Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sacramento Mountains Checkerspot Butterfly
| Citation | 88 FR 54263 |
| Published date | 10 August 2023 |
| Record Number | 2023-16967 |
| Court | Fish And Wildlife Service |
Federal Register, Volume 88 Issue 153 (Thursday, August 10, 2023)
[Federal Register Volume 88, Number 153 (Thursday, August 10, 2023)]
[Proposed Rules]
[Pages 54263-54288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16967]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2023-0023; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BH13
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Sacramento Mountains Checkerspot Butterfly
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Sacramento Mountains checkerspot
butterfly (Euphydryas anicia cloudcrofti), a butterfly from New Mexico,
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 1,636.9 acres (662.4 hectares) in Otero County, New
Mexico, fall within the boundaries of the proposed critical habitat
designation. We also announce the availability of a draft economic
analysis of the proposed designation of critical habitat for the
Sacramento Mountains checkerspot butterfly.
DATES: We will accept comments received or postmarked on or before
October 10, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 25, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R2-ES-2023-0023,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R2-ES-2023-0023, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For this proposed critical
habitat designation, the coordinates or plot points or both from which
the maps are generated are included in the decision file for this
critical habitat designation and are available, along with other
supporting materials, at https://www.regulations.gov at Docket No. FWS-
R2-ES-2023-0023 and on the Service's website at https://www.fws.gov/about/region/southwest.
FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor,
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, when we determine
that any species is an endangered or threatened species, we are
required to designate critical habitat, to the maximum extent prudent
and determinable. Designations of critical habitat can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to designate critical habitat
for the Sacramento Mountains checkerspot butterfly, which is listed as
an endangered species under the Act.
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that a species is an endangered or threatened species we
must, to the maximum extent prudent and determinable, designate
critical habitat. Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protections; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
by the Secretary that such areas are essential for the conservation of
the species. Section 4(b)(2) of the Act states that the Secretary must
make the designation on the basis of the best scientific data available
and after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) Specific information on:
(a) The amount and distribution of Sacramento Mountains checkerspot
butterfly habitat;
(b) Any additional areas occurring within the range of the species
in Otero County, New Mexico, that should be included in the designation
because they (i) are occupied at the time of listing and contain the
physical or biological features that are essential to the conservation
of the species and that may require special management considerations,
or (ii) are unoccupied at the time of listing and are essential for the
conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) To evaluate the potential to include areas not occupied at the
time of listing, we particularly seek comments regarding whether
occupied areas are adequate for the conservation of the species.
Additionally, please provide specific information regarding whether or
not unoccupied areas would, with reasonable certainty, contribute to
the conservation of the species and contain at least one physical or
biological feature essential to the
[[Page 54264]]
conservation of the species. We also seek comments or information
regarding whether areas not occupied at the time of listing qualify as
habitat for the species.
(7) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(9) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and the description of the
environmental impacts in the draft environmental assessment is complete
and accurate and any additional information regarding probable economic
impacts that we should consider.
(10) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those on Tribal lands. We
are considering the land owned by the Mescalero Apache Tribe in Unit 3
(Spud Patch Canyon) for exclusion. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(11) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(2) of
the Act directs that the Secretary shall designate critical habitat on
the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final designation may differ from this
proposal. Based on the new information we receive (and any comments on
that new information), our final designation may not include all areas
proposed, may include some additional areas that meet the definition of
critical habitat, or may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion and exclusion will not
result in the extinction of the species.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
On January 25, 2022, we published a proposed rule in the Federal
Register (87 FR 3739) to list the Sacramento Mountains checkerspot
butterfly as an endangered species (16 U.S.C. 1531 et seq.). At the
time of our proposal, we determined that designation of critical
habitat was prudent but not determinable because we lacked specific
information on the impacts of our designation. In our proposed listing
rule, we stated we were in the process of obtaining information on the
impacts of the designation. We published the final listing rule on
January 31, 2023. Please refer to the proposed and final listing rules
(87 FR 3739, January 25, 2022; 88 FR 6177; January 31, 2023) for a
detailed description of previous Federal actions concerning this
butterfly.
Peer Review
An assessment team prepared a current condition assessment report
for the Sacramento Mountains checkerspot butterfly. The assessment team
was composed of Service biologists, in consultation with other species
experts. The current condition assessment report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past and
present factors (both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the Sacramento Mountains
checkerspot butterfly current condition assessment report. We sent the
report to five independent peer reviewers and received three responses.
Results of this structured peer review process can be found at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0069, which is the
docket for the listing rules for the Sacramento Mountains checkerspot
butterfly, or Docket No. FWS-R2-ES-2023-0023, which is the docket
number for this rulemaking. In preparing this proposed rule, we
incorporated the results of these reviews, as appropriate, into the
current condition assessment report, which is the foundation for this
proposed rule.
Background
The Sacramento Mountains checkerspot butterfly (butterfly) is a
subspecies of the Anicia checkerspot, or variable checkerspot, in the
Nymphalidae (brush-footed butterfly) family that is native to the
Sacramento Mountains in south-central New Mexico. The Sacramento
Mountains checkerspot butterfly inhabits high-altitude meadows in the
upper-montane and subalpine zone at elevations between 2,380 and 2,750
meters (m) (7,800 and 9,000 feet (ft)) within the Sacramento Mountains,
which is an isolated mountain range in south-central New Mexico
(Service 2005 et al., p. 9). The species requires host plants for
[[Page 54265]]
larvae, nectar sources for adults, and climatic moisture.
Since 1998, populations have been known from 10 meadow units on
U.S. Forest Service (Forest Service) land (Forest Service 1999, p. 2).
The meadows cover the occupied areas within the species' range and give
the most accurate representation of species and habitat conditions
available. These meadow units include Bailey Canyon, Pines Meadow
Campground, Horse Pasture Meadow, Silver Springs Canyon, Cox Canyon,
Sleepygrass Canyon, Spud Patch Canyon, Deerhead Canyon, Pumphouse
Canyon, and Yardplot Meadow. The species has been extirpated from
several of these meadows recently. The Yardplot Meadow was sold and
developed, while suitable habitat in Horse Pasture Meadow was
eliminated by logging (Forest Service 2017, p. 3) but has since become
somewhat revegetated. No adults or caterpillars have been detected
within Pumphouse Canyon since 2003, and the species has likely been
extirpated at that site (Forest Service 2017, p. 3). In 2020, all 10
meadows were surveyed for butterflies and larvae; a total of 8
butterflies were detected in only Bailey Canyon and Pines Meadow
Campground combined (Forest Service 2020a, p. 3), and no larval tents
were found at any site (Forest Service 2020a, pp. 1-3; Hughes 2020,
pers. comm.).
