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Proposed Rule2021-12576

Endangered and Threatened Wildlife and Plants; Reclassifying the Fender's Blue Butterfly From Endangered to Threatened With a Section 4(d) Rule

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Published

June 23, 2021

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service (Service), propose to reclassify the Fender's blue butterfly (Icaricia icarioides fenderi) from endangered to threatened (downlist) under the Endangered Species Act of 1973, as amended (Act). The Fender's blue butterfly is endemic to the Willamette Valley of Oregon. The proposed downlisting is based on our evaluation of the best available scientific and commercial information, which indicates that the species' status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so in the foreseeable future. We also propose a rule under section 4(d) of the Act that provides for the conservation of the species.

Full Text

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[Federal Register Volume 86, Number 118 (Wednesday, June 23, 2021)]
[Proposed Rules]
[Pages 32859-32878]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12576]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0082; FF09E22000 FXES11130900000 212]
RIN 1018-BD97

Endangered and Threatened Wildlife and Plants; Reclassifying the
Fender's Blue Butterfly From Endangered to Threatened With a Section
4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
reclassify the Fender's blue butterfly (Icaricia icarioides fenderi)
from endangered to threatened (downlist) under the Endangered Species
Act of 1973, as amended (Act). The Fender's blue butterfly is endemic
to the Willamette Valley of Oregon. The proposed downlisting is based
on our evaluation of the best available scientific and commercial
information, which indicates that the species' status has improved such
that it is not currently in danger of extinction throughout all or a
significant portion of its range, but that it is still likely to become
so in the foreseeable future. We also propose a rule under section 4(d)
of the Act that provides for the conservation of the species.

DATES: We will accept comments received or postmarked on or before
August 23, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 9, 2021.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter FWS-R1-ES-2020-0082,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R1-ES-2020-0082, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
Document availability: This proposed rule and supporting documents,
including the 5-year review, the Recovery Plan, and the species status
assessment (SSA) report are available at <a href="https://www.fws.gov/oregonfwo">https://www.fws.gov/oregonfwo</a>
and at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R1-ES-2020-0082.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S.
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE
98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179. If
you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction). The Fender's
blue butterfly is listed as endangered, and we are proposing to
reclassify (downlist) the Fender's blue butterfly as threatened because
we have determined it is not currently in danger of extinction.
Downlisting a species as a threatened species can only be made by
issuing a rulemaking.
What this document does. This rule proposes to downlist the
Fender's blue butterfly from endangered to threatened (i.e., to
``downlist'' the species), with a rule issued under section 4(d) of the
Act, based on the species' current status, which has been improved
through implementation of conservation actions.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We may downlist a species if the
best available commercial and scientific data indicate the species no

[[Page 32860]]

longer meets the applicable definition in the Act. We have determined
that the Fender's blue butterfly is no longer in danger of extinction
and, therefore, does not meet the definition of an endangered species,
but is still affected by the following current and ongoing threats to
the extent that the species meets the definition of a threatened
species under the Act: The loss, degradation, and fragmentation of
prairie and oak savannah habitats including conversion to non-habitat
land uses (e.g., urban development, agriculture); elimination of
natural disturbance regimes; encroachment into prairie habitats by
shrubs and trees due to fire suppression; insecticides and herbicides;
and invasion by non-native plants.
We are proposing to promulgate a section 4(d) rule. We propose to
prohibit all intentional take of the Fender's blue butterfly and
specifically allow incidental take by landowners or their agents while
conducting management for the creation, restoration, or enhancement of
short-stature native upland prairie or oak savannah conditions under
section 9(a)(1) of the Act as a means to provide protective mechanisms
to our State and private partners so that they may continue with
certain activities that will facilitate the conservation and recovery
of the species.
This document consists of: (1) A summary of the status of Fender's
blue butterfly and the most recent 5-year review recommendation that
the species be reclassified from endangered to threatened status; (2) a
proposed rule to list Fender's blue butterfly as a threatened species
under the Act; and (3) a proposed rule under section 4(d) of the Act to
provide for the conservation of the species (hereafter, a ``4(d)
rule''). Additionally, to support our species status review, we
prepared a Species Status Assessment Report for the Fender's Blue
Butterfly (USFWS 2020, entire) that presents a thorough review of the
taxonomy, life history, ecology, and overall viability of the Fender's
blue butterfly (available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, Docket No.
FWS-R1-ES-2020-0082, under Supporting Documents).

Information Requested

Public Comments

We intend that any final action resulting from this proposed rule
be based on the best scientific and commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments and information from other concerned
governmental agencies, the scientific community, industry, or any other
interested parties concerning this proposed rule. In particular, we
seek comments concerning:
(1) Reasons we should or should not reclassify Fender's blue
butterfly from an endangered species to a threatened species.
(2) New biological or other relevant data concerning any threat (or
lack thereof) to Fender's blue butterfly and any existing regulations
that may be addressing these or any of the stressors to the species
discussed here.
(3) New information concerning the population size or trends of
Fender's blue butterfly.
(4) Current or planned activities within the geographic range of
Fender's blue butterfly that may have adverse or beneficial impacts on
the species.
(5) New information or data on the projected and reasonably likely
impacts to Fender's blue butterfly or its habitat associated with
climate change or any other factors that may affect the species in the
future.
(6) Information on regulations that are necessary and advisable to
provide for the conservation of Fender's blue butterfly and that the
Service can consider in developing a 4(d) rule for the species.
(7) Information concerning the extent to which we should include
any of the section 9 prohibitions in the 4(d) rule or whether any other
forms of take should be excepted from the prohibitions in the 4(d)
rule.
Please include sufficient information with your submission (such as
scientific journal articles or other publications, preferably in
English) to allow us to verify any scientific or commercial information
you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species
should remain listed as endangered instead of being reclassified as
threatened, or we may conclude that the species no longer warrants
listing as either an endangered species or a threatened species. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions if we conclude it is appropriate in
light of comments and new information received. For example, we may
expand the incidental-take prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the incidental-take prohibitions in
the final rule if we conclude that the activities would facilitate or
are compatible with the conservation and recovery of the species.

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for
the

[[Page 32861]]

Fender's blue butterfly. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), our August 22, 2016,
Director's Memo on the Peer Review Process, and the Office of
Management and Budget's December 16, 2004, Final Information Quality
Bulletin for Peer Review (revised June 2012), we sought the expert
opinions of 12 appropriate and independent specialists with knowledge
of the biology and ecology of Fender's blue butterfly or its habitat
regarding the SSA report. The purpose of peer review is to ensure that
our determination regarding the status of the species under the Act is
based on scientifically sound data, assumptions, and analyses. We
received feedback from 5 of the 12 peer reviewers contacted. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the final SSA report, which is the
foundation for this proposed rule.

Previous Federal Actions

On January 27, 1998, we published a proposed rule (63 FR 3863) to
list the Fender's blue butterfly (Icaricia icarioides fenderi), Lupinus
sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron decumbens
var. decumbens (Willamette daisy) under the Act, without critical
habitat. On January 25, 2000, we published the final rule designating
endangered status for the Fender's blue butterfly and Willamette daisy,
and threatened status for Kincaid's lupine (65 FR 3875).
On November 2, 2005, we published a proposed rule in the Federal
Register to designate critical habitat for the Fender's blue butterfly,
Kincaid's lupine, and Willamette daisy (70 FR 66492). We published the
final rule designating critical habitat for the Fender's blue
butterfly, Kincaid's lupine, and Willamette daisy on October 31, 2006
(71 FR 63862). The final critical habitat designation included
approximately 1,218 hectares (ha) (3,010 acres [ac]) for Fender's blue
butterfly in Oregon; 237 ha (585 ac) for Kincaid's lupine in Oregon and
Washington; and 291 ha (718 ac) for Willamette daisy in Oregon.
On September 22, 2008, we published the notice of availability of
the draft Recovery Plan for the Prairie Species of Western Oregon and
Southwestern Washington (hereafter ``recovery plan'') in the Federal
Register (73 FR 54603). The notice of availability for the final
recovery plan was published in the Federal Register on June 29, 2010
(75 FR 37460).
On July 6, 2005, we announced the initiation of a 5-year review of
the Fender's blue butterfly under section 4(c)(2)(b) of the Act (70 FR
38972). The 5-year status review for the Fender's blue butterfly was
signed on March 6, 2019.

Background

Status Assessment for the Fender's Blue Butterfly

We prepared an SSA report for the Fender's Blue Butterfly (USFWS
2020, entire) that presents a thorough review of the taxonomy, life
history, ecology, and overall viability of the Fender's blue butterfly.
In this proposed rule we present only a summary of the key results and
conclusions from the SSA report; the full report is available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, as referenced above.

Recovery Planning and Recovery Criteria

Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List.
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species, or to
delist a species is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
In 2010, we finalized the Recovery Plan for the Prairie Species of
Western Oregon and Southwestern Washington, which applied to a suite of
endemic species including Fender's blue butterfly (USFWS 2010, entire).
The objective of the recovery plan is to achieve viable populations of
the listed species distributed across their historical ranges in a
series of interconnected populations. This objective was to be
accomplished by establishing metapopulations of restored prairie
reserves across the geographic range covered by the recovery plan
(USFWS 2010, p. v). The recovery plan set abundance and distribution
goals for Fender's blue butterfly by delineating three recovery zones
(Salem, Corvallis, and Eugene) encompassing the historical range of the
species. The two downlisting criteria established for Fender's blue
butterfly were as follows:
(1) Each recovery zone has one functioning network (a
metapopulation with several interacting subpopulations, as defined in
the recovery plan) with a minimum count of 200 butterflies, distributed
among 3 subpopulations, for at least 10 years; in addition to this
network, there must be a second functioning network or 2 independent
populations with butterflies present each year in each recovery zone.
Downlisting goals were set at a 90 percent probability of persistence
for 25 years.
(2) Two functioning networks or one functioning network and two
independent populations in each zone

[[Page 32862]]

must be protected and managed for high-quality prairie habitat. The
plan described high-quality prairie as habitat consisting of a
diversity of native, non-woody plant species, various nectar plants
that bloom throughout the flight season of Fender's blue butterfly, low
frequency of nonnative plant species and encroaching woody species, and
essential habitat elements (e.g., nest sites and food plants) for
native pollinators. At least one of the larval host plant species,
Lupinus sulphureus ssp. kincaidii, L. arbustus or L. albicaulis, must
be present.
All three recovery zones have at least two metapopulations (Table
1). The Baskett, Wren, West Eugene, and Willow Creek metapopulations
have had more than 200 butterflies each year for at least 10
consecutive years and are therefore meeting the recovery criteria. In
addition, the Gopher Valley, Oak Ridge, Butterfly Meadows, Greasy
Creek, Lupine Meadows, Coburg Ridge, and Oak Basin metapopulations have
had butterflies present for at least 10 years though they have not
exceeded the count of 200 butterflies. Thus, the species is currently
meeting population criteria for downlisting. That said, concern remains
for the Corvallis recovery zone in the middle of the species' range,
with metapopulations that are generally less robust and more vulnerable
to deteriorating in condition over time.
The species is currently meeting habitat management and protection
downlisting criteria. In each recovery zone, we have at least three
metapopulations with greater than 75 percent of their habitat protected
(Table 1). Managers of protected land either have a habitat management
plan in place, or are in the process of creating plans to maintain
prairie quality for Fender's blue butterfly. Although the recovery plan
has identified the number of nectar species and sufficient amount of
nectar to make up high quality habitat, our metapopulations currently
do not meet the strict definition as spelled out in the recovery plan.
However, we believe that for the species to achieve recovery, it does
not need to fulfill this part of the criteria as laid out in the
recovery plan. We will discuss this in greater detail below.

