Rule2021-27157
Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d) Rule for Hermes Copper Butterfly and Designation of Critical Habitat
Primary source
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Published
December 21, 2021
Effective
January 20, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the Hermes copper butterfly (Lycaena [Hermelycaena] hermes), a butterfly species from San Diego County, California, and Baja California, Mexico. We also designate critical habitat. In total, approximately 14,174 ha (35,027 ac) in San Diego County, California, fall within the boundaries of the critical habitat designation. This rule adds the species to the List of Endangered and Threatened Wildlife. We also finalize a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of this species.
Full Text
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[Federal Register Volume 86, Number 242 (Tuesday, December 21, 2021)]
[Rules and Regulations]
[Pages 72394-72433]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27157]
[[Page 72393]]
Vol. 86
Tuesday,
No. 242
December 21, 2021
Part IV
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Hermes Copper Butterfly and
Designation of Critical Habitat; Final Rule
Federal Register / Vol. 86 , No. 242 / Tuesday, December 21, 2021 /
Rules and Regulations
[[Page 72394]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2017-0053; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BC57
Endangered and Threatened Wildlife and Plants; Threatened Species
Status with Section 4(d) Rule for Hermes Copper Butterfly and
Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for the Hermes copper butterfly (Lycaena
[Hermelycaena] hermes), a butterfly species from San Diego County,
California, and Baja California, Mexico. We also designate critical
habitat. In total, approximately 14,174 ha (35,027 ac) in San Diego
County, California, fall within the boundaries of the critical habitat
designation. This rule adds the species to the List of Endangered and
Threatened Wildlife. We also finalize a rule under the authority of
section 4(d) of the Act that provides measures that are necessary and
advisable to provide for the conservation of this species.
DATES: This rule is effective January 20, 2022.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-
R8-ES-2017-0053.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket
No. FWS-R8-ES-2017-0053. Additional supporting information that we
developed for this critical habitat designation will also be available
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at the field office responsible for
this designation.
FOR FURTHER INFORMATION CONTACT: Scott Sobiech, Field Supervisor,
Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250,
Carlsbad, CA 92008; telephone 760-431-9440. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, to list a species as
an endangered or threatened species, we are required to publish a
proposal in the Federal Register and make a determination on our
proposal within 1 year. If there is substantial disagreement regarding
the sufficiency and accuracy of the available data relevant to the
proposed listing, we may extend the final determination for not more
than 6 months. To the maximum extent prudent and determinable, we must
designate critical habitat for any species that we determine to be an
endangered or threatened species under the Act. Listing a species as an
endangered or threatened species and designation of critical habitat
can only be completed by issuing a rule.
What this document does. This rule adds the Hermes copper butterfly
(Lycaena [Hermelycaena] hermes) to the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations as a
threatened species (50 CFR 17.11(h)) and extends the Act's protections
to this species through specific regulations issued under section 4(d)
of the Act (50 CFR 17.47(d)).
This document also designates critical habitat for the Hermes
copper butterfly. We are designating a total of approximately 14,174
hectares (ha) (35,027 acres (ac)) for the species in San Diego County,
California.
The basis for our action. Under the Act, we may determine that a
species is an endangered or 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 have determined that the Hermes copper
butterfly and its habitat are at risk primarily due to wildfire and, to
a lesser extent, habitat fragmentation, isolation, land use change, and
climate change and drought, and by those threats acting in concert.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protection; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Previous Federal Actions
Please refer to the proposed listing and critical habitat rule (85
FR 1018) for the Hermes copper butterfly published on January 8, 2020,
for a detailed description of previous Federal actions concerning this
species.
Summary of Changes From the Proposed Rule
Based upon our review of the public comments, Federal and State
agency comments, peer review comments, and relevant information that
became available since the proposed rule published (85 FR 1018; January
8, 2020), we reevaluated our proposed listing rule and made changes as
appropriate in this final rule. In addition to minor clarifying edits
and incorporation of additional information on the species' biology,
populations, threats, and economic impacts, this determination differs
from the proposal in the following ways:
(1) We added information on data reported subsequent to publication
of the proposed rule that adds to our understanding of Hermes copper
butterfly distribution and viability.
(2) We added information about a 2020 wildfire that affected
occupied Hermes copper butterfly occurrences.
(3) We added more recent data on drought and climate change.
(4) We added more information on local protection ordinances and
how they affect the threat of development.
(5) In Center for Biological Diversity v. Everson, 2020 WL 437289
(D.D.C. Jan. 28, 2020), the court 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
[[Page 72395]]
analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we have revised the significant portion of the range analysis in this
final rule to consider whether the species is endangered in a
significant portion of its range. We evaluated the status of the
species and found that no portions of the range meet the definition of
endangered. This updated analysis did not result in any changes from
the proposed rule but provides support for the determination.
(6) We removed a future scenario because we concluded it was not
likely and therefore not useful to understanding the future status of
the species.
(7) In response to a public comment, we edited the third take
prohibition regarding defensible space requirements with regard to
reducing wildfire risk. We removed language in the exception regarding
the required 30-m (100-ft) distance from structures in order to clarify
that any activities to reduce wildfire risks must be done in compliance
with State and local fire codes. Currently, this distance is still 30 m
(100 ft), but the rewording allows for flexibility to ensure that
activities will still comply with local and State of California fire
codes if they ever do change.
(8) We discovered an error in the mapping of critical habitat units
in the proposed rule where we inadvertently included a low-accuracy
observation record-based occurrence in critical habitat, contrary to
our stated methodology of only including those based on high-accuracy
information. We removed this occurrence from critical habitat,
resulting in a decrease of 74 ha (184 ac) from Unit 3 and our total
critical habitat designation. The remaining 14,174 ha (35,027 ac)
represent all areas that meet the definition of critical habitat for
the Hermes copper butterfly.
(9) During the open comment period, we received new relatively
comprehensive survey data for the Hermes copper butterfly. The majority
of these were negative surveys, that is, surveys where researchers
looked for but did not find butterflies. To appropriately address new
data since 2017 and address the concerns of public commenters (Strahm
2019 entire; Marschalek 2019 entire; Marschalek and Deutschman 2019, p.
7), we revised our occurrence status classifications methods and
updated the Species Status Assessment (SSA) and this final rule to
reflect these new data.
The changes to occurrence number and status categories are a
combined result of: Known subsequent losses (for example, due to
fires); subsequently documented new occurrences; and new negative
survey data that may reflect losses prior to, or after, 2017.
Additionally, occurrences that are categorized as ``extant'' are those
for which surveys have recorded butterflies within the past 10 years
(as in the proposed rule), a timeframe that shifted by 2 years. As
such, occurrences where butterflies were last recorded in 2008 and 2009
that were categorized as ``extant'' in the 2020 proposed rule (analysis
data through 2017) are now categorized as ``presumed extant'' in this
2021 final rule (analysis data through 2019).
In the 2020 proposed rule, we considered there to be 95
occurrences, 45 of which were categorized as known/presumed extant, 40
as presumed extirpated, and 10 as permanently extirpated (85 FR 1018;
January 8, 2020). Based on new data and associated new methodology, we
now consider there to be 98 occurrences, 26 of which are categorized as
known/presumed extant, 56 as presumed extirpated, and 16 as permanently
extirpated (Service 2021, entire). Changes to occurrence status
category numbers in the proposed and final rule do not necessarily
reflect occurrence status changes that occurred between 2017 (data used
in the 2018 SSA report and 2020 proposed rule) and 2020 (data used in
the 2021 SSA report and final rule), because some new data may more
accurately reflect 2017 conditions. For example, occurrences
categorized as presumed extant based on 2017 data, now presumed
extirpated, may have already been extirpated in 2017. Also, new
observation locations recorded since 2017 were likely in habitat
occupied in 2017 but not yet discovered, so should not be assumed to
reflect new colonizations.
Despite these occurrence status category changes, all critical
habitat units are still within the area considered occupied at the time
of listing.
Full details on changes to status classification methods and to the
number and status categories of occurrences from the 2018 SSA report
and 2020 proposed rule are summarized in appendix II of the updated
2021 SSA report.
(10) Based on the updated number of extant and extirpated
occurrences, we updated our viability index. We also streamlined the
description of our viability index to make it clearer and easier to
understand. Because more occurrences are considered extirpated than in
the proposed rule and previous 2018 SSA report, the species viability
index is lower in this final rule than it was in the proposed rule. We
also made changes throughout the Current Condition section to reflect
updated occurrence numbers.
(11) We updated our discussion of ``Habitats That Are Protected
from Disturbance and Representative of the Historical Geographical and
Ecological Distributions of a Species'' in our discussion of physical
or biological features for the species to provide better context for
rangewide features needed for the Hermes copper butterfly.
(12) We updated the SSA report with all the above changes and with
other suggested edits received during the open comment period. The new
SSA report is version 2.0 (Service 2021).
Supporting Documents
A species status assessment team prepared an SSA report for the
Hermes copper 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), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
We sent the SSA report to eight independent peer reviewers and received
six responses. The purpose of peer review is to ensure that our listing
determinations, critical habitat designations, and 4(d) rules are based
on scientifically sound data, assumptions, and analyses. The peer
reviewers have expertise in the biology, habitat, and threats to the
species. We also sent the SSA report to 7 agencies and 11 Tribes for
partner review, including scientists with expertise in this species and
butterfly ecology. We received reviews from two partners (one Federal
agency and one Tribe).
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
Hermes copper butterfly is presented in the Species Status Assessment
for the Hermes Copper Butterfly (Lycaena [Hermelycaena] hermes) Version
2.0 (Service 2021), which is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
at Docket No. FWS-R8-ES-2017-0053.
[[Page 72396]]
The Hermes copper butterfly is a small-sized butterfly historically
found in San Diego County, California, and northwestern Baja
California, Mexico (Service 2021, Figure 4). There are 98 known
historical or extant Hermes copper butterfly occurrences in the United
States and northwestern Baja California, Mexico; 26 are extant or
presumed extant (all in the United States), 56 are presumed extirpated,
and 16 are permanently extirpated (Table 1). Table 1 shows all
occurrences, their status, the last time butterflies were detected in
an occurrence, and the Ecological Unit where the occurrence is found.
Additionally, if an occurrence is extirpated, Table 1 displays the
reason for the extirpation (Goudey and Smith 1994 [2007]). The category
for core occurrence size is based on a total area within \1/2\ km of
Hermes copper butterfly records greater than 176 ha (435 ac); smaller
occurrences are considered non-core (NC).
Table 1--Hermes Copper Butterfly Occurrences in the United States and Mexico
[Current status category was determined by a decision tree developed in 2020 (Service 2021, Figure 5), which considered data through 2019. Map # refers
to Figures 6 and 7 in the SSA report.]
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2020 status
category Wildfire year
Map No. Occurrence name Ecological Size Last record Accuracy 2018 SSA status Dispersal (% burned if Reason
unit \1\ \2\ category \3\ corridor- extant) \4\ extirpated
connectivity
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1........ Bonsall......... WGF NC...... 1963............ 3 Presumed Presumed ............... Development
Extirpated. Extirpated. Isolation.
2........ East San Elijo CH NC...... 1979............ 2 Presumed Presumed ............... Development
Hills. Extirpated. Extirpated. Isolation.
3........ San Elijo Hills. CH NC...... 1957............ 3 Extirpated..... Extirpated..... ............... Development
Isolation.
4........ Elfin Forest.... CH NC...... 2011............ 1 Extant......... Presumed ............... Drought.
Extirpated.
5........ Carlsbad........ CH NC...... Pre-1963........ 3 Extirpated..... Extirpated..... ............... Development.
6........ Lake Hodges..... CH NC...... 1982............ 3 Presumed Presumed 2007........... Development
Extirpated. Extirpated. Isolation,
Fire.
7........ Rancho Santa Fe. CH NC...... 2004............ 1 Presumed Presumed 2007........... Development
Extirpated. Extirpated. Isolation,
Fire.
8........ Black Mountain.. CH NC...... 2004............ 1 Presumed Extant Presumed ............... Development
Extirpated. Isolation,
Drought.
9........ South Black CH NC...... Pre-1963........ 3 Extirpated..... Extirpated..... ............... Development.
Mountain.
10....... Van Dam Peak.... CH NC...... 2011............ 1 Extant......... Presumed ............... Development
Extirpated. Isolation,
Drought.
11....... Sabre Springs... CH NC...... 2001............ 1 Presumed Presumed ............... Development
Extirpated. Extirpated. Isolation.
12....... Lopez Canyon.... CT Core.... 2011............ 1 Extant......... Presumed Extant
Isolated.
13....... Mira Mesa....... CT NC...... Pre-1963........ 3 Extirpated..... Extirpated..... ............... Development.
14....... West Mira Mesa.. CT NC...... Pre-1963........ 3 Extirpated..... Extirpated..... ............... Development.
15....... Northeast CH Core.... 2000............ 1 Presumed Presumed 2003........... Fire.
Miramar. Extirpated. Extirpated.
16....... Southeast CH NC...... 1998............ 2 Presumed Presumed 2003........... Fire.
Miramar. Extirpated. Extirpated.
17....... Miramar......... CH Core.... 2000............ 1 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
18....... West Miramar.... CT NC...... 1998............ 2 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
19....... Miramar Airfield CT NC...... Pre-1963........ 3 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
20....... South Miramar... CH NC...... 2000............ 1 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
21....... Sycamore Canyon. WGF Core.... 2003............ 1 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
22....... South Sycamore WGF NC...... 2000............ 1 Presumed Presumed 2003........... Fire.
Canyon. Extirpated. Extirpated.
23....... North Santee.... CH Core.... 2005............ 1 Presumed Extant Presumed Extant 2003 (60%).....
Connected.
24....... Santee.......... CH NC...... 1967............ 3 Extirpated..... Extirpated..... ............... Development.
25....... Santee Lakes.... CH NC...... 2001............ 1 Presumed Presumed 2003........... Development,
Extirpated. Extirpated. Fire.
26....... Mission Trails.. CH Core.... 2010............ 1 Extant......... Presumed Extant 2003, -70%.....
Connected.
27....... North Mission CH NC...... 2003............ 1 Presumed Presumed 2003........... Fire.
Trails. Extirpated. Extirpated.
28....... Cowles Mountain. CH NC...... 1973............ 2 Presumed Extant Presumed Extant
Connected.
29....... South Mission CH NC...... 1978............ 3 Presumed Extirpated..... ............... Development
Trails. Extirpated. Isolation.
30....... Admiral Baker... CH NC...... 2015............ 1 Extant......... Extant Isolated
31....... Kearny Mesa..... CT NC...... 1939............ 3 Extirpated..... Extirpated..... ............... Development.
