[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 Illinois. 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 upland and wetland communities
including fen, sedge meadow, marsh, 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
[[Page 51119]]
succession and encroachment of invasive species; 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 owned and
managed 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. This unit also consists of a utility
easement that contains electrical transmission and distribution lines.
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 4--Will and Cook Counties, Illinois
Illinois Unit 4 consists of 607 ac (246 ha) in Will and Cook
Counties in Illinois. This unit was occupied at the time of listing and
includes one of the first occurrences of Hine's emerald dragonfly that
was verified after the discovery of the species in Illinois. All PCEs
for the Hine's emerald dragonfly are present in this unit. Repeated
observations of both adult and larval Hine's emerald dragonfly have
been made in this unit. The unit consists of larval and adult habitat
with a mosaic of upland and wetland communities including fen, 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 owned and managed by the Forest Preserve District of Will
County and the Forest Preserve District of Cook County. Construction of
the Interstate 355 extension began in 2005 and the corridor for this
project intersects this unit at an elevation up to 67 ft (20 m) above
the ground to minimize potential impacts to Hine's emerald dragonflies.
This unit also consists of a utility easement that contains electrical
transmission lines.
Illinois Unit 5--DuPage County, Illinois
Illinois Unit 5 consists of 326 ac (132 ha) in DuPage County,
Illinois. This unit was occupied at the time of listing and has
repeated adult 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 upland and wetland 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 majority of the unit is owned and
managed by the Forest Preserve District of DuPage County. This unit
also consists of a railroad line and a utility easement with electrical
transmission lines.
Illinois Unit 6--Cook County, Illinois
Illinois Unit 6 consists of 387 ac (157 ha) in Cook County,
Illinois. This unit was occupied at the time Hine's emerald dragonfly
was listed. All PCEs for the Hine's emerald dragonfly are present in
this unit. There have been repeated adult observations as well as
observations of teneral adults and male territorial patrols suggesting
that breeding is occurring within a close proximity. The unit consists
of larval and adult habitat with a mosaic of upland and wetland plant
communities including fen, marsh, and sedge meadow. The wetlands are
fed by groundwater that discharges into the unit from seeps 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 area within this unit is owned and managed by the
Forest Preserve District of Cook County.
Illinois Unit 7--Will County, Illinois
Illinois Unit 7 consists of 480 ac (194 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 Illinois. All PCEs for the Hine's
emerald dragonfly are present in this unit. Adults and larvae have been
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;
utility and road construction and maintenance; management and land use
conflicts; and groundwater depletion, alteration, and contamination. A
portion of the unit is a dedicated Illinois Nature Preserve that is
managed and owned by the ILDNR. This unit also consists of a railroad
line and a utility easement that contains electrical distribution
lines. This unit is planned to be incorporated in an 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.
Michigan Unit 3--Mackinac County, Michigan
Michigan Unit 3 consists of 50 ac (20 ha) in Mackinac County on
Bois Blanc Island in Michigan. This area was not known to be occupied
at the time of listing but is currently occupied. All PCEs for the
Hine's emerald dragonfly are present in this unit. The unit contains
one breeding area for Hine's emerald dragonfly with male territorial
patrols and more than 10 adults observed in 1 year. The unit contains a
small fen that is directly adjacent to the Lake Huron shoreline and
forested dune and swale habitat that extends inland. The unit contains
seeps and small fens, some areas with marl. Threats to the unit include
maintenance of utility and road right of way, and development of
private lots and septic systems. Road work and culvert maintenance
could change the hydrology of the unit. Approximately half of the unit
is owned by the State of Michigan, the remaining portion of the area is
owned by The Nature Conservancy or is subdivided private land. This
unit is essential to the conservation of the species because it
provides habitat essential to accommodate populations of the species to
meet the conservation principles of redundancy and resiliency
throughout the species range.
Michigan Unit 4--Presque Isle County, Michigan
Michigan Unit 4 consists of 959 ac (388 ha) in Presque Isle County
in the
[[Page 51120]]
northern lower peninsula of Michigan. This area was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. The unit
contains one breeding area for Hine's emerald dragonfly, with female
oviposition and adults observed in more than 1 year. The unit contains
a fen with seeps and crayfish burrows present. The fen has stunted,
sparse white cedar and marl flats dominated by spike rush (Eleocharis).
The threats to Hine's emerald dragonflies in this unit are unknown. The
majority of this unit is a State park owned by the MIDNR, the remainder
of the unit is privately owned. This unit is essential to the
conservation of the species because it provides habitat essential to
accommodate populations of the species to meet the conservation
principles of redundancy and resiliency throughout the species range.
Michigan Unit 5--Alpena County, Michigan
Michigan Unit 5 consists of 156 ac (63 ha) in Alpena County in the
northern lower peninsula of Michigan. This area was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. The unit
contains one breeding area for Hine's emerald dragonfly, with adults
observed in more than one year and crayfish burrows present. The unit
contains a mixture of northern fen and wet meadow habitats that are
used by breeding and foraging Hine's emerald dragonfly. Threats to this
unit include possible hydrological modification due to outdoor
recreational vehicle use and a nearby roadway. The majority of the site
is privately owned and the remaining acreage is owned by the State of
Michigan. This unit is essential to the conservation of the species
because it provides habitat essential to accommodate populations of the
species to meet the conservation principles of redundancy and
resiliency throughout the species range.
Michigan Unit 6--Alpena County, Michigan
Michigan Unit 6 consists of 220 ac (89 ha) in Alpena County in the
northern lower peninsula of Michigan. This area was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. The unit
contains one breeding area for Hine's emerald dragonfly, with male
territorial patrols and adults observed. The unit contains a marl fen
with numerous seeps and rivulets important for breeding and foraging
Hine's emerald dragonfly. In the area of this unit, trash dumping, home
development, and outdoor recreational vehicles were observed impacting
similar habitat. The unit is owned by a private group. This unit is
essential to the conservation of the species because it provides
habitat essential to accommodate populations of the species to meet the
conservation principles of redundancy and resiliency throughout the
species range.
Wisconsin Unit 1--Door County, Wisconsin
Wisconsin Unit 1 consists of 157 acres (64 hectares) on Washington
Island in Door County, Wisconsin. This unit was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. Three adults
were observed at this site in July 2000, as well as male territorial
patrols and female ovipositioning behavior; crayfish burrows, seeps,
and rivulet streams are present. The unit consists of larval and adult
habitat including boreal rich fen, northern wet-mesic forest, emergent
aquatic marsh on marl substrate, and upland forest. Known threats to
the PCEs include loss of habitat due to residential development,
invasive plants, alteration of the hydrology of the marsh (low Lake
Michigan water levels can result in drying of the marsh), contamination
of groundwater, and logging. A portion of one State Natural Area owned
by the Wisconsin Department of Natural Resources occurs within the
unit; the remainder of the unit is privately owned. This unit is
essential to the conservation of the species because it provides
habitat essential to accommodate populations of the species to meet the
conservation principles of redundancy and resiliency throughout the
species range.
Wisconsin Unit 2--Door County, Wisconsin
Wisconsin Unit 2 consists of 814 acres (329 hectares) in Door
County, Wisconsin. This unit was occupied at the time of listing. All
PCEs for the Hine's emerald dragonfly are present in this unit. The
first adult recorded in Wisconsin was from this unit in 1987. Exuviae
and numerous male and female adults have been observed in this unit.
The unit, which encompasses much of the Mink River Estuary, contains
larval and adult habitat including wet-mesic and mesic upland forest
(including white cedar wetlands), emergent aquatic marsh, and northern
sedge meadows. Known threats to the PCEs that may require special
management include loss of habitat due to residential development,
invasive plants, alteration of wetland hydrology, contamination of the
surface and ground water, and logging. The majority of the land in this
unit is owned by The Nature Conservancy and other private landowners
with a small portion of the unit owned by the State. Forest areas with
100 percent canopy that occur greater than 328 ft (100 m) from the open
forest edge of the unit are not considered critical habitat.
Wisconsin Units 3, 4, 5, 6, and 7--Door County, Wisconsin
Wisconsin Units 3 through 7 are located in Door County, Wisconsin
and comprise the following areas: Unit 3 consists of 66 ac (27 ha);
Unit 4 consists of 407 ac (165 ha); Unit 5 consists of 3,093 ac (1,252
ha); Unit 6 consists of 230 ac (93 ha); and Unit 7 consists of 352 ac
(142 ha). Units 3, 5, 6, and 7 were occupied at the time of listing.
Unit 4 was not known to be occupied at the time of listing but is
currently occupied. All of the units are within 2.5 mi (4 km) of at
least one other unit, making exchange of dispersing adults likely
between units. All PCEs for the Hine's emerald dragonfly are present in
all of the units. Adult numbers recorded from these units vary.
Generally fewer than 8 adults have been observed at Units 4, 6, and 7
during any one season. A study by Kirk and Vogt (1995, pp. 13-15)
reported a total adult population in the thousands in Units 3 and 5.
Male and female adults have been observed in all the units. Adult
dragonfly swarms commonly occur in Unit 5. Swarms ranging in size from
16 to 275 dragonflies and composed predominantly of Hine's emerald
dragonflies were recorded from a total of 20 sites in and near Units 5
and 6 during 2001 and 2002 (Zuehls 2003, pp. iii, 19, 21, and 43). In
addition, the following behaviors and life stages of Hine's emerald
dragonflies have been recorded from the various units: Unit 3--mating
behavior, male patrolling behavior, crayfish burrows, exuviae, and
female ovipositioning (egg-laying); Unit 4--larvae and exuviae; Unit
5--teneral adults, mating behavior, male patrolling, larvae, female
ovipositioning (egg-laying), and crayfish burrows; and Unit 6--mating
behavior, evidence of ovipositioning, and crayfish burrows.
Unit 5 contains two larval areas, while Units 3, 4, 5, 6, and 7
each contain one larval area. Units 3 through 7 all include adult
habitat, which varies from unit to unit but generally includes boreal
rich fen, northern wet-mesic forest (including white cedar wetlands),
upland forest, shrub-scrub wetlands,
[[Page 51121]]
emergent aquatic marsh, and northern sedge meadow. Known threats to the
PCEs that may require special management include loss of habitat due to
residential and commercial development, ecological succession, invasive
plants, utility and road construction and maintenance, alteration of
the hydrology of wetlands (e.g., via quarrying or beaver impoundments),
contamination of the surface and ground water (e.g., via pesticide use
at nearby apple/cherry orchards (Unit 7)), agricultural practices, and
logging. The majority of the land in the unit is conservation land in
public and private ownership; the remainder of the land is privately
owned. Forest areas with 100 percent canopy that occur greater than 328
ft (100 m) from the open forest edge of the unit but that are too small
for us to map out are not considered critical habitat. Unit 4 is
essential to the conservation of the species because it provides
habitat essential to accommodate populations of the species to meet the
conservation principles of redundancy and resiliency throughout the
species range.
Wisconsin Unit 8--Door County, Wisconsin
Wisconsin Unit 8 consists of 70 ac (28 ha) in Door County,
Wisconsin and includes Arbter Lake. This unit was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. Numerous male
and female adults as well as ovipositing have been observed in this
unit; crayfish burrows and rivulets are present. The unit consists of
larval and adult habitat with a mix of upland and lowland forest, and
calcareous bog and fen communities. Known threats to the PCEs include
encroachment of larval habitat by invasive plants and alteration of
local groundwater hydrology (e.g., via quarrying activities),
contamination of surface and groundwater, and logging. Land in this
unit is owned by The Nature Conservancy and other private landowners.
This unit is essential to the conservation of the species because it
provides habitat essential to accommodate populations of the species to
meet the conservation principles of redundancy and resiliency
throughout the species range.
Wisconsin Unit 9--Door County, Wisconsin
Wisconsin Unit 9 consists of 1,193 ac (483 ha) in Door County,
Wisconsin associated with Keyes Creek. This unit was not known to be
occupied at the time of listing but is currently occupied. All PCEs for
the Hine's emerald dragonfly are present in this unit. Numerous male
and female adults have been seen in this unit; ovipositing females have
been observed. Crayfish burrows are present. The unit consists of
larval and adult habitat with a mix of upland and lowland forest,
scrub-shrub wetlands, and emergent marsh. Known threats to the PCEs are
loss and/or degradation of habitat due to development, groundwater
depletion or alteration, surface and groundwater contamination,
alteration of the hydrology of the wetlands (e.g., via stream
impoundment, road construction and maintenance, and logging). The
majority of the land in this unit is a State Wildlife Area owned by the
Wisconsin Department of Natural Resources with the remainder of the
land privately owned. Forest areas with 100 percent canopy that occur
greater than 328 ft (100 m) from the open forest edge of the unit are
not considered critical habitat. This unit is essential to the
conservation of the species because it provides habitat essential to
accommodate populations of the species to meet the conservation
principles of redundancy and resiliency throughout the species range.
