[Federal Register: April 23, 2010 (Volume 75, Number 78)]
[Rules and Regulations]
[Page 21393-21453]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ap10-11]
[[Page 21393]]
-----------------------------------------------------------------------
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Final Revised Critical
Habitat for Hine's Emerald Dragonfly (Somatochlora hineana); Final Rule
[[Page 21394]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2009-0017]
[MO 92210-0-0009-B4]
RIN 1018-AW47
Endangered and Threatened Wildlife and Plants; Final Revised
Critical Habitat for Hine's Emerald Dragonfly (Somatochlora hineana)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
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 26,531.8 acres (ac) (10,737
hectares (ha)) in 37 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; Crawford, Dent, Iron, Phelps, Reynolds,
Ripley, Washington, and Wayne Counties in Missouri; and Door and
Ozaukee Counties in Wisconsin.
DATES: This rule becomes effective on May 24, 2010.
FOR FURTHER INFORMATION CONTACT: For general information regarding this
finding, contact the Field Supervisor, Chicago Ecological Services
Field Office, 1250 S. Grove, Suite 103, Barrington, IL 60010
(telephone: 847-381-2253; facsimile: 847-381-2285). If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this rule. We received no new
information pertaining to the species' life history, ecology, or
habitat following our 2007 final critical habitat designation. 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, we reopened the comment period 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 Federal Register document that
reopened the comment period on the proposal, revisions to the proposal,
and the draft economic analysis for an additional 45 days (72 FR
28016). That comment period ended on July 2, 2007. On September 5,
2007, we published a final rule in the Federal Register (72 FR 51102)
designating 13,221 ac (5,350 ha) as critical habitat for the Hine's
emerald dragonfly in Illinois, Michigan, Missouri, and Wisconsin.
On March 10, 2008, six parties (Northwoods Wilderness Recovery, The
Michigan Nature Association, Door County Environmental Council, The
Habitat Education Center, Natural Resources Defense Council, and The
Center for Biological Diversity) filed a complaint against the
Department of the Interior and the Service (Northwoods Wilderness
Recovery et al. v. Dirk Kempthorne 1:08-CV-01407) challenging the
exclusion of U.S. Forest Service lands from the 2007 final designation
of critical habitat for the dragonfly. On February 12, 2009, the U.S.
District Court for the Northern District of Illinois approved a
settlement agreement in which the Service agreed to a remand, without
voiding the critical habitat designation, in order to reconsider the
Federal exclusions from the designation of critical habitat for the
Hine's emerald dragonfly. Per that settlement, on April 22, 2009, we
published a notice (74 FR 18341) reopening the comment period on the
July 26, 2006, proposed critical habitat (71 FR 42442). Upon
publication of that notice, the July 26, 2006, proposed critical
habitat designation of the U.S. Forest Service lands in Michigan and
Missouri was reinstated as proposed. Furthermore, until the effective
date of this revised final critical habitat determination (see DATES),
the existing designation of critical habitat for the Hine's emerald
dragonfly remains in place and effective.
Summary of Comments and Recommendations Received
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 and the comment period that opened April 22, 2009
and closed on June 22, 2009, we received 40 comments directly
addressing our proposed critical habitat designation: 6 from peer
reviewers, 4 from Federal agencies, and 30 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 7 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.
[[Page 21395]]
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, 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, while 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 final 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 habitats, the importance of
such habitats in meeting the daily dietary needs of the dragonfly is
still unknown. Foraging and 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, foraging and dispersal areas are not limiting factors for the
species.
(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 greater numbers of 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
management plans for the species; and (2) Missouri Department of
Conservation (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 available 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 a metapopulation structure
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
[[Page 21396]]
or more metapopulations. Such a hypothesis is best tested by conducting
various genetic analyses. Genetic analyses of populations in Missouri
were initiated in the summer of 2007; however, they are not yet
complete. Until these genetic analyses are completed, 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. DNA
analyses initiated by the Illinois Museum are ongoing, and final
observations are forthcoming and to be published in a peer-reviewed
journal.
(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 (see
``Exclusions Under Section 4(b)(2) of the Act'' section).
(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 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 (for example, 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 was under a court order to complete the
original designation of critical habitat and submit a final rule to the
Federal Register by August 23, 2007. We were also under a court order
to complete this revised critical habitat determination by April 15,
2010. Consequently, we proceeded with the critical habitat process for
this species based on the best scientific data that were available at
the time, 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
proposed 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
include protective measures to conserve wetland habitat, and thereby
help to conserve the dragonfly. Those plans, however, do not 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 individual dragonflies, 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, p. 48). 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 Received During the 2006, 2007, and 2009 Comment
Periods
Issue 1: Biological Justification and Methodology Used.
(1A) Comment: Several individuals commented that the July 26, 2006
proposal (71 FR 42442) and the April 22, 2009 proposal (74 FR 18341)
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 the action's location inside
or outside of a critical habitat unit, are subject to section 7
consultation, under the Act. 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 in 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 of the Act 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
[[Page 21397]]
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' known flight season
lasts up to early October in Illinois (Vogt and Cashatt 1994) and to
late August in Wisconsin (Vogt and Cashatt 1994). Fully mature 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: Because we are now designating critical habitat on
Forest Service land in Michigan and Missouri, all requirements under
section 7(a)(2) are applicable. The Forest Service consistently
consults on projects that may affect listed species, including the
Hine's emerald dragonfly. The Forest Service 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.
(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. 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, were excluded
from the previous Hine's emerald dragonfly critical habitat designation
published on September 5, 2007. Michigan Unit 3 was not excluded under
the previous designation. As of this rule, all of Michigan units 1, 2,
and 3 are designated as critical habitat.
(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: Because we are now designating critical habitat on
Forest Service land in Michigan and Missouri, all requirements under
section 7(a)(2) of the Act are applicable. Section 7(a)(2) of the Act
applies to any project funded or authorized by a Federal entity,
including logging operations on National Forest land.
(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 critical habitat
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. To provide additional conservation benefits to the species on
state-owned and private land, MDC completed a comprehensive Hine's
Emerald Dragonfly Recovery Plan for Missouri (Missouri Department of
Conservation 2007f) (MDC Recovery Plan). The MDC Recovery Plan outlines
numerous recovery objectives, conservation actions, and management
recommendations necessary to maintain Hine's emerald dragonfly habitat.
These guidelines will help facilitate the recovery of the species in
Missouri.
(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.
[[Page 21398]]
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.
Service representatives, Hine's emerald dragonfly researchers, and
personnel of the MDC's Private Land Services Division expended
considerable effort in providing private landowners with information on
the Hine's emerald 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. See 3I and 3K responses that talk more about management
guidelines in a State recovery plan.
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. The Service weighed the
benefits of each, and concluded, using the discretion afforded to the
agency under the Act, that actions for the conservation of the species
would be best realized if the lands were excluded. More discussion on
this topic is covered under the ``Exclusions Under Section 4(b)(2) of
the Act'' section.
(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, p. iv). 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. Despite the benefits realized from
implementation of the various actions outlined in Forest Service LRMPs
for these two national forests, we are designating critical habitat on
Forest Service land because we believe the benefits of designating
those areas outweighs the benefits of excluding those areas from
designation.
(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, and
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.
(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
[[Page 21399]]
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 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, pp. 3-
29). Hine's emerald dragonfly sites on Missouri State-owned and private
land will be further maintained by implementing management guidelines
outlined in a State recovery plan that was recently completed (Missouri
Department of Conservation 2007f). 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 its 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 and the recently completed
Missouri Hine's Emerald Dragonfly Recovery Plan (Missouri Department of
Conservation 2007f). Because we are now designating critical habitat on
Forest Service land in Michigan and Missouri, all requirements under
section 7(a)(2) are applicable.
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 (management plans for private and State-owned
lands in Missouri) 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.
(3K) Comment: One commenter requested that the Service provide an
independent rationale why areas adjacent to Forest Service land that
are on private property should be excluded.
Our response: In Missouri, we are excluding sites on private land
adjacent to Forest Service land because the management and maintenance
of these areas are covered through close cooperation between private
land owners and the Missouri Department of Conservation in the
implementation of recommendations outlined in the Missouri Hine's
Emerald Dragonfly Recovery Plan (Missouri Department of Conservation
2007f).
Issue 4: Economic Issues
(4A) Comment: The proposed critical habitat rule states that ``to
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.
Our response: The economic analysis evaluates the potential
economic costs associated with critical habitat designation, and also
discusses 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 $11.0 million to $25.7 million, over the next 20 years, applying a
7-percent discount rate.
