11080 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

in hard copy at a docket facility. The 

Office of Water (OW) Docket Center is 

open from 8:30 a.m. until 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The OW Docket Center 

telephone number is (202) 566–2426, 

and the Docket address is OW Docket, 

EPA West, Room 3334, 1301 

Constitution Avenue, NW., Washington, 

DC 20004. The Public Reading Room is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744. 

Public Hearings: Additional public 

hearings will be held in Florida in midApril, 2010. The dates and locations of 

these hearings have yet to be confirmed. 

Relevant information pertaining to these 

hearings will be provided at the 

following Web site: http://www.epa.gov/ 

waterscience/standards/rules/florida/ 

Information on the public hearings will 

be available shortly after publication of 

this notice in the Federal Register. For 

further information, please contact 

Sharon Frey at 202–566–1480 or 

frey.sharon@epa.gov 

FOR FURTHER INFORMATION CONTACT: 

Danielle Salvaterra, U.S. EPA 

Headquarters, Office of Water, 

Mailcode: 4305T, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

telephone number: 202–564–1649; fax 

number: 202–566–9981; e-mail address: 

salvaterra.danielle@epa.gov. 

Dated: March 4, 2010. 

Peter S. Silva, 

Assistant Administrator for Water. 

[FR Doc. 2010–5103 Filed 3–9–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS- R4-ES-2010-0003] 

[MO 92210-0-0009-B4] 

[RIN 1018-AW55] 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Carex lutea (Golden Sedge) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, propose to designate 

critical habitat for the Carex lutea 

(golden sedge) under the Endangered 

Species Act of 1973, as amended. We 

propose to designate as critical habitat 

approximately 189 acres (76 hectares) in 

8 units. The proposed critical habitat is 

located in Onslow and Pender Counties 

in North Carolina. 

DATES: We will consider comments from 

all interested parties until May 10, 2010. 

We must receive requests for public 

hearings, in writing, at the address 

shown in the FOR FURTHER INFORMATION

CONTACT section by April 26, 2010. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS-R4-ES-2010-0003. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R4- 

ES-2010-0003; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Pete 

Benjamin, Field Supervisor, U.S. Fish 

and Wildlife Service, Raleigh Fish and 

Wildlife Office, P.O. Box 33726, 

Raleigh, NC 27636-3726; telephone 919- 

856-4520; facsimile 919-856-4556. If you 

use a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800-877-8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from government agencies, 

the scientific community, industry, or 

any other interested party concerning 

this proposed rule. We particularly seek 

comments concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether the benefit of designation 

would be outweighed by threats to the 

species caused by the designation, such 

that the designation of critical habitat is 

not prudent. 

(2) Comments or information that may 

assist us in identifying or clarifying the 

primary constituent elements for Carex 

lutea. 

(3) Specific information on: 

•The amount and distribution of Carex 

lutea habitat, 

•What areas occupied at the time of 

listing and that contain features 

essential to the conservation of the 

species which may require special 

management considerations or 

protections we should include in 

the designation and why, and 

•What areas not occupied at the time of 

listing are essential for the 

conservation of the species and 

why. 

(4) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(5) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation. We 

are particularly interested in any 

impacts on small entities (e.g., small 

businesses or small governments) or 

families, and the benefits of including or 

excluding areas that exhibit these 

impacts. 

(6) Whether any specific areas we are 

proposing as critical habitat should be 

considered for exclusion under section 

4(b)(2) of the Act, and whether the 

benefits of potentially excluding any 

specific area outweigh the benefits of 

including that area under section 4(b)(2) 

of the Act. 

(7) Information on any quantifiable 

economic costs or benefits of the 

proposed designation of critical habitat. 

(8) Information on the projected and 

reasonably likely impacts of climate 

change on Carex lutea, and any special 

management needs or protections that 

may be needed in the critical habitat 

areas we are proposing. 

(9) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in the 

ADDRESSES section. We will not accept 

comments sent by e-mail or fax or to an 

address not listed in the ADDRESSES

section. 

We will post your entire comment— 

including your personal identifying 

information—on http:// 

www.regulations.gov. If your written 

comments provide personal identifying 

information, you may request at the top 

of your document that we withhold this 

information from public review. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11081 

However, we cannot guarantee that we 

will be able to do so. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Raleigh Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

Carex lutea, refer to the final listing rule 

published in the Federal Register on 

January 23, 2002 (67 FR 3120). 

Carex lutea is a perennial member of 

the sedge family (Cyperaceae). Fertile 

culms (stems) may reach 39 in (1 m) or 

more in height. The yellowish green 

leaves are grass-like, with those of the 

culm mostly basal and up to 11 in (28 

cm) in length, while those of the 

vegetative shoots reach a length of 25.6 

in (65 cm). 

The species is endemic to Onslow and 

Pender Counties in the Black River 

section of the Coastal Plain Province of 

North Carolina. The North Carolina 

Natural Heritage Program (NCNHP) 

recognizes eight populations made up of 

17 distinct locations or element 

occurrences. All of the locations occur 

within a 16- by 5-mile (26-by-8- 

kilometer) area, extending southwest 

from the community of Maple Hill. 

Carex lutea generally occurs on fine 

sandy loam, loamy fine sands, and fine 

sands with a pH of 5.5 to 7.2, and with 

a mean of 6.7. These soils are moist to 

saturated to periodically inundated. 

Carex lutea occurs in the Pine Savanna 

(Very Wet Clay Variant) natural 

community type (Schafale 1994, p. 136). 

Community structure is characterized 

by an open to sparse canopy dominated 

by pond pine (Pinus serotina), and 

usually with some longleaf pine (P. 

palustris) and pond cypress (Taxodium 

ascendens). 

Carex lutea is threatened by fire 

suppression; habitat alteration such as 

land conversion for residential, 

commercial, or industrial development; 

mining, drainage for silviculture and 

agriculture; highway expansion; and 

herbicide use along utility and highway 

rights-of-way. 

Previous Federal Actions 

Carex lutea was listed as endangered 

under the Act on January 23, 2002 (67 

FR 3120). Designation of critical habitat 

had been found to be not prudent in the 

proposed listing rule (64 FR 44470, 

August 16, 1999); however, following a 

reevaulation of information available for 

the proposal and new information that 

came in through the public comment 

period on the proposal, critical habitat 

designation was determined to be 

prudent in the final listing rule (67 FR 

3120). However, the development of a 

designation was deferred due to 

budgetary and workload constraints. 

On December 19, 2007, the Center for 

Biological Diversity filed a complaint 

for declaratory and injunctive relief 

challenging the Service’s continuing 

failure to timely designate critical 

habitat for this species as well as three 

other plant species (Center for Biological 

Diversity v. Kempthorne, C-04-3240 JL 

(N. D. Cal.). In a settlement agreement 

dated April 11, 2008, the Service agreed 

to submit for publication in the Federal 

Register a proposed designation of 

critical habitat, if prudent and 

determinable, on or before February 28, 

2010, and a final determination by 

February 28, 2011. 

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. 

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 

underuant 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(a)(2)of the Act through 

the prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) requires 

consultation on Federal actions that 

may affect 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 seeks or requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the Federal action agency’s and 

the landowner’s obligation is not to 

restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

To be considered for inclusion in a 

critical habitat designation, the habitat 

within the geographical area occupied 

by the species at the time it was listed 

must contain the physical and biological 

features essential to the conservation of 

the species. Areas supporting the 

essential physical or biological features 

are identified, to the extent known using 

the best scientific data available, as the 

habitat areas that provide essential life 

cycle needs of the species. Habitat 

within the geographical area occupied 

by the species at the time of listing that 

contains features essential to the 

conservation of the species meets the 

definition of critical habitat only if these 

features may require special 

management consideration or 

protection. Under the Act and 

regulations at 50 CFR 424.12, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed 

only when we determine that the best 

available scientific data demonstrate 

that the designation of those areas is 

essential for 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 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11082 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

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 developed 

during the listing process for the 

species. Additional information sources 

may include 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, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Climate change may lead to 

increased frequency and duration of 

severe storms and droughts (Golladay et 

al. 2004, p. 504; McLaughlin et al. 2002, 

p. 6074; Cook et al. 2004, p. 1015). 