Wisconsin Unit 10--Ozaukee County, Wisconsin
Wisconsin Unit 10 consists of 2,312 ac (936 ha) in Ozaukee County,
Wisconsin, and includes much of Cedarburg Bog. This unit was not known
to be occupied at the time of listing but is currently occupied. All
PCEs for the Hine's emerald dragonfly are present in this unit.
Numerous male and female adults have been seen in this unit including
teneral adults; ovipositing females have been observed, as well as
larvae. Crayfish burrows are present. The unit consists of larval and
adult habitat with a mix of shrub-carr, ``patterned'' bog composed of
forested ridges and sedge mats, wet meadow, and lowland forest. The
majority of area in the unit is State land and the remainder of the
land is privately owned. This unit is essential to the conservation of
the species because it provides habitat essential to accommodate
populations of the species to meet the conservation principles of
redundancy and resiliency throughout the species range.
Wisconsin Unit 11--Door County, Wisconsin
Wisconsin Unit 11 consists of approximately 147 acres (59 hectares)
in Door County, Wisconsin. This unit was not known to be occupied at
the time of listing but is currently occupied. All PCEs for the Hine's
emerald dragonfly are present in this unit. Adults have been observed
in this unit over multiple years. Male patrolling behavior has been
observed, and crayfish burrows are present. The unit consists of larval
and adult habitat, including a floating sedge mat and lowland and
upland conifer and deciduous forest. This unit is essential to the
conservation of the species because it provides for the redundancy and
resilience of populations in this portion of the species' range, where
habitat is under threat from multiple factors. All land in the unit is
privately owned. The northern portion of the unit is owned by the Door
County Land Trust.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under current
national policy and the statutory provisions of the Act, we determine
destruction or adverse modification is determined on the basis of
whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain the
current ability for the PCEs to be functionally established) to serve
its intended conservation role for the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
the Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. This is a procedural
requirement only, as any conservation recommendations in a conference
report or opinion are strictly advisory. However, once a species
proposed for listing becomes listed, or proposed critical habitat is
designated as final, the full prohibitions of section 7(a)(2) apply to
any discretionary Federal action.
The primary utility of the conference procedures is to allow a
Federal agency to maximize its opportunity to
[[Page 51122]]
adequately consider species proposed for listing and proposed critical
habitat and to avoid potential delays in implementing their proposed
action because of the section 7(a)(2) compliance process, if we list
those species or designate critical habitat. We may conduct conferences
either informally or formally. We typically use informal conferences as
a means of providing advisory conservation recommendations to assist
the agency in eliminating conflicts that the proposed action may cause.
We typically use formal conferences when we or the Federal agency
believes the proposed action is likely to jeopardize the continued
existence of the species proposed for listing or adversely modify
proposed critical habitat.
We generally provide the results of an informal conference in a
conference report, while we provide the results of a formal conference
in a conference opinion. We typically prepare conference opinions on
proposed species or critical habitat in accordance with procedures
contained at 50 CFR 402.14, as if the proposed species were already
listed or the proposed critical habitat was already designated. We may
adopt the conference opinion as the biological opinion when the species
is listed or the critical habitat is designated, if no substantial new
information or changes in the action alter the content of the opinion
(see 50 CFR 402.10(d)).
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 the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action;
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction;
Are economically and technologically feasible; and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, some
Federal agencies may request reinitiation of consultation with us on
actions for which formal consultation has been completed, if those
actions may affect subsequently listed species or designated critical
habitat.
Federal activities that may affect the Hine's emerald dragonfly or
its designated critical habitat will require section 7 consultation
under the Act. Activities on State, tribal, local or private lands
requiring a Federal permit (such as a permit from the U.S. Army Corps
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.) or a permit from us under section 10(a)(1)(B) of the Act) or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are also subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, tribal, local, or private lands
that are not federally-funded, authorized, or permitted, do not require
section 7 consultations.
Application of the ``Adverse Modification'' Standard
For the reasons described in the Director's December 9, 2004,
memorandum, the key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would continue to serve its
intended conservation role for the species, or would retain its current
ability for the primary constituent elements to be functionally
established. Activities that may destroy or adversely modify critical
habitat are those that alter the PCEs to an extent that appreciably
reduces the conservation value of critical habitat for the Hine's
emerald dragonfly. Generally, the conservation role of Hine's emerald
dragonfly critical habitat units is to support viable core area
populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the Hine's emerald dragonfly include, but are not
limited to:
(1) Actions that would significantly increase succession and
encroachment of invasive species. Such activities could include, but
are not limited to, release of nutrients and road salt (NaCl; unless
not using road salt would result in an increased degree of threat to
human safety and alternative de-icing methods are not feasible) into
the surface water or connected groundwater at a point source or by
dispersed release (non-point source), and introduction of invasive
species through human activities in the habitat. These activities can
result in conditions that are favorable to invasive species and would
provide an ecological advantage over native vegetation, fill rivulets
and seepage areas occupied by Hine's emerald dragonfly larvae, reduce
detritus that provides cover for larvae, and reduce flora and fauna
necessary for the species to complete its life cycle. Actions that
would increase succession and encroachment of invasive species could
negatively impact the Hine's emerald dragonfly and the species'
habitat.
(2) Actions that would significantly increase sediment deposition
within the rivulets and seepage areas occupied by Hine's emerald
dragonfly larvae. Such activities could include, but are not limited
to, excessive sedimentation from livestock grazing, road construction,
channel alteration, timber harvest, all terrain vehicle use, equestrian
use, feral pig introductions, maintenance of rail lines, and other
watershed and
[[Page 51123]]
floodplain disturbances. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of Hine's emerald
dragonflies and their prey base by increasing sediment deposition to
levels that would adversely affect the organisms' ability to complete
their life cycles. Actions that would significantly increase sediment
deposition within rivulets and seepage areas could negatively impact
the Hine's emerald dragonfly and the species' habitat.
(3) Actions that would significantly alter water quantity and
quality. Such activities could include, but are not limited to,
groundwater extraction; alteration of surface and subsurface areas
within groundwater recharge areas; and release of chemicals, biological
pollutants, or heated effluents into the surface water or groundwater
recharge area at a point source or by dispersed release (non-point
source). These activities could alter water conditions such that the
conditions are beyond the tolerances of the Hine's emerald dragonfly
and its prey base, and result in direct or cumulative adverse affects
to these individuals and their life cycles. Actions that would
significantly alter water quantity and quality could negatively impact
the Hine's emerald dragonfly and the species' habitat.
(4) Actions that would significantly alter stream, streamlet, and
fen channel morphology or geometry. Such activities could include but
are not limited to, all terrain vehicle use, equestrian use, feral pig
introductions, channelization, impoundment, road and bridge
construction, mining, and loss of emergent vegetation. These activities
may lead to changes in water flow velocity, temperature, and quantity
that could negatively impact the Hine's emerald dragonfly and their
prey base and/or habitats. Actions that would significantly alter
channel morphology or geometry could negatively impact the Hine's
emerald dragonfly and the species' habitat.
(5) Actions that would fragment habitat and impact adult foraging
or dispersal. Such activities could include, but are not limited to,
road construction, destruction or fill of wetlands, and high-speed
railroad and vehicular traffic. These activities may adversely affect
dispersal, resulting in reduced fitness and genetic exchange within
populations and potentially mortality of individuals. Actions that
would fragment habitat and impact adult foraging or dispersal could
negatively impact the Hine's emerald dragonfly and the species'
habitat.
Application of Exclusions Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Secretary is afforded broad discretion, and the
Congressional record is clear that, in making a determination under the
section, the Secretary has broad discretion as to which factors to use
and how much weight will be given to any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, determine whether the benefits
of exclusion outweigh the benefits of designation. If we consider an
exclusion, then we must determine whether excluding the area would
result in the extinction of the species.
In the following sections, we address a number of general issues
that are relevant to the exclusions we are considering. In addition, we
are conducting an economic analysis of the impacts of the proposed
critical habitat designation and related factors, which will be
available for public review and comment when it is complete. Based on
public comment on that document, the proposed designation itself, and
the information in the final economic analysis, the Secretary may
exclude from critical habitat additional areas beyond those identified
in this assessment under the provisions of section 4(b)(2) of the Act.
This is also addressed in our implementing regulations at 50 CFR
424.19.
Benefits of Designating Critical Habitat
Regulatory Benefits
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on actions that may affect
critical habitat and must avoid destroying or adversely modifying
critical habitat. Prior to our designation of critical habitat, Federal
agencies consult with us on actions that may affect a listed species
and must refrain from undertaking actions that are likely to jeopardize
the continued existence of the species. Thus, the analysis of effects
to critical habitat is a separate and different analysis from that of
the effects to the species. Therefore, the difference in outcomes of
these two analyses represents the regulatory benefit of critical
habitat. For some species, and in some locations, the outcome of these
analyses will be similar, because effects on habitat will often result
in effects on the species. However, the regulatory standard is
different: the jeopardy analysis looks at the action's impact on
survival and recovery of the species, while the adverse modification
analysis looks at the action's effects on the designated habitat's
contribution to the species' conservation. This will, in many
instances, lead to different results and different regulatory
requirements.
Once an agency determines that consultation under section 7 of the
Act is necessary, the process may conclude informally when we concur in
writing that the proposed Federal action is not likely to adversely
affect critical habitat. However, if we determine through informal
consultation that adverse impacts are likely to occur, then we would
initiate formal consultation, which would conclude when we issue a
biological opinion on whether the proposed Federal action is likely to
result in destruction or adverse modification of critical habitat.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any mandatory
reasonable and prudent measures or terms and conditions. We suggest
reasonable and prudent alternatives to the proposed Federal action only
when our biological opinion results in an adverse modification
conclusion.
We believe that in many instances the regulatory benefit of
critical habitat is low when compared to voluntary conservation efforts
or management plans. The conservation achieved through implementing
HCPs or other habitat management plans is typically greater than what
we achieve through multiple site-by-site, project-by-project, section 7
consultations involving consideration of critical habitat. Management
plans may commit resources to implement long-term management and
protection to
[[Page 51124]]
particular habitat for at least one and possibly additional listed or
sensitive species. Section 7 consultations commit Federal agencies to
preventing adverse modification of critical habitat caused by the
particular project only, and not to providing conservation or long-term
benefits to areas not affected by the proposed project. Thus, any HCP
or management plan that considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the ninth circuit in the Gifford Pinchot
decision.
In providing the framework for the consultation process, the
previous section applies to all the following discussions of benefits
of inclusion or exclusion of critical habitat.
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species which may require special management considerations or
protection. In identifying those lands, the Service must consider the
recovery needs of the species, such that the habitat that is
identified, if managed, could provide for the survival and recovery of
the species. Furthermore, once critical habitat has been designated,
Federal agencies must consult with the Service under section 7(a)(2) of
the Act to ensure that their actions will not adversely modify
designated critical habitat or jeopardize the continued existence of
the species. As noted in the Ninth Circuit's Gifford Pinchot decision,
the Court ruled that the jeopardy and adverse modification standards
are distinct, and that adverse modification evaluations require
consideration of impacts to the recovery of species. Thus, through the
section 7(a)(2) consultation process, critical habitat designations
provide recovery benefits to species by ensuring that Federal actions
will not destroy or adversely modify designated critical habitat.
The identification of those lands that are necessary for the
conservation of the species can, if managed, provide for the recovery
of a species and is beneficial. The process of proposing and finalizing
a critical habitat rule provides the Service with the opportunity to
determine lands essential for conservation as well as identify the
primary constituent elements or features essential for conservation on
those lands. The designation process includes peer review and public
comment on the identified features and lands. This process is valuable
to land owners and managers in developing conservation management plans
for identified lands, as well as any other occupied habitat or suitable
habitat that may not have been included in the Service's determination
of essential habitat.
