80_FR_37529 80 FR 37404 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta charlestonensis

80 FR 37404 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta charlestonensis

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 80, Issue 125 (June 30, 2015)

Page Range37404-37430
FR Document2015-15947

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Mount Charleston blue butterfly (Icaricia (Plebejus) shasta charlestonensis) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 5,214 acres (2,110 hectares) in the Spring Mountains of Clark County, Nevada, fall within the boundaries of the critical habitat designation. The effect of this rule is to extend the Act's protections to the butterfly's critical habitat.

Federal Register, Volume 80 Issue 125 (Tuesday, June 30, 2015)
[Federal Register Volume 80, Number 125 (Tuesday, June 30, 2015)]
[Rules and Regulations]
[Pages 37404-37430]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-15947]



[[Page 37403]]

Vol. 80

Tuesday,

No. 125

June 30, 2015

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis); Final Rule

Federal Register / Vol. 80 , No. 125 / Tuesday, June 30, 2015 / Rules 
and Regulations

[[Page 37404]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0105; 4500030114]
RIN 1018-AZ91


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Mount Charleston Blue Butterfly (Icaricia 
(Plebejus) shasta charlestonensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Mount Charleston blue butterfly (Icaricia 
(Plebejus) shasta charlestonensis) under the Endangered Species Act of 
1973, as amended (Act). In total, approximately 5,214 acres (2,110 
hectares) in the Spring Mountains of Clark County, Nevada, fall within 
the boundaries of the critical habitat designation. The effect of this 
rule is to extend the Act's protections to the butterfly's critical 
habitat.

DATES: This rule is effective July 30, 2015.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/Nevada. Comments and 
materials we received, as well as some supporting documentation we used 
in preparing this final rule, are available for public inspection at 
http://www.regulations.gov. All of the comments, materials, and 
documentation that we considered in this rulemaking are available by 
appointment, during normal business hours at: U.S. Fish and Wildlife 
Service, Southern Nevada Fish and Wildlife Office, 4701 North Torrey 
Pines Drive, Las Vegas, NV 89130-7147; telephone 702-515-5230; 
facsimile 702-515-5231.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R8-ES-2013-0105 and at the Southern Nevada Fish and 
Wildlife Office at http://www.fws.gov/Nevada (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we developed for this critical habitat designation will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be included in the preamble and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Michael J. Senn, Field Supervisor, 
U.S. Fish and Wildlife Service, Southern Nevada Fish and Wildlife 
Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130-7147; 
telephone 702-515-5230; facsimile 702-515-5231. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the endangered Mount Charleston blue butterfly 
(Icaricia (Plebejus) shasta charlestonensis). Under the Endangered 
Species Act, any species that is determined to be an endangered or 
threatened species requires critical habitat to be designated, to the 
maximum extent prudent and determinable. Designations and revisions of 
critical habitat can only be completed by issuing a rule.
    We listed the Mount Charleston blue butterfly as an endangered 
species on September 19, 2013 (78 FR 57750). On July 15, 2014, we 
published in the Federal Register a proposed critical habitat 
designation for the Mount Charleston blue butterfly (79 FR 41225). 
Section 4(b)(2) of the Endangered Species Act states that the Secretary 
of the Interior shall designate critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat.
    The critical habitat areas we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for the Mount Charleston blue butterfly. 
In this rule, we are designating approximately 5,214 acres (2,110 
hectares) in the Spring Mountains of Clark County, Nevada, as critical 
habitat for the Mount Charleston blue butterfly.
    This rule consists of a final rule designating critical habitat for 
the Mount Charleston blue butterfly. The Mount Charleston blue 
butterfly is listed as an endangered species under the Endangered 
Species Act.
    We have prepared an economic analysis of the designation of 
critical habitat. In order to consider economic impacts, we prepared an 
incremental effects memorandum (IEM) and screening analysis, which 
together with our narrative and interpretation of effects we consider 
our draft economic analysis (DEA) of the proposed critical habitat 
designation and related factors (IEc 2014). The analysis, dated May 20, 
2014, was made available for public review from July 15, 2014, through 
September 15, 2014 (79 FR 41225). The DEA addressed probable economic 
impacts of critical habitat designation for the Mount Charleston blue 
butterfly. Following the close of the comment period, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. We summarize and respond 
to the comments in this final determination.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data and analyses. We obtained opinions from four knowledgeable 
individuals with scientific expertise to review our technical 
assumptions and analysis, and to help us determine whether or not we 
had used the best available information. These peer reviewers provided 
additional information, clarifications, and suggestions to improve this 
final rule. Information we received from peer review is incorporated 
into this final designation. We also considered all comments and 
information we received from the public during the comment period.

Previous Federal Actions

    All previous Federal actions are described in the final rule 
listing the Mount Charleston blue butterfly as an endangered species 
(78 FR 57750; September 19, 2013).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Mount Charleston blue butterfly 
during one comment period. The comment period associated with the 
publication of the proposed critical habitat rule (79 FR 41225) opened 
on July 15, 2014, and closed on September 15, 2014. We also requested 
comments on the associated draft economic analysis during the same 
comment period. We did not receive any requests for a public hearing. 
We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and draft economic analysis during the 
comment period.
    During the comment period, we received comment letters directly

[[Page 37405]]

addressing the proposed critical habitat designation. Overall, we 
received 706 comment letters addressing the proposed critical habitat 
designation or the draft economic analysis. All substantive information 
provided during the comment period has either been incorporated 
directly into this final determination or is addressed below. Comments 
we received were grouped into general issues specifically relating to 
the proposed critical habitat designation for the Mount Charleston blue 
butterfly and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
butterfly biology and ecology, conservation biology, and natural 
resource management. We received responses from all four of the peer 
reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Mount Charleston blue butterfly. Two peer reviewers agreed with our 
analyses in the proposed rule. A third peer reviewer, while not 
disagreeing with the designation of critical habitat itself, disagreed 
with some analyses or application of information. The fourth peer 
reviewer did not state a position. We received no peer review responses 
on the DEA. Peer reviewer comments are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer commented that our references in the 
proposed rule to Astragalus lentiginosus var. kernensis from Andrew et 
al. (2013) were a misidentification of the plant Oxytropis oreophila 
var. oreophila.
    Our Response: We agree. We erroneously sent peer reviewers a draft 
copy of the proposed critical habitat designation that referenced 
Astragalus lentiginosus var. kernensis from Andrew et al. (2013). 
However, based on a correction to this plant identification (Andrew et 
al. 2013, Errata Sheet; Thompson et al. 2014), the proposed critical 
habitat designation that published in the Federal Register (79 FR 
41225; July 15, 2014) contained the correct plant identification of 
Oxytropis oreophila var. oreophila. This correction is also reflected 
in this final critical habitat designation.
    (2) Comment: One peer reviewer did not agree with our depicting 
Astragalus platytropis and Oxytropis oreophila var. oreophila to 
Astragalus calycosus var. calycosus as functionally equivalent larval 
host plants for the Mount Charleston blue butterfly. The reviewer 
commented that numerous observations have been made of oviposition by 
the Mount Charleston blue butterfly in association with A. c. var. 
calycosus, and A. c. var. calycosus is present at all locations where 
Mount Charleston blue butterflies have been detected, suggesting this 
plant species is a required feature of habitat. The reviewer also 
commented that little reliable evidence exists that A. platytropis and 
O. o. var. oreophila function as commonly used host plants, and that 
the Service's assumption appeared to be based on an observation of one 
oviposition event by one female of one egg on each of A. platytropis 
and O. o. var. oreophila. Lastly, the peer reviewer commented on the 
difficulty of identifying butterfly eggs to species and questioned 
whether the observers had the expertise to do so.
    Our Response: We agree that the plant species Astragalus calycosus 
var. calycosus functions as an important biological feature and is the 
most common host plant present throughout the range of the Mount 
Charleston blue butterfly; thus, we have included it as a primary 
constituent element. A. c. var. calycosus is more abundant through a 
broader elevation range and occurs in more plant communities than 
Astragalus platytropis and Oxytropis oreophila var. oreophila, in the 
Spring Mountains as well as within the range of the Mount Charleston 
blue butterfly (Nachlinger and Reese 1996, Table 6; Niles and Leary 
2007, pp. 36 and 38; Andrew et al. 2013, p. 5). A. c. var. calycosus is 
the only host plant documented in lower elevation Lee Canyon locations 
(NewFields 2008, pp. 1-198 plus Appendices; Andrew et al. 2013, p. 5), 
where greater survey efforts to observe the butterfly have occurred, 
because of ease of access which has resulted in more frequent and 
consistent observations of the butterfly (Boyd 2006, p. 1; DataSmiths 
2007, pp. 1-9; Boyd and Murphy 2008, p. 2-3). Therefore, prior to 2012, 
the emphasis and life-history knowledge of Mount Charleston blue 
butterfly host plants in the Spring Mountains of Nevada has focused on 
A. c. var. calycosus. Subsequent observations reported by Andrew et al. 
(2013, pp. 1-93) and Thompson et al. (2014, pp. 97-158) have 
demonstrated that additional host plants for the Mount Charleston blue 
butterfly exist, which is consistent with documented use of multiple 
host plants by other Shasta blue butterfly subspecies (Emmel and 
Shields 1980, Table I). However, numerous observations and a longer 
history of knowledge of A. c. var. calycosus as a host plant do not 
negate the biological importance and functional equivalence of A. 
platytropis and O. o. var. oreophila as host plants important to the 
conservation of the Mount Charleston blue butterfly.
    The evidence that was used to infer that Astragalus platytropis and 
Oxytropis oreophila var. oreophila are host plants for the Mount 
Charleston blue butterfly is consistent with much of the Lepidoptera 
science, which may include observations of adult associations (for 
example, female concentration areas, pre-oviposition behavior by 
females on plants (Shields et al. 1969, pp. 28-29; Scott 1992, p. 2; 
Austin and Leary 2008, p. 1)); oviposition by females; and larval 
feeding and subsequent survival (Shields et al. 1969, pp. 28-29; Scott 
1992, p. 2; Austin and Leary 2008, p. 1). We recognize that observation 
of a female butterfly ovipositing on a plant is not equivalent to 
actual observations of feeding on a particular plant species and 
survival of butterfly larvae. There are instances in Lepidoptera 
literature where adult female butterflies were documented ovipositing 
on plants, and hatched larvae fed on the plants but did not 
subsequently survive (Shields et al. 1969, p. 29; Chew and Robbins 
1984, p. 68; Austin and Leary 2008, p. 1). Some genera, and even large 
proportions of some subfamilies, are known to oviposit haphazardly; 
however, the Shasta blue butterfly and its higher taxonomic 
classification groups have not been identified as species that oviposit 
haphazardly (Scott 1992, p. 2). The Mount Charleston blue butterfly is 
a member of the family Lycaenidae, subfamily Polyommatinae, for which 
host plants are more easily determined than for other lycaenid species, 
based on obvious behavior by females and frequent, unequivocal 
association of females with host plants (Austin and Leary 2008, p. 58).
    The evidence to support the conclusion that Astragalus calycosus 
var. calycosus, Astragalus platytropis, or Oxytropis oreophila var. 
oreophila function as host plants is based on observations and reports 
of: (1) Oviposition by Mount Charleston blue butterflies on A. c. var. 
calycosus, A. platytropis, and O. o. var. oreophila (Austin and Leary 
2008, p. 86; Thompson et al. 2014, pp. 122-125); (2) pre-oviposition 
behavior by Mount Charleston blue butterflies associated

[[Page 37406]]

with all host plant species (Austin and Leary 2008, p. 86; Thompson et 
al. 2014, pp. 122-125); (3) observations of Mount Charleston blue 
butterfly eggs on all three host plant species (Thompson et al. 2014, 
pp. 122-125); (4) other Shasta blue butterfly apparently having close 
associations and ovipositing on A. c. var. calycosus and A. platytropis 
outside of the Spring Mountains (Emmel and Shields 1980, Table I) or 
other Oxytropis spp. (Austin and Leary 2008, p. 85); and (5) close 
association or oviposition on more than one host plant species by other 
subspecies of Shasta blue butterflies (Emmel and Shields 1980, Table I; 
Scott 1992, p. 100; Austin and Leary 2008, pp. 85-86) (note that some 
observations reported in Austin and Leary 2008 and Scott 1992 are the 
same as those originally reported by Emmel and Shields 1980). The 
Service does not have information or reported observations of feeding 
and subsequent survival or death of any Shasta blue butterfly 
subspecies on A. c. var. calycosus, A. platytropis, or O. o. var. 
oreophila. Such observations would provide additional evidence to 
confirm or refute these plant species as larval hosts for the Shasta 
blue butterfly.
    In regard to evidence of egg observations of Mount Charleston blue 
butterflies, we agree with the peer reviewer and Scott (1986, p. 121) 
that identifying butterfly eggs is difficult, and reported observations 
should be critically evaluated. However, it is possible to identify 
eggs of various butterfly species to subfamily, genus, or even species 
(Scott 1986, p. 121). In addition, the context of how the egg is 
deposited on the plant and the context of where it is found should be 
considered. We believe observations of Mount Charleston blue butterfly 
eggs as reported by Thompson et al. (2014, pp. 122-131, Appendix F) are 
credible because: (1) Eggs deposited by Mount Charleston blue 
butterflies were directly observed, recorded, and photographed, which 
allowed for further comparison between and review by field observers; 
(2) eggs depicted (Thompson et al. 2014, pp. 129-130 and Appendix F) 
are deposited in a manner consistent with reports for other Shasta blue 
butterflies (Emmel and Shields 1980, pp. 132-138); (3) the South Loop 
locations of egg observations occurred in areas where and at times when 
the Mount Charleston blue butterfly was the predominant Lycaenid 
butterfly present (at least 95 percent of all Lycaenid butterflies 
observed) (Andrew et al. 2014, Table 2); (4) the other butterfly 
species reported at the South Loop location or in close proximity to 
where eggs were observed have different reported host plants (for 
example, Southwestern azure butterfly (Celastrina echo cinerea) in 
Austin and Leary 2008, pp. 63-64), or deposit their eggs primarily on 
locations of the plant (for example, Reakirt's blue butterfly 
(Echinargus isola) on or near parts of flowers (Scott 1992, pp. 102-
103; Austin and Leary 2008, pp. 90-91)) substantially different than 
those reported for the Mount Charleston blue butterfly (for example, 
leaves, petioles, and stems (Emmel and Shields 1980, pp. 132-138; 
Thompson et al. 2014, pp. 129-130 and Appendix F)); and (5) reviews by 
field experts and subject matter experts did not provide specific 
information to disprove the observations. Thus, the eggs that were 
observed were most likely Mount Charleston blue butterfly eggs, and not 
eggs of other butterfly species.
    Based on the preceding discussion, the Service determines that 
Astragalus calycosus var. calycosus, Astragalus platytropis, and 
Oxytropis oreophila var. oreophila are functionally equivalent host 
plants for the Mount Charleston blue butterfly, and, thus, are retained 
as primary biological features.
    (3) Comment: One peer reviewer did not agree that the Mount 
Charleston blue butterfly has been documented using for nectar 
Antennaria rosea (rosy pussy toes), Cryptantha spp., Ericameria 
nauseosa (rubber rabbitbrush), Erigeron flagellaris (trailing daisy), 
Gutierrezia sarothrae (broom snake weed), Monardella odoratissima 
(horsemint), Petradoria pumila var. pumila (rock-goldenrod), and 
Potentilla concinna var. concinna (Alpine cinquefoil).
    Our Response: We reexamined the references we cited for 
observations of nectaring Mount Charleston blue butterflies on various 
plant species, and we have determined the references suggest the Mount 
Charleston blue butterfly has been observed to nectar on all of the 
above species. Thompson et al. 2014 (pp. 117) report observations of 
Mount Charleston blue butterflies nectaring on Gutierrezia sarothrae. 
Boyd and Murphy (2008, p. 9) clearly state the Mount Charleston blue 
butterfly has been observed to nectar on Hymenoxys spp. and Erigeron 
spp., and they go on to state that 10 plant species (p. 13 and Figure 
2a on p. 16) ``were considered as likely `higher quality' [potential] 
resources--reflecting observations of use by the Mount Charleston blue 
in previous years.'' We recognize Boyd and Murphy (2008) do not provide 
documentation of these 10 species being used by nectaring Mount 
Charleston blue butterflies; rather, we infer it is likely, based on 
Boyd and Murphy's (2008, p. 13) observations of Mount Charleston blue 
butterflies using the plant species, and the flowers of these plant 
species having the appropriate morphological characteristics for nectar 
use. Therefore, we are not including plant species as potential nectar 
sources for the Mount Charleston blue butterfly without reported 
observations of use.
    (4) Comment: One peer reviewer commented that the primary 
constituent elements were not determined based on scientifically sound 
data and analyses, and are not defensible, because the reports the 
Service relied on to develop the primary constituent elements were 
either qualitative or did not provide range values with means and 
variances for several of the elements.
    Our Response: We used the best scientific and commercial data 
available to determine the primary constituent elements essential to 
the conservation of the Mount Charleston blue butterfly. We focused on 
available data from areas occupied by the Mount Charleston blue 
butterfly at the time of listing, and any new information available or 
provided by peer reviewers and commenters since the proposed critical 
habitat designation was published (79 FR 41225; July 15, 2014). We used 
minimum quantity values or quality descriptions for several primary 
constituent elements from areas occupied by Mount Charleston blue 
butterflies, because they represent our current understanding of the 
minimum habitat or features necessary to support the life-history 
processes of the subspecies. We believe using this approach identifies 
the physical and biological features that are essential to the 
conservation and recovery of the Mount Charleston blue butterfly.
    (5) Comment: One peer reviewer suggested horses in the Spring 
Mountains are feral, rather than wild, and should be referred to as 
such.
    Our Response: We agree, because horses are not native to the Spring 
Mountains, let alone North America, and escaped from domestication 
(Matthew 1926, p. 149); we have replaced ``wild'' with ``feral'' in 
this final rule.
    (6) Comment: One peer reviewer commented that citations were 
minimal within the Primary Constituent Elements for Mount Charleston 
Blue Butterfly section.
    Our Response: We provide citations for information used to identify 
the primary constituent elements (PCEs) in the section immediately 
preceding Primary Constituent Elements for Mount Charleston Blue 
Butterfly, in the discussion of Physical or Biological Features. The 
PCEs are a concise list of the elements, and the pertinent

[[Page 37407]]

information and sources that led us to identify them are explained in 
detail and cited in the discussion of physical or biological features.
    (7) Comment: One peer reviewer commented that the Pinyon (2011) 
work that we referenced was ``qualitative work and could not be 
repeated, and was therefore not highly defensible.''
    Our Response: We respectfully disagree and maintain that 
consideration of the information in Pinyon (2011) is consistent with 
our policy to use the best scientific and commercial data available to 
determine critical habitat. Our use of the information is described in 
Criteria Used To Identify Critical Habitat. We agree that some work 
performed and described by Pinyon 2011 is qualitative. For example, 
Pinyon (2011, p. 11) assigned areas of Mount Charleston blue butterfly 
habitat to either good, moderate, poor, or none based on the ``presence 
of larval host plants, nectar plants, ground cover, and canopy density 
(visual estimate),'' which may not be repeatable, to the extent that 
boundaries would coincide precisely, as with other investigators. While 
the precise boundaries could vary, the general areas where Pinyon 
(2011, Figure 8 and 9) identified and delineated moderate and high-
quality habitat are in close proximity, or correlate closely, to 
concentrations of Mount Charleston blue butterfly locations and other 
investigator habitat delineations (Weiss et al. 1997, Map 3.1; SWCA 
2008, Figure 1; Andrew et al. 2013, Figure 17, 20, and 22; Thompson et 
al. 2014, pp. 97-158). Thus, information from Pinyon (2011) is 
repeatable to some extent and defensible in the manner we applied it to 
determine critical habitat. (Also see our response to Comment 9, 
below.)
    (8) Comment: One peer reviewer commented that unobserved nectar 
sources cannot be assumed to be present at locations the Mount 
Charleston blue butterfly has been observed, particularly given the 
uncertainty of the distances that the Mount Charleston blue butterfly 
can move.
    Our Response: We respectfully disagree, because the Mount 
Charleston blue butterfly is typically observed moving short distances 
in the same area where its nectar (food for adults) and larval hosts 
occur; thus, unobserved (that is, unreported) nectar plants can be 
assumed to be present with a high degree of certainty at locations 
where the butterfly has been observed. (See also our response to 
Comment 3.)
    (9) Comment: We received suggested changes from two peer reviewers 
on the general description of Mount Charleston butterfly occurrence, 
which we stated is ``on relatively flat ridgetops [and] gently sloping 
hills.'' One peer reviewer referenced additional explanations provided 
by Boyd and Murphy (2008, p. 19). The other peer reviewer provided 
terrain slope data for plot points within areas where Mount Charleston 
blue butterfly adults have been observed.
    Our Response: We incorporated the reference provided by the peer 
reviewer in the Physical or Biological Features section of this final 
rule. The terrain slope data from the second peer reviewer do not 
affect the general description of areas where Mount Charleston blue 
butterflies occur; thus, we did not include them in this final rule. 
However, we anticipate using the information during the recovery 
planning process for the subspecies.
    (10) Comment: We received one peer review comment suggesting our 
analysis of potential climate change impacts would be helped by 
considering mechanisms by which the Mount Charleston blue butterfly or 
its resources may be affected directly or indirectly by changes in 
temperature and extreme precipitation.
    Our Response: Because site- and species-specific information 
regarding impacts to the Mount Charleston blue butterfly and its 
resources from climate change is unavailable, we updated our discussion 
to include a description of general mechanisms that may be impacted by 
increasing temperatures and patterns of extreme drought and 
precipitation (see the ``Habitats That are Protected from Disturbance 
or are Representative of the Historical, Geographical, and Ecological 
Distributions of the Subspecies'' section, below). Also see our 
response to Comment 14.

Comments From Peer Reviewers and the Public

    (11) Comment: We received peer review and public comments stating 
that the Service did not use, or misapplied, the best scientific and 
commercial data available. Commenters suggested that information from 
Andrew et al. (2013) and Thompson et al. (2014) was inaccurate or 
unreliable because of the inexperience of the researchers and the 
errors that were made by them.
    Our Response: We respectfully disagree with these comments. In 
accordance with section 4 of the Endangered Species Act of 1973, as 
amended (Act; 16 U.S.C. 1531 et seq.), we are required to designate 
critical habitat on the basis of the best scientific and commercial 
data available. We used information from many different sources, 
including articles in peer-reviewed journals, scientific status surveys 
and studies completed by qualified individuals, experts' opinions or 
personal knowledge, and other sources, to designate critical habitat 
for the Mount Charleston blue butterfly. In accordance with our peer 
review policy, published on July 1, 1994 (59 FR 34270), we solicited 
peer review from knowledgeable individuals with scientific expertise 
that included familiarity with the species, the geographic region in 
which the species occurs, and conservation biology principles. 
Additionally, we requested comments or information from other concerned 
governmental agencies, the scientific community, industry, and any 
other interested parties concerning the proposed rule. All comments and 
information we received on the proposed rule and the draft economic 
analysis, along with the best scientific data available, were evaluated 
and taken into consideration to inform the critical habitat designation 
in this final rule.
    (12) Comment: We received two peer review comments and public 
comments on locations of potential removal of critical habitat within 
Lee Canyon Unit 2. One peer reviewer stated that areas within Unit 2, 
``should not be considered for removal until the current distribution, 
abundance, and condition of larval hosts, nectar sources, and other 
environmental characteristics consistent with occupancy have been 
assessed.'' In addition, the peer reviewer stated that areas diminished 
by recreation or other treatments may be able to recover with ``special 
management considerations and protection.'' Similarly, one public 
comment stated that the areas should not be removed from critical 
habitat, and should be restored and managed for occupancy by the Mount 
Charleston blue butterfly. One peer reviewer commented that additional 
habitat outside the Mount Charleston blue butterfly's current range in 
lower elevations should be designated.
    Our Response: As described in the proposed rule, we considered 
campgrounds and day-use areas that have high levels of public 
visitation and associated recreational disturbance for removal from 
critical habitat, because these activities have resulted in degraded 
habitat, or the level of recreational activity limits or precludes the 
presence of the Mount Charleston blue butterfly and its primary 
constituent elements. In this rule, we refer to these as ``removal 
areas.'' The Act and our regulations require us to base our decisions 
on the best available information. In our proposed rule, we stated that 
we may remove from designation locations referred to as

[[Page 37408]]

Dolomite Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic 
Area, Foxtail Snow Play Area, Lee Canyon Guard Station, Lee Meadows 
(extirpated Mount Charleston blue butterfly location), McWilliams 
Campground, and Old Mill Picnic Area and Youth Camp, because they have 
extremely high levels of public visitation and associated recreational 
disturbance. We did not receive specific information from peer 
reviewers or commenters that changed our understanding of the current 
habitat conditions and recreational use that occurs at Lee Meadows. 
Furthermore, Lee Meadows is not considered to be occupied habitat, 
because of habitat loss or degradation from past and ongoing recreation 
disturbance, and observations of the Mount Charleston blue butterfly 
have not been documented there since 1965 (see 78 FR 57750, September 
19, 2013; Boyd and Murphy 2008, p. 6; and Andrew et al. 2013, pp. 51-52 
for more details). While the Service would support efforts to restore 
and protect portions of the Lee Meadows area for the Mount Charleston 
blue butterfly, this management decision is outside the scope of the 
Service's authority. Based on the above, we have determined the 
criteria we established for removal areas apply to Lee Meadows, and we 
have removed Lee Meadows from this critical habitat designation.
    (13) Comment: We received one peer review and one public comment 
that suggested fuel treatment, recreation development, and 
infrastructure projects were not included or identified as threats. In 
addition, the peer reviewer stated that butterfly habitat was being 
adversely affected by ongoing or planned projects, including the Old 
Mill Wildland Urban Interface Hazardous Fuels Reduction Project; 
McWilliams, Old Mill, Dolomite Recreation Sites Reconstruction Project; 
and Foxtail Group Picnic Area Reconstruction Project. The public 
commented that their recommendations for the Old Mill Wildland Urban 
Interface Hazardous Fuels Reduction Project were not being implemented.
    Our Response: We identified threats from the implementation of 
recreational development projects and fuels reduction projects 
described by the commenter in the proposed rule for designation of 
critical habitat (79 FR 41234, 41237, and 41238; July 15, 2014). 
Additional information on threats to the species was considered in the 
final rule determining the status of the subspecies as endangered (78 
FR 57750; September 19, 2013). Since the listing of the Mount 
Charleston blue butterfly, the U.S. Forest Service (Forest Service) has 
consulted with the Service on actions they intend to implement, 
authorize, or fund that might affect the Mount Charleston blue 
butterfly, including the Old Mill Wildland Urban Interface Hazardous 
Fuels Reduction (Old Mill WUI) Project. When this final designation of 
critical habitat becomes effective (see DATES, above), the Forest 
Service has been notified that further consultation may be needed if 
ongoing or future projects affect designated critical habitat. Section 
7 requires Federal agencies to ensure that any action authorized, 
funded, or carried out by the agency is not likely to jeopardize the 
continued existence of listed species, or adversely modify or destroy 
their critical habitat, which may be accomplished by avoiding, 
minimizing, or mitigating take and adverse effects to critical habitat. 
Nondiscretionary measures associated with such formal consultations can 
be developed accordingly during future consultations; however, a 
Federal action agency (for example, Forest Service) has the discretion 
and authority to implement conservation recommendations received from 
the public on any given project.
    (14) Comment: We received one peer review and one public comment on 
climate change. The peer reviewer provided additional references, and 
recommended we describe the functional effects of climate change on the 
Mount Charleston blue butterfly. The public comment provided additional 
general references and requested that additional areas be included in 
the critical habitat designation to provide for adaptations to climate 
change.
    Our Response: We agree that climate change will likely affect the 
Mount Charleston blue butterfly and its critical habitat. However, 
site-specific information on climate change and its effects on the 
Mount Charleston blue butterfly and its habitat are not available at 
this time. We received additional information on climate change; 
however, this information did not provide enough specificity on areas 
that likely will be impacted by climate change. Thus, we are not 
identifying additional areas to include in the critical habitat 
designation based on this information.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' We did 
not receive official comments or positions on the proposed designation 
of critical habitat for the Mount Charleston blue butterfly from State 
of Nevada agencies. One peer reviewer worked for the State of Nevada, 
Department of Agriculture, and concurred that the proposed critical 
habitat designation was supported by the data and conclusions.

Public Comments

    (15) Comment: One public comment suggested that critical habitat is 
not determinable because of uncertainties of Mount Charleston blue 
butterfly habitat, location, and life history. Similarly, other 
commenters thought that critical habitat should not be designated until 
additional survey work is performed, because more information is needed 
on the distribution of butterfly and its host and nectar resources, and 
because once critical habitat is designated, it is difficult to change. 
One commenter stated that a thorough assessment of the designated 
wilderness area was needed to map the extent of habitat.
    Our Response: We believe sufficient information exists (1) to 
perform the required analyses of the impacts of the critical habitat 
designation; and (2) to identify critical habitat based on the 
biological needs of the Mount Charleston blue butterfly. Based on our 
review, we have determined there is sufficient information available to 
identify critical habitat in accordance with sections 3(5)(A) and 
4(b)(2) of the Act. Extensive, but not comprehensive, surveys for 
butterflies, and specifically the Mount Charleston blue butterfly and 
its habitat, have occurred across the subspecies' range and throughout 
the Mount Charleston Wilderness. As is generally the case with natural 
history, existing studies of the Mount Charleston butterfly have not 
been able to evaluate or address all possible variables associated with 
the subspecies. We recognize that future research will likely enhance 
our current understanding of the subspecies' biology, and additional 
survey work could provide a better understanding of the distribution of 
the Mount Charleston blue butterfly and its habitat. Nonetheless, the 
Act requires us to base our decisions on the best available scientific 
and commercial information at the time of designation, which is often 
not complete, and the scientific information about a species generally 
continues to grow and improve with time. Based on this, we utilized the 
best available information to determine areas of critical habitat for 
the Mount Charleston blue butterfly. We will review and consider new 
information as it becomes available.
    (16) Comment: We received one comment that the Service selects peer 
reviewers that agree with our decision,

[[Page 37409]]

but we do not select peer reviewers that will disagree.
    Our Response: Requests for peer reviewers were based on their 
availability and capacity as independent specialists with subject 
matter expertise. In selecting peer reviewers, we followed our joint 
policy on peer review published in the Federal Register on July 1, 1994 
(59 FR 34270), the guidelines for Federal agencies as described in the 
Office of Management and Budget (OMB) ``Final Information Quality 
Bulletin for Peer Review,'' released December 16, 2004, and the 
Service's ``Information Quality Guidelines and Peer Review,'' revised 
June 2012. The peer review plan and peer review comments have been 
posted on our Web site at http://www.fws.gov/cno/science/peerreview.html.
    (17) Comment: Multiple commenters expressed concern that the 
proposed critical habitat designation would prohibit or limit the 
expansion and development of additional recreational opportunities 
within areas proposed as critical habitat. In particular, commenters 
identified existing plans for development that would add hiking, 
mountain biking, and ski trails, some of which occur within the 
authorized special use permit area (SUPA) held by the Las Vegas Ski and 
Snowboard Resort (LVSSR).
    Our Response: The act of designating critical habitat does not 
summarily preclude any activities on the lands that have been 
designated. 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. Furthermore, designation of critical 
habitat does not (1) affect land ownership; (2) establish any closures 
or restrictions on use of or access to areas designated as critical 
habitat; or (3) establish specific land management standards or 
prescriptions. However, Federal agencies are prohibited from carrying 
out, funding, or authorizing actions that would destroy or adversely 
modify critical habitat.
    The Service is committed to working with the Forest Service and 
LVSSR to implement conservation efforts that protect the Mount 
Charleston blue butterfly, while also allowing for reasonable expansion 
and development of the LVSSR compatible with the Mount Charleston blue 
butterfly, including skiing and snowboarding in the winter and mountain 
biking and hiking in the summer. The Mount Charleston blue butterfly 
can coexist with managed recreation when such recreational activities 
are properly sited, and operation and maintenance of the infrastructure 
needed to support these activities is appropriately managed. For 
example, the Mount Charleston blue butterfly historically occurred and 
currently exists on active ski runs within the LVSSR. In addition, only 
part of the proposed LVSSR expansion area occurs within the critical 
habitat designation; future development and expansion of the LVSSR 
outside of these areas would likely be unaffected by this final rule.
    (18) Comment: One commenter asserts that the screening analysis 
does not adequately address the potential economic effects of critical 
habitat designation and any resulting prohibitions or limitations to 
the future LVSSR expansion or development of recreational activities.
    Our Response: In compliance with section 7 of the Act, the Forest 
Service has consulted with the Service on projects affecting the Mount 
Charleston blue butterfly since the subspecies was listed (78 FR 57750; 
September 19, 2013). During section 7 consultation, the Forest Service 
has proposed minimization measures designed to avoid or minimize 
impacts to the Mount Charleston blue butterfly and its habitat, such as 
pre-development site planning, effective oversight during 
implementation and development, and proper management of operations and 
maintenance activities. We anticipate that activities occurring within 
designated critical habitat also would have the potential to affect the 
subspecies and would require consultation regardless of the presence of 
designated critical habitat. That is, the designation of critical 
habitat is not anticipated to generate additional minimization or 
conservation measures for the Mount Charleston blue butterfly beyond 
those already generated by the listing. As such, the screening analysis 
limits the future incremental costs of designating critical habitat 
associated with the LVSSR to the administrative costs of analyzing and 
avoiding adverse modification of critical habitat during section 7 
consultations. (Also see our response to Comment 17, above, for further 
discussion.)
    (19) Comment: Some commenters state that areas of recreational 
development or expansion in the LVSSR Master Development Plan should be 
excluded from the designation because of the associated economic 
benefits, and because commenters believe the development plan will 
benefit the butterfly and its habitat.
    Our Response: In accordance with section 4(b)(2) of the Act, the 
Secretary may exclude any area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of inclusion. 
The Service did not consider areas for exclusion under section 4(b)(2) 
where future recreational development is planned, because to our 
knowledge, the recreational development plans in place now do not 
identify benefits provided to the Mount Charleston blue butterfly. 
While it is possible that some benefits (see our response to Comment 
17, above) for the Mount Charleston blue butterfly and its habitat may 
occur as a result of future development, specificity on future 
development plans or expected conservation benefits has not been 
provided. Therefore, areas of recreational development or expansion in 
the LVSSR Master Development Plan are not excluded from critical 
habitat designation.
    (20) Comment: We received many comments from the public that the 
designation of critical habitat for Mount Charleston blue butterfly 
should not include the LVSSR Special Use Permit Area (SUPA), because 
other greater threats are affecting the butterfly than would occur from 
expansion of the ski area and associated recreational opportunities.
    Our Response: We do not consider threats to a species or subspecies 
when determining areas to designate as critical habitat. Threats to the 
Mount Charleston blue butterfly were considered and analyzed during the 
determination of its status as endangered (78 FR 57750; September 19, 
2013). We determined critical habitat for the Mount Charleston blue 
butterfly based on the definition in the Act as follows: The specific 
areas within the geographical area occupied by the [subspecies] at the 
time it [was] listed . . . on which are found those physical or 
biological features essential to the conservation of the species and 
which may require special management considerations or protections (16 
U.S.C. 1532(5)(A)).
    We recognize concerns exist regarding future development plans for 
the LVSSR SUPA. Areas of the LVSSR SUPA have provided habitat for the 
Mount Charleston blue butterfly for decades, as described in the final 
listing of the subspecies (78 FR 57750; September 19, 2013). The 
Service is committed to working with the Forest Service and LVSSR to 
allow for reasonable expansion and development of recreational 
opportunities, including skiing and snowboarding in the winter and 
mountain biking and hiking in the

[[Page 37410]]

summer, within the SUPA that are compatible with the Mount Charleston 
blue butterfly and its habitat.
    (21) Comment: One commenter asserts the screening analysis is 
flawed because it contradicts existing case law by using ``the 
functional equivalence approach when considering the economic impact of 
[critical habitat] designation on the LVSSR property [= SUPA] by 
concluding that any economic impact occurred as a result of the listing 
of the species.''
    Our Response: Section 4(b)(2) of the Act requires the consideration 
of potential economic impacts associated with the designation of 
critical habitat. However, as we have explained elsewhere (see our 
response to Comment 17, above), the regulatory effect of critical 
habitat under the Act directly impacts only Federal agencies, as a 
result of the requirement that those agencies avoid ``adverse 
modification'' of critical habitat. Specifically, section 7(a)(2) of 
the Act states that, ``Each Federal agency shall, in consultation with 
and with the assistance of the Secretary, insure that any action 
authorized, funded, or carried out by such agency . . . is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of habitat of such species which is determined by the Secretary . . . 
to be critical . . .'' This then, is the regulatory impact of a 
critical habitat designation, and serves as the foundation of our 
economic analysis. We define it as an ``incremental impact,'' because 
it is an economic impact that is incurred above and beyond the baseline 
impacts that stem from the listing of the species (for example, costs 
associated with avoiding take under section 9 of the Act, mentioned by 
the commenter); thus it ``incrementally'' adds to those baseline costs. 
However, in most cases, and especially where the habitat in question is 
already occupied by the listed species, as is the case for the Mount 
Charleston blue butterfly, if there is a Federal nexus, the action 
agency already consults with the Service to ensure its actions will not 
jeopardize the continued existence of the species. Therefore, the 
additional costs of consultation to further ensure the action will not 
destroy or adversely modify critical habitat are usually relatively 
minimal. Because the Act provides for the consideration of economic 
impacts associated only with the designation of critical habitat, and 
because the regulatory effect of critical habitat is the requirement 
that Federal agencies avoid destruction or adverse modification of 
critical habitat, the economic impacts of a critical habitat 
designation in occupied areas are generally limited to the costs of 
consultations on actions with a Federal nexus, and are primarily borne 
by the Federal action agencies. As described in our final economic 
analysis, in some cases private individuals may incur some costs as 
third-party applicants in an action with a Federal nexus. Beyond this, 
while small business entities may possibly experience some economic 
impacts as a result of a listing of a species as endangered or 
threatened under the Act, small businesses do not generally experience 
substantial economic impacts as a direct result of the designation of 
critical habitat.
    (22) Comment: We received several comments that the Las Vegas Ski 
and Snowboard Resort Area should be excluded from critical habitat in 
accordance with the Ski Area Recreational Opportunity Enhancement Act 
of 2011 (Pub. L. 112-46), or the designation of critical habitat should 
give credence to the Act ``. . . which aims to bolster summer tourism 
and stir year-round economic activity in mountain towns.''
    Our Response: The Ski Area Recreational Opportunity Enhancement Act 
of 2011 (SAROEA), which amends the National Forest Ski Area Permit Act 
of 1986 (16 U.S.C. 497b), does not supersede the requirements of the 
Endangered Species Act. Section 3 of SAROEA provides the Secretary of 
Agriculture authority to authorize a ski area permittee to provide 
other recreational opportunities determined to be appropriate. The 
SAROEA requires that authorizations by the Secretary of Agriculture be 
in accordance with ``applicable land and resource management plan[s]'' 
and ``applicable laws (including regulations).'' Furthermore, section 4 
of SAROEA states, ``Nothing in the amendments made by this Act 
establishes a legal preference for the holder of a ski area permit to 
provide activities and associated facilities authorized by section 3(c) 
of the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b(c)) 
(as amended by section 3).'' There is no legal direction or requirement 
that stems from the SAROEA for the Service to modify critical habitat. 
As described in our response to Comment 17, above, we expect that 
properly planned, designed, managed, and implemented recreation may 
occur in close proximity to Mount Charleston blue butterfly habitat.
    (23) Comment: We received many public comments that the critical 
habitat area was too large, and the use of the quarter-quarter sections 
to encompass areas of primary constituent elements was arbitrary and 
capricious, or illogical. Public comments suggested that of the 702 
acres (ac) (284 hectares (ha)) authorized in the LVSSR SUPA that occur 
within proposed critical habitat, only 3.6 ac (1.5 ha) are known to be 
occupied by the Mount Charleston blue butterfly, and essentially are 
surrounded by a barrier of forest. One public comment stated the Mount 
Charleston blue butterfly has never been observed far from its habitat 
by leading experts, and suggested that designating areas between 
patches of habitat was overly broad and resulted in proposed 
designation of areas of unoccupied habitat not essential to the 
conservation of the Mount Charleston blue butterfly, and that such 
areas should not be designated as critical habitat.
    Our Response: We used quarter-quarter sections (generally 40 ac (16 
ha)) to delineate the boundaries of critical habitat units because, as 
stated in the proposed designation, they provide a readily available 
systematic method to identify areas that encompass the physical and 
biological features essential to the conservation of the Mount 
Charleston blue butterfly, and they provide boundaries that are easy to 
describe and interpret for the general public and land management 
agencies. The selection of any given quarter-quarter section was 
systematically selected based on our understanding of the best 
scientific and commercial data available on the occurrence of the 
physical and biological features essential to the conservation of the 
Mount Charleston blue butterfly. We recognize that there are areas 
within the critical habitat unit boundaries that do not possess the 
primary constituent elements, such as buildings, pavement, and other 
structures, and these areas are excluded by text in the final critical 
habitat rule (see section Criteria Used To Identify Critical Habitat). 
In the quarter-quarter sections that are included, suitable habitat is 
distributed across the area.
    Reported acres of habitat in previous Federal Register documents do 
not reflect the best available science currently available. In the 90-
day and 12-month findings (72 FR 29935-29936, May 30, 2007; 76 FR 
12670, March 8, 2011), we reported some of the first patches of habitat 
for the Mount Charleston blue butterfly to be 3.7 ac (1.5 ha), and two 
areas of 2.4 ac (0.97 ha) and 1.3 ac (0.53 ha) at the LVSSR. As a 
result of additional survey work in 2012, we identified the area of 
known occupied habitat at LVSSR as 25.7 ac (10.4 ha) in the final rule 
listing the