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, the Federal Office of Management and Budget
(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
[[Page 21400]]
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: Under 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 we received during the public
comment periods, we may, during the development of our final critical
habitat determination, find that areas we proposed are not essential,
are appropriate for exclusion under section 4(b)(2) of the 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 completed 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. 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 (see
``Exclusions Under Section 4(b)(2) of the Act'' section). 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 commenter asserts that there is little (if any)
economic activity in Alpena, Mackinac, or Presque Isle Counties in
Michigan. The commenter asserts that declining human 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 of the economic
analysis, 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;
[[Page 21401]]
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 OMB
has acknowledged that it may not be 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.
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 commenter 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
[[Page 21402]]
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 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 effects on the community's well-being,
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 from 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
costs 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
[[Page 21403]]
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 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 coextensive 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 8 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 a 20 year 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 under way when the proposed rule considering
designation was published. Since the Illinois Tollway 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 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 $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 markets 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 additional 2 minutes and 1 second of travel time is
highly unlikely to cause train travelers to switch to travel by
automobile, especially since the road
[[Page 21404]]
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
parallel 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 10 percent of travel
time on a commuter train during peak commuting time will cause a 1-
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 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 first 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
(5) Comment: We received four comments on the July 26, 2006,
proposal (71 FR 42442) and the April 22, 2009, proposal (74 FR 18341),
suggesting 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, Lennagene Rossman Stratton Memorial, Peter Memorial,
Mystery Valley 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 2 miles of a known locality.
Our response: We did not designate unoccupied habitat listed by the
commenters because there are no current or historical 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 (3.3-km) 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 (328 feet) where the primary
constituent elements are found unless we reached areas that did not
contain the primary constituent elements before that 100 meters (328
feet), such as a closed canopy forest, roadway, or another natural or
human-made break in habitat. This boundary extension 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
(6) 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 90-day period of time in
which to consult, and beyond that, another 45-day period of time for
the Service to prepare a biological opinion. The analysis of whether
the proposed action would
[[Page 21405]]
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.
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 when designating
critical habitat. 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
(8) 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
(9) 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, under 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, p.54). Genetic analyses have been initiated to
better understand the population structure of the species, but the
analyses have not been completed. The designation of critical habitat
was based on the best available information. All currently occupied
[[Page 21406]]
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 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 that
had management plans identifying necessary management and protection
efforts for Hine's emerald dragonfly or the primary constituent
elements. 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 claims 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 US 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 Missouri Units 2b, 3, 6, 9, 10, 11b, 12-20, and
22, 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.
We are designating an additional unit on the Mark Twain National
Forest that was not known to be occupied by the Hine's emerald
dragonfly at the time of the September 5, 2007, final rule, but has
since been discovered to be occupied. We included this unit in our
April 22, 2009, notice reopening the comment period on the proposed
designation. Based on our evaluation of research results from recent
fieldwork, we have determined that this newly discovered site on the
Mark Twain National Forest in Washington County, Missouri, is essential
to the conservation of Hine's emerald dragonfly.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) 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
[[Page 21407]]
(a) essential to the conservation of the species and
(b) which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by 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 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 under 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, transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot otherwise be
relieved, may include regulated taking.
Critical habitat receives protection under section 7(a)(2) of the
Act through the prohibition against Federal agencies carrying out,
funding, or authorizing activities that are likely to result in the
destruction or adverse modification of critical habitat. Section
7(a)(2) requires consultation on Federal actions that may affect
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply, but even in the event of a destruction
or adverse modification finding, the Federal action agency's and the
applicant's obligation is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time of listing
must contain physical and biological features that are essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas supporting the
essential physical or biological features that provide essential life
cycle needs of the species; that is, areas on which are found the
primary constituent elements (PCEs) laid out in the appropriate
quantity and spatial arrangement essential to the conservation of the
species. Under the Act and regulations at 50 CFR 424.12, we can
designate critical habitat in areas outside the geographical area
occupied by the species at the time it is listed only when we determine
that those areas are essential for the conservation of the species and
that designation limited to the species' present range would be
inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Areas that support occurrences, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we and other Federal agencies implement under section 7(a)(1)
of the Act. They are also subject to the regulatory protections
afforded by the section 7(a)(2) jeopardy standard, as determined on the
basis of the best available scientific information at the time of the
agency action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available to
these planning efforts calls for a different outcome.
Climate Change
Climate change will be a particular challenge for biodiversity
because the interaction of additional stressors associated with climate
change and current stressors may push species beyond their ability to
survive (Lovejoy 2005, pp325-326). The synergistic implications of
climate change and habitat fragmentation are the most threatening facet
of climate change for biodiversity (Hannah et al. 2005, p4). In
addition, local extinction and range shifts are also being documented
for some species including dragonflies. In a study of all 37 species of
resident odonates (dragonflies and damselflies) in the United Kingdom,
all but two species increased in range size and all but three species
shifted northwards at their range margin in the last 40 years (Hickling
et al. 2005, p. 504). While there is uncertainty about the exact nature
and severity of climate change related impacts anticipated within the
Hine's emerald dragonfly's range, several scientific studies project
that there will be increased duration and intensity of heat waves in
summer; higher levels of humidity and evaporation; changing patterns of
precipitation with fewer rain events of greater intensity; increased
frequency and more-intense dry spells; and more flooding from heavy
rains (Easterling and Karl 2000, pp. 168-169, 172, 176; Hall and Stuntz
2007, pp. 5-7; IPCC 2007, pp. 30, 46). These climatic changes may
impact the Hine's emerald dragonfly's habitat in a variety of direct
and indirect ways including: Changes in hydrology, loss of suitable
habitat; loss of inter-specific relationships with crayfish; and
increased threats from invasive species.
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12(b), in determining which areas within the
geographical area occupied at the time of listing to
[[Page 21408]]
propose as revised critical habitat, we consider those physical and
biological features that are essential to the conservation of the
species and which may require special management considerations or
protection. We consider the essential physical and biological features
to be the PCEs laid out in the appropriate quantity and spatial
arrangement essential to the conservation of the species. The PCEs
include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the PCEs required for the Hine's emerald dragonfly from
its biological needs. The areas included in our critical habitat
designation for the species contain the essential features to fulfill
the species life-history requirements. The PCEs and the resulting
physical and biological features essential to the conservation of the
Hine's emerald dragonfly are derived from studies of this species'
habitat, ecology, and life history as described in the proposed
critical habitat designation published in the Federal Register on July
26, 2006 (71 FR 42442).
Primary Constituent Elements for the Hine's Emerald Dragonfly
Under the Act and its implementing regulations, when considering
the designation of critical habitat, we must focus on the PCEs within
the geographical area occupied by the Hine's emerald dragonfly at the
time of listing that are essential to the conservation of the species
and may require special management considerations or protection. The
essential physical and biological features are those PCEs laid out in
an appropriate quantity and spatial arrangement determined to be
essential to the conservation of the species. All areas designated as
critical habitat for the Hine's emerald dragonfly are currently
occupied, are within the geographical area occupied by the species at
the time of listing, and contain sufficient PCEs to support at least
one life- history function.
Based on our current knowledge of the life history, biology, and
ecology of the Hine's emerald dragonfly, and the requirements of the
habitat to sustain the life-history traits of the species, we
determined that the PCEs specific to the Hine's emerald dragonfly 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, refuge for adult females to 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).
This critical habitat designation is designed for the conservation
of those areas containing the physical and biological features
necessary to support the species' life-history traits. Each of the
areas designated in this rule contain sufficient PCEs to provide for
one or more of the life history functions of the Hine's emerald
dragonfly.
Special Management Considerations or Protections
When designating critical habitat within the geographical area
occupied by the species at the time of listing, we assess whether the
physical and biological features essential to the conservation of the
species may require special management considerations or protection. In
all units, special management considerations or protection of the
essential features may be required to provide for the growth,
reproduction, and maintenance of the habitat on which the Hine's
emerald dragonfly depends.
The lands proposed as critical habitat represent our best
assessment of the habitat that meets the definition of critical habitat
for the Hine's emerald dragonfly at this time. The essential physical
or biological features within the areas proposed as critical habitat
may require some level of management to address current and future
threats to the Hine's emerald dragonfly, including the direct and
indirect effects of habitat loss and degradation from urban
development; the introduction of nonnative invasive plant species; and
recreational activities.
Nonnative invasive plant species and unauthorized recreational
activities (for example, all-terrain vehicles or horseback riding) may
alter the vegetation composition or physical structure identified in
the PCEs to an extent that the area does not support breeding habitat
or refuge for Hine's emerald dragonflies. Additionally, invasive
species and unauthorized recreational activities may alter hydrology
and alter conditions so that the habitat is unsuitable for crayfish
burrows that provide essential wintering refugia for Hine's emerald
dragonflies.