However, the designation of critical habitat does not require that
any management or recovery actions take place on the lands included in
the designation. Even in cases where consultation has been initiated
under section 7(a)(2) of the Act, the end result of consultation is to
avoid jeopardy to the species and adverse modification of its critical
habitat, but not specifically to manage remaining lands or institute
recovery actions on remaining lands. Conversely, management plans
institute proactive actions over the lands they encompass intentionally
to remove or reduce known threats to a species or its habitat and,
therefore, implement recovery actions. We believe that the conservation
of a species and its habitat that could be achieved through the
designation of critical habitat, in some cases, is less than the
conservation that could be achieved through the implementation of a
management plan that includes species-specific provisions and considers
enhancement or recovery of listed species as the management standard
over the same lands. Consequently, implementation of any HCP or
management plan that considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without cooperation of non-Federal landowners. More than 60 percent of
the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about 12 percent of listed species
were found almost exclusively on Federal lands (90 to 100 percent of
their known occurrences restricted to Federal lands) and that 50
percent of federally listed species are not known to occur on Federal
lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-Federal landowners
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building
partnerships and promoting voluntary cooperation of landowners are
essential to our understanding the status of species on non-Federal
lands, and necessary for us to implement recovery actions such as
reintroducing listed species and restoring and protecting habitat.
Many non-Federal landowners derive satisfaction from contributing
to endangered species recovery. We promote these private-sector efforts
through the Department of the Interior's Cooperative Conservation
philosophy. Conservation agreements with non-Federal landowners (HCPs,
safe harbor agreements, other conservation agreements, easements, and
State and local regulations) enhance species conservation by extending
species protections beyond those available through section 7
consultations. In the past decade, we have encouraged non-Federal
landowners to enter into conservation agreements, based on the view
that we can achieve greater species conservation on non-Federal land
through such partnerships than we can through regulatory methods (61 FR
63854; December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of attracting endangered species to their property.
Mounting evidence suggests that some regulatory actions by the Federal
Government, while well-intentioned and required by law, can (under
certain circumstances) have unintended negative consequences for the
conservation of species on private lands (Wilcove et al. 1996; Bean
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al.
2003). Many landowners fear a decline in their property value due to
real or perceived restrictions on land-use options where threatened or
endangered species are found. Consequently, harboring endangered
species is viewed by many landowners as a liability. This perception
results in anti-conservation incentives, because maintaining habitats
that harbor endangered species represents a risk to future economic
opportunities (Main et al. 1999; Brook et al. 2003).
According to some researchers, the designation of critical habitat
on private lands significantly reduces the likelihood that landowners
will support and carry out conservation actions (Main et al. 1999; Bean
2002; Brook et al. 2003). The magnitude of this outcome is greatly
amplified in situations where active management
[[Page 51125]]
measures (such as reintroduction, fire management, control of invasive
species) are necessary for species conservation (Bean 2002). We believe
that the judicious use of excluding specific areas of non-federally
owned lands from critical habitat designations can contribute to
species recovery and provide a superior level of conservation than
critical habitat alone.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus
the benefits of excluding areas that are covered by partnerships or
voluntary conservation efforts can often be high.
Educational Benefits
A benefit of including lands in critical habitat is that
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for the Hine's emerald dragonfly. In general, critical habitat
designation always has educational benefits; however, in some cases,
they may be redundant with other educational effects. For example, HCPs
have significant public input and may largely duplicate the educational
benefits of a critical habitat designation. A second benefit of
including lands in critical habitat is that the designation of critical
habitat would inform State agencies and local governments about areas
that could be conserved under State laws or local ordinances.
Benefits of Excluding Lands With Approved Management Plans
The benefits of excluding lands within approved long-term
management plans from critical habitat designation include relieving
landowners, communities, and counties of any additional regulatory
burden that might be imposed by critical habitat. Many conservation
plans provide conservation benefits to unlisted sensitive species.
Imposing an additional regulatory review as a result of the designation
of critical habitat may undermine conservation efforts and partnerships
in many areas. Designation of critical habitat within the boundaries of
management plans that provide conservation measures for a species could
be viewed as a disincentive to entities currently developing these
plans or contemplating them in the future, because one of the
incentives for undertaking conservation is greater ease of permitting
where listed species will be affected. Addition of a new regulatory
requirement would remove a significant incentive for undertaking the
time and expense of management planning.
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability it
gives us to seek new partnerships with future plan participants,
including States, counties, local jurisdictions, conservation
organizations, and private landowners, which together can implement
conservation actions that we would be unable to accomplish otherwise.
Designating lands within approved management plan areas as critical
habitat would likely have a negative effect on our ability to establish
new partnerships to develop these plans, particularly plans that
address landscape-level conservation of species and habitats. By
preemptively excluding these lands, we preserve our current
partnerships and encourage additional conservation actions in the
future.
Exclusions Under Section 4(b)(2) of the Act
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 for the Hine's emerald dragonfly because we believe
that the benefits of excluding these specific areas from the
designation outweigh the inclusion of the specific areas. The
conservation actions planned and implemented for the Hine's emerald
dragonfly on Mark Twain National Forest, Hiawatha National Forest,
Missouri state owned lands, and through MDC's coordination with private
landowners in Missouri provide greater conservation benefit to the
species than would designating these areas as critical habitat. 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. We reviewed relevant information concerning other
critical habitat units to determine whether any other units, or
portions thereof, should be excluded from the final designation. No
other units were excluded from the final designation.
Federal Land Management Plans--Exclusions Under Section 4(b)(2) of the
Act
Hiawatha National Forest, Michigan
Michigan units 1 and 2 are on Hiawatha National Forest lands. The
Hiawatha National Forest contains 895,313 ac (362,320 ha) of land in
the eastern portion of the Upper Peninsula of Michigan; it is broken
into an east and west unit and contains a diversity of upland and
wetland community types. In 2006, the Hiawatha National Forest revised
its Land and Resource Management Plan (Hiawatha Forest Plan) (United
States Department of Agriculture (USDA) 2006). The Hiawatha Forest Plan
guides the National Forest's activities over the next 15 years. We
completed a section 7 consultation for the Hiawatha Forest Plan that
addresses federally listed resources, including the Hine's emerald
dragonfly. We determined in our biological opinion resulting from that
section 7 consultation that the implementation of the Plan would not
jeopardize the continued existence of the Hine's emerald dragonfly.
The Hiawatha Forest Plan contains management direction that serves
to protect and conserve Hine's emerald dragonfly breeding and foraging
habitats. Several standards, guidelines, and objectives in the Hiawatha
Forest Plan are pertinent to the Hine's emerald dragonfly (Table 4).
Standards as listed in the Hiawatha Forest Plan are required courses of
action. An amendment to the Forest Plan is required to change a
standard and this would trigger consultation with us under section 7 of
the Act. Guidelines are also strongly adhered to, and may only be
modified if site-specific conditions warrant a modification and a
rationale for a deviation is given in a National Environmental Policy
Act (NEPA) (42 U.S.C. 4321 et seq.) document. Again, section 7
consultation would be conducted, and the Service would review a
guideline deviation if one or more listed species were likely to be
impacted by the specific project. Standards and guidelines are not
voluntary actions, but rather strong commitments by the Hiawatha
National Forest to a particular management direction.
[[Page 51126]]
Table 4.--Summary of Standards and Guidelines in the Hiawatha National
Forest 2006 Forest Plan (USDA 2006) That Protect Hine's Emerald
Dragonfly and Their Habitat
------------------------------------------------------------------------
Conservation for Hine's emerald
2006 Forest plan management direction dragonfly
------------------------------------------------------------------------
Protect all known Hine's emerald Protect breeding areas.
dragonfly breeding areas (standard).
Implement signed recovery plans for Protect, restore, or enhance
threatened and endangered species breeding areas; locate new
(standard). sites; identify foraging
habitat; encourage
coordination.
Cross-country OHV travel prohibited Protect breeding and foraging
except in designated OHV area areas.
(standard).
Wetland roads, or trail crossings, will Protect breeding and foraging
preserve drainage (standard). areas.
Motorized trails should be located away Protect breeding and foraging
from Designated Wilderness and semi- areas; some breeding areas are
primitive management areas (guideline). within Designated Wilderness
Area.
Manage wilderness Areas to protect Protect breeding and foraging
biological and physical factors and areas.
Wilderness values while accommodating
recreational use (guideline).
Vegetation management activities should Protect, enhance or create new
be designed to minimize adverse breeding and foraging areas.
impacts on recreation use and wildlife
populations (guideline).
Excavated soil material (including Protect breeding areas.
spoils, drilling mud, etc.) should be
deposited in upland locations
(guideline).
Clear-cutting should not occur next to Protect breeding and foraging
woodland ponds (guideline). areas.
Road obliteration will include removing Protect, enhance, or restore
bridges, culverts and fill from breeding and foraging areas.
streams, floodplains and wetlands to
re-establish natural drainage and
restore wetlands (guideline).
Deference should be afforded to Protect breeding and foraging
implementing conservation measures for areas.
federal threatened and endangered
species when and where they conflict
with conservation measures for
unlisted species (guideline).
Non-native invasive plants within Protect, enhance, or restore
element occurrences of threatened and breeding and foraging areas.
endangered and Regional Forester
Sensitive Species should be eliminated
or controlled (guideline).
For all threatened and endangered Protect breeding and foraging
species, special closure orders may be areas.
used to protect known breeding areas,
nests, and denning sites (guideline).
Spread of existing non-native invasive Protect, enhance or restore
species is controlled using breeding and foraging areas.
permissible mechanical, biological,
and chemical controls (guideline).
Habitat in Wilderness Areas may be Enhance and restore existing
manipulated to correct conditions habitat, create additional
resulting from human influence or to habitat; some breeding areas
protect threatened and endangered are located in a designated
species (guideline). Wilderness Area.
In Candidate Research Natural Areas Protect breeding and foraging
(CRNA), motorized use should be areas; one breeding area is
prohibited except for emergency or located within a CRNA.
administrative situations (guideline).
Common variety mineral pits will not be Protect breeding and foraging
developed (guideline). areas.
------------------------------------------------------------------------
Although multiple standards and guidelines within the Hiawatha
Forest Plan relate to the Hine's emerald dragonfly, two key standards
provide strong assurances that Hine's emerald dragonflies will be
protected and managed on the Hiawatha National Forest. The standards
are: (1) All Hine's emerald dragonfly breeding sites will be protected;
and (2) signed recovery plans for federally threatened and endangered
species will be implemented (USDA 2006, p. 26). These two standards
provide greater benefit to the Hine's emerald dragonfly than critical
habitat designation. While critical habitat designation triggers the
prohibition of destruction or adverse modification of that habitat, it
does not require specific actions to restore or improve habitat. The
Hiawatha Forest Plan not only will prevent destruction of important
Hine's emerald dragonfly habitat, but also would require additional
conservation actions to help recover the species.
In addition, several activities show the Hiawatha National Forest's
commitment to the Hine's emerald dragonfly and other listed species
conservation. Over the last five years the Hiawatha National Forest has
completed several dragonfly surveys that have led to the identification
of at least two new Hine's emerald dragonfly breeding areas. In 2005,
the Hiawatha National Forest hosted a Hine's emerald dragonfly workshop
that provided critical education and outreach to Federal, State, and
private field staff. They are also actively managing or protecting
lands in an effort to help in the recovery of several other federally
listed species including the piping plover and Kirtland's warbler.
We believe that the standards and guidelines outlined in the
Hiawatha Forest Plan and the Forest's commitment to protect and recover
federally listed species through section 7(a)(1) and 7(a)(2),
adequately address identified threats to the Hine's emerald dragonfly
and its habitat. The conservation measures as outlined above provide
greater benefit to the Hine's emerald dragonfly than would designating
critical habitat on the Hiawatha National Forest. Thus the relative
benefits of designation of these lands would be diminished and limited.
(1) Benefits of Designation.
The primary effect of designating any particular area as critical
habitat is the requirement for Federal agencies to consult with us
pursuant to section 7 of the Act to ensure actions they carry out
authorize, or fund do not destroy or adversely modify designated
critical habitat. Absent critical habitat designation, Federal agencies
remain obligated under section 7 to consult with us on actions that may
affect a federally listed species to ensure such actions do not
jeopardize the species' continued existence. The Forest Service
routinely consults with us for activities on the Hiawatha National
Forest that may affect federally listed species to ensure that the
continued existence of such species is not jeopardized.
Designation of critical habitat may also provide educational
benefits by informing land managers of areas essential to the
conservation of the Hine's emerald dragonfly. In the case of Hiawatha
National Forest, there is no
[[Page 51127]]
appreciable educational benefit because the Forest managers have
already demonstrated their knowledge and understanding of essential
habitat for the species through their active recovery efforts,
consultation, and workshops. Furthermore, the benefits of including the
Hiawatha National Forest in designated critical habitat are minimal
because the Forest managers are currently implementing conservation
actions for the Hine's emerald dragonfly that equal or exceed those
that would be realized by designating critical habitat.
