our review of

the previous final critical habitat designation, we determined that the critical habitat designation was improperly influenced by then deputy assistant secretary of the Interior Julie MacDonald and, as a result, may not be supported by the record, may not be adequately explained, or may not comport with the best available scientific and commercial information. On January 15, 2008, the U.S. District Court for the District of Columbia issued an order stating the Service's deadlines for a proposed rule for revised critical habitat by February 15, 2008, and a final rule for revised critical habitat by February 15, 2009. Consequently, our proposed rule was signed on February 13, 2008, and submitted to the

Federal Register

. The proposed rule was subsequently published in the

Federal Register

on February 28, 2008 (73 FR 10860). We initiated a 5-year review of the status of lynx on April 18, 2007 (72 FR 19549).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed revised designation of critical habitat for the lynx during two comment periods. The first comment period, associated with the publication of the proposed revised rule (73 FR 10860), opened on February 28, 2008, and closed on April 28, 2008. Five informal public meetings were held during this comment period in Washington (2), Minnesota (2), and Maine (1). We also requested comments on the proposed revised critical habitat designation, associated DEA, and draft environmental assessment during a second comment period which opened October 21, 2008, and closed on November 20, 2008 (73 FR 62450). During this comment period, we held a public hearing on November 7, 2008, in Kalispell, Montana, and one on November 13, 2008, in Cody, Wyoming. We contacted appropriate Federal, State, and local agencies; Tribes; scientific organizations; and other interested parties and invited them to comment on the proposed rule, DEA, and draft environmental assessment.

During the comment period for the proposed rule that was open between February 28, 2008, and April 28, 2008, we received a total of 338 comment letters. For the comment period open from October 21, 2008, to November 20, 2008, we received 184 comment letters and 17 comments at the two public hearings. Comments were received from Federal, State, Tribal and local governments, non-government organizations, private businesses, and individuals.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from 17 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 three of the peer reviewers. The peer reviewers had differing assessments of 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.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for the lynx, and we addressed them in the following summary.

Peer Review Comments

(1) Comment:

Some peer reviewers commented that Federal lands should be included in the final rule due to their importance for lynx in the Distinct Population Segment area and because designation would provide clarification to land managers as to the importance of conserving those lands. The general public also submitted comments noting this issue.

Our response:

We agree that that in all units except Unit 1 (where Federal lands make up a very small portion of the designation), Federal lands are an essential component of the revised critical habitat designation. We have designated critical habitat on Federal lands, as described in this final rule.

(2) Comment:

Some peer reviewers and other commenters stated that our criteria (especially regarding evidence of occupancy and reproduction) for defining lynx critical habitat were too narrow or arbitrary, and resulted in omission of areas they consider important to lynx conservation, particularly the Selkirk and Kettle Mountains, the Southern Rockies/Colorado, and a slightly more extensive area in Minnesota. Other general comments addressed expanding the Greater Yellowstone Area (GYA) to include Grand Teton National Park and southwest Wyoming to protect a corridor for dispersal. Other comments noted the GYA should not be included in critical habitat because it is isolated from populations in Canada. Several peer reviewers noted that it has not been established that the Southern Rockies population is isolated, and therefore this area should be considered critical habitat. Additionally, we received comments recommending we designate critical habitat according to the lynx recovery outline, which included the areas of concern noted above by peer reviewers in addition to areas considered secondary or peripheral to recovery.

General comments also were concerned with our criteria, asserting we should not restrict our designation solely to areas with confirmed evidence of the presence of reproducing lynx populations because lynx surveys have not been adequate to detect all reproducing lynx populations. General comments also questioned why critical habitat designation was restricted to areas of confirmed evidence of reproducing lynx populations and that our revised critical habitat designation should be extended to all occupied areas, areas currently managed for lynx, all habitats supporting snowshoe hares, and unoccupied areas in the historic range of the lynx.

Our response:

Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Not all locations with records of lynx presence are essential for the conservation of the species; lynx are a wide-ranging species, and areas containing periodic records that lack evidence of reproducing populations are not considered essential to the species (see Criteria Uses to Identify Critical Habitat section below). In that section of the proposed and final revised critical habitat rules, we describe in detail the parameters used for delineating areas that contain the physical and biological features essential to the conservation of lynx, as required by the definition of critical habitat when considering occupied areas. We also determined that occupied areas containing the features essential to the conservation of lynx support the majority of recent lynx records and evidence of breeding lynx populations since 1995.

We relied on records since 1995 to ensure that the revised critical habitat designation is based on the best available data that most closely represents the current status of lynx in the contiguous United States and the

geographic area occupied by the species. We recognize that adequate surveys to confirm the presence of lynx populations have not occurred everywhere throughout the species' range; however, no information was provided to us during the public comment periods to suggest where there might be locations with undetected breeding populations that we should more closely evaluate for designation as critical habitat other than the areas we already considered. We determined that the additional areas suggested by commenters are secondary or peripheral areas not essential to the conservation of the lynx.

While reviewing our original critical habitat proposal published on November 9, 2005 (70 FR 68294), we determined that habitat in the GYA contained the physical and biological features essential to the conservation of lynx; in addition, the GYA has a long history of lynx presence and reproduction, and its geographic location connects lynx populations in Canada to lynx habitat in Colorado and Utah. However, we designated areas within the GYA that contain the physical and biological features essential to lynx in sufficient quantity and spatial arrangement as demonstrated by their consistent use by lynx. The entire GYA may be permanently or intermittently occupied by lynx. Lynx may expand into Grand Teton National Park and additional areas in southwestern Wyoming not in the current critical habitat designation, but we have no indication that the habitat contains the physical and biological features essential to the species in necessary quantities to support populations of lynx.

The methodology we used in defining areas for lynx critical habitat did not mirror that used for the lynx recovery outline, but did reflect the biological concepts considered in the recovery outline. We used the best scientific information available in determining which areas contained the features essential for the conservation of lynx. As explained on pages 10869 to 10871 of the proposal to revise critical habitat (February 28, 2008; 73 FR 10860), the areas we determined to be essential for the conservation of lynx do not include all the areas identified in the recovery outline. The criteria we used for determining areas essential to the conservation of lynx for the revised critical habitat designation are based on the critical habitat requirements of the Act, which are more selective than those used for delineating the recovery areas in the lynx recovery outline. The recovery outline more broadly encompasses older records of lynx and gave less weight to direct connectivity with Canada, although in the recovery outline it was recognized that maintaining connectivity with Canadian lynx populations was important. Furthermore, the areas in the recovery outline were mapped conceptually, include substantial areas that do not contain the physical and biological features essential for lynx or are both unoccupied and not essential for lynx conservation, and therefore do not meet the definition of critical habitat. We refined our mapping for the purposes of designating critical habitat in order to meet the statutory requirements associated with critical habitat. As a result, areas determined to be essential to the conservation of lynx for the purposes of critical habitat did not include all the areas delineated in the recovery outline.

The Kettle Range in north-central Washington historically supported lynx populations (Stinson 2001, pp. 13-14), and boreal forest habitat within the Kettle Range appears to contain habitat for lynx; however, there is no evidence that the Kettle Range is currently occupied by a reproducing lynx population (Koehler 2005 entire); therefore, it did not meet the methodology we used for determining occupancy (see Criteria Used To Identify Critical Habitat in the proposed rule, February 28, 2008; 73 FR 10860). In addition, while the Kettle Range contains physical and biological features important to lynx, its spatial configuration and quantity of habitat do not appear to be sufficient to support a breeding population of lynx.

In the Southern Rockies, it is still uncertain whether a self-sustaining lynx population will become established as a result of Colorado's reintroduction effort (Shenk 2007, p. 18). We recognize that this reintroduction has been an effort to recover the lynx in Colorado; however, the Southern Rockies contain marginal habitat, are on the southern limit of the species' range, and have not been shown to support a breeding population of lynx. Therefore, we find that habitat in Colorado is not essential to the conservation of species.

(3) Comment:

Some peer reviewers commented that wildfire prevention and suppression activities would not be precluded by critical habitat designation and that areas occurring within the wildland-urban interface (WUI) should not be excluded or exclusions should be limited to narrowly defined areas in the immediate vicinity of structures. Some general comments stated that WUI areas should be included in critical habitat because urban interface concerns could be used as an excuse to allow developmental sprawl and meet timber harvest quotas. Commenters raised concerns that lynx habitat management would increase wildfire risk to forests and communities and requested that WUI areas be excluded from critical habitat designation. Other commenters noted that recent forest fires eliminated PCEs in some areas, so removal of those lands from critical habitat designation is justified. Other commenters requested that additional critical habitat be designated as buffers against fire-produced habitat loss.

Our response:

Areas within the WUI are designated as lynx critical habitat as described in this rule. Wildfire is not thought to be a threat to lynx, and often results in beneficial effects when burned areas regenerate into lynx foraging habitat. As described in the final rule listing the lynx (March 24, 2000, 65 FR 16052), natural fire plays an important role in creating the mosaic of vegetation patterns, forest stand ages, and structure that provide good lynx and snowshoe hare habitat, particularly in the western Great Lakes region and in the western mountain ranges of the United States (Agee 2000, pp. 47-56).

Currently, WUI areas are defined by a variety of methods varying from the defensible space immediately surrounding structures out into forest areas within several miles of communities. The designation of critical habitat will not prohibit protection of defensible space around homes or the WUI. The regulatory provisions of critical habitat affect actions on Federal lands or with a Federal nexus. We expect that a majority of urban interface fuels projects would occur under the authority of the U.S. Forest Service (USFS). The Northern Rockies Lynx Management Direction (NRLMD) amending the National Forest's management plans to protect lynx addresses additional fuels reduction projects in areas within the WUI. In our analysis of the NRLMD (USFWS 2007, pp. 67-68) during section 7 consultation with the USFS, we determined that even with additional fuels reduction, the management in the NRLMD would provide for the recovery of lynx in these areas. Areas burned may still contain the physical and biological features essential to lynx; those areas still represent boreal landscapes supporting a mosaic of differing successional forest stages.

We are designating all habitat that meets the criteria for critical habitat, i.e., known to be occupied at the time of listing and containing the physical and biological features essential to the conservation of the species. Neither the

Act nor the implementing regulations provide for designating additional areas as buffers.

(4) Comment:

Some peer reviewers suggested that the proposed revised rule incorrectly characterized lynx foraging habitat, particularly in the western critical habitat units, by failing to highlight the importance of mature, multistoried forest stands for lynx in this area.

Our response:

Recent studies have shown that mature, multistoried stands are important foraging habitat for lynx in Unit 3, and they are likely important in Units 4 and 5 as well. We have added language to clarify this in the final rule.

(5) Comment:

Some peer reviewers felt that statements in the proposed revised rule concerning the low sensitivity of lynx to forest management practices were misleading.

Our response:

The statement in the proposed revised rule raised by commenters relates to “matrix habitat,” which is habitat that surrounds patches of foraging and denning habitat. Matrix habitat, by definition, is habitat that is crucial for preserving the ability of lynx to move between foraging and denning areas. However, the vegetative condition and structure of matrix habitat is not relevant to its value. For this reason, we do not foresee the need for prescriptive management for lynx in matrix habitat beyond maintaining the ability for lynx to move through this habitat to access other habitat types within a home range. We do recognize that lynx are sensitive to forest management practices in foraging and denning habitat and that forest management activities can have significant positive and negative impacts on lynx depending on the nature and timing and activities.

(6) Comment:

Some commenters expressed that seasonal differences in lynx habitat preference is poorly articulated in the proposed revised rule. One commenter pointed out that lynx starvation in northwestern Montana during late winter-early spring is tied to the abundance and quality of winter habitat (mature, multistoried forest) and is the primary issue for lynx conservation in this area.

Our response:

Lynx use a variety of habitat types and conditions during the year, which is why we drew the boundaries of the critical habitat units to include entire landscapes of boreal forest in a variety of successional stages that account for year-round habitat needs.

(7) Comment:

Several peer reviewers and other commenters noted the important role that private lands play in lynx conservation and stated that the final rule should better define the degree to which private lands contribute to lynx persistence.

Our response:

Through the process of developing our proposed revised rule and subsequent modifications, we determined which lands contain features essential to the conservation of lynx. Private lands were included because of their value for lynx conservation. The relative contribution of private lands to lynx conservation varies between the five revised critical habitat units. Unit 1 is almost entirely comprised of private land, and therefore private lands provide almost the entire lynx habitat in this area. Conversely, Units 4 and 5 have relatively little private land, with Federal lands providing the bulk of lynx habitat. Units 2 and 3 have a mix of private, Federal, and State lands. We recognize the essential nature of private lands for lynx conservation where we are designating those lands as critical habitat. We have retained private lands in this final designation in all cases except where we determined, under section 4(b)(2) of the Act, that the benefits of excluding specific areas were greater than the benefits of including those areas in the designation (see Application of Section 4(b)(2) of the Act for more information).

