[Federal Register: September 5, 2007 (Volume 72, Number 171)]
[Rules and Regulations]
[Page 51101-51152]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se07-11]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Hine's Emerald Dragonfly; Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU74
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Hine's Emerald Dragonfly
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for the Hine's emerald dragonfly
(Somatochlora hineana) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 13,221 acres (ac) (5,350
hectares (ha)) in 22 units fall within the boundaries of our critical
habitat designation. The critical habitat units are located in Cook,
DuPage, and Will Counties in Illinois; Alpena, Mackinac, and Presque
Isle Counties in Michigan; and Door and Ozaukee Counties in Wisconsin.
DATES: This rule becomes effective on October 5, 2007.
FOR FURTHER INFORMATION CONTACT: John Rogner, Chicago Ecological
Services Field Office, 1250 S. Grove, Suite 103, Barrington, IL 60010
(telephone: 847-381-2253, extension 11; facsimile: 847-381-2285).
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this rule. For information on
the Hine's emerald dragonfly, please refer to our proposed critical
habitat rule, which we published in the Federal Register on July 26,
2006 (71 FR 42442); the final listing determination, published on
January 26, 1995 (60 FR 5267); or the Hine's Emerald Dragonfly
(Somatochlora hineana Williamson) Recovery Plan (Service 2001).
Previous Federal Actions
For information about previous Federal actions for the Hine's
emerald dragonfly, see our proposed critical habitat rule for the
species (71 FR 42442). On March 20, 2007, we published a notice that
included revisions to the proposed critical habitat, announced the
availability of the draft economic analysis (DEA), and reopened the
public comment period (72 FR 13061). Because we needed to meet our
settlement agreement's deadline of submitting a final rule to the
Federal Register by May 7, 2007, the comment period was reopened for
only 14 days. Subsequently, we negotiated a new settlement agreement
with the plaintiffs (The Center for Biodiversity et al.) to submit a
final rule to the Federal Register by August 23, 2007. Therefore, on
May 18, 2007, we published an additional notice that reopened the
comment period on the proposal, revisions to the proposal, and the
draft economic analysis for an additional 45 days (72 FR 28026). That
comment period ended on July 2, 2007.
Summary of Comments and Recommendations
We requested written comments from the public on our proposed
designation of critical habitat for the Hine's emerald dragonfly (71 FR
42442) and our draft economic analysis (72 FR 13061; 72 FR 28026). We
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule. We also issued press releases and published legal
notices in the Daily American Republic, Kansas City Star, Ozaukee News-
Graphic, St. Ignace News, Door County Advocate, Alpena News, Ozaukee
Press, and Joliet Herald News newspapers. We held one public hearing,
on August 15, 2006, in Romeoville, Illinois.
During the comment period that opened on July 26, 2006, and closed
on September 25, 2006, we received 35 comments directly addressing our
proposed critical habitat designation: 6 from peer reviewers, 4 from
Federal agencies, and 25 from organizations or individuals. During the
comment periods from March 20, 2007 through April 3, 2007, and May 18,
2007 through July 2, 2007, we received 16 comments directly addressing
the proposed critical habitat designation and the draft economic
analysis. Of these latter comments, 2 were from Federal agencies and 14
were from organizations or individuals.
In total, 23 commenters supported the designation of critical
habitat for the Hine's emerald dragonfly and 10 opposed the
designation. Ten commenters, including three peer reviewers, supported
exclusion of one or more particular units as identified in the proposed
rule, and 5 commenters opposed exclusion of one or more particular
units. Eighteen letters were either neutral or expressed both support
of and opposition to certain portions of the proposal. Responses to
comments are grouped by those received from peer reviewers, States, and
the public, in the following sections. We grouped public comments into
10 general issues specifically relating to the proposed critical
habitat designation and draft economic analysis. We have incorporated
comments into this final rule as appropriate. We did not receive any
requests for additional public hearings.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), and current Department of the Interior guidance, we solicited
expert opinions from seven knowledgeable individuals with scientific
expertise that included familiarity with the species, the geographic
region in which the species occurs, and/or conservation biology
principles. We received responses from six of the peer reviewers. We
reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding Hine's emerald
dragonfly critical habitat. We have addressed peer reviewer comments in
the following summary and have incorporated them into this final rule
as appropriate.
The peer reviewers generally concurred with our methods and
conclusions and provided additional information, clarifications, and
suggestions to improve this final critical habitat rule. Three of the
six peer reviewers specifically stated that they support our proposed
designation of critical habitat, and one expressed concern that
designation may be premature because the population status of the
Hine's emerald dragonfly in Missouri and Michigan is not well
understood. Information provided by peer reviewers included suggestions
for conducting research on dispersal and habitat use that would better
inform future Hine's emerald dragonfly conservation efforts, as well as
comments on how to improve critical habitat rules. Peer reviewers also
made suggestions and provided language to clarify biological
information or make the proposed rule easier to understand. Several of
the peer reviewers provided editorial comments that we have addressed
in the body of this rule.
Peer Reviewer Comments
(1) Comment: One peer reviewer (as well as three other commenters)
suggested that we should designate foraging areas (farmlands, pastures,
old fields, ponds, and/or surface waters) as critical habitat.
Our response: Although adult Hine's emerald dragonflies have been
observed foraging near or in these types of
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habitats, the importance of such habitats in meeting the daily dietary
needs of the dragonfly is still unknown. Dispersal areas are present in
many of the designated critical habitat units, as they contain open
areas that serve as corridors that are used by the dragonfly. In most
of the units, dispersal areas are not limiting.
(2) Comment: One peer reviewer suggested that we use caution when
accepting identifications of early instar (defined as the developmental
stage on an insect between molts of its exoskeleton) larvae.
Our response: We agree that identifications of Hine's emerald
dragonfly based on early instar larvae should be made with caution.
Early instar larvae have been used in Missouri to document the presence
of the species at new localities or to identify new Hine's emerald
dragonfly breeding habitat. Identifications of early instar larvae were
made by the two leading experts on Somatochlora species larvae: Dr. Tim
Cashatt and Mr. Tim Vogt. These two experts wrote the definitive key to
final instar larvae for the genus (Cashatt and Vogt 2001, pp. 94-97).
These experts have also positively identified early instar larvae of
Hine's emerald dragonfly by examining more larval specimens than any
other recognized dragonfly larvae expert. Cashatt and Vogt (2001, pp.
94-97) confirmed early instar larvae identification by rearing some
individuals to a final stage; this allowed preliminary determinations
of the species to be confirmed. Identification of early instar larvae
by these two recognized experts constitutes the best scientific data
available.
(3) Comment: One peer reviewer commented that when the species'
recovery plan was developed, the network of sites in Missouri was not
known and, had the sites been known, this may have led to different
recovery criteria, which may have influenced the identification of
critical habitat from a scientific perspective.
Our response: Different recovery criteria may have been developed
for Hine's emerald dragonfly had more sites been known in Missouri at
the time the recovery plan was drafted. However, such changes to the
species' recovery criteria would not have influenced our decision
regarding designation of critical habitat in Missouri. We based the
exclusion of Missouri sites on: (1) Current implementation of State and
Federal management plans for the species; and (2) Missouri Department
of Conservation's (MDC) implementation of successful conservation
efforts on some private lands. The existing successful partnerships
among State agencies and private property owners could be negatively
affected by a critical habitat designation, and this could jeopardize
future cooperative conservation efforts. We used all available data and
information--including both the recovery plan and additional
information gained since its development--to determine which areas are
essential to the conservation of the Hine's emerald dragonfly. We will
work with the Hine's Emerald Dragonfly Recovery Team in reevaluating
recovery criteria when the overall status of the species is reexamined
in a 5-year review.
(4) Comment: One peer reviewer commented that he is reluctant to
assume that Hine's emerald dragonflies do not forage and roost in the
forest canopy.
Our response: Hine's emerald dragonflies will use trees for
roosting. Researchers have also observed Hine's emerald dragonflies
foraging along the forest edge. Given that members of the genus
Somatochlora commonly forage at treetop level along roads and utility
rights of way, and dragonflies often perch in vegetation to avoid
predation during their sensitive teneral stage (soft-bodied stage
immediately after molt), it is possible that Hine's emerald dragonflies
may utilize forest canopies to a greater extent than previously
observed. There is no good information, however, to define the degree
to which Hine's emerald dragonflies may use these habitats for foraging
and roosting. We based our criteria to include up to 328 feet (ft) (100
meters (m)) of closed canopy forest around breeding habitat on
observations made by one of the leading species experts (T. Vogt,
Missouri Department of Natural Resources, in litt. March 2007); this is
the best information we have available to date.
(5) Comment: One peer reviewer commented that in Missouri the small
populations in identified sites may be elements of larger
metapopulations. These individual elements, because they are so small,
are probably extirpated fairly frequently even in the absence of human
disturbance. For this reason, it would seem prudent to conserve
suitable but currently unoccupied sites, since dispersal to such
unoccupied sites must be important to the maintenance of the
metapopulation. This does not necessarily mean that such sites should
be designated as critical habitat for the species.
Our response: While the Hine's emerald dragonfly (Somatochlora
hineana Williamson) Recovery Plan recognizes that the patchy nature of
habitat in Illinois and Wisconsin suggests metapopulation in those two
States, only three sites were known in Missouri at the time the
Recovery Plan was written (Service 2001). We do not have adequate
information to determine if the small populations of Hine's emerald
dragonflies in Missouri are part of one or more metapopulations. Such a
hypothesis is best tested by conducting various genetic analyses;
genetic analyses of populations in Missouri will be initiated in the
summer of 2007. Until such genetic analyses are conducted, it is
difficult to assess the status of the Missouri populations of Hine's
emerald dragonfly in relation to the overall distribution of the
species.
(6) Comment: One peer reviewer stated that the rationales for
exclusions are not easy to understand.
Our response: In this rule, we have attempted to further clarify
the rationale for our exclusions and why these exclusions are important
to the overall conservation of the Hine's emerald dragonfly.
(7) Comment: One peer reviewer commented that exclusion of the
Missouri units based solely on the fact that the habitat is surrounded
by contiguous forest does not seem justified. Without knowing anything
about the dispersal ability of the species, that fact alone seems
insufficient to conclude that such populations may not be important in
the long-term survival of the species in Missouri.
Our response: We have described our reasons for excluding Missouri
units from the critical habitat designation under the Exclusions
section of this rule. We excluded those areas on the basis of existing
conservation plans and partnerships, and not based on the fact that
most sites are surrounded by contiguous, closed canopy forest.
(8) Comment: One peer reviewer suggested that we should include
unoccupied habitat in areas that may serve as dispersal corridors or
establish connectivity between sites in the critical habitat
designation.
Our response: We attempted to include areas that will serve as
dispersal corridors that are contiguous with occupied habitat within
our critical habitat units. However, little is known about what factors
are essential to enable the species to disperse. We designated areas
that were occupied at the time of listing and not now occupied in order
to allow for connectivity between units. We also included habitat out
to the average dispersal distance of the species in order to maintain
this dispersal capability. Not all unoccupied sites may be suitable for
dispersal
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corridors, however. We do not have enough scientific information to
assess the importance of dispersal corridors to the conservation of the
species. There are multiple reasons why Hine's emerald dragonflies may
be absent from sites, even those that have all the necessary habitat
requirements. Another peer reviewer noted that reasons such as
interspecific interactions (e.g., with other dragonflies) could
preclude Hine's emerald dragonflies in sites that have all the
necessary habitat requirements. For example, in Missouri, the
distribution of the Hine's emerald dragonfly may be dictated in part by
the presence of large dragonfly predators that have been observed
preying on individuals of the same genus (Somatochlora) as the Hine's
emerald dragonfly.