According to the America’s Longleaf 

Regional Working Group (2009, p. 19), 

the U.S. Department of Agriculture 

concluded that longleaf pine may 

extend its range northward, but will 

likely lose very little of its southern 

range. The Hadley Centre model 

suggests that savanna and grasslands 

may expand and replace southeastern 

pine forests at some sites in the coastal 

plain due to increased moisture stress 

(America’s Longleaf Regional Working 

Group 2009, p. 19). While the effects of 

climate change on longleaf ecosystem 

plant communities have not been well 

studied, one report concluded that 

while longleaf pine might perform well 

with increased carbon dioxide, the 

herbaceous species may not compete as 

well (America’s Longleaf Regional 

Working Group 2009, p. 19). 

The information currently available 

on the effects of global climate change 

and increasing temperatures does not 

make sufficiently precise estimates of 

the location and magnitude of the 

effects. Nor are we currently aware of 

any climate change information specific 

to the habitat of Carex lutea that would 

indicate what areas may become 

important to the species in the future. 

Therefore, we are unable to determine 

what additional areas, if any, may be 

appropriate to include in the proposed 

critical habitat for this species; however, 

we specifically request information from 

the public on the currently predicted 

effects of climate change on Carex lutea 

and its habitat. Additionally, 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 critical habitat area is 

unimportant or may not be required for 

recovery of the species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

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, 

habitat conservation plans (HCPs), 

section 7 consultations, or other species 

conservation planning efforts if new 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary designate 

critical habitat at the time the species is 

determined to be endangered or 

threatened. Our regulations at 50 CFR 

424.12(a)(1) state that the designation of 

critical habitat is not prudent when one 

or both of the following situations exist: 

(1) The species is threatened by taking 

or other activity and the identification 

of critical habitat can be expected to 

increase the degree of threat to the 

species; or (2) the designation of critical 

habitat would not be beneficial to the 

species. 

There is no documentation that Carex 

lutea is threatened by taking or other 

human activity such as collection. In the 

absence of finding that the designation 

of critical habitat would increase threats 

to the species, if there are any benefits 

to a critical habitat designation, then a 

prudent finding is warranted. The 

potential benefits include: (1) Triggering 

consultation, under section 7 of the Act, 

in new areas for action in which there 

may be a Federal nexus where 

consultation would not otherwise occur 

because, for example, an area is or has 

become unoccupied or the occupancy is 

in question; (2) identifying the physical 

and biological features essential to the 

conservation of Carex lutea and 

focusing conservation activities on these 

essential features and the areas that 

support them; (3) providing educational 

benefits to State or county governments 

or private entities engaged in activities 

or long-range planning in areas essential 

to the conservation of the species; and 

(4) preventing people from causing 

inadvertent harm to the species. 

Conservation of Carex lutea and the 

essential features of the habitat will 

require habitat protection and 

restoration, which will be facilitated by 

knowledge of habitat locations and the 

physical and biological features of those 

habitats. 

Therefore, since we have determined 

that the designation of critical habitat 

will not likely increase the degree of 

threat to the species and may provide 

some measure of benefit, we find that 

the designation of critical habitat for the 

Carex lutea is prudent. 

Critical Habitat Determinability 

As stated above, section 4(a)(3) of the 

Act requires the designation of critical 

habitat concurrently with the species’ 

listing ‘‘to the maximum extent prudent 

and determinable.’’ Our regulations at 50 

CFR 424.12(a)(2) state that critical 

habitat is not determinable when one or 

both of the following situations exist: 

(1) Information sufficient to perform 

required analyses of the impacts of the 

designation is lacking, or 

(2) The biological needs of the species 

are not sufficiently well known to 

permit identification of an area as 

critical habitat. 

When critical habitat is not 

determinable, the Act provides for an 

additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the Carex lutea, the historical 

distribution of the Carex lutea, and the 

habitat characteristics where the species 

currently occurs. This and other 

information represent the best scientific 

data available and led us to conclude 

that the designation of critical habitat is 

determinable for the Carex lutea. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11083 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining which areas within the 

geographical area occupied by the 

species at the time of listing contain the 

features essential to the conservation of 

the Carex lutea that may require special 

management considerations or 

protections, and which areas outside of 

the geographical area occupied at the 

time of listing are essential for the 

conservation of the species. 

We reviewed the available 

information pertaining to historical and 

current distributions, life histories, and 

habitat requirements of this species. Our 

sources included peer-reviewed 

scientific publications; unpublished 

survey reports; unpublished field 

observations by Service, State, and other 

experienced biologists; notes and 

communications from qualified 

biologists or experts; and Service 

publications such as the final listing 

rule for Carex lutea. 

Physical and Biological Features 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and our 

regulations at 50 CFR 424.12, in 

determining which areas within the 

geographical area occupied at the time 

of listing to propose as critical habitat, 

we consider the physical and biological 

features essential to the conservation of 

the species which may require special 

management considerations or 

protection. These include, but are not 

limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We consider the physical and 

biological features to be the primary 

constituent elements PCEs laid out in 

the appropriate quantity and spatial 

arrangement for the conservation of the 

species. We derive the PCEs from the 

biological needs of Carex lutea as 

described in the Background section of 

this proposed rule and in the final 

listing rule (67 FR 3120). The areas 

included in this proposed critical 

habitat rule for Carex lutea contain the 

appropriate soils and associated 

vegetation, and adjacent areas necessary 

to maintain associated physical 

processes such as a suitable 

hydrological regime. The areas provide 

suitable habitat, water, minerals, and 

other physiological needs for 

reproduction and growth of Carex lutea. 

Space for Individual and Population 

Growth and for Normal Behavior 

Clonal Growth 

Carex lutea is a caespitose, or 

clumping, perennial. New shoots 

develop from a central point, forming a 

tufted clump of vegetation that is 

genetically identical to the parent plant. 

The full extent to which a plant can 

expand has not been determined. 

Therefore, based on the information 

above, we identify bare soil areas 

immediately adjacent to existing clumps 

of mature Carex lutea plants to allow 

room for expansion of the clump to be 

a PCE for this species. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

Water 

Although the specific water needs of 

the species are unknown, Carex lutea is 

found in wet to saturated to periodically 

inundated soils. The largest populations 

are found in the wet to saturated 

ecotones of savannas and hardwood 

forests. At a few sites, the plants are 

most abundant in wet to saturated soils 

adjacent to drainage ditches, and in the 

saturated to inundated ditches 

themselves. The occurrence of 

individuals in ditches is likely due to 

the wetter soils of the ditches, or the 

washing of seeds into the ditches from 

adjacent habitat or both. Sometimes 

Carex lutea occurs in very wet soil in 

areas of savanna habitat characterized 

by an open to absent canopy, suggesting 

that its abundance in the savanna-wet 

hardwood ecotone is strongly 

influenced by hydrologic conditions as 

well as by edaphic (influenced by 

factors inherent in the soil rather than 

by climatic factors) or light conditions 

or both. The annual average 

precipitation in Wilmington, NC, 

(approximately 25 miles (40 kilometers) 

south-southwest of the epicenter of 

Carex lutea) is 54.3 inches (138 

centimeters). (http:// 

www.weatherpages.com/variety/ 

precip.html). 