(8) Comment:

Some peer reviewers indicated that the statement in the proposed revised rule that snowshoe hares must be present over a large proportion of the landscape in order for that landscape to support lynx is incorrect. Reviewers cited the presence of lynx in the GYA and Northern Rockies as examples of lynx populations that exist despite the landscape not being dominated by forest types supporting snowshoe hares.

Our response:

While we still highlight that the proportion of the landscape that supports snowshoe hares is important, we acknowledge that the proportion of the landscape that must support snowshoe hares in order to support lynx is not known with certainty. Lynx populations may persist in some mountainous areas despite snowshoe hares occurring in relatively small and isolated patches. We have clarified this point in this final rule.

(9) Comment:

One peer reviewer recommended that the primary constituent element (PCE) identified for lynx be broadened to include multistoried stands of mature conifers with boughs that touch the snow surface, as these are important foraging habitats in Montana and elsewhere in the West.

Our response:

We agree, and we have provided clarification to that portion of the PCE in this final designation.

(10) Comment:

One peer reviewer stated that the definition of denning habitat in the proposed revised rule was not broad enough to capture all of the den sites used by lynx in Montana.

Our response:

The description of denning habitat in the proposed revised rule captures the type of habitat most used by lynx for denning in the contiguous United States. We believe that our description adequately captures lynx denning habitat for the purposes of delineating critical habitat in Montana and in other critical habitat units.

(11) Comment:

Several peer reviewers and one commenter provided views on the relative importance of Tribal lands for lynx conservation. Some thought we should have included some Tribal lands in the proposed revised rule. We received several comments, primarily from Tribes, recommending that all Tribal lands be excluded.

Our response:

In accordance with Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act” (June 5, 1997); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments;” and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2), we believe that fish, wildlife, and other natural resources on Tribal lands are better managed under Tribal authorities, policies, and programs than through Federal regulation wherever possible and practicable. Such designation is often viewed by Tribes as an unwanted intrusion into Tribal self governance, thus compromising the government-to-government relationship essential to achieving our mutual goals of managing for healthy ecosystems upon which the viability of threatened and endangered species populations depend.

We contacted all Tribes potentially affected by the proposed revised designation and met with some of them to discuss their ongoing or future management strategies for lynx. Several Tribes subsequently submitted letters requesting exclusion based on their sovereign rights and concerns about the economic impact and effects on their ability to manage natural resources. As described in our proposed revised rule, we believe that conservation of lynx can be achieved without including Tribal lands within the revised critical habitat units. We determined that these lands are not essential to the conservation of lynx, but also, many of the Tribes have

management plans that provide for lynx habitat needs. The Tribal lands included in the proposed revised designation are found only in the Maine, Minnesota, and Montana units and the size of the areas are relatively small (approximately 223, 187, and 898 km

2

, respectively [86, 72, and 347 mi

2

]). We are excluding these Tribal lands from this final designation under section 4(b)(2) of the Act. See Exclusions Under Section 4(b)(2) of the Act for a discussion of why these lands have been excluded.

(12) Comment:

Some peer reviewers and commenters recommended we use lynx analysis unit (LAU) boundaries as defined by some agencies to define the critical habitat boundaries, because they used habitat-based processes to identify the best lynx habitat.

Our response:

We agree. After receiving numerous comments to this effect, we solicited lynx habitat data and LAU boundary data from Federal and State agencies, as well as private companies in and around the proposed revised critical habitat in Units 2, 3, 4, and 5. We then revised the critical habitat boundary to more closely reflect where lynx habitat occurs and followed LAU boundaries to the extent practicable (e.g., where doing so would not leave out significant lynx habitat or include significant areas of non-lynx habitat). These potential modifications were announced to the public when we announced the availability of the DEA and the draft environmental assessment (73 FR 62450) on October 21, 2008.

(13) Comment:

Some peer reviewers questioned the need to consider climate change in a critical habitat designation. Other peer reviewers and commenters stated the need to designate critical habitat in high elevation habitats that are currently unsuitable for lynx occupancy but may become suitable with climate changes. Other commenters stated that climate change will render some proposed areas unsuitable; therefore, these areas should not be included in the designation. One commenter requested an analysis of climate change effects on each of the microclimes included in the Minnesota proposed critical habitat.

Our response:

We acknowledge that climate change could change the suitability of lynx habitat in the future. However, we are required to designate critical habitat based upon the best available scientific and commercial data at the time that we finalize the designation. At this point in time, reliable projections of future climate in lynx habitat in the contiguous United States are not available. However, for mountain-dwelling species like lynx, we conclude that higher elevation habitat is likely to become increasingly important in the face of climate changes. Designated critical habitat units include the highest-elevation habitat in the areas, and these areas would likely become more important to the extent lynx distribution and habitat shift upward in elevation as temperatures increase. High elevation habitat was included in the proposed designation, and we have determined it is appropriate to include these areas in the final designation.

General Issues and Responses

(1) Comment:

We received numerous comments concerning possible restrictions imposed by critical habitat designation on economic, recreation, forest management, predator control, infrastructure, and energy transmission activities on private and public lands. Some commenters are concerned the designation provides a mechanism for increased third party litigation, and some asserted the designation of critical habitat constitutes an uncompensated taking of private property and is therefore illegal.

Our response:

Critical habitat has a direct regulatory impact on the actions of Federal agencies only. Therefore, a critical habitat designation on private land has no regulatory impact on actions carried out by landowners unless they seek Federal funding or a Federal permit to carry out those actions. For example, if landowners must obtain a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (33 U.S.C. 1251

et seq.

) to carry out an action on their land, the Corps must consult under section 7 to evaluate the effects that the permitted activity may have on critical habitat. Even then, the designation may only have a substantial impact on the activity if it is likely to result in the destruction or adverse modification of the critical habitat. It is the responsibility of the Federal agency, not the private landowner, to initiate the consultation with the Service.

The Act prohibits Federal agencies from carrying out actions that would destroy or adversely modify critical habitat. A Federal action (e.g., winter recreation, energy transmission, mining, or road construction) that is not likely to cause destruction or adverse modification of lynx habitat may not be materially affected by a critical habitat designation. Federal action agencies must evaluate the potential effects of each action on its own merits. If a Federal action would result in destruction or adverse modification of lynx habitat, the Service would suggest reasonable and prudent alternatives to avoid the destruction or adverse modification of critical habitat.

Section 4(a)(3) of the Act requires that critical habitat be designated for listed species. The designation of critical habitat for lynx may increase the number of lawsuits brought forward by citizens opposed to certain actions. Although this is possible, these lawsuits may only have merit if the Federal agency that is funding, authorizing, or carrying out the action does not adequately consider its potential effects to critical habitat, or consult, as appropriate, with the Service in making its final decision.

The promulgation of a regulation does not take private property unless the regulation denies the property owners all economically beneficial or productive use of their land. Further, in accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we analyzed the potential takings implications of designating critical habitat for the lynx in a takings implications assessment (TIA), which is available on request. The conclusion in the TIA was that the possibility for take of private property due to designation of critical habitat for lynx is remote.

(2) Comment:

We received several comments stating that the proposed critical habitat designation area should be smaller, or that no critical habitat should be designated. These comments contained little explanation to support the recommendations. Other comments indicated that the area designated for critical habitat in Minnesota was too small to be significant to lynx survival.

Our response:

Section 4(a)(3) of the Act requires that critical habitat be designated for listed species. The lynx was listed as a threatened species under the Act on March 24, 2000 (65 FR 16052). Under section 4(b)(2), the Act requires that a critical habitat designation be made on the basis of the best scientific data available and after taking into consideration the economic impact and any other relevant impact of specifying any particular area as critical habitat. In order for us to consider excluding a particular area from a critical habitat designation based on economic or other relevant impacts, we need geographic specificity and supporting documentation that can be analyzed. The comments did not provide this information, making analysis for exclusion or explanation of inclusion impossible. In general, after considering the data available, we proposed areas for critical habitat that represented the breadth of ecological settings and sufficient number of

populations to satisfy the biological requirements of the lynx and the statutory requirements of the Act.

We believe that the 8,200 mi

2

(21,238 km

2

) of land in Minnesota proposed for critical habitat is a significant part of the designation. The high-quality lynx habitat proposed in the Minnesota unit comprises 20 percent of the total area proposed for critical habitat in the contiguous United States. In addition, the Minnesota unit is the only area in the Great Lakes region with strong, long-term evidence of the persistence of lynx populations. As we explained in detail in the Criteria Used To Identify Critical Habitat section in the proposed rule, the inclusion of the Minnesota unit is important in applying the conservation principles of representation, resiliency, and redundancy to the critical habitat designation for lynx. Focusing lynx conservation efforts, including critical habitat designation, on areas with a long-term presence of reproducing lynx and connectivity to populations in Canada has the greatest chance of ensuring the continued persistence of lynx in the contiguous United States.

(3) Comment:

One commenter indicated that indirect effects of State and local regulations may follow critical habitat designation.

Our response:

We recognize that State and local governments have the authority to promulgate regulations or local rules related to a critical habitat designation. However, listed species and their habitats are protected by the Act regardless of whether they are in areas designated as critical habitat. The draft economic analysis (DEA) addressed the potential for newly promulgated regulations or rules resulting from our critical habitat designation; none were anticipated. Therefore, we do not anticipate additional regulatory restrictions as a result of State or local regulations.

(4) Comment:

Comments included concerns about increased threats to lynx and lynx habitat due to development, vegetation management by Federal agencies that destroys snowshoe hare habitat, and the introduction and proliferation of wolves.

Our response:

Critical habitat designation identifies the specific areas within the geographical area occupied by the species that contain the physical and biological features essential to the conservation of the species, and which may require special management considerations or protection. Designation of critical habitat helps focus conservation and recovery activities. The designation of critical habitat by itself does not achieve conservation or recovery of a species, nor does it prohibit development or forest management activities that alter snowshoe hare habitat. The Act does not automatically restrict all uses of critical habitat, but only imposes restrictions under section 7(a)(2) on Federal agency actions that may result in destruction or adverse modification of critical habitat. Each Federal action, including development, permitting, funding, and forest management, would be evaluated by the involved Federal agency, in consultation with the Service, in relation to its impact on the critical habitat. If, after evaluation and consultation, it is concluded that a proposed action is likely to result in the destruction or adverse modification of critical habitat, the Service is required to suggest reasonable and prudent alternatives to the action that would avoid the destruction or adverse modification of critical habitat.

To a private property owner, the designation of critical habitat becomes important only when undertaking an activity that is authorized, funded, or completed by a Federal agency. Conservation actions, however, are not limited to Federal agencies. Lynx are protected on Federal and non-Federal lands through prohibitions and constraints of section 9 of the Act, regardless of critical habitat designation. Although consultation with the Service is not specifically stated in the Act, non-Federal activities, including development and forest management, may require permitting by the Service if an action would result in a taking of the species as described under section 9 of the Act.

Other predator species could affect lynx negatively by competing for resources, direct predation of lynx, or both. Lynx are vulnerable to competition for prey because of a selective diet that relies heavily on snowshoe hare. Wolf prey competition is unlikely based on the minor inclusion of small mammals in their diet. Wolves could have a positive influence on lynx by killing coyotes that compete with lynx for rabbits and hares. Predation of lynx by wolves has not been identified as a threat to the species.

(5) Comment:

We received several comments requesting additional hearings, public meetings, or an extension of the public comment period. Some commenters stated that public participation was precluded by not adequately notifying landowners about the proposal and not having a completed economic analysis at the time the proposed rule was published. Some commenters felt that access to listing documents, including maps, was not convenient and that the

Federal Register

was an inadequate mechanism for notifying the public of the proposal.

Our response:

We made a concerted effort to provide public notice of this rulemaking. Because of the large scope of the proposed designation it was not possible to contact each landowner. However, we issued a widely-disseminated news release regarding our proposal, and published legal notices in major newspapers in areas involved in the proposal. We published

Federal Register

notices, including the critical habitat proposal, reopening of the comment period, and notice of availability of draft documents. We sent hundreds of letters, cards, and e-mails to State and Federal agencies, Tribal governments, local governments, private individuals, private companies, non-government organizations, and elected officials announcing the proposal, document availability, and public meetings and hearings. We also issued press releases concurrent with

Federal Register

notice announcements. A web page of lynx critical habitat materials and information has been maintained at

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

.

We received several requests for public hearings during the initial comment period for the proposed rule. Hearings were conducted as required under section 4(b)(5)(E) of the Act. Public hearings on the published proposal were held on November 7, 2008, in Kalispell, Montana, and November 13, 2008, in Cody, Wyoming. Open houses and meetings on the published proposal were held on March 25, 2008, Duluth, Minnesota; April 23, 2008, Bloomington, Minnesota; May 20, 2008, Grand Marais, Minnesota; March 25, 2008, Twisp, Washington; and April 2, 2008 and November 10, 2008, Old Town, Maine. In the proposed rule we provided contact information for four Service Field Offices for anyone seeking further information on the proposed revised critical habitat designation. Therefore, we believe that we made a conscientious effort to reach all interested parties and provide avenues for them to obtain information concerning our proposal and supporting documents.

