Vol. 78 Thursday, No. 192 October 3, 2013

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Taylor’s Checkerspot Butterfly and Threatened Status for the Streaked Horned Lark; Final Rule

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61452 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

DEPARTMENT OF THE INTERIOR these species. This rule also establishes telecommunications device for the deaf a special rule under section 4(d) of the (TDD) may call the Federal Information Fish and Wildlife Service Act to exempt certain activities from the Relay Service (FIRS) at 800–877–8339. take prohibitions of the Act and our SUPPLEMENTARY INFORMATION: 50 CFR Part 17 regulations in order to provide for the [Docket No. FWS–R1–ES–2012–0080; conservation of the streaked horned Executive Summary 4500030113] lark. Why We Need To Publish a Rule RIN 1018–AY18 DATES: This rule is effective November 4, 2013. On October 11, 2012 (77 FR 61938), Endangered and Threatened Wildlife ADDRESSES: This final rule is available we published a proposed rule to list the and Plants; Determination of on the Internet at http:// Taylor’s checkerspot butterfly Endangered Status for the Taylor’s www.regulations.gov and http:// (Euphydryas editha taylori) as an Checkerspot Butterfly and Threatened www.fws.gov/wafwo/TCBSHL.html. endangered species, and the streaked Status for the Streaked Horned Lark Comments and materials received, as horned lark (Eremophila alpestris well as supporting documentation used AGENCY: Fish and Wildlife Service, strigata) as a threatened species. In this in the preparation of this rule, will be Interior. final rule, we are finalizing our available for public inspection, by proposed determinations for these ACTION: Final rule. appointment, during normal business species under the Act. The Act requires SUMMARY: We, the U.S. Fish and hours at: U.S. Fish and Wildlife Service, that a final rule be published in order Wildlife Service (Service), determine Washington Fish and Wildlife Office, to add species to the List of Endangered endangered status for the Taylor’s 510 Desmond Drive SE., Suite 102, and Threatened Wildlife to provide checkerspot butterfly (Euphydryas Lacey, WA 98503–1263; 360–753–9440 protections under the Act. Elsewhere in editha taylori) and threatened status for (telephone); 360–753–9008 (facsimile). today’s Federal Register, we are the streaked horned lark (Eremophila FOR FURTHER INFORMATION CONTACT: Ken finalizing designation of critical habitat alpestris strigata) under the Endangered Berg, Manager, U.S. Fish and Wildlife for these species under the Act. The Species Act of 1973 (Act), as amended. Service, Washington Fish and Wildlife final critical habitat designations and This final rule adds these species to the Office, 510 Desmond Drive, Suite 102, supporting documents are published List of Endangered and Threatened Lacey, WA 98503–1263; by telephone under Docket No. FWS–R1–ES–2013– Wildlife and implements the Federal 360–753–9440; or by facsimile 360– 0009. The table below summarizes our protections provided by the Act for 753–9405. Persons who use a determination for each of these species:

TABLE 1—SUMMARY OF THE STATUS AND RANGE OF THE TAYLOR’S CHECKERSPOT BUTTERFLY AND THE STREAKED HORNED LARK

Species Present range Status

Taylor’s checkerspot butterfly— British Columbia, Canada; Clallam, Pierce, and Thurston Counties, WA; and Benton Endangered. Euphydryas editha taylori. County, OR. Streaked horned lark—Eremophila Grays Harbor, Mason, Pacific, Pierce, Thurston, Cowlitz, and Wahkiakum Counties, Threatened. alpestris strigata. WA; Benton, Clackamas, Clatsop, Columbia, Lane, Linn, Marion, Multnomah, Polk, Washington, and Yamhill Counties, OR.

This rule: species based on any of five factors: (A) • Inadequate existing regulatory • Lists the Taylor’s checkerspot The present or threatened destruction, mechanisms that allow significant butterfly as an endangered species modification, or curtailment of its threats such as habitat loss; under the Act because it is currently in habitat or range; (B) overutilization for • Other natural or manmade factors, danger of extinction throughout the commercial, recreational, scientific, or including low genetic diversity, small or species’ range. educational purposes; (C) disease or isolated populations, low reproductive • Lists the streaked horned lark as a predation; (D) the inadequacy of success, and declining population sizes; threatened species under the Act existing regulatory mechanisms; or (E) • Aircraft strikes and training at because it is likely to become other natural or manmade factors airports (streaked horned lark); and endangered within the foreseeable affecting its continued existence. future throughout the species’ range due • Pesticide use (potential threat for We have determined that these to continued threats. the Taylor’s checkerspot butterfly). species are impacted by one or more of • Establishes a special rule under the following factors to the extent that section 4(d) of the Act to exempt certain Peer Review and Public Comment the species meets the definition of an airport maintenance activities and We sought comments from operations, agricultural activities, and endangered or threatened species under the Act: independent specialists to ensure that noxious weed control activities from the our determination is based on • Habitat loss through conversion and take prohibitions of the Act and our scientifically sound data, assumptions, regulations in order to provide for the degradation of habitat, particularly from and analyses. We invited these peer conservation of the streaked horned agricultural and urban development, reviewers to comment on our listing lark. successional changes to grassland proposal. We also considered all habitat, military training, and the spread The Basis for Our Action comments and information we received of invasive plants; Under the Act, we can determine that during the comment periods and the • Predation (streaked horned lark); a species is an endangered or threatened public hearing.

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61453

Background contained a proposed special rule under prairies, shallow-soil balds (a bald is a It is our intent to discuss only those section 4(d) of the Act for the streaked small opening on slopes in a treeless topics directly relevant to the listing horned lark. The 60-day comment area, dominated by herbaceous determinations for the Taylor’s period on that proposed rule closed on vegetation), grassland bluffs, and checkerspot butterfly and the streaked December 10, 2012. On April 3, 2013, grassland openings within a forested horned lark in this final rule. A we published a document making matrix in south Vancouver Island, summary of topics relevant to this final available the draft economic analysis of northern Olympic Peninsula, the south rule is provided below. Additional the proposed critical habitat Puget Sound, and the Willamette Valley. information on both species may be designations for the Taylor’s The historical range and abundance of found in the proposed rule, which was checkerspot butterfly and the streaked the subspecies are not precisely known published October 11, 2012 (77 FR horned lark, and an amended required because extensive searches for the 61938). determinations section of the proposed Taylor’s checkerspot butterfly did not designations (78 FR 20074). We occur until recently. Northwest prairies Previous Federal Action additionally announced three public were formerly more common, larger, Candidate History information workshops and a public and interconnected, and would likely hearing, held in April 2013, on the have supported a greater distribution We first identified the Taylor’s proposed rule to list the species and the and abundance of the Taylor’s checkerspot butterfly and the streaked associated critical habitat designations. checkerspot butterflies than prairie horned lark as candidates for listing in The public comment period was habitat does today. According to Dr. our 2001 candidate notice of review reopened for 30 days, ending on May 3, Robert Pyle (2012, in litt.): (CNOR) (66 FR 54808; October 30, 2013. The final rule designating critical ‘‘Euphydryas editha taylori was previously 2001). Each candidate species is habitat for these two species is assigned a listing priority number (LPN) more widely distributed and much denser in published elsewhere in today’s Federal occurrence than is presently the case on the that is based on the immediacy and Register. magnitude of threats and taxonomic Puget Prairies. The checkerspot was Species Information—Taylor’s abundant on the Mima Mounds Natural Area status. In 2001, both of these species Preserve (NAP) and surrounding prairies in were assigned an LPN of 6, which Checkerspot Butterfly 1970. In the mid-eighties, Taylor’s reflects threats of a high magnitude that Taylor’s checkerspot butterfly is a checkerspot butterfly flew by the thousands are not considered imminent. medium-sized, colorfully marked on Rock Prairie, a private farm property west In 2004, based on new information, butterfly with a checkerboard pattern on of Tenino. All of these sites have since been we determined that the Taylor’s the upper (dorsal) side of the wings rendered unsuitable for E. e. taylori through checkerspot butterfly faced imminent management changes, and Taylor’s (Pyle 2002, p. 310). Their wings are checkerspot butterfly has dropped out of threats of a high magnitude, and we orange with black and yellowish (or assigned it an LPN of 3 (69 FR 24876; them; meanwhile, many other colonies have white) spot bands, giving them a disappeared in their vicinity through outright May 4, 2004). In 2006, the streaked checkered appearance (Pyle 1981, p. development or conversion of the habitat. horned lark was also assigned an LPN 607; Pyle 2002, p. 310). The Taylor’s The same is true for bluff-top colonies I knew of 3, based on a review indicating that checkerspot butterfly was historically in the early ’70s at Dungeness. The ongoing the continued loss of suitable lark known to occur in British Columbia, loss and alteration of habitat in the western habitat, risks to the wintering Washington, and Oregon, and its current Washington grasslands has without question populations, and plans for development, distribution represents a reduction from led to the shrinkage of Taylor’s checkerspot occurrences from a regional constellation to hazing, and military training activities over 80 locations rangewide to 14. were imminent threats to the species (71 a few small clusters.’’ FR 53756; September 12, 2006). The Taxonomy and Species Description Before the recent declines observed candidate status, with an LPN of 3 for Taylor’s checkerspot butterfly is a over roughly the last 10 or 15 years, the each species, for the Taylor’s subspecies of Edith’s checkerspot Taylor’s checkerspot butterfly was checkerspot butterfly and the streaked butterfly (Euphydryas editha). The known from an estimated 80 locations: horned lark was most recently Taylor’s checkerspot butterfly was 24 in British Columbia, 43 in reaffirmed in the November 21, 2012, originally described by W.H. Edwards Washington, and 13 in Oregon CNOR (77 FR 69994). The U.S. Fish and (1888) from specimens collected from (Hinchliff 1996, p. 115; Shepard 2000, Wildlife Service (Service) completed Beacon Hill Park in Victoria, British pp. 25–26; Vaughan and Black 2002, p. action plans for the Taylor’s checkerspot Columbia (BC). Euphydryas editha 6; Stinson 2005, pp. 93–96, 123–124). butterfly and the streaked horned lark taylori is recognized as a valid These sites included coastal and inland and set conservation targets and subspecies by the Integrated Taxonomic prairies on southern Vancouver Island identified actions to achieve those Information System (ITIS 2012a). It is and surrounding islands in the Straits of targets over the next 5 years. These one of several rare and threatened Georgia, British Columbia and the San plans can be found on the Service’s Web subspecies of Edith’s checkerspot Juan Island archipelago (Hinchliff 1996, site at: http://ecos.fws.gov/docs/action_ butterfly, including the Bay checkerspot p. 115; Pyle 2002, p. 311), as well as plans/doc3089.pdf (Taylor’s (E. e. bayensis) from the San Francisco open prairies on post-glacial gravelly checkerspot butterfly) and http:// Bay area and the Quino checkerspot (E. outwash and shallow-soil balds in www.fws.gov/wafwo/pdf/STHL_ e. quino) from the San Diego, California, Washington’s Puget Trough (Potter Action%20Plan_Sept2009.pdf (streaked region; both are federally listed under 2010, p. 1), the north Olympic horned lark). the Act. For further information, see the Peninsula (Holtrop 2010, p. 1), and On October 11, 2012, we published a proposed rule published on October 11, grassland habitat within a forested proposed rule in the Federal Register to 2012 (77 FR 61938). matrix in Oregon’s Willamette Valley list the Taylor’s checkerspot butterfly as (Benton County 2010, Appendix N, endangered and the streaked horned Distribution p. 5). lark as threatened, and to designate Historically, the Taylor’s checkerspot The 1949 field season summary for critical habitat for these two species (77 butterfly was likely distributed North American lepidoptera (Hopfinger FR 61938). This proposed rule also throughout grassland habitat found on 1949, p. 89) states that an abundant

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61454 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

distribution of the Taylor’s checkerspot Denman Island in 2005. Denman Island 1999 at these locations (Hays et al. 2000, butterfly was known from the south is located approximately 106 miles (170 p. 13; Stinson 2005, p. 95). Subsequent Puget Sound prairies: ‘‘Euphydryas km) north of Victoria, British Columbia, annual surveys at Glacial Heritage and editha (taylori), as usual, appeared by along the eastern shores of Vancouver Scatter Creek, south unit, have not the thousands on Tenino Prairie.’’ By Island in the Straits of Georgia. The detected Taylor’s checkerspot butterflies 1989, Pyle (p. 170) had reported that Taylor’s checkerspot butterfly records until reintroduction through there were fewer than 15 populations from British Columbia date from 1888 translocation to these sites resulted in remaining rangewide. Surveys in 2001 through 2011, when the last survey was occupation (Linders and Olson 2011, and 2002 of the three historical conducted. Surveys are regularly slide number 17; Bidwell 2012, pers. locations on Hornby Island, British conducted on Vancouver Island and comm.). We did not count these sites as Columbia, failed to detect any the other historical locations (Page et al. occupied in 2012, but after 3 years of Taylor’s checkerspot butterflies; the last 2009, p. iv). In 2008, a single Taylor’s positive survey data, we tentatively observation of the Taylor’s checkerspot checkerspot butterfly was detected on consider them occupied. butterfly from this location was 1995 Vancouver Island in the Courtney- Four historical locales for Taylor’s (Committee on the Status of Endangered Comox area, where they had not been checkerspot butterflies were Wildlife in Canada (COSEWIC) 2011, p. observed since 1931 (COSEWIC 2011, permanently lost in the south Puget 15). By fall 2002, only six populations pp. 15–16). Additional surveys were Sound region to development (Dupont, were known to occur rangewide, four conducted at this location, and only the JBLM Training Area 7S, Spanaway, and from the south Puget Sound region in single butterfly was observed. It is likely Lakewood in Pierce County) or Washington, one from San Juan County, that this single adult had dispersed from conversion to agriculture (Rock Prairie Washington, and one from the the Denman Island population located in Thurston County) (Stinson 2005, pp. Willamette Valley of Oregon (USFWS approximately 0.3 mi (0.5 km) away. As 93–96). In addition, several older 2002a). of 2012, the only currently known Washington specimens are labeled with occurrence of the Taylor’s checkerspot general or imprecise locality names on Current Range and Distribution butterfly in Canada is on Denman Island their collection labels (e.g., Olympia Nearly all localities for the Taylor’s (Page et al. 2009, p. 2; COSEWIC 2011, 1893; Tenino 1929; Shelton 1971; checkerspot butterflies in British p. iv). Dungeness 1999) (Stinson 2005, pp. 94– Columbia have been lost; the only Washington—In Washington, surveys 95). Some of these site names may refer location currently known from British have been conducted annually for to unknown or currently occupied Columbia was discovered in 2005 Taylor’s checkerspot butterflies in locales, but due to the imprecise nature (COSEWIC 2011, p. iv). In Oregon, currently and historically occupied of their collection data, the actual although many surveys have been sites. Surveys on south Puget Sound location of these collection sites has not conducted at a variety of historical and prairies have been conducted from 1997 been determined. potential locations within the through 2011, by the Washington Surveys of 15 prairies within the Willamette Valley, many of those have Department of Fish and Wildlife south Puget Sound landscape in 2001 failed to detect the species; the number (WDFW), Washington Department of and 2002 located Taylor’s checkerspot of locations occupied by Taylor’s Natural Resources (WDNR), Center for butterflies on only 4 sites in Thurston checkerspot butterflies in Oregon has Natural Lands Management (previously and Pierce Counties (Stinson 2005, pp. declined from 13 to 2 (Ross 2011, in litt., The Nature Conservancy of 93–96). Three of the four sites were p. 1). In Washington State, more than 43 Washington), and personnel from the found in the Bald Hill landscape in historical locales were documented for Wildlife Branch of Joint Base Lewis- southeast Thurston County. Taylor’s the Taylor’s checkerspot butterfly. In McChord (JBLM; formerly known as checkerspot butterflies were 2012, there were 11 documented Fort Lewis Army Base and McChord Air documented at the Bald Hills through locations for the Taylor’s checkerspot Force Base, respectively). In 1994, a 2007, but there have been no detections butterflies with only 1 of the localities report from Char and Boersma (1995) since, despite regular and thorough harboring more than 1,000 individuals, indicated the presence of Taylor’s surveying from 2001 through 2011 and the majority of known sites have checkerspot butterflies on the 13th (Potter 2011, p. 3). This number has daily counts of fewer than 100 Division Prairie on JBLM; no additional declined substantially in recent years as individual butterflies. locations have been reported since 1999, habitat has become increasingly shaded Due to the limited distribution and when a handful of Taylor’s checkerspot and modified by encroaching trees, few populations of the Taylor’s butterflies were observed by WDFW nonnative grasses, and the invasive, checkerspot butterfly, surveys for this (Hays et al. 2000, p. 13). Surveys have nonnative shrub Scot’s broom (Cytisus subspecies are quite thorough, generally been conducted annually on the 13th scoparius). Potter (2010, p. 1) reported consisting of a minimum of 3 days of Division Prairie since 2000; however, no multiple site visits to conduct visits during the flight period, and Taylor’s checkerspot butterflies have redundant surveys in formerly occupied occasionally numbering up to 10 or 12 been detected during the spring flight bald habitat during the 2008–2010 flight days of counts. Multiple days of counts period (Ressa 2003, pp. 7, 14; Gilbert period with no Taylor’s checkerspot during the annual flight period greatly 2004, p. 5; Linders 2012c, in litt.). butterflies observed. The subspecies is increase the reliability of abundance Taylor’s checkerspot butterflies are presumed to be extirpated from this data for butterflies; thus, we believe the believed to be extirpated from the 13th location. data on numbers of the Taylor’s Division Prairie at JBLM (Linders 2012c, The 91st Division Prairie is located on checkerspot butterflies to be highly in litt.). JBLM and encompasses approximately reliable. Four other sites in Thurston County 7,600 acres (ac) (3,075 hectares (ha)) of Canada—After years of surveys (2001 (Glacial Heritage, Scatter Creek north native grassland. Taylor’s checkerspot through 2004) at historical population and south units, and Rocky Prairie NAP) butterflies are documented at two sites in British Columbia that failed to had Taylor’s checkerspot butterflies locations within 91st Division Prairie, detect the Taylor’s checkerspot present in 1997. No Taylor’s Range 50–51, and Range 72–76. The butterflies (COSEWIC 2011, pp. 15–16), checkerspot butterflies were observed only extant, naturally occurring a population was discovered on during surveys conducted in 1998 and population of the Taylor’s checkerspot

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61455

butterfly within the south Puget Sound habitat. In 2010, a maximum count of Olympic Peninsula in Washington. is located here, and has served as the 568 Taylor’s checkerspot butterflies was Currently 14 individual locations are source population for the collection of recorded on a single day (April 3, 2010); considered occupied by the Taylor’s eggs and adult butterflies for captive normally peak daily counts from this checkerspot butterfly rangewide: propagation for reintroduction efforts. location range from 50 to 240 Denman Island (British Columbia, This is the largest population of the individuals (Hays 2011, p. 29). Canada); Eden Valley, Dan Kelly Ridge, Taylor’s checkerspot butterfly, and it Since 2007, three new Taylor’s Sequim, Bear Mountain, Three O’Clock occurs in several small, discrete patches checkerspot butterfly populations have Ridge, and Upper Dungeness (north of habitat. Maximum daily counts from been found in Clallam County on Olympic Peninsula, Washington); Range surveys conducted at this site between Olympic National Forest lands. All 72–76, Range 50–51, Pacemaker 2005–2012 ranged from 70 to 2,070 three sites are located in the Dungeness Training Area 14 (JBLM, Washington); (Randolph, unpub. data, p. 79; Wolford River watershed: Bear Mountain, Three Scatter Creek, and Glacial Heritage 2006; Olson and Linders 2010; Linders O’Clock Ridge, and Upper Dungeness (south Puget Sound, Washington); and 2011b; Linders 2012d, p. 27). (Holtrop 2009, p. 2). The U.S. Forest Beazell Memorial Forest, and Fitton In the course of conducting surveys Service (Forest Service) and WDFW are Green-Cardwell Hill (Oregon). for another rare grassland-associated currently monitoring butterfly numbers butterfly found in Washington, the at these sites annually. As of 2012, a Habitat island marble (Euchloe ausonides total of six occupied sites are known Taylor’s checkerspot butterfly insulanus), over 150 potential grassland from Clallam County: Sequim, Eden occupies open grassland habitat found locations where historical locales for Valley, Dan Kelly Ridge, Bear Mountain, on prairies, shallow-soil balds (Chappell Taylor’s checkerspot butterflies exist Three O’Clock Ridge, and Upper 2006, p. 1), grassland bluffs, and (Pyle 1989, p. 170) were surveyed for Dungeness. grassland openings within a forested the Taylor’s checkerspot butterfly in the Oregon—All of the 13 historical matrix in south Vancouver Island, north Puget Sound region during spring locales within the Willamette Valley of British Columbia; the north Olympic of 2005 through the spring of 2011 western Oregon have been surveyed Peninsula and the south Puget Sound, (Miskelly 2005; Potter et al. 2011). regularly by local lepidopterists Washington; and the Willamette Valley, Although the flight periods and habitat (McCorkle 2008, pers. comm.; Ross Oregon. The recently discovered of both butterflies overlap, no Taylor’s 2005; Stinson 2005, p. 124; Benton population on Denman Island in checkerspot butterflies were found County 2010, p. 13; Potter 2012, pers. Canada, discovered in May 2005, during these surveys. comm.). Taylor’s checkerspot butterflies occupies an area that had been clear-cut Several historical sites with were formerly reported to exist in large harvested, and is now dominated by, potentially suitable habitat were numbers (‘‘swarms on the meadows and maintained as, grass and forb surveyed on the north Olympic beside Oak Creek’’) on the upland vegetation (for details, see 77 FR 61938; Peninsula (Clallam County) during prairies of the Willamette Valley in October 11, 2012). In British Columbia, spring 2003. The Taylor’s checkerspot Lane, Benton, and Polk Counties Canada, Taylor’s checkerspot butterflies butterfly was found to occupy five (Dornfeld 1980, p. 73). Now only were historically known to occupy locations in this geographic area in remnant populations exist in Oregon. In coastal grassland habitat on Vancouver 2003. At one historical site near the 1999, Taylor’s checkerspot butterflies Island and nearby islands, not forests mouth of the Dungeness River, only a were discovered along the Bonneville that were converted to early few individuals were detected. Power Administration (BPA) right-of- successional conditions by clear-cutting. However, no Taylor’s checkerspot way corridor in an area known as Fitton In Washington, Taylor’s checkerspot butterflies were detected at this location Green-Cardwell Hill in Benton County. butterflies inhabit glacial outwash during surveys from 2005 through 2009 In 2004, surveys for the Taylor’s prairies in the south Puget Sound (McMillan 2007, pers. comm.; Potter checkerspot butterfly were expanded in region. Northwest prairies were 2012, pers. comm.). The other four the Willamette Valley, where a second formerly more common, larger, and populations were found on grassy population was discovered on grassland interconnected, and would likely have openings on shallow-soiled bald habitat openings within the Beazell Memorial supported a greater distribution and west of the Elwha River. Two of these Forest in Benton County. These two abundance of Taylor’s checkerspot sites were estimated to support at least locations for the Taylor’s checkerspot butterflies than prairie habitat does 50 to 100 adult Taylor’s checkerspot butterfly are currently the only occupied today (Pyle 2012, in litt.). On the butterflies (Dan Kelly Ridge and Eden patches known from Oregon. northeast Olympic Peninsula they use Valley), and just a few individuals were Summary—Based on historical and shallow-soil balds and grasses within a found at the two other bald sites current data, the distribution and forested landscape, as well as roadsides, (Striped Peak and Highway 112) (Hays abundance of Taylor’s checkerspot former clear-cut areas within a forested 2011, p. 1). Subsequent surveys at the butterflies have declined significantly matrix, and a coastal stabilized dune latter two sites, Striped Peak and rangewide, with the majority of local site near the Strait of Juan de Fuca Highway 112, from 2004–2011, have extirpations occurring from (Stinson 2005, pp. 93–96). The two failed to relocate or detect any Taylor’s approximately the mid-1990s in Canada Oregon sites are on grassland hills in the checkerspot butterflies. (COSEWIC 2011, p. 15), 1999–2004 in Willamette Valley within a forested In 2006, a population was discovered south Puget Sound, and around 2007 at matrix (Vaughan and Black 2002, p. 7; near the town of Sequim. Taylor’s the Bald Hills location in Washington. Ross 2008, p. 1; Benton County 2010, checkerspot butterflies have since been Several new locations harboring Appendix N, p. 5). detected annually at this location from Taylor’s checkerspot butterflies have 2006–2011 (Hays 2009, pers. comm.; been rediscovered on historical sites on Biology Hays 2011, p. 29). At this site, Taylor’s WDNR lands (USFWS 2004, pp. 3–4; Taylor’s checkerspot butterflies checkerspot butterflies inhabit USFWS 2007, p. 5) and have also been produce one brood per year. They approximately 5 ac (2 ha) of estuarine, found at new locations on natural and overwinter (diapause) in the fourth or deflation plain (or back beach), a road manipulated balds within the fifth larval instar (developmental) phase with restricted use, and farm-edge Dungeness River watershed on the north and have a flight period as adults of 10

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61456 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

to 14 days, usually in May, although paintbrush) in Washington (Char and color, body size, and wing length. depending on local site and climatic Boersma 1995, p. 29; Pyle 2002, p. 311; Molecular analysis has further borne out conditions, the flight period begins in Severns and Grosboll 2011, p. 4), and these morphological distinctions late April and extends into early July, as exclusively on narrow-leaf plantain in (Drovetski et al. 2005, p. 875). Western in Oregon, where the flight season has Oregon (Dornfeld 1980, p. 73; Ross populations of horned larks are been documented as lasting up to 45 2008, pers. comm.; Severns and Warren generally paler and smaller than eastern days (Ross 2008, p. 2). All nontropical 2008, p. 476). In 2012, the Taylor’s and northern populations (Beason 1995, checkerspot butterflies, including the checkerspot butterfly was documented p. 3). The streaked horned lark was first Taylor’s checkerspot butterfly, have the preferentially ovipositing on the described as Otocorys alpestris strigata capability to reenter diapause prior to threatened Castilleja levisecta (golden by Henshaw (1884, pp. 261–264, 267– metamorphosis during years that paintbrush) in studies conducted in 268); the type locality was Fort weather is extremely inhospitable or Washington, and in 2013, Castilleja Steilacoom, Washington (Henshaw when the larval food resources are levisecta was subsequently observed 1884, p. 267). There are four other restricted (Ehrlich and Hanski 2004, p. being utilized as a larval host plant in breeding subspecies of horned larks in 22). It is important to note that while both Washington and Oregon (Kaye Washington and Oregon: pallid horned Taylor’s checkerspot butterflies are 2013; Aubrey 2013, in litt.), as originally lark (E. a. alpina), dusky horned lark (E. obvious while on the wing during the hypothesized by Dr. Robert Pyle (Pyle a. merrilli), Warner horned lark (E. a. flight period, they are present and 2002, p. 311; Pyle 2007, pers. comm.). lamprochroma), and Arctic horned lark relatively sedentary throughout the rest Species Information—Streaked Horned (E. a. articola) (Marshall et al. 2003, p. of the year while in their larval form; we Lark 426; Wahl et al. 2005, p. 268). None of consider them a resident subspecies Streaked horned lark is endemic to these other subspecies breed within the year-round and especially vulnerable to range of the streaked horned lark, but all many forms of disturbance while in the the Pacific Northwest (historically found in British Columbia, Washington, four subspecies frequently overwinter in life-history stages prior to mixed species flocks in the Willamette metamorphosis. and Oregon; Altman 2011, p. 196) and is a subspecies of the wide-ranging Valley (Marshall et al. 2003, pp. 425– Female Taylor’s checkerspot horned lark (Eremophila alpestris). 427). butterflies and their larvae utilize plants Horned larks are small, ground-dwelling Drovetski et al. (2005, p. 877) that contain defensive chemicals known birds, approximately 6–8 inches (in) evaluated the genetic distinctiveness, as iridoid glycosides, which have been (16–20 centimeters (cm)) in length conservation status, and level of genetic recognized to influence the selection of (Beason 1995, p. 2). Adults are pale diversity of the streaked horned lark oviposition sites by adult nymphalid brown, but shades of brown vary using the complete mitochondrial ND2 butterflies (butterflies in the family geographically among the subspecies. gene. Streaked horned larks were Nymphalidae) (Murphy et al. 2004, p. The male’s face has a yellow wash in closely related to the California samples 22; Page et al. 2009, p. 2), and function most subspecies. Adults have a black and only distantly related to the three as a feeding stimulant for some bib, black whisker marks, black ‘‘horns’’ closest localities (alpine Washington, checkerspot larvae (Kuussaari et al. (feather tufts that can be raised or eastern Washington, and Oregon). There 2004, p. 147). As maturing larvae feed, lowered), and black tail feathers with was no evidence of immigration into the they accumulate these defensive white margins (Beason 1995, p. 2). streaked horned lark’s range from any of chemical compounds from their larval Juveniles lack the black face pattern and the sampled localities. Analyses host plants into their bodies. According are varying shades of gray, from almost indicate that the streaked horned lark to the work of Bowers (1981, pp. 373– white to almost black with a silver- population is well-differentiated and 374), this accumulation appears to deter speckled back (Beason 1995, p. 2). The isolated from all other sampled predation. These larval host plants streaked horned lark has a dark brown localities, including coastal California, include members of the Broomrape back, yellowish underparts, a walnut and has ‘‘remarkably low genetic family (Orobanchaceae), such as brown nape, and yellow eyebrow stripe diversity’’ (Drovetski et al. 2005, p. 875). Castilleja (paintbrushes) and and throat (Beason 1995, p. 4). This Orthocarpus, which is now known as subspecies is conspicuously more Streaked horned lark is differentiated Triphysaria (owl’s clover), and native yellow beneath and darker on the back and isolated from all other sampled and nonnative Plantago species, which than almost all other subspecies of localities, and although it was ‘‘. . . are members of the Plantain family horned lark. The combination of small historically a part of a larger Pacific (Plantaginaceae) (Pyle 2002, p. 311; size, dark brown back, and yellow Coast lineage of horned larks, it has Vaughan and Black 2002, p. 8). The underparts distinguishes this subspecies been evolving independently for some recent rediscovery in 2005 of Taylor’s from all adjacent forms. time and can be considered a distinct checkerspot butterflies in Canada led to evolutionary unit’’ (Drovetski et al. the observation that additional food Taxonomy and Species Description 2005, p. 880). Thus, genetic analyses plants (Veronica serpyllifolia (thymeleaf The horned lark is a bird found support the subspecies designation for speedwell) and V. beccabunga ssp. throughout the northern hemisphere the streaked horned lark (Drovetski et americana (American speedwell)) were (Beason 1995, p. 1); it is the only true al. 2005, p. 880), which has been being utilized by Taylor’s checkerspot lark (Family Alaudidae, Order considered a relatively well-defined butterfly larvae (Heron 2008, pers. Passeriformes) native to North America subspecies based on physical comm.; Page et al. 2009, p. 2). Taylor’s (Beason 1995, p. 1). There are 42 (phenotypic) characteristics (Beason checkerspot butterfly larvae had subspecies of horned lark worldwide 1995, p. 4). The streaked horned lark is previously been confirmed feeding on (Clements et al. 2011, entire). Twenty- recognized as a valid subspecies by the Plantago lanceolata (narrow-leaf one subspecies of horned larks are Integrated Taxonomic Information plantain) and P. maritima (sea plantain) found in North America; 15 subspecies System (ITIS 2012c). For more in British Columbia (Guppy and occur in western North America (Beason information on taxonomy, see the Shepard 2001, p. 311), narrow-leaf 1995, p. 4). Subspecies of horned larks proposed rule published on October 11, plantain and Castilleja hispida (harsh are based primarily on differences in 2012 (77 FR 61938).

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61457

Distribution Damon Point and Midway Beach on the coast on sand spits (Gilligan et al. 1994, Outer Coast (Stinson 2005, p. 63). p. 205); a few nonbreeding season Historical Range and Distribution There are scattered records of streaked records exist for the coastal counties of Streaked horned lark’s breeding range horned larks in the northern Puget Clatsop, Tillamook, Coos, and Curry historically extended from southern Trough, including sightings in Skagit (Gabrielson and Jewett 1940, p. 403). British Columbia, Canada, south and Whatcom Counties in the mid-20th Small numbers of streaked horned larks through the Puget lowlands and outer century (Altman 2011, p. 201). The last were known to breed at the South Jetty coast of Washington, along the lower recorded sighting of a streaked horned of the Columbia River in Clatsop Columbia River, through the Willamette lark in the northern Puget Trough was County, but the site was abandoned in Valley, the Oregon coast and into the at the Bellingham Airport in 1962 the 1980s (Gilligan et al. 1994, p. 205). Umpqua and Rogue River Valleys of (Stinson 2005, p. 52). There are no recent occurrence records southwestern Oregon. Over a century ago, the streaked from the Oregon coast. British Columbia—Streaked horned horned lark was described as a common In the early 1900s, the streaked lark was never considered common in summer resident in the prairies of the horned lark was considered a common British Columbia, but local breeding Puget Sound region in Washington permanent resident of the Umpqua and populations were known on Vancouver (Bowles 1898, p. 53; Altman 2011, p. Rogue River Valleys (Gabrielson and Island, in the Fraser River Valley, and 201). Larks were considered common in Jewett 1940, p. 402). The last confirmed near Vancouver International Airport the early 1950s ‘‘in the prairie country breeding record in the Rogue Valley was (Campbell et al. 1997, p. 120; COSEWIC south of Tacoma’’ and had been in 1976 (Marshall et al. 2003, p. 425). 2003, p. 5). The population declined observed on the tide flats south of There are no recent reports of streaked throughout the 20th century (COSEWIC Seattle (Jewett et al. 1953, p. 438). By horned larks in the Umpqua Valley 2003, pp. 13–14); breeding has not been the mid-1990s, only a few scattered (Gilligan et al. 1994, p. 205; Marshall et confirmed since 1978, and the streaked breeding populations existed on the al. 2003, p. 425). south Puget Sound on remnant prairies horned lark is considered to be Current Range and Distribution extirpated in British Columbia and near airports (Altman 2011, p. 201). There are sporadic records of streaked Breeding Range—Streaked horned (COSEWIC 2003, p. 15). A single horned larks along the Columbia River. lark has been extirpated as a breeding streaked horned lark was sighted on Sightings on islands near Portland, subspecies throughout much of its Vancouver Island in 2002 (COSEWIC Oregon, date back to the early 1900s range, including all of its former range 2003, p. 16). (Rogers 2000, p. 27). A number of old in British Columbia, the San Juan Washington—The first report of the reports of streaked horned larks from Islands, the northern Puget Trough, the streaked horned lark in the San Juan the Columbia River east of the Cascade Washington coast north of Grays Harbor, Islands, Washington, was in 1948 from Mountains have been re-examined, and the Oregon coast, and the Rogue and Cattle Point (Goodge 1950, p. 28). There have been recognized as the subspecies Umpqua Valleys in southwestern are breeding season records of streaked Eremophila alpestris merrilli (Rogers Oregon (Pearson & Altman 2005, pp. 4– horned larks from San Juan and Lopez 2000, p. 27; Stinson 2005, p. 51). On the 5). Islands in the 1950s and early 1960s lower Columbia River, it is probable that The current range of the streaked (Retfalvi 1963, p. 13; Lewis and Sharpe streaked horned larks breed only as far horned lark can be divided into three 1987, pp. 148, 204), but the last record east as Clark County, Washington, and regions: (1) The south Puget Sound in dates from 1962, when seven Multnomah County, Oregon (Roger Washington; (2) the Washington coast individuals were seen in July on San 2000, p. 27; Stinson 2005, p. 51). and lower Columbia River islands Juan Island at Cattle Point (Retfalvi Oregon—Streaked horned lark’s (including dredge spoil deposition sites 1963, p. 13). The WDFW conducted historical range extends south through near the Columbia River in Portland, surveys in 1999, in the San Juan Islands the Willamette Valley of Oregon, where Oregon); and (3) the Willamette Valley (Rogers 1999, pp. 3–4). Suitable nesting it was considered abundant and a in Oregon. habitat was visually searched and a tape common summer resident over a In the south Puget Sound, the recording of streaked horned lark calls hundred years ago (Johnson 1880, p. streaked horned lark is found in Mason, was used to elicit responses and 636; Anthony 1886, p. 166). In the Pierce, and Thurston Counties, increase the chance of detections 1940s, the streaked horned lark was Washington (Rogers 2000, p. 37; Pearson (Rogers 1999, p. 4). In 2000, MacLaren described as a common permanent and Altman 2005, p. 23; Pearson et al. and Cummins (in Stinson 2005, p. 63) resident in the southern Willamette 2005a, p. 2; Anderson 2009, p. 4). surveyed several sites recommended by Valley (Gullion 1951, p. 141). By the Recent studies have found that streaked Rogers (1999), including Cattle Point 1990s, the streaked horned lark was horned larks currently breed on six sites and Lime Kiln Point on San Juan Island. called uncommon in the Willamette in the south Puget Sound. Four of these No larks were detected in the San Juan Valley, nesting locally in small numbers sites (13th Division Prairie, Gray Army Islands during either survey effort in large open fields (Gilligan et al. 1994, Airfield, McChord Field, and 91st (Rogers 1999, p. 4; Stinson 2005, p. 63). p. 205; Altman 1999, p. 18). In the early Division Prairie) are on JBLM. Small There are a few historical records of 2000s, a population of more than 75 populations of larks also breed at the streaked horned larks on the outer coast breeding pairs was found at the Olympia Regional Airport and the Port of Washington near Lake Quinault, the Corvallis Municipal Airport, making of Shelton’s Sanderson Field (airport) Quinault River and the Humptulips this the largest population of streaked (Pearson and Altman 2005, p. 23; River in the 1890s (Jewett et al. 1953, p. horned larks known (Moore 2008, p. Pearson et al. 2008, p. 3). 438; Rogers 2000, p. 26). More recent 15). On the Washington coast, there are records reported larks at Leadbetter Streaked horned lark, while four known breeding sites: (1) Damon Point and Graveyard Spit in Pacific occasionally present, was never Point; (2) Midway Beach; (3) Graveyard County in the 1960s and 1970s (Rogers reported to be more than uncommon on Spit; and (4) Leadbetter Point in Grays 2000, p. 26). Surveys conducted the Oregon coast. The streaked horned Harbor and Pacific Counties. On the between 1999 and 2004 found larks at lark was described as an uncommon and lower Columbia River, streaked horned Leadbetter Point, Graveyard Spit, local summer resident all along the larks breed on several of the sandy