[[Page 37411]]

Mount Charleston blue butterfly as endangered (78 FR 57754; September 
19, 2013). Additional habitat has been mapped (Forest Service 2013, 
Figure 2) within the LVSSR SUPA, and more may be present in areas that 
have not been adequately surveyed. There are small areas with primary 
constituent elements distributed across the entire area of the LVSSR 
SUPA within Unit 2, which overlaps with approximately 60 percent of the 
LVSSR SUPA. The ability of the Mount Charleston blue butterfly to move 
among or between close patches of habitat within each critical habitat 
unit is necessary and essential for the conservation and recovery of 
the subspecies. Movements between patches of habitat to restore a 
functioning metapopulation (hypothesized to have failed because of 
reduced landscape permeability, as described in Boyd and Murphy 2008, 
p. 25) are necessary for recovery of the Mount Charleston blue 
butterfly.
    We recognize that habitat is dynamic, the extent of habitat may 
shift, surveys have not occurred in every area, and butterflies move 
between patches of habitat. Therefore, we adjusted some of the 
methodology we used to identify critical habitat in this final rule. We 
used a 1,000-meter (3,300-foot) distance to approximate potential Mount 
Charleston blue butterfly movements within critical habitat units. We 
believe the use of quarter-quarter sections provides an effective 
boundary and scale that encompasses likely butterfly movements within 
and between habitat patches, and is easily recognizable by land 
management agencies and the general public. Therefore, this methodology 
resulted in the three separate occupied critical habitat units 
essential to the conservation and recovery of the Mount Charleston blue 
butterfly that are identified in this final rule.
    (24) Comment: We received comments that feral horses were affecting 
the Mount Charleston blue butterfly and its habitat, and they should be 
removed.
    Our Response: Threats to the Mount Charleston blue butterfly were 
evaluated in the final rule for listing the subspecies as endangered 
(78 FR 57750; September 19, 2013). Management of feral horses is 
outside the scope of the Service's authority, and comments on this 
matter should be directed to the appropriate land manager. The Service 
will continue to advocate for appropriate management levels of feral 
horses to avoid or minimize potential conflicts with the Mount 
Charleston blue butterfly.
    (25) Comment: We received many public comments that the Service 
should assemble a recovery team and have a collaborative and inclusive 
recovery planning process.
    Our Response: We agree that we should have a collaborative and 
inclusive recovery planning process, and will work to fulfill our 
statutory mandate under section 4 of the Act, which requires us to 
develop and implement a recovery plan for the Mount Charleston blue 
butterfly now that the species is listed and critical habitat is 
designated.
    (26) Comment: We received several public comments suggesting that 
LVSSR SUPA should be excluded from critical habitat because more Mount 
Charleston blue butterflies were observed in Unit 1 than Unit 2, better 
habitat was present in Unit 1 than in Unit 2, and the Carpenter 1 Fire 
will likely improve habitat in Unit 1.
    Our Response: Exclusions to critical habitat are considered in 
accordance with section 4(b)(2) of the Act (see our response to Comment 
19), which does not allow consideration or comparison of population 
numbers between critical habitat units. We agree that Unit 1 likely has 
better habitat, has higher densities of Mount Charleston blue 
butterflies, and is more likely to improve in some areas as a result of 
the Carpenter 1 Fire. The critical habitat for the Mount Charleston 
blue butterfly in Unit 2 at LVSSR is essential to the conservation and 
recovery of the subspecies, because of the subspecies' restricted 
range, overall low numbers, and occupancy of few locations, which we 
described in the final listing rule (78 FR 57750; September 19, 2013). 
Additionally, the population of Mount Charleston blue butterflies in 
Unit 2 and at LVSSR is one of three known occupied locations. While 
other presumed occupied locations exist outside of designated critical 
habitat, the location within LVSSR is important because it is known 
occupied habitat with primary constituent elements essential to the 
conservation and recovery of the subspecies. Also see our responses to 
Comments 18 and 21, above.
    (27) Comment: We received many public comments that critical 
habitat should include historical, but unoccupied, areas.
    Our Response: We reviewed all areas where the Mount Charleston blue 
butterfly has been documented, as described in the final listing rule 
(78 FR 57750; September 19, 2013). For species listed under the Act, we 
may designate critical habitat in unoccupied areas when these areas are 
essential for the conservation of a species. However, with the 
exception of the removal areas (see our response to Comment 12), we 
have determined that the three occupied critical habitat units 
identified in this rule contain the physical and biological features 
essential to the conservation of the Mount Charleston blue butterfly, 
and no unoccupied areas are necessary for designation.
    (28) Comment: We received public comments that there was no 
evidence the Mount Charleston blue butterfly was unique, and, 
therefore, it should not be listed as endangered. In addition, we 
received comments that requested us to list the Mount Charleston blue 
butterfly under the Act.
    Our Response: We evaluated and described the taxonomy of the Mount 
Charleston blue butterfly during the listing process of the subspecies, 
and it was determined to be a valid taxonomic entity for considering 
listing under the Act. The listing process required us to publish a 
proposed rule in the Federal Register (77 FR 59518; September 27, 2012) 
and solicit public comments on the rule (see Previous Federal Actions 
section for more details). Information we received during the 60-day 
comment period for the proposed rule informed the final rule 
determining endangered species status for the subspecies (78 FR 57750; 
September 19, 2013). Listing of the Mount Charleston blue butterfly as 
endangered was effective October 21, 2013.
    (29) Comment: One commenter stated that the proposed rule to 
designate critical habitat relies too much on the use of linguistically 
uncertain or vague wording (for example, ``presumed to,'' ``suspected 
of,'' ``likely to be,'' and ``anticipated to'') to support its 
conclusions.
    Our Response: The language in the proposed and final rules reflects 
the uncertainty that exists in natural history studies, and we have 
attempted to be transparent and explicitly characterize that 
uncertainty where applicable. Under the Act, we base our decision on 
the best available scientific and commercial information, even if that 
information includes some level of uncertainty.
    (30) Comment: We received one public comment proposing an 
additional removal area from Unit 2 within the LVSSR SUPA because of 
intensive levels of recreational activities.
    Our Response: We reviewed and evaluated information on the 
additional proposed removal area within the LVSSR SUPA. Some of the 
proposed removal area contains concentrations of buildings, roads, ski 
lift structures, and recreation facilities (developed

[[Page 37412]]

infrastructure) that receive high levels of public recreation and 
facilities management. These areas lack physical or biological features 
necessary for the Mount Charleston blue butterfly, and because of the 
high concentrations of disturbance from public use and management, are 
not likely to be suitable in the future. Therefore, we do not include 
in this critical habitat designation a portion of the area mentioned by 
this commenter because its omission from the designation is consistent 
with the rationale for the removal areas we named in the July 15, 2014, 
proposed rule (see our response to Comment 12).

Comments From Federal Agencies

    (31) Comment: The Forest Service commented that the benefits of 
designating critical habitat were negligible because they must consult 
with the Service as a result of the listed status of the Mount 
Charleston blue butterfly in areas that contain habitat for the 
butterfly, whether it is occupied or not. The Forest Service stated 
they assume that areas with suitable habitat are occupied by the Mount 
Charleston blue butterfly and have developed protocols and designed 
criteria, in coordination with the Service, which will ``provide all 
the benefits listed in the Service's proposal to designate critical 
habitat.''
    Our Response: Under section 4(a)(3)(A) of the Act, the Service is 
required to designate critical habitat for species or subspecies listed 
as endangered or threatened, if prudent and determinable. The Service 
is not relieved of this statutory obligation when a Federal agency is 
already complying with section 7 obligations to consult if an action 
may affect a listed species or subspecies. While we appreciate the 
Forest Service's previous and ongoing efforts to develop effective 
conservation and management strategies to protect the Mount Charleston 
blue butterfly and its habitat, section 4 of the Act requires the 
Service to identify areas that provide the physical or biological 
features essential to the conservation of the subspecies and designate 
these areas as critical habitat. We will continue to work with the 
Forest Service to implement conservation efforts that protect the Mount 
Charleston blue butterfly and its habitat while also consulting on 
projects that may affect the Mount Charleston blue butterfly.
    (32) Comment: The Forest Service commented that they were concerned 
with the methods the Service used to define occupancy, particularly the 
inclusion of Unit 3 (North Loop, Mummy Springs location), where the 
Mount Charleston blue butterfly has not been observed since 1995. The 
Forest Service indicated that because they presume occupancy in 
suitable habitat, they initiate section 7 consultations and the 
benefits of designating critical habitat are negligible.
    Our Response: The Mount Charleston blue butterfly was last observed 
in the North Loop Unit 3 in 1995 by Weiss et al. (1997), who determined 
its presence and occupancy within this unit. Surveys have been 
insufficient to determine that the Mount Charleston blue butterfly has 
been extirpated from Unit 3. The last surveys for the Mount Charleston 
blue butterfly in Unit 3 occurred in 2006 (3 visits) and 2012 (2 
visits) (Boyd 2006, p. 1; Kingsley 2007, p. 6; Andrew et al. 2013, p. 
28), and some of these surveys occurred early in the season (mid-June 
and early July) making the likelihood of detecting adults to be low. 
Furthermore, Thompson et al. (2014, p. 156) indicate that, based on 
their experience performing extensive surveys for the Mount Charleston 
blue butterfly, it may persist at a location (for example, LVSSR and 
Bonanza), but be nearly undetectable with typical survey effort. For 
example, Boyd and Murphy (2008, p. 3) hypothesized that the failure to 
observe the Mount Charleston blue butterfly for 3 consecutive years and 
after intensive surveys in 2008, was ``strong evidence'' of its 
extirpation in Lee Canyon. However Thompson et al. observed an adult 
female at the same location surveyed at LVSSR on July 23, 2010. Thus, 
the Mount Charleston blue butterfly could be present at a location and 
remain undetected in areas with suitable habitat even with intensive 
surveys as exemplified by the preceding surveys during a 5-year time 
period. Therefore, it is appropriate to consider critical habitat in 
Unit 3 occupied.
    We appreciate the work that the Forest Service has done to conserve 
the Mount Charleston blue butterfly, and we will continue to work with 
them to implement conservation efforts that protect the Mount 
Charleston blue butterfly while also consulting on projects that may 
affect the Mount Charleston blue butterfly in the future.
    (33) Comment: The Forest Service suggested that the 2,440-meter (m) 
(8,000-foot (ft)) buffer proposed by the Service as needed for movement 
corridors was greater than the ``known limits'' of the Mount Charleston 
blue butterfly; therefore, the Forest Service recommended a 200-m (660-
ft) buffer. The Forest Service suggested that movements by Mission blue 
butterflies (which are Boisduval's blue butterflies) were not 
appropriate to use as a ``surrogate'' for movement by the Mount 
Charleston blue butterfly, because it was larger, ranked among the most 
vagile species of Lycaenidae, and had a hill-topping mating behavior 
that suggests higher flight heights than the Mount Charleston blue 
butterfly.
    Our Response: We have reviewed information on Lepidoptera movements 
emphasizing information on sedentary lycaenid butterflies, and revised 
the criteria for connectivity to provide an approximation based on a 
range of documented distances (300-1500 m) (see Criteria Used To 
Identify Critical Habitat section).
    In general, we reexamined the criteria used to identify critical 
habitat as they relate to dispersal for butterflies and the 2,440-m 
(8,000-ft) buffer distance applied for connectivity and corridors. We 
originally used dispersal distances reported for the Mission blue 
butterfly (Plebejus icarioides missionensis), because of its close 
taxonomic relation to the Mount Charleston blue butterfly and the 
availability of measured dispersal distances for the Mission blue 
butterfly. The commenter is correct that the Boisduval's blue butterfly 
is reported as ``the largest blue'' butterfly in North America. Scott 
(1986, p. 409) and Arnold et al. (1983, pp. 47-48) describe the Mission 
blue butterfly (P. i. missionensis) to ``. . . rank among the most 
vagile species of Lycaeninae'' because of long movements outside the 
study site (Scott 1975; Shreeve 1981). However, we are unaware of 
information to support the comment that the Boisduval's blue or Mission 
blue butterfly is a hill-topping species or subspecies (Scott 1968, 
Table 2; Arnold et al. 1983, p. 32) or of information relating hill-
topping or flight height to dispersal distance.
    Based on reports and descriptions of its movements, we agree that 
the vagility of the Mount Charleston blue butterfly is likely similar 
to other related Lycaenidae, and its mobility can be characterized as 
sedentary or low (10-100 m (33-330 ft)) (Cushman and Murphy 1993, p. 
40; Weiss et al. 1997, Table 2; Fleishman et al. 1997, Table 2; Boyd 
and Murphy 2008, pp. 3, 9; Thompson et al. 2013, pp. 118-121). However, 
studies of a butterfly's mobility and short-distant movements observed 
in mark-release-recapture do not accurately detect the longest 
movements of individuals, and thus are likely not reliable estimates of 
a species' dispersal distances (Wilson and Thomas 2002, pp. 259 and 
264; Stevens et al. 2010, p. 625). In addition, the maximum distances 
obtained from mark-release-recapture studies underestimate how far 
butterflies may disperse. These studies also underestimate the number 
of

[[Page 37413]]

individuals which will move long distances, because individuals that 
leave a habitat patch or study area and do not reach another patch 
often go undetected (Cushman and Murphy 1993, p. 40; Wilson and Thomas 
2002, p. 261).
    Limited estimates of Mount Charleston blue butterfly movements are 
available. Distances between patches of habitat for Mount Charleston 
blue butterfly locations delineated by Andrew et al. 2013 and Thompson 
et al. 2014 in Unit 2 (measured in Geographic Information System (GIS)) 
range between 300 m and 700 m (990 ft and 2300 ft), suggesting the 
butterfly is capable of movements greater than the commenter's 
recommended 200 m (660 ft). Aside from characterizations of the Mount 
Charleston blue butterfly's within-patch movements, we are unaware of 
data describing its maximum dispersal distance. Therefore, any 
approximation of dispersal for the Mount Charleston blue butterfly must 
be inferred from other sources or species for which we do have 
available movement data. We recognize that there are numerous 
interacting factors, both intrinsic (for example, genetics, size, 
health, life history) and extrinsic (for example, habitat quality and 
configuration, weather, population density), that may affect dispersal 
estimates of butterfly species. As such, we have revised the criteria 
for connectivity to reflect the range of documented distances, as 
described above.
    (34) Comment: The Forest Service requested that areas be removed 
from critical habitat designation that are within a 25-m (83-ft) buffer 
surrounding existing waterlines and administrative roads associated 
with previously removed recreation facilities, in Unit 2. The Forest 
Service stated the areas receive periodic maintenance, lack primary 
constituent elements, and are ``within the bounds of justification used 
for excluding [sic] the initial recreation areas.'' In addition, the 
Forest Service requested that an area be removed from the proposed 
critical habitat designation in Unit 1, where radio repeaters with 
required annual maintenance occur. The Forest Service states that the 
area was surveyed for habitat and only the host plant Astragalus 
platytropis was present, and they stated that the nearest documented 
citing of a Mount Charleston blue butterfly was 200 m (660 ft) away.
    Our Response: When determining critical habitat boundaries within 
this final rule, we made every effort to avoid including developed 
areas, such as lands covered by buildings, pavement, and other 
structures, because such lands lack the physical or biological features 
for Mount Charleston blue butterfly. However, the Mount Charleston blue 
butterfly and its habitat have been documented in close proximity to 
trails and administrative roads (Weiss et al. 1997, p. 10 and Map 3.1; 
Boyd and Murphy 2008, pp. 4-7; Thompson 2014b) near some of the areas 
that the Forest Service requested we remove from critical habitat 
designation in Unit 2. In addition, the Mount Charleston blue butterfly 
and its habitat have been documented within the area near radio 
repeaters in Unit 1 (Andrew et al. 2013, Figure 17). Therefore, the 
areas the Forest Service requested for removal are designated as 
critical habitat in this rule.

Summary of Changes From Proposed Rule

    Based on information we received during the comment period, we made 
the following changes to the proposed rule:
    (1) We have updated the genus from Plebejus to Icaricia for the 
Mount Charleston blue butterfly to reflect more current scientific 
studies and use. The Service will now use Icaricia shasta 
charlestonensis for the Mount Charleston blue butterfly. This includes 
amending the scientific name we set forth in the List of Endangered and 
Threatened Wildlife at 50 CFR 17.11(h).
    (2) In response to the comments we received from peer and public 
reviewers, we have updated the following sections to incorporate 
literature and information provided or to clarify language based on 
suggestions made: Species Information, Physical or Biological Features, 
and Primary Constituent Elements for the Mount Charleston Blue 
Butterfly (see updated sections in this final rule).
    (3) We have modified critical habitat boundaries to account for the 
areas initially proposed for removal, public comments on these proposed 
removals, and our subsequent review of the data on the proposed 
removals. In addition to the initial proposed removal areas, we have 
removed an area within the LVSSR SUPA to be consistent with the 
criteria, in that the areas are highly disturbed and receive high 
concentrations of public recreation or recreation management. We have 
modified the description of the areas removed from critical habitat. We 
have made changes to maps, units, and the text of this final rule. We 
have removed 267 ac (108 ha) from proposed Unit 2 and 80 ac (32 ha) 
from proposed Unit 1. In total, the final critical habitat designation 
has decreased from the proposed designation by 347 ac (140 ha). The 
final area of critical habitat designated for the Mount Charleston blue 
butterfly is approximately 2,228 ac (902 ha) in Unit 1, 2,573 ac (1,041 
ha) in Unit 2, and 413 ac (167 ha) in Unit 3, which amounts to a total 
of 5,214 ac (2,110 ha).

Changes From the Background Section of the Proposed Rule

Species Information

Taxonomy and Species Description
    The Mount Charleston blue butterfly is a subspecies of the wider 
ranging Shasta blue butterfly (Icaricia shasta), which is a member of 
the family Lycaenidae. Pelham (2014) recognized six subspecies of 
Shasta blue butterflies. Discussion of previous taxonomic treatments 
and subspecies description may be found in the final rule to list the 
Mount Charleston blue butterfly and proposed rule to designate critical 
habitat (78 FR 57751 and 79 FR 41227).
    We listed the Mount Charleston blue butterfly as Plebejus shasta 
charlestonensis as endangered effective on October 21, 2013 (see 78 FR 
57750; September 19, 2013). We cited Pelham (2008, p. 265) as 
justification for using the name Plebejus shasta charlestonensis. Opler 
and Warren (2003, p. 30) used the name Plebejus shasta in their list of 
scientific names of butterflies, but did not list subspecies.
    Based on more recent published scientific data and in keeping with 
regulations at 50 CFR 17.11(b) to use the most recently accepted 
scientific name, we will use the name Icaricia shasta charlestonensis 
for the Mount Charleston blue butterfly throughout this document. We 
are recognizing and accepting here the change in the scientific name 
for the Mount Charleston blue butterfly. Icaricia has previously been 
treated as a genus closely related to Plebejus (Nabokov 1945, pp. 1-61) 
or as a subgenus of Plebejus (Tilden 1973, p. 13).
    Data-driven studies undertaken just prior to and just after our 
listing of the butterfly (Vila et al. 2011 and Talavera et al. 2013, 
pp. 166-192 (first published online September 2012)) support and 
confirm recognition of Icaricia as a genus distinct from Plebejus for a 
group of species that includes the Mount Charleston blue butterfly. The 
studies are based on analyses of mitochondrial and nuclear DNA of a 
broad array of New World species. This recognition and delineation of 
Icaricia is accepted and followed by Grishin (2012, pp. 117-120), who 
provides descriptions of morphological features to distinguish the 
Mount Charleston blue butterfly

[[Page 37414]]

from 4 of the other 13 blue butterflies that occur in the Spring 
Mountains of Nevada. Pelham's online Catalogue of butterflies of the 
United States and Canada, revised June 22, 2014, lists the Mount 
Charleston blue butterfly as a subspecies of Icaricia shasta. The 
format of Pelham's Catalogue does not include reference to supportive 
data (e.g., Vila et al. 2011 or Talavera et al. 2013). The Integrated 
Taxonomic Information System (ITIS) database (ITIS 2015) follows 
Pelham's Catalogue, but as yet has not been updated to the 2014 revised 
version and likewise does not cite supportive data.
    We are recognizing the change in the scientific name of the Mount 
Charleston blue butterfly to Icaricia shasta charlestonensis, based on 
data presented by Vila et al. (2011) and Talavera et al. (2013) and 
accepted by Grishin (2012) and Pelham (2014). Updating the 
nomenclature, which is reflective of its current taxonomic status, does 
not impact the animal's description, distribution, or listing status.
Habitat and Biology
    Weiss et al. (1997, pp. 10-11) describe the natural habitat for the 
Mount Charleston blue butterfly as relatively flat ridgelines above 
2,500 m (8,200 ft), but isolated individuals have been observed as low 
as 2,000 m (6,600 ft). Boyd and Murphy (2008, p. 19) indicate that 
areas occupied by the subspecies feature exposed soil and rock 
substrates, with limited or no canopy cover or shading.
    Other than observations by surveyors, little information is 
available regarding most aspects of the subspecies' biology and the key 
determinants for the interactions among the Mount Charleston blue 
butterfly's life history and environmental conditions. Observations 
indicate that above- or below-average precipitation, coupled with 
above- or below-average temperatures, influence the phenology of this 
subspecies (Weiss et al. 1997, pp. 2-3 and 32; Boyd and Austin 1999, p. 
8), and are likely responsible directly or indirectly for the 
fluctuation in population numbers from year to year, because they 
affect host and nectar plants (Weiss et al. 1997, pp. 2-3 and 31-32). 
More research is needed to understand the functional relationship 
between the Mount Charleston blue butterfly and its habitat and 
weather.
    Like most butterfly species, the Mount Charleston blue butterfly is 
dependent on available and accessible nectar plant species for the 
adult butterfly flight period, when breeding and egg-laying occurs, and 
for larval development (described under Physical or Biological 
Features, below (Weiss et al. 1994, p. 3; Weiss et al. 1997, p. 10; 
Boyd 2005, p. 1; DataSmiths 2007, p. 21; Boyd and Murphy 2008, p. 9; 
Andrew et al. 2013, pp. 4-12; Thompson et al. 2014, pp. 97-158)). The 
typical flight and breeding period for the butterfly is early July to 
mid-August, with a peak in late July, although the subspecies has been 
observed as early as mid-June and as late as mid-September (Austin 
1980, p. 22; Boyd and Austin 1999, p. 17; Thompson et al. 2014, pp. 
105-116).
    Like all butterfly species, both the phenology (timing) and number 
of Mount Charleston blue butterfly individuals that emerge and fly to 
reproduce during a particular year appear to be reliant on the 
combination of many environmental factors that may constitute a 
successful (``favorable'') or unsuccessful (``poor'') year for the 
subspecies. Specific information regarding diapause of the Mount 
Charleston blue butterfly is lacking, and while geographic and 
subspecific variation in life histories can vary, we presume 
information on the diapause of other Shasta blue butterflies is similar 
to that of the Mount Charleston blue butterfly. The Shasta blue 
butterfly is generally thought to diapause at the base of its larval 
host plant or in the surrounding substrate (Emmel and Shields 1980, p. 
132) as an egg the first winter and as a larva near maturity the second 
winter (Ferris and Brown 1981, pp. 203-204; Scott 1986, p. 411); 
however, Emmel and Shields (1980, p. 132) suggested that diapause was 
passed as partly grown larvae, because freshly hatched eggshells were 
found near newly laid eggs (indicating that the eggs do not 
overwinter). More recent observations of late summer hatched and 
overwintering unhatched eggs of the Mount Charleston blue butterfly 
eggs laid in the Spring Mountains may indicate that it has an 
environmentally cued and mixed diapause life cycle; however, further 
observations supporting egg viability are needed to confirm this 
(Thompson et al. 2014, p. 131).
    Prolonged or multiple years of diapause has been documented for 
several butterfly families, including Lycaenidae (Pratt and Emmel 2010, 
p. 108). For example, the pupae of the variable checkerspot butterfly 
(Euphydryas chalcedona, which is in the Nymphalid family) are known to 
persist in diapause up to 5 to 7 years (Scott 1986, p. 28). The number 
of years the Mount Charleston blue butterfly can remain in diapause is 
unknown. Boyd and Murphy (2008, p. 21) suggest the Mount Charleston 
blue butterfly ``may be able to delay maturation during drought or the 
shortened growing seasons that follow winters with heavy snowfall and 
late snowmelt by remaining as eggs through one or more years, or 
returning to diapause as larvae, perhaps even more than once.'' Experts 
have hypothesized and demonstrated that, in some species of 
Lepidoptera, a prolonged diapause period may be possible in response to 
unfavorable environmental conditions (Scott 1986, pp. 26-30; Murphy 
2006, p. 1; DataSmiths 2007, p. 6; Boyd and Murphy 2008, p. 22), and 
this has been hypothesized for the Mount Charleston blue butterfly as 
well (Thompson et al. 2014, p.157). Little has been confirmed regarding 
the length of time or life stage in which the Mount Charleston blue 
butterfly diapauses.
    Most butterfly populations exist as regional metapopulations 
(Murphy et al. 1990, p. 44). Boyd and Murphy (2008, p. 23) suggest this 
is true of the Mount Charleston blue butterfly. Small habitat patches 
tend to support smaller butterfly populations that are frequently 
extirpated by events that are part of normal variation (Murphy et al. 
1990, p. 44). According to Boyd and Austin (1999, p. 17), smaller 
colonies of the Mount Charleston blue butterfly may be ephemeral in the 
long term, with the larger colonies of the subspecies more likely than 
smaller populations to persist in ``poor'' years, when environmental 
conditions do not support the emergence, flight, and reproduction of 
individuals. The ability of the Mount Charleston blue butterfly to move 
between habitat patches has not been studied; however, field 
observations indicate the subspecies has low vagility (capacity or 
tendency of a species to move about or disperse in a given 
environment), on the order of 10 to 100 m (33 to 330 ft) (Weiss et al. 
1995, p. 9), and nearly sedentary behavior (DataSmiths 2007, p. 21; 
Boyd and Murphy 2008, pp. 3 and 9). Furthermore, movement of lycaenid 
butterflies, in general, is limited and on the order of hundreds of 
meters (Cushman and Murphy 1993, p. 40); however, there are small 
portions of a population that can make substantially long movements 
(Arnold 1983, pp. 47-48).
    Based on this information, the likelihood of dispersal more than 
hundreds of meters (yards) is low for the Mount Charleston blue 
butterfly, but it may occur. It is hypothesized that the Mount 
Charleston blue butterfly could diapause for multiple years (more than 
2) as larvae and pupae until vegetation conditions are favorable to 
support emergence, flight, and reproduction

[[Page 37415]]

(Boyd and Murphy 2008, pp. 12, 21). This could account in part for 
periodic high numbers (as was documented by Weiss et al. in 1995) of 
butterflies observed at more sites in years with favorable conditions 
than in years with unfavorable conditions. Additional future research 
regarding diapause patterns of the Mount Charleston blue butterfly is 
needed to further our understanding of this subspecies.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available

[[Page 37416]]

information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential 
for the Mount Charleston blue butterfly from studies of this 
subspecies' habitat, ecology, and life history as described below. 
Additional information can be found in the final listing rule published 
in the Federal Register on September 19, 2013 (78 FR 57750). We have 
determined that the Mount Charleston blue butterfly requires the 
following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    The Mount Charleston blue butterfly is known to occur only in the 
high elevations of the Spring Mountains, located approximately 40 
kilometers (km) (25 miles (mi)) west of Las Vegas in Clark County, 
Nevada (Austin 1980, p. 20; Scott 1986, p. 410). Historically, the 
Mount Charleston blue butterfly was detected at elevations as low as 
1,830 m (6,000 ft) in the Spring Mountains (Austin 1980, p. 22; Austin 
1981, p. 66; Weiss et al. 1995, p. 5). Currently, the Mount Charleston 
blue butterfly is presumed or known to occupy habitat occurring between 
2,500 m (8,200 ft) elevation and 3,500 m elevation (11,500 ft) (Austin 
1980, p. 22; Weiss et al. 1997, p. 10; Boyd and Austin 1999, p. 17; 
Pinyon 2011, p. 17; Andrew et al. 2013, pp. 20-61; Thompson et al. 
2014, pp. 97-158). Dominant plant communities between these elevation 
bounds are variable (Forest Service 1998, pp. 11-12), but locations 
that support the Mount Charleston blue butterfly are characterized by 
open areas bordered, near, or surrounded by forests composed of 
ponderosa pine (Pinus ponderosa), Great Basin bristlecone pine (Pinus 
longaeva), and white fir (Abies concolor) (Andrew et al. 2013, p. 5). 
These open forest conditions are often created by disturbances such as 
fire and avalanches (Weiss et al. 1995, p. 5; DataSmiths 2007, p. 21; 
Boyd and Murphy 2008, pp. 23-24; Thompson et al. 2014, pp. 97-158), but 
the open-forest or non-forest conditions also exist as a function of 
occurring in higher subalpine elevations (i.e., above treeline) (for 
example, Nachlinger and Reese 1996, Appendix I-64-72).
    The Mount Charleston blue butterfly is described to occur on 
relatively flat ridgetops, gently sloping hills, or meadows, where tree 
cover is absent to less than 50 percent (Austin 1980, p. 22; Weiss et 
al. 1995, pp. 5-6; Weiss et al. 1997, pp. 10, 32-34; Boyd and Austin 
1999, p. 17; Boyd and Murphy 2008, p. 19; Andrews et al. 2013, p. 3; 
Thompson et al. 2014, p. 138). Boyd and Murphy (2008, p. 19) go on to 
suggest general descriptions of Mount Charleston blue butterfly habitat 
may have resulted because of the areas where ``collectors and observers 
disproportionately target . . . [to increase] opportunities to 
encounter'' the Mount Charleston blue butterfly. However, until 
observations are made in areas that would alter our understanding of 
where Mount Charleston blue butterflies generally occur, we assume 
these locations and characteristics are likely correlated with the 
ecological requirements of the Mount Charleston blue butterfly's larval 
host plants (Weiss et al. 1997, p. 22) and adult nectar plants 
(described below).
    Therefore, based on the information above, we identify flat or 
gently sloping areas between 2,500 m (8,200 ft) and 3,500 m (11,500 ft) 
elevation in the Spring Mountains as a physical or biological feature 
essential to the Mount Charleston blue butterfly for space for 
individual and population growth and for normal behavior.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The best scientific information available regarding food, water, 
air, light, minerals, and other nutritional or physiological 
requirements of the Mount Charleston blue butterfly's life stages (egg, 
larva, pupa, adult) result from observations by surveyors, and research 
to determine the requirements and environmental conditions essential to 
the Mount Charleston blue butterfly. In general, resources that are 
thought to fulfill these requirements occur in open areas with exposed 
soil and rock substrates with short, widely spaced forbs and grasses. 
These areas allow light to reach the ground in order for adult nectar 
and larval host plants to grow.
    Adult Mount Charleston blue butterflies have been documented 
feeding on nectar from a number of different flowering plants, but most 
frequently the species reported are Erigeron clokeyi (Clokey's 
fleabane), Eriogonum umbellatum var. versicolor (sulphur-flower 
buckwheat), Hymenoxys cooperi (Cooper rubberweed), and Hymenoxys 
lemmonii (Lemmon bitterweed) (Weiss et al. 1997, p. 11; Boyd and Murphy 
2008, pp. 13, 16; Pinyon 2011, p. 17; Andrew 2013, pp. 8; Thompson et 
al. 2014, pp. 117-118). Densities of nectar plants generally occur at 
more than 2 per square meter (m\2\) (0.2 per square foot (ft\2\)) for 
smaller plants such as E. clokeyi and more than 0.1 per m\2\ (0.01 per 
ft\2\) for larger and taller plants such as Hymenoxys sp. and E. 
umbellatum (Thompson et al. 2014, p. 138). Nectar plants typically 
occur within 10 m (33 ft) of larval host plants and, in combination, 
provide nectar during the adult flight period between mid-July and 
early August (Thompson et al. 2014, p. 138). Other species that adult 
Mount Charleston blue butterflies have been documented using as nectar 
plants include Antennaria rosea (rosy pussy toes), Cryptantha species 
(cryptantha; the species C. angustifolia originally reported is likely 
a misidentification because this species occurs in much lower elevation 
desert habitat (Niles and Leary 2007, p. 26)), Ericameria nauseosa 
(rubber rabbitbrush), Erigeron flagellaris (trailing daisy), 
Gutierrezia sarothrae (broom snake weed), Monardella odoratissima 
(horsemint), Petradoria pumila var. pumila (rock-goldenrod), and 
Potentilla concinna var. concinna (Alpine cinquefoil) (Boyd and Murphy 
2008, pp. 13, 16; Thompson et al. 2014, pp. 117-118).
    Based on surveyors' observations, several species appear to be 
important food plants for the larval life stage of the Mount Charleston 
blue butterfly. Therefore, we consider those plants on which surveyors 
have documented Mount Charleston blue butterfly eggs to be larval host 
or food plants (hereafter, referred to as larval host plants). Based on 
this, Astragalus calycosus var.