We recognize the scale of the maps published in the

Federal Register

made it difficult to accurately identify whether particular parcels of land were included within the proposed designation. However, the descriptions that began on page 10881 of the proposed rule (73 FR 10860; February 28, 2008) were provided to assist the public in understanding exactly which lands were proposed as critical habitat.

We acknowledge that a draft economic analysis (DEA) was not available to the public at the time of publishing the proposed rule in the

Federal Register

. We considered it important to release the proposed rule to the public for review and comment as soon as possible. The DEA was released for public review as soon as it was completed. The comment period was then reopened for 30 days, and the public had an opportunity to submit comments on both the proposed rule and the accompanying DEA.

(6) Comment:

A commenter stated that the proposed critical habitat rule misrepresented the legal boundaries of Cook County townships in Minnesota leading to a lack of citizen participation. A commenter stated that we misrepresented critical habitat effects on private property, specifically that designation imposes a take permit system for non-Federal activities on private land, thereby limiting public participation and violating the National Environmental Policy Act (NEPA) (42 U.S.C. 4321

et seq.

).

Our response:

We disagree on both issues. We believe that detailed and sufficient information was provided to the public that clearly delineated boundaries for critical habitat. The proposal included a statement on page 10882 that critical habitat does not include towns or populated areas as they now exist. The term “now exist,” is a function of the municipal boundaries that are not delineated by the Service but established, in most cases, by non-Federal, local entities. Numerous areas in Minnesota, including in Cook County, are not included in the critical habitat area. More detailed information on the boundaries of the proposed critical habitat was included on pages 10881 through 10895, with specific delineations for Minnesota on pages 10886 and 10887.

Regulatory implications for private lands were clearly stated in the proposed rule. The designation of critical habitat for the lynx does not affect land ownership or establish a conservation area, does not allow the government or public to access private lands, and does not require (although it encourages) implementation of restoration, recovery, or enhancement measures by a landowner for the lynx. In situations where a landowner seeks Federal agency funding or authorization of an activity that may affect the lynx or its critical habitat, the Federal agency is responsible for complying with section 7 of the Act to determine the impacts of its action on the lynx and its critical habitat. If Federal authorization or funding of the proposed private action is likely to result in the destruction or adverse modification of lynx critical habitat, the Service and the Federal action agency, in coordination with the landowner as an applicant, would cooperate in the development of a reasonable and prudent alternative that avoids that outcome and meets other specific criteria set forth in the regulations. The designation of critical habitat does not institute a permit requirement for the private landowner whose activity results in the take of a listed animal species. Any appropriate permitting became necessary at the time the lynx was listed in 2000.

As stated in the response to Comment 5, we made a conscientious effort to reach all interested parties and provide avenues for them to obtain information, including an environmental assessment for NEPA compliance, and submit comments concerning our proposal.

(7) Comment:

Many commenters did not believe that the lynx qualified as a threatened species. Some commenters thought the species should be delisted, and others thought it should be listed as endangered. Some commenters believe that designation of critical habitat is necessary to recover lynx, but that designation of critical habitat prior to completion of a lynx recovery plan or other lynx conservation guidance is premature. Other commenters were concerned about the effectiveness of critical habitat designation and the ineffectiveness of single species management. Commenters stated that critical habitat designation was in conflict with Federal mining laws, and that other Federal agencies were not complying with the Endangered Species Act, Multiple-use Sustained-yield Act of 1960 (16 U.S.C. 528

et seq.

), and others. Some commenters stated that the 2005 critical habitat rule was supported by the record and should not be changed.

Our response:

The lynx was listed as a threatened species under the Act on March 24, 2000 (65 FR 16052). Section 4(a)(3) of the Act requires that critical habitat be designated for listed species. This rule addresses the required critical habitat designation; listing actions are not part of the critical habitat rule.

On January 15, 2008, the U.S. District Court for the District of Columbia ordered the Service to complete a final rule for revised critical habitat by February 15, 2009. A recovery plan need not be completed before critical habitat is designated, but is useful in guiding the designation if one exists. The drafting and finalization of a recovery plan for lynx has not been feasible due to work load and economic constraints. However, the lynx recovery outline was used to guide the proposed revised lynx critical habitat designation. The areas we considered in our methodology for defining critical habitat for the lynx did not mirror the exact areas identified in the recovery outline, but did reflect the biological concepts considered important in the recovery outline. We used the best science available in determining areas that contained the features essential for the conservation of lynx. Designation of critical habitat does not in itself bring about recovery, but designation of critical habitat can help focus conservation and recovery activities for listed species by identifying areas essential to conserve the species. Specific management recommendations for areas designated as critical habitat are most appropriately addressed in subsequent recovery and management plans.

We agree that research is important, and that managing for a single species may not provide the maximum benefit for a biological community or an ecosystem as a whole. The purpose, however, of the this rulemaking is to comply with a directive of the Act to designate areas with the biological and physical features necessary for the conservation of the lynx.

An analysis of the possible contradictions of statutes or the compliance of Federal agencies with relevant or unrelated laws is not within the purview of this critical habitat rule.

While some believe that our previous designation was satisfactory, we reviewed the previous critical habitat rule for the lynx (71 FR 66007; November 9, 2006) after questions were raised about the integrity of the scientific information used and whether the decision made was consistent with the appropriate legal standards. We determined that it was necessary to revise the critical habitat designation based on that review.

(8) Comment:

Some commenters questioned the presence of primary constituent elements (PCEs) for lynx in specific areas proposed as critical habitat, and recommended that the proposal be refined. Specific areas cited included the shore of Lake Superior, State of Wyoming, existing and proposed mining areas, and matrix habitat. Other commenters asserted that the boundaries we used (such as the 4,000-foot (ft), 1,219-meter (m)) elevation contour or highways were arbitrary and overly broad.

Our response:

We reviewed available maps, peer and public comments, and biological information received during the public comment period. Subsequently, portions of units that did not contain the PCE or where

development was concentrated were removed from the final designation. Any developed areas and the land on which structures are located inside critical habitat boundaries are excluded from critical habitat designation as is described in this final rule. In some areas, unit boundaries were expanded to incorporate adjacent lynx habitat that had been inadvertently left out of the proposed critical habitat.

Designated critical habitat areas in Wyoming (Greater Yellowstone Area (GYA)—Unit 5) have confirmed records of reproducing lynx and contain lynx habitat similar to the Northern Rockies. Lynx are generally associated with the Rocky Mountain Conifer Forest vegetation class in Wyoming, which is dominated by subalpine fir, Engelman spruce, and lodgepole pine. As described in detail in the proposed rule on page 10866, lynx habitat in the GYA is typically found in a widely scattered mosaic of matrix habitat. Individual lynx adjust their home range to incorporate land that is not typical lynx foraging habitat, but is used primarily for travel. The need for matrix habitat designated as critical habitat is most pronounced in the GYA, but matrix habitat is important in all designated areas to retain unimpeded movement of lynx between patches of suitable foraging and denning habitats.

Roads and other human-made structures were used as boundaries for critical habitat where they clearly delineated areas with confirmed records of lynx reproduction and the presence of PCEs. In the Washington State Unit, the 4,000-ft (1,219-m) elevation contour is used to delineate the critical habitat boundary because the features essential to the conservation of lynx, the majority of lynx records, the evidence of reproduction, and the boreal forest types are found above 4,000 ft in Washington State.

(9) Comment:

Comments were received questioning why changes were made from the previous (2005) rule. Specific changes noted were the identification of lands requiring special management; inclusion in the current proposed rule of lands previously exempted under sections 4(b)(2) and 3(5)(a) of the Act; and the expansion of critical habitat beyond the boundaries of Voyageurs National Park and the Boundary Waters Canoe Area in Minnesota.

Our response:

As explained in the “Previous Federal Actions” section on page 10863 of the February 28, 2008 proposed rule, we determined that it is necessary to revise the November 9, 2006, final critical habitat rule as a result of questions that were raised about the integrity of scientific information used in the 2006 designation and whether the decision made was consistent with the appropriate legal standard. As a result, we reconsidered all the lands that were designated, lands that were not designated under section 3(5)(a) of the Act, and lands excluded under section 4(b)(2) of the Act in the 2006 designation.

(10) Comment:

Some commenters indicated that designation provides little or no additional benefit beyond the listing itself, and that critical habitat is not necessary because conservation occurs through other existing means such as the Lynx Conservation Assessment and Strategy (LCAS), National and State Forest Plans, and other actions. Other commenters expressed their support for critical habitat because the designation provides for educational and research opportunities, recreation, and economic and forest management benefits.

Our response:

Compliance with section 4(a)(3) of the Act necessitates that critical habitat be designated for listed species. It is true that a species and habitat upon which it depends are protected under provisions of the Act whether critical habitat is designated or not. However, a critical habitat designation identifies lands on which are found the physical and biological features essential to the conservation of the species that may require special management considerations, and areas outside the geographical area occupied by the species at the time of listing that are essential to the conservation of the species. The identification of these essential areas is important to guide management and provide for the recovery of the species.

As explained in detail in the Benefits of Designating Critical Habitat section of this final rule, the consultation provisions under section 7(a) of the Act constitute the regulatory benefits of critical habitat. Federal agencies must consult with the Service on discretionary actions that may affect a listed species, and in addition, analyze the effects of an action to critical habitat. The analysis of the effects to critical habitat is a separate and different analysis from that of the effects to the species, and may provide greater regulatory benefits to the recovery of a species than listing alone.

Since the lynx was proposed for listing in 1999, the U.S. Forest Service (USFS), Bureau of Land Management (BLM), and National Park Service (NPS) have been instrumental partners with the Service in conservation and recovery of the lynx, and in the development of the Lynx Conservation and Assessment Strategy (LCAS) (Reudiger

et al.

2000). The LCAS constitutes the best available information on conserving lynx, and identifies potential risk factors to lynx and lynx habitat and management guidance to reduce these risks. The Service and USFS are signatories to an agreement protecting lynx on national forest lands until all Land Resource Management Plans (LRMPs) for the relevant forests are amended to include the direction consistent with the LCAS. The National Forests in Units 2, 3, and 5 have all amended their forest plans, and the Okanogan-Wenatchee National Forest in Unit 4 is in the process of amending its LRMP. No Federal lands are included in the critical habitat designation in Unit 1.

During the critical habitat designation process, we evaluated national forest areas to determine if they meet the definition of critical habitat (i.e., if they contain physical or biological features essential to conservation of the lynx and if these essential features may require special management or protection). National forest lands included in this final rule were found to have the essential features for lynx. The essential features on lands covered by management programs or plans that have been revised or amended to adopt the LCAS do require special management or protection, and therefore meet the definition of critical habitat in section 3(5)(A) of the Act.

Lands proposed as critical habitat can be excluded from a final critical habitat designation under section 4(b)(2) of the Act where conservation is addressed by existing protective actions and the benefit of exclusion outweighs the benefit of inclusion, unless the failure to designate such area will result in the extinction of the species concerned. The “Benefits of Excluding Non-Federal lands with Conservation Partnerships” section in this rule details our analysis of excluding or including non-Federal lands.

Critical habitat designation serves to educate the public and State and local governments regarding the potential conservation value of certain areas. Clearly delineating areas helps focus and promote conservation direction and actions. Critical habitat educational benefits, in general, may be redundant with other actions requiring significant public involvement, e.g., habitat conservation plans (HCPs). It is not possible to state broadly that research, recreation, and economies are benefitted by critical habitat designation. A listing under the Act itself focuses research on the species and habitat needs.

Recreation benefits are relative to the type of activity and location. Recreation or aesthetic benefits may come in the form of unquantifiable personal enjoyment or satisfaction. Ancillary benefits and costs to local economies were considered and described in the DEA to the extent data were available.

(11) Comment:

Some commenters questioned the adequacy of the Environmental Assessment (EA) and other aspects of our compliance with NEPA. They felt that the draft EA is lacking information, does not address recovery, and does not address the full range of alternatives. Some recommended an alternative that includes all core areas. Some felt that we should prepare an Environmental Impact Statement (EIS) on this action.

Our response:

We have complied with the requirements of NEPA for this critical habitat designation for lynx. An EIS is required only in instances where a proposed Federal action is expected to have a significant impact on the human environment. We prepared a draft EA and a DEA of the effects of the proposed designation to determine whether designation of critical habitat would have significant impacts. A notice of availability for public review of the draft EA and DEA was published on October 21, 2008 (73 FR 62450). The draft documents have been available since that date on our Web site and by request from the Service's Montana Field Office. We accepted public comment for 30 days after the posting. Following consideration of public comments, we prepared a final EA and determination that critical habitat designation does not constitute a major Federal action having a significant impact on the human environment. That determination is documented in our Finding of No Significant Impact (FONSI). Both the final EA and FONSI are available on our Web site (see

ADDRESSES

section of this rule).