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61458 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

islands downstream of Portland, as habitat becomes available among comparisons with other ground-nesting Oregon. Recent surveys have private agricultural lands in the birds in the same prairie habitats in the documented breeding streaked horned Willamette Valley (Moore 2008, pp. 9– south Puget Sound showed that streaked larks on Rice, Miller Sands Spit, Pillar 11). horned larks had significantly lower Rock, Welch, Tenasillahe, Whites/ Wintering Range—Pearson et al. values in all measures of reproductive Browns, Wallace, Crims, and Sandy (2005b, p. 2) found that the majority of success (Anderson 2010, p. 16). Islands in Wahkiakum and Cowlitz streaked horned larks winter in the Estimates of population growth rate (l, Counties in Washington, and Columbia Willamette Valley (72 percent) and on lambda) that include vital rates from and Clatsop Counties in Oregon the islands in the lower Columbia River nesting areas in the south Puget Sound, (Pearson and Altman 2005, p. 23; (20 percent); the rest winter on the Washington coast, and Whites Island in Anderson 2009, p. 4; Lassen 2011, in Washington coast (8 percent) or in the the lower Columbia River indicate litt.). The Columbia River forms the south Puget Sound (1 percent). In the streaked horned larks have abnormally border between Washington and winter, most streaked horned larks that low vital rates, which are significantly Oregon; some of the islands occur breed in the south Puget Sound migrate lower than the vital rates of the arctic wholly in Oregon or Washington, and south to the Willamette Valley or west horned lark (Camfield et al. 2010, p. some are bisected by the State line. to the Washington coast; streaked 276). One study estimated that the Larks also breed in Portland horned larks that breed on the population of streaked horned larks in (Multnomah County, Oregon) at suitable Washington coast either remain on the Washington was declining by 40 percent sites near the Columbia River. These coast or migrate south to the Willamette per year (l = 0.61 ± 0.10 SD), apparently include an open field at the Rivergate Valley; birds that breed on the lower due to a combination of low survival Industrial Complex and the Southwest Columbia River islands remain on the and fecundity rates (Pearson et al., 2008, Quad at Portland International Airport; islands or migrate to the Washington p. 12). More recent analyses of territory both sites are owned by the Port of coast; and birds that breed in the mapping at 4 sites in the south Puget Portland, and were created with Willamette Valley remain there over the Sound found that the total number of dredged materials (Moore 2011, pp. 9– winter (Pearson et al. 2005b, pp. 5–6). breeding streaked horned lark territories 12). Streaked horned larks spend the winter decreased from 77 territories in 2004, to in large groups of mixed subspecies of 42 territories in 2007, a decline of over In the Willamette Valley, streaked horned larks in the Willamette Valley, 45 percent in 3 years (Camfield et al. horned larks breed in Benton, and in smaller flocks along the lower 2011, p. 8). Pearson et al. (2008, p. 14) Clackamas, Lane, Linn, Marion, Polk, Columbia River and Washington Coast concluded that there is a high Washington, and Yamhill Counties. (Pearson et al. 2005b, p. 7; Pearson and probability of south Puget Sound Larks are most abundant in the southern Altman 2005, p. 7). During the winter of population loss in the future given the part of the Willamette Valley. The 2008, a mixed flock of over 300 horned low estimates of fecundity and adult largest known population of larks is larks was detected at the Corvallis survival along with high emigration out resident at Corvallis Municipal Airport Municipal Airport (Moore 2011a, pers. of the Puget Sound. in Benton County (Moore 2008. p. 15); comm.). On the Washington coast and other resident populations occur at the Columbia River islands, there are about Population Estimates and Current Status Baskett Slough, William L. Finley, and 120–140 breeding larks (Altman 2011, p. Ankeny units of the Service’s Data from the North American 213). Data from the Washington coast Willamette Valley National Wildlife Breeding Bird Survey (BBS) indicate and Whites Islands were included in the Refuge Complex (Moore 2008, pp. 8–9) that most grassland-associated birds, population growth rate study discussed and on Oregon Department of Fish and including the horned lark, have above; populations at these sites appear Wildlife’s (ODFW’s) E.E. Wilson declined across their ranges in the past to be declining by 40 percent per year Wildlife Area (ODFW 2008, p. 18). three decades (Sauer et al. 2012, pp. 7– (Pearson et al. 2008, p. 12). Conversely, Breeding populations also occur at 9). The BBS can provide population nest success appears to be very high at municipal airports in the valley trend data only for those species with the Portland industrial sites (Rivergate (including McMinnville, Salem, and sufficient sample sizes for analyses. and the Southwest Quad). In 2010, Eugene) (Moore 2008, pp. 14–17). Much There is insufficient data in the BBS for nearly all nests successfully fledged of the Willamette Valley is private a rangewide analysis of the streaked young (Moore 2011, p. 13); only 1 of 10 agricultural land, and has not been horned lark population trend (Altman monitored nests lost young to predation surveyed for streaked horned larks, 2011, p. 214); however, see below for (Moore 2011, pp. 11–12). except along public road margins. There additional analysis of the BBS data for There are about 900–1,300 breeding are numerous other locations on private the Willamette Valley. An analysis of streaked horned larks in the Willamette and municipal lands on which streaked recent data from a variety of sources Valley (Altman 2011, p. 213). The horned larks have been observed in the concludes that the streaked horned lark largest known population of streaked Willamette Valley, particularly in the has been extirpated from the Georgia horned larks breeds at the Corvallis southern valley (Linn, Polk, and Benton Depression (British Columbia, Canada), Municipal Airport; depending on the Counties) (eBird 2013, ebird.org). In the Oregon coast, and the Rogue and management conducted at the airport 2008, a large population of streaked Umpqua Valleys (Altman 2011, p. 213); and the surrounding grass fields each horned larks colonized a wetland and this analysis estimates the current year, the population has been as high as prairie restoration site on M–DAC rangewide population of streaked 100 breeding pairs (Moore and Kotaich Farms, a privately owned parcel in Linn horned larks to be about 1,170–1,610 2010, pp. 13–15). In 2007, a large (580- County; as the vegetation at the site individuals (Altman 2011, p. 213). ac (235-ha)) wetland and native prairie matured in the following 2 years, the In the south Puget Sound, restoration project was initiated at M– site became less suitable for larks, and approximately 150–170 streaked horned DAC Farms on a former rye grass field the population declined (Moore and larks breed at 6 sites (Altman 2011, p. in Linn County (Cascade Pacific RC&D Kotaich 2010, pp. 11–13). This is likely 213). Recent studies have found that 2012, p. 1). Large, semipermanent a common pattern, as breeding streaked larks have very low nest success in wetlands were created at the site, and horned larks opportunistically shift sites Washington (Pearson et al. 2008, p. 8); the prairie portions were burned and

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61459

treated with herbicides (Moore and ¥2.4) (Sauer et al. 2012, p. 4). The U.S. south simultaneously (Altman 2011, p. Kotaich 2010, pp. 11–13). These Geological Survey (USGS), which 215). conditions created excellent quality manages the BBS data, recommends Habitat ephemeral habitat for streaked horned caution when analyzing these data due larks, and the site was used by about 75 to the small sample size, high variance, Historically, nesting habitat was breeding pairs in 2008 (Moore and and potential for observer bias in the found on grasslands, estuaries, and Kotaich 2010, p. 12), making M–DAC raw BBS data. sandy beaches in British Columbia; in the second-largest known breeding The BBS data from the Willamette dune habitats along the coast of population of streaked horned larks that Valley indicate that horned larks (as Washington; in western Washington and year. M–DAC had high use again in mentioned above, the BBS tracks only western Oregon prairies; and on the 2009, but as vegetation at the site the full species) have been declining for sandy beaches and spits along the matured, the number of breeding larks decades, which is coincident with the Columbia and Willamette Rivers. Today, has declined, likely shifting to other restrictions on grass seed field burning the streaked horned lark nests in a broad agricultural habitats (Moore and Kotaich imposed by the Oregon Department of range of habitats, including native 2010, p. 13). Agriculture (Oregon Department of prairies, coastal dunes, fallow and We do not have population trend data Environmental Quality and Oregon active agricultural fields, wetland in Oregon that is comparable to the Department of Agriculture 2011, p. 1). mudflats, sparsely vegetated edges of study in Washington by Pearson et al. Prior to 1990, about 250,000 ac (101,170 grass fields, recently planted Christmas (2008, entire); however, research on ha) of grass seed fields in the Willamette tree farms with extensive bare ground, breeding streaked horned larks indicates Valley were burned each year. Public fields denuded by overwintering Canada that nest success in the southern health and safety issues led the Oregon geese, gravel roads or gravel shoulders Willamette Valley is higher than in legislature to order gradual reductions of lightly traveled roads, airports, and Washington (Moore 2011b, pers. in field burning beginning in 1991. By dredge deposition sites in the lower comm.). The best information on trends 2009, field burning was essentially Columbia River (Altman 1999, p. 18; in the Willamette Valley comes from banned in the Willamette Valley Pearson and Altman 2005, p. 5; Pearson surveys by the Oregon Department of (Oregon Department of Environmental and Hopey 2005, p. 15; Moore 2008, pp. Fish and Wildlife (ODFW); the agency Quality and Oregon Department of 9–10, 12–14, 16). Wintering streaked conducted surveys for grassland- Agriculture 2011, p. 1). We believe that horned larks use habitats that are very associated birds, including the streaked some of the observed declines lark similar to breeding habitats (Pearson et horned lark, in 1996 and again in 2008 detections in the BBS data are al. 2005b, p. 8). (Altman 1999, p. 2; Myers and Kreager attributable to the reduction of highly Habitat used by larks is generally flat 2010, p. 2). Point count surveys were suitable burned habitats due to the field with substantial areas of bare ground conducted at 544 stations in the burning ban. Since the ban is now fully and sparse low-stature vegetation Willamette Valley (Myers and Kreager in effect, the decline in BBS primarily comprised of grasses and forbs 2010, p. 2); over the 12-year period observations of streaked horned larks is (Pearson and Hopey 2005, p. 27). between the surveys, measures of not expected to continue at the Suitable habitat is generally 16–17 relative abundance of streaked horned previously noted rate. percent bare ground, and may be even larks increased slightly from 1996 to We do not have conclusive data on more open at sites selected for nesting 2008, according to this report. Both population trends throughout the (Altman 1999, p. 18; Pearson and Hopey detections at point count stations and streaked horned lark’s range, but the 2005, p. 27). Vegetation height is within regions showed moderate rapidly declining population on the generally less than 13 in (33 cm) increases (3 percent and 6 percent, south Puget Sound suggests that the (Altman 1999, p. 18; Pearson and Hopey respectively) (Myers and Kreager 2010, range of the streaked horned lark may 2005, p. 27). Larks eat a wide variety of p. 11). Population numbers decreased still be contracting. seeds and insects (Beason 1995, p. 6), and appear to select habitats based on slightly in the northern Willamette Range Contraction Valley and increased slightly in the the structure of the vegetation rather middle and southern portions of the Streaked horned lark has experienced than the presence of any specific food valley (Myers and Kreager 2010, p. 11). a substantial contraction of its range; it plants (Moore 2008, p. 19). A key Data from the BBS may provide has been extirpated from all formerly attribute of habitat used by larks is open additional insight into the trend of the documented locations at the northern landscape context. Our data indicate streaked horned lark population in the end of its range (British Columbia, and that sites used by larks are generally Willamette Valley. Although the BBS the San Juan Islands and northern Puget found in open (i.e., flat, treeless) does not track bird counts by Trough of Washington), the Oregon landscapes of 300 ac (120 ha) or more subspecies, the streaked horned lark is coast, and the southern edge of its range (Converse et al. 2010, p. 21). Some the only subspecies of horned lark that (Rogue and Umpqua Valleys of Oregon). patches with the appropriate breeds in the Oregon portion of the The streaked horned lark’s current range characteristics (i.e., bare ground, low Northern Pacific Rainforest Bird appears to have been reduced to less stature vegetation) may be smaller in Conservation Region (BCR); therefore it than half the size of its historical range size if the adjacent areas provide the is reasonable to assume that counts of in the last 100 years. The pattern of required open landscape context; this horned larks from the breeding season range contractions for other Pacific situation is common in agricultural in the Willamette Valley are actually Northwest species (e.g., western habitats and on sites next to water. For counts of the streaked horned lark. The meadowlark (Sturnella neglecta)) shows example, many of the sites used by BBS data regularly detect horned larks a loss of populations in the northern streaked horned larks on the islands in on several routes in the Willamette part of the range, with healthier the Columbia River are small (less than Valley, and counts from these routes populations persisting in the southern 100 ac (40 ha)), but are adjacent to open show that horned larks in this BCR have part of the range (Altman 2011, p. 214). water, which provides the open been declining since 1960s, with an The streaked horned lark is an landscape context needed. Streaked estimated annual trend of ¥4.6 percent exception to this pattern—its range has horned lark populations are found at (95 percent confidence intervals ¥6.9, contracted from both the north and the many airports within the subspecies’

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61460 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

range, because airport maintenance streaked horned lark population in the According to reports from sites in the requirements provide the desired open Willamette Valley is correlated with the Willamette Valley, Oregon, nest success landscape context and short vegetation reduction in agricultural field burning. has varied from 23 to 60 percent structure. Prior to the mid-1980s, as much as depending on the site (Altman 1999, p. Although streaked horned larks use a 250,000 ac (101,000 ha) of grass seed 1; Moore and Kotaich 2010, p. 23). At wide variety of habitats, populations are fields were burned each year in the one site in Portland, Oregon, Moore vulnerable because the habitats used are Willamette Valley; in the 1990s, the (2011, p. 11) found 100 percent nest often ephemeral or subject to frequent State imposed progressive reductions in success. human disturbance. Ephemeral habitats field burning, until in 2012, virtually no Summary of Comments and include bare ground in agricultural burning was allowed (Oregon Recommendations fields and wetland mudflats; habitats Department of Environmental Quality subject to frequent human disturbance and Oregon Department of Agriculture In the proposed rule published on include mowed fields at airports, 2011, p. 1). October 11, 2012 (77 FR 61938), we managed road margins, agricultural crop Horned larks form pairs in the spring requested that all interested parties fields, and disposal sites for dredge (Beason 1995, p. 11). Altman (1999, p. submit written comments on the material (Altman 1999, p. 19). It is 11) used a small sample (n=3) of proposal by December 10, 2012. We also important to note the key role of streaked horned lark territories in the contacted appropriate Federal and State anthropogenically maintained Willamette Valley to give a mean agencies, scientific experts and landscapes in the process of creating territory size of 1.9 ac (0.77 ha) with a organizations, and other interested and maintaining habitat for the streaked range of 1.5 to 2.5 ac (0.61 to 1.0 ha). parties and invited them to comment on horned lark; without large-scale, Horned larks create nests in shallow the proposal. Newspaper notices manmade disturbance (e.g., burning, depressions in the ground and line them inviting general public comment were mowing, cropping, and deposition of with soft vegetation (Beason 1995, p. published in the Olympian in dredge spoils), available habitat would 12). Nest sites are selected from suitable Washington and in the Statesman decrease rapidly, but these same locations within male mating territories, Journal in Oregon during the reopening activities can threaten individuals when which are typically sparsely vegetated, of the public comment period following they are at sensitive life-history stages. are rockier, and have more annual our Federal Register publication that grasses than nearby areas (Pearson and made available the draft economic Biology Hopey 2005, p. 19). Female horned larks analysis for the proposed critical habitat Horned larks forage on the ground in construct the nest without help from the designations (April 3, 2013; 78 FR low vegetation or on bare ground male (Beason 1995, p. 12). Streaked 20074). As also announced in that April (Beason 1995, p. 6); adults feed mainly horned larks establish their nests in 3, 2013, document, we held a public on grass and forb seeds, but feed insects areas of extensive bare ground, and hearing in Olympia, Washington, on to their young (Beason 1995, p. 6). In the nests are almost always placed on the April 18, 2013, and held public Puget lowlands in Washington, streaked north side of a clump of vegetation or informational workshops in Lacey, horned larks have been observed another object such as root balls or soil Washington, on April 16, 2013 (two selectively foraging on the spore clumps (Pearson and Hopey 2005 p. 23; workshops), and in Salem, Oregon, on capsules of Polytrichum juniperinum Moore and Kotaich 2010, p. 18). Studies April 17, 2013. (juniper haircap moss) during the time from Washington sites (the open coast, During the two comment periods for before grasses and forbs have set seed Puget lowlands, and Columbia River the proposed rule, we received nearly and insects become plentiful (Martin islands) have found strong natal fidelity 100 comment letters addressing either 2013, in litt.; Wolf 2013, in litt.). A to nesting sites—that is, streaked horned the proposed listing or the proposed study of winter diet selection found that larks return each year to the place they critical habitat (or both) for the Taylor’s streaked horned larks in the Willamette were born (Pearson et al. 2008, p. 11). checkerspot butterfly and the streaked Valley eat seeds of introduced weedy The nesting season for streaked horned lark. During the April 18, 2013, grasses and forbs, focusing on the seed horned larks begins in mid-April and public hearing, 34 individuals or source that is most abundant (Moore ends in late August (Pearson and Hopey organizations made comments on the 2008b, p. 9). In this Willamette Valley 2004, p. 11; Moore 2011, p. 32; Wolf proposed rule. All substantive study, a variety of grasses (Digitaria 2011, p. 5). Clutches range from 1 to 5 information provided during comment sanguinalis (large crabgrass), Panicum eggs, with a mean of 3 eggs (Pearson and periods has either been incorporated capillare (witchgrass), and Sporobulus Hopey 2004, p. 12). After the first directly into this final determination or sp. (dropseed)), unidentified grasses nesting attempt in April, streaked is addressed below. (Poaceae), and forbs (Chenopodium horned larks will often re-nest in late Peer Review album (common lambsquarters), June or early July (Pearson and Hopey Amaranthus retroflexus (redroot 2004, p. 11). Young streaked horned In accordance with our peer review pigweed), Trifolium arvense (rabbitfoot larks leave the nest by the end of the policy published on July 1, 1994 (59 FR clover) and Kickxia sp. (cancerweed)) first week after hatching, and are cared 34270), we solicited expert opinion were common in the winter diet of the for by the parents until they are about from four knowledgeable individuals streaked horned lark (Moore 2008b, p. 4 weeks old, when they become with scientific expertise that included 16). independent (Beason 1995, p. 15). familiarity with the Taylor’s Streaked horned larks have a strong Nest success studies (i.e., the checkerspot butterfly and its habitats, affinity for recently burned habitats. An proportion of nests that result in at least biological needs, and threats, and from experimental study at JBLM found that one fledged chick) in streaked horned three knowledgeable individuals with larks had a highly significant preference larks report highly variable results. Nest scientific expertise that included for burned versus unburned fields, and success on the Puget lowlands of familiarity with the streaked horned lark in the breeding season following a fire, Washington is low, with only 28 percent and its habitats, biological needs, and lark abundance was significantly higher of nests successfully fledging young threats. We received responses from two on the burned plots (Pearson et al. (Pearson and Hopey 2004, p. 14; of the peer reviewers on the proposed 2005a, p. 14). The decline of the Pearson and Hopey 2005, p. 16). listing of the Taylor’s checkerspot

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61461

butterfly. Both peer reviewers felt that (2) Comment: One peer reviewer however, in a metapopulation structure, the proposed rule was a thorough stated that, because of the discontinuous other closely situated populations may description of the status of the Taylor’s distribution of E. editha taylori, further expand at the same time others are checkerspot butterfly and commented taxonomic evaluation utilizing failing. By allowing recolonization of that they considered the proposed rule molecular genetics techniques would habitat patches where extirpation has well researched and well written, and better determine the amount of genetic taken place, metapopulation structure one commenter stated that the rule divergence within and between known supports the presence of the comprehensively represented the populations. (sub)species on a larger landscape, current scientific knowledge for the Our response: The Service agrees that while they are still found in distinct taxon. Both peer reviewers had several having a complete genetic evaluation is separate patches of habitat. Without substantive comments on the proposed beneficial when determining differences metapopulation structure, the Taylor’s listing of the Taylor’s checkerspot within and between broadly distributed checkerspot butterfly will likely become butterfly, which we address below. We species. We are currently collaborating extirpated at several of the locations received responses from three of the with U.S. Forest Service geneticists and where it is currently is found. peer reviewers on the proposed listing their Genetics Laboratory (Placerville, (5) Comment: One peer reviewer of the streaked horned lark. Two of the California), and other conservation supports our ideas about active peer reviewers felt that the proposed partners on collecting tissues and using management to maintain early seral rule was a thorough description of the established genetic markers to analyze conditions in occupied habitats and status of the streaked horned lark, and the genetic structure of the Taylor’s about the maintenance of dispersal stated that we had used the best checkerspot butterfly and its closely corridors between areas having the most available science in reaching our related subspecies. The objective is to dense populations of the Taylor’s conclusions; one peer reviewer felt that determine the genetic identity of the checkerspot butterfly. The peer reviewer we had failed to use available Taylor’s checkerspot butterfly. At this cautions that management treatments to information on the trend in population time, the Taylor’s checkerspot butterfly remove encroaching tree, shrubs, and numbers of the streaked horned lark in is a declining taxon found only on a few nonnative grasses still does not the Willamette Valley (available from declining habitat patches throughout the guarantee the persistence of the the Breeding Bird Survey database), and subspecies’ range, and the statute subspecies on areas designated as provided that data for our consideration. directs us to make our listing critical habitat. He states that Two peer reviewers had several determination based upon the best populations of E. editha are well known substantive comments on the proposed scientific data available at the time of to appear and disappear over large areas listing of the streaked horned lark, our evaluation. without any obvious explanation. (3) Comment: One peer reviewer Our response: We agree with the which we address below. Our requests mentioned that during mild winters the importance of active management, and for peer review are limited to a request adult flight season for the Taylor’s that without regular management for review of the merits of the scientific checkerspot butterfly can begin as early activities to sustain ecosystem information in our documents; if peer as March 31 (as in 2005, although this processes, we would quickly lose small reviewers have volunteered their was an early season outlier). For populations where we are working to personal opinions on matters not example, the peer reviewer states that enhance and maintain Taylor’s directly relevant to the science of our he personally observed an adult on checkerspot butterfly habitat. As noted status assessment, we do not respond to March 31, and that adults were still in in this rule, the lack of active those comments here. flight in late April in Oregon that year management, or the ecosystem Comments From Peer Reviewers (2005). processes to maintain early seral Our response: We agree and consider conditions, is a threat to the subspecies Taylor’s Checkerspot Butterfly the adult flight period for the subspecies through the loss of habitat, which is to be variable from year to year, (1) Comment: One peer reviewer quickly rendered unsuitable and primarily dependent upon the local stated that the taxonomy section of the becomes unavailable for the butterfly’s annual weather patterns during the late proposed rule was incomplete with use, leading to extirpation. winter, and early spring of the specific (6) Comment: One peer reviewer took regard to its description of the full flight year. We discuss in this final rule issue with our use of the word species Euphydryas editha (Edith’s an example of adult Taylor’s ‘‘collection’’ of butterflies for scientific checkerspot butterfly). He states the checkerspot butterflies in flight as late studies. He suggests there is no evidence taxonomy of the full species E. editha is as the first week of July at the Olympic that collection of specimens has more complicated than we summarized. Peninsula sites, which are located at contributed to the decline of the However, the peer reviewer added that higher elevation than any other location Taylor’s checkerspot butterfly. despite the incomplete taxonomic within the subspecies’ range. Our response: We agree that we treatment for the full species E. editha, (4) Comment: One peer reviewer inappropriately used this term when we the taxonomic treatment of E. editha commented that the Taylor’s meant to discuss ‘‘capture’’ as it is taylori in the proposed rule is consistent checkerspot butterfly most likely directly related to ‘‘mark, release, and with the most recent literature. exhibited and persisted as a recapture’’ studies. We have made this Our response: For the purpose of a metapopulation composed of large and change in this final rule, and replaced listing document, we provide a non- small populations that interacted within any mention of the term ‘‘collection’’ technical physical and biological a larger landscape context, with with ‘‘capture,’’ except where we are description of the species, and a frequent extinction and colonization discussing a collection of specimens. taxonomic description of the entity we events. (7) Comment: One peer reviewer intend to list, which is subspecies Our response: We agree with the expressed concern about the violations Euphydryas editha taylori in this case. concept of a metapopulation structure of section 9 of the Act that prohibit, We typically do not describe the full for Taylor’s checkerspot butterfly. Small ‘‘Unauthorized collecting, handling, species from which the subspecies was populations known only from small possessing, selling, delivering, carrying derived. habitat patches may become extirpated; or transporting of the species, including

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61462 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

export and import across state lines and checkerspot butterfly are equal. Streaked Horned Lark international boundaries, except for Although some adult butterflies may be (11) Comment: One peer reviewer and properly documented antique observed using what appears to be a several other commenters disagreed specimens of these taxa at least 100 general nectar source (e.g., dandelion), it with our assessment of the status of the years old, as defined by section 10(h)(1) may not be the optimal resource, only streaked horned lark as threatened of the Act.’’ Given the need for genetic what is available. Individual butterflies rather than endangered. In our proposed and molecular phylogenetic studies of may be relegated to using a less-than- rule, we stated that there was E. editha taylori, he disagreed with the optimal nectar source because that insufficient data in the Breeding Bird idea of restricting the movement of source now dominates a particular site. Survey (BBS) data to estimate a specimens that are less than 100 years It is unknown whether the Taylor’s rangewide trend for the streaked horned old. He questions how specimens that checkerspot butterfly could survive lark. The peer reviewer referenced the have been legally collected as vouchers solely on dandelion as a nectar source. trend analysis that is available via the and preserved for the purpose of future Additionally, nectar sources are only BBS Web site for the Northern Pacific genetic, molecular, and morphological one determinant in characterizing the Rainforest Bird Conservation Region studies would become illegal if the overall habitat requirements for this (BCR) for the horned lark; although data species were to be listed as endangered. subspecies. are not available at the subspecies level, He strongly encourages the Service to (9) Comment: One peer reviewer he makes the assumption that as the allow the act of possessing and commented that the Service should streaked horned lark is the only transporting specimens legally obtained consider the increased disease pressure breeding subspecies of the horned lark prior to the listing of the species in on populations of the Taylor’s in western Oregon, and that horned lark 2013, in order to facilitate and checkerspot butterfly during counts from that BCR can be reasonably contribute to the scientific study of the overwintering due to the predicted subspecies. interpreted as counts of the streaked Our response: The proposed rule increase in winter precipitation. The horned lark. From his analysis of the overstated the prohibitions in section 9 reviewer stated that increased BBS data, he concludes that the of the Act. After listing takes effect, precipitation as a general rule may have Willamette Valley population of the mere possession of a specimen, deleterious impacts to lepidopteran streaked horned lark is declining at a provided the specimen was not (butterfly) larvae. The commenter also rate of about 5 percent per year. collected in violation of the Act, is not stated that there appears to be no In addition, the peer reviewer prohibited, and interstate transportation information available on the incidence conducted his own analysis of five of such a specimen for the purpose of of disease and its impacts to phenology individual BBS routes in the Willamette genetic testing is not prohibited as long among E. e. taylori larvae. Valley. He found that two routes had as it does not occur in the course of a Our response: We agree with both of increasing trends (Scio and Salem), and commercial activity. This description of these comments. We did not consider three had declining trends (Adair, the prohibitions has been corrected in increased pressure, or an increase in the Dayton, and McMinnville). He states this final rule. incidence of disease due to the that larks were first detected on BBS (8) Comment: One peer reviewer predicted increase in winter routes in the Willamette Valley in 1971, suggested that we include additional precipitation, in our threats analysis. and their numbers began declining in information in our section on the nectar We observed examples of the impacts of 1989. He used a 5-year moving average foods used in Oregon by the Taylor’s late winter inundation or frost events in to show a ‘‘smoothed out’’ presentation checkerspot butterfly. However, the peer occupied Taylor’s checkerspot butterfly of the data. He particularly focused on reviewer incorrectly stated we should habitat as having a direct mortality the Adair BBS route, which had the better describe the use of Fraxinus effect to some populations, and how most significant declining trend; in (Oregon ash), as the primary nectar anecdotally, the population counts three 5-year periods in the Adair BBS source available to the Taylor’s during those years (2009, 2010) at those route data, the route had high numbers checkerspot butterfly in Oregon. We population centers were lower. of larks in the 1970s, lower numbers in believe the reviewer mistakenly used the late 1980s through early 1990s, and (10) Comment: One peer reviewer the term Fraxinus, when meaning to then substantially lower numbers in the commented on how larvae of describe Fragaria virginiana (wild 2000s. The peer reviewer concluded Euphydryas spp. are known to be able strawberry). Another commenter that the streaked horned lark population to respond to adverse environmental pointed out that Taylor’s checkerspot in the Willamette Valley has been conditions by delaying development butterflies have been observed using declining steadily since the early 1990s. dandelion (Taraxacum officinale) as a when host plants are limited or of poor The peer reviewer asserted that our nectar source, which he believes is an quality, as the larvae may re-enter failure to examine the BBS data is indicator of more general habitat diapause for an additional 12 months. highly relevant because one of the key requirements of this subspecies. The reviewer stated that this is an factors used in the determination of Our response: We did correctly adaptation to surviving in unreliable threatened rather than endangered discuss the use of Fragaria virginiana, environments and will serve to mitigate status was the perceived stability of lark not Fraxinus, as it is the most against ‘‘phenological mismatch’’ of the populations in the Willamette Valley, widespread of nectar resources in larvae and host plants. based on the repeated ODFW roadside Oregon, and Fragaria virginiana is Our response: We agree that during surveys in 1996 and 2008, and studies readily used by the Taylor’s checkerspot poor weather years, populations of the of lark populations at ‘‘protected’’ sites butterfly at all locations in Oregon. We Taylor’s checkerspot butterfly appear (William L. Finley National Wildlife have added Plectritis congesta, lower compared to other years, and we Refuge and Corvallis Municipal Amelanchier alnifolia, and Calochortus presume that E. e. taylori larvae have Airport). tolmiei as nectar resources at sites likely re-entered diapause. We have Our response: In order to evaluate this where each are found, with C. tolmiei addressed re-entering diapause in the new analysis of the Breeding Bird found only in Oregon. Not all nectar section of this final rule discussing the Survey data, we requested assistance sources potentially used by the Taylor’s biology of the subspecies. from scientists at the USGS Patuxent

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61463

Wildlife Research Center, which in field burning beginning in 1991. By benefit from active management, and manages the BBS data. USGS agreed 2009, field burning was essentially asked if there might also be some other with the assertion that the BBS analysis banned in the Willamette Valley, with sites in Oregon that are being managed includes all subspecies of horned larks the exception of a limited area in the for other species in a way that benefits in the Northern Pacific Rainforest BCR, northeastern portion of the valley, streaked horned larks. and consequently, with no other horned where the practice is allowed only for Our response: We have augmented the larks breeding in the area, that the specific types of perennial grasses, or discussion of the population trends in trends for this BCR are equivalent to the fields on highly erodible steep lands Oregon and Washington in the text of trends for the streaked horned lark. (Oregon Department of Environmental this final rule. As to the issue of why However, in general, USGS indicated Quality and Oregon Department of there are more streaked horned larks, or that the peer reviewer failed to Agriculture 2011, p. 1). Another peer if the population trend is different in acknowledge the high level of reviewer commented on the affinity of Oregon versus Washington, we do not uncertainty of his conclusions given the larks for burned areas, as evidenced by have any additional information at this small sample sizes, high variance, and use of recently burned habitats at JBLM. time to answer those questions. It may potential for observer bias in the raw We will pursue this issue in recovery be that there is simply more open land BBS data. USGS noted that the peer planning for the streaked horned lark. in the Willamette Valley in Oregon, and reviewer correctly described the We believe that some of the observed the valley’s large agricultural industry patterns of population change shown in declines lark detections in the BBS data provides the frequent disturbance the BBS data, but USGS urges caution are attributable to the reduction of regime that creates the habitat structure in the interpretation of trends with highly suitable burned habitats due to needed by larks. We will evaluate these small sample sizes such as that available the field burning ban. As the ban is now issues during the recovery planning for the Northern Pacific Rainforest BCR. fully in effect, the rate of decline as process for the streaked horned lark. The BBS Web site guidelines for noted in BBS observations of streaked (13) Comment: One peer reviewer and credibility indicate that this should be horned larks is not expected to continue one other commenter believed our noted as a deficiency. USGS also at the previously noted rate. approach to listing the streaked horned pointed out that there is an indication In summary, the peer reviewer lark would not result in sufficient of observer bias in the Adair route data, presented new information about the protections to acheive recovery. In which the peer reviewer used as the declining population of streaked horned particular, the peer reviewer believed strongest indicator of declining larks in the Willamette Valley, and we that the combination of threatened population. USGS notes that there is appreciate the reviewer’s efforts to status, our promulgation of a special indeed a decline in numbers, but that present us with an alternative analysis rule for agricultural activities and wildlife hazard management at airports, the most dramatic declines occurred of the available data. This information and a somewhat limited critical habitat during the transition between the provides a more complete picture of the designation would result in inadequate second and third observer on the route; status of the subspecies, but based upon protection for the streaked horned lark. when observer #3 took over after a gap our evaluation, with assistance from The commenter stated that he believes of 14 years (1992–2006), markedly fewer scientists at USGS who are expert in we put too much effort put into streaked horned larks were observed. analysis of BBS data, we believe the alleviating potential conflicts with land Given this information, it is difficult to streaked horned lark still meets the definition of threatened rather than managers rather than focusing on ascertain how much of the observed endangered. The Act defines a measures to ensure conservation of the decline is real, and how much of the threatened species as one which is streaked horned lark, and that this apparent decline may be biased by a likely to become an endangered species approach will be inadequate to move change in observers. Therefore, although within the foreseeable future throughout the species on a trajectory away from the peer reviewer has provided us with all or a significant portion of its range. the need for listing. an analysis that raises some questions An endangered species is defined as any Our response: Our determination that about the population trend of the species which is in danger of extinction the streaked horned lark is threatened streaked horned lark in the Willamette throughout all or a significant portion of rests on our application of the scientific Valley, we do not feel these data are its range. Given that streaked horned data to the Act’s definition of a sufficiently reliable to alter our larks still occur in many locations threatened species, and not on our conclusion regarding the status of the across a large area of the Willamette expectations about the best means to subspecies. Valley, and that some of these sites conserve the species. Regarding the We also note that the peer reviewer’s harbor large populations, we agree that reviewer’s comment with respect to the analysis of the steady decline in the streaked horned lark has declined proposed 4(d) special rule and proposed streaked horned lark detections since and may be continuing to decline, but critical habitat, we believe it is the early 1990s correlates with the listing as threatened remains important to recognize that listing, beginning of the field burning appropriate, as the best available critical habitat designation, and section restrictions implemented by the Oregon scientific and commercial data do not 4(d) of the Act are part of the suite of Department of Agriculture, which we indicate that extinction of the species is tools that the Service has available to noted earlier in this document. Prior to imminent. conserve listed species, but do not in 1990, about 250,000 ac (101,170 ha) of (12) Comment: One peer reviewer and of themselves conserve the species. grass seed fields in the Willamette suggested that it would be useful to Once a species is listed as either Valley were burned each year. Public discuss the potential reasons that the endangered or threatened, the Act health and safety issues (triggered by a Washington population of streaked provides many tools to advance the catastrophic traffic accident on horned larks appears to be declining conservation of listed species; available Interstate 5 caused by smoke from field and the Oregon population appears tools include recovery planning under burning that obscured the road, more stable. The peer reviewer noticed section 4 of the Act, interagency resulting in 7 deaths and 38 injuries) that three of the areas proposed as cooperation and consultation under resulted in a decision by the Oregon critical habitat in Oregon are on section 7, grants to the states under legislature to order gradual reductions National Wildlife Refuges where they section 6, and safe harbor agreements

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61464 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

and habitat conservation plans under instances, easing the general take streaked horned lark is to allow section 10. The streaked horned lark is prohibitions on non-federal agricultural landowners to continue those activities an unusual case in that nearly all of its lands may encourage continued land without additional regulation. We existing habitats have been created by uses that provide an overall benefit to believe that imposing a timing industrial land uses (e.g., agriculture, the species. We also believe that such a restriction would likely reduce the airport maintenance, dredge spoil special rule will promote the utility of the special rule for land disposal), in which creation of lark conservation efforts and private lands managers, and could have the habitat is not the intended purpose. partnerships critical for species recovery unintended side effect of causing Long experience in working with (Bean and Wilcove 1997, pp. 1–2). We landowners to discontinue their habitat commercial and industrial partners have believe that it is appropriate to use the creation activities. Accordingly, we shown us that a more collaborative flexibility offered by the Act to have not modified the special rule to approach, rather than a strictly recognize the important contributions include timing restrictions; however, we regulatory one, will be more effective in made by the agricultural community to intend to offer education and assistance recovering streaked horned larks on the creation of suitable habitat for to landowners to help them protect and private lands. We expect that the streaked horned larks, and to encourage increase the populations of larks on conservation program for the streaked them to continue to do so, rather than their lands, if they are amenable. horned lark will take advantage of all of to see them switch to other crops or the creativity and flexibility offered by land uses to avoid the real or perceived Comments From States the Act. burden of the regulations associated Comments we received from States (14) Comment: One peer reviewer and with listed species. We acknowledge regarding the proposal to list the several other commenters stated that the that the agricultural activities covered in Taylor’s checkerspot butterfly and the proposed 4(d) rule for streaked horned the 4(d) rule are broad. We modeled this streaked horned lark are addressed lark is too broad, particularly the special rule on the similar special rules below. We received comments from portion that exempts take associated promulgated for the California tiger Washington Department of Fish and with routine agricultural activities on salamander (Ambystoma californiense) Wildlife (WDFW), Washington non-federal lands in the Willamette (69 FR 47212; August 4, 2004) and Department of Natural Resources Valley. The commenters felt that this California red-legged frog (Rana aurora (WDNR), and Washington State exemption is inappropriate and does not draytonii) (71 FR 19244; April 13, 2006), Department of Transportation (WSDOT) contribute to conservation of the two species which also depend on the related to biological information, species. The commenters suggested that availability of agricultural lands for threats, critical habitat exclusions, the we should eliminate the special rule, habitat in large portions of their ranges. inadequacy of regulatory mechanisms, and instead use other regulatory As we stated in the proposed rule, we and recommendations for the mechanisms (e.g., candidate believe that in the long term, it is a management of habitat. conservation agreements with benefit to the streaked horned lark to The agencies provided a number of assurances, habitat conservation plans, maintain those aspects of the Willamette recommended technical corrections or and safe harbor agreements) to ensure Valley’s agricultural landscape that can edits to the proposed listing of the the creation of habitat for larks on aid in the recovery of the species. We Taylor’s checkerspot butterfly and the agricultural lands. believe the special rule will further streaked horned lark. We have evaluated Our response: The purpose of the 4(d) conservation of the species by special rule is to recognize the larger and incorporated this information into discouraging conversions of the this final rule when and where conservation value of maintaining agricultural landscape into crops or appropriate to clarify this final listing existing farmland habitats that support other land uses unsuitable for the rule. In instances where the Service may streaked horned larks, even though streaked horned lark; our objective is to have disagreed with an interpretation of some farming activities may adversely allow landowners to continue managing the technical information that was affect the species. Activities likely to the landscape in ways that meet the provided, we have responded to the occur in those landscapes, should needs of their operations while State directly. ongoing agricultural activities cease, simultaneously providing suitable such as suburban development or habitat for the streaked horned lark. It (16) Comment: WDFW encouraged the transition to orchards and nursery stock, is important to note, however, that the Service to assist the State with would permanently remove habitat 4(d) special rule is just one tool we will alternative methods of achieving the essential to the streaked horned lark. We use to maintain habitat for larks on conservation and recovery of the believe that exempting take as the result agricultural lands in the Willamette species, including programmatic safe of agricultural activities described in the Valley. We hope to engage the harbor agreements, habitat conservation special rule is necessary and advisable agricultural community in education plans, conservation banks, or other to provide for the conservation of and outreach efforts; we will also use a incentive-based partnerships. streaked horned larks by helping to variety of other incentive programs to Our response: The Service appreciates ensure the maintenance of those engage private landowners who are our strong conservation partnership beneficial land uses that provide habitat willing to do more to conserve streaked with the State of Washington, and will used by the subspecies. horned larks on their lands. give full consideration to these ideas as In the 40 years since the passage of (15) Comment: One peer reviewer we develop the recovery plans for the the Act, the Service has learned that asked us to modify the proposed 4(d) Taylor’s checkerspot butterfly and the relying on regulation alone is not an special rule to include timing streaked horned lark. Such conservation effective means for engaging private restrictions on covered activities to measures are outside of the scope of the landowners in endangered species minimize disturbances to nesting present rulemaking, however, which is conservation. On the agricultural lands streaked horned larks. restricted to the question of whether the in the Willamette Valley, habitat for Our response: Our purpose in species meet the definition of an streaked horned larks would not exist promulgating a special rule to exempt endangered or threatened species, and but for the activities of private take associated with activities that should be listed under the authority of landowners. We believe that, in certain inadvertently create habitat for the the Act.