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management, such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the current condition assessment report (Service 2022,
entire) and information developed during the listing process for the
species. Additional information sources may include any generalized
conservation strategy, criteria, or outline that may have been
developed for the species; the recovery plan for the species; articles
in peer-reviewed journals; conservation plans developed by States and
counties; scientific status surveys and studies; biological
assessments; other unpublished materials; or experts' opinions or
personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented
[[Page 54266]]
under section 7(a)(1) of the Act; (2) regulatory protections afforded
by the requirement in section 7(a)(2) of the Act for Federal agencies
to ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species; and (3) the
prohibitions found in section 9 of the Act. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of the species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of those planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features.
A feature may be a single habitat characteristic or a more complex
combination of habitat characteristics. Features may include habitat
characteristics that support ephemeral or dynamic habitat conditions.
Features may also be expressed in terms relating to principles of
conservation biology, such as patch size, distribution distances, and
connectivity. For example, physical features essential to the
conservation of the species might include gravel of a particular size
required for spawning, alkaline soil for seed germination, protective
cover for migration, or susceptibility to flooding or fire that
maintains necessary early-successional habitat characteristics.
Biological features might include prey species, forage grasses,
specific kinds or ages of trees for roosting or nesting, symbiotic
fungi, or absence of a particular level of nonnative species consistent
with conservation needs of the listed species. The features may also be
combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of Sacramento Mountains checkerspot butterfly from
studies of the species' habitat, ecology, and life history as described
below. Additional information can be found in the current condition
assessment report (Service 2022, entire; available on https://www.regulations.gov at Docket No. FWS-R2-ES-2023-0023).
The main larval host plant for the Sacramento Mountains checkerspot
butterfly is the New Mexico beardtongue (Penstemon neomexicanus)
(Ferris and Holland 1980, p. 7), also known as New Mexico penstemon.
The larvae rely nearly entirely upon the New Mexico beardtongue during
pre- and post-diapause. Because of the Sacramento Mountains checkerspot
butterfly's dependency on New Mexico beardtongue, it is vulnerable to
any type of habitat degradation that reduces the host plant's health
and abundance (Service et al. 2005, p. 9). New Mexico beardtongue is a
member of the Plantaginaceae, or figwort, family (Oxelman et al. 2005,
p. 425). These perennial plants prefer wooded slopes or open glades in
ponderosa pine and spruce/fir forests at elevations between 1,830 and
2,750 m (6,000 and 9,000 ft) (New Mexico Rare Plant Technical Council
1999, entire). New Mexico beardtongue is native to the Sacramento
Mountains within Lincoln and Otero Counties (Sivinski and Knight 1996,
p. 289). The plant is perennial, has purple or violet-blue flowers, and
grows to be half a meter tall (1.9 ft). New Mexico beardtongue occurs
in areas with loose soils or where there has been recent soil
disturbance, such as eroded banks and pocket gopher burrows (Pittenger
and Yori 2003, p. ii).
The preferred adult nectar source is orange sneezeweed (Hymenoxys
hoopesii), a native perennial forb (Service et al. 2005, p. 9). To
contribute to the species' viability, orange sneezeweed must bloom at a
time that corresponds with the emergence of adult Sacramento Mountains
checkerspot butterflies. Although orange sneezeweed flowers are most
frequently used, the butterfly has been observed collecting nectar on
various other native nectar sources (Service et al. 2005, pp. 9-10). If
orange sneezeweed is not blooming during the adult flight period (i.e.,
experiencing phenological mismatch), the butterfly's survival and
fecundity could decrease.
Before human intervention, the habitat of the Sacramento Mountains
checkerspot butterfly was dynamic, with meadows forming and
reconnecting due to natural wildfire regimes (Service et al. 2005, p.
21). These patterns would have facilitated natural dispersal and
recolonization of meadow habitats following disturbance events,
especially when there was high butterfly population density in adjacent
meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests
punctuate suitable butterfly habitat (i.e., mountain meadows), creating
intrinsic barriers to butterfly dispersal and effectively isolating
populations from one another (Pittenger and Yori 2003, p. 1).
Preliminary genetic research suggested there is extremely low gene flow
across the species' range or between meadows surveyed (Ryan 2021, pers.
comm.). If new sites are to become colonized or recolonized by the
butterfly, meadow areas will need to be connected enough to allow
dispersal from occupied areas. Therefore, habitat connectivity is
needed for genetically healthy populations across the species' range
(Service 2022, p. 11).
We have determined that the following physical or biological
features are essential to the conservation of the Sacramento Mountains
checkerspot butterfly:
(1) Open meadow, grassland habitat within the larger mixed-conifer
forest in high-altitude areas within the upper-montane and subalpine
zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000
feet (ft))
[[Page 54267]]
within the Sacramento Mountains of southern New Mexico.
(2) The larval food plant (host plant), primarily New Mexico
beardtongue (Penstemon neomexicanus), or other potential host plants
such as other Penstemon species and tobacco root (Valeriana edulis), is
present as:
(a) Patches of plants clustered together;
(b) Large, robust individual plants; and/or
(c) Stands of plants adjacent to other tobacco root plants.
(3) Access to nectar sources, primarily orange sneezeweed
(Hymenoxys hoopesii), native Asteraceae species, and other native
flowering plants.
(4) Habitat connectivity consisting of up to 890 m (2,920 ft)
between populations or areas of suitable habitat to allow for dispersal
and gene flow.
(5) Less than 5 percent canopy cover.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
A detailed discussion of activities influencing the Sacramento
Mountains checkerspot butterfly and its habitat can be found in the
proposed listing rule (87 FR 3739; January 25, 2022). It is possible
all areas of critical habitat may require some level of management to
address the current and future threats to the physical or biological
features. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: incompatible grazing by large ungulates,
recreation, invasive and nonnative plants, climate change (i.e.,
drought, altered precipitation regime), and altered fire regime.