[[Page 37417]]

calycosus, Oxytropis oreophila var. oreophila, and Astragalus 
platytropis are all considered larval host plants for the Mount 
Charleston blue butterfly (Weiss et al. 1997, p. 10; Austin and Leary 
2008, p. 86; Andrew et al. 2013, pp. 7-8; Thompson et al. pp. 121-131) 
(see ``Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring,'' below, for more details). Note that in the final listing 
rule for the Mount Charleston blue butterfly (78 FR 57750; September 
19, 2013), we reported Astragalus lentiginosus var. kernensis (Kern 
plateau milkvetch) as a larval host plant (Andrew et al. 2013, p. 3); 
however, this host plant was subsequently determined to be Oxytropis 
oreophila var. oreophila (mountain oxytrope) (Thompson et al. 2014, pp. 
97-158), and has been described as such in this final rule. Future 
surveys and research may document the importance of other plant species 
as food resources for Mount Charleston blue butterfly larvae. Densities 
of host plants are generally greater than two per m\2\ (0.2 per ft\2\) 
(Weiss 1997, p. 34; Andrew et al. 2013, p. 9; Thompson et al. 2014, p. 
138).
    In addition, the Mount Charleston blue butterfly requires open 
canopy cover (open forest). Specifically, the Mount Charleston blue 
butterfly requires areas where tree cover is absent or low. This may be 
due to ecological requirements of the larval host plants or adult 
nectar plants or due to the flight behavior of the Mount Charleston 
blue butterfly. As with most butterflies, the Mount Charleston blue 
butterfly typically flies during sunny conditions, which are 
particularly important for this subspecies given the cooler air 
temperatures at high elevations in the Spring Mountains of Nevada 
(Weiss et al. 1997, p. 31).
    The areas where the Mount Charleston blue butterfly occurs often 
have shallow exposed soil and rock substrates with short, widely spaced 
forbs and grasses (Weiss et al. 1997, pp. 10, 27, and 31; Boyd 2005, p. 
1; Service 2006a, p. 1; Kingsley 2007, pp. 9-10; Boyd and Murphy 2008, 
p. 19; Pinyon 2011, pp. 17, 21; Andrew et al. 2013, pp. 9-13; Thompson 
et al. 2014, pp. 137-143). These vegetative characteristics may be 
important because they would not impede the Mount Charleston blue 
butterfly's low flight behavior (Weiss et al. 1997, p. 31) (reported to 
be 15 centimeters (cm) (5.9 inches (in)) or less (Thompson et al. 2014, 
p. 118)). Some taller grass or forb plants may be present when their 
density is less than five per m\2\ (Thompson et al. 2014, pp. 138-139).
    Therefore, based on the information above, we identify open habitat 
that permits light to reach the ground, nectar plants for adults and 
host plants for larvae, and exposed soil and rock substrates with 
short, widely spaced forbs and grasses to be physical or biological 
features for this subspecies that provide food, water, air, light, 
minerals, or other nutritional or physiological requirements.
Cover or Shelter
    The study and delineation of habitat for many butterflies has often 
been associated with larval host plants, breeding resources, and nectar 
sources for adults (Dennis 2004, p. 37). Similar to other butterfly 
species (Dennis 2004, p. 37), there is little to no information 
available about the structural elements required by the Mount 
Charleston blue butterfly for cover or shelter. However, we infer that, 
because of their low vagility, cover or shelter used by any life stage 
of the Mount Charleston blue butterfly will be in close association or 
proximity to larval or adult food resources in its habitat.
    For larvae, diapause is generally thought to occur at the base of 
the larval host plant or in the surrounding substrate (Emmel and 
Shields 1980, p. 132). Mount Charleston blue butterfly larvae feed 
after diapause. Like other butterflies, after larvae become large 
enough, they pupate (Scott 1986, p. 24). Pupation most likely occurs in 
the ground litter near a main stem of the larval host plant (Emmel and 
Shields 1980, p. 132). After pupation, adults feed and mate in the same 
areas where larvae diapause and pupation occurs. In addition, no 
specific areas for overnight roosting by adult Mount Charleston blue 
butterflies have been reported. However, adults have been observed 
using areas in moderately dense forest stands immediately adjacent to 
low-cover areas with larval host and nectar plants (Thompson et al. 
2014, p. 120).
    Therefore, based on the information above, we identify areas with 
larval host plants and adult nectar plants, and areas immediately 
adjacent to these plants, to be a physical or biological feature for 
this subspecies that provides cover or shelter.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    The adult Mount Charleston blue butterfly has specific site 
requirements for its flight period when breeding and reproduction 
occur, and these requirements may be correlated to its limited vagility 
and short adult life stage. The typical flight and breeding period for 
the Mount Charleston blue butterfly is early July to mid-August with a 
peak in late July, although the subspecies has been observed as early 
as mid-June and as late as mid-September (Austin 1980, p. 22; Boyd and 
Austin 1999, p. 17; Thompson et al. 2014, pp. 104-116). Breeding 
opportunities for individual Mount Charleston blue butterflies are 
presumably short in duration during its adult life stage, which may 
range from 2 to 12 days, as has been reported for other closely related 
species (Arnold 1983, Plebejinae in Table 44). Therefore, the Mount 
Charleston blue butterfly may generally be constrained to areas where 
adult nectar resources are in close proximity to plants on which to 
breed and lay eggs. Researchers have documented Mount Charleston blue 
butterfly breeding behavior in close spatial association with larval 
host and adult nectar plants (Thompson et al. 2014, pp. 121-125).
    The presence of Mount Charleston blue butterfly adult nectar 
plants, such as Erigeron clokeyi, appears to be strongly associated 
with its larval host plants (Andrew et al. 2013, p. 9). Female Mount 
Charleston blue butterflies have been observed ovipositing a single egg 
per host plant, which appears to weakly adhere to the host plant 
surface; this has been observed most typically within basal leaves 
(Thompson et al. 2014, p. 129). Ovipositing by butterflies on plants is 
not absolute evidence of larval feeding or survival (Austin and Leary 
2008, p. 1), but may provide a stronger inference in combination with 
close adult associations and repeated observations. Presuming the Mount 
Charleston blue butterfly's diapause behavior is similar to other 
Shasta blue butterflies, the Mount Charleston blue butterfly diapauses 
as an egg or as a larva at the base of its egg and larval host plants 
or in the surrounding substrate (Emmel and Shields 1980, p. 132; Ferris 
and Brown 1981, pp. 203-204; Scott 1986, p. 411).
    In 1987, researchers documented two occasions when Mount Charleston 
blue butterflies oviposited on Astragalus calycosus var. calycosus (= 
var. mancus) (Austin and Leary 2008, p. 86). Based on this reported 
documentation and subsequent observations of adult Mount Charleston 
blue butterflies associations with the plant, Astragalus calycosus var. 
calycosus was the only known larval host plant for the Mount Charleston 
blue butterfly (Austin and Leary 2008, p. 86). In 2011 and 2012, 
researchers from the University of Nevada Las Vegas observed female 
Mount Charleston blue butterflies landing on and ovipositing on 
Oxytropis oreophila var. oreophila (mountain oxytrope) and Astragalus

[[Page 37418]]

platytropis (broadkeeled milkvetch), which presumably also function as 
larval host plants (Andrew et al. 2013, pp. 4-12; Thompson et al. 2014, 
pp. 122-134). Andrew et al. (2013, p. 5) also documented Mount 
Charleston blue butterfly eggs on all three plant species. Other 
subspecies of Shasta blue butterflies have been reported to use more 
than one plant during larval development, including Astragalus 
platytropis (Austin and Leary 2008, pp. 85-86). Because the subspecies 
has been documented ovipositing on these three plant species and other 
subspecies of Shasta blue butterflies are known to use multiple larval 
host plants, we consider Astragalus calycosus var. calycosus, Oxytropis 
oreophila var. oreophila, and Astragalus platytropis to be the host 
plants used during Mount Charleston blue butterfly larval development.
    Therefore, based on the information above, we identify areas with 
larval host plants, especially Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, or Astragalus platytropis, and 
adult nectar plants, especially Erigeron clokeyi, Eriogonum umbellatum 
var. versicolor, Hymenoxys cooperi, and Hymenoxys lemmonii, during the 
flight period of the Mount Charleston blue butterfly to be a physical 
or biological feature for this subspecies that provides sites for 
breeding, reproduction, or rearing (or development) of offspring.
Habitats That Are Protected From Disturbance or Are Representative of 
the Historical, Geographical, and Ecological Distributions of the 
Subspecies
    Habitat for the Mount Charleston blue butterfly that is protected 
from disturbance or representative of the historical, geographical, and 
ecological distributions of the subspecies occurs in locations with 
limited canopy cover that comprise the appropriate species of larval 
host and adult nectar plants. Although some of these open locations 
occur due to wind and other environmental stresses that inhibit tree 
and shrub growth, fire is one of the most prevalent disturbances across 
the landscape of the Mount Charleston blue butterfly. To better 
understand the fire frequency and severity as it relates to historic 
and current conditions at Mount Charleston blue butterfly locations, we 
characterized locations using biophysical setting (BPS) with associated 
fire regime groups and fire regime condition developed by Provencher 
(2008, pp. 1-25 and Appendix II; Barrett et al. 2010, p. 15). Fire 
regime groups are classified by fire frequency, which is the average 
number of years between fires, and fire severity, which represents the 
percent replacement of dominant overstory vegetation (Barrett et al. 
2010, p. 15). Fire regime condition is ``. . . landscape-level measure 
of ecological departure between the pre-settlement and current 
distributions of vegetation succession classes and fire regimes for a 
given area'' (Provencher 2008, p. 3 citing Hann and Bunnell 2001). Fire 
regimes groups can be broadly categorized for Mount Charleston blue 
butterfly locations based on elevation. Higher elevation locations, 
generally above 2,740 m (9,000 ft) elevation, occur in fire regime 
groups 4 and 5 (Provencher 2008, Appendix II; e.g., BPS Rocky Mountain 
Alpine Fell-Field and Inter-Mountain Basins Subalpine Limber-
Bristlecone Pine Woodland). Lower elevation locations, generally below 
2,740 m (9,000 ft), occur in fire regime groups 2 and 3 (Provencher 
2008, Appendix II; e.g., BPS Inter-Mountain Basins Aspen-Mixed Conifer 
Forest and Woodland, and Rocky Mountain Mesic Montane Mixed Conifer 
Forest and Woodland).
    In higher elevation locations where the Mount Charleston blue 
butterfly is known or presumed to occur (South Loop Trail, Mummy 
Springs (North Loop Trail), upper Bonanza Trail, and Griffith Peak), 
disturbance from fire is relatively infrequent, with variable severity 
(fire regime groups 4 and 5 in Provencher 2008, Appendix II; see 
example BPS above), occurring every 35 to 200 years at a high severity, 
or occurring more frequently than every 200 years with a variable but 
generally high severity (Barrett et al. 2010, p. 15). Other 
disturbances likely to occur at the high-elevation Mount Charleston 
blue butterfly locations are from wind and other weather phenomena 
(Provencher 2008, Appendix II). At these high-elevation habitats, fire 
regime conditions are relatively similar to historic conditions 
(Provencher 2008, Table 4, 5 and Appendix II), so vegetation succession 
should be within the normal range of variation. Vegetation succession 
at some high-elevation areas that currently lack trees may cause these 
areas to become more forested, but other areas that are scoured by wind 
or exposed to other severe environmental stresses may remain non-
forested (for example, South Loop Trail; Andrew et al. 2013, pp. 20-27) 
(Provencher and Anderson 2011, pp. 1-116; NVWAP 2012, p. 177). Thus, we 
expect higher elevation locations will be able to continue to provide 
open areas with the appropriate vegetation necessary to support 
individuals and populations of Mount Charleston blue butterflies.
    In contrast, at lower elevation locations where the Mount 
Charleston blue butterfly is known or presumed to occur (Las Vegas Ski 
and Snowboard Resort (LVSSR), Foxtail, Youth Camp, Gary Abbott, Lower 
LVSSR Parking, Lee Meadows, Bristlecone Trail, and lower Bonanza 
Trail), disturbance from fire is likely to occur less than every 35 
years with more than 75 percent being high-severity fires, or is likely 
to occur more than every 35 years at mixed-severity and low-severity 
(fire regime group 2 and 3 in Provencher 2008, Appendix II; see example 
BPS above). At these lower elevation habitats, fire regime conditions 
have departed further from historic conditions (Provencher 2008, Table 
4, 5 and Appendix II). Lack of fire due to fire exclusion or reduction 
in natural fire cycles, as has been demonstrated in the Spring 
Mountains (Entrix 2008, p. 113) and other proximate mountain ranges 
(Amell 2006, pp. 2-3), has likely resulted in long-term successional 
changes, including increased forest area and forest structure (higher 
canopy cover, more young trees, and more trees intolerant of fire) 
(Nachlinger and Reese 1996, p. 37; Amell 2006, pp. 6-9; Boyd and Murphy 
2008, pp. 22-28; Denton et al. 2008, p. 21; Abella et al. 2012, pp. 
128, 130) at these lower elevation locations. Without fire in some of 
these locations, herbs and small forbs may be nearly absent as the 
vegetation moves towards later successional classes with increasing 
tree overstory cover (Provencher 2008, Appendix II). Therefore, habitat 
at the lower elevation Mount Charleston blue butterfly locations is 
more dissimilar from what would be expected based on historic fire 
regimes (Provencher 2008, Table 4, 5 and Appendix II). Thus, in order 
for Mount Charleston blue butterfly individuals and populations to be 
maintained at lower elevation locations, active habitat management will 
likely be necessary.
    The Carpenter 1 Fire in July 2013 burned into habitat of the Mount 
Charleston blue butterfly along the ridgelines between Griffith Peak 
and South Loop spanning a distance of approximately 3 miles (5 km). 
Within this area, low-, moderate-, or high-quality patches of Mount 
Charleston blue butterfly habitat intermixed with non-habitat have been 
documented (Pinyon 2011, Figure 8 and 9). The majority of Mount 
Charleston blue butterfly moderate- or high-quality habitat through 
this area was classified as having a very low or low soil-burn severity 
(Kallstrom 2013, p. 4). The characteristics of Mount Charleston blue

[[Page 37419]]

butterfly habitat in this area of widely spaced grass and forbs, 
exposed soil and rocks, and low tree canopy cover result in lower fuel 
loading and continuity, which likely contributed to its low burn 
severities.
    The effects of the Carpenter 1 Fire on Mount Charleston blue 
butterfly habitat ranged from low or no apparent effects to nearly 
complete elimination of plant cover (Herrmann 2014, p. 18). Based on a 
description of monitoring in 2014, the negative effects of the fire on 
the Mount Charleston blue butterfly and its habitat appear to be 
inversely related to the quality of habitat, where patches of high-
quality habitat with low tree canopy cover were likely less affected 
(Herrmann 2014, pp. 3-21). Overall, host and nectar plants were 
diminished in cover and abundance within the burn perimeter but are 
still present and recovering with new growth (Herrmann 2014, pp. 17-
19). Habitat within the burn perimeter will likely improve based upon 
habitat conditions in a nearby historic burn area (Herrmann 2014, pp. 
17-19). Surveys in 2014 have confirmed that the Mount Charleston blue 
butterfly survived and is present within and adjacent areas outside the 
fire perimeter (Herrmann 2014, p. 3).
    Recreational activities, trail-associated erosion, and the 
introduction of weeds or invasive grasses are likely the greatest 
threats that could occur within areas of Mount Charleston blue 
butterfly habitat burned by the Carpenter 1 Fire. Other potential 
threats to the Mount Charleston blue butterfly habitat associated with 
the fire may include trampling or grazing of new larval host or nectar 
plants by feral horses (Equus ferus) and elk (Cervus elaphus). However, 
use of this Mount Charleston blue butterfly habitat in these watersheds 
by feral horses and elk is currently very low.
    We are unaware of site- or species-specific analyses of climate 
change for the Spring Mountains in Nevada or impacts to the Mount 
Charleston blue butterfly; therefore, we rely on general predictions of 
climate change for alpine areas in the Southwest and predictions of 
climate change impacts to other invertebrate species to assess 
potential impacts of climate change to the Mount Charleston blue 
butterfly and its habitat. The Intergovernmental Panel on Climate 
Change (IPCC) has high confidence in predictions that extreme weather 
events, warmer temperatures, and regional drought are very likely to 
increase in the northern hemisphere as a result of climate change (IPCC 
2007, pp. 15-16). Climate models show the southwestern United States 
has transitioned into a more arid climate of drought that is predicted 
to continue into the next century (Seager et al. 2007, p. 1181). Garfin 
et al. (2013, p. 3) indicate that average daily temperatures have been 
higher and drought has been more severe from 2001 to 2010, when 
compared to average decadal occurrences from 1901 to 2010; however, 
``multiple drought events in the preceding 2,000 years . . . exceeded 
the most severe and sustained droughts from 1901 to 2010'' (Garfin et 
al. 2013, p. 3). In the past 60 years, the frequency of storms with 
extreme precipitation has increased in Nevada by 29 percent (Madsen and 
Figdor 2007, p. 37). These trends are anticipated to continue and 
include warmer summer and fall temperatures; more frequent and intense 
winter precipitation; decreased late-season snowpack; and hotter, more 
severe, and more frequent droughts (Garfin et al. p. 6).
    Changes in local southern Nevada climatic patterns cannot be 
definitively tied to global climate change; however, they are 
consistent with IPCC-predicted patterns of extreme precipitation, 
warmer than average temperatures, and drought (Redmond 2007, p. 1), and 
Garfin et al. (2013, p. 448) concurred with the 2009 National Climate 
Assessment (Karl et al. 2009, p. 131) that ``increasing temperatures 
and shifting precipitation patterns will drive declines in high-
elevation ecosystems [of the Southwest] such as alpine forests and 
tundra.'' In general, we expect these same trends to occur in the 
Spring Mountains, but effects on the Mount Charleston blue butterfly or 
its habitat from climate change will vary across the subspecies' range 
because of topographic heterogeneity (Luoto and Heikkinen 2008, p. 
487).
    Analyses of climate change impacts to other invertebrate species 
suggest different aspects of a species' biology may be affected, 
including physiological and morphological responses (Roy and Sparks 
2000; Altermatt 2012); shifts in spatial patterns and availability of 
refugia (Beaumont and Hughes 2002; Peterson et al. 2004; Heikkinen et 
al. 2010; Mattila et al. 2011; Oliver et al. 2012); shifts in temporal 
patterns (for example, flight periods) (Aldridge et al. 2011; Altermatt 
2012); and shifts in host and nectar plant phenology and availability. 
Because the magnitude and duration of different aspects of climate 
change are expected to be seasonally variable (Garfin et al. 2013, pp. 
5-6), impacts to microhabitats and, therefore, different butterfly life 
stages also are expected to be variable (Kingsolver et al. 2011; 
Radchuk et al. 2013). Results from Kingsolver et al. 2011 and Radchuk 
et al. 2013 indicate species and life-stage responses to increasing 
temperatures in field and lab settings are variable, so specific 
predictions of how climate change will impact the various microhabitats 
needed for the Mount Charleston blue butterfly's life stages are 
unknown. However, based on predicted increases in temperatures and 
patterns of extreme precipitation and drought for alpine areas of the 
Southwest, we believe that climate change will impact some biological 
aspects of the Mount Charleston blue butterfly and its high-elevation 
habitat. A negative response to such climate change patterns may 
exacerbate threats already facing the subspecies as a result of its 
small population size and threats to its habitat.
    Based on the information above, we identify habitat where natural 
disturbance, such as fire that creates and maintains openings in the 
canopy (fire regime groups 2, 3, 4, and 5), to be a physical or 
biological feature for this subspecies that provides habitats that are 
representative of the historical, geographical, and ecological 
distributions of the subspecies.

Primary Constituent Elements for the Mount Charleston Blue Butterfly

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Mount Charleston blue butterfly in areas occupied 
at the time of listing, focusing on the features' primary constituent 
elements. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the Mount Charleston blue butterfly are:
    (i) Primary Constituent Element 1: Areas of dynamic habitat between 
2,500 m (8,200 ft) and 3,500 m (11,500 ft) elevation with openings or 
where disturbance provides openings in the canopy that have no more 
than 50 percent tree cover (allowing sunlight to reach the ground); 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses; and exposed soil and rock substrates. When taller grass and 
forb plants greater than or equal to 15 cm (0.5 ft) in height are 
present, the density is less than five per m\2\ (50 per ft\2\).
    (ii) Primary Constituent Element 2: The presence of one or more 
species of host plants required by larvae of the

[[Page 37420]]

Mount Charleston blue butterfly for feeding and growth. Known larval 
host plants are Astragalus calycosus var. calycosus, Oxytropis 
oreophila var. oreophila, and Astragalus platytropis. Densities of host 
plants must be greater than two per m\2\ (0.2 per ft\2\).
    (iii) Primary Constituent Element 3: The presence of one or more 
species of nectar plants required by adult Mount Charleston blue 
butterflies for reproduction, feeding, and growth. Common nectar plants 
include Erigeron clokeyi, Hymenoxys lemmonii, Hymenoxys cooperi, and 
Eriogonum umbellatum var. versicolor. Densities of nectar plants must 
occur at more than two per m\2\ (0.2 per ft\2\) for smaller plants, 
such as E. clokeyi, and more than 0.1 per m\2\ (0.01 per ft\2\) for 
larger and taller plants, such as Hymenoxys sp. and E. umbellatum. 
Nectar plants typically occur within 10 m (33 ft) of larval host plants 
and, in combination, provide nectar during the adult flight period 
between mid-July and early August. Additional nectar sources that could 
be present in combination with the common nectar plants include 
Antennaria rosea, Cryptantha sp., Ericameria nauseosa ssp., Erigeron 
flagellaris, Guitierrezia sarothrae, Monardella odoratissima, 
Petradoria pumila var. pumila, and Potentilla concinna var. concinna.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the subspecies at the 
time of listing contain features which are essential to the 
conservation of the subspecies and which may require special management 
considerations or protection. Special management considerations or 
protection may be necessary to eliminate or reduce the magnitude of 
threats that affect the subspecies. Threats to the Mount Charleston 
blue butterfly and its features identified in the final listing rule 
for the Mount Charleston blue butterfly (78 FR 57750; September 19, 
2013) include: (1) Loss and degradation of habitat due to changes in 
natural fire regimes and succession; (2) implementation of recreational 
development projects and fuels reduction projects; (3) increases of 
nonnative plants; (4) collection; (5) small population size and few 
occurrences; and (6) exacerbation of other threats from the impacts of 
climate change, which is anticipated to increase drought and extreme 
precipitation events. In addition to these threats, feral horses 
present an additional threat by causing the loss and degradation of 
habitat resulting from trampling of host and nectar plants as well as 
the direct mortality of Mount Charleston blue butterfly where it is 
present (Boyd and Murphy 2008, pp. 7 and 27; Andrew et al. 2013, pp. 
37-66; Thompson et al. 2014, pp. 150-152).
    Threats to the Mount Charleston blue butterfly and its habitat and 
recommendations for ameliorating them have been described for each 
location and the subspecies in general (Boyd and Murphy 2008, pp. 1-41; 
Andrew et al. 2013 pp. 1-93; Thompson et al. 2014, pp. 97-158, 267-
288). Management activities that could facilitate ameliorating these 
threats include (but are not limited to): (1) Reestablishment and 
maintenance of habitat and landscape connectivity within and between 
populations; (2) habitat restoration and control of invasive nonnative 
species; (3) monitoring of ongoing habitat loss and nonnative plant 
invasion; (4) management of recreational activities to protect and 
prevent disturbance of Mount Charleston blue butterflies to reduce loss 
or deterioration of habitat; (5) maintenance of the Forest Service 
closure order prohibiting collection of the Mount Charleston blue 
butterfly and other blue butterfly species without a permit, in order 
to minimize the detrimental effects of collecting rare species; (6) 
removal or exclusion of feral horses in Mount Charleston blue butterfly 
habitat; and (7) providing educational and outreach opportunities to 
inform the public regarding potential adverse impacts to the species or 
sensitive habitat from disturbance caused by recreational activities in 
the summer or winter. These management activities will protect the 
physical and biological features by avoiding or minimizing activities 
that negatively affect the Mount Charleston blue butterfly and its 
habitat while promoting activities that are beneficial to them. 
Additionally, management of critical habitat lands will help maintain 
or enhance the necessary environmental components, foster recovery, and 
sustain populations currently in decline.
    All of the areas designated as critical habitat occur within the 
Spring Mountains National Recreation Area, and are covered by the 1998 
Spring Mountains National Recreation Area (SMNRA) Conservation 
Agreement. To date, the Conservation Agreement has not always been 
effective in protecting existing habitat for the Mount Charleston blue 
butterfly or yielding significant conservation benefits for the 
species. The Forest Service is currently in the process of revising the 
SMNRA Conservation Agreement, and the Service is a cooperator in this 
process. However, as the Conservation Agreement is currently under 
revision, and completion has not occurred prior to publication of this 
final rule, it is unclear what level of protection or conservation 
benefit the final SNMRA Conservation Agreement will provide for the 
Mount Charleston blue 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. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside of the geographical area currently occupied--are necessary to 
ensure the conservation of the species. We are designating critical 
habitat in areas within the geographical area occupied by the 
subspecies at the time of listing in October 2013 because such areas 
contain the physical or biological features that are essential to the 
conservation of the subspecies. We are not designating areas outside 
the geographical area occupied by the subspecies at the time of listing 
because they would provide limited benefit and are not needed to 
conserve the species.
    When determining the possible distribution of areas that meet the 
definition of critical habitat for the Mount Charleston blue butterfly, 
we considered all known suitable habitat patches remaining within the 
subspecies' historical range from Willow Creek, south to Griffith Peak 
within the SMNRA. For the Mount Charleston blue butterfly, we included 
locations of known populations and suitable habitat immediately 
adjacent to, or areas between, known populations that provide 
connectivity between these locations.
    This section provides the details of the process we used to 
delineate the critical habitat for the Mount Charleston blue butterfly. 
The areas designated as critical habitat in this final rule are areas 
where the Mount Charleston blue butterfly occur and that contain the 
physical and biological features essential to the conservation of the 
species. These areas have been identified through incidental 
observations and systematic surveys or studies occurring over a period 
of several years. This information comes from multiple sources, such as 
reports, journal articles, and Forest Service project information. 
Based on this

[[Page 37421]]

information, we are designating critical habitat in specific areas 
within the geographical area currently occupied by the Mount Charleston 
blue butterfly that contain the physical and biological features 
essential to the conservation of the species.
    We delineated the final critical habitat boundaries using the 
following steps:
    (1) We compiled and mapped Mount Charleston blue butterfly 
observation locations (points) and polygons of habitat that included 
larval host and nectar plants, or only larval host plants delineated in 
previous studies or surveys from Austin (1980), Weiss et al. (1997), 
Service (2006b), DataSmiths (2007), Newfields (2008), SWCA (2008), 
Carsey et al. (2011), Holthuijzen et al. (2011), Pinyon (2011), Andrew 
et al. (2013), Herrmann (2014), and Thompson et al. (2014). The 
location information from the data sources used provided enough 
information to identify specific geographic areas by corroborating 
narratively described locations and mapped locations. These surveys are 
the best available data on the current distribution, habitat, and 
features that provide the basis for identifying areas of critical 
habitat for the Mount Charleston blue butterfly.
    (2) Observed locations of Mount Charleston blue butterflies 
described above were used to create larger polygons of suitable habitat 
by buffering observed locations by 100 m (330 ft). These polygons 
assumed that suitable habitat was present up to 100 m (330 ft) around 
an observed location, because it is estimated that individual Mount 
Charleston blue butterflies can utilize areas between 10 to 100 m (33 
to 330 ft; Weiss et al. 1995, Table 1) from observed locations.
    (3) Polygons of suitable habitat were identified from previously 
delineated habitat (described above) and were considered suitable if 
the habitat polygon contained: (a) Observed locations of Mount 
Charleston blue butterflies; (b) larval host and nectar plants; (c) 
delineated habitat that was rated by the investigator (Pinyon 2011, pp. 
1-39) as either ``moderate'' or ``good'' quality; or (d) larval host 
plants. It was assumed that nectar plants would also be present in 
areas where larval host plants were detected and butterflies were 
observed because both larval host and nectar plants must be in close 
proximity for Mount Charleston blue butterflies to be present (Boyd and 
Murphy 2008, pp. 1-31; Thompson et al. 2014, p. 138).
    (4) We evaluated connectivity corridors of butterfly populations 
between or adjacent to areas of suitable habitat because these areas 
are likely important for butterfly dispersal. In contrast to distances 
moved within a single patch of habitat, which has been estimated to be 
between 10 to 100 m (33 to 330 ft), dispersal can be defined as 
movement between patches of habitat (Bowler and Benton 2005, p. 207). 
Studies suggest that closely related butterfly taxa have more similar 
mobility than distantly related butterfly taxa (Burke et al. 2011, p. 
2284). We determined the approximate maximum dispersal distance of the 
Mount Charleston blue butterfly to be 1,000 m (3,281 ft) based on 
documented movement distances observed during mark-and-recapture 
studies of lycaenid butterflies described to be sedentary. Of the 
studies using mark-and-recapture studies that we examined, we found 
that the furthest distances ranged between 300 and 1,500 m (987 and 
4,920 ft) (Bink 1992 as referenced in Sekar 2012, Table 2; Saarinen 
1993 as cited in Komonen et al. 2008, p. 132; Peterson 1996, p. 1990; 
Lewis et al. 1997, pp. 283, 288-289; Peterson 1997, p. 175; Fischer et 
al. 1999, pp. 43 and 46; Baguette et al. 2000, p. 103; Bourn and Warren 
2000, p. 9; Franz[eacute]n and Ranius 2004, p. 130; Krauss et al. 2004, 
p. 358; Binzenh[ouml]fer et al. 2008, p. 267; Chuluunbaatar et al. 
2009, p. 60; Barua et al. 2011, p. 44; Hovestadt et al. 2011, p. 1073; 
COSEWIC 2012, p. 30). Therefore, we approximated connectivity corridors 
by buffering polygons of suitable habitat by 500 m (2,461 ft), which 
allowed us to determine if polygons of suitable habitat were within the 
approximate 1,000 m (3,281 ft) dispersal distance of each other. Areas 
that did not contain surveyed habitat or were rated as ``poor'' quality 
or ``inadequate'' habitat by investigators were not considered. 
Quarter-quarter sections (see below for description of quarter-quarter 
section) that were bounded on all sides by other quarter-quarter 
sections meeting the above criteria were included to avoid creating 
``doughnut holes'' within corridors.
    (5) Observed locations, suitable habitat, and connectivity 
corridors, as described above, are all considered to be within the 
present geographic range of the subspecies.
    (6) Critical habitat boundaries were delineated using a data layer 
of the Public Land Survey System (PLSS), which includes quarter-quarter 
sections (16 ha (40 ac)). Quarter-quarter sections are designated as 
critical habitat if they contain observed locations, suitable habitat, 
or connectivity corridors. Quarter-quarter sections were used to 
delineate critical habitat boundaries because they provide a readily 
available systematic method to identify areas that encompass the 
physical and biological features essential to the conservation of the 
Mount Charleston blue butterfly and they provide boundaries that are 
easy to describe and interpret for the general public and land 
management agencies. Critical habitat boundaries were derived from the 
outer boundary of the polygons selected from the PLSS quarter-quarter 
sections in the previous steps.
    (7) We removed locations from the critical habitat designation 
based on information received through the notice-and-comment process on 
the proposed rule. Some of these locations overlap slightly with Mount 
Charleston blue butterfly habitat previously mapped by DataSmiths 2007. 
These locations are at the fringe of previously mapped habitat and most 
of these areas lack one or more of the physical or biological features 
or are heavily impacted by public recreation and facilities management. 
We removed a 25-m (82-ft) perimeter distance around established 
boundaries or developed infrastructure that is consistent with the 
conclusions of a study on the Karner blue butterfly (Lycaeides melissa 
samuelis), which indicated that habitat within short distances of 
recreational features may be insufficient to offset recreational 
impacts on butterfly behavior (Bennett et al. 2010, p. 27; Bennett et 
al. 2013, pp. 1794-1795). This distance also is consistent with 
observations that impacts associated with the campgrounds, day-use 
areas, and roads tend to be concentrated within a 25-m (82-ft) buffer 
(Cole 1993, p. 111; Cole 2004, p. 55; Monz et al.2010, p. 556; Swick 
2013).
    Specifically, we removed locations referred to as Dolomite 
Campground, Foxtail Girl Scout Camp, Foxtail Group Picnic Area, Foxtail 
Snow Play Area, Lee Canyon Guard Station, Lee Meadows (extirpated Mount 
Charleston blue butterfly location), McWilliams Campground, Old Mill 
Picnic Area, Youth Camp, and LVSSR base facilities and lift terminals. 
These locations are within the established boundaries or developed 
infrastructure (for example, buildings, roads, parking areas, fire 
pits, base ski lift terminals, etc.) for the above-listed campgrounds, 
day-use areas, and ski area facilities, which have extremely high 
levels of public visitation and associated recreational disturbance. 
High levels of recreational disturbance in these areas have either 
severely degraded available habitat, including host and nectar plants, 
or the intense level of recreational activity severely limits or 
precludes the use of these areas by the Mount Charleston blue 
butterfly. Additionally, small

[[Page 37422]]

``doughnut holes'' and slivers of land encircled by the buffered areas 
are not included the final designation, because these fragments do not 
meet the definition of critical habitat for this subspecies.
    When determining 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 Mount Charleston blue 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 final rule have been 
excluded by text in the rule and are not designated as critical 
habitat. Therefore, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification, unless the specific action 
would affect the physical or biological features in the adjacent 
critical habitat.
    We are designating as critical habitat lands that we have 
determined are occupied at the time of listing and contain the physical 
or biological features to support life-history processes that we have 
determined are essential to the conservation of Mount Charleston blue 
butterfly. Three units are designated, based on the physical or 
biological features being present to support the Mount Charleston blue 
butterfly's life-history processes. All units contain all of the 
identified physical or biological features and support multiple life-
history processes.
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. The coordinates or plot 
points or both on which the map is based are available to the public on 
http://www.regulations.gov at Docket No. FWS-R8-ES-2013-0105, on our 
Internet site http://www.fws.gov/nevada/nv_species/mcb_butterfly.html, 
and at the field office responsible for the designation (see FOR 
FURTHER INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating three units as critical habitat for the Mount 
Charleston blue butterfly. The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat. Those three units are: (1) South Loop, 
(2) Lee Canyon, and (3) North Loop. All three units are occupied. The 
approximate area of each critical habitat unit and the land ownerships 
are listed in Table 1.

 Table 1--Critical Habitat Units for the Mount Charleston Blue Butterfly
      [Area estimates reflect all land within critical habitat unit
                               boundaries]
------------------------------------------------------------------------
                                Land ownership    Size of unit in acres
    Critical habitat unit           by type             (hectares)
------------------------------------------------------------------------
1. South Loop................  Federal.........          2,228.0 (901.6)
                               State...........                        0
                               Local...........                        0
                               Private.........                        0
2. Lee Canyon................  Federal.........        2,569.3 (1,039.7)
                               State...........                        0
                               Local...........                2.2 (0.9)
                               Private.........                1.2 (0.5)
3. North Loop................  Federal.........            412.9 (167.1)
                               State...........                        0
                               Local...........                        0
                               Private.........                        0
                                                ------------------------
    Total....................  Federal.........        5,210.2 (2,108.5)
                               State...........                        0
                               Local...........                2.2 (0.9)
                               Private.........                1.2 (0.5)
------------------------------------------------------------------------
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 Mount Charleston blue 
butterfly, below.

Unit 1: South Loop

    Unit 1 consists of approximately 2,228 ac (902 ha) and is located 
in Clark County, Nevada. This unit extends south and southeast from 
near the summit of Charleston Peak along high-elevation ridges to 
Griffith Peak. The unit likely represents the largest population of 
Mount Charleston blue butterflies and is the southernmost area 
identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies, including: Elevations between 2,500 m (8,200 ft) and 3,500 
m (11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses, with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the physical or biological features essential to the 
conservation of the species in this unit may require special management 
considerations or protection to minimize impacts resulting from this 
threat (see Special Management Considerations or Protection, above).
    A portion of this unit was burned in July 2013, as part of the 
Carpenter 1 Fire, which burned into habitat of the Mount Charleston 
blue butterfly along the ridgelines between Griffith Peak and South 
Loop, spanning a distance of approximately 3 mi (5 km). Within this

[[Page 37423]]

area, there are low-, moderate-, or high-quality patches of Mount 
Charleston blue butterfly habitat intermixed with non-habitat. The 
majority of Mount Charleston blue butterfly habitat of moderate or high 
quality in this area was classified as having a very low burn-severity 
or low soil burn-severity (Kallstrom 2013, p. 4). Areas with the 
highest observed concentrations of Mount Charleston blue butterflies 
within moderate- and high-quality habitat were outside the fire 
perimeter. Areas of lower quality habitat appear to have had higher 
tree canopy cover and generally experienced low to moderate soil burn-
severity.
    Although the burn in this unit may have had short-term impacts to 
larval host or nectar plants, it is likely that the burn may have long-
term benefits to Mount Charleston blue butterfly habitat by reducing 
canopy cover, thereby providing additional areas for larval host and 
nectar plants to grow, and releasing nutrients (Brown and Smith 2000, 
p. 26) into the soil, improving overall plant health and vigor, 
depending upon successional conditions such as soil types and moisture, 
and seed sources (Kallstrom 2013, p. 4). Therefore, we are designating 
as critical habitat areas that contained the physical or biological 
features essential to the conservation of the Mount Charleston blue 
butterfly prior to the Carpenter 1 Fire, but may have been burned by 
the fire, because we expect that these areas continue to contain the 
physical or biological features essential to conservation of the 
subspecies.
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. The entire unit is within the Mount 
Charleston Wilderness, and southwestern portions of the unit overlap 
with the Carpenter Canyon Research Natural Area. This unit is within 
the area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

Unit 2: Lee Canyon

    Unit 2 consists of approximately 2,569 ac (1,040 ha) of Federal 
land, 2.2 ac (0.9 ha) of local land, and 1.2 ac (0.5 ha) of private 
land, and is located in Clark County, Nevada. This unit extends south 
and southeast from McFarland Peak and along the Bonanza Trail through 
Lee Canyon to slopes below the north side of the North Loop Trail and 
the west side of Mummy Mountain. This unit represents the northernmost 
area identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses, with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by: Loss and degradation of 
habitat due to changes in natural fire regimes and succession; 
implementation of recreational development projects and fuels reduction 
projects; increases of nonnative plants; and the exacerbation of other 
threats from the impacts of climate change, which is anticipated to 
increase drought and extreme precipitation events. Therefore, the 
features essential to the conservation of the species in this unit 
require special management considerations or protection to minimize 
impacts resulting from these threats (see Special Management 
Considerations or Protection, above).
    This unit is completely within the administrative boundaries of the 
U.S. Department of Agriculture, Humboldt-Toiyabe National Forest, 
Spring Mountains National Recreation Area, with less than 1 percent 
owned by private landowners or Clark County. Approximately 33 percent 
of the west side of the unit is within the Mount Charleston Wilderness. 
This unit is within the area addressed by the Spring Mountains National 
Recreation Area Conservation Agreement.

Unit 3: North Loop

    Unit 3 consists of approximately 413 ac (167 ha) and is located in 
Clark County, Nevada. This unit extends northeast from an area between 
Mummy Spring and Fletcher Peak along high-elevation ridges down to an 
area above the State Highway 158. The unit represents the easternmost 
area identified as critical habitat for the subspecies.
    The unit is within the geographic area occupied by the Mount 
Charleston blue butterfly at the time of listing. It contains the 
physical or biological features essential to the conservation of the 
subspecies including: Elevations between 2,500 m (8,200 ft) and 3,500 m 
(11,500 ft); no tree cover or no more than 50 percent tree cover; 
widely spaced, low (less than 15 cm (0.5 ft) in height) forbs and 
grasses with exposed soil and rock substrates; the presence of one or 
more species of larval host plants; and the presence of one or more 
species of nectar plants.
    Habitat in the unit is threatened by the impacts associated with 
climate change, such as increased drought and extreme precipitation 
events. Therefore, the features essential to the conservation of the 
species in this unit require special management considerations or 
protection to minimize impacts resulting from this threat (see Special 
Management Considerations or Protection, above).
    This unit is completely within the boundaries of the U.S. 
Department of Agriculture, Humboldt-Toiyabe National Forest, Spring 
Mountains National Recreation Area. Approximately 92 percent of the 
unit is within the Mount Charleston Wilderness. This unit is within the 
area addressed by the Spring Mountains National Recreation Area 
Conservation Agreement.

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.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 434 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the provisions of the Act, we determine 
destruction or adverse modification on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would continue to serve its intended conservation role for the 
species.
    If a Federal action may affect a listed species or its critical 
habitat, the

[[Page 37424]]

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 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) 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 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 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Mount Charleston blue 
butterfly. As discussed above, the role of critical habitat is to 
support life-history needs of the 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 destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Mount Charleston blue butterfly. These activities 
include, but are not limited to, actions that would cause the quality, 
quantity, functionality, accessibility, or fragmentation of habitat or 
features to change unfavorably for Mount Charleston blue butterfly. 
Such activities could include, but are not limited to: Ground or soil 
disturbance, either mechanically or manually; clearing or grading; 
erosion control; silviculture; fuels management; fire suppression; 
development; snow management; recreation; feral horse or burro 
management; and herbicide or pesticide use. These activities could 
alter: Invasion rates of invasive or nonnative species, habitat 
necessary for the growth and reproduction of these butterflies and 
their host or nectar plants, and movement of adults between habitat 
patches. Such alterations may directly or cumulatively cause adverse 
effects to Mount Charleston blue butterflies and their life cycles.

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 geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan [INRMP] prepared under 
section 101 of the Sikes Act (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.'' There are no 
Department of Defense lands with a completed INRMP within the 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 critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, 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. We have not excluded any areas from critical habitat 
under section 4(b)(2) of the Act.