Table 1--Fender's Blue Butterfly Distribution, Abundance And Protection Across Recovery Zones
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Number
At least 200 consecutive Time period Butterflies Habitat
Metapopulation butterflies for years >=200 with >=200 present for protection (%)
10 years butterflies butterflies past 10 years
----------------------------------------------------------------------------------------------------------------
Salem Recovery Zone:
Baskett................... Y 18 2000-2018 Y 100
Gopher Valley............. N 7 2012-2018 Y 100
Hagg Lake................. N 8 2011-2018 N 100
Moores Valley............. N 0 - N 100
Oak Ridge................. N 6 2013-2018 Y 35
Turner Creek.............. N 0 - N 45
Corvallis Recovery Zone:
Butterfly Meadows......... N 6 2003-2009 Y 24
Finley.................... N 3 2016-2018 N 100
Greasy Creek.............. N 0 - Y 4
Lupine Meadows............ N 6 2003-2009 Y 100
Wren...................... Y 12 2006-2018 Y 93
Eugene Recovery Zone:
Coburg Ridge.............. N 2 2006-2007 Y 77
Oak Basin................. N 0 - Y 100
West Eugene............... Y 15 2003-2018 Y 100
Willow Creek.............. Y 25 1993-2018 Y 100
----------------------------------------------------------------------------------------------------------------

While Fender's blue butterfly meets downlisting criteria, the
species does not meet delisting criteria. The three delisting criteria
established for Fender's blue butterfly were as follows:
(1) Each of the three recovery zones has a combination of
functioning networks and independent populations such that the
probability of persistence is 95 percent over the next 100 years;
Annual population surveys in each functioning network and independent
population must count at least the minimum number of adult butterflies
for 10 consecutive years.
(2) Sites supporting populations of Fender's blue butterflies
considered in Criterion 1 above must be protected and managed for high-
quality prairie habitat as described in the recovery plan.
(3) Monitoring of populations following delisting will verify the
ongoing recovery of the species, provide a basis for determining
whether the species should be again placed under the protection of the
Act, and provide a means of assessing the continuing effectiveness of
management actions.
Delisting may be achieved with a variety of combinations of
metapopulations and independent populations in each recovery zone as
detailed in the recovery plan. Currently, each recovery zone has at
least four metapopulations meaning that each metapopulation would need
a minimum of 400 butterflies in each of 10 consecutive years to meet
delisting Criterion 1. At this time, none of the recovery zones meet
this criterion. For Criterion 2, many of the sites for the Fender's
blue butterfly have protection in place. Currently, we have three HCPs,
17 SHA, and many partners agreement in place. These agreements help
maintain the species habitat through prairie habitat restoration and
enhancement. Overall, there is currently management and protection for
the Fender's blue butterfly habitat. However, these sites do not
possess sufficient number of butterflies to meet Criterion 1.
Additionally, we also do not have post-delisting monitoring plans or
agreements in place to assure habitat management will continue for this
conservation-reliant species as per delisting Criterion 3. Therefore,
although there are management plans in place for the species habitat,
because we do not have sufficient number of butterflies within the
metapopulations and we also do not have long term agreements for
continual habitat management, this species does not meet the threshold
for delisting.
The extinction thresholds underlying downlisting and delisting
criteria were derived from a census-based population

[[Page 32863]]

viability analysis (PVA) conducted shortly after listing the Fender's
blue butterfly (USFWS 2010, pp. IV-29-IV-31 and IV-34). However, for
the reasons described below, we are conducting a new PVA using an
individual-based population model and reevaluating the delisting
recovery criteria in light of the best scientific data that are now
available. As described in the SSA report, the PVA used to develop the
initial recovery criteria relied upon several assumptions that, based
on our improved understanding of the ecology of the butterfly, we now
know are outdated and require modification. We also have an additional
decade of monitoring data and increased confidence in the accuracy of a
standardized monitoring protocol implemented in 2012 (USFWS 2020, pp.
47-52). Furthermore, the recovery plan set specific targets for the
abundance and diversity of nectar species required to be of high
habitat quality to support Fender's blue butterfly, as well as a
minimum density of lupine leaves (the host plant for the species'
larval life stage). For various reasons detailed in the SSA report,
including a limited dataset and conflicting results regarding the
correlation between these resources and densities of Fender's blue
butterfly, these targets are also now in question (USFWS 2020, pp. 65-
67).
Because we are in the process of reevaluating the current recovery
criteria for Fender's blue butterfly as presented in the recovery plan
for the species (USFWS 2010, pp. IV-29-IV-31 and IV-34), we did not
assess the status of Fender's blue butterfly relative to all of the
existing habitat targets. However, in our SSA, we did consider the
status of the species relative to the overarching goals of protecting
existing populations, securing the habitat, and managing for high-
quality prairie habitats; all of these were downlisting and delisting
considerations described in the recovery plan (USFWS 2010, p. IV-9). In
addition, our evaluation under the SSA framework (USFWS 2016) reflects
the fundamental concepts captured in the recovery plan strategy of
achieving multiple populations with connectivity between them
distributed across the historical range of the species. For example, we
find that the minimum number threshold from the recovery plan remains
valid because population size targets based on minimum population size
eliminate confounding variation from stochastic events that may not
reflect demographic changes. In other words, averages may be
artificially high or low if you have one unusual weather year.
Additionally, we partially rely upon the habitat targets for nectar
species for evaluating the status of the species. We acknowledge that
the species needs a variety of different species as nectar sources. The
recovery plan identifies the quantity of nectar needed per area and the
number of native nectar species. However, we do not find that the
quantity defined in these habitat targets of the recovery plan is
needed for the recovery of the species as we have seen sites maintain
viability despite not meeting the target (i.e., there are sites that
are able to maintain viability with lower quantity of nectar and
nonnative nectar species). We also explicitly considered not only the
quality of the prairie habitat, using the recommended guidelines for
prairie quality and nectar availability in the recovery plan, but also
the management and protection status of butterfly occurrences (see,
e.g., USFWS 2010, p. IV-13, pp. IV-29-IV-31).
In sum, for the purpose of this status review, we evaluated the
status of Fender's blue butterfly in terms of the relative viability of
the species over time and the conservation biology principles of
resiliency, redundancy, and representation of its constituent
populations (Shaffer and Stein 2000, pp. 307-310; Wolf et al. 2015,
entire; Smith et al. 2018, entire). Extinction risk is generally
reduced as a function of increased population abundance (resiliency),
numbers of populations (redundancy), and distribution or geographic or
genetic diversity (representation). We combined our assessment of the
resiliency, redundancy, and representation of Fender's blue butterfly
populations with our evaluation of the ongoing and future threats to
the species, as defined under section 4(a)(1) of the Act, to assess the
overall status of the species in terms of its current viability and
relative viability over a range of plausible futures (Smith et al.
2018, p. 306; USFWS 2020, entire).

Taxonomy and Historical Distribution

The Fender's blue butterfly was first described in 1931 as Plebejus
maricopa fenderi based on specimens collected near McMinnville, Oregon,
in Yamhill County (Macy 1931, pp. 1-2). The Fender's blue butterfly was
classified in the Lycaenidae family within the subfamily Polyommatinae
as a subspecies of Boisduval's blue butterfly based on adult characters
and geographic distribution. The species maricopa was considered a
synonym of the species icarioides and was later determined to be a
member of the genus Icaricia, rather than the genus Plebejus. The
worldwide taxonomic arrangement of the subtribe Polyommatina (which
contains blue butterflies) was fluctuating between Plebejus and
Icaricia until it was revised in 2013 as Icaricia. The current
scientific name, Icaricia icarioides fenderi, was validated by the
Integrated Taxonomic Information System (ITIS) and experts at the
McGuire Center for Lepidoptera and Biodiversity, a division of the
Florida Museum of Natural History at the University of Florida (see
USFWS 2020, p. 15, for all citations).
We do not know the precise historical distribution of Fender's blue
butterfly due to the limited information collected on this subspecies
prior to its description in 1931. Only a limited number of collections
were made between the time of the subspecies' discovery and its
presumed last observation on May 23, 1937, in Benton County, Oregon,
leading the scientific community to assume the species was extinct
(Hammond and Wilson 1993, p. 3). Fender's blue butterfly was
rediscovered in 1989 at the McDonald State Forest, Benton County,
Oregon, on the uncommon plant, Kincaid's lupine. Surveys since its
rediscovery indicate that the distribution of Fender's blue butterfly
is restricted to the Willamette Valley in Benton, Lane, Linn, Polk,
Yamhill, and Washington Counties in Oregon.

Population Terminology

In some instances, populations that are spatially separated
interact, at least on occasion, as individual members move from one
population to another. In the case of Fender's blue butterfly, the
clear delineation of discrete populations and subpopulations is
challenging because of the uncertainty regarding the extent to which
individuals at known sites interact with each other or with other
individuals on the landscape of adjacent private lands that are
inaccessible to researchers and remain unsurveyed. Thus, in the SSA
report and in this document, we use the term ``metapopulation'' as a
rough analog to the more familiar term ``population''. We use the term
metapopulation to describe groups of sites occupied by Fender's blue
butterflies that are within 2 kilometers (km) (1.2 miles [mi]) of one
another and not separated by barriers. We chose this distance because
it is the estimated dispersal distance of Fender's blue butterfly
(Schultz 1998, p. 290). We assume that butterflies within a
metapopulation are capable of at least occasional interchange of
individuals. We do not anticipate that metapopulations across the range
of the species will interact with one another given the distance and
structural

[[Page 32864]]

barriers between them. The definition of metapopulation used here and
in the SSA report is not the same as the ``functioning network''
defined in the recovery plan because the latter does not allow for
circumstances when populations do not meet the recovery plan definition
of either an independent population or a functioning network. It also
included a requirement for a minimum patch size of 18 ha (44 ac) for
each network, which we now know is not necessary, as the butterfly can
thrive in much smaller patch sizes. Further information regarding these
definitions is detailed in the SSA report (USFWS 2020, pp. 41-42).
Locations containing Fender's blue butterfly occur across multiple
land ownerships and have varying degrees of habitat protection, and are
managed in different ways. We use the term ``site'' to identify a
management unit or land ownership designation; multiple sites may
therefore comprise a single metapopulation. An ``independent group'' of
Fender's blue butterfly refers to occupied sites that are more than 2
km (1.2 mi) from another occupied site and/or are separated by barriers
from other occupied sites such that butterflies are unable to interact.