In summary, we find that the areas we are designating as critical
habitat contain the features essential to the conservation of the
Hine's emerald dragonfly, and that these features may require special
management considerations or protection. Special management
considerations or protection may be required to eliminate, or reduce to
negligible level, the threats affecting each unit and to preserve and
maintain the essential features that the critical habitat units provide
to the Hine's emerald dragonfly. Additional discussions of threats
facing individual sites are provided in the individual unit
descriptions.
The designation of critical habitat does not imply that lands
outside of critical habitat may not play an important role in the
conservation of the Hine's emerald dragonfly. In the future, and with
changed circumstances, these lands may become essential to the
conservation of the Hine's emerald dragonfly. Activities with a Federal
nexus that may affect areas outside of critical habitat, such as
development, agricultural activities, and road construction, are still
subject to review under section 7 of the Act if they may affect the
Hine's emerald dragonfly, because Federal agencies must consider both
effects to the dragonfly and effects to critical habitat independently.
The take prohibitions of section 9 of the Act, applicable to the Hine's
emerald dragonfly under 50 CFR 17.71, also continue to apply both
inside and outside of designated critical habitat.
[[Page 21409]]
Criteria Used To Identify Critical Habitat
We are designating critical habitat in areas we 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. Land
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 some 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 under the Act,
unless they affect the species or PCEs in critical habitat.
Units were identified based on sufficient PCEs being present to
support Hine's emerald dragonfly life processes. Designated units
contain all PCEs and support multiple life processes. Areas lacking
documented evidence of breeding based on current knowledge were not
considered for critical habitat inclusion because such areas are not
deemed essential to the conservation of the species.
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.
Critical Habitat Designation
We are designating 37 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 that meet the
definition of critical habitat for the Hine's emerald dragonfly. These
areas constitute our best assessment of areas determined to be within
the geographical area occupied at the time of listing that contain the
physical and biological features essential to the conservation of the
Hine's emerald dragonfly 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.
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.
These units, which generally correspond to the geographic area of
the units delineated in the 2007 designation, with the addition of
units on Forest Service lands, replace the current critical habitat
designation for the Hine's emerald dragonfly in 50 CFR 17.96(a).
Table 1 identifies the approximate area of each designated critical
habitat unit by land ownership. Table 2 identifies areas that meet the
definition of critical habitat but were excluded from final critical
habitat based on their species-specific management plans or
partnerships, and the determination the benefits to the species of
exclusion from critical habitat outweighs the benefits of designating
critical habitat in those units.
[[Page 21410]]
TABLE 1. Critical Habitat units designated for the Hine's emerald dragonfly.
----------------------------------------------------------------------------------------------------------------
Local and private Total (acres/
Unit Federal land State land land (acres/ hectares)
(acres/hectares) (acres/hectares) hectares) designated
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1, Will County 419/170 419/170
----------------------------------------------------------------------------------------------------------------
Illinois Unit 2, Will County 439/178 439/178
----------------------------------------------------------------------------------------------------------------
Illinois Unit 3, Will County 337/136 337/136
----------------------------------------------------------------------------------------------------------------
Illinois Unit 4, Will and Cook 607/246 607/246
Counties
----------------------------------------------------------------------------------------------------------------
Illinois Unit 5, DuPage County 326/132 326/132
----------------------------------------------------------------------------------------------------------------
Illinois Unit 6, Cook County 387/157 387/157
----------------------------------------------------------------------------------------------------------------
Illinois Unit 7, Will County 130/53 350/142 480/194
----------------------------------------------------------------------------------------------------------------
Michigan Unit 1, Mackinac County 9,452/3,825 9,452/3,825
----------------------------------------------------------------------------------------------------------------
Michigan Unit 2, Mackinac County 3,476/1,421 35/14 3,511/1,421
----------------------------------------------------------------------------------------------------------------
Michigan Unit 3, Mackinac County 23/9 27/11 50/20
----------------------------------------------------------------------------------------------------------------
Michigan Unit 4, Presque Isle County 875/354 84/34 959/388
----------------------------------------------------------------------------------------------------------------
Michigan Unit 5, Alpena County 65/26 91/37 156/63
----------------------------------------------------------------------------------------------------------------
Michigan Unit 6, Alpena County 220/89 220/89
----------------------------------------------------------------------------------------------------------------
Missouri Unit 1, Crawford County 90/36 90/36
----------------------------------------------------------------------------------------------------------------
Missouri Unit 2a, Dent County 15/6 15/6
----------------------------------------------------------------------------------------------------------------
Missouri Unit 4, Dent County 14/6 14/6
----------------------------------------------------------------------------------------------------------------
Missouri Unit 5, Iron County 50/20 50/20
----------------------------------------------------------------------------------------------------------------
Missouri Unit 7, Phelps County 33/13 33/13
----------------------------------------------------------------------------------------------------------------
Missouri Unit 8, Reynolds County 4/2 4/2
----------------------------------------------------------------------------------------------------------------
Missouri Unit 11a, Reynolds County 22/9 22/9
----------------------------------------------------------------------------------------------------------------
Missouri Unit 21, Ripley County 6/2 6/2
----------------------------------------------------------------------------------------------------------------
Missouri Units 23 and 24 Washington 75/31 75/31
County
----------------------------------------------------------------------------------------------------------------
Missouri Unit 25, Washington County 33/13 33/13
----------------------------------------------------------------------------------------------------------------
Missouri Unit 26, Wayne County 5/2 5/2
----------------------------------------------------------------------------------------------------------------
Missouri Unit 27, Crawford County 0.8/0.3 0.8/0.3
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 1, Door County 42/17 115/47 157/64
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 2, Door County 32/13 782/316 814/329
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 3, Door County 66/27 66/27
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 4, Door County 407/165 407/165
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 5, Door County 816/330 2277/922 3,093/1,252
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 6, Door County 200/81 30/12 230/93
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 7, Door County 352/142 352/142
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 8, Door County 70/28 70/28
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 9, Door County 684/277 509/206 1,193/483
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 10, Ozaukee County 1512/612 800/324 2,312/936
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 11, Door County 147/59 147/59
----------------------------------------------------------------------------------------------------------------
[[Page 21411]]
Total 13,275.8/5,372.5 4,379/1,772 8,877/3,578 26,531.8/10,737.1
----------------------------------------------------------------------------------------------------------------
Table 2. Areas determined to meet the definition of critical habitat for the Hine's emerald dragonfly that are
excluded from the critical habitat designation.
----------------------------------------------------------------------------------------------------------------
Area excluded
Definitional from final
Geographic Area areas (acres/ designation Reason*
hectares) (acres/hectares)
----------------------------------------------------------------------------------------------------------------
Missouri Unit 2b, Dent County 19/8 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 3, Dent County 18/7 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 6, Morgan County 22/9 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Units 9 and 10, Reynolds County 329/133 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 11b, Reynolds County 91/37 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 12, Reynolds County 50/20 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 13, Reynolds County 30/12 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 14, Reynolds County 14/5 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 15, Reynolds County 11/4 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 16, Reynolds County 4/2 All 1
----------------------------------------------------------------------------------------------------------------
Missouri Units 17 and 18, Ripley County 224/91 All 1, 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Units 19 and 20, Ripley County 115/47 All 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 22, Shannon County 32/13 All 1
----------------------------------------------------------------------------------------------------------------
Total 959/388 959/388 .............................
----------------------------------------------------------------------------------------------------------------
*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.
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. 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 and too early to judge its ultimate
outcome. 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.
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. 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
[[Page 21412]]
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 and
too early to judge its ultimate outcome. 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.
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. 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 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 and
too early to judge its ultimate outcome. 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.
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. 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. 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.
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. 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. 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.
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. There have been repeated adult observations as well as
observations of teneral (newly emerged) adults and male territorial
patrols suggesting that breeding is occurring within 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. 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.
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. 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
[[Page 21413]]
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 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 and too early to judge its ultimate outcome. 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 1--Mackinac County, Michigan
Michigan Unit 1 contains 9,452 ac (3,825 ha) in Mackinac County in
the Upper Peninsula of Michigan. This area was not known to be occupied
at the time of listing. The unit contains at least four breeding areas
for Hine's emerald dragonfly, with female oviposition or male
territorial patrols observed at all breeding sites. Adults have also
been observed foraging at multiple locations within this unit. The unit
contains a mixture of fen, forested wetland, forested dune and swale,
and upland communities that are important for Hine's emerald dragonfly
breeding and foraging. The habitat is mainly spring-fed rich cedar
swamp or northern fen. The breeding areas are open with little woody
vegetation or are sparsely vegetated with northern white cedar (Thuja
occidentalis). Small shallow pools and seeps are common. Crayfish
burrows are found in breeding areas. Corridors between the breeding
areas make it likely that adult dragonflies could travel or forage
between the breeding sites. The majority of this unit is owned by the
Hiawatha National Forest. Known threats to the PCEs in this unit that
may require special management include nonnative species invasion,
woody encroachment, off-road vehicle use, logging, and utility and road
right-of-way maintenance. Small portions of the unit are owned by the
State of Michigan and private individuals. 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.
