[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Rules and Regulations]
[Pages 26013-26038]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10051]
[[Page 26013]]
Vol. 79
Tuesday,
No. 87
May 6, 2014
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revision of Critical
Habitat for Salt Creek Tiger Beetle; Final Rule
Federal Register / Vol. 79 , No. 87 / Tuesday, May 6, 2014 / Rules
and Regulations
[[Page 26014]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2013-0068; 4500030114]
RIN 1018-AY56
Endangered and Threatened Wildlife and Plants; Revision of
Critical Habitat for Salt Creek Tiger Beetle
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the
critical habitat designation for the Salt Creek tiger beetle (Cicindela
nevadica lincolniana) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 1,110 acres (ac) (449 hectares
(ha)) in Lancaster and Saunders Counties, Nebraska, fall within the
boundaries of our revised critical habitat designation. Publication of
this final rule fulfills our obligations under a settlement agreement.
The effect of this regulation is to conserve the Salt Creek tiger
beetle and its habitat under the Act.
DATES: This rule is effective on June 5, 2014.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the Nebraska Ecological Services
Field Office. Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at http://www.regulations.gov. All of the comments,
materials, and documentation that we considered in this rulemaking are
available by appointment, during normal business hours at: U.S. Fish
and Wildlife Service, Nebraska Ecological Services Field Office, 203
West Second Street, Federal Building, Grand Island, NE 68801; telephone
308-382-6468; facsimile 308-384-8835.
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.regulations.gov at
Docket No. FWS-R6-ES-2013-0068, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the Nebraska Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any
additional tools or supporting information that we developed for this
critical habitat designation will also be available at the Fish and
Wildlife Service Web site and Field Office set out above, and may also
be included in the preamble and at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Eliza Hines, Acting Field Supervisor,
U.S. Fish and Wildlife Service, Nebraska Ecological Services Field
Office, 203 West Second Street, Federal Building, Grand Island, NE
68801; telephone 308-382-6468; facsimile 308-384-8835. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. This document is a final rule to
designate revised critical habitat for the endangered Salt Creek tiger
beetle. This final rule fulfills the terms of a settlement agreement
reached on June 7, 2011 (see Previous Federal Actions). Under the
Endangered Species Act (Act), any species that is determined to be
endangered or threatened requires critical habitat to be designated, to
the maximum extent prudent and determinable. Designations and revisions
of critical habitat can only be completed by issuing a rule.
The basis for our action. We listed the Salt Creek tiger beetle as
an endangered species on October 6, 2005 (70 FR 58335), and we
designated critical habitat for the subspecies on April 6, 2010 (75 FR
17466). On June 4, 2013, we published in the Federal Register a
proposed revision to the critical habitat designation for the Salt
Creek tiger beetle (78 FR 33282). Section 4(b)(2) of the Act states
that the Secretary shall designate and make revisions to critical
habitat on the basis of the best available scientific data after taking
into consideration the economic impact, national security impact, and
any other relevant impact of specifying any particular area as critical
habitat. The Secretary may exclude an area from critical habitat if she
determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless she
determines, based on the best scientific data available, that the
failure to designate such area as critical habitat will result in the
extinction of the species. No areas have been excluded from the
critical habitat designation.
This final rule will designate critical habitat for the endangered
Salt Creek tiger beetle. The critical habitat areas we are designating
in this rule constitute our current best assessment of the areas that
meet the definition of critical habitat for the Salt Creek tiger
beetle. In total, we are designating 1,110 ac (449 ha) as critical
habitat for the Salt Creek tiger beetle in Lancaster and Saunders
Counties in Nebraska. This critical habitat designation includes saline
wetlands and streams associated with Little Salt Creek and encompasses
all three habitat areas occupied by the subspecies at the time of
listing. It also includes saline wetlands and streams associated with
Rock Creek and Oak Creek that are currently unoccupied, but supported
the subspecies less than 20 years ago. Our designation also includes
segments of Haines Branch Creek because this area has the potential to
provide suitable habitat for the Salt Creek tiger beetle and its
inclusion will reduce the risk of the subspecies' extinction by
providing redundancy in available habitat throughout multiple creeks.
Due to the presence of suitable habitat, we believe that the Salt Creek
tiger beetle occurred in Haines Branch Creek historically; however,
they have not been documented in this location due to minimal survey
effort relative to the annual surveys done at Little Salt, Rock, and
Oak Creeks.
Peer review and public comment. We sought comments from appropriate
and independent specialists to ensure that our designation is based on
scientifically sound data and analyses. We obtained opinions from four
knowledgeable individuals with scientific expertise to review our
technical assumptions and analysis, and whether or not we had used the
best available information. These peer reviewers supported the
redundancy of habitat proposed for designation, but were concerned
about the viability of existing Salt Creek tiger beetle populations,
small size of units proposed for designation, and potential for the
subspecies' recovery. Peer reviewers also provided additional
information, clarifications, and suggestions to improve this final
rule. Information we received from peer review is incorporated in this
final revised designation. We also considered all comments and
information we received from the public during both comment periods.
We prepared an economic analysis of the designation of critical
habitat. In order to consider economic impacts, we prepared an analysis
of the economic impacts of the critical habitat designation for the
Salt Creek tiger beetle and related factors. We announced the
availability of the draft
[[Page 26015]]
economic analysis (DEA) in the Federal Register on March 13, 2014 (79
FR 14206), allowing the public to provide comments on our analysis. We
have incorporated the comments and have completed the final economic
analysis concurrently with this final determination.
Previous Federal Actions
The final rule to list the Salt Creek tiger beetle as endangered
was published on October 6, 2005 (70 FR 58335). At that time, we stated
that critical habitat was prudent and determinable; however, we did not
designate critical habitat because we were in the process of
identifying the physical and biological features essential to the
conservation of the subspecies. We published a proposed rule to
designate critical habitat on December 12, 2007 (72 FR 70716). On June
3, 2008, we published a notice in the Federal Register to reopen the
comment period and announce a public hearing (73 FR 31665). On April
28, 2009, we published a revised proposed rule to designate critical
habitat (74 FR 19167). A final rule designating approximately 1,933 ac
(782 ha) of critical habitat was published on April 6, 2010 (75 FR
17466). The Center for Native Ecosystems, the Center for Biological
Diversity, and the Xerces Society (plaintiffs) filed a complaint on
February 23, 2011, regarding designation of critical habitat for the
subspecies. The plaintiffs asserted that we failed to designate
sufficient critical habitat to conserve and recover the subspecies. A
settlement agreement between the plaintiffs and the Service was reached
on June 7, 2011, and we agreed to reevaluate our designation of
critical habitat. Accordingly, we published a proposed rule to revise
the critical habitat designation for the Salt Creek tiger beetle on
June 4, 2013 (78 FR 33282). On March 13, 2014, we published a document
in the Federal Register (79 FR 14206) reopening the public comment
period on the proposed rule to revise critical habitat for the Salt
Creek tiger beetle and making available the draft economic analysis and
draft environmental assessment for the action. This rule finalizes our
revisions to the critical habitat designation for the Salt Creek tiger
beetle.
Background
It is our intent to discuss below only those topics directly
relevant to revisions to the critical habitat designation for the Salt
Creek tiger beetle. For more detailed information regarding the
subspecies and the listing of the subspecies, refer to the final rule
to list the subspecies as endangered published on October 6, 2005 (70
FR 58335).
Taxonomy and Subspecies Description
The Salt Creek tiger beetle (Cicindela nevadica lincolniana) is a
subspecies in the class Insecta, order Coleoptera, and family Carabidae
(Integrated Taxonomic Information System 2012, p. 1). At least 85
species of tiger beetles and more than 200 subspecies exist in the
United States; 26 species and 6 subspecies are known from Nebraska
(Carter 1989, p. 8). Tiger beetles are fast-moving, predaceous insects
(Carter 1989, p. 9). The Salt Creek tiger beetle's average length is
0.4 inches (in) (10 millimeters (mm)), and its color is dark brown
shading to green (Carter 1989, pp. 12 and 17).
Distribution, Abundance, and Trends
The Salt Creek tiger beetle is endemic to saline wetlands
associated with the Salt Creek watershed and some of its tributaries in
Lancaster and southern Saunders Counties in eastern Nebraska (Allgeier
2005, p. 18). Historical estimates of the extent of these saline
wetlands vary. Fowler (2012, p. 41) estimates that approximately 65,000
ac (26,000 ha) of saline wetlands occurred historically within the Salt
Creek watershed. LaGrange et al. (2003, p. 3) estimated that more than
20,000 ac (8,100 ha) occurred historically. Farrar and Gersib (1991, p.
20) cite a report from 1862 that estimated there were 16,000 ac (6,480
ha) of saline wetlands in four basins near the present-day town of
Lincoln. It is not clear which four basins they are describing, but
these basins were likely only a portion of the entire eastern Nebraska
saline wetland complex. Historically, the Salt Creek tiger beetle was
probably widely distributed throughout the eastern saline wetlands of
Nebraska, especially at the type locality of Capitol Beach (Allgeier
2005, p. 41) along Oak Creek. However, in the past 150 years,
approximately 90 percent of these wetlands have been degraded or lost
due to urbanization, agriculture, and drainage (LaGrange et al. 2003,
p. 1; Allgeier 2005, p. 41).
The most complete recent inventory, conducted in 1992 and 1993,
identified 3,244 ac (1,314 ha) of ``Category 1'' wetlands remaining in
Lancaster and Saunders Counties (Gilbert and Stutheit 1994, p. 10). The
authors define Category 1 wetlands as high-value saline wetlands or
saline wetlands with the potential to be restored to high value
(Gilbert and Stutheit 1994, p. 6). High-value wetlands were defined as
meeting one or more of the following criteria: (1) The presence of Salt
Creek tiger beetles; (2) the presence of one or more rare or restricted
halophytes (salt-tolerant plants); (3) historical significance as
identified by the Nebraska State Historical Society; (4) the presence
of plants characteristic of saline wetlands and not highly degraded, or
the potential for saline wetland characteristics after enhancement or
restoration; and (5) high potential for restoration of the historical
salt source. Other categories of wetlands described in the inventory,
including Categories 2, 3, and 4, were thought to provide limited or no
saline wetland functions. At that time, it was thought that these
wetland types had little or no potential for reestablishing the salt
source and hydrology needed to restore and maintain saline conditions
(Gilbert and Stutheit 1994, p. 7). Since 1994, however, techniques
involving removal of excess sediment and restoration of saline water
through installation of wells has made restoration of Categories 1, 2,
and 3 feasible. Removal of sediment has exposed saline seeps and
restored Salt Creek tiger beetle habitat along Little Salt Creek to the
extent that the subspecies now uses some of the restored areas (Harms
2013, pers. comm.). Category 2, 3, and 4 wetlands can also protect
Category 1 saline wetlands from negative impacts associated with
sediment transport and freshwater dilution of salinity. Without
adjacent Category 2, 3, and 4 wetlands, Category 1 saline wetlands can
degrade and cease providing saline wetland functions (USFWS 2005, p.
11; LaGrange 2005, pers. comm.; Stutheit 2005, pers. comm.). The
Service completed a detailed assessment of wetlands prior to listing
the Salt Creek tiger beetle in 2005, and concluded that, following
years of degradation in the Salt Creek watershed, approximately 35 ac
(14 ha) of barren salt flats and saline stream edges contain the entire
habitat currently occupied by the Salt Creek tiger beetle, which is not
sufficient to sustain the subspecies.
Visual surveys of Salt Creek tiger beetles, using consistent
methods, timing, and intensity, have been conducted by University of
Nebraska at Lincoln since 1991 (Spomer 2012a, pers. comm.). Over the
past 22 years, the total number of Salt Creek tiger beetle adults
counted during visual surveys has ranged from 115 (in 1993) to 777 (in
2002) individuals (Figure 1). The most recent count was 365 adults in
2013. A 2-year mark-recapture study indicated that visual surveys may
underestimate the subspecies' population by approximately 40-50
percent, and
[[Page 26016]]
recommended that a 2X correction factor be applied (Allgeier et al.
2003, p. 6; Allgeier et al. 2004, p. 3; Allgeier 2005, p. 40). However,
these mark-recapture efforts were conducted on a small population that
may have experienced immigration or emigration during the sampling
period; therefore, all assumptions may not have been met (Spomer 2012b,
pers. comm.) and use of these results to make a population estimate may
not be appropriate. Additionally, mark-recapture requires handling
beetles and may interfere with egg-laying (Allgeier 2004, p. 3).
Therefore, visual studies are preferred since they are more economical
and less intrusive (Allgeier et al. 2003, p. 6; Allgeier et al. 2004,
p. 3; Allgeier 2005, p. 53); however, visual studies do not provide the
same precision as do mark-recapture studies.
Insects typically show greater population variability than many
other animal species (Thomas 1990, p. 326), and their annual population
numbers are generally cyclic. A very small population size indicates a
vulnerability to extinction (Thomas 1990, pp. 325-326; Shaffer 1981, p.
131; Lande 1993, pp. 911-912; Primack 1998, p. 179) because when
numbers decline, the population can become locally extirpated. The
long-term data show a fluctuating, but very small population size for
Salt Creek tiger beetles.
[GRAPHIC] [TIFF OMITTED] TR06MY14.011
In addition to the number of individuals, the number of populations
is critical when considering distribution, abundance, and trends. Salt
Creek tiger beetles have been located at 14 sites since surveys began
in 1991 (Brosius 2010, p. 12). We consider these 14 sites to represent
6 different populations based upon documented dispersal distances and
presence of discrete suitable habitat for the subspecies (70 FR 58336,
October 6, 2005). Three of these populations have been extirpated since
surveys began in 1991: The Capitol Beach population along Oak Creek,
the Upper Little Salt Creek-South population on Little Salt Creek, and
the Jack Sinn Wildlife Management Area (WMA) population on Rock Creek.