Management activities that could ameliorate these threats include, but
are not limited to, erecting exclosures or other methods to remove
browse pressure from large ungulates; growing and transplanting nectar
sources, including orange sneezeweed, New Mexico beardtongue, and other
native nectar sources; managing invasive plant species; reducing
recreational use; and instituting fire management aimed at reducing
tree stocking within forested areas surrounding meadows. These
management activities may protect the physical or biological features
for the species by improving and protecting suitable habitat and
connectivity throughout the range of the butterfly.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are proposing to designate
critical habitat in areas within the geographical area occupied by the
species at the time of listing. We also are proposing to designate
specific areas outside the geographical area occupied by the species
because we have determined that a designation limited to occupied areas
would be inadequate to ensure the conservation of the species. Occupied
areas are inadequate for the conservation of this species because the
species needs to have sufficient quality and quantity of habitat for
adequately resilient populations, numerous populations to create
redundancy to survive catastrophic events, and enough genetic diversity
to allow for adaptations to changing environmental conditions
(representation) to achieve viability. Currently, the Sacramento
Mountains checkerspot butterfly is extant in two locations,
representing only two metapopulation units, which is insufficient to
support a robust, functioning metapopulation structure and, therefore,
the viability of the species. We are reasonably certain that the
unoccupied areas will contribute to the conservation of the species and
contain one or more of the physical or biological features and are,
therefore, considered habitat for the species. Additionally, the
unoccupied units qualify as ``habitat'' for the species because they
contain the resources necessary (i.e., open meadow, grassland habitat
with nectar sources) to support the life processes of the Sacramento
Mountains checkerspot butterfly.
To identify critical habitat units for the Sacramento Mountains
checkerspot butterfly, we used a variety of sources for species data.
We used literature published on the species (Ferris and Holland 1980,
entire; Forest Service 1999, entire; Pittenger and Yori 2003, entire)
and the conservation plan developed by the Service (2005, entire) to
determine habitat needs and locations of the butterfly. We also relied
on annual Forest Service survey reports and data collected between 1999
and 2020 (Forest Service 1999, entire; Forest Service 2017, entire;
Forest Service 2020a, entire) and associated mapping data (Forest
Service 2020b, unpaginated) provided by the Forest Service for areas
currently occupied by the Sacramento Mountains checkerspot butterfly
and areas surveyed regularly. We supplemented this information with
expert knowledge gathered during the development of the current
condition assessment report (Service 2022, entire).
We determined that an area (in this case a meadow) was occupied at
the time of listing for Sacramento Mountains checkerspot butterfly if:
(1) The meadow is located within the historical range of the
species;
(2) The meadow contains at least physical or biological features
(1) through (3), and (5), as described above under Summary of Essential
Physical or Biological Features;
(3) Adults have been observed during surveys from 3 or more of the
most recent consecutive years (2021 and earlier); and
(4) There is evidence of reproduction during one of the three most
recent consecutive surveys (2021 and earlier).
Therefore, if meadows do not meet these criteria, we determined
that those areas were unoccupied at the time of listing. The sources of
data for our occupied proposed critical habitat units for the
Sacramento Mountains checkerspot butterfly were the original digitized
polygons provided by the Forest Service.
For areas outside the geographical area occupied by the species at
the time of listing, we delineated critical habitat unit boundaries
using the original digitized polygons provided by the Forest Service
and the 2020 National Agricultural Imagery Program (NAIP) 0.6-meter
imagery. We resampled the NAIP imagery to 1 meter using ESRI ArcGIS Pro
and classified that data into two classes: open space or tree cover. We
were then able to identify areas that had greater than 95 percent open
canopy, as required by the species. Using the Focal Statistics results
(95-100 percent) as a guide, we digitized new polygons at the 1:5000
scale and updated the original Forest Service polygons to include and
connect areas that meet the definition of critical habitat for the
Sacramento Mountains checkerspot butterfly.
In summary, for areas outside the geographical area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
[[Page 54268]]
(1) Areas within the historical range of the species (i.e., areas
where the butterfly was detected by Forest Service surveys, but not
necessarily in the past 3 consecutive years).
(2) Areas with 95 percent or greater open canopy.
(3) Areas not currently occupied but presumed to be suitable
habitat because they contain at least some of the essential physical or
biological features.
(4) Habitat that provides connectivity due to its proximity between
currently occupied and/or unoccupied areas.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the Sacramento Mountains
checkerspot butterfly. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as critical habitat. Therefore, if
the critical habitat is finalized as proposed, a Federal action
involving these lands would not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We have determined that occupied areas are inadequate to
ensure the conservation of the species. Therefore, we have also
identified, and propose for designation as critical habitat, unoccupied
areas that are essential for the conservation of the species.
Units are proposed for designation based on one or more of the
physical or biological features being present to support the Sacramento
Mountains checkerspot butterfly's life-history processes. Some units
contain all of the identified physical or biological features and
support multiple life-history processes. Some units contain only some
of the physical or biological features necessary to support the
Sacramento Mountains checkerspot butterfly's particular use of that
habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2023-0023 and on our internet site https://www.fws.gov/about/region/southwest.
Proposed Critical Habitat Designation
We are proposing nine units as critical habitat for the Sacramento
Mountains checkerspot butterfly. The critical habitat areas we describe
below constitute our current best assessment of areas that meet the
definition of critical habitat for the Sacramento Mountains checkerspot
butterfly. The nine areas we propose as critical habitat are: (1)
Bailey Canyon; (2) Pines Meadow Campground; (3) Spud Patch Canyon; (4)
Silver Springs Canyon; (5) Horse Pasture Meadow; (6) Sleepygrass
Canyon; (7) Pumphouse Canyon; (8) Deerhead Canyon; and (9) Cox Canyon.
Table 1 shows the proposed critical habitat units, the approximate
area, land ownership, and occupancy of each unit.