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61465

(17) Comment: WDFW was concerned directly exposed to the pesticides. The Comments From Federal Agencies that allowing any timeframe for mowing Service does not anticipate the need for (21) Comment: The Natural Resources in Taylor’s checkerspot butterfly habitat pesticide spraying on habitat occupied Conservation Service asked how the could crush butterfly larvae as well as by Taylor’s checkerspot butterflies. special rule would affect farmers who their host plants. However, if pesticide were to be sprayed are already implementing conservation Our response: It is our understanding in areas where pesticide drift would practices on their lands. In addition, the that when larvae are in diapause they expose Taylor’s checkerspot butterflies Oregon Farm Bureau asked for more are usually deep in the vegetation, or to the pesticide(s), then we would be specific information on the agricultural within the soil itself. At the time larvae concerned with their application in activities covered in the special rule, are in diapause, most of the host plant these situations. The Service and requested that we make the rule (except narrow-leaf plantain) and nectar acknowledges the use of pesticides as more consistent with Oregon farming food resources are dormant. It is harmful to the Taylor’s checkerspot practices as described by the Oregon possible to do considerable management butterfly at all life stages. We State Legislature. These commenters on prairies without harm to the target specifically discourage the use of asked for definitions of the terms used conservation species. Our insecticides such as Bacillus in the draft special rule, including: (1) recommendation for habitat thuringiensis var. kurstaki (BtK) in ‘‘routine’’ as it applies to seasonal management in occupied Taylor’s forested areas adjacent to Taylor’s farming and ranching activities, (2) checkerspot butterfly habitat is to mow checkerspot butterfly habitat. This ‘‘normally acceptable and established high during diapause to avoid harm to insecticide, which is used for harmful levels of livestock grazing,’’ and (3) the larvae and to avoid destruction to larval defoliators like gypsy moth and spruce scope of the term ‘‘irrigation.’’ host plants, including Plantago. For budworm, has been implicated in the Our response: The special rule for more information on recommended best loss of three populations of the Taylor’s routine agricultural practices is prairie management practices, please checkerspot butterfly in Pierce County, intended to promote land uses that are contact the Washington Fish and Washington, during the early 1990s, compatible with the conservation of Wildlife Office of the U.S. Fish and when it was applied adjacent to Taylor’s streaked horned larks on private lands Wildlife Service for a copy of the Prairie checkerspot butterfly habitat. Landowner Guide for Western (20) Comment: WSDOT requested that with no Federal agency involvement. If Washington (see ADDRESSES). we expand the coverage offered by the a landowner wishes to participate in (18) Comment: WDNR recommended special rule for the streaked horned lark any of the wildlife conservation that we consider promulgating a 4(d) to include roadside management incentive programs, such as those special rule to exempt take of the activities that are similar to those offered by the Natural Resources Taylor’s checkerspot butterfly proposed for airports and agricultural Conservation Service, then those associated with habitat restoration and operations. They specifically requested activities would need to be reviewed in maintenance activities. coverage for vegetation management of interagency consultation under section Our response: Under section 4(d) of roadside rights-of-way, including 7 of the Act between the Service and the the Act, a special rule may be mechanical mowing, weed control, and Federal action agency involved in the promulgated only for threatened woody vegetation control; the conservation program if the action may species. Our review of the best scientific commenter stated that these vegetation affect streaked horned larks. If a private and commercial data available indicates management activities are consistent landowner wishes to implement that the Taylor’s checkerspot butterfly is with the activities covered on airports conservation actions for streaked horned in danger of extinction throughout its and agricultural lands, and would larks without Federal agency range, and we are listing the Taylor’s provide suitable streaked horned lark involvement, and if those activities have checkerspot butterfly as endangered; habitat along highways and roadside a net benefit to the streaked horned lark, therefore, a 4(d) special rule is not an rights-of-way. then incidental take associated with the available option for this subspecies. Our response: We are currently action may be authorized through a safe There are many other tools provided by unaware of any substantial lark use harbor agreement. the Act that we can use to work with along road right-of-ways with the The special rule to exempt common landowners interested in habitat exception of those bordering agricultural activities is intended to restoration for the Taylor’s checkerspot agricultural areas. Roadside promote land use practices that are butterfly, including safe harbor management activities present a variety compatible with the creation of suitable agreements, section 7 consultation, and of site-specific issues, which are better habitat for streaked horned larks. We habitat conservation plans. We will addressed at the individual site level. recognize that farming is a dynamic work with WDNR and other partners to For actions with a Federal nexus, we process, which requires the ability to assess the full array of conservation believe review and coverage of adapt to changing environmental and tools available and determine those that incidental take under section 7 is more economic conditions. We have revised may be most appropriate for the appropriate. For activities along State the language in the special rule to particular circumstance under highways that could cause take of conform to farming standards consideration. streaked horned larks, other programs established by the Oregon State (19) Comment: WDNR expressed would be appropriate to provide Legislature in the Oregon Revised concern that the safe use of pesticides incidental take coverage, such as a Statutes dealing with agricultural to control nonnative, invasive insects, habitat conservation plan (HCP) under practices (ORS section 30.930). We have such as gypsy moths, may be impacted section 10 of the Act. While encouraging clarified the language in the special by the listing of and designation of the utilization of conservation programs rule, and revised the list of covered critical habitat for the Taylor’s such as development of HCPs, the final activities. Activities covered include, checkerspot butterfly. rule includes a provision for coverage of but are not limited to: Planting, Our response: We do not see the use incidental take under the 4(d) special harvesting, rotation, mowing, tilling, of pesticides use in general to be an rule during activities aimed at the discing, burning, and herbicide adverse impact to Taylor’s checkerspot control of noxious weeds (See: Noxious application to crops; normal butterflies unless the subspecies is Weed Control on Non-Federal Lands). transportation activities, and repair and

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61466 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

maintenance of unimproved farm roads percent) and the fragmentation of what magnitude of threats acting on the and graveled margins of rural roads; remains has created the necessity for the species are more important to the livestock grazing according to normally conservation of lands that can presently assessment of a species’ status. We acceptable and established levels; support the recovery of the Taylor’s acknowledge that the streaked horned hazing of geese or predators; and checkerspot butterfly and the streaked lark’s range has contracted substantially maintenance of irrigation and drainage horned lark. The goal of the Service is over the last century. However, although systems. These activities are those that to conserve suitable habitat in a we consider the loss of historical range are routinely implemented on farm landscape context that will lead to the to be informative to our determination, lands in the Willamette Valley, and recovery of the listed species. As we base our conclusion on whether a inadvertently provide conservation discussed in our response to Comment species is presently in danger of benefits to the streaked horned lark. The 13, the Act provides a suite of various extinction or likely to become so within agricultural activities listed in this conservation tools to achieve this goal. the foreseeable future on the status of document are merely examples of It is not a reasonable assumption to the species at the time of our practices that we consider to be routine consider the entire prairie landscape at determination. We have good to managing an active farming any given prairie would be completely information that the streaked horned operation. Our intention is not to limit occupied by the Taylor’s checkerspot lark population is declining in activities that may be necessary to the butterfly or by the streaked horned lark. Washington, but the population in operation of a farm, but to clarify that In the case of the Taylor’s checkerspot Oregon is relatively large, has abundant ‘‘take’’ of the listed species is not butterfly, because of their sedentary habitat, and appears to be either prohibited when engaging in the nature and their ability to form relatively stable or declining far more identified activities. For further metapopulation structure on large slowly than the population in discussion, see the Special Rule section landscapes, we would be inclined to Washington, indicating that listing as below. believe that, even on large landscapes, threatened is most appropriate. Many available habitat would be used species occupy only a portion of their Comments From the Public disproportionately, leading to a patchy historical ranges, but the Act does not (22) Comment: Several commenters distribution of the subspecies. We require that species be restored to their provided minor technical corrections or employ a comprehensive approach to entire historical ranges to be considered edits to the proposal, and in some cases recovery planning, and do consider the secure or recovered; delisting requires additional or updated information needs of other species beyond the only that the species no longer meets regarding the Taylor’s checkerspot subject listed species in the process of the definition of an endangered or a butterfly and the streaked horned lark. crafting recovery strategies. threatened species under the Act. Our response: We have evaluated and (25) Comment: One commenter (27) Comment: One commenter stated incorporated this information into this suggested the Service should provide that the streaked horned lark meets the final rule when and where appropriate blanket, enduring authorization for International Union for the to clarify the final rule. In instances incidental take for the streaked horned Conservation of Nature (IUCN) standard where the Service may have disagreed lark on non-federal land, such as for endangered (fewer than 2,500 mature with an interpretation of the technical through a safe harbor agreement individuals, and either a decline of at information that was provided, we have between the Service and State field least 20 percent within 5 years or responded under separate comments. offices, with zero baseline and no continuing decline, and no (23) Comment: One commenter requirements for participation. subpopulation estimated to contain disagreed with our description of the Our response: The 4(d) special rule more than 250 mature individuals). The flight period for the Taylor’s addresses those categories of activities commenter pointed out that the checkerspot butterfly. We state that the for which the Service believes a broad population in Washington is clearly flight period extends into early July and exemption from the take prohibitions declining and the largest known the commenter believes it should only under the Act is necessary and subpopulation at the Corvallis be into June. advisable for the conservation of the Municipal Airport consists of fewer Our response: The flight period for streaked horned lark. Any other than 250 individuals. the Taylor’s checkerspot butterfly varies incidental take authorizations will be Our response: The Service does not widely over its occupied range. On addressed through future permitting use a one-size-fits-all standard for occupied sites located on the north processes under section 10 of the Act. determination of endangered or Olympic Peninsula the observed adult As noted in earlier responses, we threatened status, and the IUCN flight period for the Taylor’s encourage our conservation partners to standard of endangered does not pertain checkerspot butterfly extends into July take advantage of the full suite of to the definition provided under the (Severns and Grossball 2011, p. 71). conservation tools available to aid in the Act. The Act directs us to consider the (24) Comment: One commenter stated recovery of listed species. range of threats a species faces, and to that just because habitat is suitable for (26) Comment: One commenter make a determination of status based on the species of concern does not mean argued that the observed contraction of the total impact of those threats. Based that the entire prairie was historically the streaked horned lark’s range justifies upon our evaluation of the threats to the occupied. Another commenter asked listing as endangered. Another streaked horned lark, we have whether we should even try to reverse commenter suggested the streaked determined it is a threatened species as the loss of historical prairie habitat horned lark should not be listed because defined by the Act. available for the Taylor’s checkerspot we should consider the full range of (28) Comment: One commenter stated butterfly and the streaked horned lark potential habitat for the subspecies. that the streaked horned lark does not given that the ecosystem is now Our response: Consideration of the deserve special protections in Oregon, changed and implementing restoration current and historical range of a species and listing as threatened is not efforts would potentially impact other is only one aspect that is considered in warranted, citing our statements about species that now occupy these habitats. the analysis to determine if a species the apparent stability of the population Our response: The proportion of should be listed as an endangered or a in the Willamette Valley. The prairie habitat lost (greater than 90 threatened species; the imminence and commenter believes we failed to

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61467

demonstrate that the streaked horned been routinely documented depredating or maintain habitat on agricultural lands lark is declining or that such declines nests of streaked horned larks and are for the long-term sustainability of are likely to occur. considered significant nest predators. streaked horned lark populations. Our response: Our analysis of the best The Service is working with resource (32) Comment: One commenter stated scientific and commercial data available staff at JBLM to reduce recreational that our analysis of Factor E (other indicates that the streaked horned lark impacts to the streaked horned lark at natural and manmade factors affecting is declining throughout its range. The several prairies on base by limiting the subspecies’ existence), particularly decline is most apparent in the Puget civilian access during the nesting season the status of the small population of lowlands of Washington, but the and by posting signs restricting public streaked horned larks on the Puget population in Oregon is also declining, access at several prairies and nesting prairies, supports an endangered listing. though at a less pronounced rate. In this areas along the Washington Coast. Our response: As we acknowledge in final rule, we have clarified the Because enforcement of seasonal this final rule, populations of the information regarding the status of the closures and monitoring of recreational streaked horned lark in the State of streaked horned lark in the Willamette activities at sites that are not posted Washington are small and declining at Valley, and why we believe the (e.g., boating and camping on the a faster rate than those in Oregon. subspecies warrants listing as a Columbia River islands, ATV use on However, we evaluated the status of the threatened species under the Act across port properties, and dispersed streaked horned lark at the scale of the its range. recreational activities in open areas) is subspecies as a whole, and as we stated (29) Comment: One commenter stated difficult and often ineffective, in our analysis, the population of the that we should have been clearer recreational activities are a potential streaked horned lark in the Willamette regarding the limits of the recent threat to the streaked horned lark. Valley is larger, has more habitat surveys for streaked horned larks in the (31) Comment: One commenter stated available, and appears to be more secure Willamette Valley. The commenter that we failed to show that Oregon’s than the small population in suggested that most of the suitable regulatory mechanisms are inadequate Washington. Thus, although the status habitat on private lands in the to protect the streaked horned lark. The of the subspecies is not stable and Willamette Valley has been surveyed commenter believes that the threat of secure, we do not consider the only from public rights-of-way, and that loss of suitable habitats is not likely to subspecies in its entirety to be in danger few, if any, large blocks of private be realized because Goals 3 and 5 of of extinction at this time, as we farmland have been adequately Oregon’s Statewide Planning Program anticipate the persistence of the surveyed for larks. protect agricultural lands and open streaked horned lark in some portions of Our response: We acknowledge in this spaces, and these mechanisms will be its range, at least for the foreseeable final rule that most surveys for streaked sufficient to provide adequate habitat future. Threats acting upon the horned larks on private lands in the for streaked horned larks on agricultural subspecies across its range are, however, Willamette Valley have been conducted lands in the Willamette Valley. such that if they were to continue from roadsides. The sites that have been Our response: Oregon has a strong unabated, we anticipate the streaked well surveyed are those in public Statewide program for land use horned lark would become in danger of ownership or private lands with planning, which established 19 goals to extinction within the foreseeable future. conservation easements. We have protect various aspects of Oregon’s Given that the subspecies is not clearly stated that we do not have a environment. Goal 3 addresses presently in danger of extinction complete picture of the streaked horned preservation of agricultural lands; Goal (endangered), but is likely to become so lark’s distribution or habitat use. 5 directs local governments to adopt with the foreseeable future, we conclude However, the Act requires us to use the programs to protect natural resources that consideration of all of these factors best scientific and commercial data and conserve scenic, historic, and open together with the data that show a available, and we have used the best space resources. Most of the goals are declining population on the Puget available data to support our accompanied by guidelines, which are prairies warrants a threatened determination that the streaked horned suggestions about how a goal may be determination for the streaked horned lark meets the definition of a threatened applied; however, these guidelines are lark. In addition, as described in this species under the Act. purely voluntary and not mandatory. final rule, we considered whether the (30) Comment: One commenter Goal 3 has been effective in preserving Washington population of the streaked suggested that the Service needs to agriculture in the Willamette Valley, but horned lark may constitute a separate evaluate recreation and its associated the guidelines merely direct counties to distinct population segment (DPS) or a effects (attraction of potential predators) preserve farmland and open space, but significant portion of the range. We as a threat to the streaked horned lark. do not specifically call for the concluded that the Washington Our response: As discussed in the maintenance of existing agricultural population does not constitute a valid proposed rule, recreational activities crops. Transition from grass seed fields DPS under our DPS policy, and can pose both direct and indirect threats to other agricultural types, such as furthermore that the Washington to streaked horned larks. Activities such nursery stock or wheat, would be population does not represent a as horseback riding, boating, biking, dog consistent with Goal 3, and yet would significant portion of the range of the walking, ATV use, and model airplane result in habitat loss for the streaked subspecies. Based on these analyses, we flying can result in the loss of nests horned lark. Similarly, Goal 5 promotes conclude that threatened status is most through crushing of chicks or eggs and the protection and conservation of open appropriate for the streaked horned lark. nest abandonment associated with space and wildlife habitats, but does not (33) Comment: One commenter stated disturbance of adults. Indirect effects of specifically require the maintenance of that the economic and social factors recreational activities include increased existing land use types that support the driving conversion of Willamette Valley risk of nest failure when incubating or streaked horned lark. We conclude that farmland to vineyards are likely to when brooding adults are flushed from Oregon’s Statewide planning goals and continue in the foreseeable future, and nests and human activities (such as guidelines contribute to protecting may accelerate as large California leaving trash and food on site) attract habitats for larks in the Willamette wineries are reportedly investing in corvids to nesting areas. Corvids have Valley, but are not sufficient to protect Willamette Valley farmlands as a hedge

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61468 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

against global climate change. As a planning that are integrated with the on their lands as an asset rather than a result, the likelihood of a changing other mandates of the law. One legal or economic liability. This is agricultural landscape should be commenter suggested that listings under especially important when dealing with recognized in the listing and critical the Act compel counties to identify an early-successional dependent habitat designation for the streaked critical areas and conserve habitat for (sub)species such as the streaked horned horned lark. listed species in order to receive lark that exhibits a temporary or Our response: The Service does not monetary incentives, and work against intermittent presence on those lands, consider the acquisition of lands by the existing local and State requirements and when those lands require viticulture industry to be a threat to such as the GMA. discretionary management treatments by streaked horned lark breeding and Our response: The Service fully the landowner to maintain their nesting habitat. We contacted Dr. considered the effect of the Washington suitability or attractiveness for the William Boggess at Oregon State State GMA in reviewing the potential streaked horned lark. The continued University’s Oregon Wine Research inadequacy of existing regulatory availability of these habitats on private Institute who described the ideal lands mechanisms. The GMA provides lands is essential to the persistence of for viticulture as being 300–800 feet landscape-scale planning and the streaked horned lark. With the (90–240 m) in elevation, on a slope with conservation policies and tools, while special rule, we are seeking to a southern or western aspect. These the Act focuses on protection for species encourage private landowners to be optimal viticulture soils are shallow and and the ecosystems upon which they willing to accommodate or attract nutrient poor, above the flood plain or depend. Each authority plays an streaked horned larks, and to discourage on eroded rocky soils. These ideal important role in achieving our shared any landowner’s desire to avoid having conditions for grapes are not similar in goals for prairie habitat and species streaked horned larks on their property, characteristic to habitats preferred by conservation; however, in this case, and managing the property for the the streaked horned lark. As such, we implementation to date of the GMA benefit of the streaked horned lark. do not consider viticulture a current or alone has not provided enough certainty (37) Comment: One commenter future threat to the streaked horned lark. of future conservation for the species to expressed concern that some activities (34) Comment: One commenter stated fully address the threats identified in covered under the proposed special rule that the streaked horned lark faces the proposed rule, and this final rule, to for airports and agricultural lands could continued threats to habitats and list the Taylor’s checkerspot butterfly be carried to the point that they populations, including conversion of and the streaked horned lark under the eliminate streaked horned larks on a prairie and grassland, continued Act. The application of the GMA is not site, for example, intensive mowing or dumping of dredged spoils, military uniform across the State and as such hazing by falcons. operations, airport development, and does not supply protection adequate to Our response: Our purpose in off-road vehicle recreation. preclude the listing of the Taylor’s developing the special rule for airports Our response: As we discussed in the checkerspot butterfly or the streaked and agricultural lands is to encourage text of this final rule, many of these horned lark. The Service works with not the continuation of practices that activities have the potential to both only counties, but a broad range of inadvertently create habitat for the benefit and pose a threat to the streaked entities, using a wide variety of streaked horned lark. We acknowledge horned lark. Many of the issues the incentive-based programs to balance the that some of those activities may take commenter cites as threats to the conservation needs of listed species larks, which is why a special rule is streaked horned lark’s habitat may with the objectives of entities that needed, but the availability of the 4(d) actually be essential to the continued voluntarily choose to work with us. We special rule should eliminate the creation of habitat for the bird, work with these partners to meet the incentive to remove larks from airports depending on how they are conducted; conservation needs for federally listed or agricultural lands to avoid violation the natural processes that formerly species while striving to be consistent of the Act. However, the concern that created habitat for the streaked horned with existing State or local land managers could inadvertently lark no longer operate, and so these requirements, such as Washington eliminate streaked horned larks from a industrial activities create almost the State’s GMA. site is valid, and we will work with land only usable habitats available to the (36) Comment: One commenter said managers to identify opportunities to bird. Without the presence of dredge that streaked horned larks are conserve larks on sites and for activities spoil islands, military reserves, insufficiently protected by existing that are covered by the special rule. agriculture, and airports, there would be regulatory mechanisms, and the (38) Comment: One commenter virtually no habitat left for the streaked proposed 4(d) special rule substantially recommended that the proposed special horned lark. The challenge will be to weakens protections for the streaked rule for the streaked horned lark be work with landowners to ensure these horned lark. expanded to cover the actions of non- activities are implemented in ways that Our response: In our analysis of federal entities engaged in dredging benefit the subspecies as well as work Factor D (the inadequacy of existing operations that deposit materials that for the landowner as we work to recover regulatory mechanisms), we found that create upland lark habitat on the lower the streaked horned lark. See also our existing regulatory mechanisms are not Columbia River. response to Comment 13. sufficient to protect the streaked horned Our Response: Under the 4(d) special (35) Comment: Several commenters lark. However, we believe that rule, take of the streaked horned lark asked that the Service fully consider the promulgation of a special rule under caused by routine agricultural activities, effect of the 20-year old Washington section 4(d) of the Act is necessary and wildlife hazard management programs State Growth Management Act (GMA) advisable to provide for conservation of at civilian airports, and noxious weed with respect to both direction and the subspecies because its habitat is control activities is exempt from the growth into urban areas while inadvertently created by airport prohibitions of section 9 of the Act. The protecting rural areas. Commenters managers and agricultural landowners. purpose of exempting these activities is believed the GMA protects threatened One of our goals for recovering listed to encourage activities by non-Federal species and habitat through species on private lands is to find ways entities that inadvertently create lark comprehensive regulations and to help landowners view these species habitat. Dredge disposal clearly has the

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61469

potential to create habitat for larks, but by the Act (section 7 consultation, safe rule for airports on non-federal lands, or any action that involves dredging in the harbor agreements, and section to allow more flexibility in the activities Columbia River would have a Federal 10(a)(1)(B) habitat conservation plans) covered. Commenters essentially asked nexus because it requires authorization to maximize the conservation efforts in for coverage for all routine activities at from the U.S. Army Corps of Engineers these programs, and to offer exemptions airports, and specifically asked for the (Corps). Under section 7(a)(2) of the Act, from incidental take through options 4(d) special rule to cover the following it is the responsibility of all Federal other than a special rule. activities: Low-level military training agencies to insure that any action (40) Comment: One commenter operations; pest and invasive species authorized, funded, or carried out by the requested a special rule under section control; stockpiling and staging areas for agency is not likely to jeopardize the 4(d) of the Act for park management construction projects; vehicle access continued existence of any endangered activities at M. James Gleason Memorial routes; management and operations of or threatened species or result in the Boat Ramp and Broughton Beach in storm water conveyance, treatment destruction or adverse modification of Portland; the special rule would include facilities, and flow-control facilities, coverage for any take of streaked horned designated critical habitat. Since the including grass seeding, irrigation, larks resulting from repair and Corps will be required to consult with mowing, soil augmentation, and maintenance of existing infrastructure, the Service under section 7 of the Act drainage control; spill and other for dredging operations that may affect and facility improvements that are environmental emergency response and the streaked horned lark, those activities underway now. The commenter also associated remediation, including and any associated take of streaked asked for a special rule that allows take equipment deployment, product horned larks will be appropriately associated with recreational use of the addressed in section 7 consultation site by the public, including events such recovery, and soil removal; anti-icing between the Corps and the Service. as the Polar Bear Plunge, fishing from and de-icing of aircraft and pavements, (39) Comment: Some commenters boats and from shore, picnicking, including chemical and physical asked for a special rule under section hiking, dog walking, bird watching, and methods; application of herbicides, 4(d) of the Act for restoration actions, other customary passive recreation. pesticides, insecticides and other including landfill closure and Our response: As we stated earlier, we chemical treatment methods; noxious maintenance. The commenters stated have used the option to promulgate a weed control; airport rescue and fire- that without a 4(d) special rule allowing special rule under section 4(d) of the fighting activities; control and removal active habitat management, agencies Act specifically for activities that of foreign object debris; airfield taxiway and land stewards would not be able to inadvertently create habitat for streaked and services; road maintenance, maintain needed habitat conditions at horned larks (i.e., wildlife hazard including pavement repair and sites that could support streaked horned management at airports, activities on replacement, and paint or rubber larks. The commenters requested agricultural lands in the Willamette removal; management of all marking, coverage in a special rule for activities Valley, and noxious weed control on signs, and lighting; maintenance of including, but not limited to: Seeding non-federal lands). The activities listed meteorological instruments; and planting, haying, mowing, tilling, in the comment do not create habitat for management of obstructions to aircraft disking, harrowing, and herbicide the streaked horned lark or otherwise operations; and protection and application; prescribed burning; benefit the species, and are more maintenance of navigational aids. hydrologic management; livestock appropriately covered under other Our response: Airports provide grazing; routine management and programs of the Act that result in important habitat for streaked horned exemptions from incidental take of a maintenance of infrastructure, such as larks throughout their range. We listed species, including consultation gates, fences, water control structures, developed the 4(d) special rule pursuant to section 7 or permitting property boundary markers, and specifically to cover routine actions that pursuant to section 10, if take of larks property surveys; monitoring of inadvertently create suitable conditions vegetation and animals; and applied or as a result of these activities is for larks at airports. The purpose of the other research, such as vocal attraction anticipated. special rule is to encourage the experiments, vegetation manipulations, (41) Comment: One commenter asked continuation of the practices that have predator surveys, and other work. us to include an offer of landowner Our response: The purpose of the 4(d) assistance and education in the special created suitable habitats for the species. special rule for agriculture, airports, and rule. The activities in the list above may be noxious weed control is to allow take of Our response: These activities essential for safe airport operations, but streaked horned larks for activities that (landowner assistance and education) do not generally create habitat for the inadvertently create habitat for the do not cause take, and so are not streaked horned lark. We understand birds. Our logic in developing this included in the special rule exempting that airports must perform many of special rule is that, without the certain activities from the prohibitions these activities, and some of them may exemption from take offered by the 4(d) on taking; we have therefore not affect larks; however, the Act provides special rule, these landowners might amended the special rule to include other appropriate mechanisms for decide not to take actions that create or them. We acknowledge, however, that addressing those activities, and maintain important habitat for streaked outreach to landowners will be an exempting any associated take. For horned larks, in order to avoid the important component of streaked activities at airports with a Federal potential violation of the Act. The horned lark conservation and recovery, nexus (e.g., drainage projects requiring a restoration and habitat creation and we will offer landowner assistance permit from the Corps under section 404 activities discussed in the comment and education to airport managers and of the Clean Water Act (33 U.S.C. 1251 above would be implemented agricultural landowners through the et seq.)), section 7 consultation can specifically to enhance habitat for various conservation tools and incentive provide the needed coverage for streaked horned larks or other prairie programs offered by the Act. incidental take. For activities without a species. We believe it is appropriate to (42) Comment: Numerous Federal nexus that may result in work with these agencies and land commenters asked us to add to the incidental take of the streaked horned stewards using other programs offered activities covered under the 4(d) special lark, we will work with the airports to

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61470 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

cover the activities under section 10 of rule has nothing to do with streaked enforcement, habitat acquisitions and the Act. horned lark conservation.’’ maintenance, propagation, live trapping, We also note here that we have Our response: We disagree. The and transplantation. The commenter amended the 4(d) special rule to include reality is that airports’ wildlife hazard does not believe that the special rule fits noxious weed control on non-Federal management programs (which are within the rubric of scientific resource lands. We added this activity to the 4(d) implemented to create a safe conditions management activities. special rule in response to public for aviation) inadvertently create Our response: When Congress enacted comments requesting an exemption suitable habitat for streaked horned the Endangered Species Act in 1973, it from take prohibitions for actions that larks. The safe operation of aircraft provided no prohibitions on take of restore habitats used by the streaked requires the same wide-open landscape threatened species. However, section horned lark, but this component of the context needed by streaked horned 4(d) of the Act applies to threatened 4(d) special rule may also be applicable larks; the wildlife hazard management species and was included in the Act to to some activities at non-Federal practices at airports create the specific set prohibitions for these species that airports. The specific weed control habitat characteristics (low-stature are necessary and advisable to provide activities covered in the 4(d) special vegetation) desired by larks, as well as for their conservation. Such regulations rule are: mowing, herbicide and a reduced level of predatory species. We are intended to encourage activities that fungicide application, fumigation and believe that development of a 4(d) will promote conservation of species burning. See the 4(d) special rule at the special rule to allow the practices that and prohibit take as a result of those end of this document for a complete create or maintain suitable habitat for actions that are not conducive to species description of the take exemptions for larks is necessary and advisable to conservation. Our promulgation of a noxious weed control. provide for streaked horned lark special rule for the streaked horned lark (43) Comment: One commenter stated conservation. is consistent with this aspect of the Act, (45) Comment: One commenter stated that the proposed 4(d) special rule for and is necessary to conserve the that, in the special rule, the Service the streaked horned lark is unlawful streaked horned lark given the unique acknowledges that some management because it does not provide for the situation of its dependence on actively actions taken at airports are generally conservation of the species. The managed, industrial landscapes. beneficial to larks, but noted that this (47) Comment: One commenter stated commenter stated that the Service’s implies that some activities are not that the 4(d) special rule for activities at authority to promulgate a 4(d) special beneficial, and should not be covered in airports would not benefit the streaked rule is constrained by the requirement the rule. For example, the Service fails horned lark, because even control and that the measures in the special rule be to explain how ‘‘management, repair, management of vegetation at airports ‘‘necessary and advisable’’ to provide and maintenance of roads and runways’’ can harm larks if the activities occur for the survival and recovery of the benefits larks, or how hazing hazardous during the breeding season. species. The commenter also argued wildlife benefits larks. Our response: We agree that some of that, for more than 30 years, it has been Our response: Certain activities these activities can harm larks, and will the policy and practice of the Service to covered in the 4(d) special rule are result in take, which is why a special extend the full protections against take likely neutral with respect to impacts to rule to exempt take as the result of in section 9 to threatened species. Any streaked horned larks, and these include certain activities is appropriate. These departure from this long-standing maintenance and repair of roads and activities (i.e., control and management position must have a valid conservation runways. We included these activities of vegetation) clearly benefit the purpose. in the list of covered activities in the streaked horned lark by creating the Our response: We developed the 4(d) special rule so that airport managers appropriate habitat conditions for special rule for the streaked horned lark would not be confused about their breeding. The best evidence of this fact consistent with the Act’s requirements ability to implement routine is that, with their existing management that any special rule be necessary and maintenance activities and which practices, airports currently support advisable to provide for the activities are exempted from the take larks. Maintenance of these conditions, conservation of a species. The rationale prohibitions of the Act. Other activities, which must be done during the bird’s for promulgating the special rule is that, such as habitat management and hazing breeding season to ensure aircraft safety, throughout most of its range, streaked of hazardous wildlife, clearly benefit the will entail some take of the species; thus horned lark habitat has been streaked horned lark. Hazing is often the 4(d) special rule allows take in the inadvertently created and maintained by directed at larger, more hazardous act of creating and maintaining suitable industrial land uses. The purpose of the wildlife, such as hawks and geese; habitat for the streaked horned lark. 4(d) special rule is to encourage hazing these species away from airfields (48) Comment: One commenter asked landowners to continue to manage lands benefits the streaked horned lark by us to amend the 4(d) special rule to in a way that creates or maintains reducing the abundance of predators include a re-evaluation of the special habitat for the streaked horned lark, (such as hawks) that would otherwise rule after 5 years to ensure that it is not rather than switch to other land uses or prey on eggs and nestlings. contributing to the decline of the practices that will not support the (46) Comment: One commenter streaked horned lark. subspecies. The 4(d) special rule for the believes the 4(d) special rule for the Our response: All of our rulemakings streaked horned lark is consistent with streaked horned lark is not an are subject to revision, if necessary and the Service’s long-standing practice to appropriate application of that section appropriate. In the recovery program for use all the flexibility offered by the Act of the Act. The commenter stated that the streaked horned lark, we will track under section 4(d) for threatened the Act requires section 4(d) to be used the population trend, and if the data species. to issue regulations to conserve suggest that the special rule is not (44) Comment: One commenter stated threatened species; the commenter benefitting the species, we would re- that the 4(d) special rule appears to be further points out that the Act defines evaluate it at that time. In addition, as geared more toward airport safety than conservation as all activities associated required by section 4(c)(2) of the Act, streaked horned lark conservation; the with scientific resource management, we conduct a review of the status of commenter said, ‘‘At its core, the [4(d)] including research, census, law listed species every 5 years. The reviews