(2) Benefits of Exclusion.
The long standing cooperative working relationship between the
Service and Hiawatha National Forest has lead to the identification and
implementation of various recovery actions for listed species,
including Hine's emerald dragonfly. With the 2006 Forest Plan revision,
the Hiawatha National Forest reaffirmed and formalized their commitment
to recovering endangered species by stating that they will implement
the Recovery Plans for all listed species. The benefits of these
recovery activities exceed the benefits of critical habitat
designation. Exclusion would further enhance the cooperative working
relationship with the Forest Service by focusing on activities that are
designed to protect and recover Hine's emerald dragonfly.
(3) Benefits of Exclusion Outweigh the Benefits of Designation.
We believe that a critical habitat designation for the Hine's
emerald dragonfly in areas being managed by the Hiawatha and Mark Twain
Forest Plans would provide a relatively low level of additional
regulatory conservation benefit to the species and its PCEs beyond what
is already provided by existing section 7 consultation requirements due
to the physical presence of the species. Any minimal conservation
benefits that would be gained from consulting on critical habitat would
be outweighed by the benefits of avoiding the additional costs (staff
time and money) of designating and consulting on critical habitat.
These costs, while not significant, are avoidable, create very little
additional benefits to the species, and could be better used to
effectuate conservation measures on the ground. As such, we find that
the benefits of designating critical habitat for the Hine's emerald
dragonfly on Hiawatha National Forest are small in comparison to the
benefits of excluding these specific areas from the final designation.
Further, exclusions will continue to enhance the partnership efforts
with the Forest Service that are focused on conservation of the species
on the Hiawatha National Forest.
(4) Exclusions Will Not Result in Extinction of the Species.
We believe that exclusion of Michigan units 1 and 2 in Hiawatha
National Forest from critical habitat will not result in the extinction
of the Hine's emerald dragonfly because current conservation efforts
under the Land and Resource Management Plan for the Hiawatha National
Forest adequately protect essential Hine's emerald dragonfly habitat
and go beyond this to provide appropriate management to maintain and
enhance the PCEs for the Hine's emerald dragonfly. If these units were
designated as critical habitat, the designation would not have required
the implementation of conservation efforts. As such, there is no reason
to believe that this exclusion would result in extinction of the
species. We therefore have excluded the Hiawatha and Mark Twain
National Forests from the final designation of critical habitat for the
Hine's emerald dragonfly under section 4(b)(2) of the Act.
Mark Twain National Forest, Missouri
Missouri units 1, 2, 3, 5, 7, 8 (in part), 11 (in part), 21, 23,
24, 25, and 26 are on U.S. Forest Service lands in Mark Twain National
Forest. The Mark Twain National Forest contains approximately 1.5
million ac (607,028 ha) of land in southern and central Missouri. In
2005, Mark Twain National Forest revised its Land and Resource
Management Plan (Mark Twain Forest Plan) (USDA 2005, Chapter 2, pp. 1-
14). That Forest Plan, through implementation of the standards and
guidelines established for the Hine's emerald dragonfly, addresses
threats to the species on Mark Twain National Forest lands in Missouri.
We completed a section 7 consultation for the Mark Twain Forest Plan
that addresses federally listed resources, including the Hine's emerald
dragonfly. We determined in our biological opinion that the
implementation of the Mark Twain Forest Plan would not jeopardize the
continued existence of the Hine's emerald dragonfly.
The 2005 Forest Plan contains specific direction for management of
fen habitat and for fens with known or suspected populations of Hine's
emerald dragonflies (Table 4). The Plan also contains standards and
guidelines to protect soil productivity and water quality while
implementing all management actions. An amendment to the Mark Twain
Forest Plan is required to change a standard and this would trigger
consultation with us under section 7 of the Act. Guidelines are also
strongly adhered to and may only be modified if site-specific
conditions warrant and rationale for a deviation is given in a NEPA
document. Again section 7 would be conducted and the Service would
review a guideline deviation if listed species were likely to be
impacted by the specific project. Standards and guidelines are not
voluntary actions, but rather strong commitments by the Mark Twain
National Forest to a particular management direction. The specific
standards and guidelines (USDA 2005, Chapter 2, p. 8) for the Hine's
emerald dragonfly and its habitat are summarized in Table 5.
Table 5.--Summary of Standards and Guidelines in the Mark Twain National
Forest 2005 Forest Plan (USDA 2005) That Protect Hine's Emerald
Dragonfly and Their Habitat
------------------------------------------------------------------------
Conservation for Hine's emerald
2005 Forest plan management direction dragonfly
------------------------------------------------------------------------
Control nonnative, invasive and/or Protect, enhance, or restore
undesirable plant species in fen breeding and foraging areas.
habitats through the most effective
means possible while protecting water
quality (standard).
Prescribed burns on fens that harbor Protect, restore, or enhance
known or suspected populations of breeding and foraging areas.
Hine's emerald dragonfly must be
scheduled to occur from November
through April (standard).
Prohibit vehicle and heavy equipment Protect, restore, or enhance
use in fens, unless needed to improve breeding and foraging areas.
Hine's emerald dragonfly habitat
(standard).
Control unauthorized vehicle access to Protect the species and its
fens (standard). breeding and foraging habitat.
Restore local hydrology by eliminating Protect breeding and foraging
old drainage ditches or other water areas.
diversionary structures when possible
if such activities would not result in
a loss of habitat (guideline).
[[Page 51128]]
Fens that harbor known populations of Protect breeding and foraging
Hine's emerald dragonfly should be areas.
prescribe burned to control invasion
of woody species or as part of larger
landscape restoration and enhancement
projects (guideline).
------------------------------------------------------------------------
The fen standards and guidelines prohibit mechanical disturbance,
and establish buffer zones around fen edges. Certain management
activities are prohibited or modified within the buffer zones. The fen
standards and guidelines require new road design to maintain hydrologic
functioning of fens and encourage relocation of roads or restoration of
hydrology where existing roads interfere with natural water flow. The
fen standards and guidelines encourage management of fire-dependent
wetland communities with a fire regime similar to that with which the
communities evolved (USDA 2005, Chapter 2, pp. 13-14).
Implementing the Mark Twain Forest Plan's standards and guidelines
will maintain the natural hydrology, restore natural fire regimes, and
control undesirable plant species to maintain breeding and foraging
habitat identified for the Hine's emerald dragonfly on the Mark Twain
National Forest. Additionally, prohibiting mechanical disturbance in
fens will protect the integrity of crayfish burrows and maintain
important larval habitat.
In addition to the 2005 Forest Plan, the Mark Twain National Forest
completed a ``Threats Assessment of Fens Containing Hine's Emerald
Dragonfly'' in September 2005. This assessment describes threats to
individual fens and provides recommendations to eliminate or minimize
those threats. Primary recommendations are to increase the use of
prescribed fire at many fens, and construct fences to exclude all-
terrain vehicles (ATVs) and feral hogs from a few of the locations.
Potential disturbance due to equestrian use will be minimized through
coordination with the appropriate U.S. Forest Service District Office;
signs and fencing will be used, if necessary, to alleviate this threat.
Effective removal and exclusion measures will minimize threats from
feral hogs and beavers. In 2005, beavers were effectively removed from
Missouri Unit 5 where floodwater associated with a beaver dam
threatened the integrity of the adjacent fen.
We believe that the standards and guidelines outlined in the Mark
Twain Forest Plan, guidelines identified in the U.S. Forest Service's
2005 Threats Assessment, and the agency's commitment to manage and
maintain important fen habitat through section 7(a)(1) and 7(a)(2)
consultation, adequately address identified threats to the Hine's
emerald dragonfly and its habitat. The conservation measures as
outlined above provide greater benefit to the Hine's emerald dragonfly
than would designating critical habitat on the Mark Twain National
Forest. Thus the relative benefits of designation of these lands are
diminished and limited.
(1) Benefits of Designation.
The primary effect of designating any particular area as critical
habitat is the requirement for Federal agencies to consult with us
under section 7 of the Act to ensure actions they carry out, authorize,
or fund do not destroy or adversely modify designated critical habitat.
Absent critical habitat designation, Federal agencies remain obligated
under section 7 to consult with us on actions that may affect a
federally listed species to ensure such actions do not jeopardize the
species' continued existence. The Forest Service routinely consults
with us on activities on the Mark Twain National Forest that may affect
federally listed species to ensure that the continued existence of such
species is not jeopardized.
Designation of critical habitat may also provide educational
benefits by informing land managers of areas essential to the
conservation of the Hine's emerald dragonfly. In the case of Missouri,
there is no appreciable educational benefit because the Mark Twain
National Forest has already demonstrated its knowledge and
understanding of essential habitat for the species through active
recovery efforts and consultation. The Missouri public, particularly
landowners with Hine's emerald dragonfly habitat on their lands, is
also well informed about the Hine's emerald dragonfly.
Furthermore, the benefits of including the Mark Twain National
Forest in designated critical habitat would be minimal because the
Forest is currently implementing conservation actions for the Hine's
emerald dragonfly and its habitat that are beyond those that would be
realized if critical habitat were designated.
(2) Benefits of Exclusion.
The longstanding cooperative working relationship between the
Service and the Mark Twain National Forest has lead to the
identification and implementation of various recovery actions for
listed species, including the Hine's emerald dragonfly. Mark Twain
National Forest is actively implementing actions to conserve the Hine's
emerald dragonfly on their lands, reinforcing their commitment to
actions outlined in the Forest Plan. The benefits of these recovery
activities exceed the benefits of critical habitat designation.
Exclusion would further enhance the cooperative working relationship
with the Forest Service by focusing on activities that are designed to
protect and recover the Hine's emerald dragonfly.
(3) Benefits of Exclusion Outweigh the Benefits of Designation.
We find that the benefits of designating critical habitat for the
Hine's emerald dragonfly in Mark Twain National Forest in Missouri are
small in comparison to the benefits of exclusion. Exclusion will
enhance the partnership efforts with the Forest Service focused on
conservation of the species in the State, and will ensure conservation
benefits for the species beyond those that could be required under a
critical habitat designation.
(4) Exclusions Will Not Result in Extinction of the Species.
We believe that exclusion of Missouri units 1, 2, 3, 5, 7, 8 (in
part), 11 (in part), 21, 23, 24, 25, and 26 in Mark Twain National
Forest from critical habitat will not result in the extinction of the
Hine's emerald dragonfly because current conservation efforts under the
Land and Resource Management Plan for the Mark Twain National Forest
adequately protect essential Hine's emerald dragonfly habitat and go
beyond this to provide appropriate management to maintain and enhance
the PCEs for the Hine's emerald dragonfly. If these units were
designated as critical habitat, the designation would not have required
the implementation of conservation efforts. As such, there is no reason
to believe that this exclusion would result in extinction of the
species.
[[Page 51129]]
State Land Management--Exclusions Under Section 4(b)(2) of the Act
We are excluding all State-owned land in Missouri under section
4(b)(2) of the Act based on conservation measures addressed in species-
specific management plans for state-managed lands and Missouri's state-
wide Hine's emerald dragonfly recovery plan. Missouri is the only state
within the range of the Hine's emerald dragonfly that has management
plans that specifically address conservation of the Hine's emerald
dragonfly on state lands.
Missouri units 16, 17, 18, and 22 are under MDC ownership and Unit
14 is privately owned but managed by MDC. Threats identified on land
owned and managed by MDC are feral hogs, habitat fragmentation, road
construction and maintenance, all terrain vehicles, beaver dams, and
management conflicts.
In regard to Hine's emerald dragonfly conservation, the MDC has:
(1) Developed management plans for the five conservation areas
where the Hine's emerald dragonfly has been documented (Missouri
Natural Areas Committee 2007; Missouri Department of Conservation
2007a, 1-4 pp.; 2007b, 1-3 pp.; 2007c, 1-4 pp.)
(2) Formulated best management practices (Missouri Department of
Conservation 2007d, 1-2 pp.) and department guidelines (Missouri
Department of Conservation 2007e, 1-3 pp.); and
(3) Developed a state-wide recovery plan for the Hine's emerald
dragonfly (Missouri Department of Conservation 2007f, 1-33 pp.).
These plans provide for long-term management and maintenance of fen
habitat essential for larval development and adjacent habitat that
provides for foraging and resting needs for the species. Areas of
management concern include the fen proper, adjacent open areas for
foraging, adjacent shrubs, and a 328 ft (100 m) forest edge buffer to
provide habitat for resting and predator avoidance. Based on initial
groundwater recharge delineation studies by Aley and Aley (2004, p.