Consideration of Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an incremental effects 
memorandum (IEM) and screening analysis which together with our 
narrative and interpretation of effects we consider our draft economic 
analysis (DEA) of the proposed critical habitat designation and related 
factors

[[Page 37425]]

(IEc 2014). The analysis, dated May 20, 2014, was made available for 
public review from July 15, 2014, through September 15, 2014 (79 FR 
41225; IEc 2014). The DEA addressed probable economic impacts of 
critical habitat designation for the Mount Charleston blue butterfly. 
Following the close of the comment period, we reviewed and evaluated 
all information submitted during the comment period that pertained to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the the Mount Charleston blue butterfly is summarized below and 
available in the screening analysis for the the Mount Charleston blue 
butterfly (IEc 2014), available at http://www.regulations.gov.
    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 impacted entities, where practicable and reasonable. We 
assess to the extent practicable, the probable impacts, if sufficient 
data are available, to both directly and indirectly impacted entities. 
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 designation of 
critical habitat for the Mount Charleston blue butterfly, first we 
identified, in the IEM dated February 10, 2014, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Federal lands management (Forest Service); (2) fire 
management; (3) forest management; (4) recreation; (5) conservation/
restoration; and (6) development. We considered each industry or 
category individually. Additionally, we considered whether their 
activities have any Federal involvement. Critical habitat designation 
will not affect activities that do not have any Federal involvement; 
designation of critical habitat affects only activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
the Mount Charleston blue butterfly is present, Federal agencies 
already are required to consult with the Service under section 7 of the 
Act on activities they fund, permit, or implement that may affect the 
species. Consultations to avoid the destruction or adverse modification 
of critical habitat will be incorporated into the existing consultation 
process. Therefore, disproportionate impacts to any geographic area or 
sector are not likely as a result of this critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that can result from the species being listed and those 
attributable to the critical habitat designation (i.e., the difference 
between the jeopardy and adverse modification standards) for the Mount 
Charleston blue butterfly. Because the designation of critical habitat 
for Mount Charleston blue butterfly was proposed shortly after the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those that can result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case helped to inform our evaluation: (1) The essential physical and 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Mount Charleston blue butterfly would also 
likely adversely affect the essential physical and biological features 
of 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 
designation of critical habitat.
    The critical habitat designation for the Mount Charleston blue 
butterfly totals approximately 5,214 acres (2,110 hectares) in three 
units, all of which were occupied at the time of listing and contain 
the physical and biological features essential to the conservation of 
the species. In these areas, any actions that may affect the species or 
its habitat would also affect designated critical habitat, and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the Mount Charleston blue butterfly. Therefore, only administrative 
costs are expected in all of the critical habitat designation. While 
this additional analysis will require time and resources by both the 
Federal action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant.
    The Forest Service has administrative oversight of 99.9 percent of 
the critical habitat area and, as the primary Federal action agency in 
section 7 consultations, would incur incremental costs associated with 
the critical habitat designation. In some cases third parties may be 
involved in areas such as Unit 2 in Lee Canyon, particularly where the 
Las Vegas Ski and Snowboard Resort special-use-permit area overlaps. 
However, consultation is expected to occur even in the absence of 
critical habitat, and incremental costs would be limited to 
administrative costs resulting from the potential for adverse 
modification. It is unlikely that there will be any incremental costs 
associated with the 0.1 percent of non-Federal land, for which we do 
not foresee any Federal nexus and thus is outside of the context of 
section 7 of the Act.
    The probable incremental economic impacts of the Mount Charleston 
blue butterfly critical habitat designation are expected to be limited 
to additional administrative effort, as well as minor costs of 
conservation efforts resulting from a small number of future section 7 
consultations. This is due to two factors: (1) All the critical habitat 
units are considered to be occupied by the species, and incremental 
economic impacts of critical habitat designation, other than 
administrative costs, are unlikely; and (2) the majority of critical 
habitat is in designated Wilderness Areas where actions are currently 
limited and few actions are anticipated that will result in section 7 
consultation or associated project modifications. Section 7 
consultations for critical habitat are estimated to range between $410 
and $9,100 per consultation. No more than 12 consultations are 
anticipated to occur in a year. Based upon these estimates, the maximum 
estimated incremental cost is estimated to be no greater than $109,200 
in a given year. Thus, the annual administrative burden is unlikely to 
reach $100 million. Therefore, future probable incremental economic 
impacts are not likely to exceed $100 million in any single year, and 
disproportionate impacts to any geographic area or sector are not 
likely as a result of this critical habitat designation.

Exclusions Based on Economic Impacts

    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not

[[Page 37426]]

exercising her discretion to exclude any areas from this designation of 
critical habitat for the Mount Charleston blue butterfly based on 
economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Southern Nevada Fish and Wildlife 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.

Exclusions Based on National Security Impacts or Homeland Security 
Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
Mount Charleston blue butterfly are owned or managed by the Department 
of Defense or Department of Homeland Security, and, therefore, we 
anticipate no impact on national security or homeland security. 
Consequently, the Secretary is not exercising her discretion to exclude 
any areas from this final designation based on impacts on national 
security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we also consider any other 
relevant impacts resulting from the designation of critical habitat. We 
consider a number of factors, including whether the landowners have 
developed any HCPs or other management plans for the area, or whether 
there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that the Clark 
County HCP is the only permitted HCP or other approved management plan 
for the Mount Charleston blue butterfly, and the final designation does 
not include any tribal lands or tribal trust resources. We did not 
receive comments on the designation of critical habitat for the Mount 
Charleston blue butterfly as it relates to the Clark County HCP. We 
anticipate no impact on tribal lands, partnerships, or HCPs from this 
critical habitat designation. Accordingly, the Secretary is not 
exercising his discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. 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 rule in a manner consistent 
with these requirements.

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 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 if 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required 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 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 will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that, if 
promulgated, the final critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on

[[Page 37427]]

this information, we affirm our certification that this final critical 
habitat designation will not have a significant economic impact on a 
substantial number of small entities, and a 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. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria is relevant to this analysis. Thus, based on information 
in the economic analysis, energy-related impacts associated with Mount 
Charleston blue butterfly conservation activities within critical 
habitat are not expected. As such, the designation of critical habitat 
is not expected to 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 findings:
    (1) This rule will 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 do not 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 will significantly or uniquely 
affect small governments because because minimal critical habitat is 
within the jurisdiction of small governments. Consequently, we do not 
believe that the critical habitat designation would significantly or 
uniquely affect small government entities. As such, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Mount Charleston blue butterfly in 
a takings implications assessment. As discussed above, the designation 
of critical habitat affects only Federal actions. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. Due 
to current public knowledge of the protections for the subspecies and 
the prohibition against take of the subspecies both within and outside 
of the critical habitat areas, we do not anticipate that property 
values will be affected by the critical habitat designation. Based on 
the best available information, the takings implications assessment 
concludes that this designation of critical habitat for the Mount 
Charleston blue butterfly does not pose significant takings 
implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 critical habitat designation with, 
appropriate State resource agencies in Nevada. We did not receive 
official comments or positions on the proposed designation of critical 
habitat for the Mount Charleston blue butterfly from State of Nevada 
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 rule does not have substantial direct effects either on the 
States, or on the relationship between the national government and the 
States, or on the distribution of powers and responsibilities among the 
various levels of government. The 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 and biological features of the habitat necessary to 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 these local governments in 
long-range planning (because these local governments no longer have to 
wait for case-by-case section 7 consultations to occur).

[[Page 37428]]

    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) will 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 Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Mount Charleston blue 
butterfly. The designated areas of critical habitat are presented on 
maps, and the 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 any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is 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.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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), Executive Order 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 recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial 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 determined that there are no tribal 
lands occupied by the Mount Charleston blue butterfly at the time of 
listing that contain the physical or biological features essential to 
conservation of the species, and no tribal lands unoccupied by the 
Mount Charleston blue butterfly that are essential for the conservation 
of the species. Therefore, we are not designating critical habitat for 
the Mount Charleston blue butterfly on tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Southern Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Pacific Southwest Regional Office and the Southern Nevada Fish and 
Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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. Amend Sec.  17.11(h) by revising the entry for ``Butterfly, Mount 
Charleston blue'' under INSECTS in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             INSECTS
 
                                                                      * * * * * * *
Butterfly, Mount Charleston blue.  Icaricia (Plebejus)   U.S.A. (Clark        Entire.............  E                       820     17.95(i)           NA
                                    shasta                County, NV; Spring
                                    charlestonensis.      Mountains).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 37429]]


0
3. In Sec.  17.95, amend paragraph (i) by adding an entry for ``Mount 
Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis),'' in the same order that the species appears in the 
table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
    Mount Charleston Blue Butterfly (Icaricia (Plebejus) shasta 
charlestonensis)
    (1) Critical habitat units are depicted for Clark County, Nevada, 
on the map below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Mount Charleston blue butterfly consist of three components:
    (i) Areas of dynamic habitat between 2,500 meters (m) (8,200 feet 
(ft)) and 3,500 m (11,500 ft) elevation with openings or where 
disturbance provides openings in the canopy that have no more than 50 
percent tree cover (allowing sunlight to reach the ground); widely 
spaced, low (less than 15 centimeters (cm) (0.5 ft) in height) forbs 
and grasses; and exposed soil and rock substrates. When taller grass 
and forb plants greater than or equal to 15 cm (0.5 ft) in height are 
present, the density is less than five per square meter (m\2\) (50 per 
square foot (ft\2\)).
    (ii) The presence of one or more species of host plants required by 
larvae of the Mount Charleston blue butterfly for feeding and growth. 
Known larval host plants are Astragalus calycosus var. calycosus, 
Oxytropis oreophila var. oreophila, and Astragalus platytropis. 
Densities of host plants must be greater than two per m\2\ (0.2 per 
ft\2\).
    (iii) The presence of one or more species of nectar plants required 
by adult Mount Charleston blue butterflies for reproduction, feeding, 
and growth. Common nectar plants include Erigeron clokeyi, Hymenoxys 
lemmonii, Hymenoxys cooperi, and Eriogonum umbellatum var. versicolor. 
Densities of nectar plants must occur at more than two per m\2\ (0.2 
per ft\2\) for smaller plants, such as E. clokeyi, and more than 0.1 
per m\2\ (0.01 per ft\2\) for larger and taller plants, such as 
Hymenoxys sp. and E. umbellatum. Nectar plants typically occur within 
10 m (33 ft) of larval host plants and, in combination, provide nectar 
during the adult flight period between mid-July and early August. 
Additional nectar sources that could be present in combination with the 
common nectar plants include Antennaria rosea, Cryptantha sp., 
Ericameria nauseosa ssp., Erigeron flagellaris, Guitierrezia sarothrae, 
Monardella odoratissima, Petradoria pumila var. pumila, and Potentilla 
concinna var. concinna.
    (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 
July 30, 2015.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of Bureau of Land Management Public Land Survey 
System quarter-quarter sections. Critical habitat units were then 
mapped using Universal Transverse Mercator (UTM) Zone 11 North, North 
American Datum (NAD) 1983 coordinates. The map in this entry, as 
modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which the map is based are available to the public at 
the Service's Internet site at http://www.fws.gov/nevada/nv_species/mcb_butterfly.html, at http://www.regulations.gov at Docket No. FWS-R8-
ES-2013-0105, 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) Map of critical habitat units for the Mount Charleston blue 
butterfly follows:
BILLING CODE 4310-55-P

[[Page 37430]]

[GRAPHIC] [TIFF OMITTED] TR30JN15.000

* * * * *

    Dated: June 15, 2015.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-15947 Filed 6-29-15; 8:45 am]
 BILLING CODE 4310-55-C



                                                  37404              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  DEPARTMENT OF THE INTERIOR                              preamble and at http://                                analysis (DEA) of the proposed critical
                                                                                                          www.regulations.gov.                                   habitat designation and related factors
                                                  Fish and Wildlife Service                               FOR FURTHER INFORMATION CONTACT:
                                                                                                                                                                 (IEc 2014). The analysis, dated May 20,
                                                                                                          Michael J. Senn, Field Supervisor, U.S.                2014, was made available for public
                                                  50 CFR Part 17                                          Fish and Wildlife Service, Southern                    review from July 15, 2014, through
                                                  [Docket No. FWS–R8–ES–2013–0105;                        Nevada Fish and Wildlife Office, 4701                  September 15, 2014 (79 FR 41225). The
                                                  4500030114]                                             North Torrey Pines Drive, Las Vegas, NV                DEA addressed probable economic
                                                                                                          89130–7147; telephone 702–515–5230;                    impacts of critical habitat designation
                                                  RIN 1018–AZ91                                                                                                  for the Mount Charleston blue butterfly.
                                                                                                          facsimile 702–515–5231. If you use a
                                                                                                          telecommunications device for the deaf                 Following the close of the comment
                                                  Endangered and Threatened Wildlife                                                                             period, we reviewed and evaluated all
                                                  and Plants; Designation of Critical                     (TDD), call the Federal Information
                                                                                                                                                                 information submitted during the
                                                  Habitat for Mount Charleston Blue                       Relay Service (FIRS) at 800–877–8339.
                                                                                                                                                                 comment period that may pertain to our
                                                  Butterfly (Icaricia (Plebejus) shasta                   SUPPLEMENTARY INFORMATION:                             consideration of the probable
                                                  charlestonensis)                                                                                               incremental economic impacts of this
                                                                                                          Executive Summary
                                                  AGENCY:    Fish and Wildlife Service,                                                                          critical habitat designation. We
                                                                                                             Why we need to publish a rule. This
                                                  Interior.                                                                                                      summarize and respond to the
                                                                                                          is a final rule to designate critical
                                                  ACTION: Final rule.                                                                                            comments in this final determination.
                                                                                                          habitat for the endangered Mount                          Peer review and public comment. We
                                                  SUMMARY:    We, the U.S. Fish and                       Charleston blue butterfly (Icaricia                    sought comments from independent
                                                  Wildlife Service (Service), designate                   (Plebejus) shasta charlestonensis).                    specialists to ensure that our
                                                  critical habitat for the Mount Charleston               Under the Endangered Species Act, any                  designation is based on scientifically
                                                  blue butterfly (Icaricia (Plebejus) shasta              species that is determined to be an                    sound data and analyses. We obtained
                                                  charlestonensis) under the Endangered                   endangered or threatened species                       opinions from four knowledgeable
                                                  Species Act of 1973, as amended (Act).                  requires critical habitat to be designated,            individuals with scientific expertise to
                                                  In total, approximately 5,214 acres                     to the maximum extent prudent and                      review our technical assumptions and
                                                  (2,110 hectares) in the Spring                          determinable. Designations and                         analysis, and to help us determine
                                                  Mountains of Clark County, Nevada, fall                 revisions of critical habitat can only be              whether or not we had used the best
                                                  within the boundaries of the critical                   completed by issuing a rule.                           available information. These peer
                                                                                                             We listed the Mount Charleston blue                 reviewers provided additional
                                                  habitat designation. The effect of this
                                                                                                          butterfly as an endangered species on                  information, clarifications, and
                                                  rule is to extend the Act’s protections to
                                                                                                          September 19, 2013 (78 FR 57750). On                   suggestions to improve this final rule.
                                                  the butterfly’s critical habitat.
                                                                                                          July 15, 2014, we published in the                     Information we received from peer
                                                  DATES: This rule is effective July 30,
                                                                                                          Federal Register a proposed critical                   review is incorporated into this final
                                                  2015.                                                   habitat designation for the Mount                      designation. We also considered all
                                                  ADDRESSES: This final rule is available                 Charleston blue butterfly (79 FR 41225).               comments and information we received
                                                  on the Internet at http://                              Section 4(b)(2) of the Endangered                      from the public during the comment
                                                  www.regulations.gov and http://                         Species Act states that the Secretary of               period.
                                                  www.fws.gov/Nevada. Comments and                        the Interior shall designate critical
                                                  materials we received, as well as some                  habitat on the basis of the best available             Previous Federal Actions
                                                  supporting documentation we used in                     scientific data after taking into                        All previous Federal actions are
                                                  preparing this final rule, are available                consideration the economic impact,                     described in the final rule listing the
                                                  for public inspection at http://                        national security impact, and any other                Mount Charleston blue butterfly as an
                                                  www.regulations.gov. All of the                         relevant impact of specifying any                      endangered species (78 FR 57750;
                                                  comments, materials, and                                particular area as critical habitat.                   September 19, 2013).
                                                  documentation that we considered in                        The critical habitat areas we are
                                                  this rulemaking are available by                        designating in this rule constitute our                Summary of Comments and
                                                  appointment, during normal business                     current best assessment of the areas that              Recommendations
                                                  hours at: U.S. Fish and Wildlife Service,               meet the definition of critical habitat for              We requested written comments from
                                                  Southern Nevada Fish and Wildlife                       the Mount Charleston blue butterfly. In                the public on the proposed designation
                                                  Office, 4701 North Torrey Pines Drive,                  this rule, we are designating                          of critical habitat for the Mount
                                                  Las Vegas, NV 89130–7147; telephone                     approximately 5,214 acres (2,110                       Charleston blue butterfly during one
                                                  702–515–5230; facsimile 702–515–5231.                   hectares) in the Spring Mountains of                   comment period. The comment period
                                                     The coordinates or plot points or both               Clark County, Nevada, as critical habitat              associated with the publication of the
                                                  from which the maps are generated are                   for the Mount Charleston blue butterfly.               proposed critical habitat rule (79 FR
                                                  included in the administrative record                      This rule consists of a final rule                  41225) opened on July 15, 2014, and
                                                  for this critical habitat designation and               designating critical habitat for the                   closed on September 15, 2014. We also
                                                  are available at http://                                Mount Charleston blue butterfly. The                   requested comments on the associated
                                                  www.regulations.gov at Docket No.                       Mount Charleston blue butterfly is listed              draft economic analysis during the same
                                                  FWS–R8–ES–2013–0105 and at the                          as an endangered species under the                     comment period. We did not receive
                                                  Southern Nevada Fish and Wildlife                       Endangered Species Act.                                any requests for a public hearing. We
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  Office at http://www.fws.gov/Nevada                        We have prepared an economic                        also contacted appropriate Federal,
                                                  (see FOR FURTHER INFORMATION CONTACT).                  analysis of the designation of critical                State, and local agencies; scientific
                                                  Any additional tools or supporting                      habitat. In order to consider economic                 organizations; and other interested
                                                  information that we developed for this                  impacts, we prepared an incremental                    parties and invited them to comment on
                                                  critical habitat designation will also be               effects memorandum (IEM) and                           the proposed rule and draft economic
                                                  available at the Fish and Wildlife                      screening analysis, which together with                analysis during the comment period.
                                                  Service Web site and Field Office set out               our narrative and interpretation of                      During the comment period, we
                                                  above, and may also be included in the                  effects we consider our draft economic                 received comment letters directly


                                             VerDate Sep<11>2014   18:11 Jun 29, 2015   Jkt 235001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4700   E:\FR\FM\30JNR3.SGM   30JNR3


                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37405

                                                  addressing the proposed critical habitat                   (2) Comment: One peer reviewer did                  which is consistent with documented
                                                  designation. Overall, we received 706                   not agree with our depicting Astragalus                use of multiple host plants by other
                                                  comment letters addressing the                          platytropis and Oxytropis oreophila var.               Shasta blue butterfly subspecies (Emmel
                                                  proposed critical habitat designation or                oreophila to Astragalus calycosus var.                 and Shields 1980, Table I). However,
                                                  the draft economic analysis. All                        calycosus as functionally equivalent                   numerous observations and a longer
                                                  substantive information provided                        larval host plants for the Mount                       history of knowledge of A. c. var.
                                                  during the comment period has either                    Charleston blue butterfly. The reviewer                calycosus as a host plant do not negate
                                                  been incorporated directly into this final              commented that numerous observations                   the biological importance and
                                                  determination or is addressed below.                    have been made of oviposition by the                   functional equivalence of A. platytropis
                                                  Comments we received were grouped                       Mount Charleston blue butterfly in                     and O. o. var. oreophila as host plants
                                                  into general issues specifically relating               association with A. c. var. calycosus,                 important to the conservation of the
                                                  to the proposed critical habitat                        and A. c. var. calycosus is present at all             Mount Charleston blue butterfly.
                                                  designation for the Mount Charleston                    locations where Mount Charleston blue                     The evidence that was used to infer
                                                  blue butterfly and are addressed in the                 butterflies have been detected,                        that Astragalus platytropis and
                                                  following summary and incorporated                      suggesting this plant species is a                     Oxytropis oreophila var. oreophila are
                                                  into the final rule as appropriate.                     required feature of habitat. The reviewer              host plants for the Mount Charleston
                                                                                                          also commented that little reliable                    blue butterfly is consistent with much of
                                                  Peer Review                                                                                                    the Lepidoptera science, which may
                                                                                                          evidence exists that A. platytropis and
                                                     In accordance with our peer review                   O. o. var. oreophila function as                       include observations of adult
                                                  policy published on July 1, 1994 (59 FR                 commonly used host plants, and that                    associations (for example, female
                                                  34270), we solicited expert opinions                    the Service’s assumption appeared to be                concentration areas, pre-oviposition
                                                  from four knowledgeable individuals                     based on an observation of one                         behavior by females on plants (Shields
                                                  with scientific expertise that included                 oviposition event by one female of one                 et al. 1969, pp. 28–29; Scott 1992, p. 2;
                                                  familiarity with butterfly biology and                  egg on each of A. platytropis and O. o.                Austin and Leary 2008, p. 1));
                                                  ecology, conservation biology, and                      var. oreophila. Lastly, the peer reviewer              oviposition by females; and larval
                                                  natural resource management. We                         commented on the difficulty of                         feeding and subsequent survival
                                                  received responses from all four of the                 identifying butterfly eggs to species and              (Shields et al. 1969, pp. 28–29; Scott
                                                  peer reviewers.                                         questioned whether the observers had                   1992, p. 2; Austin and Leary 2008, p. 1).
                                                     We reviewed all comments we                                                                                 We recognize that observation of a
                                                                                                          the expertise to do so.
                                                  received from the peer reviewers for                                                                           female butterfly ovipositing on a plant
                                                  substantive issues and new information                     Our Response: We agree that the plant               is not equivalent to actual observations
                                                  regarding critical habitat for the Mount                species Astragalus calycosus var.                      of feeding on a particular plant species
                                                  Charleston blue butterfly. Two peer                     calycosus functions as an important                    and survival of butterfly larvae. There
                                                  reviewers agreed with our analyses in                   biological feature and is the most                     are instances in Lepidoptera literature
                                                  the proposed rule. A third peer                         common host plant present throughout                   where adult female butterflies were
                                                  reviewer, while not disagreeing with the                the range of the Mount Charleston blue                 documented ovipositing on plants, and
                                                  designation of critical habitat itself,                 butterfly; thus, we have included it as                hatched larvae fed on the plants but did
                                                  disagreed with some analyses or                         a primary constituent element. A. c. var.              not subsequently survive (Shields et al.
                                                  application of information. The fourth                  calycosus is more abundant through a                   1969, p. 29; Chew and Robbins 1984, p.
                                                  peer reviewer did not state a position.                 broader elevation range and occurs in                  68; Austin and Leary 2008, p. 1). Some
                                                  We received no peer review responses                    more plant communities than                            genera, and even large proportions of
                                                  on the DEA. Peer reviewer comments                      Astragalus platytropis and Oxytropis                   some subfamilies, are known to oviposit
                                                  are addressed in the following summary                  oreophila var. oreophila, in the Spring                haphazardly; however, the Shasta blue
                                                  and incorporated into the final rule as                 Mountains as well as within the range                  butterfly and its higher taxonomic
                                                  appropriate.                                            of the Mount Charleston blue butterfly                 classification groups have not been
                                                                                                          (Nachlinger and Reese 1996, Table 6;                   identified as species that oviposit
                                                  Peer Reviewer Comments                                  Niles and Leary 2007, pp. 36 and 38;                   haphazardly (Scott 1992, p. 2). The
                                                     (1) Comment: One peer reviewer                       Andrew et al. 2013, p. 5). A. c. var.                  Mount Charleston blue butterfly is a
                                                  commented that our references in the                    calycosus is the only host plant                       member of the family Lycaenidae,
                                                  proposed rule to Astragalus lentiginosus                documented in lower elevation Lee                      subfamily Polyommatinae, for which
                                                  var. kernensis from Andrew et al. (2013)                Canyon locations (NewFields 2008, pp.                  host plants are more easily determined
                                                  were a misidentification of the plant                   1–198 plus Appendices; Andrew et al.                   than for other lycaenid species, based
                                                  Oxytropis oreophila var. oreophila.                     2013, p. 5), where greater survey efforts              on obvious behavior by females and
                                                     Our Response: We agree. We                           to observe the butterfly have occurred,                frequent, unequivocal association of
                                                  erroneously sent peer reviewers a draft                 because of ease of access which has                    females with host plants (Austin and
                                                  copy of the proposed critical habitat                   resulted in more frequent and consistent               Leary 2008, p. 58).
                                                  designation that referenced Astragalus                  observations of the butterfly (Boyd 2006,                 The evidence to support the
                                                  lentiginosus var. kernensis from Andrew                 p. 1; DataSmiths 2007, pp. 1–9; Boyd                   conclusion that Astragalus calycosus
                                                  et al. (2013). However, based on a                      and Murphy 2008, p. 2–3). Therefore,                   var. calycosus, Astragalus platytropis, or
                                                  correction to this plant identification                 prior to 2012, the emphasis and life-                  Oxytropis oreophila var. oreophila
                                                  (Andrew et al. 2013, Errata Sheet;                      history knowledge of Mount Charleston                  function as host plants is based on
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                                                  Thompson et al. 2014), the proposed                     blue butterfly host plants in the Spring               observations and reports of: (1)
                                                  critical habitat designation that                       Mountains of Nevada has focused on A.                  Oviposition by Mount Charleston blue
                                                  published in the Federal Register (79                   c. var. calycosus. Subsequent                          butterflies on A. c. var. calycosus, A.
                                                  FR 41225; July 15, 2014) contained the                  observations reported by Andrew et al.                 platytropis, and O. o. var. oreophila
                                                  correct plant identification of Oxytropis               (2013, pp. 1–93) and Thompson et al.                   (Austin and Leary 2008, p. 86;
                                                  oreophila var. oreophila. This correction               (2014, pp. 97–158) have demonstrated                   Thompson et al. 2014, pp. 122–125); (2)
                                                  is also reflected in this final critical                that additional host plants for the                    pre-oviposition behavior by Mount
                                                  habitat designation.                                    Mount Charleston blue butterfly exist,                 Charleston blue butterflies associated


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                                                  37406              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  with all host plant species (Austin and                 eggs were observed have different                      (2008, p. 13) observations of Mount
                                                  Leary 2008, p. 86; Thompson et al.                      reported host plants (for example,                     Charleston blue butterflies using the
                                                  2014, pp. 122–125); (3) observations of                 Southwestern azure butterfly (Celastrina               plant species, and the flowers of these
                                                  Mount Charleston blue butterfly eggs on                 echo cinerea) in Austin and Leary 2008,                plant species having the appropriate
                                                  all three host plant species (Thompson                  pp. 63–64), or deposit their eggs                      morphological characteristics for nectar
                                                  et al. 2014, pp. 122–125); (4) other                    primarily on locations of the plant (for               use. Therefore, we are not including
                                                  Shasta blue butterfly apparently having                 example, Reakirt’s blue butterfly                      plant species as potential nectar sources
                                                  close associations and ovipositing on A.                (Echinargus isola) on or near parts of                 for the Mount Charleston blue butterfly
                                                  c. var. calycosus and A. platytropis                    flowers (Scott 1992, pp. 102–103;                      without reported observations of use.
                                                  outside of the Spring Mountains (Emmel                  Austin and Leary 2008, pp. 90–91))                        (4) Comment: One peer reviewer
                                                  and Shields 1980, Table I) or other                     substantially different than those                     commented that the primary constituent
                                                  Oxytropis spp. (Austin and Leary 2008,                  reported for the Mount Charleston blue                 elements were not determined based on
                                                  p. 85); and (5) close association or                    butterfly (for example, leaves, petioles,              scientifically sound data and analyses,
                                                  oviposition on more than one host plant                 and stems (Emmel and Shields 1980,                     and are not defensible, because the
                                                  species by other subspecies of Shasta                   pp. 132–138; Thompson et al. 2014, pp.                 reports the Service relied on to develop
                                                  blue butterflies (Emmel and Shields                     129–130 and Appendix F)); and (5)                      the primary constituent elements were
                                                  1980, Table I; Scott 1992, p. 100; Austin               reviews by field experts and subject                   either qualitative or did not provide
                                                  and Leary 2008, pp. 85–86) (note that                   matter experts did not provide specific                range values with means and variances
                                                  some observations reported in Austin                    information to disprove the                            for several of the elements.
                                                  and Leary 2008 and Scott 1992 are the                   observations. Thus, the eggs that were                    Our Response: We used the best
                                                  same as those originally reported by                    observed were most likely Mount                        scientific and commercial data available
                                                  Emmel and Shields 1980). The Service                    Charleston blue butterfly eggs, and not                to determine the primary constituent
                                                  does not have information or reported                   eggs of other butterfly species.                       elements essential to the conservation of
                                                  observations of feeding and subsequent                     Based on the preceding discussion,                  the Mount Charleston blue butterfly. We
                                                  survival or death of any Shasta blue                    the Service determines that Astragalus                 focused on available data from areas
                                                  butterfly subspecies on A. c. var.                      calycosus var. calycosus, Astragalus                   occupied by the Mount Charleston blue
                                                  calycosus, A. platytropis, or O. o. var.                platytropis, and Oxytropis oreophila                   butterfly at the time of listing, and any
                                                  oreophila. Such observations would                      var. oreophila are functionally                        new information available or provided
                                                  provide additional evidence to confirm                  equivalent host plants for the Mount                   by peer reviewers and commenters since
                                                  or refute these plant species as larval                 Charleston blue butterfly, and, thus, are              the proposed critical habitat designation
                                                  hosts for the Shasta blue butterfly.                    retained as primary biological features.               was published (79 FR 41225; July 15,
                                                                                                             (3) Comment: One peer reviewer did                  2014). We used minimum quantity
                                                     In regard to evidence of egg                         not agree that the Mount Charleston                    values or quality descriptions for several
                                                  observations of Mount Charleston blue                   blue butterfly has been documented                     primary constituent elements from areas
                                                  butterflies, we agree with the peer                     using for nectar Antennaria rosea (rosy                occupied by Mount Charleston blue
                                                  reviewer and Scott (1986, p. 121) that                  pussy toes), Cryptantha spp., Ericameria               butterflies, because they represent our
                                                  identifying butterfly eggs is difficult,                nauseosa (rubber rabbitbrush), Erigeron                current understanding of the minimum
                                                  and reported observations should be                     flagellaris (trailing daisy), Gutierrezia              habitat or features necessary to support
                                                  critically evaluated. However, it is                    sarothrae (broom snake weed),                          the life-history processes of the
                                                  possible to identify eggs of various                    Monardella odoratissima (horsemint),                   subspecies. We believe using this
                                                  butterfly species to subfamily, genus, or               Petradoria pumila var. pumila (rock-                   approach identifies the physical and
                                                  even species (Scott 1986, p. 121). In                   goldenrod), and Potentilla concinna var.               biological features that are essential to
                                                  addition, the context of how the egg is                 concinna (Alpine cinquefoil).                          the conservation and recovery of the
                                                  deposited on the plant and the context                     Our Response: We reexamined the                     Mount Charleston blue butterfly.
                                                  of where it is found should be                          references we cited for observations of                   (5) Comment: One peer reviewer
                                                  considered. We believe observations of                  nectaring Mount Charleston blue                        suggested horses in the Spring
                                                  Mount Charleston blue butterfly eggs as                 butterflies on various plant species, and              Mountains are feral, rather than wild,
                                                  reported by Thompson et al. (2014, pp.                  we have determined the references                      and should be referred to as such.
                                                  122–131, Appendix F) are credible                       suggest the Mount Charleston blue                         Our Response: We agree, because
                                                  because: (1) Eggs deposited by Mount                    butterfly has been observed to nectar on               horses are not native to the Spring
                                                  Charleston blue butterflies were directly               all of the above species. Thompson et al.              Mountains, let alone North America,
                                                  observed, recorded, and photographed,                   2014 (pp. 117) report observations of                  and escaped from domestication
                                                  which allowed for further comparison                    Mount Charleston blue butterflies                      (Matthew 1926, p. 149); we have
                                                  between and review by field observers;                  nectaring on Gutierrezia sarothrae. Boyd               replaced ‘‘wild’’ with ‘‘feral’’ in this
                                                  (2) eggs depicted (Thompson et al. 2014,                and Murphy (2008, p. 9) clearly state the              final rule.
                                                  pp. 129–130 and Appendix F) are                         Mount Charleston blue butterfly has                       (6) Comment: One peer reviewer
                                                  deposited in a manner consistent with                   been observed to nectar on Hymenoxys                   commented that citations were minimal
                                                  reports for other Shasta blue butterflies               spp. and Erigeron spp., and they go on                 within the Primary Constituent
                                                  (Emmel and Shields 1980, pp. 132–138);                  to state that 10 plant species (p. 13 and              Elements for Mount Charleston Blue
                                                  (3) the South Loop locations of egg                     Figure 2a on p. 16) ‘‘were considered as               Butterfly section.
                                                  observations occurred in areas where                    likely ‘higher quality’ [potential]                       Our Response: We provide citations
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                                                  and at times when the Mount                             resources—reflecting observations of                   for information used to identify the
                                                  Charleston blue butterfly was the                       use by the Mount Charleston blue in                    primary constituent elements (PCEs) in
                                                  predominant Lycaenid butterfly present                  previous years.’’ We recognize Boyd and                the section immediately preceding
                                                  (at least 95 percent of all Lycaenid                    Murphy (2008) do not provide                           Primary Constituent Elements for Mount
                                                  butterflies observed) (Andrew et al.                    documentation of these 10 species being                Charleston Blue Butterfly, in the
                                                  2014, Table 2); (4) the other butterfly                 used by nectaring Mount Charleston                     discussion of Physical or Biological
                                                  species reported at the South Loop                      blue butterflies; rather, we infer it is               Features. The PCEs are a concise list of
                                                  location or in close proximity to where                 likely, based on Boyd and Murphy’s                     the elements, and the pertinent


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37407

                                                  information and sources that led us to                  butterfly occurrence, which we stated is               reviewed journals, scientific status
                                                  identify them are explained in detail                   ‘‘on relatively flat ridgetops [and] gently            surveys and studies completed by
                                                  and cited in the discussion of physical                 sloping hills.’’ One peer reviewer                     qualified individuals, experts’ opinions
                                                  or biological features.                                 referenced additional explanations                     or personal knowledge, and other
                                                     (7) Comment: One peer reviewer                       provided by Boyd and Murphy (2008, p.                  sources, to designate critical habitat for
                                                  commented that the Pinyon (2011) work                   19). The other peer reviewer provided                  the Mount Charleston blue butterfly. In
                                                  that we referenced was ‘‘qualitative                    terrain slope data for plot points within              accordance with our peer review policy,
                                                  work and could not be repeated, and                     areas where Mount Charleston blue                      published on July 1, 1994 (59 FR
                                                  was therefore not highly defensible.’’                  butterfly adults have been observed.                   34270), we solicited peer review from
                                                     Our Response: We respectfully                           Our Response: We incorporated the                   knowledgeable individuals with
                                                  disagree and maintain that                              reference provided by the peer reviewer                scientific expertise that included
                                                  consideration of the information in                     in the Physical or Biological Features                 familiarity with the species, the
                                                  Pinyon (2011) is consistent with our                    section of this final rule. The terrain                geographic region in which the species
                                                  policy to use the best scientific and                   slope data from the second peer                        occurs, and conservation biology
                                                  commercial data available to determine                  reviewer do not affect the general                     principles. Additionally, we requested
                                                  critical habitat. Our use of the                        description of areas where Mount                       comments or information from other
                                                  information is described in Criteria                    Charleston blue butterflies occur; thus,               concerned governmental agencies, the
                                                  Used To Identify Critical Habitat. We                   we did not include them in this final                  scientific community, industry, and any
                                                  agree that some work performed and                      rule. However, we anticipate using the                 other interested parties concerning the
                                                  described by Pinyon 2011 is qualitative.                information during the recovery                        proposed rule. All comments and
                                                  For example, Pinyon (2011, p. 11)                       planning process for the subspecies.                   information we received on the
                                                  assigned areas of Mount Charleston blue                    (10) Comment: We received one peer                  proposed rule and the draft economic
                                                  butterfly habitat to either good,                       review comment suggesting our analysis                 analysis, along with the best scientific
                                                  moderate, poor, or none based on the                    of potential climate change impacts                    data available, were evaluated and taken
                                                  ‘‘presence of larval host plants, nectar                would be helped by considering                         into consideration to inform the critical
                                                  plants, ground cover, and canopy                        mechanisms by which the Mount                          habitat designation in this final rule.
                                                  density (visual estimate),’’ which may                  Charleston blue butterfly or its resources                (12) Comment: We received two peer
                                                  not be repeatable, to the extent that                   may be affected directly or indirectly by              review comments and public comments
                                                  boundaries would coincide precisely, as                 changes in temperature and extreme                     on locations of potential removal of
                                                  with other investigators. While the                     precipitation.                                         critical habitat within Lee Canyon Unit
                                                  precise boundaries could vary, the                         Our Response: Because site- and                     2. One peer reviewer stated that areas
                                                  general areas where Pinyon (2011,                       species-specific information regarding                 within Unit 2, ‘‘should not be
                                                  Figure 8 and 9) identified and                          impacts to the Mount Charleston blue                   considered for removal until the current
                                                  delineated moderate and high-quality                    butterfly and its resources from climate               distribution, abundance, and condition
                                                  habitat are in close proximity, or                      change is unavailable, we updated our                  of larval hosts, nectar sources, and other
                                                  correlate closely, to concentrations of                 discussion to include a description of                 environmental characteristics consistent
                                                  Mount Charleston blue butterfly                         general mechanisms that may be                         with occupancy have been assessed.’’ In
                                                  locations and other investigator habitat                impacted by increasing temperatures                    addition, the peer reviewer stated that
                                                  delineations (Weiss et al. 1997, Map 3.1;               and patterns of extreme drought and                    areas diminished by recreation or other
                                                  SWCA 2008, Figure 1; Andrew et al.                      precipitation (see the ‘‘Habitats That are             treatments may be able to recover with
                                                  2013, Figure 17, 20, and 22; Thompson                   Protected from Disturbance or are                      ‘‘special management considerations
                                                  et al. 2014, pp. 97–158). Thus,                         Representative of the Historical,                      and protection.’’ Similarly, one public
                                                  information from Pinyon (2011) is                       Geographical, and Ecological                           comment stated that the areas should
                                                  repeatable to some extent and defensible                Distributions of the Subspecies’’ section,             not be removed from critical habitat,
                                                  in the manner we applied it to                          below). Also see our response to                       and should be restored and managed for
                                                  determine critical habitat. (Also see our               Comment 14.                                            occupancy by the Mount Charleston
                                                  response to Comment 9, below.)                                                                                 blue butterfly. One peer reviewer
                                                     (8) Comment: One peer reviewer                       Comments From Peer Reviewers and the
                                                                                                                                                                 commented that additional habitat
                                                  commented that unobserved nectar                        Public
                                                                                                                                                                 outside the Mount Charleston blue
                                                  sources cannot be assumed to be present                    (11) Comment: We received peer                      butterfly’s current range in lower
                                                  at locations the Mount Charleston blue                  review and public comments stating                     elevations should be designated.
                                                  butterfly has been observed, particularly               that the Service did not use, or                          Our Response: As described in the
                                                  given the uncertainty of the distances                  misapplied, the best scientific and                    proposed rule, we considered
                                                  that the Mount Charleston blue butterfly                commercial data available. Commenters                  campgrounds and day-use areas that
                                                  can move.                                               suggested that information from Andrew                 have high levels of public visitation and
                                                     Our Response: We respectfully                        et al. (2013) and Thompson et al. (2014)               associated recreational disturbance for
                                                  disagree, because the Mount Charleston                  was inaccurate or unreliable because of                removal from critical habitat, because
                                                  blue butterfly is typically observed                    the inexperience of the researchers and                these activities have resulted in
                                                  moving short distances in the same area                 the errors that were made by them.                     degraded habitat, or the level of
                                                  where its nectar (food for adults) and                     Our Response: We respectfully                       recreational activity limits or precludes
                                                  larval hosts occur; thus, unobserved                    disagree with these comments. In                       the presence of the Mount Charleston
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                                                  (that is, unreported) nectar plants can be              accordance with section 4 of the                       blue butterfly and its primary
                                                  assumed to be present with a high                       Endangered Species Act of 1973, as                     constituent elements. In this rule, we
                                                  degree of certainty at locations where                  amended (Act; 16 U.S.C. 1531 et seq.),                 refer to these as ‘‘removal areas.’’ The
                                                  the butterfly has been observed. (See                   we are required to designate critical                  Act and our regulations require us to
                                                  also our response to Comment 3.)                        habitat on the basis of the best scientific            base our decisions on the best available
                                                     (9) Comment: We received suggested                   and commercial data available. We used                 information. In our proposed rule, we
                                                  changes from two peer reviewers on the                  information from many different                        stated that we may remove from
                                                  general description of Mount Charleston                 sources, including articles in peer-                   designation locations referred to as


