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CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AT96

NOTICE: PROPOSED RULES

ACTION: Endangered and threatened species:

DOCUMENT ACTION: Proposed rule; withdrawal.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To List the Sacramento Mountains Checkerspot Butterfly as Endangered With Critical Habitat

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the proposed rule published in the Federal Register on September 6, 2001 (66 FR 46575), to list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia cloudcrofti) (butterfly) as endangered with critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act). This withdrawal is based on our conclusion that the threats to the species as identified in the proposed rule are not as significant as earlier believed. We base this conclusion on our analysis of current threats. We find that best scientific and commercial data available indicate that the threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, have been reduced below the statutory definition of threatened or endangered. Therefore, we are withdrawing our proposal to list the species as endangered.

SUMMARY: Critical habitat designations—; Sacramento Mountains Checkerspot Butterfly; withdrawal,

SUPPLEMENTAL INFORMATION

It is our intent to discuss only those topics directly relevant to this final listing determination. For more information on the butterfly, refer to the September 6, 2001 (66 FR 46575) proposed rule, and the October 7, 2004 Conservation Plan (69 FR 60178). However, some of this information is discussed in our analyses below, such as the summary of factors affecting the species.

Previous Federal Action

On January 28, 1999, we received a petition from Mr. Kieran Suckling of the Southwest Center for Biological Diversity in Tucson, Arizona, dated November 1998, which requested that we emergency list the butterfly as endangered. The petitioner stated that the species merits listing because of its restricted range, adverse impacts resulting from a proposed United States Department of Agriculture Forest Service (Forest Service) land transfer, improvements to a Forest Service campground, construction of homes and other structures, aggressive nonnative weeds that may be affecting the larval food plants and adult nectar sources, climate change, and livestock overgrazing. The petitioner requested emergency listing due to the perceived immediate threats to the species' continued existence from a proposed land transfer between the Forest Service and the Village of Cloudcroft in the Sacramento Mountains in Otero County, New Mexico.

In accordance with section 4(b)(3)(A) of the Act, we published notice of our 90day administrative finding in the Federal Register on December 27, 1999 (64 CFR 72300), that the petitioner presented substantial information indicating that listing may be warranted, but that emergency listing was not warranted, and commenced a status review. No further action was conducted related to the listing of the butterfly following the publication of the December 27, 1999 finding.

In response to our failure to make a 12month finding within the statutory time frame allowed by the Act, the Center for Biological Diversity filed a lawsuit. On July 31, 2001, the United States District Court for the District of New Mexico, in Center for Biological Diversity v. Gale A. Norton, CIV 010258 PK/RLP ordered us to complete and submit for publication to the Federal Register a 12month finding for the butterfly within 30 days. On September 6, 2001, we published a proposed rule to list the butterfly as endangered with critical habitat (66 FR 46575). The proposed rule constituted our 12month
administrative finding. As part of the rulemaking process, we also held one public hearing in Alamogordo, New Mexico, on October 18, 2001, and extended the public comment period until December 5, 2001 (66 FR 49158, September 16, 2001). We invited all interested parties to submit comments on the proposed listing rule and proposed critical habitat designation.

In the proposed rule, we determined that the butterfly was in danger of extinction throughout all or a significant portion of its range because much of the remaining suitable habitat and the longterm persistence of the subspecies were threatened. At that time, the known threats included: Commercial and private development, Forest Service projects, fire suppression activities, highway reconstruction, off highway vehicle use, and overgrazed range conditions. Additional background information is available in the September 6, 2001, proposed rule (66 FR 46575).

In response to growing interest by the local community to conserve the butterfly, the Service began coordination in 2001 with local and Federal partners. Subsequently, we developed the ``Conservation Plan for the Sacramento Mountains Checkerspot Butterfly'' (Conservation Plan) (see ``Conservation Plan'' section below). The Conservation Plan was available for a 30day public comment period and documents conservation actions that will benefit the species (69 FR 60178, October 7, 2004). We also held a public information meeting in Cloudcroft, New Mexico, on October 13, 2004.

On November 8, 2004, we announced the availability of the draft economic analysis and draft environmental assessment for the proposal to designate critical habitat for the butterfly (69 FR 64710). Section 4 (b)(2) of the Act requires that we consider economic impacts, impacts to national security, and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We solicited data and comments from the public on these draft documents, as well as on all aspects of our proposal, so that we could consider these in this final determination.

Summary of Comments and Recommendations

In the notices announcing the public comment periods, we requested all interested parties submit comments on the proposed listing and critical habitat designation, as well as the associated draft economic analysis and draft environmental assessment, and information pertaining to the Conservation Plan or management actions that reduce the threats to the butterfly, current status, ecology, distribution, threats, and management/conservation efforts in place. We requested this information in order to make a final listing determination based on the best scientific and commercial data currently available. During the public comment periods, we received written comments from a total of 40 entities, and 22 speakers gave verbal
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comments at the public hearing. Substantive information provided in all public comments, written and verbal, either has been incorporated directly into this withdrawal or is addressed below. Similar comments are grouped together by issue.
(1) Comment: Commercial and private development is not a threat to the species, because very little is occurring within the range of the butterfly.

Our Response: The economic analysis found that in recent years, approximately 8 to 10 new homes have been constructed annually within the boundary of the proposed critical habitat designation. This trend is expected to continue into the foreseeable future. Based upon this estimate, over the next 20 years, approximately 160 to 200 smallscale residential projects may occur within the boundary of proposed critical habitat for the butterfly. Of these, the economic analysis assumed that 55 to 69 may conduct butterfly surveys because they would be conducted within areas that were proposed as critical habitat and provide butterfly habitat. Eight to 24 of those areas surveyed may be found to be in use by butterflies (for a detailed discussion see Service 2004). This draft economic analysis estimated that the median lot size of these developments was 0.14 hectares (ha) (0.34 acres (ac)), indicating that up to 3.2 ha (8 ac) of suitable butterfly habitat may be impacted from commercial and private development activities (Service 2004). In the proposed rule, we described an additional 4 ha (10 ac) of impacts from a private development on the east side of the Village of Cloudcroft. Thus, we estimate that about 1 percent of the suitable butterfly habitat on private lands (i.e., 18 of 1,196 ac) may be subject to commercial and private development. We do not believe that this level of an impact is a significant threat to the butterfly (see ``Summary of Factors'' section below for a more detailed discussion). (2) Comment: There is no evidence that exotic weeds have any effect on butterfly populations. How is listing the butterfly going to help solve the exotic weed problem?