22), the 328 ft (100 m) buffer will also facilitate the maintenance of
the hydrology associated with each unit. Actions outlined in area
management plans and the state recovery plan for the Hine's emerald
dragonfly address threats to habitat by preventing the encroachment of
invasive woody plants (ecological succession), and by maintaining open
conditions of the fen and surrounding areas with prescribed fire and
stand improvement through various timber management practices.
In addition to site-specific plans, there is also a state-wide
recovery plan (Missouri Department of Conservation 2007f) outlines
objectives for conserving the Hine's emerald dragonfly on state managed
and privately owned property in Missouri (Table 6). The recovery plan
includes a budget for Fiscal Years 2006 to 2012, showing MDC's
commitment to acquire the funds necessary to implement these actions.
The MDC coordinated closely with the Service in developing the site-
specific plans and the state-wide Hine's emerald dragonfly recovery
plan and the recommended conservation measures within it. We believe
that by implementing those recommended conservation actions in Missouri
we can achieve recovery of the species in the state.
Table 6.--Summary of Objectives in MDC's Recommendations for Recovery of
Hine's Emerald Dragonfly and Ozark Fen Communities in Missouri (FY08-
FY12)
------------------------------------------------------------------------
Conservation benefit for Hine's
MDC recovery plan objective emerald dragonfly
------------------------------------------------------------------------
Maintain the natural integrity of Ozark Protect, restore, or enhance
fen communities by decreasing exotic, breeding and foraging areas.
feral, domestic, and undesirable
native animal and plant populations
specifically when those populations
threaten Ozark fens, associated
natural communities, and habitats
essential for the life requirements of
the dragonfly.
Restore local hydrology and protect Protect, enhance, or restore
groundwater contribution areas by breeding and foraging areas.
eliminating past drainage improvements
and ensuring developments do not
adversely affect fen recharge areas.
Prohibit vehicle operation in fens Protect breeding and foraging
unless specifically authorized or areas.
prescribed for Ozark fen restoration
actions and Hine's emerald dragonfly
habitat improvement projects.
Ensure that recreational overuse does Protect breeding and foraging
not impact Ozark fen communities. areas.
Develop public outreach materials and Protect, enhance, or restore
solutions to advance the conservation breeding and foraging areas.
of Hine's emerald dragonfly and Ozark
fen communities.
Manage fire-dependent wetland Protect, enhance, or restore
communities with a fire regime similar breeding and foraging areas.
to that in which the natural
communities evolved and developed.
Monitor fen water quality, identify Protect, enhance, or restore
potential pollutants, and develop breeding and foraging areas.
strategies to abate damages.
Increase connectivity within Ozark fen Enhance breeding and foraging
complexes. areas.
------------------------------------------------------------------------
Numerous agencies and groups are working together to alleviate
threats to the Hine's emerald dragonfly in Missouri. These cooperating
partners include conservation area managers, the MDC's Private Land
Services (PLS) Division and Natural History biologists, MDC's Recovery
Coordinator for the species, the Service, the Missouri Hine's Emerald
Dragonfly Workgroup, and the Federal Hine's Emerald Dragonfly Recovery
Team (Recovery Team).
We believe that management guidelines outlined in the conservation
area plans and natural area plans, the BMPs, the state-wide recovery
plan for the Hine's emerald dragonfly, and the close coordination among
the various agencies mentioned above (plus other identified species
experts as needed), adequately address identified threats to Hine's
emerald dragonfly and its habitat on MDC lands. The conservation
measures as outlined above provide greater benefit to the Hine's
emerald dragonfly than would designating critical habitat on Missouri
state-managed lands. Thus the relative benefits of designation of these
lands are diminished and limited.
(1) Benefits of Designation.
The primary effect of designating any particular area as critical
habitat is the requirement for Federal agencies to consult with us
under section 7 of the Act to ensure actions they carry out, authorize,
or fund do not destroy or adversely modify designated critical
[[Page 51130]]
habitat. Absent critical habitat designation, Federal agencies remain
obligated under section 7 to consult with us on actions that may affect
a federally listed species to ensure such actions do not jeopardize the
species' continued existence.
Designation of critical habitat may also provide educational
benefits by informing land managers of areas essential to the
conservation of the Hine's emerald dragonfly. In the case of Missouri,
there is no appreciable educational benefit because the MDC has already
demonstrated its knowledge and understanding of essential habitat for
the species through active recovery efforts and consultation.
Furthermore, the benefits of including State-managed lands in
Missouri in designated critical habitat would be minimal because the
land managers/landowners are currently implementing conservation
actions for the Hine's emerald dragonfly and its habitat that are
beyond those that could be required if critical habitat were
designated.
(2) Benefits of Exclusion.
Excluding State-owned lands in Missouri from critical habitat
designation will sustain and enhance the already robust working
relationship between the Service and MDC. The State has a strong
history of conserving the Hine's emerald dragonfly and other federally
listed species. The MDC is committed to continued conservation for the
Hine's emerald dragonfly through its state management plan for the
species. The Service's willingness to work closely with MDC on
innovative ways to manage federally listed species will continue to
reinforce those conservation efforts.
(3) Benefits of Exclusion Outweigh the Benefits of Designation.
We find that the benefits of designating critical habitat for the
Hine's emerald dragonfly on State lands in Missouri are small in
comparison to the benefits of exclusion. Exclusion will enhance the
partnership efforts with the MDC focused on conservation of the species
in the State, and secure conservation benefits for the species beyond
those that could be required under a critical habitat designation.
(4) Exclusions Will Not Result in Extinction of the Species.
We believe that excluding the Missouri units under MDC ownership
(units 16, 17, 18, and 22) and Unit 14, that is privately owned but
managed by MDC, from critical habitat would not result in the
extinction of Hine's emerald dragonfly because current conservation
efforts under the Conservation and Natural Area Plans and other Plans
by the MDC adequately protect essential Hine's emerald dragonfly
habitat and provide appropriate management to maintain and enhance the
PCEs for the Hine's emerald dragonfly. In addition, conservation
partnerships on non-Federal lands are important conservation tools for
this species in Missouri that could be negatively affected by the
designation of critical habitat. As such, there is no reason to believe
that this exclusion would result in extinction of the species.
Private Land Management--Exclusions Under Section 4(b)(2) of the Act
We are excluding all private land in Missouri under section 4(b)(2)
of the Act based on the cooperative conservation partnership with
private landowners in Missouri. Missouri units 2 (in part), 4, 6, 8 (in
part), 9, 10, 11 (in part), 12, 13, 15, 19, and 20 are under private
ownership.
The Nature Conservancy manages Grasshopper Hollow (in Unit 11) in
accordance with the Grasshopper Hollow Management Plan (The Nature
Conservancy 2006, p. 1-4) to maintain fen habitat. The plan includes
management goals that specifically address the Hine's emerald dragonfly
and its habitat: (1) Sustain the high quality fen complex, with a full
suite of fen biota; (2) Restore the fen system in suitable drained
fields at the north end of Doe Run lands; and (3) Ensure the long term
viability of healthy populations of the Hine's emerald dragonfly.
Threats to the species identified on private land are feral hogs,
habitat fragmentation, road construction and maintenance, ecological
succession, all terrain vehicles, beaver dams, utility maintenance,
application of herbicides, and change in ownership. All threats listed
above for private property in Missouri are addressed in the Missouri
Department of Conservation's state-wide recovery plan for the Hine's
emerald dragonfly (Missouri Department of Conservation 2007f, 1-33pp)
and through close coordination between personnel with the MDC's PLS
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 fens occupied by Hine's emerald dragonflies that
benefit the species and alleviate potential threats. The Missouri
Department of Conservation (2007d, 1-2pp) has developed BMPs for the
Hine's emerald dragonfly, which further displays the agencies
dedication to conserving the species and its habitat on both State and
private land. These BMPs and close coordination with MDC's Recovery
Leader for Hine's emerald dragonflies have resulted in the
implementation of various activities on private property to benefit the
species or minimize potential threats. Current and ongoing conservation
actions on private lands include the following: Developing private land
partner property plans; providing landowners with technical support
through ongoing site visits; providing grazing and forage harvesting
recommendations to minimize potential fen damage; excluding heavy
equipment from fen habitat; placing signs on fen habitat alerting land
owners to the sensitivity of this natural community; providing public
land owners with public outreach regarding the life history
requirements of Hine's emerald dragonflies and the sensitivity of its
unique habitat; providing recommendations on the control of beavers,
which are harmful to delicate fen habitat; providing education on the
need and correct use of prescribed fire; excluding livestock from fens
and other wetland types; restoring fens and wetlands by restoring
hydrology or controlling invasive species and woody brush invasion;
applying appropriate nutrient and pest management on adjacent
agricultural fields to reduce runoff; implementing practices that
control erosion and prevent sediment delivery to wetlands; and when
applicable, facilitating the transfer of property from private to
public ownership. Although implementing Hine's emerald dragonfly BMPs
on private land is voluntary, the best way we have found to ensure
effective conservation on private lands is through such voluntary
actions. Private landowners are generally more receptive to voluntary
conservation actions on their lands than they are to regulated actions
or perceived regulation. The MDC has successfully conducted
conservation actions on many private land parcels and has dedicated
numerous staff hours to these actions (Table 7).
[[Page 51131]]
Table 7.--Summary of Private Land Initiatives and Average Annual
Expenditure for Hine's Emerald Dragonfly Conservation Measures Conducted
by MDC Staff on Private Lands (Since 2005)
------------------------------------------------------------------------
Average annual expenditure
Conservation action since 2005 (in MDC staff
hours)
------------------------------------------------------------------------
Landowner technical support in the form 250 hours.
of in-field consultation,
correspondence, and other
communications. Includes operations
that effect private land fens that are
known Hine's emerald dragonfly sites or
potential sites.
Farm plan development and fen 75 hours.
restoration planning for private
landowners. Includes the development of
planning documents for private
landowners that have Ozark fens.
Grazing system and forage harvesting 50 hours.
recommendations to private landowners.
Many Missouri fens are located in
pastures or hay meadows. Maintaining
stocking rates at suitable levels
benefits Ozark fens and limits
pressures associated with woody
encroachment.
Technical support to landowners directly 25 hours.
related to beaver control within Ozark
fen communities.
Technical assistance to landowners 25 hours.
regarding fencing options to exclude
cattle or combat possible ATV
incursions.
Coordination with utility companies 50 hours.
applying herbicides or operating mowing
equipment on rights-of-way that cross
private lands--activities that have the
potential to damage fen communities and
Hine's emerald dragonfly habitats.
Fen restoration demonstration projects 50 hours plus herbicide and
including woody encroachment clearing application expenses of
and herbicide application; often in $2500.00.
direct coordination with private land
partners.
Demonstration exotics control including 25 hours.
herbicide application and integrated
pest management strategy development.
Willow encroachment, reed canary grass
control, and multi-flora rose control
within fens on private lands. Several
private land fens have characteristic
infestations of undesirable species;
MDC staff have applied herbicides to
problem exotic invasive plant species
to ensure fen habitats are suitable for
Hine's emerald dragonfly.
Coordination with private landowners to 15 hours (There have only been
ensure Hine's emerald dragonfly habitat a few opportunities for this
is not impacted by pasture renovation action).
activities; includes delineation of
habitat areas with private land
partners.
Signage placement on private land fens. 15 hours.
Signage is placed on some fens when
requested by private landowners or to
engender support and understanding for
fen restoration projects.
Installation of firelines, in 15 hours.
cooperation with private landowners, on
burn units that include fen communities.
Coordination with landowners interested 40 hours.
in selling property with Ozark fens and
wetland habitats that have the
potential to support Hine's emerald
dragonfly. Includes close
communications with landowners;
interagency coordination and technical
assistance; coordination with
surveyors, real estate lawyers, and
biologists.
Presentation and outreach events 40 hours.
directed to landowners with Hine's
emerald dragonfly populations or Ozark
fen natural communities.
Media contacts (radio, television, 80 hours.
printed media) and coordination
directly related to Hine's emerald
dragonfly recovery.
Coordination with conservation agents, 40 hours.
often regarding private land fens that
may be threatened by ATV activities.
Patrols and enforcement operations...... 50 hours.