Light 

Most Carex lutea plants occur in the 

partially tree-shaded ecotone between 

savannas and hardwood swamps, with 

scattered shrubs and a moderate to 

dense herb layer. The savanna/ 

hardwood swamp ecotone is subject to 

frequent fires, which favor an 

herbaceous ground layer and suppress 

shrub dominance. There is evidence 

that increased shading and shrub 

competition from fire suppression has 

resulted in the reduction in the number 

of individuals observed. 

Soil 

Carex lutea occurs on a wide variety 

of mapped soil types, including fine 

sands (Baymeade, Mandarin, and 

Pactolus), loamy sands (Stallings), 

loamy fine sands (Foreston and Grifton), 

fine sandy loams (Torhunta and 

Woodington), and loams (Muckalee). 

The soils are formed from marine 

sediments and have a range of 

permeability (from rapid to moderately 

rapid) and drainage class (from well 

drained to very poorly drained). Soil 

tests at the type site (The Neck Savanna) 

indicate that microsites not supporting 

Carex lutea regularly test at lower pH 

levels than those supporting Carex 

lutea, with values at inhabited sites 

ranging from a pH of 5.5 to 7.2, with a 

mean of 6.7 (Glover 1994, p. 7). This 

finding may indicate a preference to 

soils with a high base saturation or low 

aluminum saturation or both. The extent 

of the soils with these chemical 

characteristics is usually limited within 

the Coastal Plain and, therefore, are 

normally not mapped as separate soil 

map units due to the scale of mapping. 

Temperature 

The outer southeastern coastal plain 

of North Carolina experiences hot and 

humid subtropical summers and cool 

temperate winters with subfreezing 

periods. Persistent snow accumulation 

is rare. The average crop growing season 

(daily minimum temperature higher 

than 32 degrees Fahrenheit (0 degrees 

Celsius)) for Onslow County is 162 days 

(Barnhill 1992, p. 99) and for Pender 

County is 185 days (Barnhill 1990, p. 

105). We have no information about the 

tolerance of Carex lutea to temperature 

extremes. 

Therefore, based on the information 

above, we identify wet to completely 

saturated loamy fine sands, fine sands, 

fine sandy loams, and loamy sands soils 

with a pH of 5.5 to 7.2, in sunny to 

partially tree-shaded areas or ecotones 

between savannas and hardwood forests 

to be a PCE for this species. 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

The reproductive biology of Carex 

lutea is unknown; however, due to the 

observation of ample mature seed 

production, we can confidently surmise 

that Carex lutea reproduces both 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11084 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

sexually, involving gravity and winddispersed pollen, as well as vegetatively 

(LeBlond 1996, p. 19). Perigynia (a 

special bract that encloses the achene of 

a Carex species) are dispersed when 

rigid fertile culms fall to the ground, 

thereby depositing the fruits on the 

substrate adjacent to, but at some 

distance from, the maternal parent 

(LeBlond 1996, p. 19). Seeds have been 

observed in ditches adjacent to colonies, 

indicating dispersal by precipitation 

sheet flow. Animals may also be seed 

dispersers; the perigynia beaks are 

minutely serrulate (minutely serrated), 

perhaps for attachment to fur (LeBlond 

1996, p. 19). Survival rates of individual 

plants are unknown. Based on 

observation of the larger known 

populations, it appears that Carex lutea 

is a successful colonizer of suitable 

newly disturbed areas (LeBlond 1996, p. 

19). 

Therefore, based on the information 

above, we identify areas of bare soil 

immediately adjacent [within 12 inches 

(30 cm)] to mature Carex lutea plants 

where seeds may fall and germinate to 

be a PCE for this species. 

Habitats Protected from Disturbance or 

Representative of the Historic, 

Geographical, and Ecological 

Distributions of the Species 

The area supporting the Carex lutea 

populations is located in the Black River 

section of the Coastal Plain Province, 

and within the Northeast Cape Fear 

River watershed. The land surface is 

characterized by large areas of broad, 

level flatlands and shallow stream 

basins. The broad flatlands support 

longleaf pine forests, pond pine 

woodlands, shrub swamp pocosins, 

pine plantations, and cropland. The 

geology is characterized by 

unconsolidated sand overlying layers of 

clayey sand and weakly consolidated 

marine shell deposits (coquina 

limestone). These sediments were 

deposited and reshaped during several 

cycles of coastal emergence and 

submergence from the Cretaceous 

period to the present (LeBlond et al. 

1994, p. 159). 

More specifically, Carex lutea occurs 

in the Very Wet Clay Variant of the Pine 

Savanna community (Schafale 1994, p. 

136) or its ecotones. Community 

structure is characterized by an open to 

sparse canopy dominated by pond pine 

(Pinus serotina), and usually with some 

longleaf pine (Pinus palustris) and pond 

cypress (Taxodium ascendens). The 

shrub layer typically is sparse to patchy, 

with wax myrtle (Morella carolinensis), 

ti-ti (Cyrilla racemiflora), Ink berry (Ilex 

glabra), myrtle dahoon (Ilex myrtifolia), 

and black highbush blueberry 

(Vaccinium fuscatum) prominent. 

Juvenile red maple (Acer rubrum var. 

trilobum) and swamp tupelo (Nyssa 

biflora) are often present. The herb layer 

is dense, and dominated by 

combinations of Ctenium aromaticum 

(toothache grass), Carolina dropseed 

(Sporobolus pinetorum), and several 

Rhynchospora taxa [e.g., globe 

beaksedge (R. globularis var. 

pinetorum), sandswamp whitetop (R. 

latifolia), and Thorne’s beakrush (R. 

thornei)]. National vegetation type 

classification places this natural 

community in the Pinus palustris - 

Pinus serotina / Sporobolus pinetorum 

- Ctenium aromaticum - Eriocaulon 

decangulare var. decangulare (Tenangle 

pipewort) Woodland association of the 

Pinus palustris - Pinus (P. elliottii, P. 

serotina) Saturated Woodland Alliance 

(NatureServe 2010). This association is 

equivalent to the Pine Savanna (Very 

Wet Clay Variant), a natural community 

type with fewer than 10 occurrences 

globally (Schafale 1994, p. 136). The 

Pine Savanna Very Wet Clay Variant is 

known only from the Maple Hill area 

near the Onslow/Pender County line 

and north and west of Holly Shelter 

Game Land, and from the Old Dock area 

of the Waccamaw River watershed along 

the Brunswick/Columbus County line. 

Therefore, based on the information 

above, we identify areas containing the 

natural plant community that would be 

identified as the Pine Savanna (Very 

Wet Clay Variant) according to 

methodology used in Schafale (1994, p. 

136) to be a PCE for this species. The 

structure of this community is 

characterized by an open to sparse 

canopy dominated by pond pine, and 

usually with some longleaf pine and 

pond cypress. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the habitat requirements for sustaining 

the essential life history functions of the 

species, we have determined that the 

PCEs for Carex lutea is Pine Savanna 

(Very Wet Clay Variant) natural plant 

community or ecotones that contain: 

1. Moist to completely saturated 

loamy fine sands, fine sands, fine sandy 

loams, and loamy sands soils with a pH 

of 5.5 to 7.2; 

2. Open to relatively open canopy that 

allows full to part sun to penetrate to 

the herbaceous layer between savannas 

and hardwood forests; and 

3. Areas of bare soil immediately 

adjacent [within 12 inches (30 cm)] to 

mature Carex lutea plants where seeds 

may fall and germinate or existing 

plants may expand in size. 

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 

physical and biological features that are 

essential to the conservation of the 

species and whether those features may 

require special management 

considerations or protection. 

