Tuesday, October 31, 2006 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Fender’s blue butterfly (Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid’s lupine), and Erigeron decumbens var. decumbens (Willamette daisy); Final Rule VerDate Aug<31>2005 20:08 Oct 30, 2006 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\31OCR2.SGM 31OCR2 rwilkins on PROD1PC63 with RULES_2 63862 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Rules and Regulations DEPARTMENT OF THE INTERIOR Role of Critical Habitat in Actual future consultations that analyze Practice of Administering and impacts to designated critical habitat, Fish and Wildlife Service Implementing the Act particularly those that appear to be Attention to and protection of habitat resulting in an adverse modification 50 CFR Part 17 is paramount to successful conservation determination. Such consultations will actions. The role that designation of be reviewed by the Regional Office prior RIN 1018–AT91 critical habitat plays in protecting to finalizing to ensure that an adequate habitat of listed species, however, is analysis has been conducted that is Endangered and Threatened Wildlife often misunderstood. As discussed in informed by the Director’s guidance. On the other hand, to the extent that and Plants; Designation of Critical more detail below in the discussion of designation of critical habitat provides Habitat for the Fender’s blue butterfly exclusions under ESA section 4(b)(2), protection, that protection can come at (Icaricia icarioides fenderi), Lupinus there are significant limitations on the significant social and economic cost. In sulphureus ssp. kincaidii (Kincaid’s regulatory effect of critical habitat addition, the mere administrative lupine), and Erigeron decumbens var. designation under ESA section 7(a)(2). decumbens (Willamette daisy) process of designating critical habitat is In brief, (1) designation provides expensive, time-consuming, and additional protection to habitat only AGENCY: Fish and Wildlife Service, controversial. The current statutory where there is a Federal nexus; (2) the Interior. framework of critical habitat, combined protection is relevant only when, in the with past judicial interpretations of the ACTION: Final rule. absence of designation, destruction or statute, make critical habitat the subject adverse modification of the critical of excessive litigation. As a result, SUMMARY: We, the U.S. Fish and habitat would in fact take place (in other critical habitat designations are driven Wildlife Service (Service), are words, other statutory or regulatory by litigation and courts rather than designating critical habitat for the protections, policies, or other factors biology, and made at a time and under Fender’s blue butterfly (Icaricia relevant to agency decision-making a time frame that limits our ability to icarioides fenderi), Lupinus sulphureus would not prevent the destruction or obtain and evaluate the scientific and ssp. kincaidii (Kincaid’s lupine), and adverse modification); and (3) other information required to make the Erigeron decumbens var. decumbens designation of critical habitat triggers designation most meaningful. (Willamette daisy) pursuant to the the prohibition of destruction or adverse In light of these circumstances, the Endangered Species Act of 1973, as modification of that habitat, but it does Service believes that additional agency amended (Act). Approximately 3,010 not require specific actions to restore or discretion would allow our focus to acres (ac) (1,218 hectares (ha)) for improve habitat. return to those actions that provide the Fender’s blue butterfly in Benton, Lane, As of September 22, 2006, only 475 greatest benefit to the species most in Polk, and Yamhill Counties, Oregon; species, or 36 percent of the 1,310 listed need of protection. 585 ac (237 ha) for L. sulphureus ssp. species in the U.S. under the kincaidii in Benton, Lane, Polk, and jurisdiction of the Service, have Procedural and Resource Difficulties in Yamhill Counties, Oregon, and Lewis designated critical habitat. We address Designating Critical Habitat County, Washington; and 718 ac (291 the habitat needs of all 1,311 listed We have been inundated with ha) for E. decumbens var. decumbens in species through conservation lawsuits for our failure to designate Benton, Lane, Linn, Marion, and Polk mechanisms such as listing, section 7 critical habitat, and we face a growing Counties, Oregon, fall within the consultations, the Section 4 recovery number of lawsuits challenging critical boundaries of the critical habitat planning process, the Section 9 habitat determinations once they are designation. protective prohibitions of unauthorized