------------------------------------------------------------------------
Effective measures will continue to be incorporated to minimize
threats from feral hogs and beavers by implementing MDC's state-wide
recovery plan for the Hine's emerald dragonfly (Missouri Department of
Conservation 2007f, 1-3pp) and by providing technical assistance and
implementation assistance to private landowners through coordination
with MDC's PLS Division or Regional Natural History biologists, the
NRCS, and the Service's Partners for Fish and Wildlife Program. Utility
maintenance (Units 8 and 14) and herbicide application to maintain
power line rights-of-way (Unit 8) were identified as potential threats
at two units. Implementing the actions outlined in Missouri Department
of Conservation's state-wide recovery plan for the Hine's emerald
dragonfly and ongoing coordination among the MDC's PLS Division, MDC's
Hine's emerald dragonfly recovery coordinator, and the appropriate
utility maintenance company and its contractors will continue to
minimize potential threats (Missouri Department of Conservation 2007f,
1-3pp). The potential change in ownership on private land in Missouri
from cooperative landowners to ones who may not want to manage their
land to benefit the species is a concern on some private lands. This
issue will continue to be addressed by close coordination between new
landowners and MDC's PLS Division or their Hine's emerald dragonfly
recovery coordinator. The landowner's access to grants and technical
assistance from multiple landowner incentive programs administered
through the MDC, NRCS, and the Service's Partners for Fish and Wildlife
Program will remain a main focus of outreach to potential new private
property owners. Unit 14 is under private ownership but is a designated
State Natural Area (Missouri Natural Areas Committee 2007). An updated
plan developed for the area ensures that the integrity of the fen is
maintained (Missouri Natural Areas Committee 2007).
Personnel from MDC are currently working in cooperation with
private landowners that have important fen habitat on their lands that
support Hine's emerald dragonflies. This direct work with private
landowners allows for effective maintenance and
[[Page 51132]]
enhancement of Hine's emerald dragonfly habitat in the state. MDC is
also working toward establishing new landowner relationships and
cooperative management programs that will provide important
contributions to Hine's emerald dragonfly recovery. Because of the
close coordination and excellent working partnership of all parties
listed above, we believe that threats to Hine's emerald dragonfly and
its habitat on private property in Missouri are minimized. The
conservation measures as outlined above provide greater benefit to the
Hine's emerald dragonfly than would designating critical habitat on
private lands in Missouri. Thus the relative benefits of designation of
these lands are diminished and limited.
(1) Benefits of Designation.
The primary effect of designating any particular area as critical
habitat is the requirement for Federal agencies to consult with us
under section 7 of the Act to ensure actions they carry out, authorize,
or fund do not destroy or adversely modify designated critical habitat.
Absent critical habitat designation, Federal agencies remain obligated
under section 7 to consult with us on actions that may affect a
federally listed species to ensure such actions do not jeopardize the
species' continued existence.
Designation of critical habitat may also provide educational
benefits by informing land managers of areas essential to the
conservation of the Hine's emerald dragonfly. In the case of Missouri,
private conservation groups have already demonstrated their knowledge
and understanding of essential habitat for the species through active
recovery efforts and consultation. The Missouri public, particularly
landowners with Hine's emerald dragonfly habitat on their lands, is
also well informed about the Hine's emerald dragonfly.
Furthermore, the benefits of including several of the privately
owned areas in Missouri in designated critical habitat would have been
minimal because the land managers/landowners are currently implementing
conservation actions for the Hine's emerald dragonfly and its habitat
that are beyond those that could be required if critical habitat were
designated.
(2) Benefits of Exclusion.
We view the continued cooperative conservation partnerships with
private landowners to be essential for the conservation of the Hine's
emerald dragonfly in Missouri. The designation of critical habitat on
private lands in Missouri would harm ongoing and future partnerships
that have been or may be developed on those lands. Many private
landowners in Missouri view critical habitat negatively and believe
that such designation would impact their ability to manage their land.
This is despite many attempts at public outreach and education to the
contrary. Based on past experiences in Missouri, designation of
critical habitat would likely hamper the conservation actions that have
been initiated for the Hine's emerald dragonfly on private land through
various landowner incentive programs. The MDC has a longstanding
history of working with private landowners in Missouri, especially
regarding the conservation of federally listed species. Of the 26 units
being excluded in the State, 12 (46 percent) are on private land. The
MDC has worked closely with the NRCS to implement various landowner
incentive programs that are available through the Farm Bill.
To further facilitate the implementation of these and other
landowner incentive programs on the ground, the MDC created the PLS
Division and established 49 staff positions throughout the State. The
PLS Division works with multiple landowners within the range of the
Hine's emerald dragonfly in Missouri to undertake various conservation
actions to maintain and/or enhance fen habitat. The MDC has also worked
closely with the Service's Partners for Fish and Wildlife Program to
implement various management actions on private lands. Close
coordination between the two agencies for actions that could benefit
the species on private land will continue. The designation of critical
habitat for the Hine's emerald dragonfly on private land in Missouri
would significantly hinder the ability to implement those landowner
incentive programs with multiple landowners, which would negate
conservation benefits already initiated for the species or those
planned in the future.
The Hine's emerald dragonfly, along with other federally listed
species, is such a contentious issue in Missouri that the species is
viewed negatively by many private landowners. Multiple private
landowners have been contacted by MDC personnel to obtain permission to
survey the species on their property. In some cases, access has been
denied because of negative perceptions associated with the presence of
federally listed species on private land and the perception that all
fens currently occupied by the Hine's emerald dragonfly would be
designated as critical habitat (Bob Gillespie, MDC, pers. comm. June
2005).
Although access to survey some private land has been denied,
several landowners have conducted various management actions to benefit
the Hine's emerald dragonfly, especially in Reynolds County where the
largest amount of currently occupied habitat on privately owned land
occurs. The designation of critical habitat on such sites would have
dissolved developing partnerships and prevented the initiation of
additional conservation actions. Additionally, it is likely that the
designation of critical habitat on private land in Missouri would have
ended the cooperation associated with conservation actions already
underway (Missouri Department of Conservation, in litt. 2007).
Based on potential habitat identified by examining the Service's
National Wetland Inventory maps, there are other areas with suitable
Hine's emerald dragonfly habitat where the species may be found. Many
of these sites occur on private land. Pending further research on
currently occupied sites, especially related to population dynamics and
the role Missouri populations may play in achieving the recovery
objectives outlined in the Service's Recovery Plan (U.S. Fish and
Wildlife Service 2001, pp. 31-32), the likely discovery of additional
sites could provide significant contributions towards the range-wide
recovery of the species. Thus, continued or additional denial of access
to private property could hamper the recovery of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion.
We find that the benefits of designating critical habitat for the
Hine's emerald dragonfly in Missouri are small in comparison to the
benefits of exclusion. Exclusion will enhance the partnership efforts
with private conservation groups and private landowners focused on
conservation of the species in the State, and secure conservation
benefits for the species beyond those that could be required under a
critical habitat designation.
The benefits of designating critical habitat on private lands in
Missouri are minor compared to the much greater benefits derived from
exclusion, including the maintenance of existing, established
partnerships and encouragement of additional conservation partnerships
in the future. It is our strong belief that benefits gained through
extra outreach efforts associated with critical habitat and additional
section 7 requirements (in the limited situations where there is a
Federal nexus), are negated by the loss of current and future
conservation partnerships, especially given that
[[Page 51133]]
access to private property and the possible discovery of additional
sites in Missouri could help facilitate recovery of the species.
(4) The Exclusions Will Not Result in Extinction of the Species.
We believe that excluding the Missouri units in private ownership
(units 2 (in part), 4, 6, 8 (in part), 9, 10, 11 (in part), 12, 13, 15,
19, and 20) from critical habitat would not result in the extinction of
Hine's emerald dragonfly because current conservation efforts under The
Nature Conservancy's Management Plan for Grasshopper Hollow adequately
protect essential Hine's emerald dragonfly habitat and provide
appropriate management to maintain and enhance the PCEs for the Hine's
emerald dragonfly. In addition, conservation partnerships on non-
Federal lands are important conservation tools for this species in
Missouri that could be negatively affected by the designation of
critical habitat in Missouri, where there is an established negative
sentiment toward federal regulation for endangered species by some
private landowners. As such, there is no reason to believe that this
exclusion would result in extinction of the species.
Our economic analysis indicates an overall low cost resulting from
the designation. Therefore, we have found no areas for which the
economic benefits of exclusion outweigh the benefits of designation,
and so have not excluded any areas from this designation of critical
habitat for the Hine's emerald dragonfly based on economic impacts. In
addition, we anticipate no impact to national security, Tribal lands,
or HCPs from this critical habitat designation, and have not excluded
any lands based on those factors.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information available and
to consider the economic and other relevant impacts of designating a
particular area as critical habitat. We may exclude areas from critical
habitat upon a determination that the benefits of such exclusions
outweigh the benefits of specifying such areas as critical habitat. We
cannot exclude such areas from critical habitat when such exclusion
will result in the extinction of the species concerned. Following the
publication of the proposed critical habitat designation, we conducted
an economic analysis to estimate the potential economic effect of the
designation. The draft analysis was made available for public review on
March 20, 2007. We accepted comments on the draft analysis until April
3, 2007.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of Hine's
emerald dragonfly critical habitat. This information is intended to
assist the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
This analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The draft economic analysis forecasts the costs associated with
conservation activities for the Hine's emerald dragonfly would range
from $16.8 million to $46.7 million in undiscounted dollars over the
next 20 years. In discounted terms, potential economic costs are
estimated to be $13.3 to $34.5 million (using a 3 percent discount
rate) and $10.5 to $25.2 million (using a 7 percent discount rate). In
annualized terms, potential costs are expected to range from $0.8 to
$2.3 million annually (annualized at 3 percent) and $0.9 to $2.4
million annually (annualized at 7 percent). The Service did not exclude
any areas based on economics.
A copy of the economic analysis with supporting documents is
included in our administrative record and may be obtained by contacting
the Field Supervisor, Chicago, Illinois Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT) or by downloading from the
Internet at http://www.fws.gov/midwest/Endangered.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule because it may raise legal and policy issues. Based on
our draft economic analysis, potential post-designation (2007-2026)
costs are estimated to range from $16.8 to $46.6 million in
undiscounted 2006 dollars. In discounted terms, potential economic
costs are estimated to be $13.3 to $34.5 million (using a 3 percent
discount rate) and $10.5 to $25.2 million (using a 7 percent discount
rate). In annualized terms, potential costs are expected to range from
$0.8 to $2.3 million annually (3 percent) and $0.9 to $2.4 million
annually (at 7 percent). Therefore, we do not believe that the
designation of critical habitat for the Hine's emerald dragonfly would
result in an annual effect on the economy of $100 million or more or
affect the economy in a material way. Due to the timeline for
publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed the rule or accompanying draft
economic analysis.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Because the determination of critical habitat is
a statutory requirement under the ACT, we must then evaluate
alternative regulatory approaches, where feasible, when promulgating a
designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combination thereof, in a
designation constitutes our regulatory alternative analysis.
[[Page 51134]]
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Based upon our draft economic
analysis of the designation, we provide our analysis for determining
whether the designation of critical habitat for the Hine's emerald
dragonfly would result in a significant economic impact on a
substantial number of small entities. This determination is subject to
revision based on comments received as part of the final rulemaking.
According to the Small Business Administration (SBA), small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the Hine's emerald dragonfly critical habitat
designation would affect a substantial number of small entities, we
considered the number of small entities affected within particular
types of economic activities (such as residential and commercial
development). We considered each industry or category individually to
determine if certification is appropriate. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement; some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
the designation of critical habitat. Designation of critical habitat
only affects activities conducted, funded, permitted, or authorized by
Federal agencies; non-Federal activities are not affected.
Federal agencies must consult with us if their activities may
affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In our draft economic analysis, we evaluated the potential economic
effects on small business entities resulting from conservation actions
related to the listing of the Hine's emerald dragonfly and designation
of its critical habitat. This analysis estimated prospective economic
impacts due to the implementation of Hine's emerald dragonfly
conservation efforts in six categories: development activities, water
use, utility and infrastructure maintenance, road and railway use,
species management and habitat protection activities, and recreation.
The following is a summary of information contained in the draft
economic analysis:
(a) Development Activities
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly development-related losses ranges from $13.0
to $22.6 million (undiscounted) over 20 years, or $10.1 to 15.9 million
assuming a 3 percent discount rate and $8.0 to $11.2 assuming a 7
percent discount rate. The costs consist of the following: (1) Losses
in residential land value in Wisconsin and Michigan due to potential
limitations on residential development; (2) impacts to Material
Services Corporation (MSC) quarrying operations in Illinois; and (3)
dragonfly conservation efforts associated with the construction of the
Interstate 355 Extension. Given the small average size and value of
private land parcels in Wisconsin and Michigan, the non-institutional
landowners (those for which land value losses were computed;
institutionally owned properties do not have assessed property values)
are most likely individuals, who are not considered small entities by
the SBA. MSC has 800 employees in Illinois and Indiana, and was
recently purchased by Hanson, PLC, which has more than 27,000 employees
worldwide. The SBA Small Business Standard for Crushed and Broken
Limestone Mining and Quarrying industry sector is 500 employees.
