Federal Register: Part II [50 CFR Part 17]

DEPARTMENT OF THE INTERIOR

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AI74

NOTICE: Part II

DOCUMENT ACTION: Final rule

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Arabis perstellata (Braun's Rock-cress)

DATES: This rule becomes effective on July 6, 2004.

DOCUMENT SUMMARY: We, the Fish and Wildlife Service (Service), designate critical habitat for Arabis perstellata (Braun's rockcress) pursuant to the Endangered Species Act of 1973, as amended (Act). This endangered species is restricted to two counties (Rutherford and Wilson) in Tennessee and three counties (Franklin, Owen, and Henry) in Kentucky. We are designating 22 specific geographic areas (units) in Kentucky (17 units) and Tennessee (5 units) as critical habitat for Arabis perstellata. These units encompass approximately 648 hectares (ha) (1,600 acres (ac)) of upland habitat. Kentucky has approximately 328 ha (810 ac) and Tennessee has approximately 320 ha (790 ac) designated as critical habitat for Arabis perstellata.

In the development of this final rule, we solicited and considered data and comments from the public on all aspects of this designation, including data on economic and other impacts of the designation. This publication also provides notice of the availability of the final economic analysis for this designation.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, ``Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.'' Currently, only 36 percent (445 species) of the 1,244 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes it is these measures that may make the difference between extinction and survival for many species. Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defectfree rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judiciallyimposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

Arabis perstellata (Braun's rockcress) is a perennial herb of the mustard
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family (Brassicaceae). It was originally described by E. Lucy Braun (1940) from specimens collected between 1936 and 1939 in Franklin County, Kentucky (see the proposed rule at 69 FR 4274, January 9, 2004, for complete information on characteristics, life history, and forest associates). While the final rule for the determination of endangered status for this species recognized the two varieties, these two varieties are no longer recognized by the scientific community. Consequently, we will treat the plants that occur in both
geographically separated areas as one species (Arabis perstellata) for the purpose of designating critical habitat.

Two nonnative species (Alliaria petiolata (European garlic mustard) and Lonicera maackii (amur honeysuckle) compete directly with Arabis perstellata for areas of natural disturbance once it has become established in a forest. Management schemes for the control of these species are being tested, but these nonnative plant species continue to spread into natural areas. The presence of these species and competition for available habitat and resources poses a severe threat to Arabis perstellata. Native plant species may also be an invasive threat to Arabis perstellata, particularly Toxicodendron radicans (poison ivy), Parthenocissus quinquefolia (Virginia creeper), and Galium aparine (bedstraw or cleavers). These species may spread rapidly in response to habitat changes and compete with Arabis perstellata (D. Lincicome, pers. comm. 2004).

Arabis perstellata is never a common component of the ground flora. It usually occurs in small groups (especially around rock outcrops) or as scattered individuals. The small size of the populations, the species' specialized habitat, and its apparent inability to expand into available or similar habitats suggests that it is a poor competitor. This inability to compete has likely limited its distribution and abundance. This species cannot withstand vigorous competition from invasive weeds or even native herbaceous species.

Arabis perstellata occurs on slopes composed of calcium carbonate, calcium, or limestone in moderately moist to almost dry forests (see proposed rule 69 FR 4274 for further information on habitat requirements). The soils at Arabis perstellata sites are limestone derived, and a rock outcrop component is usually present in the soil complex (see proposed rule, 69 FR 4274, for more information on soil requirements). Arabis perstellata is presently known from 42 populations in two separate sections of the Interior Low Plateaus Physiographic Provincethe Blue Grass Section (Kentucky) and the Central Basin Section (Tennessee). Both areas where this species is found are predominantly underlain by sediments of Ordovician age (510 438 million years ago) (Quarterman and Powell 1978). The Kentucky populations occur in Franklin, Henry, and Owen counties along the Kentucky River and its tributaries (primarily Elkhorn Creek). The Tennessee populations occur in Rutherford and Wilson counties, principally along the Stones River.

Within the Bluegrass Section of the Interior Low Plateaus in Kentucky, the Lexington Limestone Formation is common on the slopes entrenched by the Kentucky River and its major drainages (McDowell 1986). All but one of the Kentucky populations of Arabis perstellata are found on the Grier and Tanglewood members of this formation. The exception is the population in Henry County, Kentucky, occurring on what is mapped as Kope and Clays Ferry members, which have a higher shale component (Service 1997). However, the plants actually occur on limestone outcrops at this site similar to the populations found in the Grier and Tanglewood members.

In Tennessee, Arabis perstellata sites are restricted to the Central Basin Section, which, like the Blue Grass Section, is underlain by Ordovician limestone. The primary rocks of the Arabis perstellata populations in Rutherford and Wilson Counties are Leipers and Catheys Limestone, as well as BigbyCannon Limestone (Wilson 1965, 1966a, 1966b).

The majority of the land containing Arabis perstellata populations is in private ownership. One site (Clements Bluff) in Kentucky is owned by the State and is part of the Kentucky River Wildlife Management Area. This publicly owned site is under no formal management agreement at this time. One privately owned site, Strohmeiers Hills in Kentucky, is under a management agreement with the Kentucky Natural Heritage Program. Management activities include sediment and noxious weed control. The agreement is nonbinding and does not restrict the property owner's activities or property rights. Thus, the only protection granted by the management agreement is habitat enhancement.