(9) Comment: One peer reviewer stated that designation of critical
habitat for the Hine's emerald dragonfly is premature because of the
lack of knowledge on the status and population structure of the Hine's
emerald dragonfly.
Our response: The Service is under a court order to complete the
designation of critical habitat and submit a final rule to the Federal
Register by August 23, 2007. Consequently, we must proceed with the
critical habitat process for this species based on the best scientific
data that is available, as required by the Act.
(10) Comment: One peer reviewer asked if management plans exist for
any of the areas in Wisconsin identified in the proposal.
Our response: Lands owned by resource and conservation agencies in
critical habitat units in Wisconsin do not have existing management
plans that specifically address the Hine's emerald dragonfly. Those
entities with conservation plans for their properties have included
protective measures to conserve wetland habitat and thereby are helping
to conserve the dragonfly. Those plans, however, do not specifically
identify conservation measures for the Hine's emerald dragonfly.
(11) Comment: One peer reviewer recommended that research be
conducted on dispersal, particularly female dispersal, and that we
consider radio tracking, as has been done with Aeshnids (darners).
Our response: Research on dispersal is a task identified in the
Hine's Emerald Dragonfly (Somatochlora hineana Williamson) Recovery
Plan (Service 2001). The Hine's Emerald Dragonfly Recovery Team and
species experts are assessing the feasibility of using a similar
methodology as was used to radio track Aeshnids.
General Comments
Issue 1: Biological Justification and Methodology Used
(1A) Comment: Several individuals commented that the proposal did
not address groundwater recharge areas.
Our response: In accordance with section 3(5)(A)(i) of the Act and
regulations at 50 CFR 424.12, in determining what areas are critical
habitat, we shall consider those physical and biological features that
are essential to the conservation of the species. Some groundwater
recharge areas may be included within a critical habitat unit if they
co-occur with the biological and physical features essential to the
conservation of Hine's emerald dragonfly. Any Federal actions that may
affect critical habitat, irrespective of its location inside or outside
of a critical habitat unit, are subject to section 7 consultation. This
would include Federal actions that affect groundwater recharge to any
of the critical habitat units.
(1B) Comment: One individual expressed that we did not show that
the best available scientific data support the inclusion of the rail
line in Illinois Units 1 and 2.
Our response: The rail line in Illinois Units 1 and 2 does not
contain the primary constituent elements and, therefore, does not meet
the definition of critical habitat. Therefore, we have not designated
it as critical habitat. As stated in the proposal and this final rule,
critical habitat does not include human-made structures existing on the
effective date of a final rule and not containing one or more of the
primary constituent elements. However, work performed on the rail line
would be subject to the provisions of section 7 if that work could have
adverse effects on designated critical habitat or the dragonfly.
(1C) Comment: One individual stated that it is not clear whether
Wisconsin Unit 11 (containing Kellner's Fen) is sufficiently inclusive,
and that this unit should also include the surrounding transitional
habitat that may also contain primary constituent elements.
Our response: In designating critical habitat at Kellner's Fen, we
used the same criteria we used for all the other units. We designated
areas containing the primary constituent elements for the dragonfly,
including wetland (fen) areas, shrubby areas, and 100 m into adjacent
forest habitat. The map in the Federal Register is generalized, and
does not show the habitat variations that actually exist within the
unit.
(1D) Comment: One comment disputes the accuracy of the report's
statement that adult dragonflies are active mid-June to mid-August.
Our response: According to the Recovery Plan (Service 2001), larvae
begin to emerge as adult, possibly as early as late May in Illinois and
late June in Wisconsin and continue to emerge through the summer (Vogt
and Cashatt 1994; Mierzwa et al. 1997). The adults's know flight season
lasts up to early October in Illinois (Voght and Cashatt 1994) and to
late August in Wisconsin (Voght and Cashatt 1994). Fully adult Hine's
emerald dragonflies can live at least 14 days and may live 4 to 6
weeks.
Issue 2: Procedural and Legal Compliance
(2A) Comment: Some commenters suggested that excluding Forest
Service land was inappropriate as the Forest Service did not consult
with the Service under section 7 of the Act. Two commenters mentioned a
specific example, the Sprinkler Project on the Hiawatha National
Forest, where they believed consultation was not completed. Further,
the commenters suggested that designating critical habitat would ensure
future consultation between the Service and Forest Service.
Our response: The Service has a cooperative relationship with the
Hiawatha and Mark Twain National Forests, both of which are actively
involved in endangered species management and recovery. Through this
cooperative relationship, the Forest Service consistently consults on
projects that may affect listed species, including the Hine's emerald
dragonfly. The Forest Service recently completed section 7 consultation
on Mark Twain's and Hiawatha's Land and Resource Management Plans.
Several other informal and formal consultations have also been
completed, including consultation on the Sprinkler Project in 2006.
Section 7 consultation and conservation of Hine's emerald dragonfly
will continue even with exclusion of Forest Service lands from critical
habitat designation.
(2B) Comment: One individual commented that the proposed rule
states that the conservation role of Hine's emerald dragonfly critical
habitat units is to support ``viable core area populations,'' but that
the proposed rule did not provide sufficient information to allow
commenters to determine whether the proposed units actually contain
areas that support such Hine's emerald dragonfly populations.
Our response: ``Viable'' means capable of living, developing, or
reproducing under favorable conditions.
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We have used the best scientific and commercial information available
to determine what conditions are favorable to Hine's emerald dragonfly,
and the proposal provided information on the physical and biological
features essential to the conservation of the species. We identified
areas that are known to contain these features, provided descriptions
of the features in each unit, and are designating only those units that
contain the features that are essential to the conservation of the
species.
(2C) Comment: One commenter questioned the legality of the critical
habitat designation in regards to takings.
Our response: The designation of critical habitat does not mean
that private lands will be taken by the Federal government or that
other legal uses will be restricted. We evaluated this rule in
accordance with Executive Order (E.O.) 12630, and we believe that the
critical habitat designation for the Hine's emerald dragonfly will not
have significant takings implications. We do not anticipate that
property values, rights, or ownership will be materially affected by
the critical habitat designation.
Issue 3: Exclusions
(3A) Comment: Several commenters suggested that Michigan Units 1,
2, and 3 should not be excluded, because these units contain areas not
covered by Federal or State management plans.
Our response: The entire acreage encompassed by Michigan Units 1
and 2, including some small areas of non-Federal land, are excluded
from the final Hine's emerald dragonfly critical habitat designation.
The non-Federal lands within these units are small in size relative to
the unit's overall size. The larger landscapes in these two critical
habitat units are managed by the Hiawatha National Forest. The Hiawatha
National Forest's Land and Resource Management Plan provides for the
management and protection of Hine's emerald dragonfly habitat that will
facilitate the recovery of the species. Although those non-Federal
lands may provide suitable habitat and primary constituent elements for
colonizing dragonflies from adjacent National Forest land, their
contribution to the overall recovery and conservation of the species is
considered minute compared to the surrounding lands managed by the
Hiawatha National Forest.
We have determined that adequate management and protection of
Hine's emerald dragonfly habitat in Michigan Unit 3 is not provided by
current State, Federal, or private management plans. Therefore, this
unit was not excluded from the final critical habitat designation.
(3B) Comment: The Forest Plans for the Mark Twain and Hiawatha
National Forests do not justify excluding these areas from critical
habitat. Although the Forest Plan may address conservation of the
Hine's emerald dragonfly, they would not provide for consultation with
the Service on future Forest Service actions that may destroy or
adversely modify the dragonfly's habitat. Furthermore, while the
Service recognizes logging as a threat to the species, the Forest
Service has recently proposed timber cutting to protect the species.
Neither the Forest Service nor the Service has produced evidence that
this logging proposed under the Hiawatha Forest Plan is likely to
benefit the dragonfly.
Our response: The commenter is correct that a separate section 7
consultation addressing critical habitat would not be required in any
excluded areas. However, as these excluded areas are currently
occupied, activities that could impact Hine's emerald dragonfly
(including its habitat) would still require a species-specific
consultation. Based on the Forest Plans, the Forest Service not only
has solidified its dedication to protect the Hine's emerald dragonfly
and its habitat, but also has committed to help recover the species.
The Forest Service commitment and ongoing partnership with us provide
greater benefit to the species and its habitat than would critical
habitat designation. Consequently, we disagree with the commenter that
important breeding and foraging habitat for Hine's emerald dragonflies
on the two national forests will not be protected without critical
habitat designation.
If not conducted in a way that is sensitive to Hine's emerald
dragonflies, logging could be detrimental to the species' habitat. At
the same time, Hine's emerald dragonflies need open areas for foraging.
Some areas on the Hiawatha National Forest adjacent to breeding habitat
have closed canopies that could benefit from various forest management
practices. Additionally, there are sites for Hine's emerald dragonflies
on the Hiawatha and Mark Twain National Forests that would benefit from
adding more direct dispersal corridors between breeding sites. Timber
removal may be appropriate for such situations. National Forest land
provides important Hine's emerald dragonfly breeding sites, and the
maintenance, management, and protection of these areas will be achieved
by implementing the Land and Resource Management Plans on the two
forests.
(3C) Comment: One commenter stated that excluding habitat on lands
owned by the State of Missouri would lead to no net conservation
benefit to the Hine's emerald dragonfly. Designating CH would not harm
our good working relationship with the MDC.
Our response: MDC owns and manages all fens on Missouri State lands
with Hine's emerald dragonflies. The MDC currently implements various
habitat management and conservation actions to sustain and enhance the
species at these fens. Furthermore, MDC has recently updated its
Conservation Area Plans and the Husman Fen Natural Area Plan to
incorporate additional conservation measures for the Hine's emerald
dragonfly that will ensure the long-term management and maintenance of
fens. The benefits to the species resulting from conservation measures
being implemented by MDC would exceed any benefit to the species gained
from the designation of critical habitat. Additionally, in their
comments on the proposal, MDC requested they be excluded from the
critical habitat designation because they anticipate some negative
effects of designation. Because of their implementation of management
plans for the Hine's emerald dragonfly, we are able to accommodate this
request.
(3D) Comment: One commenter expressed that the perception of public
hostility does not justify excluding private property. That commenter
believed that the lack of support from the general public was due to
the Service's failure to properly educate private landowners on the
minor impact of designating critical habitat on their property. The
commenter stated that the exclusion of all private property in Missouri
from critical habitat designation without a unit-by-unit consideration
of conservation benefits and landowner amenability is arbitrary.
Our response: We have multiple examples where researchers have been
denied access to private land to survey potentially new Hine's emerald
dragonfly sites. In other cases, landowners who have documented Hine's
emerald dragonflies on their property have been reluctant or
apprehensive about taking advantage of multiple landowner incentive
programs available to them due to false perceptions of critical
habitat.