The EA was prepared for this rule to identify alternatives, identify and analyze significant issues, and determine whether additional analysis was required in an EIS. Two alternatives were considered in the EA: the No Action (Baseline) Alternative and the Proposed Action. Two other alternatives were considered but not brought forward for analysis. The two alternatives not considered further were: (1) Critical habitat designation of all areas within the geographic range of the lynx in the contiguous United States, and (2) designation of all recovery areas (including core areas) as described in the lynx recovery outline. These alternatives were not carried forward because the Act specifies that, except in circumstances determined by the Secretary, critical habitat shall not include the entire geographic area that can be occupied by the species, and the recovery outline was not analyzed as an alternative because it did not meet the criteria for critical habitat defined in the proposed rule. For example, the recovery outline identified the Kettle range in Washington State as a core area, but the area has no recent, verified evidence of the presence of a breeding lynx population, and does not meet the criteria as defined in the proposed rule. We developed the proposed alternative using the best available scientific information to reflect the biological concepts considered important in the recovery outline, and included identified core areas that have verified records of long-term lynx occupation and reproduction.

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

(12) Comment:

We received a request to clarify that reservoir water bodies are not included in the critical habitat designation.

Our response:

The clarification that reservoirs are not included in the designation has been included in the final rule.

(13) Comment:

Several commenters recommended that we work with Canada to limit trapping in Canada to conserve lynx and preclude the need for critical habitat designation.

Our response:

We agree that, where applicable, international cooperation on conservation issues is important. Lynx, as listed in the contiguous United States, are considered a unique conservation entity. At this time, the lynx is not listed as an endangered or threatened species in Canada. Lynx are harvested in Canada, and managed under local and provincial game laws that include quotas determined by the population status. At the time of listing in 2000, a lack or inadequacy of regulatory mechanisms and habitat alteration were considered the primary risks to the persistence of lynx in the contiguous United States. Overutilization by trapping and hunting was not considered a major threat to the species (65 FR 16078), and limiting trapping would not preclude the need to designate critical habitat.

(14) Comment:

According to the Maine Department of Inland Fisheries and Wildlife, the Maine Unit was defined using many unverified records. Some lynx locational information given to the Service by the Department did not meet the accepted verification criteria as stated in the proposed critical habitat rule (page 10870). The critical habitat designation in Maine would be smaller if only verified records were used.

Our response:

As we explained on pages 10869-10870 of the proposed rule (73 FR 10860, February 28, 2008), we used snow track records to determine the area occupied by lynx in Maine, which are considered unverified records, in addition to other types of verified records, because of the stringent protocols used in confirming the tracks as lynx and the minimal number of species in Maine with which lynx tracks could be misidentified (McCollough 2006).

(15) Comment:

Some commenters thought that the Lynx Conservation Assessment and Strategy (LCAS) (Ruediger

et al.

2000), Northern Rockies Lynx Management Direction, and the Southern Rockies Lynx Management Direction are inadequate as conservation tools and therefore should not be used as a justification to exclude these areas from the designation. Specifically, the LCAS does not provide for landscape continuity.

Our response:

Lands covered by the LCAS are not being excluded from critical habitat designation. The LCAS (Reudiger

et al.

2000) assists Federal agencies in planning activities and projects in ways that benefit lynx or avoid adverse impacts to lynx and lynx habitat. Conservation agreements between the Service and the USFS and BLM commit the land management agencies to using the LCAS in determining the effects of actions on lynx until Management Plans are amended or revised to adequately conserve lynx. At the time it was written, the LCAS provided the highest level of management and protection for lynx. Since the LCAS was written, new information has become available and research continues that should be taken into account by land managers. Some of this new information was taken into account by the USFS in revising plans under programmatic plan amendments (Northern and Southern Rocky Mountain Lynx Amendments). All National Forests in the critical habitat designation, except the Okanogan-Wenatchee in Washington State,

amended their LRMPs to include the newer lynx direction. The amendment process for the Okanogan-Wenatchee is under way. We analyzed the amendment actions and determined that the management under them would provide for the recovery of lynx in the geographic areas covered (USFWS 2007, entire).

The identified National Forest lands in the final rule were found to have the essential features for lynx. The essential features, on lands covered by management programs or plans that have been revised or amended to adopt the LCAS, do require special management or protection, and therefore meet the definition of critical habitat pursuant to section 3(5)(A) of the Act. In addition, the consultation provisions under section 7(a) of the Act constitute the regulatory benefits of critical habitat. Federal agencies must consult with the Service on discretionary actions that may affect a listed species, and, in addition, analyze the effects of an action to critical habitat. The analysis of the effects to critical habitat is a separate and different analysis from that of the effects to the species, and considers the effects of an action on the larger landscape scale of the critical habitat unit as a whole.

(16) Comment:

Some commenters indicated that the proposal is based on past survey results and not on biological or ecological principles. In addition, some indicated that past records of lynx presence are insufficient in identifying occupied areas, and that lynx survey results are inconsistent from State to State and from agency to agency.

Our response:

As required by section 4(b)(2) of the Act, we base our critical habitat designations on the best scientific data available. Our criteria for determining the areas occupied by lynx are described in the “Criteria Used To Identify Critical Habitat” section on pages 10869-10870 of the proposed rule. We used available data providing verified evidence of the occurrence of lynx and evidence of the presence of breeding lynx populations as represented by records of lynx reproduction. We find that evidence of breeding populations is the best way to verify that the PCEs are present in sufficient quantity and spatial configuration to meet the needs of the species, and qualify as critical habitat. We focused on records since 1995 to ensure that the critical habitat designation is based on the data that most closely represents the current status of lynx in the contiguous United States and the geographic area occupied by the species. We restricted the available lynx occurrence dataset by accepting only verified recent lynx records, because we wanted reliable data for the purposes of evaluating areas and features for critical habitat designation. As described in our response to Comment 14, above, in Maine we also accepted unverified records in the form of snow tracks because of the stringent protocols used in confirming the tracks as lynx and the minimal number of species from which lynx tracks could be misidentified in Maine.

(17) Comment:

We received comments requesting clarification of the criteria used for determining a “self-sustaining population” in the proposed rule, and why definitions for “self-sustaining populations” differ from our Environmental Assessment for the rule and other Federal agency conservation strategies such as the LCAS and National Forest Plans.

Our response:

Our use of the term “self-sustaining population” in the proposed rule relates to populations that are able to maintain a stable or naturally oscillating population structure composed of breeding individuals derived from wild mating and births (rather than introduced animals). A population that has demonstrated robustness to natural fluctuations in prey abundance is a key to determining that it is established. Our use of the term “self-sustaining” may differ from other agencies' use due to the different objectives for conservation strategies. The draft environmental assessment contained a section on Criteria for Defining Essential Habitat that deferred to the proposed critical habitat rule; a definition of “self-sustaining” or “occupied” was not provided in that document. The objective of the LCAS is to achieve conservation of the species on USFS lands while maintaining other uses of forest lands important to the mission of the USFS. The objective of critical habitat is to identify the habitat that is occupied by the species or essential to its conservation, that contains the physical and biological features essential to the species, and that may require special management considerations or protection.

(18) Comment:

Some commenters thought that private or State lands should be included or excluded based on conservation and management agreements.

Our response:

We determined that the benefit of excluding State lands in Washington that are managed under the Washington Department of Natural Resource's (DNR) Lynx Habitat Management Plan and lands in Maine that are enrolled under the Healthy Forest Reserve Program (HFRP) outweighs the benefit of designating them as critical habitat, as allowed under section 4(b)(2) of the Act. As we describe in detail in the Exclusions Under section 4(b)(2) section of this rule, the Washington DNR Lynx Habitat Management Plan and the HFRP in Maine provide certainty that the physical and biological features essential to the conservation of lynx will be conserved. These programs are in place, funding has been committed, and the specific intent of both programs is the conservation and management of lynx; as a result we have a high degree of certainty that both programs will be implemented and that they will be effective in conserving lynx habitat.

We are not excluding any other areas from the designation except Tribal lands, which we are excluding pursuant to Secretarial Order Number 3206, as described in the proposed rule. We have determined that no other lands will be excluded. We considered exclusions for industrial forest lands in Maine and Montana included in draft conservation agreements, lands owned by Plum Creek Timber Company in Maine and Montana, and private and county lands in Minnesota. We value the partnerships we have with these various landowners, and recognize that their cooperation will be necessary to achieve recovery of the lynx. We are not excluding these lands due to the lack of certainty that the plans would effectively conserve the physical and biological features essential to lynx. Additionally, a possibility exists that section 7(a)(2) consultation on a future project having a Federal nexus on any of these lands might result in a determination that an action would result in the destruction or adverse modification of lynx critical habitat.

We are not excluding Montana Department of Natural Resources and Conservation lands in Montana that are under a draft Habitat Conservation Plan for lynx and other listed species, nor are we excluding Plum Creek lands in Maine that are part of the proposed Moosehead Lake Concept Plan, because both of these efforts are still in development and there is a lack of certainty that either effort will be completed. However, we recognize the extensive planning and development that have already been invested in both of these efforts to achieve conservation of lynx and other species.

(19) Comment:

Linkage corridors are important to protect.

Our response:

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

designated for the conservation of the primary constituent element (PCE) essential to the conservation of the lynx and necessary to support lynx life history functions. The PCE comprises the essential features of the boreal forest types that provide, for example, prey, reproduction and denning habitat, and snow conditions that give lynx their competitive advantage. Critical habitat provides habitat connectivity for travel within home ranges, and exploratory movements and dispersal within critical habitat units.

Critical habitat in the final rule was delineated to encompass occupied areas with verified reproduction and containing features essential to the conservation of the lynx to provide connectivity within the particular regional unit and to maintain direct connectivity with lynx populations in Canada. Lynx populations in the contiguous United States are influenced by lynx population dynamics in Canada, and many of these populations in Canada are directly interconnected with U.S. populations; therefore, retaining connectivity with the larger lynx population in Canada is important to ensuring long-term persistence of lynx populations in the United States.

(20) Comment.

At a public meeting for the lynx critical habitat in Spokane, the Service stated that the actual “core” for lynx is in Canada. This contravenes our proposal that there are at least five “critical” or “core” areas in the northern United States.

Our response:

The bulk of the lynx population is in Canada, which can be considered the “core” of its range. However, in the lynx recovery outline (Service 2005), we use the term “core” to define the areas with the strongest long-term evidence of the persistence of lynx populations in the contiguous United States. The recovery outline, however, was not meant to address critical habitat designation and did not identify the primary constituent element for lynx that require special management. For the purposes of critical habitat designation, we refrained from using the term “core areas” to avoid confusion with the definitions used in the recovery outline (see the Relationship to Recovery Outline section). In the Criteria Used to Identify Critical Habitat section of the final rule, we clarified how the areas proposed were determined. We referred to the recovery outline to identify the different geographic areas important to the persistence of reproducing populations of lynx in the contiguous United States. We then focused our strategy on boreal forest landscapes of sufficient size to encompass the temporal and spatial changes in habitat and snowshoe hare populations to support interbreeding lynx populations or metapopulations over time. We also considered the need for connectivity among habitat patches within a geographical area, and connectivity with the larger, more robust Canadian lynx populations. Based on the defined criteria for critical habitat, the units roughly coincide with five of the six “core” areas identified in the recovery outline.

(21) Comment:

Plum Creek Timber Company requested that their properties in Montana and Maine be excluded from the designation based on multiple legal and policy grounds, including: (1) Landowner conservation agreements that Plum Creek is party to provide habitat protections beyond what would be achieved by critical habitat designation; (2) economic impacts to Plum Creek warrant exclusion under Section 4(b)(2) of the Act; and (3) technical and legal reasons, such as that some of the Plum Creek lands in the designation are not lynx habitat or do not exhibit the primary constituent element (PCE), and therefore were erroneously included in the proposed rule.

Our response:

We respond to Plum Creek's comments in a number of different places in this rule. We analyzed the benefits of exclusion and inclusion of Plum Creek lands based on their proposed participation in private lands draft agreements (Maine Forest Products Council and Montana Partnership) in the Exclusions under Section 4(b)(2) of the Act section of this rule. We determined that the benefits of exclusion do not outweigh the benefits of inclusion of Plum Creek lands, and that the lands should remain in the critical habitat designation. Our economic analysis found no basis for excluding Plum Creek lands due to economic factors, including impacts associated with development at Moosehead Lake in Maine. Little economic impact, to Plum Creek and other private landowners, would exist due to the designation of critical habitat. Significant economic impacts to Plum Creek existed due to the listing of lynx; however these impacts would occur regardless of critical habitat designation. Our specific responses to Plum Creek's comments on our economic analysis can be found in comments #14, 15, 20, 21, and 32 below.