32....... Mission Valley.. CT NC...... Pre-1963........ 3 Extirpated..... Extirpated..... ............... Development.
33....... West Mission CT NC...... 1908............ 3 Extirpated..... Extirpated..... ............... Development.
Valley.
34....... San Diego State CT NC...... Pre-1963........ 3 Presumed Extirpated..... ............... Development.
University. Extirpated.
[[Page 72397]]
35....... La Mesa......... CH NC...... Pre-1963........ 3 Presumed Extirpated..... ............... Development.
Extirpated.
36....... Mt. Helix....... CH NC...... Pre-1963........ 3 Presumed Extirpated..... ............... Development.
Extirpated.
37....... East El Cajon... CH NC...... Pre-1963........ 3 Presumed Extirpated..... ............... Development.
Extirpated.
38....... Dictionary Hill. CT NC...... 1962............ 2 Presumed Extant Presumed ............... Drought.
Extirpated.
39....... El Monte........ CH NC...... 1960............ 2 Presumed Presumed 2003........... Development,
Extirpated. Extirpated. Fire.
40....... BLM Truck Trail. WGF Core.... 2006............ 1 Presumed Extant Presumed 2003........... Fire.
Extirpated.
41....... North Crestridge WGF NC...... 1981............ 2 Presumed Presumed 1970 (40%), Fire.
Extirpated. Extirpated. 2003.
42....... Northeast WGF NC...... 1963............ 2 Presumed Extant Presumed 2003, 2017 Fire.
Crestridge. Extirpated. (60%).
43....... East Crestridge. WGF NC...... 2003............ 1 Presumed Extant Presumed Extant 1970 (12%),
Connected. 2003 (50%).
44....... Crestridge...... WGF Core.... 2014............ 1 Extant......... Presumed Extant 1970 (98%),
Connected. 2003 (80%).
45....... Boulder Creek PC Core.... 2019............ 1 Extant......... Extant Isolated 2003...........
Road.
46....... North Guatay PC NC...... 2004............ 1 Presumed Extant Presumed Extant 2003 (10%).....
Mountain. Connected.
47....... South Guatay PC NC...... 2010............ 1 Extant......... Presumed Extant 1970 (99%).....
Mountain. Connected.
48....... Pine Valley..... PC NC...... Pre-1963........ 3 Presumed Extant Presumed Extant
Connected.
49....... Descanso........ PC Core.... 2019............ 1 Extant......... Extant 1970 (56%),
Connected. 2003 (50%).
50....... Japutal......... WGF Core.... 2012............ 1 Extant......... Extant 1970 (99%).....
Connected.
51....... East Japutal.... WGF NC...... 2010............ 1 Extant......... Presumed 1970........... Drought.
Extirpated.
52....... South Japutal... WGF Core.... 2018............ 1 Extant......... Extant 1970...........
Connected.
53....... Corte Madera.... PC NC...... Pre-1963........ 3 Presumed Extant Presumed Extant 1970...........
Connected.
54....... Alpine.......... WGF Core.... 2011............ 1 Extant......... Presumed 1970 (37%)..... Drought.
Extirpated
Isolated.
55....... East Alpine..... WGF NC...... Pre-1963........ 3 Presumed Extant Presumed 1970 (30%), Development,
Extirpated. 2003, 2018 Fire.
(75%).
56....... Willows (Viejas WGF NC...... 2003............ 1 Presumed Presumed 2003........... Fire.
Grade Road). Extirpated. Extirpated.
57....... Dehesa.......... CH NC...... 2012............ 3 Presumed Extant Extant 1970...........
Connected.
58....... Loveland WGF Core.... 2012............ 1 Extant......... Presumed 1970........... Drought.
Reservoir. Extirpated.
59....... East Loveland WGF NC...... 2011............ 1 Extant......... Presumed 1970........... Drought.
Reservoir. Extirpated.
60....... West Loveland CH NC...... 2009............ 1 Extant......... Presumed 1970........... Drought.
Reservoir. Extirpated.
61....... Hidden Glen..... WGF NC...... 2010............ 1 Extant......... Presumed 1970........... Drought.
Extirpated.
62....... McGinty Mountain CH Core.... 2014............ 1 Extant......... Presumed 1970........... Drought.
Extirpated.
63....... East McGinty WGF NC...... 2001............ 2 Presumed Extant Presumed Extant 1970...........
Mountain. Connected.
64....... North Rancho San CH NC...... Pre-1963........ 3 Extirpated..... Extirpated..... 1970........... Development,
Diego. Isolation.
65....... Rancho San Diego CH Core.... 2011............ 1 Extant......... Presumed 1970, 2007..... Drought.
Extirpated.
66....... South Rancho San CH NC...... 2007............ 1 Presumed Extant Presumed 1970, 2007..... Drought.
Diego. Extirpated.
67....... San Miguel CH Core.... 2007............ 1 Presumed Presumed 1970, 2007..... Fire.
Mountain. Extirpated. Extirpated.
68....... South San Miguel CH NC...... 2004............ 1 Presumed Extant Presumed 1970, 2007.....
Mountain. Extirpated.
69....... North Jamul..... CH Core.... 2004............ 1 Presumed Extant Presumed Extant 1970, 2003 (5%)
Isolated.
70....... North Rancho CH NC...... 2007............ 1 Presumed Presumed 2003, 2007..... Fire.
Jamul. Extirpated. Extirpated.
71....... Rancho Jamul.... CH Core.... 2003............ 1 Presumed Presumed 2003, 2007..... Fire.
Extirpated. Extirpated.
[[Page 72398]]
72....... East Rancho CH NC...... 2007............ 1 Presumed Extant Presumed Extant 1970 (1%),
Jamul. Isolated. 2003, 2007
(5%).
73....... Sycuan Peak..... WGF Core.... 2016............ 1 Extant......... Presumed 1970........... Drought.
Extirpated.
74....... Skyline Truck WGF Core.... 2018............ 1 Extant......... Extant 1970...........
Trail. Connected.
75....... Lyons Peak...... WGF NC...... 2003............ 1 Presumed Extant Presumed 1970, 2007..... Drought.
Extirpated.
76....... Gaskill Peak.... WGF NC...... 2010............ 1 Extant......... Presumed 2020........... Fire.
Extirpated.
77....... Lawson Valley... WGF Core.... 2019............ 1 Extant......... Extant 1970, 2007
Connected. (40%).
78....... Bratton Valley.. WGF NC...... Pre-1963........ 3 Presumed Presumed 1970, 2007..... Fire.
Extirpated. Extirpated.
79....... Hollenbeck WGF Core.... 20166........... 1 Presumed Presumed 1970, 2007..... Fire.
Canyon. Extirpated \5\. Extirpated.
80....... Southeast WGF NC...... 2007............ 1 Presumed Presumed 1970, 2007..... Fire.
Hollenbeck Extirpated. Extirpated.
Canyon.
81....... South Hollenbeck CH NC...... Pre-1963........ 3 Presumed Presumed 1970 (5%), Fire.
Canyon. Extirpated. Extirpated. 2003, 2007;
2017 (20%)..
82....... West Hollenbeck CH NC...... 2007............ 1 Presumed Presumed 1970 (40%), Fire.
Canyon. Extirpated. Extirpated. 2007.
83....... Otay Mountain... WGF NC...... 1979............ 2 Presumed Presumed 2003, 2007..... Fire.
Extirpated. Extirpated.
84....... South Otay WGF NC...... Pre-1963........ 3 Presumed Presumed 2003, 2007..... Fire.
Mountain. Extirpated. Extirpated.
85....... Dulzura......... WGF NC...... 2005............ 1 Presumed Presumed 2007, 2007 \5\. Fire.
Extirpated. Extirpated.
86....... Deerhorn Valley. WGF NC...... 1970............ 3 Presumed Presumed 2007........... Fire.
Extirpated. Extirpated.
87....... North Hartley WGF NC...... 2010............ 1 Extant......... Presumed 2007........... Fire, Drought.
Peak. Extirpated.
88....... South Hartley WGF NC...... 2010............ 1 Extant......... Presumed Extant 2007 (50%).....
Peak. Connected.
89....... North Portrero.. WGF Core.... 2018............ 1 Extant......... Extant 2007 (35%).....
Connected.
90....... South Portrero.. WGF Core.... 2012............ 1 Extant......... Extant
Connected.
91....... Tecate Peak..... WGF NC...... 1980............ 3 Presumed Presumed 2007........... Fire.
Extirpated. Extirpated.
92....... Otay Mesa....... CT NC...... Pre-1920........ 3 Presumed Extirpated..... ............... Development,
Extirpated. Isolation.
93....... West Guatay PC NC...... 2005............ 1 n/a............ Presumed Extant
Mountain. Connected.
94....... Southeast PC Core.... 2018............ 1 n/a............ Extant
Japutal. Connected.
95....... Lyons Japutal... PC NC...... 2018............ 1 n/a............ Presumed 2020 (40%)..... Fire.
Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mexico \6\
--------------------------------------------------------------------------------------------------------------------------------------------------------
96....... Salsipuedes..... n/a NC...... 1983............ 3 Presumed Presumed 2014........... Fire.
Extirpated. Extirpated.
97....... Santo Tomas..... n/a NC...... Pre-1920........ 3 Presumed Presumed 2003........... Fire.
Extirpated. Extirpated.
98....... North Ensenada.. n/a NC...... 1936............ 3 Presumed Presumed 2005, 2014..... Fire.
Extirpated. Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Description of ecological units: CH = Coastal Hills; CT = Coastal Terraces; WGF = Western Granitic Foothills; PC = Palomar-Cuyamaca Peak (Goudey and
Smith 1994 [2007]).
\2\ Geographic accuracy categories: 1 = GPS coordinates or accurate map; 2 = relatively accurate specimen collection site label or map; 3 = site name
record or map only accurate enough for determining species' range (not used for mapping if within 1.5 km of a higher accuracy record and, if used,
considered ``non-core'').
\3\ At least one adult observed after 2015 translocation, does not represent breeding.
\4\ Only fire included pre-2003 is 1970 Laguna megafire. If no percentage and status is extant or presumed extant, 100% within mapped fire footprint.
\5\ Both the Harris (entire occurrence) and the Border (small portion) fire footprints overlapped this occurrence in 2007.
\6\ Although records are low accuracy, extirpation of populations in Mexico is presumed due to numerous large fires in the area between 2003 and 2014
(NASA imagery).
While most recent scientific studies support recognition of Hermes
copper butterfly as belonging to the monotypic genus Hermelycaena,
Hermes copper butterfly was recognized as Lycaena hermes (subgenus
Hermelycaena) in the most recent peer-reviewed taxonomic treatment
(Pelham 2008, p. 191). Therefore, we recognize Hermes copper butterfly
as Lycaena hermes throughout the SSA report (Service 2021), this final
rule, and subsequent documents.
Hermes copper butterfly individuals diapause (undergo a low
metabolic rate resting stage) as eggs during the late
[[Page 72399]]
summer, fall, and winter (Deutschman et al. 2010, p. 4). Adults are
active May through July, when females deposit single eggs exclusively
on spiny redberry (Rhamnus crocea) shrubs (Thorne 1963, p. 143; Emmel
and Emmel 1973, p. 62) in coastal sage scrub and chaparral vegetation.
Adult occupancy and feeding are also associated with presence of their
primary nectar source, the shrub California buckwheat (Eriogonum
fasciculatum), although other nectar sources may provide equivalent or
supplemental adult nutrition. Hermes copper butterflies are considered
poor dispersers, they appear to have limited directed movement ability,
and they have been recaptured no more than 0.7 mi (1.1 km) from the
point of release (Marschalek and Klein 2010, pp. 727-728). More
information is needed to fully understand movement patterns of Hermes
copper butterfly, especially across vegetation types; however,
dispersal is likely aided by winds but inhibited by lack of dispersal
corridor-connectivity areas in many areas (Deutschman et al. 2010, p.
17).
The Hermes copper butterfly has a much narrower distribution than
spiny redberry, its host plant. The reasons for this lack of overlap in
distribution are not well understood, but a recent chemical ecology
study detected higher levels of some plant secondary compounds within
the range of Hermes copper butterfly than outside it (Malter 2020,
entire). Plant secondary compounds, such as tocopherols, found in
significantly higher quantities within Hermes copper butterfly's
historical range, were associated with warmer and drier conditions,
while compounds found in significantly higher quantities outside (north
of) of the range were associated with cooler and wetter conditions
(Malter 2020, p. 28). Tocopherols play a basic role in insect
physiology, especially for insects with specific diet requirements
(e.g., Vanderzant et al. 1957, p. 606; Zwolinska-Sniatalowa 1976,
entire). Increased tocopherol levels associated with drought conditions
have been found in plants from Mediterranean climates and other regions
(e.g., Munn[eacute]-Bosch et al. 1999, entire; Munn[eacute]-Bosch and
Alegre 2000a, entire; 200b, p. 139) and other plants (Liu et al. 2008,
p. 1275). The association of tocopherols with dry conditions,
potentially contributing to historical limitation of the Hermes copper
butterfly's range to a drier, more southern distribution than the host
plant, combined with the butterfly's apparent drought sensitivity,
suggest a narrow climatic envelope for the species within the range of
its host plant (discussed further under Climate Change and Drought
below). Because the climate differences noted in this study are
correlated with a northern latitude difference, we expect the reverse
relationship (hotter and drier outside the historical range) to the
east (desert) and south of the species' historical range.
There are two types of ``habitat connectivity'' important to the
Hermes copper butterfly--within-habitat patch connectivity and
dispersal corridor-connectivity areas. Within-habitat patch
connectivity requires an unfragmented habitat patch where reproduction
occurs. Habitat patches are a collection of host plants and host plant
patches among which adult butterflies readily and randomly move during
a flight season (any given butterfly is just as likely to be found
anywhere within that area). Butterflies must be free and likely to move
among individual host plants and patches of host plants within a
habitat patch. Hermes copper butterflies also require dispersal
corridor-connectivity areas, which are undeveloped wildlands with
suitable vegetation structure between habitat patches close enough that
recolonization of a formerly occupied habitat patch is likely. We refer
to both types of connectivity in this rule.
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 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 expected response by the species,
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.
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 the
Services 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
[[Page 72400]]
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, reproductive rates or productivity, certain behaviors, and
other demographic factors.