The primary threats to this species are alteration or loss of habitat through development (primarily home and road construction), competition with native and exotic weedy species, grazing and trampling, and timber harvesting. Arabis perstellata is vulnerable to extinction because of its very small range, low abundance, and declining number of populations. Thirtyseven extant populations are known from Kentucky and six in Tennessee. The full range of this species in Kentucky is an approximately 518squarekilometer (200 squaremile) area, with six disjunct populations in Tennessee. This narrow range makes the species vulnerable to potential catastrophic phenomena, such as disease, extreme weather, and insect infestations. Also, population levels are declining (Deborah White, KSNPC, pers. comm. 2003). Eight sites previously known in Kentucky were found to be extirpated during 1996 (KSNPC 1996a). Four previously known populations in Tennessee are presumed extirpated (Jones 1991; Tennessee Department of Environment and Conservation 2000).

Previous Federal Action

Federal Government actions on this species began with passage of section 12 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). On January 3, 1995, (60 FR 56), we published our final rule to list Arabis perstellata as endangered. Please refer to the final listing rule for a complete description of Federal actions concerning this species between the inception of the Act and publication of the final listing determination. In the final rule, we found that a critical habitat designation was not prudent.

On July 22, 1997, we finalized the Arabis perstellata Recovery Plan (Service 1997). The recovery plan established the criteria that must be met prior to the delisting of Arabis perstellata. The recovery plan also identified the actions that are needed to assist in the recovery of Arabis perstellata.

On October 12, 2000, the Southern Appalachian Biodiversity Project filed suit against us, challenging our not prudent critical habitat determinations for Arabis perstellata and 15 other federally listed species (Southern Appalachian Biodiversity Project v. U.S. Fish and Wildlife Service, Babbitt, & Clark (CN 2:00CV361 (E.D. TN))). On November 8, 2001, the District Court of the Eastern District of Tennessee issued an order directing us to reconsider our previous prudency determinations and submit a new prudency determination and, if appropriate, proposed critical habitat designation for Arabis perstellata to the Federal Register no later than May 26, 2003, and a final decision not less than 12 months after the new prudency determination.

On June 3, 2003, we published a proposed rule in the Federal Register (68 FR 33058) which included a finding that critical habitat designation was prudent for Arabis perstellata. We
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proposed 20 specific geographic areas (units) in Kentucky (17 units) and Tennessee (3 units) as critical habitat for Arabis perstellata. These units encompassed approximately 408 ha (1,008 ac). Kentucky had approximately 328 ha (810 ac) and Tennessee had approximately 80 ha (198 ac) proposed. During the comment period, which ended on August 4, 2003, we received comments from the Tennessee Division of Natural Heritage (TDNH) providing new information regarding the Tennessee populations of Arabis perstellata. During a survey conducted by TDNH staff in the spring and early summer of 2003, the distribution of Arabis perstellata was found to be more widespread at the three extant populations (Units 18, 19, and 20) and two new populations were documented (Grandfather Mountain and Versailles Knob). As a result of this information, we revised our critical habitat designation in Tennessee to include the additional areas. A revised proposed rule was published in the Federal Register (69 FR 4274) on January 29, 2004. In this supplemental proposed rule, we increased the designated critical habitat acreage in Tennessee from 80 ha (198 ac) to 320 ha (790 ac). We accepted public comments on the revised proposed rule and the revised draft economic analysis until March 1, 2004.

Summary of Comments and Recommendations

In the June 3, 2003, proposed rule and notice of document availability (68 FR 33058), we requested that all interested parties submit comments or information concerning the designation of critical habitat and/or the draft economic analysis for Arabis perstellata. We contacted appropriate Federal, State, and local agencies, county government, elected officials, scientific organizations, and other interested parties and invited them to comment on the proposed critical habitat for Arabis perstellata. We provided notification of these documents through email, telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, and interest groups. We sent press releases to the following newspapers on March 29, 2004: The Tennessean, Nashville, Tennessee; State Journal, Frankfort, Kentucky; The Daily News Journal, Murfreesboro, Tennessee; and the Owenton News Herald, Owenton, Kentucky. We posted copies of the proposed critical habitat and draft economic analysis on the Service's Tennessee Field Office Internet site following their release.

Based on substantial new information received during the first public comment period, we revised the proposed critical habitat in Tennessee to include two additional areas determined to be essential to the conservation of Arabis perstellata and expand the extent of three additional areas that had been already proposed. These revisions to proposed critical habitat, reopening of comment period, and notice of availability of revised draft economic analysis were published in the Federal Register on January 29, 2004 (69 FR 4274). We requested that all interested parties submit comments or information concerning the revised designation of critical habitat and/or the revised draft economic analysis for Arabis perstellata by March 1, 2004. We again contacted appropriate Federal, State, and local agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment on the revised proposed critical habitat and/or revised draft economic analysis for Arabis perstellata. We also provided notification of these documents through email, telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, and interest groups. We additionally posted the revised proposed rule and economic analysis on the Service's Tennessee Field Office Internet site following their release.

During the first public comment period, we received comments from five parties, which included one Federal agency, two State agencies, one nonprofit agency, and one individual. Of the five parties responding, one supported the proposed designation, three were neutral, and two wanted additional areas added to the critical habitat proposal. None were opposed. Four additional comments were received during the second public comment period. One was from a State agency, two were from nonprofit agencies, and one from an individual. Three supported the proposed designation and one was neutral.