For these populations, surveys showed that the number of individuals
declined and then completely disappeared, leaving us to conclude that
the population had become locally extirpated. The three remaining
populations, Upper Little Salt Creek-North, Arbor Lake, and Little Salt
Creek-Roper, all occur in the Little Salt Creek watershed, along a
stream reach of approximately 7 miles (mi) (11 kilometers (km)) (Fowler
2012, p. 41).
Habitat
The Salt Creek tiger beetle has very specific habitat requirements.
It occurs in remnant saline wetlands on exposed mudflats and along the
banks of streams and seeps that contain salt deposits (Carter 1989, p.
17; Spomer and Higley 1993, p. 394; LaGrange et al. 2003, p. 4). Soil
moisture and soil salinity are critically important in habitat
selection (Allgeier et al. 2004, p. 6) for foraging, where the female
lays eggs, and for larval habitat. The subspecies uses soil moisture
and soil salinity to partition habitat between other collocated species
of tiger beetles (Allgeier 2005, p. 64). Moist, saline, open flats are
needed for thermoregulation, reproduction, and foraging.
Nebraska's eastern saline wetlands are maintained through
groundwater discharge that originates in Pennsylvanian and/or Permian
formations as it passes through a salt source likely located in north-
central Kansas. This system occurs in the flood plains of Salt Creek
and flows in a general pattern from southwest to northeast of Lincoln,
Nebraska, in Lancaster and southern Saunders Counties (Harvey et al.
2007, p. 738). From the perspective of the larger Nebraska Eastern
Saline Wetlands ecosystem, little is known about the connections
between the surface water and the underlying groundwater and dissolved
salts, or about the extent of the flow systems that feed the wetlands.
From a local perspective, especially when making decisions about land
management actions, it can be difficult to make informed management
decisions about wetland protection or the impact of future development
(Harvey et al. 2007, p. 738). However, the eastern saline wetlands are
dependent upon a regional-scale groundwater flow system and may not be
replenished indefinitely (Harvey et
[[Page 26017]]
al. 2007, p. 750). Subsurface geology, geomorphic features (including
manmade features), and topographic characteristics all affect the
hydrology of the wetlands, resulting in variability between each
wetland (Kelly 2011, pp. 97-99).
Life History
The Salt Creek tiger beetle typically has a 2-year life cycle of
egg, larval, and adult stages (Ratcliffe and Spomer 2002, unpaginated;
Allgeier 2005, pp. 3-4). Adult females lay eggs in moist, saline
mudflats along the banks of seeps and in saline wetland habitats when
soil moisture and saline levels are appropriate. Upon hatching, each
larva excavates a burrow where it lives for the next 2 years; the
burrow is enlarged by the larva as it grows. Larvae are sedentary
predators, catching prey that passes nearby. Larvae are more directly
affected by a limited food supply than adults because they are not as
mobile as adults and almost never leave their burrows. Following
pupation, adults emerge from the burrows in the late spring to early
summer of their second year and mate. Adults are typically active in
May, June, and July before dying (Allgeier 2005, p. 63).
Adult Salt Creek tiger beetles have a mean dispersal distance of
137 feet (ft) (42 meters (m)) and a maximum dispersal of 1,506 ft (459
m), and most are recovered within 82 ft (25 m) of the marking location,
based upon a study of 60 individuals (Allgeier 2005, p. 50) in which 24
individuals were relocated following capture and 36 were not. The Salt
Creek tiger beetle appears to have narrower habitat requirements for
egg-laying, foraging, and thermoregulation than other tiger beetles
found in Nebraska's eastern saline wetlands (Brosius 2010, p. 5).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Salt Creek tiger beetle during
two comment periods. The first comment period associated with the
publication of the proposed rule (78 FR 33282) opened on June 4, 2013,
and closed on August 5, 2013. We also requested comments on the
proposed critical habitat designation, associated draft economic
analysis, and draft environmental assessment during a comment period
that opened on March 13, 2014, and closed on March 28, 2014 (79 FR
14206). We did not receive any requests for a public hearing. We also
contacted appropriate Federal, State, and local agencies; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule, draft economic analysis, and draft environmental
assessment during these comment periods.
During the first comment period, we received eight comment letters
addressing the proposed critical habitat designation. During the second
comment period, we received nine comment letters addressing the
proposed critical habitat designation, draft economic analysis, and
draft environmental assessment. All substantive information provided
during both comment periods has either been incorporated directly into
this final determination or is addressed below. Comments received were
grouped into 32 general issues relating to the proposed critical
habitat designation for the Salt Creek tiger beetle, and are addressed
in the following summary and incorporated into the final rule as
appropriate.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from four appropriate and
independent individuals with scientific expertise that included
familiarity with the subspecies, the geographic region in which the
subspecies occurs, and conservation biology principles. We received
responses from all four peer reviewers. Peer reviewer comments are
addressed in the following summary and incorporated into the final rule
as appropriate.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Salt Creek tiger beetle. The peer reviewers supported the addition
of the Haines Branch and Oak Creek Units to the critical habitat
designation to increase habitat redundancy, but expressed concern about
whether these alone were sufficient to recover the Salt Creek tiger
beetle. Concerns were raised as to whether populations of 500
individuals or fewer can remain viable over the long term. A peer
reviewer also pointed out that the proposed rule does not protect and
ensure the availability of saline groundwater.
Peer Reviewer Comments
(1) Comment: Multiple peer reviewers supported our proposal to
designate critical habitat at the Haines Branch and Oak Creek Units for
the benefit of habitat redundancy, thereby reducing the risk of
subspecies' extinction.
Our Response: We determined that the addition of the Haines Branch
and Oak Creek Units are essential to the conservation of the subspecies
because they provide necessary habitat redundancy in the event of a
negative environmental impact associated with Little Salt Creek, the
only stream system that currently supports the Salt Creek tiger beetle.
(2) Comment: A peer reviewer pointed out that the four areas
currently proposed probably represent the minimum amount of habitat
needed for the subspecies to increase in abundance and distribution,
but stated that these may not be enough to recover the subspecies.
Our Response: Our proposed designation of critical habitat, based
on the best scientific and commercial data available, sought to
identify the habitat needed to support the survival and recovery of the
Salt Creek tiger beetle. Our final designation is over 31 times larger
than the amount of habitat that is currently available for the Salt
Creek tiger beetle and includes three additional currently unoccupied
areas (Rock Creek, Oak Creek, and Haines Branch Units). For our
analysis, we determined that six populations were the minimum number of
populations needed to maintain the subspecies' viability and that each
viable population needed at least 116 ac to meet life requisites. Thus,
a total of 696 ac (116 ac x 6 populations) are needed to maintain the
subspecies' viability. Our final critical habitat acreage (1,110 ac) is
59 percent larger than this amount (696 ac), to ensure that we have
delineated sufficient habitat for the subspecies to survive and
recover. Populations will continue to be monitored on an annual basis
to track status and trends over time.
(3) Comment: The peer reviewer stated concern about the reduction
in the number of acres proposed from 1,933 to 1,110, pointing out that
although redundancy was good, this reduction might negatively impact
the net gain of adding additional units.
Our Response: In this final revised designation, we have targeted
areas that are better able to support the subspecies. This designation
includes saline seeps where the subspecies has actually been found
along Rock, Little Salt, Oak, and Haines Branch Creeks. Additionally, a
137-foot (42 meter [m]) dispersal distance was extended outward on
either side of these creeks to provide the Salt Creek tiger beetle with
access to a vegetative mosaic around the salt flats located in the
floodplain. The use of the 137 foot (42 m) dispersal distance outward
from the creeks is the primary reason why the critical habitat acreage
is less that our previous designation
[[Page 26018]]
(1,933 acres) (782 hectares [ha]), which included large blocks of
adjacent Category I saline wetlands. These large blocks of Category I
saline wetlands cannot support the Salt Creek tiger beetle without
habitat restoration. In addition, this revised designation better
provides for conservation by including additional unoccupied habitat so
that we can establish additional populations needed to improve the
subspecies' redundancy and resiliency, two important factors in
reducing extinction risk.
(4) Comment: A peer reviewer stated that there is uncertainty with
regard to whether populations of 500 or fewer can remain viable over
the long term although a small population of tiger beetles can remain
provided suitable habitat is available.
Our Response: Little is known about the minimal viable population
size or the amount of habitat needed to sustain a viable population of
Salt Creek tiger beetles. However, we have preliminarily determined
that 500-1,000 adults is a reasonable estimate of a minimum viable
population for the subspecies based on recovery plans for two other
species of tiger beetles in the same genus (Cicindela) and surveys
conducted for the Salt Creek tiger beetle since 1991. These plans
consider a minimum viable population size to be at least 500-1,000
adults (Hill and Knisley 1993, p. 23; Hill and Knisley 1994, p. 31).
The authors base this estimate on available literature and on
preliminary observations of population stability at several sites, but
acknowledge that there is little information available regarding the
amount of habitat necessary to support a population of this size. We do
know that Salt Creek tiger beetles can persist in relatively small
areas provided that suitable habitat is available. Populations will
continue to be monitored on an annual basis to track status and trends
of the subspecies over time.
(5) Comment: A peer reviewer pointed out that the proposed rule
still does not protect and ensure the availability of saline
groundwater and guarantee the survival of the Salt Creek tiger beetle
for all time.
Our Response: We acknowledge the importance of groundwater in
creating and maintaining saline wetlands including saline seeps and
barren salt flats. However, there is a high level of uncertainty with
regard to the location of groundwater relative to the surface, flow
pattern, interaction with surface water, and influence on saline
wetlands and streams. Our designation of critical habitat is based on
the presence and location of the primary constituent elements (PCEs),
which are habitat features that are critical to the survival and
recovery of the Salt Creek tiger beetle. While we did not include
groundwater itself as a PCE, groundwater contributes, in part, to the
formation of the more specific habitat elements used by the Salt Creek
tiger beetle, such as saline barrens and seeps found within saline
wetland habitat. These more specific aspects of the species habitat are
what we considered as the PCEs on which our critical habitat
designation is based. Section 7 consultation under the Act (16 U.S.C.
1531 et seq.) does, however, provide a level of protection to
groundwater by triggering consultation should it be determined that a
federal action may affect groundwater to the extent that such impacts
would result in the destruction or adverse modification of these PCEs.
Additionally, there are other important recovery actions, including
land acquisition and restoration projects, that are underway to help
protect the saline wetlands. We believe that these actions and the
designation of critical habitat collectively will act to protect the
saline groundwater system for the benefit of the Salt Creek tiger
beetle.
(6) Comment: Peer reviewers recommended further study on vegetative
characteristics and wetland community classification, hydrologic
research on Haines Branch and Oak Creek Units, and development of a
plan to address light pollution.
Our Response: We are supportive of further research that would aid
in the recovery of the Salt Creek tiger beetle and the saline wetland
ecosystem. Our section 6 program continues to provide funding to the
Nebraska Game and Parks Commission (Commission) for research on
federally listed endangered and threatened species. This source of
funding is available to fund these kinds of important projects through
a competitive grant process. As far as how this information pertains to
the critical habitat designation, the Act requires us to make
determinations based on the best scientific and commercial data
available. It does not require additional studies, or that we wait
until we have all the information that we would like to have. This rule
is based on the best available information that we had at the time we
made the decision.
Comments From the State
Comments we received from the Commission, Nebraska Department of
Roads (NDOR), Nebraska Military Department (NMD), and Nebraska
Department of Environmental Quality (NDEQ) regarding the proposal to
designate critical habitat for the Salt Creek tiger beetle are
addressed below.
(7) Comment: The Commission does not consider the proposed
designation of 1,110 ac of critical habitat for the Salt Creek tiger
beetle to be adequate for the conservation of the subspecies, and it is
insufficient to maintain populations. The Commission stated that the
approach used by the Service to prepare the proposed rule minimizes the
amount of area designated as critical habitat rather than designating
what is needed to conserve and sustain the subspecies. The Commission
suggested that an adequate critical habitat designation would include
all Category I saline wetlands and a 1,500 foot (457 m) zone to ensure
the interconnection of ground and surface water flows and facilitate
dispersal capabilities of the Salt Creek tiger beetle.
Our Response: Our designation of critical habitat identifies the
habitat needed to support the survival and recovery of the Salt Creek
tiger beetle. In this final revised designation, we have targeted areas
that are better able to support the subspecies. This designation
includes saline seeps where the subspecies has actually been found
along Rock, Little Salt, Oak, and Haines Branch Creeks. Additionally, a
137-foot (42 meter [m]) dispersal distance was extended outward on
either side of these creeks to provide the Salt Creek tiger beetle with
access to a vegetative mosaic around the salt flats located in the
floodplain. A designation as large as the one the Commission suggests
would include a substantial amount of habitat that is currently
unsuitable for the species without restoration. Our final designation
is more than 31 times larger than the amount of habitat that is
currently available for the Salt Creek tiger beetle and includes three
additional unoccupied areas (Rock Creek, Oak Creek, and Haines Branch
Units). For our analysis, we determined that six populations were the
minimum number of populations needed to maintain the subspecies'
viability and that each viable population needed at least 116 ac to
meet life requisites. Thus, a total of 696 ac (116 ac x 6 populations)
is needed to maintain the subspecies' viability. Our final critical
habitat acreage (1,110 ac) is 59 percent larger than this amount (696
ac), to ensure that we have delineated sufficient habitat for the
subspecies to survive and recover. Populations will continue to be
monitored on an annual basis to track status and trends over time.