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61471

assess each endangered and threatened (50) Comment: One commenter stated attract streaked horned larks to their species to determine whether its status that larks do not harm airplanes when properties. has changed since the time of its listing they are struck. (52) Comment: One commenter said or its last status review and whether it Our response: The commenter’s that National Environmental Policy Act should be classified differently or assumption is not supported by the (NEPA; 42 U.S.C. 4321 et seq.) review is delisted. facts. A recent report verified that an F– required to evaluate alternatives to the (49) Comment: One commenter stated 15C military aircraft at Portland 4(d) special rule for the streaked horned that the proposed listing of the streaked International Airport struck a streaked lark. horned lark could potentially have horned lark and the plane sustained Our response: The courts have ruled adverse impacts on aviation safety, and damage to an engine (Dove et al. 2013, that NEPA does not apply to listing therefore should be subjected to a p. 1). The bird also died, of course. decisions under section 4(a) of the Act, formal safety risk assessment in (51) Comment: One commenter nor to 4(d) special rules issued accordance with established FAA argued that the special rule for airports concurrent with listing. See Pacific policies and procedures, notably those and agriculture would not advance the Legal Foundation v. Andrus, 657 F.2d outlined in FAA Order 5200.11, FAA conservation of the streaked horned 829 (6th Cir. 1981); and Center for Airports (ARP) Safety Management lark, but is designed to allow airports Biological Diversity v. U.S. Fish and System. They further stated a risk and agricultural landowners to continue Wildlife Service, No. 04–4324, 2005 WL assessment should consider both the to operate without obtaining a permit 2000928, at *12 (N.D. Cal. Aug. 19, direct hazard posed to aircraft for take under section 10. The 2005). commenter stated that the provisions in operations at and near airports by the (53) Comment: One commenter stated the special rule should be used for streaked horned lark and the induced that the Service must consult under section 10 permits, and that the Service hazards associated with larger predatory section 7 of the Act on the effects of the should work with airports throughout wildlife species that the streaked horned 4(d) special rule on the streaked horned the range of the streaked horned lark to lark may attract to the vicinity of the lark to ensure that the special rule will airport, as well as airfield maintenance create a regional habitat conservation not jeopardize the continued existence activities that could be limited due to a plan for airports, and work with farmers of the subspecies. The commenter listing. to develop safe harbor agreements. Our response: FAA policies, Our response: We developed the 4(d) pointed out that the National Marine including FAA Order 5200.11, do not special rule for the streaked horned lark Fisheries Service has conducted formal apply to our administration of the Act. consistent with the Act’s requirements section 7 consultations on the issuance FAA Order 5200.11, by its own terms, that any special rule be necessary and of 4(d) special rules for listed fish. applies only to airports and FAA advisable to provide for the Our response: The Service believes personnel. We have no authority under conservation of a species. We believe that section 7 does not apply to the the Act to choose not to list a bird that the special rule appropriately uses promulgation of 4(d) special rules. The species that otherwise warrants listing the flexibility of section 4(d) of the Act Service’s determination that a 4(d) on the grounds that the species poses a to allow take of a threatened species. special rule is necessary and advisable threat to aviation safety. In any event, The foundation of the special rule is to provide for conservation of the streaked horned larks are already that, throughout most of the subspecies’ species necessarily subsumes a present on many of the airports within range, streaked horned lark habitat is determination that the rule will not the range of the species and have been inadvertently created by industrial or jeopardize the species or adversely there for some time. The subspecies agricultural land uses. The purpose of modify its critical habitat. Hence, occurs on airports largely because the 4(d) special rule is to encourage applying the section 7 consultation management to control hazardous landowners to continue to manage lands procedures to such rulemaking would wildlife has incidentally created and in ways that create habitat for the be a redundant exercise in paperwork. maintains suitable habitat for the streaked horned lark, rather than switch See Cf. Pacific Legal Foundation v. streaked horned lark. FAA regulations to other land uses practices that will not Andrus, 657 F.2d 829 (6th Cir. 1981) require airports to take immediate support the subspecies. The safety issue (NEPA inapplicable to listing decision action to alleviate wildlife hazards at airports is unique, and airport under section 4 of the Act, because whenever they are detected (14 CFR managers likely have little room to listing action furthered purposes of 139.337). This requirement to maintain maneuver in terms of the management NEPA); Douglas County v. Babbitt, 48 airfields free of wildlife hazards will they do; negotiating a section 10 permit F.3d 1495 (9th Cir. 1995) (NEPA limit the potential for populations of all with a regional habitat conservation inapplicable to designation of critical birds, including streaked horned larks, plan is unlikely to result in greater habitat under section 4 of the Act, to increase to levels that pose a risk to conservation of larks at airports than because designation furthers goals of aviation. The 4(d) special rule for can be achieved through the special NEPA). Moreover, even if section 7 did wildlife hazard management at airports rule. In regard to the recommendation to apply to the promulgation of a 4(d) will ensure that airports are not in develop safe harbor agreements with special rule, in this case the subspecies violation of the Act when implementing farmers, those agreements are entirely is not yet listed, so the only relevant appropriate safety measures. The FAA voluntary, and are likely to benefit provision would be section 7(a)(4), Order referenced went into effect on fewer streaked horned larks than the which requires an action agency to June 1, 2011, and provides guidance for 4(d) special rule that would apply to all confer on any action that is likely to airports to complete safety risk agricultural activities automatically. jeopardize, or destroy or adversely management plans or approaches by Furthermore, the 4(d) special rule does modify the proposed critical habitat of, certain timelines. The Service is willing not preempt the Service from working a species proposed for listing. The to assist the FAA and individual with landowners interested in pursuing Service has determined that this 4(d) airports in determining what, if any, safe harbor agreements addressing special rule is not likely to jeopardize adjustments need to be made to the activities either directly or indirectly the streaked horned lark, nor is it likely safety risk assessments as a result of the associated with agricultural pursuits, to destroy or adversely modify its listing of the subspecies. especially any activities intended to proposed critical habitat, so a

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61472 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

conference under section 7(a)(4) of the part of the Port of Olympia to craft the other more dangerous wildlife; some Act is not required. interlocal agreement with WDFW. The aircraft strikes of larks are probably (54) Comment: One commenter noted interlocal agreement provides a unavoidable. This take of larks from dredge material placement sites are framework for how development routine aviation activities at airports is human-made or managed features and impacts will be addressed and offset, appropriately exempted under the 4(d) not ‘‘naturally occurring habitat,’’ and but it does not address the pace and special rule, and we have therefore these sites are specifically created and extent of future development at the modified this final rule accordingly. managed for the placement of dredge Olympia Airport and does not (59) Comment: One commenter materials. The commenter further raised necessarily provide protection from requested that, under the proposed 4(d) concern about the presence of streak development in the foreseeable future. special rule for the streaked horned lark, horned larks limiting full access to (56) Comment: One commenter said we consider covering comparable dredge material sites. Another that we should acknowledge the threats municipal government activities. In commenter said that placement of to streaked horned larks and their particular, consideration should be dredge materials should not be habitats from government programs, given to the continuing operation and considered a threat given the long-term such as the Conservation Reserve maintenance, and to (if necessary due to benefit of creation and maintenance of Enhancement Program, that encourage fire or other unforeseen events) the dredge islands. tree planting in open areas. reconstruction and restoration of, public Our response: Streaked horned larks Our response: We do not currently facilities such as stormwater facilities, commonly use human-made or managed have information to suggest that water supply sites (wellheads and areas that provide the right conditions government tree planting programs pose springs), and active recreation parks and are not limited to ‘‘naturally a threat to the streaked horned lark. (including athletic fields utilized by occurring habitats.’’ Upland dredge However, the purpose of section 7 of the cities but owned by school districts). spoil deposit sites, agricultural fields, Act is to ensure that Federal agencies do Such operation and maintenance should gravel roads/shoulders, undeveloped not fund, authorize, or carry out encompass sporting events, planting industrial sites, and areas where activities that that could jeopardize the and mowing, fence and security vegetation is sparse or maintained (such continued existence of listed species or maintenance, herbicide and fertilizer as at airports) provide suitable destroy or adversely modify their application, and similar activities. conditions and the landscape context designated critical habitat. After this Our response: We are not aware of that larks need. The presence of a listed rule is effective (see DATES), we will any streaked horned larks nesting on species on these sites does not preclude work with the Farm Service Agency (the lands owned and managed by the Cities entities such as airports from doing Federal agency that implements the of Olympia, Lacey, or Tumwater, or on business or continuing operations. One Conservation Reserve Enhancement school properties, stormwater facilities, option may be for potentially affected Program) to ensure that their actions do water supply sites, or active recreational entities to work with the Service on the not jeopardize the continued existence parks. These types of areas do not development of a habitat conservation of the streaked horned lark. provide suitable habitat (size, landscape plan under section 10 of the Act. A (57) Comment: One commenter stated context, and vegetation do not meet habitat conservation plan authorizes that Corvallis Municipal Airport has habitat definition) for this subspecies. incidental take and provides been declared as ‘‘shovel-ready’’ for The 4(d) special rule for streaked landowners long-term assurances from commercial development, and that the horned lark exempts take under section activities that could affect the species or analysis of listing factors should include 9 of the Act associated with routine suitable habitat. an assessment of the extent to which the maintenance conducted at airports, In the absence of trend data, we proposed commercial development at farming on agricultural lands, and cannot know whether unmanaged Corvallis Airport will impinge upon noxious weed control activities to dredge spoils deposition has had a net critical habitat for the streaked horned provide for the conservation of the positive or negative effect on streaked lark. streaked horned lark. horned lark population numbers. While Our response: As we discuss in the Summary of Changes From Proposed creation and maintenance of these final critical habitat designation for the Rule dredge islands is critical to the streaked horned lark, published perpetuation of the subspecies, streaked elsewhere in the Federal Register today, We fully considered comments from horned lark population numbers are in we have excluded non-Federal airport the public and the peer reviewers on the decline, and nest failure due to lands from the designation. However, proposed rule to develop this final unregulated dredge deposition is a we agree that future development at the listing of the Taylor’s checkerspot threat to the subspecies. Corvallis Airport could affect the butterfly and the streaked horned lark. (55) Comment: The Port of Olympia population of streaked horned larks that This final rule incorporates changes to asserted that the listing overstates the breed at the site. We have added a brief our proposed listing based on the threats posed by potential airport discussion of the issue under Factor A, comments that we received that are development to the streaked horned below. discussed above. We received additional lark. An interlocal agreement with (58) Comment: Several commenters distribution and trend data for the WDFW required the airport to set aside asked us to amend the special rule to streaked horned lark, but this areas to be preserved as lark habitat, and include take of streaked horned larks information did not alter the conclusion also includes measures to minimize resulting from aircraft strikes. of our analysis. We made some development, retain open space, and Our response: The fundamental technical corrections and reevaluated avoid mowing in lark nesting areas and purpose of wildlife hazard mitigation threats to both subspecies from during lark breeding seasons. The programs at airports is the minimization vehicular mortality. Although our airport does not anticipate development of wildlife-aircraft strikes. Streaked analysis of these potential threats is in lark nesting areas over the next 20 horned larks are paradoxically attracted different from that in our proposed rule, years. to the habitat that has been created and none of the information changed our Our response: We recognize and maintained at airports as a result of determination that the Taylor’s appreciate the cooperative effort on the those management activities to deter checkerspot butterfly meets the

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61473

definition of an endangered species and proposed rule (October 11, 2012; 77 FR significant a threat it is. If the threat is the streaked horned lark meets the 61938), specifically in the proposed significant, it may drive or contribute to definition of a threatened species under amendments to 50 CFR 17.11(h), the the risk of extinction of the species such the Act. List of Endangered and Threatened that the species warrants listing as an We revised the 4(d) special rule for Wildlife (see 77 FR 62006). In the table endangered or threatened species as the streaked horned lark based on at § 17.11(h), the historic range for the those terms are defined by the Act. This public comments and information we streaked horned lark was correctly does not necessarily require empirical received. The Service has determined identified as British Columbia, Canada, proof of a threat. The combination of that exempting specified agricultural and the States of Washington and exposure and some corroborating operations in the Willamette Valley of Oregon, although based on the evidence of how the species is likely Oregon, rather than rangewide, as presentation of that information, it may impacted could suffice. The mere proposed, from the prohibition of take have appeared as if all of the historic identification of factors that could under section 9 of the Act encourages range for the streaked horned lark was impact a species negatively is not landowners to continue managing the within the United States. For the sufficient to compel a finding that remaining landscape in ways that meet Taylor’s checkerspot butterfly, British listing is appropriate; we require the needs of their operation while Columbia, Canada, was mistakenly evidence that these factors are operative simultaneously providing for the omitted from the subspecies’ historic threats that act on the species to the conservation of the streaked horned range, which additionally includes the point that the species meets the lark. The application of the 4(d) special States of Washington and Oregon. For definition of an endangered or rule exempting specific agricultural both the Taylor’s checkerspot butterfly threatened species under the Act. operations applies only to the and the streaked horned lark, the We considered and evaluated the best Willamette Valley in Oregon because ‘‘vertebrate population where available scientific and commercial there is no record of the streaked horned endangered or threatened’’ was information in evaluating the factors lark utilizing agricultural lands in mistakenly identified as only within the affecting each of the species under Washington State, despite thorough State of Washington in the United consideration in this rule. surveys by WDFW. States. As described in the text of the We revised the 4(d) special rule in proposed rule, it was our determination Factor A. The Present or Threatened response to comments from the public, and intent to list each subspecies Destruction, Modification, or which helped us refine the covered throughout its entire range. All of these Curtailment of Its Habitat or Range farming activities. We have clarified the errors have been corrected in the Under this factor, the primary long- definition of ‘‘normal farming practices’’ Regulation Promulgation section of this term threats to the Taylor’s checkerspot and ‘‘normal transportation activities’’ final rule. to be consistent with relevant Oregon butterfly and the streaked horned lark State laws. We also amended the list of Summary of Factors Affecting the are the loss, conversion, and covered activities to address specific Species degradation of habitat, particularly as a agricultural practices in the Willamette Section 4 of the Act and its consequence of agricultural and urban Valley that may affect the streaked implementing regulations (50 CFR 424) development, successional changes to horned lark. Based on feedback from set forth the procedures for adding grassland habitat, and the spread of agricultural interests, we deleted several species to the Federal Lists of invasive plants. activities from the 4(d) special rule (i.e., Endangered and Threatened Wildlife The prairies of south Puget Sound and routine management and maintenance and Plants. A species may be western Oregon are part of one of the of stock ponds and berms to maintain determined to be an endangered or rarest ecosystems in the United States livestock water supplies; routine threatened species due to one or more (Noss et al. 1995, p. I–2; Dunn and maintenance or construction of fences of the five factors described in section Ewing 1997, p. v). Dramatic changes for grazing management; placement of 4(a)(1) of the Act: (A) The present or have occurred on the landscape over the mineral supplements; and irrigation of threatened destruction, modification, or last 150 years, including a 90 to 95 agricultural crops, fields, and livestock curtailment of its habitat or range; (B) percent reduction in the spatial pastures) and added others (i.e., hazing overutilization for commercial, distribution of the prairie ecosystem. In of geese and predators; and maintenance recreational, scientific, or educational the south Puget Sound region, where of irrigation and drainage systems). purposes; (C) disease or predation; (D) most of western Washington’s prairies In response to comments from the the inadequacy of existing regulatory historically occurred, less than 10 FAA and airport operators, we revised mechanisms; or (E) other natural or percent of the original prairie persists, the 4(d) special rule for airports on non- manmade factors affecting its continued and only 3 percent remains dominated Federal lands by referencing applicable existence. Listing actions may be by native vegetation (Crawford and Hall FAA regulations and circulars warranted based on any of the above 1997, pp. 13–14). In the remaining addressing safety, and by including a threat factors, singly or in combination. prairies, many of the native bunchgrass take exemption for streaked horned lark Each of these factors is discussed below. communities have been replaced by airstrikes at airports, which are an In considering what factors might nonnative pasture grasses (Rogers 2000, occasional unavoidable result of constitute threats, we must look beyond p. 41), which larks avoid using for continuing aviation operations. the mere exposure of the species to the territories and nest sites (Pearson and We also amended the 4(d) special rule factor to determine whether the species Hopey 2005, p. 27). In the Willamette to include some management of noxious responds to the factor in a way that Valley, Oregon, native grassland has weeds on non-Federal lands, as these causes actual impacts to the species. If been reduced from the most common actions facilitate the preservation of there is exposure to a factor, but no vegetation type to scattered parcels streaked horned lark habitat on the response, or only a positive response, intermingled with rural residential landscape. that factor is not a threat. If there is development and farmland; it is In addition, we found some exposure and the species responds estimated that less than 1 percent of the typographical errors in the Proposed negatively, the factor may be a threat native grassland and savanna remains in Regulation Promulgation section of our and we then attempt to determine how Oregon (Altman et al. 2001, p. 261).

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61474 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

Development plant species (see discussion below, larval and adult food resources) by the Native prairies and grasslands have under ‘‘Loss of Ecological Disturbance subspecies to complete its life stages been severely reduced throughout the Processes, Invasive Species, and and become a reproductive adult range of the Taylor’s checkerspot Succession’’). Construction directly butterfly. butterfly and the streaked horned lark as destroys habitat, as does conversion, Streaked Horned Lark—Horned larks need expansive areas of flat, open a result of human activity due to and may kill any sessile (immobile) or ground to establish breeding territories. conversion of habitat to residential and slow-moving organism in the The large, flat, treeless areas that commercial development and construction footprint (Trombulak and airports necessarily require and agriculture. Prairie habitat continues to Frissell 2000, p. 19). Unlike many other maintain have become attractive be lost, particularly to residential species of butterflies, the Taylor’s alternative breeding sites for streaked development (Stinson 2005, p. 70) by checkerspot butterflies spend horned larks as native prairies and removal of native vegetation and the approximately 50 weeks of their life cycle as sedentary eggs, larvae, or pupae scoured river banks in the Pacific excavation and grading of surfaces and with only a brief window of time Northwest have declined. Five of the six conversion to non-habitat (buildings, (approximately 1–2 weeks) as mobile, streaked horned lark nesting sites pavement, other infrastructure). winged adults (Stinson 2005, p. 78). As remaining in the Puget lowlands are Residential development is associated a result, commercial and residential located on or adjacent to airports and with increased infrastructure such as development, construction of related military airfields (Rogers 2000, p. 37; new road construction, which is one of infrastructure including roads, and Pearson and Hopey 2005, p. 15). At least the primary causes of landscape conversion of habitat to incompatible four breeding sites are found at airports fragmentation (Watts et al. 2007, p. 736). uses such as gravel mining directly in the Willamette Valley, including the Activities that accompany low-density affect the Taylor’s checkerspot butterfly largest known population at Corvallis development are correlated with eggs, larvae, and pupae by killing Municipal Airport (Moore 2008, pp. 14– decreased levels of biodiversity, individuals and destroying habitat. 17). Stinson (2005, p. 70) concluded that mortality to wildlife, and facilitated When in flight, butterflies become if large areas of grass had not been introduction of nonnative, invasive subject to mortality from collision with maintained at airports, the streaked species (Trombulak and Frissell 2000, vehicles on roads associated with horned lark might have been extirpated entire; Watts et al. 2007, p. 736). In the residential development, which is from the south Puget Sound area. south Puget Sound lowlands, the glacial commonly known to affect animals of Although routine mowing to meet outwash soils and gravels underlying all sizes, but especially insects flight path regulations helps to maintain the prairies are deep and valuable for (Trombulak and Frissell 2000, p. 20). grassland habitat in suitable condition use in construction and road building, Since the short flight season of Taylor’s for nesting streaked horned larks, the which leads to their degradation and checkerspot butterflies directly timing of mowing is critical to destruction. corresponds with their reproductive determining whether this activity is Since the 1850s, much of the period, death of gravid (egg-carrying) harmful or beneficial to larks. Mowing Willamette Valley of Oregon has been females could lead to population during the active breeding season (mid- altered by development (agricultural declines;, however, it is unlikely that April to late July) can destroy nests or and urban). About 96 percent of the failure of the entire population would flush adults, which may result in nest Willamette Valley is privately owned, occur based on this alone. These sorts failure (Pearson and Hopey 2005, p. 17; and it is both the fastest growing area in of traffic-collision related deaths may Stinson 2005, p. 72). Some of the Oregon and the most densely populated. disproportionately affect Taylor’s airports in the range of the streaked The Willamette Valley provides about checkerspot butterflies in comparison to horned lark have adjusted the frequency half of the State’s agricultural sales, and other butterflies, as many other kinds of and timing of mowing in recent years to 16 of the top 17 private sector butterflies are in flight for periods much minimize impacts to streaked horned employers (manufacturing, high longer than just their reproductive larks (Pearson and Altman 2005, p. 10). technology, forest products, agriculture, window. Additionally, because female In 2011, McChord Air Field at JBLM and services) are located there. The Taylor’s checkerspot butterflies oviposit agreed to a mowing regime that would population projected for 2050 is in clusters (lay many eggs in one place), provide protections to the streaked approximately 4 million, or nearly vehicle traffic can adversely affect the horned lark during their nesting period. double the current population (Oregon subspecies by crushing whole clutches Unfortunately, in years with wet spring Department of Fish and Wildlife 2006, of eggs or large numbers of larvae, weather when grass grows extremely p. 237). The increase in population will which cluster together in the early instar rapidly, this strategy cannot always be result in increased building periods. implemented, as mowing must occur to construction and road development, Four historical locales for Taylor’s maintain safe conditions for aviation. further impacting the remaining prairies checkerspot butterflies in the south WDFW coordinates mowing schedules and oak woodlands. Puget Sound region were lost to at the Olympia Airport to reduce Taylor’s Checkerspot Butterfly—The development or conversion. Dupont, impacts to streaked horned larks. habitat of the Taylor’s checkerspot Spanaway, and Lakewood were all In 2008, the Port of Olympia prepared butterfly is highly fragmented across the converted to urban areas, and JBLM an interlocal agreement with the WDFW region due to agricultural and low- Training Area 7S became a gravel pit that outlines management density residential development. (Stinson 2005, pp. 93–96). recommendations and mitigation for Fragmentation due to residential and In summary, the threat of impacts to State-listed species from associated road development has led to development and conversion of the development at the airport. In December a reduction of native larval host plants prairie ecosystem to other uses has a 2010, a white paper and supplemental and adult nectar plants as introduced significant impact on Taylor’s planning memorandum was developed invasive plant species, primarily checkerspot butterflies due to the effect as part of the Airport Master Plan Mediterranean grasses and shrubs such of development on the habitat features Update (Port of Olympia 2010, pp. 7– as Scot’s broom, increasingly dominate that are required (short-statured 12). This document, which is outlined the landscape and outcompete native vegetation communities with specific in Appendix 2 of the Master Plan

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61475

Update, outlines management (paratrooper practices, touch-and-go and woody vegetation, rendering habitat recommendations for the protection of landings, and load drop and retrievals) unusable for Taylor’s checkerspot critical areas and priority species, and troop training activities. Foot traffic butterflies and streaked horned larks. including the streaked horned lark. The and training maneuvers that are The basic ecological processes that recommendations include minimizing conducted during streaked horned lark maintain prairies, meadows, and development, retaining open or bare breeding season likely are a contributing scoured river banks have disappeared ground, and avoiding mowing during factor to nest failure and low nest from, or have been altered on, all but a the nesting season (March 15 through success at 13th Division Prairie. few protected and managed sites. August 15) in known or potential lark Recently, a streaked horned lark nest Roadside verges and margins can have nesting areas. Although the Port does was destroyed at 13th Division Prairie both positive and negative impacts to not anticipate any development to occur by a porta-potty service vehicle (Linders the Taylor’s checkerspot butterfly. in streaked horned lark nesting areas 2012b, in litt.). Artillery training, off- Periodic disturbance of road margins, within the next 20 years, the agreement road use of vehicles, and troop verges, and road cuts may contribute to is not a regulatory document that would maneuvers at the 91st Division Prairie habitat creation due to construction and preclude future development, which is are also conducted in areas used by vehicle use, both of which result in a primary source of revenue for the Port. streaked horned larks during the nesting frequent disturbance and create Airport expansions could result in season. Because access into this training conditions conducive to colonization by further losses of some populations. At area is limited and streaked horned lark the important larval host plant, the the Olympia Airport, hangars were built surveys are only conducted narrow-leaf plantain. Creation of habitat in 2005, on habitat used by streaked opportunistically, we do not know if or features suitable to the Taylor’s horned larks for foraging, resulting in a how many lark nests are lost due to checkerspot butterfly occurs only when loss of grass and forb-dominated habitat, military activities at 91st Division the site is allowed to rest after it is which could result in a smaller local Prairie. disturbed. This sequence of events population due to reduced habitat Industrial development has also allows the host plant to be available to availability for breeding and wintering reduced habitat available to breeding the butterfly, and the butterfly to be able larks (Pearson and Altman 2005, p. 12). and wintering streaked horned larks. to safely use the created habitat without Based on discussions with staff at The Rivergate Industrial Park, owned by being crushed. However, frequently Sanderson Field in Shelton, future the Port of Portland, is a large industrial disturbed areas also present a threat and development plans do not include site in north Portland near the Columbia may adversely affect the Taylor’s impacts to streaked horned lark habitat River; the site is developed on a dredge checkerspot butterfly if the timing of at this time. The majority of the spoil field, and still has some large areas vehicle use coincides with larval proposed development at Sanderson of open space between the industrial feeding and basking. In the latter case, Field will occur in areas already buildings (Moore 2010a, pp. 12–13). the created habitat may act as a impacted (between existing buildings). Rivergate has been an important mortality sink, which attracts the The West Ramp at Gray Army Air Field breeding site for streaked horned larks, butterfly to habitat that latter becomes a on JBLM was expanded in 2005, into and a wintering site for large mixed threat to the subspecies if vehicle use areas previously used by breeding flocks of up to five horned lark crushes food plants or the larvae streaked horned larks, resulting in a loss subspecies (including the streaked themselves. of available breeding habitat (Stinson horned lark). In 1990, the field used by Historically, the prairies and 2005, p. 72). streaked horned larks at Rivergate meadows of the south Puget Sound At Portland International Airport, measured more than 260 ha (650 acres) region of Washington and western streaked horned larks nest in an area of open sandy habitat (Dillon 2012, pers. Oregon are thought to have been called the Southwest Quad; this is an comm.). In the years since, new actively maintained by the native area that was filled with dredged industrial buildings have been peoples of the region, who lived there material between 1987 and 2005, to constructed on the site; now only one for at least 10,000 years before the create a site for future airport patch of 32 ha (79 acres) of open dredge arrival of Euro-American settlers (Boyd development. The Port of Portland, spoil field remains (Moore 2011, p. 9) 1986, entire; Christy and Alverson 2011, which owns the airport, may propose to and the breeding population has p. 93). Frequent burning reduced the develop the Southwest Quad to dropped from 20 pairs to 5 pairs in this encroachment and spread of shrubs and accommodate future expansion, though time (Moore 2011, p. 10). trees (Boyd 1986, entire; Chappell and there is no current plan in place (Green For the reasons described here, we Kagan 2001, p. 42; Storm and Shebitz 2012, in litt.). The future development find that encroaching development and 2006, p. 264), favoring open grasslands of the Southwest Quad would result in conversion to incompatible uses of with a rich variety of native plants and the loss of at least 33 ac (13 ha) of occupied and potentially suitable areas animals. Following Euro-American habitat and three breeding territories contributes to the ongoing reduction of settlement of the region in the mid-19th (Moore 2011, p. 12). Land at the nesting and overwintering habitat for century, fire was actively suppressed on Corvallis Airport Industrial Park is the streaked horned lark and, as such, grasslands, allowing encroachment by included in the Benton-Corvallis is a threat to the subspecies. woody vegetation into the remaining Enterprise Zone (City of Corvallis Public prairie habitat and oak woodlands Loss of Ecological Disturbance Works Department 2011, p. 6); the site (Franklin and Dyrness 1973, p. 122; is intended for development of new Processes, Invasive Species, and Boyd 1986, entire; Kruckeberg 1991, p. industries and could result in loss of Succession 287; Agee 1993, p. 360; Altman et al. breeding and wintering habitat for The suppression and loss of natural 2001, p. 262). streaked horned larks. The date and and anthropogenic disturbance regimes, Fires on the prairie create a mosaic of extent of the habitat loss is uncertain such as fire and flooding, across vast vegetation conditions, which serve to however, as no leases have been granted portions of the landscape has resulted in maintain native prairie forbs like for the site at this time. altered vegetation structure in the Camassia quamash (common camas), The 13th Division Prairie at JBLM is prairies and meadows and has Achillea millefolium (yarrow), and used for helicopter operations facilitated invasion by nonnative grasses Lomatium spp. (desert parsley or biscuit

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61476 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

root), which are adult nectar foods for plants through the careful and judicious butterfly larval host and nectaring the Taylor’s checkerspot butterfly. use of herbicides, mowing, grazing, and plants on the 91st Division Prairie. Stands of native perennial grasses prescribed fire. Prescribed fire has been Repeated and high intensity burning can (Festuca idahoensis ssp. roemeri used as a management tool to maintain result in a lack of vegetation or (Roemer’s fescue)) are also well adapted native prairie composition and structure encourage regrowth to nonnative to regular fires and produce habitat and is generally acknowledged to grasses. Where such burning has favorable to the Taylor’s checkerspot improve the health and composition of occurred over a period of more than 50 butterfly. In some prairie patches, fires grassland habitat by providing a short- years on the artillery ranges of the will reset succession back to bare term nitrogen addition, which results in JBLM, prairies are covered by nonnative ground, creating early successional a fertilizer effect to vegetation, thus forbs and grasses instead of native vegetation conditions suitable for both aiding grasses and forbs as they perennial bunchgrasses (Tveten and Taylor’s checkerspot butterflies and resprout. Fonda 1999, pp. 154–155). streaked horned larks (Pearson and Unintentional fires ignited by military Taylor’s Checkerspot Butterfly—On Altman 2005, p. 13). The historical fire training burns patches of prairie grasses JBLM, the 91st Division Prairie is return frequency on prairies has been and forbs on JBLM on an annual basis. frequently ignited through routine estimated to be 3 to 5 years (Foster 2005, These light ground fires create a mosaic training exercises involving ordnance, p. 8). of conditions within the grassland, which prevents invasive shrubs and The result of fire suppression has maintaining a low vegetative structure nonnative grasses and native Douglas-fir been the invasion of the prairies and oak of native and nonnative plant from encroaching onto the prairie, and woodlands by native and nonnative composition, and patches of bare soil. sustains high-quality habitat (larval host plant species (Dunn and Ewing 1997, p. Because of the topography of the and adult nectar food plants) for v; Tveten and Fonda 1999, p. 146), landscape, fires create a patchy mosaic Taylor’s checkerspot butterflies and the notably woody plants such as the native of areas that burn completely, some generally high-quality condition of the Douglas-fir (Pseudotsuga menziesii) and areas that do not burn, and areas where prairie. Vegetation at this site remains in the nonnative Scot’s broom, and consumption of the vegetation is mixed an early successional stage that is nonnative grasses such as in its effects to the habitat. One of the dominated by native grasses and forbs, Arrhenatherum elatius (tall oatgrass) in benefits to fire in grasslands is that it such as Balsamorhiza deltoidea (deltoid Washington and Brachypodium tends to kill regenerating conifers, and balsamroot), which is an important sylvaticum (false brome) in the reduces the cover of nonnative shrubs Taylor’s checkerspot butterfly nectar Willamette Valley of Oregon. This such as Scot’s broom, although Scot’s plant. Fires on grassland (prairie) increase in woody vegetation and broom seed stored in the soil can be habitat generally have low fuel content nonnative plant species has resulted in stimulated by fire (Agee 1993, p. 367). and produce regular, short-duration less available prairie habitat overall, and Fire also improves conditions for many fires (Agee 1993, p. 354; Chappell and habitat that is avoided by Taylor’s native bulb-forming plants, such as Kagan 2001, p. 43), which restricts the checkerspot butterflies and streaked Camassia sp. (camas) (Agee and establishment of invasive plants and horned larks (Tveten and Fonda 1999, p. Dunwiddie 1984, p. 367). On sites encroaching trees and helps to maintain 155; Pearson and Hopey 2005, pp. 2, 27; where regular fires occur, such as on native grasses and forbs. Swales and Olson 2011a, pp. 12, 16). Most JBLM, there is a high complement of overall topographic heterogeneity butterflies avoid densely forested areas, native plants and fewer invasive prevent the entire grassland landscape as they are unable to generate enough species. These types of fires promote the from being consumed by fire, as heat from their own metabolism to maintenance of the native, short- grassland fires tend to be patchy in their provide them with the heat and energy statured vegetation communities distribution, creating a mosaic of they need to fly in shaded conditions. (Severns and Warren 2008, p. 476) conditions. On a patch of this large Streaked horned larks prefer areas that favored by the Taylor’s checkerspot prairie, nonnative grasses have invaded afford long sight lines and have low butterflies for larval and nectar food many sites occupied by Taylor’s vegetation; both of which are impeded resources. Fire management to maintain checkerspot butterflies (Severns and by the presence of trees. or restore native vegetation is essential Warren 2008, p. 476). Several hundred On tallgrass prairies in midwestern to maintaining suitable habitat for the acres (more than 40 ha) of tall oatgrass North America, fire suppression has led Taylor’s checkerspot butterfly, but the is currently encroaching upon the to degradation and the loss of native timing of the management activity is largest Taylor’s checkerspot butterfly grasslands (Curtis 1959, pp. 296, 298; important, as improperly timed population in Washington (JBLM’s 91st Panzer 2002, p. 1297). On northwestern prescribed fire can destroy larvae, eggs, Division Prairie). prairies, fire suppression has allowed or adult butterflies. Bald habitat at the Forest Service and Douglas-fir to encroach on and Management practices such as WDNR sites where Taylor’s checkerspot outcompete native prairie vegetation for intentional burning and mowing require butterflies are found were created due to light, water, and nutrients (Stinson expertise in timing and technique to the shallow soil conditions or they may 2005, p. 7). On JBLM alone, over 16,000 achieve desired results. If applied at the have been formerly forested. On bald acres (6,477 ha) of prairie has converted wrong season, frequency, or scale, fire habitat that was formerly forested, these to Douglas-fir forest since the mid-19th and mowing can be detrimental to the areas appear to have been colonized by century (Foster and Shaff 2003, p. 284). restoration of native prairie species. For the Taylor’s checkerspot butterfly Where controlled burns or direct tree example, during a prescribed fire event shortly after they were cleared. At the removal are not used as a management that was implemented in an adjacent time the trees were harvested from each tool, this encroachment will continue to training area on JBLM in late summer of these balds they were reforested with cause the loss of open grassland habitats 2011, fire occurred in an area containing conifers to comply with the Washington for the Taylor’s checkerspot butterfly. Taylor’s checkerspot butterfly habitat State forest practices rules. The Restoration in some of the south Puget that was under a protection agreement. establishment and growth of the Sound grasslands in Washington has This burn was inconsistent with the conifers, and the establishment and resulted in temporary control of Scot’s prescribed burn plan and eliminated a expansion of Acer macrophyllum broom and other invasive, nonnative large area of Taylor’s checkerspot (bigleaf maple), Holodiscus discolor

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61477

(oceanspray), and other shrubs has cottonwood), and other vegetation habitat during the breeding season resulted in shaded habitat that has established broadly on the sandbars and (MacLaren 2000, p. 3). In 2004 on Miller replaced habitat occupied by the banks (Rogers 2000, pp. 41–42), Sands Spit, the Corps deposited dredge Taylor’s checkerspot butterfly. Sites that resulting in unsuitable habitat for larks. material on lark breeding habitat, which currently have Taylor’s checkerspot Loss of these habitats may have been likely resulted in nest failure (Pearson butterflies present will quickly become partially ameliorated by the formation of and Altman 2005, p. 10). The Corps unsuitable if trees and shrubs are not dredge spoil islands that have been recently began working with the Center removed and if the site is not managed established as part of the Corps’ for Natural Lands Management to specifically for the long-term shipping channel maintenance (Stinson coordinate dredge spoil depositions conservation of the Taylor’s checkerspot 2005, p. 67). with timing of lark breeding season butterfly or the maintenance of bald The streaked horned lark currently (Anderson 2011, in litt.). habitat. This is the case for several balds uses sand islands in the lower Columbia Dredge spoil deposition also creates recently occupied by the Taylor’s River for both breeding and wintering habitat for Caspian terns (Sterna checkerspot butterfly but no longer habitat; these islands are a mosaic of caspia), a native bird species that nests supporting the subspecies, including Federal, State, and private lands, but in very large numbers in the lower Bald Hills NAP in Thurston County of there are no management or Columbia River; these large terns have south Puget Sound, and Highway 112 conservation plans in place to protect been shown to eat substantial numbers and Striped Peak in Clallam County, on larks or these important habitats. The of salmon smolts, and the reduction of the north Olympic Peninsula. Corps has a dredging program to predation by terns on young salmon has A large portion of the existing, maintain the navigation channel in the been the focus of an interagency effort occupied Taylor’s checkerspot butterfly Columbia River. In 2002, the Corps for the past decade (Lyons et al. 2011, habitat on Denman Island in British established a deeper navigation channel p. 2). One aspect of the effort to reduce Columbia, Canada, resulted from timber in the river, a regular maintenance the numbers of terns in the lower harvest. After the area was logged, dredging program, and a plan for Columbia River has been a program to Taylor’s checkerspot butterflies disposition of dredge material on the discourage tern nesting on Rice Island colonized the disturbed area from islands in the lower Columbia River by planting vegetation and placing nearby suitable habitat. Currently, Alnus (USFWS 2002b, pp. 1–14). In this plan, barrier fencing on open, sandy habitats; rubra (red alder), bigleaf maple, and the Corps addressed the disposition of these measures have also reduced Douglas-fir trees are expanding onto the dredge material in the lower Columbia habitat available to larks on the island site, which will directly threaten the River, which has the potential to both and are ongoing (Stinson 2005, p. 73; Taylor’s checkerspot butterfly habitat benefit and harm streaked horned larks, Roby et al. 2011, p. 14). there (COSEWIC 2011, p. 18). As the depending on the location and timing of There is ample evidence that larks forest becomes reestablished on the deposition. Recent studies by Anderson respond positively to habitat property, it will produce shade and the (2010a, p. 29) on the islands in the management that simulates natural trees will outcompete the host plants for lower Columbia River have shown that processes. From 2001 through 2004, the Taylor’s checkerspot butterfly for fresh dredge material stabilizes and JBLM used nonbreeding season mowing space, water, light, and nutrients. The develops sparse vegetation suitable for and controlled burns to control Scot’s population of Taylor’s checkerspot larks nesting approximately 3 years after broom (Pearson and Hopey 2005, p. 30). butterfly is expected to decline deposition, and can be expected to The September 2004 burns resulted in significantly within the next 10 years at remain suitable for approximately 2 increased lark abundance and a this sole Canada site if the current years before vegetation becomes too dramatic vegetative response on 13th habitat on Denman Island is not dense (although larks were found to use Division Prairie; relative to the control managed for the subspecies (COSEWIC habitats that did not precisely fit this sites, late summer fire in 2006 resulted 2011, p. 31). model, and more analysis is underway). in increased use of the burned areas by We conclude that the loss of Deposition of dredge material at the larks immediately after the fires, and in ecological disturbance processes; the wrong time, however (e.g., during the the breeding season following the fires occurrence of invasive, nonnative nesting season), can destroy nests and (Pearson and Hopey 2005, p. 30). species; and the natural succession of young or degrade suitable habitat. Thus, Throughout the year, the streaked vegetation communities separately and deposition of dredge material can be horned lark uses areas of bare ground or collectively continue to be a threat to both a tool for habitat creation and a sparse vegetative cover in grasslands. Taylor’s checkerspot butterflies. threat for the streaked horned lark. These grasslands may be native prairies Changes to the structure and Destruction of occupied lark habitat in the Puget lowlands, perennial or composition of the native prairie plant through the deposition of dredge annual grass seed fields in the communities contributes to the loss of materials has been documented several Willamette Valley, or the margins of function of the prairie ecosystem and times on the lower Columbia River airport runways throughout the range of threatens the Taylor’s checkerspot islands (Stinson 2005, p. 67; Pearson the species. All of these habitats receive butterfly’s capability to successfully and Altman 2005, p. 11; Pearson et al. management to maintain desired complete its life stage requirements and 2008, p. 14). In 2006, dredge spoils were structure: prairies require frequent quickly leads to extirpation of the deposited on Whites Island while larks burning or mowing to prevent subspecies from specific prairie patches. were actively nesting. All nests at this succession to woodlands; agricultural Streaked Horned Lark—Prior to the site were apparently destroyed (Pearson fields are mowed at harvest or burned construction of dams on the Columbia 2012a, pers. comm.). This site had at to reduce weed infestations; airports River, annual flooding and scouring least 21 nests and 13 territories during mow to maintain low-stature grasses likely created nesting and wintering the 2005 nesting season (Pearson et al. around airfields to minimize attracting habitat for streaked horned larks on 2008, p. 21). In a similar situation on hazardous wildlife. Burning and sandy islands and beaches along the Rice Island, singing males were mowing are beneficial to larks in that river’s edge (Stinson 2005, p. 67). Once observed on Rice Island in June 2000, they maintain the habitat structure the dams were in place, Salix spp. but dredge spoil was placed on the site required by the bird, but these activities (willows), Populus trichocarpa (black in July 2000, which destroyed nesting can also harm larks if the activities