Our Response: Nearly 30 percent of mountain meadows and over half of some individual meadows were dominated by noxious weeds on the Sacramento Ranger District in 1995 (Forest Service 1995). In 2002, the Forest Service conferenced with us regarding a Districtwide noxious weed management program. Under this action, the Forest is using manual methods (e.g., spot applications) to remove noxious weeds within habitat occupied by the butterfly. We anticipated some impacts to host plants will occur, but these were expected to be insignificant (i.e., should never reach the level where incidental take of the butterfly will occur) or discountable (i.e., effects to the butterfly from the action are extremely unlikely to occur) to the butterfly. The Sacramento Ranger District is currently monitoring and treating infestations of nonnative vegetation. These actions have longterm benefits for the butterfly because the threat of nonnative vegetation to the butterfly has been minimized.
(3) Comment: If global warming is really a threat to the butterfly, are you going to get the whole planet to change its habits to protect this one butterfly?

Our response: We agree that we cannot address an issue of this magnitude and complexity on a species by species basis. However, we recognized in the proposal that the butterfly may be vulnerable to changes in climate. We also note that this does not imply that the species cannot survive natural events such as drought since the butterfly evolved in an environment subject to periodic atypical weather events.

When a species has specific and limited habitat requirements, it is reasonable to assume that climate shifts occurring more rapidly than evolutionary timeframes might have an impact on the species in the future. Even if we cannot address these issues on a species by species basis, we believe it is important, where possible, to document the extent of any problems, to spur research or collaborative solutions. The U.S. Geological Survey (USGS) and the Service recently launched our Future Challenges Project with a scientific workshop at the National Conservation Training Center. At this workshop, we explored four environmental drivers that will affect our work and missions in the future. We examined the issues of water resources, invasive species, climate change, and biotechnology for their potential longterm impacts in managing biological resources and the systems that support them over the next 10 to 20 years. For example, we know the importance of coordinating research, monitoring, and risk assessment efforts so that human and financial resources are used effectively and directed at the highest priority needs. Closely related is the importance of accessing and sharing research and results so that the best information available is used by all decisionmakers.
(4) Comment: If listing the butterfly makes it more vulnerable to collection, then why list the subspecies?

Our response: As part of our analysis under section 4(a)(1) of the Act, we disclose and analyze the known or potential threats to species and any related information. In the case of the butterfly, we acknowledged that listing can increase the publicity and interest in a species' rarity, and thus may directly increase the value and demand for specimens. To limit potential overcollecting, the Forest Service issued a closure order restricting the collection of any butterflies without a permit on the Smokey Bear and Sacramento Districts of the Lincoln National Forest (Forest Service 2001). The Forest Service posted the closure order in accordance with their regulations and also published a notice of the closure order in the newsletter of the Lepidopterists' Society (36 CFR 261, Lepidopterists' Society Newsletter 1999, Holland 1999) (see discussion under ``Factor B'' below). (5) Comment: Based upon the fact that one of the only butterfly pupa ever found was attached to the side of a building, it does not appear that developments are a threat to the subspecies.

Our response: The building where the pupa was found occurs in an area where butterfly habitat adjacent to the building was largely intact and is being used by the butterfly. Based on this and other information we have reviewed (see ``Factor A'' section below), it appears that private and commercial development activities can be conducted in such a way as to minimize impacts on the butterfly. For example, the Forest Service has found that the butterfly continues to exist within areas that are developed (Forest Service 2004e). (6) Comment: Recent studies have shown that the butterfly's population and range are actually much larger than previously thought. There is no evidence that the range of the butterfly is shrinking.

Our response: As we noted in the 2001 proposed rule, the Forest Service has been conducting surveys since 1998 to estimate the range of the butterfly. The known range of the butterfly has not been extended since 2000 (Forest Service 2002). We do not have longterm monitoring data to evaluate whether the butterfly's population is increasing, stable, or declining. Still, on a gross scale, our observations indicate that the range of the butterfly has not changed since 2000 (Forest Service 2002b). The Forest Service and Service will continue [[Page 76430]]
to monitor the butterfly population and range (Service 2004b). (7) Comment: No studies have been conducted in the adjacent Mescalero Apache Nation lands, where there could be large numbers of butterflies in their plentiful meadows. The Village of Cloudcroft comments state they have spoken with ``at least two officials from the Mescalero Indian Reservation who assume the butterfly is found on the Mescalero Indian Reservation.''

Our response: We have no information to be able to verify the information that the butterfly is found on the Mescalero Apache Nation lands (see ``Mescalero Apache Nation'' section below). We have provided technical assistance to the Mescalero Apache Nation through field identification and survey techniques that we conducted on Forest Service lands. We offered assistance to the Mescalero Apache Nation in conducting surveys. However, we have no knowledge that there is any occupied butterfly habitat on Mescalero Apache Nation lands or that surveys have ever been completed there.
(8) Comment: There is no compelling information that the butterfly's population has been reduced.

Our response: We have no evidence that the butterfly's population is declining (see also comment number 6). Section 4(b)(1)(A) of the Act requires us to make listing determinations on the basis of the best scientific and commercial data available. In this final listing determination, we are withdrawing the proposal to list the butterfly as endangered based upon our analysis of the current threats and our conclusion that the butterfly no longer meets the definition of threatened or endangered.
(9) Comment: Both adult and larval foodplants for the butterfly are common and abundant throughout its range. There is no information to indicate that the foodplants are declining from any threats.

Our response: We agree that adult foodplants are common. Larval foodplants have been impacted in some areas, but do not appear to be the sole determinant of the presence or abundance of the butterfly (Pittenger et al. 2001). Our current understanding of the threats to the butterfly and its foodplants is fully described under the ``Summary of Factors Affecting the Species'' section below.
(10) Comment: The Service needs to conduct an analysis under the National Environmental Policy Act (NEPA) for the listing of the butterfly.

Our response: While we are not required to complete an analysis under NEPA for the listing of the butterfly, we did however, complete a draft environmental assessment under NEPA on the proposed designation of critical habitat, and released it for public comment on November 8, 2004 (69 FR 64710). We believe that this issue is no longer relevant because we are withdrawing our listing proposal.
(11) Comment: Euphydryas anicia cloudcrofti is not a unique species or subspecies and was only referred to as cloudcrofti for regional identification purposes.

