[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Proposed Rules]
[Pages 74018-74038]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30451]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2011-0096; 4500030114]
RIN 1018-AX38
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Southern Selkirk Mountains Population of
Woodland Caribou (Rangifer tarandus caribou)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the southern Selkirk Mountains
population of woodland caribou (Rangifer tarandus caribou) under the
Endangered Species Act of 1973, as amended (Act). In total,
approximately 375,562 acres (151,985 hectares) are being proposed for
designation as critical habitat. The proposed critical habitat is
located in Boundary and Bonner counties in Idaho, and Pend Oreille
County in Washington.
DATES: We will accept comments received on or before January 30, 2012.
Please note that if you are using the Federal eRulemaking Portal (see
ADDRESSES, below), the deadline for submitting an electronic comment is
11:59 p.m. Eastern Standard Time on this date. We must receive requests
for public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by January 17, 2012.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R1-ES-
2011-0096, which is the docket number for this rulemaking. Then, in the
Search panel on the left side of the screen, under the Document Type
heading, click on the Proposed Rules link to locate this document. You
may submit a comment by clicking on ``Submit a Comment or Submission.''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R1-ES-2011-0096; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, State Supervisor, U.S.
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S.
Vinnell Way, Room 368, Boise, ID 83709; telephone (208) 378-5243;
facsimile (208) 378-5262. If you use a telecommunications device for
the deaf (TDD), call the Federal Information Relay Service (FIRS) at
(800) 877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or other interested party concerning
this proposed rule. We particularly seek comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the southern Selkirk
Mountains population of woodland caribou from human activity, the
degree of which can be expected to increase due to the designation,
such that the designation of critical habitat may not be prudent.
(2) Specific information on:
(a) The amount and distribution of the southern Selkirk Mountains
woodland caribou habitat in the United States;
(b) What areas occupied at the time of listing contain the physical
and biological features essential to the conservation of the species
should be included in the designation and why; and
(c) Special management considerations or protections that the
features essential to the conservation of southern Selkirk Mountains
woodland caribou identified in this proposal may require, including
managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation. We are particularly interested in any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(5) Information on the projected and reasonably likely impacts of
climate change on southern Selkirk Mountains woodland caribou and the
proposed critical habitat.
(6) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act and why.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. You may request
at the top of your document that we
[[Page 74019]]
withhold personal information, such as your name, street address, phone
number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Background
In this proposed rule for designation of critical habitat, we
intend to discuss only those topics directly relevant to the
designation of critical habitat for this species. For more detailed
information on the biology of and threats to the southern Selkirk
Mountains population of woodland caribou, please refer to the final
listing rule published in the Federal Register on February 26, 1984 (49
FR 7390), and the Southern Selkirk Mountain Caribou 5-Year Review
completed by the Service on December 2, 2008 (USFWS 2008a). Detailed
information on the southern Selkirk Mountains population of woodland
caribou directly relevant to designation of critical habitat is
discussed under the Primary Constituent Elements section below.
Species Information
Woodland caribou are a subspecies of caribou with a historically
wide distribution across Canada. In British Columbia, Canada (B.C.)
there are three recognized ecotypes of woodland caribou: Mountain
(alpine; arboreal lichen winter feeding group), northern (lives in
central and northern B.C.), and boreal (restricted to the lowland
plains of northeastern B.C.). The mountain ecotype of woodland caribou
is the ecotype found in the United States (U.S.). Each ecotype is
generally differentiated by the type of habitat occupied, movement
patterns, and feeding behavior. Ecotypes are described as classes of
populations adapted to different landscapes or environments as
expressed by their movements and feeding behavior (COSEWIC 2002, p.
13).
The mountain ecotype of woodland caribou, to which the endangered
southern Selkirk Mountains population belongs, occurs in high
elevations (generally above 4,000 feet (ft) (1,220 meters (m)), steep
terrain of the mountainous southeastern and east-central portions of
B.C., and the Selkirk Mountains of northern Idaho and northeastern
Washington (USFWS 1994, p. 6; USFWS 2008a, p. 2). They primarily occupy
old-growth western red cedar (Thuja plicata)/hemlock (Tsuga
heterophylla) and Engelmann spruce (Picea engelmannii or P. glauca x
engelmannii)/subalpine fir (Abies lasiocarpa) forests that typically
have high snow levels. Unlike other caribou, mountain caribou do not
aggregate into large herds (USFWS 1994, p. 11). They have been
characterized as ``shy'' forest dwellers, coming together only in small
groups that do not migrate over great distances. The largest groups are
encountered during the rut and late winter, whereas spring and summer
groups are generally small (MCTAC 2002, p. 4). This is likely a
predator-avoidance tactic (Paquet 1997, p. 9; Seip et al. 1994, p. 77).
In contrast to the seasonal, long-distance migrations undertaken by
some caribou subspecies, mountain caribou make strong seasonal
elevational movements in response to seasonal habitat factors, such as
snow level, food availability, and predator avoidance.
The density of caribou populations in B.C. appears to be related to
their ability to become spatially separated from predators during the
summer months, when the abundance of wolves is largely determined by
the availability of other prey species. Consequently, caribou that
migrate to alpine habitats during the summer reduce their exposure to
predators (Bergerund et al., 1984 and Seip, 1992 in Seip et al. 1994,
p. 77). Prior to the increase in moose abundance in B.C. during the
1900's, it is likely that higher densities of caribou were able to
coexist with wolves. However, when moose numbers increased, caribou
that lived in close proximity to moose habitat were eliminated or
greatly reduced, and the caribou remaining today represent animals that
were more effective at spacing away from moose and wolves in summer. It
appears the effectiveness of predator avoidance strategies is the
dominant factor that determines the natural population density of
caribou populations in B.C. (Seip et al. 1994, p. 78).
Geographic Range
Currently, the entire global population of the southern Selkirk
Mountains population of woodland caribou occurs within B.C., Idaho, and
Washington, where they are considered to be at risk of extirpation
(USFWS 2008a, p. 10). The southern Selkirk Mountains woodland caribou
population is now the southernmost extant population of mountain
caribou and the last remaining mountain caribou population in the U.S.
(IDFG CWCS Appendix F 2005, p. 373; USFWS 2008a, p. 12). In Idaho,
caribou have historically been reported from the 1880s as far south as
the St. Joe River and at Elk City near the Clearwater River (Evans
1960, pp. 59-64), and also in the city of St. Maries as recently as
1959 (Evans 1960, p. 93). The current range extends approximately 484
miles (mi) (779 kilometer (km)) in a northwest to southeast direction
from the north end of the Hart Ranges in B.C. to the south end of the
Selkirk Mountains in Idaho and Washington (see Figure 1).
[[Page 74020]]
[GRAPHIC] [TIFF OMITTED] TP30NO11.163
The southern Selkirk Mountains woodland caribou population is
separated by 30-60 mi (48-96 km) from the next closest local
populations to the north and east in B.C. (USFWS 2008a, p. 12).
Although caribou numbers in the southern Selkirk Mountains population
have fluctuated over the last few decades, augmentation efforts between
1987 and 1990, and 1996 and 1998, from northern caribou herds in B.C.
has allowed this herd to have a modest increase (average of 7 percent)
in population over the last 5 to 10 years (USFWS 2008a, pp. 15-16).
Annual surveys are conducted by Idaho Fish and Game (IDFG), with both
fixed-wing aircraft and a helicopter, using standard survey protocols
developed for caribou (Wakkinen et al. 2009, pp. 3, 5-6). In June 2009,
IDFG estimated this population to be approximately 46 animals; 3 of
which were located within the U.S. portion of the range (Wakkinen et
al. 2009, pp. 6-7). This represents an increase from the 30 individuals
estimated at the time of listing (49 FR 7390-7394). Preliminary
estimates reported from surveys conducted in late winter 2011 indicate
the population to be approximately 36 animals; however, IDFG reports
low confidence in that estimate due to poor weather conditions that
limited aerial surveys (Wakkinen 2011, pers. comm.).