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61478 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

occur during the breeding season when measures, these areas still provide translocated during the springs of 2009, nests and young are present (Pearson habitat for the Taylor’s checkerspot 2010, and 2011, and at the proposed and Hopey 2005, p. 29). In the nesting butterfly and the streaked horned lark. Taylor’s checkerspot butterfly seasons from 2002 to 2004, monitoring Taylor’s Checkerspot Butterfly— translocation site at 13th Division at the Puget lowlands sites (Gray Army Military training on JBLM has resulted Prairie. Airfield, McChord Field, and Olympia in direct mortality of Taylor’s Under the GTA initiative, more troops Airport) documented nest failure of 8 checkerspot butterflies and destruction and vehicles will be stationed at JBLM; percent of nests caused by mowing over of Taylor’s checkerspot butterfly habitat. this is likely to result in increased the nests, young, and adults (Pearson Vehicle use and soldier foot traffic can pressure on Taylor’s checkerspot and Hopey 2005, p. 18). Habitat crush larvae and damage larval host butterfly habitat and larvae, particularly management to maintain low-stature plants. These actions disrupt intact if the Army continues training on 91st vegetation is essential to maintaining prairie plant communities by disturbing Division Prairie. It is likely that a higher suitable habitat for the streaked horned vegetation and exposing soils, directly number of troops will equate to a higher lark, but the timing of the management introducing invasive plant seeds carried number of individuals recreating on is important, as improperly timed in on tires or boots, and accelerating the JBLM in places like Marion and Johnson actions can destroy nests and young. rate of establishment of invasive grasses prairies (this is further discussed under We conclude that the loss of natural or other nonnative plants that are light- ‘‘Recreation,’’ below). disturbance that historically created seeded and easily blown onto a site We conclude that the threat of habitat for the streaked horned lark from adjacent areas, like Cirsium spp. military training continues to have continues to be a threat to the (thistles), Senecio spp. (groundsel), and significant, habitat-altering impacts on subspecies due to encroachment of Chrysanthemum leucanthemum (oxeye the Taylor’s checkerspot butterfly. All plant species (e.g., trees and beach daisy). For example, in January 2009, an training areas on JBLM that are grasses) that reduce available habitat. exercise occurred that did not follow the currently occupied by Taylor’s The Service has developed timing documented training plan, which would checkerspot butterflies experience recommendations for other forms of have restricted vehicles to established regular training, including mounted manmade disturbance including roads in order to protect sensitive vehicle training and infantry training, burning, mowing, and dredge spoil habitat. Instead vehicles moved with foot soldiers directly impacting the deposition. Where a Federal nexus haphazardly across an area known to be area where the subspecies is found. We exists, the Service has partnered with occupied by Taylor’s checkerspot consider military training under present other agencies to implement avoidance butterflies and streaked horned larks. conditions a threat to the short-term and strategies for occupied streaked horned Approximately 67 ac (27 ha) of prairie long-term conservation of the Taylor’s lark nesting areas. When the were repeatedly traversed by eight- checkerspot butterfly. recommended timing restrictions are wheeled, armored personnel carriers Streaked Horned Lark—Military observed, we consider the benefit of known as Strykers. DOD staff later training, including bombardment with habitat creation through burning, estimated that up to 37.5 ac (15 ha) were explosive ordnance and hot downdraft mowing, and dredge spoil deposit highly disturbed (Gruhn 2009, pers. from aircraft, has been documented to outweighs the negative impact of these comm.), with much of this acreage cause nest failure and abandonment for activities, such that, if implemented scraped to bare soil (Linders 2009b, streaked horned larks at Gray Army appropriately, we do not consider such entire). This impact would have directly Airfield and McChord Field at JBLM manmade disturbance to pose a threat to affected overwintering larvae by (Stinson 2005, pp. 71–72). These the subspecies. crushing larvae and destroying the activities harass and may kill some larvae plants used by Taylor’s streaked horned larks, but the frequent Military Training and Associated checkerspot butterflies. disturbance also helps to maintain Activities Taylor’s checkerspot butterfly counts sparse vegetation and open ground Populations of Taylor’s checkerspot were the lowest ever recorded at this needed for streaked horned lark nesting. butterflies and streaked horned larks site during the following spring (Linders In the odd-numbered years since occurring on JBLM are exposed to 2009a, entire; Randolph 2009, p. 4; 2005, McChord Field has hosted a differing levels of training activities on Thomas 2009, pers. obs). Prior to the military training event known as the Air the base. The Department of Defense’s Taylor’s checkerspot butterfly flight Mobility Rodeo. This international (DOD’s) proposed actions under the season in May 2009, the three brigades military training exercise is held at the ‘‘Grow the Army’’ (GTA) initiative of Strykers were dispatched away from end of July. This event includes aircraft, include stationing 5,700 new soldiers, JBLM and the prairies were not used for vehicles, and tents staged on or near new combat service support units, a Stryker training during the spring of lark nesting areas, although the majority combat aviation brigade of 120 2009 or 2010, which corresponds to the of these activities take place on concrete helicopters, facility demolition and Taylor’s checkerspot butterfly flight hardstand areas (Geil 2010, in litt.). In construction to support the increased period. This training break allowed even-numbered years, McChord Field troop levels, additional aviation, Range 74–76 of the 91st Division Prairie hosts a public air show known as Air maneuvers, and live fire training (75 FR to regenerate or recover the vegetative Expo, which is scheduled in mid-July. 55313; September 10, 2010). The qualities associated with the Taylor’s At the Air Expo, aerial events increased training activities will affect checkerspot butterfly and the streaked incorporate simulated bombing and fire- nearly all training areas at JBLM, horned lark habitat. JBLM has bombing, including explosives and resulting in an increased risk of subsequently coordinated with the pyrotechnics launched from an area accidental fires, and habitat destruction Service to establish specific adjacent to the most densely populated and degradation through vehicle travel, conservation measures regarding vehicle streaked horned lark nesting site at this dismounted infantry training, bivouac use within this training area. Military location; these disturbances likely have activities, and digging. While training training also occurs on a specific adverse effects to fledglings of late nests areas on the base have degraded habitat portion of the 91st Division Prairie (Stinson 2005, p. 72). Surveys in 2004 for these subspecies, with known as Range 50, where Taylor’s detected 31 pairs of streaked horned implementation of conservation checkerspot butterfly larvae have been larks at McChord Field (Anderson 2011,

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61479

p. 14). In 2006, the number of lark pairs result in trampling, crushing, and encroaching on lark habitat, reducing at McChord Field had dropped by more destruction of Taylor’s checkerspot the area available for nesting (Pearson than half to 14 pairs, and the number of butterfly larvae and larval host plants. 2011, in litt.). On the Oregon coast, the lark pairs has remained low, with just Mowing to reduce the cover and disappearance of the streaked horned 11 pairs detected in 2011 (Anderson competition from woody species, if lark has been attributed to the invasion 2011, p. 14). The Rodeo and Air Expo done at the wrong time of year, can of exotic beachgrasses and the resultant events are scheduled to take advantage crush larval host plants and nectar dune stabilization (Gilligan et al. 1994, of the good weather that typically plants used by adult butterflies on a site p. 205). occurs in the summer on the south or even crush and kill larvae. Mowing Some efforts have been successful in Puget Sound; this timeframe also activities should be timed to coincide reducing the cover of encroaching coincides with streaked horned lark with the diapause period for the beachgrasses. The Service’s Willapa nesting season, and the disturbance may subspecies, and mowing should be National Wildlife Refuge has restored continue to cause nest failure and relatively high above the soil level to habitat on Leadbetter Point. In 2007, the abandonment (Pearson et al. 2005a, p. avoid any larvae that may not have area of open habitat measured 84 ac (34 18). During the airshows, tents, vehicles, burrowed into the soil. ha); after mechanical and chemical and concession stands are set up in the We conclude that restoration actions treatment to clear beachgrass (mostly grassy areas along the runways used by to improve Taylors’ checkerspot American beachgrass) and spreading streaked horned larks for nesting, and butterfly habitat or increase the number oyster shell across 45 ac (18 ha), 121 ac thousands of visitors a day line the of checkerspots on specific prairie (50 ha) of sparsely vegetated, open runways to view the shows. As military patches may have short-term adverse habitat suitable for lark nesting was training has been documented to cause impacts to the subspecies and could created (Pearson et al. 2009, p. 23). The nest failure and abandonment, which potentially pose a threat to this resident main target of the Leadbetter Point can lower reproductive success and may subspecies because it is present in some restoration project was the federally adversely affect fledglings, we conclude life form stage on relatively small listed western snowy plover that these activities are a threat to the habitat patches throughout the entire (Charadrius alexandrinus nivosus), but streaked horned lark. year. However, any short-term threat the restoration actions also benefited the JBLM has committed to restrictions posed by restoration actions is streaked horned lark. Before the both seasonally and operationally on outweighed by the positive restoration project, this area had just 2 military training areas, in order to avoid contributions to the subspecies and its streaked horned lark territories (Pearson and minimize potential affects to the habitat from these actions, such that as et al. 2005a, p. 7); after the project, an Taylor’s checkerspot butterfly and the currently implemented, we do not estimated 8 to 10 territories were streaked horned lark. These restrictions consider restoration actions to rise to located in and adjacent to the include identified nontraining areas, the level of posing a threat to the restoration area (Pearson 2012b, pers. seasonally restricted areas during subspecies. comm.). breeding, and the adjustment of mowing Streaked Horned Lark—The Disease Impacts to Habitat schedules to protect these subspecies. introduction of Ammophila arenaria These conservation management (Eurasian beachgrass) and A. Taylor’s Checkerspot Butterfly—Until practices are outlined in an operational breviligulata (American beachgrass), recently disease was not known to be a plan that the Service has assisted the currently found in high and increasing factor affecting the habitat of the DOD in developing for JBLM (Thomas densities in most of coastal Washington Taylor’s checkerspot butterfly. We now 2012, pers. comm.). While the Service and Oregon, has dramatically altered the have evidence of a plant pathogen fully supports the implementation of structure of dunes on the outer coast (Pyrenopeziza plantaginis) known to these impact minimization efforts and (Wiedemann and Pickart 1996, p. 289). affect the leaf tissue of the narrow-leaf will continue to collaborate with DOD The tall leaf canopy of beachgrass plantain, the primary larval food for the to address all aspects of training impacts creates areas of dense vegetation, which Taylor’s checkerspot butterfly at several on the subspecies, not all adverse is unsuitable habitat for streaked horned locations, and the exclusive larval food impacts of training on the subspecies lark nesting (MacLaren 2000, p. 5). plant at all sites known from Oregon. At are fully addressed. Military training as Streaked horned larks require sparse, some locations on the north Olympic presently conducted continues to be a low-stature vegetation with at least 16– Peninsula, Taylor’s checkerspot threat to the subspecies at this time. 17 percent bare ground; areas invaded butterflies select harsh paintbrush as the by beachgrass are too dense for streaked primary larval food plant and select Restoration Activities horned larks. The area suitable for narrow-leaf plantain as the secondary Management for invasive species and streaked horned lark breeding on the larval host. Pyrenopeziza plantaginis is encroachment of conifers requires Washington coast has decreased as a active in late winter through early control through equipment, herbicides, result of the spread of beachgrasses spring, and contributes to the mortality and other activities. While restoration (Stinson 2005, p. 65; USFWS 2011a, p. of leaf tissue at a time when post- has conservation value for the Taylor’s 4–2). In a 10-year period (from 1977 to diapause larvae are feeding on narrow- checkerspot butterfly and the streaked 1987) at Leadbetter Point on the Willapa leaf plantain. Narrow-leaf plantain is an horned lark, management activities to National Wildlife Refuge, spreading exotic but widely distributed, invasive, implement restoration may also have beachgrass reduced the available nesting European weed in North America (Wolff inadvertent direct impacts to the habitat for streaked horned larks by and Schaal 1992, pp. 326, 330). subspecies that are the target of habitat narrowing the distance from vegetation Although the pathogen is common in restoration. to water by 112 feet (34 meters) (WDFW Europe, it has only recently been Taylor’s Checkerspot Butterfly—On 1995, p. 19). Since 1985, encroaching reported in North America (Severns occupied sites, Taylor’s checkerspot beachgrasses have spread to cover over 2011, in litt.; Stone et al. 2011, p. 1). butterflies are present throughout the two-thirds of Damon Point at Grays Severns and Warren (2008. p. 476) year in some life cycle form. Restoration Harbor, another lark breeding site on the identified the pathogen on leaves of activities (application of herbicides, use Washington coast (WDFW 1995, p. 19). narrow-leaf plantain from remnant of restoration equipment, and fire) can At Damon Point, Scot’s broom is also prairies in Benton County, Oregon,

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61480 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

where Taylor’s checkerspot butterflies are used for both breeding and populations in Washington, from 13 are known to occur and where they feed wintering habitat (Altman 1999, p. 18; populations to 2 populations in Oregon, exclusively on narrow-leaf plantain. Moore and Kotaich 2010, p. 11; Myers and from 24 populations to 1 population Similar instances of leaf mortality were and Kreager 2010, p. 9). About 420,000 known from Canada. Taylor’s previously attributed to frost damage on ac (170,000 ha) in the Willamette Valley checkerspot butterflies also face threats prairies of south Puget Sound, are currently planted in grass seed from changes in vegetation structure Washington. Recently, P. plantaginis production fields. Demand for grass and composition of native grassland- has been identified on narrow-leaf seed is declining in the current dominated plant communities. Changes plantain at Scatter Creek Wildlife Area economic climate (Oregon Department to vegetation structure and composition in Thurston County, and at the 91st of Agriculture 2011, p. 1); this decreased can occur through conversion to Division Prairie on JBLM, in Pierce demand for grass seed has resulted in agriculture, through natural succession County; both sites are in Washington. farmers switching to other agricultural processes, and through invasion by Uncertainty exists regarding how commodities, such as wheat or nurseries nonnative species (Agee 1993, p. 345; Pyrenopeziza plantaginis affects and greenhouses (U.S. Department of Chappell and Kagan 2001, p. 42). In Taylor’s checkerspot butterfly larvae. Agriculture–National Agricultural addition to the loss of grasslands from The pathogen has been identified Statistical Service Oregon Field Office development, conversion to agriculture, locally in Washington at sites where 2009, p. 3; Oregon Department of and other uses, as well as plant Taylor’s checkerspot butterfly larvae Agriculture 2011, p. 1). The continued succession, these plant communities are feed on narrow-leaf plantain. The decline of the grass seed industry in the faced with degradation due to invasion pathogen kills leaf tissue in late winter Willamette Valley will likely result in of the grassland habitat that remains by and early spring, coinciding with the conversion from grass seed fields to native conifers and nonnative pasture time post-diapause larvae are feeding other agricultural types; this will result grasses, shrubs, and forbs. As grasslands (Severns 2011, in litt.), which would in fewer acres of suitable breeding and have been converted, the availability of lead to declining food resource to wintering habitat for streaked horned Taylor’s checkerspot butterfly larval support Taylor’s checkerspot butterfly larks. host plants and adult nectar plants has larvae. If the food resource is killed by Another potential threat related to declined. We consider the negative this pathogen, it may affect the ability agricultural lands is the streaked horned impacts to the Taylor’s checkerspot of Taylor’s checkerspot butterfly larvae lark’s use of ephemeral habitats. In the butterfly from the loss and degradation to survive through the critical larval breeding season, streaked horned larks of its native grassland habitats to pose feeding period prior to emergence as an will move into open habitats as they a threat to the subspecies. adult butterfly. become available, and as the vegetation We conclude that disease, specifically Pyrenopeziza plantaginis may be a grows taller over the course of the Pyrenopeziza plantaginis, may pose a threat to the larval foods utilized by the season, larks will abandon the site to potential threat to the larval food plant Taylor’s checkerspot butterfly and, look for other open habitats later in the of the Taylor’s checkerspot butterfly, subsequently, may indirectly affect the season (Beason 1995, p. 6). This ability and therefore a potential indirect threat Taylor’s checkerspot butterfly. At this to shift locations in response to habitat to the subspecies. However, we have no time, we have evidence of the presence changes is a natural feature of the information to suggest that it is of this pathogen at Scatter Creek streaked horned lark’s life-history currently a threat to the Taylor’s Wildlife Area in Washington, where the strategies, as breeding in recently checkerspot butterfly. Any threat of pathogen appears common and its effect disturbed habitats is part of their disease to the larval food plant for this to Plantago is severe (Severns 2011, in evolutionary history. In the Willamette subspecies has the potential to become litt.) This threat may affect populations Valley, some habitats in agricultural a threat in the future due to the small if the pathogen were to become fields are consistently available (e.g., on number of remaining populations of the widespread on sites occupied by the the margins of gravel roads), while other Taylor’s checkerspot butterfly. However, Taylor’s checkerspot butterfly; however, patches of suitable habitat shift from based on our review of the best available because we are uncertain of its potential place to place as fields are burned, information, we have no data at this as a population-level threat, we mowed, or harvested. Other suitable point to suggest that it is likely to conclude that disease is not a threat to sites appear when portions of grass become a widespread threat in the the Taylor’s checkerspot butterfly fields perform poorly, inadvertently future. habitat at this time, and we have no creating optimal habitat for larks. The The current threats to Taylor’s evidence to suggest that it is likely to shifting nature of suitable habitat is not checkerspot butterflies are similar to become a threat within the near future. in itself a threat; the potential threat is those identified at the time the Streaked Horned Lark—Disease is not in the overall reduction of compatible subspecies was determined to be a known to be a threat to the habitats of agriculture, which would reduce the candidate for listing in 2001. Since then, the streaked horned lark. area within which streaked horned lark the threat from invasive species and habitat could occur. their impacts on native vegetation have Transient Agricultural Habitat increased. Other threats, particularly the Taylor’s Checkerspot Butterfly—The Summary of Factor A threat to develop Taylor’s checkerspot Taylor’s checkerspot butterfly is not Taylor’s Checkerspot Butterfly— butterfly habitat, have increased on affected by transient agricultural habitat. Taylor’s checkerspot butterflies face Denman Island, Canada; in south Puget Streaked Horned Lark—Roughly half threats from loss of habitat due to Sound, Washington; and in the of all the agricultural land in the conversion of native grasslands to Willamette Valley, Oregon (IAE 2010, p. Willamette Valley is devoted to grass agriculture, and permanent loss when 1). Moreover, prior to entering two wars seed production fields (Oregon Seed prairies are developed for residential or in 2003, military training (DOD, Army, Council 2012, p. 1). Grasslands—both commercial purposes. This decline is JBLM) on occupied Taylor’s checkerspot rare native prairies and grass seed exemplified by the reduction of butterfly habitat was lower in intensity fields—are important habitats for populations for the subspecies and duration. The only remaining high- streaked horned larks in the Willamette rangewide, including a reduction from quality native habitat occupied by the Valley; open areas within the grasslands over 40 populations to fewer than 10 Taylor’s checkerspot butterfly within

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61481

the south Puget Sound region is found beachgrasses; and (5) incompatible at this time, and the trampling, or on the 91st Division Prairie of JBLM, a management practices. The continued crushing of eggs, larvae, and pupae site of highly active training that can loss and degradation of streaked horned associated with scientific studies inadvertently result in the destruction of lark habitat may result in smaller, more continue to be a potential threat to the larval host plants and crushed larvae. isolated habitats available to the subspecies, although likely a minor one. Based on negative impacts to the subspecies, which could further depress Streaked Horned Lark— Taylor’s checkerspot butterfly from the rangewide population or reduce the Overutilization for commercial, current projected development and geographic distribution of the streaked recreational, scientific, or educational impacts to habitat, the loss of horned lark. We conclude that the purposes is not known to be a threat to historically occupied locations, military current and ongoing threats to streaked the streaked horned lark. training, recreation, the limited horned lark habitat are resulting in a Summary of Factor B distribution of the subspecies, existing significant impact to the subspecies and and future habitat fragmentation, habitat its habitat and will continue into the In summary, although there is some disturbance (including fire), and land future. evidence of historical mortality from use changes associated with agriculture overutilization for the Taylor’s and long-term fire suppression, we Factor B. Overutilization for checkerspot butterfly and there may conclude that there are current and Commercial, Recreational, Scientific, or have been recent mortality from ongoing threats to the Taylor’s Educational Purposes scientific studies of the Taylor’s checkerspot butterfly and its habitat that Overutilization of species results checkerspot butterfly, we have no are expected to continue into the future. when the number of individuals reason to believe that current levels of At all locations presently occupied by removed from the system exceeds the utilization, or the potential impacts the Taylor’s checkerspot butterfly, the ability of the population of the species from scientific studies of the subspecies, combined threats to the subspecies to sustain its numbers or reduces have caused or will cause the Taylor’s through the degradation or destruction populations of the species to a level checkerspot butterfly to be vulnerable to of its habitat are severe, pervasive, and such that it is vulnerable to other other threats. Based on the best ongoing, including: (1) Conversion of influences (threats) upon its survival. scientific and commercial data habitat to agriculture, or permanent loss This overutilization can result from available, we have no information to of habitat to development; (2) military removal of individuals from the wild for suggest that overutilization for training that has destroyed habitat and commercial, recreational, scientific, or commercial, educational, recreational, led to mortality by crushing eggs and educational purposes. or scientific purposes is now a threat or larvae; (3) invasion of habitat by native Taylor’s Checkerspot Butterfly— will become a threat to the Taylor’s and nonnative woody vegetation; (4) Populations of Taylor’s checkerspot checkerspot butterfly in the future. loss of natural disturbance processes butterflies have declined dramatically In addition, there is no evidence that that otherwise would maintain early during the past decade. We know of no commercial, recreational, scientific, or seral conditions; (5) a restricted and overutilization of the Taylor’s educational use is now a threat or will disjunct range of the subspecies (see checkerspot butterfly for commercial, become a threat to the streaked horned Factor E discussion, below); and (6) recreational, or educational purposes. lark in the future. small populations throughout the However, scientific studies may have Factor C. Disease or Predation subspecies’ range (see Factor E inadvertently negatively affected discussion, below). The continued Taylor’s checkerspot butterfly Disease decline and degradation of Taylor’s populations at the 13th Division Prairie Most healthy ecosystems include checkerspot butterfly habitat has on JBLM (Vaughan and Black 2002). organisms such as viruses, bacteria, resulted in isolated populations Over 7,000 individuals were observed as fungi, and parasites that cause disease. occupying small habitat patches within recently as 1997, but only 10 adults Healthy wildlife and ecosystems have degraded prairies, which may lead to were observed during surveys in 2000, evolved defenses to fend off most further population declines or to and no Taylor’s checkerspot butterflies diseases before they have devastating complete loss and may decrease the have been observed since (Stinson 2005, impacts. An ecosystem with high levels geographic distribution of the the p. 94; Linders 2012c, in litt.). Mark- of biodiversity (diversity of species and Taylor’s checkerspot butterfly. We recapture studies were conducted at this genetic diversity within species) is more conclude that the current and ongoing site for several years during this resilient to the impacts of disease threats to the Taylor’s checkerspot timeframe, and the study methods because there are greater possibilities butterfly and its habitat represent involved capturing all adults and that some species and individuals significant effects to the subspecies and moving them to a single release within a species have evolved its habitat and will continue into the location. This action likely influenced resistance, or if an entire species is lost, future. the population demographics, but that there will likely be another species Streaked Horned Lark—The streaked because no simultaneous population to fill the empty niche. horned lark population decline in monitoring was conducted, it is Where ecosystems are not healthy, Washington indicates that the observed impossible to know whether there was due to a loss of biodiversity and threats range contraction for this subspecies an effect. According to McGarrahan such as habitat loss, climate change, may be continuing, and the subspecies (1997), mark, release, and recapture pollutants, or invasive species, wildlife may disappear from that region in the studies of the Bay Edith’s checkerspot and ecosystems are more vulnerable to near future. There are many other (Euphydryas editha bayensis) were emerging diseases. Diseases caused by ongoing threats to streaked horned lark’s considered a contributing factor in the or carried by invasive species are habitat throughout its range, including: extirpation of this population from particularly severe threats, as native (1) Conversion to agriculture and Stanford’s Jasper Ridge Preserve. There wildlife may have no natural immunity industry; (2) loss of natural disturbance are no current Taylor’s checkerspot to them (National Wildlife Federation processes, such as fire and flooding; (3) butterfly ‘‘mark, release and recapture 2012). encroachment of woody vegetation; (4) studies’’ in progress. Capture of Our review of the best available invasion of coastal areas by nonnative butterflies for study is a potential threat scientific and commercial data found no

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61482 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

evidence to indicate that disease is a significant factor in mortality of adult including domestic cats and dogs, threat to the Taylor’s checkerspot variable checkerspot butterflies coyotes (Canis latrans), raccoons butterfly or the streaked horned lark. We (Euphydryas chalcedona); they also (Procyon lotor), striped skunks conclude that disease is not a threat to found sex bias in selection of prey as the (Mephitis mephitis), red foxes (Vulpes the Taylor’s checkerspot butterfly or the avian predator ate more female variable vulpes), long-tailed weasels (Mustela streaked horned lark now, nor do we butterflies (less bright red) than male frenata), opossums (Didelphis anticipate it to become a threat in the variable checkerspot butterflies, adding virginiana), meadow voles (Microtus future. support to the idea that brightly colored pennsylvanicus), deer mice (Peromyscus insects are avoided (Bowers 1985 p. Predation maniculatus), and shrews (Sorex spp.) 100). This is likely a naturally occurring (Pearson and Hopey 2005, p. 17; Stinson Predation is a process of major predation event, and we conclude that 2005, p. 59). importance in influencing the at this time it is currently not a threat, Predation is a natural part of the distribution, abundance, and diversity nor do we expect it to become a threat streaked horned lark’s life history, and of species in ecological communities. to the Taylor’s checkerspot butterfly in in stable populations, the effect of Generally, predation leads to changes in the future. predation would not be considered a both the population size of the predator Streaked Horned Lark—Predation on threat to the subspecies. However, in the and that of the prey. In unfavorable adult streaked horned larks has not been case of the streaked horned lark, the environments, prey species are stressed identified as a threat, but it is the most effect of predation may be magnified or living at low population densities frequently documented source of when populations are small, and the such that predation is likely to have mortality for eggs and young larks. In disproportionate effect of predation on negative effects on all prey species, thus most studies of streaked horned lark declining populations has been shown lowering species richness. In addition, nesting ecology, predation has been the to drive rare species even further when a nonnative predator is primary documented source of nest towards extinction (Woodworth 1999, introduced to the ecosystem, negative failure (Altman 1999, p. 18; Pearson and pp. 74–75). It is also possible that effects on the prey population may be Hopey 2004, p. 15; Pearson and Hopey predation rates are higher now than in higher than those from co-evolved 2005, p. 16; Pearson and Hopey 2008, p. the past, due to the proximity of human native predators. The effect of predation 1; Moore and Kotaich 2010, p. 32). developments and their associated may be magnified when populations are Sixty-nine percent of nest failures were predator attractions near lark habitats. small, and the disproportionate effect of caused by predation at four south Puget We consider the effect of predation on predation on declining populations has Sound study sites (Gray Army Airfield, streaked horned lark populations, been shown to drive rare species even 13th Division Prairie, Olympia Airport, particularly in the south Puget Sound, further towards extinction (Woodworth and McChord Field) in 2002–2004 to be a threat to the species. 1999, pp. 74–75). (Pearson and Hopey 2005, p. 18). Predation has an impact on Anderson (2006, p. 19) suggests that the The one area where predation does populations of the Taylor’s checkerspot primary predators of streaked horned not appear to be a threat to nesting butterfly and the streaked horned lark. lark eggs and young were avian, most streaked horned larks is in Portland at The degree of threat to the Taylor’s likely American crows (Corvus Rivergate Industrial Complex and the checkerspot butterfly from predation is brachyrhynchos), although garter snakes Southwest Quad at Portland not as pronounced as with the streaked (Thamnophis spp.) and western International Airport. In 2009 and 2010, horned lark due to the concentration of meadowlarks have also been nesting success was very high, and only defensive plant compounds within the documented preying on eggs and young a single predation event was larvae and adults that make them in the region (Pearson and Hopey 2005, documented at these sites (Moore 2011, distasteful to predators. p. 16; Pearson and Hopey 2008, p. 4). p. 11). The reason for the unusually low Taylor’s Checkerspot Butterfly— On the Washington coast and lower predation pressure may be that the two Generally, butterflies exhibit some Columbia River islands, 46 percent of industrial sites have few predators protective mechanisms to avoid nest failures were caused by predation because both sites are isolated from predation, and this is true for the at three study sites (Midway Beach, other nearby natural habitats. Taylor’s checkerspot butterfly. Larvae of Damon Point, and Puget Island) in 2004 Predation may have contributed to the the Taylor’s checkerspot butterfly (Pearson and Hopey 2005, p. 18). A extirpation of streaked horned larks on sequester iridoid glycosides (plant study of five sites in the Willamette the San Juan Islands. Streaked horned defensive chemicals) during Valley (Corvallis Airport, M–DAC larks were last documented on the consumption of their larval host plants, Farms, and William L. Finley, Baskett islands in 1962 (Lewis and Sharpe 1987, narrow-leaf plantain and paintbrush Slough, and Ankeny National Wildlife p. 204). The introduction of several species. These compounds are Refuges) determined that 23 to 58 exotic animal species, including feral distasteful to predators (COSEWIC 2011, percent of all streaked horned lark nests ferrets (Mustela putorius) and red foxes, p. 36), and generalist predators such as were lost to predation (Moore and to the island roughly coincides with the insects and spiders avoid checkerspot Kotaich 2010, p. 32). disappearance of streaked horned lark. larvae (Kuussaari et al. 2004, p. 140). Video cameras were used to identify These introduced predators may have Taylor’s checkerspot butterfly larvae predators in this Willamette Valley significantly affected ground nesting also tend to be brightly colored, which study; documented predators include: birds and played a role in the eventual makes them highly visible and signals Red-tailed hawk (Buteo jamaicensis), extirpation of streaked horned larks the presence of noxious compounds to northern harrier (Circus cyaneus), (Rogers 2000, p. 42). predators, including birds and some American kestrel (Falco sparverius), Summary of Factor C invertebrate predators that avoid great-horned owl (Bubo virginianus), Taylor’s checkerspot butterfly larvae and rats and mice (Family Cricetidae) Disease—Based on our review of the (Kuussaari et al. 2004, p. 139). However, (Moore and Kotaich 2010, p. 36). best scientific and commercial data birds are known to attack and consume Streaked horned larks are ground- available, we conclude that disease is adult butterflies. Bowers et al. (1985, p. nesting birds and are vulnerable to a not a threat to the Taylor’s checkerspot 101) found avian predation to be a many other potential predators, butterfly or streaked horned lark now,

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61483

nor do we expect it to become a threat Data Centre’s Red List. The Red List provincial Wildlife Act protects in the future. includes ecological communities, virtually all vertebrate animals from Predation—We found only one study indigenous species, and indigenous direct harm, except as allowed by with evidence to indicate that predation subspecies that are extirpated, regulation (e.g., hunting or trapping). from avian predators may be a threat to endangered, or threatened in British Legal designation as endangered or the Taylor’s checkerspot butterfly. Columbia; placing taxa on the Red List threatened under the Wildlife Act While predation does occur on the flags them as being at risk and requiring increases the penalties for harming a Taylor’s checkerspot butterfly, it does investigation, but does not confer any species, and also enables the protection not appear to be occurring beyond protection (British Columbia Ministry of of habitat in a Critical Wildlife expected natural levels; therefore, we do Environment 2012, p. 1). Management Area (British Columbia not consider it to be a threat to the In 2003, the Taylor’s checkerspot Wildlife Act 1996, accessed online). The Taylor’s checkerspot butterfly now, nor butterfly, and in 2005, the streaked streaked horned lark is not listed under do we expect it to become a threat in the horned lark, were determined to be Canada’s provincial Wildlife Act as an future. endangered under the Canadian Species endangered or threatened species. Because the populations of streaked at Risk Act (SARA) (Environment To date, there is no finalized recovery horned larks are declining and small, Canada 2007, p. iii). SARA makes it an strategy for the Taylor’s checkerspot we find that effect of the threat of offense to kill, harm, harass, capture, or butterfly in Canada (COSEWIC 2011, p. predation is likely magnified and take an individual of a listed species 44). A majority (97 percent) of the resulting in a significant impact on the that is endangered or threatened; known populations observed in Canada subspecies. Therefore, based on our possess, collect, buy, sell, or trade an occur on private land on Denman review of the best scientific and individual of a listed species that is Island, which is not protected from commercial data available, we conclude extirpated, endangered, or threatened, development by individual landowners; that predation is a threat to the streaked or its part or derivative; and damage or approximately 1,173 ac (475 ha) of this horned lark now and will continue to be destroy the residence of one or more private land has been officially a threat into the future. individuals of a listed endangered or transferred to the government and will threatened species or of a listed become a Provincial Park or Ecological Factor D. The Inadequacy of Existing extirpated species if a recovery strategy Reserve (COSEWIC 2011, p. 45). A final Regulatory Mechanisms has recommended its reintroduction. recovery strategy for the streaked Under this factor, we examine For many of the species listed under horned lark was released in 2007 whether existing regulatory mechanisms SARA, the prohibitions on harm to (COSEWIC 2011, p. 40); the streaked are inadequate to address the threats to individuals and destruction of horned lark is essentially extirpated in the species discussed under the other residences are limited to Federal lands, Canada, and the recovery goal for this factors. Section 4(b)(1)(A) of the Act but this limitation is inapplicable to subspecies is to reestablish a breeding requires the Service to take into account migratory birds protected under the population of at least 10 breeding pairs ‘‘those efforts, if any, being made by any Migratory Birds Convention Act, at a minimum of 3 sites within its State or foreign nation, or any political including streaked horned lark (Statutes historical breeding range in Canada subdivision of a State or foreign nation, of Canada (S.C). ch. 29, sec. 34). Hence, (Environment Canada 2007, p. iv). to protect such species. . . .’’ In SARA protects streaked horned larks, Based on our evaluation, we have relation to Factor D under the Act, we where present, from harm and determined that SARA provides interpret this language to require the destruction of their residences, not only protections for both the Taylor’s Service to consider relevant Federal, on Federal lands, but also on provincial checkerspot butterfly and streaked State, and tribal laws, regulations, and and private lands, where most of the horned lark given their limited other such mechanisms that may remaining habitat for the species occurs. occurrences in British Columbia, and, minimize any of the threats we describe Moreover, SARA mandates additionally, the streaked horned lark is in threat analyses under the other four development and implementation of a afforded protections under the MBCA. factors, or otherwise enhance recovery strategy and action plans (S.C. U.S. Federal Laws and Regulations conservation of the species. We give ch. 29, secs. 37, 47). Invertebrate species strongest weight to statutes and their assessed by the Committee on the Status There are no Federal laws in the implementing regulations and to of Endangered Wildlife in Canada United States that specifically protect management direction that stems from (COSEWIC) as endangered will be the Taylor’s checkerspot butterfly. The those laws and regulations. An example protected by the British Columbia Migratory Bird Treaty Act (MBTA) (16 would be State governmental actions Wildlife Act and Wildlife Amendment U.S.C. 703 et seq.) is the only Federal enforced under a State statute or Act, once these regulations are finalized law in the United States currently constitution, or Federal action under (COSEWIC 2011, p. 44). providing specific protection for the statute. The horned lark (all subspecies) is streaked horned lark due to its status as The following section includes a also protected under Canada’s Federal a migratory bird. The MBTA prohibits discussion of Federal, State, or local Migratory Birds Convention Act, 1994 the following actions, unless permitted laws, regulations, or treaties that apply (MBCA) (S.C. ch. 22), which is their by Federal regulation: to the Taylor’s checkerspot butterfly or domestic legislation similar to the to ‘‘pursue, hunt, take, capture, kill, attempt streaked horned lark. It includes United States’ Migratory Bird Treaty Act to take, capture, or kill, possess, offer for sale, legislation for Federal land management of 1918 (MBTA; 16 U.S.C. 703 et seq.). sell, offer to barter, barter, offer to purchase, agencies and State and Federal The MBCA and its implementing purchase, deliver for shipment, ship, export, regulatory authorities affecting land use regulations prohibit the hunting of import, cause to be shipped, exported, or imported, deliver for transportation, or other relevant management. migratory nongame birds and the possession or sale of ‘‘migratory birds, transport or cause to be transported, carry or Canadian Laws and Regulations cause to be carried, or receive for shipment, their nests, or eggs’’ (S.C. ch. 22, secs. transportation, carriage, or export, any In British Columbia, the Taylor’s 5, 12). migratory bird, any part, nest, or egg of any checkerspot butterfly and streaked Although British Columbia has no such bird, or any product, whether or not horned lark are on the Conservation stand-alone endangered species act, the manufactured.’’