We also evaluated Plum Creek's request to exclude lands based on its willingness to develop a habitat conservation plan for its proposed Moosehead Lake development. We acknowledge that Plum Creek has experience creating and implementing conservation plans, but this experience does not justify an exclusion where the State of Maine's re-zoning has yet to be completed and no specific subdivision or development plans have been submitted to us for review. Given that the development of a habitat conservation plan and an incidental take permit has not been completed, we cannot rely on it as a basis for exclusion. Finally, we note that Plum Creek, like others who have requested exclusions, participates in forest certification programs, such as Sustainable Forestry Initiative (SFI). Although participation tends to demonstrate a commitment to resource stewardship, we were not provided with required endangered species or lynx management plans for review. Therefore, we were unable to determine, with reasonable certainty or specificity, the degree to which land management practices currently being employed benefit the lynx or its habitat.

Plum Creek asserts that some of their land does not contain the PCE for lynx, does not qualify for critical habitat protection, and has been erroneously included in the critical habitat designation. Plum Creek specifically mentioned the Olney Block, a property in northwestern Montana, as having too little lynx habitat to be considered essential to the species. Plum Creek has real estate development plans for this area and fears that designation would have a negative impact on their plans. In considering the suitability of the Olney Block property, we referred to our criteria for identifying the PCE for lynx. Boreal forest habitats are the landscapes characterizing PCE for lynx. Individual areas within a boreal forest system may contain one or more of the following:

(a) Presence of snowshoe hares and their preferred habitat conditions, which include dense understories of young trees, shrubs or overhanging boughs that protrude above the snow, and mature multistoried stands with conifer boughs touching the snow surface;

(b) Winter snow conditions that are generally deep and fluffy for extended periods of time;

(c) Sites for denning that have abundant coarse woody debris, such as downed trees and root wads; and

(d) Matrix habitat (e.g., hardwood forest, dry forest, non-forest, or other habitat types that do not support snowshoe hares) that occurs between patches of boreal forest in close juxtaposition (at the scale of a lynx home range) such that lynx are likely to travel through such habitat while accessing patches of boreal forest within a home range.

Lynx are a species that uses habitat at a landscape scale, relying on a landscape of interconnected habitats to travel long distances. For example, lynx home ranges often encompass well over 100 square kilometers (39 square miles). Within this home range, lynx may have to traverse between multiple patches of habitat that provide suitable prey density and denning areas. An individual may have to cross “matrix” habitats that do not provide foraging or denning opportunities, which is why, in the critical habitat designation, we consider matrix habitat to be essential to lynx. Matrix habitat holds a potential lynx home range together. Lynx occupancy of an area cannot be achieved without the potential for the establishment of a home range.

In Plum Creek's habitat analysis, they assert that the Olney Block and other areas do not contain a high enough percentage of “lynx habitat” to be considered essential (they do not define lynx habitat in a way that would allow us to determine if they are using our definition of occupied habitat). Plum Creek did not assess how the habitat within the Olney Block interacts with habitat outside of the parcel on adjacent State land to provide for the potential for lynx occupancy. We characterize habitat within the Olney Block, that does not provide high prey densities or denning habitat, as matrix, and consider it essential to the conservation of lynx that live there, because it provides connectivity of foraging and denning habitat across a large area. Therefore, we are including Plum Creek lands in the final designation.

Economic Issues and Responses

General Comments on Methodology and Scope

(1) Comment:

One commenter expressed concern regarding the validity of the DEA because its conclusions are inconsistent with the August 2006 DEA of Critical Habitat Designation for the Canada Lynx. A comment highlighted that, while the 2006 DEA estimates impacts of $175 million to $889 million, the 2008 DEA quantifies impacts of only $2.82 million for just the administrative costs of section 7 consultation. Because impacts are significantly greater in the 2006 analysis, the commenters assert that the 2008 analysis understates economic impacts.

Our response:

The 2006 DEA quantified present value impacts of $99.5 million to $259 million in areas proposed for critical habitat designation, applying a 7 percent discount rate; the $175 million to $889 million estimate refers to undiscounted impacts and is therefore not directly comparable to the present value impacts in the 2008 DEA. There are several reasons why the values in the 2006 and 2008 analyses differ. First, the impact estimates being compared across the reports in this comment are associated with differing scopes of lynx conservation efforts. The 2006 DEA aggregated and presented the estimated impacts of all future impacts of lynx conservation, including both listing and critical habitat related conservation, as “coextensive” impacts. Coextensive impacts of $99.5 million to $259 million in the 2006 analysis also included impacts associated with overlapping protective measures of other Federal, State, and local laws that aid habitat conservation. The 2008 DEA separately measures: (a) The baseline (without critical habitat) impacts of lynx conservation; and (b) the incremental impacts specifically associated with the critical habitat designation. The present value incremental impacts expected to result solely from the critical habitat designation are estimated to be approximately $1.49 million and are associated with administrative effort for section 7 consultations. All other lynx conservation impacts are estimated to occur regardless of critical habitat designation. The commenter's description of estimated administrative consultation costs in the 2008 DEA of $2.82 million is incorrect; that estimate does not appear in the 2008 DEA. Other differences between the 2006 and 2008 DEA are described in Chapter 1, on pages 1-1 through 1-3, of the 2008 analysis.

(2) Comment:

One commenter expressed concern about the potential for critical habitat to increase delays on the processing and environmental review of Federal permits: for example, projects that require a 404 permit under the Clean Water Act.

Our response:

Section 2.3.2 of the DEA describes the potential for critical habitat designation to result in time delays for permit applications. In the case that critical habitat triggers a delay, it would be considered an incremental impact of the critical habitat designation. The DEA does not, however, forecast that this will be an outcome of the critical habitat designation. To the extent that the presence of critical habitat does result in time delays for projects, the DEA understates the incremental impacts of the critical habitat designation.

(3) Comment:

Multiple comments provided on the DEA stated that it acknowledges the potential for the designation to have indirect effects, such as the enforcement of State and local laws, but fails to quantify the associated costs. One commenter stated that, because the DEA does not quantify such indirect costs, the conservation benefits of these indirect regulatory methods should not be used in the analysis of the overall benefit of critical habitat designation. One commenter asserted that a critical habitat designation can increase attention and concern regarding potential environmental impacts of a project and may lead other permitting agencies to examine a proposal more carefully and take restrictive action that they otherwise would not. Another commenter stated that the DEA acknowledges the potential for a “stigma” effect but does not quantify associated impacts, which would have a greater impact on private landowners than the direct effects.

Our response:

Section 2.3.2 notes that, in some cases, a critical habitat designation may trigger lynx conservation under other State or local laws. The section goes on, however, to describe that no State or local laws were identified in the study area for which critical habitat would trigger additional compliance. As described in Sections 5.1 and 5.5, planning departments in counties containing critical habitat were surveyed to assess whether the designation would affect permitting of development activities. Section 2.3.2 also recognizes that, in some cases, public perception of critical habitat designation may result in limitations of private property uses above and beyond those associated with anticipated project modifications and uncertainty related to regulatory actions. Public attitudes regarding the limits or restrictions of critical habitat can cause real economic effects to property owners, regardless of whether such limits are actually imposed. To the extent that potential stigma effects on real estate markets are probable and identifiable, these impacts are considered indirect, incremental impacts of the designation. It is unknown, however, whether lynx critical habitat will result in long-term stigma effects to property owners; as the public becomes aware of the true regulatory effect imposed by critical habitat, any impact of the designation on property values would be expected to decrease.

(4) Comment:

One commenter stated that assumptions about future behavior based on past performance in the DEA are not accurate. The commenter suggests that a small sampling of private property owners to explore their aspirations for future land use would provide a reality check to the

assumptions made in the economic analysis.

Our response:

The DEA does not rely solely on historic trends to forecast future behavior of landowners. Private landowners were contacted to discuss their ongoing and forecast land management; a list of private landowners that provided information to inform the analysis is included in the References section of the DEA.

(5) Comment:

One commenter stated that the DEA describes 36 percent of the proposed critical habitat in Koochiching County, Minnesota, as being of unknown ownership. The commenter notes that, according to the Koochiching County Assessor, there is no land within the county of unknown ownership. Another commenter stated that the DEA identifies over 1 million acres of third-party-certified county-tax-forfeit forest land as being of unknown ownership in northeast Minnesota. The commenter asserts that the designation of critical habitat without first understanding the economic impacts of such a designation should not be allowed.

Our response:

As described in the landowner type categories of Exhibit 1-2 of the DEA, no land is categorized as being of unknown ownership. Exhibit 5-2 misleadingly included a category “area under unknown ownership.” This label is corrected in the final rule to clarify that these lands are considered as being under private ownership, although the specific landowners are not identified. Regarding the tax forfeit land in northeast Minnesota, Exhibit 1-2 identifies 753,327 acres of land identified as “Local Public Ownership.” These are tax-forfeit public lands owned by the State and managed at the county level. A significant portion of these lands are managed for timber and are analyzed as such in the DEA.

(6) Comment:

One commenter stated that the DEA ignores that private land rights are eroding through partial regulatory takings and assumes that there is no risk that regulatory infrastructure will be used to further diminish private land values.

Our response:

The DEA considers the extent to which lynx conservation may affect private land values. Chapter 5 of the DEA describes impacts to private land values associated with avoiding or minimizing impacts to the lynx and its habitat of proposed development projects. Specifically, as described in Section 5.5, the analysis assumes that where development is limited for the purposes of lynx conservation, a portion of the value of the parcel associated with its potential for future development is lost. As noted in the DEA, however, only one forecast project was identified (the Moosehead Lake Land Use Concept Plan in Maine) for which information on both the scope and scale of the development and on potential lynx conservation recommendations were available to forecast impacts on land values.

(7) Comment:

According to one commenter, the DEA assumes that the only costs imposed on private landowners by critical habitat designation result from administrative effort in conducting section 7 consultation. This assumption ignores future costs for lynx management activities resulting from section 7 consultation. Further, the DEA quantifies costs of lynx management activities already under way and assumes that these plans will be models for conservation efforts in the remaining proposed habitat. The analysis does not, however, quantify costs of implementing these management plans on the 40 percent of habitat that is not covered by existing plans.

Our response:

As described on page ES-2, the DEA quantifies only administrative costs associated with section 7 consultation as incremental impacts of the critical habitat designation. While future consultations are forecast to result in project modifications across the land use activities considered in the report, these project modifications are expected to occur regardless of the critical habitat designation. The Service has not described additional project modifications that may be solely attributable to the designation of critical habitat. With regard to the 40 percent of lands not covered by existing lynx management plans, the DEA does not consider it reasonably foreseeable that all landowners across the areas proposed for critical habitat will adopt lynx management plans following a designation of critical habitat. As described in Chapter 4, the analysis considers where lynx management plans may be applied in the future. Specifically, Section 4.3.3 highlights the potential conservation efforts of future lynx management guidelines for private lands in Maine. These potential guidelines differ significantly from the conservation efforts described in existing lynx management plans (e.g., the LCAS and NRLMD), evidencing that these private lands would not necessarily apply existing lynx management plans.

(8) Comment:

A commenter stated that the DEA described ancillary benefits of lynx critical habitat that are considered to the extent they result in observable impacts on markets. However, the analysis does not quantify these impacts. For example, while reduced economic welfare to snowmobilers associated with increased crowding on trails is quantified as a cost, the analysis doesn't quantify welfare gains to participants in non-motorized recreation associated with reduced noise and air pollution.

Our response:

Section 6.2 considers welfare impacts associated with restrictions on snow mobile trail expansions. Scenario 2 of this analysis assumes that limiting future trail expansions increases crowding on existing trails resulting in decreased utility per snowmobile trip. As such, the analysis does not assume there is a net decrease in snowmobiling but a change in the distribution of the occurrence of snowmobiling. As a result, while some participants engaged in non-motorized recreation in some areas may experience welfare gains (i.e., areas where trails are precluded), others may experience welfare losses (areas in which the existing trails are more crowded). Further, data regarding the distribution of non-motorized recreators in these areas were not available.

(9) Comment:

One comment from the Confederated Salish and Kootenai Tribes of the Flathead Nation stated that the DEA lacked specific information for areas proposed for exclusion from the critical habitat designation.

Our response:

The DEA separates any costs anticipated to occur on areas proposed for exclusion from critical habitat designation. Sections 4.4, 4.5, and 8.5 quantify the pre- and post-designation administrative costs of section 7 consultations on these lands proposed for exclusion, and Section 4.4 quantifies the post-designation baseline impacts to the Passamaquoddy Tribe related to their involvement in the Maine Healthy Forest Reserve Program (Unit 1).