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited independent opinions from four knowledgeable individuals who have expertise with the species, with the geographic region where the species occurs, and/or familiarity with the principles of conservation biology. We received comments from three of the four peer reviewers. These are included in the summary below and incorporated into this final rule.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat and the draft economic analysis. Substantive comments received during the two comment periods have either been addressed below or incorporated directly into this final rule. The comments were grouped according to peer review or public comments. For readers' convenience, we have assigned comments to major issue categories, and we have combined similar comments into single comments and responses. Peer Review Comments
(1) Comment: The Tennessee Department of Environment and Conservation (TDEC) provided additional information concerning four plant species that may invade Arabis perstellata habitat and compete with Arabis perstellata for habitat and resources. These plant species include one additional nonnative plant, Lonicera maackii (amur honeysuckle) and three native plants, Toxicodendron radicans (poison ivy), Parthenocissus quinquefolia (Virginia creeper), and Galium aparine (bedstraw or cleavers).

Our Response: We acknowledge that these additional native and non native plants can invade Arabis perstallata habitat particularly when the habitat is disturbed due to natural or manmade reasons. We have included a discussion of these additional potentially invasive plant species in the Background section of this rule and their potential threat to Arabis perstallata.
(2) Comment: The fourth occurrence of Arabis perstallata in Tennessee at the Shelby Bottoms Greenway site along the Cumberland River in Davidson County has recently been identified and verified as Arabis shortii (Short's rockcress).

Our Response: The Shelby Bottoms Greenway site along the Cumberland River in Davidson County was not included in our initial proposed critical habitat designation on June 3, 2003, (68 FR 33058) because the area where the population occurred did not contain one or more of the primary constituent elements and was not considered to be essential to the conservation of Arabis perstallata. Since this information was received during our first public comment period, we included a discussion of it and its relevance to this designation in our revisions to proposed critical habitat on January 29, 2004, (69 FR 4274). (3) Comment: A survey for Arabis perstallata, unrelated to this critical habitat designation, was conducted in the spring and early summer of 2003 by the TDEC personnel. During this survey, the documented extent of the distribution and abundance of Arabis [[Page 31463]]
perstallata was expanded at three occurrences in Tennessee. Additionally, two new populations of Arabis perstallata were documented in Rutherford and Wilson Counties, Tennessee. As a result of this new information, the critical habitat designation in Tennessee does not include all of the areas essential to the conservation of Arabis perstallata.

Our Response: We acknowledged in the June 3, 2003, proposal (68 FR 33058) that we had received new information from TDEC regarding two new populations of Arabis perstellata, but due to time and budget constraints, we were unable to adequately and formally analyze them for inclusion as proposed critical habitat in that document. We stated that we would conduct the required analysis of these two sites to determine if the areas are essential to the conservation of Arabis perstellata. If the areas were found to be essential, our intent was to include them in the final designation. We found during the original public comment period that all the existing sites in Tennessee had additional unknown plants, and that a new site was also discovered in Rutherford County. Upon receiving this information, we analyzed all five sites (additions to three extant sites plus the two new sites) and determined that they are all essential to the conservation of Arabis perstallata. We then proposed revisions to the original proposed critical habitat designation that included the additional sites that have been documented in Tennessee. These revisions were published in the Federal Register on January 29, 2004 (69 FR 4274), along with the reopening of the comment period (30 days) and the notice of availability of the revised draft economic analysis. We believe that, based on the best available information, we have designated as critical habitat the areas essential to the conservation of Arabis perstallata.
(4) Comment: The Kentucky State Nature Preserves Commission (KSNPC) provided updated information for the site identified as critical habitat Unit 12 and for a new population of Arabis perstallata located geographically between critical habitat Unit 6 and Unit 8 on the west side of the Kentucky River. They believed that this new information should be taken into consideration during the development of the final designation.

Our Response: We greatly appreciate the new information concerning Arabis perstallata provided by KSNPC. Following a review of this information we determined that these areas are not essential to the conservation of the species. The criteria used for selecting essential sites can be found in the June 3, 2003, proposed designation of critical habitat for Arabis perstallata (please refer to the Critical Habitat section of the proposed rule (68 FR 33058) and this final rule), but generally included a combination of the recovery plan objectives and criteria, and the four primary constituent elements. According to the recovery plan, Arabis perstellata will be considered for delisting when 20 geographically distinct, selfsustaining populations, consisting of 50 or more plants each, are protected in Kentucky and Tennessee, and it has been demonstrated that the populations are stable or increasing after five years of monitoring following reclassification to threatened status. At this time, we believe the areas we have designated as critical habitat in Kentucky and Tennessee are adequate to provide for the conservation of the species.
Public Comments
(5) Comment: The Natural Resources Conservation Service (NRCS) in Tennessee addressed the issue of whether the proposed critical habitat would impact the Wildlife Habitat Incentives Program and/or the Environmental Quality Incentives Program that they administer. Based on the allowable practices under each program and the type of habitat (i.e., steep, rocky terrain) proposed as critical habitat for Arabis perstellata, NRCS projected very few informal consultations under section 7 of the Act would be required as a result of the designation of critical habitat. They further indicated that they should not experience a significant economic impact as a result of the designation.

Our Response: We concur with NRCS's findings that the critical habitat designation in Tennessee would result in few, if any, section 7 consultations on the Wildlife Habitat Incentives and/or the Environmental Quality Incentives Programs. We also do not believe NRCS would experience a significant economic impact from the designation of critical habitat in Tennessee. This assertion is further supported by the information contained within our economic analysis of the designation of critical habitat for Arabis perstallata.
(6) Comment: One commenter asked whether we just designated everything as critical without an analysis of how much habitat an evolutionarily significant unit needs.