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                                                  37408              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  Dolomite Campground, Foxtail Girl                       consulted with the Service on actions                  Mount Charleston blue butterfly from
                                                  Scout Camp, Foxtail Group Picnic Area,                  they intend to implement, authorize, or                State of Nevada agencies. One peer
                                                  Foxtail Snow Play Area, Lee Canyon                      fund that might affect the Mount                       reviewer worked for the State of
                                                  Guard Station, Lee Meadows (extirpated                  Charleston blue butterfly, including the               Nevada, Department of Agriculture, and
                                                  Mount Charleston blue butterfly                         Old Mill Wildland Urban Interface                      concurred that the proposed critical
                                                  location), McWilliams Campground,                       Hazardous Fuels Reduction (Old Mill                    habitat designation was supported by
                                                  and Old Mill Picnic Area and Youth                      WUI) Project. When this final                          the data and conclusions.
                                                  Camp, because they have extremely                       designation of critical habitat becomes
                                                                                                                                                                 Public Comments
                                                  high levels of public visitation and                    effective (see DATES, above), the Forest
                                                  associated recreational disturbance. We                 Service has been notified that further                    (15) Comment: One public comment
                                                  did not receive specific information                    consultation may be needed if ongoing                  suggested that critical habitat is not
                                                  from peer reviewers or commenters that                  or future projects affect designated                   determinable because of uncertainties of
                                                  changed our understanding of the                        critical habitat. Section 7 requires                   Mount Charleston blue butterfly habitat,
                                                  current habitat conditions and                          Federal agencies to ensure that any                    location, and life history. Similarly,
                                                  recreational use that occurs at Lee                     action authorized, funded, or carried out              other commenters thought that critical
                                                  Meadows. Furthermore, Lee Meadows is                    by the agency is not likely to jeopardize              habitat should not be designated until
                                                  not considered to be occupied habitat,                  the continued existence of listed                      additional survey work is performed,
                                                  because of habitat loss or degradation                  species, or adversely modify or destroy                because more information is needed on
                                                  from past and ongoing recreation                        their critical habitat, which may be                   the distribution of butterfly and its host
                                                  disturbance, and observations of the                    accomplished by avoiding, minimizing,                  and nectar resources, and because once
                                                  Mount Charleston blue butterfly have                    or mitigating take and adverse effects to              critical habitat is designated, it is
                                                  not been documented there since 1965                    critical habitat. Nondiscretionary                     difficult to change. One commenter
                                                  (see 78 FR 57750, September 19, 2013;                   measures associated with such formal                   stated that a thorough assessment of the
                                                  Boyd and Murphy 2008, p. 6; and                         consultations can be developed                         designated wilderness area was needed
                                                  Andrew et al. 2013, pp. 51–52 for more                  accordingly during future consultations;               to map the extent of habitat.
                                                  details). While the Service would                       however, a Federal action agency (for                     Our Response: We believe sufficient
                                                  support efforts to restore and protect                  example, Forest Service) has the                       information exists (1) to perform the
                                                  portions of the Lee Meadows area for                    discretion and authority to implement                  required analyses of the impacts of the
                                                  the Mount Charleston blue butterfly,                    conservation recommendations received                  critical habitat designation; and (2) to
                                                  this management decision is outside the                 from the public on any given project.                  identify critical habitat based on the
                                                  scope of the Service’s authority. Based                    (14) Comment: We received one peer                  biological needs of the Mount
                                                  on the above, we have determined the                    review and one public comment on                       Charleston blue butterfly. Based on our
                                                  criteria we established for removal areas               climate change. The peer reviewer                      review, we have determined there is
                                                  apply to Lee Meadows, and we have                       provided additional references, and                    sufficient information available to
                                                  removed Lee Meadows from this critical                  recommended we describe the                            identify critical habitat in accordance
                                                  habitat designation.                                    functional effects of climate change on                with sections 3(5)(A) and 4(b)(2) of the
                                                     (13) Comment: We received one peer                   the Mount Charleston blue butterfly.                   Act. Extensive, but not comprehensive,
                                                  review and one public comment that                      The public comment provided                            surveys for butterflies, and specifically
                                                  suggested fuel treatment, recreation                    additional general references and                      the Mount Charleston blue butterfly and
                                                  development, and infrastructure                         requested that additional areas be                     its habitat, have occurred across the
                                                  projects were not included or identified                included in the critical habitat                       subspecies’ range and throughout the
                                                  as threats. In addition, the peer reviewer              designation to provide for adaptations to              Mount Charleston Wilderness. As is
                                                  stated that butterfly habitat was being                 climate change.                                        generally the case with natural history,
                                                  adversely affected by ongoing or                           Our Response: We agree that climate                 existing studies of the Mount Charleston
                                                  planned projects, including the Old Mill                change will likely affect the Mount                    butterfly have not been able to evaluate
                                                  Wildland Urban Interface Hazardous                      Charleston blue butterfly and its critical             or address all possible variables
                                                  Fuels Reduction Project; McWilliams,                    habitat. However, site-specific                        associated with the subspecies. We
                                                  Old Mill, Dolomite Recreation Sites                     information on climate change and its                  recognize that future research will likely
                                                  Reconstruction Project; and Foxtail                     effects on the Mount Charleston blue                   enhance our current understanding of
                                                  Group Picnic Area Reconstruction                        butterfly and its habitat are not available            the subspecies’ biology, and additional
                                                  Project. The public commented that                      at this time. We received additional                   survey work could provide a better
                                                  their recommendations for the Old Mill                  information on climate change;                         understanding of the distribution of the
                                                  Wildland Urban Interface Hazardous                      however, this information did not                      Mount Charleston blue butterfly and its
                                                  Fuels Reduction Project were not being                  provide enough specificity on areas that               habitat. Nonetheless, the Act requires us
                                                  implemented.                                            likely will be impacted by climate                     to base our decisions on the best
                                                     Our Response: We identified threats                  change. Thus, we are not identifying                   available scientific and commercial
                                                  from the implementation of recreational                 additional areas to include in the                     information at the time of designation,
                                                  development projects and fuels                          critical habitat designation based on this             which is often not complete, and the
                                                  reduction projects described by the                     information.                                           scientific information about a species
                                                  commenter in the proposed rule for                                                                             generally continues to grow and
                                                  designation of critical habitat (79 FR                  Comments From States                                   improve with time. Based on this, we
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                                                  41234, 41237, and 41238; July 15, 2014).                   Section 4(i) of the Act states, ‘‘the               utilized the best available information to
                                                  Additional information on threats to the                Secretary shall submit to the State                    determine areas of critical habitat for the
                                                  species was considered in the final rule                agency a written justification for [her]               Mount Charleston blue butterfly. We
                                                  determining the status of the subspecies                failure to adopt regulations consistent                will review and consider new
                                                  as endangered (78 FR 57750; September                   with the agency’s comments or                          information as it becomes available.
                                                  19, 2013). Since the listing of the Mount               petition.’’ We did not receive official                   (16) Comment: We received one
                                                  Charleston blue butterfly, the U.S.                     comments or positions on the proposed                  comment that the Service selects peer
                                                  Forest Service (Forest Service) has                     designation of critical habitat for the                reviewers that agree with our decision,


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                         37409

                                                  but we do not select peer reviewers that                with managed recreation when such                         Our Response: In accordance with
                                                  will disagree.                                          recreational activities are properly sited,            section 4(b)(2) of the Act, the Secretary
                                                    Our Response: Requests for peer                       and operation and maintenance of the                   may exclude any area from critical
                                                  reviewers were based on their                           infrastructure needed to support these                 habitat if she determines that the
                                                  availability and capacity as independent                activities is appropriately managed. For               benefits of such exclusion outweigh the
                                                  specialists with subject matter expertise.              example, the Mount Charleston blue                     benefits of inclusion. The Service did
                                                  In selecting peer reviewers, we followed                butterfly historically occurred and                    not consider areas for exclusion under
                                                  our joint policy on peer review                         currently exists on active ski runs                    section 4(b)(2) where future recreational
                                                  published in the Federal Register on                    within the LVSSR. In addition, only part               development is planned, because to our
                                                  July 1, 1994 (59 FR 34270), the                         of the proposed LVSSR expansion area                   knowledge, the recreational
                                                  guidelines for Federal agencies as                      occurs within the critical habitat                     development plans in place now do not
                                                  described in the Office of Management                   designation; future development and                    identify benefits provided to the Mount
                                                  and Budget (OMB) ‘‘Final Information                    expansion of the LVSSR outside of these                Charleston blue butterfly. While it is
                                                  Quality Bulletin for Peer Review,’’                     areas would likely be unaffected by this               possible that some benefits (see our
                                                  released December 16, 2004, and the                     final rule.                                            response to Comment 17, above) for the
                                                  Service’s ‘‘Information Quality                            (18) Comment: One commenter                         Mount Charleston blue butterfly and its
                                                  Guidelines and Peer Review,’’ revised                   asserts that the screening analysis does               habitat may occur as a result of future
                                                  June 2012. The peer review plan and                     not adequately address the potential                   development, specificity on future
                                                  peer review comments have been posted                   economic effects of critical habitat                   development plans or expected
                                                  on our Web site at http://www.fws.gov/                  designation and any resulting                          conservation benefits has not been
                                                  cno/science/peerreview.html.                            prohibitions or limitations to the future              provided. Therefore, areas of
                                                    (17) Comment: Multiple commenters                     LVSSR expansion or development of                      recreational development or expansion
                                                  expressed concern that the proposed                     recreational activities.                               in the LVSSR Master Development Plan
                                                  critical habitat designation would                                                                             are not excluded from critical habitat
                                                                                                             Our Response: In compliance with
                                                  prohibit or limit the expansion and                                                                            designation.
                                                                                                          section 7 of the Act, the Forest Service
                                                  development of additional recreational                                                                            (20) Comment: We received many
                                                                                                          has consulted with the Service on
                                                  opportunities within areas proposed as                                                                         comments from the public that the
                                                                                                          projects affecting the Mount Charleston
                                                  critical habitat. In particular,                                                                               designation of critical habitat for Mount
                                                  commenters identified existing plans for                blue butterfly since the subspecies was
                                                                                                                                                                 Charleston blue butterfly should not
                                                  development that would add hiking,                      listed (78 FR 57750; September 19,
                                                                                                                                                                 include the LVSSR Special Use Permit
                                                  mountain biking, and ski trails, some of                2013). During section 7 consultation, the
                                                                                                                                                                 Area (SUPA), because other greater
                                                  which occur within the authorized                       Forest Service has proposed
                                                                                                                                                                 threats are affecting the butterfly than
                                                  special use permit area (SUPA) held by                  minimization measures designed to
                                                                                                                                                                 would occur from expansion of the ski
                                                  the Las Vegas Ski and Snowboard Resort                  avoid or minimize impacts to the Mount
                                                                                                                                                                 area and associated recreational
                                                  (LVSSR).                                                Charleston blue butterfly and its habitat,             opportunities.
                                                    Our Response: The act of designating                  such as pre-development site planning,                    Our Response: We do not consider
                                                  critical habitat does not summarily                     effective oversight during                             threats to a species or subspecies when
                                                  preclude any activities on the lands that               implementation and development, and                    determining areas to designate as
                                                  have been designated. Critical habitat                  proper management of operations and                    critical habitat. Threats to the Mount
                                                  receives protection under section 7 of                  maintenance activities. We anticipate                  Charleston blue butterfly were
                                                  the Act through the requirement that                    that activities occurring within                       considered and analyzed during the
                                                  Federal agencies ensure, in consultation                designated critical habitat also would                 determination of its status as
                                                  with the Service, that any action they                  have the potential to affect the                       endangered (78 FR 57750; September
                                                  authorize, fund, or carry out is not likely             subspecies and would require                           19, 2013). We determined critical
                                                  to result in the destruction or adverse                 consultation regardless of the presence                habitat for the Mount Charleston blue
                                                  modification of critical habitat.                       of designated critical habitat. That is,               butterfly based on the definition in the
                                                  Furthermore, designation of critical                    the designation of critical habitat is not             Act as follows: The specific areas within
                                                  habitat does not (1) affect land                        anticipated to generate additional                     the geographical area occupied by the
                                                  ownership; (2) establish any closures or                minimization or conservation measures                  [subspecies] at the time it [was] listed
                                                  restrictions on use of or access to areas               for the Mount Charleston blue butterfly                . . . on which are found those physical
                                                  designated as critical habitat; or (3)                  beyond those already generated by the                  or biological features essential to the
                                                  establish specific land management                      listing. As such, the screening analysis               conservation of the species and which
                                                  standards or prescriptions. However,                    limits the future incremental costs of                 may require special management
                                                  Federal agencies are prohibited from                    designating critical habitat associated                considerations or protections (16 U.S.C.
                                                  carrying out, funding, or authorizing                   with the LVSSR to the administrative                   1532(5)(A)).
                                                  actions that would destroy or adversely                 costs of analyzing and avoiding adverse                   We recognize concerns exist regarding
                                                  modify critical habitat.                                modification of critical habitat during                future development plans for the LVSSR
                                                    The Service is committed to working                   section 7 consultations. (Also see our                 SUPA. Areas of the LVSSR SUPA have
                                                  with the Forest Service and LVSSR to                    response to Comment 17, above, for                     provided habitat for the Mount
                                                  implement conservation efforts that                     further discussion.)                                   Charleston blue butterfly for decades, as
                                                  protect the Mount Charleston blue                          (19) Comment: Some commenters                       described in the final listing of the
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                                                  butterfly, while also allowing for                      state that areas of recreational                       subspecies (78 FR 57750; September 19,
                                                  reasonable expansion and development                    development or expansion in the LVSSR                  2013). The Service is committed to
                                                  of the LVSSR compatible with the                        Master Development Plan should be                      working with the Forest Service and
                                                  Mount Charleston blue butterfly,                        excluded from the designation because                  LVSSR to allow for reasonable
                                                  including skiing and snowboarding in                    of the associated economic benefits, and               expansion and development of
                                                  the winter and mountain biking and                      because commenters believe the                         recreational opportunities, including
                                                  hiking in the summer. The Mount                         development plan will benefit the                      skiing and snowboarding in the winter
                                                  Charleston blue butterfly can coexist                   butterfly and its habitat.                             and mountain biking and hiking in the


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                                                  37410              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  summer, within the SUPA that are                        critical habitat, the economic impacts of              quarter-quarter sections to encompass
                                                  compatible with the Mount Charleston                    a critical habitat designation in                      areas of primary constituent elements
                                                  blue butterfly and its habitat.                         occupied areas are generally limited to                was arbitrary and capricious, or
                                                     (21) Comment: One commenter                          the costs of consultations on actions                  illogical. Public comments suggested
                                                  asserts the screening analysis is flawed                with a Federal nexus, and are primarily                that of the 702 acres (ac) (284 hectares
                                                  because it contradicts existing case law                borne by the Federal action agencies. As               (ha)) authorized in the LVSSR SUPA
                                                  by using ‘‘the functional equivalence                   described in our final economic                        that occur within proposed critical
                                                  approach when considering the                           analysis, in some cases private                        habitat, only 3.6 ac (1.5 ha) are known
                                                  economic impact of [critical habitat]                   individuals may incur some costs as                    to be occupied by the Mount Charleston
                                                  designation on the LVSSR property [=                    third-party applicants in an action with               blue butterfly, and essentially are
                                                  SUPA] by concluding that any economic                   a Federal nexus. Beyond this, while                    surrounded by a barrier of forest. One
                                                  impact occurred as a result of the listing              small business entities may possibly                   public comment stated the Mount
                                                  of the species.’’                                       experience some economic impacts as a                  Charleston blue butterfly has never been
                                                     Our Response: Section 4(b)(2) of the                 result of a listing of a species as                    observed far from its habitat by leading
                                                  Act requires the consideration of                       endangered or threatened under the Act,                experts, and suggested that designating
                                                  potential economic impacts associated                   small businesses do not generally                      areas between patches of habitat was
                                                  with the designation of critical habitat.               experience substantial economic                        overly broad and resulted in proposed
                                                  However, as we have explained                           impacts as a direct result of the                      designation of areas of unoccupied
                                                  elsewhere (see our response to                          designation of critical habitat.                       habitat not essential to the conservation
                                                  Comment 17, above), the regulatory                         (22) Comment: We received several                   of the Mount Charleston blue butterfly,
                                                  effect of critical habitat under the Act                comments that the Las Vegas Ski and                    and that such areas should not be
                                                  directly impacts only Federal agencies,                 Snowboard Resort Area should be                        designated as critical habitat.
                                                  as a result of the requirement that those               excluded from critical habitat in                         Our Response: We used quarter-
                                                  agencies avoid ‘‘adverse modification’’                 accordance with the Ski Area                           quarter sections (generally 40 ac (16 ha))
                                                  of critical habitat. Specifically, section              Recreational Opportunity Enhancement                   to delineate the boundaries of critical
                                                  7(a)(2) of the Act states that, ‘‘Each                  Act of 2011 (Pub. L. 112–46), or the                   habitat units because, as stated in the
                                                  Federal agency shall, in consultation                   designation of critical habitat should                 proposed designation, they provide a
                                                  with and with the assistance of the                     give credence to the Act ‘‘. . . which                 readily available systematic method to
                                                  Secretary, insure that any action                       aims to bolster summer tourism and stir                identify areas that encompass the
                                                  authorized, funded, or carried out by                   year-round economic activity in                        physical and biological features
                                                  such agency . . . is not likely to                      mountain towns.’’                                      essential to the conservation of the
                                                  jeopardize the continued existence of                      Our Response: The Ski Area                          Mount Charleston blue butterfly, and
                                                  any endangered species or threatened                    Recreational Opportunity Enhancement                   they provide boundaries that are easy to
                                                  species or result in the destruction or                 Act of 2011 (SAROEA), which amends                     describe and interpret for the general
                                                  adverse modification of habitat of such                 the National Forest Ski Area Permit Act                public and land management agencies.
                                                  species which is determined by the                      of 1986 (16 U.S.C. 497b), does not                     The selection of any given quarter-
                                                  Secretary . . . to be critical . . .’’ This             supersede the requirements of the                      quarter section was systematically
                                                  then, is the regulatory impact of a                     Endangered Species Act. Section 3 of                   selected based on our understanding of
                                                  critical habitat designation, and serves                SAROEA provides the Secretary of                       the best scientific and commercial data
                                                  as the foundation of our economic                       Agriculture authority to authorize a ski               available on the occurrence of the
                                                  analysis. We define it as an                            area permittee to provide other                        physical and biological features
                                                  ‘‘incremental impact,’’ because it is an                recreational opportunities determined to               essential to the conservation of the
                                                  economic impact that is incurred above                  be appropriate. The SAROEA requires                    Mount Charleston blue butterfly. We
                                                  and beyond the baseline impacts that                    that authorizations by the Secretary of                recognize that there are areas within the
                                                  stem from the listing of the species (for               Agriculture be in accordance with                      critical habitat unit boundaries that do
                                                  example, costs associated with avoiding                 ‘‘applicable land and resource                         not possess the primary constituent
                                                  take under section 9 of the Act,                        management plan[s]’’ and ‘‘applicable                  elements, such as buildings, pavement,
                                                  mentioned by the commenter); thus it                    laws (including regulations).’’                        and other structures, and these areas are
                                                  ‘‘incrementally’’ adds to those baseline                Furthermore, section 4 of SAROEA                       excluded by text in the final critical
                                                  costs. However, in most cases, and                      states, ‘‘Nothing in the amendments                    habitat rule (see section Criteria Used
                                                  especially where the habitat in question                made by this Act establishes a legal                   To Identify Critical Habitat). In the
                                                  is already occupied by the listed                       preference for the holder of a ski area                quarter-quarter sections that are
                                                  species, as is the case for the Mount                   permit to provide activities and                       included, suitable habitat is distributed
                                                  Charleston blue butterfly, if there is a                associated facilities authorized by                    across the area.
                                                  Federal nexus, the action agency already                section 3(c) of the National Forest Ski                   Reported acres of habitat in previous
                                                  consults with the Service to ensure its                 Area Permit Act of 1986 (16 U.S.C.                     Federal Register documents do not
                                                  actions will not jeopardize the                         497b(c)) (as amended by section 3).’’                  reflect the best available science
                                                  continued existence of the species.                     There is no legal direction or                         currently available. In the 90-day and
                                                  Therefore, the additional costs of                      requirement that stems from the                        12-month findings (72 FR 29935–29936,
                                                  consultation to further ensure the action               SAROEA for the Service to modify                       May 30, 2007; 76 FR 12670, March 8,
                                                  will not destroy or adversely modify                    critical habitat. As described in our                  2011), we reported some of the first
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                                                  critical habitat are usually relatively                 response to Comment 17, above, we                      patches of habitat for the Mount
                                                  minimal. Because the Act provides for                   expect that properly planned, designed,                Charleston blue butterfly to be 3.7 ac
                                                  the consideration of economic impacts                   managed, and implemented recreation                    (1.5 ha), and two areas of 2.4 ac (0.97
                                                  associated only with the designation of                 may occur in close proximity to Mount                  ha) and 1.3 ac (0.53 ha) at the LVSSR.
                                                  critical habitat, and because the                       Charleston blue butterfly habitat.                     As a result of additional survey work in
                                                  regulatory effect of critical habitat is the               (23) Comment: We received many                      2012, we identified the area of known
                                                  requirement that Federal agencies avoid                 public comments that the critical habitat              occupied habitat at LVSSR as 25.7 ac
                                                  destruction or adverse modification of                  area was too large, and the use of the                 (10.4 ha) in the final rule listing the


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37411

                                                  Mount Charleston blue butterfly as                         (25) Comment: We received many                      with the exception of the removal areas
                                                  endangered (78 FR 57754; September                      public comments that the Service                       (see our response to Comment 12), we
                                                  19, 2013). Additional habitat has been                  should assemble a recovery team and                    have determined that the three occupied
                                                  mapped (Forest Service 2013, Figure 2)                  have a collaborative and inclusive                     critical habitat units identified in this
                                                  within the LVSSR SUPA, and more may                     recovery planning process.                             rule contain the physical and biological
                                                  be present in areas that have not been                     Our Response: We agree that we                      features essential to the conservation of
                                                  adequately surveyed. There are small                    should have a collaborative and                        the Mount Charleston blue butterfly,
                                                  areas with primary constituent elements                 inclusive recovery planning process,                   and no unoccupied areas are necessary
                                                  distributed across the entire area of the               and will work to fulfill our statutory                 for designation.
                                                  LVSSR SUPA within Unit 2, which                         mandate under section 4 of the Act,                       (28) Comment: We received public
                                                  overlaps with approximately 60 percent                  which requires us to develop and                       comments that there was no evidence
                                                  of the LVSSR SUPA. The ability of the                   implement a recovery plan for the                      the Mount Charleston blue butterfly was
                                                  Mount Charleston blue butterfly to                      Mount Charleston blue butterfly now                    unique, and, therefore, it should not be
                                                  move among or between close patches                     that the species is listed and critical                listed as endangered. In addition, we
                                                  of habitat within each critical habitat                 habitat is designated.                                 received comments that requested us to
                                                  unit is necessary and essential for the                    (26) Comment: We received several                   list the Mount Charleston blue butterfly
                                                  conservation and recovery of the                        public comments suggesting that LVSSR                  under the Act.
                                                  subspecies. Movements between                           SUPA should be excluded from critical                     Our Response: We evaluated and
                                                  patches of habitat to restore a                         habitat because more Mount Charleston                  described the taxonomy of the Mount
                                                  functioning metapopulation                              blue butterflies were observed in Unit 1               Charleston blue butterfly during the
                                                  (hypothesized to have failed because of                 than Unit 2, better habitat was present                listing process of the subspecies, and it
                                                  reduced landscape permeability, as                      in Unit 1 than in Unit 2, and the                      was determined to be a valid taxonomic
                                                  described in Boyd and Murphy 2008, p.                   Carpenter 1 Fire will likely improve                   entity for considering listing under the
                                                  25) are necessary for recovery of the                   habitat in Unit 1.                                     Act. The listing process required us to
                                                                                                             Our Response: Exclusions to critical                publish a proposed rule in the Federal
                                                  Mount Charleston blue butterfly.
                                                                                                          habitat are considered in accordance                   Register (77 FR 59518; September 27,
                                                    We recognize that habitat is dynamic,
                                                                                                          with section 4(b)(2) of the Act (see our               2012) and solicit public comments on
                                                  the extent of habitat may shift, surveys                response to Comment 19), which does                    the rule (see Previous Federal Actions
                                                  have not occurred in every area, and                    not allow consideration or comparison                  section for more details). Information
                                                  butterflies move between patches of                     of population numbers between critical                 we received during the 60-day comment
                                                  habitat. Therefore, we adjusted some of                 habitat units. We agree that Unit 1 likely             period for the proposed rule informed
                                                  the methodology we used to identify                     has better habitat, has higher densities               the final rule determining endangered
                                                  critical habitat in this final rule. We                 of Mount Charleston blue butterflies,                  species status for the subspecies (78 FR
                                                  used a 1,000-meter (3,300-foot) distance                and is more likely to improve in some                  57750; September 19, 2013). Listing of
                                                  to approximate potential Mount                          areas as a result of the Carpenter 1 Fire.             the Mount Charleston blue butterfly as
                                                  Charleston blue butterfly movements                     The critical habitat for the Mount                     endangered was effective October 21,
                                                  within critical habitat units. We believe               Charleston blue butterfly in Unit 2 at                 2013.
                                                  the use of quarter-quarter sections                     LVSSR is essential to the conservation                    (29) Comment: One commenter stated
                                                  provides an effective boundary and                      and recovery of the subspecies, because                that the proposed rule to designate
                                                  scale that encompasses likely butterfly                 of the subspecies’ restricted range,                   critical habitat relies too much on the
                                                  movements within and between habitat                    overall low numbers, and occupancy of                  use of linguistically uncertain or vague
                                                  patches, and is easily recognizable by                  few locations, which we described in                   wording (for example, ‘‘presumed to,’’
                                                  land management agencies and the                        the final listing rule (78 FR 57750;                   ‘‘suspected of,’’ ‘‘likely to be,’’ and
                                                  general public. Therefore, this                         September 19, 2013). Additionally, the                 ‘‘anticipated to’’) to support its
                                                  methodology resulted in the three                       population of Mount Charleston blue                    conclusions.
                                                  separate occupied critical habitat units                butterflies in Unit 2 and at LVSSR is one                 Our Response: The language in the
                                                  essential to the conservation and                       of three known occupied locations.                     proposed and final rules reflects the
                                                  recovery of the Mount Charleston blue                   While other presumed occupied                          uncertainty that exists in natural history
                                                  butterfly that are identified in this final             locations exist outside of designated                  studies, and we have attempted to be
                                                  rule.                                                   critical habitat, the location within                  transparent and explicitly characterize
                                                    (24) Comment: We received                             LVSSR is important because it is known                 that uncertainty where applicable.
                                                  comments that feral horses were                         occupied habitat with primary                          Under the Act, we base our decision on
                                                  affecting the Mount Charleston blue                     constituent elements essential to the                  the best available scientific and
                                                  butterfly and its habitat, and they                     conservation and recovery of the                       commercial information, even if that
                                                  should be removed.                                      subspecies. Also see our responses to                  information includes some level of
                                                     Our Response: Threats to the Mount                   Comments 18 and 21, above.                             uncertainty.
                                                  Charleston blue butterfly were evaluated                   (27) Comment: We received many                         (30) Comment: We received one
                                                  in the final rule for listing the                       public comments that critical habitat                  public comment proposing an
                                                  subspecies as endangered (78 FR 57750;                  should include historical, but                         additional removal area from Unit 2
                                                  September 19, 2013). Management of                      unoccupied, areas.                                     within the LVSSR SUPA because of
                                                  feral horses is outside the scope of the                   Our Response: We reviewed all areas                 intensive levels of recreational
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                                                  Service’s authority, and comments on                    where the Mount Charleston blue                        activities.
                                                  this matter should be directed to the                   butterfly has been documented, as                         Our Response: We reviewed and
                                                  appropriate land manager. The Service                   described in the final listing rule (78 FR             evaluated information on the additional
                                                  will continue to advocate for                           57750; September 19, 2013). For species                proposed removal area within the
                                                  appropriate management levels of feral                  listed under the Act, we may designate                 LVSSR SUPA. Some of the proposed
                                                  horses to avoid or minimize potential                   critical habitat in unoccupied areas                   removal area contains concentrations of
                                                  conflicts with the Mount Charleston                     when these areas are essential for the                 buildings, roads, ski lift structures, and
                                                  blue butterfly.                                         conservation of a species. However,                    recreation facilities (developed


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                                                  37412              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  infrastructure) that receive high levels of             Mount Charleston blue butterfly has not                Charleston blue butterfly, because it was
                                                  public recreation and facilities                        been observed since 1995. The Forest                   larger, ranked among the most vagile
                                                  management. These areas lack physical                   Service indicated that because they                    species of Lycaenidae, and had a hill-
                                                  or biological features necessary for the                presume occupancy in suitable habitat,                 topping mating behavior that suggests
                                                  Mount Charleston blue butterfly, and                    they initiate section 7 consultations and              higher flight heights than the Mount
                                                  because of the high concentrations of                   the benefits of designating critical                   Charleston blue butterfly.
                                                  disturbance from public use and                         habitat are negligible.                                   Our Response: We have reviewed
                                                  management, are not likely to be                           Our Response: The Mount Charleston                  information on Lepidoptera movements
                                                  suitable in the future. Therefore, we do                blue butterfly was last observed in the                emphasizing information on sedentary
                                                  not include in this critical habitat                    North Loop Unit 3 in 1995 by Weiss et                  lycaenid butterflies, and revised the
                                                  designation a portion of the area                       al. (1997), who determined its presence                criteria for connectivity to provide an
                                                  mentioned by this commenter because                     and occupancy within this unit. Surveys                approximation based on a range of
                                                  its omission from the designation is                    have been insufficient to determine that               documented distances (300–1500 m)
                                                  consistent with the rationale for the                   the Mount Charleston blue butterfly has                (see Criteria Used To Identify Critical
                                                  removal areas we named in the July 15,                  been extirpated from Unit 3. The last                  Habitat section).
                                                  2014, proposed rule (see our response to                surveys for the Mount Charleston blue                     In general, we reexamined the criteria
                                                  Comment 12).                                            butterfly in Unit 3 occurred in 2006 (3                used to identify critical habitat as they
                                                                                                          visits) and 2012 (2 visits) (Boyd 2006, p.             relate to dispersal for butterflies and the
                                                  Comments From Federal Agencies                          1; Kingsley 2007, p. 6; Andrew et al.                  2,440-m (8,000-ft) buffer distance
                                                    (31) Comment: The Forest Service                      2013, p. 28), and some of these surveys                applied for connectivity and corridors.
                                                  commented that the benefits of                          occurred early in the season (mid-June                 We originally used dispersal distances
                                                  designating critical habitat were                       and early July) making the likelihood of               reported for the Mission blue butterfly
                                                  negligible because they must consult                    detecting adults to be low. Furthermore,               (Plebejus icarioides missionensis),
                                                  with the Service as a result of the listed              Thompson et al. (2014, p. 156) indicate                because of its close taxonomic relation
                                                  status of the Mount Charleston blue                     that, based on their experience                        to the Mount Charleston blue butterfly
                                                  butterfly in areas that contain habitat for             performing extensive surveys for the                   and the availability of measured
                                                  the butterfly, whether it is occupied or                Mount Charleston blue butterfly, it may                dispersal distances for the Mission blue
                                                  not. The Forest Service stated they                     persist at a location (for example,                    butterfly. The commenter is correct that
                                                  assume that areas with suitable habitat                 LVSSR and Bonanza), but be nearly                      the Boisduval’s blue butterfly is
                                                  are occupied by the Mount Charleston                    undetectable with typical survey effort.               reported as ‘‘the largest blue’’ butterfly
                                                  blue butterfly and have developed                       For example, Boyd and Murphy (2008,                    in North America. Scott (1986, p. 409)
                                                  protocols and designed criteria, in                     p. 3) hypothesized that the failure to                 and Arnold et al. (1983, pp. 47–48)
                                                  coordination with the Service, which                    observe the Mount Charleston blue                      describe the Mission blue butterfly (P. i.
                                                  will ‘‘provide all the benefits listed in               butterfly for 3 consecutive years and                  missionensis) to ‘‘. . . rank among the
                                                  the Service’s proposal to designate                     after intensive surveys in 2008, was                   most vagile species of Lycaeninae’’
                                                  critical habitat.’’                                     ‘‘strong evidence’’ of its extirpation in              because of long movements outside the
                                                    Our Response: Under section                           Lee Canyon. However Thompson et al.                    study site (Scott 1975; Shreeve 1981).
                                                  4(a)(3)(A) of the Act, the Service is                   observed an adult female at the same                   However, we are unaware of
                                                  required to designate critical habitat for              location surveyed at LVSSR on July 23,                 information to support the comment
                                                  species or subspecies listed as                         2010. Thus, the Mount Charleston blue                  that the Boisduval’s blue or Mission
                                                  endangered or threatened, if prudent                    butterfly could be present at a location               blue butterfly is a hill-topping species or
                                                  and determinable. The Service is not                    and remain undetected in areas with                    subspecies (Scott 1968, Table 2; Arnold
                                                  relieved of this statutory obligation                   suitable habitat even with intensive                   et al. 1983, p. 32) or of information
                                                  when a Federal agency is already                        surveys as exemplified by the preceding                relating hill-topping or flight height to
                                                  complying with section 7 obligations to                 surveys during a 5-year time period.                   dispersal distance.
                                                  consult if an action may affect a listed                Therefore, it is appropriate to consider                  Based on reports and descriptions of
                                                  species or subspecies. While we                         critical habitat in Unit 3 occupied.                   its movements, we agree that the
                                                  appreciate the Forest Service’s previous                   We appreciate the work that the                     vagility of the Mount Charleston blue
                                                  and ongoing efforts to develop effective                Forest Service has done to conserve the                butterfly is likely similar to other related
                                                  conservation and management strategies                  Mount Charleston blue butterfly, and we                Lycaenidae, and its mobility can be
                                                  to protect the Mount Charleston blue                    will continue to work with them to                     characterized as sedentary or low (10–
                                                  butterfly and its habitat, section 4 of the             implement conservation efforts that                    100 m (33–330 ft)) (Cushman and
                                                  Act requires the Service to identify areas              protect the Mount Charleston blue                      Murphy 1993, p. 40; Weiss et al. 1997,
                                                  that provide the physical or biological                 butterfly while also consulting on                     Table 2; Fleishman et al. 1997, Table 2;
                                                  features essential to the conservation of               projects that may affect the Mount                     Boyd and Murphy 2008, pp. 3, 9;
                                                  the subspecies and designate these areas                Charleston blue butterfly in the future.               Thompson et al. 2013, pp. 118–121).
                                                  as critical habitat. We will continue to                   (33) Comment: The Forest Service                    However, studies of a butterfly’s
                                                  work with the Forest Service to                         suggested that the 2,440-meter (m)                     mobility and short-distant movements
                                                  implement conservation efforts that                     (8,000-foot (ft)) buffer proposed by the               observed in mark-release-recapture do
                                                  protect the Mount Charleston blue                       Service as needed for movement                         not accurately detect the longest
                                                  butterfly and its habitat while also                    corridors was greater than the ‘‘known                 movements of individuals, and thus are
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                                                  consulting on projects that may affect                  limits’’ of the Mount Charleston blue                  likely not reliable estimates of a species’
                                                  the Mount Charleston blue butterfly.                    butterfly; therefore, the Forest Service               dispersal distances (Wilson and Thomas
                                                    (32) Comment: The Forest Service                      recommended a 200-m (660-ft) buffer.                   2002, pp. 259 and 264; Stevens et al.
                                                  commented that they were concerned                      The Forest Service suggested that                      2010, p. 625). In addition, the maximum
                                                  with the methods the Service used to                    movements by Mission blue butterflies                  distances obtained from mark-release-
                                                  define occupancy, particularly the                      (which are Boisduval’s blue butterflies)               recapture studies underestimate how far
                                                  inclusion of Unit 3 (North Loop,                        were not appropriate to use as a                       butterflies may disperse. These studies
                                                  Mummy Springs location), where the                      ‘‘surrogate’’ for movement by the Mount                also underestimate the number of


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                           37413