Michigan Unit 2--Mackinac County, Michigan
Michigan Unit 2 consists of 3,511 ac (1,421 ha) in Mackinac County
in the Upper Peninsula of Michigan. This area was not known to be
occupied at the time of listing. The unit contains at least four
breeding areas for Hine's emerald dragonfly, with female oviposition or
male territorial patrols observed at all breeding sites. The unit
contains a mixture of fen, forested wetland, forested dune and swale,
and upland communities that are important for Hine's emerald dragonfly
breeding and foraging. The breeding habitat varies in the unit. Most
breeding areas are northern fen communities with sparse, woody
vegetation (northern white cedar) that are probably spring-fed with
seeps and marl pools present. One site is a spring-fed marl fen with
sedge-dominated seeps and marl pools. Crayfish burrows are found in
breeding areas. Corridors between the breeding areas, including a large
forested dune and swale complex, make it likely that adult dragonflies
could travel or forage between the breeding sites. The majority of this
unit is owned by the Hiawatha National Forest and is designated as a
Wilderness Area. Known threats to the PCEs in this unit that may
require special management include nonnative species invasion, woody
encroachment, and off-road vehicle use. About 1 percent of the unit is
owned by private individuals. 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.
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. 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. Known threats to the PCEs
in this 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 northern lower peninsula of Michigan. This area was not known to
be occupied at the time of listing but is currently occupied. The unit
contains one breeding area for Hine's Emerald dragonfly, with female
oviposition and adults observed in more than one year. The unit
contains a fen with seeps and crayfish burrows present. The fen has
stunted, sparse white cedar and marl flats dominated by beaked spike
rush (Eleocharis rostellata). 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 habitat that are used
by breeding and foraging Hine's emerald dragonfly. Known threats to the
PCEs in this unit that may require special management 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
[[Page 21414]]
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. 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. Known threats to the PCEs in this unit that
may require special management include possible hydrological
modification due to outdoor recreational vehicle use and development.
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.
Missouri Unit 1--Crawford County, Missouri
Missouri Unit 1 consists of 90 ac (36 ha) in Crawford County,
Missouri, and is under U.S. Forest Service ownership. This fen is in
close proximity to the village of Billard and is associated with James
Creek, west of Billard. This area was not known to be occupied at the
time of listing. The fen provides surface flow, and includes larval
habitat and adjacent cover for resting and predator avoidance. The fen
and an adjacent open pasture provide foraging habitat that is
surrounded by contiguous, closed-canopy forest. To date, only larvae
have been documented from this locality. Known threats to the PCEs in
this unit that may require special management include feral hogs and
habitat fragmentation. 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.
Missouri Unit 2a--Dent County, Missouri
Missouri Unit 2a is comprised of 15 ac (6 ha) in Dent County,
Missouri, and is under U.S. Forest Service and private ownership. It is
located north of the village of Howes Mill and in proximity to County
Road (CR) 438. This area was not known to be occupied at the time of
listing. The fen provides surface flow, and includes larval habitat and
adjacent cover for resting and predator avoidance. The fen and an
adjacent open old field provide foraging habitat and are surrounded by
contiguous, closed-canopy forest. Adults have been documented from this
unit. Known threats to the PCEs in this unit that may require special
management include all-terrain vehicles, feral hogs, and habitat
fragmentation. 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. This unit includes the Forest
Service-owned portion of Missouri Unit 2 as it was described in the
July 26, 2006, proposal (71 FR 42442).
Missouri Unit 4--Dent County, Missouri
Missouri Unit 4 is owned and managed by the U.S. Forest Service,
and consists of 14 ac (6 ha) in Dent County, Missouri. This fen is
associated with a tributary of Watery Fork Creek in Fortune Hollow and
is located east of the juncture of Highway 72 and Route MM. This area
was not known to be occupied at the time of listing. The fen provides
surface flow, and includes larval habitat and adjacent cover for
resting and predator avoidance. The fen and adjacent old fields provide
habitat for foraging and are surrounded by contiguous, closed-canopy
forest. To date, only larvae have been documented from this locality.
Known threats to the PCEs in this unit that may require special
management include feral hogs and habitat fragmentation. 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.
Missouri Unit 5--Iron County, Missouri
Missouri Unit 5 is comprised of 50 ac (20 ha) in Iron County,
Missouri, and is under U.S. Forest Service ownership. This fen is
adjacent to Neals Creek and Neals Creek Road, southeast of Bixby. This
area was not known to be occupied at the time of listing. The fen
consists of surface flow and is fed, in part, by a wooded slope north
of Neals Creek Road. This small but high-quality fen provides larval
habitat and adjacent cover for resting and predator avoidance. The fen,
adjacent fields, and open road provide habitat for foraging and are
surrounded by contiguous, closed-canopy forest. Both adults and larvae
have been documented from this unit. Known threats to the PCEs in this
unit that may require special management include all-terrain vehicles,
feral hogs, road construction and maintenance, beaver dams, and habitat
fragmentation. 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.
Missouri Unit 7--Phelps County, Missouri
Missouri Unit 7 consists of 33 ac (13 ha) in Phelps County,
Missouri, and is owned and managed by the U.S. Forest Service. This
area was not known to be occupied at the time of listing. This fen is
associated with Kaintuck Hollow and a tributary of Mill Creek, and is
located south-southwest of the town of Newburg. This high-quality fen
provides larval habitat and adjacent cover for resting and predator
avoidance. The fen, adjacent fields, and open road provide habitat for
foraging and are surrounded by contiguous, closed-canopy forest.
Despite repeated sampling for adults and larvae, only one exuviae (shed
larval exterior) has been documented from this unit. Known threats to
the PCEs in this unit that may require special management include all-
terrain vehicles, feral hogs, and habitat fragmentation. 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.
Missouri Unit 8--Reynolds County, Missouri
Missouri Unit 8 includes Bee Fork West, a portion of the Bee Fork
complex. The unit consists of 4 ac (2 ha) in Reynolds County, Missouri,
and is owned and managed by the U.S. Forest Service. This locality is
part of a series of three fens adjacent to Bee Fork Creek, extending
from east-southeast of Bunker east to near the bridge on Route TT over
Bee Fork Creek. This area was not known to be occupied at the time of
listing. The fen provides surface flow and is fed, in part, by a small
spring that originates from a wooded ravine just north of the county
road bordering the northernmost fen in the complex. The unit, in
conjunction with the rest of the complex (Units 9 and 10, which are
excluded from this final designation), is one of the highest quality
representative examples of an Ozark fen in the State. The fen provides
larval habitat and adjacent cover for resting and predator
[[Page 21415]]
avoidance. The fen, adjacent fields, and open road provide habitat for
foraging and are surrounded by contiguous, closed-canopy forest. Both
adults and larvae have been documented from this unit. The entire
complex is an extremely important focal area for conservation actions
that benefit Hine's emerald dragonfly. It is likely that the species
uses Bee Fork Creek as a connective corridor between adjacent
components of the complex. Known threats to the PCEs in this unit that
may require special management include feral hogs, ecological
succession, utility maintenance, application of herbicides, and habitat
fragmentation. 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.
Missouri Unit 11a--Reynolds County, Missouri
Missouri Unit 11a is under U.S. Forest Service ownership and
consists of 22 ac (9 ha in Reynolds County, Missouri. The unit is a
series of small fen openings adjacent to a tributary of Bee Fork Creek,
and is located east of the intersection of Route TT and Highway 72,
extending north to the Bee Fork Church on County Road 854. This area
was not known to be occupied at the time of listing. This unit contains
a portion of one of the highest quality representative examples of an
Ozark fen in the State. The fen provides surface flow and includes
larval habitat and adjacent cover for resting and predator avoidance.
The fen, adjacent fields, and open path provide habitat for foraging
and are surrounded by contiguous, closed-canopy forest. Adults have
been documented from this unit. Known threats to the PCEs in this unit
that may require special management include feral hogs, beaver dams,
and habitat fragmentation. 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. This unit includes the Forest
Service-owned portion of Missouri Unit 11 as it was described in the
July 26, 2006 proposal (71 FR 42442).