Summary of the Biology and Life History of the Species

The Fender's blue butterfly is found only in the prairie and oak
savannah habitats of the Willamette Valley of Oregon. Adult Fender's
blue butterflies are quite small, having a wingspan of approximately 25
millimeters (mm) (1 inch [in]). The upper wings of males are brilliant
blue in color with black borders and basal areas, whereas the upper
wings of females are brown.
The Fender's blue butterfly relies primarily upon a relatively
uncommon lupine plant, the Kincaid's lupine, also endemic to the
Willamette Valley and listed as a threatened species under the Act (65
FR 3875; January 25, 2000), as the host plant for the larval
(caterpillar) life stage (Hammond and Wilson 1993, p. 2). The only
other host plants known for Fender's blue butterflies are Lupinus
arbustus (longspur lupine) and Lupinus albicaulis (sickle-keeled
lupine) (Schultz et al. 2003, pp. 64-67). Females lay single eggs on
the underside of the leaves of one of these three lupine species, up to
approximately 350 eggs in total. Eggs hatch from mid-May to mid-July,
and the larvae feed on the lupine until the plants senesce and the
larvae go into diapause for the fall and winter. The larvae break
diapause in early spring, feed exclusively on the host lupine, and
metamorphose into adults, emerging as butterflies between mid-April and
the end of June. Adult Fender's blue butterflies only live 7 to 14
days, and feed exclusively on nectar from flowering plants (Schultz
1995, p. 36; Schultz et al. 2003, pp. 64-65).
Given its short adult lifespan, the Fender's blue butterfly has
limited dispersal ability. Butterflies are estimated to disperse
approximately 0.75 km (0.5 mi) if they remain in their natal lupine
patch, and approximately 2 km (1.2 mi) if they disperse between lupine
patches (Schultz 1998, p. 290).

Habitat

Both Fender's blue butterfly and its primary larval host plant, the
Kincaid's lupine, are restricted to the upland prairies and oak
savannahs of the Willamette Valley in western Oregon. Although wet
prairies are occasionally occupied by the butterfly, most sites are
found on upland prairie as that is where Kincaid's lupine tends to be
found. The Willamette Valley is approximately 200 km (130 mi) long and
30 to 50 km (20 to 40 mi) wide, characterized by a broad alluvial
floodplain (Franklin and Dyrness 1988, p. 16). The alluvial soils of
the Willamette Valley host a mosaic of grassland, woodland, and forest
communities. Most grasslands in this region are early seral and require
natural or human-induced disturbance for maintenance (Franklin and
Dyrness 1988, p. 122). Historically, frequent burning reduced the
abundance of shrubs and trees, favoring open prairies or savannahs with
a rich variety of native plants and animals. As settlers arrived in the
valley, they converted native habitats to agricultural landscapes,
annual burning ceased, and both woody species and nonnative weeds
encroached on the remaining prairie habitats. Native upland prairies
now cover less than one percent of their former area, making them among
the rarest of North American ecosystems (USFWS 2020, p. 27).
The upland prairies used by Fender's blue butterfly are dominated
by short-stature vegetation and slopes containing microtopography
(small-scale surface features of the earth) of a variable nature. Most
importantly, these prairies support at least one of the three larval
host plants--Kincaid's lupine, longspur lupine, or sickle-keeled
lupine--required by Fender's blue butterfly. The leaves of these lupine
species grow to approximately 61 cm (24 in) tall, with flowers
extending up to 90 cm (35 in); the plant requires sunny open areas
without dense canopy cover (USFWS 2020, p. 32). These three lupines are
an obligate food source for the larvae or caterpillars, but an
abundance of wildflowers is essential for the adult life form. Nectar
from wildflowers is the sole food source for adult butterflies, making
a diversity of wildflowers a required component of prairie habitat for
Fender's blue butterfly.
The upland prairie habitats used by Fender's blue butterfly often
contain scattered Quercus garryana (Oregon white oak) and the following
native grass species: Danthonia californica (California oatgrass),
Festuca idahoensis roemeri (Roemer's fescue), and Elymus glaucus (blue
wild rye). Two nonnative grass species are also frequently present,
Arrhenatherum elatius (tall oatgrass) and Festuca arundinacea (tall
fescue). Tall grasses, including oatgrass and fescue, inhibit the
growth of the lupine host plants and native nectar sources by crowding
or shading them out; they can also overtop the lupines, and preclude
access by females for oviposition. When tall grasses or other tall
vegetation become dominant, they can prevent Fender's blue butterfly
from using the native plant species necessary for the butterfly's
survival and reproduction (USFWS 2020, p. 28). Invasive exotics that
form thick stands of cover, such as Cytisus scoparius (Scotch broom) or
Rubus armeniacus (Himalayan blackberry), also contribute to this
problem.

Historical and Current Abundance and Distribution

While we do not know the precise historical abundance or
distribution of Fender's blue butterfly, at the time the subspecies was
listed as endangered in 2000, we knew of approximately 3,391
individuals on 32 sites (USFWS 2020, p. 35). By retroactively applying
the criteria for our refined population terminology, we calculate there
would have been 12 metapopulations of Fender's blue butterfly
distributed across approximately 165 ha (408 ac) of occupied prairie in
4 counties at the time of listing (Table 2). Those numbers have now
grown across all 3 recovery zones identified for Fender's blue
butterfly (see Recovery Planning and Recovery Criteria) as a result of
population expansion, population discovery, and population creation;
currently, 15 Fender's blue butterfly metapopulations and 6 independent
groups are distributed throughout the Willamette Valley in Benton,
Lane, Linn, Polk, Washington, and Yamhill Counties (6 total Counties).
There are 137 total sites, containing more than 13,700 individuals of
the Fender's blue butterfly, throughout an area totaling approximately
344 ha (825 ac) of occupied prairie habitat with a broad range of land
ownerships and varying degrees of land protection and

[[Page 32865]]

management (USFWS 2020, pp. 52-53). In 2016, the estimated number of
Fender's blue butterflies hit a presumed all-time high of nearly 29,000
individuals (USFWS 2020, p. 71). Maps showing the historical and
current distribution of Fender's blue butterfly throughout its range
are available in the SSA report (USFWS 2020, pp. 51, 54-56).

Table 2--Comparison of Fender's Blue Butterfly Abundance and
Distribution Between Time of Listing in 2000 and Survey Results From
2018
[USFWS 2020, Table 3.4]
------------------------------------------------------------------------
Listed as Survey results as
endangered (2000) of 2018 *
------------------------------------------------------------------------
Number of metapopulations....... 12................ 15.
Number of independent groups.... 0................. 6.
Total abundance (# of 3,391............. 13,700.
individuals).
Number of sites................. 32................ 137.
Area of prairie habitat known to 165 (408)......... 344 (825).
be occupied, in hectares
(acres).
Counties known to be occupied... 4 (Benton, Lane, 6 (Benton, Lane,
Polk, and Linn, Polk,
Yamhill). Washington, and
Yamhill).
------------------------------------------------------------------------
* Note this is not a total count, as not all sites can be surveyed every
year; thus, the number of individuals reported in 2018 is an
underestimate of the rangewide abundance.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects. We consider these same five
factors in downlisting a species from endangered to threatened (50 CFR
424.11(c)-(e)).
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
Determining whether the status of a species has improved to the
point that it can be reclassified from endangered to threatened
(``downlisted'') or removed from the Federal Lists of Endangered and
Threatened Wildlife and Plants (``delisted'') requires consideration of
whether the species is endangered or threatened because of the same
five categories of threats specified in section 4(a)(1) of the Act. For
species that are already listed as endangered or threatened, this
analysis of threats is an evaluation of both the threats currently
facing the species and the threats that are reasonably likely to affect
the species in the foreseeable future following the delisting or
downlisting and the removal of the Act's protections.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan,

[[Page 32866]]

reproductive rates or productivity, certain behaviors, and other
demographic factors. We used 25 to 35 years as our foreseeable future
for this species, which encompasses 35 generations of Fender's blue
butterfly, is a long enough timeframe for to us to observe species
responses in response to threats acting on the species, and reflects
time frames associated with current conservation agreements for the
species.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be reclassified as a
threatened species under the Act. It does, however, provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies. The following is a summary of
the key results and conclusions from the full SSA report, which may be
found at Docket No. FWS-RX-ES-2020-0082 on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
To assess Fender's blue butterfly viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Factors Affecting the Fender's Blue
Butterfly

In this section, we review the biological condition of the species
and its resource needs, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.

Key Resource Needs for Species Viability

Table 3 summarizes the key ecological resources required by
individual Fender's blue butterflies at various life stages, as
presented in the SSA report (from USFWS 2020, Table 2.4).

Table 3--Resource Needs of Fender's Blue Butterfly at the Level of the
Individual by Life Stage
------------------------------------------------------------------------
Life stage Timeline Resource needs
------------------------------------------------------------------------
Egg........................... Mid-April through <bullet> Kincaid's
June. lupine, longspur
lupine, or sickle-
keeled lupine
Larva (including diapause).... Mid-May through <bullet> Kincaid's
early April lupine, longspur
(including lupine, or sickle-
diapause). keeled lupine
Pupa.......................... April through May <bullet> Kincaid's
lupine, longspur
lupine, or sickle-
keeled lupine
Adult butterfly............... Mid-April through <bullet> Early seral
June. upland prairie, wet
prairie, or oak
savannah habitat
with a mosaic of low-
growing grasses and
forbs, an open
canopy, and a
disturbance regime
maintaining the
habitat
<bullet> Kincaid's
lupine, longspur
lupine, or sickle-
keeled lupine
<bullet> Variety of
nectar flowers
------------------------------------------------------------------------

Based on our evaluation as detailed in the SSA report, we
determined that to be resilient, Fender's blue butterfly
metapopulations need an abundance of lupine host plants and nectar
plants within prairie patches at least 6 ha (14.8 ac) in size, with
habitat heterogeneity and minimal amounts of invasive plants and woody
vegetation. Healthy metapopulations would also contain a minimum of 200
butterflies (resiliency) distributed across multiple groups
(redundancy) in lupine patches that are within 0.5 to 1.0 km (0.31 to
0.62 mi) of one another. Ideally, at the species level, resilient
metapopulations would be distributed across the historical range of the
species (redundancy and representation) and have multiple ``stepping
stone'' \1\ habitats for connectivity across the landscape (redundancy
and representation) (USFWS 2020, p. 33). The key resources and
circumstances required to support resiliency in Fender's blue butterfly
metapopulations, and redundancy and representation at the species
level, are identified in Table 4 (from USFWS 2020, Table 2.5). Based on
the biology of the species and the information presented in the
recovery plan, as synthesized in the SSA report, these are the
characteristics of Fender's blue butterfly metapopulations that we
conclude would facilitate viability in the wild over time (USFWS 2020,
pp. 31-34).
---------------------------------------------------------------------------

\1\ A ``stepping stone'' habitat is a prairie patch that
provides both lupine and nectar plants, and occurs in an area with
barrier-free movement for butterflies; such areas are likely too
small to support a subpopulation or metapopulation of butterflies
over the long term, but provide sufficient resources to support
multi-generational movement of individuals between larger areas of
habitat.