Table 1--Proposed Critical Habitat Units for Sacramento Mountains Checkerspot Butterfly
[Area estimates reflect all land within critical habitat unit boundaries, including areas being considered for exclusion]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land ownership * acres (hectares)
Unit name Occupied --------------------------------------------------------- Total
Federal Tribal Private
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Bailey Canyon.......................... Yes............................. 200.5 (81.1) ................. ................. 200.5 (81.1)
2. Pines Meadow Campground................ Yes............................. 62.2 (25.2) ................. 0.2 (0.08) 62.4 (25.2)
3. Spud Patch Canyon...................... No.............................. 203.9 (82.5) 22.4 (9.1) 50.9 (20.6) 277.2 (112.2)
4. Silver Springs Canyon.................. No.............................. 132.9 (53.8) ................. 70.5 (28.5) 203.4 (82.3)
5. Horse Pasture Meadow................... No.............................. 82.4 (33.4) ................. ................. 82.4 (33.4)
6. Sleepygrass Canyon..................... No.............................. 123.5 (50.0) ................. 100.0 (40.5) 223.5 (90.5)
7. Pumphouse Canyon....................... No.............................. 134.4 (54.4) ................. 2.2 (0.9) 136.6 (55.3)
8. Deerhead Canyon........................ No.............................. 22.1 (8.9) ................. 11.0 (4.5) 33.1 (13.4)
9. Cox Canyon............................. No.............................. 132.1 (53.5) ................. 285.7 (115.6) 417.8 (169.0)
---------------------------------------------------------------------------
Total................................. ................................ 1,093.9 22.4 520.5 1,636.9
(442.7) (9.1) (210.6) (662.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Sacramento Mountains
checkerspot butterfly, below. All areas in the unoccupied units (Units
3 through 9) meet the definition of critical habitat because they are
outside the geographical area occupied by the species at the time of
listing, were historically occupied by the Sacramento Mountains
checkerspot butterfly, and are essential for the conservation of the
species (see each unit description below for details). Units 3 through
9 qualify as habitat for the species because they contain the resources
necessary (i.e., open meadow, grassland habitat with nectar sources) to
support the life processes of the Sacramento Mountains checkerspot
butterfly. The Forest Service is assessing the unoccupied meadows to
prioritize them for habitat restoration efforts that would benefit the
Sacramento Mountains checkerspot butterfly. Once restored, these areas
will be used to establish future occupancy via translocations and
reintroductions. Establishing new populations in suitable habitat
through captive rearing
[[Page 54269]]
and reintroduction or translocation is part of our recovery planning
efforts for the Sacramento Mountains checkerspot butterfly. Individuals
from extant meadows (Bailey Canyon and Pines Meadow Campground) may be
translocated to currently unoccupied meadows once they contain suitable
habitat. Additionally, captive rearing efforts are ongoing from which
we plan to reintroduction individuals to restored meadows. We are
reasonably certain that these areas will contribute to the conservation
of the Sacramento Mountains checkerspot butterfly because these areas
were historically occupied by the species and, since the species is
currently restricted to two canyon systems, it is necessary to expand
the existing population into other areas to reach recovery.
Furthermore, we are working closely with the Forest Service, where a
majority of the proposed critical habitat falls on Forest Service-
managed lands, to ensure conservation measures and habitat restoration
are conducted and ongoing in all areas possible to support the species
for translocations and reintroductions. Additionally, the threats
specified in each unit (see descriptions below), can be managed in ways
to ensure survival and future reproduction of reintroduced populations.
Site-specific reasons that we are reasonably certain that each area
will contribute to the conservation of the species are explained below.
Unit 1: Bailey Canyon
Unit 1 consists of approximately 200.5 ac (81.1 ha) and is in the
Sacramento Ranger District in the northwestern portion of the
butterfly's range. The unit is occupied and is located entirely on the
Lincoln National Forest. This unit contains physical or biological
features (1) through (3) and (5), as described above under Summary of
Essential Physical or Biological Features.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. The Forest Service is actively
managing this unit by surveying for the butterfly during the active
period, erecting exclosures to allow habitat to recover, and planting
New Mexico beardtongue and other native nectar sources. This unit may
require special management considerations to control invasive plant
species, reduce recreational use, and reduce or remove browse pressure
from large ungulates.
Unit 2: Pines Meadow Campground
Unit 2 consists of approximately 62.4 ac (25.2 ha) and is located
in the northwestern portion of the butterfly's range. The unit is
primarily in the Sacramento Ranger District. The unit is occupied and
contains all of the physical or biological features described above
under Summary of Essential Physical or Biological Features.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. The Forest Service is actively
managing some areas of this unit by surveying for the butterfly during
the species' active period and erecting exclosures to allow habitat to
recover. This unit may require special management considerations to
control invasive plant species, reduce recreational use, and reduce or
remove browse pressure from f large ungulates.
Unit 3: Spud Patch Canyon
Unit 3 consists of a total of approximately 277.2 ac (112.2 ha) and
is located in the northeastern portion of the butterfly's historical
range. The unit is primarily within the Sacramento Ranger District.
This unit contains physical or biological features (1) through (3) and
(5), as described above under Summary of Essential Physical or
Biological Features. This unit is unoccupied and is essential for the
conservation of the species because it contains most of the physical or
biological features essential to the species and was historically
occupied by the species. This unit would provide a suitable
reintroduction site for the species and once established, would
increase the species redundancy and representation by serving as a
separate source population should any catastrophic events impact the
other meadows proposed for designation as critical habitat. The Forest
Service is currently conducting riparian restoration in this area,
which will help expand and revitalize habitat for the Sacramento
Mountains checkerspot butterfly through the reestablishment of native
plant species. Because this unit is mostly located on Federal land and
would contribute to metapopulation dynamics and genetic rescue should a
population be reestablished, we are reasonably certain that the unit
will contribute to the conservation of the species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. The Forest Service is
surveying for adult butterflies annually in some of the areas on the
Lincoln National Forest in this unit. Within this unit, a total of 22.4
ac (9.1 ha) of land owned by the Mescalero Apache Tribe is being
considered for exclusion.