We, Hine's emerald dragonfly researchers, and personnel of the
MDC's Private Land Services Division have extended considerable effort
in providing private landowners with information on the Hine's emerald
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dragonfly and outlining various landowner incentive programs. Despite
the combined outreach efforts of multiple individuals, there is
documented opposition by private landowners within the dragonfly's
range in Missouri that is difficult to overcome. The designation of
critical habitat on private property in Missouri would only exacerbate
negative attitudes towards federally listed species.
We considered the conservation benefits of designating critical
habitat for each unit under private ownership, as well as the benefits
of excluding the area from critical habitat. We weighed the benefits of
each, and concluded, using the discretion afforded to us under the Act,
that actions for the conservation of the species would be best realized
if the lands were excluded. Based on past experience and a strong
working relationship between the MDC personnel and private landowners,
we believe that private landowners are much more amenable to a
partnership that emphasizes a cooperative working relationship rather
than a fear of regulatory control.
(3E) Comment: One commenter expressed that Illinois Unit 2 should
be excluded from the critical habitat designation, under section
4(b)(2) of the Act, because the substantial benefits of exclusion
outweigh any potential benefits of designation and the exclusion will
not result in the extinction of the species.
Our response: While the Service recognizes the cooperation of the
landowners in Illinois Unit 2, formal conservation agreements or
management plans have not been prepared for this unit and, therefore,
the future management and protection of this unit are unknown. The
landowners of this unit are in the very initial stages of developing a
Habitat Conservation Plan for the species. This Habitat Conservation
Plan, however, is not complete enough at this time to allow us to
evaluate the conservation benefits to the species.
(3F) Comment: One commenter stated that Commonwealth Edison's
right-of-way in Illinois Units 1-5 and 7 should be excluded because
designation of these areas would put Commonwealth Edison's normal
operations at severe risk. Another commenter expressed that in Illinois
Units 1 and 2, the generating station, rail line, and land adjacent to
those structures should be excluded.
Our response: To the greatest extent possible, we avoided including
developed areas containing buildings, rail lines, electrical
substations, and other urban infrastructure within critical habitat
units. Where we have not been able to map out these structures we have
excluded them by text. As stated in this rule, critical habitat does
not include human-made structures existing on the effective date of a
final rule not containing one or more of the primary constituent
elements (see definition of ``primary constituent elements'' in
subsequent section). Therefore, human-made structures including utility
poles, power lines, rail lines, and the generating station are not
included in the critical habitat designation. However, areas around the
human-made structures that consist of habitat containing the primary
constituent elements of Hine's emerald dragonfly habitat are included
in the designation.
Although Commonwealth Edison has been a valued partner in the
conservation of Hine's emerald dragonfly, and is one of the parties
involved in the preparation of a Habitat Conservation Plan for the
species, no management plans for their right of way currently exist.
(3G) Comment: Three commenters expressed that the life of a forest
plan is likely shorter than the time it will take to recover the Hine's
emerald dragonfly. They added that there is no guarantee that the
forest plans would be in place or implemented in the future. Therefore,
they question the exclusion of Forest Service land in Michigan and
Missouri.
Our response: The intended cycle of National Forest plans is 10-15
years. The Mark Twain and Hiawatha National Forest Land and Resource
Management Plans were approved in 2005 and 2006, respectively. As
identified in the Hine's Emerald Dragonfly (Somatochlora hineana
Williamson) Recovery Plan, anticipated recovery of the Hine's emerald
dragonfly could occur as early as 2019 (Service 2001). While we concur
that it is likely that current management plans for the Mark Twain and
Hiawatha National Forests will expire before the Hine's emerald
dragonfly can be recovered, we believe that the track record of
cooperation between us and the two national forests outlines the Forest
Service's commitment to the conservation of federally listed species
under sections 7(a)(1) and 7(a)(2) of the Act. Once the current plans
have expired, we are confident that both the Mark Twain and Hiawatha
National Forests will complete consultation on the new plans. These
consultations will further ensure that actions outlined in future land
and resource management plans will not jeopardize the continued
existence of any federally listed species, including the Hine's emerald
dragonfly. We believe that standards and guidelines established for the
Hine's emerald dragonfly will continue to contribute to the
conservation of the species until it is recovered and removed from the
list of federally protected species. If plans change such that it
affects our balancing, we will reconsider whether to designate critical
habitat in these areas.
(3H) Comment: One commenter expressed that we should exclude
Illinois Units 1, 2, and 3 because of long-term stakeholder commitment
and the Habitat Conservation Plan that is being written.
Our response: Though we are pleased with the progress made to date
on the Habitat Conservation Plan, it is still far from complete. It is
too early to judge its ultimate outcome. At this early stage, the
developing Habitat Conservation Plan is not complete enough for us to
evaluate whether habitat for the Hine's emerald dragonfly would be
appropriately managed. Generally we do not consider excluding an area
from critical habitat based on a draft Habitat Conservation Plan until
the conservation measures have been determined, an environmental
analysis has been completed and released for public review, and we have
determined that issuing the associated incidental take permit would not
result in a jeopardy or adverse modification finding for the species or
its critical habitat. Therefore, we are not excluding Illinois Units 1,
2, and 3 at this time. When the Habitat Conservation Plan is completed,
we will be able to evaluate its conservation benefits to the species
and, if appropriate, revise the critical habitat designation to exclude
this unit.
(3I) Comment: One commenter concluded that there is no reasonable
basis for excluding privately owned sites in Missouri and designating
Illinois Units 1 and 2. Excluding units in Missouri suggests that
similarly situated parties are being treated differently.
Our response: Threats identified for the Hine's emerald dragonfly
on private land in Missouri are addressed through close coordination
among personnel with the MDC's Private Land Services Division or
Regional Natural History biologists and private landowners.
Additionally, MDC personnel work closely and proactively with the
National Resources Conservation Service (NRCS) and the Service's
Partners for Fish and Wildlife Program to initiate management and
maintenance actions on privately owned fens occupied by the Hine's
emerald dragonfly that benefit the species and alleviate potential
threats.
One site on private property in Missouri is owned and managed by
The
[[Page 51107]]
Nature Conservancy through the implementation of a site-specific plan
(The Nature Conservancy 2006, pp. 1-4) that maintains fen habitat. One
site under private ownership is a designated State Natural Area that is
managed by the MDC through a site-specific plan (Missouri Natural Areas
Committee 2007). This plan ensures that the integrity of the fen is
maintained (Missouri Natural Areas Committee 2007). However, at this
time there are no conservation plans in place for Illinois Units 1 and
2 that would guide the implementation of similar measures. In addition,
Illinois Unit 1 is a publicly owned site.
(3J) Comment: One commenter was concerned with the exclusion of
large areas of lands in Michigan and Missouri based solely on the
existence of management plans. The commenter suggested that given the
uncertainties surrounding funding and implementation, the Service
should consider designating these areas. Another commenter opposed
exclusion of Michigan Units because the Hine's emerald dragonfly is
mobile, and designation of all possible habitat areas is necessary to
support increased numbers of the species. Furthermore, the commenter
suggested that, by excluding critical habitat areas, we spent more time
and money on the designation process.
Our response: While available funding will likely impact the amount
of Hine's emerald dragonfly conservation work that occurs in any one
year, we are confident that the Forest Service will continue to place a
high emphasis and priority on their obligation to contribute to the
conservation of the species. In addition, State land management
agencies in Missouri are committed to the implementation of recovery
actions outlined in their management plans. Because of this commitment,
land management agencies in Missouri and Michigan are already actively
implementing conservation actions for the Hine's emerald dragonfly and
fen habitat. The designation of critical habitat would not influence
them to act more proactively.
In evaluating which areas to exclude, we requested and reviewed
management plans and other relevant information. This analysis was
conducted for all of the Hine's emerald dragonfly habitat areas we
identified as meeting the definition of critical habitat. For excluded
units, more time was spent on reviewing pertinent information,
addressing public comments, and incorporating public input than for
designated critical habitat units. This, however, was not due to the
exclusion process, but rather to the amount of pertinent information
available for these units (Forest Service Land and Resource Management
Plans, other management plans, etc.) and the large number of public
comments associated with exclusion. The evaluation and incorporation of
relevant information and public comment was a necessary part of our
critical habitat designation.
Issue 4: Economic Issues
(4A) Comment: The proposed critical habitat rule states that ``[t]o
the extent that designation of critical habitat provides protection,
that protection can come at significant social and economic cost'' (71
FR 42443). Two commenters contend that there is no evidence that
``social or economic'' costs apply to the Hine's emerald dragonfly
critical habitat designation and that some private landowners have
recognized that critical habitat designation poses no social or
economic threat. Furthermore, the economic and social benefits of
critical habitat designation are ignored.
Response: The draft economic analysis evaluates the potential
economic costs associated with critical habitat designation, and also
discuses the benefits of critical habitat designation. Based on our
economic analysis, estimated future costs associated with conservation
efforts for the dragonfly in areas designated as critical habitat range
from $16.8 million to $47.9 million (undiscounted) over the next 20
years. The present value of these impacts, applying a 3 percent
discount rate, is $13.4 million to $35.6 million ($0.9 million to $2.4
million annualized); or $10.7 million to $26.0 million, applying a 7
percent discount rate ($1.0 million to $2.5 million annualized).
The published economics literature has documented that social
welfare benefits can result from the conservation and recovery of
endangered and threatened species. In its guidance for implementing
Executive Order 12866, OMB acknowledges that it may not be feasible to
monetize, or even quantify, the benefits of environmental regulations
due to either an absence of defensible, relevant studies or a lack of
resources on the implementing agency's part to conduct new research.
Rather than rely on economic measures, the Service believes that the
direct benefits of the proposed rule are best expressed in biological
terms that can be weighed against the expected cost impacts of the
rulemaking. Critical habitat designation may also generate ancillary
benefits. Critical habitat aids in the conservation of species
specifically by protecting the primary constituent elements on which
the species depends. To this end, critical habitat designation can
result in maintenance of particular environmental conditions that may
generate other social benefits aside from the preservation of the
species. That is, management actions undertaken to conserve a species
or habitat may have coincident, positive social welfare implications,
such as the preservation of open space in a region. While they are not
the primary purpose of critical habitat, these ancillary benefits may
result in gains in employment, output, or income that may offset the
direct, negative impacts to a region's economy resulting from actions
to conserve a species or its habitat. It is often difficult to evaluate
the ancillary benefits of critical habitat. To the extent that the
ancillary benefits of the rulemaking may be captured by the market
through an identifiable shift in resource allocation, they are factored
into the overall economic impact assessment. For example, if habitat
preserves are created to protect a species, the value of existing
residential property adjacent to those preserves may increase,
resulting in a measurable positive impact. Ancillary benefits that
affect markets are not anticipated in this case and therefore are not
quantified.''
(4B) Comment: One commenter suggested that the proposal was
premature and legally deficient because it lacked an economic analysis.