Ecology and Habitat
Southern Selkirk Mountains caribou are closely tied to old-growth
coniferous forests of the Interior Wet-belt ecosystem of B.C. and the
United States. Their survival depends on the ability to spread out over
large areas of suitable habitat where it is difficult for predators to
find them (Stevenson et al., 2001, p. 1). Mountain caribou habitat is
defined as old-growth forests (generally more than 100-150 years old),
which support abundant arboreal lichens (the key winter food source of
mountain caribou) (Stevenson et al. 2001, p. 1; USFWS 2008a, p. 20).
All caribou are principally grazers, and exhibit selective foraging
behaviors for grasses, flowering plants, horsetails, willow and dwarf
birch leaves and tips, sedges, and lichens in spring and summer (Paquet
1997, pp. 13, 16). For southern Selkirk Mountains caribou, the fall and
early winter diet consists largely of dried grasses, sedges, willow and
dwarf birch tips, and arboreal lichens (Paquet 1997, p. 13). When the
snow deepens, their diet consists almost exclusively of arboreal
lichens, which are usually the only food available
[[Page 74021]]
(Paquet 1997, p. 13; MCTAC 2002, p. 11).
Southern Selkirk Mountains caribou habitat is typically represented
by a combination of two vegetation zones: The cedar/hemlock zone at
lower elevations and the subalpine fir/Engelmann spruce zone at higher
elevations. Caribou also require transition areas and corridors between
these two vegetation zones. In general, mountain caribou seasonal
habitats consist of early winter, late winter, spring, calving, summer,
and fall habitats, which are primarily within the above vegetation
zones (Servheen and Lyon 1989, p. 235; USFS 2004, p. 18; USFWS 2008a,
p. 20). Early-winter and late-winter habitats are usually considered to
be the most important habitats to caribou, and represent the most
limiting type of habitat on the landscape within the recovery area
(USFS 2004, p. 19). These seasonal habitats are described under the
Physical and Biological Features section below.
Previous Federal Actions
In 1980, the Service received petitions to list the South Selkirk
Mountains population of woodland caribou as endangered under the
Endangered Species Act from the Idaho Department of Fish and Game
(IDFG) and Dean Carrier, a U.S. Forest Service (USFS) staff biologist
and former chairman of the International Mountain Caribou Technical
Committee (IMCTC). At that time, the population was believed to consist
of 13 to 20 animals (48 FR 1722-1726). Following a review of the
petition and other data readily available, the southern Selkirk
Mountains woodland caribou population in northeastern Washington,
northern Idaho, and southeastern B.C. was listed as endangered under
the Act's emergency procedures on January 14, 1983 (48 FR 1722-1726). A
second emergency rule was published on October 25, 1983 (48 FR 49245-
49249), and a final rule listing the southern Selkirk Mountains
woodland caribou population as endangered was published on February 29,
1984 (49 FR 7390-7394). The designation of critical habitat was
determined to be not prudent at that time, since increased poaching
could result from the publication of maps showing areas used by the
species. A Management Plan/Recovery Plan for Selkirk Caribou was
approved by the Service in 1985 (USFWS 1985), and revised in 1994
(USFWS 1994).
Notices of 90-day findings on two petitions to delist the southern
Selkirk Mountains population of woodland caribou were published in the
Federal Register on November 29, 1993 (58 FR 62623), and November 1,
2000 (65 FR 65287). Both petitions were submitted by Mr. Peter B.
Wilson, representing the Greater Bonners Ferry Chamber of Commerce,
Bonners Ferry, Idaho. Our response to both petitions stated that the
petitions did not present substantial scientific or commercial
information indicating that delisting of the woodland caribou may be
warranted.
On August 17, 2005, a complaint was filed in Federal district court
challenging two biological opinions issued by the Service, and USFS
management actions within southern Selkirk Mountains caribou habitat
and the recovery area. The plaintiffs included Defenders of Wildlife,
Conservation Northwest, the Lands Council, Selkirk Conservation
Alliance, Idaho Conservation League, and Center for Biological
Diversity. The lawsuit challenged, in part, nonjeopardy biological
opinions on the USFS Land and Resource Management Plans for the Idaho
Panhandle (IPNF) and Coleville (CNF) National Forests, and the USFS'
failure to comply with the incidental take statements in the biological
opinions.
In December 2005, the Court granted a preliminary injunction
prohibiting snowmobile trail grooming within the caribou recovery area
on the IPNF during the winter of 2005-2006. In November 2006, the Court
granted a modified injunction restricting snowmobiling and snowmobile
trail grooming on portions of the IPNF within the southern Selkirk
Mountains caribou recovery area. On February 14, 2007, the Court
ordered a modification of the current injunction to add a protected
caribou travel corridor connecting habitat in the U.S. portion of the
southern Selkirk Mountains with habitat in B.C. This injunction is
currently in effect, pending the completion of section 7 consultation
on the IPNF's proposed winter travel plan.
On April 11, 2006, a notice of initiation of 5-year reviews for 70
species in Idaho, Oregon, Washington and Hawaii, and Guam was published
in the Federal Register (69 FR 18345-8348), including the southern
Selkirk Mountains population of woodland caribou. The Southern Selkirk
Mountains Caribou Population 5-Year Review was completed December 5,
2008 (USFWS, 2008a).
On December 6, 2002, the Defenders of Wildlife, Lands Council,
Selkirk Conservation Alliance, and Center for Biological Diversity
(plaintiffs) petitioned the Service to designate critical habitat for
the endangered southern Selkirk Mountains population of woodland
caribou. On February 10, 2003, we acknowledged receipt of the
plaintiff's petition, and stated we were unable to address the petition
at that time due to budgetary constraints. On January 15, 2009, a
complaint for declaratory and injunctive relief (Defenders of Wildlife
et al., v. Salazar, CV-09-15-EFS) was filed in Federal District Court,
alleging that the Service's failure to make a decision more than 6
years after the petition was submitted violated the Administrative
Procedure Act (5 U.S.C. 551-559, 701-706). In a stipulated settlement
agreement, we agreed to make a critical habitat prudency determination,
and if determined to be prudent, to submit a proposed critical habitat
rule to the Federal Register on or before November 20, 2011, and a
final critical habitat rule by November 20, 2012.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. The
final rule listing the southern Selkirk Mountains population of
woodland caribou as an endangered species (49 FR 7390; February 29,
1984) states that designation of critical habitat would not be prudent,
because critical habitat designation would require publication and
extensive publicity of the precise areas occupied by the herd and the
kind of habitat utilized. As a result, there would be a serious risk of
facilitating poaching, which was identified as an important cause of
the decline of the herd. A designation of critical habitat is not
prudent when one or both of the following situations exist: (1) The
species is threatened by taking or other human activity, and the
identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species (50 CFR 424.12(a)(1)(i)
and (ii)). As we agreed in the settlement agreement, we have re-
evaluated our previous ``not prudent'' finding regarding critical
habitat designation for the southern Selkirk Mountains woodland caribou
population and the information supporting our previous findings. We
have also evaluated information and analysis that has become available
to us subsequent to publication of the February 29, 1984, final rule.
We have reviewed the best available information and now determine the
designation of critical
[[Page 74022]]
habitat for the southern Selkirk Mountains population of woodland
caribou would not be expected to increase the degree of threat by
poaching, since increased education and awareness have made illegal
poaching less of a threat than at the time of listing. Accordingly, we
no longer find designation of critical habitat to be ``not prudent''
under our regulations, and have determined that the designation is
prudent.
As stated above, section 4(a)(3) of the Act requires the
designation of critical habitat concurrently with the species' listing
``to the maximum extent prudent and determinable.'' Our regulations at
50 CFR 424.12(a)(2) state that critical habitat is not determinable
when one or both of the following situations exist:
(i) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(ii) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.
We reviewed the available information pertaining to the biological
needs of this species and habitat characteristics where the species
occurs. This and other information represent the best scientific data
available, and the available information is sufficient for us to
identify areas to propose as critical habitat. Therefore, we conclude
that the designation of critical habitat is determinable for the
southern Selkirk Mountains woodland caribou population.