As stated in the final listing rule, 

threats to Carex lutea include habitat 

alteration; conversion of its limited 

habitat for residential, commercial, or 

industrial development; mining; 

drainage activities associated with 

silviculture and agriculture; suppression 

of fire; highway expansion; and 

herbicide use along utility and highway 

rights-of-way (67 FR 3120). Through our 

review of the existing data on Carex 

lutea, we conclude that the threats listed 

in the final listing rule continue to 

impact this species and its essential 

physical and biological features. 

The destruction of habitat or 

conversion of habitat for residential, 

commercial, or industrial development 

can change the topography, soils, and 

general character of the site, making it 

uninhabitable for Carex lutea. These 

activities can remove the PCEs by 

removing soil (by grading) and changing 

Carex lutea habitat to developed land, 

which is unsuitable for the species. 

Drainage activities associated with 

silviculture and agriculture may alter 

the hydrology, which can change the 

groundwater levels and the amount of 

moisture in the soil, creating conditions 

under which Carex lutea may not be 

able to survive. Further, removal of 

existing vegetation or the planting of 

trees for silviculture may change the 

existing conditions such that Carex 

lutea plants no longer receive optimal 

amounts of sunlight. 

The close proximity of roadways and 

power line corridors to populations of 

Carex lutea may affect the species. 

Herbicide treatment to maintain 

vegetation in rights-of-ways has the 

potential to kill non-target plant species 

such as Carex lutea. Highway expansion 

may change the local topography and 

affect water runoff making the site drier 

or wetter than is optimal for Carex lutea. 

Mining has been documented in close 

proximity to one Carex lutea 

population. Mining activities may alter 

many aspects of Carex lutea habitat. 

Heavy equipment can compact or 

remove the appropriate soils. The 

grading of areas adjacent to Carex lutea 

habitat can change the hydrology of 

those areas and make them more 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11085 

susceptible to invasion by nonnative 

plant species. 

Regular fire in areas where Carex 

lutea occurs helps to maintain the open 

savanna habitat that is conducive to 

Carex lutea growth. Fire reduces 

competition and allows seeds to 

germinate in open, bare soil areas. Fire 

suppression in areas where Carex lutea 

occurs may result in the growth of 

shrubs and trees that will eventually 

shade out herbaceous species such as 

Carex lutea. 

All of these activities may in turn lead 

to the disruption of the growth and 

reproduction of Carex lutea. 

In summary, we find that the areas we 

are proposing as critical habitat contain 

the features essential to the conservation 

of Carex lutea, and that these features 

may require special management 

considerations or protection. Special 

management considerations or 

protection may be required to eliminate, 

or reduce to negligible level, the threats 

affecting each unit or subunit and to 

preserve and maintain the essential 

features that the proposed critical 

habitat units and subunits provide to 

Carex lutea. Additional discussions of 

threats facing individual sites are 

provided in the individual unit and 

subunit descriptions. 

The designation of critical habitat 

does not imply that lands outside of 

critical habitat may not play an 

important role in the conservation of 

Carex lutea. In the future, and with 

changed circumstances, these lands may 

become essential to the conservation of 

Carex lutea. Activities with a Federal 

nexus that may affect areas outside of 

critical habitat, such as development, 

agricultural activities, and road 

construction, are still subject to review 

under section 7 of the Act if they may 

affect Carex lutea because Federal 

agencies must consider both effects to 

the plant and effects to critical habitat 

independently. The prohibitions of 

section 9 of the Act applicable to Carex 

lutea under 50 CFR 17.61 also continue 

to apply both inside and outside of 

designated critical habitat. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining areas within the 

geographical area occupied at the time 

of listing that contain the physical and 

biological features essential to the 

conservation of Carex lutea, and areas 

outside of the geographical area 

occupied at the time of listing that are 

essential for the conservation of Carex 

lutea. In order to determine which sites 

were occupied at the time of listing, we 

used the NCNHP database of rare 

species (NCNHP 2009). If an element 

occurrence (EO) record or site was first 

observed after the species was listed 

(effective on February 22, 2002), then 

we considered that those sites were 

unknown at the time of listing. Five 

subunits had first observed dates after 

February 22, 2002. However, given what 

we know about the biology of this 

species and the habitats where it occurs, 

those five subunits were likely occupied 

at the time the species was listed. The 

occurrence at Watkins Savannah 

(O’Berry Tract C) (EO 5.19) was found 

during surveys for Carex lutea in 2006. 

The two sites on Ashes Creek at the 

Southwest Ridge Savanna (EO 11) were 

found during surveys for Carex lutea in 

2002, just 3 months after the species 

was listed. In 2007, surveys for Carex 

lutea at the McLean Savanna yielded 

two new subpopulations of Carex lutea 

(EOs 24.22 and 24.23). Carex lutea was 

already known from a site nearby, and 

all three of these subpopulations are 

now considered to be part of one 

population. To the best of our 

knowledge, these areas had not been 

surveyed for Carex lutea previously, 

and we have no reason to believe that 

the plant was imported or had dispersed 

into these areas from other areas after 

Carex lutea was listed in 2002. Based on 

the biology of this species and its 

limited ability for the seeds to move and 

colonize new areas, the occurrences 

identified since listing likely were in 

existence for many years prior to listing 

and were only recently detected due to 

increased awareness of this species. 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species including 

NCNHP data, the original species 

description (LeBlond et al 1994, pp. 

159-160), the status survey (LeBlond 

1996, pp. 11-13), the Service’s draft 

Recovery Plan and the 5-Year Review, 

regional Geographic Information System 

(GIS) coverages, survey reports, and 

other relevant information. 

The only criterion that we used to 

identify proposed critical habitat was 

that the areas are currently occupied by 

Carex lutea. These areas occur on rare 

or unique habitat (the Very Wet Clay 

Variant of the Pine Savanna community, 

remnant savannas, or ecotones thereof) 

within the species’ range and contain all 

of the PCEs identified as necessary for 

the conservation of the species. Since so 

few populations are known to exist, 

they are all important to the long-term 

survival and recovery of the species. 

Eight units (19 subunits) are proposed 

for designation based on sufficient 

quantity and arrangement of the PCEs 

being present to support Carex lutea’s 

life processes. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including developed 

areas, such as lands covered by 

buildings, roads, and other structures, 

because such lands lack PCEs for Carex 

lutea. 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 proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, if the critical 

habitat is finalized as proposed, a 

Federal action involving these lands 

would 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 and biological features in 

the adjacent critical habitat. 

To the best of our knowledge, there 

are no unoccupied areas that contain 

one or more of the PCEs for Carex lutea. 

All of the areas proposed as critical 

habitat for Carex lutea are currently 

occupied by the species and contain the 

PCEs. All of the areas proposed as 

critical habitat are also within the 

known historical range of the species. 

Therefore, we are not proposing to 

designate any areas outside the 

geographical area occupied by the 

species at the time of listing. We believe 

that the occupied areas are sufficient for 

the conservation of the species. 

Proposed Critical Habitat Designation 

We are proposing 8 units (19 

subunits) totaling approximately 189 

acres (ac) (75.6 hectares (ha)) as critical 

habitat for Carex lutea. The areas we 

describe below constitute our current 

best assessment of areas that meet the 

definition of critical habitat for Carex 

lutea. The eight areas we propose as 

critical habitat are: (1) Unit 1: Watkins 

Savanna, (2) Unit 2: Haws Run 

Mitigation Site, (3) Unit 3: Maple Hill 

School Road Savanna, (4) Unit 4: 

Southwest Ridge Savanna, (5) Unit 5: 

Sandy Run Savannas, (6) Unit 6: The 

Neck Savanna, (7) Unit 7: Shaken Creek 

Savanna, and (8) Unit 8: McLean 

Savanna. All units are now occupied by 

Carex lutea, but five subunits in three 

units were unknown at the time of 

listing. However, based on the biology 

of this species and its limited ability for 

the seeds to move and colonize new 

areas, the occurrences identified since 

listing likely were in existence for many 

years prior to listing and were only 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11086 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

recently detected due to increased 

awareness of this species. Therefore, we 

are considering them to be occupied at 

the time of listing. Table 1 identifies the 

occupancy status for each subunit. 