                                                  individuals which will move long                        and other structures, because such lands               proposed designation by 347 ac (140
                                                  distances, because individuals that                     lack the physical or biological features               ha). The final area of critical habitat
                                                  leave a habitat patch or study area and                 for Mount Charleston blue butterfly.                   designated for the Mount Charleston
                                                  do not reach another patch often go                     However, the Mount Charleston blue                     blue butterfly is approximately 2,228 ac
                                                  undetected (Cushman and Murphy                          butterfly and its habitat have been                    (902 ha) in Unit 1, 2,573 ac (1,041 ha)
                                                  1993, p. 40; Wilson and Thomas 2002,                    documented in close proximity to trails                in Unit 2, and 413 ac (167 ha) in Unit
                                                  p. 261).                                                and administrative roads (Weiss et al.                 3, which amounts to a total of 5,214 ac
                                                     Limited estimates of Mount                           1997, p. 10 and Map 3.1; Boyd and                      (2,110 ha).
                                                  Charleston blue butterfly movements are                 Murphy 2008, pp. 4–7; Thompson
                                                  available. Distances between patches of                                                                        Changes From the Background Section
                                                                                                          2014b) near some of the areas that the
                                                  habitat for Mount Charleston blue                                                                              of the Proposed Rule
                                                                                                          Forest Service requested we remove
                                                  butterfly locations delineated by                       from critical habitat designation in Unit              Species Information
                                                  Andrew et al. 2013 and Thompson et al.                  2. In addition, the Mount Charleston
                                                  2014 in Unit 2 (measured in Geographic                                                                         Taxonomy and Species Description
                                                                                                          blue butterfly and its habitat have been
                                                  Information System (GIS)) range                         documented within the area near radio                     The Mount Charleston blue butterfly
                                                  between 300 m and 700 m (990 ft and                     repeaters in Unit 1 (Andrew et al. 2013,               is a subspecies of the wider ranging
                                                  2300 ft), suggesting the butterfly is                   Figure 17). Therefore, the areas the                   Shasta blue butterfly (Icaricia shasta),
                                                  capable of movements greater than the                   Forest Service requested for removal are               which is a member of the family
                                                  commenter’s recommended 200 m (660                      designated as critical habitat in this                 Lycaenidae. Pelham (2014) recognized
                                                  ft). Aside from characterizations of the                rule.                                                  six subspecies of Shasta blue butterflies.
                                                  Mount Charleston blue butterfly’s                                                                              Discussion of previous taxonomic
                                                  within-patch movements, we are                          Summary of Changes From Proposed                       treatments and subspecies description
                                                  unaware of data describing its                          Rule                                                   may be found in the final rule to list the
                                                  maximum dispersal distance. Therefore,                     Based on information we received                    Mount Charleston blue butterfly and
                                                  any approximation of dispersal for the                  during the comment period, we made                     proposed rule to designate critical
                                                  Mount Charleston blue butterfly must be                 the following changes to the proposed                  habitat (78 FR 57751 and 79 FR 41227).
                                                  inferred from other sources or species                  rule:                                                     We listed the Mount Charleston blue
                                                  for which we do have available                             (1) We have updated the genus from                  butterfly as Plebejus shasta
                                                  movement data. We recognize that there                  Plebejus to Icaricia for the Mount                     charlestonensis as endangered effective
                                                  are numerous interacting factors, both                  Charleston blue butterfly to reflect more              on October 21, 2013 (see 78 FR 57750;
                                                  intrinsic (for example, genetics, size,                 current scientific studies and use. The                September 19, 2013). We cited Pelham
                                                  health, life history) and extrinsic (for                Service will now use Icaricia shasta                   (2008, p. 265) as justification for using
                                                  example, habitat quality and                            charlestonensis for the Mount                          the name Plebejus shasta
                                                  configuration, weather, population                      Charleston blue butterfly. This includes               charlestonensis. Opler and Warren
                                                  density), that may affect dispersal                     amending the scientific name we set                    (2003, p. 30) used the name Plebejus
                                                  estimates of butterfly species. As such,                forth in the List of Endangered and                    shasta in their list of scientific names of
                                                  we have revised the criteria for                        Threatened Wildlife at 50 CFR 17.11(h).                butterflies, but did not list subspecies.
                                                  connectivity to reflect the range of                       (2) In response to the comments we                     Based on more recent published
                                                  documented distances, as described                      received from peer and public                          scientific data and in keeping with
                                                  above.                                                  reviewers, we have updated the                         regulations at 50 CFR 17.11(b) to use the
                                                     (34) Comment: The Forest Service                     following sections to incorporate                      most recently accepted scientific name,
                                                  requested that areas be removed from                    literature and information provided or                 we will use the name Icaricia shasta
                                                  critical habitat designation that are                   to clarify language based on suggestions               charlestonensis for the Mount
                                                  within a 25-m (83-ft) buffer surrounding                made: Species Information, Physical or                 Charleston blue butterfly throughout
                                                  existing waterlines and administrative                  Biological Features, and Primary                       this document. We are recognizing and
                                                  roads associated with previously                        Constituent Elements for the Mount                     accepting here the change in the
                                                  removed recreation facilities, in Unit 2.               Charleston Blue Butterfly (see updated                 scientific name for the Mount
                                                  The Forest Service stated the areas                     sections in this final rule).                          Charleston blue butterfly. Icaricia has
                                                  receive periodic maintenance, lack                         (3) We have modified critical habitat               previously been treated as a genus
                                                  primary constituent elements, and are                   boundaries to account for the areas                    closely related to Plebejus (Nabokov
                                                  ‘‘within the bounds of justification used               initially proposed for removal, public                 1945, pp. 1–61) or as a subgenus of
                                                  for excluding [sic] the initial recreation              comments on these proposed removals,                   Plebejus (Tilden 1973, p. 13).
                                                  areas.’’ In addition, the Forest Service                and our subsequent review of the data                     Data-driven studies undertaken just
                                                  requested that an area be removed from                  on the proposed removals. In addition                  prior to and just after our listing of the
                                                  the proposed critical habitat designation               to the initial proposed removal areas,                 butterfly (Vila et al. 2011 and Talavera
                                                  in Unit 1, where radio repeaters with                   we have removed an area within the                     et al. 2013, pp. 166–192 (first published
                                                  required annual maintenance occur. The                  LVSSR SUPA to be consistent with the                   online September 2012)) support and
                                                  Forest Service states that the area was                 criteria, in that the areas are highly                 confirm recognition of Icaricia as a
                                                  surveyed for habitat and only the host                  disturbed and receive high                             genus distinct from Plebejus for a group
                                                  plant Astragalus platytropis was                        concentrations of public recreation or                 of species that includes the Mount
                                                  present, and they stated that the nearest               recreation management. We have                         Charleston blue butterfly. The studies
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                                                  documented citing of a Mount                            modified the description of the areas                  are based on analyses of mitochondrial
                                                  Charleston blue butterfly was 200 m                     removed from critical habitat. We have                 and nuclear DNA of a broad array of
                                                  (660 ft) away.                                          made changes to maps, units, and the                   New World species. This recognition
                                                     Our Response: When determining                       text of this final rule. We have removed               and delineation of Icaricia is accepted
                                                  critical habitat boundaries within this                 267 ac (108 ha) from proposed Unit 2                   and followed by Grishin (2012, pp. 117–
                                                  final rule, we made every effort to avoid               and 80 ac (32 ha) from proposed Unit                   120), who provides descriptions of
                                                  including developed areas, such as                      1. In total, the final critical habitat                morphological features to distinguish
                                                  lands covered by buildings, pavement,                   designation has decreased from the                     the Mount Charleston blue butterfly


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                                                  37414              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  from 4 of the other 13 blue butterflies                 (described under Physical or Biological                be able to delay maturation during
                                                  that occur in the Spring Mountains of                   Features, below (Weiss et al. 1994, p. 3;              drought or the shortened growing
                                                  Nevada. Pelham’s online Catalogue of                    Weiss et al. 1997, p. 10; Boyd 2005, p.                seasons that follow winters with heavy
                                                  butterflies of the United States and                    1; DataSmiths 2007, p. 21; Boyd and                    snowfall and late snowmelt by
                                                  Canada, revised June 22, 2014, lists the                Murphy 2008, p. 9; Andrew et al. 2013,                 remaining as eggs through one or more
                                                  Mount Charleston blue butterfly as a                    pp. 4–12; Thompson et al. 2014, pp. 97–                years, or returning to diapause as larvae,
                                                  subspecies of Icaricia shasta. The format               158)). The typical flight and breeding                 perhaps even more than once.’’ Experts
                                                  of Pelham’s Catalogue does not include                  period for the butterfly is early July to              have hypothesized and demonstrated
                                                  reference to supportive data (e.g., Vila et             mid-August, with a peak in late July,                  that, in some species of Lepidoptera, a
                                                  al. 2011 or Talavera et al. 2013). The                  although the subspecies has been                       prolonged diapause period may be
                                                  Integrated Taxonomic Information                        observed as early as mid-June and as                   possible in response to unfavorable
                                                  System (ITIS) database (ITIS 2015)                      late as mid-September (Austin 1980, p.                 environmental conditions (Scott 1986,
                                                  follows Pelham’s Catalogue, but as yet                  22; Boyd and Austin 1999, p. 17;                       pp. 26–30; Murphy 2006, p. 1;
                                                  has not been updated to the 2014                        Thompson et al. 2014, pp. 105–116).                    DataSmiths 2007, p. 6; Boyd and
                                                  revised version and likewise does not                      Like all butterfly species, both the                Murphy 2008, p. 22), and this has been
                                                  cite supportive data.                                   phenology (timing) and number of                       hypothesized for the Mount Charleston
                                                     We are recognizing the change in the                 Mount Charleston blue butterfly                        blue butterfly as well (Thompson et al.
                                                  scientific name of the Mount Charleston                 individuals that emerge and fly to                     2014, p.157). Little has been confirmed
                                                  blue butterfly to Icaricia shasta                       reproduce during a particular year                     regarding the length of time or life stage
                                                  charlestonensis, based on data                          appear to be reliant on the combination                in which the Mount Charleston blue
                                                  presented by Vila et al. (2011) and                     of many environmental factors that may                 butterfly diapauses.
                                                  Talavera et al. (2013) and accepted by                  constitute a successful (‘‘favorable’’) or                Most butterfly populations exist as
                                                  Grishin (2012) and Pelham (2014).                       unsuccessful (‘‘poor’’) year for the                   regional metapopulations (Murphy et al.
                                                  Updating the nomenclature, which is                     subspecies. Specific information                       1990, p. 44). Boyd and Murphy (2008,
                                                  reflective of its current taxonomic                     regarding diapause of the Mount                        p. 23) suggest this is true of the Mount
                                                  status, does not impact the animal’s                    Charleston blue butterfly is lacking, and              Charleston blue butterfly. Small habitat
                                                  description, distribution, or listing                   while geographic and subspecific                       patches tend to support smaller
                                                  status.                                                 variation in life histories can vary, we               butterfly populations that are frequently
                                                                                                          presume information on the diapause of                 extirpated by events that are part of
                                                  Habitat and Biology
                                                                                                          other Shasta blue butterflies is similar to            normal variation (Murphy et al. 1990, p.
                                                     Weiss et al. (1997, pp. 10–11) describe              that of the Mount Charleston blue                      44). According to Boyd and Austin
                                                  the natural habitat for the Mount                       butterfly. The Shasta blue butterfly is                (1999, p. 17), smaller colonies of the
                                                  Charleston blue butterfly as relatively                 generally thought to diapause at the                   Mount Charleston blue butterfly may be
                                                  flat ridgelines above 2,500 m (8,200 ft),               base of its larval host plant or in the                ephemeral in the long term, with the
                                                  but isolated individuals have been                      surrounding substrate (Emmel and                       larger colonies of the subspecies more
                                                  observed as low as 2,000 m (6,600 ft).                  Shields 1980, p. 132) as an egg the first              likely than smaller populations to
                                                  Boyd and Murphy (2008, p. 19) indicate                  winter and as a larva near maturity the                persist in ‘‘poor’’ years, when
                                                  that areas occupied by the subspecies                   second winter (Ferris and Brown 1981,                  environmental conditions do not
                                                  feature exposed soil and rock substrates,               pp. 203–204; Scott 1986, p. 411);                      support the emergence, flight, and
                                                  with limited or no canopy cover or                      however, Emmel and Shields (1980, p.                   reproduction of individuals. The ability
                                                  shading.                                                132) suggested that diapause was passed                of the Mount Charleston blue butterfly
                                                     Other than observations by surveyors,                as partly grown larvae, because freshly                to move between habitat patches has not
                                                  little information is available regarding               hatched eggshells were found near                      been studied; however, field
                                                  most aspects of the subspecies’ biology                 newly laid eggs (indicating that the eggs              observations indicate the subspecies has
                                                  and the key determinants for the                        do not overwinter). More recent                        low vagility (capacity or tendency of a
                                                  interactions among the Mount                            observations of late summer hatched                    species to move about or disperse in a
                                                  Charleston blue butterfly’s life history                and overwintering unhatched eggs of                    given environment), on the order of 10
                                                  and environmental conditions.                           the Mount Charleston blue butterfly                    to 100 m (33 to 330 ft) (Weiss et al.
                                                  Observations indicate that above- or                    eggs laid in the Spring Mountains may                  1995, p. 9), and nearly sedentary
                                                  below-average precipitation, coupled                    indicate that it has an environmentally                behavior (DataSmiths 2007, p. 21; Boyd
                                                  with above- or below-average                            cued and mixed diapause life cycle;                    and Murphy 2008, pp. 3 and 9).
                                                  temperatures, influence the phenology                   however, further observations                          Furthermore, movement of lycaenid
                                                  of this subspecies (Weiss et al. 1997, pp.              supporting egg viability are needed to                 butterflies, in general, is limited and on
                                                  2–3 and 32; Boyd and Austin 1999, p.                    confirm this (Thompson et al. 2014, p.                 the order of hundreds of meters
                                                  8), and are likely responsible directly or              131).                                                  (Cushman and Murphy 1993, p. 40);
                                                  indirectly for the fluctuation in                          Prolonged or multiple years of                      however, there are small portions of a
                                                  population numbers from year to year,                   diapause has been documented for                       population that can make substantially
                                                  because they affect host and nectar                     several butterfly families, including                  long movements (Arnold 1983, pp. 47–
                                                  plants (Weiss et al. 1997, pp. 2–3 and                  Lycaenidae (Pratt and Emmel 2010, p.                   48).
                                                  31–32). More research is needed to                      108). For example, the pupae of the                       Based on this information, the
                                                  understand the functional relationship                  variable checkerspot butterfly                         likelihood of dispersal more than
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                                                  between the Mount Charleston blue                       (Euphydryas chalcedona, which is in                    hundreds of meters (yards) is low for the
                                                  butterfly and its habitat and weather.                  the Nymphalid family) are known to                     Mount Charleston blue butterfly, but it
                                                     Like most butterfly species, the Mount               persist in diapause up to 5 to 7 years                 may occur. It is hypothesized that the
                                                  Charleston blue butterfly is dependent                  (Scott 1986, p. 28). The number of years               Mount Charleston blue butterfly could
                                                  on available and accessible nectar plant                the Mount Charleston blue butterfly can                diapause for multiple years (more than
                                                  species for the adult butterfly flight                  remain in diapause is unknown. Boyd                    2) as larvae and pupae until vegetation
                                                  period, when breeding and egg-laying                    and Murphy (2008, p. 21) suggest the                   conditions are favorable to support
                                                  occurs, and for larval development                      Mount Charleston blue butterfly ‘‘may                  emergence, flight, and reproduction


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37415

                                                  (Boyd and Murphy 2008, pp. 12, 21).                     or enhancement measures by non-                        Information Standards Under the
                                                  This could account in part for periodic                 Federal landowners. Where a landowner                  Endangered Species Act (published in
                                                  high numbers (as was documented by                      requests Federal agency funding or                     the Federal Register on July 1, 1994 (59
                                                  Weiss et al. in 1995) of butterflies                    authorization for an action that may                   FR 34271)), the Information Quality Act
                                                  observed at more sites in years with                    affect a listed species or critical habitat,           (section 515 of the Treasury and General
                                                  favorable conditions than in years with                 the consultation requirements of section               Government Appropriations Act for
                                                  unfavorable conditions. Additional                      7(a)(2) of the Act would apply, but even               Fiscal Year 2001 (Pub. L. 106–554; H.R.
                                                  future research regarding diapause                      in the event of a destruction or adverse               5658)), and our associated Information
                                                  patterns of the Mount Charleston blue                   modification finding, the obligation of                Quality Guidelines provide criteria,
                                                  butterfly is needed to further our                      the Federal action agency and the                      establish procedures, and provide
                                                  understanding of this subspecies.                       landowner is not to restore or recover                 guidance to ensure that our decisions
                                                                                                          the species, but to implement                          are based on the best scientific data
                                                  Critical Habitat                                        reasonable and prudent alternatives to                 available. They require our biologists, to
                                                  Background                                              avoid destruction or adverse                           the extent consistent with the Act and
                                                                                                          modification of critical habitat.                      with the use of the best scientific data
                                                     Critical habitat is defined in section 3                Under the first prong of the Act’s                  available, to use primary and original
                                                  of the Act as:                                          definition of critical habitat, areas                  sources of information as the basis for
                                                     (1) The specific areas within the                    within the geographical area occupied                  recommendations to designate critical
                                                  geographical area occupied by the                       by the species at the time it was listed               habitat.
                                                  species, at the time it is listed in                    are included in a critical habitat                       When we are determining which areas
                                                  accordance with the Act, on which are                   designation if they contain physical or                should be designated as critical habitat,
                                                  found those physical or biological                      biological features (1) which are                      our primary source of information is
                                                  features                                                essential to the conservation of the                   generally the information developed
                                                     (a) Essential to the conservation of the             species and (2) which may require                      during the listing process for the
                                                  species, and                                            special management considerations or                   species. Additional information sources
                                                     (b) Which may require special                        protection. For these areas, critical                  may include the recovery plan for the
                                                  management considerations or                            habitat designations identify, to the                  species, articles in peer-reviewed
                                                  protection; and                                         extent known using the best scientific                 journals, conservation plans developed
                                                     (2) Specific areas outside the                       and commercial data available, those                   by States and counties, scientific status
                                                  geographical area occupied by the                       physical or biological features that are               surveys and studies, biological
                                                  species at the time it is listed, upon a                essential to the conservation of the                   assessments, other unpublished
                                                  determination that such areas are                       species (such as space, food, cover, and               materials, or experts’ opinions or
                                                  essential for the conservation of the                   protected habitat). In identifying those               personal knowledge.
                                                  species.                                                physical or biological features within an                Habitat is dynamic, and species may
                                                     Conservation, as defined under                       area, we focus on the principal                        move from one area to another over
                                                  section 3 of the Act, means to use and                  biological or physical constituent                     time. We recognize that critical habitat
                                                  the use of all methods and procedures                   elements (primary constituent elements                 designated at a particular point in time
                                                  that are necessary to bring an                          such as roost sites, nesting grounds,                  may not include all of the habitat areas
                                                  endangered or threatened species to the                 seasonal wetlands, water quality, tide,                that we may later determine are
                                                  point at which the measures provided                    soil type) that are essential to the                   necessary for the recovery of the
                                                  pursuant to the Act are no longer                       conservation of the species. Primary                   species. For these reasons, a critical
                                                  necessary. Such methods and                             constituent elements are those specific                habitat designation does not signal that
                                                  procedures include, but are not limited                 elements of the physical or biological                 habitat outside the designated area is
                                                  to, all activities associated with                      features that provide for a species’ life-             unimportant or may not be needed for
                                                  scientific resources management such as                 history processes and are essential to                 recovery of the species. Areas that are
                                                  research, census, law enforcement,                      the conservation of the species.                       important to the conservation of the
                                                  habitat acquisition and maintenance,                       Under the second prong of the Act’s                 species, both inside and outside the
                                                  propagation, live trapping, and                         definition of critical habitat, we can                 critical habitat designation, will
                                                  transplantation, and, in the                            designate critical habitat in areas                    continue to be subject to: (1)
                                                  extraordinary case where population                     outside the geographical area occupied                 Conservation actions implemented
                                                  pressures within a given ecosystem                      by the species at the time it is listed,               under section 7(a)(1) of the Act, (2)
                                                  cannot be otherwise relieved, may                       upon a determination that such areas                   regulatory protections afforded by the
                                                  include regulated taking.                               are essential for the conservation of the              requirement in section 7(a)(2) of the Act
                                                     Critical habitat receives protection                 species. For example, an area currently                for Federal agencies to insure their
                                                  under section 7 of the Act through the                  occupied by the species but that was not               actions are not likely to jeopardize the
                                                  requirement that Federal agencies                       occupied at the time of listing may be                 continued existence of any endangered
                                                  ensure, in consultation with the Service,               essential to the conservation of the                   or threatened species, and (3) section 9
                                                  that any action they authorize, fund, or                species and may be included in the                     of the Act’s prohibitions on taking any
                                                  carry out is not likely to result in the                critical habitat designation. We                       individual of the species, including
                                                  destruction or adverse modification of                  designate critical habitat in areas                    taking caused by actions that affect
                                                  critical habitat. The designation of                    outside the geographical area occupied                 habitat. Federally funded or permitted
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  critical habitat does not affect land                   by a species only when a designation                   projects affecting listed species outside
                                                  ownership or establish a refuge,                        limited to its range would be inadequate               their designated critical habitat areas
                                                  wilderness, reserve, preserve, or other                 to ensure the conservation of the                      may still result in jeopardy findings in
                                                  conservation area. Such designation                     species.                                               some cases. These protections and
                                                  does not allow the government or public                    Section 4 of the Act requires that we               conservation tools will continue to
                                                  to access private lands. Such                           designate critical habitat on the basis of             contribute to recovery of this species.
                                                  designation does not require                            the best scientific and commercial data                Similarly, critical habitat designations
                                                  implementation of restoration, recovery,                available. Further, our Policy on                      made on the basis of the best available


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                                                  37416              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  information at the time of designation                  Pinyon 2011, p. 17; Andrew et al. 2013,                stages (egg, larva, pupa, adult) result
                                                  will not control the direction and                      pp. 20–61; Thompson et al. 2014, pp.                   from observations by surveyors, and
                                                  substance of future recovery plans,                     97–158). Dominant plant communities                    research to determine the requirements
                                                  habitat conservation plans (HCPs), or                   between these elevation bounds are                     and environmental conditions essential
                                                  other species conservation planning                     variable (Forest Service 1998, pp. 11–                 to the Mount Charleston blue butterfly.
                                                  efforts if new information available at                 12), but locations that support the                    In general, resources that are thought to
                                                  the time of these planning efforts calls                Mount Charleston blue butterfly are                    fulfill these requirements occur in open
                                                  for a different outcome.                                characterized by open areas bordered,                  areas with exposed soil and rock
                                                                                                          near, or surrounded by forests                         substrates with short, widely spaced
                                                  Physical or Biological Features                         composed of ponderosa pine (Pinus                      forbs and grasses. These areas allow
                                                     In accordance with section 3(5)(A)(i)                ponderosa), Great Basin bristlecone pine               light to reach the ground in order for
                                                  and 4(b)(1)(A) of the Act and regulations               (Pinus longaeva), and white fir (Abies                 adult nectar and larval host plants to
                                                  at 50 CFR 424.12, in determining which                  concolor) (Andrew et al. 2013, p. 5).                  grow.
                                                  areas within the geographical area                      These open forest conditions are often                    Adult Mount Charleston blue
                                                  occupied by the species at the time of                  created by disturbances such as fire and               butterflies have been documented
                                                  listing to designate as critical habitat,               avalanches (Weiss et al. 1995, p. 5;                   feeding on nectar from a number of
                                                  we consider the physical or biological                  DataSmiths 2007, p. 21; Boyd and                       different flowering plants, but most
                                                  features essential to the conservation of               Murphy 2008, pp. 23–24; Thompson et                    frequently the species reported are
                                                  the species and which may require                       al. 2014, pp. 97–158), but the open-                   Erigeron clokeyi (Clokey’s fleabane),
                                                  special management considerations or                    forest or non-forest conditions also exist             Eriogonum umbellatum var. versicolor
                                                  protection. These include, but are not                  as a function of occurring in higher                   (sulphur-flower buckwheat),
                                                  limited to:                                             subalpine elevations (i.e., above                      Hymenoxys cooperi (Cooper
                                                     (1) Space for individual and                         treeline) (for example, Nachlinger and                 rubberweed), and Hymenoxys lemmonii
                                                  population growth and for normal                        Reese 1996, Appendix I–64–72).                         (Lemmon bitterweed) (Weiss et al. 1997,
                                                  behavior;                                                  The Mount Charleston blue butterfly                 p. 11; Boyd and Murphy 2008, pp. 13,
                                                     (2) Food, water, air, light, minerals, or            is described to occur on relatively flat               16; Pinyon 2011, p. 17; Andrew 2013,
                                                  other nutritional or physiological                      ridgetops, gently sloping hills, or                    pp. 8; Thompson et al. 2014, pp. 117–
                                                  requirements;                                           meadows, where tree cover is absent to                 118). Densities of nectar plants generally
                                                     (3) Cover or shelter;                                less than 50 percent (Austin 1980, p. 22;              occur at more than 2 per square meter
                                                     (4) Sites for breeding, reproduction, or             Weiss et al. 1995, pp. 5–6; Weiss et al.               (m2) (0.2 per square foot (ft2)) for smaller
                                                  rearing (or development) of offspring;                  1997, pp. 10, 32–34; Boyd and Austin                   plants such as E. clokeyi and more than
                                                  and                                                     1999, p. 17; Boyd and Murphy 2008, p.                  0.1 per m2 (0.01 per ft2) for larger and
                                                     (5) Habitats that are protected from                 19; Andrews et al. 2013, p. 3; Thompson                taller plants such as Hymenoxys sp. and
                                                  disturbance or are representative of the                et al. 2014, p. 138). Boyd and Murphy                  E. umbellatum (Thompson et al. 2014,
                                                  historical, geographical, and ecological                (2008, p. 19) go on to suggest general                 p. 138). Nectar plants typically occur
                                                  distributions of a species.                             descriptions of Mount Charleston blue                  within 10 m (33 ft) of larval host plants
                                                     We derive the specific physical or                   butterfly habitat may have resulted                    and, in combination, provide nectar
                                                  biological features essential for the                   because of the areas where ‘‘collectors                during the adult flight period between
                                                  Mount Charleston blue butterfly from                    and observers disproportionately target                mid-July and early August (Thompson
                                                  studies of this subspecies’ habitat,                    . . . [to increase] opportunities to                   et al. 2014, p. 138). Other species that
                                                  ecology, and life history as described                  encounter’’ the Mount Charleston blue                  adult Mount Charleston blue butterflies
                                                  below. Additional information can be                    butterfly. However, until observations                 have been documented using as nectar
                                                  found in the final listing rule published               are made in areas that would alter our                 plants include Antennaria rosea (rosy
                                                  in the Federal Register on September                    understanding of where Mount                           pussy toes), Cryptantha species
                                                  19, 2013 (78 FR 57750). We have                         Charleston blue butterflies generally                  (cryptantha; the species C. angustifolia
                                                  determined that the Mount Charleston                    occur, we assume these locations and                   originally reported is likely a
                                                  blue butterfly requires the following                   characteristics are likely correlated with             misidentification because this species
                                                  physical or biological features:                        the ecological requirements of the                     occurs in much lower elevation desert
                                                  Space for Individual and Population                     Mount Charleston blue butterfly’s larval               habitat (Niles and Leary 2007, p. 26)),
                                                  Growth and for Normal Behavior                          host plants (Weiss et al. 1997, p. 22) and             Ericameria nauseosa (rubber
                                                                                                          adult nectar plants (described below).                 rabbitbrush), Erigeron flagellaris
                                                     The Mount Charleston blue butterfly                     Therefore, based on the information                 (trailing daisy), Gutierrezia sarothrae
                                                  is known to occur only in the high                      above, we identify flat or gently sloping              (broom snake weed), Monardella
                                                  elevations of the Spring Mountains,                     areas between 2,500 m (8,200 ft) and                   odoratissima (horsemint), Petradoria
                                                  located approximately 40 kilometers                     3,500 m (11,500 ft) elevation in the                   pumila var. pumila (rock-goldenrod),
                                                  (km) (25 miles (mi)) west of Las Vegas                  Spring Mountains as a physical or                      and Potentilla concinna var. concinna
                                                  in Clark County, Nevada (Austin 1980,                   biological feature essential to the Mount              (Alpine cinquefoil) (Boyd and Murphy
                                                  p. 20; Scott 1986, p. 410). Historically,               Charleston blue butterfly for space for                2008, pp. 13, 16; Thompson et al. 2014,
                                                  the Mount Charleston blue butterfly was                 individual and population growth and                   pp. 117–118).
                                                  detected at elevations as low as 1,830 m                for normal behavior.                                      Based on surveyors’ observations,
                                                  (6,000 ft) in the Spring Mountains                                                                             several species appear to be important
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                                                  (Austin 1980, p. 22; Austin 1981, p. 66;                Food, Water, Air, Light, Minerals, or                  food plants for the larval life stage of the
                                                  Weiss et al. 1995, p. 5). Currently, the                Other Nutritional or Physiological                     Mount Charleston blue butterfly.
                                                  Mount Charleston blue butterfly is                      Requirements                                           Therefore, we consider those plants on
                                                  presumed or known to occupy habitat                        The best scientific information                     which surveyors have documented
                                                  occurring between 2,500 m (8,200 ft)                    available regarding food, water, air,                  Mount Charleston blue butterfly eggs to
                                                  elevation and 3,500 m elevation (11,500                 light, minerals, and other nutritional or              be larval host or food plants (hereafter,
                                                  ft) (Austin 1980, p. 22; Weiss et al. 1997,             physiological requirements of the                      referred to as larval host plants). Based
                                                  p. 10; Boyd and Austin 1999, p. 17;                     Mount Charleston blue butterfly’s life                 on this, Astragalus calycosus var.


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37417

                                                  calycosus, Oxytropis oreophila var.                       Therefore, based on the information                  butterfly is early July to mid-August
                                                  oreophila, and Astragalus platytropis                   above, we identify open habitat that                   with a peak in late July, although the
                                                  are all considered larval host plants for               permits light to reach the ground, nectar              subspecies has been observed as early as
                                                  the Mount Charleston blue butterfly                     plants for adults and host plants for                  mid-June and as late as mid-September
                                                  (Weiss et al. 1997, p. 10; Austin and                   larvae, and exposed soil and rock                      (Austin 1980, p. 22; Boyd and Austin
                                                  Leary 2008, p. 86; Andrew et al. 2013,                  substrates with short, widely spaced                   1999, p. 17; Thompson et al. 2014, pp.
                                                  pp. 7–8; Thompson et al. pp. 121–131)                   forbs and grasses to be physical or                    104–116). Breeding opportunities for
                                                  (see ‘‘Sites for Breeding, Reproduction,                biological features for this subspecies                individual Mount Charleston blue
                                                  or Rearing (or Development) of                          that provide food, water, air, light,                  butterflies are presumably short in
                                                  Offspring,’’ below, for more details).                  minerals, or other nutritional or                      duration during its adult life stage,
                                                  Note that in the final listing rule for the             physiological requirements.                            which may range from 2 to 12 days, as
                                                  Mount Charleston blue butterfly (78 FR                                                                         has been reported for other closely
                                                                                                          Cover or Shelter
                                                  57750; September 19, 2013), we                                                                                 related species (Arnold 1983, Plebejinae
                                                  reported Astragalus lentiginosus var.                     The study and delineation of habitat                 in Table 44). Therefore, the Mount
                                                  kernensis (Kern plateau milkvetch) as a                 for many butterflies has often been                    Charleston blue butterfly may generally
                                                  larval host plant (Andrew et al. 2013, p.               associated with larval host plants,                    be constrained to areas where adult
                                                  3); however, this host plant was                        breeding resources, and nectar sources                 nectar resources are in close proximity
                                                  subsequently determined to be                           for adults (Dennis 2004, p. 37). Similar               to plants on which to breed and lay
                                                  Oxytropis oreophila var. oreophila                      to other butterfly species (Dennis 2004,               eggs. Researchers have documented
                                                  (mountain oxytrope) (Thompson et al.                    p. 37), there is little to no information              Mount Charleston blue butterfly
                                                  2014, pp. 97–158), and has been                         available about the structural elements                breeding behavior in close spatial
                                                  described as such in this final rule.                   required by the Mount Charleston blue                  association with larval host and adult
                                                  Future surveys and research may                         butterfly for cover or shelter. However,               nectar plants (Thompson et al. 2014, pp.
                                                  document the importance of other plant                  we infer that, because of their low                    121–125).
                                                  species as food resources for Mount                     vagility, cover or shelter used by any life               The presence of Mount Charleston
                                                  Charleston blue butterfly larvae.                       stage of the Mount Charleston blue                     blue butterfly adult nectar plants, such
                                                  Densities of host plants are generally                  butterfly will be in close association or              as Erigeron clokeyi, appears to be
                                                  greater than two per m2 (0.2 per ft2)                   proximity to larval or adult food                      strongly associated with its larval host
                                                  (Weiss 1997, p. 34; Andrew et al. 2013,                 resources in its habitat.                              plants (Andrew et al. 2013, p. 9). Female
                                                                                                            For larvae, diapause is generally                    Mount Charleston blue butterflies have
                                                  p. 9; Thompson et al. 2014, p. 138).
                                                                                                          thought to occur at the base of the larval             been observed ovipositing a single egg
                                                     In addition, the Mount Charleston                    host plant or in the surrounding                       per host plant, which appears to weakly
                                                  blue butterfly requires open canopy                     substrate (Emmel and Shields 1980, p.                  adhere to the host plant surface; this has
                                                  cover (open forest). Specifically, the                  132). Mount Charleston blue butterfly                  been observed most typically within
                                                  Mount Charleston blue butterfly                         larvae feed after diapause. Like other                 basal leaves (Thompson et al. 2014, p.
                                                  requires areas where tree cover is absent               butterflies, after larvae become large                 129). Ovipositing by butterflies on
                                                  or low. This may be due to ecological                   enough, they pupate (Scott 1986, p. 24).               plants is not absolute evidence of larval
                                                  requirements of the larval host plants or               Pupation most likely occurs in the                     feeding or survival (Austin and Leary
                                                  adult nectar plants or due to the flight                ground litter near a main stem of the                  2008, p. 1), but may provide a stronger
                                                  behavior of the Mount Charleston blue                   larval host plant (Emmel and Shields                   inference in combination with close
                                                  butterfly. As with most butterflies, the                1980, p. 132). After pupation, adults                  adult associations and repeated
                                                  Mount Charleston blue butterfly                         feed and mate in the same areas where                  observations. Presuming the Mount
                                                  typically flies during sunny conditions,                larvae diapause and pupation occurs. In                Charleston blue butterfly’s diapause
                                                  which are particularly important for this               addition, no specific areas for overnight              behavior is similar to other Shasta blue
                                                  subspecies given the cooler air                         roosting by adult Mount Charleston blue                butterflies, the Mount Charleston blue
                                                  temperatures at high elevations in the                  butterflies have been reported. However,               butterfly diapauses as an egg or as a
                                                  Spring Mountains of Nevada (Weiss et                    adults have been observed using areas                  larva at the base of its egg and larval
                                                  al. 1997, p. 31).                                       in moderately dense forest stands                      host plants or in the surrounding
                                                     The areas where the Mount                            immediately adjacent to low-cover areas                substrate (Emmel and Shields 1980, p.
                                                  Charleston blue butterfly occurs often                  with larval host and nectar plants                     132; Ferris and Brown 1981, pp. 203–
                                                  have shallow exposed soil and rock                      (Thompson et al. 2014, p. 120).                        204; Scott 1986, p. 411).
                                                  substrates with short, widely spaced                      Therefore, based on the information                     In 1987, researchers documented two
                                                  forbs and grasses (Weiss et al. 1997, pp.               above, we identify areas with larval host              occasions when Mount Charleston blue
                                                  10, 27, and 31; Boyd 2005, p. 1; Service                plants and adult nectar plants, and areas              butterflies oviposited on Astragalus
                                                  2006a, p. 1; Kingsley 2007, pp. 9–10;                   immediately adjacent to these plants, to               calycosus var. calycosus (= var. mancus)
                                                  Boyd and Murphy 2008, p. 19; Pinyon                     be a physical or biological feature for                (Austin and Leary 2008, p. 86). Based on
                                                  2011, pp. 17, 21; Andrew et al. 2013, pp.               this subspecies that provides cover or                 this reported documentation and
                                                  9–13; Thompson et al. 2014, pp. 137–                    shelter.                                               subsequent observations of adult Mount
                                                  143). These vegetative characteristics                                                                         Charleston blue butterflies associations
                                                  may be important because they would                     Sites for Breeding, Reproduction, or                   with the plant, Astragalus calycosus var.
                                                  not impede the Mount Charleston blue                    Rearing (or Development) of Offspring                  calycosus was the only known larval
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  butterfly’s low flight behavior (Weiss et                 The adult Mount Charleston blue                      host plant for the Mount Charleston
                                                  al. 1997, p. 31) (reported to be 15                     butterfly has specific site requirements               blue butterfly (Austin and Leary 2008,
                                                  centimeters (cm) (5.9 inches (in)) or less              for its flight period when breeding and                p. 86). In 2011 and 2012, researchers
                                                  (Thompson et al. 2014, p. 118)). Some                   reproduction occur, and these                          from the University of Nevada Las Vegas
                                                  taller grass or forb plants may be present              requirements may be correlated to its                  observed female Mount Charleston blue
                                                  when their density is less than five per                limited vagility and short adult life                  butterflies landing on and ovipositing
                                                  m2 (Thompson et al. 2014, pp. 138–                      stage. The typical flight and breeding                 on Oxytropis oreophila var. oreophila
                                                  139).                                                   period for the Mount Charleston blue                   (mountain oxytrope) and Astragalus


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                                                  37418              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  platytropis (broadkeeled milkvetch),                    replacement of dominant overstory                         In contrast, at lower elevation
                                                  which presumably also function as                       vegetation (Barrett et al. 2010, p. 15).               locations where the Mount Charleston
                                                  larval host plants (Andrew et al. 2013,                 Fire regime condition is ‘‘. . .                       blue butterfly is known or presumed to
                                                  pp. 4–12; Thompson et al. 2014, pp.                     landscape-level measure of ecological                  occur (Las Vegas Ski and Snowboard
                                                  122–134). Andrew et al. (2013, p. 5) also               departure between the pre-settlement                   Resort (LVSSR), Foxtail, Youth Camp,
                                                  documented Mount Charleston blue                        and current distributions of vegetation                Gary Abbott, Lower LVSSR Parking, Lee
                                                  butterfly eggs on all three plant species.              succession classes and fire regimes for                Meadows, Bristlecone Trail, and lower
                                                  Other subspecies of Shasta blue                         a given area’’ (Provencher 2008, p. 3                  Bonanza Trail), disturbance from fire is
                                                  butterflies have been reported to use                   citing Hann and Bunnell 2001). Fire                    likely to occur less than every 35 years
                                                  more than one plant during larval                       regimes groups can be broadly                          with more than 75 percent being high-
                                                  development, including Astragalus                       categorized for Mount Charleston blue                  severity fires, or is likely to occur more
                                                  platytropis (Austin and Leary 2008, pp.                 butterfly locations based on elevation.                than every 35 years at mixed-severity
                                                  85–86). Because the subspecies has been                 Higher elevation locations, generally                  and low-severity (fire regime group 2
                                                  documented ovipositing on these three                   above 2,740 m (9,000 ft) elevation, occur              and 3 in Provencher 2008, Appendix II;
                                                  plant species and other subspecies of                   in fire regime groups 4 and 5                          see example BPS above). At these lower
                                                  Shasta blue butterflies are known to use                (Provencher 2008, Appendix II; e.g.,                   elevation habitats, fire regime
                                                  multiple larval host plants, we consider                BPS Rocky Mountain Alpine Fell-Field                   conditions have departed further from
                                                  Astragalus calycosus var. calycosus,                    and Inter-Mountain Basins Subalpine                    historic conditions (Provencher 2008,
                                                  Oxytropis oreophila var. oreophila, and                 Limber-Bristlecone Pine Woodland).                     Table 4, 5 and Appendix II). Lack of fire
                                                  Astragalus platytropis to be the host                   Lower elevation locations, generally                   due to fire exclusion or reduction in
                                                  plants used during Mount Charleston                     below 2,740 m (9,000 ft), occur in fire                natural fire cycles, as has been
                                                  blue butterfly larval development.                      regime groups 2 and 3 (Provencher                      demonstrated in the Spring Mountains
                                                     Therefore, based on the information                  2008, Appendix II; e.g., BPS Inter-                    (Entrix 2008, p. 113) and other
                                                  above, we identify areas with larval host               Mountain Basins Aspen-Mixed Conifer                    proximate mountain ranges (Amell
                                                  plants, especially Astragalus calycosus                 Forest and Woodland, and Rocky                         2006, pp. 2–3), has likely resulted in
                                                  var. calycosus, Oxytropis oreophila var.                Mountain Mesic Montane Mixed                           long-term successional changes,
                                                  oreophila, or Astragalus platytropis, and               Conifer Forest and Woodland).                          including increased forest area and
                                                  adult nectar plants, especially Erigeron                                                                       forest structure (higher canopy cover,
                                                                                                             In higher elevation locations where
                                                  clokeyi, Eriogonum umbellatum var.                                                                             more young trees, and more trees
                                                  versicolor, Hymenoxys cooperi, and                      the Mount Charleston blue butterfly is
                                                                                                          known or presumed to occur (South                      intolerant of fire) (Nachlinger and Reese
                                                  Hymenoxys lemmonii, during the flight                                                                          1996, p. 37; Amell 2006, pp. 6–9; Boyd
                                                  period of the Mount Charleston blue                     Loop Trail, Mummy Springs (North
                                                                                                          Loop Trail), upper Bonanza Trail, and                  and Murphy 2008, pp. 22–28; Denton et
                                                  butterfly to be a physical or biological                                                                       al. 2008, p. 21; Abella et al. 2012, pp.
                                                  feature for this subspecies that provides               Griffith Peak), disturbance from fire is
                                                                                                          relatively infrequent, with variable                   128, 130) at these lower elevation
                                                  sites for breeding, reproduction, or                                                                           locations. Without fire in some of these
                                                  rearing (or development) of offspring.                  severity (fire regime groups 4 and 5 in
                                                                                                          Provencher 2008, Appendix II; see                      locations, herbs and small forbs may be
                                                  Habitats That Are Protected From                        example BPS above), occurring every 35                 nearly absent as the vegetation moves
                                                  Disturbance or Are Representative of the                to 200 years at a high severity, or                    towards later successional classes with
                                                  Historical, Geographical, and Ecological                occurring more frequently than every                   increasing tree overstory cover
                                                  Distributions of the Subspecies                         200 years with a variable but generally                (Provencher 2008, Appendix II).
                                                     Habitat for the Mount Charleston blue                high severity (Barrett et al. 2010, p. 15).            Therefore, habitat at the lower elevation
                                                  butterfly that is protected from                        Other disturbances likely to occur at the              Mount Charleston blue butterfly
                                                  disturbance or representative of the                    high-elevation Mount Charleston blue                   locations is more dissimilar from what
                                                  historical, geographical, and ecological                butterfly locations are from wind and                  would be expected based on historic fire
                                                  distributions of the subspecies occurs in               other weather phenomena (Provencher                    regimes (Provencher 2008, Table 4, 5
                                                  locations with limited canopy cover that                2008, Appendix II). At these high-                     and Appendix II). Thus, in order for
                                                  comprise the appropriate species of                     elevation habitats, fire regime                        Mount Charleston blue butterfly
                                                  larval host and adult nectar plants.                    conditions are relatively similar to                   individuals and populations to be
                                                  Although some of these open locations                   historic conditions (Provencher 2008,                  maintained at lower elevation locations,
                                                  occur due to wind and other                             Table 4, 5 and Appendix II), so                        active habitat management will likely be
                                                  environmental stresses that inhibit tree                vegetation succession should be within                 necessary.
                                                  and shrub growth, fire is one of the most               the normal range of variation.                            The Carpenter 1 Fire in July 2013
                                                  prevalent disturbances across the                       Vegetation succession at some high-                    burned into habitat of the Mount
                                                  landscape of the Mount Charleston blue                  elevation areas that currently lack trees              Charleston blue butterfly along the
                                                  butterfly. To better understand the fire                may cause these areas to become more                   ridgelines between Griffith Peak and
                                                  frequency and severity as it relates to                 forested, but other areas that are scoured             South Loop spanning a distance of
                                                  historic and current conditions at                      by wind or exposed to other severe                     approximately 3 miles (5 km). Within
                                                  Mount Charleston blue butterfly                         environmental stresses may remain non-                 this area, low-, moderate-, or high-
                                                  locations, we characterized locations                   forested (for example, South Loop Trail;               quality patches of Mount Charleston
                                                  using biophysical setting (BPS) with                    Andrew et al. 2013, pp. 20–27)                         blue butterfly habitat intermixed with
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  associated fire regime groups and fire                  (Provencher and Anderson 2011, pp. 1–                  non-habitat have been documented
                                                  regime condition developed by                           116; NVWAP 2012, p. 177). Thus, we                     (Pinyon 2011, Figure 8 and 9). The
                                                  Provencher (2008, pp. 1–25 and                          expect higher elevation locations will be              majority of Mount Charleston blue
                                                  Appendix II; Barrett et al. 2010, p. 15).               able to continue to provide open areas                 butterfly moderate- or high-quality
                                                  Fire regime groups are classified by fire               with the appropriate vegetation                        habitat through this area was classified
                                                  frequency, which is the average number                  necessary to support individuals and                   as having a very low or low soil-burn
                                                  of years between fires, and fire severity,              populations of Mount Charleston blue                   severity (Kallstrom 2013, p. 4). The
                                                  which represents the percent                            butterflies.                                           characteristics of Mount Charleston blue