Comments on Timber Issues

(10) Comment:

One commenter stated that the DEA predicts 142 lost jobs due to restrictions on pre-commercial thinning from the designation of critical habitat for the lynx. The comment asserts that this estimate fails to take into account the ancillary employment that will be lost in related markets, such as housing, sawmills, and local retail.

Our response:

As described in Section 4.4.1, the analysis employs a regional economic modeling tool, IMPLAN, to estimate the number of jobs lost in the regional economy due to reduced pre-commercial thinning levels. IMPLAN translates the lost revenues associated with reduced pre-commercial thinning levels into changes in demand for goods and services in related economic sectors

in the regional economy. Thus, the estimated 142 lost jobs in proposed critical habitat unit 4 (presented in Exhibit 4-10) represents the effect of reduced pre-commercial thinning on the regional economy and not just pre-commercial thinning jobs. Additionally, reductions in pre-commercial thinning levels are baseline lynx conservation efforts; no further reductions in pre-commercial thinning levels are estimated to occur due to the designation of critical habitat for the lynx.

(11) Comment:

Two commenters questioned why the Washington Department of Natural Resources (WDNR) foregone revenue impacts are high relative to those of other timber managers. Out of the $13.5 million in foregone timber revenue estimated in the DEA, $11.3 million is associated with WDNR, although it covers a relatively small portion of the critical habitat area. Further, logging is precluded on a considerable portion of the WDNR lands, because the timber rights were purchased for conservation. The commenter questions whether non-lynx-related logging restrictions on the WDNR lands, such as stream buffers, HCPs, and a log import ban, were included in the foregone revenue estimates.

Our response:

Economic impacts associated with public land were based on communication with the landowners regarding the specific conservation efforts they are applying and the resulting economic implications. Post-designation baseline impacts specifically associated with WDNR lands are described in Section 4.5.2 of the analysis. According to the WDNR, lynx conservation efforts on their land in proposed critical habitat resulted in removing land from active timber management. Specifically, 30 percent of the approximately 105,000 acres of WDNR land in proposed critical habitat is removed from active timber management, resulting in economic impacts of $1.06 million annually. While other public landowners implementing lynx management plans have employed lynx conservation efforts, such as restricting pre-commercial thinning, they have not removed land completely from timber production for the purposes of lynx conservation. As a result, the economic impacts of lynx conservation on WDNR lands are greater than on other lands implementing lynx management plans.

(12) Comment:

F.H. Stoltze Land and Lumber commented that it provided information on the potential indirect and direct impacts of critical habitat designation on their lands in previous comment periods but none of that information was used in the DEA.

Our response:

The potential direct and indirect impacts of critical habitat designation provided by F.H. Stoltze Land and Lumber Company (Stoltze) during the public comment period for the proposed rule are summarized in subsection 4.3.6 of the DEA. The section further describes that Stoltze's assumptions regarding how the Service may regulate their lands for the purposes of lynx conservation are not consistent with the assumptions made in the DEA. First, Stoltze quantifies the impacts of the enforcement of lynx conservation on their lands similar to that described in the Lynx Conservation Assessment and Strategy (LCAS). There is no precedent for the Service to request these types of lynx conservation efforts on private lands, nor has the Service indicated it intends to do so in the future. Second, ongoing negotiations regarding lynx management guidelines between the Service and private timber landowners indicates that lynx conservation guidelines for private landowners may differ significantly from the LCAS (see Section 4.3.3 of the analysis which describes the Service's recommendations with respect to lynx management guidelines on private timberland in Maine). Further, Stoltze assumes the Service may regulate their land management via section 7 consultation regarding 404 permits or fire hazard mitigation projects in critical habitat. To date, no consultations have taken place regarding these activities. All section 7 consultations on private timberlands in Unit 4 have been for special use permits and none has required any lynx conservation efforts or denied access to private lands. The Service has not indicated that this is expected to change following a critical habitat designation of these lands.

(13) Comment:

One commenter asserted that the DEA does not consider that private forestland owners will be forced to seek alternative uses, Federal lands will lose valuable management tools, and Montana will lose its forest products infrastructure to lynx habitat.

Our response:

The assertion that private timberland owners may have to seek alternate land uses due to lynx conservation is predicated on the assumption that these landowners would be required to implement conservation efforts for the lynx similar to those specified in the LCAS. For the reasons described in Section 4.3.6, the DEA does not assume this is a reasonably foreseeable assumption. The DEA does, however, consider the economic impacts of restricting the pre-commercial thinning management tool on Federal lands, where section 7 consultation requirements apply, in subsection 4.4.1, and the effect on the regional forest products industries.

(14) Comment:

A comment from Plum Creek provided information on the costs of its ongoing and forecasted lynx conservation efforts. In the baseline, Plum Creek stated that absent critical habitat designation they expect to continue to conduct experimental pre-commercial thinning on approximately 200 ac (81 ha) per year at a present value cost of $230,000 (assuming an internal rate of return of 8 percent and a 15 percent discount rate). The company also intends to continue to contribute to research in Maine and Montana for lynx and snowshoe hare whether or not critical habitat is designated, at a cost of $150,000 ($10,000 per year discounted at 3 percent). Plum Creek further expects to implement mitigation measures for road construction at a cost of between $110,000 and $250,000 per year absent critical habitat. In addition, slower speed limits are expected to result in social welfare impacts to motorists. The commenter noted that not enough information is available, however, to quantify these costs.

Our response:

While Section 4.3.6 of the DEA summarized Plum Creek's 2006 economic impacts estimates, impact estimates provided in their comment on the October 2008 DEA are different. As a result, these baseline impacts as estimated by Plum Creek are new information on their baseline lynx conservation efforts and are provided in the final economic analysis. The impacts described by Plum Creek are not entirely additive with the baseline impacts as quantified in the DEA. The DEA does include impacts associated with private landowner funding of lynx-related research in the baseline. The analysis does not, however, break out the fraction of those costs borne specifically by Plum Creek. Because of this, and because Plum Creek's estimated impacts are not broken down by their land ownership in Maine and Montana, the final economic analysis provides this information to decision makers but does not update its estimate of baseline impact. This comment does not, however, change the estimated incremental economic impacts associated with the critical habitat designation.

(15) Comment:

Plum Creek further commented that the Montana and Maine Lynx Agreements would only be implemented on private lands in the absence of critical habitat designation. The implementation of these plans would cost approximately $230,000 for

distributing information, hosting annual workshops, and supporting lynx research and monitoring. The associated benefits to the lynx of implementing these plans would be lost in the case that critical habitat is designated on these lands and should therefore be considered incremental costs of the critical habitat designation.

Our response:

As private landowners have funded lynx conservation research in the past, the DEA includes impacts of this continued funding as baseline impacts of lynx conservation. In the case that the critical habitat designation results in private landowners ceasing to fund lynx-related research, baseline impacts are overestimated in the DEA and any benefits associated with these investments in lynx-related research would be foregone. Information is not available, however, to describe benefits or improvements in lynx conservation resulting specifically from the investments of these private landowners in lynx-related research.

Comments on Development Analysis

(16) Comment:

A comment on the DEA stated that the value of private property should not be based on that of similar properties as landowners may have differing objectives for their land use. The comment further states that the DEA understates or ignores the cost of environmental measures on private land ownership.

Our response:

As described in Section 5.3.2, the analysis assumes that privately-owned property values within critical habitat include silvicultural rents, the growth premium, and the option value for future development. Where future development is precluded from a parcel, the reduction in land value equals the sum of growth premium and option value (i.e., the property value is reduced to its silvicultural rents). The associated land values for these properties described in the analysis were determined by assessors and consider the potential future uses of the property; they are not based on comparison to land use decisions on other properties.

(17) Comment:

One commenter stated that the DEA shows a 49 percent increase in the building permits from 2000 to 2007 in Koochiching County, Minnesota, a county with declining population. The commenter asserts that this is an inaccurate portrayal of building activity. In fact, before this time, the county was operating an under-funded inspection and permitting system. The county hired an additional appraiser who instructed owners of existing, un-permitted structures to obtain building permits in this time period. Building permits issued in this period are therefore not indicative of actual construction activity.

Our response:

Correspondence with the Koochiching County Assessor's Office has confirmed that two additional appraisers were hired between 2000 and 2007 and that these hires resulted in an unknown number of additional un-permitted structures obtaining permits in 2007. The 2000 and 2007 building permit figures in Exhibit 5-2 of the DEA may therefore not be representative of development activity during those years in Koochiching County. In fact, development activity is likely less than that described in the analysis. Section 5.5.2 of the final economic analysis therefore indicates that development pressure in Koochiching County is anticipated to be minimal.

(18) Comment:

According to one comment, the baseline impacts of lynx conservation associated with the proposed development at Moosehead Lake, Maine, are overestimated as some level of development restriction would occur even in the absence of lynx protections, as the DEA notes on page ES-3.

Our response:

Section 2.3.1 of the DEA describes the baseline as “the existing state of regulation, prior to the designation of critical habitat, which provides protection to the species under the Act, as well as under other Federal, State and local laws and guidelines.” Regarding the proposed Moosehead project, the analysis only quantified impacts of the Service's conservation recommendations related to the lynx, although a portion of these may be implemented even absent the lynx. Impacts of these conservation efforts are appropriately assigned to the baseline in the analysis. Conservation associated with the Moosehead project that did not overlap potential lynx conservation recommendations is not quantified in the DEA.

(19) Comment:

One commenter stated that the DEA mischaracterizes the easements under the 1964 Forest Roads and Trails Act. The commenter suggested removing this language, as this information is mistaken and not relied upon in the DEA. Specifically, the commenter asserted that the analysis describes that the U.S. Department of Agriculture has proposed to change language in the 1964 Forest Roads and Trails Act broadening the scope of the Act to include road uses for residential and commercial development. In fact, they are considering a draft amendment to certain easements owned by Plum Creek that would simply clarify, not change, the scope of those easements as they already cover road use for residential and commercial development. Because there is no expansion of access rights, just a clarification, the matter should have no economic impacts that affect the DEA.

Our response:

Given this information on the 1964 Forest Roads and Trails Act, and the fact that this does not change the assumptions made or the estimated economic impact, the language involving the Forest Roads and Trails Act is removed in the final economic analysis.

(20) Comment:

One private landowner, Plum Creek, commented that the critical habitat is likely to affect development in Maine and Montana. In the case that Maine's Land Use Regulatory Commission (LURC) treats the critical habitat area as if it were a Fish and Wildlife Protection Subdistrict, proposed developments within critical habitat would require an additional permit. Furthermore, meeting LURC's burden of proof that proposed developments will not harm the natural environment may prohibit these developments. Additionally, if Clean Water Act section 404 permits are required for development in Maine critical habitat areas, development projects may be modified or precluded as a result of section 7 consultation. Plum Creek commented that if critical habitat is designated, they will likely abandon their Land Use Concept Plan at Moosehead Lake (Moosehead Lake Plan). Lands in the Concept Plan are valued at $189.6 million to Plum Creek and the conservation easements were valued at $469,000 in benefits for the local residents and $9.2 million in benefits for Maine residents. In total, public benefits of the balance easement were quantified at between $10.8 and $19.2 million. These benefits would be foregone in the case that critical habitat is designated.

Our response:

As described in Section 5.5.1, the DEA quantifies impacts related to two scenarios. At the low end, lynx conservation related to the Moosehead Lake Plan in Maine is assumed to follow LURC's written recommendations; at the high end, the analysis assumes lynx conservation will follow more stringent recommendations provided by the Service. The DEA did not consider a scenario in which Plum Creek abandons the Moosehead Lake Plan entirely. The final economic analysis therefore provides the information regarding potential economic impacts of this scenario. While there are costs (foregone benefits) to Plum Creek and to the public of abandoning the plan, there may also be an economic benefits Plan that offsets the cost estimates presented by Plum

Creek. The alternative use scenario of these lands absent the Moosehead Lake Plan is largely uncertain. As a result, it is difficult to predict what sorts of economic costs and benefits would be associated with the alternative uses of the land. These issues are discussed in greater depth in the final economic analysis.

(21) Comment:

Plum Creek commented that designation of critical habitat in Montana may prompt local land use agencies to impose minimum lot sizes on subdivision developments. According to Plum Creek's analysis, requiring that future Plum Creek developments in proposed critical habitat have lot sizes greater than 20, 160, and 640 acres would result in losses of $0.44 million, $74.2 million, and $243.1 million, respectively. Plum Creek bases their lot size assumptions on existing growth policies for counties in Montana. Specifically, at the high end, Missoula County's Seeley Lake Regional Plan identifies lynx as a species of concern and recommends a land use density of one dwelling per 640 acres.