Our Response: In section 3(5)(A) of the Act, critical habitat is defined as ``(i) the specific areas within the geographical area occupied by the species * * * on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside of the geographical area occupied by the species * * * [that] are essential to the conservation of the species''. Pursuant to the Act and our implementing regulations, we must determine whether the designation of critical habitat for a given species is prudent and determinable. If it is both, then we conduct a focused analysis to determine and delineate the specific areas, within the geographical area occupied by the species, that contain the physical and biological features essential to the conservation of the species. Once these areas are defined, a determination is then made as to whether additional specific areas outside of the geographical area occupied by the species are required for the conservation of the species. In conducting our analyses, we use the best available scientific and commercial data available. Our analyses take into consideration specific parameters including (1) space for individual and population growth and normal behavior; (2) food, water, air, light, minerals or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproductions, rearing of offspring, germination or seed dispersal; and (5) habitats that are protected from disturbance or are representative of the historical or ecological distribution of the species (50 CFR 424.12(b)). Consequently, we do take into consideration all available information concerning a species, its habitat, ecology, and threats and conduct an analysis to determine which specific areas are essential to its conservation. This final designation of critical habitat for Arabis perstellata has been developed using the approach discussed above and constitutes our best assessment of the areas essential to its conservation.

Further, the phrase, ``evolutionarily significant unit'' is used by the National Marine Fisheries to distinguish distinct populations or evolutionary segments of anadromous salmon species. It reflects that authority under the Act to consider distinct population segments of vertebrate species for addition to the lists of threatened and endangered species. However, the Act only allows listing of plants at the species and subspecies level, so the ``evolutionarily significant unit'' concept cannot be applied to federally listed plant species under our jurisdiction.
(7) Comment: The proposed rule to designate critical habitat for Arabis
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perstellata did not discuss the extent of private lands encompassed within the boundaries of the proposal.

Our Response: On page 33064 of our proposed rule (June 3, 2003, 68 FR 33058) we have included a table, Table 1Approximate Area (Hectares and Acres) of Proposed Critical Habitat by Unit for Arabis perstellata, that clearly identifies the extent of private land in the proposal by critical habitat unit. This table is similarly included in this final rule and has been updated to incorporate the revisions to critical habitat identified in our January 29, 2004, notice (69 FR 4274). Additionally, in the June 3, 2003, proposed critical habitat rule, the January 29, 2004, notice, and this final rule, landownership is discussed in the textual descriptions for each critical habitat unit under the section titled ``Critical Habitat Unit Descriptions''. (8) Comment: The agency's approach to critical habitat must be improved by banning hunting, trapping, grazing, logging, mining, snowmobile use, ATV (all terrain vehicles) use, and Jet Ski use in these areas immediately. Such uses cause pollution and are anti environmental and must be banned to preserve endangered plants and animals.

Our Response: Activities such as mining, snowmobile use, and Jet Ski use are not known to occur in areas being designated as critical habitat for Arabis perstellata since the proper landscape and/or use areas for such activities do not exist within any of the critical habitat units. Additionally, activities such as hunting, trapping, and ATV use are unlikely to occur in areas being designated as critical habitat for Arabis perstellata due to the steep, rocky slopes this plant occupies. We have no records of any adverse impact to Arabis perstellata or its habitat from these three uses. We acknowledged in the June 3, 2003, proposed critical habitat rule that grazing and timber harvesting (logging) are potential threats to the species. This critical habitat designation will serve to control those potential threats only to the extent that they are part of a Federal action subject to a consultation under section 7 of the Act. We are committed to working with the private and public landowners regarding the conservation of Arabis perstellata and the need to protect the species and its habitat.
(9) Comment: One commenter stated the belief that the text in the sections, Designation of Critical Habitat Provides Little Additional Protection to Species, Role of Critical Habitat in Actual Practice of Administering and Implementing the Act, and Procedural and Resource Difficulties in Designating Critical Habitat, of the proposed rule is factually inaccurate on three specific topics: (1) That critical habitat provides little additional protection to species, (2) that there are insufficient budgetary resources and time to designate critical habitat for listed species, and (3) that the statement, ``these measures * * * may make the difference between extinction and survival for many species'' applies a standard of survival which is different than the standard of conservation that is mandated by the Act.

Our Response: While we understand and appreciate the concerns raised by the commenter, we respectfully disagree.

As discussed in the sections, Designation of Critical Habitat Provides Little Additional Protection to Species, Role of Critical Habitat in Actual Practice of Administering and Implementing the Act, and Procedural and Resource Difficulties in Designating Critical Habitat and other sections of this and other critical habitat designations, we believe that, in most cases, conservation mechanisms provided through section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative programs with private and public landholders and tribal nations provide greater incentives and conservation benefits than does the designation of critical habitat.

As iterated in the sections, Designation of Critical Habitat Provides Little Additional Protection to Species, Role of Critical Habitat in Actual Practice of Administering and Implementing the Act, and Procedural and Resource Difficulties in Designating Critical Habitat, we have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize our activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs. As an example, in FY 2003, the Service estimated that there was a gap of $1,995,757 between our FY 2003 appropriation and the total cost of complying with court orders and settlement agreements in FY 2003. This funding shortfall was caused by several circumstances. A number of court orders that were issued after the Service compiled its budget request dramatically increased the amount of funding needed for judicially mandated critical habitat work. In addition, before the critical habitat work required by the courts had exceeded the amount of the FY 2003 budget request, the Service entered into a number of court approved settlements requiring us to perform further critical habitat work in FY 2003. Several critical habitat actions also required a greater expenditure of resources than the Service anticipated. With the $6,000,000 of critical habitat funding that was available in FY 2003, we completed 32 critical habitat designations pursuant to court orders and settlement agreements. However, we were not able to complete work on 21 critical habitat actions for 30 species, which had courtordered deadlines requiring critical habitat actions to be completed after July 28, 2003, due to insufficient resources.
(10) Comment: The critical habitat proposal does not go far enough to protect habitat for the species' recovery. The commentor urges the Service to include areas historically occupied by Arabis perstellata.