Therefore, MSC is not considered a small entity. The conservation-
related costs associated with the construction of the Interstate 355
Extension are borne by the Illinois Tollway Authority. The Illinois
Tollway Authority does not meet the definition of a small entity. As a
result of this information, we have determined that the designation of
critical habitat for the Hine's emerald dragonfly is not anticipated to
have a significant effect on a substantial number of small development
businesses.
(b) Water Use
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly water use-related losses range from $46,000 to
$7.0 million (undiscounted) over 20 years, or $33,000 to $5.4 million
assuming a 3 percent discount rate and $21,000 to $4.0 million assuming
a 7 percent discount rate. Public water systems may incur costs
associated with drilling deep water aquifer wells. The USEPA Agency has
defined small entity water systems as those that serve 10,000 or fewer
people. None of the municipalities that could be required to construct
deep aquifer wells as a result of conservation efforts for the Hine's
emerald dragonfly has populations below 10,000. As a result of this
information, we have determined that the designation of critical
habitat for the Hine's emerald dragonfly is not anticipated to have a
substantial effect on a substantial number of small municipalities.
(c) Utility and Infrastructure Maintenance
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly utility and infrastructure maintenance-related
losses is estimated to be $1.5 million (undiscounted) over 20 years, or
$1.3 million assuming a 3 percent discount rate and $1.1 million
assuming a 7 percent discount rate. The costs are associated with
necessary utility and infrastructure maintenance using dragonfly-
sensitive procedures. Within the designated critical habitat units,
Commonwealth Edison is responsible for electrical line maintenance,
county road authorities for road maintenance, and Midwest Generation
for railroad track maintenance in Illinois Units 1 and 2. Neither
company is considered a small entity. As a result of this information,
we have determined that the designation of critical habitat for the
[[Page 51135]]
Hine's emerald dragonfly is not anticipated to have a significant
effect on a substantial number of small entities.
(d) Road and Railway Use
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly road and railway use-related losses range from
$1.7 to $15.0 million (undiscounted) over 20 years, or $1.5 to $11.7
million assuming a 3 percent discount rate and $1.3 to $8.8 million
assuming a 7 percent discount rate. The costs are associated with
necessary railway upgrades for dragonfly conservation. Midwest
Generation is responsible for railroad track improvements in Illinois.
Neither Midwest Generation nor the individual travelers who would be
affected by slower road speeds are considered small entities. As a
result of this information, we have determined that the designation of
critical habitat for the Hine's emerald dragonfly is not anticipated to
have a significant effect on a substantial number of small entities.
(e) Species Management and Habitat Protection Activities
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly species management and habitat protection-
related losses is estimated at $886,000 (undiscounted) over 20 years,
or $710,000 assuming a 3 percent discount rate and $563,000 assuming a
7 percent discount rate. The costs primarily consist of species
monitoring, maintenance of habitat, invasive species and feral hog
control, and beaver dam mitigation. Species management and habitat
protection costs will be borne by The Nature Conservancy (Wisconsin
chapter), The Ridges Sanctuary, the Service, the U.S. Forest Service,
the MIDNR, and the MDC. None of those entities meets the definition of
a small entity. As a result of this information, we have determined
that the designation of critical habitat for the Hine's emerald
dragonfly is not anticipated to have a significant effect on a
substantial number of small entities.
(f) Recreation
According to the draft economic analysis, the forecast cost of
Hine's emerald dragonfly recreation-related losses are estimated at
$19,000. Recreational off-road vehicles and equestrian activities have
the potential to alter Hine's emerald dragonfly habitat and extirpate
populations. The costs are associated with mitigating the effects of
those recreational activities. Those costs will be borne by the MIDNR,
MDC, the U.S. Forest Service, and various county police departments.
None of those entities meets the definition of a small entity. As a
result of this information, we have determined that the designation of
critical habitat for the Hine's emerald dragonfly is not anticipated to
have a significant effect on a substantial number of small entities.
Based on the previous, sector-by-sector analysis, we have
determined that this critical habitat designation would not result in a
significant economic impact on a substantial number of small entities.
Executive Order 13211
On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This final rule is considered
a significant regulatory action under E.O. 12866 due to potential novel
legal and policy issues, but it is not expected to significantly affect
energy supplies, distribution, or use. Appendix A of the draft economic
analysis provides a discussion and analysis of this determination. The
Midwest Generation facilities that rely on the transportation of coal
through Illinois Units 1 and 2 generate 1,960 megawatts of electricity.
The dragonfly conservation measures advocated by the Service, however,
are not intended to alter the operation of these facilities. Rather,
the recommended conservation activities focus on improving maintenance
and railway upgrades. Thus, no energy-related impacts associated with
Hine's emerald dragonfly conservation activities within critical
habitat units are expected. As such, the designation of critical
habitat is not expected to significantly affect energy supplies,
distribution, or use and a Statement of Energy Effects is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance; or (ii) a duty arising from
participation in a voluntary Federal program.'' The designation of
critical habitat does not impose a legally binding duty on non-Federal
government entities or private parties. Under the ACT, the only
regulatory effect is that Federal agencies must ensure that their
actions do not destroy or adversely modify critical habitat under
section 7. Non-Federal entities that receive Federal funding,
assistance, permits, or otherwise require approval or authorization
from a Federal agency for an action may be indirectly impacted by the
designation of critical habitat. However, the legally binding duty to
avoid destruction or adverse modification of critical habitat rests
squarely on the Federal agency.
Furthermore, to the extent that non-Federal entities are indirectly
impacted because they receive Federal assistance or participate in a
voluntary Federal aid program, the Unfunded Mandates Reform Act would
not apply; nor would critical habitat shift the costs of the large
entitlement programs listed above on to State governments.
(b) As discussed in the draft economic analysis of the designation
of critical habitat for the Hine's emerald dragonfly, the impacts on
nonprofits and small governments are expected to be
[[Page 51136]]
negligible. It is likely that small governments involved with
development and infrastructure projects will be interested parties or
involved with projects involving section 7 consultations for the Hine's
emerald dragonfly within their jurisdictional areas. Any costs
associated with this activity are likely to represent a small portion
of a local government's budget. Consequently, we do not believe that
the designation of critical habitat for the Hine's emerald dragonfly
will significantly or uniquely affect these small governmental
entities. As such, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Hine's emerald dragonfly in a
Takings Implications Assessment (TIA). The TIA concludes that the
designation of critical habitat for this species does not pose
significant takings implications for lands within or affected by the
designation.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this final
critical habitat designation with appropriate State resource agencies
in Illinois, Michigan, and Wisconsin. The designation of critical
habitat in areas currently occupied by the Hine's emerald dragonfly may
impose nominal additional regulatory restrictions to those currently in
place and, therefore, may have little incremental impact on State and
local governments and their activities. The designation may have some
benefit to these governments in that the areas that contain the
features essential to the conservation of the species are more clearly
defined, and the PCEs of the habitat necessary to the conservation of
the species are specifically identified. While making this definition
and identification does not alter where and what federally sponsored
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are designating critical habitat in accordance with
the provisions of the Endangered Species Act. This final rule uses
standard property descriptions and identifies the PCEs within the
designated areas to assist the public in understanding the habitat
needs of the Hine's emerald dragonfly.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands occupied at the time of listing that contain
the features essential for the conservation of the species and no
tribal lands that are unoccupied areas that are essential for the
conservation of the Hine's emerald dragonfly. Therefore, critical
habitat for the Hine's emerald dragonfly has not been designated on
Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Chicago Illinois
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT
section).
Author(s)
The primary author of this package is the Chicago, Illinois,
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. In Sec. 17.11(h), the List of Endangered and Threatened Wildlife,
revise the entry for ``Dragonfly, Hine's emerald'' under ``INSECTS'' to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 51137]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
------------------------------------------------------ Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Dragonfly, Hine's emerald....... Somatochlora U.S.A. (AL, IL, IN, NA...................... E.................. 573 17.95(i) NA
hineana. MI, MO, OH, and
WI).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95(i), add an entry for ``Hine's emerald dragonfly
(Somatochlora hineana),'' in the same alphabetical order in which this
species appears in the table at 50 CFR 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
* * * * *
Hine's emerald dragonfly (Somatochlora hineana)
(1) Critical habitat units are depicted for Cook, DuPage and Will
Counties, Illinois; Alpena, Mackinac, and Presque Isle Counties,
Michigan; and Door and Ozaukee Counties, Wisconsin, on the maps below.
(2) The PCEs of critical habitat for the Hine's emerald dragonfly
are:
(i) 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.
(ii) For adult foraging, reproduction, dispersal, and refugia
necessary for roosting, resting 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).
(3) Critical habitat does not include human-made structures
existing on the effective date of this rule and not containing one or
more of the PCEs, such as buildings, lawns, old fields, hay meadows,
fallow crop fields, manicured lawns, pastures, piers and docks,
aqueducts, airports, and roads, and the land on which such structures
are located. We define ``old field'' here as cleared areas that were
formerly forested and may have been used as crop or pasture land that
currently support a mixture of native and non-native herbs and low
shrubs. ``Fallow field'' is defined as a formerly plowed field that has
been left unseeded for a season or more and is presently uncultivated.
In addition, critical habitat does not include open-water areas (i.e.,
areas beyond the zone of emergent vegetation) of lakes and ponds.
(4) Critical habitat map units. Data layers defining map units were
created on a base of USGS 7.5' quadrangles, and critical habitat units
were then mapped using Geographical Information Systems, Universal
Transverse Mercator (UTM) coordinates. Critical habitat units are
described using the public land survey system (township (T), range (R)
and section (Sec.)).
(5) Note: Index map of critical habitat units (Index map) follows:
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(6) Illinois Units 1 through 7, Cook, DuPage, and Will Counties,
Illinois.
(i) Illinois Unit 1: Will County. Located in T36N, R10E, Sec. 22,
Sec. 27, SE\1/4\ NE\1/4\ Sec. 28, NE\1/4\ SE\1/4\ Sec. 28, NW\1/4\
NW\1/4\ Sec. 34 of the Joliet 7.5' USGS topographic quadrangle. Land
south of Illinois State Route 7, east of Illinois State Route 53, and
west of the Des Plaines River.
(ii) Illinois Unit 2: Will County. Located in T36N, R10E, Sec. 3,
NW\1/4\ E\1/2\ Sec. 10, E\1/2\ Sec. 15 of the Romeoville and Joliet
7.5' USGS topographic quadrangles. Land east of Illinois State Route
53, and west of the Des Plaines River.
(iii) Illinois Unit 3: Will County. Located in T37N, R10E, SW\1/4\
Sec. 26, NW\1/4\ SE\1/4\ Sec. 26, E\1/2\ Sec. 34, W\1/2\ NW\1/4\ Sec.
35 of the Romeoville 7.5' USGS topographic quadrangle. Land west and
north of the Des Plaines River and north of East Romeoville Road.
(iv) Illinois Unit 4: Will and Cook Counties. Located in T37N,
R10E, S\1/2\ NE\1/4\ Sec. 24, W\1/2\ SW\1/4\ Sec. 24, SE\1/4\ Sec. 24
and T37N, R11E, SW\1/4\ SW\1/4\ Sec. 17, Sec. 19, NW\1/4\ Sec. 20 of
the Romeoville 7.5' USGS topographic quadrangle. Land to the south of
Bluff Road, west of Lemont Road, and north of the Des Plaines River.
(v) Illinois Unit 5: DuPage County. Located in T37N, R11E, NW\1/4\
Sec. 15, NW\1/4\ SW\1/4\ Sec. 15, S\1/2\ NE\1/4\ Sec. 16, SW\1/4\ Sec.
16, N\1/2\ SE\1/4\ Sec. 16, SE\1/4\ Sec. 17 of the Sag Bridge 7.5' USGS
topographic quadrangle. Land to the north of the Des Plaines River.
(vi) Illinois Unit 6: Cook County. Located in T37N, R12E, S\1/2\
Sec. 16, S\1/2\ NE\1/4\ Sec. 17, N\1/2\ SE\1/4\ Sec. 17, N\1/2\ Sec. 21
of the Sag Bridge and Palos Park 7.5' USGS topographic quadrangles.