[[Page 32867]]

Table 4--Resources and Circumstances Needed to Support Resiliency in
Fender's Blue Butterfly Metapopulations and Redundancy and
Representation at the Species Level, Based on the Conditions Required
For The Species as Described in the Recovery Plan
[USFWS 2020, Table 2.5]
------------------------------------------------------------------------
Metapopulation Needs
-------------------------------------------------------------------------
Habitat Quantity/Quality Abundance Distribution
------------------------------------------------------------------------
Abundant density of lupine host Minimum of 200 0.5-1.0 km (0.3-
plants. adult butterflies 0.6 mi) between
per lupine patches
metapopulation within a
for 10 years. metapopulation
A diversity of nectar plant Consists of Occur across the
species throughout the flight multiple sites historical range
season. with butterflies.
Prairie relatively free of n/a............... Stepping stone
invasive plants and woody prairie patches
vegetation, especially those with lupine and/
that prevent access to lupine or nectar to
or nectar (e.g., tall grasses). facilitate
connectivity
within a
metapopulation
Patch sizes of at least 6 ha n/a............... n/a
(14.8 ac) per metapopulation.
Heterogeneity of habitat, n/a............... n/a
including varying slopes and
varying microtopography.
------------------------------------------------------------------------

Factors Affecting the Viability of the Species
At the time we listed the Fender's blue butterfly as endangered (65
FR 3875; January 25, 2000), we considered the loss, degradation, and
fragmentation of native prairie habitat in the Willamette Valley to
pose the greatest threat to the species' survival. Forces contributing
to the loss of the little remaining native prairie included urban
development (named as the largest single factor threatening the species
at the time); agricultural, forestry, and roadside maintenance
activities, including the use of herbicides and insecticides; and heavy
levels of grazing. In addition, habitat loss through vegetative
succession from prairie to shrubland or forest as a result of the
absence of natural disturbance processes, such as fire, was identified
as a long-term threat, and the invasion of prairies by nonnative plants
was identified as a significant contributor to habitat degradation.
Although predation is a natural condition for the species, the listing
rule considered that predation may significantly impact remaining
populations of Fender's blue butterfly because they had been reduced to
such low numbers. Small population size was also identified as posing a
threat of extinction due to the increased risk of loss through random
genetic or demographic factors, especially in fragmented or localized
populations. The possibility that the rarity of Fender's blue butterfly
could render it vulnerable to overcollection by butterfly enthusiasts
was cited as a potential threat. Finally, the listing rule pointed to
the inadequacies of existing regulatory mechanisms to protect the
Fender's blue butterfly or its habitat, especially on lands under
private ownership. Threats not recognized or considered at the time of
listing, but now known to us, include the potential impacts resulting
from climate change (Factor E).

Habitat Loss, Degradation, and Fragmentation

As discussed in the SSA report, habitat loss from land conversion
for agriculture and urbanization, and from heavy grazing, has decreased
since the time of listing due to land protection efforts and management
agreements; these activities are still occurring at some level,
especially in Lane and Polk Counties but not at the scope and magnitude
seen previously (Factor A) (USFWS 2020, pp. 57-59; see also
Conservation Measures, below). Habitat degradation due to invasion of
prairies by nonnative invasive plants and by woody species (Factors A
and E) has decreased in many metapopulations due to active management
using herbicides, mowing, and prescribed fire to maintain or restore
prairie habitats, as well as augmentation of Kincaid's lupine and
nectar species (USFWS 2020, Appendix C; see also Conservation Measures,
below). Some nonnative plants, such as the tall oatgrass, can be
difficult to effectively manage, thereby requiring development of new
methods to combat these invasive plants. While threats have been
reduced across the species range, ongoing habitat management is
required to maintain these improvements over time and will be critical
to the viability of Fender's blue butterfly. In addition, habitat
degradation due to invasion of prairies by nonnative invasive plants
and by woody species, which may potentially be exacerbated in the
future by the effects of climate change, remains a significant and
ongoing threat at sites that are not managed for prairie conditions.
The overall number of sites supporting Fender's blue butterfly has
increased across all land ownership categories since listing, as has
the percentage of sites with habitat management. Although the
percentage of sites that are protected has remained roughly the same
(just over 70 percent) relative to the time of listing, we now have a
far greater number of sites that are protected (101 out of 137 sites
protected, compared to 23 of 32 sites at the time of listing). More
importantly, there is a significant increase in the proportion of sites
that are actively managed to maintain or restore prairie habitat. At
listing, only 31 percent of known sites (10 of 32) and only 44 percent
of protected sites (10 of 23) were managed for prairie habitat to any
degree. At present, 74 percent of current sites (101 of 137) and 100
percent of protected sites (101 of 101) are managed for prairie
habitat. This significant increase in the number of sites protected and
managed to benefit the Fender's blue butterfly and its habitat
represents substantial progress since listing in addressing the threat
of habitat loss and degradation, and demonstrates the effectiveness of
existing conservation actions and regulatory mechanisms. Impacts from
habitat conversion, woody succession, and invasive plant species are
decreasing in areas with existing metapopulations of Fender's blue
butterflies due to active habitat management and protection; these
impacts are more likely to stay the same or increase in areas of
remaining prairie that are not currently protected or managed (USFWS
2020, p. 59). With continued protection and proper habitat

[[Page 32868]]

management, greater range expansion is possible, as explored in detail
under Future Scenario 3 (Future Species Condition, below), potentially
increasing representation and redundancy of the Fender's blue
butterfly.

Pesticides

Insecticides and herbicides can directly kill eggs, larvae, and
adult butterflies during application of the chemicals to vegetation or
from drift of the chemicals from nearby applications in agricultural
and urban areas. For instance, Bacillus thuringiensis var. kurstaki, a
bacterium that is lethal to all butterfly and moth larvae, is
frequently used to control unwanted insects and has been shown to drift
at toxic concentrations over 3 km (2 mi) from the point of application
(Barry et al. 1993, p. 1977). Sublethal effects may indirectly kill all
life stages by reducing lupine host plant vigor, decreasing fecundity,
reducing survival, or affecting development time. Both insecticides and
herbicides are used in agricultural practices, while herbicides are
also used for timber reforestation and roadside maintenance and to
control invasive species and woody vegetation encroachment. The threat
to Fender's blue butterflies that may occur in roadside populations has
been reduced through the development of several HCPs that specifically
address pesticide application practices in these areas (e.g., Oregon
Department of Transportation HCP; see Conservation Measures, below).
The potential for exposure of Fender's blue butterfly to herbicides or
insecticides remains throughout the species' range, especially in
agricultural areas. However, we do not have any record of documented
exposure or other data to inform our evaluation of the magnitude of any
possible exposure, or the degree to which herbicides or insecticides
may be potentially affecting the viability of the species (USFWS 2020,
pp. 60-61). That said, while we cannot quantify the magnitude of
possible exposure, agricultural land is widely distributed throughout
the Willamette Valley, more lands are being converted to agriculture,
and pesticide use is generally occurring more now than at any other
time in history (Forister et al 2019, p. 4). Because pesticides are
used on most agricultural crops to increase crop yield and prevent
disease spread, pesticide use in the Willamette Valley is likely to
affect multiple metapopulations.

Disease and Predation

Although the listing rule stated that predation may have a
significant negative impact on Fender's blue butterfly due to the
reduced size of their populations, the best available information does
not indicate that predation is a limiting factor for the species. Small
population size was also identified as posing a threat of extinction
due to the increased risk of loss through random genetic or demographic
factors, especially in fragmented or localized populations (Factor E).
Some very small, isolated populations of Fender's blue butterfly known
at the time of listing do appear to have become extirpated (USFWS 2020,
pp. 51-52), and existing small metapopulations or independent groups
remain especially vulnerable to extirpation. Overall, however, the
threat of small population size has decreased since listing due to the
discovery of new metapopulations, the expansion of existing
metapopulations, and the creation of new metapopulations of Fender's
blue butterflies. Most, but not all, metapopulations of Fender's blue
butterfly have increased in abundance relative to the time of listing,
and the total population size has increased from just over 3,000
individuals in 12 metapopulations distributed across 4 counties, to
well over 13,000 individuals in 15 metapopulations distributed across 6
counties (USFWS 2020, pp. 52-53).

Overcollection

The best available information does not indicate that Fender's blue
butterfly has been subject to overcollection. This threat does not
appear to have manifested as anticipated in the listing rule.

Climate Change

The severity of threat posed to Fender's blue butterfly from the
impacts of climate change is difficult to predict. The Willamette
Valley, and prairies specifically, may fare better than other regions;
however, various changes in average annual temperatures and
precipitation are predicted and may affect Fender's blue butterfly or
its habitat (Bachelet et al. 2011, p. 424; USFWS 2017, p. B-10; USFWS
2020, pp. 61-62). Such potential changes include higher water levels in
wet prairies during winter and spring, increased spring flooding
events, and prolonged summer droughts. Two models have conducted
climate change vulnerability assessments for butterfly species within
the Willamette Valley using the Special Report on Emissions Scenarios
(SRES) created by the Intergovernmental Panel on Climate Change. Under
the SRES B1 scenario (comparable to the RCP 4.5 scenario), both models
ranked Fender's blue butterfly as stable. Under the SRES A1B scenario
(RCP 6.0), both models ranked Fender's blue butterfly as moderately
vulnerable. Under the SRES A2 scenario (RCP 8.5), however, Fender's
blue butterfly was ranked as extremely vulnerable under one model and
highly vulnerable under the other model due to its limited range and
loss of both nectar and host plants. While the models do not agree on
the degree of vulnerability, both models did show an increase in
vulnerability as climate change scenarios worsened due to the species'
limited range and the potential for loss of both nectar and host
plants, as well as a possible increase in invasive nonnative plants
(Steel et al. 2011, p. 5; Kaye et al. 2013, pp. 23-24).
In our analysis of the future condition of the Fender's blue
butterfly, we considered climate change to be an exacerbating factor in
the decrease in nectar plants, lupine plants, and open prairie or oak
savannah habitat. Scenario 2 of our assessment of Future Species
Condition specifically considered the potential for severe consequences
of climate change (an RCP 8.5 scenario) for Fender's blue butterfly. If
climate change impacts result in less effective habitat management,
more invasive species, and disruptions to plant phenology, then we
anticipate the potential loss or deterioration of more than half of the
existing metapopulations. Although the results indicated an extensive
loss of resiliency and redundancy, with seven metapopulations subject
to potential extirpation under such conditions, we also projected that
all recovery zones would still maintain at least one metapopulation in
high condition. We therefore estimate that Fender's blue butterfly
would likely sustain populations under such conditions, but its
relative viability in terms of resiliency, redundancy, and
representation would be diminished. While Scenario 2 looked at a high
emissions scenario, Scenario 1 and Scenario 3 considered climate change
to continue under RCP 4.5 in which we project that Fender's blue
butterfly would remain stable based on the aforementioned models.
Therefore, we estimated resiliency, redundancy, and representation
would be unlikely to change substantially from climate change.