Our response: We disagree. Euphydryas anicia cloudcrofti is recognized as a distinct taxonomic subspecies that is a listable entity under the Act if it were to meet the definition of threatened or endangered (16 U.S.C. 1532(16)). The subspecies was isolated by post Pleistocene climate changes and subsequent changes in the distribution of plant communities (Pittenger and Yori 2003). This spatial isolation resulted in a unique variation that is locally adapted and recognized as a distinct subspecies (Pittenger and Yori 2003, Pratt 2001, Toliver et al. 1994, Cary and Holland 1992, Ferris and Holland 1980). (12) Comment: The scientific record indicates there was a specimen found 282 kilometers (km) (175 miles (mi)) north of the Village of Cloudcroft that was identified as this butterfly. The specimen might have been mislabeled, but should be looked into.

Our response: Holland and Ferris (1980) stated that, ``There is a single male of cloudcrofti in the American Museum of Natural History collection (O. Buchholz Collection) labeled ``Beulah, New Mexico VI.27.02''. Beulah was a former settlement in the Sapello Valley, San Miguel Co., N.M., some 282 kilometers (km) (175 miles (mi)) north of the Village of Cloudcroft. We suspect that this specimen was mislabeled and actually came from the Cloudcroft area.'' Toliver et al. (1994) and Cary (2003) document an undescribed subspecies of Occidryas (= Euphydryas) anicia collected in San Miguel County, New Mexico, in 1882, 1901, 1902, 1949, and 1954. It was also observed in Mora County, New Mexico, in 1995 (Toliver et al. 1994) and 2003 (Cary 2003). We conducted surveys within Mora County in 2003 and 2004 during the presumed active season. In 2003, adult butterflies of this undescribed subspecies were photographed by Cary (2003) in Mora County, although New Mexico penstemon (Penstemon neomexicanus) or orange sneezeweed (Helenium hoopesii), the primary foodplants of the butterfly, have not been observed. We suspect that if the undescribed subspecies still occupies the area, it occurs at very low densities.

Pratt (2000, 2001), who conducted extensive surveys throughout New Mexico, including the Sacramento Mountains (Pratt 2001a, 2001b, 2001cF), found that the butterfly is highly isolated from other populations of Euphydryas anicia and, after reviewing the taxonomic relationships within Euphydryas described by Brussard et al. (1989), he believes that cloudcrofti may be its own separate species. Genetic studies have not been conducted between cloudcrofti and other Euphydryas anicia populations, including the undescribed subspecies in Mora County, New Mexico. Because the known foodplants of the Sacramento Mountains checkerspot butterfly have not been documented outside of Otero and Lincoln Counties, we do not believe that the undescribed subspecies is the same as the Sacramento Mountains checkerspot butterfly. This conclusion is consistent with previous interpretations of other lepidopterists who are familiar with and have observed these butterflies (Toliver et al. 1994, Holland and Ferris 1980). (13) Comment: Was the proposed rule peer reviewed?

Our response: Yes. In September 2001, we sent the proposed rule to six peer reviewers. Only one responded; this peer reviewer supported the proposed listing.
(14) Comment: Where have butterfly festivals been organized and are there any economic benefits of such festivals?

Our response: We are aware of many butterfly festivals organized across the country. In fact, Mission, Texas, has been holding a festival for eight years (http://www.butterflyfestival.com/ ), Haynesville, Louisiana (http://
http://www.claiborneone.org/haynesville/butterfly.html), and celebrations for listed butterflies such as the Karner blue butterfly festival in Black River Falls, Wisconsin http://www.downtownblackriverfalls.com/karner_blue_butterfly_fest.htm ). These festivals can draw thousands of
participants and provide a large economic benefit to the community.

The Service and the Albuquerque Biological Park organized an overnight trip to Cloudcroft to view the butterfly and other sensitive species. This trip entailed about 20 people staying in The Lodge overnight and visiting local businesses. The Albuquerque Biological Park conservatively estimated that their group spent a minimum of $3,500 in Cloudcroft businesses.
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(15) Comment: Cattle grazing has occurred for over 100 years in the Sacramento Mountains and is not threatening the butterfly.

Our response: We agree with this statement. Livestock grazing was recognized as a threat to the species in 2001. We have reevaluated this conclusion in light of recent information from the Forest Service and others (e.g., Forest Service 2001, 2004b, 2004i, Service 2004a, 2004b, Weiss 1999). Historic and current levels of grazing are not a significant threat to the species. The potential threat of grazing is further reviewed under the ``Summary of Factors Affecting the Species'' section below. We conclude that current and future levels of grazing have not and will not result in significant adverse effects to the butterfly because grazing monitoring and subsequent management changes (reducing number of livestock, moving to other pastures, etc.) ensure that utilization levels are met and foodplants for the butterfly are being maintained.
(16) Comment: The Forest Service indicated that there is no potential risk to the butterfly related to the control of tussock moth (Orgyia pseudotsugata) as it was described in the proposed rule. They stated that any future proposed treatments would need to be analyzed under NEPA, and the suggestion that carbaryl or Bacillus thuringensis would be used to control these or other forest insects was premature.

Our response: We agree and have revised our analysis to reflect this new information. See ``Summary of Factors Affecting the Species'' section below for further details.
(17) Comment: The Forest Service indicated that all of their activities, including for example wildland urban interface (WUI) treatments, land exchanges, recreational improvements, and special use permits are currently evaluated for effects on the butterfly and its habitat. The Forest Service has implemented these conservation measures through modified project design features, avoidance of the species and/ or habitat, or implemented mitigation measures such as surveys or seasonal restrictions. The butterfly and its habitat are receiving adequate protection and management on the Lincoln National Forest as the Regional Forester designated the butterfly a Sensitive Species, and, as such, will continue to be analyzed in all applicable NEPA documents.

Our response: We agree with the comments, and we are withdrawing our proposal to list the species (see ``Summary of Factors Affecting the Species'' section below), in part, due to this effort and designation from the Forest Service.
(18) Comment: The Forest Service indicated that the majority of range conditions within meadows used by the butterfly are in satisfactory condition and are providing the necessary host plants for the species. Host plants have likely increased or at minimum remained stable.