(8) Comment: The Commission stated that an unsubstantiated process
that has no scientific basis was used by the Service to calculate the
area needed for
[[Page 26019]]
critical habitat. The Commission further stated that the supposition by
the Service that 153 Salt Creek tiger beetles occurring on 35 acres is
a viable population and that amount of habitat can be used for
calculating critical habitat requirements is indefensible.
Our Response: We do not assume that 153 Salt Creek tiger beetles on
35 acres is a viable population, and we discuss the process used to
determine the acreage needed in the Population Spatial Needs section of
this rule. As we noted previously, little is known about the minimal
population size or the amount of habitat needed to sustain a viable
population of Salt Creek tiger beetles. However, general estimates of a
minimum viable wildlife population typically range from 500-1,000
individuals (Shaffer 1981, p. 133; Thomas 1990, p. 325). We used the
estimate of 153 adult beetles (the minimum population of Salt Creek
tiger beetles counted over the past 10 years) as a starting point, and
assumed that at least 3.3 times that number would be needed to achieve
a single viable population, with at least six populations needed to
maintain the subspecies' viability. We further estimated that if those
153 beetles occupied approximately 35 acres of habitat, it was
reasonable to assume that 3.3 times as many beetles would require
approximately 3.3 times as much habitat (116 acres) to support a single
viable population, and 696 acres would support six populations. If the
higher estimate (1,000 adult beetles) is used, similar calculations
would conclude that approximately 232 ac would be needed to support a
single viable population, and 1,392 ac would be needed to support six
populations. Therefore, approximately 696-1,392 ac would sustain the
viability of Salt Creek tiger beetles. Consequently, we believe that
the designation of 1,110 ac of critical habitat is a reasonable
estimate of the amount of habitat essential for the subspecies. We
acknowledge the assumptions and uncertainties associated with our
estimates; however, in the absence of better information we conclude
that this is a reasonable approach.
(9) Comment: The Commission questioned the assumption used by the
Service that just because the area is occupied it can also sustain a
population over the long term. The Commission pointed out that three of
six known populations have disappeared already and that numbers of
individuals are on a general decline within those three populations as
an indication that the population is not sustaining itself. Further,
the existing populations still face the same threats of habitat loss
and degradation.
Our Response: Our designation of critical habitat for the Salt
Creek tiger beetle is based on the best scientific and commercial data
available. We acknowledge that there is uncertainty about whether the
existing populations can be maintained. However, the areas included in
our final designation constitute the best remaining Salt Creek tiger
beetle habitat in existence. We are aware of no areas that would be
better or more capable of supporting Salt Creek tiger beetles. We agree
with the Commission that the 35 acres that are currently occupied by
the Salt Creek tiger beetle are insufficient to sustain and recover the
subspecies. For this reason, we are designating an additional 249 acres
of critical habitat on Little Salt Creek. Populations will continue to
be monitored on an annual basis to track status and trends of the
subspecies, and future adjustments in the amount of habitat protected
may be necessary.
(10) Comment: The Commission stated that the occupied habitat
currently proposed by the Service for designation is at high risk and
marginal, and will not sustain the Salt Creek tiger beetle over the
long term. The Commission stated that the habitat proposed for
designation occurs on steep slopes along stream banks and can be easily
eroded and overcovered following bank sloughing that buries larval
burrows. Prey is likely not as abundant in these locations given the
sloping bank and potential inability of larvae to capture prey in
sufficient qualities.
Our Response: The habitat included in our final designation
constitutes the best available remaining habitat for the subspecies. As
described in our rule to list the subspecies, habitat for the Salt
Creek tiger beetle has been lost and severely degraded by commercial,
residential, and infrastructure developments leading to intrusion of
excess freshwater and dilution of salinity and channelization and bank
armoring projects resulting in entrenchment of saline streams and loss
of saline wetlands through hydrologic modification. This large-scale
habitat loss and degradation led to our decision to list the
subspecies. Although the remaining habitat is degraded, it constitutes
the best Salt Creek tiger beetle habitat remaining. We agree with the
Commission that 35 acres that are currently occupied by the Salt Creek
tiger beetle are insufficient to sustain and recover the subspecies.
For this reason, we are designating an additional 249 acres of critical
habitat on Little Salt Creek. We recognize that habitat used by the
Salt Creek tiger beetle along Little Salt Creek beetle is at high risk
due to over-covering by bank sloughing and bank erosion, which scours
away developing larvae. We hope that the listing and critical habitat
designation will facilitate better conservation and recovery of the
subspecies and its habitat.
(11) Comment: The Commission expressed concern that the small areas
of habitat proposed for designation by the Service would result in a
loss of population resilience due to amplified effects of limiting
factors including drought, prey reduction, interspecific competition,
parasitism, and predation risk on a small population of Salt Creek
tiger beetles.
Our Response: In this final designation, we have targeted areas
that are better able to support the subspecies. We have determined that
the 35 acres that are currently occupied by the Salt Creek tiger beetle
are insufficient to sustain the subspecies. For this reason, we are
designating an additional 249 acres of critical habitat on Little Salt
Creek, which should lead to population expansion and increased
resiliency. In addition, this designation better provides for
conservation by including additional unoccupied habitat so that we can
establish additional populations needed to improve the subspecies'
redundancy and resiliency, two important factors in reducing extinction
risk. This subspecies' vulnerability to threats is part of the reason
that the subspecies is listed as endangered.
(12) Comment: The Commission pointed out that the language
``limited to its range'' as stated in the proposed rule is not in the
definition of critical habitat and introduces criteria not specified in
the definition that would result in reducing the acreage proposed for
critical habitat. The Commission indicated that the inclusion of this
provision ignores a primary habitat component that is required to
protect critical habitat for the Salt Creek tiger beetle, namely areas
that are adjacent to Salt Creek tiger beetle habitat that are
hydrologically connected and upon which occupied habitat is dependent
for maintaining populations of the subspecies, even if it is not
present at these areas. The Commission recommends that hydrologically
connected areas that are adjacent to the areas under the current
proposal be included because they meet the definition of critical
habitat and they are essential for the conservation of the subspecies
under the Act even though the Salt Creek tiger beetle may not be found
in these areas.
[[Page 26020]]
Our Response: In our designation of critical habitat for the Salt
Creek tiger beetle, we used a two-pronged approach to designate areas
that are essential for the survival and recovery of the subspecies.
Under the first prong, areas within the geographical area occupied by
the (sub)species at the time it was listed are included in a critical
habitat designation if they contain the physical and biological
features (1) which are essential to the conservation of the
(sub)species and (2) which may require special management
considerations or protection. Under the second prong of the Act's
definition of critical habitat, we can designate critical habitat in
areas outside the geographical area occupied by the (sub)species at the
time it is listed, upon a determination that such areas are essential
for the conservation of the (sub)species. We designate critical habitat
in areas outside the geographical area occupied by the species only
when a designation limited to its range would be inadequate to ensure
the conservation of the species. We concluded that the designation of
the Little Salt Creek Unit alone would be inadequate to ensure the
conservation of the Salt Creek tiger beetle. As such, our designation
also included the Oak, Rock, and Haines Branch Creek Units.
In order to include surrounding vegetative areas that provide
essential resources and support functions to the subspecies, we
delineated areas on segments of the four creeks that extended 137 ft
(the average known dispersal distance for the subspecies) on either
side of the stream course. We used 137 ft because it is the average
distance that the Salt Creek tiger beetle can move to meet life-history
requisites which can be satisfied within the stream segment and
adjacent saline barrens and seeps in the floodplain area. We concluded
that this distance would provide the subspecies with sufficient prey
resources. Additionally, we have included sufficient occupied and
unoccupied habitat to contribute to the recovery the Salt Creek tiger
beetle. We have included 826 acres of unoccupied areas because we
determined that they are essential for the conservation of the
subspecies. We believe that this amount is a reasonable amount of area
to provide habitat for an additional 1,500 beetles in the future.
Our designation of critical habitat for the Salt Creek tiger beetle
must be based on the best scientific and commercial data available.
There are other important recovery actions, including land acquisition
and restoration projects, underway in the saline wetlands. We believe
that these actions combined with our designation of critical habitat
will act in concert to protect the saline groundwater system for the
benefit of the Salt Creek tiger beetle.
(13) Comment: The Commission stated that the use of the 137-foot
buffer around Salt Creek tiger beetle habitat by the Service was
inadequate based on research conducted on documented movement patterns
showing that the subspecies can move up to 0.25-mile. They also pointed
out that a 137-foot buffer is unrelated to protection of the saline
system, which maintains subspecies' habitat through the complex
interaction of ground and surface water.
Our Response: We chose to use a mean dispersal distance of 137 feet
because it is an average distance, a scientifically accepted way of
accounting for outliers in the data, and based on the best scientific
and commercial data available. The use of a 137-foot dispersal distance
was based on a study done by Allgeier (2005, pp. 50-52) where 60 marked
Salt Creek tiger beetles were released at five locations. Of those, 24
were recaptured with a mean dispersal distance of 137 feet (42 m) and a
standard error of 21.58. Most individually-marked beetles were
recaptured within 25 m of the location from where they were first
captured and marked. Only three of the 24 beetles recovered were found
at farther distances; one was recaptured 1,506 feet (459 m) away and
two were recaptured 1,312 feet (400 m) away from where they were first
captured and marked. Our use of a 137-foot buffer on either side of the
streams designated as critical habitat is not intended to address
protection of the complex interactions between surface and groundwater,
which are important for maintaining saline wetland habitat for the Salt
Creek tiger beetle. We used 137 ft because it is the average distance
that the Salt Creek tiger beetle can move to meet lifehistory
requisites, which can be satisfied within the stream segment and
adjacent saline barrens and seeps in the floodplain area while
minimizing the inclusion of unsuitable habitat areas. We also concluded
that this distance would provide the subspecies with sufficient prey
resources.
(14) Comment: The Commission recommends that all Category 1 saline
wetlands be designated as critical habitat and that a 1,500-foot buffer
encompass these sites to protect the saline wetland/surface and
groundwater interaction and to address movement capabilities of the
Salt Creek tiger beetle to ensure dispersal among saline habitats.
Our Response: We appreciate the recommendation and the Commission's
commitment toward the recovery of the Salt Creek tiger beetle and the
saline wetland ecosystem on which it depends. However, our designation
of critical habitat focuses on the PCEs essential to the conservation
of the Salt Creek tiger beetle. These PCEs are primarily located along
Rock, Little Salt, Oak Creek, and Haines Branch Creeks, but in many
cases are in locations lacking in adjacent saline wetlands. For this
reason, we do not designate all the Category I saline wetlands because
they lack the necessary PCEs. Thus, our designation represents the
habitat needed to support the conservation of the Salt Creek tiger
beetle and is based on the best scientific and commercial data
available.
(15) Comment: The NDOR inquired if the proposed critical habitat
designation includes the road and highway rights-of-way or the toe
slopes that would fall within the right-of-way boundary.
Our Response: This revised critical habitat designation is for
areas that have the primary constituent elements (PCEs) required by the
Salt Creek tiger beetle and that require special management
considerations and protection. As such, critical habitat does not
include roads, road shoulders, road toe slopes, and other paved areas,
but could include lands within a highway right-of-way beyond the
aforementioned structures if those lands contain the primary
constituent elements. Additionally, a federal action involving roads,
road shoulders, road toe slopes, and other paved areas will not trigger
section 7 consultation with respect to critical habitat unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
(16) Comment: The NDOR commented that the acreage and ownership
percentages are reversed in the table between City of Lincoln and NDOR
for the Oak Creek Unit.
Our Response: The table was modified to reflect the correct acreage
and ownership.
(17) Comment: The NMD commented about potential restrictions at
their Lincoln Airbase due to the proposed designation of critical
habitat for the Salt Creek tiger beetle. These concerns included
potential restrictions on type of aircraft (rotary or fixed winged),
landing and departure areas, and flight path due to the proposed
critical habitat designation.
Our Response: The NMD's Lincoln Airbase is not located within the
boundaries of the critical habitat designation. As such, we do not
anticipate recommending any potential restrictions on aircraft type,
landing and departure areas, and/or flight path given
[[Page 26021]]
that the distance between NMD property boundaries and the large salt
flat within the Oak Creek Unit exceeds 0.65 mile, a distance exceeding
the flight capacity of the Salt Creek tiger beetle. We are unaware of
any research on the Salt Creek tiger beetle or any other tiger beetle
that would support such modifications.
(18) Comment: The NMD commented that the proposed critical habitat
designation may result in restrictions to routine maintenance and
repair of the Lincoln Airbase in terms of requiring modifications to
lighting, mowing, water runoff or drainage, fence repair, road repair,
and replacement.
Our Response: The NMD's Lincoln Airbase is not located within the
boundaries of the critical habitat designation. As such, we do not
anticipate recommending any potential restrictions on the routine
maintenance and repair activities that occur at the Lincoln Airbase
given that the distance between NMD property boundaries and the large
salt flat within the Oak Creek Unit exceeds 0.65 mile, a distance
exceeding the flight capacity of the Salt Creek tiger beetle.
Additionally, the presence of Oak Creek creates a protective boundary
around the Oak Creek Unit, thereby preventing runoff and other drainage
from entering the Oak Creek Unit.
(19) Comment: The NMD expressed concern that the Salt Creek tiger
beetle would migrate on to the Lincoln Airbase from the Oak Creek Unit.