TABLE 1. OCCUPANCY OF Carex lutea BY PROPOSED CRITICAL HABITAT UNITS. 

Unit Subunit Occupied at Time of Listing? Currently Occupied? 

1 A Yes Yes 

1 B Yes Yes 

1 C Yes Yes 

2 Not applicable (N/A) Yes Yes 

3 N/A Yes Yes 

4 A Yes Yes 

4 B Yes Yes 

5 A Yes Yes 

5 B Yes Yes 

5 C Yes Yes 

5 D Yes Yes 

5 E Yes Yes 

6 A Yes Yes 

6 B Yes Yes 

6 C Yes Yes 

7 A Yes Yes 

7 B Yes Yes 

7 C Yes Yes 

8 A Yes Yes 

8 B Yes Yes 

8 C Yes Yes 

Table 2 includes the name, ownership 

information, and size of each unit and 

subunit we are proposing as critical 

habitat. 

TABLE 2. OWNERSHIP OF PROPOSED CRITICAL HABITAT UNITS FOR Carex lutea. 

[Area estimates reflect all land within critical habitat unit boundaries.] 

Unit Subunit Name Land Ownership by 

Type Size of Unit Acres Size of Unit Hectares 

1 A Watkins Savanna, O’Berry, Tract A NCDPR 1.2 0.5 

1 B Watkins Savanna, Unnamed Tract Private, NCDPR 2.0 0.8 

1 C Watkins Savanna, O’Berry, Tract C NCDPR 0.6 0.2 

2 N/A Haws Run Mitigation Site NCDOT 27.1 11.0 

3 N/A Maple Hill School Road, Savanna Private 27.7 11.2 

4 A Southwest Ridge Savanna, Ashes Creek, 

Carex lutea Survey Site, Southwest of 

Ashes Creek 

NCWRC with 

Progress Energy, 

ROW 

2.3 0.9 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11087 

TABLE 2. OWNERSHIP OF PROPOSED CRITICAL HABITAT UNITS FOR Carex lutea.—Continued 

[Area estimates reflect all land within critical habitat unit boundaries.] 

Unit Subunit Name Land Ownership by 

Type Size of Unit Acres Size of Unit Hectares 

4 B Southwest Ridge Savanna, Ashes Creek, 

Carex lutea Survey Site, Northeast of 

Ashes Creek 

NCWRC with 

Progress Energy, 

ROW 

1.0 0.4 

5 A Sandy Run Savannas NCDPR with 

Progress Energy, 

ROW 

2.6 1.1 

5 B Sandy Run Savannas NCDPR 4.3 1.7 

5 C Sandy Run Savannas NCDPR 0.3 0.1 

5 D Sandy Run Savannas NCDPR 0.3 0.1 

5 E Sandy Run Swamp NCDPR with 

Progress Energy, 

ROW 

13.1 5.3 

6 A The Neck Savanna NCDPR 3.6 1.5 

6 B The Neck Savanna, Thorne’s Beaksedge 

Road 

Private 0.7 0.3 

6 C The Neck Savanna, former Sandy Run 

Savanna 

Private with 

Powerline ROW 

0.1 0.1 

7 A Shaken Creek Savanna, East Population, 

East of Patterson Road 

TNC 6.9 2.8 

7 B Shaken Creek Savanna, West Population, 

East of Patterson Road 

TNC 24.7 10.0 

7 C Shaken Creek Savanna, West Population TNC 26.1 10.6 

8 A McLean Savanna TNC 42.3 17.1 

8 B McLean Savanna Private 0.5 0.2 

8 C McLean Savanna TNC, Private 1.6 0.6 

Total* 189.0 76.5 

*Note: Area sizes may not sum due to rounding. 

We present brief descriptions of each 

unit, and reasons why they meet the 

definition of critical habitat for Carex 

lutea, below 

Unit 1: Watkins Savanna, Pender 

County, North Carolina 

Unit 1 consists of 3.8 ac (1.5 ha) and 

includes three subunits in Pender 

County, NC. It contains all of the PCEs 

for Carex lutea. This critical habitat unit 

includes habitat for Carex lutea that is 

under private and State ownership. This 

unit contains three element occurrences, 

two of which were known at the time of 

listing. The subunits contain all of the 

PCEs identified for Carex lutea; 

however, they are all very fire 

suppressed and have been altered by 

timber management. The NC Division of 

Parks and Recreation (NCDPR) is 

currently negotiating with the NCNHP 

to designate this site as a Dedicated 

Nature Preserve. 

Subunit A (EO 5.12) consists of 1.2 ac 

(0.5 ha) and was known to be occupied 

at the time of listing. It is owned by 

NCDPR and is managed as part of the 

Sandy Run Savannas State Natural Area. 

Subunit B (EO 5.13) consists of 2.0 ac 

(0.8 ha) and was known to be occupied 

at the time of listing. It is owned by 

private entities and NCDPR. NCDPR 

plans to manage their portion of the 

subunit as part of the Sandy Run 

Savannas State Natural Area. 

Subunit C (EO 5.19) consists of 0.6 ac 

(0.2 ha) and was not known to be 

occupied at the time of listing. This 

Carex lutea site was discovered in 2006; 

however, based on the habitat 

conditions at this site and the biology of 

the species, we believe that this site was 

occupied in 2002, when the species was 

listed. It is in conservation ownership 

by NCDPR and is managed as part of the 

Sandy Run Savannas State Natural Area. 

Unit 2: Haws Run Mitigation Site, 

Onslow County, North Carolina 

Unit 2 (EO 7) consists of 27.1 ac (11.0 

ha) in Onslow County, NC. This critical 

habitat unit includes habitat for Carex 

lutea and was occupied at the time of 

listing. It is owned by the NC 

Department of Transportation and is 

managed by the NC Ecosystem 

Enhancement Program. This site was 

purchased as mitigation for wetland 

impacts from nearby transportation 

projects. Although the site is somewhat 

fire suppressed and has been altered by 

timber management, it contains all of 

the PCEs identified for Carex lutea. The 

land managers conducted a prescribed 

fire in the vicinity of the Carex lutea 

plants during the summer of 2009 and 

will continue restoration efforts there. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11088 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

The population at this site appears to be 

stable and not vulnerable to extirpation. 

Managers are considering designating 

this site as a Dedicated Nature Preserve 

by the NCNHP. 

Unit 3: Maple Hill School Road 

Savanna, Pender County, North 

Carolina 

Unit 3 (EO 10) consists of 27.7 ac 

(11.2 ha) in Pender County, NC. This 

site is privately owned and has not been 

revisited since it was discovered in 

1998. It was occupied at the time of 

listing. Although three clumps of Carex 

lutea were discovered here in 1998, the 

full extent of the population is unknown 

and the habitat is vulnerable to land use 

changes. 

Unit 4: Southwest Ridge Savanna, 

Pender County, North Carolina 

Unit 4 (EO 11) consists of 3.3 ac (1.3 

ha) in two subunits in Pender County, 

NC. This unit is owned by NC Wildlife 

Resources Commission and is managed 

for conservation purposes. These two 

subpopulations were discovered in May 

2002, shortly after the species was listed 

as endangered (effective on February 

2002). Because the species is nearly 

impossible to identify unless it is 

flowering and plants less than 3 months 

old would not be expected to flower in 

May, it seems reasonable to assume that 

the plants discovered in May 2002 were 

present prior to the 2002 growing season 

and that the site was occupied at the 

time of listing. The Carex lutea plants 

occur in a power line right-of-way 

easement that is managed by Progress 

Energy. The utility company entered 

into a Registry Agreement with the 

NCNHP and agreed not to use 

herbicides or mow during critical Carex 

lutea growth periods. This population is 

relatively small in size compared to 

some of the other populations, but 

appears to be stable. The subunits 

contain all of the PCEs identified for 

Carex lutea. 