Our response: We assumed in our proposed rule that butterfly abundance was related to density of foodplants. Although the presence of foodplants is a necessary component of suitable butterfly habitat, it appears that foodplant density has little influence on number of adult butterflies (Pittenger et al. 2001). We agree that range conditions within meadows used by the butterfly are providing the necessary host plants for the species (see ``Summary of Factors Affecting the Species'' section below). It is also unknown why the butterfly is not present in meadows where larval and adult foodplant density is high (Pittenger et al. 2001, Pittenger and Yori 2003). Further research is needed to clarify the attributes of butterfly habitat.
(19) Comment: Female butterflies lay hundreds of eggs. Therefore, biologically it does not make sense that if a few larvae get crushed by recreation or other activities, it would cause the butterfly population to decline or lead to its extinction.

Our response: We have also reached this conclusion (see our response to Comment 24 below). The proposed rule was a comprehensive document that analyzed a myriad of potential threats. At that time, we indicated the potential significance of many of the impacts had not been quantified. After further evaluation, we believe that the magnitude of each potential threat is a necessary component to accurately evaluate the potential of each threat. The commentor is correct that in a functioning metapopulation, as we believe is the case here, the loss of a few butterflies will not jeopardize the continued existence of the species.
(20) Comment: What level of impact triggers an ``adverse effect'' determination for the butterfly from the Service.

Our response: If the species were listed under the Act, the level of impact that triggers an adverse effect determination would be the same as any other species under section 7 of the Act. Federal agencies are required to consult with us under section 7 of the Act when activities with a Federal nexus (i.e., when a Federal agency is funding, permitting, or in some way authorizing a project) may affect a species or its designated critical habitat. The Federal action agency is required to make the determination as to whether their project may affect a species or designated critical habitat. If the anticipated effects from a proposed action are insignificant, discountable, or entirely beneficial, then we concur that the activity is not likely to adversely affect the species or its critical habitat (i.e., an informal consultation). Conversely, those activities that are likely to result in incidental take or adversely affect the species or its critical habitat require formal consultation.
(21) Comment: Based upon Forest Service observations following the Scott Able fire in 2000, catastrophic wildfire is not a threat for the butterfly. The species lives in meadows, which are usually little affected from wildfires within mixed conifer fuel type.

Our response: The information from the Scott Able fire indicates that the majority of areas burned were within the mixed conifer forest (Forest Service 2001). Meadows were essentially passed over by this winddriven fire and did not sustain any high burn intensities (Forest Service 2001). In fact, within the meadows that burned, fire intensities were generally light (Forest Service 2001) (see Factor A below).

Recovery of butterfly populations after fires is a function of the species' ability to gain access to suitable postfire habitats and their ability to rebuild numbers from survivors or colonizers (Swengel 2001). We expect that the effects of fire on butterfly habitat quality and availability will vary based on the severity and spatial configuration of the fire, the response of foodplants to burn severity, and suitability of postfire vegetation. While we have a good understanding of the general factors that influence fire behavior, the way in which a fire behaves on the landscape is highly complex. As a result, fire behavior and severity can be understood and predicted in general terms, but exact predictions are not possible (Forest Service 2004). For example, butterfly habitat quality may either be enhanced or diminished by wildfire. It is probable that a fire of moderate severity could enlarge existing meadows or create suitable corridors between occupied areas.

As described below, the Sacramento Ranger District and surrounding area has been identified as a highpriority area for fuel treatments within New Mexico. As a result, the Lincoln National Forest has increased funding and implemented projects across the Sacramento Ranger District to reduce the threat of wildfire (Forest Service 2001). In their comments, the Forest
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Service reviewed the last 50 years of fire activity on the Sacramento Ranger District, the impact of recent fuelsreduction projects, and the potential impacts to meadows from fires. They concluded that the potential impacts to the butterfly from catastrophic wildfire were low (Forest Service 2001). We agree with this conclusion as further explained in the ``Summary of Factors Affecting the Species'' below. (22) Comment: The Forest Service stated that the only road construction project planned within butterfly habitat is associated with campground reconstruction activities.

Our response: We agree and have revised our analysis to reflect this new information.
(23) Comment: The Forest Service commented that recent and future developed recreation site rehabilitation projects were conducted to provide for public safety, accessibility, and compliance with the American with Disabilities Act, resource protection, and to improve campground image (color, style, etc). They indicated that the redesign of all campgrounds within meadows will result in a net reduction in camping and picnicking capacity by reducing the number of units (i.e., camp sites and picnic tables).

Our response: We agree and have revised our analysis to reflect this new information.
(24) Comment: The Forest Service contends that the annual mountain bike race is a recreational use that does not adversely affect the butterfly because the race occurs in midMay prior to the growing season of the larval host plants.

Our response: Although we believe that the annual mountain bike race has the potential to adversely affect (and incidentally take) postdiapause larvae, the significance of this threat is considered low. Some larvae may be crushed and killed, but we would expect less than 1 ha (2.4 ac) of occupied habitat (i.e., trails through occupied meadows) to be impacted from this activity to occur, which would not affect the metapopulation dynamics of the species (e.g., the linear nature of trails would not preclude butterfly movement and recolonization) (see ``the ``Summary of Factors Affecting the Species'' below).
(25) Comment: Was the model used to estimate the amount of existing butterfly habitat developed by people qualified to do this kind of work? Was the model peer reviewed?

Our response: As noted in the proposed rule, the Forest Service used a Geographic Information System (GIS) to model the extent of existing butterfly habitat (Forest Service 1999b). The model was developed to focus survey efforts within areas thought to provide butterfly habitat. It is our understanding that this model was developed by biologists and cartographers. The information upon which the model was built was identified in the proposed rule. We asked our peer reviewers to review any aspect of the proposed rule, which included the model and estimate of existing butterfly habitat. No one commented on this aspect of the proposal. This model has been refined since 2001 (Forest Service 2004e) (see ``Summary of Factors Affecting the Species'' section below). We consider the refined model to be the best scientific and commercial information available for estimating existing butterfly habitat. As we have found, the model provided no certainty that the potential habitat may be occupied (e.g., the 1999 model overestimated potential butterfly habitat by about 50 percent) (see ``Summary of Factors Affecting the Species'' section below). (26) Comment: The proposed rule states that the construction of roadways is believed to have historically eliminated or reduced the quality or quantity of butterfly habitat, and cites Pittenger (1999). Nowhere in the reference cited is there any discussion or mention of the historic effect of road construction on the quantity or quality of habitat for the butterfly.