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                           37419

                                                  butterfly habitat in this area of widely                predicted to continue into the next                    responses to increasing temperatures in
                                                  spaced grass and forbs, exposed soil and                century (Seager et al. 2007, p. 1181).                 field and lab settings are variable, so
                                                  rocks, and low tree canopy cover result                 Garfin et al. (2013, p. 3) indicate that               specific predictions of how climate
                                                  in lower fuel loading and continuity,                   average daily temperatures have been                   change will impact the various
                                                  which likely contributed to its low burn                higher and drought has been more                       microhabitats needed for the Mount
                                                  severities.                                             severe from 2001 to 2010, when                         Charleston blue butterfly’s life stages are
                                                     The effects of the Carpenter 1 Fire on               compared to average decadal                            unknown. However, based on predicted
                                                  Mount Charleston blue butterfly habitat                 occurrences from 1901 to 2010;                         increases in temperatures and patterns
                                                  ranged from low or no apparent effects                  however, ‘‘multiple drought events in                  of extreme precipitation and drought for
                                                  to nearly complete elimination of plant                 the preceding 2,000 years . . . exceeded               alpine areas of the Southwest, we
                                                  cover (Herrmann 2014, p. 18). Based on                  the most severe and sustained droughts                 believe that climate change will impact
                                                  a description of monitoring in 2014, the                from 1901 to 2010’’ (Garfin et al. 2013,               some biological aspects of the Mount
                                                  negative effects of the fire on the Mount               p. 3). In the past 60 years, the frequency             Charleston blue butterfly and its high-
                                                  Charleston blue butterfly and its habitat               of storms with extreme precipitation has               elevation habitat. A negative response to
                                                  appear to be inversely related to the                   increased in Nevada by 29 percent                      such climate change patterns may
                                                  quality of habitat, where patches of                    (Madsen and Figdor 2007, p. 37). These                 exacerbate threats already facing the
                                                  high-quality habitat with low tree                      trends are anticipated to continue and                 subspecies as a result of its small
                                                  canopy cover were likely less affected                  include warmer summer and fall                         population size and threats to its
                                                  (Herrmann 2014, pp. 3–21). Overall,                     temperatures; more frequent and intense                habitat.
                                                  host and nectar plants were diminished                  winter precipitation; decreased late-                     Based on the information above, we
                                                  in cover and abundance within the burn                  season snowpack; and hotter, more                      identify habitat where natural
                                                  perimeter but are still present and                     severe, and more frequent droughts                     disturbance, such as fire that creates and
                                                  recovering with new growth (Herrmann                    (Garfin et al. p. 6).                                  maintains openings in the canopy (fire
                                                  2014, pp. 17–19). Habitat within the                       Changes in local southern Nevada                    regime groups 2, 3, 4, and 5), to be a
                                                  burn perimeter will likely improve                      climatic patterns cannot be definitively               physical or biological feature for this
                                                  based upon habitat conditions in a                      tied to global climate change; however,                subspecies that provides habitats that
                                                  nearby historic burn area (Herrmann                     they are consistent with IPCC-predicted                are representative of the historical,
                                                  2014, pp. 17–19). Surveys in 2014 have                  patterns of extreme precipitation,                     geographical, and ecological
                                                  confirmed that the Mount Charleston                     warmer than average temperatures, and                  distributions of the subspecies.
                                                  blue butterfly survived and is present                  drought (Redmond 2007, p. 1), and
                                                                                                                                                                 Primary Constituent Elements for the
                                                  within and adjacent areas outside the                   Garfin et al. (2013, p. 448) concurred
                                                                                                                                                                 Mount Charleston Blue Butterfly
                                                  fire perimeter (Herrmann 2014, p. 3).                   with the 2009 National Climate
                                                     Recreational activities, trail-associated            Assessment (Karl et al. 2009, p. 131)                     Under the Act and its implementing
                                                  erosion, and the introduction of weeds                  that ‘‘increasing temperatures and                     regulations, we are required to identify
                                                  or invasive grasses are likely the greatest             shifting precipitation patterns will drive             the physical or biological features
                                                  threats that could occur within areas of                declines in high-elevation ecosystems                  essential to the conservation of the
                                                  Mount Charleston blue butterfly habitat                 [of the Southwest] such as alpine forests              Mount Charleston blue butterfly in areas
                                                  burned by the Carpenter 1 Fire. Other                   and tundra.’’ In general, we expect these              occupied at the time of listing, focusing
                                                  potential threats to the Mount                          same trends to occur in the Spring                     on the features’ primary constituent
                                                  Charleston blue butterfly habitat                       Mountains, but effects on the Mount                    elements. Primary constituent elements
                                                  associated with the fire may include                    Charleston blue butterfly or its habitat               are those specific elements of the
                                                  trampling or grazing of new larval host                 from climate change will vary across the               physical or biological features that
                                                  or nectar plants by feral horses (Equus                 subspecies’ range because of                           provide for a species’ life-history
                                                  ferus) and elk (Cervus elaphus).                        topographic heterogeneity (Luoto and                   processes and are essential to the
                                                  However, use of this Mount Charleston                   Heikkinen 2008, p. 487).                               conservation of the species.
                                                  blue butterfly habitat in these                            Analyses of climate change impacts to                  Based on our current knowledge of
                                                  watersheds by feral horses and elk is                   other invertebrate species suggest                     the physical or biological features and
                                                  currently very low.                                     different aspects of a species’ biology                habitat characteristics required to
                                                     We are unaware of site- or species-                  may be affected, including physiological               sustain the species’ life-history
                                                  specific analyses of climate change for                 and morphological responses (Roy and                   processes, we determine that the
                                                  the Spring Mountains in Nevada or                       Sparks 2000; Altermatt 2012); shifts in                primary constituent elements specific to
                                                  impacts to the Mount Charleston blue                    spatial patterns and availability of                   the Mount Charleston blue butterfly are:
                                                  butterfly; therefore, we rely on general                refugia (Beaumont and Hughes 2002;                        (i) Primary Constituent Element 1:
                                                  predictions of climate change for alpine                Peterson et al. 2004; Heikkinen et al.                 Areas of dynamic habitat between 2,500
                                                  areas in the Southwest and predictions                  2010; Mattila et al. 2011; Oliver et al.               m (8,200 ft) and 3,500 m (11,500 ft)
                                                  of climate change impacts to other                      2012); shifts in temporal patterns (for                elevation with openings or where
                                                  invertebrate species to assess potential                example, flight periods) (Aldridge et al.              disturbance provides openings in the
                                                  impacts of climate change to the Mount                  2011; Altermatt 2012); and shifts in host              canopy that have no more than 50
                                                  Charleston blue butterfly and its habitat.              and nectar plant phenology and                         percent tree cover (allowing sunlight to
                                                  The Intergovernmental Panel on Climate                  availability. Because the magnitude and                reach the ground); widely spaced, low
                                                  Change (IPCC) has high confidence in                    duration of different aspects of climate               (less than 15 cm (0.5 ft) in height) forbs
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  predictions that extreme weather events,                change are expected to be seasonally                   and grasses; and exposed soil and rock
                                                  warmer temperatures, and regional                       variable (Garfin et al. 2013, pp. 5–6),                substrates. When taller grass and forb
                                                  drought are very likely to increase in the              impacts to microhabitats and, therefore,               plants greater than or equal to 15 cm
                                                  northern hemisphere as a result of                      different butterfly life stages also are               (0.5 ft) in height are present, the density
                                                  climate change (IPCC 2007, pp. 15–16).                  expected to be variable (Kingsolver et al.             is less than five per m2 (50 per ft2).
                                                  Climate models show the southwestern                    2011; Radchuk et al. 2013). Results from                  (ii) Primary Constituent Element 2:
                                                  United States has transitioned into a                   Kingsolver et al. 2011 and Radchuk et                  The presence of one or more species of
                                                  more arid climate of drought that is                    al. 2013 indicate species and life-stage               host plants required by larvae of the


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                                                  37420              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  Mount Charleston blue butterfly for                     habitat resulting from trampling of host               Conservation Agreement, and the
                                                  feeding and growth. Known larval host                   and nectar plants as well as the direct                Service is a cooperator in this process.
                                                  plants are Astragalus calycosus var.                    mortality of Mount Charleston blue                     However, as the Conservation
                                                  calycosus, Oxytropis oreophila var.                     butterfly where it is present (Boyd and                Agreement is currently under revision,
                                                  oreophila, and Astragalus platytropis.                  Murphy 2008, pp. 7 and 27; Andrew et                   and completion has not occurred prior
                                                  Densities of host plants must be greater                al. 2013, pp. 37–66; Thompson et al.                   to publication of this final rule, it is
                                                  than two per m2 (0.2 per ft2).                          2014, pp. 150–152).                                    unclear what level of protection or
                                                     (iii) Primary Constituent Element 3:                    Threats to the Mount Charleston blue                conservation benefit the final SNMRA
                                                  The presence of one or more species of                  butterfly and its habitat and                          Conservation Agreement will provide
                                                  nectar plants required by adult Mount                   recommendations for ameliorating them                  for the Mount Charleston blue butterfly.
                                                  Charleston blue butterflies for                         have been described for each location
                                                  reproduction, feeding, and growth.                      and the subspecies in general (Boyd and                Criteria Used To Identify Critical
                                                  Common nectar plants include Erigeron                   Murphy 2008, pp. 1–41; Andrew et al.                   Habitat
                                                  clokeyi, Hymenoxys lemmonii,                            2013 pp. 1–93; Thompson et al. 2014,                      As required by section 4(b)(2) of the
                                                  Hymenoxys cooperi, and Eriogonum                        pp. 97–158, 267–288). Management                       Act, we use the best scientific data
                                                  umbellatum var. versicolor. Densities of                activities that could facilitate                       available to designate critical habitat.
                                                  nectar plants must occur at more than                   ameliorating these threats include (but                We review available information
                                                  two per m2 (0.2 per ft2) for smaller                    are not limited to): (1) Reestablishment               pertaining to the habitat requirements of
                                                  plants, such as E. clokeyi, and more than               and maintenance of habitat and                         the species. In accordance with the Act
                                                  0.1 per m2 (0.01 per ft2) for larger and                landscape connectivity within and                      and its implementing regulation at 50
                                                  taller plants, such as Hymenoxys sp. and                between populations; (2) habitat                       CFR 424.12(e), we consider whether
                                                  E. umbellatum. Nectar plants typically                  restoration and control of invasive                    designating additional areas—outside of
                                                  occur within 10 m (33 ft) of larval host                nonnative species; (3) monitoring of                   the geographical area currently
                                                  plants and, in combination, provide                     ongoing habitat loss and nonnative                     occupied—are necessary to ensure the
                                                  nectar during the adult flight period                   plant invasion; (4) management of                      conservation of the species. We are
                                                  between mid-July and early August.                      recreational activities to protect and                 designating critical habitat in areas
                                                  Additional nectar sources that could be                 prevent disturbance of Mount                           within the geographical area occupied
                                                  present in combination with the                         Charleston blue butterflies to reduce                  by the subspecies at the time of listing
                                                  common nectar plants include                            loss or deterioration of habitat; (5)                  in October 2013 because such areas
                                                  Antennaria rosea, Cryptantha sp.,                       maintenance of the Forest Service                      contain the physical or biological
                                                  Ericameria nauseosa ssp., Erigeron                      closure order prohibiting collection of                features that are essential to the
                                                  flagellaris, Guitierrezia sarothrae,                    the Mount Charleston blue butterfly and                conservation of the subspecies. We are
                                                  Monardella odoratissima, Petradoria                     other blue butterfly species without a                 not designating areas outside the
                                                  pumila var. pumila, and Potentilla                      permit, in order to minimize the                       geographical area occupied by the
                                                  concinna var. concinna.                                 detrimental effects of collecting rare                 subspecies at the time of listing because
                                                                                                          species; (6) removal or exclusion of feral             they would provide limited benefit and
                                                  Special Management Considerations or                                                                           are not needed to conserve the species.
                                                                                                          horses in Mount Charleston blue
                                                  Protection                                                                                                        When determining the possible
                                                                                                          butterfly habitat; and (7) providing
                                                     When designating critical habitat, we                educational and outreach opportunities                 distribution of areas that meet the
                                                  assess whether the specific areas within                to inform the public regarding potential               definition of critical habitat for the
                                                  the geographical area occupied by the                   adverse impacts to the species or                      Mount Charleston blue butterfly, we
                                                  subspecies at the time of listing contain               sensitive habitat from disturbance                     considered all known suitable habitat
                                                  features which are essential to the                     caused by recreational activities in the               patches remaining within the
                                                  conservation of the subspecies and                      summer or winter. These management                     subspecies’ historical range from
                                                  which may require special management                    activities will protect the physical and               Willow Creek, south to Griffith Peak
                                                  considerations or protection. Special                   biological features by avoiding or                     within the SMNRA. For the Mount
                                                  management considerations or                            minimizing activities that negatively                  Charleston blue butterfly, we included
                                                  protection may be necessary to                          affect the Mount Charleston blue                       locations of known populations and
                                                  eliminate or reduce the magnitude of                    butterfly and its habitat while                        suitable habitat immediately adjacent to,
                                                  threats that affect the subspecies.                     promoting activities that are beneficial               or areas between, known populations
                                                  Threats to the Mount Charleston blue                    to them. Additionally, management of                   that provide connectivity between these
                                                  butterfly and its features identified in                critical habitat lands will help maintain              locations.
                                                  the final listing rule for the Mount                    or enhance the necessary environmental                    This section provides the details of
                                                  Charleston blue butterfly (78 FR 57750;                 components, foster recovery, and                       the process we used to delineate the
                                                  September 19, 2013) include: (1) Loss                   sustain populations currently in                       critical habitat for the Mount Charleston
                                                  and degradation of habitat due to                       decline.                                               blue butterfly. The areas designated as
                                                  changes in natural fire regimes and                        All of the areas designated as critical             critical habitat in this final rule are areas
                                                  succession; (2) implementation of                       habitat occur within the Spring                        where the Mount Charleston blue
                                                  recreational development projects and                   Mountains National Recreation Area,                    butterfly occur and that contain the
                                                  fuels reduction projects; (3) increases of              and are covered by the 1998 Spring                     physical and biological features
                                                  nonnative plants; (4) collection; (5)                   Mountains National Recreation Area                     essential to the conservation of the
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                                                  small population size and few                           (SMNRA) Conservation Agreement. To                     species. These areas have been
                                                  occurrences; and (6) exacerbation of                    date, the Conservation Agreement has                   identified through incidental
                                                  other threats from the impacts of climate               not always been effective in protecting                observations and systematic surveys or
                                                  change, which is anticipated to increase                existing habitat for the Mount                         studies occurring over a period of
                                                  drought and extreme precipitation                       Charleston blue butterfly or yielding                  several years. This information comes
                                                  events. In addition to these threats, feral             significant conservation benefits for the              from multiple sources, such as reports,
                                                  horses present an additional threat by                  species. The Forest Service is currently               journal articles, and Forest Service
                                                  causing the loss and degradation of                     in the process of revising the SMNRA                   project information. Based on this


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                           37421

                                                  information, we are designating critical                important for butterfly dispersal. In                  systematic method to identify areas that
                                                  habitat in specific areas within the                    contrast to distances moved within a                   encompass the physical and biological
                                                  geographical area currently occupied by                 single patch of habitat, which has been                features essential to the conservation of
                                                  the Mount Charleston blue butterfly that                estimated to be between 10 to 100 m (33                the Mount Charleston blue butterfly and
                                                  contain the physical and biological                     to 330 ft), dispersal can be defined as                they provide boundaries that are easy to
                                                  features essential to the conservation of               movement between patches of habitat                    describe and interpret for the general
                                                  the species.                                            (Bowler and Benton 2005, p. 207).                      public and land management agencies.
                                                     We delineated the final critical habitat             Studies suggest that closely related                   Critical habitat boundaries were derived
                                                  boundaries using the following steps:                   butterfly taxa have more similar                       from the outer boundary of the polygons
                                                     (1) We compiled and mapped Mount                     mobility than distantly related butterfly              selected from the PLSS quarter-quarter
                                                  Charleston blue butterfly observation                   taxa (Burke et al. 2011, p. 2284). We                  sections in the previous steps.
                                                  locations (points) and polygons of                      determined the approximate maximum                        (7) We removed locations from the
                                                  habitat that included larval host and                   dispersal distance of the Mount                        critical habitat designation based on
                                                  nectar plants, or only larval host plants               Charleston blue butterfly to be 1,000 m                information received through the notice-
                                                  delineated in previous studies or                       (3,281 ft) based on documented                         and-comment process on the proposed
                                                  surveys from Austin (1980), Weiss et al.                movement distances observed during                     rule. Some of these locations overlap
                                                  (1997), Service (2006b), DataSmiths                     mark-and-recapture studies of lycaenid                 slightly with Mount Charleston blue
                                                  (2007), Newfields (2008), SWCA (2008),                  butterflies described to be sedentary. Of              butterfly habitat previously mapped by
                                                  Carsey et al. (2011), Holthuijzen et al.                the studies using mark-and-recapture                   DataSmiths 2007. These locations are at
                                                  (2011), Pinyon (2011), Andrew et al.                    studies that we examined, we found that                the fringe of previously mapped habitat
                                                  (2013), Herrmann (2014), and                            the furthest distances ranged between                  and most of these areas lack one or more
                                                  Thompson et al. (2014). The location                    300 and 1,500 m (987 and 4,920 ft)                     of the physical or biological features or
                                                  information from the data sources used                  (Bink 1992 as referenced in Sekar 2012,                are heavily impacted by public
                                                  provided enough information to identify                 Table 2; Saarinen 1993 as cited in                     recreation and facilities management.
                                                  specific geographic areas by                            Komonen et al. 2008, p. 132; Peterson                  We removed a 25-m (82-ft) perimeter
                                                  corroborating narratively described                     1996, p. 1990; Lewis et al. 1997, pp.                  distance around established boundaries
                                                  locations and mapped locations. These                   283, 288–289; Peterson 1997, p. 175;                   or developed infrastructure that is
                                                  surveys are the best available data on                  Fischer et al. 1999, pp. 43 and 46;                    consistent with the conclusions of a
                                                  the current distribution, habitat, and                  Baguette et al. 2000, p. 103; Bourn and                study on the Karner blue butterfly
                                                  features that provide the basis for                     Warren 2000, p. 9; Franzén and Ranius                 (Lycaeides melissa samuelis), which
                                                  identifying areas of critical habitat for               2004, p. 130; Krauss et al. 2004, p. 358;              indicated that habitat within short
                                                  the Mount Charleston blue butterfly.                    Binzenhöfer et al. 2008, p. 267;                      distances of recreational features may be
                                                     (2) Observed locations of Mount                      Chuluunbaatar et al. 2009, p. 60; Barua                insufficient to offset recreational
                                                  Charleston blue butterflies described                   et al. 2011, p. 44; Hovestadt et al. 2011,             impacts on butterfly behavior (Bennett
                                                  above were used to create larger                        p. 1073; COSEWIC 2012, p. 30).                         et al. 2010, p. 27; Bennett et al. 2013,
                                                  polygons of suitable habitat by buffering               Therefore, we approximated                             pp. 1794–1795). This distance also is
                                                  observed locations by 100 m (330 ft).                   connectivity corridors by buffering                    consistent with observations that
                                                  These polygons assumed that suitable                    polygons of suitable habitat by 500 m                  impacts associated with the
                                                  habitat was present up to 100 m (330 ft)                (2,461 ft), which allowed us to                        campgrounds, day-use areas, and roads
                                                  around an observed location, because it                 determine if polygons of suitable habitat              tend to be concentrated within a 25-m
                                                  is estimated that individual Mount                      were within the approximate 1,000 m                    (82-ft) buffer (Cole 1993, p. 111; Cole
                                                  Charleston blue butterflies can utilize                 (3,281 ft) dispersal distance of each                  2004, p. 55; Monz et al.2010, p. 556;
                                                  areas between 10 to 100 m (33 to 330 ft;                other. Areas that did not contain                      Swick 2013).
                                                  Weiss et al. 1995, Table 1) from                        surveyed habitat or were rated as ‘‘poor’’                Specifically, we removed locations
                                                  observed locations.                                     quality or ‘‘inadequate’’ habitat by                   referred to as Dolomite Campground,
                                                     (3) Polygons of suitable habitat were                investigators were not considered.                     Foxtail Girl Scout Camp, Foxtail Group
                                                  identified from previously delineated                   Quarter-quarter sections (see below for                Picnic Area, Foxtail Snow Play Area,
                                                  habitat (described above) and were                      description of quarter-quarter section)                Lee Canyon Guard Station, Lee
                                                  considered suitable if the habitat                      that were bounded on all sides by other                Meadows (extirpated Mount Charleston
                                                  polygon contained: (a) Observed                         quarter-quarter sections meeting the                   blue butterfly location), McWilliams
                                                  locations of Mount Charleston blue                      above criteria were included to avoid                  Campground, Old Mill Picnic Area,
                                                  butterflies; (b) larval host and nectar                 creating ‘‘doughnut holes’’ within                     Youth Camp, and LVSSR base facilities
                                                  plants; (c) delineated habitat that was                 corridors.                                             and lift terminals. These locations are
                                                  rated by the investigator (Pinyon 2011,                    (5) Observed locations, suitable                    within the established boundaries or
                                                  pp. 1–39) as either ‘‘moderate’’ or                     habitat, and connectivity corridors, as                developed infrastructure (for example,
                                                  ‘‘good’’ quality; or (d) larval host plants.            described above, are all considered to be              buildings, roads, parking areas, fire pits,
                                                  It was assumed that nectar plants would                 within the present geographic range of                 base ski lift terminals, etc.) for the
                                                  also be present in areas where larval                   the subspecies.                                        above-listed campgrounds, day-use
                                                  host plants were detected and butterflies                  (6) Critical habitat boundaries were                areas, and ski area facilities, which have
                                                  were observed because both larval host                  delineated using a data layer of the                   extremely high levels of public
                                                  and nectar plants must be in close                      Public Land Survey System (PLSS),                      visitation and associated recreational
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  proximity for Mount Charleston blue                     which includes quarter-quarter sections                disturbance. High levels of recreational
                                                  butterflies to be present (Boyd and                     (16 ha (40 ac)). Quarter-quarter sections              disturbance in these areas have either
                                                  Murphy 2008, pp. 1–31; Thompson et                      are designated as critical habitat if they             severely degraded available habitat,
                                                  al. 2014, p. 138).                                      contain observed locations, suitable                   including host and nectar plants, or the
                                                     (4) We evaluated connectivity                        habitat, or connectivity corridors.                    intense level of recreational activity
                                                  corridors of butterfly populations                      Quarter-quarter sections were used to                  severely limits or precludes the use of
                                                  between or adjacent to areas of suitable                delineate critical habitat boundaries                  these areas by the Mount Charleston
                                                  habitat because these areas are likely                  because they provide a readily available               blue butterfly. Additionally, small


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                                                  37422                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  ‘‘doughnut holes’’ and slivers of land                                     requirement of no adverse modification,                                    designation in the preamble of this
                                                  encircled by the buffered areas are not                                    unless the specific action would affect                                    document. The coordinates or plot
                                                  included the final designation, because                                    the physical or biological features in the                                 points or both on which the map is
                                                  these fragments do not meet the                                            adjacent critical habitat.                                                 based are available to the public on
                                                  definition of critical habitat for this                                       We are designating as critical habitat                                  http://www.regulations.gov at Docket
                                                  subspecies.                                                                lands that we have determined are                                          No. FWS–R8–ES–2013–0105, on our
                                                     When determining critical habitat                                       occupied at the time of listing and                                        Internet site http://www.fws.gov/
                                                  boundaries, we made every effort to                                        contain the physical or biological                                         nevada/nv_species/mcb_butterfly.html,
                                                  avoid including developed areas such as                                    features to support life-history processes                                 and at the field office responsible for the
                                                  lands covered by buildings, pavement,                                      that we have determined are essential to                                   designation (see FOR FURTHER
                                                  and other structures because such lands                                    the conservation of Mount Charleston                                       INFORMATION CONTACT above).
                                                  lack physical or biological features                                       blue butterfly. Three units are
                                                  necessary for Mount Charleston blue                                        designated, based on the physical or                                       Final Critical Habitat Designation
                                                  butterfly. The scale of the maps we                                        biological features being present to
                                                  prepared under the parameters for                                          support the Mount Charleston blue                                            We are designating three units as
                                                  publication within the Code of Federal                                     butterfly’s life-history processes. All                                    critical habitat for the Mount Charleston
                                                  Regulations may not reflect the                                            units contain all of the identified                                        blue butterfly. The critical habitat areas
                                                  exclusion of such developed lands. Any                                     physical or biological features and                                        described below constitute our best
                                                  such lands inadvertently left inside                                       support multiple life-history processes.                                   assessment at this time of areas that
                                                  critical habitat boundaries shown on the                                      The critical habitat designation is                                     meet the definition of critical habitat.
                                                  maps of this final rule have been                                          defined by the map, as modified by any                                     Those three units are: (1) South Loop,
                                                  excluded by text in the rule and are not                                   accompanying regulatory text, presented                                    (2) Lee Canyon, and (3) North Loop. All
                                                  designated as critical habitat. Therefore,                                 at the end of this document in the                                         three units are occupied. The
                                                  a Federal action involving these lands                                     Regulation Promulgation section. We                                        approximate area of each critical habitat
                                                  would not trigger section 7 consultation                                   include more detailed information on                                       unit and the land ownerships are listed
                                                  with respect to critical habitat and the                                   the boundaries of the critical habitat                                     in Table 1.

                                                                                   TABLE 1—CRITICAL HABITAT UNITS FOR THE MOUNT CHARLESTON BLUE BUTTERFLY
                                                                                                             [Area estimates reflect all land within critical habitat unit boundaries]

                                                                                                                                                                                                                                          Size of unit in acres
                                                                               Critical habitat unit                                                                    Land ownership by type                                                 (hectares)

                                                  1. South Loop .....................................................................         Federal ...............................................................................            2,228.0 (901.6)
                                                                                                                                              State ...................................................................................                         0
                                                                                                                                              Local ...................................................................................                         0
                                                                                                                                              Private ................................................................................                          0
                                                  2. Lee Canyon ....................................................................          Federal ...............................................................................          2,569.3 (1,039.7)
                                                                                                                                              State ...................................................................................                         0
                                                                                                                                              Local ...................................................................................                 2.2 (0.9)
                                                                                                                                              Private ................................................................................                  1.2 (0.5)
                                                  3. North Loop ......................................................................        Federal ...............................................................................              412.9 (167.1)
                                                                                                                                              State ...................................................................................                         0
                                                                                                                                              Local ...................................................................................                         0
                                                                                                                                              Private ................................................................................                          0

                                                        Total .............................................................................   Federal ...............................................................................          5,210.2 (2,108.5)
                                                                                                                                              State ...................................................................................                         0
                                                                                                                                              Local ...................................................................................                 2.2 (0.9)
                                                                                                                                              Private ................................................................................                  1.2 (0.5)
                                                     Note: Area sizes may not sum due to rounding.


                                                    We present brief descriptions of all                                       The unit is within the geographic area                                   change, such as increased drought and
                                                  units, and reasons why they meet the                                       occupied by the Mount Charleston blue                                      extreme precipitation events. Therefore,
                                                  definition of critical habitat for the                                     butterfly at the time of listing. It                                       the physical or biological features
                                                  Mount Charleston blue butterfly, below.                                    contains the physical or biological                                        essential to the conservation of the
                                                                                                                             features essential to the conservation of                                  species in this unit may require special
                                                  Unit 1: South Loop                                                         the subspecies, including: Elevations                                      management considerations or
                                                    Unit 1 consists of approximately                                         between 2,500 m (8,200 ft) and 3,500 m                                     protection to minimize impacts
                                                  2,228 ac (902 ha) and is located in Clark                                  (11,500 ft); no tree cover or no more                                      resulting from this threat (see Special
                                                  County, Nevada. This unit extends                                          than 50 percent tree cover; widely                                         Management Considerations or
                                                                                                                             spaced, low (less than 15 cm (0.5 ft) in                                   Protection, above).
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  south and southeast from near the
                                                  summit of Charleston Peak along high-                                      height) forbs and grasses, with exposed                                      A portion of this unit was burned in
                                                  elevation ridges to Griffith Peak. The                                     soil and rock substrates; the presence of                                  July 2013, as part of the Carpenter 1
                                                  unit likely represents the largest                                         one or more species of larval host                                         Fire, which burned into habitat of the
                                                  population of Mount Charleston blue                                        plants; and the presence of one or more                                    Mount Charleston blue butterfly along
                                                  butterflies and is the southernmost area                                   species of nectar plants.                                                  the ridgelines between Griffith Peak and
                                                  identified as critical habitat for the                                       Habitat in the unit is threatened by                                     South Loop, spanning a distance of
                                                  subspecies.                                                                the impacts associated with climate                                        approximately 3 mi (5 km). Within this


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                           37423

                                                  area, there are low-, moderate-, or high-                  The unit is within the geographic area              soil and rock substrates; the presence of
                                                  quality patches of Mount Charleston                     occupied by the Mount Charleston blue                  one or more species of larval host
                                                  blue butterfly habitat intermixed with                  butterfly at the time of listing. It                   plants; and the presence of one or more
                                                  non-habitat. The majority of Mount                      contains the physical or biological                    species of nectar plants.
                                                  Charleston blue butterfly habitat of                    features essential to the conservation of                Habitat in the unit is threatened by
                                                  moderate or high quality in this area                   the subspecies including: Elevations                   the impacts associated with climate
                                                  was classified as having a very low                     between 2,500 m (8,200 ft) and 3,500 m                 change, such as increased drought and
                                                  burn-severity or low soil burn-severity                 (11,500 ft); no tree cover or no more                  extreme precipitation events. Therefore,
                                                  (Kallstrom 2013, p. 4). Areas with the                  than 50 percent tree cover; widely                     the features essential to the conservation
                                                  highest observed concentrations of                      spaced, low (less than 15 cm (0.5 ft) in               of the species in this unit require special
                                                  Mount Charleston blue butterflies                       height) forbs and grasses, with exposed                management considerations or
                                                  within moderate- and high-quality                       soil and rock substrates; the presence of              protection to minimize impacts
                                                  habitat were outside the fire perimeter.                one or more species of larval host                     resulting from this threat (see Special
                                                  Areas of lower quality habitat appear to                plants; and the presence of one or more                Management Considerations or
                                                  have had higher tree canopy cover and                   species of nectar plants.                              Protection, above).
                                                  generally experienced low to moderate                      Habitat in the unit is threatened by:                 This unit is completely within the
                                                  soil burn-severity.                                     Loss and degradation of habitat due to                 boundaries of the U.S. Department of
                                                    Although the burn in this unit may                    changes in natural fire regimes and                    Agriculture, Humboldt–Toiyabe
                                                  have had short-term impacts to larval                   succession; implementation of                          National Forest, Spring Mountains
                                                  host or nectar plants, it is likely that the            recreational development projects and                  National Recreation Area.
                                                  burn may have long-term benefits to                     fuels reduction projects; increases of                 Approximately 92 percent of the unit is
                                                  Mount Charleston blue butterfly habitat                 nonnative plants; and the exacerbation                 within the Mount Charleston
                                                  by reducing canopy cover, thereby                       of other threats from the impacts of                   Wilderness. This unit is within the area
                                                  providing additional areas for larval                   climate change, which is anticipated to                addressed by the Spring Mountains
                                                  host and nectar plants to grow, and                     increase drought and extreme                           National Recreation Area Conservation
                                                  releasing nutrients (Brown and Smith                    precipitation events. Therefore, the                   Agreement.
                                                  2000, p. 26) into the soil, improving                   features essential to the conservation of
                                                  overall plant health and vigor,                         the species in this unit require special               Effects of Critical Habitat Designation
                                                  depending upon successional                             management considerations or                           Section 7 Consultation
                                                  conditions such as soil types and                       protection to minimize impacts
                                                  moisture, and seed sources (Kallstrom                   resulting from these threats (see Special                 Section 7(a)(2) of the Act requires
                                                  2013, p. 4). Therefore, we are                          Management Considerations or                           Federal agencies, including the Service,
                                                  designating as critical habitat areas that              Protection, above).                                    to ensure that any action they fund,
                                                  contained the physical or biological                       This unit is completely within the                  authorize, or carry out is not likely to
                                                  features essential to the conservation of               administrative boundaries of the U.S.                  jeopardize the continued existence of
                                                  the Mount Charleston blue butterfly                     Department of Agriculture, Humboldt–                   any endangered species or threatened
                                                  prior to the Carpenter 1 Fire, but may                  Toiyabe National Forest, Spring                        species or result in the destruction or
                                                  have been burned by the fire, because                   Mountains National Recreation Area,                    adverse modification of designated
                                                  we expect that these areas continue to                  with less than 1 percent owned by                      critical habitat of such species. In
                                                  contain the physical or biological                      private landowners or Clark County.                    addition, section 7(a)(4) of the Act
                                                  features essential to conservation of the               Approximately 33 percent of the west                   requires Federal agencies to confer with
                                                  subspecies.                                             side of the unit is within the Mount                   the Service on any agency action which
                                                    This unit is completely within the                    Charleston Wilderness. This unit is                    is likely to jeopardize the continued
                                                  boundaries of the U.S. Department of                    within the area addressed by the Spring                existence of any species proposed to be
                                                  Agriculture, Humboldt–Toiyabe                           Mountains National Recreation Area                     listed under the Act or result in the
                                                  National Forest, Spring Mountains                       Conservation Agreement.                                destruction or adverse modification of
                                                  National Recreation Area. The entire                                                                           proposed critical habitat.
                                                  unit is within the Mount Charleston                     Unit 3: North Loop                                        Decisions by the 5th and 9th Circuit
                                                  Wilderness, and southwestern portions                     Unit 3 consists of approximately 413                 Courts of Appeals have invalidated our
                                                  of the unit overlap with the Carpenter                  ac (167 ha) and is located in Clark                    regulatory definition of ‘‘destruction or
                                                  Canyon Research Natural Area. This                      County, Nevada. This unit extends                      adverse modification’’ (50 CFR 402.02)
                                                  unit is within the area addressed by the                northeast from an area between Mummy                   (see Gifford Pinchot Task Force v. U.S.
                                                  Spring Mountains National Recreation                    Spring and Fletcher Peak along high-                   Fish and Wildlife Service, 378 F. 3d
                                                  Area Conservation Agreement.                            elevation ridges down to an area above                 1059 (9th Cir. 2004) and Sierra Club v.
                                                                                                          the State Highway 158. The unit                        U.S. Fish and Wildlife Service et al., 245
                                                  Unit 2: Lee Canyon                                      represents the easternmost area                        F.3d 434, 434 (5th Cir. 2001)), and we
                                                    Unit 2 consists of approximately                      identified as critical habitat for the                 do not rely on this regulatory definition
                                                  2,569 ac (1,040 ha) of Federal land, 2.2                subspecies.                                            when analyzing whether an action is
                                                  ac (0.9 ha) of local land, and 1.2 ac (0.5                The unit is within the geographic area               likely to destroy or adversely modify
                                                  ha) of private land, and is located in                  occupied by the Mount Charleston blue                  critical habitat. Under the provisions of
                                                  Clark County, Nevada. This unit extends                 butterfly at the time of listing. It                   the Act, we determine destruction or
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                  south and southeast from McFarland                      contains the physical or biological                    adverse modification on the basis of
                                                  Peak and along the Bonanza Trail                        features essential to the conservation of              whether, with implementation of the
                                                  through Lee Canyon to slopes below the                  the subspecies including: Elevations                   proposed Federal action, the affected
                                                  north side of the North Loop Trail and                  between 2,500 m (8,200 ft) and 3,500 m                 critical habitat would continue to serve
                                                  the west side of Mummy Mountain.                        (11,500 ft); no tree cover or no more                  its intended conservation role for the
                                                  This unit represents the northernmost                   than 50 percent tree cover; widely                     species.
                                                  area identified as critical habitat for the             spaced, low (less than 15 cm (0.5 ft) in                  If a Federal action may affect a listed
                                                  subspecies.                                             height) forbs and grasses with exposed                 species or its critical habitat, the