Our Response: The delisting criteria identified in the recovery plan for Arabis perstellata requires 20 geographically distinct, self sustaining populations, consisting of 50 or more plants each, protected in Kentucky and Tennessee. Additionally, those populations must be stable or increasing after five years of monitoring following reclassification to threatened status. Because critical habitat is defined as those specific areas essential to the conservation of the species, and since the Act defines conservation similarly to recovery, we have based the designation of critical habitat for Arabis perstellata on the criteria necessary to delist or recover the species. Consequently, we have designated units containing 22 (17 in Kentucky and 5 in Tennessee) populations that will meet the criteria for being geographically distinct, selfsustaining, and consisting of 50 or more plants. Therefore, we believe that we have adequately identified and designated as critical habitat those areas essential to the conservation of Arabis perstellata. We do not believe that designating additional historically occupied habitat is essential to the conservation of this species. Please refer to the Criteria Used to Identify Critical Habitat section of this final rule for further discussion of the criteria used in
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the development of this final designation.
(11) Comment: We received some general comments on population viability analysis (PVA) and how it can be used to suggest where habitat restoration can make a significant contribution to species survival.

Our Response: While PVAs can be useful scientific and conservation tools in certain situations, we did not believe, in this case, a PVA was necessary to determine the physical and biological features, and therefore, the specific areas, that are essential to the conservation of Arabis perstellata. We believe that the biological and scientific analyses conducted during the development of the recovery plan for this species was sufficient to identify the amount of habitat and number of populations, including specific habitat and population criteria, to recover the species. As previously discussed, we based this critical habitat designation on those criteria established for the recovery plan, and believe them to be adequate to conserve the species. (12) Comment: The commentor noted that our maps of proposed critical habitat contained in the June 3, 2003, Federal Register (68 FR 33072 and 33086) are textbook designs of fragmentation. The commentor requested that where possible, we should establish habitat connectivity to prevent genetic isolation of the existing populations.

Our Response: We acknowledge that our understanding of the genetic exchange between populations of Arabis perstellata is limited. We believe, and the experts agree, that Arabis perstellata is most likely pollinated by insects, but we do not know whether it is selffertile. Jones (1991) assumed that the plants are pollinated by insects, most likely by small flies and bees. Seed dispersal is likely occurring through wind or gravity rather than animal movements, as this species has no specific morphological (structural) mechanisms such as hooks or burs for seed dispersal. Seeds are probably most commonly dispersed downslope. Also, the species requires specialized habitat and appears to show some inability to expand into available or similar habitats. This inability to compete has likely limited its distribution and abundance. Therefore, habitat connectivity does not appear to be a limiting factor since 17 populations in two counties in Kentucky and 5 populations in two counties in Tennessee are thriving under present conditions. We believe that our present critical habitat designations contain habitat that is essential to the conservation of this species. (13) Comment: We received a comment that the limestone soils that Arabis perstellata needs are a perfect example of habitat
specialization and, therefore, these specialized areas must be protected.

Our Response: We are designating those specific areas that are defined by the physical and biological features essential to the conservation of Arabis perstellata based on the criteria for delisting identified in the recovery plan. As discussed in the Primary Constituent Elements section of the final rule and the previous proposal, limestone substrates are identified as a primary constituent element for Arabis perstellata. Therefore, lands containing limestone substrates that also contain selfsustaining populations of 50 or more plants of Arabis perstellata are being designated as critical habitat and afforded the protections thereof.
(14) Comment: Stones River National Battlefield in Rutherford County, Tennessee, has been identified as having viable populations of Arabis perstellata. The commentor requests that we designate critical habitat at Stones River National Battlefield and any other areas on public lands where the species could be reintroduced.

Our Response: Based on our current information regarding this species, it is not known to occur at Stones River National Battlefield nor does this public land have suitable habitat for the reintroduction of Arabis perstellata. Additionally, we are not aware of any public lands that have suitable habitat for the reintroduction of this species in Kentucky or Tennessee. However, we welcome any additional specific information concerning locations of Arabis perstellata and habitat defined by the primary constituent elements as being essential to its conservation.
(15) Comment: In conducting our economic analyses of critical habitat designations pursuant to section 4(b)(2) of the Act, we must solicit data regarding all economic impacts associated with a listing as part of the critical habitat designation, including sections 9 and 10 of the Act.

Our Response: We are not required by statute or implementing regulation to collect information pertaining to and consider economic impacts associated with the listing of a species, even while conducting the required economic impact analyses for critical habitat pursuant to section 4(b)(2) of the Act. However, because it may be difficult to distinguish potential economic effects resulting from a species being listed as endangered or threatened relative to those potential economic effects resulting from designating critical habitat for a species, we often collect economic data associated with the species being listed to provide for a better understanding of the current economic baseline from which to make more informed decisions as we conduct our required analyses under section 4(b)(2) of the Act. This approach is consistent with the ruling of the 10th Circuit Court of Appeals in N.M. Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (2001).
(16) Comment: The final rule designating critical habitat for Arabis perstellata must include an explanation of the cost/benefit analysis for both why an area was included and why an area was excluded.