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 listed as an endangered or
threatened species under the Act. However, it does 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 SSA report; the full SSA
report can be found at Docket FWS-R8-ES-2017-0053 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
To assess Hermes copper butterfly viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
population resiliency collectively supports the ability of the species
to withstand environmental and demographic stochasticity (for example,
wet or dry, warm or cold years), species redundancy supports the
ability of the species to withstand catastrophic events (for example,
droughts, large pollution events), and species 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 populations a species has 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 Threats
In this discussion, we review the biological condition of the
species and its resources, 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.
Resource Needs
In the SSA report (Service 2021), we describe the ecological needs
of the Hermes copper butterfly at the hierarchical levels of
individual, population, and species. There are also spatial and
temporal components to hierarchical resource needs, reflected in the
average area occupied by and ``life expectancy'' of each ecological
entity. Individual needs are met and resource availability should be
assessed at the adult male territory scale on an annual basis,
reflecting the life span of an individual (from egg to adult).
Population-level resilience needs are met and resource availability
should be assessed on the habitat patch or metapopulation
(interconnected habitat patches) scale over a period of decades.
Populations or subpopulations persist in intact habitat until they are
extirpated by stochastic events such as wildfire, to eventually be
replaced as habitat is recolonized (18 years is the estimated time it
took for the Mission Trails occurrence recolonization). Species-level
viability needs are assessed and must be met at a range-wide scale if
the species is to avoid extinction. The following list describes the
Hermes copper butterfly's ecological needs:
(1) Individual Resource Needs:
(a) Egg: Suitable spiny redberry stems for substrate.
(b) Larvae: Suitable spiny redberry leaf tissue for development.
(c) Pupae: Suitable leaves for pupation.
(d) Adults: Suitable spiny redberry stem tissue for oviposition;
nectar sources (primarily California buckwheat); mates.
(2) Population Needs:
(a) Resource needs and/or circumstances: Habitat elements required
by populations include spiny redberry bushes (quantity uncertain, but
not isolated individuals) and associated stands of California buckwheat
or similar nectar sources.
(b) Population-level redundancy: Populations must have enough
individuals (for population growth) in ``good years'' that, after
reproduction is limited by poor environmental conditions such as
drought in intervening ``bad years,'' individuals can still find mates.
Alternatively, there need to be enough diapausing eggs to wait out a
bad year and restore the average population size or greater in the
subsequent year. That is, populations need to be large enough to
persist through expected periods of population decline.
(c) Population-level representation: It is unclear how susceptible
the Hermes copper butterfly is to inbreeding depression. A mix of open,
sunny areas should be present within habitat patches and stands of
California buckwheat for nectar in the vicinity of spiny redberry host
plants. Additionally, individuals must be distributed over a large
enough area (population footprint/distribution) that not all are likely
to be killed by stochastic events such as wildfire.
(3) Species Needs:
(a) Resource needs and/or circumstances: Dispersal corridor-
connectivity areas among subpopulations to maintain metapopulation
dynamics. For Hermes copper butterfly, this means suitable dispersal
corridor habitat with suitable intervening vegetation structure and
topography between habitat patches that are close enough so that
recolonization of habitat patches where a subpopulation was extirpated
is likely. Apparent impediments to dispersal include forested,
riparian, and developed areas.
(b) Species-level redundancy: 98 known historical or extant Hermes
copper butterfly occurrences have been documented in southern
California, United States, and northwestern Baja California, Mexico: 26
are extant or presumed extant (all in the United States), 56 are
presumed extirpated, and 16 are permanently extirpated (Table 1).
[[Page 72401]]
In order to retain the species-level redundancy required for species
viability, populations and temporarily unoccupied habitats must be
distributed throughout the species' range in sufficient numbers and in
a geographic configuration that supports dispersal corridor-
connectivity areas described in (a) above.
(c) Species-level representation: Populations must be distributed
in a variety of habitats (including all four California Ecological
Units; Service 2021, p. 58) so that there are always some populations
experiencing conditions that support reproductive success. In
especially warm, dry years, populations in wetter habitats should
experience the highest population growth rates within the species'
range, and in colder, wetter years populations in drier habitats should
experience the highest growth rates. Populations should be represented
across a continuum of elevation levels from the coast to the mountain
foothills. There is currently 1 presumed extant occurrence remaining
with marine climate influence, 7 extant or presumed extant with
primarily montane climate influence, and the remainder (18) at
intermediate elevations with a more arid climate (Service 2021, p. 55).
Those populations in higher elevation, cooler habitats, and coastal
habitats with more marine influence are less susceptible to a warming
climate and are, therefore, most important to maintain.
Summary of Threats
The following sections include summary evaluations of five threats
impacting the Hermes copper butterfly or its habitat, including
wildfire (Factor A), land use change (Factor A), habitat fragmentation
and isolation (Factor A), climate change (Factor E), and drought
(Factor E); as well as evaluating the cumulative effect of these on the
species, including synergistic interactions between the threats and the
vulnerability of the species resulting from small population size. We
also consider the impacts of existing regulatory mechanisms (Factor D)
on all existing threats (Service 2021, pp. 33-54). We also note that
potential impacts associated with overutilization (Factor B), disease
(Factor C), and predation (Factor C) were evaluated but found to have
minimal to no impact on the species (Service 2021, pp. 33-54).
For the purpose of this analysis, we generally define viability as
the ability of the species to sustain populations in the natural
ecosystem for the foreseeable future--in this case, 30 years. For the
purposes of this assessment, we consider the foreseeable future to be
the amount of time for which we can reasonably determine a threat's
anticipated trajectory and the anticipated response of the species to
those threats. We chose 30 years because it is within the range of the
available hydrological and climate change model forecasts, fire hazard
period calculations, and the fire-return interval estimates for
habitat-vegetation associations that support the Hermes copper
butterfly.
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 Condition
Wildfire
Wildfire impacts both Hermes copper butterfly and its habitat. The
vegetation types that support Hermes copper butterfly--chaparral and
coastal sage scrub--are prone to relatively frequent wildfire
ignitions, and many plant species that characterize those habitat types
are fire-adapted. The Hermes copper butterfly's host plant, spiny
redberry, resprouts after fires and is relatively resilient to frequent
burns (Keeley 1998, p. 258). The effect of wildfire on Hermes copper
butterfly's primary nectar source, California buckwheat, is more
complicated. California buckwheat is a facultative seeder that has
minimal resprouting capability (approximately 10 percent) for young
individuals (Keeley 2006, p. 375). Wildfires cause high mortality in
California buckwheat, and densities are reduced the following year
within burned areas (Zedler et al. 1983, p. 814); however, California
buckwheat recolonizes relatively quickly (compared to other coastal
sage scrub species) if post-fire conditions are suitable.
The historical fire regime in southern California likely was
characterized by many small, lightning-ignited fires in the summer and
a few infrequent large fires in the fall (Keeley and Fotheringham 2003,
pp. 242-243). These infrequent, large, high-intensity wildfires, so-
called ``megafires'' (defined in the SSA report as those fires greater
than 16,187 ha (40,000 ac) in size) (Service 2021, p. 33), burned the
landscape long before Europeans settled the Pacific coast (Keeley and
Zedler 2009, p. 90). As such, the current pattern of small, low-
intensity fires with large infrequent fires is consistent with that of
historical regimes (Keeley and Zedler 2009, p. 69). Therefore, habitat
that supports Hermes copper butterfly is naturally adapted to fire and
has some natural resilience to impacts from wildfire.
However, in recent decades, wildfire has been increasing in both
frequency and magnitude (Safford and Van de Water 2014, pp. i, 31-35).
Annual mean area under extreme fire risk has increased steadily in
California since 1979, and 2014 ranked highest in the history of the
State (Yoon et al. 2015, p. S5). The historical fire-return intervals
for Hermes copper butterfly habitat vegetation associations are 15-30-
plus years for coastal sage scrub habitats and 30-60 years for
chaparral habitats (Sawyer et al. 2009, pp. 325, 529, 1294).
In order to understand the changing frequency of fire in Hermes
copper butterfly's range, we analyzed fire-rotation intervals, or the
amount of time it takes for fire to burn a certain set acreage. For our
analysis, we looked at how long it historically took fire footprints to
add up to the total estimated range for Hermes copper butterfly
(Service 2017, entire). For the historical range of the Hermes copper
butterfly, the fire-rotation interval decreased from 68 years between
1910-2000 to 49 years between 1925-2015 (Service 2017, entire). A
change in only 17 percent of the time period analyzed resulted in a 28
percent decrease in fire-rotation interval (Service 2017, entire).
Increasing fire frequency and size is of particular concern for the
Hermes copper butterfly because of how long it can take for habitat to
be recolonized after wildfire. For example, in Mission Trails Park, the
2,596-ha (7,303-ac) ``Assist #59'' Fire in 1981 and the smaller 51-ha
(126-ac) ``Assist #14'' Fire in 1983 (no significant overlap between
acreages burned by the fires), resulted in an approximate 18-year
extirpation of the Mission Trails Park Hermes copper
[[Page 72402]]
butterfly occurrence (Klein and Faulkner 2003, pp. 96, 97).
To assess the impacts of fire on the Hermes copper butterfly, we
examined maps of recent high-fire-hazard areas in San Diego County
(Service 2021, Figure 8). Almost all remaining habitat within mapped
Hermes copper butterfly occurrences falls within the ``very high'' fire
hazard severity zone for San Diego County (Service 2021, Figure 8).
Areas identified in our analysis as most vulnerable to extirpation by
wildfire include most occupied and potentially occupied Hermes copper
butterfly habitats in San Diego County within the southern portion of
the range. Twenty-eight potential source occurrences for recolonization
of recently burned habitat fall within a contiguous area that has not
recently burned (Service 2021, Figure 7), and where the fire hazard is
considered high (Service 2021, Figure 8).
Although habitat that supports Hermes copper butterfly is adapted
to fire, increased fire frequency can still have detrimental effects.
Frequent fires open up the landscape, making the habitat more
vulnerable to invasive, nonnative plants and vegetation type-conversion
(Keeley et al. 2005, p. 2117). The extent of invasion of nonnative
plants and type conversion in areas specifically inhabited by Hermes
copper butterfly is unknown. However, wildfire clearly results in at
least temporary reductions in suitable habitat for Hermes copper
butterfly and may result in lower densities of California buckwheat
(Zedler et al. 1983, p. 814; Keeley 2006, p. 375; Marschalek and Klein
2010, p. 728). Although Keeley and Fotheringham (2003, p. 244)
indicated that continued habitat disturbance, such as fire, will result
in conversion of native shrublands to nonnative grasslands, Keeley
(2004, p. 7) also noted that invasive, nonnative plants will not
typically displace obligate resprouting plant species in mesic
shrublands that burn once every 10 years. Therefore, while spiny
redberry resprouts, the quantity of California buckwheat as a nectar
source necessary to support a Hermes copper butterfly occurrence may be
temporarily unavailable due to recent fire impacts, and nonnative
grasses commonly compete with native flowering plants that would
otherwise provide abundant nectar after fire.
Extensive and intense wildfire events are the primary recent cause
of direct mortality and extirpation of Hermes copper butterfly
occurrences. The magnitude of this threat appears to have increased due
to an increased number of recent megafires created by extreme ``Santa
Ana'' driven weather conditions of high temperatures, low humidity,
strong erratic winds, and human-caused ignitions (Keeley and Zedler
2009, p. 90; Service 2021, pp. 33-41). The 2003 Otay and Cedar fires
and the 2007 Harris and Witch Creek fires in particular have negatively
impacted the species, resulting in or contributing to the extirpation
of 33 occurrences (Table 1). Only 3 of the 34 U.S. occurrences thought
to have been extirpated in whole or in part by fire since 2003 appear
to have been naturally reestablished, or were not entirely extirpated
(Table 1; Service 2021, Figure 7; Winter 2017, pers. comm.). Most
recently, the Valley Fire burned 6,632 ha (16,390 ac), including over
\1/3\ of the Lawson Valley core occurrence (presumed extant), all of
the Gaskill Creek non-core occurrence (formerly considered extant), all
records within the Lyons Japutal non-core occurrence documented in
2018, and approximately \1/4\ of the Hidden Glen non-core occurrence
(Service 2021, Appendix II). This fire came within 4 km (2.5 mi) of
both the Descanso core occurrence to the north, the highest abundance
monitored site on record (Service 2021, Appendix II), and the Portrero
core occurrence to the south, one of only three where adults were
recorded in 2020 (Service 2021, Table 1; Figure 8).
Wildfires that occur in occupied Hermes copper butterfly habitat
result in direct mortality of Hermes copper butterflies (Klein and
Faulkner 2003, pp. 96-97; Marschalek and Klein 2010, pp. 4-5).
Butterfly populations in burned areas rarely survive wildfire because
immature life stages of the butterfly inhabit host plant foliage, and
spiny redberry typically burns to the ground and resprouts from stumps
(Deutschman et al. 2010, p. 8; Marschalek and Klein 2010, p. 8). This
scenario results in at least the temporary loss of both the habitat
(until the spiny redberry and nectar source regrowth occurs) and the
presence of butterflies (occupancy) in the area.
Wildfires can also leave patches of unburned occupied habitat that
are functionally isolated (further than the typical dispersal distance
of the butterfly) from other occupied habitat. Furthermore, large fires
can eliminate source populations before previously burned habitat can
be recolonized, and may result in long-term or permanent loss of
butterfly populations. Historically, Hermes copper butterfly persisted
through wildfire by recolonizing extirpated occurrences once the
habitat recovered. However, as discussed below, ongoing loss and
isolation of habitat has resulted in smaller, more isolated populations
than existed historically. This isolation has likely reduced or removed
the ability of the species to recolonize occurrences extirpated by
wildfire.
Our analysis of current fire danger and fire history illustrates
the potential for catastrophic loss of the majority of remaining
butterfly occurrences should another large fire occur prior to
recolonization of burned habitats. One or more wildfires could
extirpate the majority of extant Hermes copper butterfly occurrences
(Marschalek and Klein 2010, p. 9; Deutschman et al. 2010, p. 42).
Furthermore, no practical measures are known that could significantly
reduce the impact of megafires on the Hermes copper butterfly and its
habitat. In a 2015 effort to mitigate the impact of wildfires on Hermes
copper butterfly, a translocation study, funded by the San Diego
Association of Governments (SANDAG), was initiated to assist
recolonization of habitat formerly occupied by the large Hollenbeck
Canyon occurrence (Marschalek and Deutschman 2016c, entire). While it
is not clear that this attempt was successful, in 2016 there were signs
of larval emergence from eggs and at least one adult was observed,
indicating some level of success (Marschalek and Deutschman 2016c, p.