Unit 4: Silver Springs Canyon
Unit 4 consists of approximately 203.4 ac (82.3 ha) in the north-
central portion of the butterfly's historical range and lies to the
northeast of the village of Cloudcroft. The unit is partly within the
Sacramento Ranger District and is unoccupied. This unit contains
physical or biological features (1), (3), and (5), as described above
under Summary of Essential Physical or Biological Features. This unit
is essential for the conservation of the species because it contains
most of the physical or biological features essential to the
conservation of the species and would increase species redundancy and
representation by serving as a separate population from the other
meadows proposed for designation as critical habitat if a population is
reestablished in this areas in the future, contributing to
metapopulation dynamics while enhancing connectivity between meadows
with recently detected butterflies and meadows that contain suitable
habitat. Because this unit is primarily on federally owned lands and
abuts areas that are currently occupied by the Sacramento Mountains
checkerspot butterfly, we are reasonably certain that the unit will
contribute to the conservation of the species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. The Forest Service is also
surveying the areas on the Lincoln National Forest in this unit
annually for adult butterflies.
Unit 5: Horse Pasture Meadow
Unit 5 consists of approximately 82.4 ac (33.4 ha) and is located
in the central portion of the butterfly's historical range. It lies to
the east of the village of Cloudcroft. This unit is unoccupied,
contains all of the physical or biological features described above
under Summary of Essential Physical or Biological Features, and is
entirely on the Lincoln National Forest in the Sacramento Ranger
District. This unit is essential for the conservation of the species
because it contains all of the physical or biological features
essential to the conservation of the species and would increase species
redundancy by serving as a separate population from other meadows
proposed for designation as critical habitat should a
[[Page 54270]]
population be reestablished in this area in the future, contributing to
metapopulation dynamics while enhancing connectivity between meadows
with recently detected butterflies and meadows that contain suitable
habitat. Because this unit abuts an area that is currently occupied by
the Sacramento Mountains checkerspot butterfly, we are reasonably
certain that the unit will contribute to the conservation of the
species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. Suitable habitat in Horse
Pasture Meadow was previously eliminated by logging to create a
helicopter pad. The butterfly has not been detected in this unit since
construction of the helicopter pad, which was constructed for
helicopters that transport people and supplies to fight forest fires.
The helicopter pad is no longer there, and there is open meadow
habitat. This unit has been somewhat revegetated, and New Mexico
beardtongue and nectar sources now exist in this area. Additional
habitat restoration techniques could be used to restore butterfly
habitat in this area. Forest Service is planning to actively manage
this former habitat to encourage species recovery.
Unit 6: Sleepygrass Canyon
Unit 6 consists of approximately 223.5 ac (90.5 ha) and is located
in the central portion of the butterfly's historical range, east of the
village of Cloudcroft. This unit is unoccupied; 55.3 percent of the
unit is located on the Lincoln National Forest in the Sacramento Ranger
District, and 44.7 percent is located on privately owned land. This
unit contains all of the physical or biological features described
above under Summary of Essential Physical or Biological Features. This
unit is essential for the conservation of the species because it
contains all of the physical or biological features and would increase
species redundancy by serving as a separate population from other
meadows proposed for designation as critical habitat should a
population be reestablished in this area in the future, while enhancing
connectivity between meadows with recently detected butterflies and
meadows that contain suitable habitat. Because this unit would
contribute to metapopulation dynamics should a population be
reestablished, is located partially on Federal land, and abuts two
other areas that contain several of the essential physical or
biological features for the Sacramento Mountains checkerspot butterfly,
we are reasonably certain that the unit will contribute to the
conservation of the species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. Forest Service is surveying
areas on the Lincoln National Forest in this unit annually for adult
butterflies.
Unit 7: Pumphouse Canyon
Unit 7 consists of a total of approximately 136.6 ac (55.3 ha) and
is located in the southern portion of the butterfly's range, southeast
of the village of Cloudcroft. The unit is unoccupied and contains
physical or biological features (1) through (3) and (5), as described
above under Summary of Essential Physical or Biological Features. This
unit is essential for the conservation of the species because it
contains several of the physical or biological features essential to
the conservation of the species and would increase species redundancy
and representation by, while enhancing connectivity between meadows
with recently detected butterflies and meadows that contain suitable
habitat, and serving as a separate population from other meadows
proposed for designation as critical habitat should a population be
reestablished in this area in the future. Because this unit abuts an
area that contains several of the essential physical or biological
features for the Sacramento Mountains checkerspot butterfly, and is
located mostly on Federal lands, we are reasonably certain that the
unit will contribute to the conservation of the species.
A portion of this unit is part of an active grazing allotment. The
Forest Service consults on active grazing allotment permits every 5
years. Threats that are occurring in this area include incompatible
grazing by large ungulates (including livestock), recreation, invasive
and nonnative plants, climate change, and altered fire regime. The
Forest Service restored this area using invasive species management,
and native habitat has already been established. The Forest Service is
also surveying the portions of this unit located on the Lincoln
National Forest for adult butterflies annually.
Unit 8: Deerhead Canyon
Unit 8 consists of approximately 33.1 ac (13.4 ha) and is southeast
of the village of Cloudcroft in the southern portion of the butterfly's
historical range. This unit is unoccupied and contains physical or
biological features (1) through (3) and (5), as described above under
Summary of Essential Physical or Biological Features. This unit is
essential for the conservation of the species because it contains most
of the physical or biological features essential to the conservation of
the species, and would increase species redundancy and representation
by serving as a separate source population should any catastrophic
events impact the other meadows proposed for designation as critical
habitat should a population be reestablished in this area in the
future, while enhancing connectivity between meadows with suitable
habitat. Because this unit is mostly located on Federal land and would
contribute to metapopulation dynamics and genetic rescue if a
population were to be reestablished in this area, we are reasonably
certain that the unit will contribute to the conservation of the
species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and nonnative plants,
climate change, and altered fire regime. The Forest Service is
surveying the portions of this unit on the Lincoln National Forest for
adult butterflies annually.
Unit 9: Cox Canyon
Unit 9 consists of approximately 417.8 ac (169.0 ha) and is located
in the southern portion of the butterfly's historical range, south of
the village of Cloudcroft. This unit is unoccupied; 31.62 percent is
located on the Lincoln National Forest, and 68.38 percent is located on
privately owned land. This unit contains physical or biological
features (1) through (3) and (5), as described above under Summary of
Essential Physical or Biological Features. This unit is essential for
the conservation of the species because it contains most of the
physical or biological features essential to the conservation of the
species and would increase species redundancy and representation by
serving as a separate source population from other meadows proposed for
designation as critical habitat if a population were to be
reestablished here, while enhancing connectivity between meadows with
recently detected butterflies and meadows that contain suitable
habitat. Because this unit would contribute to metapopulation dynamics
should a population be reestablished, we are reasonably certain that
the unit will contribute to the conservation of the species.