Subunit A is 2.3 ac (0.9 ha) in size 

and is located southwest of Ashes 

Creek. 

Subunit B is 1.0 ac (0.48 ha) in size 

and is located northeast of Ashes Creek. 

Unit 5: Sandy Run Savannas, Onslow 

County, North Carolina 

Unit 5 consists of 20.6 ac (8.3 ha) in 

Onslow County, NC, and is divided into 

five subunits. This critical habitat unit 

is owned by NCDPR and managed as 

part of the Sandy Run Savannas State 

Natural Area. All five Carex lutea sites 

were known at the time of listing. This 

unit is a remnant pine savanna, and the 

subunits contain all of the PCEs 

identified for Carex lutea; however, the 

subunits are all fire suppressed and 

have been altered by timber 

management including bedding and 

ditching. The NCDPR is currently 

negotiating the designation of a 

Dedicated Nature Preserve with the 

NCNHP. 

Subunit A (EO 15.3) consists of 2.6 ac 

(1.1 ha) and occurs on the east side of 

NC 50. Progress Energy has a 

transmission line right-of-way through 

this subunit and has entered into a 

Registry Agreement with the NCNHP in 

which they have agreed not to use 

herbicides or mow during critical Carex 

lutea growth periods. 

Subunit B (EO 15.4) consists of 4.3 ac 

(1.7 ha) and occurs contiguous to and 

along the north side of a private sand 

road through the property. 

Subunit C (EO 15.4) consists of 0.3 ac 

(0.1 ha) and occurs along the south side 

of a private sand road through the 

property and on the west side of a small 

stream swamp. The plants are growing 

in an old, wet road bed. 

Subunit D (EO 15.4) consists of 0.3 ac 

(0.1 ha) and occurs along the south side 

of a private sand road through the 

property and on the east side of a small 

stream swamp. The Carex lutea plants 

are growing in a roadside ditch. 

Subunit E (EO 15.14) consists of 13.1 

ac (5.3 ha) and occurs contiguous to and 

on the west side of NC 50. Progress 

Energy has a transmission line right-ofway through this subunit and has 

entered into a Registry Agreement with 

the NCNHP in which they have agreed 

not to use herbicides or mow during 

critical Carex lutea growth periods. 

Unit 6: The Neck Savanna, Pender 

County, North Carolina 

Unit 6 consists of 4.4 ac (1.8 ha) in 

Pender County, NC, and is divided into 

three subunits. This critical habitat unit 

includes habitat for Carex lutea that is 

under private and State ownership. This 

unit contains three element occurrences, 

two of which were known at the time of 

listing. The subunits contain all of the 

PCEs identified for Carex lutea; 

however, they are all very fire 

suppressed and have been altered by 

timber management. The NCDPR is 

currently negotiating the designation of 

a Dedicated Nature Preserve with the 

NCNHP. Privately owned portions of 

this property are threatened by fire 

suppression, timber harvesting, and 

herbicide use. Drainage ditches impact 

the hydrology of the soils in this area. 

Subunit A (EO 18.1) consists of 3.6 ac 

(1.5 ha) and was known to be occupied 

at the time of listing. It is owned by 

NCDPR and private entities, some of 

which will become part of the Sandy 

Run Savannas State Natural Area. 

Subunit B (EO 18.16) consists of 0.7 

ac (0.3 ha) and is privately owned. It is 

currently threatened by fire 

suppression, but the managers are 

hopeful that they will be able to burn 

this tract within the next year or two. 

Subunit C (EO 18.17) consists of 0.1 

ac (0.1 ha), is privately owned, and 

occurs in a small power-line corridor 

along a roadside. It is vulnerable to 

woody growth and herbicide use in the 

power line. There has been little 

management of the site with prescribed 

fire due to difficult land ownership 

patterns. 

Unit 7: Shaken Creek Savanna, Pender 

County, North Carolina 

Unit 7 consists of 57.7 ac (23.4 ha) in 

Pender County, NC, and is divided into 

three subunits. This critical habitat unit 

includes habitat for Carex lutea that is 

under private ownership. This area is 

owned by TNC and managed by a 

private hunt club. This unit contains 

three element occurrences, all of which 

were known at the time of listing. This 

savanna complex contains the highest 

quality natural habitat and the largest 

population of Carex lutea known. With 

continued fire management, this site 

should remain stable. It contains all of 

the PCEs identified for Carex lutea. 

Subunit A (EO 21.8) consists of 6.9 ac 

(2.8 ha) and is east of Patterson Road. 

Subunit B (EO 21.8) consists of 24.7 

ac (10.0 ha) and is west of Patterson 

Road. 

Subunit C (EO 21.20) consists of 26.1 

ac (10.6 ha) and lies south of Bear 

Garden Road. 

Unit 8: McLean Savanna, Pender 

County, North Carolina 

Unit 8 consists of 44.4 ac (17.7 ha) 

and includes three subunits in Pender 

County, NC. This site is known as 

McLean Savanna or McLean Family 

Farms and has been kept open for 

hunting through the use of prescribed 

burning. Carex lutea occurs over an 

extensive area, and it is one of the larger 

populations known. Each of the three 

subunits contains all of the PCEs 

identified for Carex lutea. 

Subunit A (EO 24.9) is 42.3 ac (17.1 

ha) in size and is owned by TNC. Carex 

lutea occupied this area at the time of 

listing. 

Subunit B (EO 24.22) is 0.5 ac (0.2 ha) 

in size and is privately owned. This 

Carex lutea population was discovered 

in June 2007, after the species was 

listed; however, based on what we know 

about the biology of the species, we 

believe that this site was occupied at the 

time of listing. 

Subunit C (EO 24.23) is 1.6 ac (0.6 ha) 

in size and is owned by both private 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11089 

entities and TNC. This Carex lutea 

population was also discovered in June 

2007, after the species was listed; based 

on what we know about the biology of 

the species, we believe that this site was 

occupied at the time of listing. 

Because the savannas on the McLean 

Family Farms have been managed by 

fire for many years to facilitate hunting, 

and one subpopulation (Subunit A) has 

been known on this property since 

1997, it is reasonable to believe that 

these other subpopulations (Subunits B 

and C) have also occurred there for 

many years and were just undetected 

because those areas had not been 

surveyed specifically for Carex lutea 

until 2007. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuits Courts of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service, 245 F.3d 434, 442 (5th

Cir. 2001)), and we do not rely on this 

regulatory definition when analyzing 

whether an action is likely to destroy or 

adversely modify critical habitat. Under 

the statutory provisions of the Act, we 

determine destruction or adverse 

modification on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the PCEs to 

be functionally established) to serve its 

intended conservation role for the 

species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. Conference 

reports provide conservation 

recommendations to assist the agency in 

eliminating conflicts that may be caused 

by the proposed action. We may issue 

a formal conference report if requested 

by a Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). The 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If we list a species or designate 

critical habitat, 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 the species or to 

destroy or adversely modify its critical 

habitat. 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. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

• A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed 

species or critical habitat; or 

• 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 or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

•Can be implemented in a manner 

consistent with the intended 

purpose of the action, 

•Can be implemented consistent with 

the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and technologically 

feasible, and 

•Would, in the Director’s opinion, avoid 

jeopardizing the continued 

existence of the listed species or 

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 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiating of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect 

Carex lutea or its designated critical 

habitat require section 7 consultation 

under the Act. Activities on State, 

Tribal, local, or private lands requiring 

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 under 

section 10 of the Act or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency)) are 

subject to the section 7 consultation 

process. 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 permitted, do not require 

section 7 consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the essential features to be 

functionally established. Activities that 

may destroy or adversely modify critical 

habitat are those that alter the essential 

features to an extent that appreciably 

reduces the conservation value of 

critical habitat for Carex lutea. 