10). Regulatory protections, such as ignition-reduction measures, do
exist to reduce fire danger; however, large megafires are considered
resistant to control (Durland, pers. comm., in Scauzillo 2015).
The current fire regime in Mexico is not as well understood. Some
researchers claim chaparral habitat in Mexico within the Hermes copper
butterfly's range is not as affected by megafires because there has
been less fire suppression activity than in the United States (Minnich
and Chou 1997, pp. 244-245; Minnich 2001, pp. 1,549-1,552). In
contrast, Keeley and Zedler (2009, p. 86) contend the fire regime in
Baja California, Mexico, mirrors that of southern California, similarly
consisting of ``small fires punctuated at periodic intervals by large
fire events.'' Local experts agree the lack of fire suppression
activities in Mexico has reduced the fuel load on the landscape,
subsequently reducing the risk of megafire (Oberbauer 2017, pers.
comm.; Faulkner 2017, pers. comm.). However, examination of satellite
imagery from the 2000s indicates impacts from medium-sized wildfire in
Mexico are similar to those in San Diego County, as evidenced by two
large fires in 2014 that likely impacted habitats associated with
occurrence records of the Hermes
[[Page 72403]]
copper butterfly near Ensenada (NASA 2017a; 2017b; Service 2021, p.
37).
Although the level of impact may vary over time, wildfires cause
ongoing degradation, destruction, fragmentation, and isolation of
Hermes copper butterfly habitat as well as direct losses of Hermes
copper butterfly that have contributed to the extirpation of numerous
populations. As discussed above, only 3 of the 31 U.S. occurrences
thought to have been extirpated in whole or in part by fire since 2003
appear to have been naturally reestablished. This threat affects all
Hermes copper butterfly populations and habitat across the species'
range.
Land Use Change
Urban development within San Diego County has resulted in the loss,
fragmentation, and isolation of Hermes copper butterfly habitat
(CalFlora 2010; Consortium of California Herbaria 2010; San Diego
County Plant Atlas 2010) (see the Habitat Isolation section below). Of
the 69 known Hermes copper butterfly occurrences permanently or
presumed extirpated, loss, fragmentation, and isolation of habitat as a
result of development contributed to 26 of those (38 percent; Table 1).
In particular, habitat isolation is occurring between the northern and
southern portions of the species' range and in rural areas of the
southeastern county; this loss of dispersal corridor-connectivity areas
is of greatest concern where it would impact core occurrences in these
areas (Service 2021, p. 41).
To quantify the remaining land at risk of development, we analyzed
all existing habitat historically occupied by the Hermes copper
butterfly based on specimens and observation records. We then removed
lands that have been developed and examined the ownership of remaining,
undeveloped land. Currently, approximately 67 percent of the remaining
undeveloped habitat is protected from destruction by development
because it is on protected lands including military installations and
lands within the Multiple Species Conservation Program (MSCP) (Service
2021, p. 41). Approximately 53 percent of conserved lands within mapped
Hermes copper butterfly occurrences were conserved under the MSCP. The
MSCP also includes biological management and monitoring within the
Preserve. Within the MSCP, all of the known extant occurrences are
located within the two largest subarea plans: The City of San Diego
(83,415 ha (206,124 ac)) and the County of San Diego (102,035 ha
(252,132 ac)). Both plans are implemented in part by local adopted
ordinances (Environmentally Sensitive Lands regulations in the City of
San Diego Municipal Code and the Biological Mitigation Ordinance in the
County). Both ordinances outline specific project design criteria and
species and habitat protection and mitigation requirements for projects
within subarea boundaries (see MSCP Subarea Plans, City of San Diego
1997, County of San Diego 1997, City's Environmentally Sensitive Lands
Municipal Code (Ch. 14, Art. 3, Div. 1, Sec. 143.0101) and County's
Biological Mitigation Ordinance (Ord. Nos. 8845, 9246), County of San
Diego 1998).
The County of San Diego has two ordinances in place that restrict
new development or other proposed projects within sensitive habitats.
The Biological Mitigation Ordinance of the County of San Diego Subarea
Plan and the County of San Diego Resource Protection Ordinance regulate
development within coastal sage scrub and mixed chaparral habitats that
currently support extant Hermes copper butterfly populations on non-
Federal land within the County's jurisdiction (for example, does not
apply to lands under the jurisdiction of the City of Santee or the City
of San Diego). Additionally, County regulations mandate surveys for
Hermes copper butterfly occupancy and habitat, and to the extent it is
a significant impact under the California Environmental Quality Act
(Cal. Pub. Res. Code 21000 et seq.), mitigation may be required. These
local resource protection ordinances may provide some regulatory
measures of protection for the remaining 33 percent of extant Hermes
copper butterfly habitat vulnerable to development, when occurring
within the County's jurisdiction. Additionally, presence of Hermes
copper butterflies has on occasion been a factor within San Diego
County for prioritizing land acquisitions for conservation from
Federal, State, and local funding sources due to the focus of a local
conservation organization. SANDAG has provided funding for Hermes
copper butterfly surveys and research since 2010, as well as grants for
acquisition of two properties that have been (or are) occupied by
Hermes copper butterfly.
There is uncertainty regarding the Hermes copper butterfly's
condition within its southernmost known historical range in Mexico;
however, one expert estimated that development pressure in known
occupied areas near the city of Ensenada was similar to that in the
United States (Faulkner 2017, pers. comm.).
We conclude that development is a current, ongoing threat
contributing to reduction and especially fragmentation of remaining
Hermes copper butterfly habitat in limited areas on non-Federal lands
at this time. However, some regulatory protections are in place, and 67
percent of historically occupied habitat is on protected lands owned by
Federal, State, and local jurisdictions and conservancies. Therefore,
although the rate of habitat loss has been reduced relative to
historical conditions, regulations have not served to protect some key
populations or dispersal corridor-connectivity areas, and development
continues to increase isolation of the northern portion from the
southern portion of the species' range (Service 2021, pp. 40-44).
Habitat Isolation
Habitat isolation directly affects the likelihood of Hermes copper
butterfly population persistence in portions of its range, and
exacerbates other effects from fire and development. Hermes copper
butterfly populations have become isolated both permanently (past and
ongoing urban development) and more temporarily (wildfires). Habitat
isolation separates extant occurrences and inhibits movement by
creating a gap that Hermes copper butterflies are not likely to
traverse. Any loss of resources on the ground that does not affect
butterfly movement, such as burned vegetation, may degrade but not
fragment habitat. Therefore, in order for habitat to be isolated,
movement must either be inhibited by a barrier, or the distance between
remaining suitable habitat must be greater than adult butterflies will
typically move to mate or to deposit eggs. Thus, a small fire that
temporarily degrades habitat containing host plants is not likely to
support movement between suitable occupied habitat patches and could
cause temporary isolation. Although movement may be possible, to ensure
successful recolonization, habitat must be suitable at the time Hermes
copper butterflies arrive.
Effects from habitat isolation in the northern portion of the
species' range have resulted in extirpation of at least four Hermes
copper butterfly occurrences (see Table 1 above). A historical Hermes
copper butterfly occurrence (Rancho Santa Fe) in the northern portion
of the range has been lost since 2004. This area is not expected to be
recolonized because it is mostly surrounded by development and the
nearest potential ``source'' occurrence is Elfin Forest, 2.7 mi (4.3
km) away, where at least one adult was last detected in 2011
(Marschalek and Deutschman 2016a, p. 8). Farther to the south, Black
Mountain, Lopez Canyon, Van Dam Peak, and the complex of occurrences
comprising Mission Trails
[[Page 72404]]
Park, North Santee, and Lakeside Downs are isolated from other
occurrences by development. Because a number of populations have been
lost, and only a few isolated and mostly fragmented ones remain, the
remaining populations in the northern portion of the range are
particularly vulnerable to the effects of further habitat isolation.
These populations may already lack the dispersal corridor-connectivity
areas needed to recolonize should individual occurrences be extirpated.
Reintroduction or augmentation may be required to sustain the northern
portion of the species' range. No information is available on the
potential impacts of habitat isolation in the species' range in Mexico.
Overall, habitat isolation is a current, ongoing threat that
continues to degrade and isolate Hermes copper butterfly habitat across
the species' range.
Climate Change and Drought
Scientific measurements spanning several decades demonstrate that
changes in climate are occurring, and that the rate of change has
increased since the 1950s. Global climate projections are informative,
and, in some cases, the only or the best scientific information
available. However, projected changes in climate and related impacts
can vary across and within different regions of the world (IPCC 2013,
pp. 15-16). To evaluate climate change for the region occupied by the
Hermes copper butterfly, we used climate projections ``downscaled''
from global projection models, as these provided higher resolution
information that is more relevant to spatial scales used for analyses
of a given species (Glick et al. 2011, pp. 58-61).
Southern California has a Mediterranean climate. Summers are
typically dry and hot while winters are cool, with minimal rainfall
averaging about 25 centimeters (10 inches) per year. The interaction of
the maritime influence of the Pacific Ocean combined with inland
mountain ranges creates an inversion layer typical of Mediterranean-
like climates. These conditions also create microclimates, where the
weather can be highly variable within small geographic areas at the
same time.
We evaluated the available historical weather data and the species'
biology to determine the likelihood of effects assuming the climate has
been and will continue to change. The general effect of a warmer
climate, as observed with Hermes copper butterfly in lower, warmer
elevation habitats compared to higher, cooler elevations, is an earlier
flight season by several days (Thorne 1963, p. 146; Marschalek and
Deutschman 2008, p. 98). Past records suggest a slightly earlier flight
season in recent years compared to the 1960s (Marschalek and Klein
2010, p. 2). The historical temperature trend in Hermes copper
butterfly habitats for the month of April (when larvae are typically
developing and pupating) from 1951 to 2006 can be calculated with
relatively high confidence (p values from 0.001 to 0.05). The mean
temperature change in occupied areas ranged from 0.07 to 0.13 [deg]F
(0.04 to 0.07 [deg]C) per year (Climate Wizard 2016), which could
explain the earlier than average flight seasons. Nevertheless, given
the temporal and geographical availability of their widespread
perennial host plant, and exposure to extremes of climate throughout
their known historical range (Thorne 1963, p. 144), Hermes copper
butterfly and its host and nectar plants are not likely to be
negatively affected throughout the majority of the species' range by
phenological shifts in development of a few days.
Drought has been a major factor affecting southern California
ecosystems. The 2011-2016 California drought was one of the most
intense in the State's history, with the period of late 2011-2014 being
the driest ever recorded (Public Policy Institute of California 2020;
Syphard et. al. 2018, p. 16). Specifically, the 12-month period in
2013-14 was the driest on record in California (Swain et al. 2014, p.
S3), followed by another unusually dry year in 2018. Furthermore,
evidence is emerging that climate change has pushed what would have
likely been a moderate drought in southwestern North America into the
beginning of a megadrought similar to ecologically devastating
historical events (Agha Kouchak et al. 2014, entire; Griffen et al.
2014, entire; Robeson 2015, entire; Williams et al. 2020, p. entire).
The exact mechanism by which drought impacts Hermes copper
butterflies is not known. However, other butterfly species in southern
California have shown declines caused by drought stress on their
perennial host plants (Ehrlich et al. 1980, p. 105). Spiny redberry
shows decreased health and vegetative growth during drought years
(Marschalek 2017, pers. comm.).
Though limited, existing data suggest that drought is contributing
to the decline of Hermes copper butterflies. Systematic monitoring of
adult abundance at sites within occurrences since 2010 indicates the
past 10 years of mostly drought conditions negatively affected habitat
suitability and suppressed adult population sizes. The highest
elevation, wettest occurrence (Boulder Creek Road) maintained the
highest abundance among long-term monitored sites from 2014 to 2020.
This higher elevation site got more rain than lower sites, indicating
representation in higher elevation inland habitats is important to
species' viability. The number of Hermes copper butterflies reported at
Boulder Creek sharply decreased in 2019. In 2020, the maximum daily
number observed at that location was limited to only three butterflies
and none were reported at any of the other seven long-term monitored
sites (Marschalek and Deutschman 2019, p. 8; Marschalek pers. comm.
2020, entire; Figure 11). In 2018, a new site was discovered (``Roberts
Ranch South,'' part of the Descanso occurrence) and, although variable
from year to year, has had consistently high survey numbers. Fifty-four
individuals were recorded in 2018, 95 in 2019, and 45 in 2020
(Marschalek and Deutschman 2019, p. 8; Marschalek pers. comm. 2020,
entire). For all 3 years since discovery, Roberts Ranch South has far
exceeded numbers found at sentinel and other survey sites.
Temperatures have significantly increased from 1951 to 2016, and
these changes may be influencing the timing of the Hermes copper
butterfly's flight season as well as their phenology (Service 2021, pp.
47-48). Through increased evapotranspiration and soil drying, high
temperatures increase the indirect negative effects of drought on
average quality of the host plant and nectar resources. Still, we are
unaware of any direct negative impacts on Hermes copper butterfly life
history due to these temperature changes. Drought appears to be having
a more pronounced indirect negative effect, as the mean maximum daily
adult counts have decreased in recent years with a decrease in
precipitation that may be more of a concern at low-elevation sites.
Combined Effects
Threats interacting may have a much greater effect than threats
working individually; for example, habitat loss and isolation due to
land use change combined with wildfire together have a greater impact
on the species than wildfire alone. Multiple threats at a given
hierarchical level have combined effects that emerge at the next higher
level. For example, at the population level, habitat loss significantly
reducing the resilience of one population combined with wildfire
affecting resilience of another has a greater effect on Hermes copper
butterfly species-level redundancy and, therefore, species viability
than either threat would individually.
[[Page 72405]]
Threats that alone may not significantly reduce species viability
have at least additive, if not synergistic, effects on species
viability. For example, wildfire and habitat modification (type
conversion) typically have a synergistic effect on habitat suitability
in Mediterranean-type climate zones (Keeley and Brennon 2012, entire;
California Chaparral Institute 2017, entire). Wildfire increases the
rate of nonnative grass invasion, a component of the habitat
modification threat, which in turn increases fire frequency. Overall,
these factors increase the likelihood of megafires on a landscape/
species range-wide scale.
The relationship between habitat fragmentation and type conversion
is in part synergistic, particularly for Hermes copper butterflies,
which are typically sedentary with limited direct movement ability.
Fragmentation increases the rate of nonnative plant species invasion
and type conversion through increased disturbance, nitrogen deposition,
and seed dispersal, and type conversion itself reduces habitat
suitability and, therefore, habitat contiguity and dispersal corridor-
connectivity areas (increasing both habitat fragmentation and
isolation). Another example of combined impacts is climate change.