Threats that are occurring in this area include incompatible
grazing by large ungulates, recreation, invasive and
[[Page 54271]]
nonnative plants, climate change, and altered fire regime. Forest
Service is surveying the portions of this unit on the Lincoln National
Forest for adult butterflies annually.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation on previously reviewed actions.
These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support the physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would remove or alter Sacramento Mountains
checkerspot butterfly's native food plants (New Mexico beardtongue,
orange sneezeweed, and other native nectar sources), or tobacco root.
Such activities could include, but are not limited to, grading,
leveling, plowing, mowing, burning, herbicide or pesticide spraying,
incompatible grazing, or otherwise disturbing non-forested openings
that result in the death of or injury to eggs, larvae, or adult
Sacramento Mountains checkerspot butterflies. These activities could
significantly impair or eliminate the habitat necessary for the taxon's
breeding, foraging, sheltering, or other essential life functions.
(2) Actions that would alter the soil structure on which native
food plants are dependent. Such activities could include, but are not
limited to, erosion control activities, such as the installation of
structures or vegetation and grading for construction purposes. These
activities could significantly impair or eliminate the habitat that is
essential for the survival and reproduction of Sacramento Mountains
checkerspot butterfly's native food plants.
[[Page 54272]]
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled, ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant regulatory action'' and requires
additional analysis, review, and approval if met. The criterion
relevant here is whether the designation of critical habitat may have
an economic effect of $200 million or more in any given year (section
3(f)(1)). Therefore, our consideration of economic impacts uses a
screening analysis to assess whether a designation of critical habitat
for Sacramento Mountains checkerspot butterfly is likely to exceed the
economically significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Sacramento Mountains checkerspot butterfly
(IEc 2023, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographical areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation.
[[Page 54273]]
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. Therefore, designating occupied areas as critical habitat
typically causes little if any incremental impact above and beyond the
impact of listing the species. As a result, we generally focus the
screening analysis on areas of unoccupied critical habitat (unoccupied
units or unoccupied areas within occupied units). Overall, the
screening analysis assesses whether designation of critical habitat is
likely to result in any additional management or conservation efforts
that may incur incremental economic impacts. This screening analysis
combined with the information contained in our IEM constitute what we
consider to be our draft economic analysis (DEA) of the proposed
critical habitat designation for the Sacramento Mountains checkerspot
butterfly; our DEA is summarized in the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the Sacramento Mountains
checkerspot butterfly, first we identified, in the IEM dated November
3, 2022, probable incremental economic impacts associated with the
following categories of activities: (1) Fire management (i.e., fuels
reduction projects, controlled burns); (2) habitat restoration (i.e.,
growing and planting native plants, building and maintaining
exclosures, selective watering); (3) erosion control; (4) invasive
plant management; (5) recreation management; (6) road construction and
maintenance; and (7) grazing. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat affects only activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the Sacramento Mountains checkerspot butterfly is present,
Federal agencies are already required to consult with the Service under
section 7 of the Act on activities they fund, permit, or implement that
may affect the species. If we finalize this proposed critical habitat
designation, Federal agencies would be required to consider the effects
of their actions on the designated habitat, and if the Federal action
may affect critical habitat, our consultations will include an
evaluation of measures to avoid the destruction or adverse modification
of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Sacramento Mountains checkerspot butterfly's critical habitat. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the Sacramento
Mountains checkerspot butterfly includes approximately 1,636.9 acres
(662.4 hectares) in nine units in Otero County, New Mexico. Two of the
units are occupied, and seven of the units are unoccupied, by the
Sacramento Mountains checkerspot butterfly. The unoccupied areas
comprise 84 percent of the total proposed critical habitat area.
Approximately 32 percent of the total proposed designation is located
on private lands, 67 percent on Federal lands, and 1 percent on Tribal
lands.
For the areas that are occupied by the species (16 percent of the
proposed critical habitat designation), the economic impacts of
designating critical habitat under section 7 of the Act are likely
limited to additional administrative efforts to consider adverse
modification under section 7. This is because any activities occurring
in these areas and that require Federal approval or funding will be
subject to section 7 consultation requirements regardless of critical
habitat designation because the species may be present and any
recommended project modifications to avoid adversely modifying critical
habitat are the same as those needed to avoid jeopardizing the species.
For the areas unoccupied by the species (84 percent of the proposed
critical habitat designation), incremental section 7 costs may include
the administrative costs of consultation, as well as the costs of
developing and implementing conservation measures for the species. This
may include invasive species management activities, feral horse/large
ungulate management activities (including fencing), and other land
management activities by the Forest Service on the Lincoln National
Forest. On private lands, consultation activities and related
conservation actions are anticipated to be limited. Because a portion
of Unit 3 (Spud Patch Canyon) is on Mescalero Apache Tribal land, we
are considering that area for exclusion. Therefore, the probable
economic impact may be less than anticipated for this unit.
The overall incremental costs of critical habitat designation for
the Sacramento Mountains checkerspot butterfly are anticipated to be
less than $117,000 per year during the next 10 years. In total, fewer
than one programmatic consultation, one formal consultation, two
informal consultations, and six technical assistance efforts are
anticipated to occur annually in proposed critical habitat areas. The
incremental administrative costs of consultations are approximately
$32,000 per year (2022 dollars). Project modifications in unoccupied
habitat for the Sacramento Mountains checkerspot butterfly have the
potential to increase conservation in these areas, resulting in an
incremental benefit. Data limitations preclude our ability to monetize
these benefits; however, project modifications are unlikely to exceed
$200 million in a given year. Data limitations impede our ability to
confidently estimate the total incremental costs of establishing
critical habitat for the Sacramento Mountains checkerspot butterfly.