Our Response: The Salt Creek tiger beetle has very narrow habitat
preferences and would not migrate on to the Lincoln Airbase where such
habitat is unavailable.
(20) Comment: The NMD espressed concern about the potential for a
future increase in the critical habitat designation within the Oak
Creek Unit.
Our Response: Our critical habitat designation is based on a
targeted identification of primary constituent elements which comprise
suitable habitat for the Salt Creek tiger beetle. Our analysis showed
that none of the primary constituent elements are present on the
Lincoln Airbase and are not likely to exist there in the future. As
such, we would not expand our critical habitat designation to that area
in the future.
(21) Comment: The NDEQ pointed out that the designation of critical
habitat for the Salt Creek tiger beetle might prohibit new and expanded
discharges from wastewater treatment facilities, municipal separate
storm sewer system, and water treatment plants that are located
upstream from the critical habitat units on Rock, Little Salt, Oak, and
Haines Branch Creeks. The NDEQ suggested further dialogue with the
Service on how to implement their responsibilities under the Clean
Water Act without requiring additional unneeded infrastructure and
expeditures by those entities holding permits for these discharges.
Our Response: The Service has engaged in and will continue to
maintain a dialogue with NDEQ about these various forms of discharges.
We note that prohibitions against new and expanded discharges by NDEQ
to protect the Salt Creek tiger beetle may not be necessary depending
on their volume and timing.
Public Comments
(22) Comment: The proposed revised designation of only 1,110 ac of
critical habitat for the Salt Creek tiger beetle is inadequate to
ensure the survival and recovery of the subspecies. The Service should
err on the side of the subspecies and include any potential saline
wetland habitat in the proposed critical habitat.
Our Response: We believe that our designation of critical habitat
is the amount of habitat needed to support the survival and recovery of
the Salt Creek tiger beetle and is based on the best scientific and
commercial data available. We have determined that the 35 acres
currently occupied by the Salt Creek tiger beetle is insufficient to
sustain the subspecies. We are designating an additional 249 acres of
critical habitat on Little Salt Creek, plus three additional unoccupied
units, which should lead to population expansion and resiliency. In
this final revised designation, we have targeted areas that are better
able to support the subspecies. This designation includes saline seeps
where the subspecies has actually been found along Rock, Little Salt,
Oak, and Haines Branch Creeks. Additionally, a 137-foot (42 meter [m])
dispersal distance was extended outward on either side of these creeks
to provide the Salt Creek tiger beetle with access to a vegetative
mosaic around the salt flats located in the floodplain. The use of the
137 foot (42 m) dispersal distance outward from the creeks is the
primary reason why the critical habitat acreage is less that our
previous designation (1,933 acres) (782 hectares (ha)), which included
large blocks of adjacent Category I saline wetlands. These large blocks
of Category I saline wetlands would need to be restored to provide
habitat for the Salt Creek tiger beetle.
(23) Comment: A commenter stated that the method used by the
Service of determining critical habitat acreage based on an ``acres
needed'' mathematical model is not biologically defensible, risks
extinction of the subspecies, and is arbitrary and capricious.
Determining that amount of habitat available at the time of a survey
that is sufficient to sustain the population assumes that the
population is evenly distributed and all the primary constituent
elements are available within those 35 acres to support a population
over the long term. There is no information that demonstrates that
these assumptions were met or considered.
Our Response: Our designation of critical habitat, based on the
best scientific and commercial data available, identifies habitat
needed to support the survival and recovery of the Salt Creek tiger
beetle. As is described in this final rule, our determination is based
on an evaluation of habitat needs and mapping of primary constituent
elements in occupied and unoccupied areas. We determined that the 35
occupied acres are insufficient to support the conservation of the Salt
Creek tiger beetle. The purpose of the mathematical calculation is to
inform our decision on the amount of critical habitat that is needed to
ensure the conservation and recovery of the Salt Creek tiger beetle.
These calculations help confirm that the 1,110 designated acres fall
within the range of acres determined to be needed for recovery of the
subspecies. (Also see our response to comment 8).
(24) Comment: A commenter pointed out the high degree of variation
between the use of mark/recapture counts and visual counts to determine
Salt Creek tiger beetle population size and lack of confidence that
should be placed on visual counts; the commenter recommended use of
mark/recapture counts on a regular basis in conjunction with visual
counts of the Salt Creek tiger beetle. The commenter pointed out that
the acreage of critical habitat needed should be based on the habitat
needs and presence of PCEs and not on the amount of land occupied that
was measured in one survey year.
Our Response: We acknowledge the commenter's concerns about the
limitations of mark/recapture studies and recognize the implication
that the type of survey has in our designation of critical habitat.
However, a review of the data shows that mark/recapture studies were
conducted on a small population that may have experienced immigration
and emigration and, thus, may not have met the assumptions inherent to
the use of mark/recapture methods. We determined that visual surveys
provided the best available scientific information
[[Page 26022]]
because they were based on consistent survey methods done under similar
intensity, and were done at the same time on an annual basis since 1991
by the University of Nebraska at Lincoln.
(25) Comment: Commenters stated that there is no scientific support
for the assertion that 500 individuals in a population is viable given
that the designation of 500 individuals is based on survey data from
1991 through 2011, when the number of individuals and populations were
in decline. Thus, use of 500 individuals is based on an estimate taken
not at the time of stability, but during a time of decline. While
current scientific estimates are not available for what population size
may be required by the Salt Creek tiger beetle, the commenter
recommended that the Service should alternatively designate critical
habitat that supports the recovery of larger population sizes to err on
the side of the subspecies.
Our Response: See our response to Comment (8), above.
(26) Comment: A commenter pointed out that the Salt Creek tiger
beetle is facing extinction in the near future and suggested that
instead of three populations left that only two are left (and one is
nonviable--Upper Little Salt Creek) and that these two populations
appear to be a single population given synchrony in annual population
numbers between Little Salt Creek at Arbor Lake and Lower Little Salt
Creek.
Our Response: We have modified the text in this rule to show that
the Upper Little Salt Creek population may not be viable. We are
designating additional acres adjacent to the currently occupied area on
Upper Little Salt Creek in the hopes of expanding the population to
viable levels. However, we believe that the Little Salt Creek-Arbor
Lake and Lower Little Salt Creek populations are discrete. Little, if
any, population emmigration and immigration likely occurs between these
two populations because of the lack of habitat between them and because
the distance between them far exceeds the dispersal capability of the
Salt Creek tiger beetle. However, these populations are likely
influenced by similar abiotic events, which have similar effect on
population numbers over time. Populations will continue to be monitored
on an annual basis to track status and trends over time.
(27) Comment: A commenter recommended the use of water as a PCE for
the designation of critical habitat for the Salt Creek tiger beetle
given the requirements of adults to have it available during mating and
ovipositing.
Our Response: We agree that water is an important aspect of Salt
Creek tiger beetle recovery in terms of providing moist soils for
thermoregulation and suitable sites for larval habitat. As such, we
identified surface water and groundwater as physical features for the
Salt Creek tiger beetle in our proposed rule and this final rule for
the designation of critical habitat. While we did not include
groundwater itself as a PCE, groundwater contributes, in part, to the
formation of the more specific habitat elements used by the Salt Creek
tiger beetle, such as saline barrens and seeps found within saline
wetland habitat. These more specific aspects of the species habitat are
what we considered as the PCEs on which our critical habitat
designation is based. Also see our response to Comment 5.
(28) Comment: One commenter stated that the proposed rule did not
consider the importance of peripheral populations in achieving
population stability in addition to the source populations as it did in
the Service's advanced concept paper from 2005. The commenter
recommended the inclusion of peripheral populations in our proposed
revised designation.
Our Response: We recognize that the presence of additional
populations is important to the conservation of the Salt Creek tiger
beetle. For this reason, we included the Haines Branch and Oak Creek
Units as additions to the Rock and Little Salt Creek Units as part of
this designation. We are hopeful that the subspecies can be
reestablished in these areas in the future through reintroductions.
(29) Comment: A commenter inquired as to the basis for how the Oak
Creek Unit was determined to be critical habitat for the Salt Creek
tiger beetle.
Our Response: Our analysis of critical habitat was based on the
availability of PCEs for the Salt Creek tiger beetle. A large salt flat
located at the Oak Creek Unit was determined to have suitable habitat
based on the presence of salt flats and saline seeps within the
adjacent right of way along Interstate 80. The presence of exposed
salts indicates that water is evaporating from the surface, supporting
our assertion that the site has appropriate hydrology to support the
Salt Creek tiger beetle. Additionally, a Salt Creek tiger beetle survey
done in 1992 identified suitable habitat at the Oak Creek Unit.
Although this survey is dated, there has been no activity in the area
that would result in the modification of saline soils or hydrology such
that suitable habitat would no longer be present at the Oak Creek Unit.
(30) Comment: Two commenters expressed concern that the proposed
designation of critical habitat for the Salt Creek tiger beetle could
affect current and future operations at the Lincoln Airport. The
commenters suggested that any changes to airport operations, such as
modifications to flight patterns, changes to aircraft operating
parameters, or restrictions on maintenance and construction, could
result in administrative and implementation costs to the airport that
are not addressed in the economic analysis.
Our Response: We do not anticipate any restrictions or
modifications to airport operations or other activities occurring on
Lincoln Airport lands. The lands we are designating are not used for
aircraft operations but are considered a noise buffer for the airport.
The types of activities known to occur within the area of the critical
habitat designation include agriculture, grazing, and other forms of
routine land management.
Activities occurring within the area of the critical habitat
designation at the airport are unlikely to require a permit from a
Federal agency. The Federal Aviation Administration (FAA) may initiate
section 7 consultation prior to issuing future grant funding for the
operation or maintenance of the airport. However, we do not anticipate
requesting any restrictions or modifications to airport operations or
the use of alternative flight paths because the airport itself is
nearly 0.25-mile away from the critical habitat area, thus, far
exceeding the dispersal distance of the subspecies. Further, we have no
information to indicate that flight activities would have an effect on
the Salt Creek tiger beetle or its critical habitat.
(31) Comment: Two commenters suggested that the proposed
designation of critical habitat for the Salt Creek tiger beetle could
affect the ability of the Lincoln Airport to secure grants from the
FAA's Airport Improvement Program. In particular, the commenters
expressed concern that the designation of critical habitat could lead
to violations of grant assurances for safe airport operation if the
designation leads to the implementation of conservation measures, such
as restrictions on mowing; this could increase the presence of wildlife
on the airfield or the likelihood of wildlife/aircraft strikes. The
commenters also expressed concern that the designation of critical
habitat could lead to violations of grant assurances for financial
self-sufficiency if the designation leads to restrictions on
agricultural or grazing activity on airport lands. Violations of grant
assurances could jeopardize the
[[Page 26023]]
airport's ability to secure future Federal funding.
Our Response: The types of activities known to occur within the
portion of the Lincoln Airport that is included within the critical
habitat designation include agriculture, grazing, and routine land
management activities. As described above, critical habitat is unlikely
to result in changes to these activities.
(32) Comment: One comment suggested that we failed to fulfill our
responsibility to communicate and coordinate with stakeholders by not
communicating with the Lincoln Airport Authority as part of the
economic analysis.
Our Response: The contractor conducting the economic analysis
attempted to contact the Lincoln Airport Authority via email on
December 10, 2013, and in subsequent phone calls. Because the
contractor was unable to reach the Lincoln Airport Authority, the
economic analysis references information provided by the Lincoln/
Lancaster County Planning Department.
Summary of Changes From Proposed Rule
We have made changes to this final rule based on the information we
received in comments regarding the origins of the salinity in Salt
Creek tiger beetle habitat, viability of the Upper Little Salt Creek
population, and landowner and acreage information. The following is a
summary of our changes:
Text in the Habitat and ``Surface Water'' sections now
states that the source of salinity in Salt Creek tiger beetle habitat
originates from the Pennsylvanian and/or Permian formations, and that
the actual salt source is in north-central Kansas.
Acreage and ownership percentages and land ownership
descriptions were verified and corrected for the Oak Creek Unit in
Table 2.
Text was modified to clarify that the Upper Little Salt
Creek population may not be viable in the Final Critical Habitat
designation section of this Rule, Little Salt Creek Unit description.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the 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 obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its 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
[[Page 26024]]
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, other
unpublished materials, or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or 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, in determining which areas within the
geographical area occupied by the (sub)species at the time of listing
to designate as critical habitat, we consider the physical or
biological features essential to the conservation of the (sub)species
and which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Salt Creek tiger beetle from studies of this subspecies'
habitat, ecology, and life history as described in the Critical Habitat
section of the proposed rule to designate critical habitat published in
the Federal Register on June 4, 2013 (78 FR 33282), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on October 6, 2005
(70 FR 58335). We have determined that the Salt Creek tiger beetle
requires the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
Individual Spatial Needs--The Salt Creek tiger beetle requires
areas associated with saline seeps along stream banks and salt flats
with the appropriate soil moisture and salinity levels and that are
largely barren and nonvegetated. During the subspecies' nearly 2-year
larval stage, its spatial requirements are small, but very specific in
terms of soil texture, moisture, and chemical composition (Allgeier et
al. 2004, pp. 5-6; Allgeier 2005, p. 64; Brosius 2010, p. 20; Harms
2012a, pers. comm.). At this stage, the subspecies is a sedentary
predator that positions itself at the top of its burrow to catch prey
that passes nearby. Tiger beetle larvae do not move more than an inch
or so from where eggs are originally deposited by the female (Brosius
2010, p. 64).