Although not a known significant threat on its own, the increased
temperature resulting from climate change significantly exacerbates
other threats, especially wildfire and drought.
Small population size, low population numbers, and population
isolation are not necessarily independent factors that pose a threat to
species. It is the combination of small size and number and isolation
of populations in conjunction with other threats (such as the present
or threatened destruction and modification of the species' habitat or
range) that may significantly increase the probability of a species'
extinction. Considering reduced numbers in recent surveys and
historically low population numbers relative to typical butterfly
population sizes, the magnitude of effects due to habitat fragmentation
and isolation, drought, and wildfire are likely exacerbated by small
population size.
Therefore, multiple threats are acting in concert to fragment,
limit, and degrade Hermes copper butterfly habitat and decrease species
resiliency, redundancy, and representation. The effects of these
threats are evidenced by the loss and isolation of many populations
throughout the range; those remaining extant populations fall within
very high fire-hazard areas.
Species Viability Index
In the absence of population dynamics data required for a
population viability analysis, we constructed a relatively simple
viability index in our SSA report to better understand how species
viability may change with changing conditions (Service 2021, pp. 66-
68). In our index calculations, the contribution of a population to
species-level redundancy depends on population-level resiliency, and
contribution to species-level representation depends on how rare
populations are in the habitat type (California Ecological Unit) it
occupies (Service 2021, Figure 13). Species redundancy and
representation are assumed to equally influence species viability. We
assign a 100 percent species viability index value to the baseline
state of all known historical population occurrences in the United
States. For this index calculation, we do not consider occurrences in
Mexico, because there are only 3 (possibly 2) out of a total of 98, and
all are presumed extirpated. For a detailed description of our
methodology and of viability index results, see the Species Viability
Index section of the SSA report (Service 2021, pp. 58-62).
Our index of species viability is indicative of changes in species
viability (the ability of a species to sustain populations in the
natural ecosystem beyond 30 years); in other words, it is correlated
with the likelihood of persistence, but is not itself a probability
value). This viability index is useful for comparison of current and
future conditions to historical baseline conditions, with an assumed
baseline indefinite likelihood of persistence. We can assume the index
value and species viability move in the same direction over time (both
decrease or increase together); however, once the probability of
persistence for 30 years drops significantly below 100 percent (as
populations become fewer, less resilient, and more isolated), viability
likely decreases faster than the index value.
To calculate the viability index, we first estimated species
redundancy and species representation. To estimate a current species
redundancy value, we ranked each occurrence's resiliency based on the
status and their relative connectedness (Service 2021, p. 53; Appendix
III). We estimate there are currently 15 presumed extant, 1 extant non-
core isolated, 1 core isolated, and 8 extant core connected occurrences
and based on our calculations, the species currently retains 14 percent
of its historical population redundancy (Service 2021, p. 57).
In order to model species representation, we used California
Ecological Units (Goudey and Smith 1994 [2007]; see Table 1 above) as a
measure of habitat diversity (Service 2021, Figure 10). Using those
units, occupancy in the Coastal Terraces (CT) ecological unit has been
reduced to 9 percent, in the Coastal Hills (CH) unit to 18 percent, in
the Western Granitic Foothills (WGF) unit to 29 percent, and 89 percent
in the Palomar-Cuyamaca Peak Coastal Terraces (PC) unit. Based on these
proportional values, the species retains approximately 36 percent of
its historical species representation (Service 2021, p. 57).
Species viability was calculated by summing the results of the
redundancy and representation calculations (Service 2021, p. 57); we
estimate the species viability index value is approximately 25 percent
of its historical value.
Summary of Current Condition
Of the 98 known historical occurrences in southern California,
there are currently 26 occurrences that are believed to be extant or
presumed extant; therefore, there is limited population resiliency to
withstand stochastic events. Based on our viability index, Hermes
copper butterfly has lost significant viability over the past 50 years.
However, extant and presumed extant occurrences are represented across
a continuum of elevations and varying habitat diversity. This helps
ensure the species has sufficient representation to provide the
adaptive capacity necessary to maintain species viability. The number
of occurrences presumed and considered to be extant also provides
redundancy to protect the species against catastrophic events. While we
know fire, drought, and climate change are ongoing stressors that
continue to adversely affect the species' viability, under current
conditions, there appear to be a sufficient number of extant and
presumed extant occurrences to currently sustain the species in the
wild. Additionally, the majority of extant occurrences are on conserved
lands, providing some protection from ongoing threats.
Future Condition
To analyze species viability, we consider the current and future
availability or condition of resources. The consequences of missing
resources are assessed to describe the species' current condition and
to project possible future conditions.
[[Page 72406]]
As discussed above, we generally define viability as the ability of
the species to sustain populations in the natural ecosystem for the
foreseeable future, in this case, 30 years. We chose 30 years because
it is within the range of the available hydrological and climate change
model forecasts, fire hazard period calculations, habitat-vegetation
association, and fire-return intervals.
Threats
To consider the possible future viability of Hermes copper
butterfly, we first analyzed the potential future conditions of ongoing
threats. Possible development still in the preliminary planning stage
(Service and CDFW 2016) could destroy occupied or suitable habitat on
private land within the North Santee occurrence. Similar concerns apply
to habitat in the Lyons Valley, Skyline Truck Trail area. Habitat
isolation is a continuing concern for Hermes copper butterfly as lack
of dispersal corridor-connectivity areas among occupied areas limits
the ability of the species to recolonize extirpated habitat.
Development outside of occupied habitat can also negatively affect the
species by creating dispersal corridor-connectivity barriers throughout
the range.
Anticipated severity of effects from future habitat development and
isolation varies across the range of the species. Within U.S. Forest
Service (USFS) lands (2,763 ha (6,829 ac)), we anticipate future
development, if any, will be limited. As it implements specific
activities within its jurisdiction, the USFS has incorporated measures
into the Cleveland National Forest Plan to address threats to Hermes
copper butterfly and its habitat (USFS 2005, Appendix B, p. 36). The
limited number of Hermes copper butterfly occurrences within Bureau of
Land Management's (BLM) National Landscape Conservation System Otay
Mountain Wilderness is also unlikely to face future development
pressure. Based on our analysis, we conclude land use change, while
significant when combined with the stressor of wildfire, will not be
the most significant future source of Hermes copper butterfly
population decline and loss. Some habitat areas vulnerable to
development are more important than others to the species' viability
because of their history of occupancy, size, or geographic location.
Development poses a potential threat to certain known occurrences
including North Santee, Loveland Reservoir, Skyline Truck Trail, North
Jamul, and South Japutal core occurrences (26 percent of the core
occurrences considered or presumed extant; Service 2021, pp. 23-28,
41). Absent additional conservation of occupied habitat and dispersal
corridor-connectivity areas, effects of habitat loss, fragmentation,
and isolation will continue to extirpate occurrences, degrade existing
Hermes copper butterfly habitat, and reduce movement of butterflies
among occurrences, which reduces the likelihood of natural
recolonizations following extirpation events (Service 2021, p. 53 and
Figure 9).
As discussed above, wildfire can permanently affect habitat
suitability. If areas are reburned at a high enough frequency,
California buckwheat may not have the time necessary to become
reestablished, rendering the habitat unsuitable for Hermes copper
butterfly (Marschalek and Klein 2010, p. 728). Loss of nectar plants is
not the only habitat effect caused by wildfire; habitat type conversion
increases flammable fuel load and fire frequency, further stressing
Hermes copper butterfly populations. Therefore, habitat modification
due to wildfire is cause for both short- and long-term habitat impact
concerns.
We expect that wildfire will continue to cause direct mortality of
Hermes copper butterflies. In light of the recent drought-influenced
wildfires in southern California, a future megafire affecting most or
all of the area burned by the Laguna Fire in 1970 (40-year-old
chaparral) could encompass the majority of extant occurrences and
result in significantly reduced species viability (Service 2021,
Figures 8 and 9).
In the case of Hermes copper butterfly, the primary limiting
species-level resource is dispersal corridor-connectivity areas of
formerly occupied to currently occupied habitats, on which the
likelihood of post-fire recolonization depends. We further analyzed
fire frequency data to determine the effect on occurrence status and
the likelihood of extirpation over the next 30 years. Our analysis
concluded that the probability of a megafire occurring in Hermes copper
butterfly's range has significantly increased. During the past 15 years
(2004-2019), there were six megafires within Hermes copper butterfly's
possible historical range (Poomacha, Paradise, Witch, Cedar, Otay Mine,
and Harris; all prior to 2008), a significant increase compared to none
during the two previous 15-year periods (1973-2003), and only one prior
to 1973 (Laguna). This represents a more than six-fold increase in the
rate of megafire occurrence over the past 30 years. While fires meeting
our megafire definition of greater than 16,187 ha (40,000 ac) have not
occurred in the past 10 years, several relatively large fires occurred
in the Hermes copper butterfly's range in 2014, 2017, and 2020. The
Cocos and Bernardo fires burned approximately 809 ha (2,000 ac) and 607
ha (1,500 ac) of potentially occupied Hermes copper butterfly habitat
near the Elfin Forest and the Black Mountain occurrences in 2014
(Service 2021, Figure 5). A smaller unnamed fire burned approximately
38 ha (95 ac) of potential habitat near the extant core Mission Trails
occurrence in 2014 (Burns et al., 2014; City News Source 2014). In
2017, the Lilac Fire burned 1,659 ha (4,100 ac) of potentially occupied
habitat between the Bonsall and Elfin Forest occurrences. Most notably,
as discussed in ``Wildfire,'' the Valley Fire burned 6,632 ha (16,390
ac) in 2020, impacting or posing a threat to several extant core
occurrences. At the current large-fire return rate, multiple megafires
could impact Hermes copper butterfly over the next 30 years, and that
assumes no further increase in rate. If the trend does not at least
stabilize, the frequency of megafires could continue to increase with
even more devastating impacts to the species.
As discussed above, climate change and associated drought are
stressors estimated to have had a significant impact on the species
over the last 15 years. Furthermore, new information on availability of
key nutrients from host plants (Malter 2020, p. 28; see Background),
combined with apparent drought sensitivity, suggest a narrow climatic
envelope for the species within the range of its host plant that is
shifting with climate change. Because climate differences noted in the
new study are correlated with latitude, we expect the reverse
relationship (hotter and drier outside the historical range) to the
east (desert) and south of the species' historical range. Evidence of
limited movement and immigration capacity of the species, as well as
significantly reduced dispersal corridor-connectivity areas within the
species' historical range due to land use change, indicates a climate-
change-driven shift in habitat suitability not likely to be mirrored by
a corresponding shift in the species' range at the pace required to
maintain species viability. Support for this hypothesis presented in
the SSA report (Service 2021, pp. 64-65) indicates assisted
recolonization, and even assisted colonization (range-shift) may be
required in the future for species survival.
Combined effects increase the likelihood of significant and
irreversible loss of populations, compared to individual effects. If
fewer source populations are available over time to
[[Page 72407]]
recolonize burned habitat when host and nectar plants have sufficiently
regenerated, the combined effects of these threats will continue to
reduce resiliency, redundancy, and representation, resulting in an
increase in species extinction risk.
Future Scenarios
Given climate change predictions of more extreme weather, less
precipitation, and warmer temperatures, and the recent trend of
relatively frequent and large fires, we can assume the primary threats
of drought and wildfire will continue to increase in magnitude. If land
managers work to conserve and manage all occupied and temporarily
unoccupied habitat, and maintain habitat contiguity and dispersal
corridor-connectivity, this should prevent further habitat loss.
Although fire and drought are difficult to control and manage for,
natural recolonization and assisted recolonization through
translocation in higher abundance years (e.g., Marschalek and
Deutschman 2016b) should allow recolonization of extirpated
occurrences.
All scenarios described below incorporate some change in
environmental conditions. However, it is important to keep in mind that
even if environmental conditions remain unchanged, the species may
continue to lose populations so that viability declines by virtue of
maintaining the current trend. Given that there is uncertainty as to
exact future trends of many threats, these future scenarios are meant
to explore the range of uncertainty and examine the species' response
across the range of plausible future conditions. For more detailed
discussions of the future scenarios, see the Possible Future Conditions
section of the SSA report (Service 2021, pp. 60-62).
Scenario 1: Conditions worsen throughout the range, resulting in
increased extinction risk.
Due to a combination of increased wildfire and drought frequency
and severity, no habitat patches are recolonized, and all Hermes copper
butterfly occurrences with a low resilience score are extirpated. These
losses would reduce the species redundancy and the species would retain
approximately 8 percent of its historical baseline population
redundancy. The species would retain approximately 7 percent of its
historical representation. Resulting changes to the population
redundancy and representation values would cause an approximate drop in
the viability index value from 25 to 7 percent relative to historical
conditions.
Scenario 2: A megafire comparable to the 1970 Laguna Fire increases
extinction risk.
If there was a megafire comparable to the 1970 Laguna Fire, many
occurrences would likely be extirpated, and, due to the number of
occurrences already lost, the likelihood of any being recolonized would
be low. With regard to redundancy, these losses would result in the
additional loss of four unknown status occurrences; no small isolated
occurrences; three small, connected or large, isolated occurrences; and
five large, connected occurrences.
In this scenario, the species would retain 5 percent of its
historical baseline redundancy and 23 percent of its historical
representation. These changes to population redundancy and
representation values would result in an approximate drop in the
viability index value relative to historical conditions from the
current 25 percent to 14 percent.
While the Laguna Fire footprint is used in this scenario as an
example of an event similar to that, it includes loss of the ``Roberts
Ranch South'' Descanso occurrence site south of I-8, the highest
occupancy monitored site (Service 2021, Appendix III) and one of only
three areas where adults were observed in 2020 (Service 2021; Table 1,
Figure 8). Because no adults have been detected post-drought in the
northern portion of the Descanso occurrence, the entire occurrence
could be lost, and it is in an area where the probability of wildfire
is high. Loss of this occurrence would likely have a greater impact on
species viability than indicated by these index calculations.
Scenario 3: Conditions stay the same, resulting in extinction risk
staying the same.
While environmental conditions never stay the same, changes that
negatively affect populations may be offset by positive ones--for
example, continued habitat conservation and management actions such as
translocations to recolonize burned habitats, or the current trend of
more frequent drought is reversed. In this scenario, the risk of
wildfire remains high. Occurrence extirpations and decreased resiliency
of some populations in this scenario are balanced by habitat
recolonizations and increased resiliency in others. The species
viability index value would thus remain at approximately 25 percent
relative to historical conditions. Even if environmental conditions
remain unchanged, the species may continue to lose populations so that
viability declines by virtue of maintaining the current trend.