Our Response: Pursuant to section 4(b)(2) of the Act, we are required to take into consideration the economic impact, national security, and any other relevant impact of specifying any particular area as critical habitat. We also may exclude any area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, providing that the failure to designate such area will not result in the extinction of the species. We use information from our economic analysis, or other sources such as public comments, management plans, etc., to conduct this analysis. For us to consider excluding an area from the designation, we are required to determine that the benefits of the exclusion outweigh the benefits (i.e., biological or conservation benefits) of including the specific area in the designation. This is not simply a monetary cost/benefit analysis, however. This is a policy analysis, and can include consideration of the impacts of the designation, the benefits to the species from the designation, as well as policy considerations such as national security, tribal relationships, impacts on conservation partnerships and other public policy concerns. This evaluation is done on a casebycase basis for particular areas based on the best available scientific and commercial data. A decision to exclude an area is discretionary with the Secretary. There is no requirement that we conduct a cost/benefit analysis for including areas within critical habitat, or that we must exclude an area based on our analysis of costs and benefits. (17) Comment: The final rule must clearly explain why specific areas with the essential features may be in need of special management considerations or protection.

Our Response: Please refer to the Background, Primary Constituent Elements, Need for Special Management Consideration or Protection sections,
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and Critical Habitat Unit Descriptions sections of this rule for a more detailed discussion of needs for special management and protections. However, at this time we are not aware of any special management or protections afforded the physical and biological features defined by the critical habitat units.
(18) Comment: As currently drafted, the proposed rule evidences major analytical gaps, resulting in many miles of water crossing four States being ``critical habitat'' (and triggering the concomitant regulatory burdens such designations impose) without the adequate data or analysis to support such a decision.

Our Response: Critical habitat for Arabis perstellata is only being designated in Kentucky and Tennessee and encompasses only upland habitat. We have conducted the required analysis (see ``Criteria Used to Identify Critical Habitat'' above and the final Economic Analysis) and determined that out of the 42 known Arabis perstellata sites, only 22 sites are essential for the conservation of this species. Summary of Changes From the Proposed Rule

Other than minor clarifications and incorporation of additional information on the species' range in Tennessee, we made three substantive changes to our designation:
(1) We modified one of the primary constituent elements to include Lonicera maackii as another nonnative species that is noted to have negatively impacted Arabis perstellata populations in Tennessee. (2) Critical units 18, 19, and 20 in Tennessee were increased in size and two new units were added in Tennessee upon obtaining new information from TDEC during the first comment period. The revised designation for Tennessee was increased from 80 ha (198 ac) to 320 ha (790 ac).
(3) The location coordinates associated with Unit 2 and Unit 12 in Kentucky were discovered to be incorrect when we were making the reviews for this final rule. We have changed the coordinates for these two units and have verified the coordinates for all units to ensure that they are correct.

Critical Habitat

Please refer to the proposed rule to designate critical habitat for the Arabis perstellata for a general discussion of sections 3, 4, and 7 of the Act and our policy in relation to the designation of critical habitat (68 FR 33058; June 3, 2003).

A. Methods

As required by section 4(b) of the Act and its implementing regulations (50 CFR 424.12), this proposal is based on the best scientific and commercial information available concerning the species' current and historical range, habitat, biology, and threats. In preparing this rule, we reviewed and summarized the current information available on Arabis perstellata, including the physical and biological features that are essential for the conservation of the species (see ``Primary Constituent Elements'' section), and identified the areas containing these features. The information used includes known locations, our own sitespecific species and habitat information, statewide Geographic Information System (GIS) coverages (e.g., soils, geologic formations, and elevation contours), the Natural Resources Conservation Service's soil surveys, the final listing rule for Arabis perstellata; recent biological surveys and reports; peerreviewed literature; our final recovery plan; and discussions and
recommendations from Arabis perstellata experts.

B. Primary Constituent Elements

In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to focus on those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. Such requirements include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for germination or seed dispersal; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.

Much of what is known about the specific physical and biological requirements of Arabis perstellata is described in the ``Background'' section of this rule and the previously published proposed rule (69 FR 4274). The designated critical habitat is designed to provide sufficient habitat to maintain selfsustaining populations of Arabis perstellata throughout its range, and to provide those physical or biological features essential for the conservation of the species. These physical or biological features provide for the following(1) Individual and population growth, including sites for germination, pollination, reproduction, pollen and seed dispersal, and seed dormancy (Constituent element 1, 2, 3, and 4.); (2) areas that provide basic requirements for growth, such as water, light, and minerals (Constituent element 1, 2, and 4); and (3) areas that support populations of pollinators and seed dispersers (Constituent element 1, 2, and 4); and (4) habitats that are representative of the historic geographical and ecological distribution of the species (Constituent element 1, 2, 3, and 4). Based on the occurrence of this species and field data, all of these physical or biological features are essential to the conservation of the species.

We believe the conservation of Arabis perstellata is dependent upon a number of factors, including the conservation and management of sites where existing populations grow and the maintenance of normal ecological functions within these sites. The areas we are designating as critical habitat provide some or all of the physical or biological features essential for the conservation of this species.