The adult stage of the Salt Creek tiger beetle lasts a few weeks in
May, June, and July (Carter 1989, pp. 8 and 17). Adults have greater
spatial requirements in order to accommodate foraging needs and egg-
laying. We do not have information regarding historic dispersal
distances for the subspecies. However, adults are strong fliers (Carter
1989, p. 9); therefore, it is likely they could disperse some distance
if suitable habitat was available. A recent study documented adults
dispersing up to 1,506 feet (ft) (459 meters(m)), with a mean dispersal
distance of 137 ft (42 m), and most individuals dispersed less than 82
ft (25 m) (Allgeier 2005, p. 50). Longer dispersal movements almost
certainly occur (Allgeier 2005, p. 51).
A female will lay up to 50 eggs during her brief adult season, each
in a separate burrow (Rabadinanth 2010, p. 14). We do not have
subspecies-specific information regarding the typical distance between
burrows in the wild. However, tiger beetles using burrows in close
proximity to one another may succumb to intraspecific and interspecific
competition (Brosius 2010, p. 27). Efforts to breed the subspecies in
captivity attempted to keep burrows in terrariums at least 1 inch (25
milimeter) apart; at this distance, incidences of burrow collapse due
to proximity to another burrow were documented (Allgeier 2005, pp. 121-
122).
Population Spatial Needs--We do not have subspecies-specific
information regarding a minimum viable population size for the Salt
Creek tiger beetle or the amount of habitat needed to sustain a viable
population. However, we have preliminarily determined that 500-1,000
adults is a reasonable estimate of a minimum viable population for the
subspecies based on recovery plans for two other species of tiger
beetles in the same genus (Cicindela). These plans consider a minimum
viable population size to be at least 500-1,000 adults (Hill and
Knisley 1993, p. 23; Hill and Knisley 1994, p. 31). The authors base
this estimate on available literature and on preliminary observations
of population stability at several sites, but acknowledge that there is
little information available regarding the amount of habitat necessary
to support a population of this size.
The Salt Creek tiger beetle is historically known from six
populations (70 FR 58336, October 6, 2005); four from Little Salt
Creek, one from Rock Creek, and one from Oak Creek (i.e., Capitol
Beach). Half of these populations are now extirpated. Our recovery goal
for the subspecies is to re-establish six populations, each with a size
of 500 individuals or more. Little Salt Creek contains saline wetland
and stream habitats currently occupied by the remaining populations of
the subspecies. Rock and Oak Creeks also contain saline wetland and
stream habitats although the subspecies has disappeared from those
areas. One of the populations at Little Salt Creek (Upper Little Salt
Creek South population) was extirpated, leaving the remaining three
populations. The two additional populations on Rock and Oak Creeks
existed prior to the mid-1990s (70 FR 58336, October 6, 2005). Visual
surveys of adults at the three remaining populations on Little Salt
Creek over the past 10 years have ranged from 153 to
[[Page 26025]]
745 individuals (Harms 2009, p. 3). The Service determined that 38 ac
(15 ha) of scattered barren salt flats and saline stream edges remain
in the Little Salt Creek watershed, with approximately 35 ac (14 ha)
currently occupied by the Salt Creek tiger beetle (70 FR 58342, October
6, 2005; George and Harms 2013, pers. comm.).
In the absence of specific data on how much space is required to
maintain viable populations of Salt Creek tiger beetles, we derived an
estimate of the amount of habitat needed to support six viable
populations as follows. The minimum population of Salt Creek tiger
beetles counted over the past 10 years was 153 adult beetles in 2005,
from three populations. We consider a minimum of 500 adult beetles
necessary to maintain a single viable population. The small population
of 153 beetles occupied approximately 35 ac (14 ha) of habitat. We
estimate that 3.3 times as much habitat would be required to support a
minimum of 500 beetles; therefore approximately 116 ac (47 ha) are
required to support a single viable population, and approximately 696
ac (282 ha) would be required to support 6 viable populations. This
estimate is very conservative from the standpoint that 500 individuals
was used as a minimum viable population size. If the upper number in
the range of 500-1,000 adults to support a single viable population is
used, similar calculations would conclude that approximately 1,368 ac
(554 ha) are required to support six viable populations of the
subspecies. Therefore, based upon the best available information, it is
reasonable to assume that 696-1,368 ac (282-554 ha) are needed to
maintain the subspecies' viability. Therefore, we designed our revised
critical habitat units to provide sufficient habitat to ensure the
subspecies' recovery.
Summary--Based upon the best available information, we conclude
that recovery of the Salt Creek tiger beetle would require at least six
populations, with each population containing at least 500-1,000 adults
of the subspecies. We estimate that at least 696-1,368 ac (282-554 ha)
would be required to maintain these populations. Given the nature of
insect populations, which are cyclic and subject to local extirpations,
the subspecies must be sufficiently abundant and in a geographic
configuration that allows them to repopulate areas following local
extirpations when suitable habitat conditions return. Salt Creek tiger
beetles require nonvegetated areas associated with stream banks, mid-
channel islands, and salt flats to meet life-history requirements as
core habitat, as well as adjacent habitat to facilitate dispersal and
protect core habitat. We identify these spatial characteristics as a
necessary physical feature for this subspecies.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--The Salt Creek tiger beetle is a predatory insect. Larvae are
sedentary predators that capture small prey passing over or near their
burrows on the soil surface. Adults are very quick and agile, and use
this ability to actively hunt a wide variety of flying and terrestrial
invertebrates (Allgeier 2005, pp. 1-2, 5). Insect prey may be supported
by the limited open habitat in close proximity to the burrows or by the
adjacent vegetated habitat. Typical prey items include insects
belonging to the orders Coleoptera (beetles), Orthoptera (grasshoppers
and crickets), Hemiptera (true bugs), Hymenoptera (ants, bees, and
wasps), Odonata (dragonflies), Diptera (flies), and Lepidoptera (moths
and butterflies) (Allgeier 2005, p. 5). Ants appear to be the most
commonly observed prey of adult tiger beetles (Allgeier 2005, p. 5).
Larvae are more easily affected by a limited food supply than adults
because they almost never leave their burrows and must wait for prey
(Ratcliffe and Spomer 2002, unpaginated).
Surface Water--The Salt Creek tiger beetle prefers very moist soils
for egg-laying and during its larval stage, with mean soil moisture of
47.6 percent (Allgeier 2005, p. 72). This high moisture percentage
likely aids in the subspecies' ability to tolerate heat (Allgeier 2005,
p. 75) and keeps the soil malleable during burrow construction and
maintenance (Harms 2012b, pers comm.). Adults of the subspecies spend
significantly more time on damp surfaces and in shallow water than
other tiger beetles (Ratcliffe and Spomer 2002, unpaginated; Brosius
2010, p. 70). This close association with seeps and adjacent shallow
pools may allow adults to forage at times when high temperatures limit
foraging by other saline-adapted tiger beetles. However, this
association may also explain some of the subspecies' vulnerability to
extinction--beyond the loss of saline wetlands in general, the limited
seeps and pools in the remaining habitat may represent a further
limitation regarding habitat (Brosius 2010, p. 74). Channelization
along Salt Creek has increased its velocity, which in turn has resulted
in deep cuts in the lower reaches of its tributaries. This change has
caused these tributary streams to function like drainage ditches,
lowering adjacent water table levels and drying many of the saline
wetlands that once provided suitable habitat for the subspecies (Farrar
and Gersib 1991, p. 29; Murphy 1992, p. 12). Additionally, saline seeps
located along Little Salt Creek have become over-covered following bank
sloughing that was facilitated by channel entrenchment. Seeps are
currently the only locations that provide suitable larval habitat.
Groundwater--Nebraska's eastern saline wetlands are fed by
groundwater aquifer discharge originating from Pennsylvanian and/or
Permian formations with the actual salt source located in north-central
Kansas. Urban expansion associated with the City of Lincoln is placing
increasing demands on the aquifer (Gosselin et al. 2001, p. 99). The
official soil series description for the ``Salmo'' soil series notes
that the water table is near the surface in the spring and at depths of
2-4 ft (0.6-1.2 m) in the fall (USDA 2009). Harvey et al. (2007, p.
740) monitored groundwater levels and groundwater salinity at Rock
Creek and Little Salt Creek from 2000 through 2002. They found that
groundwater did not reach the soil surface and was present in the upper
few yards (meters) of the soil column only during the spring when
groundwater levels were at their highest due to winter snowmelt and
spring rainstorms. They also noted that the depth of groundwater was
related to the proximity of the stream, such that groundwater was at a
lower depth near a stream than far away from it. They also noted that
the area was under slight drought conditions during the study period.
The increased depth to groundwater in this region is likely due to a
combination of factors including drought, channelization along Salt
Creek, and water depletions for urban and agricultural uses. If
groundwater levels continue to decline, saline features of the wetlands
could gradually change to freshwater, or wetlands could dry. Either of
these scenarios could result in extirpation of the Salt Creek tiger
beetle from affected wetlands and could ultimately lead to extinction
of the subspecies.
Saline Soils--Soils in the eastern saline wetlands of Nebraska
typically contain chloride or sulfate salts and have a pH from 7-8.5
(Allgeier 2005, p. 17). Salt Creek tiger beetles prefer soils that are
slightly saline, with an optimal electroconductivity of 2,504
milliSiemens per meter (mS/m) (Allgeier 2005, p. 75). However,
salinities as low as 1,656 mS/m have been measured at survey sites
(Rabadinanth 2010, p. 19). Soil salinity may serve as a means of
partitioning
[[Page 26026]]
habitat between the 12 species of tiger beetles in the genus Cicindela
that use the saline wetlands of Nebraska (Allgeier et al. 2004, pp. 5-
6; Allgeier 2005, p. 65; Brosius 2010, p. 13).
The ``Salmo'' soil series is found at all known occurrences for the
subspecies (Allgeier 2005, p. 42). This soil type is formed on saline
flood plains, and its characteristics typically include: (1) A texture
of silt loam or silty-clay loam, (2) 0-2 percent slope, (3) somewhat
poorly drained or poorly drained soils, and (4) 0-3 feet to the water
table (Gersib and Steinauer 1991, p. 41; Gilbert and Stutheit 1994, p.
4; USDA 2009, pp. 1-3). The ``Saltillo'' soil series is found in
adjacent Saunders County and has soil characteristics very similar to
the ``Salmo'' soil series (USDA 2006, pp. 1-4). Consequently we believe
that this soil type may also be able to provide suitable salinity
levels and capacity to hold sufficient soil moisture for the
subspecies.
Light--Salt Creek tiger beetles have only been observed laying eggs
at night (Allgeier et al. 2004, p. 5). Light pollution from urban areas
likely disrupts nocturnal behavior by attracting beetles towards the
light and out of their normal habitats (Allgeier et al. 2003, p. 8). In
both field and laboratory studies, attraction to light from different
types of lamps varied, in decreasing order, from blacklight, mercury
vapor, fluorescent, incandescent, and sodium vapor, with blacklight
being the most favored by the subspecies (Allgeier 2005, pp. 89-95).
The disruption in behavior caused by lights could affect egg-laying
activity of females, if it attracts females into unsuitable habitat.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires abundant available insect
prey (supported by both the immediate core habitat and adjacent
habitat), moist saline soils, and minimal light pollution. We identify
these characteristics as necessary physical or biological features for
the subspecies.
Cover or Shelter
Burrows--Salt Creek tiger beetle larvae are closely associated with
their burrows, which provide cover and shelter for approximately 2
years. Larvae are sedentary predators and position themselves at the
top of their burrows. When prey passes nearby, a larva lunges out of
its burrow, clutches the prey in its mandibles, and pulls the prey down
into the burrow to feed. Once a larva obtains enough food, it plugs its
burrow and digs a pupation chamber, emerging as an adult in early
summer of its second year (Ratcliffe and Spomer 2002, unpaginated;
Allgeier 2005, p. 2). The subspecies is a visual predator, requiring
open habitat to locate prey (Ratcliffe and Spomer 2002, unpaginated).
Consequently, a clear line of sight is important. Habitat that becomes
covered with vegetation no longer provides suitable larval habitat
(Allgeier 2005, p. 78). Burrow habitat can also be impacted from
disturbances such as trampling (Spomer and Higley 1993, p. 397), which
causes soil compaction and damages the fragile crust of salt that is
evident on the soil surface. After the adult emerges from the pupa, it
remains in the burrow chamber while its outer skeleton hardens
(Ratcliffe and Spomer 2002, unpaginated). For the remainder of its
brief adult stage, burrows are no longer used.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires a suitable burrow in moist,
saline, sparsely vegetated soils for its larval stage. We identify this
characteristic as a necessary physical feature for the subspecies.
Sites for Breeding, Reproduction, or Development of Offspring
Annual visual surveys have been conducted since 1991, when six
populations were known. Each of the three populations of Salt Creek
tiger beetle currently known is associated with Category 1 wetlands
along Little Salt Creek including moist saline soils and seeps which
can be located at saline wetlands and streams. Three additional
populations occurred in the mid-1990s on Little Salt Creek, Oak Creek,
and Rock Creek, but these have been extirpated since 1998. No records
of the subspecies are known for other tributaries of Salt Creek.