Summary of Comments and Recommendations
In the proposed rule published on January 8, 2020 (85 FR 1018), we
requested that all interested parties submit written comments on the
proposal by February 24, 2020. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
San Diego Union-Tribune. We did not receive any requests for a public
hearing.
We received 448 comments: 437 from members of the public (including
432 whose comments were collected by a conservation organization and
submitted on their behalf), 2 individuals involved in Hermes copper
butterfly research, 3 conservation organizations, 1 public utility
company, 3 local governmental agencies, the U.S. Marine Corps Air
Station (MCAS) Miramar, and the USFS. In all, 443 commenters explicitly
supported listing the species as threatened or endangered, and 5
commenters indicated it should be listed as endangered, not threatened,
or provided data to support endangered status. No commenters argued the
species should not be listed. Several commenters provided specific
information they believed was relevant to the final listing rule, and
three recommended specific changes. Three comments addressed the
proposed designation of critical habitat. We reviewed all comments and
information received from the public for substantive issues and new
information regarding the proposed listing of the species; we
incorporated new scientific information as appropriate, and address
comments below.
Peer Reviewer Comments
As discussed in Supporting Documents above, we received comments
from six peer reviewers. We reviewed all comments we received from the
peer reviewers for substantive issues and new information regarding the
information contained in the SSA report. The peer reviewers generally
concurred with our methods and conclusions, and provided additional
information, clarifications, and
[[Page 72408]]
suggestions to improve the final SSA report. Peer reviewer comments are
addressed in the following summary and were incorporated into the final
SSA report as appropriate.
Comment 1: Two peer reviewers expressed concerns about the
interpretation of the limited population genetic analyses performed on
this species across its range, emphasizing that study results did not
demonstrate contemporary gene flow and population structure.
Our response: We removed discussion of interpretations questioned
by the reviewer, and stated that more information is needed to fully
understand movement patterns of Hermes copper butterfly.
Comment 2: One peer reviewer expressed concern that there was
little mention of either effective population size or minimum viable
population size that can be accomplished using mark-recapture or
genetic data. They also noted that the SSA report did not address local
adaptation (ecological and genetic), quantified inbreeding (and
depression), landscape connectivity (specifically via un-sampled
populations/corridors), and temporal genetic variability (or loss
thereof). Finally, they stated the species viability model does not
account for the traditional ``error'' variables, including genetic, and
other stochastic factors. They recommended using a more robust
probabilistic model that incorporates persistence likelihood such as
the population viability analysis used by Schultz and Hammond (2003,
entire). They specifically recommended analyzing genetic samples of
museum specimens from Mexico.
Our response: We agree the suggested future analyses would aid our
understanding of the species. However, we do not currently have the
data needed for the genetic-based analyses suggested by the peer
reviewer, and we must make our decision based on the best scientific
and commercial information available at the time of our rulemaking.
Landscape connectivity (specifically via un-sampled populations/
corridors) is generally addressed in the discussions of isolation due
to development and in the population resiliency score that is
incorporated in the viability index calculations. We will continue to
update our information on the species as new data become available.
Comment 3: One commenter stated that our wildfire threat discussion
led him to believe that it seems necessary to start translocating
adults from the occurrences that fall within the large contiguous area
not recently burned to unoccupied habitats. They thought the need for
translocation should be emphasized more.
Our response: Translocation is a potential recovery tool for this
species. However, based on the information we have at this time, we are
concerned that there is not a high likelihood of success and there may
be negative impacts to the source populations. We will assess the
potential for translocations (direct movement of individuals from one
location to another) and assisted recolonization (including rearing of
offspring for increased survival prior to reintroduction) in our
recovery planning efforts based on species distribution and occurrence
status at that time.
Comment 6: One commenter with expertise in modelling thought the
species viability index was ``interesting and useful,'' and unlike any
model they had seen before. Although they said they understood it, they
found the description of it misleading and confusing, in particular
that it was falsely described as a probability model. They stated that
we have permanently altered this ecosystem, which resulted in the
resulting decrease in viability. They also agreed the viability index
is a valid way to measure decline from historical viability, but argued
it does not provide information for the future, and has no direct
relationship with extinction risk, even proportionally. Finally, the
commenter said they thought the viability index analysis results were
interpreted to indicate a more positive outlook than the rest of the
SSA report supports.
Our response: We edited the index description to be less confusing
and corrected the characterization as a probability model. While we
understand the viability index is not a model that provides future
predictions, to the extent future scenarios are plausible future
projections, and the index can be calculated based on changes to
parameters in those future scenarios, we believe it provides useful
information about the species' potential future status. Finally, we are
not sure the statement that the index value has no ``direct''
relationship with extinction risk is accurate. We agree that we cannot
know if the viability index is directly proportional to probability of
persistence/extinction risk (a change in one value is correlated with
same amount of change in the other), and we edited our text to reflect
that. However, while the exact nature of the relationship cannot be
known, it must be at least inversely proportional as stated, even if
the extinction risk increases at a different rate than the viability
index value decreases. For example, the relationship might be linearly,
but not directly, proportional. That said, the relationship is more
likely to be an exponentially inversely proportional one (uncertain
inflection point), with the extinction risk increasing exponentially as
the index value decreases; as the species approaches the extinction
threshold, synergy among threat effects such as small population size
and isolation will likely increase. If such a relationship is in fact
the case, it is possible the viability index analysis indicates a more
positive outlook than the rest of the Species Status Assessment
supports, as the commenter asserted.
Comment 7: One commenter said they found the three scenarios
interesting and useful, but did not understand the implicit assumption
that conditions would have to change for extinction risk to change.
They pointed out it is possible that populations will continue to
decline, even if conditions stay the same.
Our response: SSAs forecast species' response to potential changing
environmental conditions and conservation efforts using plausible
future scenarios. These scenarios characterizes a species' ability to
sustain populations in the wild over time (viability) based on the best
scientific understanding of current and plausible future abundance and
distribution within the species' ecological settings.
We edited scenario 3 to explain this possibility: Even if
environmental conditions remain unchanged, the species may continue to
lose populations so that viability declines by virtue of maintaining
the current trend.
Federal Agency Comments
Comment 8: Marine Corps Air Station Miramar's comments concurred
with our determination that their Integrated Natural Resources
Management Plan (INRMP) contains elements that benefit the Hermes
copper butterfly. They further stated that conservation measures were
identified in the INRMP to conserve all habitat found occupied by the
Hermes copper butterfly prior to the 2003 wildfire. They pointed out
that because occurrences listed in Table 1 lacked associated geographic
text descriptions or map numbers, they did not understand where
occurrences are located with respect to MCAS Miramar, and expressed
concern that the occurrence names in Table 1 are similar to ones they
use for other areas and will lead to confusion.
Our Response: We appreciate MCAS Miramar taking the time to provide
specific comments. We revised Table 1 and added map numbers in the
first
[[Page 72409]]
column to help locate each mapped occurrence in Figures 6 and 7 of the
SSA report (Service 2021).
Comments From States
We did not receive any comments from the State of California.
Comments From Tribes
We did not receive any comments from Tribes.
Public Comments
Comment 9: Four commenters stated specifically the species should
be listed as endangered, not threatened. One additional commenter
submitted a research report as part of his comment with species
monitoring information as evidence to support endangered status. He did
not specifically recommend listing the species as endangered, but
concluded Hermes copper butterfly is at risk of being lost from the
United States in the near future.
Our Response: We reviewed all new comments and all the updated data
and information, and concluded that based on current and future
threats, the Hermes copper butterfly continues to meet the definition
of threatened because there appear to be a sufficient number of extant
and presumed extant occurrences to currently sustain the species in the
wild. Additionally, the majority of extant occurrences are on conserved
lands, providing some protection from ongoing threats. We invite all
interested parties to continue to send us information and data on the
Hermes copper butterfly. Additionally, in accordance with section
4(c)(2) of the Endangered Species Act, the status of Hermes copper
butterfly will be reviewed every 5 years .
Comment 10: One conservation organization indicated that there are
opportunities for habitat enhancement in places like parks and private
lands with the planting of spiny redberry host plants in natural
habitat conditions that could aid in the species' recovery.
Our Response: We agree that such opportunities could be beneficial
for the species; however, host plant availability does not appear to be
a limiting factor within the species' range. Planting of spiny redberry
in areas where landscape connectivity has been limited by development
may be most beneficial. There are currently no plans for such
plantings, but conservation and planting of host plants will likely be
incorporated into future conservation planning.
Comment 11: We received two comments discussing the net benefit of
the proposed Fanita Ranch project to Hermes copper butterfly
conservation and recovery. One local government agency and the project
proponent (who included as an attachment a proposed development
footprint) stated the proposed Fanita Ranch development would provide
long-term Hermes copper butterfly habitat restoration, permanent
management, and protection from fire in preserved areas on the property
and maintain and enhance habitat connectivity. They asserted that
Hermes copper butterfly may be extirpated from the property and require
reintroduction. Additionally, they stated that because the local
government agency must rely on developers to implement reintroduction
and because the present opportunity is with current owners,
reintroduction is most likely once the current project is approved.
Our Response: Based on our threats analysis (Service 2021, p. 61),
it is not clear the proposed Fanita Ranch project would be a net
benefit to Hermes copper butterfly conservation and recovery. The
potential positive and negative impacts of this project to Hermes
copper butterfly are currently, and will continue to be, addressed
through discussion and consultation with the project applicants.
Comment 12: Four commenters expressed concerns about the impacts of
the proposed Fanita Ranch project on the North Santee Core occurrence
complex. Specifically, one conservation organization said there are
significant patches of habitat that would be impacted by the proposed
Fanita Ranch project, and habitat on northern and southern portions of
the Fanita Ranch should be protected through conservation to maintain
connectivity to adjacent undeveloped areas. A second conservation
organization provided a detailed rebuttal to comments supporting the
Fanita Ranch project, arguing generally the proposed development is a
threat to Hermes copper butterfly.
Our Response: Based on our threats analysis (Service 2021, p. 61),
we acknowledge it is possible the proposed Fanita Ranch project would
negatively impact Hermes copper butterfly conservation and recovery.
Such concerns are, and will continue to be, addressed through
discussion and consultation with the project applicants regarding the
Hermes copper butterfly.
Comment 13: Three commenters requested additional exceptions from
take prohibitions under section 9(A)(1) of the Endangered Species Act.
A public utility company described activities they have undertaken
under their Wildfire Mitigation Plan that they believe have benefited
the species and minimized wildfire damage and expressed support for the
proposed take prohibition exceptions. They stated the proposed take
prohibition exceptions would benefit them and the species by enabling
them to continue activities that minimize wildfire risk. They proposed
additional exceptions for fire-hardening and vegetation management
activities carried out by utilities.
A local government agency expressed support for the proposed
exception to take prohibition for fire prevention and management
activities, but recommended the specific ``30 meter (m) (100 feet
(ft))'' brush-clearing distance be deleted from the third exception, as
this distance may change with future fire code updates.
One commenter requested we include a proposed development project
(Village 13) in the mapped area specifying portions of the range exempt
from take prohibitions under section 9(a)(1) of the Act (see Figure 1)
because past surveys for host plants indicate this area would most
likely not support the Hermes copper butterfly.
Our Response: We conclude that the utility company commenter's
Wildfire Mitigation Plan will benefit Hermes copper butterfly through
the control and minimization of wildfires within San Diego County. We
did not edit take exceptions per the commenter's request because we are
currently working with this company on an amendment to their Habitat
Conservation Plan/Natural Communities Conservation Plan (HCP/NCCP) to
provide for additional conservation and incidental take authorization
of covered species, and to address new species including Hermes copper
butterfly. The amendment includes new protocols that avoid and minimize
impacts to the species from covered activities, including fire-
hardening and vegetation management. We believe this amendment process
is the appropriate mechanism to cover activities impacting the Hermes
copper butterfly and addresses the commenter's concerns regarding the
need for additional exceptions to take prohibitions.
We edited the third take prohibition exception to remove the 30-m
(100-ft) distance for defensible space from structures; we did this to
clarify that any activities to reduce wildfire risks must be done in
compliance with State and local fire codes. Currently, this distance is
still 30 m (100 ft), but the rewording allows for flexibility to ensure
that activities will be in compliance with State of California fire
codes if they change.
We did not include the Village 13 project area in the mapped areas
exempt from take prohibitions under section
[[Page 72410]]
9(a)(1) of the Act (Figure 1). Doing so would be inconsistent with our
methodology, as we did not consider host plant distribution data when
constructing this map. Although Hermes copper butterfly is not a
covered species under the existing County MSCP subarea plan (includes
the Village 13 project), the County of San Diego just received a
Section 6 planning grant to prepare a Butterfly HCP that would cover
the Hermes copper butterfly and other butterfly species, and the
Village 13 project area is within the draft plan boundary. Therefore,
this issue should be addressed during HCP development, or if the site
is as described, the project proponent can provide a simple habitat
assessment demonstrating there is no need for surveys or possibility of
take. Such a habitat assessment would serve to streamline the process
at least as much as an exception from take prohibitions under section
9(A)(1) of the Endangered Species Act, which does not eliminate the
need for consultation under section 7 of the Act (see Provisions of the
4(d) Rule below).
Comment 14: One public utility company said their above- and below-
ground electric and gas facilities, the vegetation management probable
impact zones around these facilities, and rights-of-way should be
excluded from critical habitat designation based on the existing HCP
and other conservation-oriented activities. They pointed out that the
Service excluded other utility facilities from critical habitat
designation for the coastal California gnatcatcher based on the
adequacy of their HCP/NCCP to ensure conservation and management of
habitat (72 FR 72010; December 19, 2007). They further stated that even
though the Hermes copper butterfly is not covered by their current HCP/
NCCP, its operational protocols sufficiently mitigate impacts to the
species' habitat (1995 SDG&E NCCP/HCP, pp. 103-109).
Our Response: Should the proposed HCP/NCCP amendment be approved,
it would address impacts to critical habitat from both operation and
maintenance activities as well as construction of new facilities. The
referenced exclusion from coastal California gnatcatcher critical
habitat designation occurred because the existing HCP/NCCP covered that
species, and our Biological Opinion analysis had already determined
operational protocols sufficiently mitigate impacts to the species'
habitat. It is possible this company's existing HCP/NCCP does
sufficiently mitigate habitat impacts; however, this analysis is
appropriately addressed through the ongoing HCP/NCCP amendment process.