Conservation Measures

Because of extensive loss of native prairie habitats in the
Willamette Valley and the resulting Federal listing of multiple endemic
plant and animal species, the region has been the focus of

[[Page 32869]]

intensive conservation efforts. Numerous entities, including Federal,
State, and county agencies, nongovernmental organizations (NGO) such as
land trusts, and private landowners have all become engaged in efforts
to restore native Willamette Valley prairie and oak savannah habitats
and the associated endemic animal communities. Collectively, the
agencies and organizations that manage lands have acquired conservation
easements and conducted management actions to benefit prairie and oak
savannah habitats; in many cases, conservation efforts have been
designed specifically to benefit the Fender's blue butterfly. Various
types of agreements have been established with private landowners to
perform voluntary conservation actions on their land, while agencies
are working collaboratively on habitat restoration and active prairie
management under interagency agreements.
Our SSA report summarizes the conservation measures implemented
across the range of the Fender's blue butterfly since the species was
listed in 2000 (USFWS 2020, pp. 62-65). These measures include native
prairie habitat restoration and management on public lands or lands
that are managed by a conservation organization, including Baskett
Slough National Wildlife Refuge and surrounding areas, William L.
Finley National Wildlife Refuge, Fern Ridge Reservoir, West Eugene
Wetlands, Willow Creek Preserve, Yamhill Oaks Preserve, Coburg Ridge,
Lupine Meadows, Hagg Lake, a small portion of the McDonald State
Forest, and some Benton County public lands. The long-term viability of
Fender's blue butterfly is dependent on an ongoing, consistent
commitment to active management to remove woody vegetation and invasive
plants, thereby maintaining the native plant community and open prairie
conditions required by this species.
The contributions of private landowners have also made a
significant impact on the conservation of Fender's blue butterfly.
Approximately 96 percent of the Willamette Valley ecoregion is in
private ownership (Oregon Department of Fish and Wildlife 2006), and
the majority (66 percent) of designated critical habitat for Fender's
blue butterfly is on private lands (71 FR 63862; October 31, 2006).
Thus, the conservation and recovery of Fender's blue butterfly,
Kincaid's lupine, and the suite of native species associated with them
relies in large part on the voluntary actions of willing non-Federal
landowners to conserve, enhance, restore, reconnect and actively manage
the native prairie habitats that support these species. Many Fender's
blue butterfly sites on private or other non-Federal lands across the
range of the species now have Partners for Fish and Wildlife (PFW)
agreements, Safe Harbor Agreements (SHAs), or Habitat Conservation
Plans (HCPs) in place with the Service.
Through many PFW agreements in place with private landowners in the
Willamette Valley, we provide technical assistance to the landowners
for the enhancement and restoration of native habitats on their lands;
these conservation actions benefit multiple native species, including
the Fender's blue butterfly. We administers and implements a
programmatic SHA for the benefit of Fender's blue butterfly. This
program encourages non-Federal landowners to undertake proactive
conservation and restoration actions to benefit native prairie, as well
as Fender's blue butterfly and Kincaid's lupine, in Benton, Lane, Linn,
Marion, Polk, Washington, and Yamhill Counties of Oregon (USFWS 2016,
entire). Currently, 17 properties covering approximately 595 ha (1,471
ac) are enrolled under the programmatic SHA as of November 2020;
another 12 agreements that will cover an additional 417 ha (1,031 ac)
are in development. In addition, three HCPs in place are designed to
minimize and mitigate effects to the Fender's blue butterfly: the
Benton County HCP (2011; 50-year term), Yamhill County Road Right-of-
Ways HCP (2014; 30-year term), and the Oregon Department of
Transportation HCP (2017; 25-year term). These agreements include
various provisions ensuring the implementation of best management
practices and offsetting any potential negative impacts of activities
through augmenting or enhancing populations of Fender's blue butterfly
or prairie habitats.
Finally, NGOs have actively pursued conservation easements and
acquisition of properties throughout the Willamette Valley to benefit
native prairies and the Fender's blue butterfly. Specific examples
include the 2005 acquisition and establishment of the Lupine Meadow
Preserve by the Greenbelt Land Trust, and the 2008 acquisition and
establishment of the Yamhill Oaks Preserve by The Nature Conservancy.
Overall, there are 137 total sites containing Fender's blue
butterfly that occur over a broad range of land ownerships with varying
degrees of land protection and management. Forty-four sites are on
tracts of public land owned by the USACE; BLM; Bureau of Reclamation
(BOR); OSU; or the Service, all of which are being managed for prairie
habitat to varying degrees given funding and personnel. Fourteen sites
are in public ROWs managed by ODOT or County Public Works and all are
being managed for prairie. Thirty sites are on private land without any
form of protection or active management for Fender's blue butterfly or
its habitat. Another 43 sites are on private land with some level of
protection via a conservation easement (20 sites) or under a
cooperative agreement (23 sites) and are being managed for prairie
habitat. More information on conservation measures performed by NGOs
specific to each metapopulation of Fender's blue butterfly are listed
in the SSA report in the section Metapopulation Descriptions under
Current Conditions (USFWS 2020, Appendix C).
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.

Current Species Condition

After assessing the biology of Fender's blue butterfly and the
information presented in its recovery plan, we determined that the
resiliency of a metapopulation of the species relies on an abundant
supply of lupine host plants and nectar plants within prairie patches
at least 6 ha (14.8 ac) in size, habitat heterogeneity, and minimal
amounts of invasive plants and woody vegetation. Healthy
metapopulations would also contain a minimum of 200 butterflies
(resiliency) distributed across multiple groups within a metapopulation
(redundancy) in lupine patches that are within 0.5 to 1.0 km (0.31 to
0.62 mi) of one another. At the species level, resilient
metapopulations would ideally be distributed across the historical
range of the species (representation and redundancy across

[[Page 32870]]

metapopulations) and have numerous habitat ``stepping stones'' for
connectivity across the landscape (redundancy and representation).
In our evaluation, we used the best scientific data available to
evaluate the current condition of each Fender's blue butterfly
metapopulation in terms of resiliency. We developed criteria to assess
specific habitat and demographic factors contributing to the overall
resilience of metapopulations, and to rank each metapopulation as to
whether it is in high, moderate, or low condition; these categories
reflected our estimate of the probability of persistence over a period
of 25 to 35 years (explained below; see Future Species Condition), as
detailed in the SSA report (USFWS 2020, pp. 71-73). Criteria used to
score metapopulation condition included the number of sites
contributing to the metapopulation, butterfly abundance, connectivity,
habitat patch size, lupine density, presence of nectar species, and
measures of prairie quality and habitat heterogeneity (USFWS 2020,
Table 6.2, p. 73).
Five of the existing 15 Fender's blue butterfly metapopulations are
ranked as having a high current condition, while 3 are ranked as
moderate, 6 are ranked low, and one may be extirpated (Table 5).
Overall, the majority of metapopulations, 8 out of 15, are ranked as
either in high or moderate condition, indicating a degree of resiliency
across the range of the species. Fender's blue butterfly currently
demonstrates a good degree of metapopulation redundancy, with multiple
metapopulations occurring both within and across the three recovery
zones spanning the historical range of the species. Although no direct
measures of genetic or ecological diversity are available, we consider
the species to have a good degree of representation, as there are
multiple metapopulations and groups of Fender's blue butterfly
distributed relatively evenly across the geographic range of the
species (six in the Salem recovery zone, five in the Corvallis recovery
zone, and four in the Eugene recovery zone), in all known habitat types
(both prairie and oak savannah) and elevations.

Table 5--Current Condition of Fender's Blue Butterfly Metapopulations
------------------------------------------------------------------------
Metapopulation Current condition
------------------------------------------------------------------------
Salem Recovery Zone
------------------------------------------------------------------------
Baskett................................... High.
Gopher Valley............................. Moderate.
Hagg Lake................................. High.
Moores Valley............................. Possible extirpation.
Oak Ridge................................. Moderate.
Turner Creek.............................. Low.
------------------------------------------------------------------------
Corvallis Recovery Zone
------------------------------------------------------------------------
Butterfly Meadows......................... Low.
Finley.................................... Moderate.
Greasy Creek.............................. Low.
Lupine Meadows............................ Low.
Wren...................................... High.
------------------------------------------------------------------------
Eugene Recovery Zone
------------------------------------------------------------------------
Coburg Ridge.............................. Low.
Oak Basin................................. Low.
West Eugene............................... High.
Willow Creek.............................. High.
------------------------------------------------------------------------

The discovery of Fender's blue butterflies in additional counties
since the listing of the species, as well as the expansion of existing
metapopulations, increases both the geographic range of the species and
connectivity throughout the landscape. An increased number of
metapopulations, composed of a greater number of individuals and with
expanded distribution and connectivity across the range of Fender's
blue butterfly (see Table 3), means the species has a greater chance of
withstanding stochastic events (resiliency), surviving potentially
catastrophic events (redundancy), and adapting to changing
environmental conditions (representation) over time.