Our response:

With regard to development in Montana, Section 5.5.3 of the DEA describes that, although no modifications to development projects have occurred in the past to benefit the lynx, it is possible that future permitting requirements may become more stringent as a result of critical habitat designation. Communication with Montana county planners, however, indicated that few are likely to modify their minimum lot size requirements in response to critical habitat designation. Further, it is unclear whether any minimum lot size requirements would be baseline or related to critical habitat. The Seely Lake Regional Plan example is an existing (baseline) protection and already imposes its minimum lot size. This would therefore not be considered an incremental impact of critical habitat designation in the DEA. As such, the final economic analysis presents the results of Plum Creek's study of impacts to development on their Montana lands, but does not include these estimates in the total impacts of the critical habitat designation as they are considered too speculative.

Other Comments on the Draft Economic Analysis

(22) Comment:

A comment on the DEA asserted that impacts to recreation were underestimated because the analysis did not take into consideration that congested trails, resulting from the closure of 29 miles of trails, may decrease winter tourism and recreation. This will increase pressure on local police and hospitals and reduce the amount of jobs in the tourism industry.

Our response:

Section 6.2 describes impacts to snowmobiling activities due to potential restrictions on trail use and new trail construction. The analysis does not state that 29 miles of trail in Loomis State Forest within Unit 4 will be closed; only that 29 miles of the Washington State's 3,000 to 3,500 miles of snowmobile trails fall within the Loomis State Forest. With respect to costs from increased snowmobile congestion, under a high-bound estimate, the DEA assumes the cost of lost social welfare of $109,000 for Unit 4 due to increased trail congestion. These impacts are considered baseline as part of Okanogan-Wenatchee National Forest's implementation of the LCAS. In addition, though implementing the LCAS will preclude the creation of new trails, most snowmobile riding in the Loomis area occurs on ungroomed trails.

(23) Comment:

According to one comment, the incremental impact to mining activity in Unit 2 of $10,900 is not credible because of the size and economic contribution of this industry in this region.

Our response:

The taconite mining industry, and more recently the non-ferrous mining industry, has been significant contributors to the local and regional economy in northern Minnesota. Lynx-related conservation efforts associated with mining activities are assumed to occur regardless of critical habitat designation and are therefore appropriately assigned to the baseline. That is, incremental impacts are low because the critical habitat is not expected to affect mining activity beyond the existing level of lynx conservation.

(24) Comment:

According to one comment, the DEA underestimates impacts to grazing activities by failing to take into consideration that farmers with allotments on public lands may have to either decrease the number of cows they graze, or overgraze land adjacent to the critical habitat designation. These changes in grazing activity would in turn cause job losses in the regional retail and service industries.

Our response:

As stated in paragraph 320 of the DEA, we found “no evidence that grazing (is) a factor threatening lynx.” Section 7 consultations for grazing activities under the LCAS have resulted in few conservation recommendations and no project modifications. Paragraph 360 further states that, “(o)pportunity for grazing has not been affected by the implementation of the lynx management plans and conservation recommendations made during section 7 consultation.” Therefore, the DEA assumes that, beyond the costs of consultation, grazing activities will not be affected by critical habitat.

(25) Comment:

One comment stated that hunting, as an economic activity, seems to have been overlooked in the DEA. Road construction in wetlands requires consultation and road access is fundamental to the economy of Northern Minnesota's recreational hunting industry. The commenter further asserted that the value of land as deer hunting property seems to have been similarly overlooked.

Our response:

Impacts to hunting and trapping activities are included in section 6.4 of the analysis and are primarily costs associated with establishing education programs and enforcing trapping regulations to avoid incidental take of lynx. The DEA assumes that the opportunity to hunt will not be diminished due to critical habitat. With respect to road construction in wetland areas and road access in northern Minnesota, a section 7 consultation may require modifications to a road project (i.e., culverts and other habitat crossing measures), however, critical habitat designation will not preclude road access.

(26) Comment:

A comment provided on the DEA stated that the analysis does not mention boating as a potentially affected activity although Unit 2 contains most of Minnesota's 17,000 lakes of over one acre. Construction of boat docks, for example, is likely to trigger a section 7 consultation.

Our response:

The Service does not list boating, or construction of boat docks, as a threat to the lynx or its habitat in any of its lynx management documents, nor has this activity been the subject of consultation in the past. There is therefore no indication that this activity will be affected by lynx conservation in the future.

(27) Comment:

The Small Business Administration (SBA) commented that the Initial Regulatory Flexibility Analysis (IRFA) is inadequate to provide a factual basis for certifying that the proposed critical habitat designation will not have a significant impact on a substantial number of small entities. First, the IRFA does not provide sufficient information to adequately forecast costs associated with section 7 consultations involving small entities. In the case that critical habitat is designated, past section 7 consultations initiated by small entities to avoid jeopardy must then be re-opened to account for newly designated critical

habitat. Second, the IRFA only considers the administrative costs of re-opening past consultations and fails to consider costs small entities could face if required to modify projects to avoid adverse modification of critical habitat. In addition, the IRFA incorrectly assumes that no new section 7 consultations will occur as a result of the proposed critical habitat because the critical habitat designation only covers areas currently occupied by the species. Finally, the SBA stated that the IRFA does not provide any estimates of costs of consultations with private landowners under section 10 of the ESA to obtain an incidental take permit that may result from critical habitat designation. The SBA further stated that the Service must prepare a Final Regulatory Flexibility Analysis (FRFA) if it finalizes the critical habitat designation for the lynx.

Our response:

The DEA does include costs of project modifications associated with forecast section 7 consultations. These project modifications are all expected to be recommended regardless of the critical habitat and are therefore assigned to the baseline impacts quantified in the analysis. Further, the DEA does forecast new consultations (not just re-openings) following the designation of critical habitat; however, these new consultations are expected to occur regardless of whether critical habitat is designated. The lynx conservation quantified is expected to occur regardless of the critical habitat designation because, as described on page ES-2 of the draft economic analysis and in the activity-specific chapters, of the broad scope and scale of existing lynx conservation that already occurs across the study area even absent critical habitat. First, the Service does not expect the conservation direction of existing lynx management plans, which cover 60 percent of the proposed critical habitat, to be altered following a critical habitat designation. Second, the Service has not identified any additional project modifications that it may recommend via section 7 consultation following a critical habitat designation above and beyond what has been recommended in the past to address potential jeopardy issues. As a result, the Service has not indicated that any regulatory changes would occur due to critical habitat designation. In terms of potential indirect impacts of critical habitat designation, the draft economic analysis notes in the Foreword (Section 1.1) that significant uncertainty is associated with the analysis due to the dynamic nature of land use planning, ongoing discussion regarding lynx conservation with private timberland owners, and whether particular land use activities are risk factors. As described in Appendix A, the IRFA is based on the incremental impacts expected to be generated specifically by the designation of critical habitat. As a result, the baseline impacts of forecast section 7 project modifications are not relevant to the IRFA because they are not engendered by the critical habitat rulemaking. In addition, critical habitat does not necessarily increase the need for section 10 incidental take permits. In surveying landowners and land managers, the economists who wrote the DEA did not identify any basis for assuming critical habitat designation would result in landowners developing habitat conservation plans, which are typically associated with the issuance of section 10(a)(1)(B) incidental take permits. We completed a FRFA and it is made available with the final economic analysis concurrently with this final rule.

(28) Comment:

Multiple commenters stated that the DEA is unbalanced because it focuses almost exclusively on the economic costs of critical habitat designation but does not analyze expected benefits. One commenter asserted that the protection of critical habitat would likely provide broader ecological benefits for myriad other species and ecosystem functions. One commenter stated the analysis should consider the property value benefits as a result of the creation of open space areas. Another commenter stated that the DEA should be considered a cost analysis only, because it focuses only on one side of the total impacts.

Our response:

Where sufficient information is available, the DEA attempts to measure the net economic effects of species conservation efforts. The analysis does not attempt to measure net costs of broader social benefits that may result incidentally from species conservation. The primary purpose of the rulemaking is the potential to contribute to the conservation of the lynx. The direct benefits of the rule are primarily biological; weighing these benefits to lynx conservation against the expected cost impacts is part of the requirement of section 4(b) of the Act. Therefore, we use cost estimates from the DEA as one factor against which biological benefits are compared during the section 4(b)(2) weighing process. We are also interested in weighing indirect benefits of critical habitat designation, if they can be verified (we know they will occur), measured economically, and built into a net DEA. However, many potential indirect benefits resulting from critical habitat designation cannot be verified or measured economically. In future, as economic reports of conservation benefits to people and communities are completed, we may be better able to analyze this type of data.

(29) Comment:

One commenter requested that the Service consider the on-the-ground benefits of the Montana Lynx Conservation Agreement in comparison with the benefits of critical habitat designation. The commenter asserted that the outreach, education, research, and implementation activities proposed under the agreement provide greater lynx conservation than any actions achievable by the Service through critical habitat designation.

Our response:

We analyzed the benefits of inclusion of lands included in the Montana Partnership Conservation Agreement against benefits of exclusion (see Exclusions Under Section 4(b)(2) of the Act section; Unit 3). We found that these lands should be included in the critical habitat designation, mainly because of uncertainty of implementation and effectiveness of commitments included in the agreement (which is still a draft), and because the agreement provided no commitment to implement on-the-ground habitat management of habitat for lynx.

(30) Comment:

One commenter stated that the DEA did not consider the Southern Rockies habitat area and therefore the Service has not fulfilled the requirement to show that the benefits of excluding the Southern Rocky Mountains outweigh the benefits of designating habitat in the region.

Our response:

The Southern Rockies did not meet our criteria for defining critical habitat. The areas we determined to be essential for the conservation of lynx (see Criteria Used to Identify Critical Habitat section of this rule) contain the physical and biological features essential to lynx and have relatively recent (post-1995) records and evidence of breeding lynx populations. The Southern Rockies were not included in the proposed critical habitat, and therefore, no consideration was given to excluding those lands from critical habitat.

(31) Comment:

One commenter stated that the Service has not issued any regulations or other binding documents regarding how to approach the ESA 4(b)(2) balancing in assessing whether stimulating private conservation agreements has greater conservation benefits than designating certain private lands as critical habitat.

Our response:

In designating critical habitat, we are bound by the Act, and

regulations at 50 CFR 424.12. We agree that we have not issued new regulations regarding how to approach section 4(b)(2) critical habitat exclusion analysis. However, we are currently following our February 12, 2008, Draft Critical Habitat Exclusions Guidance. This guidance was developed in response to critical habitat case law, which documents the Courts' interpretations of the requirements of the Act. This rule is also consistent with the October 3, 2008, opinion from the Solicitor titled, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act.”

(32) Comment:

According to one comment, the Service cannot lawfully maintain that the designation of critical habitat would not result in any incremental economic impacts because recent court decisions,

Gifford Pinchot Task Force

v.

FWS

(9th Cir. 2004) and

Arizona Cattle Growers Association

v.

Kempthorne

(D. Az. 2008), and an October 2008 Solicitor's Opinion, indicate that critical habitat is a more stringent ESA Section 7 compliance standard than the jeopardy standard.

Our response:

The DEA weighs the economic effects of critical habitat designation separately from effects of listing of the species. This separation of effects is termed an “incremental” analysis. The DEA includes analysis of known effects resulting from critical habitat designation, including those related to potential adverse modification of critical habitat.

Summary of Changes From Proposed Rule

We did not propose changes to 50 CFR 17.11(h) in the proposed rule because we were not proposing any substantive changes to the entry for Canada lynx on the List of Threatened and Endangered Wildlife. However, in this final rule, we are revising the entry for Canada lynx at 50 CFR 17.11(h) to correct some typographical errors; the current entry includes Colorado and Idaho twice in the “Historic Range” column.

In preparing the revised final critical habitat designation for the lynx, we reviewed and considered comments from the public and peer reviewers on the proposed revised designation of critical habitat published on February 28, 2008 (73 FR 10860). We published a notice announcing the availability of the DEA and draft environmental assessment on October 21, 2008 (73 FR 62450). As a result of comments received on the proposal, comments received on the DEA, comments received on the draft environmental assessment, we made the following changes in our final designation:

(1) We reevaluated the proposed revised critical habitat units based on peer review, public comments, and biological information received during the public comment period. Collectively, we excluded approximately 4,468 km

2

(1,725 mi

2

) of land from this revised final critical habitat designation. Table 1 provides differences in the amount of area proposed for designation and the areas designated in this final rule. We excluded Tribal lands per Executive Order 3206 (see Tribal Lands Excluded from Lynx Critical Habitat section below), and non-Federal lands with existing, implemented, and effective lynx management plans (see Exclusions Under Section 4(b)(2) of the Act section below).

(2) We removed portions of units that did not contain the primary constituent element (PCE), and areas where existing development was concentrated, from the final designation based on available maps. In some areas, unit boundaries were expanded to incorporate adjacent lynx habitat that had been inadvertently left out of the proposed boundary. These changes from the proposed boundary were noted in the notice of availability of the DEA and draft environmental assessment published in the

Federal Register

(73 FR 62450, October 21, 2008).