Our response: Pursuant to the Act, and clarified in our
implementing regulations at 50 CFR 424.19, we are required to, ``after
proposing designation of [a critical habitat] area, consider the
probable economic and other impacts of the designation upon proposed or
ongoing activities.'' The purpose of the draft economic analysis is to
determine and evaluate the potential economic effects of the proposed
designation. In order to develop an economic analysis of the effects of
designation critical habitat, we need to have identified an initial
proposed critical habitat designation. Following publication of the
critical habitat proposal for the Hine's emerald dragonfly, we
developed a draft economic analysis of the proposed designation that
was made available for public review and comment on March 20, 2007, for
14 days, and reopened for public review and comment on May 18, 2007,
for 45 days. On the basis of information received during the public
comment periods, we may, during the development of our final critical
habitat determination, find that areas proposed are not essential, are
appropriate for exclusion under section 4(b)(2) of the
[[Page 51108]]
Act, or are not appropriate for exclusion. An area may be excluded from
critical habitat if it is determined that the benefits of such
exclusion outweigh the benefits of including a particular area as
critical habitat, unless the failure to designate such area as critical
habitat will result in the extinction of the species. We have not,
however, excluded any areas from the final designation based on
economic reasons.
(4C) Comment: One commenter expressed that Midwest Generation's
rail line and immediately adjoining areas in Illinois Units 1 and 2
should be excluded from critical habitat based on economic impacts, and
they provided an independent economic analysis of alternative coal
delivery systems.
Our response: On March 20, 2007, we issued an economic analysis
that addressed these issues. As stated above and in the proposed rule
``critical habitat does not include human-made structures existing on
the effective date of a final rule not containing one or more of the
primary constituent elements.'' The rail line is not part of Illinois
Units 1 and 2 because it was excluded by text from the proposal rule
and from this final rule. Areas around the rail line that are not
human-made but contain at least one primary constituent element are
included. We determined that the relatively minor economic costs as
described in the draft economic analysis do not justify excluding those
areas from critical habitat.
(4D) Comment: One commenter expressed concerns about the effects of
critical habitat designation on the future of the State snowmobile
trail system in Door County, Wisconsin, and on improvements to, and
installation of, new trails. Concerns include loss of the State trail
corridor, which could bankrupt snowmobile clubs in the area, and loss
of associated tourist revenue in Door County.
Our response: While the designation of critical habitat for the
Hine's emerald dragonfly does not directly affect private landowners
without a Federal nexus, it does alert them to the presence of an
endangered species on their land and the need to ensure that their
activities are consistent with the conservation of the species.
Snowmobiling activity on upland areas in the winter will not affect the
dragonfly, as adults are not flying in winter and the larval stage
overwinters in crayfish burrows in wetlands. Construction and
maintenance of snowmobile trails in upland locations at any time of
year are not anticipated to affect the dragonfly. If construction and
maintenance activities are planned in or near wetland areas occupied by
the dragonfly, measures should be taken to preclude adversely affecting
the wetlands or their hydrology. The Service's Green Bay Ecological
Services Field Office can be contacted for guidance on ways to preclude
harm to the dragonfly's habitat (by calling 920-866-1717). As we
anticipate that snowmobiling activities will not be adversely affected
by designation of critical habitat, we do not anticipate impacts to
tourist revenues associated with snowmobiling in Door County.
(4E) Comment: One commenter stated that it was unclear from
information in the economic analysis whether a determination had been
made regarding exclusion of additional areas from the designation of
critical habitat for all or some of the units in Illinois based on
economic impact.
Our response: The purpose of the economic analysis is to identify
and analyze the potential economic impacts associated with the proposed
critical habitat designation for the Hine's emerald dragonfly. The
economic analysis did not make a determination about any exclusions.
The economic analysis is conducted to inform the Secretary's decision
about exclusions. The final determination is made in this rule. Based
on the information in the draft economic analysis and the comments
received during the public comment period, we are not excluding any
areas based on economic impacts.
(4F) Comment: One comment asserts that there is little (if any)
economic activity in Alpena, Mackinac, or Presque Isle Counties in
Michigan. The comment asserts that declining populations in these
counties is evidence of minimal economic activity.
Our response: The methodology used to obtain land values is
discussed in Section 2.1 of the economic analysis, and the land values
for each potential critical habitat units are presented in Exhibit 2-3.
These values reflect the level of actual economic activity in these
counties. The land in the three Michigan counties that coincides with
the study area is valued at $1,430 per ac in Alpena County; $4,380 per
ac in Presque Isle County; and $1,510 per ac in Mackinac County. The
land value estimates for economic impacts in these counties (for units
MI 3, MI 4, MI 5, and MI 6) were obtained from local zoning and tax
assessor officials in these counties. The price of land in the present
constitutes the expected value of current and potential future values
of that land. Each of the proposed critical habitat units are near
waterfront access and roads, which may make them valuable now or in the
future.
(4G) Comment: Two comments state that the economic analysis fails
to define an appropriate baseline, specifically: (1) The analysis of
future conservation measures as co-extensive is unjustified; and (2)
the inclusion of past costs associated with the proposed critical
habitat as consequences of the critical habitat designation is
erroneous.
Our response: (1) The economic analysis includes co-extensive costs
because courts and the public have asked to see us display all of the
costs of critical habitat, whether or not these costs are co-extensive
with other causes. (2) The economic analysis explains why past costs
are included in the introduction of Chapter 1. The retrospective
analysis of past costs is included to provide context for future costs,
and in some cases to help predict them. The Service is not suggesting
that these costs are a result of the critical habitat designation.
Reporting of past costs is also reviewed in Section 1.4, where their
inclusion is justified on the basis that past costs may have
contributed to the efficacy of the Act in that area.
(4H) Comment: Two comments state that the economic analysis does
not include benefits in the analysis. The un-quantified benefits they
list are: protection of ecosystem services; increased recreational and
wildlife opportunities; reduced flood risks; concurrent conservation of
other species; enhanced groundwater recharge; mosquito reduction;
existence value of the dragonfly; protection of other species; wetland
protection; decreased use of pesticides, chemicals, and herbicides; and
potentially higher property values. One of the comments provides
testimony of landowners who want to preserve the dragonfly on their
property as evidence of existence value. This comment then proceeds to
list several non-use valuation techniques. Another comment argues that
the benefits should be expressed in monetary terms rather than in
biological terms.
Our response: Potential benefits from critical habitat designation
are discussed in Section 1.4 of the economic analysis, which recognizes
the valuation methodologies discussed by the commenter. The section
then describes the policy of the Service whereby benefits are expressed
in biological terms. This section also discusses how ancillary benefits
are not expected in the case of the Hine's Emerald Dragonfly. The
Federal Office of Management and Budget (OMB) has acknowledged that it
may not be
[[Page 51109]]
feasible to monetize or quantify benefits because there may be a lack
of credible, relevant studies, or because the agency faces resource
constraints that would make benefit estimation infeasible (U.S. OMB,
``Circular A-4,'' September 17, 2003, available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.
).
(4I) Comment: One comment states that the economic analysis does
not explain how the results of the analysis will be used in the
critical habitat designation process.
Our response: In the introduction to Chapter 1, the Framework for
Analysis states that the economic analysis will be used to weigh the
benefits of excluding particular proposed critical habitat areas
against the benefits of including them.
(4J) Comment: One comment states that the economic analysis does
not consider the effects of other land use regulations that may affect
how land can be developed or used, and that value losses attributed to
critical habitat designation may be improperly attributed.
Our response: Land use regulations and how they affect land values
are discussed in Section 2.1 of the economic analysis, in the context
of Exhibit 2-3. First, the analysis explains that present land values
will reflect the opportunities for development of that land. In this
way, the present value of land incorporates all current and expected
future regulatory constraints upon land use (Freeman 2003).
As an illustration, consider three identical parcels, one which
housing can be built on with certainty, one which may or may not be
subject to regulatory constraints that prohibit the construction of
housing, and one where housing construction is absolutely prohibited.
The price of the parcel where housing can be built (with certainty)
will incorporate the option value for that housing and will sell for
the highest price. The parcel where housing may or may not be built due
to uncertainties about future regulation will sell for less than the
parcel on which housing can be built with certainty, but will sell for
more than the parcel where no housing can be built. The market price
for land is net of the expected effect of current or future
regulations. As described in Section 2.1 of the economic analysis, the
GIS process for determining land values took into account zoning
regulations and ownership types before determining land values from tax
parcel records and interviews with zoning and planning officials.
Impacts in this analysis are predicted using the best publicly
available data for reasonably foreseeable land uses.
(4K) Comment: One comment argues that the assumption that the value
of land is immediately lost is erroneous because there is imperfect
information in markets.
Our response: Section 2.1 of the economic analysis provides an
explanation of how real estate markets work, and how current prices are
the market's best prediction of future land values. It is correct that
all consumers are not perfectly informed about products in a
marketplace. In the real estate market, a lack of knowledge can result
in a higher or lower property value. In the case of a newly regulated
market, this would mean that buyers would still be willing to pay too
much for the property.
The goal of the analysis in Section 2.1 is to predict the market
equilibrium outcome. Limited information among buyers may cause them to
pay too much for the property in the short run, but once the market is
informed, everyone will pay the true (lower) market equilibrium value.
There are many studies that have empirically shown that, though there
may be imperfect information among some potential buyers, real estate
markets respond quickly to changes in land use regulation (Kiel 2005;
Guttery et al. 2000). The assumptions used in this analysis are based
on the best available information.
(4L) Comment: One comment states that the economic analysis
improperly inflates the lost value of development because including all
land values as lost development values assumes that these lands are
certain to be developed, and there is no certainty that the land will
be developed.
Our response: Section 2.1 of the economic analysis addresses this
in its discussion of how real estate prices adjust to expectations
about future property uses. This analysis does not assume that all
lands are certain to be developed. The present price per parcel of land
incorporates the expected value of potential current and future uses of
that land, regardless of when, or if, the land is ever developed. If
current and potential uses are taken away, or if the quality of the
land declines, the price of the land parcel will decrease (Quigley and
Rosenthal 2005; Kiel and McClain 1995). Even the perception that the
quality of the land may change can affect real estate values (Kiel and
McClain 1996). Land that can be developed will command a higher price
because it could be developed (even if it is never developed), and it
is that expected value that the analysis considers.
(4M) Comment: One comment states that the economic analysis fails
to establish a proper baseline because it does not consider potential
regulatory changes or changes in market demand. The comment does not
specify what specific changes are likely other than potential changes
due to global warming or peaked oil production. A similar comment
suggests that the assumption that a dolomite mine in Illinois Unit 2
will close because of critical habitat designation does not consider
the impact of unknown future events.
Our response: Section 2.1 of the economic analysis reviews the data
sources and analytic procedures used to assess the potential value
losses over the next 20 years. These data are the best data that are
publicly available and as such provide the basis for the prediction of
impacts for reasonably foreseeable land uses under expected future
conditions. While costs attributable to critical habitat may result
from other factors, we cannot speculate about future events. We must
use the best information available to us at the time of the analysis.
(4N) Comment: One comment states that the economic analysis
estimates of lost property values are incorrect because the analysis
does not consider changes to the value of properties outside the study
area. The comment argues that if some parcels of land are removed from
the market, then other parcels of land will increase in value by the
amount of the decrease in land value lost, so that the net economic
effect will be zero change.
Our response: The potential for land use restrictions to affect
neighboring properties is a valid concern. If there are no substitute
parcels available in the vicinity of the parcel to be regulated (no
other land that could be sold), then the price for land in that
location will be driven up, and there will be a net gain for
surrounding landowners, which could offset (fully or partially) the
loss of value for the critical habitat units. However, if substitute
parcels of land are plentiful in the vicinity of the critical habitat,
then the consumer will have many options to choose from, and will not
have to pay a higher price for substitute parcels, hence there will be
no increase in surrounding land values (Quigley and Swoboda 2006).