Recovery Plan
The recovery strategy identified in the Selkirk Mountains Woodland
Caribou Recovery Plan (USFWS 1994), is to maintain the existing two
herds in the Selkirk ecosystem and establish a third herd in Washington
State, and secure and manage at least 443,000 acres (ac) (179,000
hectares (ha)) of suitable and potential habitat in the Selkirks to
support a self-sustaining population. Approximately 47 percent of the
suitable and potential habitat identified in the recovery plan occurs
within B.C., and 53 percent is within the U.S. (USFWS 1994, p. 4).
Population modeling would be used to determine the projected size of a
recovered population, and, pending environmental analysis, the existing
herds would be augmented with mountain caribou from B.C. translocated
to the western portion of the Selkirk Mountains in Washington (USFWS
1994, pp. 24-25). The recovery plan acknowledged some uncertainty about
recovery objectives, and identified the need for monitoring to
demonstrate the efficacy, or lack thereof, of the recovery plan. The
intent was for the recovery plan to evolve into a biologically sound
document using adaptive management, to help identify the specific
objectives needed to ensure population viability and sustainability
(USFWS 1994, p. 27).
The specific recovery tasks related to habitat (USFWS 1994, pp. 30-
35) included:
Conducting inventories;
Determining habitat capability;
Reducing the impacts of fire;
Reducing impacts of insects and disease;
Reducing impacts of timber management;
Reducing or eliminating impacts of recreational
activities;
Establishing the recovery zone boundary; and
Securing habitat.
Information needed to verify recovery objectives (USFWS 1994, pp.
36-42) included:
Researching habitat needs;
Determining caribou habitat relations;
Evaluating timber management practices related to caribou
habitat;
Evaluating the effects of roads and motorized vehicles on
caribou and their habitats;
Developing, implementing, and validating the cumulative
effects model;
Conducting population research;
Determining recovery goals and objectives;
Determining the amount of habitat needed for a recovered
population; and
Establishing caribou in the western portion of the
Selkirks in Washington.
The specific details of these objectives are available in the
recovery plan, which has been provided as supplementary information to
this proposed rule at http://www.regulations.gov.
5-Year Review
A 5-year review of a listed species is required by section 4(c)(2)
of the Act, and considers all new available information concerning the
population status of the species and the threats that affect it. This
process can serve as an integral component of tracking recovery
implementation, updating scientific understanding, and evaluating the
status of the species. The Service conducts these periodic reviews to
ensure the listing classification of a species as threatened or
endangered is accurate. The 5-year status review considers the best
scientific and commercial information that has become available since
the original listing determination or last review, such as: species
biology, habitat conditions, conservation measures, threat status and
trends, and any other new information. The Service publishes a notice
in the Federal Register announcing the initiation of these reviews, and
provides the public an opportunity to submit relevant information
regarding the species and its threats.
The 2008 Southern Selkirk Mountains Population of Woodland Caribou
5-Year Review acknowledged that the recovery criteria in the recovery
plan (USFWS 1994) do not reflect the best available and most up to date
information on the biology of the species and its habitat (USFWS 2008,
p. 15). Since 1994, a great deal of information has been collected
regarding caribou and their habitat, the effects of threats such as
habitat fragmentation, predation and human access, and various options
and approaches for recovery efforts. As is discussed in more detail in
the Geographic Range section above, the southern Selkirk Mountains
caribou population has been augmented twice over the last two decades.
Between 1987 and 1990, the population was augmented with 60 animals
from source herds in B.C., which were placed in the Idaho portion of
the Selkirk ecosystem, establishing a second herd within the recovery
area (USFWS 2008, p. 15). Over the last decade, the number of caribou
in Idaho has dwindled, and the bulk of the population primarily occupy
habitat in the B.C. portion of the recovery area, although there is
continued movement back and forth across the B.C. and U.S. border.
Between 1996 and 1998, the southern Selkirk Mountains population was
augmented with 43 animals; some were placed in Washington and some were
placed just north of the border in B.C. Unfortunately, the augmentation
effort coincided with a high mountain lion population in the Selkirk
ecosystem, and a number of the transplanted caribou were thought to
have been lost to predation, although definitive data on many
mortalities was lacking. Although neither the 1996 nor 1998
augmentations resulted in a long-term improvement in caribou
distribution throughout the recovery area, the effort succeeded in
maintaining and enhancing the number of caribou in the population as a
whole, which was estimated at 46 animals in 2008 (USFWS 2008, pp. 15-
16).
The current recovery plan establishes the actions and conservation
objectives needed to recover the southern Selkirk Mountains population
of the woodland caribou. The proposed critical habitat designation will
support those objectives by identifying the specific geographic areas
in the southern Selkirk
[[Page 74023]]
Mountains in Washington, and areas in Idaho, that (1) Were occupied at
the time of listing (i.e., within the area of normal utilization
described in the final listing rule (49 FR 7390; February 29, 1984));
(2) provide the physical or biological features essential to the
conservation of the species; and (3) may require special management
considerations or protection. The recovery plan also states that for
recovery, woodland caribou in the Selkirks must be distributed over a
wider area than at present (USFWS 1994, p. 36). Optimally, this would
include habitat in both B.C. and the U.S. We are not proposing to
designate unoccupied critical habitat since we are unable to identify
any specific areas in the U.S. that are outside the geographical area
occupied by the southern Selkirk Mountains caribou at the time of
listing that are essential to the conservation of the species.
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 when combined compose
the features 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 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 often 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
(e.g., see Climate Change discussion below). For these reasons, a
critical habitat designation does not signal that habitat outside the
designated area is unimportant or may not be required for recovery of
the species. Areas that are important to the conservation of the
species, both inside and outside of 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 ensure their actions are not likely to jeopardize the continued
existence of any endangered or threatened species, and (3) the
prohibitions of section 9 of the Act if actions occurring in these
areas may
[[Page 74024]]
affect the species. Federally funded or permitted projects affecting
listed species outside their designated critical habitat areas may
still result in jeopardy findings in some cases. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Climate Change
Climate change will be a particular challenge for biodiversity
because the interaction of additional stressors associated with climate
change and current stressors may push species beyond their ability to
survive (Lovejoy 2005, pp. 325-326). The synergistic implications of
climate change and habitat fragmentation are the most threatening facet
of climate change for biodiversity (Hannah et al. 2005, p. 4). Current
climate change predictions for terrestrial areas in the Northern
Hemisphere indicate warmer air temperatures, more intense precipitation
events, and increased summer continental drying (Field et al. 1999, pp.
1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6;
Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181). In the
Pacific Northwest, regionally averaged temperatures have risen 0.8
degrees Celsius (C) (1.5 degrees Fahrenheit (F)) over the last century
(as much as 2 degrees C (4 degrees F) in some areas), and are projected
to increase by another 1.5 to 5.5 degrees C (3 to 10 degrees F) over
the next 100 years (Mote et al. 2003, p. 54; Karl et al. 2009, p. 135).
In addition, climate change may lead to increased frequency and
duration of severe storms and droughts (Golladay et al. 2004, p. 504;
McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015).
We anticipate that these changes could directly impact southern
Selkirk Mountains caribou by modifying the factors that affect the
abundance, distribution, and quality of caribou habitat, the ability of
caribou to move between seasonal habitats, and their ability to avoid
predation. Climate change may also have impacts on caribou by affecting
external factors such as increased disease and insect outbreaks,
increased fire occurrence, and changes in snow depth. The impacts from
these effects could lead to increased habitat fragmentation and changes
in forest composition, changes in forage ability and abundance, and
changes in predation, which are each important to caribou survival.
Because of the close ties between caribou movement and seasonal snow
conditions, seasonal shifts in snow conditions will likely be
significant to the caribou (Utzig 2005, pp. 4, 8).
Review of climate change modeling presented in Utzig (2005, p. 5)
demonstrated projected shifts in habitats within the present range of
mountain caribou in Canada. Projections for 2055 indicate a significant
decrease in alpine habitats, which is loosely correlated with the
distribution of the arboreal lichens on which mountain caribou depend.