However, available information suggests it is unlikely that the
incremental costs will reach $200 million in a given year based on the
estimated annual number of consultations and per-unit consultation
costs. The designation is unlikely to trigger additional requirements
under State or local regulations and is not expected to affect property
values.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
[[Page 54274]]
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the Sacramento
Mountains checkerspot butterfly are not owned or managed by the DoD or
DHS, and, therefore, we anticipate no impact on national security or
homeland security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the Sacramento Mountains checkerspot butterfly, the
benefits of critical habitat include public awareness of the presence
of the Sacramento Mountains checkerspot butterfly and the importance of
habitat protection, and, where a Federal nexus exists, increased
habitat protection for the Sacramento Mountains checkerspot butterfly
due to protection from destruction or adverse modification of critical
habitat. Continued implementation of an ongoing management plan that
provides conservation equal to or more than the protections that result
from a critical habitat designation would reduce those benefits of
including that specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Tribal Lands
Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and
NMFS--Secretary's Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June 5,
1997) (S.O. 3206)--is the most comprehensive of the various guidance
documents related to Tribal relationships and Act implementation, and
it provides the most detail directly relevant to the designation of
critical habitat. In addition to the general direction discussed above,
the appendix to S.O. 3206 explicitly recognizes the right of Tribes to
participate fully in any listing process that may affect Tribal rights
or Tribal trust resources; this includes the designation of critical
habitat. Section 3(B)(4) of the appendix requires the Service to
consult with affected Tribes, ``when considering the designation of
critical habitat in an area that may impact Tribal trust resources,
Tribally-
[[Page 54275]]
owned fee lands, or the exercise of Tribal rights.'' That provision
also instructs the Service to avoid including Tribal lands within a
critical habitat designation unless the area is essential to conserve a
listed species, and it requires the Service to ``evaluate and document
the extent to which the conservation needs of the listed species can be
achieved by limiting the designation to other lands.''
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206, we consult with any Tribe whose Tribal trust resources,
tribally owned fee lands, or Tribal rights may be affected by including
any particular areas in the designation. We evaluate the extent to
which the conservation needs of the species can be achieved by limiting
the designation to other areas and give great weight to Tribal concerns
in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management considerations
or protection and unoccupied areas that are essential to the
conservation of a species), without regard to land ownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Secretary's statutory authority under the Act or
other statutes. The proposed critical habitat designation includes
Mescalero Apache Tribal lands.
Mescalero Apache Tribal Resources--The Mescalero Apache Tribe owns
22.4 ac (9.1 ha) of land in the Spud Patch Canyon Unit (Unit 3). The
Mescalero Apache Tribe does not have any conservation plans regarding
the Sacramento Mountains checkerspot butterfly. We solicited
information from the Mescalero Apache Tribe within the range of the
Sacramento Mountains checkerspot butterfly to inform the development of
the current condition assessment report, but we did not receive a
response. We also provided the Mescalero Apache Tribe the opportunity
to review a draft of the current condition assessment report and
provide input prior to making our final determination on the status of
the Sacramento Mountains checkerspot butterfly. The Mescalero Apache
Tribe is a valued partner in endangered species conservation within the
State of New Mexico. We have recently invited the Mescalero Apache
Tribe to participate in conducting surveys for the Sacramento Mountains
checkerspot butterfly on Forest Service land. We recognize and endorse
their fundamental right to provide for Tribal resource management
activities and we will continue to coordinate with the Mescalero Apache
Tribe on this rulemaking.
Summary of Exclusions Considered Under 4(b)(2) of the Act
We are considering excluding the following areas under section
4(b)(2) of the Act from the final critical habitat designation for the
Sacramento Mountains checkerspot butterfly: 22.4 ac (9.1 ha) of land
owned by the Mescalero Apache Tribe in Unit 3 of the Spud Patch Canyon
Unit based on Tribal resources and government-to-government
relationships of the United States with Tribal entities. We
specifically solicit comments on the inclusion or exclusion of such
areas. If through this proposed rule's public comment period (see
DATES, above) we receive information that we determine indicates that
there are potential economic, national security, or other relevant
impacts from designating particular areas as critical habitat, then as
part of developing the final designation of critical habitat, we will
evaluate that information and may conduct a discretionary exclusion
analysis to determine whether to exclude those areas under authority of
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19. If we receive a request for exclusion of a particular area and
after evaluation of supporting information we do not exclude, we will
fully describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not
[[Page 54276]]
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. Therefore, this action is not a
significant energy action, and no statement of energy effects is
required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. Therefore, a small government agency plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Sacramento Mountains checkerspot butterfly in a takings
implications assessment. The Act does not authorize the Service to
regulate private actions on private lands or confiscate private
property as a result of critical habitat designation. Designation of
critical
[[Page 54277]]
habitat does not affect land ownership, or establish any closures, or
restrictions on use of or access to the designated areas. Furthermore,
the designation of critical habitat does not affect landowner actions
that do not require Federal funding or permits, nor does it preclude
development of habitat conservation programs or issuance of incidental
take permits to permit actions that do require Federal funding or
permits to go forward. However, Federal agencies are prohibited from
carrying out, funding, or authorizing actions that would destroy or
adversely modify critical habitat. A takings implications assessment
has been completed for the proposed designation of critical habitat for
the Sacramento Mountains checkerspot butterfly, and it concludes that,
if adopted, this designation of critical habitat does not pose
significant takings implications for lands within or affected by the
designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of critical habitat are
presented on maps, and the proposed rule provides several options for
the interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor,
and you are not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
However, when any of the areas that meet the definition of
``critical habitat'' for the species are in States within the Tenth
Circuit, such as that of the Sacramento Mountains checkerspot
butterfly, we undertake a NEPA analysis for that critical habitat
designation consistent with the Tenth Circuit ruling in Catron County
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996). We invite the public to comment on the extent to
which this proposed critical habitat designation may have a significant
impact on the human environment or fall within one of the categorical
exclusions for actions that have no individual or cumulative effect on
the quality of the human environment. We will complete our analysis, in
compliance with NEPA, before finalizing this proposed rule.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretary's Order
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal
Trust Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We solicited information from the Mescalero Apache Nation
within the range of the Sacramento Mountains checkerspot butterfly to
inform the development of the current condition assessment report, but
we did not receive a response. We will continue to work with Tribal
entities during the development of a final rule for the designation of
critical habitat for the Sacramento Mountains checkerspot butterfly.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the New Mexico Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish
[[Page 54278]]
and Wildlife Service's Species Assessment Team and the New Mexico
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.95, amend paragraph (i) by adding an entry for
``Sacramento Mountains Checkerspot Butterfly (Euphydryas anicia
cloudcrofti)'' following the entry for ``Quino Checkerspot Butterfly
(Euphydryas editha quino)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
* * * * *
Sacramento Mountains Checkerspot Butterfly (Euphydryas anicia
cloudcrofti)
(1) Critical habitat units are depicted for Otero County, New
Mexico, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Sacramento Mountains checkerspot
butterfly consist of the following components:
(i) Open meadow, grassland habitat within the larger mixed-conifer
forest in high-altitude areas within the upper-montane and subalpine
zones at elevations between 2,380 and 2,750 meters (m) (7,800 and 9,000
feet (ft)) within the Sacramento Mountains of southern New Mexico.