made. These lawsuits have subjected the take, Section 6 funding to the States, the Service to an ever-increasing series of DATES: This rule becomes effective on Section 10 incidental take permit court orders and court-approved November 30, 2006. process, and cooperative, nonregulatory settlement agreements, compliance with ADDRESSES: Comments and materials efforts with private landowners. The which now consumes nearly the entire received, as well as supporting Service believes that it is these measures listing program budget. This leaves the documentation used in the preparation that may make the difference between Service with little ability to prioritize its of this final rule, will be available for extinction and survival for many activities to direct scarce listing public inspection, by appointment, species. resources to the listing program actions during normal business hours, at the In considering exclusions of areas with the most biologically urgent U.S. Fish and Wildlife Service, Portland originally proposed for designation, we species conservation needs. Fish and Wildlife Office, 2600 SE 98th evaluated the benefits of designation in The consequence of the critical Ave., Suite 100, Portland, OR 97266 light of Gifford Pinchot Task Force v. habitat litigation activity is that limited (telephone (503) 231–6179). The final United States Fish and Wildlife Service. listing funds are used to defend active rule, economic analysis, and map will In that case, the Ninth Circuit lawsuits, to respond to Notices of Intent also be available via the Internet at invalidated the Service’s regulation (NOIs) to sue relative to critical habitat, http://www.fws.gov/oregonfwo/Species/ defining ‘‘destruction or adverse and to comply with the growing number ESA-Actions/WillValleyPage.asp. modification of critical habitat.’’ In of adverse court orders. As a result, response, on December 9, 2004, the listing petition responses, the Service’s FOR FURTHER INFORMATION CONTACT: Director issued guidance to be own proposals to list critically Kemper McMaster, Field Supervisor, considered in making section 7 adverse imperiled species, and final listing U.S. Fish and Wildlife Service, Portland modification determinations. This determinations on existing proposals are Fish and Wildlife Office, 2600 SE 98th critical habitat designation does not use all significantly delayed. Ave., Suite 100, Portland, OR 97266 the invalidated regulation in our The accelerated schedules of court- (telephone 503/231–6179; facsimile consideration of the benefits of ordered designations have left the 503/231–6195). including areas in this final designation. Service with limited ability to provide SUPPLEMENTARY INFORMATION: The Service will carefully manage for public participation or to ensure a VerDate Aug<31>2005 20:08 Oct 30, 2006 Jkt 211001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\31OCR2.SGM 31OCR2 rwilkins on PROD1PC63 with RULES_2 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Rules and Regulations 63863 defect-free rulemaking process before boundaries of some remnant prairie 1998b, pp. 2–7; Kaye in litt.a, p. 2). making decisions on listing and critical locations. Many of these associated species are habitat proposals, due to the risks Various descriptions of prairie considered indicators for upland prairie associated with noncompliance with habitats have been published over the habitat (Schultz et al. 2003, p. 65; judicially imposed deadlines. This in years and they usually vary in their Wilson et al. 2003, p. 79). turn fosters a second round of litigation division of communities and the The Fender’s blue butterfly habitat in which those who fear adverse dominant species present in each requirements include a larval host plant impacts from critical habitat community (Jackson 1996, p. 2). We (i.e., Lupinus sulphureus ssp. kincaidii, designations challenge those describe two habitat types, wet prairie L. arbustus (spurred lupine), and L. designations. The cycle of litigation and upland prairie, and define these by albicaulis (sickle-keeled lupine), native appears endless, and is very expensive, describing the plant communities forbs for adult nectar sources, and thus diverting resources from reported co-occurring with the Fender’s native grasses that comprise short-grass conservation actions that may provide blue butterfly, Lupinus sulphureus ssp. upland prairies (Wilson et al. 1997, p. relatively more benefit to imperiled kincaidii, and Erigeron decumbens var. 3; Schultz 2001, p. 1008). These species. decumbens. requirements are considered essential to The costs resulting from the Upland prairie (including oak the survival and conservation of these designation include