With respect to rights-of-way maintenance activities in areas of
critical habitat, Federal agencies that authorize, carry out, or fund
actions that may affect listed species or designated critical habitat
are required to consult with us to ensure the action is not likely to
jeopardize listed species or destroy or adversely modify designated
critical habitat. This consultation requirement under section 7 of the
Act is not a prohibition of Federal agency actions; rather, it is a
means by which they may proceed in a manner that avoids jeopardy or
adverse modification. Even in areas absent designated critical habitat,
if the Federal agency action may affect a listed species, consultation
is still required to ensure the action is not likely to jeopardize the
species. Additionally, existing consultation processes also allow for
emergency actions for wildfire and other risks to human life and
property; critical habitat would not prevent the commenter from
fulfilling those obligations. Lastly, we note that actions of private
entities for which there is no Federal nexus (i.e., undertaken with no
Federal agency involvement) do not trigger any requirement for
consultation.
In regard to the commenter's specific request to exclude their
rights-of-way areas from the critical habitat designation, the
commenter provided general statements of their desire to be excluded
but no information or reasoned rationale as described in our preamble
discussion in our policy on exclusions (see Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act: 81 FR
7226; February 11, 2016) (Policy on Exclusions). For the Service to
properly evaluate an exclusion request, the commenter must provide
information concerning how their rights-of-way maintenance activities
would be limited or curtailed by the designation to support the need
for exclusion.
Comment 15: One local government agency explained that they are
currently seeking approval of their subarea plan under the San Diego
MSCP. The commenter stated that as part of the subarea plan, they, in
conjunction with the Fanita Ranch property owner, are developing a
Hermes copper butterfly habitat restoration plan for the property. The
commenter believes their MSCP subarea plan will effectively protect the
region's biodiversity while reducing conflicts between protection of
wild species and economic development. They stated that the best
scientific and commercial data available indicate that economic and
other benefits of excluding their draft MSCP subarea plan planning area
from critical habitat outweigh those of designation and do not indicate
failure to designate will result in species extinction. They also
stated that their draft MSCP subarea plan planning areas should be
excluded from critical habitat with a clause that these areas will be
automatically designated in the event the HCP is not permitted within a
fixed period of time.
Our Response: As discussed in response to comment 15 above,
although the commenter provided general statements of their desire to
be excluded and cited some documents, they provided no information or
reasoned rationale as described in our preamble discussion in our
Policy on Exclusions. We acknowledge the effort to prepare the subarea
plan for the MSCP. The protective provisions provided by completed HCPs
are an important part of balancing species conservation with the needs
of entities to manage their lands for public and private good. However,
in the absence of an approved HCP, there are no assurances of funding
or implementation of the measures included in such a plan. We cannot
rely on the presumed benefits of an HCP that is currently in
development (see Policy on Exclusions, 81 FR 7226; February 11, 2016).
Should an HCP be approved, we will be required to ensure that the
project will not adversely modify Hermes copper butterfly designated
critical habitat. Therefore, an approved HCP will address critical
habitat concerns for projects within the HCP subarea plan boundary.
Because the commenter did not provide a reasoned rationale for
exclusion and there is no approved subarea plan at this time, we are
not considering the areas covered by the draft plan for exclusion from
the final designation of critical habitat.
Comment 16: The local government agency also asserted the majority
of the Fanita Ranch property proposed as critical habitat does not meet
the definition of critical habitat because it does not contain the
physical or biological features, based on mapping of spiny redberry
within 5 m (15 ft) of California buckwheat. The Fanita Ranch project
applicant provided similar comments, referencing the benefits of
fostering a conservation partnership as the primary reason the Fanita
Ranch property should be excluded from critical habitat.
Our Response: With regard to assertions of errors in the critical
habitat designation, spiny redberry within 5 m (15 ft) of California
buckwheat was not a listed physical or biological feature
[[Page 72411]]
essential to the conservation of the Hermes copper butterfly, nor have
we determined it should be, nor have we determined it is a valid
mapping method based on the listed features. As stated in Physical or
Biological Features Essential to the Conservation of the Species:
Plants specifically identified as significant nectar sources include
California buckwheat (Eriogonum fasciculatum) and golden yarrow
(Eriophylum confirtiflorum). Any other butterfly nectar source (short
flower corolla) species found associated with spiny redberry that
together provide nectar similar in abundance to that typically provided
by California buckwheat would also meet adult nutritional requirements.
Additionally, in regard to the commenter's specific request to exclude
their project area from the critical habitat designation based on
partnership benefits, the commenter provided general statements of
their desire to be excluded but no information or reasoned rationale.
As discussed in the response to Comment 15, for the Service to properly
evaluate an exclusion request, the commenter must provide information
concerning how our partnership would be limited or curtailed by the
designation to support the need for exclusion. We agree that there are
strong benefits to a conservation agreement that can lead to exclusion
from critical habitat; however, in this case, there is no final,
approved plan in place.
Comment 17: Another local government agency requested we reevaluate
designation of critical habitat in isolated areas surrounded by
development, and identified by experts as likely extirpated, because
these areas seem unlikely to contribute to species recovery.
Our Response: It is not clear what isolated areas were referenced
by the commenters. All critical habitat units are considered occupied
(see Criteria Used to Identify Critical Habitat for more detail on how
we determined occupancy). Given the limited distribution of Hermes
copper butterfly, we consider all critical habitat areas important for
conservation of the species. Our analysis indicated that isolated areas
designated as critical habitat contribute to habitat diversity within
the species' range and possibly to genetic diversity (representation),
which in turn will contribute to species recovery.
Comment 18: One local government agency and one project proponent
expressed concern about the effect of this listing on areas already
approved for development by the City of San Diego MSCP Subarea Plan. In
particular, they argued we did not follow the mutual assurances
requirements in Section 9.7 Future Listings of the MSCP's Implementing
Agreement, and the proposed listing would encumber land in the Del Mar
Mesa area, the center of a planned commercial and residential
``village'' (intersection of State Route 56, Camino del Sur, and its
future connection to Rancho Pe[ntilde]asquitos).
Our Response: Although Hermes copper butterfly was considered for
coverage in the MSCP, it was ultimately not included on the permit due
to unknown conservation level and insufficient distribution and life-
history data. Since then, we have worked closely with researchers to
learn more about the species and its distribution. The commenter
references portions of Section 9.7 of the Implementing Agreement, which
addresses future listings. Consistent with Section 9.7.A., the Service
evaluated the conservation provided by the MSCP during the status
review for Hermes copper butterfly; however, this was not clear in the
proposed rule. We have updated the SSA report and final rule to better
reflect our analysis of conservation provided by the MSCP. The other
referenced section (9.7.C.) outlines how a ``non-covered'' species can
be added to the permit. The commenter is correct that we had not
initiated this process when they wrote their letter. Since that time,
we have had discussions with both local government agencies who
commented regarding the development of a county-wide HCP that would
address several sensitive butterflies, including Hermes copper
butterfly. One local government is submitting a request for planning
dollars that would be used to prepare the HCP. Consistent with the
intent of Section 9.7.C., one of the first tasks in the planning
process would be to evaluate existing measures, including the MSCP. The
commenter referenced a planned project on Del Mar Mesa; however, little
information was provided regarding what the potential conflict is.
There are no known occurrences of Hermes copper butterfly on Del Mar
Mesa, nor is there any critical habitat designated in that area.
Therefore, we do not anticipate the referenced project being affected
by this listing.
Comment 19: One local government agency stated they do not agree
with our proposed listing rule where we stated that ``there is no
coordinated effort to prioritize Hermes copper butterfly conservation
efforts within the species' range,'' arguing the County of San Diego
supports such an effort through the San Diego Management and Monitoring
Program (SDMMP).
Our Response: We edited the statement and updated the rule to
better reflect the ongoing conservation efforts within the region. We
appreciate and support the conservation efforts and partnership
building provided by the SDMMP for Hermes copper butterfly and other
species of concern. The SDMMP includes the Hermes copper butterfly in
their Management Strategic Plan, and is working collaboratively with
the Service and other stakeholders to develop management and monitoring
goals and objectives for the species. We look forward to working with
the County to bring the plan to completion, including ensuring the plan
has funding for implementation.
Comment 20: One local government agency asked if we will accept San
Diego County's current survey guidelines developed in concert with
experts for use in current and future projects until such time as the
FWS develops its own survey guidelines.
Our Response: At this time, the survey protocol required by San
Diego County is the only widely used protocol for Hermes, and we will
continue to support this protocol until an updated protocol is
established.
Determination of Hermes Copper 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 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 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 manmade factors affecting its continued existence.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Hermes copper butterfly, and we have determined the
[[Page 72412]]
following factors are impacting the resiliency, redundancy, and
representation of the species: Wildfire (Factor A), land use change
(Factor A), habitat fragmentation and isolation (Factor A), climate
change (Factor E), and drought (Factor E); as well as the cumulative
effect of these factors on the species, including synergistic
interactions between the threats and the vulnerability of the species
resulting from small population size. We also considered the effect of
existing regulatory mechanisms (Factor D) on the magnitude of existing
threats. Potential impacts associated with overutilization (Factor B),
disease (Factor C), and predation (Factor C) were evaluated but found
to have little to no impact on species viability (Service 2021, p. 50);
thus, we did not discuss them in this document.
Individually, land use change (Factor A), habitat fragmentation and
isolation (Factor A), climate change (Factor A), and drought (Factor E)
are impacting the Hermes copper butterfly and its habitat. Although
most impacts from land use change have occurred in the past, and some
existing regulations are in place to protect remaining occurrences, 33
percent of historically occupied habitat is not protected and remains
at risk from land use change. As a result of past development, which
contributed to the loss of 26 occurrences (Table 1), species
representation has been reduced through loss of most occurrences in
ecological units closest to the coast, while redundancy has decreased
through loss of overall numbers of occurrences. Remaining habitat has
been fragmented, decreasing species resiliency by removing habitat
corridors and thus decreasing the species' ability to recolonize
previously extirpated occurrences. Climate change is currently having
limited effects on the species; however, drought is likely resulting in
degradation of habitat and decreased numbers of Hermes copper
butterflies at all monitored occurrences.
Wildfire (Factor A) is a primary driver of the Hermes copper
butterfly's status and is the most significant source of ongoing
population decline and loss of occurrences. Large fires can eliminate
source populations before previously burned habitat can be recolonized,
and can result in long-term or permanent loss of butterfly populations.
Since 2003, wildfire is estimated to have caused or contributed to the
extirpation of 34 U.S. occurrences (and 3 in Mexico), and only 3 of
those are known to have been apparently repopulated. Wildfire frequency
has significantly increased in Hermes copper butterfly habitat since
1970. Nearly all mapped occurrences of Hermes copper butterfly
currently fall within very high fire hazard severity zones, increasing
the risk that a single megafire could possibly affect the majority of
extant occurrences. Additionally, based on increasing drought and
continued climate change, the likelihood of additional megafires
occurring over the next 30 years is high. Frequent wildfire degrades
available habitat through conversion of suitable habitat to nonnative
grasslands, and we anticipate that fire will continue to modify and
degrade Hermes copper butterfly habitat into the foreseeable future.
Furthermore, though fuel-reduction activities are ongoing throughout
much of the species' range, megafires cannot be controlled through
regulatory mechanisms. We expect the ongoing effects of wildfire will
continue to result in substantial reductions of species resiliency,
redundancy, and representation for the Hermes copper butterfly, and
that the risk of wildfire will continue to increase into the
foreseeable future.
Combined effects of threats have a greater impact on the Hermes
copper butterfly than each threat acting individually. Wildfire
increases the rate of nonnative grass invasion, which in turn increases
fire frequency. Overall, these factors increase the likelihood of
megafires on a range-wide scale now and will continue to make them even
more likely into the foreseeable future. The combination of habitat
fragmentation and isolation (as a result of past and potential limited
future urban development), existing dispersal barriers, and megafires
(that encompass vast areas and are increasing in frequency) that limit
and degrade Hermes copper butterfly habitat, results in substantial
reductions in species resiliency, redundancy, and representation.
Additionally, effects from habitat fragmentation and isolation,
megafire, and drought are exacerbated by the small population size and
isolated populations of the Hermes copper butterfly. Overall, the
combined effects of threats are currently decreasing the resiliency,
redundancy, and representation of the Hermes copper butterfly, and we
expect that they will continue to decrease species viability into the
foreseeable future.
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
find that multiple threats are impacting Hermes copper butterfly across
its range and will continue to impact the species into the foreseeable
future. Based on our future scenarios, species viability will either
stay the same at 25 percent of historical levels, or decrease to 14 or
7 percent within the foreseeable future. Thus, after assessing the best
available information and based on the level of viability decrease in
two of the three future scenarios, we conclude that the Hermes copper
butterfly is likely to become in danger of extinction within the
foreseeable future throughout all of its range. We find that the Hermes
copper butterfly is not currently in danger of extinction because there
appear to be a sufficient number of extant and presumed extant
occurrences to currently sustain the species in the wild. Additionally,
the majority of extant occurrences are on conserved lands, providing
some protection from ongoing threats.
Because remaining areas are isolated from each other, if some were
lost to fire or other threats, the resiliency of the remaining areas
would not be affected. Although a megafire has the potential to
extirpate a high number of occurrences, we do not consider it an
imminent threat because the frequency of such fires is uncertain and
the fire-return intervals within Hermes copper butterfly habitat are
15-30-plus years for coastal sage scrub and 30-60 years for chaparral.
We also expect that impacts to the species from fire and other threats
will likely increase over time. Thus, after evaluating threats to the
species and assessing the cumulative effect of the threats under the
section 4(a)(1) factors, we find that the Hermes copper 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 Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all of
its range. Therefore, we proceed to evaluating whether the
[[Page 72413]]
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 the Hermes copper
butterfly, we choose to address the status question first--we consider
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 the Hermes copper 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:
Wildfire, land use change, habitat isolation, and climate change and
drought, including cumulative effects. After a careful review of those
threats, we determined that they are all affecting the Hermes copper
butterfly across its range. There are varying levels of risk of
individual threats; for example, fire risk is highest in the southern
portion of the range, risk of development is higher in the northern
portion of the range, land use change is occurring in parts of the
southeastern part of the range, and climate change is most severe at
lower elevations. Drought is occurring at similar levels rangewide. In
the northern portion of the range, where development is the primary
threat, we have no evidence that any remaining occurrences are
currently at risk from development, though they could be in danger of
development in the future. In the southern portion of the range, where
fire is the primary threat, though fire could impact multiple
occurrences in this part of the range currently, we expect that the
most substantial impacts from fire will occur in the future. Overall,
none of these threats are imminent in magnitude or at such a level to
cause any parts of the range to be in danger of extinction now.