(3) We have clarified the primary constituent element to reflect the importance of mature multistoried forest stands with conifer boughs that touch the snow surface. These mature stands are especially important as lynx habitat in the northern Rocky Mountains.

(4) We have modified the textual description of areas that are not included in critical habitat.

Critical Habitat

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

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

(a) Essential to the conservation of the species and

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

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

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

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain the physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management consideration or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found those physical and biological features essential to the conservation of the species, as defined at 50 CFR 424.12(b)). Under the Act, we can designate critical habitat in areas outside of the geographical area occupied by the species at the time of listing only when we determine that those areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of

the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act, published in the

Federal Register

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

When determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery outline or the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designation is unimportant or may not promote the recovery of the species.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the Federal agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas occupied by the species at the time of listing to designate as critical habitat, we consider the physical and biological features that are essential to the conservation of the species and that may require special management considerations and protection. We consider the physical and biological features to be the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement for the conservation of the species. These include, but are not limited to:

1. Space for individual and population growth and for normal behavior;

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

3. Cover or shelter;

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

5. Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

Boreal Forest Landscapes (Space for Individual and Population Growth and Normal Behavior)

Lynx populations respond to biotic and abiotic factors at different scales. At the regional scale, snow conditions, boreal forest and competitors (especially bobcat) influence the species' range (Aubry

et al.

2000, p. 378-380; McKelvey

et al.

, 2000b pp. 242-253; Hoving

et al.

, 2005 p. 749). At the landscape scale within each region, natural and human-caused disturbance processes (e.g., fire, wind, insect infestations and forest management) influence the spatial and temporal distribution of lynx populations by affecting the distribution of good habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger

et al.

2000, pp. 1-3, 2-2—2-6, 7-3). At the stand-level scale, quality, quantity, and juxtaposition of habitats influence home range size, productivity, and survival (Aubry

et al.

2000, pp. 380-390; Vashon

et al.

2005a, pp. 9-11). At the substand scale, spatial distribution and abundance of prey and microclimate influence movements, hunting behavior, den, and resting site locations.

All of the constituent elements of critical habitat for lynx are found within large landscapes in what is broadly described as the boreal forest or cold temperate forest (Frelich and Reich 1995, p. 325, Agee 2000, pp. 43-46). In the contiguous United States, the boreal forest is more transitional rather than true boreal forest of northern Canada and Alaska (Agee 2000, pp. 43-46). This difference is because the boreal forest is at its southern limits in the contiguous United States, where it transitions to deciduous temperate forest in the Northeast and Great Lakes and subalpine forest in the west (Agee 2000, pp. 43-46). We use the term “boreal forest” because it generally encompasses most of the vegetative descriptions of the transitional forest types that comprise lynx habitat in the contiguous United States (Agee 2000, pp. 40-41).

At a regional scale, lynx habitat is within the areas that support deep snow for extended periods and that support boreal forest vegetation types (see below for more detail). In eastern North America, lynx distribution was strongly associated with areas of deep snowfall and 100-km

2

(40-mi

2

)) landscapes that had been previously treated with herbicides and had a high proportion of regenerating forest (Hoving 2001, pp. 75, 143). Hoving

et al.

(2004, p. 291) concluded that the broad geographic distribution of lynx in eastern North America is most influenced by snowfall, but within areas of similarly deep snowfall, measures of forest succession become more important factors in determining lynx distribution. In the Rockies, lynx habitat relationships appear to be less tied to early successional forest stages, with high use, especially in the critical winter season, in mature multistoried forest stands where conifer branches reach the snow surface and thereby provide hare forage (Squires

et al.

2006).

Boreal forests used by lynx are generally cool, moist, and dominated by conifer tree species, primarily spruce and fir (Agee 2000, pp. 40-46; Aubry

et al.

2000, pp. 378-382; Ruediger

et al.

2000, pp. 4-3, 4-8—4-11, 4-25—4-26, 4-29—4-30). Boreal forest landscapes used by lynx are a heterogeneous mosaic of vegetative cover types and successional forest stages created by natural and human-caused disturbances (McKelvey et al. 2000a, pp. 426-434). In many places periodic vegetation disturbances stimulate development of dense understory or early successional habitat for snowshoe hares (Ruediger et al. 2000, pp. 1-3—1-4, 7-4—7-5). In Maine, lynx were positively associated with landscapes altered by clearcutting 15 to 25 years previously (Hoving

et al.

2004, p. 291). In other places, such as the northern Rocky Mountains, mature

multistoried conifer forests as well as dense regenerating conifer stands provide foraging habitat for lynx (Squires

et al.

2006).

The overall quality of the boreal forest landscape and juxtaposition of stands in suitable condition within the landscape is important for both lynx and snowshoe hares in that it can influence connectivity or movements between suitable stands, availability of food and cover and spatial structuring of populations or subpopulations (Hodges 2000b, pp. 184-195; McKelvey

et al.

2000a, pp. 431-432; Walker 2005, pp. 79). For example, lynx foraging habitat must be near denning habitat to allow females to adequately provision dependent kittens, especially when the kittens are relatively immobile. In north-central Washington, hare densities were higher in landscapes with an abundance of dense boreal forest interspersed with small patches of open habitat, in contrast to landscapes composed primarily of open forest interspersed with few dense vegetation patches (Walker 2005, p. 79). Similarly, in northwest Montana, connectivity of dense patches within the forest matrix benefited snowshoe hares (Ausband and Baty 2005, p. 209). In mountainous areas, lynx appear to prefer flatter slopes (Apps 2000, p. 361; McKelvey

et al.

2000d, p. 333; von Kienast 2003, p. 21, Table 2; Maletzke 2004, pp. 17-18).

Individual lynx require large portions of boreal forest landscapes to support their home ranges and to facilitate dispersal and exploratory travel. The size of lynx home ranges is believed to be strongly influenced by the quality of the habitat, particularly the abundance of snowshoe hares, in addition to other factors such as gender, age, season, and density of the lynx population (Aubry

et al.

2000, pp. 382-385; Mowat

et al.

2000, pp. 276-280). Generally, females with kittens have the smallest home ranges while males have the largest home ranges (Moen

et al.

2005, p. 11, Burdett

et al.

2007, p. 463). Reported home range sizes vary greatly from 31 km

2

(12 mi

2

) for females and 68 km

2

(26 mi

2

) for males in Maine (Vashon

et al.

2005a, p. 7), 21 km

2

(8 mi

2

) for females to 307 km

2

(119 mi

2

) for males in Minnesota (Moen

et al.

2005, p. 12), and 88 km

2

(34 mi

2

) for females and 216 km

2

(83 mi

2

) for males in northwest Montana (Squires

et al.

2004b, pp. 15-16).

Forest Type Associations

Maine

Lynx were more likely to occur in 100 km

2

(40 mi

2

) landscapes with regenerating forest, and less likely to occur in landscapes with recent clearcut or partial harvest, (Hoving

et al.

2004, pp. 291-292). Lynx in Maine select softwood-dominated (spruce and fir) regenerating stands (Vashon

et al.

2005a, p. 8). Regenerating stands used by lynx generally develop 15-30 years after forest disturbance and are characterized by dense horizontal structure and high stem density within a meter of the ground. These habitats support high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison 2005, pp. 716, 719; Vashon

et al.

2005a, pp. 10-11). At the stand scale, lynx in northwestern Maine selected older (11- to 26-year-old), tall (4.6 to 7.3 m (15 to 24 ft)) regenerating clearcut stands and older (11- to 21-year-old) partially harvested stands (A. Fuller, University of Maine, unpubl. data).

Minnesota

In Minnesota, lynx primarily occur in the Northern Superior Uplands Ecological Section of the Laurentian Mixed Forest Province. Historically, this area was dominated by red pine (

Pinus resinosa

) and white pine (

P. strobus

) mixed with aspen (

Populus

spp.), paper birch (

Betula papyrifera

), spruce, balsam fir (

A. balsamifera

) and jack pine (

P. banksiana

) (Minnesota Department of Natural Resources [Minnesota DNR] 2003, p. 2).

Preliminary research suggests lynx in Minnesota generally use younger stands (less than 50 years) with a conifer component in greater proportion than their availability (R. Moen, University of Minnesota, unpubl. data). Lynx prefer predominantly upland forests dominated by red pine, white pine, jack pine, black spruce (

P. mariana

), paper birch, quaking aspen (

P. tremuloides

), or balsam fir (R. Moen, unpubl. data).

Washington

In the North Cascades in Washington, the majority of lynx occurrences were found above 1,250 m (4,101 ft) (McKelvey

et al.

2000b, p. 243, 2000d, p. 321; von Kienast 2003, p. 28, Table 2; Maletzke 2004, p. 17). In this area, lynx selected Engelman spruce (

P. engelmanii

)-subalpine fir (

A. lasiocarpa

) forest cover types in winter (von Kienast 2003, p. 28, Maletzke 2004, pp. 16-17, Koehler

et al.

2008, p. 1518). Lodgepole pine (

P. contorta

) is a dominant tree species in the earlier successional stages of these climax cover types. Seral (intermediate stage of ecological succession) lodgepole stands contained dense understories and therefore received high use by snowshoe hares and lynx (Koehler 1990, pp. 847-848; McKelvey

et al.

2000d, pp. 332-335). Douglas-fir, ponderosa pine forests, openings, recent burns, open canopy and understory cover, and steep slopes were all avoided habitat types (Koehler

et al.

2008, p. 1518).

Northern Rockies

In the Northern Rocky Mountains, the majority of lynx occurrences are associated with the Rocky Mountain Conifer Forest or Western Spruce-Fir Forest vegetative class (Kuchler 1964, p. 4; McKelvey

et al.

2000b, p. 246) and occur above 1,250 m (4,101 ft) elevation (Aubry

et al.

2000, pp. 378-380; McKelvey

et al.

2000b, pp. 243-245). The dominant vegetation that constitutes lynx habitat in these areas is subalpine fir, Engelman spruce and lodgepole pine (Aubry

et al.

2000, p. 379; Ruediger

et al.

2000, pp. 4-8—4-10). Mature multi-storied stands are used preferentially in winter (Squires

et al.

2006). As in the Cascades, lodgepole pine is an earlier successional stage of subalpine fir and Engelman spruce climax forest cover types.

a. Snowshoe Hares (Food)

Snowshoe hare density is the most important factor explaining the persistence of lynx populations (Steury and Murray 2004, p. 136). A minimum snowshoe hare density necessary to maintain a persistent, reproducing lynx population within the contiguous United States has not been determined, although Ruggiero

et al.

(2000, pp. 446-447) suggested that at least 0.5 hares per hectare (ha) (0.2 hares per acre (ac)) may be necessary. Steury and Murray (2004, p. 137)) modeled lynx and snowshoe hare populations and predicted that a minimum of 1.1 to 1.8 hares per ha (0.4 to 0.7 hares per ac) was required for persistence of a reintroduced lynx population in the southern portion of the lynx range.

The boreal forest landscape is naturally dynamic and usually contains a mosaic of forest stand successional stages. In some areas, particularly in the eastern portion of the DPS, stands that support high densities of snowshoe hares are of a young successional stage and are in a constant state of transition to other more mature stages. Conversely, if the vegetation potential (or climax forest type) of a particular forest stand is conducive to supporting abundant snowshoe hares, it likely will also go through successional stages that are unsuitable as lynx foraging (snowshoe hare habitat) or lynx denning habitat (Agee 2000, p. 62-72; Buskirk

et al.

2000b, pp. 403-408) as part of a natural forest succession process. For example, a boreal forest stand where there has been recent disturbance, such as fire or timber harvest, resulting in little or no understory structure is unsuitable as

snowhoe hare habitat for lynx foraging. That temporarily unsuitable stand would regenerate into suitable snowshoe hare (lynx foraging) habitat within 10 to 25 years, depending on local conditions (Ruediger

et al.

2000, pp. 1-3—1-4, 2-2—2-5). This continuation of this natural dynamism exhibited in boreal forest succession is crucial for lynx survival due to their dependence on intermediate successional stages in many areas. In places where lynx are dependent on mature forest stages, forest stand turnover still occurs, but on a longer time scale requiring the ability to recruit new mature forest stands as others are lost to fire, insect infestation, or human activities.

Forest management techniques that thin the understory may render the habitat unsuitable for hares and, thus, for lynx (Ruediger

et al.

2000, pp. 2-4—3-2; Hoving

et al.

2004, pp. 291-292). Stands may continue to provide suitable snowshoe hare habitat for many years until woody stems in the understory become too sparse, as a result of undisturbed forest succession or management (e.g., clearcutting or thinning). Thus, if the vegetation potential of the stand is appropriate, a stand that is not currently in a condition that is suitable to support abundant snowshoe hares for lynx foraging or coarse woody debris for den sites would develop into suitable habitat for snowshoe hares (and thus lynx forag

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