Tuesday, August 26, 2008 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 Bay Checkerspot Butterfly (Euphydryas editha bayensis); Final Rule VerDate Aug<31>2005 18:13 Aug 25, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 C:\FR\FM\26AUR2.SGM 26AUR2 sroberts on PROD1PC76 with RULES 50406 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations DEPARTMENT OF THE INTERIOR butterfly. For additional information on Unit) and distribution, land use the taxonomy, biology, and ecology of designations that may affect critical Fish and Wildlife Service the Bay checkerspot butterfly, refer to habitat, potential economic effects of the the final listing rule and revised proposed designation, benefits 50 CFR Part 17 proposed critical habitat rule published associated with critical habitat [FWS-R8-ES-2008-0034; 92210-1117-0000- in the Federal Register on September designation, areas considered for B4] 18, 1987 (52 FR 35366) and August 22, exclusion, and the inclusion of water 2007 (72 FR 48178), respectively. It is sources as a primary constituent RIN 1018–AV24 our intention to discuss only those element (PCE). topics directly relevant to the revised We also contacted appropriate Endangered and Threatened Wildlife designation of critical habitat in this Federal, State, and local agencies; and Plants; Designation of Critical final rule. scientific organizations; and other Habitat for the Bay Checkerspot interested parties and invited them to Butterfly (Euphydryas editha Previous Federal Actions comment on the revised proposed rule bayensis) On April 30, 2001 (66 FR 21450), we and the associated DEA. The comment AGENCY: Fish and Wildlife Service, published a final rule designating period for the revised proposed rule Interior. approximately 23,903 ac (9,673 ha) of opened on August 22, 2007, and closed critical habitat for the Bay checkerspot ACTION: Final rule. on October 22, 2007. During the butterfly in San Mateo and Santa Clara comment period for the revised SUMMARY: We, the U.S. Fish and Counties, California. On March 30, proposed rule, we received eight Wildlife Service (Service), are 2005, the Home Builders Association of comment letters on the proposed designating revised critical habitat for Northern California filed suit against the revised critical habitat designation and the Bay checkerspot butterfly Service challenging critical habitat for DEA: three from peer reviewers, two (Euphydryas editha bayensis) under the the Bay checkerspot butterfly and other from local governments, and three from Endangered Species Act of 1973, as species (Home Builders Association of organizations or individuals. We amended (Act). In total, approximately Northern California v. U.S. Fish and received no comments from State or 18,293 acres (ac) (7,403 hectares (ha)) Wildlife Service cv-01363-LKK-JFM.). Federal agencies. The comment period fall within the boundaries of the revised On February 24, 2006, a settlement for the DEA opened on April 15, 2008, critical habitat designation for the Bay agreement was reached that requires the and closed on May 15, 2008. We checkerspot butterfly. The revision to Service to reevaluate the final critical received two comment letters and no critical habitat is located in San Mateo habitat rule in light of the standards for requests for public hearings. and Santa Clara Counties, California. designating critical habitat set forth in Comments and new information This final revised designation therefore Home Builders Association of Northern received in response to the revised constitutes a reduction of 1,453 ac (588 California v. U.S. Fish and Wildlife proposed rule that were relevant to the ha) from our 19,746 ac (7,990 ha) Service, 268 F. Supp. 2d 1197 (E.D. Cal final designation were incorporated in proposed revised designation of critical 2002) and any applicable law. In the final rule as appropriate and are habitat for the Bay checkerspot butterfly addition, the settlement stipulated that summarized below. published on August 22, 2007. a revised proposed rule be submitted for publication on or before August 14, Peer Review DATES: This rule becomes effective on 2007, and a final revised rule be In accordance with our policy September 25, 2008. submitted for publication on or before published on July 1, 1994 (59 FR ADDRESSES: The final rule, final August 14, 2008. This final designation 34270), we solicited expert opinions economic analysis, and map of critical is being completed and published in the from seven knowledgeable individuals habitat will be available on the Internet Federal Register in compliance with with scientific expertise that included at http://www.regulations.gov and that settlement agreement. On August familiarity with the species, the http://www.fws.gov/sacramento. 