Missouri Unit 21--Ripley County, Missouri
Missouri Unit 21 is a small fen and consists of 6 ac (2 ha) in
Ripley County, Missouri. It is under U.S. Forest Service ownership and
is located west of Doniphan. This area was not known to be occupied at
the time of listing. The fen provides surface flow and includes larval
habitat and adjacent cover for resting and predator avoidance. The fen
and adjacent open, maintained county road provide habitat for foraging
and are surrounded by contiguous, closed-canopy forest. To date, only
larvae have been documented from this locality. Known threats to the
PCEs in this unit that may require special management include feral
hogs, all-terrain vehicles, equestrian use, and habitat fragmentation.
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.
Missouri Units 23 and 24--Washington County, Missouri
Missouri Units 23 and 24 comprise the Towns Branch and Welker Fen
complex and consist of 75 ac (31 ha) near the town of Palmer in
Washington County, Missouri. The complex consists of two fens that are
under U.S. Forest Service ownership. This area was not known to be
occupied at the time of listing. These fens provide surface flow and
include larval habitat and adjacent cover for resting and predator
avoidance. The fens and adjacent open, maintained county roads provide
habitat for foraging and are surrounded by contiguous, closed-canopy
forest. To date, only larvae have been documented from this complex.
Known threats to the PCEs in this unit that may require special
management include feral hogs, all-terrain vehicles, road construction
and maintenance, and habitat fragmentation. 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.
Missouri Unit 25--Washington County, Missouri
Missouri Unit 25 consists of 33 ac (13 ha) and is located northwest
of the town of Palmer in Washington County, Missouri. The fen is
associated with Snapps Branch, a tributary of Hazel Creek, and is owned
and managed by the U.S. Forest Service. This area was not known to be
occupied at the time of listing. The fen provides surface flow, and
includes larval habitat and adjacent cover for resting and predator
avoidance. The fen and adjacent old logging road with open canopy
provide habitat for foraging and are surrounded by contiguous, closed-
canopy forest. To date, only larvae have been documented from this
locality. Known threats to the PCEs in this unit that may require
special management include feral hogs, all-terrain vehicles, and
habitat fragmentation. 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.
Missouri Unit 26--Wayne County, Missouri
Missouri Unit 26 is owned and managed by the U.S. Forest Service
and consists of 5 ac (2 ha). This small fen is located near
Williamsville and is associated with Brushy Creek in Wayne County,
Missouri. This area was not known to be occupied at the time of
listing. The fen provides surface flow and includes larval habitat and
adjacent cover for resting and predator avoidance. The fen and adjacent
logging road with open canopy provide habitat for foraging and are
surrounded by contiguous, closed-canopy forest. To date, only larvae
have been documented from this unit. Known threats to the PCEs in this
unit that may require special management include feral hogs, all-
terrain vehicles, and habitat fragmentation. 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.
Missouri Unit 27--Crawford County, Missouri
Missouri Unit 27 is owned and managed by the U.S. Forest Service
and is approximately 3.3 miles (5.2 kilometers) west and southwest of
Brazil , Missouri, or about 0.3 mile (0.4 kilometer) southeast of
Center Post Church in Crawford County, Missouri. The unit consists of
less than 1 ac (0.8 ac (0.3 ha)). This unit was not known to be
occupied at the time of listing. Adult Hine's emerald dragonflies have
been observed at the site and successful breeding was confirmed (Vogt
2008, p. 10). Surface water consists primarily of seepage pools and
small rivulets. Parts of the fen include an open field with scattered
shrubs and eastern red cedar (Juniperus virginiana) that is likely used
as a foraging area by adults. Known threats to the PCEs that may
require special management or protections include invasive plant
species, feral hogs, all-terrain vehicles, and equestrian use. 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.
[[Page 21416]]
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. 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 that may require special management or protections 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. 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 among
units. Adult numbers recorded from these units varies. Generally fewer
than eight 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 contains 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, 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 (for example, via quarrying or beaver impoundments),
contamination of the surface and ground water (for example, 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 closed 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. Numerous
male and female adults as well as ovipositing has 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 that may
require special management include encroachment of larval habitat by
invasive plants and alteration of local groundwater hydrology (for
example, 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. 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
that may require special management or protections are loss and
degradation of habitat due to development, groundwater depletion or
alteration, surface and groundwater contamination, alteration of the
hydrology of the wetlands (for example, via stream impoundment, road
[[Page 21417]]
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 closed 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. Known
threats to the PCEs that may require special management or protections
are loss and degradation of habitat due to development, groundwater
depletion or alteration, surface and groundwater contamination, and
alteration of the hydrology of the wetlands. 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. Known threats to the
PCEs that may require special management or protections are loss and
degradation of habitat due to development, groundwater depletion or
alteration, surface and groundwater contamination, and alteration of
the hydrology of the wetlands. 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. All land in the unit is privately owned. The
northern portion of the unit is owned by the Door County Land Trust.
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.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuit Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service 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 the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species (Service 2004c, p. 3).
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
endangered or threatened and with respect to its critical habitat, if
any is proposed or designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. Conference reports provide
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. We may issue a
formal conference report if requested by a Federal agency. Formal
conference reports on proposed critical habitat contain an opinion that
is prepared according to 50 CFR 402.14, as if critical habitat were
designated. We may adopt the formal conference report as the biological
opinion when the critical habitat is designated, if no substantial new
information or changes in the action alter the content of the opinion
(see 50 CFR 402.10(d)). The conservation recommendations in a
conference report or opinion are advisory.
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,
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 designated
critical habitat; or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or designated critical
habitat.
An exception to the concurrence process referred to in (1) above
occurs in consultations involving National Fire Plan projects. In 2004,
the U.S. Forest Service and the BLM reached agreements with the Service
to streamline a portion of the section 7 consultation process (BLM-ACA
2004, pp. 1-8; FS-ACA 2004, pp. 1-8). The agreements allow the U.S.
Forest Service and the BLM the opportunity to make ``not likely to
adversely affect'' (NLAA) determinations for projects implementing the
National Fire Plan. Such projects include prescribed fire, mechanical
fuels treatments (thinning and removal of fuels to prescribed
objectives), emergency stabilization, burned area rehabilitation, road
maintenance and operation activities, ecosystem restoration, and
culvert replacement actions. The U.S. Forest Service and the BLM must
insure staff are properly trained, and both agencies must submit
monitoring reports to the Service to determine if the procedures are
being implemented properly and that effects on endangered species and
their habitats are being properly evaluated. As a result, we do not
believe the alternative consultation processes being implemented as a
result of the National Fire Plan will differ significantly from those
consultations being conducted by the Service.
[[Page 21418]]
If 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 its critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the Hine's emerald dragonfly or
its designated critical habitat will require section 7(a)(2)
consultation under the Act. Activities on State, tribal, local, or
private lands requiring a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit under section 10(a)(1)(B) of the
Act from the Service) or involving some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency) will also
be subject to the section 7(a)(2) 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(a)(2) consultations.
Application of the Jeopardy and Adverse Modification Standard
Jeopardy Standard
Currently, the Service applies an analytical framework for Hine's
emerald dragonfly jeopardy analyses that relies heavily on the
importance of known populations to the species' survival and recovery.
The section 7(a)(2) of the Act analysis is focused not only on these
populations but also on the habitat conditions necessary to support
them.
The jeopardy analysis usually expresses the survival and recovery
needs of Hine's emerald dragonfly in a qualitative fashion without
making distinctions between what is necessary for survival and what is
necessary for recovery. Generally, the jeopardy analysis focuses on the
range-wide status of Hine's emerald dragonfly, the factors responsible
for that condition, and what is necessary for each species to survive
and recover. An emphasis is also placed on characterizing the
conditions of Hine's emerald dragonfly in the area affected by the
proposed Federal action and the role of affected populations in the
survival and recovery of the species. That context is then used to
determine the significance of adverse and beneficial effects of the
proposed Federal action and any cumulative effects for purposes of
making the jeopardy determination.
Adverse Modification Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features to an extent that appreciably reduces
the conservation value of critical habitat for the Hine's emerald
dragonfly. Generally, the conservation role of the dragonfly's critical
habitat units is to support viable populations throughout this species'
range.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the Hine's emerald dragonfly include, but are not
limited to, the following:
(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 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
[[Page 21419]]
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 effects 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 potential 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.
Exemptions and Exclusions
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation. Therefore, there are
no specific lands that meet the criteria for being exempted from the
designation of critical habitat under section 4(a)(3) of the Act.
Application of 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 an area as critical
habitat will result in the extinction of the species. 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.
In the following sections, we address a number of general issues
that are relevant to the exclusions made in this final rule. In
addition, we conducted an economic analysis of the impacts of the
proposed critical habitat designation and related factors, which were
available for public review and comment. 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.
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 coextensive 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 $10.5 to $25.2 million (using a 7-percent discount
rate). In annualized terms, potential costs are expected to range from
$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
[[Page 21420]]
downloading from the Internet at http://www.fws.gov/midwest/Endangered.