The projected biogeoclimatic zone distributions indicate a significant
increase in the distribution of western red cedar (Thuja plicata) in
the mid-term with a shift up in elevation and northward in the longer
term. Subalpine fir (Abies lasiocarpa) distribution tends to shift up
in elevation, with long-term decreasing presence in the south and on
the drier plateau portions of the present range. However, both tree
species maintain significant presence in the area presently occupied by
mountain caribou, and their increased distributions to the north may
indicate the potential for range expansion for caribou in those
northern areas (Utzig 2005, p. 5). The predictions for 2085 indicate an
increase in drier vegetation types at lower elevations, potentially
causing an increase in other ungulate species such as deer, moose, and
elk. This may result in increased predator numbers in response to
increased prey availability, and increased predation on caribou (Utzig
2005, p. 4). However, further data would be necessary to confirm this
hypothesis, and if confirmed, specific management and mitigation
measures would need to be developed. Utzig (2005, p. 10) also
identifies several uncertainties in the paper's conclusion (e.g., it is
impossible to reliably predict specific ecosystem changes and to
reliably predict potential impacts), and acknowledges that caribou
managed to survive in the last glacial period as well as intervening
climate change over the last 10,000 years.
The movement of mountain caribou is closely tied to changes in snow
depth and consolidation in the snow pack, allowing access to arboreal
lichens in winter. In general, climate change projections suggest
reduced snowpacks and shorter winters, particularly at lower elevations
(Utzig 2005, p. 7). Snowpack depth is significant in determining the
height at which arboreal lichens occur on trees, and the height at
which caribou are able to access lichens in the winter. These arboreal
lichens are also dependent upon factors influenced by climate,
including humidity and stand density (Utzig 2005, p. 7).
The information currently available on the effects of global
climate change and increasing temperatures does not make sufficiently
precise estimates of the location and magnitude of the effects, nor are
we currently aware of any climate change information specific to the
habitat of the southern Selkirk Mountains caribou that would indicate
what areas may become important to the species in the future.
Therefore, we are unable to determine what additional areas, if any,
may be appropriate to include in the proposed critical habitat
designation for this species to address the effects of climate change.
We are, however, soliciting comments on this challenging management
issue; all comments related to climate change will be fully considered
in our final determination.
Physical or Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and the regulations at 50 CFR 424.12, in determining which areas within
the geographical area occupied at the time of listing to designate as
critical habitat, we consider the physical or biological features
essential to the conservation of the species, 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 required for
the southern Selkirk Mountains caribou from studies of this species'
habitat, ecology, and life history as described below. Additional
information can be found in the final listing rule published in the
Federal Register on February 26, 1984 (49 FR 7390), the 1994 Revised
Recovery Plan for the Selkirk Mountains Woodland Caribou, and the
Southern Selkirk Mountains Caribou Population 5-Year Review completed
by the Service on December 2, 2008 (USFWS 2008a). We have determined
that the following
[[Page 74025]]
physical or biological features are essential for the southern Selkirk
Mountains caribou population.
Space for Individual and Population Growth and for Normal Behavior
The southern Selkirk Mountains caribou population requires large
contiguous areas of high-elevation forest summer and winter habitat,
with little or no vehicle access and disturbance, so they can spread
out at low densities (i.e., 30-50 caribou/250,000 ac (100,000 ha)) and
avoid predators (Seip and Cichowski 1996, p. 79; Stevenson et al. 2001,
p. 1). Mountain caribou strongly prefer old-growth forests to young
forests in all seasons (Stevenson et al. 2001, p. 1).
The primary long-term threat to the southern Selkirk Mountains
caribou is the ongoing loss and fragmentation of contiguous old-growth
forests and forest habitats due to a combination of timber harvest,
wildfires, and road development. The effects associated with habitat
loss and fragmentation are: (1) Reduction of the amount of space
available for caribou, limiting the ecological carrying capacity; (2)
reduction of the arboreal lichen supply, affecting the caribou's key
winter food source; (3) potential impacts to caribou movement patterns;
(4) potential effects to the caribou's use of remaining fragmented
habitat because suitable habitat parcels will be smaller and
discontinuous; and (5) increased susceptibility of caribou to predation
as available habitat is compressed and fragmented (Stevenson et al.
2001, p. 10; MCTAC 2002, pp. 20-22; Cichowski et al. 2004, pp. 10, 19-
20; Apps and McLellan 2006, pp. 92-93; Wittmer et al. 2007, pp. 576-
577).
Forest management practices have been a concern for caribou habitat
management for more than 25 years (Stevenson et al. 2001, p. 1; MCTAC
2002, p. 17). In the last decade, timber harvest has moved into high-
elevation mature and old-growth forest habitat types due to more roads
and more powerful machinery capable of traversing difficult terrains
(Stevenson et al. 2001, p. 10). The habitat requirements of mountain
caribou are incompatible with most currently used forest management
practices (Stevenson et al. 2001, p. 1). Timber harvesting can reduce
and fragment areas creating a patchwork of different age classes of
forest stands, all linked with a network of roads. This patchwork may
contain enough lichens to support a caribou herd, but will not allow
the herd to effectively avoid predators in the southern Selkirk
ecosystem (Stevenson et al. 2001; p. 1). A patchwork of habitat within
forests draws other ungulates such as moose (Alces alces), elk (Cervus
elaphus), and deer (Odocoileus spp.) into close proximity with caribou,
and consequently brings in predators such as mountain lions (Felis
concolor), wolves (Canis lupus), coyotes (Canis latrans), wolverines
(Gulo gulo luscus), black bears (Ursus americanus), and grizzly bears
(Ursus arctos) (Seip and Cichowski 1996, p. 79; Wittmer et al. 2005;
pp. 414-417)
The southern Selkirk Mountains caribou use habitat as an important
means of limiting the effect of predation by spreading out over large
areas at high elevations that other ungulate species avoid (Seip and
Cichowski 1996, p. 79; MCTAC 2002, pp. 20-21; Kinley and Woods 2006,
all). By dispersing over large areas, caribou become unprofitable prey
(i.e., it is not worth a predator's energy investment to seek out prey
when there are so few animals in a large area, which is often in deep
snow). The amount of habitat required by a caribou population to make
them an unpredictable prey to predators may be significantly more than
the habitat needed to obtain sufficient winter forage of lichens
(Stevenson et al. 2001, p. 15). To adequately provide for their habitat
needs, large contiguous areas of mature to old-growth western hemlock/
western red cedar forests and subalpine fir and Engelmann spruce
forests, and the connecting habitat in-between, are required. In order
for the southern Selkirk Mountains caribou population to be able to use
these areas, the habitats need to be connected, particularly during
winter when the energy costs of moving through deep snow can be high
(Stevenson et al. 2001, p. 15).
Therefore, based on the information above, we identify suitable,
large contiguous areas of habitat that allows caribou to spread out at
low densities, avoid predators, and obtain sufficient winter forage of
lichens, as a physical or biological feature (PBF) for the southern
Selkirk Mountains caribou.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Arboreal hair lichens comprise a critical winter food source, and
the southern Selkirk Mountains caribou diet is almost entirely lichens
from November to May (Servheen and Lyon 1989, p. 235; Stevenson et al.
2001, p. 1; USFS 2004, p. 18), since they represent the only food
source available (Paquet 1997, p. 13). Lichens are pulled from the
branches of conifers, picked from the surface of the snow after being
blown out of trees by wind, or are grazed from wind-thrown branches and
trees. The two kinds of lichens commonly eaten by the south Selkirk
caribou are Bryoria spp. and Alectoria sarmentosa; both are most
commonly found in high-elevation climax forests on old trees (Paquet
1997, p. 14). These lichens are extremely slow-growing, and are
typically abundant only in mature or old-growth forests (125 years or
older) (Paquet 1997, p. 2). Relative humidity, wetting and drying
cycles, and amount of light are ultimately the controlling factors of
lichen growth.