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61484 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

There are no provisions in the MBTA The Service has worked closely with enjoyment of future generations.’’ The that prevent habitat destruction unless the DOD to develop protection areas NPS management policies indicate that direct mortality or destruction of active within the primary habitat for the the Park Service will meet its nests occurs (for example, as was Taylor’s checkerspot butterfly on JBLM. obligations under the National Park described in Factor A, above, for dredge These include areas where no vehicles Service Organic Act and the Endangered spoil disposal in the breeding season), are permitted on occupied habitat, Species Act to both proactively conserve nor does the MBTA require any where vehicles will remain on roads listed species and prevent detrimental planning to recover declining species or only, and where foot traffic is allowed. effects on these species. This includes provide funding to protect individuals JBLM policies include Army working with the Service and or their habitats. Therefore, we conclude Regulation 420–5, which covers the undertaking active management that the MBTA does not address threats INRMP, and AR–200–1. This is an programs to inventory, monitor, restore, to the streaked horned lark from further agreement between each troop and DOD and maintain listed species habitats, population declines associated with management that actions taken by each among other actions. habitat loss or inappropriate soldier will comply with restrictions The National Forest Management Act management. placed on specific training areas, or (16 U.S.C. 1600 et seq.)) has required the The Sikes Act (16 U.S.C. 670) range lands. Within the INRMP, the U.S. Department of Agriculture’s authorizes the Secretary of Defense to wildlife branch of the DOD developed (USDA) Forest Service to incorporate develop cooperative plans with the updated endangered species standards and guidelines into land and Secretaries of Agriculture and the management plans (ESMPs) that provide resource management plans, including Interior for natural resources on public site-specific management and protection provisions to support and manage plant lands. The Sikes Act Improvement Act actions that are taken on military lands and animal communities for diversity of 1997 requires Department of Defense for the conservation of the Taylor’s and for the long-term, rangewide installations to prepare integrated checkerspot butterfly and streaked viability of native species (see 16 U.S.C. natural resources management plans horned lark. The ESMPs provide 1604(g)(3)(B)). The regulations at 36 (INRMPs) that provide for the assurances of available funding, and an CFR 219 provide a framework to guide conservation and rehabilitation of implementation schedule that the collaborative and science-based natural resources on military lands determines when certain activities will development, amendment, and revision consistent with the use of military occur and who will accomplish these of land management plans. This actions. ESMPs require regular updates framework is designed to promote installations to ensure the readiness of to account for dispersal of animals, or healthy, resilient, diverse, and the Armed Forces. INRMPs incorporate, for activities to enhance habitat for productive national forests and to the maximum extent practicable, animals that may have been translocated grasslands with a range of social, ecosystem management principles and to a new habitat patch. INRMPs also economic, and ecological benefits now provide the landscape necessary to have a monitoring component that and for future generations. In the face of sustain military land uses. While would require modifications, or changing environmental conditions and INRMPs are not technically regulatory adaptive management, to planning stressors, such as a changing climate, mechanisms because their actions when the result of that specific the regulations require plans to include implementation is subject to funding action may differ from the intent of the plan components to: (1) Maintain and availability, they can be an added planned action. Based on the military’s restore ecosystem and watershed health conservation tool in promoting the efforts, we conclude that although and resilience (ecological integrity); (2) recovery of endangered and threatened military actions may continue to harm protect key resources on the unit, species on military lands. individuals of the species, through the including water, air, and soil; and (3) On JBLM in Washington, several Sikes Act, the JBLM’s INRMP includes address water quality and riparian area policies and an INRMP are in place to provisions that will promote protection protection and restoration. provide conservation measures to and conservation practices to support The regulations at 36 CFR 219 contain grassland associated species that occupy the Taylor’s checkerspot butterfly and a strong implementation approach to training lands on the military base. streaked horned lark, and prevent provide for the diversity of plant and JBLM in partnership with local agencies further population declines associated animal communities and the persistence and nongovernmental organizations has with habitat loss or inappropriate of native species in the plan area. This provided funding to conserve these management on JBLM properties. approach requires that plans use a species through the acquisition of new However, even with the above complementary ecosystem and species- conservation properties and mitigating efforts implemented by the specific approach to maintaining the management actions intended to military, we conclude that the diversity of plant and animal improve the amount and distribution of regulatory mechanisms in place at JBLM communities and the persistence of habitat for these species. JBLM has also are not sufficient to ameliorate the native species in the plan area. The provided funding to reintroduce threats to the Taylor’s checkerspot intent is to provide the ecological declining species (e.g., the Taylor’s butterfly rangewide. conditions (habitat) necessary to keep checkerspot butterfly) into suitable The National Park Service Organic common native species common, habitat on and off military lands. In June Act of 1916, as amended (16 U.S.C. 1 et contribute to the recovery of endangered 2011, representatives from DOD seq.), states that the National Park and threatened species, conserve (Washington, DC, office) met with all Service (NPS) ‘‘shall promote and proposed and candidate species, and conservation partners to assess the regulate the use of the Federal areas maintain viable populations of each success of this program and make known as national parks, monuments, species of conservation concern within decisions as to future funding needs. and reservations . . . to conserve the the plan area. The regulations require Support from the Garrison Commander scenery and the national and historic that plans provide the ecological of JBLM and all partners resulted in an objects and the wild life therein and to conditions necessary to contribute to the increase in funding for habitat provide for the enjoyment of the same recovery of endangered and threatened management and acquisition projects for in such manner and by such means as species, and to conserve candidate and these species on JBLM. will leave them unimpaired for the proposed species. In addition, the

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61485

requirements for restoration and Finley, Ankeny, and Baskett Slough Federal listing. Unoccupied or ecological sustainability are intended to NWRs. The CCPs for the Willapa NWR unsurveyed habitat is not protected reduce the risk that species will become and all the units in the Willamette unless by County prairie ordinances or listed as endangered or threatened in Valley Complex contain habitat other similar rules or laws. the future. conservation measures to address The Taylor’s checkerspot butterfly On USDA Forest Service lands, threats such as habitat degradation and and streaked horned lark are Priority management for listed and candidate benefit streaked horned larks; measures Species under WDFW’s Priority Habitats species, as well as species of concern, include surveys, habitat enhancement, and Species Program (WDFW 2008, pp. follow Forest Service Sensitive Species and removal of invasive plants (USFWS 19, 80, 120). As Priority Species, the policy (Kerwin and Huff 2007, p. 6). For 2011a, p. 2–34; USFWS 2011b, pp. 2– Taylor’s checkerspot butterfly and the Forest Service, these policies require 47—2–48). The joint CCP for the Lewis streaked horned lark may benefit from the agency to maintain viable and Clark and Julia Butler Hansen some protection of their habitats under populations of all native and desired NWRs in the lower Columbia River environmental reviews of applications nonnative wildlife, fish, and plant states that streaked horned larks do not for county or municipal development species in habitats distributed occur on the refuges, although they do permits (Stinson 2005, pp. 46, 70). For throughout their geographic range on occur on suitable habitats near the the Taylor’s checkerspot butterfly, National Forest System lands. refuge parcels (USFWS 2010, p. 4–37). WDFW has developed a recommended Management ‘‘must not result in a loss The joint CCP identifies actions to approach to protect the species on of species viability or create significant benefit streaked horned larks on off- private property. Their approach is non- trends toward Federal listing’’ for any refuge lands (but that are within the regulatory and encourages landowners identified Sensitive Species (Kerwin refuge acquisition boundary), including to engage in cooperative efforts to and Huff 2007, p. 6). working with the Corps to manage the protect and conserve Taylor’s The Olympic National Forest is in the dredge spoil deposition program to checkerspot butterfly habitat. However, process of developing site management benefit larks (USFWS 2010, pp. 2–29— State regulatory mechanisms appear to plans for each location where the 2–30). be insufficient to protect these species Taylor’s checkerspot butterfly is known CCPs detail program planning levels in areas where permits are not required to occur. This planning document will that are sometimes substantially above or requested. We therefore conclude that call for restoration actions to removed current budget allocations, and as such, Washington State regulatory encroaching conifers and shrubs, are primarily used for strategic planning mechanisms are inadequate to protect nonnative plant removal and control, and priority setting; inclusion of a the Taylor’s checkerspot butterfly and road management, and possibly planting project in a CCP does not guarantee that streaked horned lark and do not protect or seeding of larval host plants (Holtrop the project will be implemented. The these species from further population 2010, p. 7). Because this planning CCPs at the Willapa and Willamette declines associated with habitat loss or process is not finished, however, we do Valley NWRs specifically provide for inappropriate management. not rely on it in our assessment of the the conservation of the streaked horned Under the Washington State Forest adequacy of Forest Service regulatory lark, and implementation of the Practices Act (RCW 76.09, accessed mechanisms. While a Federal candidate conservation measures in the refuge online 2012), WDNR must approve species, and following implementation CCPs could benefit as many as 10 certain activities related to growing, of this final rule (see DATES), as a nesting pairs of larks at Willapa NWR harvesting, or processing timber on all federally listed species, the Taylor’s (USFWS 2011a, pp. 4–44—4–45) and local government-owned, State-owned, checkerspot butterfly receives support likely more than 50 pairs at the three and privately owned forest lands. from the Forest Service Interagency Willamette Valley NWRs (Moore 2009, WDNR’s mission is to protect public Special Status and Sensitive Species pp. 5–9). These actions may improve the resources while maintaining a viable Program (Huff, 2011, pers. comm.). status of streaked horned larks on the timber industry. The primary goal of the Based on our review, we conclude that refuges. Therefore based on our review, forest practices rules is to achieve the Taylor’s checkerspot butterfly and we conclude that streaked horned lark protection of water quality, fish and streaked horned lark are protected from is protected from further population wildlife habitat, and capital further population declines associated declines associated with habitat loss or improvements while ensuring that with habitat loss or incompatible incompatible management on NWR harvested areas are reforested. Presently, management on Forest Service lands. lands. the Washington State forest practices The National Wildlife Refuge System rules do not specifically protect Taylor’s Improvement Act of 1997 (16 U.S.C. State Laws and Regulations checkerspot butterflies or streaked 668dd et seq.) establishes the protection Although there is no State endangered horned larks; only the Taylor’s of biodiversity as the primary purpose species act in Washington, the checkerspot butterfly actually occurs of the National Wildlife Refuge (NWR) Washington Fish and Wildlife within areas where forest practices rules system. This has led to various Commission has authority to list species might apply. Landowners have the management actions to benefit the (Revised Code of Washington (RCW) option to develop a management plan federally listed species including 77.12.020). State-listed species are for the species if it resides on their development of a comprehensive protected from direct take, but their property, or if landowners choose to not conservation plans (CCP) on NWRs. habitat is not protected (RCW develop a management plan for the CCPs typically set goals and list needed 77.15.120). The Taylor’s checkerspot species with WDFW, their forest actions to protect and enhance butterfly and streaked horned lark are practices application will be populations of key wildlife species on listed by the WDFW and are listed as conditioned to protect this public refuge lands. The Taylor’s checkerspot critically imperiled (S1) by the resource. If this approach does not butterfly is not known to occur on any Washington Natural Heritage Program. provide the required protections for the NWR. However, streaked horned larks State listings generally consider only the Taylor’s checkerspot butterfly, then occur on the Willapa NWR on the status of the species within the State’s WDFW and WDNR may request the Washington coast and in the Willamette borders, and do not depend upon the Forest Practice Board to initiate Valley Complex on the William L. same considerations as a potential rulemaking, and possibly, an emergency

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61486 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

rule would be developed (Whipple State defines five broad categories of and species. The HMPs typically 2008, pers. comm.). critical areas, including: (1) Wetlands; include onsite restoration and The WDNR also manages (2) areas with a critical recharging effect enhancement activities. Mitigation for approximately 66,000 ac (26,710 ha) of on aquifers used for potable water; (3) prairie impacts may also be required, lands as Natural Area Preserves (NAP). fish and wildlife habitat conservation on-site or off (Thurston County 2012, p. NAPs provide the highest level of areas; (4) frequently flooded areas; and 2). protection for excellent examples of (5) geologically hazardous areas. In Clallam, Pierce, and Mason unique or typical land features in Quercus garryana (Oregon white oak) Counties, specific critical area Washington State. Based on their habitat and prairie both predominantly ordinances have not been identified for proactive management, these NAPs fall into the category of fish and wildlife the Taylor’s checkerspot butterfly or provide protection for the Taylor’s habitat conservation areas, although due streaked horned lark. However, prairie checkerspot butterfly on WDNR lands. to the coarse nature of prairie soils and habitats and species garner some Oregon has a State Endangered the presence of wet prairie habitat protection under Fish (or Aquatic) and Species Act (ESA), which was last across the landscape, critical area Wildlife Habitat Conservation Areas updated in 1998. The streaked horned protections for crucial aquifer recharge (Mason County 2009, p. 64; Clallam lark is not State-listed, and the State areas and wetlands may also address County 2012, Part Three, entire; Pierce does not protect invertebrates like the prairie habitat protection. County 2012, pp. 18E.40–1–3). All Taylor’s checkerspot butterfly under the Within counties, the County Areas developments within these areas are State ESA (Oregon ESA 2004, p. 3). The Ordinance (CAO) applies to all required to: Preserve and protect habitat list of endangered and threatened unincorporated areas, but incorporated adequate to support viable populations species tracked by the Oregon cities are required to independently of native wildlife (Clallam County 2012, Department of Fish and Wildlife does address critical areas within their urban Part Three, entire); achieve ‘‘no net not include insects, and does not growth area. The incorporated cities loss’’ of species and habitat where, if classify the streaked horned lark with within the range of the Taylor’s altered, the action may reduce the any conservation status. When an checkerspot butterfly and streaked likelihood that these species survive Oregon ‘‘native wildlife’’ species is horned lark are: (1) Shelton (Mason and reproduce over the long term federally listed as endangered or County); and (2) Olympia, Lacey, (Pierce County 2012, p. 18E.40–1); and threatened, it is not automatically Tumwater, Tenino, and Yelm (Thurston support viable populations and protect included as a State-listed species. The County), all in the State of Washington. habitat for Federal or State listed fish or Oregon Fish and Wildlife Commission In 2009, the Thurston County Board wildlife (Mason County 2009, p. 63). may review the available information of Commissioners adopted Interim While these regulations are likely and make a finding regarding State Ordinance No. 14260, which adequate for the management of species listing; when a species is State-listed in strengthened protections for prairie and with stable populations and large Oregon, it receives some protection and Oregon white oak habitat in ranges, the loss of individual animals management, primarily on State-owned consideration of the best available can have a cumulative impact or managed lands (OAR 635–100–0100 science. The County worked with the deleterious to species facing a wide to OAR 635–100–0180; ORS 496.171 to Service and WDFW to include an up-to- range of other threats and that already ORS 496.192). date definition of prairie habitat and to have decreased numbers of individuals The Oregon Forest Practices Act (ORS delineate soils where prairie habitat is or populations, such as the Taylor’s 527.610 to 527.992 and OAR Chapter likely to occur. In July 2010, the checkerspot butterfly or streaked horned 629, Divisions 600 to 665) lists ordinance was renewed and amended, lark. protection measures specific to private including revisions to the prairie soils County-level CAOs do not apply to and State-owned forested lands in list and changes to administrative incorporated cities within county Oregon. These measures include language. Since July 2010, the interim boundaries; thus, the incorporated cities specific rules for resource protection, prairie ordinance has been renewed on of Olympia, Lacey, Tumwater, Yelm, including endangered and threatened a 6-month basis and is currently in and Tenino that overlap the range of the species; riparian areas along lakes, place. Several prairie species, including Taylor’s checkerspot butterfly and streams, springs, and seeps; and the Taylor’s checkerspot butterfly and streaked horned lark do not provide the wetlands. Compliance with the forest streaked horned lark, were also same specificity of protection for these practice rules does not substitute for or included as important species subject to taxa as the Thurston County CAO. ensure compliance with the Federal critical areas regulation (Thurston Below, we address the relevant city Endangered Species Act of 1973, as County 2012, p. 1). ordinances that overlap these species’ amended (Act). Landowners and County staff use the known presence ranges. We conclude below with a operators are advised that Federal law or historical locations of the Taylor’s summary of whether we deem these prohibits a person from taking certain checkerspot or streaked horned lark to existing city ordinances inadequate for endangered or threatened species that determine whether these species may be the conservation of the Taylor’s are protected under the Act (OAR 629– present at a site and impacted by the checkerspot and streaked horned lark. 605–0105). Neither the Taylor’s land use activity. After a field review, if The City of Olympia—The City of checkerspot butterfly nor the streaked one of these species is found on the site, Olympia’s municipal code states that horned lark are forest-dependent the County requires a habitat ‘‘The Department [City] may restrict the species; therefore neither species is management plan (HMP) to be uses and activities of a development likely to be directly affected by the developed, typically by a consultant for proposal which lie within one thousand Oregon Forest Practices Act. the landowner, in accordance with feet of important habitat or species WDFW’s management location,’’ defined by Washington Local Laws and Regulations recommendations. This HMP specifies State’s Priority Habitat and Species The Washington State Growth how site development should occur, (PHS) Management Recommendations Management Act of 1990 (GMA) and assists developers in achieving of 1991, as amended’’ (Olympia requires all jurisdictions in the State to compliance with CAO requirements to Municipal Code (OMC) 18.32.315 B). designate and protect critical areas. The minimize impact to the prairie habitat When development is proposed within

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61487

1,000 feet of habitat of a species 14.08.010 E4f) and mandates that ‘‘all Summary of Local Laws and designated as important by Washington actions and developments shall be Regulations State, the Olympia CAO requires the designed and constructed to avoid, Each city’s CAO has been crafted to preparation of a formal ‘‘Important minimize, and restore all adverse preserve the maximum amount of Habitats and Species Management impacts.’’ Further, it states that ‘‘no biodiversity while at the same time Plan,’’ unless waived by the WDFW activity or use shall be allowed that encouraging high-density development (OMC 18.32.320). results in a net loss of the functions or within their respective urban growth The City of Lacey—The City of Lacey values of critical areas’’ (YMC 14.08.010 areas. Each city requires that potential CAO includes in its definition of critical G) and ‘‘no development shall be fish and wildlife habitat be surveyed by area any area identified as habitat for a allowed within a habitat conservation qualified professional habitat biologists Federal or State endangered, threatened, area or buffer which state or federally as development is proposed. A habitat or sensitive species or State-listed endangered, threatened, or sensitive conservation area (HCA) is determined priority habitat and calls these ‘‘habitat species have a primary association, according to the WDFW priority habitat conservation areas’’ (HCAs) (Lacey except that which is provided for by a and species list. If an HCA is identified Municipal Code (LMC) 14.33.060). management plan established by WDFW at a site, the development of the parcel These areas are defined through or applicable state or federal agency’’ is then subject to the CAO regulations. individual contract with qualified (YMC 14.080.140 D1a). The City of Mitigation required by each city’s CAO professional biologists on a site-by-site Yelm municipal code states that by prioritizes reconsideration of the basis as development is proposed. The ‘‘limiting development and alteration of proposed development action in order code further states that ‘‘No critical areas’’ it will ‘‘maintain healthy, to avoid the impact to the HCA. development shall be allowed within a functioning ecosystems through the For the Taylor’s checkerspot butterfly habitat conservation area or buffer [for protection of unique, fragile, and and streaked horned lark, only known a habitat conservation area] with which valuable elements of the environment, or historical locations are considered state or federally endangered, and . . . conserve the biodiversity of prior to applying the CAOs. There are threatened, or sensitive species have a plant and animal species’’ (17.08.010 currently no WDFW priority habitat and primary association’’ (LMC 14.33.117). A4b) . The City of Tumwater—The City of The City of Tenino—The City of species recommendations for these Tumwater CAO outlines protections for Tenino municipal code gives species, and no surveys are completed ‘‘habitat critical areas’’ and for ‘‘habitats development regulations for critical for these species in suitable habitats that and species of local importance.’’ areas and natural resource lands that may be affected by development or site Tumwater’s habitat critical areas are include fish and wildlife habitat areas disturbance. established on a case-by-case basis by a (Tenino Municipal Code (TMC) Connectivity of populations, ‘‘qualified professional’’ as development 18D.10.030 A) and further ‘‘protects abundance of resources (prey species or is proposed, and the habitat critical unique, fragile, and valuable elements of food plants), and undisturbed habitat areas are required to be consistent with the environment, including critical fish are three primary factors affecting plant the ‘‘recommendations issued by the and wildlife habitat’’ (TMC 18D.10.030 and animal populations. The piecemeal Washington State Department of Fish D). The City of Tenino references the pattern that development unavoidably and Wildlife’’ (Tumwater Municipal DNR critical areas fish and wildlife exhibits is difficult to reconcile with the Code (TMC) 16.32.60). Species of local habitat areas, stream typing map and the needs of the Taylor’s checkerspot importance are defined as locally WDFW PHS program and PHS maps as butterfly and streaked horned lark significant species that are not State- sources to identify fish and wildlife within a given urban growth area. listed as endangered, threatened, or habitat (TMC 18D.10.140 E1, 2). The Further, previously common species sensitive, but live in Tumwater and are City also defines critical fish and may become uncommon due to of special importance to the citizens of wildlife species habitat areas as those disruption by development, and the Tumwater for cultural or historical areas known to support or have, ‘‘a fragmentary protection of small pockets reasons, or if the city is a critically primary association with State or of habitat is unlikely to prevent significant portion of its range (TMC Federally listed endangered, threatened, extirpation of some species without 16.32.055 A). Tumwater is considered a or sensitive species of fish or wildlife intensive species management, which is ‘‘critically significant portion of a (specified in 50 CFR 17.11, 50 CFR beyond the scope of these individual species’ range if the species’ population 17.12, WAC 232–12–011) and which, if CAOs. The Taylor’s checkerspot would be divided into nonviable altered, may reduce the likelihood that butterfly and streaked horned lark have populations if it is eliminated from the species will survive and reproduce been affected by habitat loss through Tumwater’’ (TMC 16.32.055 A2). over the long term’’ (TMC 18D.40.020A, development and conversion. Protective Species of local importance are further B). measures undertaken during defined as State monitor or candidate The City of Shelton—The CAO for the development of lands may provide species where Tumwater is a significant city of Shelton (Mason County) specifies benefits for these species; however, portion of its range such that a compliance with the PHS through based on our review of the Washington significant reduction or elimination of designation of habitat conservation County, State, and city regulatory the species from Tumwater would result areas (HCAs) (Shelton Municipal Code mechanisms, we conclude that these in changing the status of the species to (SMC) 21.64.300 B1), indicating that measures are currently inadequate to that of State endangered, threatened, or where HCAs are designated, protect the Taylor’s checkerspot sensitive (TMC 16.32.055 A3). development will be curtailed (SMC butterfly and streaked horned lark from The City of Yelm—The municipal 21.64.010 B), except at the discretion of further population declines associated code of Yelm states that it will, the director (city), who may allow with habitat loss, inappropriate ‘‘regulate all uses, activities, and single-family development at such sites management, and loss of connectivity. developments within, adjacent to, or without a critical areas assessment Because neither the Taylor’s likely to affect one or more critical report if development is not believed to checkerspot nor the streaked horned areas, consistent with the best available directly disturb the components of the lark has a widespread distribution, we science’’ (Yelm Municipal Code/(YMC) HCA (SMC 21.64.360 B). are unable to invoke the WDFW priority

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61488 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

habitat and species recommendations as review of Oregon State regulatory Based upon our review of the best land is developed and habitat lost in mechanisms, we conclude that they are commercial and scientific data areas not currently occupied by either inadequate to protect the Taylor’s available, we conclude that the existing subspecies, and therefore we conclude checkerspot butterfly or streaked horned regulatory mechanisms are inadequate these regulatory mechanisms are lark from further population declines to reduce the threats to the Taylor’s inadequate for the purpose of associated with habitat loss or checkerspot butterfly and streaked conserving these subspecies. inappropriate management, because the horned lark now or in the future. In Oregon, the Land Conservation and program recommends, but does not Development Commission in 1974 require, that local governments make Factor E. Other Natural or Manmade adopted ‘‘Goal 5,’’ a broad Statewide planning decisions that result in Factors Affecting Its Continued planning goal that covers more than a protection of sensitive resources. Existence dozen resources, including wildlife Summary of Factor D Low Genetic Diversity, Small or Isolated habitats and natural areas. Goal 5 and Populations, and Low Reproductive related Oregon administrative rules In summary, the existing regulatory Success (Chapter 660, Divisions 16 and 23) mechanisms described above are not Most species’ populations fluctuate describe how cities and counties are to sufficient to significantly reduce or naturally, responding to various factors plan and zone land to conserve remove the existing threats to the such as weather events, disease, and resources listed in the goal. Taylor’s checkerspot butterfly and Goal 5 and its rules establish a five- streaked horned lark. The Canadian predation. Purvis (2000, p. 3), however, step planning process for Oregon’s cities recovery strategy is a positive forward suggested that these factors have less and counties: (1) Inventory local step for streaked horned lark, although, impact on a species with a wide and occurrences of resources listed in Goal as the species is thought to be extirpated continuous distribution. Populations 5 and decide which ones are important; from Canada, it is unlikely to result in that are small, fragmented, or isolated (2) identify potential land uses on or a change in the streaked horned lark’s by habitat loss or modification of near each resource site and any conflicts downward trend across its range. Lack naturally patchy habitat, and other that might result; (3) analyze economic, of essential habitat protection under human-related factors, are more social, environmental, and energy State laws leaves these species at vulnerable to extirpation by natural, consequences of such conflicts; (4) continued risk of habitat loss and randomly occurring events, to decide whether the resource should be degradation in Washington and Oregon. cumulative effects, and to genetic effects fully or partially protected, and justify National Wildlife Refuges provide that plague small populations, the decision; and (5) adopt measures important protections for streaked collectively known as small population such as zoning to put that policy into horned lark habitat in Washington and effects. These effects can include genetic effect. This five-step Goal 5 process was Oregon. drift (loss of recessive alleles), founder established by rules adopted in 1982, On JBLM, regulations and recently effects (over time, an increasing and revised in 1996. The revisions developed ‘‘training range standard percentage of the population inheriting tailored the process to the individual operating procedures’’ applying to the a narrow range of traits), and genetic resources covered by Goal 5. Taylor’s checkerspot butterfly and bottlenecks leading to increasingly Local governments identify streaked horned lark are covered by the lower genetic diversity, with consequent conflicting uses that exist, or could current INRMP and ESMP. We find that negative effects on evolutionary occur, with regard to significant Goal 5 the military training, as it currently potential. resource sites. A local government may occurs, causes direct mortality of Taylor’s Checkerspot Butterfly— determine that one or more significant individuals and impacts habitat for the Although the genetic diversity and Goal 5 resource sites are conflicting uses Taylor’s checkerspot butterfly and population structure of the Taylor’s with another significant resource site. streaked horned lark in all areas where checkerspot butterfly is unknown, a loss Local governments analyze the training and the subspecies overlap. We of genetic diversity may have occurred consequences that could result from must therefore conclude that military as a result of geographic isolation and decisions to allow, limit, or prohibit a training, despite the policies and fragmentation of habitat patches across conflicting use. The local government regulations in place on JBLM, will the distribution of the existing determines the level of protection for continue to result in mortality events populations. Dispersal of individuals each significant site. Local governments and loss and destruction of occupied directly affects the genetic composition determine whether to allow, limit, or Taylor’s checkerspot butterfly habitat of populations and possibly the prohibit identified conflicting uses for patches; thus our conclusion is that abundance of individuals in a significant resource sites. A local existing regulatory mechanisms are population (Hellmann et al. 2004, p. government may decide that the inadequate on JBLM lands. 59). For other subspecies of Edith’s conflicting use should be allowed fully, The Washington CAOs and Oregon’s checkerspot and their closely related notwithstanding the possible impacts on planning process Goal 5 generally European relative Melitaea, small the resource site. provide conservation measures to populations led to a high rate of In summary, Goal 5 is a required minimize habitat removal and direct inbreeding (Boggs and Nieminen 2004, planning process that allows local effects to the the Taylor’s checkerspot p. 98). The Service is currently governments to make decisions about butterfly and streaked horned lark. partnering with WDFW to explore land use regulations and whether to However, habitat removal and questions of genetic relatedness in the protect the individual resources based degradation, direct loss of individuals, subpopulations of Taylor’s checkerspot upon potential conflicts involving increased fragmentation, decreased butterflies. Due to its small population economic, social, environmental, and connectivity, and the lack of consistent size and fragmented distribution, we energy consequences. It does not require regulatory mechanisms to address the conclude that these negative factors minimum levels of protections for threats associated with these effects are associated with small population size, natural resources, but does require not prohibited under these State as well as the potential historical loss of weighing the various impacts to processes, and adverse effects to these genetic diversity, may contribute to resources from land use. Based on our species continue to occur. further population declines for the

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61489

Taylor’s checkerspot butterfly. 10, 13; Camfield et al. 2011, p. 7). in the mean or variability of one or more Therefore, we consider small population Territory mapping at 4 sites on the measures of climate (e.g., temperature or size and the potential loss of genetic south Puget Sound found that the total precipitation) that persists for an diversity to be a threat to the Taylor’s number of breeding streaked horned extended period, typically decades or checkerspot butterfly. lark territories decreased from 77 longer, whether the change is due to Streaked Horned Lark—Genetic territories in 2004 to 42 territories in natural variability, human activity, or analysis has shown that streaked horned 2007—a decline of over 45 percent in 3 both (IPCC 2007a, p. 78). larks have suffered a loss of genetic years (Camfield et al. 2011, p. 8). The Scientific measurements spanning diversity due to a population bottleneck combination of low genetic variability, several decades demonstrate that (Drovetski et al. 2005, p. 881), the effect small and rapidly declining nesting changes in climate are occurring, and of which may be exacerbated by populations, high breeding site fidelity, that the rate of change has been faster continued small total population size. In and no observed migration into the since the 1950s. Examples include general, decreased genetic diversity has Puget lowlands populations suggests warming of the global climate system, been linked to increased chances of that the south Puget Sound population and substantial increases in inbreeding depression, reduced disease could become extirpated in the near precipitation in some regions of the resistance, and reduced adaptability to future (Pearson et al. 2008, pp. 1, 14, world and decreases in other regions. environmental change, leading to 15). (For these and other examples, see IPCC reduced reproductive success (Keller In 2011, a project was initiated to 2007a, p. 30; and IPCC 2007d, pp. 35– and Waller 2002, p. 235). increase genetic diversity in the south 54, 82–85). Results of scientific analyses Recent studies in Washington have Puget Sound streaked horned lark presented by the IPCC show that most found that streaked horned larks have population. Twelve eggs (four three-egg of the observed increase in global lower fecundity and nest success than clutches) were collected from streaked average temperature since the mid-20th other northwestern horned lark horned lark nests in the southern century cannot be explained by natural subspecies (Camfield et al. 2010, p. Willamette Valley and were placed in variability in climate, and is ‘‘very 277). In a study on the south Puget nests at the 13th Division Prairie site at likely’’ (defined by the IPCC as 90 Sound, all measures of reproductive JBLM (Wolf 2011, p. 9). At least five percent or higher probability) due to the success were lower for streaked horned young successfully fledged at the observed increase in greenhouse gas larks than for other ground-nesting birds receiving site; if even one of these birds (GHG) concentrations in the atmosphere at the same prairie sites (Anderson returns and successfully breeds in as a result of human activities, 2010, p. 15). Streaked horned lark’s egg future years, it will likely increase particularly carbon dioxide emissions hatching rate at these sites is extremely genetic diversity in the receiving from use of fossil fuels (IPCC 2007a, pp. low (i.e., 44 percent at 13th Division population, resulting in improved 5–6 and figures SPM.3 and SPM.4; IPCC Prairie) (Anderson 2010, p. 18). fitness and reduced extinction risk for 2007d, pp. 21–35). Further confirmation Comparisons with savannah sparrows the south Puget Sound larks (Wolf 2011, of the role of GHGs comes from analyses (Passerculus sandwichensis), a bird p. 9). In 2012, one fledgling that by Huber and Knutti (2011, p. 4), who with similar habitat requirements that originated from an Oregon translocated concluded it is extremely likely that nests on the same prairies, found that clutch in 2011 survived its first winter, approximately 75 percent of global streaked horned lark fecundity was 70 and returned to 13th Division Prairie; it warming since 1950 has been caused by percent lower (Anderson 2010, p. 18). If did not breed successfully, but the human activities. streaked horned lark’s very low return indicates that the project is likely Scientists use a variety of climate reproductive success was caused by to meet its objective to increase the models, which include consideration of poor habitat quality, other ground- genetic diversity of the streaked horned natural processes and variability, as nesting birds at the study sites would be larks that breed in the south Puget well as various scenarios of potential expected to show similarly low nest Sound (Wolf 2012, p. 9). Based on our levels and timing of GHG emissions, to success rates; that other bird species consideration of these factors, we evaluate the causes of changes already have much higher nest success in the conclude that the loss of genetic observed and to project future changes same habitat suggests that inbreeding diversity, the current number of small in temperature and other climate depression may be playing a role in the and isolated populations (particularly in conditions (e.g., IPCC 2007c, entire; decline of streaked horned larks in the Washington State), and the subspecies’ Ganguly et al. 2009, pp. 11555, 15558; south Puget Sound (Anderson 2010, p. low reproductive success are likely to Prinn et al. 2011, pp. 527, 529). All 27). Other factors consistent with combine to result in continued combinations of models and emissions hypothesized inbreeding depression in population declines for the streaked scenarios yield very similar projections the south Puget Sound population horned lark, and thus pose a threat to of increases in the most common include two cases of observed mother- the subspecies. measure of climate change, average son pairings (Pearson and Stinson 2011, global surface temperature (commonly p. 1), and no observations of Climate Change known as global warming), until about immigration from other sites into the Our analyses under the Act include 2030. Although projections of the extent Puget lowland breeding sites (Pearson et consideration of ongoing and projected and rate of warming differ after about al. 2008, p. 15). changes in climate. The terms ‘‘climate’’ 2030, the overall trajectory of all the Estimates of population growth rate and ‘‘climate change’’ are defined by the projections is one of increased global (l) that include vital rates from all of the Intergovernmental Panel on Climate warming through the end of this nesting areas in Washington (south Change (IPCC). The term ‘‘climate’’ century, even for the projections based Puget Sound, Washington Coast, and refers to the mean and variability of on scenarios that assume that GHG one lower Columbia River island) different types of weather conditions emissions will stabilize or decline. indicate that streaked horned larks in over time, with 30 years being a typical Thus, there is strong scientific support Washington are declining by 40 percent period for such measurements, although for projections that warming will per year, apparently due to a shorter or longer periods also may be continue through the 21st century, and combination of low survival and used (IPCC 2007a, p. 78). The term that the scope and rate of change will be fecundity rates (Pearson et al. 2008, pp. ‘‘climate change’’ thus refers to a change influenced substantially by the extent of

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61490 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