However, the subspecies may have been abundant historically, based on
numerous museum specimens collected from the Oak Creek area (locally
referred to as Capitol Beach (Carter 1989, p. 17; Allgeier et al. 2003,
p. 1)). The Oak Creek (Capitol Beach) population was severely impacted
following construction of the Interstate-80 corridor and other urban
development (Farrar and Gersib 1991, pp. 24-25), and finally
disappeared in 1998. Little or no suitable habitat remains along Oak
Creek because it has been channelized and has become somewhat
entrenched. However, numerous saline seeps and a large salt flat are
located southwest of Oak Creek in its former floodplain. Little Salt
Creek and Rock Creek still contain numerous saline wetlands and are the
focus of efforts to protect remaining saline wetlands (Farrar and
Gersib 1991, p. 40). Saline seeps are known to occur at the Haines
Branch Creek. Few regular surveys for the Salt Creek tiger beetle have
been done in these areas; however, suitable habitat occurs there, and
more habitat could be potentially restored to aid in the recovery of
the Salt Creek tiger beetle (USFWS 2005, p. 18). Given the presence of
suitable habitat for a subspecies with very narrow habitat preferences
with historical records nearby, we can infer that the subspecies was
likely present there in the past.
The Salt Creek tiger beetle has very specific habitat requirements
for foraging, egg-laying, and larval development. Requirements
regarding water, soil salinity, and exposed habitat are described in
the previous sections.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires a core habitat of moist
saline soils with minimal vegetative cover for foraging, egg-laying,
and larval development. Adjacent, more vegetative habitat is used for
shade to cool adults (Harms 2013, pers. comm.), protecting core
habitat, and supporting a diverse source of prey for adults and larval
Salt Creek tiger beetles. Approximately 90 percent of all remaining
wetlands suitable for Salt Creek tiger beetles occur in the Little Salt
Creek and Rock Creek watersheds, but saline seeps and wetlands also
occur at Oak and Haines Branch Creeks. We identify barren salt flats
and saline seeps along streams and within suitable wetlands as a
necessary physical feature for the subspecies.
Primary Constituent Elements for the Salt Creek Tiger Beetle
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Salt Creek tiger beetle in areas occupied at the
time of listing, focusing on the features' primary constituent
elements. Primary constituent elements are those specific elements of
the physical or biological features that provide for a (sub)species'
life-history processes and are essential to the conservation of the
(sub)species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the
(sub)species' life-history processes, we determine that the primary
constituent elements specific to the Salt Creek tiger beetle are saline
barrens and seeps found within saline wetland habitat in Little Salt,
Rock, Oak and Haines Branch Creeks. For our evaluation, we determined
that two
[[Page 26027]]
habitat types within suitable wetlands are required by the Salt Creek
tiger beetle:
Exposed mudflats associated with saline wetlands or the
exposed banks and islands of streams and seeps that contain adequate
soil moisture and soil salinity are essential core habitats. These
habitats support egg-laying and foraging requirements. The ``Salmo''
soil series is the only soil type that currently supports occupied
habitat; however, ``Saltillo'' is the other soil series that has
adequate soil moisture and salinity and can also provide suitable
habitat.
Vegetated wetlands adjacent to core habitats that provide
shade for subspecies thermoregulation, support a source of prey for
adults and larval forms of Salt Creek tiger beetles, and protect core
habitats.
With this final designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the subspecies, through the identification of the
features' primary constituent elements sufficient to support the life-
history processes of the subspecies.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features that are essential to the conservation of
the species and which may require special management considerations or
protection. A detailed discussion of threats to the Salt Creek tiger
beetle and its habitat can be found in the October 6, 2005, final rule
to list the subspecies (70 FR 58335).
The primary threats impacting the physical and biological features
essential to the conservation of the Salt Creek tiger beetle are
described in detail in the final rule to list the subspecies published
on October 6, 2005 (70 FR 58335). These threats may require special
management considerations or protection within the critical habitat and
include, but are not limited to, urban development (e.g., commercial
and residential development, road construction, associated light
pollution, and stream channelization) and agricultural development
(e.g., over-grazing and cultivation). These threats are exacerbated by
having only three populations on one stream (Little Salt Creek) with
extremely low numbers and a highly restricted range making this
subspecies particularly susceptible to extinction in the foreseeable
future.
The features essential to the conservation of the Salt Creek tiger
beetle (exposed, moist, saline areas associated with stream banks, mid-
channel islands, and mudflats) may require special management
considerations or protection to reduce threats. For example, a loss of
moist, open habitat necessary for larval foraging, thermoregulation,
and other life-history activities resulted in the extinction of another
endemic tiger beetle--the Sacramento Valley tiger beetle (Cicindela
hirticollis abrupta) (Knisley and Fenster 2005, p. 457). This was the
first tiger beetle known to be extirpated. Actions that could
ameliorate threats include, but are not limited to:
(1) Increased protection of existing habitat through actions such
as land acquisition and limiting access;
(2) Restoration of potential habitat within saline wetlands and
streams through exposure of saline seeps, removal of sediment layers to
expose saline soils and seeps, and use of wells to pump saline water
over saline soils by Federal, State, and local interested parties;
(3) Establishment of multiple populations in the Rock, Oak, and
Haines Branch Creeks through captive rearing and translocation of
laboratory-reared larvae originating from wild populations;
(4) Protection of habitat adjacent to existing and new populations
to provide dispersal corridors, support prey populations, and protect
wetland functions; and
(5) Avoidance of activities such as groundwater depletions, new
channelization projects, increased surface water runoff, and
residential or road development that could alter soil moisture levels,
salinity, open habitat, or low light levels required by the subspecies.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify occupied areas at the time of listing that
contain the features essential to the conservation of the species. If,
after identifying areas occupied at the time of listing, we determine
that those areas are inadequate to ensure conservation of the species,
in accordance with the Act and our implementing regulations at 50 CFR
424.12(e) we then consider whether designating additional areas--
outside those occupied at the time of listing--are essential for the
conservation of the species. We are designating critical habitat in
areas within the geographical area occupied by the subspecies at the
time of listing in 2005 (Little Salt Creek) under the first prong of
the Act's definition of critical habitat. We also are designating
specific areas outside the geographical area occupied by the subspecies
at the time of listing that were documented to be occupied as recently
as the mid-1990s, or are presumed to have been occupied in the past
given the availability of suitable saline habitat, but which are
presently unoccupied (Rock, Oak, and Haines Branch Creeks), under the
second prong of the Act's definition of critical habitat. We have
determined that such areas are essential for the conservation of the
subspecies as they will spread the risk of subspecies extinction over
multiple stream systems. Important sources of supporting data include
the final rule for listing the subspecies (70 FR 58335, October 6,
2005), the recovery outline (USFWS 2009), available literature, and
information provided by the University of Nebraska at Lincoln and the
Commission (citations noted herein).
We are including all currently occupied habitat in our designation
of critical habitat because any further loss of occupied habitat would
increase the Salt Creek tiger beetle's susceptibility to extinction. As
previously noted, the subspecies currently occupies approximately 35 ac
(14 ha) of saline wetland and streams in three small populations along
approximately 7 mi (11 km) of Little Salt Creek. The three existing
populations are referred to as Upper Little Salt Creek-North, Little
Salt Creek-Arbor Lake, and Little Salt Creek-Roper.
We are also including unoccupied saline wetlands, specifically
saline salt flats along Little Salt Creek that are interspersed among
these three populations. These barren salt flats are essential to the
conservation of the subspecies because they provide larval habitat,
protect existing populations, provide dispersal corridors between
populations, support prey populations, and provide potential habitat
for new populations.
Lastly, we are including unoccupied barren salt flats and saline
streams along Rock, Oak, and Haines Branch Creeks that were either
occupied by the subspecies until 1998 (i.e., Rock and Oak Creeks) or
have suitable habitat for the Salt Creek tiger beetle, but were
surveyed infrequently (Haines Branch). We have determined that these
areas (Little Salt, Rock, Oak, and Haines Branch Creeks) are essential
to the conservation of the subspecies because they provide necessary
redundancy in
[[Page 26028]]
the event of an environmental catastrophe associated with Little Salt
Creek--the only watershed that currently supports the subspecies. All
of these areas are tributaries to Salt Creek.
We recommend that at least one viable population of Salt Creek
tiger beetles be established in each of the three unoccupied units of
critical habitat, recognizing the uncertainty as to which areas will
successfully support reintroduced populations. However, so little
appropriate habitat remains in one of these units (Haines Branch) that
it is below the number of acres that we estimated would be necessary to
support a population of 500 adults. With habitat restoration, we
believe that the Haines Branch Unit would be capable of supporting a
viable population of Salt Creek tiger beetles.
These populations, in addition to the three existing populations at
Little Salt Creek, would result in six populations, with at least 500
adults in each population, but with three populations in Little Salt
Creek. This is the number of populations documented in the mid-1990s,
and the minimum number needed for subspecies recovery; however, at that
time, none of these populations were large enough to maintain the
subspecies' viability, and three of the populations were later
extirpated. As the populations expand to viable numbers, we anticipate
that they will be within the maximum documented dispersal range of the
subspecies and may eventually constitute one metapopulation that has
spatially separated populations with some interaction between those
populations.
We delineated the critical habitat unit boundaries for the Salt
Creek tiger beetle using the following steps:
(1) We used Geographic Information System (GIS) coverages initially
generated by Gilbert and Stutheit (1994, entire) to categorize saline
wetlands in the Salt Creek watershed of Lancaster and Saunders
Counties, Nebraska.
(2) We delineated critical habitat within the areas of Little Salt,
Rock, Oak, and Haines Branch Creeks that (a) are documented to support
the subspecies currently or to have supported it in the recent past
(until 1998), or (b) that provide potential suitable habitat for the
subspecies that could sustain a viable population.
(3) We delineated all of the barren salt flats in the four creeks
with adjacent suitable saline wetlands.
(4) In order to include surrounding vegetative areas that provide
essential resources and support functions to the subspecies, we
delineated areas on segments of the four creeks that extended 137 ft
(the average known dispersal distance for the subspecies) on either
side of the stream course. We used 137 ft because it is the average
distance that the Salt Creek tiger beetle can move to meet life-history
requisites, which can be satisfied within the stream segment and
adjacent saline barrens and seeps in the floodplain area. We concluded
that this distance would provide the subspecies with sufficient prey
resources.
Some other areas within the likely historical range of the Salt
Creek tiger beetle were considered in this revised designation, but
ultimately are not included. We do not designate suitable saline
wetlands along Middle Creek as critical habitat because the habitat
there has been eliminated due to commercial and residential
developments, road construction, and stream channelization, and is
probably not restorable. Similarly, we do not designate areas on
tributaries to Salt Creek near the Cities of Roca and Hickman,
Nebraska, because agricultural development has somewhat limited the
ability of these areas to be restored for the benefit of the Salt Creek
tiger beetle. We also do not designate areas of Salt Creek downstream
of Lincoln, Nebraska, because channel entrenchment has resulted in the
loss of saline seep and saline wetland habitats there. We also do not
include some remaining areas of saline wetlands in Upper Salt Creek
because they are outside of the average dispersal distance of 137 feet
for the subspecies.
This revision to the critical habitat designation for Salt Creek
tiger beetle decreases the previous designation of 1,933 acres by 823
acres, but it increases the number of unoccupied units from one to
three. This change extends critical habitat to two additional stream
corridors not previously included in critical habitat that could
support populations of the subspecies in the future, thereby reducing
the risk of extinction. We have also revised the PCEs on which this
revision was based to make them clearer and easier for the public to
understand. However, these revised PCEs are based on the same
biological concepts about the needs of the Salt Creek tiger beetle that
were used in the previous critical habitat designation.
Since the time of our previous critical habitat designation, we
have begun the process of recovery planning, and have preliminarily
determined that at least six populations of 500-1,000 beetles within
suitable habitat across multiple stream corridors would be necessary to
recover the subspecies. Therefore, we are designating an amount of
critical habitat to allow for that recovery to occur. We considered
other possible critical habitat configurations for this designation,
including larger and smaller designations and different numbers of
units. In this final revised designation, we have targeted areas that
are better able to support the subspecies. This designation includes
saline seeps where the subspecies has actually been found along Rock,
Little Salt, Oak, and Haines Branch Creeks. Additionally, a 137-foot
(42 m) dispersal distance was extended outward on either side of these
creeks to provide the Salt Creek tiger beetle with access to a
vegetative mosaic around the salt flats located in the floodplain. The
use of the 137 foot (42 m) dispersal distance outward from the creeks
is the primary reason why the critical habitat acreage is less that our
previous designation (1,933 acres) (782 ha), which included large
blocks of adjacent Category I saline wetlands. These Category I saline
wetlands would need to be restored to provide habitat for the Salt
Creek tiger beetle. In addition, this revised designation better
provides for conservation by including additional unoccupied habitat
that is suitable for the species so that we can establish additional
populations needed to improve the subspecies' redundancy and
resiliency, two important factors in reducing extinction risk. We have
conclude that this designation of 1,110 acres in four units is the most
biologically appropriate as it is based on habitat features that are
used by Salt Creek tiger beetles, is consistent with the statutory
definition of critical habitat, and will best provide for the recovery
of the subspecies.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack physical or biological features for the Salt Creek tiger
beetle. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this final rule
have been excluded by text in the rule and are not designated as
critical habitat. Therefore, a Federal action involving these lands
will not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
[[Page 26029]]
modified by any accompanying regulatory text, presented at the end of
this document in the Regulation Promulgation section. We include more
detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-
2013-0068, on our Internet site http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT,
above).
We are designating as critical habitat lands that we have
determined were occupied at the time of listing and contain sufficient
physical or biological features to support life-history processes
essential for the conservation of the subspecies, and lands outside of
the geographical area occupied at the time of listing that we have
determined are essential for the conservation of the Salt Creek tiger
beetle.