During the spring and summer, the southern Selkirk Mountains
caribou move to lower elevations to forage on grasses, flowering
plants, horsetails, willow and dwarf birch leaves and tips, sedges, and
lichens in subalpine meadows (Paquet 1997, p. 13, 16), and on
huckleberry leaves (USFS 2004, p. 18). The fall and early winter diet
consists largely of dried grasses, sedges, willow and dwarf birch tips,
and arboreal lichens.
Therefore, based on the information above, we identify arboreal
hair lichens, Bryoria spp. and Alectoria sarmentosa, which occur on
mature to old-growth trees, or are available having been blown out of
trees, to be an essential winter season PBF for this species. These
lichens also represent a PBF for female caribou that move into higher
elevations during the June-July calving season (see discussion below).
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
In spring (May to July) the southern Selkirk Mountains caribou move
to areas with green vegetation, which become the primary food source.
These areas may overlap with early and late winter ranges at mid to
lower elevations (Servheen and Lyon 1989, p. 235; MCTAC 2002, p. 11),
and vegetation in these areas allow caribou to recover from the effects
of winter (USFWS 1994, p. 7). Pregnant females will move to these
spring habitats for forage, but during the calving season in early June
to July, the need to avoid predators influences habitat selection.
Areas selected for calving are typically at high-elevation, old-growth
forest ridgetops that can be food limited, but are more likely to be
predator free (USFWS 1994, p. 8; MCTAC 2002, p. 11). Arboreal lichen
becomes the primary food source for pregnant females and females with
calves, since green forage is unavailable in these secluded and high-
elevation habitats.
Therefore, based on the information above, we identify large
contiguous areas of high-elevation, old-growth forest ridgetops, which
are likely to be predator limited, and have sufficient
[[Page 74026]]
forage of lichens to support a pregnant cow, or cow-calf pair, to be a
PBF for this species.
Habitats That Are Protected From Disturbance or Are Representative of
the Historical, Geographical, and Ecological Distributions of a Species
In general, seasonal habitats of the southern Selkirk Mountains
caribou consist of early winter, late winter, spring, calving, summer,
and fall habitats primarily within two vegetation zones: Western
hemlock/western red cedar and subalpine fir/Engelmann spruce forests
(USFS 2004, p. 18; USFWS 2008a, p. 20). Caribou typically make the
longest landscape movements during the early winter period, which may
range from several miles (kilometers) to about 30 mi (48 km) (USFS
2004, p. 22). Early winter is a period of rapid snow accumulation and
generally extends from November to mid/late January. During this time,
the southern Selkirk Mountains caribou generally inhabit mature to old-
growth western hemlock/western red cedar forests, the lower limits of
the subalpine fir and Engelmann spruce forests, and the ecotone (a zone
of transition between two different ecosystems) between these two
forest types (USFWS 2008a, p. 20). These habitats generally occur
between 4,000 and 6,200 ft (about 1,220-1,900 m) in elevation, and have
a more closed-overstory canopy (70 percent or more) to intercept snow
(USFS 2004, p. 18, USFWS 2008a, p. 20).
Caribou seek out these more closed timber stands where they feed on
a combination of lichen on wind-thrown trees, and lichens that have
fallen from standing trees (litterfall) (MCTAC 2002, p. 10). If
available, shrubs and other forbs that remain accessible in snow wells
under large trees are also consumed. A conifer canopy that intercepts
snow and allows access to feeding sites is important (MCTAC 2002, p.
10) until the snow pack consolidates and the caribou can move to higher
elevations (USFS 2004, p. 18). However, these elevational shifts can be
quite variable within and between years, depending on snow levels (Apps
et al. 2001, p. 67; Kinley et al. 2007; p. 94). All mountain caribou
experience the poorest mobility and food availability of any season
during early winter because of the typically deep, soft snow (MCTAC
2002, p. 10).
Late winter generally starts around mid-January and extends to
approximately April. During this time, the snowpack is deep (up to 16
ft (5 m) on ridge tops) and firm enough to support the animal's weight,
which allows easier movement. These upper slopes and ridge tops are
generally higher than 6,000 ft (1,830 m) in elevation, support mature
to old stands of subalpine fir and Engelmann spruce with relatively
open canopies (approximately 10 to 50 percent canopy cover), and have
high levels of arboreal lichen (USFWS 1994, p. 6; MCTAC 2002, p. 10;
USFS 2004, p. 18; Kinley and Apps, 2007, p. 15; USFWS 2008a, p. 20).
Spring is usually from May to July, when caribou move to areas that
have green vegetation to recover from the effects of winter (Servheen
and Lyon 1989, p. 235; USFWS 1994, p. 7). July to mid-October is
considered to be the summer habitat season for caribou. Southern
Selkirk Mountains caribou spend the summer in higher elevational alpine
and subalpine areas with high forage availability (USFWS 1994, p. 8).
Early summer in open-canopied stands provide forbs and huckleberry
(Vaccinium spp.) leaves. Summer range includes Engelmann spruce/
subalpine fir forests and western hemlock/western red cedar forests
(Stevenson et al. 2001, p. 1; Kinley and Apps 2007, p. 15). In the
Selkirk Mountains, the shallow slopes used in late summer are
characteristically high-elevation benches, secondary stream bottoms and
riparian areas, and seeps where forage is lush and abundant (Servheen
and Lyon 1989, p. 236).
Fall habitat (generally October into November) use by southern
Selkirk Mountains caribou is driven primarily by the availability of
forage vegetation as vascular plants disappear. Caribou may gradually
move to western hemlock dominated forests. It is during this time of
year when southern Selkirk Mountains caribou are making the transition
from green forage to arboreal lichens (Servheen and Lyon, 1989, p.
236). As winter nears, the annual cycle of habitat use by the southern
Selkirk Mountains caribou population repeats itself.
Increasing levels of winter recreational activities (e.g.,
snowmobiling) within the southern Selkirk Mountains caribou recovery
area, which includes the Colville National Forests (CNF) in Washington
and Idaho Panhandle National Forests (IPNF) in Idaho, is an emerging
threat to the southern Selkirk Mountains caribou. The numbers and
distribution of recreational snowmobilers has increased over the last
l0-15 years, due in part to improved snowmobile technology and the
increasing popularity of the sport. Snowmobiling activities have the
potential to displace caribou from suitable habitat, resulting in
additional energy expenditure by caribou when they vacate an area to
avoid disturbance (Tyler 1991, p. 191). This results in an effective
loss of habitat availability temporarily, and potentially for the long
term if caribou abandon areas characterized by chronic disturbance.
Therefore, based on the information above, we identify large
contiguous areas of old-growth or mature forests, at high-elevation
(4,000 ft (about 1,220 m) or greater) and transitional areas that
connect habitats essential to meet the life history requirements of the
southern Selkirk Mountains population of woodland caribou, and have
little to no disturbance from vehicles or other forest activities, as
physical or biological features for southern Selkirk Mountains caribou.
Primary Constituent Elements for the Southern Selkirk Mountains Caribou
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of the southern Selkirk Mountains caribou population in
areas occupied at the time of listing, focusing on the features'
primary constituent elements. We consider primary constituent elements
to be the specific compositional elements of physical and biological
features that 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 mountain
caribou's vital life-history functions, we determine that the primary
constituent elements specific to the southern Selkirk Mountains caribou
population are:
i. Mature to old-growth western hemlock (Tsuga heterophylla)/
western red cedar (Thuja plicata) climax forest, and subalpine fir
(Abies lasiocarpa)/Engelmann spruce (Picea engelmanni) climax forest
over 4,000 ft (1,220 m) in elevation; these habitats typically have 70
percent or greater canopy closure.
ii. Ridge tops with deep (up to 16 ft (5 m)) snowpack that are
generally 6,000 ft (1,830 m) in elevation or higher, in mature to old
stands of subalpine fir (Abies lasiocarpa)/Engelmann spruce (Picea
engelmanni) climax forest, with relatively open (approximately 50
percent) canopy.
iii. Arboreal hair lichen growth in high enough amounts to support
southern Selkirk Mountains caribou herds.
iv. High-elevation benches and shallow slopes, secondary stream
bottoms, riparian areas, and seeps, and subalpine meadows with
succulent forbs and grasses, flowering plants,
[[Page 74027]]
horsetails, willow, huckleberry, dwarf birch, sedges and lichens.