Future Species Condition

To understand the potential future condition of Fender's blue
butterfly with respect to resiliency, redundancy and representation, we
considered a range of potential scenarios that incorporate important
influences on the status of the species, and that are reasonably likely
to occur. We additionally forecast the relative likelihood of each
scenario occurring, based on our experience with the species and best
professional judgment (see USFWS 2020, p. 77). Through these future
scenarios, we forecast the viability of Fender's blue butterfly over
the next 25 to 35 years. We chose this timeframe because it represents
up to 35 generations of the Fender's blue butterfly, and therefore
provides adequate time to collect and assess population trend data. The
recovery plan also used this general timeframe for the determination of
downlisting criteria and this timeframe can reveal the immediate
effects of management strategies given that our current interim
protections (e.g., HCPs, SHAs) have a lifespan ranging from 10-50
years. We bracketed our timeframe to a shorter period based on our
knowledge of the species and our ability to project current and future
threats and conservation efforts. We scored the projected future
condition of each metapopulation based on a ruleset incorporating
abundance and trend data, quality of prairie habitat, level of habitat
protection, and type of habitat management (see USFWS 2020, pp. 77-83).
In addition to the high, moderate, and low condition categories, we
added a fourth category in our future scenarios accounting for possible
extirpation. The purpose of evaluating the status of Fender's blue
butterfly under a range of plausible future scenarios is to create a
risk profile for the species into the future, allowing for an
evaluation of its viability over time.
Scenario 1 assumes ``continuing efforts''--Fender's blue butterfly
will continue on its current trajectory and influences on viability,
habitat management, and conservation measures will all continue at
their present levels. Due to our analysis of current management
actions, protections, and threats, we consider this scenario as highly
likely to play out over the next 25 to 35 years. Scenario 2 is based on
an increased level of impact from negative influences on viability,
particularly alterations in environmental conditions as a result of
climate change. We consider this scenario moderately likely to occur
over the next 25 to 35 years due to greater uncertainty in assessing
the degree of climate change and the impact it may have on the species.
Scenario 3 is based on increased conservation effort, including the
potential for improved habitat conditions at currently occupied sites;
metapopulation expansion by restoring currently unoccupied prairie
sites; and augmentation, translocation, and/or introduction of
butterflies. In this scenario, we evaluated the potential for expansion
at currently protected sites and protected areas identified as possible
introduction sites (USFWS 2020, pp. 81-104). Due to questions regarding
potential funding, personnel, and other conservation agreements needed
to provide additional protections, we consider this scenario as also
moderately likely to occur over the next 25 to 35 years. The results
from these three scenarios describe a range of possible conditions in
terms of viability of the Fender's blue butterfly (USFWS 2020, pp. 104-
106; Table 6). We used two different methodologies for assessing future
conditions. Under scenario 1 and 2, we analyzed trends in

[[Page 32871]]

population number and habitat quality and projected that out into the
future. Meanwhile, in scenario 3, we mapped out and identified
potential areas for conservation and worked with partners on the
feasibility of conservation actions there. We then used these responses
to project habitat enhancement in these areas and the impact that
enhancement will have on the species' population trends. While these
two methods differ, both apply our knowledge of the species and current
and planned or potential management actions in order to project what
its condition will be in the future.

Table 6--Condition Scores for Metapopulation Resiliency, Comparing Current Condition to Three Plausible Future
Scenarios as Described in the Text. Relative Likelihoods of Each Scenario at 25 to 35 Years are Also Provided;
see USFWS 2020, p. 77, For an Explanation of Confidence Terminologies Used To Estimate the Likelihood of
Scenario Occurrence
----------------------------------------------------------------------------------------------------------------
Number of metapopulations
-----------------------------------------------------------------
Scenario 1-- Scenario 2-- Scenario 3--
Condition score continuing considerable conservation
Current efforts impacts efforts
condition (highly (moderately (moderately
likely) likely) likely)
----------------------------------------------------------------------------------------------------------------
High.......................................... 5 7 3 7
Moderate...................................... 3 1 5 5
Low........................................... 6 5 0 2
Possible Extirpation.......................... 1 2 7 1
----------------------------------------------------------------------------------------------------------------

Because the natural processes that historically maintained this
ecosystem and Fender's blue butterfly's early seral habitat are now
largely absent from the Willamette Valley, the species is reliant upon
ongoing management that sets back succession and controls invasive tall
grasses and woody plant species. Therefore, an important consideration
in our evaluation of the viability of the species is whether or not
management actions will continue that restoration and maintenance of
prairie systems, including actions that maintain populations of the
lupine host plants and nectar resources in the Willamette Valley.
Scenario 1 results in improved condition for several
metapopulations currently ranked as moderate, as conservation efforts
continue. On the other hand, metapopulations that are currently in low
condition or already at risk of extirpation would likely either remain
in that state or (in one case) degrade in condition from low to
possible extirpation. Overall, we expect that the viability of Fender's
blue butterfly under this scenario would improve relative to its
current condition, characterized by increases in resiliency of existing
metapopulations. Seven metapopulations would be in high condition, one
in moderate condition, five in low, and two at risk of possible
extirpation. There would be at least two metapopulations in high
condition in each of the three recovery zones; the Salem recovery zone
would be in the best condition, with three metapopulations in high
condition. The resiliency of metapopulations would be lowest in the
Corvallis recovery zone, with three of five metapopulations ranked
either low or at risk of extirpation. Thus, there is a possibility for
some loss of redundancy, with the Corvallis recovery zone at greatest
risk. We anticipate that most, but not all, of the current
metapopulations would maintain viability under this scenario.
Scenario 2 would be expected to result in decreases in resiliency
and redundancy, with seven metapopulations subject to possible
extirpation. While some metapopulations would likely retain their
resiliency, more than half of the current metapopulations would be at
risk of extinction within the next 25 to 35 years under this scenario.
We anticipate that, under these conditions Fender's blue butterfly
would persist, but its long-term viability in terms of resiliency,
redundancy, and representation would be greatly diminished even with
continued management for the conservation of the species.
Under Scenario 3, we expect resiliency to increase as several
metapopulations remain at or move into high condition, with others
transitioning from low to moderate condition; seven metapopulations
would be in high condition, five in moderate condition, two in low
condition, and one at risk of extirpation. Redundancy and
representation would be maintained in all recovery zones; all recovery
zones would have a minimum of two metapopulations in high condition. We
anticipate that all of the currently extant metapopulations would
maintain viability under this scenario, with the exception of one that
is small and at risk of extirpation under all scenarios considered.
For the reasons described above under Future Species Condition, we
forecast the future condition of Fender's blue butterfly out for a
period of 25 to 35 years. Although information exists regarding
potential impacts from climate change beyond this timeframe, the
projections depend on an increasing number of assumptions as they move
forward in time, and thus become more uncertain with increasingly long
timeframes. For our purposes, as detailed above, we concluded that a
foreseeable future of 25 to 35 years was the most reasonable period of
time over which we could reasonably rely upon predictions of the future
conservation status of Fender's blue butterfly.

Determination of Fender's Blue Butterfly Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an ``endangered species'' or
``threatened species.'' The Act defines an endangered species as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a threatened species as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of endangered species or threatened species because of any
of the following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or

[[Page 32872]]

manmade factors affecting its continued existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that Fender's blue butterfly has experienced a marked increase in
resiliency, redundancy, and representation across its historical range,
contributing to an overall increase in viability. We listed the
Fender's blue butterfly as endangered in 2000, upon a determination at
that time that the species was presently in danger of extinction
throughout all or a significant portion of its range (65 FR 3875;
January 25, 2000, p. 3886). Since then, our evaluation of the best
scientific and commercial data available indicates that the abundance
and distribution of Fender's blue butterfly has improved as a result of
metapopulation expansion, metapopulation discovery, and metapopulation
creation, as well as a marked increase in habitat protection and
management across the range of the species. The presence of Fender's
blue butterflies in new counties, the expansion of existing
metapopulations, and the creation of new metapopulations increases both
the geographic range of the species and potential connectivity
throughout the landscape. In addition, active recovery efforts
occurring since Fender's blue butterfly was listed have led to the
amelioration of threats to the species, as detailed above in the
section Conservation Measures. As described in the Summary of
Biological Status and Factors Affecting Fender's Blue Butterfly, there
has been a marked reduction in threats to the species posed by Factors
A and E, helped in large part by effective conservation actions and
existing regulatory mechanisms in place (Factor D). Furthermore,
threats identified at the time of listing under Factors B and C have
not materialized as originally anticipated. Our assessment of the
present condition of the species demonstrates that Fender's blue
butterfly is currently found in metapopulations primarily ranked as in
high to moderate condition throughout all three recovery zones
established for the species within its historical range, exhibiting an
appreciable degree of resiliency, redundancy, and representation.
Thus, after assessing the best available information, we conclude
that the Fender's blue butterfly no longer meets the Act's definition
of an endangered species.
We next consider whether the Fender's blue butterfly meets the
Act's definition of a threatened species. Although threats to the
species have been reduced relative to the time of listing, the species
remains vulnerable. Six out of fifteen metapopulations are currently
ranked in low condition, and all future scenarios include the possible
extirpation of some existing metapopulations (USFWS 2020, p. 104). Some
of these metapopulations (e.g., Lupine Meadows) are in decline for
unknown reasons, despite their apparently relatively high-quality
habitat (USFWS 2020, p. 71). Eleven of the fifteen metapopulations do
not meet the minimum criteria of 200 butterflies each year, and
connectivity both within and between metapopulations remains limited
due to the reduction and fragmentation of native prairie habitats, as
well as the relative rarity and patchy distribution of the primary host
plant, Kincaid's lupine. In particular, concern remains for the
Corvallis recovery zone in the middle of the species' range, with
metapopulations that are generally less robust and more vulnerable to
deteriorating in condition over time (under current conditions only one
metapopulation in this zone is considered highly resilient, compared to
two or more in the other zones).
While it is true that many metapopulations in the Corvallis
recovery zone have low current condition, the two remaining
metapopulations, Finley and Wren, are heavily managed by local
counties. The Finley metapopulation is on a National Wildlife Refuge,
was recently introduced, and is continually increasing. Additionally,
these two metapopulations occur at opposite ends of these recovery
zone, ensuring that no gaps in the species' range will develop even if
the ``low'' metapopulation becomes extirpated. Furthermore, all three
of our future scenarios project that the Finley and Wren
metapopulations will maintain viability. Therefore, while there remains
lingering concern about the condition of the Corvallis recovery zone,
this recovery zone possesses sufficient resiliency and redundancy to
allow it to maintain viability into the foreseeable future.
With regard to influences on viability, the potential for exposure
to pesticides (herbicides, insecticides) is an ongoing threat to the
species throughout its range, due to the close proximity of Fender's
blue butterfly occurrence sites to agricultural lands as well as areas
subject to spraying to control gypsy moths or mosquitoes. In addition,
we have yet to develop an effective method for eradicating tall
oatgrass, a nonnative invasive plant that is rapidly expanding into
prime prairie habitats and posing a growing management concern. The low
availability of lupine host plants, and inadequate supply of
appropriate lupine seed for restoration efforts, is also a limiting
factor for Fender's blue butterfly. Finally, we consider Fender's blue
butterfly to be a ``conservation reliant'' species (sensu Scott et al.
2010, p. 92), and it remains highly vulnerable to loss of its prairie
habitat should active management cease. Because it relies on consistent
disturbance to maintain its early seral prairie habitat, the future
viability of Fender's blue butterfly is dependent upon ongoing
management to set back succession and control the invasion of tall
grasses and woody plant species since the natural processes that once
historically maintained this ecosystem are now largely absent from the
Willamette Valley. The viability of the Fender's blue butterfly over
the long term will therefore require addressing influences on viability
including ongoing habitat conversion, loss of habitat disturbance
resulting in habitat succession, invasion by nonnative plants, and
exposure to insecticides and herbicides, as well as continued
conservation and management efforts.
Thus, after assessing the best available information, including but
not limited to the current status of the species, ongoing threats to
the species, and predicted status of Fender's blue butterfly under
various future scenarios, including the consequences of climate change,
we conclude that Fender's blue butterfly is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided that the Services
do not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore,

[[Page 32873]]

we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Fender's blue butterfly,
we choose to address the status question first--we considered
information pertaining to the geographic distribution of both the
species and the threats that the species faces to identify any portions
of the range where the species is endangered.
For Fender's blue butterfly, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats:
Habitat loss from land conversion for agriculture and urbanization;
habitat degradation due to invasion of prairies by nonnative invasive
plants and by succession to woody species; insecticides and herbicides;
effects of climate change; small population size; and the cumulative
effects of these threats. The threats occur in both prairie and oak
savannah habitat types throughout the Willamette Valley such that they
are affecting all Fender's blue butterfly metapopulations. We found no
concentration of threats in any portion of the range of Fender's blue
butterfly at a biologically meaningful scale. Thus, there are no
portions of the species' range where the species has a different status
from its rangewide status. Therefore, no portion of the species' range
provides a basis for determining that the species is in danger of
extinction in a significant portion of its range, and we determine that
the species is likely to become in danger of extinction within the
foreseeable future throughout all of its range. This is consistent with
the courts' holdings in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959
(D. Ariz. 2017).