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. 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 PCEs, 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.
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 lands that are necessary for the conservation
of the species can assist in the recovery planning for a species, and
therefore 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
physical and biological 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 intentional, proactive actions over the lands they encompass
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.
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. Because the critical habitat process
includes multiple public comment periods, opportunities for public
hearings, and announcements through local venues, including radio and
other news sources, the designation of critical habitat provides
numerous occasions for public education and involvement. Through these
outreach opportunities, land owners, State agencies, and local
governments can become more aware of the plight of listed species and
conservation actions needed to aid in species recovery. Through the
critical habitat process, State agencies and local governments may
become aware of areas that could be conserved under State laws, local
ordinances, or specific management plans.
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
[[Page 21421]]
on private lands (Crouse et al. 2002, p. 720). Stein et al. (1995, p.
400) 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, p. 1407; Crouse et al. 2002, p. 720; James
2002, p. 271). 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. We 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.
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, pp.5-6;
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp.
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Some
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 some 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, pp. 1264-1265; Brook et al. 2003, pp.
1644-1648). We attempt to ease these concerns through communication and
outreach with landowners; however, we recognize that these efforts are
not always successful.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. In cases where conservation actions are
currently employed but anxiety regarding the potential impacts of
critical habitat designation exists, we may find that excluding non-
Federal lands from critical habitat designation results in improved
partnerships and conservation efforts.
Exclusions Under Section 4(b)(2) of the Act
We are excluding Missouri units 2b, 3, 6, 9, 10, 11b, 12-20, and 22
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 benefits of inclusion
of the specific areas. The conservation actions outlined in a Missouri
Hine's Emerald Dragonfly Recovery Plan (Missouri Department of
Conservation 2007f) and currently being implemented for the Hine's
emerald dragonfly on Missouri State-owned and on private lands 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 information
concerning other 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.
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 Department of
Conservation 2007f). Missouri is the only state within the range of the
Hine's emerald dragonfly that has management plans that specifically
address conservation of the species 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, pp.1-4; 2007b, pp. 1-3; 2007c, pp. 1-4)
(2) Formulated best management practices (Missouri Department of
Conservation 2007d, pp. 1-2) and department guidelines (Missouri
Department of Conservation 2007e, pp. 1-3); and
(3) Developed a Statewide recovery plan for the Hine's emerald
dragonfly (Missouri Department of Conservation 2007f, pp. 1-33).
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 Statewide
recovery plan (Missouri Department of Conservation 2007f) that outlines
objectives for conserving the Hine's emerald dragonfly on State managed
and privately owned property in Missouri (Table 3). The recovery plan
includes a budget for Fiscal Years 2006 to 2012, showing MDC's
commitment to continue acquiring the funds necessary to implement these
actions. The MDC coordinated closely with the Service in developing the
site-specific plans and
[[Page 21422]]
the Statewide 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 3. 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
MDC Recovery Plan Objective Hine's 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 unless Protect breeding and
specifically authorized or prescribed for foraging areas
Ozark fen restoration actions and Hine's
emerald dragonfly habitat improvement
projects
------------------------------------------------------------------------
Ensure that recreational overuse does not Protect breeding and
impact Ozark fen communities foraging areas
------------------------------------------------------------------------
Develop public outreach materials and Protect, enhance, or restore
solutions to advance the conservation of breeding and foraging areas
Hine's emerald dragonfly and Ozark fen
communities
------------------------------------------------------------------------
Manage fire-dependent wetland communities Protect, enhance, or restore
with a fire regime similar to that in breeding and foraging areas
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
complexes foraging 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, and the Statewide recovery
plan for the Hine's emerald dragonfly, along with 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 habitat.
Absent critical habitat designation, Federal agencies remain obligated
under section 7 of the Act 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.
(2) Benefits of Exclusion
Voluntarily, land managers are currently implementing conservation
actions for the Hine's emerald dragonfly and its habitat on State-
managed lands in Missouri that are beyond those that could be required
if critical habitat were designated. 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, which contribute
significantly toward achieving recovery of the species in the State.
Furthermore, 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.
(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 outweighed by
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 that will lead
to recovery, as described above, beyond those that could be required
under a critical habitat designation. The benefits of designating
critical habitat on State-owned lands in Missouri are already largely
being realized through the conservation efforts being implemented under
the Statewide recovery plan. Therefore, those benefits
[[Page 21423]]
of designation are quite small when weighed against enhancing
partnership efforts and securing conservation benefits for the species
that would be achieved through excluding State-owned lands in Missouri
from 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, which 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 2b, 3, 6, 9, 10, 11b,
12, 13, 15, 19, and 20 are under private ownership. Missouri Unit 14 is
also under private ownership but managed by the MDC.
The Nature Conservancy manages Grasshopper Hollow (Unit 11b) in
accordance with the Grasshopper Hollow Management Plan (The Nature
Conservancy 2006, pp. 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 Statewide recovery plan for the Hine's
emerald dragonfly (Missouri Department of Conservation 2007f, pp. 1-33)
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 species-occupied fens to benefit the species and
alleviate potential threats and these actions are subject to section 7
of the Act. The Missouri Department of Conservation (2007d, pp. 1-2)
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 the species' unique habitat;
providing recommendations on the control of beavers, which are harmful
to delicate fen habitat; providing education on the need for 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 or 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 4).
Table 4. 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 since
Conservation Action 2005 (in MDC
staff hours)
------------------------------------------------------------------------
Landowner technical support in the form of in-field 250
consultation, correspondence, and other
communications. Includes operations that affect
private land fens that are known Hine's emerald
dragonfly sites or potential sites.
------------------------------------------------------------------------
Farm plan development and fen restoration planning 75
for private landowners. Includes the development of
planning documents for private landowners that have
Ozark fens.
------------------------------------------------------------------------
Grazing system and forage harvesting recommendations 50
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 related to 25
beaver control within Ozark fen communities.
------------------------------------------------------------------------
[[Page 21424]]
Technical assistance to landowners regarding fencing 25
options to exclude cattle or combat possible ATV
incursions.
------------------------------------------------------------------------
Coordination with utility companies applying 50
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 including 50, plus
woody encroachment clearing and herbicide herbicide and
application; often in direct coordination with application
private land partners. expenses of
$2500.00
------------------------------------------------------------------------
Demonstration exotics control including herbicide 25
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 ensure Hine's 15 (There have
emerald dragonfly habitat is not impacted by pasture only been a few
renovation activities; includes delineation of opportunities for
habitat areas with private land partners. this action)
------------------------------------------------------------------------
Signage placement on private land fens. Signage is 15
placed on some fens when requested by private
landowners or to engender support and understanding
for fen restoration projects.
------------------------------------------------------------------------
Installation of firelines, in cooperation with 15
private landowners, on burn units that include fen
communities.
------------------------------------------------------------------------
Coordination with landowners interested in selling 40
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 directed to 40
landowners with Hine's emerald dragonfly populations
or Ozark fen natural communities.
------------------------------------------------------------------------
Media contacts (radio, television, and printed media) 80
and coordination directly related to Hine's emerald
dragonfly recovery.
------------------------------------------------------------------------
Coordination with conservation agents, often 40
regarding private land fens that may be threatened
by ATV activities
------------------------------------------------------------------------
Patrols and enforcement operations. 50
------------------------------------------------------------------------
Effective measures will continue to be incorporated to minimize
threats from feral hogs and beavers by implementing MDC's Statewide
recovery plan for the Hine's emerald dragonfly (Missouri Department of
Conservation 2007f, pp. 1-3) 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 9 and 14) and herbicide application to maintain
power line rights of way (Unit 9) were identified as potential threats
at two units. Implementing the actions outlined in Missouri Department
of Conservation's Statewide 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,
pp. 1-3). 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 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
[[Page 21425]]
parties listed above, we believe that threats to Hine's emerald
dragonfly and its habitat on private property in Missouri are
minimized.
(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 of the Act 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.
(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 MDC has a longstanding history of
working with private landowners in Missouri, especially regarding the
conservation of federally listed species. Of the 16 units being
excluded in the State, 12 (75 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 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. Excluding private land in
Missouri from designation as critical habitat for the Hine's emerald
dragonfly will facilitate the ability to implement those landowner
incentive programs with multiple landowners, which would preserve the
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 (Gillespie 2005, pers. comm.).