Southern Selkirk Mountains caribou, including pregnant females, use
these areas for feeding during the spring and summer seasons.
v. Transition zones that connect the habitats described above and
that facilitate seasonal caribou movements between habitat types.
The physical or biological features for the southern Selkirk
Mountains caribou are, therefore, the arrangement of the above habitat
types and their components and transition zones on the landscape in a
manner that supports seasonal movement, feeding, breeding, and
sheltering needs. Each of the seasonal use areas creates space on the
landscape that allows caribou to spread out and avoid predators. These
areas also have little or no disturbance from forest practices, roads,
or recreational activities.
The final listing rule states that the southern Selkirk Mountains
population of woodland caribou is the only caribou population that is
still known to regularly occupy the conterminous U.S., and is found in
northern Idaho and northeastern Washington. This population also occurs
in southern B.C. (49 FR 7390; February 29, 1984). The final rule
describes the ``area of normal utilization'' in the U.S. (starting from
the B.C. border), as: (1) Southward along Kootenay Lake and the
Kootenay River to the town of Bonners Ferry, Idaho; (2) southward along
U.S. Highway 95 to the Pend Oreille River; (3) westward and northward
along the Pend Oreille River; and (4) across the Idaho-Washington State
line to the Washington-B.C. border (49 FR 7390; February 29, 1984).
With this proposed designation of critical habitat, we intend to
conserve the physical and biological features essential to the
conservation of the species, through the identification of the primary
constituent elements sufficient to support the life-history functions
of the species. All areas proposed for designation as critical habitat
were occupied at the time of listing and contain those physical or
biological features essential to the conservation of the species, which
may require special management considerations or protections.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection.
A comprehensive discussion of the threats affecting the species is
included in the Southern Selkirk Mountains Caribou Population 5-Year
Review (USFWS 2008a), the Idaho Comprehensive Wildlife Conservation
Strategy (2005), and the Revised Selkirk Mountains Woodland Caribou
Recovery Plan (USFWS 1994). The features essential to the conservation
of this species, described above, may require special management
considerations or protections to reduce the following threats: Habitat
fragmentation of contiguous old-growth forests due to forest management
practices and activities, wildfire, disturbances such as roads and
recreation, and altered predator/prey dynamics.
Special management considerations or protection are required within
critical habitat areas to address these threats, which are occurring
within each of the subunits proposed for designation. Management
activities that could ameliorate these threats include (but are not
limited to) conservation measures and actions to minimize the effects
of forest management practices on these features, actions to minimize
the potential for wildfire and the implementation of rapid response
measures when wildfire occurs, road and recreational area closures as
appropriate to avoid or minimize the potential for disturbance-related
impacts, and reducing opportunities for predator-caribou interactions.
Existing Conservation Measures
Land and resource management plans (LRMPs) for the IPNF and CNF
have been revised to incorporate management objectives and standards to
address the above threats, as a result of section 7 consultation
between the USFWS and USFS (USFWS 2001a, b). Standards for caribou
habitat management have been incorporated into the IPNF's 1987 and
CNF's 1988 LRMP, respectively, to avoid the likelihood of jeopardizing
the continued existence of the species, contribute to caribou
conservation, and ensure consideration of the biological needs of the
species during forest management planning and implementation actions
(USFS 1987, pp. II-6, II-27, Appendix N; USFS 1988, pp. 4-10 to 4-17,
4-38, 4-42, 4-73 to 4-76, Appendix I).
These efforts contribute to the protection of the essential
physical or biological features by: (1) Retaining old-growth cedar/
hemlock stands; (2) analyzing timber management actions on a site-
specific basis to consider potential impacts to caribou habitat; (3)
avoiding road construction through old-growth forest stands unless no
other reasonable access is available; (4) placing emphasis on road
closures and habitat mitigation based on caribou needs and
requirements; (5) containing and controlling wildfires within southern
Selkirk Mountains caribou management areas to prevent loss of
coniferous species in all size classes; and (6) managing winter
recreation in the CNF in Washington, with specific attention to
snowmobile use within the Sullivan Lake Ranger District.
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we use the best scientific
and commercial 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 those currently occupied as well as those occupied at the time
of listing--is necessary to ensure the conservation of the species. The
areas we are proposing to designate as critical habitat generally
follow the recovery areas identified in the recovery plan (USFWS 1994),
which are all within the geographical area occupied at the time of
listing. Therefore, we are not currently proposing to designate any
areas outside the geographical area occupied at the time of listing,
because we believe occupied areas are sufficient for the conservation
of the species. The occupied areas identified at the time of listing in
1984 contain sufficient physical or biological features to support the
life-history functions essential for the conservation of the species.
We reviewed available information and supporting data that pertains
to the habitat requirements of the southern Selkirk Mountains caribou.
These sources of information included, but were not limited to, the
final listing noticed published in the Federal Register on February 29,
1984 (49 FR 7390-7394), the 1985 Management/Recovery Plan for Selkirk
Caribou (USFWS 1985) and appendices, the Revised Recovery Plan for the
Selkirk Mountains Woodland Caribou (USFWS 1994), and the Southern
Selkirk Mountains Caribou Population 5-Year Review (USFWS 2008a).
Additional Service documents used include the Biological Opinion and
Conference Opinion for the Modified Idaho Roadless Rule for USDA Forest
Service Regions 1 and 4 (USFWS 2008b), and
[[Page 74028]]
Biological Opinions for the continued implementation of both the CNF
and IPNF LRMPs (USFWS 2001a, b). Other information included the Idaho
Comprehensive Wildlife Conservation Strategy (2005), research published
in peer-reviewed articles, academic theses, agency reports, habitat
modeling assessments, telemetry data, and mapping information from U.S.
and Canadian sources. We also used regional Geographic Information
System (GIS) data (such as species occurrence data, land use,
elevation, topography, aerial imagery, soil data, and land ownership
maps) for area calculations and mapping.
We used the following criteria to select areas occupied by southern
Selkirk Mountains caribou at the time of listing for inclusion in
critical habitat:
(a) The geographical area occupied by the southern Selkirk
Mountains caribou at the time of listing (1984) as identified in the
final listing rule (49 FR 7390-7394).
(b) Areas representative of the distribution of the southern
Selkirk Mountains caribou seasonal habitat needs throughout the
geographical area occupied at the time of listing, with the goal of
maintaining the species' range of habitat and genetic variability.
(c) Areas that provide the essential physical or biological
features necessary to support the species' life-history requirements
under varying environmental conditions.
(d) Areas that provide connectivity between mountain caribou
habitat to provide for seasonal movement and genetic variability.
Our first step in delineating proposed critical habitat was to
identify areas that provide for the conservation of the southern
Selkirk Mountains caribou within the geographic region described as the
approximate area of normal utilization in the listing rule (49 FR 7390-
7394; February 29, 1984). This includes portions of the CNF in
Washington, and the IPNF in Idaho, and some Priest Lake Endowment Lands
managed by the state of Idaho's Department of Lands (IDL).
Critical habitat boundaries were initially identified above 4,000
ft (about 1,220 m) in elevation, which corresponds to the elevation
above which the woodland caribou are generally known to occur within
the southern Selkirk Mountains ecosystem in Idaho and Washington
(Layser 1974, p. 25-26; USFWS 1994, p. 6; USFWS 2008a, p. 2). Using a
Geographical Information System (GIS), we mapped the area described as
occupied in the 1984 final listing (49 FR 7390-7394), and delineated
areas at 4,000 ft (1,220 m) and above using a 32.8 ft (10 m) digital
elevation model. We overlayed seasonal telemetry radiolocations of
caribou collected in the southern Selkirk Mountain ecosystems (B.C.,
Idaho, and Washington), from 1987 through 2004 by the IDFG, Washington
Department of Fish and Wildlife, and the Fish and Wildlife Compensation
Program (Columbia Basin) in B.C. To further refine proposed critical
habitat boundaries, we overlaid the currently defined Recovery Area
boundaries, caribou movement corridors mapped by the IPNF (USFS 2004,
pp. 22-23), and results of the seasonal habitat suitability model
developed by Kinley and Apps (2007, entire) for the southern Selkirk
Mountains ecosystem.