Based on the best available information, primary constituent elements essential for the conservation of Arabis perstellata are: (1) Relatively undisturbed, closed canopy mesophytic and subxeric forest with large, mature trees (such as sugar maple (Acer saccharum), chinquapin oak (Quercus muhlenbergii), hackberry (Celtus occidentalis), or Ohio buckeye (Aesculus glabra)), and
(2) Open forest floors with little herbaceous cover and leaf litter accumulation with natural disturbance to allow for Arabis perstellata germination and seedling germination, and
(3) Areas with few introduced weed species such as Alliaria petiolata or Lonicera maackii, and
(4) Rock outcrops on moderate to steep calcareous slopes defined by:
(a) Ordovician limestone, in particular the Grier, Tanglewood, and Macedonia Bed Members of the Lexington Limestone in Kentucky and the Lebanon, Carters, Leipers, and Catheys, and BigbyCannon Limestones in Tennessee; and
(b) Limestone soils such as the Fairmont Rock outcrop complexes in Kentucky and the Mimosa Rock outcrop complexes in Tennessee. [[Page 31467]]

Based on the specific requirements of this species, units contain many of the same physical and biological features. Management, therefore, will address both the maintenance of these features and the reduction of threats specific to each unit.

C. Criteria Used to Identify Critical Habitat

We considered several factors in the selection of specific areas for critical habitat for Arabis perstellata. We assessed the final recovery plan objectives and criteria, which emphasize the protection of populations throughout a significant portion of the species' range in Kentucky and Tennessee. According to the criteria identified in the recovery plan, Arabis perstellata will be considered for delisting when 20 geographically distinct, selfsustaining populations, consisting of 50 or more plants each, are protected in Kentucky and Tennessee, and it has been demonstrated that the populations are stable or increasing after five years of monitoring following reclassification to threatened status. Because of the proximity of occurrences of Arabis perstellata, protected populations must be distributed throughout the species' range in order to decrease the probability of a catastrophic event impacting all the protected populations.

Following the completion of the final recovery plan and during the development of the proposed critical habitat designation for Arabis perstellata, two additional populations were discovered in Tennessee. The discovery of these two populations was discussed in the proposed critical habitat rule, but due to the courtordered date for completion of the proposed rule there was insufficient time to conduct the appropriate analysis to determine if these two populations were essential to the conservation of the species and should be included in the designation. We subsequently conducted an analysis of these populations based on the criteria identified in the final recovery plan and the physical and biological features essential to the conservation of the species (i.e., primary constituent elements) identified herein. On the basis of that analysis and the determination that the protection of the two additional sites in Tennessee, where there were previously only three populations (all meeting the recovery and critical habitat criteria), will provide for greater longterm survivability and conservation of the species, we determined that these two newly discovered populations are essential to the conservation of Arabis perstellata. As such, they were proposed to be included in the designation in a revised proposed rule published in the Federal Register (69 FR 4274) on January 29, 2004, and have been subsequently included in this final designation bringing the total number of sites to 22.

Our approach to delineating specific critical habitat units, based on the recovery criteria outlined above, focused first on considering all areas of suitable habitat within the geographic distribution of this species and the known locations of the extant and historic populations. We evaluated field data collected from documented occurrences, various GIS layers, soil surveys, and United States Geological Survey (USGS) quadrangle maps. These data include Arabis perstellata locations, soils, elevation, topography, geologic formations, streams, and current land uses.

Based on information concerning historical occurrences of Arabis perstellata, there were historically a total of 56 populations, nine populations in Tennessee and 47 in Kentucky. Four of the populations in Tennessee and ten in Kentucky no longer have plants or the primary constituent elements (Jones 1991; Tennessee Department of Environment and Conservation 2000), and therefore, are not considered to be essential to the conservation of Arabis perstellata.

Of the 42 remaining historic locations of Arabis perstellata in Kentucky (37) and Tennessee (5), we identified 20 as having fewer than 50 plants and degraded habitat. These sites are, therefore, not considered to be essential to the conservation of Arabis perstellata. The 22 remaining locations contain populations of Arabis perstellata in which greater that 50 plants have been documented and the primary constituent elements for the species as defined in this rule. These 22 locations are considered to be essential to the conservation of Arabis perstellata, and as such, are being designated as critical habitat.

The 22 units in this designation include a considerable part, but not all, of the species' historic range. They all contain the primary constituent elements essential for the conservation of Arabis perstellata (see ``Primary Constituent Elements'' section). The omission of historically occupied sites and the rest of the currently occupied sites from this critical habitat designation should not diminish their individual or cumulative importance to the species. Rather, it is our determination that the habitat contained within the 22 units included in this final rule constitutes our best determination of areas essential for the conservation of Arabis perstellata. The 22 units we are designating as critical habitat encompass approximately 648 ha (1,600 ac) in Kentucky and Tennessee.

To the extent feasible, we will continue, with the assistance of other State, Federal, and private researchers, to conduct surveys, research, and conservation actions on the species and its habitat in areas designated and not designated as critical habitat. If additional information becomes available on the species' biology, distribution, and threats, we will evaluate the need to revise critical habitat, or refine the boundaries of critical habitat as appropriate. Sites that are occupied by this plant that are not being designated for critical habitat will continue to receive protection under the Act's section 7 jeopardy standard where a Federal nexus may occur (see ``Critical Habitat'' section).

D. Mapping

Once we determined that 22 populations are essential to the conservation of Arabis perstellata, we used sitespecific information to determine the extent of these populations. The designated critical habitat units were delineated by screen digitizing polygons (map units) using ArcView, a computer Geographic Information Systems (GIS) program. Based on the known plant distribution and allowing for downslope germination, we placed boundaries around the populations that included the plants, as well as their primary constituent elements. In defining these critical habitat boundaries, we made an effort to exclude all developed areas, such as housing developments, open areas, and other lands unlikely to contain the primary constituent elements essential for the conservation of Arabis perstellata. We used Kentucky State Plane North/North American Datum 1983 (NAD83) coordinates to designate the boundaries of the designated critical habitat in Kentucky and Tennessee State Plane/NAD83 coordinates to designate the boundaries of the designated critical habitat in Tennessee.