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                                                  37424              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  responsible Federal agency (action                         Regulations at 50 CFR 402.16 require                the growth and reproduction of these
                                                  agency) must enter into consultation                    Federal agencies to reinitiate                         butterflies and their host or nectar
                                                  with us. Examples of actions that are                   consultation on previously reviewed                    plants, and movement of adults between
                                                  subject to the section 7 consultation                   actions in instances where we have                     habitat patches. Such alterations may
                                                  process are actions on State, tribal,                   listed a new species or subsequently                   directly or cumulatively cause adverse
                                                  local, or private lands that require a                  designated critical habitat that may be                effects to Mount Charleston blue
                                                  Federal permit (such as a permit from                   affected and the Federal agency has                    butterflies and their life cycles.
                                                  the U.S. Army Corps of Engineers under                  retained discretionary involvement or
                                                  section 404 of the Clean Water Act (33                  control over the action (or the agency’s               Exemptions
                                                  U.S.C. 1251 et seq.) or a permit from the               discretionary involvement or control is                Application of Section 4(a)(3) of the Act
                                                  Service under section 10 of the Act) or                 authorized by law). Consequently,
                                                                                                                                                                    Section 4(a)(3)(B)(i) of the Act (16
                                                  that involve some other Federal action                  Federal agencies sometimes may need to
                                                                                                                                                                 U.S.C. 1533(a)(3)(B)(i)) provides that:
                                                  (such as funding from the Federal                       request reinitiation of consultation with
                                                                                                                                                                 ‘‘The Secretary shall not designate as
                                                  Highway Administration, Federal                         us on actions for which formal
                                                                                                                                                                 critical habitat any lands or other
                                                  Aviation Administration, or the Federal                 consultation has been completed, if
                                                                                                                                                                 geographic areas owned or controlled by
                                                  Emergency Management Agency).                           those actions with discretionary
                                                                                                          involvement or control may affect                      the Department of Defense, or
                                                  Federal actions not affecting listed
                                                                                                          subsequently listed species or                         designated for its use, that are subject to
                                                  species or critical habitat, and actions
                                                                                                          designated critical habitat.                           an integrated natural resources
                                                  on State, tribal, local, or private lands
                                                                                                                                                                 management plan [INRMP] prepared
                                                  that are not federally funded or                        Application of the ‘‘Adverse                           under section 101 of the Sikes Act (16
                                                  authorized, do not require section 7                    Modification’’ Standard                                U.S.C. 670a), if the Secretary determines
                                                  consultation.
                                                     As a result of section 7 consultation,                  The key factor related to the adverse               in writing that such plan provides a
                                                  we document compliance with the                         modification determination is whether,                 benefit to the species for which critical
                                                  requirements of section 7(a)(2) through                 with implementation of the proposed                    habitat is proposed for designation.’’
                                                  our issuance of:                                        Federal action, the affected critical                  There are no Department of Defense
                                                     (1) A concurrence letter for Federal                 habitat would continue to serve its                    lands with a completed INRMP within
                                                  actions that may affect, but are not                    intended conservation role for the                     the critical habitat designation.
                                                  likely to adversely affect, listed species              species. Activities that may destroy or                Consideration of Impacts Under Section
                                                  or critical habitat; or                                 adversely modify critical habitat are                  4(b)(2) of the Act
                                                     (2) A biological opinion for Federal                 those that alter the physical or
                                                  actions that may affect and are likely to               biological features to an extent that                    Section 4(b)(2) of the Act states that
                                                  adversely affect, listed species or critical            appreciably reduces the conservation                   the Secretary shall designate and make
                                                  habitat.                                                value of critical habitat for the Mount                revisions to critical habitat on the basis
                                                     When we issue a biological opinion                   Charleston blue butterfly. As discussed                of the best available scientific data after
                                                  concluding that a project is likely to                  above, the role of critical habitat is to              taking into consideration the economic
                                                  jeopardize the continued existence of a                 support life-history needs of the species              impact, national security impact, and
                                                  listed species and/or destroy or                        and provide for the conservation of the                any other relevant impact of specifying
                                                  adversely modify critical habitat, we                   species.                                               any particular area as critical habitat.
                                                  provide reasonable and prudent                             Section 4(b)(8) of the Act requires us              The Secretary may exclude an area from
                                                  alternatives to the project, if any are                 to briefly evaluate and describe, in any               critical habitat if she determines that the
                                                  identifiable, that would avoid the                      proposed or final regulation that                      benefits of such exclusion outweigh the
                                                  likelihood of jeopardy and/or                           designates critical habitat, activities                benefits of specifying such area as part
                                                  destruction or adverse modification of                  involving a Federal action that may                    of the critical habitat, unless she
                                                  critical habitat. We define ‘‘reasonable                destroy or adversely modify such                       determines, based on the best scientific
                                                  and prudent alternatives’’ (at 50 CFR                   habitat, or that may be affected by such               data available, that the failure to
                                                  402.02) as alternative actions identified               designation.                                           designate such area as critical habitat
                                                  during consultation that:                                  Activities that may affect critical                 will result in the extinction of the
                                                     (1) Can be implemented in a manner                   habitat, when carried out, funded, or                  species. In making that determination,
                                                  consistent with the intended purpose of                 authorized by a Federal agency, should                 the statute on its face, as well as the
                                                  the action,                                             result in consultation for the Mount                   legislative history are clear that the
                                                     (2) Can be implemented consistent                    Charleston blue butterfly. These                       Secretary has broad discretion regarding
                                                  with the scope of the Federal agency’s                  activities include, but are not limited to,            which factor(s) to use and how much
                                                  legal authority and jurisdiction,                       actions that would cause the quality,                  weight to give to any factor. We have
                                                     (3) Are economically and                             quantity, functionality, accessibility, or             not excluded any areas from critical
                                                  technologically feasible, and                           fragmentation of habitat or features to                habitat under section 4(b)(2) of the Act.
                                                     (4) Would, in the Director’s opinion,                change unfavorably for Mount
                                                                                                          Charleston blue butterfly. Such                        Consideration of Economic Impacts
                                                  avoid the likelihood of jeopardizing the
                                                  continued existence of the listed species               activities could include, but are not                     Under section 4(b)(2) of the Act, we
                                                  and/or avoid the likelihood of                          limited to: Ground or soil disturbance,                consider the economic impacts of
                                                  destroying or adversely modifying                       either mechanically or manually;                       specifying any particular area as critical
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                                                  critical habitat.                                       clearing or grading; erosion control;                  habitat. In order to consider economic
                                                     Reasonable and prudent alternatives                  silviculture; fuels management; fire                   impacts, we prepared an incremental
                                                  can vary from slight project                            suppression; development; snow                         effects memorandum (IEM) and
                                                  modifications to extensive redesign or                  management; recreation; feral horse or                 screening analysis which together with
                                                  relocation of the project. Costs                        burro management; and herbicide or                     our narrative and interpretation of
                                                  associated with implementing a                          pesticide use. These activities could                  effects we consider our draft economic
                                                  reasonable and prudent alternative are                  alter: Invasion rates of invasive or                   analysis (DEA) of the proposed critical
                                                  similarly variable.                                     nonnative species, habitat necessary for               habitat designation and related factors


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                           37425

                                                  (IEc 2014). The analysis, dated May 20,                 7 of the Act on activities they fund,                  and resources by both the Federal action
                                                  2014, was made available for public                     permit, or implement that may affect the               agency and the Service, it is believed
                                                  review from July 15, 2014, through                      species. Consultations to avoid the                    that, in most circumstances, these costs
                                                  September 15, 2014 (79 FR 41225; IEc                    destruction or adverse modification of                 would predominantly be administrative
                                                  2014). The DEA addressed probable                       critical habitat will be incorporated into             in nature and would not be significant.
                                                  economic impacts of critical habitat                    the existing consultation process.                        The Forest Service has administrative
                                                  designation for the Mount Charleston                    Therefore, disproportionate impacts to                 oversight of 99.9 percent of the critical
                                                  blue butterfly. Following the close of the              any geographic area or sector are not                  habitat area and, as the primary Federal
                                                  comment period, we reviewed and                         likely as a result of this critical habitat            action agency in section 7 consultations,
                                                  evaluated all information submitted                     designation.                                           would incur incremental costs
                                                  during the comment period that                             In our IEM, we attempted to clarify                 associated with the critical habitat
                                                  pertained to our consideration of the                   the distinction between the effects that               designation. In some cases third parties
                                                  probable incremental economic impacts                   can result from the species being listed               may be involved in areas such as Unit
                                                  of this critical habitat designation.                   and those attributable to the critical                 2 in Lee Canyon, particularly where the
                                                  Additional information relevant to the                  habitat designation (i.e., the difference              Las Vegas Ski and Snowboard Resort
                                                  probable incremental economic impacts                   between the jeopardy and adverse                       special-use-permit area overlaps.
                                                  of critical habitat designation for the the             modification standards) for the Mount                  However, consultation is expected to
                                                  Mount Charleston blue butterfly is                      Charleston blue butterfly. Because the                 occur even in the absence of critical
                                                  summarized below and available in the                   designation of critical habitat for Mount              habitat, and incremental costs would be
                                                  screening analysis for the the Mount                    Charleston blue butterfly was proposed                 limited to administrative costs resulting
                                                  Charleston blue butterfly (IEc 2014),                   shortly after the listing, it has been our             from the potential for adverse
                                                  available at http://www.regulations.gov.                experience that it is more difficult to                modification. It is unlikely that there
                                                                                                          discern which conservation efforts are                 will be any incremental costs associated
                                                     Executive Orders (E.O.s) 12866 and
                                                                                                          attributable to the species being listed               with the 0.1 percent of non-Federal
                                                  13563 direct Federal agencies to assess
                                                                                                          and those that can result solely from the              land, for which we do not foresee any
                                                  the costs and benefits of available
                                                                                                          designation of critical habitat. However,              Federal nexus and thus is outside of the
                                                  regulatory alternatives in quantitative
                                                                                                          the following specific circumstances in                context of section 7 of the Act.
                                                  (to the extent feasible) and qualitative                                                                          The probable incremental economic
                                                                                                          this case helped to inform our
                                                  terms. Consistent with the E.O.                         evaluation: (1) The essential physical                 impacts of the Mount Charleston blue
                                                  regulatory analysis requirements, our                   and biological features identified for                 butterfly critical habitat designation are
                                                  effects analysis under the Act may take                 critical habitat are the same features                 expected to be limited to additional
                                                  into consideration impacts to both                      essential for the life requisites of the               administrative effort, as well as minor
                                                  directly and indirectly impacted                        species, and (2) any actions that would                costs of conservation efforts resulting
                                                  entities, where practicable and                         result in sufficient harm or harassment                from a small number of future section 7
                                                  reasonable. We assess to the extent                     to constitute jeopardy to the Mount                    consultations. This is due to two factors:
                                                  practicable, the probable impacts, if                   Charleston blue butterfly would also                   (1) All the critical habitat units are
                                                  sufficient data are available, to both                  likely adversely affect the essential                  considered to be occupied by the
                                                  directly and indirectly impacted                        physical and biological features of                    species, and incremental economic
                                                  entities. As part of our screening                      critical habitat. The IEM outlines our                 impacts of critical habitat designation,
                                                  analysis, we considered the types of                    rationale concerning this limited                      other than administrative costs, are
                                                  economic activities that are likely to                  distinction between baseline                           unlikely; and (2) the majority of critical
                                                  occur within the areas likely affected by               conservation efforts and incremental                   habitat is in designated Wilderness
                                                  the critical habitat designation. In our                impacts of the designation of critical                 Areas where actions are currently
                                                  evaluation of the probable incremental                  habitat for this species. This evaluation              limited and few actions are anticipated
                                                  economic impacts that may result from                   of the incremental effects has been used               that will result in section 7 consultation
                                                  the designation of critical habitat for the             as the basis to evaluate the probable                  or associated project modifications.
                                                  Mount Charleston blue butterfly, first                  incremental economic impacts of this                   Section 7 consultations for critical
                                                  we identified, in the IEM dated                         designation of critical habitat.                       habitat are estimated to range between
                                                  February 10, 2014, probable incremental                    The critical habitat designation for the            $410 and $9,100 per consultation. No
                                                  economic impacts associated with the                    Mount Charleston blue butterfly totals                 more than 12 consultations are
                                                  following categories of activities: (1)                 approximately 5,214 acres (2,110                       anticipated to occur in a year. Based
                                                  Federal lands management (Forest                        hectares) in three units, all of which                 upon these estimates, the maximum
                                                  Service); (2) fire management; (3) forest               were occupied at the time of listing and               estimated incremental cost is estimated
                                                  management; (4) recreation; (5)                         contain the physical and biological                    to be no greater than $109,200 in a given
                                                  conservation/restoration; and (6)                       features essential to the conservation of              year. Thus, the annual administrative
                                                  development. We considered each                         the species. In these areas, any actions               burden is unlikely to reach $100
                                                  industry or category individually.                      that may affect the species or its habitat             million. Therefore, future probable
                                                  Additionally, we considered whether                     would also affect designated critical                  incremental economic impacts are not
                                                  their activities have any Federal                       habitat, and it is unlikely that any                   likely to exceed $100 million in any
                                                  involvement. Critical habitat                           additional conservation efforts would be               single year, and disproportionate
                                                  designation will not affect activities that             recommended to address the adverse                     impacts to any geographic area or sector
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                                                  do not have any Federal involvement;                    modification standard over and above                   are not likely as a result of this critical
                                                  designation of critical habitat affects                 those recommended as necessary to                      habitat designation.
                                                  only activities conducted, funded,                      avoid jeopardizing the continued
                                                  permitted, or authorized by Federal                     existence of the Mount Charleston blue                 Exclusions Based on Economic Impacts
                                                  agencies. In areas where the Mount                      butterfly. Therefore, only administrative                Our economic analysis did not
                                                  Charleston blue butterfly is present,                   costs are expected in all of the critical              identify any disproportionate costs that
                                                  Federal agencies already are required to                habitat designation. While this                        are likely to result from the designation.
                                                  consult with the Service under section                  additional analysis will require time                  Consequently, the Secretary is not


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                                                  37426              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                  exercising her discretion to exclude any                designation based on other relevant                    50,000 residents; and small businesses
                                                  areas from this designation of critical                 impacts.                                               (13 CFR 121.201). Small businesses
                                                  habitat for the Mount Charleston blue                                                                          include manufacturing and mining
                                                                                                          Required Determinations
                                                  butterfly based on economic impacts.                                                                           concerns with fewer than 500
                                                    A copy of the IEM and screening                       Regulatory Planning and Review                         employees, wholesale trade entities
                                                  analysis with supporting documents                      (Executive Orders 12866 and 13563)                     with fewer than 100 employees, retail
                                                  may be obtained by contacting the                         Executive Order 12866 provides that                  and service businesses with less than $5
                                                  Southern Nevada Fish and Wildlife                       the Office of Information and Regulatory               million in annual sales, general and
                                                  Office (see ADDRESSES) or by                                                                                   heavy construction businesses with less
                                                                                                          Affairs (OIRA) will review all significant
                                                  downloading from the Internet at http://                                                                       than $27.5 million in annual business,
                                                                                                          rules. The Office of Information and
                                                  www.regulations.gov.                                                                                           special trade contractors doing less than
                                                                                                          Regulatory Affairs has determined that
                                                                                                                                                                 $11.5 million in annual business, and
                                                  Exclusions Based on National Security                   this rule is not significant.
                                                                                                                                                                 agricultural businesses with annual
                                                  Impacts or Homeland Security Impacts                      Executive Order 13563 reaffirms the
                                                                                                                                                                 sales less than $750,000. To determine
                                                                                                          principles of E.O. 12866 while calling
                                                     Under section 4(b)(2) of the Act, we                                                                        if potential economic impacts to these
                                                                                                          for improvements in the nation’s
                                                  consider whether there are lands owned                                                                         small entities are significant, we
                                                                                                          regulatory system to promote
                                                  or managed by the Department of                                                                                considered the types of activities that
                                                                                                          predictability, to reduce uncertainty,
                                                  Defense where a national security                                                                              might trigger regulatory impacts under
                                                                                                          and to use the best, most innovative,
                                                  impact might exist. In preparing this                                                                          this designation as well as types of
                                                                                                          and least burdensome tools for
                                                  final rule, we have determined that no                                                                         project modifications that may result. In
                                                                                                          achieving regulatory ends. The
                                                  lands within the designation of critical                                                                       general, the term ‘‘significant economic
                                                                                                          executive order directs agencies to                    impact’’ is meant to apply to a typical
                                                  habitat for Mount Charleston blue                       consider regulatory approaches that
                                                  butterfly are owned or managed by the                                                                          small business firm’s business
                                                                                                          reduce burdens and maintain flexibility                operations.
                                                  Department of Defense or Department of                  and freedom of choice for the public
                                                  Homeland Security, and, therefore, we                                                                             The Service’s current understanding
                                                                                                          where these approaches are relevant,                   of the requirements under the RFA, as
                                                  anticipate no impact on national                        feasible, and consistent with regulatory
                                                  security or homeland security.                                                                                 amended, and following recent court
                                                                                                          objectives. E.O. 13563 emphasizes                      decisions, is that Federal agencies are
                                                  Consequently, the Secretary is not                      further that regulations must be based                 only required to evaluate the potential
                                                  exercising her discretion to exclude any                on the best available science and that                 incremental impacts of rulemaking on
                                                  areas from this final designation based                 the rulemaking process must allow for                  those entities directly regulated by the
                                                  on impacts on national security or                      public participation and an open                       rulemaking itself, and therefore, not
                                                  homeland security.                                      exchange of ideas. We have developed                   required to evaluate the potential
                                                  Exclusions Based on Other Relevant                      this rule in a manner consistent with                  impacts to indirectly regulated entities.
                                                  Impacts                                                 these requirements.                                    The regulatory mechanism through
                                                                                                          Regulatory Flexibility Act (5 U.S.C. 601               which critical habitat protections are
                                                     Under section 4(b)(2) of the Act, we
                                                                                                          et seq.)                                               realized is section 7 of the Act, which
                                                  also consider any other relevant impacts
                                                                                                                                                                 requires Federal agencies, in
                                                  resulting from the designation of critical                 Under the Regulatory Flexibility Act                consultation with the Service, to ensure
                                                  habitat. We consider a number of                        (RFA; 5 U.S.C. 601 et seq.), as amended                that any action authorized, funded, or
                                                  factors, including whether the                          by the Small Business Regulatory                       carried by the agency is not likely to
                                                  landowners have developed any HCPs                      Enforcement Fairness Act of 1996                       destroy or adversely modify critical
                                                  or other management plans for the area,                 (SBREFA; 5 U.S.C. 801 et seq.),                        habitat. Therefore, under section 7 only
                                                  or whether there are conservation                       whenever an agency is required to                      Federal action agencies are directly
                                                  partnerships that would be encouraged                   publish a notice of rulemaking for any                 subject to the specific regulatory
                                                  by designation of, or exclusion from,                   proposed or final rule, it must prepare                requirement (avoiding destruction and
                                                  critical habitat. In addition, we look at               and make available for public comment                  adverse modification) imposed by
                                                  any tribal issues and consider the                      a regulatory flexibility analysis that                 critical habitat designation.
                                                  government-to-government relationship                   describes the effects of the rule on small             Consequently, it is our position that
                                                  of the United States with tribal entities.              entities (i.e., small businesses, small                only Federal action agencies will be
                                                  We also consider any social impacts that                organizations, and small government                    directly regulated by this designation.
                                                  might occur because of the designation.                 jurisdictions). However, no regulatory                 There is no requirement under RFA to
                                                     In preparing this final rule, we have                flexibility analysis is required if the                evaluate the potential impacts to entities
                                                  determined that the Clark County HCP                    head of the agency certifies the rule will             not directly regulated. Moreover,
                                                  is the only permitted HCP or other                      not have a significant economic impact                 Federal agencies are not small entities.
                                                  approved management plan for the                        on a substantial number of small                       Therefore, because no small entities are
                                                  Mount Charleston blue butterfly, and                    entities. The SBREFA amended the RFA                   directly regulated by this rulemaking,
                                                  the final designation does not include                  to require Federal agencies to provide a               the Service certifies that, if
                                                  any tribal lands or tribal trust resources.             certification statement of the factual                 promulgated, the final critical habitat
                                                  We did not receive comments on the                      basis for certifying that the rule will not            designation will not have a significant
                                                  designation of critical habitat for the                 have a significant economic impact on                  economic impact on a substantial
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                                                  Mount Charleston blue butterfly as it                   a substantial number of small entities.                number of small entities.
                                                  relates to the Clark County HCP. We                        According to the Small Business                        During the development of this final
                                                  anticipate no impact on tribal lands,                   Administration, small entities include                 rule, we reviewed and evaluated all
                                                  partnerships, or HCPs from this critical                small organizations such as                            information submitted during the
                                                  habitat designation. Accordingly, the                   independent nonprofit organizations;                   comment period that may pertain to our
                                                  Secretary is not exercising his discretion              small governmental jurisdictions,                      consideration of the probable
                                                  to exclude any areas from this final                    including school boards and city and                   incremental economic impacts of this
                                                                                                          town governments that serve fewer than                 critical habitat designation. Based on


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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                          37427

                                                  this information, we affirm our                         Government’s responsibility to provide                 designation of critical habitat affects
                                                  certification that this final critical                  funding,’’ and the State, local, or tribal             only Federal actions. Critical habitat
                                                  habitat designation will not have a                     governments ‘‘lack authority’’ to adjust               designation does not affect landowner
                                                  significant economic impact on a                        accordingly. At the time of enactment,                 actions that do not require Federal
                                                  substantial number of small entities,                   these entitlement programs were:                       funding or permits, nor does it preclude
                                                  and a regulatory flexibility analysis is                Medicaid; Aid to Families with                         development of habitat conservation
                                                  not required.                                           Dependent Children work programs;                      programs or issuance of incidental take
                                                                                                          Child Nutrition; Food Stamps; Social                   permits to permit actions that do require
                                                  Energy Supply, Distribution, or Use—
                                                                                                          Services Block Grants; Vocational                      Federal funding or permits to go
                                                  Executive Order 13211
                                                                                                          Rehabilitation State Grants; Foster Care,              forward. Due to current public
                                                    Executive Order 13211 (Actions                        Adoption Assistance, and Independent                   knowledge of the protections for the
                                                  Concerning Regulations That                             Living; Family Support Welfare                         subspecies and the prohibition against
                                                  Significantly Affect Energy Supply,                     Services; and Child Support                            take of the subspecies both within and
                                                  Distribution, or Use) requires agencies                 Enforcement. ‘‘Federal private sector                  outside of the critical habitat areas, we
                                                  to prepare Statements of Energy Effects                 mandate’’ includes a regulation that                   do not anticipate that property values
                                                  when undertaking certain actions. OMB                   ‘‘would impose an enforceable duty                     will be affected by the critical habitat
                                                  has provided guidance for                               upon the private sector, except (i) a                  designation. Based on the best available
                                                  implementing this Executive Order that                  condition of Federal assistance or (ii) a              information, the takings implications
                                                  outlines nine outcomes that may                         duty arising from participation in a                   assessment concludes that this
                                                  constitute ‘‘a significant adverse effect’’             voluntary Federal program.’’                           designation of critical habitat for the
                                                  when compared to not taking the                            The designation of critical habitat                 Mount Charleston blue butterfly does
                                                  regulatory action under consideration.                  does not impose a legally binding duty                 not pose significant takings
                                                  The economic analysis finds that none                   on non-Federal Government entities or                  implications.
                                                  of these criteria is relevant to this                   private parties. Under the Act, the only
                                                  analysis. Thus, based on information in                 regulatory effect is that Federal agencies             Federalism—Executive Order 13132
                                                  the economic analysis, energy-related                   must ensure that their actions do not                    In accordance with E.O. 13132
                                                  impacts associated with Mount                           destroy or adversely modify critical                   (Federalism), this rule does not have
                                                  Charleston blue butterfly conservation                  habitat under section 7. While non-                    significant Federalism effects. A
                                                  activities within critical habitat are not              Federal entities that receive Federal                  federalism summary impact statement is
                                                  expected. As such, the designation of                   funding, assistance, or permits, or that               not required. In keeping with
                                                  critical habitat is not expected to                     otherwise require approval or                          Department of the Interior and
                                                  significantly affect energy supplies,                   authorization from a Federal agency for                Department of Commerce policy, we
                                                  distribution, or use. Therefore, this                   an action, may be indirectly impacted                  requested information from, and
                                                  action is not a significant energy action,              by the designation of critical habitat, the            coordinated development of this critical
                                                  and no Statement of Energy Effects is                   legally binding duty to avoid                          habitat designation with, appropriate
                                                  required.                                               destruction or adverse modification of                 State resource agencies in Nevada. We
                                                                                                          critical habitat rests squarely on the                 did not receive official comments or
                                                  Unfunded Mandates Reform Act (2
                                                                                                          Federal agency. Furthermore, to the                    positions on the proposed designation
                                                  U.S.C. 1501 et seq.)
                                                                                                          extent that non-Federal entities are                   of critical habitat for the Mount
                                                     In accordance with the Unfunded                      indirectly impacted because they                       Charleston blue butterfly from State of
                                                  Mandates Reform Act (2 U.S.C. 1501 et                   receive Federal assistance or participate              Nevada agencies. From a federalism
                                                  seq.), we make the following findings:                  in a voluntary Federal aid program, the                perspective, the designation of critical
                                                     (1) This rule will not produce a                     Unfunded Mandates Reform Act would                     habitat directly affects only the
                                                  Federal mandate. In general, a Federal                  not apply, nor would critical habitat                  responsibilities of Federal agencies. The
                                                  mandate is a provision in legislation,                  shift the costs of the large entitlement               Act imposes no other duties with
                                                  statute, or regulation that would impose                programs listed above onto State                       respect to critical habitat, either for
                                                  an enforceable duty upon State, local, or               governments.                                           States and local governments, or for
                                                  tribal governments, or the private sector,                 (2) We do not believe that this rule                anyone else. As a result, the rule does
                                                  and includes both ‘‘Federal                             will significantly or uniquely affect                  not have substantial direct effects either
                                                  intergovernmental mandates’’ and                        small governments because because                      on the States, or on the relationship
                                                  ‘‘Federal private sector mandates.’’                    minimal critical habitat is within the                 between the national government and
                                                  These terms are defined in 2 U.S.C.                     jurisdiction of small governments.                     the States, or on the distribution of
                                                  658(5)–(7). ‘‘Federal intergovernmental                 Consequently, we do not believe that                   powers and responsibilities among the
                                                  mandate’’ includes a regulation that                    the critical habitat designation would                 various levels of government. The
                                                  ‘‘would impose an enforceable duty                      significantly or uniquely affect small                 designation may have some benefit to
                                                  upon State, local, or tribal governments’’              government entities. As such, a Small                  these governments because the areas
                                                  with two exceptions. It excludes ‘‘a                    Government Agency Plan is not                          that contain the features essential to the
                                                  condition of Federal assistance.’’ It also              required.                                              conservation of the species are more
                                                  excludes ‘‘a duty arising from                                                                                 clearly defined, and the physical and
                                                  participation in a voluntary Federal                    Takings—Executive Order 12630                          biological features of the habitat
                                                  program,’’ unless the regulation ‘‘relates                In accordance with Executive Order                   necessary to the conservation of the
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                                                  to a then-existing Federal program                      12630 (‘‘Government Actions and                        species are specifically identified. This
                                                  under which $500,000,000 or more is                     Interference with Constitutionally                     information does not alter where and
                                                  provided annually to State, local, and                  Protected Private Property Rights’’), we               what federally sponsored activities may
                                                  tribal governments under entitlement                    have analyzed the potential takings                    occur. However, it may assist these local
                                                  authority,’’ if the provision would                     implications of designating critical                   governments in long-range planning
                                                  ‘‘increase the stringency of conditions of              habitat for the Mount Charleston blue                  (because these local governments no
                                                  assistance’’ or ‘‘place caps upon, or                   butterfly in a takings implications                    longer have to wait for case-by-case
                                                  otherwise decrease, the Federal                         assessment. As discussed above, the                    section 7 consultations to occur).


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                                                  37428              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations

                                                     Where State and local governments                    National Environmental Policy Act (42                      by the Mount Charleston blue butterfly
                                                  require approval or authorization from a                U.S.C. 4321 et seq.)                                       that are essential for the conservation of
                                                  Federal agency for actions that may                       It is our position that, outside the                     the species. Therefore, we are not
                                                  affect critical habitat, consultation                   jurisdiction of the U.S. Court of Appeals                  designating critical habitat for the
                                                  under section 7(a)(2) will be required.                 for the Tenth Circuit, we do not need to                   Mount Charleston blue butterfly on
                                                  While non-Federal entities that receive                 prepare environmental analyses                             tribal lands.
                                                  Federal funding, assistance, or permits,                pursuant to the National Environmental
                                                  or that otherwise require approval or                                                                              References Cited
                                                                                                          Policy Act (NEPA; 42 U.S.C. 4321 et
                                                  authorization from a Federal agency for                 seq.) in connection with designating                          A complete list of all references cited
                                                  an action, may be indirectly impacted                   critical habitat under the Act. We                         is available on the Internet at http://
                                                  by the designation of critical habitat, the             published a notice outlining our reasons                   www.regulations.gov and upon request
                                                  legally binding duty to avoid                                                                                      from the Southern Nevada Fish and
                                                                                                          for this determination in the Federal
                                                  destruction or adverse modification of                                                                             Wildlife Office (see FOR FURTHER
                                                                                                          Register on October 25, 1983 (48 FR
                                                  critical habitat rests squarely on the                                                                             INFORMATION CONTACT).
                                                                                                          49244). This position was upheld by the
                                                  Federal agency.
                                                                                                          U.S. Court of Appeals for the Ninth                        Authors
                                                  Civil Justice Reform—Executive Order                    Circuit (Douglas County v. Babbitt, 48
                                                  12988                                                   F.3d 1495 (9th Cir. 1995), cert. denied                      The primary authors of this
                                                    In accordance with Executive Order                    516 U.S. 1042 (1996)).                                     rulemaking are the staff members of the
                                                  12988 (Civil Justice Reform), the Office                                                                           Pacific Southwest Regional Office and
                                                                                                          Government-to-Government
                                                  of the Solicitor has determined that the                                                                           the Southern Nevada Fish and Wildlife
                                                                                                          Relationship With Tribes
                                                  rule does not unduly burden the judicial                                                                           Office.
                                                  system and that it meets the applicable                    In accordance with the President’s
                                                                                                          memorandum of April 29, 1994                               List of Subjects in 50 CFR Part 17
                                                  standards set forth in sections 3(a) and
                                                  3(b)(2) of the Order. We are designating                (Government-to-Government Relations                          Endangered and threatened species,
                                                  critical habitat in accordance with the                 with Native American Tribal                                Exports, Imports, Reporting and
                                                  provisions of the Act. To assist the                    Governments; 59 FR 22951), Executive                       recordkeeping requirements,
                                                  public in understanding the habitat                     Order 13175 (Consultation and                              Transportation.
                                                  needs of the species, the rule identifies               Coordination With Indian Tribal
                                                                                                          Governments), and the Department of                        Regulation Promulgation
                                                  the elements of physical or biological
                                                  features essential to the conservation of               the Interior’s manual at 512 DM 2, we                        Accordingly, we amend part 17,
                                                  the Mount Charleston blue butterfly.                    readily acknowledge our responsibility                     subchapter B of chapter I, title 50 of the
                                                  The designated areas of critical habitat                to communicate meaningfully with                           Code of Federal Regulations, as set forth
                                                  are presented on maps, and the rule                     recognized Federal Tribes on a                             below:
                                                  provides several options for the                        government-to-government basis. In
                                                  interested public to obtain more                        accordance with Secretarial Order 3206                     PART 17—[AMENDED]
                                                  detailed location information, if desired.              of June 5, 1997 (American Indian Tribal
                                                                                                          Rights, Federal-Tribal Trust                               ■ 1. The authority citation for part 17
                                                  Paperwork Reduction Act of 1995 (44                     Responsibilities, and the Endangered
                                                  U.S.C. 3501 et seq.)                                                                                               continues to read as follows:
                                                                                                          Species Act), we readily acknowledge
                                                                                                          our responsibilities to work directly                        Authority: 16 U.S.C. 1361–1407; 1531–
                                                     This rule does not contain any new                                                                              1544; and 4201–4245, unless otherwise
                                                  collections of information that require                 with tribes in developing programs for                     noted.
                                                  approval by OMB under the Paperwork                     healthy ecosystems, to acknowledge that
                                                  Reduction Act of 1995 (44 U.S.C. 3501                   tribal lands are not subject to the same                   ■ 2. Amend § 17.11(h) by revising the
                                                  et seq.). This rule will not impose                     controls as Federal public lands, to                       entry for ‘‘Butterfly, Mount Charleston
                                                  recordkeeping or reporting requirements                 remain sensitive to Indian culture, and                    blue’’ under INSECTS in the List of
                                                  on State or local governments,                          to make information available to tribes.                   Endangered and Threatened Wildlife to
                                                  individuals, businesses, or                             We determined that there are no tribal                     read as follows:
                                                  organizations. An agency may not                        lands occupied by the Mount Charleston
                                                  conduct or sponsor, and a person is not                 blue butterfly at the time of listing that                 § 17.11 Endangered and threatened
                                                                                                                                                                     wildlife.
                                                  required to respond to, a collection of                 contain the physical or biological
                                                  information unless it displays a                        features essential to conservation of the                  *        *    *       *      *
                                                  currently valid OMB control number.                     species, and no tribal lands unoccupied                         (h) * * *

                                                                      Species                                                      Vertebrate popu-                                            Critical     Special
                                                                                                           Historic range        lation where endan-             Status      When listed       habitat       rules
                                                     Common name                Scientific name                                  gered or threatened


                                                           *                        *                       *                          *                         *                     *                    *
                                                        INSECTS
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                             *                      *                        *                     *                             *                    *                     *
                                                  Butterfly, Mount          Icaricia (Plebejus)         U.S.A. (Clark Coun-      Entire ......................   E                  820          17.95(i)         NA
                                                    Charleston blue.          shasta                      ty, NV; Spring
                                                                              charlestonensis.            Mountains).

                                                            *                       *                       *                          *                         *                     *                    *




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                                                                     Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations                                            37429

                                                  ■ 3. In § 17.95, amend paragraph (i) by                    (ii) The presence of one or more                       (3) Critical habitat does not include
                                                  adding an entry for ‘‘Mount Charleston                  species of host plants required by larvae              manmade structures (such as buildings,
                                                  Blue Butterfly (Icaricia (Plebejus) shasta              of the Mount Charleston blue butterfly                 aqueducts, runways, roads, and other
                                                  charlestonensis),’’ in the same order that              for feeding and growth. Known larval                   paved areas) and the land on which they
                                                  the species appears in the table at                     host plants are Astragalus calycosus var.              are located existing within the legal
                                                  § 17.11(h), to read as follows:                         calycosus, Oxytropis oreophila var.                    boundaries on July 30, 2015.
                                                  § 17.95   Critical habitat—fish and wildlife.           oreophila, and Astragalus platytropis.                    (4) Critical habitat map units. Data
                                                                                                          Densities of host plants must be greater               layers defining map units were created
                                                  *       *    *     *     *
                                                     (i) Insects.                                         than two per m2 (0.2 per ft2).                         on a base of Bureau of Land
                                                  *       *    *     *     *                                 (iii) The presence of one or more                   Management Public Land Survey
                                                     Mount Charleston Blue Butterfly                      species of nectar plants required by                   System quarter-quarter sections. Critical
                                                  (Icaricia (Plebejus) shasta                             adult Mount Charleston blue butterflies                habitat units were then mapped using
                                                  charlestonensis)                                        for reproduction, feeding, and growth.                 Universal Transverse Mercator (UTM)
                                                     (1) Critical habitat units are depicted              Common nectar plants include Erigeron                  Zone 11 North, North American Datum
                                                  for Clark County, Nevada, on the map                    clokeyi, Hymenoxys lemmonii,                           (NAD) 1983 coordinates. The map in
                                                  below.                                                  Hymenoxys cooperi, and Eriogonum                       this entry, as modified by any
                                                     (2) Within these areas, the primary                  umbellatum var. versicolor. Densities of               accompanying regulatory text,
                                                  constituent elements of the physical or                 nectar plants must occur at more than                  establishes the boundaries of the critical
                                                  biological features essential to the                    two per m2 (0.2 per ft2) for smaller                   habitat designation. The coordinates or
                                                  conservation of the Mount Charleston                    plants, such as E. clokeyi, and more than              plot points or both on which the map
                                                  blue butterfly consist of three                         0.1 per m2 (0.01 per ft2) for larger and               is based are available to the public at the
                                                  components:                                             taller plants, such as Hymenoxys sp. and               Service’s Internet site at http://
                                                     (i) Areas of dynamic habitat between                                                                        www.fws.gov/nevada/nv_species/mcb_
                                                  2,500 meters (m) (8,200 feet (ft)) and                  E. umbellatum. Nectar plants typically
                                                                                                          occur within 10 m (33 ft) of larval host               butterfly.html, at http://
                                                  3,500 m (11,500 ft) elevation with                                                                             www.regulations.gov at Docket No.
                                                  openings or where disturbance provides                  plants and, in combination, provide
                                                                                                          nectar during the adult flight period                  FWS–R8–ES–2013–0105, and at the
                                                  openings in the canopy that have no                                                                            field office responsible for this
                                                  more than 50 percent tree cover                         between mid-July and early August.
                                                                                                          Additional nectar sources that could be                designation. You may obtain field office
                                                  (allowing sunlight to reach the ground);
                                                                                                          present in combination with the                        location information by contacting one
                                                  widely spaced, low (less than 15
                                                                                                          common nectar plants include                           of the Service regional offices, the
                                                  centimeters (cm) (0.5 ft) in height) forbs
                                                                                                          Antennaria rosea, Cryptantha sp.,                      addresses of which are listed at 50 CFR
                                                  and grasses; and exposed soil and rock
                                                  substrates. When taller grass and forb                  Ericameria nauseosa ssp., Erigeron                     2.2.
                                                  plants greater than or equal to 15 cm                   flagellaris, Guitierrezia sarothrae,                      (5) Map of critical habitat units for the
                                                  (0.5 ft) in height are present, the density             Monardella odoratissima, Petradoria                    Mount Charleston blue butterfly
                                                  is less than five per square meter (m2)                 pumila var. pumila, and Potentilla                     follows:
                                                  (50 per square foot (ft2)).                             concinna var. concinna.                                BILLING CODE 4310–55–P
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                                                  37430              Federal Register / Vol. 80, No. 125 / Tuesday, June 30, 2015 / Rules and Regulations




                                                  *      *     *       *      *                             Dated: June 15, 2015.
                                                                                                          Michael Bean,
                                                                                                          Principal Deputy Assistant Secretary for Fish
                                                                                                          and Wildlife and Parks.
asabaliauskas on DSK5VPTVN1PROD with RULES




                                                                                                          [FR Doc. 2015–15947 Filed 6–29–15; 8:45 am]
                                                                                                          BILLING CODE 4310–55–C
                                                                                                                                                                                  ER30JN15.000</GPH>




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Document Created: 2018-02-22 11:17:11
Document Modified: 2018-02-22 11:17:11
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective July 30, 2015.
ContactMichael J. Senn, Field Supervisor, U.S. Fish and Wildlife Service, Southern Nevada Fish and Wildlife Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130-7147; telephone 702-515-5230; facsimile 702-515-5231. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
FR Citation80 FR 37404 
RIN Number1018-AZ91
CFR AssociatedEndangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation

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