We are designating four units based on sufficient elements of
physical or biological features being present to support the Salt Creek
tiger beetle life processes. Some units contain all of the identified
elements of physical or biological features and support multiple life
processes. Some units contain only some elements of the physical or
biological features necessary to support the Salt Creek tiger beetle's
particular use of that habitat. Designating units of critical habitat
on Little Salt, Rock, Oak, and Haines Branch creeks provides redundancy
in the event that adverse effects on one of these watersheds impact
Salt Creek tiger beetles or their habitat.
Final Critical Habitat Designation
We are designating four units as critical habitat for the Salt
Creek tiger beetle. The critical habitat areas described below
constitute our best assessment at this time of areas that meet the
definition of critical habitat. The four units are: (1) Little Salt
Creek--under the first prong of the Act's definition of critical
habitat and (2) Rock Creek, Oak Creek, and Haines Branch--under the
second prong of the Act's definition of critical habitat. Table 1 shows
the occupancy status of these units.
Table 1--Occupancy of Salt Creek Tiger Beetle by Designated Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Unit Occupied at time of listing? Currently occupied?
----------------------------------------------------------------------------------------------------------------
Little Salt Creek Unit................... Yes......................... Yes.
Rock Creek Unit.......................... No.......................... No.
Oak Creek Unit........................... No.......................... No.
Haines Branch Unit....................... No.......................... No.
----------------------------------------------------------------------------------------------------------------
The approximate area and ownership of each critical habitat unit is
shown in Table 2.
Table 2--Designated Critical Habitat Units for Salt Creek Tiger Beetle
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Percent of
Estimated quantity critical
Critical habitat unit Land ownership by type of critical habitat habitat
unit
----------------------------------------------------------------------------------------------------------------
Little Salt Creek Unit.................... City of Lincoln, Lower Platte 40 ac (16 ha) 14
South Natural Resources District, 19 ac (8 ha) 7
Nebraska Game & Parks Commission, 41 ac (17 ha) 14
The Nature Conservancy, Pheasants 29 ac (12 ha) 10
Forever, Private *. 11 ac (4 ha) 4
144 ac (58 ha) 51
----------------------
Subtotal.............................. .................................. 284 ac (115 ha)
Rock Creek Unit........................... Nebraska Game & Parks Commission, 152 ac (62 ha) 29
Private *. 374 ac (152 ha) 71
----------------------
Subtotal.............................. .................................. 526 ac (213 ha)
Oak Creek Unit............................ Nebraska Department of Roads, City 30 ac (12 ha) 14
of Lincoln. 178 ac (72 ha) 86
----------------------
Subtotal.............................. .................................. 208 ac (84 ha)
Haines Branch Unit........................ BNSF Railway, City of Lincoln/ 7 ac (3 ha) 8
State of Nebraska, Private. 45 ac (18 ha) 49
40 ac (16 ha) 43
----------------------
Subtotal.............................. .................................. 92 ac (37 ha)
----------------------
[[Page 26030]]
Total............................. City of Lincoln, Lower Platte 263 ac (106 ha) 24
South Natural Resources District, 19 ac (8 ha) 1.7
Nebraska Game & Parks Commission, 193 ac (78 ha) 17.4
Nebraska Department of Roads, 30 ac (12 ha) 2.7
BNSF Railway, The Nature 7 ac (3ac) 0.6
Conservancy, Pheasants Forever, 29 ac (12 ha) 2.6
Private *. 11 ac (4 ha) 1.0
558 ac (226 ha) 50.0
----------------------
Total......................... .................................. 1,110 ac (449 ha)
----------------------------------------------------------------------------------------------------------------
* Several private tracts are protected by easements.
We present a brief description of each unit and reasons why it
meets the definition of critical habitat for Salt Creek tiger beetle
below.
Unit 1: Little Salt Creek Unit
This unit consists of 284 ac (115 ha) of barren salt flats and
three stream segments on Little Salt Creek in Lancaster County from
near its junction with Salt Creek to approximately 7 mi (11 km)
upstream. It includes the three existing populations of Salt Creek
tiger beetles (Upper Little Salt Creek-North, Arbor Lake, and Little
Salt Creek-Roper) present at the time of listing, and an additional
site with an extirpated population (Upper Little Salt Creek-South). The
Upper Little Salt Creek population is not considered viable given low
populations numbers known from this area. This unit contains the
physical or biological features essential to the Salt Creek tiger
beetle.
Approximately 50 percent of the unit is either owned by entities
that will protect or restore saline wetland habitat (see Table 2) or is
part of an easement that protects the saline wetland habitat in
perpetuity. This portion of the unit is largely protected from future
urban development (e.g., commercial and residential development, road
construction, and stream channelization) and future agricultural
development (e.g., overgrazing and cultivation) by the landowners' or
easement holders' participation in the Implementation Plan for the
Conservation of Nebraska's Eastern Saline Wetlands and their membership
in the Saline Wetlands Conservation Partnership (SWCP). At least two
tracts (owned by the City of Lincoln) have been restored (Arbor Lake
and Frank Shoemaker Marsh) (Malmstrom 2011 and 2012, entire) and other
areas are in the process of being restored or are managed to conserve
saline wetlands. However, special management is needed, because without
continued special management, historical impacts from development will
continue to adversely affect much of the habitat. The remaining 50
percent of the Little Salt Creek Unit that is not currently receiving
special management through protection and restoration of saline wetland
habitat remains vulnerable to both historical and ongoing impacts from
development. The lower reaches of Little Salt Creek are in or near the
City of Lincoln and, consequently, are most vulnerable to impacts
related to urban development; upper stream reaches are more impacted by
agricultural development.
Unit 2: Rock Creek Unit
The unit consists of 526 ac (213 ha) of barren salt flats and a
stream segment of Rock Creek from approximately 2 mi (3 km) above its
confluence with Salt Creek to approximately 12 mi (19 km) upstream.
Most of this stream reach is in Lancaster County, but the northernmost
portion is in southern Saunders County. This unit was not occupied at
the time of listing; however, one population was present there until
1998. This unit contains the physical or biological features essential
to the Salt Creek tiger beetle. It is essential to the conservation of
the subspecies because any population established on Rock Creek would
provide redundancy, in the event of a natural or manmade disaster on
Little Salt Creek.
Approximately 29 percent of the unit is either owned by an entity
that will protect or restore saline wetland habitat (see Table 2) or is
part of an easement that protects the saline wetland habitat in
perpetuity. This portion of the unit is largely protected from future
urban development (e.g., commercial and residential development, road
construction, and stream channelization), but not future agricultural
development (e.g., overgrazing and cultivation). Approximately 152 ac
(61 ha) of barren salt flats and the stream segment are part of the
Jack Sinn WMA (owned by Nebraska Game and Parks Commission) located in
southern Saunders and northern Lancaster Counties. This tract has
undergone several projects to restore saline wetlands. However, special
management is needed, because without special management through
habitat protection and restoration, historical impacts from development
will continue to adversely affect much of the habitat. The 71 percent
of the Rock Creek Unit that is not currently receiving special
management through protection and restoration of saline wetland habitat
remains vulnerable to both historical and ongoing impacts from
development. This unit is further removed from Lincoln; therefore, it
faces fewer threats from urban development (e.g., commercial and
residential development, road construction, and stream channelization)
and more threats from agricultural development (e.g., overgrazing and
cultivation) than the Little Salt Creek Unit.
Unit 3: Oak Creek Unit
The unit consists of 208 ac (84 ha) of barren salt flats and a
saline seep complex located within a historic floodplain of Oak Creek.
The unit is located along Interstate 80 in the northwest part of
Lincoln, near the Municipal airport in Lancaster County. This unit was
not occupied at the time of listing; however, one population was
present until 1998. This unit contains the physical or biological
features essential to the Salt Creek tiger beetle and is essential to
the conservation of the subspecies because any population established
on Oak Creek would provide redundancy, in the event of a natural or
manmade disaster on Little Salt Creek.
[[Page 26031]]
Approximately 86 percent of the unit is owned by the City of
Lincoln and 14 percent by the Nebraska Department of Roads (see Table
2). This unit is largely protected from future urban development (e.g.,
commercial and residential development, road construction, and stream
channelization) and future agricultural development (e.g., overgrazing
and cultivation). Barren salt flats including the saline seep complex
along Interstate 80 are part of this unit. This tract was once a part
of a large saline wetland complex and is the type locality for the Salt
Creek tiger beetle. However, a substantial amount of development has
resulted in the loss of the once large saline wetland known from the
area and special management practices may be needed to restore
hydrology and the saline flat and seep habitats once prevalent in the
area. This unit is near the City of Lincoln; however, it faces fewer
threats from urban development (e.g., commercial and residential
development, road construction, and stream channelization) than the
Little Salt Creek Unit given the limitations on development that can be
done along the Interstate and within the boundaries of the Lincoln
Municipal Airport.
Unit 4: Haines Branch Unit
The unit consists of 92 ac (37 ha) of barren salt flats and a 2.8-
mile long Haines Branch stream segment. Haines Branch is located on the
west side of Lincoln, near Pioneers Park in Lancaster County. This unit
was not occupied at the time of listing, but suitable habitat in the
form of saline seeps and wetlands are available for the Salt Creek
tiger beetle. This unit contains the physical or biological features
essential to the Salt Creek tiger beetle and is essential to the
conservation of the subspecies because any population established on
Haines Branch Creek would provide redundancy, in the event of a natural
or human-caused disaster on Little Salt Creek.
The entire unit is owned by private entities (see Table 2). This
unit is not protected from future urban development (e.g., commercial
and residential development, road construction, and stream
channelization) or future agricultural development (e.g., overgrazing
and cultivation). Special management is needed to restore the hydrology
and saline flat and seep habitats for the subspecies.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory 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, 434 (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 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 continue to serve its intended conservation role for the
species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 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 ongoing action (or the agency's
discretionary involvement or control is authorized by law).
Consequently, Federal agencies sometimes may 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.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical
[[Page 26032]]
habitat would continue to serve its intended conservation role for the
species. Activities that may destroy or adversely modify critical
habitat are those that alter the physical or biological features to an
extent that appreciably reduces the conservation value of critical
habitat for the Salt Creek tiger beetle. As discussed above, the role
of critical habitat is to support life-history needs of the species and
provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Salt Creek tiger beetle. These activities include,
but are not limited to:
(1) Actions that would alter soil moisture or salinity. Such
activities could include, but are not limited to, development within or
adjacent to critical habitat such as installation of tile drains in
agricultural lands, construction of storm drains in urban areas, road
construction, or further development of residential or commercial
areas. These activities could decrease soil moisture levels (in the
case of tile drains) or increase soil moisture and decrease salinity
levels through increased runoff of fresh surface water (in the case of
storm drains, road construction, and residential or commercial
development). Any change to soil moisture or salinity levels could
degrade or destroy habitat by altering habitat characteristics beyond
the narrow range of soil moisture and salinity required by the
subspecies. A secondary effect of increased freshwater inputs that
lessens soil salinity is the potential invasion of more freshwater-
tolerant plants such as cattails (Typha spp.) and reed canary grass
(Phalaris arundinacea) that eliminate the open habitat required by the
subspecies (Harvey et al. 2007, p. 749).
(2) Actions that would increase the depth to the water table. Such
activities could include, but are not limited to, stream channelization
or bank armoring in Little Salt Creek, Rock Creek, Haines Branch, and
Oak Creek or adjacent portions of Salt Creek. These activities could
result in a lowering of the water table within critical habitat that
would compromise groundwater discharge functions necessary to maintain
saline wetlands. A further loss of saline wetland habitat could impact
our ability to conserve the Salt Creek tiger beetle.
(3) Actions that would cause trampling of open saline areas
associated with stream banks, mid-channel islands, and mudflats. Such
activities could include, but are not limited to, overgrazing by
livestock within critical habitat. Trampling could result in the
destruction of larvae and larval burrows, leading to population
declines.
(4) Actions that would increase nighttime levels of light. Such
activities could include, but are not limited to, new construction of
residential or commercial areas that includes nighttime lighting. Light
pollution likely disrupts nocturnal behavior by attracting beetles away
from their normal habitats (Allgeier et al. 2003, p. 8). Attraction to
light from different types of lamps varies, in decreasing order, from
blacklight, mercury vapor, fluorescent, incandescent, and sodium vapor,
with blacklight being the most favored (Allgeier et al. 2004, p. 10).
The disruption in behavior could affect nighttime egg-laying activity
of females, if it attracts females into unsuitable habitat.
(5) Actions that would result in modification to the right-of-way
located along Interstate 80 that could alter the hydrology supporting
saline seeps and salt flats at Oak Creek. This could include earth
disturbance and installation of drainage structures.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic 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 final
critical habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared an incremental effects
memorandum (IEM) and screening analysis which together with our
narrative and interpretation of effects, was our draft economic
analysis (DEA) of the proposed critical habitat designation (IEc 2014).
The draft analysis, dated February 5, 2014, was made available for
public review from March 13, 2014, through March 28, 2014 (79 FR
14206). The DEA addressed potential economic impacts of critical
habitat designation for the Salt Creek tiger beetle. Following the
close of the comment period, we reviewed and evaluated all information
submitted during the comment period that may pertain to our
consideration of the probable economic impacts of this critical habitat
designation. Information relevant to the probable economic impacts of
critical habitat designation for the Salt Creek tiger beetle is
summarized below and available in the screening analysis for the Salt
Creek tiger beetle (IEc 2014), available at http://www.regulations.gov.