(ii) The larval food plant (host plant), primarily New Mexico
beardtongue (Penstemon neomexicanus), or other potential host plants
such as other Penstemon species and tobacco root (Valeriana edulis), is
present as:
(A) Patches of plants clustered together;
(B) Large, robust individual plants; and/or
(C) Stands of plants adjacent to other tobacco root plants.
(iii) Access to nectar sources, primarily orange sneezeweed
(Hymenoxis hoopesii), native Asteraceae species, and other native
flowering plants.
(iv) Habitat connectivity consisting of less than 890 m (2,920 ft)
between populations or areas of suitable habitat to allow for dispersal
and gene flow.
(v) Less than 5 percent canopy cover.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created using U.S.
Department of Agriculture, Forest Service shapefiles delimiting the
known range of the species based on surveys. Then additional areas were
mapped using satellite imagery of meadow habitat within the appropriate
elevation (2,380 to 2,750 m (7,800 to 9,000 feet)). The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's internet site at https://www.fws.gov/about/region/southwest, at https://www.regulations.gov at Docket No. FWS-R2-ES-2023-
0023, and at the field office responsible for this designation. You may
obtain field office location information by contacting one of the
Service regional offices, the addresses of which are listed at 50 CFR
2.2.
(5) Index map follows:
Figure 1 to Sacramento Mountains Checkerspot Butterfly (Euphydryas
anicia cloudcrofti) paragraph (5)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.000
(6) Unit 1: Bailey Canyon; Otero County, New Mexico.
(i) Unit 1 consists of 200.5 ac (81.1 ha) in Otero County and is
composed of lands entirely in Federal ownership.
(ii) Map of Unit 1 follows:
Figure 2 to Sacramento Mountains Checkerspot Butterfly (Euphydryas
anicia cloudcrofti) paragraph (6)(ii)
[[Page 54280]]
[GRAPHIC] [TIFF OMITTED] TP10AU23.001
(7) Unit 2: Pines Meadow Campground; Otero County, New Mexico.
(i) Unit 2 consists of 62.4 ac (25.2 ha) in Otero County and is
composed of lands in Federal (62.2 ac (25.2 ha)) and private (0.2 ac
(0.08 ha)) ownership.
(ii) Map of Unit 2 follows:
Figure 3 to Sacramento Mountains Checkerspot Butterfly (Euphydryas
anicia cloudcrofti) paragraph (7)(ii)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.002
(8) Unit 3: Spud Patch Canyon; Otero County, New Mexico.
(i) Unit 3 consists of 277.2 ac (112.2 ha) in Otero County and is
composed of lands in Federal (203.9 ac (82.5 ha)), Tribal (22.4 ac (9.1
ha)), and private (50.9 ac (20.6 ha)) ownership.
(ii) Map of Unit 3 follows:
Figure 4 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (8)(ii)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.003
(9) Unit 4: Silver Springs Canyon; Otero County, New Mexico.
(i) Unit 4 consists of 203.4 ac (82.3 ha) in Otero County and is
composed of lands in Federal (132.9 ac (53.8 ha)) and private (70.5 ac
(28.5 ha)) ownership.
(ii) Map of Unit 4 follows:
Figure 5 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (9)(ii)
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(10) Unit 5: Horse Pasture Meadow; Otero County, New Mexico.
(i) Unit 5 consists of 82.4 ac (33.4 ha) in Otero County and is
composed of lands entirely in Federal ownership.
(ii) Map of Unit 5 follows:
Figure 6 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (10)(ii)
[[Page 54284]]
[GRAPHIC] [TIFF OMITTED] TP10AU23.005
(11) Unit 6: Sleepygrass Canyon; Otero County, New Mexico.
(i) Unit 6 consists of 223.5 ac (90.5 ha) in Otero County and is
composed of lands in Federal (123.5 ac (50.0 ha)) and private (100.0 ac
(40.5 ha)) ownership.
(ii) Map of Unit 6 follows:
Figure 7 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (11)(ii)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.006
(12) Unit 7: Pumphouse Canyon; Otero County, New Mexico.
(i) Unit 7 consists of 136.6 ac (55.3 ha) in Otero County and is
composed of lands in Federal (134.4 ac (54.4 ha)) and private (2.2 ac
(0.9 ha)) ownership.
(ii) Map of Unit 7 follows:
Figure 8 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (12)(ii)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.007
(13) Unit 8: Deerhead Canyon; Otero County, New Mexico.
(i) Unit 8 consists of 33.1 ac (13.4 ha) in Otero County and is
composed of lands in Federal (22.1 ac (8.9 ha)) and private (11.0 ac
(4.5 ha)) ownership.
(ii) Map of Unit 8 follows:
Figure 9 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (13)(ii)
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[GRAPHIC] [TIFF OMITTED] TP10AU23.008
(14) Unit 9: Cox Canyon; Otero County, New Mexico.
(i) Unit 9 consists of 417.8 ac (169.0 ha) in Otero County and is
composed of lands in Federal (132.1 ac (53.5 ha)) and private (285.7 ac
(115.6 ha)) ownership.
(ii) Map of Unit 9 follows:
Figure 10 to Sacramento Mountains checkerspot butterfly (Euphydryas
anicia cloudcrofti) paragraph (14)(ii)
[[Page 54288]]
[GRAPHIC] [TIFF OMITTED] TP10AU23.009
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-16967 Filed 8-9-23; 8:45 am]
BILLING CODE 4333-15-C