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 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for Carex lutea include, but are not 

limited to: 

• Actions that would alter the hydrology 

associated with Carex lutea habitat 

or the savannas where this species 

occurs. Such activities could 

include, but are not limited to, 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11090 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

water impoundment, stream 

channelization, water diversion, 

water withdrawal and development 

activities. These activities could 

alter the biological and physical 

features that provide the 

appropriate habitat for Carex lutea 

by altering or eliminating moisture 

regimes that this species may rely 

on for seed dispersal and 

germination and for control of 

competing species; by reducing or 

increasing the availability of 

groundwater, which may result in a 

shift of habitat type to a community 

unsuitable for Carex lutea (shrubor tree-dominated habitat, which 

would inhibit exposure to needed 

sunlight); or by causing increased 

erosion that could remove soils 

appropriate for Carex lutea growth. 

• Activities that remove soils 

appropriate for Carex lutea growth, 

such as plowing, grading, or ditch 

cleaning, or activities that change 

the characteristics of soils so that 

Carex lutea growth is impeded, 

such as soil compaction due to 

silvicultural practices, vehicular 

access along power line rights-ofways or roadway expansion or 

maintenance. These activities may 

adversely affect critical habitat. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological needs 

on the installation, including the 

need to provide for the conservation 

of listed species; 

• A statement of goals and priorities; 

• A detailed description of management 

actions to be implemented to 

provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108- 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the proposed critical habitat 

designation. As such, we are not 

exempting any lands owned or managed 

by the Department of Defense from this 

designation of critical habitat for Carex 

lutea. 

Exclusions 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate or make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we determine that the benefits 

of exclusion outweigh the benefits of 

inclusion, we can exclude the area only 

if such exclusion would not result in the 

extinction of the species. 

Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we are preparing an analysis of 

the probable economic impacts of the 

proposed critical habitat designation 

and related factors. 

We will announce the availability of 

the draft economic analysis as soon as 

it is completed, at which time we will 

seek public review and comment. At 

that time, copies of the draft economic 

analysis will be available for 

downloading from the Internet at the 

Federal eRulemaking Portal: http:// 

www.regulations.gov, or by contacting 

the Raleigh Fish and Wildlife Office 

directly (see FOR FURTHER INFORMATION

CONTACT section). During the 

development of a final designation, we 

will consider economic impacts, public 

comments, and other new information, 

and as an outcome of our analysis of 

this information, we may exclude areas 

from the final critical habitat 

designation under section 4(b)(2) of the 

Act and our implementing regulations at 

50 CFR 424.19. 

National Security Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense where a national security 

impact might exist. In preparing this 

proposal, we have determined that the 

lands within the proposed designation 

of critical habitat for Carex lutea are not 

owned or managed by the Department of 

Defense, and therefore, we anticipate no 

impact to national security. There are no 

areas proposed for exclusion based on 

impacts on national security. 

Other Relevant Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors including 

whether the landowners have developed 

any conservation plans or other 

management plans for the area, or 

whether there are conservation 

partnerships that would be encouraged 

by designation of, or exclusion from, 

critical habitat. In addition, we look at 

any Tribal issues, and consider the 

government-to-government relationship 

of the United States with Tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11091 

In preparing this proposed rule, we 

have determined that there are currently 

no conservation plans or other 

management plans for Carex lutea, and 

the proposed designation does not 

include any Tribal lands or trust 

resources. We anticipate no impact to 

Tribal lands, partnerships, or HCPs or 

other management plans from this 

proposed critical habitat designation. 

There are no areas proposed for 

exclusion from this proposed 

designation based on other relevant 

impacts. 

Notwithstanding these decisions, as 

stated under the Public Comments 

section above, we request specific 

comments on whether any specific areas 

proposed for designation for Carex lutea 

should be excluded under section 

4(b)(2) of the Act from the final 

designation. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our proposed actions are based on 

scientifically sound data, assumptions, 

and analyses. We will invite these peer 

reviewers to comment, during the 

public comment period, on the specific 

assumptions and conclusions regarding 

the proposed designation of critical 

habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing within 45 days 

of the publication of this proposal (see 

DATES and ADDRESSES sections). We will 

schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings in the Federal Register 

and local newspapers at least 15 days 

before the first hearing. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this proposed rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination upon the following 

four criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended RFA to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, we lack the specific 

information necessary to provide an 

adequate factual basis for determining 

the potential incremental regulatory 

effects of the designation of critical 

habitat for the Carex lutea to either 

develop the required RFA finding or 

provide the necessary certification 

statement that the designation will not 

have a significant impact on a 

substantial number of small business 

entities. On the basis of the 

development of our proposal, we have 

identified certain sectors and activities 

that may potentially be affected by a 

designation of critical habitat for the 

Carex lutea. These sectors include 

industrial development, mining, 

drainage for silviculture and agriculture, 

highway expansion and herbicide use 

along utility and highway rights-of-way. 

We recognize that not all of these 

sectors may qualify as small business 

entities. However, while recognizing 

that these sectors and activities may be 

affected by this designation, we are 

collecting information and initiating our 

analysis to determine (1) which of these 

sectors or activities are or involve small 

business entities, and (2) what extent 

the effects are related to the Carex lutea 

being listed as an endangered species 

under the Act (baseline effects) or 

whether the effects are attributable to 

the designation of critical habitat 

(incremental). We believe that the 

potential incremental effects resulting 

from a designation will be small. As a 

consequence, following an initial 

evaluation of the information available 

to us, we do not believe that there will 

be a significant impact on a substantial 

number of small business entities 

resulting from this designation of 

critical habitat for Carex lutea. 

However, we will be conducting a 

thorough analysis to determine if this 

may in fact be the case. As such, we are 

requesting any specific economic 

information related to small business 

entities that may be affected by this 

designation and how the designation 

may impact their business. Therefore, 

we defer our RFA finding on this 

proposal designation until completion 

of the draft economic analysis prepared 

under section 4(b)(2) of the Act and E.O. 

12866. 

As discussed above, this draft 

economic analysis will provide the 

required factual basis for the RFA 

finding. Upon completion of the draft 

economic analysis, we will announce 

availability of the draft economic 

analysis of the proposed designation in 

the Federal Register and reopen the 

public comment period for the proposed 

designation. We will include with this 

announcement, as appropriate, an initial 

regulatory flexibility analysis or a 

certification that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

accompanied by the factual basis for 

that determination. We have concluded 

that deferring the RFA finding until 

completion of the draft economic 

analysis is necessary to meet the 

purposes and requirements of the RFA. 