Determination of Status

Our review of the best available scientific and commercial
information indicates that the Fender's blue butterfly meets the
definition of a threatened species. Therefore, we propose to downlist
the Fender's blue butterfly as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Because we are proposing to list this
species as a threatened species, the prohibitions in section 9 would
not apply directly. We are therefore proposing below a set of
regulations to provide for the conservation of the species in
accordance with section 4(d), which also authorizes us to apply any of
the prohibitions in section 9 to a threatened species. The proposal,
which includes a description of the kinds of activities that would or
would not constitute a violation, complies with this policy.

Proposed Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the Act] are no longer necessary.'' Additionally, the second
sentence of section 4(d) of the Act states that the Secretary ``may by
regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1), in the case of fish or wildlife, or
section 9(a)(2), in the case of plants.'' Thus, the combination of the
two sentences of section 4(d) provides the Secretary with wide latitude
of discretion to select and promulgate appropriate regulations tailored
to the specific conservation needs of the threatened species. The
second sentence grants particularly broad discretion to the Service
when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also upheld 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the specific threats and
conservation needs of Fender's blue butterfly. Although the statute
does not require us to make a ``necessary and advisable'' finding with
respect to the adoption of specific prohibitions under section 9, we
find that this rule as a whole satisfies the requirement in section
4(d) of the Act to issue regulations deemed necessary and advisable to
provide for the conservation of the Fender's blue butterfly. As
discussed above in the Summary of Biological Status and Factors
Affecting the Fender's Blue Butterfly, we have concluded that the
Fender's blue butterfly is likely to become in danger of extinction
within the foreseeable future primarily due to loss and degradation of
habitat, including impacts from habitat conversion, woody succession,
and invasive plant species (Factors A and E); and the potential
exposure of Fender's blue butterfly to herbicides or insecticides
(Factor E). Although the condition of Fender's blue butterfly has

[[Page 32874]]

improved, the species remains vulnerable to these threats due to the
small size of many of its metapopulations, limited connectivity between
metapopulations as a consequence of fragmentation and the reduced
extent of native prairie habitats, and the relative rarity of its
lupine host plants on the landscape. The provisions of this proposed
4(d) rule will promote conservation of Fender's blue butterfly and
expansion of their range by increasing flexibility in certain
management activities for our State and private landowners. The
provisions of this rule are one of many tools that we would use to
promote the conservation of the Fender's blue butterfly. This proposed
4(d) rule would apply only if and when we make final the
reclassification of Fender's blue butterfly as a threatened species.

Provisions of the Proposed 4(d) Rule

This proposed 4(d) rule would provide for the conservation of the
Fender's blue butterfly by specifically prohibiting the following
actions that can affect Fender's blue butterfly, except as otherwise
authorized or permitted: Import or export; take; possess and engage in
other acts with unlawfully taken specimens; deliver, receive,
transport, or ship in interstate or foreign commerce in the course of
commercial activity; or sell or offer for sale in interstate or foreign
commerce. These prohibitions will result in regulating a range of human
activities that have the potential to affect Fender's blue butterfly,
including agricultural or urban development; certain agricultural
practices (e.g., pesticide use); heavy levels of grazing; mowing; some
practices associated with forestry (e.g., road construction); roadside
maintenance activities; control of nonnative, invasive plant species;
and direct capture, injury, or killing of Fender's blue butterfly.
We have included the prohibition of import, export, interstate and
foreign commerce, and sale or offering for sale in such commerce,
because while the number of metapopulations and abundance within most
metapopulations has increased since the time of listing, the Fender's
blue butterfly is not thriving to the degree that the species is
considered to be capable of sustaining trade. Rare butterflies such as
the Fender's blue are easily subject to overcollection, and the
potential for population declines as a result of increased collection
was one of the factors considered in the original listing of Fender's
blue butterfly as an endangered species. Fortunately, the potential
threat of overcollection has not thus far been realized, but any
increased incentive for capture of Fender's blue butterfly from the
wild would be highly likely to result in negative impacts to the long-
term viability of the species.
The Fender's blue butterfly remains likely to become an endangered
species within the foreseeable future throughout all of its range;
although the status of the species has improved relative to when it was
first listed as an endangered species, the species has not recovered to
the point that it is capable of sustaining unrestricted capture or
collection from the wild without the likelihood of negative impacts to
the long-term viability of the species. Because capture and collection
of Fender's blue butterfly remains prohibited as discussed below,
maintaining the complementary prohibition on possession and other acts
with illegally taken Fender's blue butterfly will further discourage
such illegal take. Thus, the possession, sale, delivery, carrying,
transporting, or shipping of illegally taken Fender's blue butterflies
should continue to be prohibited in order to continue progress toward
the conservation and recovery of the species.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
incidental and intentional take would help preserve the remaining
metapopulations of the Fender's blue butterfly.
Although the number of metapopulations, and abundance within most
metapopulations, has increased since the time of listing, Fender's blue
butterfly remains a vulnerable species and has not yet attained full
recovery. We do not consider the Fender's blue butterfly capable of
withstanding unregulated take, either intentional or incidental to
otherwise lawful activities, without likely negative impacts to the
long-term viability of the species. There are a few circumstances in
which allowing incidental take may ultimately benefit the Fender's blue
butterfly as a species and further its recovery. We have outlined such
circumstances below as exceptions to the prohibitions of take. By
allowing take under specified circumstances, the rule will provide
needed protection to the species while allowing management flexibility
to benefit the species' long-term conservation. Anyone taking,
attempting to take, or otherwise possessing a Fender's blue butterfly,
or parts thereof, in violation of section 9 of the Act will still be
subject to a penalty under section 11 of the Act, except for the
actions that are specifically excepted under the 4(d) rule.
Incidental take by landowners or their agents is allowed while
conducting management for the creation, restoration, or enhancement of
short-stature native upland prairie or oak savannah conditions within
areas occupied by Fender's blue butterfly, subject to the restrictions
described herein and as long as reasonable care is practiced. An
important aspect of prairie management is the timing and location of
treatment. Lupine is patchy and distributed in small clumps low to the
ground whereas invasive tall grasses are more uniform. This means the
person doing the herbicide spray or other removal work needs to be able
to recognize the plants to be sure they are treating the correct areas,
the correct species, and know when to treat the area before the seed
has set. To help avoid potential issues, we are proposing to have a
qualified biologist involved in the planning even if the landowners
does the treatment themselves. The biologist does not need to be
present on-site on the day of the treatment but does need to be
consulted and involved beforehand. Reasonable care may include, but is
not limited to: (1) Procuring and/or implementing technical assistance
from a qualified biologist on timing and location of habitat management
activities prior to implementation; and (2) using best efforts to avoid
trampling or damaging Fender's blue butterflies (eggs, larvae, pupae,
adults) and their host and nectar plants during all activities.
Fender's blue butterfly is a conservation-reliant species. Active
management for prairie conditions within the historical range of the
Fender's blue butterfly is essential for long-term viability, and is
one of the key recovery actions identified for the species. Allowing
certain forms of active management for the purpose of creating,
restoring, or enhancing native upland prairie or oak savannah
conditions is necessary to facilitate and encourage the implementation
of conservation measures that will address one of the primary threats
to Fender's blue butterfly, the loss or degradation of native short-
stature prairie or oak savannah habitat within the Willamette Valley.
Restoration actions may include manual, mechanical, and herbicidal
treatments for invasive and nonnative plant control that does not
result in ground disturbance including mowing; and planting by hand of
native vegetation, especially native food

[[Page 32875]]

resources for Fender's blue butterfly larvae (Kincaid's, longspur, or
sickle-keeled lupine) or adults (native nectar species). Prescribed
burning is a complex endeavor and there is potential for impacts to
Fender's blue butterfly beyond that which local metapopulations or
subpopulations may be capable of withstanding should the burn exceed
its intended geographic limits; therefore, we do not provide an
exception for take as a result of prescribed burning here. Take
coverage for prescribed burning can be obtained through section 7
consultation, a 10(a)(1)(A) permit, or through the Programmatic
Restoration Opinion for Joint Ecosystem Conservation by the Services
(PROJECTS) program.
Providing landowners management flexibility facilitates the
creation, restoration, and enhancement of native upland prairie and oak
savannah habitats. Habitat is considered occupied by Fender's blue
butterfly if it is within the historical range of the species and
supports or may support lupine, unless a qualified biologist using
direct observation has conducted surveys for adult Fender's blue
butterfly during the April 15 to June 30 flight period and documented
no adult butterflies. Occupied habitat also includes all nectar habitat
within 0.5 km (0.3 miles) of habitat containing at least one of the
three host lupine species and occupied by Fender's blue butterfly. This
proposed 4(d) rule would authorize landowners to plant native
vegetation by hand; conduct manual and mechanical treatments to control
woody and invasive nonnative plants; perform tractor and hand mowing;
and apply herbicides within occupied Fender's blue butterfly habitat.
To prevent possible negative effects on the Fender's blue butterfly or
its host lupine, the following time restrictions apply to the
exceptions to take by landowners in areas occupied by Fender's blue
butterfly:
(1) Manual and mechanical treatments for control of woody and
invasive and nonnative plant species that do not result in ground
disturbance are authorized within occupied habitat outside of the
butterfly flight period (April 15 to June 30) to avoid impacts to adult
butterflies.
(2) To prevent invasive plant species establishment, tractor mowing
is authorized throughout sites with Fender's blue butterflies before
February 15 (when lupine emerges) and after August 15 (when lupine
undergoes senescence). Mowing with handheld mowers is authorized
throughout the year; however, a buffer of at least 8 m (25 ft) must be
maintained between the mower and any individual lupine plant during the
Fender's blue butterfly flight season (April 15 to June 30).
(3) Hand wiping, wicking, and spot-spray applications of herbicides
for either the removal of nonnative invasive plant species, or to
prevent resprouting of woody species subsequent to cutting are
authorized year-round. Weed wiping and broadcast application of
herbicides are authorized outside of the flight period of April 15 to
June 30; however, additional timing and use restrictions are required
based on the chemicals used. Contact the Oregon Fish and Wildlife
Office prior to herbicide implementation for a list of currently
acceptable herbicides, their application methods, their appropriate
timing of use, and best management practices associated with herbicide
use.
We expect that the actions and activities that are allowed under
this proposed 4(d) rule, while they may cause some minimal level of
harm or disturbance to individual Fender's blue butterflies, will not
on balance adversely affect efforts to conserve and recover the
species, and in fact, should facilitate these efforts because they will
make it easier for our State and private partners to implement recovery
actions and restore the habitats required by Fender's blue butterfly.
The loss or degradation of early seral prairie habitats is one of the
primary threats to Fender's blue butterfly, and disturbance (such as
that described under the take exemptions provided here) is required to
restore or maintain the habitat characteristics that are essential to
the survival of this conservation-reliant species.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: Scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. There are also certain
statutory exemptions from the prohibitions, which are found in sections
9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we shall cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve Fender's blue butterfly that may result
in otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the
Fender's blue butterfly. However, interagency cooperation may be
further streamlined through planned programmatic consultations for the
species between us and other Federal agencies, such as the existing
programmatic consultation on habitat restoration actions in the
existing PROJECTS Biological Opinion (USFWS 2015, entire), which
includes provisions for management actions that benefit Fender's blue
butterfly. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that we could provide or use, respectively, to streamline the
implementation of this proposed 4(d) rule (see Information Requested,
above).