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, access to private property may be
important in achieving 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 on private lands in Missouri are small in
comparison to the benefits of exclusion. The conservation measures
being implemented by private landowners, as outlined above, and those
being implemented from the Missouri Hine's Emerald Dragonfly recovery
plan (Missouri Department of Conservation 2007f) provide greater
benefit to the Hine's emerald dragonfly and its habitat than would
designating critical habitat on private lands in Missouri. Furthermore,
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. Thus the relative benefits of designation of these lands are
diminished and limited. Exclusion of private lands in Missouri 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. It is our
belief that benefits gained through extra outreach efforts associated
with critical habitat and additional section 7 requirements under the
Act (in the limited situations where there is a Federal nexus), are
outweighed by the benefit of sustaining current and future conservation
partnerships, especially given that 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 the excluding the Missouri units in private
ownership (Units 2b, 3, 6, 9, 10, 11b, 12, 13, 14, 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 and the Missouri
Recovery Plan for Hine's emerald dragonfly (Missouri Department of
Conservation 2007f) 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.
[[Page 21426]]
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.
Required Determinations
Regulatory Planning and Review - Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
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 final 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. The SBREFA amended RFA to require
Federal agencies to provide a certification statement of the factual
basis for certifying that the rule will not have a significant economic
impact on a substantial number of small entities. In this final rule,
we are certifying that the critical habitat designation for Hine's
emerald dragonfly will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
our rationale.
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 apply the ``substantial number'' test individually to
each industry or category to determine if certification is appropriate.
However, the SBREFA does not explicitly define ``substantial number''
or ``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the numbers of
small entities potentially affected, we also considered whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. Some kinds of
activities are unlikely to have any Federal involvement and so will not
be affected by the designation of critical habitat. In areas where the
species is present, Federal agencies already are required to consult
with us under section 7 of the Act on activities they authorize, fund,
or carry out that may affect the Hine's emerald dragonfly. Federal
agencies must also consult with us if their activities may affect
designated critical habitat. Designation of critical habitat,
therefore, could result in an additional economic impact on small
entities due to the requirement to reinitiate consultation for ongoing
Federal activities (see Application of the ``Adverse Modification
Standard'' section).
In our final economic analysis of the critical habitat designation,
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 final economic analysis:
(a) Development Activities
According to the final economic analysis, the forecast cost of
Hine's emerald dragonfly development-related losses ranges from $8.0 to
$11.2 million 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
noninstitutional 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
[[Page 21427]]
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 final economic analysis, the forecast cost of
Hine's emerald dragonfly water use-related losses range from $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 a population 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 final economic analysis, the forecast cost of
Hine's emerald dragonfly utility and infrastructure maintenance-related
losses is estimated to be $1.1 million over 20 years, 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 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 final economic analysis, the forecast cost of
Hine's emerald dragonfly road and railway use-related losses range from
$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 final economic analysis, the forecast cost of
Hine's emerald dragonfly species management and habitat protection-
related losses is estimated at $563,000 over 20 years, 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 final economic analysis, the forecast cost of
Hine's emerald dragonfly recreation-related losses are estimated at
$19,000 (7-percent discount rate) over the next 20 years. 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.
Energy Supply, Distribution, or Use--Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 (E.O.
13211; ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'') on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. OMB has provided guidance for implementing
this Executive Order that outlines nine outcomes that may constitute
``a significant adverse effect'' when compared to not taking the
regulatory action under consideration.
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 final 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
[[Page 21428]]
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 final 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 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 Right''),
we have analyzed the potential takings implications of designating
critical habitat for the Hine's emerald dragonfly in a Takings
Implications Assessment (TIA). Critical habitat designation does not
affect landowner ations that do not require Federal funding or permits,
nor does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. The TIA concludes that the
designation of critical habitat for Hine's emerald dragonfly does not
pose significant takings implications for lands within or affected by
the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this 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--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
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 of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by the NEPA (42 U.S.C. 4321 et seq.)
in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 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,
[[Page 21429]]
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act,'' we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes. We 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 on the Internet at http://www.regulations.govand upon request
from the Field Supervisor, Chicago, Illinois, Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT section).
Authors
The primary authors of this package are the staff members of 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. Amend Sec. 17.95(i) by revising the entry for ``Hine's emerald
dragonfly (Somatochlora hineana)'' 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 in Illinois; Alpena, Mackinac, and Presque Isle Counties in
Michigan; Crawford, Dent, Iron, Phelps, Reynolds, Ripley, Washington,
and Wayne Counties in Missouri; and Door and Ozaukee Counties in
Wisconsin, on the maps below.
(2) The primary constituent elements 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, for resting, for adult females to escape from
male harassment, and for 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 (100 m)) 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 primary constituent elements, 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 nonnative
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:
BILLING CODE 4310-55-S
[[Page 21430]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.000
(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, SE1/4 NE1/4 Sec. 28, NE1/4 SE1/4 Sec. 28, NW1/4 NW1/4 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,
NW1/4 E1/2 Sec. 10, E1/2 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, SW1/4
Sec. 26, NW1/4 SE1/4 Sec. 26, E1/2 Sec. 34, W1/2 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, S1/2 NE1/4 Sec. 24, W1/2 SW1/4 Sec. 24, SE1/4 Sec. 24 and T37N,
R11E, SW1/4 SW1/4 Sec. 17, Sec. 19, NW1/4 Sec. 20 of the Romeoville
7.5' USGS topographic quadrangle. Land to the south of Bluff Road, west
of Lemont
[[Page 21431]]
Road, and north of the Des Plaines River.
(v) Illinois Unit 5: DuPage County. Located in T37N, R11E, NW1/4
Sec. 15, NW1/4 SW1/4 Sec. 15, S1/2 NE1/4 Sec. 16, SW1/4 Sec. 16, N1/2
SE1/4 Sec. 16, SE1/4 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, S1/2 Sec.
16, S1/2 NE1/4 Sec. 17, N1/2 SE1/4 Sec. 17, N1/2 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, W1/2
Sec. 1, Sec. 2, N1/2 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 Units 1 through 7 (Illinois Map 1)
follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.001
[[Page 21432]]
(7) Michigan Units 1 and 2, Mackinac County, Michigan.
(i) Michigan Unit 1: Mackinac County. The unit is located
approximately 2 miles north of the village of St. Ignace. The unit
contains all of T41N, R4W, Secs. 3, 6, 8, 9, 10, 11, 14, 15, 16, 23;
portions of T41N, R4W, Secs. 4, 7, 17, 18, 22, 24, 25, 26, 27; and
T41N, R5W, Secs. 1 and 12 of the Moran and Evergreen Shores 7.5' USGS
topographic quadrangles. The unit is west of I-75, east of Brevort
Lake, and north of Castle Rock Road.
(ii) Michigan Unit 2: Mackinac County. The unit is located
approximately 2 miles north of the village of St. Ignace. The unit
contains all of T41N, R3W, Sec. 6; portions of T41N, R4W, Secs. 1, 12,
13, 24; portions of T41N, R3W, Secs. 4, 5, 7; and portions of T42N,
R3W, Sec. 31 of the Evergreen Shores 7.5' USGS topographic quadrangle.
The unit is west of Lake Huron and east of I-75.
(iii) Note: Map of Michigan Units 1 and 2 (Michigan Map 1) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.002
[[Page 21433]]
(8) 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 Unit 3 (Michigan Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.003
(9) 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, SW1/4 SW1/4 Sec. 14, SW1/4 NW1/4 Sec. 15, NE1/4 SW1/4 Sec.
15, NW1/4 SE1/4 Sec. 15, NW1/4 SW1/4 Sec. 15, SE1/4 SE1/4 Sec. 15, NW1/
4 NE1/4 Sec. 16, NE1/4 NW1/4 Sec. 16, SE1/4 NE1/4 Sec. 16, and NW1/4
NW1/4 Sec. 23. It also contains portions of T34N, R7E, all 1/4 sections
in Secs. 15, all 1/4 sections in Sec. 16, SE1/4 and SW1/4 Sec. 9, SW1/4
Sec. 10, SW1/4 Sec. 14, NE1/4 Sec. 22, NW1/4 and NE1/4 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 Unit 4 (Michigan Map 3) follows:
[[Page 21434]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.004
BILLING CODE 4310-55-C
(10) 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,
SE1/4 SW1/4 Sec 9. It also contains portions of T31N, R9E, NW1/4 SW1/4
Sec. 9, NE1/4 SW1/4 Sec. 9, SW1/4 SW1/4 Sec. 9, SW1/4 SE1/4 Sec 9; and
portions of T31N, R9E, NE1/4 NW1/4 Sec. 16, NW1/4 NE1/4 Sec. 16, NW1/4
NW1/4 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 Unit 5 (Michigan Map 4) follows:
[[Page 21435]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.005
(11) 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, SW1/
4 SE1/4 Sec. 27. It also contains portions of T31N, R9E, NW1/4 SE1/4
Sec. 27, NE1/4 SW1/4 Sec. 27, SE1/4 SW1/4 Sec. 27, SE1/4 SE1/4 Sec. 27;
portions of T31N, R9E, NE1/4 NW1/4 Sec. 34, NW1/4 NE1/4 Sec. 34, NE1/4
NE1/4 Sec. 34; and portions of T31N, R9E, NW1/4 NW1/4 Sec. 35, NE1/4
NW1/4, NW1/4 NE1/4 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 Unit 6 (Michigan Map 5) follows:
[[Page 21436]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.006
(12) Missouri Unit 1, Crawford County, Missouri.