Our response: Our analysis used this citation because it documented the impact caused by recent road construction activities on the quantity and quality of butterfly habitat. On October 27, 2004, we visited this area and found that foodplants have naturally been reestablished during the 2004 growing season. Based upon our observation of a recently colonized site (Service 2004d), we believe the area impacted from the recent road construction activities may be utilized by the butterfly as soon as next year (see ``Summary of Factors Affecting the Species'' section below).
(27) Comment: Erroneous information is provided in the proposed rule regarding the severity of impacts of the New Mexico Highway 130 reconstruction project at Deerhead Campground. The project did not result in the extirpation of the butterfly from Deerhead Campground, because it still exists in the area.

Our response: The proposed rule did not state that butterflies were extirpated from Deerhead Campground. The rule identified that in 1998 and 1999, butterflies were located within the construction footprint (Forest Service 1999a, 1999b; 1999d.); however, none were observed during surveys in 2000 and 2001. No butterflies have been observed within the construction footprint since 1999. However, the commentor is correct, in that, butterflies are still occupying other parts of Deerhead Campground. As noted above in our response to comment 26, this area has been naturally revegetated with foodplants during 2004. (28) Comment: There is little to no evidence to back the claim in the proposed rule that overgrazing has occurred in the valleys of the Sacramento Ranger District of the Lincoln National Forest over the last several decades.

Our response: Much of the information we reviewed in 2001 was from the Sacramento Grazing Allotment. We had assumed in the proposed rule that the continuing heavy grazing (i.e., above 35 percent forage utilization) on this allotment was impacting the butterfly. However, further examination of information from the Forest Service demonstrated that the butterfly and its proposed critical habitat are only found within a portion of the Nelson Pasture on the summer unit of the Sacramento Allotment, which does not receive any cattle use because of topography and lack of water (Service 2004a). For the other allotments within the range of the butterfly, we conclude that current and future grazing will not result in significant adverse effects to the butterfly because the Forest Service ensures that utilization levels are met and foodplants are maintained (see ``The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range'' section). (29) Comment: Has New Mexico penstemon (Penstemon neomexicanus) been found outside the geographic range of the butterfly?

Our response: Yes. There are areas (e.g., Russia Canyon and Rawlins Canyon) where New Mexico penstemon is locally common, but are apparently unoccupied by the butterfly since it has not been located during surveys in these areas (Pittenger et al. 2001, Forest Service 2000, 2000a, Bleakly 1998, 1999). Additionally, the butterfly's host plants are known to occur within portions of the Smokey Bear Ranger District, in the vicinity of Ruidoso, New Mexico, just north of Mescalero Apache Nation lands (Forest Service 2000a). However, the butterfly has not been documented north of the Sacramento Ranger District (Forest Service 2000a).
(30) Comment: The information submitted in the proposed rule does not comply with the Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Dissemination by Federal
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Agencies issued by Executive Office of the President, Office of Management and Budget (OMB) (Information Guidelines) (66 FR 49718).

Our response: These guidelines require that agencies issue their own quality guidelines to ensure objectivity, utility, and integrity of information to be disseminated (66 FR 49718). The proposed rule was published prior to the October 1, 2001, effective date of the Information Guidelines. However, we used the best scientific and commercial data available in the formulation of our proposed rule as required by the Act. Additionally, we have reviewed this final determination and the rulemaking process that we have followed for this action relative to the current guidelines and have determined that this determination is in compliance with the parameters established therein. (31) Comment: We received a variety of comments regarding the proposed critical habitat, the draft economic analysis, and draft environmental assessment.

Our response: Because we are withdrawing the proposal to list the butterfly, we are no longer proposing critical habitat for this subspecies. As such, the draft economic analysis and draft environmental assessment are no longer applicable, and we are not addressing comments on those documents in this determination. Summary of Factors Affecting the Species

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal list of endangered and threatened species. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. The following analysis examines the listing factors and their application to the butterfly. Within this section we evaluate new data received since the proposed rule, projects that were completed since 2001, and the related conservation measures that reduce present and future threats to the species.
A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

Several categories of activities have the potential to affect the butterfly and its habitat, including commercial and private development, Forest Service activities, fire suppression and wildfire, highway and forest road reconstruction, recreational impacts, domestic livestock grazing, and nonnative vegetation. This section of the rule presents information for each of the factors affecting the butterfly and its habitat, followed by a summary of how formalized conservation efforts eliminate or reduce adverse effects.

Commercial and Private Development

In 2001, commercial and private development was identified as a significant threat to the butterfly (66 FR 46575). The butterfly likely occupies a significant amount of private lands since habitat used by the butterfly occurs on Forest Service land that is immediately adjacent to these areas and the elevational and habitat characteristics are contiguous (Forest Service 2000a, 2004e).

The proposed rule estimated that there were less than 2,104 ha (5,198 ac) of potential butterfly habitat, composed of 1,034 and 1,070 ha (2,553 and 2,645 ac) on private and Forest Service lands, respectively. A refinement of the original data was conducted by the Forest Service in 2004 (Forest Service 2004e). These current data are similarly based upon focused surveys to ground truth the 1999 GIS model that we detailed in our proposed rule, but include only those lands within the proposed critical habitat boundary. Nevertheless, we are not aware of any butterfly occurrences outside of the previously known range of the butterfly, which was fully enclosed in the proposed critical habitat boundary. The refined estimate is that 1,096 ha (2,709 ac) of suitable butterfly habitat exist on Forest Service and private lands, with 484 ha (1,196 ac) occupied by the butterfly on Forest Service lands and 314 ha (777 ac) occupied on private lands (Forest Service 2004e). About 298 ha (736 ac) of the 1,096 ha (2,709 ac) of suitable habitat are unoccupied, with 79 ha (194 ac) on Forest Service lands and 219 ha (542 ac) on private lands (Forest Service 2004e). This current estimate is the best information we have regarding the range and distribution of the butterfly.

We also mapped meadows within the mixedconifer forest at approximate elevations between 2,450 and 2,750 meters (8,000 to 9,000 feet) elevation on the Mescalero Apache Nation lands, but have no data to indicate whether these lands are occupied by the butterfly (see ``Mescalero Apache Nation'' section below). As detailed in response to comment 7 above, we have no knowledge that surveys have ever been completed there.