Deferring the RFA finding in this 

manner will ensure that we make a 

sufficiently informed determination 

based on adequate economic 

information and provide the necessary 

opportunity for public comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule would not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11092 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)-(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

jeopardize the continued existence of 

the species, or destroy or adversely 

modify critical habitat under section 7. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(b) We do not believe that this rule 

would significantly or uniquely affect 

small governments. The lands being 

proposed for critical habitat designation 

are owned by private individuals, The 

Nature Conservancy and the State of 

North Carolina (Division of Parks and 

Recreation, Department of 

Transportation and Wildlife Resources 

Commission). None of these government 

entities fit the definition of ‘‘small 

governmental jurisdiction.’’ Therefore, a 

Small Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis, and review and 

revise this assessment as warranted. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for Carex 

lutea in a takings implications 

assessment. The takings implications 

assessment concludes that this 

designation of critical habitat for Carex 

lutea does not pose significant takings 

implications for lands within or affected 

by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in North Carolina. The critical habitat 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the essential 

features themselves are specifically 

identified. While making this definition 

and identification does not alter where 

and what federally sponsored activities 

may occur, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Where state and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

PCEs within the designated areas to 

assist the public in understanding the 

habitat needs of the Carex lutea. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA (42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(a) Be logically organized; 

(b) Use the active voice to address 

readers directly; 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11093 

(c) Use clear language rather than 

jargon; 

(d) Be divided into short sections and 

sentences; and 

(e) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in the ADDRESSES

section. To better help us revise the 

rule, your comments should be as 

specific as possible. For example, you 

should tell us the numbers of the 

sections or paragraphs that are unclearly 

written, which sections or sentences are 

too long, the sections where you feel 

lists or tables would be useful, etc. 

Government-to-Government 

Relationship with Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act,’’ we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

tribal lands occupied at the time of 

listing that contain the features essential 

for the conservation, and no tribal lands 

that are essential for the conservation, of 

Carex lutea. Therefore, we have not 

proposed designation of critical habitat 

for Carex lutea on tribal lands. 

Energy Supply, Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. A total of 19.1 ac (7.8 

ha) of critical habitat occur in electrical 

distribution lines. It is believed that the 

regular disturbance prevents the natural 

succession of woody species and serves 

to keep the habitat open, similar to the 

role that fire plays in the species’ more 

natural savanna habitat. Critical habitat 

will include approximately 2,500 linear 

feet (762 meters) of power lines. 

However, we do not expect it to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. We will further evaluate this 

issue as we conduct our economic 

analysis, and review and revise this 

assessment as warranted. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

Internet at http://www.regulations.gov 

and upon request from the Field 

Supervisor, Raleigh Fish and Wildlife 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Author(s) 

The primary authors of this package 

are the staff members of the Raleigh Fish 

and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 

1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- 

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.12(h), revise the entry for 

‘‘Carex lutea’’ under ‘‘Flowering Plants’’ 

in the List of Endangered and 

Threatened Plants to read as follows: 

§ 17.12 Endangered and threatened 

plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical habitat Special rules 

Scientific name Common name 

FLOWERING PLANTS 

* * * * * * * 

Carex lutea Golden Sedge NC Cyperacea E 721 17.96(a) NA 

* * * * * * * 

3. In § 17.96(a), add an entry for 

‘‘Carex lutea (golden sedge),’’ in 

alphabetical order under the family 

Cyperacea, to read as follows: 

§ 17.96 Critical habitat—plants. 

(a)Flowering plants 

* * * * * 

Family Cyperacea: Carex lutea (golden 

sedge) 

(1) Critical habitat units are depicted 

for Onslow and Pender Counties, NC, on 

the maps below. 

(2) The primary constituent elements 

(PCEs) of critical habitat for the Carex 

lutea is Pine Savanna (Very Wet Clay 

Variant) natural plant community or 

ecotones that contain: 

(i) Moist to completely saturated 

loamy fine sands, fine sands, fine sandy 

loams, and loamy sands soils with a pH 

between 5.5 and 7.2. 

(ii) Open to relatively open canopy 

that allows full to part sun to penetrate 

to the herbaceous layer between 

savannas and hardwood forests. 

(iii) Areas of bare soil immediately 

adjacent (within 12 inches (30 

centimeters)) to mature Carex lutea 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
11094 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

plants where seeds may fall and 

germinate or existing plants may expand 

in size. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map units. Data 

layers defining map units were created 

using a base of aerial photographs 

(USDA National Agriculture Imagery 

Program; NAIP 2008). Critical habitat 

units were then mapped using Universal 

Transverse Mercator (UTM) zone 18 

North American Datum (NAD) 1983 

coordinates. These coordinates establish 

the vertices and endpoints of the 

boundaries of the units and subunits. 

(5) Note: Index Map (Map 1) follows: 

BILLING CODE 4310–55–S 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11095 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.017</GPH>
11096 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

(6) Unit 1: Watkins Savanna, Pender 

County, NC. 

(i) Subunit 1A 

[Reserved for textual description of 

Subunit 1A] 

(ii) Subunit 1B 

[Reserved for textual description of 

Subunit 1B] 

(iii) Subunit 1C 

[Reserved for textual description of 

Subunit 1C] 

(iv) Map of Unit 1 (Watkins Savanna) 

follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.018</GPH>
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11097 

(7) Unit 2: Haws Run Mitigation Site, 

Onslow County, NC. 

(i) [Reserved for textual description of 

Unit 2] 

(ii) Map of Unit 2 (Haws Run 

Mitigation Site) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.019</GPH>
11098 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

(8) Unit 3: Maple Hill School Road 

Savanna, Pender County, NC. 

(i) [Reserved for textual description of 

Unit 3] 

(ii) Map of Unit 3 (Maple Hill School 

Road Savanna) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.020</GPH>
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11099 

(9) Unit 4: Southwest Ridge Savanna, 

Pender County, NC. 

(i) Subunit 4A 

[Reserved for textual description of 

Subunit 4A] 

(ii) Subunit 4B 

[Reserved for textual description of 

Subunit 4B] 

(iii) Map of Unit 4 (Southwest Ridge 

Savanna) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.021</GPH>
11100 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

(10) Unit 5: Sandy Run Savannas, 

Onslow County, NC. 

(i) Subunit 5A 

[Reserved for textual description of 

Subunit 5A] 

(ii) Subunit 5B 

[Reserved for textual description of 

Subunit 5B] 

(iii) Subunit 5C 

[Reserved for textual description of 

Subunit 5C] 

(iv) Subunit 5D 

[Reserved for textual description of 

Subunit 5D] 

(v) Subunit 5E 

[Reserved for textual description of 

Subunit 5E] 

(vi) Map of Unit 5 (Sandy Run 

Savannas) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.022</GPH>
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11101 

(11) Unit 6: The Neck Savanna, 

Pender County, NC. 

(i) Subunit 6A 

[Reserved for textual description of 

Subunit 6A] 

(ii) Subunit 6B 

[Reserved for textual description of 

Subunit 6B] 

(iii) Subunit 6C 

[Reserved for textual description of 

Subunit 6C] 

(iv) Map of Unit 6 (The Neck 

Savannas) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.023</GPH>
11102 Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 

(12) Unit 7: Shaken Creek Savanna, 

Pender County, NC. 

(i) Subunit 7A 

[Reserved for textual description of 

Subunit 7A] 

(ii) Subunit 7B 

[Reserved for textual description of 

Subunit 7B] 

(iii) Subunit 7C 

[Reserved for textual description of 

Subunit 7C] 

(iv) Map of Unit 7 (Shaken Creek 

Savanna) follows: 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.024</GPH>
Federal Register / Vol. 75, No. 46 / Wednesday, March 10, 2010 / Proposed Rules 11103 

(13) Unit 8: McLean Savanna, Pender 

County, NC. 

(i) Subunit 8A 

[Reserved for textual description of 

Subunit 8A] 

(ii) Subunit 8B 

[Reserved for textual description of 

Subunit 8B] 

(iii) Subunit 8C 

[Reserved for textual description of 

Subunit 8C] 

(iv) Map of Unit 8 (McLean Savanna) 

follows: 

* * * * * Dated: February 24, 2010. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2010–4653 Filed 3–9–10; 8:45 am] 

BILLING CODE 4310–55–C 


erowe on DSK5CLS3C1PROD with PROPOSALS-1EP10MR10.025</GPH>