Required Determinations

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one

[[Page 32876]]

of the methods listed in ADDRESSES. To better help us revise the rule,
your comments should be as specific as possible. For example, you
should tell us the numbers of the sections or paragraphs that are
unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining a species' listing status under
the Endangered Species Act. In an October 25, 1983, notice in the
Federal Register (48 FR 49244), we outlined our reasons for this
determination, which included a compelling recommendation from the
Council on Environmental Quality that we cease preparing environmental
assessments or environmental impact statements for listing decisions.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribes
would be affected by this rule because there are no Tribal lands or
interests within or adjacent to Fender's blue butterfly habitat.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R1-
ES-2020-0082 or upon request from the Oregon Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.

0
2. Amend Sec. 17.11(h), the List of Endangered and Threatened
Wildlife, by revising the entry for ``Butterfly, Fender's blue'' under
Insects, to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Butterfly, Fender's blue........ Icaricia icarioides Wherever found..... T............... 65 FR 3875, 1/25/
fenderi. 2000; [Federal
Register citation
of the final
rule]; 50 CFR
17.47(f).\4d\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.47 by adding paragraph (f) to read as follows:

Sec. 17.47 Special rules--insects.

* * * * *
(f) Fender's blue butterfly (Icaricia icarioides fenderi).
(1) Definitions. As used in this paragraph (f), the following terms
have these meanings:
(i) Occupied habitat. Habitat within the historical range of
Fender's blue butterfly in the Willamette Valley of Oregon that
supports or may support lupine, unless a qualified biologist using
direct observation has conducted surveys for adult Fender's blue
butterfly during the April 15 to June 30 flight period and documented
no adult butterflies. Occupied habitat also includes all nectar habitat
within 0.5 kilometers (km) (0.3 miles (mi)) of habitat containing at
least one of the three host lupine species and occupied by Fender's
blue butterfly. Unsurveyed areas within 2 km (1.25 mi) of a known
Fender's blue butterfly population shall be assumed occupied if no
surveys are conducted.
(ii) Qualified biologist. An individual with a combination of
academic training in the area of wildlife biology or related discipline
and demonstrated field experience in the identification and life
history of Fender's blue butterfly, or in habitat restoration methods
to benefit Fender's blue butterfly. If capture of individuals is
required for accurate identification, the individual must hold a valid
permit under section 10(a)(1)(A) of the Act.
(iii) Lupine. Any one of the three species of lupines known to be
required as host plants for the larvae of the

[[Page 32877]]

Fender's blue butterfly: Kincaid's lupine (Lupinus sulphureus ssp.
kincaidii), longspur lupine (L. arbustus), and sickle-keeled lupine (L.
albicaulis).
(2) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to Fender's blue butterfly. Except as
provided under paragraph (f)(3) of this section and Sec. Sec. 17.4 and
17.5, it is unlawful for any person subject to the jurisdiction of the
United States to commit, to attempt to commit, to solicit another to
commit, or cause to be committed, any of the following acts in regard
to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(3) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(iii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iv) Take, as set forth at Sec. 17.31(b).
(v) Take incidental to an otherwise lawful activity caused by:
(A) Manual and mechanical removal of invasive and/or nonnative
plant species. Manual and mechanical treatments for invasive and
nonnative plant control (including encroaching native woody species)
that do not result in ground disturbance is authorized within occupied
habitat outside the butterfly's flight period of April 15 to June 30,
provided:
(1) Landowners or their agents conducting invasive or nonnative
plant removal must use reasonable care, which includes, but is not
limited to, procuring and/or implementing technical assistance from a
qualified biologist on timing and location of habitat management
activities and avoidance of ground disturbance to avoid impacts to
larvae or pupae. Best management practices for felling of trees,
removal of vegetation off-site, and temporary piling of cut vegetation
on-site are available from the Oregon Fish and Wildlife Office.
(2) Reasonable care during all activities includes best efforts to
avoid trampling or damaging Fender's blue butterflies (eggs, pupae,
larvae, and adults) and their host and nectar plants. Foot traffic
shall be minimized in occupied habitat, and especially in the area of
any lupine plants.
(B) Mowing. Tractor mowing for invasive and nonnative plant control
(including encroaching native woody species) and the maintenance of
early seral conditions is authorized throughout occupied Fender's blue
butterfly habitat before February 15 when lupine emerges and after
August 15 when lupine undergoes senescence.
(1) Mowing with handheld mowers is authorized throughout the year;
however, a buffer of at least 8 meters (25 feet) must be maintained
between the mower and any individual lupine plant during the Fender's
blue butterfly flight season (April 15 to June 30).
(2) During mowing, landowners or their agents must use reasonable
care, which includes, but is not limited to, procuring and implementing
technical assistance from a qualified biologist on timing and location
of habitat management activities; avoidance of ground disturbance to
avoid impacts to larvae or pupae; and using best efforts during all
activities to avoid trampling or damaging Fender's blue butterflies
(eggs, pupae, larvae, and adults) and their host and nectar plants.
Foot traffic shall be minimized in occupied habitat, and especially in
the area of any lupine plants.
(C) Herbicide application for removal of invasive and/or nonnative
plant species. Hand wiping, wicking, and spot-spray applications of
herbicides for either the removal of nonnative invasive plant species,
or to prevent resprouting of woody species subsequent to cutting are
authorized year-round. Weed wiping and broadcast application of
herbicides are authorized outside of the flight period of April 15 to
June 30; however, additional timing and use restrictions are required
based on the chemicals used. Contact the Oregon Fish and Wildlife
Office prior to herbicide implementation for a list of currently
acceptable herbicides, their application methods, their appropriate
timing of use, and best management practices associated with herbicide
use.
(1) During herbicide application, landowners or their agents must
use reasonable care, which includes, but is not limited to, procuring
and implementing technical assistance from a qualified biologist on
habitat management activities; complying with all State and Federal
regulations and guidelines for application of herbicides; and avoiding
broadcast spraying in areas adjacent to occupied habitat if wind
conditions are such that drift into the occupied area is possible.
(2) Landowners or their agents conducting herbicide application
must use best efforts to avoid trampling or damaging Fender's blue
butterflies (eggs, pupae, larvae, and adults) and their host and nectar
plants. Foot traffic shall be minimized in occupied habitat, and
especially in the area of any lupine plants.
(D) Ground disturbance for the purpose of planting native
vegetation. Limited ground disturbance (digging and placement by hand)
is authorized for the purpose of planting native vegetation as part of
habitat restoration efforts, especially native food resources used by
larvae and adults, in areas occupied by Fender's blue butterfly.
(1) Larvae of the Fender's blue butterfly require lupine. For
adults, preferred native nectar sources include, but are not limited
to, the following flower species: tapertip onion (Allium acuminatum),
narrowleaf onion (Allium amplectens), Tolmie's mariposa lily
(Calochortus tolmiei), small camas (Camassia quamash), Clearwater
cryptantha (Cryptantha intermedia), Oregon sunshine (Eriophyllum
lanatum), Oregon geranium (Geranium oreganum), Oregon iris (Iris
tenax), meadow checkermallow (Sidalcea campestris), rose checkermallow
(Sidalcea virgata), and purple vetch (Vicia americana).
(2) While planting native vegetation, landowners or their agents
must use reasonable care, which includes, but is not limited to,
procuring and implementing technical assistance from a qualified
biologist on timing and location of habitat management activities and
using best efforts during all activities to avoid trampling or damaging
Fender's blue butterflies (eggs, pupae, larvae, and adults) and their
host and nectar plants. Foot traffic shall be minimized in occupied
habitat, and especially in the area of any lupine plants.
(E) Summary of authorized methods and timing of habitat restoration
activities for the Fender's blue butterfly.

------------------------------------------------------------------------
Dates authorized for use in occupied
Management activity habitat
------------------------------------------------------------------------
Manual and mechanical treatments.. Outside of the flight period of
April 15 to June 30.

[[Page 32878]]

Mowing--tractors.................. Before February 15 and after August
15.
Mowing--handheld.................. Year-round, with a buffer of 8 m (25
ft) between the mower and any
individual lupine plant during the
flight period of April 15 to June
30.
Herbicides--hand wiping........... Year-round.
Herbicides--wicking............... Year-round.
Herbicides--spot-spray............ Year-round.
Herbicides--broadcast spray....... Outside of the flight period of
April 15 to June 30 *.
Herbicides--weed wiping........... Outside of the flight period of
April 15 to June 30 *.
Planting native vegetation........ Year-round.
------------------------------------------------------------------------
* Additional timing restrictions will apply based on the chemicals used.
Contact the Oregon Fish and Wildlife Office for additional
information.

(F) Reporting and disposal requirements. Any injury or mortality of
Fender's blue butterfly associated with the actions excepted under
paragraphs (f)(3)(v)(A) through (D) of this section must be reported to
the Service and authorized State wildlife officials within 5 calendar
days, and specimens may be disposed of only in accordance with
directions from the Service. Reports should be made to the Service's
Office of Law Enforcement (contact information is at Sec. 10.22) or
the Service's Oregon Fish and Wildlife Office and to the State of
Oregon Department of Parks and Recreation, Stewardship Section, which
has jurisdiction over invertebrate species. The Service may allow
additional reasonable time for reporting if access to these offices is
limited due to closure.

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-12576 Filed 6-22-21; 8:45 am]
BILLING CODE 4333-15-P

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