We have not made any changes to the economic
[[Page 26033]]
screening analysis since the proposed rule, but comments we received
that pertain to the economic screening analysis are discussed in the
Summary of Comments and Recommendations section of this rule.
The intent of the economic screening analysis is to quantify the
economic impacts of all potential conservation efforts for the Salt
Creek tiger beetle; some of these costs will likely be incurred
regardless of whether we designate critical habitat (baseline). The
economic impact of the final critical habitat designation is analyzed
by comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the subspecies (e.g., under the Federal listing
and other Federal, State, and local regulations). The baseline,
therefore, represents the costs incurred regardless of whether critical
habitat is designated. The ``with critical habitat'' scenario describes
the incremental impacts associated specifically with the designation of
critical habitat for the subspecies. The incremental conservation
efforts and associated impacts are those not expected to occur absent
the designation of critical habitat for the subspecies. In other words,
the incremental costs are those attributable solely to the designation
of critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
subspecies was listed, and forecasts both baseline and incremental
impacts likely to occur with the designation of critical habitat.
The economic screening analysis also addresses how potential
economic impacts are likely to be distributed, including an assessment
of any local or regional impacts of habitat conservation and the
potential effects of conservation activities on government agencies,
private businesses, and individuals. The economic screening analysis
measures lost economic efficiency associated with residential and
commercial development and public projects and activities, such as
economic impacts on water management and transportation projects, small
entities, and the energy industry. Decision-makers can use this
information to assess whether the effects of the designation might
unduly burden a particular group or economic sector. Finally, the
economic screening analysis looks retrospectively at costs that have
been incurred since 2005 (year of the subspecies' listing) (70 FR
58335), and considers those costs that may occur annually in the years
following the designation of critical habitat. The economic screening
analysis quantifies economic impacts of Salt Creek tiger beetle
conservation efforts associated with the following categories of
activity: (1) Agriculture and livestock grazing; (2) restoration and
conservation; (3) residential and commercial development; (4) water
management and supply; (5) transportation activities, including bridge
construction; and (6) utility activities. The economic screening
analysis considered each industry or category individually.
Additionally, the economic screening analysis considered whether each
of these activities have any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat only affects activities
conducted, funded, permitted, or authorized by Federal agencies. In
areas where the Salt Creek tiger beetle is present, Federal agencies
already are required to consult with the Service under section 7 of the
Act on activities they fund, permit, or implement that may affect the
subspecies. Once this critical habitat designation takes effect (see
DATES, above), consultations to avoid the destruction or adverse
modification of critical habitat will be incorporated into the existing
consultation process.
In occupied habitat (Little Salt Creek Unit), the economic
screening analysis determined that the economic cost of implementing
the critical habitat rule through section 7 of the Act will most likely
be limited to additional administrative effort to consider adverse
modification. This finding was based on the following factors:
The presence of the subspecies already results in
significant baseline protection under the Act.
Project modifications requested by the Service to avoid
jeopardy to the subspecies are also likely to avoid adverse
modification of critical habitat. The designation of critical habitat
is unlikely to generate recommendations for additional or different
project modifications.
Critical habitat is unlikely to increase the number of
consultations occurring in occupied habitat as a result of the existing
awareness by Federal agencies of the need to consult due to the listing
of the subspecies.
The designation also receives baseline protection from the
presence of a State-listed endangered plant, saltwort (Salicornia
rubra).
In unoccupied habitat (Rock Creek, Oak Creek, and Haines Branch
Units), the economic screening analysis found that the designation
would generate the need for section 7 consultation on projects or
activities that may affect critical habitat. The administrative costs
of these consultations, and costs of any project modifications
resulting from these consultations, reflect incremental costs of the
critical habitat rule. In particular, we may request project
modifications, including erosion control and biological monitoring for
highway projects to avoid adverse modification in unoccupied critical
habitat, and grazing restrictions for consultations related to
potential conservation partnerships.
Based on the historical consultation rate and forecasts of projects
and activities identified by land managers, the economic screening
analysis found that the number of future consultations is likely to be
fewer than 12 in a single year, all of which are expected to be
conducted informally. The additional administrative cost of addressing
adverse modification during informal section 7 consultation is
approximately $2,400 per consultation, and the full cost of a new
informal consultation is approximately $7,100 per consultation.
Incremental project modification costs may include $360,000 for highway
projects in the Oak Creek Unit, and up to $110,000 if grazing
exclosures are implemented through conservation partnerships in the
Rock Creek Unit. Incremental costs are likely to be greatest in the Oak
Creek Unit and are driven by project modifications for highway
construction activities. Total forecast incremental costs of section 7
consultations, including administrative and project modification costs,
are likely to be less than $540,000 in a given year. Thus, in summary,
the incremental costs resulting from the critical habitat designation
are unlikely to reach $100 million in a given year based on the number
of anticipated consultations and per-consultation administrative and
project modification costs. Executive Order (E.O.) 12866, Regulatory
Planning and Review, directs Agencies to assess the costs and benefits
of regulatory actions and quantify those costs and benefits if that
action may have an effect on the economy of $100 million or more in any
one year. Costs associated with this designation are not expected to
exceed this threshold, therefore a qualitative evaluation in accordance
with E.O. 12866 was prepared for this action.
The designation of critical habitat is unlikely to trigger
additional requirements under State or local regulations. This
conclusion is based on the likelihood that activities in wetland areas
will require Federal permits and,
[[Page 26034]]
therefore, section 7 consultation. Additionally, the designation of
critical habitat has the potential to convey other benefits to the
public. Additional efforts to conserve the beetle are anticipated in
unoccupied habitat. Project modifications may result in direct benefits
to the subspecies (e.g., increased potential for recovery) as well as
broader improvements to environmental quality in these areas. Due to
existing data limitations, the economic screening analysis is unable to
assess the likely magnitude of such benefits.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exerting her discretion to exclude any areas from this
designation of critical habitat for the Salt Creek tiger beetle based
on economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Nebraska Ecological Services Field
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov, or at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this final rule, we have
determined that no lands within the designation of critical habitat for
the Salt Creek tiger beetle are owned or managed by the Department of
Defense or Department of Homeland Security, and, therefore, we
anticipate no impact on national security. Consequently, the Secretary
is not exerting her discretion to exclude any areas from this final
designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we also consider any other
relevant impacts resulting from the designation of critical habitat. We
consider a number of factors, including whether the landowners have
developed any HCPs or other management plans for the area, or whether
there are conservation partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
look at any tribal issues and consider the government-to-government
relationship of the United States with tribal entities. We also
consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for the Salt Creek tiger
beetle, and the final designation does not include any tribal lands or
trust resources. However, there is an implementation plan for the
conservation of Nebraska's remaining eastern saline wetlands (LaGrange
et al. 2003, entire). Signatories to this plan include the Nebraska
Game and Parks Commission, the City of Lincoln, the County of
Lancaster, the Lower Platte South Natural Resources District, and The
Nature Conservancy. This plan may protect and restore Salt Creek tiger
beetle habitat to the same extent into the future. The goal of the plan
is no net loss of saline wetlands and their associated functions, with
long-term improvements in wetland functions through restoration of the
hydrological system, prescribed wetland management, and watershed
protection (LaGrange et al. 2003, p. 6). This plan led to formation of
the Saline Wetland Conservation Partnership (SWCP), which has purchased
nearly 1,200 ac (486 ha) of eastern saline wetlands and associated
uplands, and acquired conservation easements on more than 2,000 ac (810
ha) of additional lands (Malmstrom 2011 and 2012, entire). Overall,
approximately 29 percent of occupied and unoccupied critical habitat is
protected through these acquisitions. We believe that activities
implemented under the plan or under the SWCP will be supported by the
designation of critical habitat. The benefits of exclusion of these
areas would include the reduction in federal oversight that would
otherwise be applied if an unoccupied critical habitat unit were
designated as critical habitat. However, a critical habitat designation
increases the opportunities for funding to do habitat restoration
projects for the benefit of the Salt Creek tiger beetle and its saline
wetland and stream habitats. Therefore, the benefits of including this
area in critical habitat outweigh any benefits of excluding it. No
areas are excluded from this designation based on other relevant
impacts.
We anticipate no impact on tribal lands, partnerships, or HCPs from
this critical habitat designation. Accordingly, the Secretary is not
exercising her discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., 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. The SBREFA
amended the 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.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining
[[Page 26035]]
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 on these small entities are
significant, we consider the types of activities that might trigger
regulatory impacts under this rule, as well as the 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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that this final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule we reviewed and evaluated
all information submitted during the comment period that may pertain to
our consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
certification that this final critical habitat designation will not
have a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) 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.
The economic analysis finds that none of these criteria is relevant
to this analysis. Thus, based on information in the economic analysis,
energy-related impacts associated with Salt Creek tiger beetle
conservation activities within critical habitat are not expected. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, and no Statement of
Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because most of the lands within the
designated critical habitat do not occur within the jurisdiction of
small governments. This rule will not produce a Federal mandate of $100
million or greater in any year. Therefore, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on State or
local governments. Consequently, we do not believe that the critical
habitat designation would significantly or uniquely affect small
government entities. As such, a Small Government Agency Plan is not
required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
rights''), we have analyzed the potential takings implications of
designating critical
[[Page 26036]]
habitat for the Salt Creek tiger beetle in a takings implications
assessment. Based on the best available information, the takings
implications assessment concludes that this designation of critical
habitat for the Salt Creek tiger beetle does not pose significant
takings implications.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies in Nebraska. We received comments
from the Nebraska Game and Parks Commission and the Nebraska Department
of Roads and have addressed them in the Summary of Comments and
Recommendations section of the rule. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
subspecies are more clearly defined, and the physical and biological
features of the habitat necessary to the conservation of the subspecies
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
these local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
subspecies, the rule identifies the elements of physical or biological
features essential to the conservation of the Salt Creek tiger beetle.
The designated areas of critical habitat are presented on a map, and
the rule provides several options for the interested public to obtain
more detailed location information, if desired.
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 pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, under
the Tenth Circuit ruling in Catron County Board of Commissioners v.
U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we
undertake a NEPA analysis for critical habitat designation and notify
the public of the availability of the draft environmental assessment
for a proposal when it is finished. In the case of the Salt Creek tiger
beetle, we prepared an environmental assessment for our 2010 final rule
designating critical habitat for the subspecies, and made a finding of
no significant impacts. Although the State of Nebraska is not part of
the Tenth Circuit, and, therefore, NEPA analysis is not required, we
undertook a NEPA analysis in this case since we conducted one
previously for our 2010 final rule.
We performed the NEPA analysis, and a draft of the environmental
assessment was made available for public comment on March 13, 2014 (79
FR 14206). The final environmental assessment has been completed and is
available for review with the publication of this final rule. Our
environmental assessment showed that there would be beneficial impacts
for the Salt Creek tiger beetle through habitat redundancy and focused
conservation activities as well as increased awareness about critical
habitat. Conservation actions that benefit the Salt Creek tiger beetle
would also benefit many other species of fish, wildlife, and plants
found along Rock, Little Salt, Oak, and Haines Branch creeks. As such,
we concluded that the designation of critical habitat for the Salt
Creek tiger beetle does not constitute a major Federal action
significant affecting the quality of the human and natural environment.
Accordingly, on May 1, 2014, we issued a finding of no significant
impact for our final designation of critical habitat for the Salt Creek
tiger beetle.
You may obtain a copy of the final environmental assessment and
finding of no significant impact online at http://www.regulations.gov,
by mail from the Nebraska Ecological Services Field Office (see
ADDRESSES), or by visiting our Web site at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), 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
[[Page 26037]]
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 by the
Salt Creek tiger beetle at the time of listing that contain the
physical or biological features essential to conservation of the
subspecies, and no tribal lands unoccupied by the Salt Creek tiger
beetle that are essential for the conservation of the subspecies.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Nebraska Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Nebraska 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
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; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.95, amend paragraph (i) by revising the entry for ``Salt
Creek Tiger Beetle (Cicindela nevadica lincolniana)'' to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
* * * * *
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana)
(1) Critical habitat units are depicted for Lancaster and Saunders
Counties, Nebraska, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Salt Creek tiger beetle consist of saline barrens and seeps found
within saline wetland habitat in Little Salt, Rock, Oak and Haines
Branch Creeks. For our evaluation, we determined that two habitat types
within suitable wetlands are required by the Salt Creek tiger beetle:
(i) Exposed mudflats associated with saline wetlands or the exposed
banks and islands of streams and seeps that contain adequate soil
moisture and soil salinity are essential core habitats. These habitats
support egg-laying and foraging requirements. The ``Salmo'' soil series
is the only soil type that currently supports occupied habitat;
however, ``Saltillo'' is the other soil series that has adequate soil
moisture and salinity and can also provide suitable habitat.
(ii) Vegetated wetlands adjacent to core habitats that provide
shade for subspecies thermoregulation, support a source of prey for
adults and larval forms of Salt Creek tiger beetles, and protect core
habitats.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
June 5, 2014.
(4) Critical habitat map units. Data layers defining map units were
created using National Wetlands Inventory polygons, habitat
categorization classes, and an image object analysis. The maps in this
entry, as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's Internet site at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, at http://www.regulations.gov at
Docket No. FWS-R6-ES-2013-0068, and at the field office responsible for
this designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Map showing critical habitat units for the Salt Creek tiger
beetle follows:
BILLING CODE 4310-55-P
[[Page 26038]]
[GRAPHIC] [TIFF OMITTED] TR06MY14.012
* * * * *
Dated: April 25, 2014.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2014-10051 Filed 5-5-14; 8:45 am]
BILLING CODE 4310-55-C