(i) Missouri Unit 1: Crawford County. Located in T35N, R3W, Secs.
22 and 23 of the Viburnum West 7.5' USGS topographic quadrangle.
Missouri Unit 1 is associated with James Creek and is located
approximately 1.5 miles west of Billard, Missouri.
(ii) Note: Map of Missouri Unit 1 (Missouri Map 1) follows:
[[Page 21437]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.007
(13) Missouri Units 2a and 4, Dent County, Missouri.
(i) Missouri Unit 2a: Dent County. Located in T34N, R3W, Secs. 3
and 4 of the Howes Mill Spring 7.5' USGS topographic quadrangle.
Missouri Unit 2a is associated with an unnamed tributary to West Fork
Huzzah Creek and is located approximately 2.5 air miles north of the
village of Howes Mill, Missouri adjacent to county road 438.
(ii) Missouri Unit 4: Dent County. Located in T34N, R4W, Secs. 15
and 22 of the Howes Mill Spring 7.5' USGS topographic quadrangle.
Missouri Unit 4 is associated with a tributary of Hutchins Creek in
Fortune Hollow and is located approximately 1 mile east of the juncture
of Highway 72 and Route MM.
(iii) Note: Map of Missouri Units 2a and 4 (Missouri Map 2) follows:
[[Page 21438]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.008
(14) Missouri Unit 5, Iron County, Missouri.
(i) Missouri Unit 5: Iron County. Located in T34N, R1W, Sec. 17of
the Viburnum East 7.5' USGS topographic quadrangle. Missouri Unit 5 is
located adjacent to Neals Creek and Neals Creek Road, approximately 2.5
miles southeast of Bixby.
(ii) Note: Map of Missouri Unit 5 (Missouri Map 3) follows:
[[Page 21439]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.009
(15) Missouri Unit 7, Phelps County, Missouri.
(i) Missouri Unit 7: Phelps County. Located in T36N, R9W, Sec. 9 of
the Kaintuck Hollow 7.5' USGS topographic quadrangle. Missouri Unit 7
is associated with Kaintuck Hollow and a tributary of Mill Creek, and
is located approximately 4 miles south southwest of the town of
Newburg.
(ii) Note: Map of Missouri Unit 7 (Missouri Map 4) follows:
[[Page 21440]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.010
(16) Missouri Units 8and 11a, Reynolds County, Missouri.
(i) Missouri Unit 8: Reynolds County. Located in T32N, R2W, Sec.
22, southeast 1/4, southwest 1/4 of the Bunker 7.5' USGS topographic
quadrangle. Missouri Unit 8 is adjacent to Bee Fork Creek and is
located approximately 3 miles east of Bunker.
(ii) Missouri Unit 11a: Reynolds County. Located in T32N, R1W, Sec.
30 of the Corridon 7.5' USGS topographic quadrangle. Missouri Unit 11
is located approximately 1 mile east of the intersection of Route TT
and Highway 72, extending north to the Bee Fork Church on County Road
854.
(iii) Note: Map of Missouri Units 8 and 11a (Missouri Map 5) follows:
[[Page 21441]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.011
(17) Missouri Unit 21, Ripley County, Missouri.
(i) Missouri Unit 21: Ripley County. Located in T23N, R1W, Sec. 23
of the Bardley 7.5' USGS topographic quadrangle. Missouri Unit 21 is
associated with an unnamed tributary of Fourche Creek and is located
approximately 12 miles west of Doniphan.
(ii) Note: Map of Missouri Unit 21 (Missouri Map 6) follows:
[[Page 21442]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.012
[[Page 21443]]
(18) Missouri Units 23 through 25, Washington County, Missouri.
(i) Missouri Units 23 and 24: Washington County. Located in T36N,
R1W, Sec. 13 of the Palmer 7.5' USGS topographic quadrangle. Missouri
Units 23 and 24 comprise the Towns Branch and Welker Fen complex and
are located near the town of Palmer.
(ii) Missouri Unit 25: Washington County. Located in T36N, R1W,
Secs. 2 and 11 of the Courtois 7.5' USGS topographic quadrangle.
Missouri Unit 25 is associated with a tributary of Hazel Creek and is
located approximately 1.5 miles northwest of the town of Palmer.
(iii) Note: Map of Missouri Units 23 through 25 (Missouri Map 7)
follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.013
[[Page 21444]]
(19) Missouri Unit 26, Wayne County, Missouri
(i) Missouri Unit 26: Wayne County. Located in T27N, R4E, Sec. 33
of the Ellsinore 7.5' USGS topographic quadrangle. Missouri Unit 26 is
located near Williamsville and is associated with Brushy Creek.
(ii) Note: Map of Missouri Unit 26 (Missouri Map 8) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.014
[[Page 21445]]
(20) Missouri Unit 27, Crawford County, Missouri.
(i) Missouri Unit 27: Crawford County. Located on the Courtois
quadrangle in Township 36 north, Range 2 west, section 14, northeast 1/
4, southwest 1/4, northwest 1/4.
(ii) Note: Map of Missouri Unit 27 (Missouri Map 9) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.015
[[Page 21446]]
(21) Wisconsin Unit 1, Door County, Wisconsin.
(i) Wisconsin Unit 1: Washington Island, Door County. Located in
T33N, R30E, W1/2 and NE1/4 Sec. 4, SE1/4 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 Unit 1 (Wisconsin Map 1) follows:
BILLING CODE 4310-55-S
[GRAPHIC] [TIFF OMITTED] TR23AP10.016
[[Page 21447]]
(22) 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, NE1/4 Sec. 14 of the Ellison Bay 7.5' USGS
topographic quadrangle, and in T32N, R28E, W1/2 Sec. 13, E 1/2 Sec. 14,
NE1/4 Sec. 23, portions of each 1/4 of Sec. 24, N1/2 Sec. 25, and T32N,
R29E, S1/2 Sec. 19, W1/2 Sec. 29, NE1/4 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 Unit 2 (Wisconsin Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.017
[[Page 21448]]
(23) 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, SW1/4
and S1/2 Sec. 15, portions of each 1/4 of Sec. 22, and N1/2 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, S1/2
Sec. 20, E1/2 Sec. 29, NW1/4 and S1/2 Sec. 28, N1/2 and SE1/4 Sec. 33,
and W1/2 Sec. 34. It also is located in T30N, R28E, W1/2 Sec. 3, E1/2
and SW1/4 Sec. 4, SE1/4 Sec. 8, Sec. 9, N1/2 Sec. 10, W1/2 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,
SW1/4 Sec. 13, and N1/2 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 Units 3 through 7 (Wisconsin Map 3)
follows:
[[Page 21449]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.018
(24) Wisconsin Unit 8, Door County, Wisconsin.
(i) Wisconsin Unit 8: Door County. Located in T28N, R27E, S1/2 Sec.
16, N1/2 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 Unit 8 (Wisconsin Map 4) follows:
[[Page 21450]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.019
(25) Wisconsin Unit 9, Door County, Wisconsin.
(i) Wisconsin Unit 9: Door County, Wisconsin. Located in T27N,
R24E, SE1/4 Sec.16, E1/2 Sec. 20, portions of each 1/4 of Secs. 21, 28
and 33, NW1/4 and S1/2 Sec. 34. Also located in T26N, R24E, NW1/4 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 Unit 9 (Wisconsin Map 5) follows:
[[Page 21451]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.020
(26) Wisconsin Unit 10, Ozaukee County, Wisconsin.
(i) Wisconsin Unit 10: Ozaukee County. Located in T11N, R21E, E1/2
of Sec. 20, portions of each 1/4 of Sec. 21, W1/2 Sec. 28, Sec. 29, E1/
2 Sec. 30, E1/2 and portions of NW1/4 and SW1/4 Sec. 31, Sec. 32, and
W1/2 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 Unit 10 (Wisconsin Map 6) follows:
[[Page 21452]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.021
(27) 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 11/2 miles west
of the City of Sturgeon Bay, and include portions of Kellner's Fen.
(ii) Note: Map of Wisconsin Unit 11 (Wisconsin Map 7) follows:
[[Page 21453]]
[GRAPHIC] [TIFF OMITTED] TR23AP10.022
* * * * *
Dated: April 6, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-8808 Filed 4-22-10; 8:45 am]
BILLING CODE 4310-55-C