GHG emissions (IPCC 2007a, pp. 44–45; because such projections provide higher region projection predicts an increase an IPCC 2007c, pp. 760–764 and 797–811; resolution information that is more average of 4.5 °F (range = 2.1 °F to 7.1 Ganguly et al. 2009, pp. 15555–15558; relevant to spatial scales used for °F) (average of 2.5 °C with a range of 1.2 Prinn et al. 2011, pp. 527, 529). (See analyses of a given species (see Glick et °C to 3.9 °C) and the southern end to IPCC 2007b, p. 8, for a summary of other al. 2011, pp. 58–61, for a discussion of increase by 4.5 °F (range = 2.2 °F to 7.1 global projections of climate-related downscaling). With regard to our °F) (average of 2.5 °C with a range of 1.2 changes, such as frequency of heat analysis for the Taylor’s checkerspot °C to 3.9 °C). Worldwide, the IPCC states waves and changes in precipitation. butterfly and streaked horned lark, it is very likely that extreme high Also see IPCC 2011(entire) for a downscaled projections are available. temperatures, heat waves, and heavy summary of observations and The ranges of the Taylor’s checkerspot precipitation events will increase in projections of extreme climate events.) butterfly and streaked horned lark frequency (IPCC 2007c, p. 783). Various changes in climate may have extend from the southern edge of the Taylor’s Checkerspot Butterfly— direct or indirect effects on species. Georgia Basin, Canada, down through Because the Taylor’s checkerspot These effects may be positive, neutral, the Puget Sound trough in Washington butterfly occupies a relatively small area or negative, and they may change over State, and south to the Willamette of specialized habitat, it may be time, depending on the species and Valley, Oregon. Downscaled climate vulnerable to climatic changes that other relevant considerations, such as change projections for this ecoregion could decrease suitable habitat or alter interactions of climate with other predict consistently increasing annual food plant seasonal growth patterns variables (e.g., habitat fragmentation) mean temperatures from 2012 to 2095, (phenology). However, while it appears (IPCC 2007e, pp. 214–246). Identifying using the IPCC’s medium (A1B) reasonable to assume that the Taylor’s likely effects often involves aspects of emissions scenario (IPCC 2000, p. 245). checkerspot butterfly may be affected, as climate change vulnerability analysis. Using the General Circulation Model detailed below, we lack sufficient Vulnerability refers to the degree to (GCM) that most accurately predicts certainty to know specifically how which a species (or system) is precipitation for the Pacific Northwest, climate change will affect the Taylor’s susceptible to, and unable to cope with, the Third Generation Coupled Global checkerspot butterfly. adverse effects of climate change, Climate Model (CGCM3.1) under the The relationship between climate including climate variability and medium emissions scenario (A1B), change and survival for the Euphydryas extremes. Vulnerability is a function of annual mean temperature is predicted to editha complex is driven more by the the type, scope, and rate of climate increase approximately 1.8 °Fahrenheit indirect effects of the interaction change and variation to which a species (F) (1 °Celsius (C)) by the year 2020, 3.6 between seasonal growth patterns of is exposed, its sensitivity, and its °F (2 °C) by 2050, and 5.4 °F (3 °C) by host plants and the life cycle of the adaptive capacity (IPCC 2007a, p. 89; 2090 (Climatewizardcustom 2012). This checkerspot butterfly than by the direct see also Glick et al. 2011, pp. 19–22). analysis was restricted to the ecoregion effects of temperature and precipitation There is no single method for encompassing the overlapping range of (Guppy and Fischer 2001, p. 11; conducting such analyses that applies to the species of interest and is well Parmesan 2007, p. 1868; Singer and all situations (Glick et al. 2011, p. 3). We supported by analyses focused only on Parmesan 2010, p. 3170). use our expert judgment and the Pacific Northwest by Mote and Predicting seasonal growth patterns of appropriate analytical approaches to Salathe´ in their 2010 publication, butterfly host plants is complicated, weigh relevant information, including Future Climate in the Pacific Northwest because these patterns are likely more uncertainty, in our consideration of (Mote and Salathe´ 2010, entire). sensitive to moisture than temperature various aspects of climate change. Employing the same GCM and medium (Cushman et al 1992, pp. 197–198; Bale As is the case with all stressors that emissions scenario, downscaled model et al. 2002, p. 11), which is predicted to we assess, even if we conclude that a runs for precipitation in the ecoregion be highly variable and uncertain in the species is currently affected or is likely project a small (less than 5 percent) Pacific Northwest (Mote and Salathe´ to be affected in a negative way by one increase in mean annual precipitation 2010, p. 31). Climate models for the or more climate-related impacts, it does over approximately the next 80 years. Georgia Basin—Puget Sound Trough— not necessarily follow that the species Most months are projected to show an Willamette Valley Ecoregion meets the definition of an ‘‘endangered increase in mean annual precipitation. consistently predict a deviation from the species’’ or a ‘‘threatened species’’ May through August are projected to historical monthly average under the Act. If a species is listed as show a decrease in mean annual precipitation, with the months of endangered or threatened, knowledge precipitation, which corresponds with January through April projected to show regarding the vulnerability of the the reproductive season for both species an increase in precipitation across the species to, and known or anticipated of interest in this final rule region, while June through September impacts from, climate-associated (Climatewizardcustom 2012). are predicted to be much drier than the changes in environmental conditions The potential impacts of a changing historical average (Climatewizard 2012). can be used to help devise appropriate global climate to the Taylor’s During the active season of pre- strategies for its recovery. checkerspot butterfly and streaked diapause larvae (early spring), the Global climate projections are horned lark are presently unclear. Taylor’s checkerspot butterfly feeds informative, and, in some cases, the Projections localized to the Georgia primarily on plants of the family only or the best scientific information Basin—Puget Sound Trough— Scrophulariaceae (snapdragon family, available for us to use. However, Willamette Valley Ecoregion suggest including species of Castilleja and projected changes in climate and related that temperatures are likely to increase Triphysaria) and Plantaginaceae impacts can vary substantially across approximately 5 °F (2.8 °C) at the north (plantain family) (Stinson 2005, p. 88). and within different regions of the end of the region by the year 2080, Available information suggests that if world (e.g., IPCC 2007a, pp. 8–12). based on an average of greenhouse gas climate change disrupts seasonal growth Therefore, we use ‘‘downscaled’’ emission scenarios B1, A1B, and A2 and patterns of food plants, it is conceivable projections when they are available and all Global Circulation Models employed that an adult Taylor’s checkerspot have been developed through by Climatewizard (range = 2.6 °F to 7.6 butterfly may be able to use alternative appropriate scientific procedures, °F; 1.4 °C to 4.2 °C). Similarly, the mid food plants that occur within its range

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61491

(Singer and Wee 2005, pp. 353–355; risks of a given impact are difficult to These negative impacts may be offset by Singer et al. 1992, pp. 17–18). The larval quantify (Schneider and Kuntz-Duriseti other, potentially positive effects and stage of the Taylor’s checkerspot 2002, p. 54; Congressional Budget Office continued management of occupied butterfly is more limited in terms of 2005, entire; Halsnaes et al. 2007, p. habitats. On the ocean beaches, an potential host plant species. 129). The interplay between host plant increase in the frequency of winter Nevertheless, we have no information distribution, larval and adult butterfly storm surges may improve upshore indicating that any of these changes dispersal, and female choice of where to nesting habitat for larks by disturbing or (e.g., in availability of food plants) is lay eggs will ultimately determine the killing encroaching vegetation. Many likely to occur in the near future. population response to climate change islands used for nesting in the Columbia It is likely that the overlap of seasonal (Singer and Parmesan 2010, p. 3164). River are likely to continue receiving growth patterns between these primary However, determining the long-term dredge spoil deposits, perpetuating the larval host plants and the Taylor’s responses to climate change from even conditions of early primary succession checkerspot butterfly will display some well-studied butterflies in the genus that streaked horned larks seek for level of stochasticity due to climatic Euphydryas is difficult, given their nesting. Primary management on most shifts in precipitation and increased ability to switch to alternative larval of the currently occupied breeding sites frequency of extreme weather events. food plants in some instances (Singer on the mainland of Washington and For the Edith’s checkerspot (Euphydryas and Thomas 1996, pp. S33–34; Oregon is for agricultural, industrial, or editha), Parmesan (2007, p. 1869) Hellmann 2002, p. 933; Singer et al. military uses. Such management attracts reported that a lifecycle mismatch can 1992, pp. 17–18). Attempts to analyze streaked horned larks through the cause a shortening of the time window the interplay between climate and host reduction of standing vegetation; thus available for larval feeding, causing the plant growth patterns using predictive conversion to unsuitable habitat due to death of those individuals unable to models or general State-wide shifts in climate is less likely in these complete their larval development assessments and to relate these to the areas. As a result, we have not identified within the shortened period, citing a Taylor’s checkerspot butterfly are nor are we aware of any data on an study by Singer (1972, p. 75). In that equally complicated (Murphy and Weiss appropriate scale to evaluate habitat or study, Singer documented routine 1992, p. 8). Despite the potential for populations trends for the streaked mortality of greater than 98 percent in future climate change in Western horned lark or to make predictions the field due to phenological Washington, as discussed above, we about future trends and whether the mismatches between larval have not identified, nor are we aware of subspecies will be significantly development and senescence of their any data on, an appropriate scale to impacted. Habitat changes to streaked annual host plant Plantago erecta evaluate habitat or population trends for horned lark habitat due to the effects of (California plantain). When mismatches the Taylor’s checkerspot butterfly or to climate change may provide some such as these form the ‘starting point,’ make predictions about future trends benefit to the subspecies and as such is insects may be highly vulnerable to and whether the subspecies will be not currently considered a threat. small changes in synchrony with their significantly impacted. Based on these Stochastic Weather Events hosts (Parmesan 2007, p. 1869). considerations, at this time, we do not Predicting future population consider the effects of climate change to Stochasticity of extreme weather dynamics and distributions is complex be a threat to the subspecies. events may impact the ability of for animals such as butterflies that have Streaked Horned Lark—Sea level on endangered and threatened species to two very different physiological stages the Pacific Coast of Washington and survive. Vulnerability to weather events (larva and adult) (for example, see Bale Oregon is predicted to rise according to can be described as being composed of et al. 2002, p. 5). Moreover, forecasting expected values generated by an three elements: exposure, sensitivity, the responses of butterflies and other ensemble mean of models of relative and adaptive capacity. insects to elevated temperatures or sea-level rise (Tebaldi 2012, p. 4). At The small, isolated nature of the variable precipitation is largely based on Toke Point, Willapa Bay, Washington, remaining populations of the Taylor’s field and laboratory studies (Hellmann near occupied nesting habitat for checkerspot butterfly and streaked 2002, pp. 927–929). However, the streaked horned lark, sea level is horned lark increases the subspecies’ relationship between these changing predicted to rise 3.9 in (9.9 cm) by 2030, vulnerability to stochastic (random) environmental conditions and the and 9.8 in (0.25 cm) by 2050 (Tebaldi natural events. When species are limited Taylor’s checkerspot butterfly has not 2012, p. 4). Streaked horned larks are to small, isolated habitats, they are more been explicitly studied, though the attracted to breeding sites where there likely to become extinct due to a local extirpation of populations in British are long sight lines and sparse event that negatively affects the Columbia is attributed to drought vegetation, making sandy islands and population. While a population’s small, conditions and the encroachment of shorelines ideal habitats for nesting. isolated nature does not represent an woody vegetation into formerly suitable Sea-level rise is not currently projected independent threat to the species, it habitat (Guppy 2012, in litt.). One of the to reach the height of streaked horned does substantially increase the risk of two primary host plants for the Taylor’s lark nesting habitat on the beaches. If extirpation from the effects of all other checkerspot butterfly is ubiquitous these projections underestimate sea- threats, including those addressed in across the entire range of the subspecies level rise and nesting habitat is this analysis, and those that could occur and extends well beyond areas where infringed upon by rising waters, in the future from unknown sources. Taylor’s checkerspot butterfly streaked horned larks will likely Taylor’s Checkerspot Butterfly— populations persist. This suggests that respond by moving to up shore or to Environmental threats exacerbated by there is potential for range shifting, if other breeding habitats. small population size and weather can the Taylor’s checkerspot butterfly had The indirect effects of climate change be a factor in the Taylor’s checkerspot the capacity to disperse across the are primarily associated with changes in butterfly’s breeding success. Poor landscape. habitat, such as succession from a weather conditions, such as cool Uncertainty about climate change sparsely vegetated condition to a temperatures and rainy weather, reduce impacts does not mean that impacts shrubby or forested state, which would the number of days in the flight period may or may not occur; it means that the make habitat unsuitable for nesting. for several early spring flying butterflies,

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61492 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

including the Taylor’s checkerspot documented the occurrence of these population growth rates for streaked butterfly. A shorter flight season reduces threats to date, but the small and horned larks (Pearson et al. 2008, p. 13; the number of opportunities for declining population of streaked horned Camfield et al. 2011, p. 10), so oviposition (egg laying) for female larks is certainly at risk of random consistent loss of adult streaked horned butterflies, thus affecting the emergence environmental events that could have larks to aircraft strikes could negatively of adult butterflies in the future. catastrophic consequences. Based on impact this population. Peterson (2010, in litt) provided climate our review, we conclude that the effects The annual Olympic Air Show takes and butterfly abundance data that of stochastic weather events are a place in June at the Olympia Regional indicated cold winter temperature may potential threat to the streaked horned Airport; the events at the air show affect the timing of butterfly emergence lark. include low-level aerobatic flying and the size of populations in years (Olympic Flight Museum 2012, p. 1). Aircraft Strikes and Activities at when winters are severe. Late The events do not occur on lark habitat, Civilian Airports emergence of adults may directly impact but parking and staging for the event the mortality of larval stages if larvae are Taylor’s Checkerspot Butterfly—The may occur on the streaked horned lark’s unable to complete their life cycle Taylor’s checkerspot butterfly is not breeding grounds (Tirhi 2012b, in litt.). before their host plants senesce, or the known to be impacted by aircraft strikes As the air show occurs during the larvae may return to diapause. and aircraft activities at airports. Habitat streaked horned lark’s breeding season, Butterflies, including the Taylor’s management activities at these sites are the level of human activity at the site checkerspot butterfly, may experience covered under Factor A. could cause nest abandonment, increased mortality or reduced Streaked Horned Larks—Streaked exposure of young to predators, or fecundity if the timing of plant horned larks are attracted to the flat, actual nest destruction. development does not match the timing open habitats around airports The Corvallis Municipal Airport is the of larval or adult butterfly development throughout their range. Horned lark site of the largest known streaked (Peterson 1997, p. 167), and large strikes are frequently reported at horned lark population. The airport fluctuations in population sizes have military and civilian airports throughout hosts training exercises for police been observed based on local weather the country, but because of the bird’s departments on the airport grounds patterns (Hellmann et al. 2004, p. 45). small size, few strikes result in (Moore and Kotaich 2010, p. 25); During 2010 and 2011, the emergence of significant damage to aircraft (Dolbeer et intensive training sessions have Taylor’s checkerspot butterfly adults al. 2011, p. 48; Air Force Safety Center destroyed nests, and the disturbance was approximately 3 weeks later than 2012, p. 2). A recent report, however, may also cause streaked horned larks to ‘‘normal’’ due to wet and cool spring used mtDNA analysis to document that delay breeding activity (Moore and weather. In addition, it has been a streaked horned lark was struck by an Kotaich 2010, p. 25). reported that both drought and deluge F–15C military aircraft at Portland Both military and civilian airports may interrupt the insect-plant International Airport in October 2012, routinely implement a variety of interaction, resulting in decreased and caused damage to the aircraft’s #1 approaches to minimize the presence of populations (Hellmann et al. 2004, p. engine (Dove et al. 2013, p. 2). Most of hazardous wildlife on or adjacent to 45). The effects of drought have been the specific information available for airfields and to prevent wildlife strikes shown to deleteriously affect threats to streaked horned larks at by aircraft. McChord Field uses falcons populations of Edith checkerspot airports comes from the monitoring to scare geese and gulls off the airfield, butterflies in California (Hellmann et al. program at the Department of Defense’s and also uses two dogs for this purpose; 2004, p. 45). Based on our review, we JBLM on the south Puget Sound; similar the falcons and dogs are part of conclude that stochastic weather events threats to streaked horned larks may McChord Field’s integrated bird/ are a potential threat to the Taylor’s exist at other airports, but without wildlife aircraft strike hazard program checkerspot butterfly due to the focused monitoring, the threats to the and are designed to minimize aircraft vulnerability of isolated, small birds have not been documented. and crew exposure to potentially populations. Information provided from monitoring hazardous bird and wildlife strikes (Geil Streaked Horned Lark—There are at McChord Field is used here as a 2010, in litt.). The falcons and dogs estimated to be fewer than 1,600 surrogate for civilian airport cause streaked horned larks to become streaked horned larks rangewide information, where information on bird alert and fly (Pearson and Altman 2005, (Altman 2011, p. 213). During the strikes may not have been fully p. 12), which imposes an energetic cost breeding season, small populations of reported. McChord Field has had seven to adults and could expose nests to larks are distributed across the range; in confirmed streaked horned lark strikes predation. Portland International the winter, however, streaked horned from 2002 through 2010; the streaked Airport uses a variety of hazing and larks concentrate mainly on the lower horned larks were killed in the strikes, habitat management tools to minimize Columbia River sites and in the but the strikes resulted in only minimal wildlife hazards. Raptors and waterfowl Willamette Valley. Such concentration cost or damage to the aircraft (Elliott pose the greatest danger to aircraft exposes the wintering populations to 2011, pers. comm.). Aircraft strikes have operations, but the airport’s wildlife potentially disastrous stochastic events, been documented as a source of adult hazard management plan aims to reduce such as ice storms or flooding, that mortality for streaked horned larks at the potential for any bird strikes (Port of could kill individuals or destroy limited McChord Field. Surveys in 2010 at Portland 2009, pp. 5–6). Streaked habitat; a severe weather event could McChord Field detected up to 26 horned larks are not known to nest near wipe out a substantial percentage of the individuals at the site (Linders 2011a, p. the runways at Portland International entire subspecies (Pearson and Altman 3); loss of even 1 adult (and possibly Airport, but foraging individuals from 2005, p. 13). It is also possible that, as more, since some strikes may not be the nearby Southwest Quad could be extreme weather events become more noticeable given the small mass of a harassed by the hazing program, which frequent, streaked horned larks may be horned lark) per year could remove up could impose resulting energetic costs. less able to adapt to loss of nests given to 4 percent of the population each year. Given the small size of streaked the relatively long period between Recent modeling has shown that adult horned lark populations, we conclude nesting attempts. We have not survival has the greatest influence on that disturbance associated with

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61493

training and other activities at airports when Taylor’s checkerspot larvae are foot traffic is relatively common at are threats to the subspecies that may active, and the threat of pesticide drift Scatter Creek Wildlife Area in have significant population impacts. onto the prairies of Pierce County Washington, where plants and butterfly Although aircraft strikes can remove cannot be discounted. At this time, habitat have been trampled by horses individual birds from streaked horned however, we have no evidence that Btk during specialized dog competitions in lark populations at airports, there is has been sprayed in any locations where which dogs are followed by observers currently only limited information on Taylor’s checkerspot butterflies are on horseback (Stinson 2005, p. 6), and one airport (McChord Field) to suggest known to occur. by foot traffic using the trail system to aircraft strikes may be a potential Organophosphate-based insecticides access the meadows of Beazell population level threat at some sites. are used in a number of agricultural Memorial Forest (Park) in Oregon. However, the overall impact of the loss applications including black fly and Recreation by JBLM personnel and local of individual birds from aircraft strikes mosquito control; spraying of vegetable, individuals occurs on and near the 13th to the status of populations on other nut, and fruit crops; and treatment of Division Prairie. Trampling by humans (non-military) airports is believed to be seed, although they are now banned and horses, as well as people walking low, as indicated by the continued from residential use. One of these dogs on the 13th Division Prairie, is presence of populations under the insecticides, Naled (Dibrom), has been likely to crush some larvae, as well as current habitat conditions maintained at determined to have broad impacts on a the larval and nectar prairie plant these airports. wide array of butterfly families (Bargar communities that are restored and 2011, p. 888) and direct effects to the managed for in this area. Pesticides and Herbicides larvae and adults of a closely related Larvae have been crushed on Dan Taylor’s Checkerspot Butterfly—In the species of a federally listed threatened Kelly Ridge, on the north Olympic south Puget Sound region, currently butterfly, the Bay checkerspot Peninsula by vehicles that access the occupied Taylor’s checkerspot butterfly (Euphydryas editha bayensis) (EPA site to maintain a cell tower on the sites are found in a matrix of rural 2010, p. 23), if exposed. The extent to ridge. Also, recreational off-road vehicle agricultural lands and low-density which these insecticides are used in the (ORV) traffic on Dan Kelly Ridge, and development. In this context, herbicide Taylor’s checkerspot butterfly’s range is on Eden Valley, has damaged larval host and insecticide use may have direct currently unknown, and current data plants. The ORV damage on Dan Kelly effects on nontarget plants (butterfly were not available from the USDA. Ridge occurs despite efforts by WDNR to larval and nectar hosts) and arthropods In conclusion, we recognize that the block access into the upper portions of such as butterflies (Stark et al. 2012, p. use of pesticides would kill all life the road system through gating of the 23). stages of the Taylor’s checkerspot main road. Based on our review, we The application of the pesticide butterfly if pesticides were sprayed such conclude that ground-disturbing Bacillus thuringiensis var. kurstaki (Btk) that habitat occupied by the subspecies recreational activities are a threat to the for control of the Asian gypsy moth was impacted (for example, if pesticide Taylor’s checkerspot butterfly and (Lymantria dispar) likely contributed to were to drift from application in where the population is depressed may the extirpation of three historical locales adjacent forested areas). As noted constitute a serious threat to the long- for Taylor’s checkerspot butterflies in earlier, the application of pesticide was term conservation of the subspecies. Pierce County, Washington, in 1992 implicated in the extirpation of three Streaked Horned Lark—There are (Vaughan and Black 2002, p. 13). historical locales for Taylor’s documented occurrences of adverse Spraying of Btk is known to have checkerspot butterflies in Pierce County, effects to larks from recreation. adverse effects to nontarget lepidopteran Washington, in 1992 (Vaughan and Recreation at coastal sites is a common species (butterflies and moths) (Severns Black 2002, p. 13). Although we are not threat to rare species; activities such as 2002, p. 169). Severns (2002) sampled aware of any present overlap of dog walking, beachcombing, ORV use, butterfly diversity, richness, and exposure to pesticide use and the and horseback riding in coastal habitats abundance (density) for 2 years distribution of the butterfly, based on may indirectly increase predation, nest following a Btk application at Schwarz the high degree of mortality that would abandonment, and nest failure for Park in Lane County, Oregon. Diversity, result as a consequence of pesticide streaked horned larks (Pearson and richness, and density were found to be exposure and past suspected Hopey 2005, pp. 19, 26, 29). One nest significantly reduced for 2 years extirpations of entire populations of the (of 16 monitored) at Midway Beach on following spraying of Btk (Severns 2002, subspecies as a likely result of pesticide the Washington coast was crushed by a p. 168). Species like Taylor’s use, we conclude that pesticide use is a horse in 2004 (Pearson and Hopey 2005, checkerspot butterflies, which have a potential threat to the Taylor’s pp. 18–19). Open sandy beaches (e.g., single brood per year, are active in the checkerspot butterfly. dredge spoil sites on the lower spring and their larvae are active during Streaked Horned Lark—The streaked Columbia islands) make good camping the spray application period. Most horned lark is not known to be impacted areas for kayakers and boaters, and nests lepidopterans are more susceptible to by pesticides or herbicides directly, but could be lost due to accidental crushing. Btk than the target species (Asian gypsy may be impacted by the equipment used During western snowy plover surveys moth) (Haas and Scriber 1998). For to dispense them. These impacts are conducted between 2006 and 2010 at nontarget lepidoptera, the early instar covered under Factor A. coastal sites in Washington, human- stages of larvae are the most susceptible caused nest failures were reported in 4 stage (Wagner and Miller 1995, p. 21). Recreation of the 5 years (Pearson et al. annual The application of pesticides is Taylor’s Checkerspot Butterfly— reports, 2007, p. 16; 2008, p. 17; 2009, usually restricted to a short period of Recreational foot traffic may be a threat p. 18; 2010, p. 16). Because streaked the year. However, if the target species to the Taylor’s checkerspot butterfly, as horned larks nest in the same areas as is active at the same time as larvae and trampling will crush larvae if they are snowy plovers along the Washington adult Taylor’s checkerspot butterflies, present underfoot. The incidence of Coast, it is highly likely that human- the effect could be significant. Spraying trampling is limited to the few locations caused nest failures also occur due to of Btk still occurs in Pierce County for where Taylor’s checkerspot butterflies recreational activities at these sites. gypsy moths during the time of year and recreation overlap. For example, Good communication between

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61494 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

researchers and landowners has resulted coevolved with this nest parasite. We, Streaked Horned Lark—Genetic in some positive actions to reduce the therefore, conclude that the effect of analysis has shown that streaked horned adverse effects of recreation. In 2002, cowbird brood parasitism is not larks have suffered a loss of genetic JBLM restricted recreational activity at currently a threat; however, it may diversity due to a bottleneck in the 13th Division Prairie to protect lark become a threat in the future if it further population size (Drovetski et al. 2005, p. nesting; JBLM prohibited model depresses nest success of the declining 881), the effect of which may be airplane flying, dog walking, and streaked horned lark population on the exacerbated by continued small total vehicle traffic in the area used by south Puget Sound. population size. The loss of genetic streaked horned larks (Pearson and Vehicle Mortality diversity in small populations has been Hopey 2005, p. 29). linked to increased chances of Although restrictions to recreational Taylor’s Checkerspot Butterfly—See inbreeding depression, reduced disease use were placed on the 13th Division discussion under Factor A, resistance, and reduced adaptability to Prairie by JBLM, it is a difficult area to Development. environmental change, leading to patrol and enforce restrictions of this Streaked Horned Lark—There is some reduced reproductive success. These type. This area, adjacent to where evidence that streaked horned larks are effects may be apparent in the small streaked horned larks nest, is scheduled killed by cars on rural roads (Moore breeding population in the south Puget for a release of captive-bred and 2010b, p. 6). In the Willamette Valley, translocated Taylor’s checkerspot Sound, which exhibits low reproductive larks often breed on the margins of success. butterfly larvae during March 2012. gravel roads, and, as they flush in Based on our review, we conclude that response to passing cars, they may be Habitat changes to streaked horned activities associated with recreation are killed. The magnitude of this threat is lark habitat from climate change may threats to the streaked horned lark. unknown, but we have no data to provide some benefit to the subspecies, Nest Parasitism suggest that mortality from vehicle and as such climate change is not currently considered a threat; however, Taylor’s Checkerspot Butterfly—The strikes is resulting in population-level impacts to the subspecies. We do not stochastic weather events may pose a Taylor’s checkerspot butterfly is not threat to wintering flocks in the known to be impacted by nest consider vehicle mortality to currently be a threat to the streaked horned lark. Willamette Valley. Death of individual parasitism. larks caused by aircraft strikes is a threat Streaked Horned Lark—Nest Summary of Factor E to the small populations at airports, as parasitism by brown-headed cowbirds the loss of even a single breeding (Molothrus ater) is a potential, though Based upon our review of the best individual can have an adverse effect on little documented, threat to streaked commercial and scientific data horned larks. Cowbirds are common in available, the loss, degradation, and the population. Recreation activities can grasslands and urban areas throughout fragmentation of prairies has resulted in cause the degradation of streaked North America; female cowbirds lay smaller population sizes, loss of genetic horned lark habitat and direct mortality their eggs in the nests of other songbirds diversity, reduced gene flow among to nests and young. (Lowther 1993, p. 1). Upon hatching, populations, destruction of population We consider the impacts from the loss young cowbirds compete for food with structure, and increased susceptibility of genetic diversity, low reproductive the young of the host species, and may to local population extirpation for the success, stochastic weather events, result in lower reproductive success for Taylor’s checkerspot butterfly and the aircraft strikes, and recreation to pose a the host pair (Lowther 1993, p. 11). In streaked horned lark from a series of threat to the streaked horned lark in a study in Kansas, brown-headed threats including pesticide use, crushing combination with the other threat cowbird parasitism of horned lark nests and trampling from recreational factors identified here, particularly reduced the larks’ nest success by half activities, and aircraft strikes and given the inherent vulnerability of in those nests that were parasitized collisions, as summarized for each streaked horned lark due to small (from 1.4 young larks fledged per nest subspecies below. population sizes and isolation of small in non-parasitized nests to 0.7 young Taylor’s Checkerspot Butterfly—The populations. larks produced per nest with cowbird degradation of habitat from recreational parasitism (Hill 1976, pp. 560–561)). trampling and crushing produced by Determination Cowbirds are native to the open humans, dogs, and horses has killed grasslands of central North America, but larvae at several sites occupied by Section 4 of the Act (16 U.S.C. 1533), apparently only expanded into Oregon Taylor’s checkerspot butterflies. In and its implementing regulations at 50 and Washington in the 1950s, as a result addition, the use of the insecticide BtK CFR part 424, set forth the procedures of human clearing of forested habitats is suspected to be responsible for the for adding species to the Federal Lists (Lowther 1993, p. 2). Brown-headed extirpation of three historical of Endangered and Threatened Wildlife cowbirds have been noted at all streaked populations in Pierce County, and Plants. Under section 4(a)(1) of the horned lark study areas, and fledgling Washington, in 1992 (Stinson 2005). We Act, we may list a species based on: (A) cowbirds have been observed begging have also determined that the loss of The present or threatened destruction, for food from adult streaked horned genetic diversity through inbreeding modification, or curtailment of its larks on the Columbia River island sites depression due to habitat fragmentation habitat or range; (B) overutilization for (Pearson and Hopey 2005, p. 17). and the isolation of the subspecies is commercial, recreational, scientific, or Extensive nest monitoring of streaked likely an ongoing active threat. We educational purposes; (C) disease or horned lark nests in the Willamette consider the negative impacts from predation; (D) the inadequacy of Valley has not identified cowbird brood recreation and pesticide use to pose existing regulatory mechanisms; or (E) parasitism as a threat in this area (Moore potential threat to the Taylor’s other natural or manmade factors 2009, entire; Moore and Kotaich 2010, checkerspot butterfly, particularly given affecting its continued existence. Listing entire). Streaked horned larks have had its inherent vulnerability due to small actions may be warranted based on any just 50 years of exposure to brown- population sizes and isolation of small of the above threat factors, singly or in headed cowbirds, and as such, have not populations. combination.

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61495

Taylor’s Checkerspot Butterfly become substantial in the foreseeable as any species that is ‘‘in danger of We have carefully assessed the best future due to the prevalence of small extinction throughout all or a significant scientific and commercial information population sizes for the Taylor’s portion of its range’’ and a threatened available regarding the past, present, checkerspot butterfly. Predation is not a species as any species ‘‘that is likely to and future threats to the Taylor’s threat to Taylor’s checkerspot butterflies become endangered throughout all or a checkerspot butterfly. The Taylor’s at this time. We conclude that existing significant portion of its range within checkerspot butterfly has been lost from regulatory mechanisms do not address the foreseeable future.’’ Because we find most locations in the Canadian portion and reduce the threats to the Taylor’s that the Taylor’s checkerspot butterfly is of its range with just one known checkerspot butterfly. In contrast, the presently in danger of extinction population remaining. In Washington, voluntary protections that have been throughout its entire range, based on the the subspecies was once known from exercised for private landowners in lieu immediacy, severity, and scope of the seven Puget Sound counties, and is now of rulemaking under Washington State’s threats described above, and the fact forest practices regulations have that the range and population size of the known to occur naturally in just two provided protection to the subspecies species has already been drastically counties, Clallam and Pierce. In Oregon, on private lands adjacent to DNR lands reduced, a determination of threatened the range of the Taylor’s checkerspot on the north Olympic Peninsula, species status for the Taylor’s butterfly has been reduced to two small although this is a small proportion of checkerspot butterfly is not appropriate. relict grasslands in the foothills of the existing occupied habitat for the Therefore, on the basis of the best coast range near Corvallis, in Benton subspecies. available scientific and commercial County, Oregon. The distribution of the The observed habitat fragmentation information, we determine that the Taylor’s checkerspot butterfly has been and the isolation of small populations of Taylor’s checkerspot butterfly meets the reduced from more than 80 populations the Taylor’s checkerspot butterfly definition of an endangered species in to the 14 occupied locations with small suggest that the loss of genetic diversity accordance with sections 3(6) and populations that are known rangewide through inbreeding depression may be a 4(a)(1) of the Act. today. Some of the populations that threat. All known locations where the have been extirpated have disappeared Taylor’s checkerspot butterfly is found Significant Portion of the Range in the past decade, and many declined in Oregon and Washington are Having determined that the Taylor’s from robust population sizes of more sufficiently distant from each other such checkerspot butterfly meets the than 5,000 individual butterflies to zero that exchange of genetic material from a definition of an endangered species within a 3-year interval and have not dispersing individual moving from throughout its entire range, we need not returned. Most remaining populations of population to population would be further evaluate any significant portion Taylor’s checkerspot butterflies are very unlikely. The threat of extreme weather of the range for this subspecies. small; 5 of the 14 known populations events (drought and deluge, and Streaked Horned Lark are estimated to have fewer than 100 overcast, cold springs) affect host plant individuals. Only 1 population phenology and adult butterfly We have carefully assessed the best consistently has been estimated to have emergence, which influences whether scientific and commercial information more than 1,000 individual butterflies, the larvae complete their annual life available regarding the past, present, and this population has been severely cycle, thus affecting the size of annual and future threats to the streaked impacted due to habitat degradation populations. The effects of weather horned lark. The subspecies has associated with military training. events are particularly a threat when disappeared from all formerly We have carefully assessed the best they affect one of the few small documented locations in the northern scientific and commercial data available populations that remain. There is a portions of its range (British Columbia, regarding the past, present, and future potential threat of continuing pesticide the San Juan Islands, and the northern threats to the Taylor’s checkerspot application, which is suspected to be Puget trough), the Oregon coast, and the butterfly. We find that the threat of responsible for the extirpation of some southern edge of its range (Rogue and development and adverse impacts to populations of the Taylor’s checkerspot Umpqua Valleys). The streaked horned habitat from conversion to other uses butterfly in Pierce County. Recreational lark’s range may be continuing to (agriculture); the loss of historically activities (off-road vehicles, trampling contract, and the number of streaked occupied locations resulting in the and crushing from hikers and horses) horned larks in Washington and on the present isolation and limited have been shown to be a threat at Columbia River islands is declining. distribution of the subspecies; the several of the sites occupied by Taylor’s This decline taken together with impacts of military training and checkerspot butterflies. evidence of inbreeding depression on recreation; existing and likely future In summary, the combination of the south Puget Sound indicates that the habitat fragmentation, habitat several threats that have significant streaked horned lark’s range may disturbance, and land use changes impacts on populations and the ongoing contract further in the future. associated with agriculture; long-term nature of these threats to the few We have carefully assessed the best fire suppression; and the threats remaining small populations of the scientific and commercial data available associated with the present and Taylor’s checkerspot butterfly leads us regarding the past, present, and future threatened destruction, modification, to conclude that the subspecies is threats to streaked horned lark. We find and curtailment of Taylor’s checkerspot currently in danger of extinction that the threat of development and butterfly habitat are significant. These throughout its range. The threats to the adverse impacts to habitat from threats are currently ongoing and will survival of the Taylor’s checkerspot conversion to other uses (residential or continue into the foreseeable future for butterfly occur throughout the commercial development, agriculture), Taylor’s checkerspot butterflies. subspecies’ range and are not restricted loss and degradation of habitat due to We find that disease may be a threat, to any particular significant portion of fire suppression and subsequent but is not currently at a significant level that range. Accordingly, our assessment invasion of habitat by undesirable to affect the Taylor’s checkerspot and determination will apply to the native and nonnative plants, dredge butterfly. The threat of disease to the subspecies throughout its entire range. spoil deposition timing and placement larval host plant of the subspecies may The Act defines an endangered species on Columbia River islands, improperly