Our economic analysis found that in recent years, approximately 8 to 10 new homes have been constructed annually within the known range of the butterfly, which includes lands within the limits of the Village of Cloudcroft and areas outside these limits in Otero County (Service 2004). Although development is no longer being encouraged by the Village of Cloudcroft due in part to the lack of water for residential use (Service 2004b, Village of Cloudcroft 2001), there are two existing subdivisions with developable lots available (Service 2004). The economic analysis estimated that over the next 20 years, approximately 160 to 200 smallscale residential projects may occur within the butterfly's critical habitat boundary. Of these, 8 to 24 private lots within the range of the butterfly (i.e., the Village of Cloudcroft or Otero County) may be found to be in use by butterflies (Service 2004). These estimates, in conjunction with the median lot size of 0.14 ha (0.34 ac), indicates that up to 3.2 ha (8 ac) of suitable butterfly habitat may be impacted from commercial and private development activities over the next 20 years (Service 2004). In the proposed rule, we identified that a subdivision on the east side of the Village of Cloudcroft was currently developing and eliminating approximately 4 ha (10 ac) of suitable, and likely currently used, butterfly habitat. Depending on the location and configuration of each development, these activities have the potential to threaten the butterfly. Nevertheless, this amount is not a significant threat to the butterfly because it represents about 1 percent of the suitable butterfly habitat on private lands (i.e., 7.3 of 484 ha (18 of 1,196 ac)).

In the proposed rule we stated that a 9hole golf course was being discussed as a community recreational goal and objective for the Village of Cloudcroft in 2005 (Cloudcroft Area Sustainability Team 1995). Based upon comments related to the proposed rule from the Village of Cloudcroft (2001), we found that this information is not accurate. The Village's view on development has changed, due in part to a lack of groundwater (Service 2004b). For example, in August 2004, a water crisis was declared in Cloudcroft and drinking water was being hauled to the Village (Shinabery 2004a, 2004b). They no longer intend to develop a golf course (Village of Cloudcroft 2001, Service 2004b).

Since the proposed rule, we have also received updated information on the Village of Cloudcroft land transfer, which is located in areas adjacent to the Village. In the proposed rule, we found that the land transfer would provide additional land for commercial, industrial, educational, and recreational expansion for the Village of Cloudcroft, further degrading or eliminating suitable
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habitat and restricting the movement of butterflies between local populations. The Forest Service has completed NEPA compliance and signed a decision notice to allow the Village of Cloudcroft to purchase 33 ha (81 ac) of National Forest lands pursuant to the Townsite Act (Forest Service 2001a, 2001b). The land transfer includes five parcels of land totaling 33 ha (81 ac). Within these parcels butterflies have been observed in parts of parcels 3, 4, and 5. The portion of these parcels that is considered to be butterfly habitat amounts to about 1.2 ha (3 ac) of the 33 ha (81 ac) being offered to the Village (Forest Service 2001a, 2001b, Service 2004, 2004d). The remaining 32 ha (78 ac) are currently not suitable butterfly habitat (Forest Service 2001a, 2001b). To date, the Village has not purchased the five parcels of land; however, the majority of these parcels are intended for use as greenbelts and buffers and not development as we had described in our proposed rule (Forest Service 2001a, 2001b, Service 2004b). The use of these areas as greenbelt would be consistent with the Village of Cloudcroft's local zoning regulations related to open space. The Village of Cloudcroft's Village Code document (Chapter 7 of the Village CodeGreenbelt Zones Use Regulations G1 Zone), states that Greenbelt Zones shall consist of open space with no structures or commercial signs allowed (Service 2004). In addition, the zoning regulations prohibit overnight parking or camping within greenbelt zones. The Village of Cloudcroft has stated its intention to keep all new land annexed from the Forest Service as greenbelt (Service 2004b). It is our understanding that greenbelt areas are not generally mowed by the Village of Cloudcroft (Forest Service 2004f). Because of the small scale of potential impacts involved in this land transfer (less than 1.2 ha (3 ac)), the new information on the species' ability to recolonize areas (see discussion on the edges of the football field below), and the intention to keep these parcels as greenbelt, we now conclude that the incremental impact of this land transfer when added to other past, present, or reasonable foreseeable future actions (i.e., cumulative effects) on the butterfly's longterm persistence is not significant.

The history of habitat occupied by the butterfly (e.g., Deerhead Campground, Pines Campground) could be characterized by frequent, often major, impacts to soils and vegetation. For example, impacts from logging operations and infrastructure were historically present throughout the Sacramento Mountains (Kaufmann et al. 1998, Glover 1984). In fact, a railroad was constructed in June 1900 and operated until 1947 through the area where presentday Deerhead Campground is located (NMSHTD 2001; Glover 1984). The butterfly continues to be found at this locality. Thus, it appears that the butterfly and its foodplants can tolerate a certain amount of natural and manmade disturbances.

We previously identified that heavy clearing or mowing of native vegetation on improved (i.e., with existing structures) or unimproved private lands, to reduce the threat of wildfire or improve the residential appearance, could eliminate larval or adult food plants and/or localities that are used by the butterfly. Additionally, we found that the conversion of native landscapes to nonnative vegetation (e.g., lawns or gardens) could fragment butterfly localities, eliminate movement corridors, and cause additional loss of suitable habitat (Wood and Samways 1991, Holland 2001). Although these activities have the potential to reduce blocks of native vegetation to fragments, creating a matrix of native habitat islands, we have no specific information to conclude that these activities are significantly threatening the butterfly.

The Village of Cloudcroft is situated on approximately 324 ha (800 ac), and is surrounded by National Forest lands (Forest Service 2001b). The character of the Village is largely residential, with cabins, houses, and business serving the local vacation and touristbased economy. Within the butterfly habitat of the Village of Cloudcroft, the native vegetation is generally not cleared or mowed because it adds to the rustic charm of the area. The New Mexico State Highway Transporation Department (NMSHTD) is responsible for maintaining the rightsofway within Highways 82, 244, and 130. Much of the potential butterfly habitat within these rightsofway is too steep for mowing or mowing is not needed (Forest Service 1999b). The NMSHTD generally occurs outside of the known range of the butterfly Dry Canyon eastward to Mayhill, but may occasionally mow the vegetation within the known range of the butterfly adjacent to Highways 82, 244, and 130, if the rightsofway are not too steep (Forest Service 1999b, 2004f). The Forest Service found there are at least 3 areas within the Village of Cloudcroft that are occupied by the butterfly, including the edges of the existing golf course, residential areas along the southeast, and adjacent to Highway 82 (Forest Service 2004e). As noted below, we found another area (i.e., the edges of the football field) that was not butterfly habitat and had been recently cleared of trees, has been colonized this year (Service 2004d). This has been reported elsewhere for butterflies in the genus Euphydryas (Ehrlich and Hanski 2004). For example, freshly created habitats on road verges, railway embankments, and wide forest tracks (associated with timber extraction) have been colonized by many species of butterfly (see Thomas 1994). These areas are likely to provide connectivity through ``stepping stones'' to other occupied butterfly localities (Thomas et al. 1992).