After delineating areas above 4,000 ft (1,220 m) utilizing the
above methods, we filtered the results to remove isolated patches and
some larger areas along the southern boundary in Washington and Idaho
because they either lacked PCEs, were adjacent to Schweitzer ski resort
(which has a large footprint on the landscape and fragments/isolates
areas above 4,000 ft (about 1,220 m) in Idaho), or had relatively low
historical utilization based on telemetry data. We included certain
areas below 4,000 ft (about 1,220 m) in elevation where seasonal
connectivity between habitats was required. These include areas within
the IPNF north of Upper Priest Lake north to the Canadian border, along
the east and west banks of the Priest River.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for the southern Selkirk Mountains
caribou. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification, unless
the specific action would affect the PBFs in the adjacent critical
habitat.
One unit, which contains two subunits, is being proposed for
designation based on sufficient elements of the essential physical or
biological features being present to support the southern Selkirk
Mountains caribou population life-history processes.
Proposed Critical Habitat Designation
We are proposing one unit containing two subunits as critical
habitat for the southern Selkirk Mountains caribou population. The
critical habitat area described below constitutes our best assessment
of areas that meet the definition of critical habitat for the southern
Selkirk Mountains caribou population. Within the Selkirk Mountains
Critical Habitat Unit, we have identified two subunits: (1) Bonner and
Boundary Counties, Idaho; and (2) Pend Oreille County, Washington.
The approximate size and ownership of each proposed critical
habitat subunit is identified in table 1. Each subunit was occupied at
the time of listing in 1984.
TABLE 1. Proposed critical habitat unit and subunits for the
southern Selkirk Mountains population of woodland caribou. [Area
estimates reflect all land within critical habitat unit boundaries,
values are rounded to the nearest whole numbers.]
Selkirk Mountains Critical Habitat Unit
[Southern Selkirk Mountains Caribou (Rangifer tarandus caribou)]
------------------------------------------------------------------------
Land ownership by Size of unit in
Critical habitat subunit type acres (hectares)
------------------------------------------------------------------------
1. Bonner and Boundary Counties, Federal........... 222,971 ac (90,233
Idaho. ha).
State............. 65,218 ac (26,393
ha).
Private........... 15,379 ac (6,223
ha).
Subunit Total..... 303,568 ac
(122,849 ha).
2. Pend Oreille County, Federal........... 71,976 ac (29,128
Washington. ha).
State............. 0.
[[Page 74029]]
Private........... 0.
Subunit total..... 71,976 ac (29,128
ha).
Ownership Totals............ Federal........... 294,947 ac
(119,361 ha).
State............. 65,236 ac (26,400
ha).
Private........... 15,379 ac (6,224
ha).
Unit Total.................. .................. 375,562 ac
(151,985 ha).
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.
The following section presents a brief description of the Selkirk
Mountains Critical Habitat Unit, land ownership use within the Unit,
and why this Unit meets the definition of critical habitat for the
southern Selkirk Mountains caribou. Since this information is also
relevant to each of the two subunits, the subunits are not individually
described. The overall unit and subunit boundaries are depicted on the
maps included in this proposed rule.
Selkirk Mountain Critical Habitat Unit
The Selkirk Mountains Critical Habitat Unit consists of 375,562 ac
(151,985 ha) and is divided into two subunits: Subunit 1 in Bonner and
Boundary Counties, Idaho; and subunit 2 in Pend Oreille County,
Washington. The Selkirk Mountains Critical Habitat Unit consists of
land higher than 4,000 ft (1,220 m) in elevation, and is generally
bounded by State Highway 31 and 20 to the west and south in Washington,
U.S. Highway 2 to the south in Idaho, U.S. Highway 2/95 to the east in
Idaho, and the U.S./Canadian border to the north. Land ownership within
the Unit consists of 294,947 ac (119,361 ha) of Federal land (primarily
USFS), 65,236 ac (26,400 ha) of State of Idaho land, and 15,379 ac
(6,224 ha) of private land. The Federal land is administered by both
the Colville and Idaho Panhandle National Forests, with a small segment
of land managed by the Bureau of Land Management. The Selkirk Mountains
Critical Habitat Unit was occupied at the time of listing (49 FR 7390-
7394; February 29, 1984), and contains all of the physical or
biological features essential to the conservation of the southern
Selkirk Mountains caribou population.
The primary land uses within the Selkirk Mountains Critical Habitat
Unit include Federal, State, and private forest management activities
and recreational activities throughout the year, including, but not
limited to, snowmobiling, off-highway vehicle (OHV) use, backcountry
skiing, and hunting. Special management considerations or protections
needed within the Unit would need to address habitat fragmentation of
contiguous old-growth forests due to forest practices and activities,
wildfire, disturbances such as roads and recreation, and altered
predator/prey dynamics.
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
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 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. Since the southern Selkirk Mountains caribou is
listed as endangered, Federal agencies already consult with the Service
in areas currently occupied by caribou, or if the species may be
indirectly or directly affected by the action, to ensure that their
actions do not jeopardize the continued existence of the species.
Decisions by the Fifth and Ninth Circuit Courts of Appeals have
invalidated our 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, 442 (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 statutory 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 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, or
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 or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable. 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,
[[Page 74030]]
(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 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 the critical habitat for the southern Selkirk
Mountains caribou. 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 southern Selkirk Mountains population of woodland
caribou. These activities include, but are not limited to:
(1) Actions that would reduce or remove mature old-growth
vegetation (greater than 100-125 years old) within the cedar hemlock
zone at lower elevations (below 4,000 ft (1,220 m)) and within
subalpine fir/Engelmann spruce zone at higher elevations stands (at or
greater than 4,000 ft (1,220 m)), including the ecotone between these
two forest habitats. Such activities could include, but are not limited
to, forest stand thinning, timber harvest, and fuels treatment of
forest stands. These activities could significantly reduce the
abundance of arboreal lichen habitat, such that the landscape's ability
to produce adequate densities of arboreal lichen to support persistent
mountain caribou populations is at least temporarily diminished.
(2) Actions that would cause permanent loss or conversion of old-
growth coniferous forest on a scale proportionate to the large
landscape used by mountain caribou. Such activities could include, but
are not limited to, recreational area developments, certain types of
mining activities, and associated road building. Such activities could
eliminate and fragment mountain caribou and arboreal lichen habitat.
(3) Actions that would increase traffic volume and speed on roads
within mountain caribou critical habitat. Such activities could
include, but are not limited to, transportation projects to upgrade
roads or development, or development of a new tourist destination.
These activities could reduce connectivity within the old-growth
coniferous forest landscape for mountain caribou.
(4) Actions that would increase recreation in mountain caribou
recovery areas. Such activities could include, but are not limited to,
recreational developments that facilitate winter access into mountain
caribou habitat units, or management activities that increase
recreational activities within mountain caribou habitat throughout the
year, such as snowmobiling, OHV use, and backcountry skiing. These
activities have the potential to displace caribou from suitable habitat
or increase their susceptibility to predation. Displacement of caribou
may result in additional energy expenditure by caribou when they vacate
an area to avoid disturbance, and an effective loss of habitat
availability temporarily and potentially in the long-term, where
caribou abandon areas affected by chronic disturbance.