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61496 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

timed burning and mowing regimes, listing streaked horned lark as assign different classifications (i.e., military training (use of explosive threatened throughout its range. The Act endangered or threatened) to different ordnance, aircraft downdraft, accidental defines an endangered species as any DPSs of the same vertebrate taxon (61FR fires, vehicle travel, dismounted species that is ‘‘in danger of extinction 4722; February 7, 1996). training, bivouac activities, digging, Air throughout all or a significant portion of Discreteness Mobility Rodeo, Air Expo), and its range’’ and a threatened species as conversion of large grass seed any species ‘‘that is likely to become Under the DPS policy, a population production fields to incompatible endangered throughout all or a segment of a vertebrate species may be agricultural commodities are significant significant portion of its range within considered discrete if it satisfies either and are expected to continue into the the foreseeable future.’’ We find that one of the following two conditions: foreseeable future. Many military streaked horned lark is likely to become (1) It is markedly separated from other training impacts are expected to an endangered species throughout all or populations of the same taxon as a increase under the DOD’s Grow the a significant portion of its range within consequence of physical, physiological, Army initiative, although we expect that the foreseeable future, based on the ecological, or behavioral factors. JBLM’s final ESMPs will provide an immediacy, severity, and scope of the Quantitative measures of genetic or overall conservation benefit to the threats described above. We do not have morphological discontinuity (separation subspecies. information to suggest that the present based on genetic or morphological We find that there are likely to be threats are of such great magnitude that characters) may provide evidence of this significant, ongoing threats to the streaked horned lark is in immediate separation; subspecies due to predation, which is danger of extinction, but we conclude (2) It is delimited by international the most frequently documented source that it is likely to become so in the governmental boundaries within which of mortality for eggs and young, and the foreseeable future. Therefore, on the differences in control of exploitation, primary source of nest failure. This is basis of the best available scientific and management of habitat, conservation especially a concern in the south Puget commercial information, we determine status, or regulatory mechanisms exist Sound area, although streaked horned that streaked horned lark meets the that are significant in light of section larks in other areas are also susceptible. definition of threatened species in 4(a)(1)(D) of the Act. In addition, we conclude that accordance with sections 3(20) and In our evaluation of discreteness significant, ongoing threats to the 4(a)(1) of the Act. under the DPS policy, we primarily streaked horned lark may occur due to considered the information indicating small population effects (for this Distinct Vertebrate Population Segment the separation of streaked horned larks subspecies, this includes loss of genetic After finding that streaked horned during the breeding season into three diversity, low survival, and reduced lark is a threatened species throughout regions (the south Puget Sound, fecundity and nest success). This is of its range, we next consider whether Washington Coast and Columbia River, particular concern in the south Puget there may be a distinct vertebrate and the Willamette Valley). Observation Sound area, where such threats in population segment (DPS) that meets of banded streaked horned larks has combination with a lack of immigration the definition of endangered, in shown that the birds show strong site into that area and high breeding site accordance with the Service’s Policy philopatry in the breeding season (i.e., fidelity could lead to local population Regarding the Recognition of Distinct individuals tend to return to the same extirpations. Other significant, ongoing Vertebrate Population Segments under location to breed each year) (Pearson et threats to the streaked horned lark the Endangered Species Act (61 FR al. 2008, p. 12), but birds from all include existing regulatory mechanisms, 4722; February 7, 1996). The policy regions mix in the winter (Pearson et al. which are not adequate to address or identifies three elements that are to be 2005, pp. 2–6). In the winter most of reduce threats to streaked horned lark; considered regarding the status of a streaked horned larks that breed in the other activities associated with airports possible DPS. These elements include: south Puget Sound migrate south to the (development and aircraft strikes); and (1) The discreteness of the population Willamette Valley or west to the recreation (including but not limited to segment in relation to the remainder of Washington coast; streaked horned larks pedestrians, model airplane flying, dog the species to which it belongs; that breed on the Washington coast walking, beachcombing, vehicle or ORV (2) The significance of the population either remain on the coast or migrate use, camping, and horseback riding in segment to the species to which it south to the Willamette Valley; birds areas occupied by streaked horned lark). belongs; and that breed on the lower Columbia River These threats are expected to continue (3) The population segment’s islands remain on the islands or migrate into the foreseeable future. Potential conservation status in relation to the to the Washington coast; and birds that threats include stochastic weather Act’s standards for listing (i.e., does the breed in the Willamette Valley remain events, nest parasitism by brown- population segment, when treated as if there over the winter (Pearson et al. headed cowbirds, and vehicle mortality, it were a species, meet the Act’s 2005b; pp. 5–6). Streaked horned larks but magnitude and severity of these definition of endangered or threatened?) spend the winter in large mixed threats are unknown at this time. (61 FR 4722; February 7, 1996). subspecies flocks of horned larks in the Streaked horned larks face a The first two elements are used to Willamette Valley, and in smaller flocks combination of several high-magnitude determine if a population segment along the lower Columbia River and threats; the threats are immediate, occur constitutes a valid DPS. If it does, then Washington Coast (Pearson et al. 2005b, throughout the subspecies’ range, and the third element is used to consider p. 7; Pearson and Altman 2005, p. 7). are not restricted to any particular whether such DPS warrants listing. In Possible evidence of inbreeding significant portion of the range. this section, we will consider the first depression (Anderson 2010, p. 27; Therefore, we assessed the status of two criteria (discreteness and Pearson and Stinson 2011, p. 1) may streaked horned lark throughout its significance) to determine if any unit of suggest that there is a discrete entire range, and our assessment and the streaked horned lark’s overall population of streaked horned larks that determination apply to the subspecies population is a valid DPS (i.e., a valid breed in Washington. Estimates of throughout its entire range. For the listable entity). Our policy further population growth rate with data from reasons provided in this rule, we are recognizes that it may be appropriate to nesting areas in Washington (south

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61497

Puget Sound, Washington Coast, and we do not consider them to be discrete In practice, a key part of this analysis is one lower Columbia River island) under the DPS policy. whether the threats are geographically indicate that the number of streaked concentrated in some way. If the threats Evaluation of Discreteness horned larks in Washington is declining to the species are essentially uniform each year, apparently due to a Our analysis of the apparent level of throughout its range, no portion is likely combination of low survival and isolation and evidence of inbreeding to warrant further consideration. fecundity rates (Pearson et al. 2008, pp. depression does not lead to a finding Moreover, if any concentration of 10, 13; Camfield et al. 2011, p. 7); this that any subunit of streaked horned threats applies only to portions of the trend is not apparent in Oregon (Myers larks that nest in Washington, in the species’ range that are not significant, and Kreager 2010, p. 11). The south Puget Sound, on the Washington such portions will not warrant further combination of low genetic variability, coast, or on the Columbia River islands consideration. small and rapidly declining nesting are discrete; therefore these populations If we identify portions that warrant populations, high breeding site fidelity, cannot be considered to be a potential further consideration, we then and no observed migration into the DPS. This does not mean that the three determine whether the species is south Puget Sound suggests that breeding regions of streaked horned lark endangered or threatened in these streaked horned lark in the south Puget are unimportant and do not have portions of its range. Depending on the Sound could become extirpated in the significant conservation value. It simply biology of the species, its range, and the near future (Pearson et al. 2008, pp. 1, means that, per our policy, the best threats it faces, the Service may address 14, 15). Efforts to reduce this apparent available data at this time do not either the significance question or the isolation and concomitant genetic support a marked separation between status question first. Thus, if the Service consequences have been implemented the breeding streaked horned larks in considers significance first and within the last year. the three regions, based on information determines that a portion of the range is A project was initiated in 2011 to available to us, such that this not significant, the Service need not counteract the apparent decline in the population would meet the discreteness determine whether the species is south Puget Sound breeding birds. This criterion of our DPS policy. endangered or threatened there. Likewise, if the Service considers status genetic rescue effort is aimed at Significance increasing genetic diversity in streaked first and determines that the species is Under our DPS Policy, a population not endangered or threatened in a horned larks breeding in Washington, must be discrete and significant to portion of its range, the Service need not which could result in increased nest qualify as a DPS. Since we have determine if that portion is significant. success and an increase in the determined that no populations of However, if the Service determines that population. Twelve eggs (four three-egg streaked horned larks are discrete, we both a portion of the range of a species clutches) were collected from streaked will not consider whether that is significant and the species is horned lark nests in the southern population segment is significant. endangered or threatened there, the Willamette Valley and were placed in Service will specify that portion of the nests at the 13th Division Prairie site at Conclusion of DPS Analysis for range as endangered or threatened Joint Base Lewis-McChord (Wolf 2011, Streaked Horned Lark under section 4(c)(1) of the Act. p. 9). At least five young successfully On the basis of the best available As described above, we have fledged at the receiving site; if even one information, we have determined that determined that streaked horned lark is of these birds returns to breed in future there are no discrete populations of the likely to become endangered within the years, it will likely increase genetic streaked horned lark. As no population foreseeable future throughout all of its diversity in the receiving population, segments met the discreteness element, range; therefore the subspecies meets resulting in improved fitness and and, therefore, no populations qualify as the definition of a threatened species reduced extinction risk for the south a DPS under the Service’s DPS policy, under the Act. In the course of this Puget Sound streaked horned larks we will not proceed with an evaluation rangewide determination, we (Wolf 2011, p. 9). This genetic rescue of the status of the population segment considered whether some portion of the project will likely be continued for the under the Act. full range of the subspecies may face next several years. threats or potential threats acting Significant Portion of the Range With the evidence of extensive mixing individually or collectively on streaked that occurs in the winter, and the In determining whether a species is horned lark to such degree that the genetic rescue project to bolster genetic endangered or threatened in a subspecies as a whole should be diversity in Washington, which has significant portion of its range, we first considered endangered. We detail our resulted in genetic mixing between identify any portions of the range of the consideration of that question here. Oregon and Washington populations, species that warrant further Although the threats to streaked there does not appear to be marked consideration. The range of a species horned larks in Washington and Oregon separation among streaked horned larks can theoretically be divided into are apparently similar in nature from the three regions. In addition, the portions an infinite number of ways. (including loss of habitat to evidence of deleterious genetic However, there is no purpose to development, poor habitat quality due consequences to the birds breeding in analyzing portions of the range that are to lack of adequate management to Washington suggests that any possible not reasonably likely to be both (1) maintain low-stature vegetation, isolation of this population is not the significant and (2) endangered or predation, and human disturbance result of adaptation or natural threatened. To identify only those during the breeding season), for reasons differentiation of this population, but portions that warrant further unknown, the population trend for rather is symptomatic of drastic consideration, we determine whether streaked horned larks in Washington population declines and loss of there is substantial information appears to be markedly different than connectivity between potentially indicating that: (1) The portions may be the trend for the subspecies in Oregon. interbreeding subpopulations. Because significant, and (2) the species may be Streaked horned larks in Washington we find the potential ‘‘regional in danger of extinction there or likely to occur on the south Puget Sound, on the populations’’ are not markedly separate, become so within the foreseeable future. Washington coast, and on islands and

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61498 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

dredge disposal sites in the lower found the population increasing from 15 prohibitions against certain practices. Columbia River (including two sites in pairs in 2006, to 40 pairs in 2010 (Moore Recognition through listing results in Portland, Oregon). The total estimated 2008, p. 9; Moore 2012, in litt.). public awareness and conservation by population of streaked horned larks in Streaked horned lark population at Federal, State, Tribal, and local these areas is 270–310 birds (Altman Corvallis Municipal Airport, the site of agencies; private organizations; and 2011, p. 213). Demographic modeling the largest known population of the individuals. The Act encourages using data from these sites uniformly subspecies, measured 75 pairs in 2006, cooperation with the States and requires shows precipitous population declines. 102 pairs in 2007, 80 pairs in 2008, and that recovery actions be carried out for Pearson et al. (2008, pp. 3, 12) examined 85 pairs in 2011 (Moore 2008, p. 16; all listed species. The protection population vital rates (reproductive Moore 2012, in litt.). required by Federal agencies and the rates, juvenile survival, and adult Although streaked horned larks in the prohibitions against certain activities survival) at seven sites (four in the south Willamette Valley face many of the are discussed, in part, below. Puget Sound, two on the Washington same threats as populations in The primary purpose of the Act is the Coast, and one Columbia River island) Washington, the data suggest that conservation of endangered and over 4 years (2002–2005) and concluded streaked horned larks in the Willamette threatened species and the ecosystems that the Washington population is Valley are declining at a slower place upon which they depend. The ultimate declining by 40 percent per year. and have abundant potential habitat on goal of such conservation efforts is the Schapaugh (2009, pp. 9, 15, 18) used the agricultural lands in the valley. The recovery of these listed species, so that both deterministic and stochastic best available information does not they no longer need the protective models to analyze the data collected by suggest that they are likely to experience measures of the Act. Subsection 4(f) of Pearson et al. (2008, p. 3), and projected significant declines in the foreseeable the Act requires the Service to develop that, in all cases, streaked horned larks future, to the degree that this population and implement recovery plans for the in Washington would likely become would be considered in danger of conservation of endangered and extirpated within 25 years. extinction at the present time. The threatened species. The recovery Camfield et al. (2011, p. 4) analyzed threats in the Willamette Valley are planning process involves the the data from the same three local relatively small population size, and identification of actions that are populations considered by Pearson et al. likely loss of habitat to future necessary to halt or reverse the species’ (2008) and Schapaugh (2009), described development and incompatible decline by addressing the threats to its above (the data were collected from management practices, which leads us survival and recovery. The goal of this about 137 nests over 4 years (2002– to conclude that the subspecies is process is to restore listed species to a 2005)). Camfield et al. (2011, p. 8) threatened in the Willamette Valley. point where they are secure, self- concluded that these populations have The best available data therefore sustaining, and functioning components reached a point where they are suggest that, under current conditions, of their ecosystems. declining towards extinction, and are streaked horned larks in Washington Recovery planning includes the not sustainable without immigration. (south Puget Sound, Washington coast, development of a recovery outline The declining trend is probably most Columbia River islands) will likely shortly after a species is listed and pronounced in the south Puget Sound continue to decline towards extinction preparation of a draft and final recovery population, where studies have within this century. Having already plan. The recovery outline guides the identified apparent inbreeding determined that streaked horned lark is immediate implementation of urgent depression, which is likely a result of threatened throughout its range, we recovery actions and describes the the small population size, high site considered whether threats may be so process to be used to develop a recovery fidelity, and complete absence of concentrated in some portion of its plan. Revisions of the plan may be done breeding season immigration (i.e., no range that, if that portion were lost, the to address continuing or new threats to observed immigration of breeding birds entire subspecies would be in danger of the species, as new substantive from any other sites) (Pearson et al. extinction. In applying this test, we information becomes available. The 2008, pp. 14–15). determined that even with the potential recovery plan identifies site-specific The population of streaked horned loss of the Washington populations, the management actions that set a trigger for larks in the Willamette Valley of Oregon relatively larger, population in the review of the five factors that control appears to be more stable. The Willamette Valley of Oregon would whether a species remains endangered population in the Willamette Valley is likely persist; therefore the subspecies or may be downlisted or delisted, and estimated at 900–1,300 birds (Altman as a whole is not presently in danger of methods for monitoring recovery 2011, p. 213); no population modeling extinction, and therefore does not meet progress. Recovery plans also establish has been done using data from Oregon, the definition of an endangered species a framework for agencies to coordinate but the apparent trend of the subspecies under the Act. their recovery efforts and provide in the Willamette Valley is stable, based Continued decline of the Washington estimates of the cost of implementing on the Oregon Department of Fish and populations considered in conjunction recovery tasks. Recovery teams Wildlife’s 1996 and 2008 surveys for with the larger populations in the (comprised of species experts, Federal streaked horned larks at sites Willamette Valley leads us to the and State agencies, nongovernment throughout the Willamette Valley conclusion that, on balance, the organizations, and stakeholders) are (Myers and Kreager 2010, p. 11). subspecies is appropriately defined as a often established to develop recovery Population monitoring at various sites threatened species throughout its range plans. When completed, the recovery in the Willamette Valley show that under the Act. outline, draft recovery plan, and the several large populations are fairly final recovery plan will be available on stable or increasing. Surveys conducted Available Conservation Measures our Web site (http://www.fws.gov/ at Baskett Slough NWR from 2006 to Conservation measures provided to endangered), or from our Washington 2009 showed a population increase from species listed as endangered or Fish and Wildlife Office (see FOR 18 pairs in 2006, to 35 pairs in 2009 threatened species under the Act FURTHER INFORMATION CONTACT). (Moore 2008, p. 8; Moore 2012, in litt.). include recognition, recovery actions, Implementation of recovery actions Surveys at William L. Finley NWR requirements for Federal protection, and generally requires the participation of a

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61499

broad range of partners, including other that may negatively affect the species species. The following activities could Federal agencies, States, Tribal, through removal and conversion or potentially result in a violation of nongovernmental organizations, degradation of habitat. Examples of section 9 of the Act; this list is not businesses, and private landowners. activities authorized, funded, or carried comprehensive: Examples of recovery actions include out by Federal agencies that may affect (1) Unauthorized collecting; sale or habitat restoration (e.g., restoration of listed species or their habitat include, offer for sale in interstate or foreign native vegetation), research, captive but are not limited to: commerce; and delivery, receipt, or propagation and reintroduction, and (1) Military training activities and air transport in interstate or foreign outreach and education. The recovery of operations conducted in or adjacent to commerce in the course of a commercial many listed species cannot be occupied or suitable habitat on DOD activity of the species. accomplished solely on Federal lands lands; (2) Introduction of nonnative species because their range may occur primarily (2) Activities with a Federal nexus that compete with or prey upon the or solely on non-Federal lands. To that include vegetation management Taylor’s checkerspot butterfly or the achieve recovery of these species such as burning, mechanical treatment, streaked horned lark, such as the requires cooperative conservation efforts and/or application of herbicides/ introduction of competing, nonnative on private, State, and Tribal lands. pesticides on Federal, State, private, or plants or animals to the States of Upon listing, funding for recovery Tribal lands; Washington and Oregon; actions will be available from a variety (3) Ground-disturbing activities (3) The unauthorized release of of sources, including Federal budgets, regulated, funded, or conducted by biological control agents that attack any State programs, and cost share grants for Federal agencies in or adjacent to life stage of these subspecies, for non-Federal landowners, the academic occupied and/or suitable habitat; and example, Btk release in the range of community, and nongovernmental (4) Import, export, or trade of the Taylor’s checkerspot butterflies; organizations. In addition, pursuant to species. (4) Unauthorized modification of the section 6 of the Act, the States of The Act and its implementing soil profiles or the vegetation Washington and Oregon will be eligible regulations set forth a series of general components on sites known to be for Federal funds to implement prohibitions and exceptions that apply occupied by Taylor’s checkerspot management actions that promote the to all endangered wildlife. The butterflies and streaked horned larks; protection or recovery of the Taylor’s prohibitions of section 9(a)(2) of the Act, and checkerspot butterfly and streaked codified at 50 CFR 17.21 for endangered (5) Deposition of dredge materials on horned lark. Information on our grant wildlife, in part, make it illegal for any occupied streaked horned lark breeding programs that are available to aid person subject to the jurisdiction of the habitats, intentional harassment of the species recovery can be found at: United States to take (includes harass, subspecies at airports as part of a http://www.fws.gov/grants. harm, pursue, hunt, shoot, wound, kill, wildlife hazard reduction program, and Section 7(a) of the Act requires trap, capture, or collect; or to attempt mowing or burning of the subspecies’ Federal agencies to evaluate their any of these), import, export, ship in occupied habitats during the breeding actions with respect to any species that interstate commerce in the course of season. is proposed or listed as endangered or commercial activity, or sell or offer for Questions regarding whether specific threatened and with respect to its sale in interstate or foreign commerce activities would constitute a violation of critical habitat, if any is designated. any listed species. Under the Lacey Act section 9 of the Act should be directed Regulations implementing this (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), to the Washington Fish and Wildlife interagency cooperation provision of the it is also illegal to possess, sell, deliver, Office (see FOR FURTHER INFORMATION Act are codified at 50 CFR part 402. carry, transport, or ship any such CONTACT). Requests for copies of the Section 7(a)(4) of the Act requires wildlife that has been taken illegally. regulations concerning listed animals Federal agencies to confer with the Certain exceptions apply to agents of the and general inquiries regarding Service on any action that is likely to Service and State conservation agencies. prohibitions and permits may be jeopardize the continued existence of a We may issue permits to carry out addressed to the U.S. Fish and Wildlife species proposed for listing or result in otherwise prohibited activities Service, Ecological Services, Eastside destruction or adverse modification of involving endangered and threatened Federal Complex, 911 NE. 11th Avenue, proposed critical habitat. If a species is wildlife species under certain Portland, OR 97232–4181 (telephone listed subsequently, section 7(a)(2) of circumstances. Regulations governing 503–231–6158; facsimile 503–231– the Act requires Federal agencies to permits are codified at 50 CFR 17.22 for 6243). ensure that activities they authorize, endangered wildlife, and at 17.32 for Listing the Taylor’s checkerspot fund, or carry out are not likely to threatened wildlife. With regard to butterfly as endangered and the streaked jeopardize the continued existence of endangered wildlife, a permit must be horned lark as threatened under the Act the species or destroy or adversely issued for the following purposes: for does not automatically invoke the modify its critical habitat. If a Federal scientific purposes, to enhance the endangered species acts of the State of action may affect a listed species or its propagation or survival of the species, Oregon (OAR 629–605–0105). In critical habitat, the responsible Federal and for incidental take in connection Washington, although there is no agency must enter into formal with otherwise lawful activities. endangered species act per se, there is consultation with the Service. It is our policy, as published in the a prohibition against take of any species Federal agency actions within the Federal Register on July 1, 1994 (59 FR listed by the State regulatory agency species’ habitat that may require 34272), to identify to the maximum (WDFW); however, there is no conference or consultation or both as extent practicable at the time a species restriction to loss or modification of described in the preceding paragraph is listed, those activities that will or will habitat. Further, the States may enter include actions to manage or restore not constitute a violation of section 9 of into agreements with Federal agencies critical habitat, actions that require the Act. The intent of this policy is to to administer and manage any area collecting or handling the species for increase public awareness of the effect required for the conservation, the purpose of captive propagation and of a listing on proposed and ongoing management, enhancement, or translocation to new habitat, actions activities within the range of the listed protection of endangered species. Funds

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61500 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

for these activities could be made management, repair, and maintenance some portion of these roughly 1 million available under section 6 of the Act of roads and runways; and modification acres (404,685 ha) will have suitable (Cooperation with the States) or through and management of forage, water, and streaked horned lark habitat, but the competitive application to receive shelter to be less attractive to these geographic location of those areas may funding through our Recovery Program hazardous wildlife, as described under not be consistent from year to year, nor under section 4 of the Act. Thus, the the Regulation Promulgation section, can we predict their occurrence. Federal protection afforded to these below. Many of the activities that While some agricultural activities subspecies by listing them as benefit the streaked horned lark on non- may harm or kill individual streaked endangered or threatened species is Federal airports are a result of practices horned larks, maintenance of extensive reinforced and supplemented by to maintain safe conditions for aviation; agricultural lands in the Willamette protection under State law. we recommend that airport operators Valley is crucial to maintaining the follow the guidance provided in Federal population of streaked horned larks in Special Rule Aviation Administration advisory the valley. Section 9 of the Act provides Under section 4(d) of the Act, the circular 150/5200–33C Hazardous general prohibitions on activities that Secretary may publish a special rule Wildlife Attractants on or Near Airports would result in take of a threatened that modifies the standard protections (FAA 2007, entire), and all other species; however, the Service recognizes for threatened species in the Service’s applicable related guidance. We also that routine agricultural activities, even regulations at 50 CFR 17.31, which exempt take associated with accidental those with the potential to inadvertently implement section 9 of the Act, with aircraft strikes, as these strikes are an take individual streaked horned larks, special measures that are determined to unavoidable consequence of creation of are necessary components of be necessary and advisable to provide habitat for larks on airfields. agricultural operations and create for the conservation of the species. As The listing of the streaked horned lark habitat that may provide for the long- a means to promote conservation efforts imposes a requirement on airport term conservation needs of the by encouraging activities that managers where the subspecies occurs subspecies. The Service recognizes that inadvertently create needed habitat for to consider the effects of their in the long term, it is a benefit to streaked horned lark, we are issuing a management activities on this streaked horned larks to maintain those special rule for this species under subspecies. It is likely that airport aspects of the Willamette Valley’s section 4(d) of the Act. In the case of a managers would take actions to deter agricultural landscape that can aid in special rule, the general regulations (50 the subspecies from areas where it the recovery of the subspecies. We CFR 17.31 and 17.71) applying most currently occurs in order to avoid the believe this special rule will further prohibitions under section 9 of the Act burden of the resulting take restrictions conservation of the subspecies by to threatened species do not apply to that would accrue from the presence of discouraging conversions of the that species, and the special rule a listed species. However, this special agricultural landscape into habitats contains the prohibitions necessary and rule, which exempts the non-Federal unsuitable for the streaked horned lark appropriate to conserve that species. airport activities listed above, and and encouraging landowners to Under the special rule, take of streaked which may otherwise result in take continue managing the remaining horned lark caused by certain common under section 9 of the Act, eliminates landscape in ways that meet the needs practices by agricultural operations; by the incentive for airports to reduce or of their operation and provide suitable wildlife hazard management at airports eliminate populations of streaked habitat for the streaked horned lark. on State, county, private, or tribal lands; horned larks from the airfields. In addition, we believe that, in certain and by noxious weed control conducted Agricultural Practices. The largest instances, easing the general take on non-federal lands would be exempt area of potential habitat for streaked prohibitions on non-federal agricultural from section 9 of the Act. Activities on horned larks is the agricultural land lands may encourage continued Federal lands or with any Federal base in the Willamette Valley, Oregon. responsible land uses that provide an agency involvement will still need to be The wide open landscape context and overall benefit to the subspecies. We addressed through consultation under low vegetation structure in agricultural also believe that such a special rule will section 7 of the Act. fields, especially in grass seed fields, promote the conservation efforts and Wildlife Hazard Management at attract larks, probably because those private lands partnerships critical for Airports. Some management actions working landscapes resemble the species recovery (Bean and Wilcove taken at airports are generally beneficial natural habitats formerly used by the 1997, pp. 1–2). However, in easing the to streaked horned larks. Streaked subspecies when the natural take prohibitions under section 9, the horned larks have been documented to disturbances associated with floods and measures developed in the special rule breed successfully and to maintain fires maintained a mosaic of suitable must also contain prohibitions populations at airports in the south habitats for the subspecies. Habitat necessary and appropriate to conserve Puget Sound and Willamette Valley. characteristics of agricultural lands used the species. As discussed elsewhere in Airports routinely implement programs by streaked horned larks include: (1) this rule, streaked horned larks face to minimize the presence of hazardous Bare or sparsely vegetated areas within many threats. Foremost among these is wildlife on airfields, and these activities or adjacent to grass seed fields, pastures, the scarcity of large, open spaces with unintentionally create suitable habitat or fallow fields; (2) recently planted (0– very early seral stage vegetation. In the for streaked horned larks. The special 3 years) Christmas tree farms with Willamette Valley, large expanses of rule for airport management extensive bare ground; and (3) wetland burned prairie or the scour plains of the acknowledges the benefits to larks from mudflats or ‘‘drown outs’’ (i.e., washed Willamette and Columbia Rivers may these activities; covered actions include out and poorly performing areas within have provided suitable habitat for vegetation management to maintain grass seed or row crop fields). Currently, streaked horned larks in the past. With desired grass height on or adjacent to there are approximately 420,000 acres the loss of these natural habitats during airports through mowing, discing, (169,968 ha) of grass seed fields in the the last century, alternative breeding herbicide use, or burning; hazing of Willamette Valley, and an additional and wintering sites, including active hazardous wildlife (geese, and other approximately 500,000 acres (202,343 agricultural lands, have become critical large birds and mammals); routine ha) of other agriculture. In any year, for the continued survival and recovery

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61501

of the streaked horned lark. The unique streaked horned lark. We have agricultural fields, wetland mudflats, challenge for conservation of the determined that exempting specified sparsely vegetated edges of grass fields, streaked horned lark on agricultural agricultural operations in the recently planted Christmas tree farms lands will be to find a way to work with Willamette Valley of Oregon, rather than with extensive bare ground, moderately private landowners to voluntarily create rangewide, as originally proposed, from to heavily grazed pastures, gravel roads habitat for the subspecies rather than the take prohibitions under section 9 of or gravel shoulders of lightly traveled allow the habitats on their lands to the Act, is the appropriate scope for the roads, airports, and dredge deposition become unsuitable through inaction. 4(d) special rule for agricultural sites in the lower Columbia River. As Section 9 of the Act prohibits a range of activities. We are limiting the mentioned under Factor A, the actions that would take a listed species, application of the 4(d) special rule for suppression and loss of ecological including actions that destroy habitats agricultural activities to the Willamette disturbance regimes, such as fire and essential to individuals of the species. Valley in Oregon because we have no flooding, across vast portions of the However, section 9 of the Act does not information to suggest that the streaked landscape have resulted in altered prohibit inaction; thus, a landowner’s horned lark uses agricultural lands in vegetation structure in these habitat failure to disturb habitat on a regular Washington State. types. This has facilitated invasion by basis to maintain the vegetation We have also revised the list of nonnative grasses and woody structure needed by streaked horned agricultural activities that are exempt vegetation, including noxious weeds, larks would not be a violation of section from the take prohibitions under section rendering habitat unsuitable for streaked 9 of the Act. If recovery of the streaked 9 of the Act based on feedback from horned larks. horned lark requires the availability of agricultural interests. We are aligning Habitat management to maintain low- agricultural lands in the Willamette the definition of ‘‘normal farming statured vegetation is essential to Valley, and we believe it does, then we practices’’ and ‘‘normal transportation maintaining suitable nesting, wintering, need to give landowners reasons and activities’’ to be consistent with relevant and foraging habitat for streaked horned incentives to manage their lands in Oregon state laws (ORS § 30.930 and larks. Although streaked horned larks ways that allow larks to thrive on those § 30.931, respectively). We have also are known to eat the seeds of weedy lands. amended the list of covered activities to forbs and grasses, and while improperly While it appears that streaked horned address specific agricultural practices in timed actions can destroy nests and larks may be benefiting from the Willamette Valley that may affect young, removal of noxious weeds agricultural practices in the Willamette the streaked horned lark. Based on wherever they may occur will help to Valley, much remains to be learned feedback from agricultural interests, we maintain the low-statured vegetation about the effects of agricultural deleted several activities from the 4(d) required by nesting and wintering larks. activities on the streaked horned lark. special rule (i.e., routine management Targeted plants include those on We have concluded that developing a and maintenance of stock ponds and County, State, and Federal noxious conservation partnership with the berms to maintain livestock water weed lists (see State and Federal lists agricultural community will allow us to supplies; routine maintenance or via links at http://plants.usda.gov/java/ answer important questions about the construction of fences for grazing noxiousDriver; Washington State impact of various agricultural practices, management; placement of mineral counties each have a noxious weed and will provide valuable information supplements; and irrigation of control Web site, and selected Oregon to assist in the recovery of the agricultural crops, fields, and livestock State counties maintain noxious weed subspecies. We further believe that, pastures) and added others (i.e., hazing lists). By their nature, noxious weeds where consistent with the discretion of geese and predators; and maintenance grow aggressively and multiply quickly, provided by the Act, implementing of irrigation and drainage systems). negatively affecting all types of habitats, policies that promote such partnerships Please see the Summary of Changes including those used by larks. Some is an essential component for the from the Proposed Rule section of this species of noxious weeds spread across recovery of listed species, particularly document for a complete list of changes long distances through wind, water, and where species occur on private lands. to the 4(d) special rule between the animals, as well as via humans and Conservation partnerships can provide proposed and final rule stages. vehicles, thereby affecting habitats far positive incentives to private We believe that a 4(d) rule for away from the source plants. landowners to voluntarily conserve agricultural lands in the Willamette Section 9 of the Act provides general natural resources, and can remove or Valley is necessary and advisable to prohibitions on activities that would reduce disincentives to conservation provide for the conservation of streaked result in take of a threatened species; (Knight 1999, p. 224; Brook at al. 2003, horned lark. We therefore exempt take however, the Service recognizes that p. 1644; Sorice et al. 2011, p. 594). The of streaked horned larks resulting from removal of noxious weeds, even those Service will work closely with the normal farming activities, which are with the potential to inadvertently take farming community in the Willamette specified below in the Regulation individual streaked horned larks, is Valley to develop ways to monitor Promulgation section, under section 9 of necessary and may in part provide for impacts on streaked horned larks from the Act. the long-term conservation needs of the routine agricultural activities. We Noxious Weed Control on Non- streaked horned lark. The Service conclude that this commitment is Federal Lands. Based on public recognizes that in the long term, it is a necessary and appropriate, and will comments, we are adding noxious weed benefit to streaked horned lark to provide further insights into land control activities on non-federal lands to remove noxious weeds wherever they stewardship practices that foster the the list of activities in the 4(d) special may occur. We believe this special rule continued use of the Willamette Valley rule that are exempt from take under will further the conservation of the farm land in ways beneficial to both section 9 of the Act. species by helping to prevent spread of streaked horned larks and the Streaked horned larks nest, forage, those noxious weeds that may render agricultural community. and winter on extensive areas of bare habitat unsuitable for the streaked In response to public comments ground with low-statured vegetation. horned lark, and by encouraging received on the proposed rule, we have These areas include native prairies, landowners to manage their lands in revised the 4(d) special rule for the coastal dunes, fallow and active ways that meet their property

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES 61502 Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations

management needs as well as helping to Required Determinations List of Subjects in 50 CFR Part 17 prevent degradation or loss of suitable National Environmental Policy Act Endangered and threatened species, habitat for the streaked horned lark. We Exports, Imports, Reporting and therefore exempt take of the streaked We have determined that recordkeeping requirements, horned lark under section 9 of the Act environmental assessments and Transportation. resulting from routine removal or other environmental impact statements, as Regulation Promulgation management of noxious weeds, as defined under the authority of the described under the Regulation National Environmental Policy Act Accordingly, we amend part 17, Promulgation section, below. (NEPA; 42 U.S.C. 4321 et seq.), need not subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows: Provisions of the Special Rule be prepared in connection with listing a species as an endangered or PART 17—[AMENDED] We determine that issuance of this threatened species under the special rule is necessary and advisable Endangered Species Act. We published ■ 1. The authority citation for part 17 to provide for the conservation of the a notice outlining our reasons for this continues to read as follows: streaked horned lark. We believe the determination in the Federal Register Authority: 16 U.S.C. 1361–1407; 1531– actions and activities discussed above, on October 25, 1983 (48 FR 49244). 1544; 4201–4245, unless otherwise noted. while they may cause some level of References Cited harm to or disturbance of the streaked ■ 2. Amend § 17.11(h), the List of horned lark, create and improve habitat A complete list of all references cited Endangered and Threatened Wildlife, as for the subspecies, and are important in this rule is available on the Internet follows: ■ a. By adding an entry for ‘‘Lark, elements in the subspecies’ at http://www.regulations.gov at Docket streaked horned’’ in alphabetical order conservation and recovery efforts. No. FWS–R1–ES–2012–0080 or upon under BIRDS; and Exempted activities include existing request from the Field Supervisor, ■ b. By adding an entry for ‘‘Butterfly, routine airport practices as outlined Washington Fish and Wildlife Office above by non-Federal entities on Taylor’s checkerspot’’ in alphabetical (see ADDRESSES). order under INSECTS. existing airports, agricultural activities, The additions read as follows: and control of noxious weeds on non- Authors Federal lands. The primary authors of this document § 17.11 Endangered and threatened wildlife. are staff of the Washington and Oregon Fish and Wildlife Offices. * * * * * (h) * * *

Species Vertebrate population where Critical Special Historic range endangered or Status When listed habitat rules Common name Scientific name threatened

******* BIRDS

******* Lark, streaked Eremophila alpestris U.S.A. (WA, OR), Entire ...... T 824 17.95(b) 17.41(a) horned. strigata. Canada (BC).

******* INSECTS

******* Butterfly, Taylor’s Euphydryas editha U.S.A. (WA, OR), NA ...... E 824 17.95(i) NA checkerspot. taylori. Canada (BC).

*******

■ 3. Amend § 17.41 by adding paragraph (2) What activities are prohibited? (ii) Hazardous wildlife is defined by (a) to read as follows: Except as noted in paragraphs (a)(3), (4), the Federal Aviation Administration as and (5) of this section, all prohibitions species of wildlife, including feral § 17.41 Special rules—birds. of § 17.31 apply to the streaked horned animals and domesticated animals not (a) Streaked horned lark (Eremophila lark. under control, that are associated with alpestris strigata). (1) Which (3) What activities are allowed on aircraft strike problems, are capable of populations of the streaked horned lark airports on non-Federal lands? (i) causing structural damage to airport are covered by this special rule? The Incidental take of the streaked horned facilities, or act as attractants to other components of this special rule that lark will not be a violation of section 9 wildlife that pose a strike hazard. apply to airport management and of the Act, if the incidental take results Routine management activities include, noxious weed control cover the from routine management activities but are not limited to, the following: rangewide distribution of this bird; the associated with airport operations to agricultural component applies only to minimize hazardous wildlife, consistent (A) Routine management, repair, and the Willamette Valley in Oregon. with regulations at 14 CFR 139.337. maintenance of roads and runways

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 192 / Thursday, October 3, 2013 / Rules and Regulations 61503

(does not include upgrades or poultry products, vermiculture (C) Livestock grazing according to construction of new roads or runways); products, or the propagation and raising normally acceptable and established (B) Control and management of of nursery stock. levels; vegetation (grass, weeds, shrubs, and (ii) For the purposes of this special (D) Hazing of geese or predators; and trees) through mowing, discing, rule, an agricultural (farming) practice (E) Maintenance of irrigation and herbicide application, or burning; means a mode of operation on a farm drainage systems. (C) Hazing of hazardous wildlife; and that: (5) What noxious weed control (D) Habitat modification and (A) Is or may be used on a farm of a activities are allowed on non-Federal management of sources of forage, water, similar nature; lands? Incidental take of streaked and shelter to reduce the attractiveness (B) Is a generally accepted, horned lark will not be a violation of of the area around the airport for reasonable, and prudent method for the section 9 of the Act, if the incidental hazardous wildlife. operation of the farm to obtain a profit take results from routine removal or (iii) Incidental take of larks caused by in money; other management of noxious weeds. accidental aircraft strikes at airports on (C) Is or may become a generally Routine removal or other management non-Federal lands is also exempted accepted, reasonable, and prudent of noxious weeds are limited to the from the prohibitions of section 9 of the method in conjunction with farm use; following, and must be conducted in Act. (D) Complies with applicable State such a way that impacts to non-target (4) What agricultural activities are laws; and plants are avoided to the maximum allowed on non-Federal land in the (E) Is done in a reasonable and extent practicable: Willamette Valley in Oregon? Incidental prudent manner. (i) Mowing; take of streaked horned lark will not be (iii) Accepted agricultural (farming) (ii) Herbicide and fungicide a violation of section 9 of the Act, if the practices include, but are not limited to, application; incidental take results from accepted the following activities: (iii) Fumigation; and agricultural (farming) practices (A) Planting, harvesting, rotation, (iv) Burning. implemented on farms consistent with mowing, tilling, discing, burning, and * * * * * State laws on non-Federal lands. herbicide application to crops; (i) For the purposes of this special (B) Normal transportation activities, Dated: September 17, 2013. rule, farm means any facility, including and repair and maintenance of Rowan W. Gould, land, buildings, watercourses and unimproved farm roads (this exemption Acting Director, U.S. Fish and Wildlife appurtenances, used in the commercial does not include improvement or Service. production of crops, nursery stock, construction of new roads) and graveled [FR Doc. 2013–23567 Filed 10–2–13; 8:45 am] livestock, poultry, livestock products, margins of rural roads; BILLING CODE 4310–55–P

VerDate Mar<15>2010 17:17 Oct 02, 2013 Jkt 232001 PO 00000 Frm 00053 Fmt 4701 Sfmt 9990 E:\FR\FM\03OCR2.SGM 03OCR2 sroberts on DSK5SPTVN1PROD with RULES