Section 2.1 of the economic analysis discusses the possibility that
the amount of land available for development in the vicinity of the
study area could be very limited. However, the area of land under
consideration for designation as well as the value of that
[[Page 51110]]
land indicates that there will not be a significant impact on the local
real estate market. That is, the amount of land that could be removed
from development is not believed to be enough to increase surrounding
land values. Results from sampling multiple listing services in
Michigan and Wisconsin indicate that limiting residential development
on vacant parcels will not have a substantial impact on the local land
markets. That is, prices of surrounding parcels are unlikely to change
and it is unlikely that there will be welfare changes because there are
many substitute parcels for the critical habitat units.
Sampling of Alpena County, Michigan found 146 parcels; the 50
sampled parcels had an average size of 24.5 ac, and an average asking
price of approximately $68,000. Sampling of Mackinac County, Michigan
found 229 parcels; the 50 sampled parcels had an average size of 5.8
acres, and an average asking price of approximately $90,000. Sampling
of Presque Isle County, Michigan found 255 parcels; the 50 sampled
parcels had an average size of 23 ac, and an average asking price of
approximately $81,000. Sampling of the Door County (Wisconsin) Realtors
Multiple Listing Service found approximately 550 vacant parcels of
various sizes; the 50 sampled properties had an average size of 4.15 ac
and an average asking price of approximately $66,000. This information
is now included in Section 2.1.
(4O) Comment: One comment states that the limitation on resource
extraction values in Illinois Unit 2 would not have had an effect
because the losses in value would be offset by increases in values to
competitors. The comment says that the analysis does not consider
whether other companies will profit if Material Services Corporation
cannot mine the parcel in critical habitat. The comment also argues
that the DEA does not consider the fact that there may be lower cost
companies that would profit more if the limitation were passed.
Our response: The magnitude of the dolomite deposits in Illinois
Unit 2 relative to the rest of the Illinois dolomite market is
discussed in Section 2.2.1 of the DEA. The annual revenue from the
dolomite mine in Illinois Unit 2 is estimated to be $500,000. As noted
in the report, the annual extraction of dolomite in Illinois has an
approximate value of $470 million. Approximate dolomite revenues for
Will County specifically (the county containing the mine in Illinois
Unit 2) are $94 million. While losses of $500,000 per year to the
mining company will be substantial, the expected revenues from this
single mine are not significant relative to the entire market. That is,
not allowing the dolomite in Illinois Unit 2 to be mined will not cause
prices faced by competing companies to change; competitors will make no
offsetting welfare gains (Just et al. 2004).
The commenter suggests that other companies may be able to
compensate for decreased mining activity in Illinois Unit 2 by
increasing operations at other facilities, and that there will be no
net loss to society. The commenter is correct that any shortfall due to
the mine being unable to operate will likely be made up by other places
(especially since the magnitude of the mine is small relative to the
overall market). There will still be, however, the lost resource value
for the company that is not allowed to mine this specific property.
The comment also contends that another mine may have lower costs,
and that increased operations at that mine may be more efficient. At
this time, there are no publicly available data concerning different
cost structures for dolomite mining companies.
(4P) Comment: One comment states that the DEA does not consider
alternative uses for the land in Illinois Unit 2 if the mine is not
allowed to operate. The comment suggests that there might be wildlife
viewing values for the property, or that the limitation on the mine
would make nearby house values increase.
Our response: The commenter makes a valid point; alternate land
uses are not considered in this estimation for this proposed unit. In
section 2.2.1 of the DEA, the analysis reports the mitigation costs of
conservation that would be required to offset mining activities as well
as the value lost if mining is not allowed. If mining is not allowed,
there may be other uses for the property, but the values of the uses
will be negligible compared to the lost mining resource value. It is
unlikely that there could be significant economic benefits from
preserving this parcel from mining. Visual inspection of Exhibit 1 in
Appendix F shows that Illinois Unit 2 is located in an industrial
corridor. In fact, the area proposed for the mine is surrounded by
previously mined areas and industrial or transportation facilities.
These location specifics make it unlikely that residential property
values would be increased if the mine does not operate; there are no
houses nearby and the effect of the industrial corridor that the mine
is a part of will have a value dampening effect. There is not likely to
be any increase in wildlife viewing values from a critical habitat
designation, as the designation does not make any private land
available to the public for wildlife viewing, nor does it increase the
ability of the public to view wildlife on public lands where such
viewing would be available even absent the designation.
(4Q) Comment: One comment states that the economic analysis fails
to include other alternatives to deep water wells as potential means to
offset decreases in the water table. This comment argues that water
conservation measures and storm water conservation regulations should
be included as alternative water management strategies in the analysis.
Our response: Section 3.1 of the DEA describes the threat of water
depletion and Section 3.1.1 discusses residential consumption and the
methodology that was taken to calculate estimated costs for deep
aquifer well drilling. The section contends that one potential remedy
for depletion of groundwater levels (and subsequent habitat impacts) is
to drill municipal wells into the deep aquifer to meet current and
future water demands, as discussed by the Service. Other adaptive
behaviors may be feasible, but there are no publicly available data
available to model them.
(4R) Comment: One comment states that the estimation of costs to
drill deep aquifer wells assumes that these wells would not be drilled
for population increases if critical habitat designation did not occur;
and thus their inclusion inflates the cost estimates.
Our response: The argument that deep aquifer wells may be drilled
regardless of the habitat designation is valid. The analysis does
assume that new wells will be drilled in response to population growth.
However, the analysis states that the presence of critical habitat
could prompt new wells to be drilled into the deep aquifer instead of
the upper aquifer. The estimated impact due to critical habitat
designation is the projected difference between the cost of deep and
upper aquifer wells for future population growth. Section 3.1.1 of the
DEA discusses residential consumption of water and how population
growth estimates are used to predict the number of new wells that will
be needed. It is not known whether any new wells will be drilled, and
if drilled, whether they will be drilled into the upper or lower
aquifer (though upper aquifer wells are less expensive). It is for this
reason that both a low (no deep aquifer well costs) estimate is
included with a high estimate (which assumes all deep aquifer costs are
in response to the dragonfly). The range of costs between the low
(zero) and high estimates spans the potential costs for water use
mitigation that may occur in these
[[Page 51111]]
proposed critical habitat units. The use of a range of estimates
addresses the concerns about the uncertainty of whether deep aquifer
wells would be drilled or not in response to population increases.
(4S) Comment: One comment states that the inclusion of invasive
species control costs as co-extensive is inappropriate, since other
species may have been affected.
Our response: The economic analysis discusses invasive species
control measures and costs in Section 6.3. Invasive species control was
listed as a threat to the species and a potential adverse affect to
critical habitat in the proposed rule. Invasive species control has
been ongoing in most critical habitat units and will continue
regardless of the presence of Hine's emerald dragonfly or the
designation of critical habitat.
(4T) Comment: One comment addresses the estimation of impacts from
the Interstate-355 extension in Chapter 2 of the DEA. This comment
states that ``total costs for I-355-related development activities
range from a low of $11.8 million to a high of $18 million. This number
includes opportunity costs to vehicles that have to slow down due to
the presence of the dragonfly, since the Illinois Department of
Transportation (IDOT) chose to build the road through dragonfly habitat
* * *.'' The comment also states that the costs that are discussed will
occur before the designation takes place. The comment then states that
the DEA does not consider the possibility that IDOT could have decided
to not build this road due to the presence of the dragonfly.
Our response: In Section 2.3.2 of the DEA, past costs are estimated
to be $1.8 million (undiscounted), as shown in Exhibit 2-7. Future
costs are estimated to be $2.3 million (undiscounted) as shown in
Exhibit 2-8. The economic analysis does not address speed limits on
roads through dragonfly habitat in this section. The costs for the
interstate extension do not involve any traffic slowing costs, since
the interstate extension is being built eight feet higher than it
otherwise would be built to avoid dragonfly collisions (hence avoiding
the need for a limited speed zone); see Section 2.3.2. The costs to
build the roadway higher are included in the analysis. Opportunity
costs from lost time due to speed limits to avoid take of dragonflies
are estimated for other units--IL 7, WI 4, and WI 5. (The costs for the
I-355 extension are in unit IL 4.)
The comment that these costs will be realized before designation is
partially correct. Exhibit 2-7 displays the costs of mitigation and
conservation through 2006. The costs in Exhibit 2-8 include costs
incurred from 2007 through 2026. These costs include costs incurred in
the current year, since this is an ongoing project, and costs may be
incurred during the proposal period. Most of the dragonfly-specific
costs are attributed to the future period (2007-2026).
The economic analysis does not provide economic estimates for a
scenario in which the overpass is not built. The overpass construction
was substantially underway when the proposed rule considering
designation was published. Since the Illinois Toll-way Authority had
made several conservation and mitigation efforts for the dragonfly,
these impacts were included in the analysis.
(4U) Comment: One comment states that the economic analysis fails
to include all the relevant information concerning travel time lost due
to speed limitations on passenger trains in the analysis. Specifically,
the comment states that the analysis does not include time lost for
riders of METRA commuter trains, nor does it consider the value of
passenger time lost (as well as additional fuel costs) for deceleration
in preparation for, and acceleration after, the limited speed zone.
Our response: The commenter raises some valid concerns. The
economic estimates (Section 5.1) were based upon the best publicly
available data at the time. Newly available ridership information for
METRA (which was initially omitted) and actual ridership information
for AMTRAK (which had been overestimated by a factor of five by the
AMTRAK source IEc contacted initially), and adding in the time value
lost and additional fuel costs due for acceleration and deceleration,
increases the vehicle slowing costs for Illinois unit 7 from $12.6
million to $13.7 million (undiscounted). This corresponds to an
increase in costs from $9.7 million to $10.5 million (discounted at 3
percent), and from $7.1 million to $7.8 million (discounted at 7
percent). These cost increases are insufficient to change the rank
orderings of units by level of impact for the high-end estimates (see
Exhibit ES-6).
(4V) Comment: One comment states that the value of increased train
carbon emissions from the deceleration and acceleration are also not
quantified for these actions.
Our response: The commenter is correct; the economic analysis does
not quantify increased emission levels due to deceleration and
acceleration. The marginal quantities of emissions are not likely to be
substantial. In addition, there is no emission trading market for
mobile source diesel fuel emissions. In the absence of such a market,
cost estimates for additional carbon pollution would be speculative.
(4W) Comment: One comment states that the economic analysis does
not include the costs in increased traffic congestion from train riders
switching to commuting by car that a speed limitation on AMTRAK and
METRA commuter rail trains passing through Illinois Unit 7 would
generate.
Our response: The commenter is correct. This comment is concerned
with the estimation of values in Exhibit 5-3, Section 5.1 of the DEA.
New calculations based on information obtained during the comment
period quantified the increased delay for causing the AMTRAK and METRA
to decelerate from 79 miles per hour (mph) to 15 mph, travel 15 miles
per hour for one quarter mile, then accelerate back to a speed of 79
mph.