Land to the north of the Calumet Sag Channel, south of 107th Street,
and east of U.S. Route 45.
(vii) Illinois Unit 7: Will County. Located in T36N, R10E, W\1/2\
Sec. 1, Sec. 2, N\1/2\ Sec. 11 of the Romeoville and Joliet 7.5'; USGS
topographic quadrangles. Land east of the Illinois and Michigan Canal.
(viii) Note: Map of Illinois critical habitat Units 1 through 7
(Illinois Map 1) follows:
[[Page 51140]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.001
(7) Michigan Unit 3, Mackinac County, Michigan.
(i) Michigan Unit 3: Mackinac County. Located on the east end of
Bois Blanc Island. Bois Blanc Island has not adopted an addressing
system using the public land survey system. The unit is located in
Government Lots 25 and 26 of the Cheboygan and McRae Bay 7.5'; USGS
topographic quadrangles. The unit extends from approximately Walker's
Point south to Rosie Point on the west side of Bob-Lo Drive. It extends
from the road approximately 328 ft (100 m) to the west.
(ii) Note: Map of Michigan critical habitat Unit 3 (Michigan Map 1)
follows:
[[Page 51141]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.002
(8) Michigan Unit 4, Presque Isle County, Michigan.
(i) Michigan Unit 4: Presque Isle County. Located approximately 12
miles southeast of the village of Rogers City. The unit contains all of
T34N, R7E, SW\1/4\ SW\1/4\ Sec. 14, SW\1/4\ NW\1/4\ Sec. 15, NE\1/4\
SW\1/4\ Sec. 15, NW\1/4\ SE\1/4\ Sec. 15, NW\1/4\ SW\1/4\ Sec. 15,
SE\1/4\ SE\1/4\ Sec. 15, NW\1/4\ NE\1/4\ Sec. 16, NE\1/4\ NW\1/4\ Sec.
16, SE\1/4\ NE\1/4\ Sec. 16, and NW\1/4\ NW\1/4\ Sec. 23. It also
contains portions of T34N, R7E, all \1/4\ sections in Secs. 15, all \1/
4\ sections in Sec. 16, SE\1/4\ and SW\1/4\ Sec. 9, SW\1/4\ Sec. 10,
SW\1/4\ Sec. 14, NE\1/4\ Sec. 22, NW\1/4\ and NE\1/4\ Sec. 23 of the
Thompson's Harbor 7.5' USGS topographic quadrangle. The northern
boundary of the unit is Lake Huron and the southern boundary is north
of M-23.
(ii) Note: Map of Michigan critical habitat Unit 4 (Michigan Map 2)
follows:
[[Page 51142]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.003
(9) Michigan Unit 5, Alpena County, Michigan.
(i) Michigan Unit 5: Alpena County. Located approximately 9 miles
northeast of the village of Alpena. The unit contains all of T31N, R9E,
SE\1/4\ SW\1/4\ Sec. 9. It also contains portions of T31N, R9E, NW\1/4\
SW\1/4\ Sec. 9, NE\1/4\ SW\1/4\ Sec. 9, SW\1/4\ SW\1/4\ Sec. 9, SW\1/4\
SE\1/4\ Sec. 9; and portions of T31N, R9E, NE\1/4\ NW\1/4\ Sec. 16,
NW\1/4\ NE\1/4\ Sec. 16, NW\1/4\ NW\1/4\ Sec. 16 of the 7.5' USGS
topographic quadrangle North Point 7.5' USGS topographic quadrangle.
North Point Road is east of the area.
(ii) Note: Map of Michigan critical habitat Unit 5 (Michigan Map 3)
follows:
[[Page 51143]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.004
(10) Michigan Unit 6, Alpena County, Michigan.
(i) Michigan Unit 6: Alpena County. Located approximately 5 miles
east of the village of Alpena. The unit contains all of T31N, R9E,
SW\1/4\ SE\1/4\ Sec. 27. It also contains portions of T31N, R9E, NW\1/
4\ SE\1/4\ Sec. 27, NE\1/4\ SW\1/4\ Sec. 27, SE\1/4\ SW\1/4\ Sec. 27,
SE\1/4\ SE\1/4\ Sec. 27; portions of T31N, R9E, NE\1/4\ NW\1/4\ Sec.
34, NW\1/4\ NE\1/4\ Sec. 34, NE\1/4\ NE\1/4\ Sec. 34; and portions of
T31N, R9E, NW\1/4\ NW\1/4\ Sec. 35, NE\1/4\ NW\1/4\, NW\1/4\ NE\1/4\
Sec. 35 of the North Point 7.5' USGS topographic quadrangle. Lake Huron
is the east boundary of the unit.
(ii) Note: Map of Michigan critical habitat Unit 6 (Michigan Map 4)
follows:
[[Page 51144]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.005
(11) Wisconsin Unit 1, Door County, Wisconsin.
(i) Wisconsin Unit 1: Washington Island, Door County. Located in
T33N, R30E, W\1/2\ and NE\1/4\ Sec. 4, SE\1/4\ Sec. 5 of Washington
Island SE and Washington Island NE 7.5' USGS topographic quadrangles.
Lands included are located adjacent to and west of Wickman Road, south
of Town Line Road, East of Deer Lane and East Side Roads, north of Lake
View Road and include Big Marsh and Little Marsh.
(ii) Note: Map of Wisconsin critical habitat Unit 1 (Wisconsin Map
1) follows:
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[GRAPHIC] [TIFF OMITTED] TR05SE07.006
(12) Wisconsin Unit 2, Door County, Wisconsin.
(i) Wisconsin Unit 2: Door County. Located in T32N, R28E, SE\1/4\
Sec. 11, NW\1/4\ Sec. 13, NE\1/4\ Sec. 14 of the Ellison Bay 7.5' USGS
topographic quadrangle, and in T32N, R28E, W\1/2\ Sec. 13, E\1/2\ Sec.
14, NE\1/4\ Sec. 23, portions of each \1/4\ of Sec. 24, N\1/2\ Sec. 25,
and T32N, R29E, S\1/2\ Sec. 19, W\1/2\ Sec. 29, NE\1/4\ Sec. 30 of
Sister Bay 7.5' USGS topographic quadrangle. Lands included are located
east of the Village of Ellison Bay, south of Garrett Bay Road and Mink
River Roads, North of County Road ZZ, west of Badger Road, County Road
NP and Juice Mill Road, and includes the Mink River.
(ii) Note: Map of Wisconsin critical habitat Unit 2 (Wisconsin Map
2) follows:
[[Page 51146]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.007
[[Page 51147]]
(13) Wisconsin Units 3 through 7, Door County, Wisconsin.
(i) Wisconsin Unit 3: Door County. Located in T31N R28E, S\1/2\
S10, NE\1/4\ S15 of Sister Bay 7.5' USGS topographic quadrangle. Lands
included are located south of County Road ZZ, north of North Bay (Lake
Michigan), west of North Bay Road, east of Old Stage Road and about two
miles east of the Village of Sister Bay and include a portion of Three-
Springs Creek.
(ii) Wisconsin Unit 4: Door County. Located in T31N, R28E, SW\1/4\
and S\1/2\ Sec. 15, portions of each \1/4\ of Sec. 22, and N\1/2\ of
Sec. 23 of the Sister Bay 7.5' USGS topographic quadrangle. Lands are
located along the north and northwest sides of North Bay (Lake
Michigan).
(iii) Wisconsin Unit 5: Door County. Located in T31N, R28E, S\1/2\
Sec. 20, E\1/2\ Sec. 29, NW\1/4\ and S\1/2\ Sec. 28, N\1/2\ and SE\1/4\
Sec. 33, and W\1/2\ Sec. 34. It also is located in T30N, R28E, W\1/2\
Sec. 3, E\1/2\ and SW\1/4\ Sec. 4, SE\1/4\ Sec. 8, Sec. 9, N\1/2\ Sec.
10, W\1/2\ and SE\1/4\ Sec.15, Sec. 16, and Sec. 17 of the Baileys
Harbor East, and Sister Bay 7.5' USGS topographic quadrangles. Lands
located south of German Road, east of State Highway 57, west of North
Bay Drive, Sunset Drive and Moonlight Bay (Lake Michigan), north of
Ridges Road and Point Drive and include Mud Lake and Reiboldt Creek.
(iv) Wisconsin Unit 6: Door County. Located in T30N, R28E, portions
of each \1/4\ of Sec. 5 of the Baileys Harbor East 7.5' USGS
topographic quadrangle and Baileys Harbor West 7.5' USGS topographic
quadrangle. Lands are located about 2\1/4\ miles north of the Town of
Baileys Harbor, east of State Highway 57, south of Meadow Road and are
associated with an unnamed stream.
(v) Wisconsin Unit 7: Door County. Located in T30N, R27E, Sec. 11,
SW\1/4\ Sec. 13, and N\1/2\ and SE \1/4\ Sec. 14 of the Baileys Harbor
West 7.5' USGS topographic quadrangle. Lands are located north of
County Road EE, east of County Road A and west of South Highland and
High Plateau Roads, about two miles northeast of Town of Baileys Harbor
and are associated with the headwaters of Piel Creek.
(vi) Note: Map of Wisconsin critical habitat Units 3 through 7
(Wisconsin Map 3) follows:
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(14) Wisconsin Unit 8, Door County, Wisconsin.
(i) Wisconsin Unit 8: Door County. Located in T28N, R27E, S\1/2\
Sec. 16, N\1/2\ Sec. 21 of the Jacksonport 7.5' USGS topographic
quadrangle. Lands are located east of Bechtel Road, South of Whitefish
Bay Road, west of Glidden Drive and include Arbter Lake.
(ii) Note: Map of Wisconsin critical habitat Unit 8 (Wisconsin Map
4) follows:
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(15) Wisconsin Unit 9, Door County, Wisconsin.
(i) Wisconsin Unit 9: Door County, Wisconsin. Located in T27N,
R24E, SE\1/4\ Sec.16, E\1/2\ Sec. 20, portions of each \1/4\ of Secs.
21, 28 and 33, NW\1/4\ and S\1/2\ Sec. 34. Also located in T26N, R24E,
NW\1/4\ Sec. 3 of the Little Sturgeon 7.5' USGS topographic quadrangle.
Lands are located west of Pickeral Road and Cedar Lane, north of State
Highway 57, east of Hilly Ridge Road and County Road C, south of Fox
Lane Road, about 1.5 miles southwest of Little Sturgeon Bay (Lake
Michigan) and include portions of Keyes Creek and associated wetlands.
(ii) Note: Map of Wisconsin critical habitat Unit 9 (Wisconsin Map
5) follows:
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(16) Wisconsin Unit 10, Ozaukee County, Wisconsin.
(i) Wisconsin Unit 10: Ozaukee County. Located in T11N, R21E, E\1/
2\ of Sec. 20, portions of each \1/4\ of Sec. 21, W\1/2\ Sec. 28, Sec.
29, E\1/2\ Sec. 30, E\1/2\ and portions of NW\1/4\ and SW\1/4\ Sec. 31,
Sec. 32, and W\1/2\ Sec. 33 of the Cedarburg, Five Corners, Newburg,
and Port Washington West 7.5' USGS topographic quadrangles. Lands are
located south of State Highway 33, east of County Road Y and Birchwood
Road, north of Cedar Sauk Road about 2 miles west of Saukville, and
includes the majority of Cedarburg Bog.
(ii) Note: Map of Wisconsin critical habitat Unit 10 (Wisconsin Map
6) follows:
[[Page 51151]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.011
(17) Wisconsin Unit 11, Door County, Wisconsin.
(i) Wisconsin Unit 11: Door County. Located in T27N, R26E, SE\1/4\
Sec. 11, Sec. 12, NW\1/4\ Sec. 13, and NE\1/4\ Sec. 14 of the Sturgeon
Bay East 7.5' USGS topographic quadrangle. Lands are located south of
County Road TT, east of Mathey Road, north of Buffalo Ridge Trail, west
of Lake Forest Park Road (also County Road TT), about 1\1/2\ miles west
of the City of Sturgeon Bay, and include portions of Kellner's Fen.
(ii) Note: Map of Wisconsin critical habitat Unit 11 (Wisconsin Map
7) follows:
[[Page 51152]]
[GRAPHIC] [TIFF OMITTED] TR05SE07.012
* * * * *
Dated: August 20, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-4194 Filed 9-4-07; 8:45 am]
BILLING CODE 4310-55-C