Mountain caribou strongly prefer old-growth forests to young
forests in all seasons. In designated critical habitat, management
actions that alter vegetation structure or condition in young forests
over limited areas may not represent an adverse effect to caribou
critical habitat. However, an adverse effect could result if these
types of management activities reduce and fragment areas in a manner
that creates a patchwork of different age classes or prevents young
forests from achieving old-growth habitat characteristics. For example,
a commercial thinning or fuels reduction project in a young forest may
not require formal consultation, whereas a commercial thinning or fuels
reduction project conducted within an old-growth forest may be an
adverse effect to mountain caribou critical habitat and would require
formal consultation. Federal agencies should examine the scale of their
activities to determine whether direct or indirect alteration of
habitat would occur to an extent that the value of critical habitat for
the conservation of the mountain caribou would be appreciably
diminished.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resource management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical
[[Page 74031]]
habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C.
1533(a)(3)(B)(i)) now provides: ``The Secretary shall not designate as
critical habitat any lands or other geographical areas owned or
controlled by the Department of Defense (DOD), or designated for its
use, that are subject to an integrated natural resources management
plan 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 DOD lands with a completed INRMP within the proposed
critical habitat designation.
Exclusions
Application of 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 he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he 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.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If the analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, the Secretary may exercise his
discretion to exclude the area only if such exclusion would not result
in the extinction of the species.
Exclusions Based on 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 are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors. The proposed critical habitat areas include Federal, State,
and private lands, some of which are used for timber harvest and
motorized winter recreation (e.g., snowmobiling, cross-country skiing).
Other land uses that may be affected will be identified as we develop
the draft economic analysis for the proposed designation.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Idaho Fish and Wildlife
Office directly (see FOR FURTHER INFORMATION CONTACT). During the
development of a final designation, we will consider economic impacts,
public comments, and other new information, and areas may be excluded
from the final critical habitat designation under section 4(b)(2) of
the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for the southern Selkirk Mountains population of
woodland caribou are not owned or managed by the DOD, and, therefore,
we anticipate no impact to national security. Consequently, the
Secretary does not propose to exercise his discretion to exclude any
areas from the final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. 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 proposal, we have determined that there are
currently no HCPs or other management plans for southern Selkirk
Mountains caribou, and the proposed designation does not include any
Tribal lands or trust resources. We anticipate no impact to Tribal
lands, partnerships, or HCPs from this proposed critical habitat
designation. Accordingly, the Secretary does not propose to exercise
his discretion to exclude any areas from the final designation based on
other relevant impacts.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on our specific
assumptions and conclusions in this proposed designation of critical
habitat.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.
Public Hearings
Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this proposed rule under
Executive Order 12866 (Regulatory Planning and Review). OMB bases its
determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on
[[Page 74032]]
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
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
(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.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and
Executive Order 12866. The proposed critical habitat areas include
Federal, State, and private lands, some of which are used for timber
harvest and motorized winter recreation (e.g., snowmobiling, cross-
country skiing). Other land uses that may be affected will be
identified as we develop the draft economic analysis for the proposed
designation.
This draft economic analysis will provide the required factual
basis for the RFA finding. Upon completion of the draft economic
analysis, we will announce availability of the draft economic analysis
of the proposed designation in the Federal Register and reopen the
public comment period for the proposed designation. We will include
with this announcement, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provide the necessary opportunity for public comment.
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. Since there are no energy facilities within the
footprint of the proposed critical habitat boundaries, we do not expect
the designation of this proposed critical habitat 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. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
Unfunded Mandates Reform Act
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. The lands being proposed for critical habitat
designation are predominantly owned by the State of Idaho, the U.S.
Forest Service, and the Bureau of Land Management. None of these
government entities fit the definition of ``small governmental
jurisdiction.'' Therefore, a Small Government Agency Plan is not
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), this rule is not anticipated to have
[[Page 74033]]
significant takings implications. 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 species protections and the
prohibition against take of the species both within and outside of the
proposed areas, we do not anticipate that property values will be
affected by the critical habitat designation. However, we have not yet
completed the economic analysis for this proposed rule. Once the
economic analysis is available, we will review and revise this
preliminary assessment as warranted, and prepare a Takings Implication
Assessment.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this
proposed rule does not have significant Federalism effects. A
Federalism summary impact statement is not required. In keeping with
Department of the Interior and Department of Commerce policy, we
requested information from, and coordinated development of, this
proposed critical habitat designation with appropriate State resource
agencies in Washington and Idaho. The designation of critical habitat
in areas currently occupied by the southern Selkirk Mountains caribou
may impose nominal additional regulatory restrictions to those
currently in place and, therefore, may have little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments because the areas that
contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the 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 local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the elements of physical
and biological features essential to the conservation of the species
within the designated areas to assist the public in understanding the
habitat needs of the southern Selkirk Mountains caribou population.
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)).]
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
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 have determined that there are no tribal lands that were
occupied by woodland caribou at the time of listing that contain the
features essential for conservation of the species, and no tribal lands
unoccupied by the species at the time of listing that are essential for
the conservation of the southern Selkirk mountain caribou population.
Therefore, we are not proposing to designate critical habitat for the
southern Selkirk Mountains caribou on tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Idaho Fish
[[Page 74034]]
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this package are staff members of the Idaho
Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Caribou, woodland''
under ``Mammals'' 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Caribou, woodland................ Rangifer tarandus Canada, U.S. (AK, Canada E 1984, 128E, 17.95(a) NA
caribou. ID, ME, MI, MN, (southeastern 136, 143
MT, NH, VT, WA, British Columbia
WI). bounded by the
Canada-U.S.
border, Columbia
River, Kootenay
River, Kootenay
Lake, and Kootenai
River, U.S. (ID,
WA).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95, amend paragraph (a) by adding an entry for
``Woodland caribou, (Rangifer tarandus caribou), Southern Selkirk
Mountains Population'' in the same alphabetical 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.
* * * * *
(a) Mammals.
* * * * *
Woodland Caribou (Rangifer tarandus caribou) Southern Selkirk Mountains
Population
(1) Critical habitat units are depicted for Bonner and Boundary
Counties, Idaho, and Pend Oreille County, Washington, on the maps
below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of the
southern Selkirk Mountains population of woodland caribou consist of
components:
i. Mature to old growth western hemlock (Tsuga heterophylla)/
western red cedar (Thuja plicata) climax forest, and subalpine fir
(Abies lasiocarpa)/Engelmann spruce (Picea engelmanni) climax forest
over 4,000 ft (1,220 m) in elevation; these habitats typically have 70
percent or greater canopy closure.
ii. Ridge tops with deep (up to 16 ft (5 m)) snowpack that are
generally 6,000 ft (1,830 m) in elevation or higher, in mature to old
stands of subalpine fir (Abies lasiocarpa)/Engelmann spruce (Picea
engelmanni) climax forest, with relatively open (approximately 50
percent) canopy.
iii. Arboreal hair lichen growth in high enough amounts to support
southern Selkirk Mountains woodland caribou herds.
iv. High-elevation benches and shallow slopes, secondary stream
bottoms, riparian areas, and seeps, and subalpine meadows with
succulent forbs and grasses, flowering plants, horsetails, willow,
huckleberry, dwarf birch, sedges, and lichens.
v. Transition zones that connect the habitats described above and
that facilitate seasonal caribou movements between habitat types.
(3) Critical habitat does not include manmade structures (such as
buildings, fire lookout stations, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using digital elevation models, caribou radiotelemetry points,
and caribou habitat suitability models, and were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(5) Note: Index map follows:
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[[Page 74035]]
[GRAPHIC] [TIFF OMITTED] TP30NO11.164
(6) Subunit 1: Bonner and Boundary Counties, Idaho. Map of Subunit
1, Bonner and Boundary Counties, Idaho, follows:
[[Page 74036]]
[GRAPHIC] [TIFF OMITTED] TP30NO11.165
(8) Subunit: Pend Oreille County, Washington. Map of Subunit 2,
Pend Oreille County, Washington, follows:
[[Page 74037]]
[GRAPHIC] [TIFF OMITTED] TP30NO11.166
[[Page 74038]]
* * * * *
Dated: November 16, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-30451 Filed 11-29-11; 8:45 am]
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