We found no concentration of threats in any portion of the Hermes
copper butterfly's range 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 scientific and commercial data available
indicates that the Hermes copper butterfly meets the definition of a
threatened species. Therefore, we are listing the Hermes copper
butterfly as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), or from our Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of California
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the Hermes copper butterfly.
[[Page 72414]]
Information on our grant programs that are available to aid species
recovery can be found at: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Section 8(a) of the Act (16 U.S.C. 1537(a)) authorizes the
provision of limited financial assistance for the development and
management of programs that the Secretary of the Interior determines to
be necessary or useful for the conservation of endangered or threatened
species in foreign countries. Sections 8(b) and 8(c) of the Act (16
U.S.C. 1537(b) and (c)) authorize the Secretary to encourage
conservation programs for foreign listed species, and to provide
assistance for such programs, in the form of personnel and the training
of personnel.
Please let us know if you are interested in participating in
recovery efforts for the Hermes copper butterfly. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act
requires Federal agencies to ensure that activities they authorize,
fund, or carry out are not likely to jeopardize the continued existence
of any endangered or threatened species or destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
consultation with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include management
and any other landscape-altering activities on Federal lands
administered by the U.S. Marine Corps, U.S. Fish and Wildlife Service,
U.S. Forest Service, and Bureau of Land Management; issuance of section
404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army
Corps of Engineers; and construction and maintenance of roads or
highways by the Federal Highway Administration.
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 final listing
on proposed and ongoing activities within the range of a listed
species. The discussion below regarding protective regulations under
section 4(d) of the Act complies with our policy.
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
[[Page 72415]]
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, HCPs, or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.
Geographical Area Occupied at the Time of Listing
The following meets the definition of the geographical area
currently occupied by the Hermes copper butterfly in the United States:
Between approximately 33[deg]20'0'' North latitude and south to the
international border with Mexico, and from approximately 30 m (100 ft)
in elevation near the coast, east up to 1,340 m (4,400 ft) in elevation
near the mountains (Service 2021, Figure 5). This includes those
specific areas within the geographical area occupied by the species at
the time of listing or the currently known range of the species.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Space for Individual and Population Growth and for Normal Behavior
Patches of spiny redberry host plants, including post-fire stumps
that can resprout, are required to support Hermes copper butterfly
populations and subpopulations; the number of plants in a patch
required to support a subpopulation is unknown. Because we know that
Hermes copper butterflies are periodically extirpated from patches of
host plants by wildfire, and subsequently recolonize these patches
(Table 1), we can assume functional
[[Page 72416]]
metapopulation dynamics are important for species viability. The time-
scale for recolonization from source subpopulations may be 10-30 years.
Spiny redberry is often associated with the transition between sage
scrub and chaparral vegetation associations, but may occur in a variety
of vegetation associations. Such host plant patches occur between 30-
1,341 m (100-4,400 ft) above sea level.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Adults require relatively abundant nectar sources associated with
patches of their host plants, spiny redberry. Plants specifically
identified as significant nectar sources include California buckwheat
and golden yarrow. Any other butterfly nectar source (short flower
corolla) species found associated with spiny redberry that together
provide nectar similar in abundance to that typically provided by
California buckwheat would also meet adult nutritional requirements.
Larvae feed on the leaves of the host plant.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
All immature life-cycle stages develop on the host plant, spiny
redberry. Eggs are deposited on branches, caterpillars are sheltered on
and fed by leaves, and chrysalides are attached to live host plant
leaves.
Habitats That Are Protected From Disturbance and Representative of the
Historical Geographical and Ecological Distributions of a Species
Maintenance of species representation across the species' range
necessitates sufficiently resilient, well-connected metapopulations and
sufficient numbers and configuration of host plant stands. Corridor
(connective) habitat areas containing adult nectar sources are required
among occupied (source subpopulations) and formerly occupied host plant
patches, in order to maintain long-term the number and distribution of
source subpopulations required to support metapopulation resiliency.
Protected spiny redberry host plants must be distributed in four
California Ecological Units to maintain species representation.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Hermes copper butterfly from studies of the
species' habitat, ecology, and life history as described below.
Additional information can be found in the SSA report (Service 2021,
entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-
R8-ES-2017-0053).
We have determined that the physical or biological features
essential to the conservation of the Hermes copper butterfly consist of
the following components when found between 30 m and 1,341 m above sea
level, and located in habitat providing an appropriate quality,
quantity, and spatial and temporal arrangement of these habitat
characteristics in the context of the life-history needs, condition,
and status of the species (see Criteria Used to Identify Critical
Habitat below):
(1) Spiny redberry host plants.
(2) Nectar sources for adult butterflies.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of this species may
require special management considerations or protection to reduce or
mitigate the following threats: Wildfire, land use change, habitat
fragmentation and isolation, and climate change and drought. In
particular, habitat that has at any time supported a subpopulation will
require protection from land use change that would permanently remove
host plant patches and nectar sources, and habitat containing adult
nectar sources that connects such host plant patches through which
adults are likely to move. These management activities will protect
from losses of habitat large enough to preclude conservation of the
species.
Additionally, when considering the conservation value of areas
designated as critical habitat within each unit, especially among
subpopulations within the same California Ecological Unit, maintenance
of dispersal corridor-connectivity among them should be a conservation
planning focus for stakeholders and regulators (such connectivity was
assumed by the criteria used to delineate critical habitat units).
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that have a reasonable certainty of
contributing to the conservation of the species.
Sources of data for this species and its habitat requirements
include multiple databases maintained by universities and by State
agencies in San Diego County and elsewhere in California, white papers
by researchers involved in conservation activities and planning, peer-
reviewed articles on this species and relatives, agency reports, and
numerous survey reports for projects throughout the species' range.
The current distribution of the Hermes copper butterfly is much
reduced from its historical distribution. We anticipate that recovery
will require continued protection of existing subpopulations and
habitat, protection of dispersal corridor-connectivity areas among
subpopulations, as well as reestablishing subpopulations where they
have been extirpated within the species' current range in order to
ensure adequate numbers of subpopulations to maintain metapopulations.
These activities help to ensure future catastrophic events, such as
wildfire, would never simultaneously affect all known populations.
The critical habitat designation does not include all areas within
the geographical area occupied by the species at this time. Rather, it
includes those lands with physical and biological features essential to
the conservation of the species which may require special management
considerations or protection. We also limited the designation to
specific areas historically or currently known to support the species
within its current range. This critical habitat designation focuses on
maintaining areas that support those occurrences we consider required
for survival and recovery of the species--that is, areas required to
maintain species viability by virtue of occurrence contribution to
species redundancy (core status, or subpopulation contribution to
metapopulation dynamics/resilience) and contribution to continued
species representation within all California Ecological Units. Hermes
copper butterflies may be found
[[Page 72417]]
in areas without documented populations (and perhaps even some areas
slightly beyond that range), and these areas would likely be important
to the conservation of the species.
In summary, we delineated critical habitat unit boundaries using
the following criteria:
(1) We started by considering all high-accuracy record-based
occurrences mapped in the SSA report (accuracy codes 1 and 2 in Table
1; Service 2021, p. 20) within the geographical area currently occupied
by the species. Occurrences were mapped as intersecting areas within
0.5 km (0.3 mi) of high geographic accuracy records, and areas within
0.5 km (0.3 mi) of any spiny redberry record within 1 km (0.6 mi) of
these butterfly records. These distances are based on the maximum
recapture distance of 1.1 km (0.7 mi) recorded by Marschalek and
Klein's (2010, p. 1) intra-habitat movement study.
(2) We removed seven non-core occurrences that were more than 3 km
(1.9 mi) from a core occurrence, or otherwise deemed not essential for
metapopulation resilience or continued species representation within
all California Ecological Units.
(3) We added habitat contiguity areas between occurrences that were
0.5 km (0.3 mi) or less apart that are likely to be within a single
subpopulation distribution. To do this, we included the area within 0.5
km (0.3 mi) of the midpoint of the tangent between the two closest
butterfly records in each occurrence (to capture likely unrecorded
physical or biological features).
(4) Using the best available vegetation association GIS database,
we removed areas within 95 subcategories (out of 177) not likely to
contain host plants, such as those associated with streams.
(5) We removed by visual review of the best available satellite
imagery all clearly developed areas, areas of disturbed vegetation such
as nonnative grasslands, and granitic formations not likely to contain
host plants, at the scale of approximately 1.2 ha (3 ac).
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack physical or
biological features necessary for the Hermes copper butterfly. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are within the geographical area occupied at the time of
listing (that is, currently occupied) and that contain one or more of
the physical or biological features that are essential to support life-
history processes of the species. All units contain all of the
identified physical or biological features and support multiple life-
history processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2017-0053, on our
internet site <a href="https://www.fws.gov/carlsbad/gis/cfwogis.html">https://www.fws.gov/carlsbad/gis/cfwogis.html</a>, and at the
field office responsible for the designation (see FOR FURTHER
INFORMATION CONTACT).
Final Critical Habitat Designation
We are designating three units as critical habitat for Hermes
copper butterfly. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for Hermes copper butterfly. The three
units we designate as critical habitat are: (1) Lopez Canyon; (2)
Miramar/Santee; and (3) Southeast San Diego. Table 1 shows the critical
habitat units and the approximate area of each unit.
Table 2--Critical Habitat Units for Hermes Copper Butterfly
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Land ownership by Approximate size
Critical habitat unit type in hectares of unit in
(acres) hectares (acres)
------------------------------------------------------------------------
1. Lopez Canyon............... Federal: 0........... 166 (410)
State: 0
Local Jurisdiction:
88 (218)
Private: 77 (191)
2. Miramar/Santee............. Federal: 0........... 2,870 (7,092)
State: 111 (275)
Local Jurisdiction:
1,113 (2,750)
Private: 1,646
(4,068)
3. Southeast San Diego........ Federal: 4,213 11,139 (27,525)
(10,411).
State: 1,999 (4,940)
Local Jurisdiction:
1,162 (2,871)
Private: 3,765
(9,303)
-----------------------------------------
Total..................... Federal: 4,213 14,174 (35,027)
(10,411).
State: 2,110 (5,215)
Local Jurisdiction:
2,363 (5,839)
Private: 5,488
(13,562)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding or unit conversion.
[[Page 72418]]
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Hermes copper butterfly,
below. Although conservation and management of dispersal corridor
connectivity areas among occurrences designated as critical habitat
will also be required for species survival and recovery (occurrence
isolation was a factor that eliminated occurrences in Criterion (2)
above), the best available data do not provide sufficient information
to identify the specific location of these lands at this time.
Therefore, we did not include dispersal corridor connectivity areas
among occurrences in the critical habitat units.
Unit 1: Lopez Canyon
Unit 1 consists of 166 ha (410 ac) within the geographical area
currently occupied by the species and contains all of the essential
physical or biological features. The physical or biological features
may require special management to protect them from wildfire and land
use change, although the latter is less likely in this unit (see
Special Management Considerations or Protection above). This area
encompasses the core Lopez Canyon occurrence, the only known extant
occurrence that falls within the Coastal Terraces Ecological Unit
(Table 1), and is therefore required to maintain species
representation. Unit 1 is within the jurisdiction of the City of San
Diego, associated with the communities of Sorrento Valley and Mira
Mesa. This unit is surrounded by development. Habitat consists
primarily of canyon slopes. The majority of this unit falls within the
Los Pe[ntilde]asquitos Canyon Preserve jointly owned and managed by the
City and County of San Diego. The primary objective of Los
Pe[ntilde]asquitos Canyon Preserve is the preservation and enhancement
of natural and cultural resources. The preserve master plan states that
recreational and educational use by the public is a secondary
objective, development should be consistent with these objectives, and
public use should not endanger the unique preserve qualities. Land use
in this unit is almost entirely recreation and conservation.
Unit 2: Miramar/Santee
Unit 2 consists of 2,870 ha (7,092 ac) within the geographical area
currently occupied by the species and contains all of the essential
physical or biological features. The physical or biological features
may require special management to protect them from land use change and
wildfire, although wildfire will be challenging to manage for in this
unit because of its size and risk of megafire (see Special Management
Considerations or Protection above). This area encompasses the core
Sycamore Canyon, North Santee, and Mission Trails occurrences, as well
as non-core occurrences connected to core occurrences also required for
metapopulation resilience and continued species representation in two
California Ecological Units (Coastal Hills and Western Granitic
Foothills). This unit includes half of the extant/presumed extant core
occurrences in the Coastal Hills California Ecological Unit (the other
half is in Unit 3). Unit 2 mostly surrounds the eastern portion of MCAS
Miramar (lands encompassing areas that also meet the definition of
critical habitat and would be included in this unit but are exempt from
designation), falling primarily within the jurisdictions of the City of
San Diego, but also within the City of Santee and unincorporated areas
of San Diego County. In this unit, the City of San Diego owns and
manages the over 2,830-ha (7,000-ac) Mission Trails Regional Park (887
ha (2,192 ac) in this unit) and the County owns and manages the 919-ha
(2,272-ac) Gooden Ranch/Sycamore Canyon County preserve (198 ha (488
ac) included in this unit).
Unit 3: Southeast San Diego
Unit 3 consists of 11,139 ha (27,525 ac) within the geographical
area currently occupied by the species and contains all of the
essential physical or biological features. The physical or biological
features may require special management to protect them from land use
change and wildfire, although wildfire will be challenging to manage in
this unit because of its size and risk of megafire (see Special
Management Considerations or Protection above). This unit configuration
would conserve essential contiguous habitat. This area includes half of
the extant/presumed extant core occurrences in the Coastal Hills
California Ecological Unit (the other half is in Unit 2), and all of
the extant/presumed extant core occurrences in the Western Granitic
Foothills and Palomar-Cuyamaca Peak California Ecological Units. The
majority of the Crestridge core occurrence falls within the Crestridge
Ecological Reserve jointly managed by the Endangered Habitats
Conservancy and the California Department of Fish and Wildlife. The
majority of the Alpine core occurrence falls within the Wright's Field
preserve owned and managed by the Back Country Land Trust. Thirty-eight
percent of this unit (4,213 ha (10,411 ac)) is owned and managed by the
U.S. Fish and Wildlife Service, the USFS, and the BLM.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of
[[Page 72419]]
critical habitat. We define ``reasonable and prudent alternatives'' (at
50 CFR 402.02) as alternative actions identified during consultation
that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, consider likely to destroy or adversely
modify critica
[…truncated; see source link]Indexed from Federal Register on December 21, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.