E. Need for Special Management Consideration or Protection

An area designated as critical habitat contains one or more of the primary constituent elements that are essential to the conservation of the species (see ``Primary Constituent Elements'' section). When designating critical habitat, we assess whether the areas
[[Page 31468]]
determined to be essential for conservation may require special management considerations or protection. Regulations at 50 CFR 424.02(j) define special management considerations or protection to mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of listed species. Critical habitat designations apply only to Federal activities or those funded or authorized by a Federal agency.

The primary threats to this species rangewide are alteration or loss of habitat through development (primarily home and road construction), competition with native and exotic weedy species, grazing and trampling, and timber harvesting. Various activities in or adjacent to each of the critical habitat units described in this final rule may affect one or more of the primary constituent elements that are found in the unit. These activities include, but are not limited to, ground disturbances that destroy or degrade primary constituent elements of the plant, activities that directly or indirectly affect Arabis perstellata plants or underlying seed bank, activities that encourage the growth of Arabis perstellata competitors, and activities that significantly degrade or destroy Arabis perstellata pollinator populations.

We have determined that the critical habitat units may require special management or protection, largely because no longterm protection or management plans exist for any of the units and due to the existing threats to this plant. Absent special management or protection, these 22 units are susceptible to existing threats and activities such as the ones listed in the ``Effects of Critical Habitat'' section, which could result in degradation and disappearance of the populations and their habitat.

F. Critical Habitat Designation

Table 1 summarizes the location and extent of designated critical habitat. We provide general descriptions of the boundaries of designated critical Table 1. Approximate Area (Hectares and Acres) of Critical Habitat by Critical habitat unit County/state Land ownership 1. Sky View Drive................... Franklin/Kentucky...... Private................ 2. Benson Valley Woods.............. Franklin/Kentucky...... Private................ 3. Red Bridge Ridge................. Franklin/Kentucky...... Private................ 4. Trib to South Benson Ck.......... Franklin/Kentucky...... Private................ 5. Davis Branch..................... Franklin/Kentucky...... Private................ 6. Onans Bend....................... Franklin/Kentucky...... Private................ 7. Shadrock Ferry Road.............. Franklin/Kentucky...... Private................ 8. Hoover Site...................... Franklin/Kentucky...... Private................ 9. Longs Ravine Site................ Franklin/Kentucky...... Private................ 10. Strohmeiers Hills............... Franklin/Kentucky...... Private................ 11. U.S. 127........................ Franklin/Kentucky...... Private................ 12. Camp Pleasant Branch............ Franklin/Kentucky...... Private................ 13. Saufley......................... Franklin/Kentucky...... Private................ 14. Clements Bluff.................. Owen/Kentucky.......... State.................. 15. Monterey U.S. 127............... Owen/Kentucky.......... Private................ 16. Craddock Bottom................. Owen/Kentucky.......... Private................ 17. Backbone North.................. Franklin/Kentucky...... Private................ 18. Scales Mountain................. Rutherford/Tennessee... Private................ 19. Sophie Hill..................... Rutherford/Tennessee... Private................ 20. Indian Mountain................. Rutherford/Tennessee... Private................ 21. Grandfather Knob................ Wilson/Tennessee....... Private................ 22. Versailles Knob................. Rutherford/Tennessee... Private................ habitat units below.
Unit for Arabis perstellata. Hectares Acres 22 54 37 91 6 15 10 25 3 7 12 30 15 37 83 205 30 74 20 49 11 27 14 35 8 20 11 27 12 30 23 57 11 27 103 255 53 132 87 214 43 106 34 83

Total........................... ....................... ....................... 648 1,600 G. Critical Habitat Unit Descriptions

We are designating a total of 22 critical habitat units for Arabis perstellata in Kentucky and Tennessee14 critical habitat units in Franklin County, Kentucky; three units in Owen County, Kentucky; four units in Rutherford County, Tennessee; and one unit in Wilson County, Tennessee. In order to provide determinable legal descriptions of the critical habitat boundaries, we drew polygons around these units, using as criteria the plant's primary constituent elements, the known extent of the populations, and the elevation contours on the map. We made an effort to avoid developed areas that are unlikely to contribute to the conservation of Arabis perstellata. Areas within the boundaries of the mapped units such as buildings, roads, clearings, transmission lines, lawns, and other urban landscaped areas do not contain one or more of the primary constituent elements. As such, Federal actions limited to these areas would not trigger consultation pursuant to section 7 of the Act, unless they affect the species or primary constituent elements in the critical habitat.

On the basis of the best available scientific and commercial information, we determined that the 22 critical habitat units contain the primary constituent elements essential to the conservation of Arabis perstellata. Additionally, these 22 sites represent the only known Arabis perstellata populations that meet the recovery criteria of being geographically distinct, selfsustaining, and containing 50 or more plants. These 22 sites contain the highestquality populations in terms of
[[Page 31469]]
size and habitat that are presently known. The remaining known populations (20) of Arabis perstellata do not meet these criteria, because each has fewer than 50 plants occurring on degraded sites, making their longterm viability questionable. As such, based on the best available information, we do not believe that these 20 sites are essential to the conservation of Arabis perstellata.

A brief description of each of these critical habitat units is given below. The population information presented in all of the unit descriptions was taken from the KSNPC's Natural Heritage Database for the Kentucky units and the TDEC's Natural Heri

FOR FURTHER INFORMATION CONTACT Timothy Merritt at the Tennessee Field Office address above (telephone (931) 5286481, extension 211; facsimile (931) 5287075).