The estimated time delays are minimal and thus unlikely to be
sufficient to cause many travelers to switch to automobile travel. The
additional time taken for deceleration would be 36 seconds. The
additional time taken for traveling 15 mph for one quarter mile (mi)
would be 45 seconds. The increase in travel time for acceleration would
be 40 seconds. The total (an additional two minutes and one second) of
travel time is highly unlikely to cause train travelers to switch to
travel by automobile, especially since the road that runs parallel to
the track that would have the speed limits will be subject to the same
speed limit as well; travel times on the roadway will increase by at
least 3.25 minutes. These estimates, and their derivation, are
discussed in Section 5.1
The economic literature on mode-split indicates that an increase in
travel time on a commuter train is unlikely to cause much of a shift to
car use. Mode-split studies measure how sensitive travelers are to
changes in the cost of traveling. An increase of ten percent of travel
time on a commuter train during peak commuting time will cause a one
percent increase in demand for commuting by automobile (Lago and
McEnroe 1981). The additional delay in unit IL 7 may cause a small
increase in travel by car. However, the literature indicates that
commuters who travel by rail are not very sensitive to small increases
in travel times. The estimated change in demand cited above is
illustrative of general behavior; there are no publicly available
models or data for modeling this specific situation.
(4X) Comment: One comment questions the accuracy of projected cost
estimates in Exhibit 4-8 relative to the
[[Page 51112]]
information provided. The comment is specifically concerned with the
dates of anticipated costs from 2011-2014 and from 2007-2026.
Our response: The costs that the comment is concerned with are
listed in Exhibit 4-8, Section 4.3 of the DEA. These estimates were
obtained from documents provided by Midwest Generation concerning costs
they have incurred and expect to incur for work done on the railroad
line in Illinois Units 1 and 2. The calculations used to spread costs
over the periods 2011-2014 and 2007-2026 were not presented in the
draft economic analysis. These calculations are now included in Exhibit
4-8.
Future (long-term) rehabilitation costs from 2011 to 2014 are
listed in a document submitted by Midwest Generation during the public
comment period. The document is entitled ``List of Midwest Generation's
Environmental Activities Associated with the Rail Line and HED
Commitments.'' The end of the first paragraph of that document
concludes: ``Long term maintenance items should be implemented in the
four to seven year range * * *.'' Four years from the final rule is
2011 and seven years from the proposed rule is 2014. Accordingly, the
long-term rehabilitation costs are spread over those years. These are
the costs estimated to take place from 2011 to 2014.
(4Y) Comment: One comment states that railroad maintenance and
culvert maintenance should not be considered threats. The comment
states, ``The Service contends that this process is maintenance that
the railroad would have to do regardless of the dragonfly, but
recognizes that undercutting, combined with the construction of
approximately 4 new French drains, and regular culvert maintenance may
be potential options for mitigating the hydraulic pumping problem.''
Our response: Specific types of railroad maintenance, combined with
undercutting, are listed in Section 5.2 of the DEA as mitigation
measures that respond to the specific threat of the hydraulic pumping
of sediments. As discussed in Chapter 4 of the DEA, maintenance
activities may also pose threats to critical habitat. A clarifying
sentence has been added to the referenced paragraph in the DEA: ``While
regular maintenance may help mitigate the hydraulic pumping problem,
maintenance activities may still pose a threat to critical habitat. An
additional clarifying footnote was added following this sentence:
``There are types and methods of railroad maintenance that may be
employed without threatening the dragonfly or its habitat; Section 4.3
addresses the additional costs of performing such dragonfly sensitive
maintenance.''
(4Z) Comment: One comment states there is no concession stand in
unit WI 5.
Our response: This apparent error occurs in Section 2.2.3 There is
an interpretive center/gift store located in WI 5. This store is
referred to as a ``concession'' in local zoning documents. This
confusion has been clarified in the text.
Issue 5: Site-Specific Issues
(5A) Comment: Two commenters suggested that we designate multiple
areas of unoccupied habitat in Michigan, including the Stonington
Peninsula, Garden Peninsula, Munuscong Bay, Drummond Island, Pointe Aux
Chenes River, Wilderness State Park, and others. Additionally, the
commenters suggested we designate multiple areas in Michigan where the
Hine's emerald dragonfly has been observed on site or within two mi of
a known locality.
Our response: We did not designate unoccupied habitat listed by the
commenters because there are no current or historic records documenting
the presence of the species at these sites. In 2006, the Hiawatha
National Forest conducted surveys on the Stonington Peninsula and did
not document the presence of Hine's emerald dragonflies from this
locality.
With regard to sites where the Hine's emerald dragonfly has been
observed or where it was observed within a 2-mi radius, we used the
methodology outlined under the section of this rule on ``Criteria Used
to Identify Critical Habitat''. In drawing the outer boundary of a
unit, we extended the unit boundary from the dragonfly larval habitat
up to 100 meters where the PCEs are found unless we reached areas that
did not contain the PCEs before that 100 meters, such as a closed
canopy forest, roadway, or another natural or human-made break in
habitat. This is to provide foraging areas for the species. A small
number of dragonfly observations do not fall within a critical habitat
unit. For instance, a one-time observation of a single foraging Hine's
emerald dragonfly would not provide enough information to adequately
determine the location of the core breeding habitat. We believe that
there could be undiscovered Hine's emerald dragonfly breeding sites in
Michigan, but using the best scientific data currently available, we
have identified the six breeding areas in Michigan of which we are
aware.
Issue 6: Effects of Critical Habitat Designation
(6A) Comment: One private landowner was concerned that the
designation of critical habitat may affect current or planned
activities. Specifically, the commenter was concerned about delays or
disruptions to future plans to expand or enhance an existing rail line,
which would require Federal permits.
Our response: Critical habitat designation does not preclude
development. Section 7(a)(2) of the Act requires Federal agencies to
consult with the Service to ensure that actions they fund, authorize,
permit, or otherwise carry out will not jeopardize the continued
existence of any listed species or adversely modify designated critical
habitat. If the Federal action agency determines that a project may
adversely affect a listed species or designated critical habitat,
formal consultation is required. There is a designated period of time
in which to consult (90 days), and beyond that, another set period of
time for the Service to prepare a biological opinion (45 days). The
analysis of whether the proposed action would likely jeopardize the
continued existence of the species or adversely modify designated
critical habitat is contained in the biological opinion. If a jeopardy
or adverse modification determination is made, the biological opinion
must identify any reasonable and prudent alternatives that could allow
the project to move forward.
Issue 7: Philosophy on Utility of Critical Habitat
(7A) Comment: Two commenters expressed that they disagree with the
statement in the proposal that critical habitat designations are driven
by litigation and courts rather than biology. They argue that while
many critical habitat designations are the result of litigation, it is
only to the extent that the Service fails to meet its statutory
obligation to designate critical habitat concurrently with listing and
that it is a burden imposed by an unambiguous statutory mandate, not by
litigation.
Our response: The section in the proposed rule that contained these
statements (``The Role of Critical Habitat in Actual Practice of
Administering and Implementing the Act'') has been removed from this
final rule.
(7B) Comment: Two commenters suggested that critical habitat
designation is strongly associated with species recovery and that the
Service must consider the role of critical habitat in the recovery of
the species.
[[Page 51113]]
Our response: We agree that we must consider the role of critical
habitat in the recovery of species. The Ninth Circuit Court's decision
in Gifford Pinchot Task Force v. United States Fish and Wildlife
Service, 378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot)
requires consideration of the recovery of species. Thus, under this
court ruling, and our implementation of Section 7 of the Act, critical
habitat designations may provide greater benefits to the recovery of a
species. Also, we have found that critical habitat designations serve
to educate landowners, State and local governments, and the public
regarding the potential conservation value of the areas designated.
(7C) Comment: One commenter expressed that the Hawaii example in
the proposal does not prove that excluding areas from critical habitat
provides superior conservation benefits to designating critical
habitat.
Our response: Each exclusion from critical habitat designation is
considered on its own merits, after balancing the benefits of
designation against the benefits of exclusion, and also considering
whether the exclusion will result in the extinction of the species.
Issue 8: Unoccupied Habitat
(8A) Comment: Two commenters suggested that the Service consider
designating areas that would contribute to the species' recovery
through reintroduction, introduction, and augmentation efforts, as
recommended in the species' recovery plan.
Our response: Although introductions and reintroductions were
identified as being potentially important in the 2001 recovery plan,
the Service acknowledged that additional surveys needed to be completed
(Service 2001, p. 59). Since the recovery plan was written, additional
Hine's emerald dragonfly breeding sites were identified in Illinois,
Michigan, Missouri, and Wisconsin. Other unidentified sites may also
exist in these States. Therefore, at this time we believe that
introduction into unoccupied, potential habitat or reintroduction of
dragonflies into additional historically occupied, but currently
unoccupied, habitat may not be necessary to recover the species. As
additional research is conducted on the population structure and status
of the species, the Service will consider the necessity of introduction
and reintroduction of the Hine's emerald dragonfly.
Issue 9: Mapping
(9A) Comment: Some commenters stated that the maps and descriptions
of critical habitat units lacked sufficient detail to determine what
essential features are included, what the surrounding land uses are,
whether specific properties are included, and whether certain
structures are included. Furthermore, they state that the maps should
be provided in geological information system and aerial photography
formats.
Our response: The scale of the maps prepared under the parameters
for publication within the Code of Federal Regulations may not be
detailed enough to allow landowners to determine whether their property
is within the designation. Therefore, when the final rule is published,
we will provide more detailed maps on our web site to better inform the
public. We also provided contact information for anyone seeking
assistance with the proposed critical habitat. Therefore, we believe we
made every effort to provide avenues for interested parties to obtain
information concerning our proposal and supporting information.
Issue 10: General Comments and Other Relevant Issues
(10A) Comment: One commenter stated that critical habitat
designation is a ``waste of taxpayers' time and money.''
Our response: The designation of critical habitat for federally
listed species is a requirement under section 4(a)(3)(A) of the Act.
(10B) Comment: One commenter expressed that the presence of habitat
should have stopped the Interstate-355 (I-355) construction project.
The commenter added that projects like the I-355 expansion project show
that designation of critical habitat is justified.
Our response: If a species is listed or critical habitat is
designated, 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 such a 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, compliance with the requirements of
section 7(a)(2) will be documented through the Service's issuance of:
(1) A concurrence letter for Federal actions that may affect, but are
not likely to adversely affect, listed species or critical habitat; or
(2) a biological opinion for Federal actions that may affect, and are
likely to adversely affect, listed species or critical habitat.
The I-355 project required a permit from the Army Corp of
Engineers, which established a Federal nexus, and was addressed under a
formal consultation, pursuant to section 7(a)(2) of the Act. As part of
that formal consultation, conservation measures were agreed to that
require the project proponent to fund actions to conserve the Hine's
emerald dragonfly and its habitat. The Service concluded that the I-355
project would not jeopardize the continued existence of the Hine's
emerald dragonfly.
(10C) Comment: One commenter stated that the designation of
critical habitat should recognize the importance of protecting genetic
diversity through habitat conservation. Specifically, the Hine's
emerald dragonfly population in Illinois may contain greater genetic
diversity than the other populations. Thus, the importance of
protecting habitats in this State is heightened.
Our response: Genetic analysis is identified as a task in the
Hine's Emerald Dragonfly (Somatochlora hineana Williamson) Recovery
Plan (Service 2001). We are attempting to acquire funding to complete
genetic analysis in order to better understand the population structure
of the species. The designation of critical habitat was based on the
best available information. All currently occupied areas in Illinois
are included in the critical habitat designation for this and other
reasons.