Recently, we also found that butterfly habitat has been created adjacent to a football field that was part of a 1996 land purchase (Service 2004d, Forest Service 2001a, 2001b). In an area adjacent to the football field that was previously forested and not considered butterfly habitat (Forest Service 2001a), we found larvae in diapause. During surveys in October 2004, we found New Mexico penstemon and valerian (Valeriana edulis) growing abundantly throughout the area and, based upon the presence of larvae, conclude that reproduction occurred in this area during 2004 (Service 2004d). This indicates that larval foodplants were naturally reestablished following forest clearing and soil disturbance. The butterfly subsequently colonized the area. This information demonstrates the resiliency of the butterfly and its footplants, and their ability to colonize new habitat. Based upon our assessment of these data, it appears that habitat connectivity is still provided through much of the land within the range of the butterfly. Thus, heavy clearing or mowing of native vegetation cannot be considered a significant threat presently or in the foreseeable future. Summary

As evidenced by the foregoing discussion of occupied butterfly habitat on private lands within the Village of Cloudcroft and Otero County, it has been demonstrated that the butterfly can coexist within developed areas. The potential threat to the butterfly from private and commercial development is not as significant as we originally believed. For example, we estimate that no more than 7.3 of 484 ha (18 of 1,196 ac) of suitable butterfly habitat on private land have the potential to be impacted from development activities. The Village of Cloudcroft will also continue to follow their greenbelt zoning regulations, thus limiting potential impacts within butterfly habitat on newly purchased/ acquired land. This new information indicates commercial and private development is
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no longer a substantial threat to the species currently or in the foreseeable future within the Village of Cloudcroft and Otero County. Forest Service Activities

In the proposed rule we concluded that those Forest Service projects listed below, that are within the known range of the butterfly, had the potential to adversely affect the butterfly. Since the time of the proposal, the Forest Service has eliminated some proposed projects (e.g., the construction of a new administrative building) in habitat used by the butterfly (Forest Service 2001, 2003a). They have also taken actions to protect and manage the butterfly, including instituting a butterfly closure order (see discussion below), fencing occupied butterfly habitat, and conducting butterfly surveys to determine range and occupancy (Forest Service 1999a, 1999b, 1999h, 2000a, 2000d, 2004). These actions have eliminated or lessened threats to the species and have been beneficial for increasing our knowledge of this species.

Below, we provide a brief summary of projects that have gone through conferencing as required for proposed species under section 7 of the Act. The next section includes an update to those projects previously identified as threats to the species: (1) The capital improvement projects for three campgrounds; (2) a new power line, service road, and corridor; (3) livestock grazing activities in several allotments, one of which (Sacramento Allotment) encompasses over 44,921 ha (111,000 ac); (4) a land transfer to the Village of Cloudcroft, which was analyzed above; and fire suppression and wildfire.

We have a good history of conferencing with the Forest Service under section 7 of the Act on activities that may affect the butterfly. Thus, we can describe the kinds of actions that have undergone informal and formal conferencing. For example, we have found that many potential threats anticipated in the proposed rule resulted in insignificant and discountable effects for the butterfly (Service 2002, 2004a). These include: noxious weed management, reconstruction of Fir Campground, some wildland urban interface fuels management projects, and construction of the new Forest Service administrative building (Service 2002, 2003a, Forest Service 2003a). Additionally, the majority of formal conferences that have anticipated incidental take of butterflies have found that shortterm impacts will occur, but the overall project will result in longterm benefits for the species (Rio Pe[ntilde]asco II, Pines Campground reconstruction), or that impacts to occupied habitat will not affect the metapopulation dynamics of the species (Service 2001a, 2002b, 2002c, 2004e).

To date, six projects have undergone formal conferencing for the butterfly and its proposed critical habitat. The projects with anticipated take include: (1) Cloudcroft Water Wells (22202F012; 1.5 ha (3.7 ac) of occupied habitat impacted); (2) Genetics Study (2 2202F667; 100 prediapause larvae collected); (3) Markrelease movements study (22202F470; 15 adult butterflies harmed, unlimited number harassed); (4) Rio Pe[ntilde]asco II vegetation management project (22202F397; 14.7 ha (36.4 ac) of occupied habitat
impacted); (5) Pines Campground Reconstruction project (22203F0061; 4.2 ha (10.5 ac) of occupied habitat impacted); (6) Village of Cloudcroft Apache and Powerline water wells (22204F721; less than 1.2 ha (3 ac) of occupied habitat impacted). We are also currently conferencing on two additional projects: (1) The reinitiation of the Rio Pe[ntilde]asco II vegetation management project that will likely impact an additional 13 ha (33 ac) of occupied butterfly habitat; and (2) a proposed elk study that will impact about 2.4 ha (6 ac) of occupied habitat. In all of our conferences, we concluded that the actions, as proposed, were not likely to jeopardize the continued existence of the butterfly and are not likely to destroy or adversely modify proposed critical habitat.

Campground Projects

In 1998, recreation managers and engineers of the Lincoln National Forest and the Forest Service's Southwest Regional Office reviewed improvements needed throughout existing developed campgrounds of the Sacramento Ranger District. In 1998, all phases of the district's recreation improvement proposal were submitted for funding under the Recreation Capital Improvement Program (Forest Service 2003b). As described below, three of the four phases have been completed (Pines, Fir, and Silver, Saddle, and Apache Campgrounds).

Pines Campground located near the Village of Cloudcroft contains one of the largest known concentrations of the butterfly.
Reconstruction activities in this campground were completed following formal conferencing (Service 2002a). We found that the implementation of this project, along with the conservation measures, will likely result in shortterm adverse impacts to the butterfly and its habitat, but will ultimately reduce the longterm recreational impacts to the species and its habitat in this locality (Service 2002a). For example, the capacity of the campground has been significantly reduced, indicating that potential recreational impacts have decreased. The construction of retaining walls, fencing, and signs, the enforcement of areas not open to camping, and the installation of a barrier across the butterfly habitat has resulted in longterm benefits for the species (e.g., the impact of trampling of foodplants and crushing of larvae has been reduced). For these reasons, we believe that the reconstruction of Pines Campground did not disrupt the metapopulation dynamics of the butterfly (Service 2003). Because these activities were completed during 2004 (Service 2004d), this action no longer threatens the butterfly.