22, 2007 (72 FR 48178), we published a geographic region in which the species Comments and materials received, as revised proposed rule to designate occurs, and conservation biology well as supporting documentation used approximately 19,746 ac (7,990 ha) in principles. We received responses from in the preparation of this final rule, are San Mateo and Santa Clara Counties, three of the peer reviewers. The peer available for public inspection, by California. On April 15, 2008 (73 FR reviewers were generally supportive of appointment, during normal business 20237), we published a draft economic the designation of critical habitat. hours, at the Sacramento Fish and analysis (DEA) for the proposed rule to We reviewed all comments received Wildlife Office, 2800 Cottage Way, Suite revise critical habitat. from the peer reviewers and the public W-2605, Sacramento, CA 95825; for substantive issues and new Summary of Comments and telephone 916-414-6600. information regarding critical habitat for Recommendations FOR FURTHER INFORMATION CONTACT: the Bay checkerspot butterfly. All Field Supervisor, Sacramento Fish and We requested written comments from comments received were grouped into Wildlife Office, 2800 Cottage Way, the public on the proposed rule to revise general issue categories relating to the Room W-2605, Sacramento, CA 95825; critical habitat for the Bay checkerspot proposed rule to revise critical habitat telephone 916-414-6600; facsimile 916- butterfly and the associated DEA. for the Bay checkerspot butterfly and are 414-6712. If you use a During the comment period, we addressed in the following summary telecommunications device for the deaf requested all interested parties to and incorporated into this final revised (TDD), call the Federal Information submit comments or information related rule as appropriate. Relay Service (FIRS) at 800-877-8339. to the proposed revision to the critical Peer Reviewer Comments SUPPLEMENTARY INFORMATION: habitat designation, including, but not limited to, the following: information In general, all three peer reviewers Background regarding dispersal areas, species supported the revised critical habitat This final rule addresses revised occurrence information (specifically designation. However, two peer critical habitat for the Bay checkerspot recent occupancy of the Pulgas Ridge reviewers questioned whether some VerDate Aug<31>2005 18:13 Aug 25, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 C:\FR\FM\26AUR2.SGM 26AUR2 sroberts on PROD1PC76 with RULES Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50407 units were ‘‘critical.’’ One peer reviewer considered when evaluating habitat and 2008) into this final rule. Please see stated that the background information quality for the Bay checkerspot the ‘‘Special Management was comprehensive and reflected the butterfly. Considerations or Protections’’ section decade’s worth of research on the A third peer reviewer stated the need below for more information. butterfly and that the accounts on for aquatic features is too strong and Comment 6: One peer reviewer nitrogen deposition and topographic that the Bay checkerspot butterfly will provided the following comments effects are good summaries. One peer use water when needed and available regarding potential adverse modification reviewer felt that using both currently during drought years. of critical habitat: (1) Small scale occupied and historically occupied Our Response: Based on the above disturbances in serpentine grasslands habitats was a good inclusive decision comments from peer reviewers, the generally do not pose a risk to Bay and effectively covered any remaining Service has removed aquatic features as checkerspot butterfly populations; (2) suitable habitat. Individual peer a PCE in this final rule. For more the section regarding short-term comments are listed below. information, see the ‘‘Primary mortality from grazing and fire should Comment 1: One peer review Constituent Elements’’ section of this be clarified to state that the negative suggested that the designation of final rule. Because all of the units effects of fire and grazing are ‘‘primary’’ and ‘‘secondary’’ host plants designated contain all of the remaining significantly outweighed by the positive implies that eggs are always laid on PCEs identified in the proposed rule, benefit to the Bay checkerspot butterfly; Plantago erecta. The reviewer indicated the removal of aquatic features as a PCE (3) removal of grazing provides one of that their work on the Bay checkerspot did not affect the overall designation of the biggest threats to the subspecies;