(10D) Comment: Two commenters stated that the Service must address
Executive Order 13211 and prepare a Statement of Energy Effects, if
applicable. Also, the Service must offer an opportunity to comment on
any Statement of Energy Effects before making a final determination on
the designation.
Our response: Executive Order 13211 was addressed in the Economic
Analysis that was announced in the Notice of Availability published on
March 20, 2007, and is addressed again in this final rule.
(10E) Comment: One commenter is concerned that the proposal infers
that Midwest Generation's train traffic is contributing to mortality of
Hine's emerald dragonflies and that rail line operations are increasing
sediment deposition.
Our response: Vehicular impacts to Hine's emerald dragonflies,
including collisions resulting in mortality, have been documented in
areas within the species' range. However, since Midwest Generation
limits the speed of its trains to 4 to 6 mph in Illinois Units 1 and 2,
we have determined that train traffic in these units is not resulting
in direct mortality of Hine's emerald dragonflies.
We believe that sediment being released from the rail line ballast
in
[[Page 51114]]
Illinois Units 1 and 2 may be impacting Hine's emerald dragonfly larval
habitat. This potential threat is currently being assessed and will be
addressed in the Habitat Conservation Plan under development for these
units.
(10F) Comment: One commenter expressed that human-made structures
should be a part of critical habitat.
Our response: We only include areas that contain at least one of
the physical and biological features essential to the conservation of
the species. Human-made structures are not essential features of the
species' habitat.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his/her failure to adopt
regulation consistent with the agency's comments or petition. Comments
were received from the Illinois Department of Natural Resources
(ILDNR), MDC, Michigan Department of Natural Resources (MIDNR) and
Michigan Department of Environmental Quality (MIDEQ). Comments
supporting the proposed rule were received from the ILDNR and MDC.
Additional comments received from States regarding the proposal to
designate critical habitat for the Hine's emerald dragonfly are
addressed below.
(1) State Comment: The Michigan Department of Natural Resources
commented that Michigan Units 3, 4, and 5 are partially owned by their
agency. As these areas are owned by the State they are afforded
protection under land management policies.
Our response: In general, we considered excluding State lands from
the final critical habitat designation. Mud Lake/Snake Island Fens, a
portion of Michigan Unit 3, is owned by MDNR and is a designated
natural area. Much of Michigan Unit 4 is part of Thompson's Harbor
State Park. A portion of Michigan Unit 5, approximately 65 acres, is
state forest land and managed under Forest Certification Work
Instructions. State ownership and the various designations bestowed
upon these lands may afford some nonspecific protection for Hine's
emerald dragonfly and its habitat. However, we only excluded State or
Federal lands that had management plans identifying necessary
management and protection efforts for Hine's emerald dragonfly or the
PCEs. Therefore, Michigan Units 3, 4, and 5 are included in the final
critical habitat designation.
(2) State Comment: The Michigan Department of Environmental Quality
(MDEQ) emphasized that the State of Michigan has assumed the Federal
Clean Water Act section 404 program that provides wetland fill permits.
The MDEQ avers that a State, not a Federal, permit is issued; thus,
section 7 consultation is not required. However, when reviewing a
permit application that could affect a federally listed species or
critical habitat, the MDEQ coordinates with the U.S. Environmental
Protection Agency (USEPA) and the Service. The MDEQ may incorporate
appropriate measures into a permit, thereby avoiding or minimizing
impacts to listed species and addressing Federal concerns. The MDEQ
cannot issue a permit over the objection of the USEPA Regional
Administrator.
Our response: We appreciate MDEQ's dedication to and cooperation in
conserving federally listed species. We agree that the approach
outlined above is the process we currently use in reviewing section 404
permit applications under the state-assumed program in Michigan.
Summary of Changes From Proposed Rule
The area contained in Wisconsin Unit 1 has been amended. The map
and the description of the area for Wisconsin Unit 1 were accurate in
the proposed rule; however, the acreage for the unit was incorrect. The
error was due to using information from an earlier, larger draft of the
map for this unit. Therefore, the acreage has been corrected from 503
ac (204 ha) in the proposed rule to 157 ac (64 ha) in the final rule.
As discussed in the July 26, 2006, proposal (71 FR 42442),
additional sites in Wisconsin were evaluated to determine if they
contain the features that are essential for the conservation of the
Hine's emerald dragonfly. Based on our evaluation of research results
from 2006 fieldwork, we have determined that Kellner's Fen in Door
County, Wisconsin, contains the features that are essential to the
conservation of Hine's emerald dragonfly. Adult Hine's emerald
dragonflies have been observed in this area and breeding habitat exists
in this unit, although breeding has not yet been confirmed. We
announced the proposed addition of this unit in the Federal Register on
March 20, 2007, and are adding this unit to the critical habitat
designation. The additional critical habitat unit, Wisconsin Unit 11,
is described in the unit descriptions below.
We are excluding Michigan Units 1 and 2 (Hiawatha National Forest
lands), and all Missouri Units (1-26), from the final designation of
critical habitat because we believe that the benefits of excluding
these specific areas from the designation outweigh the benefits of
including the specific areas. We believe that the exclusion of these
areas from the final designation of critical habitat will not result in
the extinction of the Hine's emerald dragonfly. These exclusions are
discussed in more detail in the Exclusions section below.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a 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 any endangered or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary. Such
methods and procedures include, but are not limited to, all activities
associated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the area occupied by the species must first have features that
are essential to the conservation of the species. Critical habitat
designations identify, to the extent known using the best scientific
[[Page 51115]]
data available, habitat areas that provide essential life cycle needs
of the species (areas on which are found the primary constituent
elements, as defined at 50 CFR 424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) Accordingly, when the best available scientific data
do not demonstrate that the conservation needs of the species require
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but that was not
occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, therefore, is
typically included in the critical habitat designation.
Our Policy on Information Standards Under the Act, published in the
Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(P.L. 106-554; H.R. 5658) and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions represent the best scientific
data available. They require Service 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
determining which areas are critical habitat, we primarily use the
listing package for the species. Additional information sources 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. All information is
used in accordance with the provisions of Section 515 of the Treasury
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions implemented under section 7(a)(1) of the Act and to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available information
at the time of the 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
(HCP), or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical and biological features (PCEs) that
are essential to the conservation of the species, and within areas
occupied by the species at the time of listing, that may require
special management considerations and protection. These include, but
are not limited to space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing (or development) of offspring; and
habitats that are protected from disturbance or are representative of
the historic geographical and ecological distributions of a species.
The specific PCEs required for the Hine's emerald dragonfly are
derived from the biological needs of this species as described in the
proposed critical habitat designation published in the Federal Register
on July 26, 2006 (71 FR 42442).
Primary Constituents for the Hine's Emerald Dragonfly
Pursuant to our regulations, we are required to identify the known
physical and biological features (PCEs) essential to Hine's emerald
dragonfly conservation. All areas designated as Hine's emerald
dragonfly critical habitat are occupied, within the species' historic
geographic range, and contain sufficient PCEs to support at least one
life history function.
This designation is designed for the conservation of those areas
containing PCEs necessary to support the life history functions that
were the basis for the designation. Because not all life history
functions require all the PCEs, not all critical habitat will contain
all the PCEs.
Units occupied at the time of listing are designated based on
sufficient PCEs being present to support one or more of the species'
life history functions. All units designated for this species contain
all PCEs and support multiple life processes.
Based on our current knowledge of the life history, biology, and
ecology of the species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
that the Hine's emerald dragonfly's PCEs are:
(1) For egg deposition and larval growth and development:
(a) Organic soils (histosols, or with organic surface horizon)
overlying calcareous substrate (predominantly dolomite and limestone
bedrock);
(b) Calcareous water from intermittent seeps and springs and
associated shallow, small, slow flowing streamlet channels, rivulets,
and/or sheet flow within fens;
(c) Emergent herbaceous and woody vegetation for emergence
facilitation and refugia;
(d) Occupied burrows maintained by crayfish for refugia; and
(e) Prey base of aquatic macroinvertebrates, including mayflies,
aquatic isopods, caddisflies, midge larvae, and aquatic worms.
(2) For adult foraging; reproduction; dispersal; and refugia
necessary for roosting, resting, escape from male harassment, and
predator avoidance (especially during the vulnerable teneral stage):
(a) Natural plant communities near the breeding/larval habitat
which may include fen, marsh, sedge meadow, dolomite prairie, and the
fringe (up to 328 ft (100m)) of bordering shrubby and forested areas
with open corridors for movement and dispersal; and
(b) Prey base of small, flying insect species (e.g., dipterans).
Each of the areas designated in this rule that were occupied at the
time of listing has been determined to contain sufficient PCEs to
provide for one or
[[Page 51116]]
more of the life history functions of the Hine's emerald dragonfly. In
some cases, the PCEs exist as a result of ongoing Federal actions. As a
result, ongoing Federal actions at the time of designation will be
included in the baseline in any consultation conducted subsequent to
this designation.
Criteria Used To Identify Critical Habitat
We are designating critical habitat in areas we have determined
were occupied at the time of listing, and that contain sufficient PCEs
to support life history functions essential to the conservation of the
Hine's emerald dragonfly. Lands are designated based on sufficient PCEs
being present to support the life processes of the species. All lands
designated as critical habitat for this species contain all PCEs and
support multiple life processes. We are also designating areas that
were not occupied at the time of listing, but which were subsequently
identified as being occupied, and which we have determined to be
essential to the conservation of the Hine's emerald dragonfly.
To identify features that are essential to the conservation of the
Hine's emerald dragonfly and areas essential to the conservation of the
species, we considered the natural history of the species and the
science behind the conservation of the species as presented in
literature summarized in the Hine's Emerald Dragonfly (Somatochlora
hineana Williamson) Recovery Plan (Service 2001).
We began our analysis of areas with features that are essential to
the conservation of the Hine's emerald dragonfly by identifying
currently occupied breeding habitat. We developed a list of what
constitutes occupied breeding habitat with the following criteria: (a)
Adults and larvae documented; (b) Larvae, exuviae (skin that remains
after molt), teneral (newly emerged) adults, ovipositing females, and/
or patrolling males documented; or (c) Multiple adults sighted and
breeding conditions present. We determined occupied breeding habitat
through a literature review of data in reports submitted during section
7 consultations and as a requirement from section 10(a)(1)(B)
incidental take permits or section 10(a)(1)(A) recovery permits;
published peer-reviewed articles; academic theses; and agency reports.
We then determined which areas were occupied at the time of listing.
After identifying the core occupied breeding habitat, our second
step was to identify contiguous habitat containing one or more of the
PCEs within 2.5 mi (4.1 kilometers (km)) of the outer boundary of the
core area (Mierzwa et al. 1995, pp.17-19; Cashatt and Vogt 1996, pp.
23-24). This distance, the average adult dispersal distance measured in
one study, was selected as an initial filter for determining the outer
limit of unit boundaries in order to ensure that the dragonflies would
have adequate foraging and roosting habitat, corridors among patches of
habitat, and the ability to disperse among subpopulations. However,
based on factors discussed below, unit boundaries were significantly
reduced in most cases based on the contiguous extent of PCEs and the
presence of natural or human-made barriers. When assessing wetland
complexes in Wisconsin and Michigan we determined that features that
fulfill all of the Hine's emerald dragonfly's life history requirements
are often within 1 mi (1.6 km) of the core breeding habitat; therefore,
the outer boundary of those units is within 1 mi (1.6 km) of the core
breeding habitat.