The Fir Campground Capital Improvements Project underwent informal conferencing and resulted in a letter of concurrence (Service 2002). This project also redesigned the group camping area and paved the existing road. The Forest Service flagged and avoided butterfly locations during project construction. Additionally, a boundary fence was constructed to reduce longterm recreational and visitor impacts to butterfly habitat in the area. This action was completed in summer 2002 and no longer threatens the butterfly.

Silver, Saddle, and Apache Campgrounds were reconstructed during the summer of 2001 (Forest Service 2000). The Forest Service conducted butterfly surveys and did not locate any individuals; consequently, the Forest Service determined that no threatened, endangered, or sensitive species would be adversely affected (Forest Service 2000). Because this action was completed, it no longer threatens the butterfly.

Under phase 4, the Forest Service is currently finalizing a proposal to reconstruct the remaining 5 campgrounds (Sleepy Grass, Black Bear Group, Aspen Group, Deerhead, and Slide Group) that are occupied by the butterfly (Forest Service 2003b, 2004i). We toured the five campgrounds on October 27, 2004, and discussed aspects of the proposal. For the final five campgrounds slated for renovations, the Forest Service's draft environmental analysis evaluates three alternatives: A no action and two action alternatives (Forest Service 2004i). Both action alternatives incorporate measures to minimize impacts to the butterfly, although one alternative will protect more butterfly habitat through the placement of camp and day use sites in areas that are not butterfly habitat (e.g.,
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forest habitat) (Forest Service 2004i). Regardless of which action alternative is chosen, this proposal will result in longterm benefits to the butterfly because more area of butterfly habitat will be protected than under existing conditions (Forest Service 2004i). The purpose of the project is to improve or replace the facilities in the campground to enhance the safety, accessibility and enjoyment of the site for National Forest visitors, while conserving the natural and cultural resources in the area. The main tenets of this proposal are to reduce the number of camping sites and condense the campgrounds into smaller areas through permanent campground boundaries with physical barriers (e.g., fences or boulders) to reduce access and associated trampling of butterfly habitat (Forest Service 2004i). Construction activities will likely be initiated during 2005 and will follow predefined best management practices and include seasonal restrictions during construction, monitoring of construction activities, surveys for the butterfly and foodplants, and revegetation where appropriate (Service 2004d, Forest Service 2004i). Construction will not result in a disruption of the overall metapopulation dynamics of the species because impacts will only be a shortterm disturbance of butterfly habitat, with a minor amount of butterflies affected. We have found that these types of impacts are not a significant threat to the butterfly because the species and its foodplants have been demonstrated to be resilient to some disturbances (e.g., edges of the football field, campgrounds, and railroad) (Service 2004d). This remaining capital improvement project will offset the high demand for developed recreation, while limiting associated recreational impacts to the butterfly. For these reasons, reconstruction of the remaining five campgrounds is not considered a threat to the butterfly and will result in longterm benefits over existing conditions.

Powerline, Service Road, and Corridor

The Forest Service issued a special use permit for the Otero County Electrical Cooperative Powerline project to install a new powerline corridor (Service 2000). The Forest Service determined that the powerline project was expected to result in a disturbance of less than 0.4 ha (1 ac) of suitable butterfly habitat (Forest Service 1999a). They developed a seed mix for erosion control, avoided construction during the active season of butterfly, and added some nectarsource species to restore the area of disturbance (Forest Service 1999a, 2000b). This action resulted in insignificant effects to the butterfly and does not threaten the butterfly currently or in the foreseeable future.

In October 2001, we informally conferenced on the Dry Canyon Telephone project with the Forest Service (Service 2001a). Under this project, the Forest Service relocated a planned telephone line from suitable butterfly habitat to burial in the middle of a road (Forest Service 1999) that is not butterfly habitat. The Forest Service also completed several conservation measures (e.g., foodplants were flagged and avoided within equipment staging areas) as part of this project (Forest Service 2002). The impacts associated with habitat disturbance from this project were temporary. Therefore, this project was, but is no longer considered a threat to the species.

The economic analysis estimated that over the next 10 years about 145 km (90 mi) of rightsofway within butterfly habitat will be maintained, and that the Forest Service and Otero County Electric Cooperative will apply conservation activities for the species that range from $30,400 to $39,600 per mile ($48,640 to $63,360 per km) (Service 2004c). Rightsofway provide access to powerlines and poles for routine monitoring and maintenance activities (1999a). For example, powerlines are visually inspected about 4 to 6 times per year by driving a vehicle along the powerline and checking for any problems or hazards (e.g., remove hazard trees) (Forest Service 1999a). Existing rightsofway access range from twotrack dirt paths to graveled roads in some of the areas that traverse or are adjacent to a variety of areas including meadows, mixed conifer forest, and pavement (Forest Service 1999a). These activities could result in adverse effects to the butterfly from scraping and grading activities (e.g., some individuals will likely be crushed and killed); however, we anticipate that the majority of impacts from rightsofway maintenance activities will be temporary (scraping and leveling vegetation from within the footprint of existing rightsofway). The Forest Service indicated that they will issue a special use permit that includes conservation measures for the butterfly (Forest Service 2004i). Moreover, annual maintenance projects are expected to be conducted in phases such that not all 145 km (90 mi) of rightsofway will be impacted in a given year (Forest Service 2004l). We encouraged the Forest Service to include a seasonal restriction during the active season of the butterfly and revegetate areas that are disturbed during maintenance activities to limit adverse impacts (Service 2004c). The Forest Service indicated that they were unable to include specific measures because activities vary from year to year and project to project (Forest Service 2004l). Nevertheless, the contractors that conducted our draft economic analysis of the proposed critical habitat for the butterfly interviewed employees of the Otero County Electric Cooperative and found that they were anticipating seasonal restrictions on maintenance activities (Service 2004). Based upon this information, the special use permit will likely include some measures to limit adverse effects on the butterfly, but may not avoid all impacts such as crushing of larvae from heavy equipment use. Nevertheless, because of the linear nature of these impacts and the recognition that adjacent habitat will remain intact, we believe this activity represents only a limited threat to the species. We also note that no n

FOR FURTHER INFORMATION CONTACT Susan MacMullin, Field Supervisor, New Mexico Ecological Services Field Office (telephone 5057614706, facsimile 5053462542).