Areas not documented to be occupied at the time of listing but that
are currently occupied are considered essential to the conservation of
the species due to the limited numbers and small sizes of extant Hine's
emerald dragonfly populations. Recovery criteria established in the
recovery plan for the species (Service 2001, pp. 31-32) call for a
minimum of three populations, each containing at least three
subpopulations, in each of two recovery units. Within each
subpopulation there should be at least two breeding areas, each fed by
separate seeps and springs. Management and protection of all known
occupied areas are necessary to meet these goals.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as buildings, paved areas, and
other structures and features that lack the PCEs for the species. The
scale of the maps we have prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
all such developed areas. Any such structures and the land under them
inadvertently left inside critical habitat boundaries shown on the maps
of this final rule are excluded from this rule by text and are not
designated as critical habitat. Therefore, Federal actions limited to
these areas would not trigger section 7 consultation, unless they
affect the species and/or PCEs in critical habitat.
Units were identified based on sufficient PCEs being present to
support Hine's emerald dragonfly life processes. All units contain all
PCEs and support multiple life processes.
A brief discussion of each area designated as critical habitat is
provided in the unit descriptions below. Additional detailed
documentation concerning the essential nature of these areas is
contained in our supporting record for this rulemaking.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing contain the features
essential to the conservation of the species and whether they may
require special management considerations or protections. At the time
of listing, the Hine's emerald dragonfly was known to occur in Illinois
and Wisconsin. As discussed in more detail in the proposed critical
habitat designation (July 16, 2006; 71 FR 42442) and in the unit
descriptions below, we find that the areas we are designating may
require special management considerations or protections due to threats
to the species or its habitat. Such management considerations and
protections include: management of invasive species and all terrain
vehicle use and protection of habitat from threats of commercial and
residential development, alteration of water regimes, contamination,
and recreational activities.
Critical Habitat Designation
We are designating 22 units as critical habitat for the Hine's
emerald dragonfly. The critical habitat areas described below
constitute our best assessment at this time of areas determined to be
occupied at the time of listing, that contain the PCEs essential for
the conservation of the species, and that may require special
management, and those additional areas not occupied at the time of
listing but that have been determined to be essential to the
conservation of the Hine's emerald dragonfly. Management and protection
of all the areas is necessary to achieve the conservation biology
principles of representation, resiliency, and redundancy (Shaffer and
Stein 2000) as represented in the recovery criteria established in the
recovery plan for the species.
Table 1 shows the units that were occupied at the time of listing
and those that are currently occupied but were not identified at the
time of listing. Table 2 identifies the areas that meet the definition
of critical habitat but were excluded from final critical habitat based
on their species-specific management plans or partnerships.
[[Page 51117]]
Table 1.--Units That Were Occupied by the Hine's Emerald Dragonfly at the Time of Listing or Are Currently
Occupied
----------------------------------------------------------------------------------------------------------------
Occupied at Occupied
Unit time of listing currently Acres/hectares
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1.............................................. X ............... 419/170
Illinois Unit 2.............................................. X ............... 439/178
Illinois Unit 3.............................................. X ............... 337/136
Illinois Unit 4.............................................. X ............... 607/246
Illinois Unit 5.............................................. X ............... 326/132
Illinois Unit 6.............................................. X ............... 387/157
Illinois Unit 7.............................................. X ............... 480/194
Michigan Unit 3.............................................. ............... X 50/20
Michigan Unit 4.............................................. ............... X 959/388
Michigan Unit 5.............................................. ............... X 156/63
Michigan Unit 6.............................................. ............... X 220/89
Wisconsin Unit 1............................................. ............... X 157/64
Wisconsin Unit 2............................................. X ............... 814/329
Wisconsin Unit 3............................................. X ............... 66/27
Wisconsin Unit 4............................................. ............... X 407/165
Wisconsin Unit 5............................................. X ............... 3,093/1,252
Wisconsin Unit 6............................................. X ............... 230/93
Wisconsin Unit 7............................................. X ............... 352/142
Wisconsin Unit 8............................................. ............... X 70/28
Wisconsin Unit 9............................................. ............... X 1,193/483
Wisconsin Unit 10............................................ ............... X 2,312/936
Wisconsin Unit 11............................................ ............... X 147/59
----------------------------------------------------------------------------------------------------------------
Table 2.--Areas Determined To Meet the Definition of Critical Habitat for the Hine's Emerald Dragonfly That Were
Excluded From the Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Definitional
Geographic area areas (acres/ Area excluded from final Reason*
hectares) designation (acres/hectares)
----------------------------------------------------------------------------------------------------------------
Michigan Unit 1............................ 9,452/3,825 All................................ 1
Michigan Unit 2............................ 3,511/1,421 All................................ 1
Missouri Unit 1............................ 90/36 All................................ 1
Missouri Unit 2............................ 34/14 All................................ 1
Missouri Unit 3............................ 18/7 All................................ 2, 3
Missouri Unit 4............................ 14/6 All................................ 1
Missouri Unit 5............................ 50/20 All................................ 1
Missouri Unit 6............................ 22/9 All................................ 2, 3
Missouri Unit 7............................ 33/13 All................................ 1
Missouri Units 8, 9, 10.................... 333/135 All................................ 1, 2, 3
Missouri Unit 11........................... 113/46 All................................ 1, 2, 3
Missouri Unit 12........................... 50/20 All................................ 2, 3
Missouri Unit 13........................... 30/12 All................................ 2, 3
Missouri Unit 14........................... 14/5 All................................ 2, 3
Missouri Unit 15........................... 11/4 All................................ 2, 3
Missouri Unit 16........................... 4/2 All................................ 1
Missouri Units 17 and 18................... 224/91 All................................ 1, 2, 3
Missouri Units 19 and 20................... 115/47 All................................ 2, 3
Missouri Unit 21........................... 6/2 All................................ 1
Missouri Unit 22........................... 32/13 All................................ 1
Missouri Units 23 and 24................... 75/31 All................................ 1
Missouri Unit 25........................... 33/13 All................................ 1
Missouri Unit 26........................... 5/2 All................................ 1
--------------------------------------------------------------------
Total.................................. 14,269/5,774 14,269/5,774....................... ..............
----------------------------------------------------------------------------------------------------------------
* 1 = species specific management plan in place; 2 = potential loss of partnership with private land owner; 3 =
existing strong working relationship between MDC and private land owners.
Table 3 provides the approximate area encompassed within each
critical habitat unit determined to meet the definition of critical
habitat for the Hine's emerald dragonfly.
[[Page 51118]]
Table 3.--Critical Habitat Units Designated for the Hine's Emerald Dragonfly
----------------------------------------------------------------------------------------------------------------
Local and
State land private land Total (acres/
Unit (acres/ (acres/ hectares)
hectares) hectares)
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1................................................. .............. 419/170 419/170
Illinois Unit 2................................................. .............. 439/178 439/178
Illinois Unit 3................................................. .............. 337/136 337/136
Illinois Unit 4................................................. .............. 607/246 607/246
Illinois Unit 5................................................. .............. 326/132 326/132
Illinois Unit 6................................................. .............. 387/157 387/157
Illinois Unit 7................................................. 130/53 350/142 480/194
Michigan Unit 3................................................. 23/9 27/11 50/20
Michigan Unit 4................................................. 875/354 84/34 959/388
Michigan Unit 5................................................. 65/26 91/37 156/63
Michigan Unit 6................................................. .............. 220/89 220/89
Wisconsin Unit 1................................................ 42/17 115/47 157/64
Wisconsin Unit 2................................................ 32/13 782/316 814/329
Wisconsin Unit 3................................................ .............. 66/27 66/27
Wisconsin Unit 4................................................ .............. 407/165 407/165
Wisconsin Unit 5................................................ 816/330 2277/922 3,093/1,252
Wisconsin Unit 6................................................ 200/81 30/12 230/93
Wisconsin Unit 7................................................ .............. 352/142 352/142
Wisconsin Unit 8................................................ .............. 70/28 70/28
Wisconsin Unit 9................................................ 684/277 509/206 1,193/483
Wisconsin Unit 10............................................... 1512/612 800/324 2,312/936
Wisconsin Unit 11............................................... .............. 147/59 147/59
-----------------------------------------------
Total....................................................... 4,379/1,772 8,842/3,578 13,221/5,350
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the Hine's emerald
dragonfly, below.
Illinois Unit 1--Will County, Illinois
Illinois Unit 1 consists of 419 ac (170 ha) in Will County,
Illinois. This unit was occupied at the time of listing and includes
the area where the Hine's emerald dragonfly was first collected in
Illinois as well as one of the most recently discovered locations in
the State. All PCEs for the Hine's emerald dragonfly are present in
this unit. Adults and larvae are found within this unit. The unit
consists of larval and adult habitat with a mosaic of upland and
wetland communities, including fen, marsh, sedge meadow, and dolomite
prairie. The wetlands are fed by groundwater that discharges into the
unit from seeps and upwelling that have formed small, flowing streamlet
channels that contain crayfish burrows. Known threats to the PCEs in
this unit that may require special management include ecological
succession and encroachment of invasive species; illegal all-terrain
vehicles; utility and road construction and maintenance; management and
land use conflicts; and groundwater depletion, alteration, and
contamination. The majority of the unit is a dedicated Illinois Nature
Preserve that is managed and leased by the Forest Preserve District of
Will County. Although a current management plan is in place, it does
not specifically address the Hine's emerald dragonfly or its PCEs. This
unit also consists of a utility easement that contains electrical
transmission and distribution lines and a railroad line used to
transport coal to a power plant. In addition, a remaining small portion
of this unit is located between a sewage treatment facility and the Des
Plaines River. This unit is planned to be incorporated in a HCP that is
being pursued by a large partnership, which includes the landowners of
this unit. Though we are pleased with the progress made to date on the
HCP, it is still far from complete. It is too early to judge its
ultimate outcome.
Illinois Unit 2--Will County, Illinois
Illinois Unit 2 consists of 439 ac (178 ha) in Will County,
Illinois. This unit was occupied at the time of listing and has
repeated adult and larval observations. All PCEs for the Hine's emerald
dragonfly are present in this unit. The unit consists of larval and
adult habitat with a mosaic of plant communities including fen, marsh,
sedge meadow, and dolomite prairie. The wetlands are fed by groundwater
that discharges into the unit from seeps and upwelling that have formed
small flowing streamlet channels that contain crayfish burrows. Known
threats to the PCEs in this unit that may require special management
include ecological succession and encroachment of invasive species;
utility and road construction and maintenance; management and land use
conflicts; and groundwater depletion, alteration, and contamination.
The unit is privately owned and includes a utility easement that
contains electrical transmission and distribution lines and a railroad
line used to transport coal to a power plant. This unit is planned to
be incorporated in a HCP that is being pursued by a large partnership,
which includes the landowners of this unit. Though we are pleased with
the progress made to date on the HCP, it is still far from complete. It
is too early to judge its ultimate outcome.
Illinois Unit 3--Will County, Illinois
Illinois Unit 3 consists of 337 ac (136 ha) in Will County,
Illinois. This unit was occupied at the time of listing and includes
one of the first occurrences of Hine's emerald dragonfly known after
the discovery of the species in Illino