[Federal Register Volume 76, Number 184 (Thursday, September 22, 2011)]
[Rules and Regulations]
[Pages 58954-58998]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24047]
[[Page 58953]]
Vol. 76
Thursday,
No. 184
September 22, 2011
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Casey's June Beetle and Designation of Critical
Habitat; Final Rule
Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 /
Rules and Regulations
[[Page 58954]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2009-0019; MO 92210-0-0009]
RIN 1018-AV91
Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Casey's June Beetle and Designation of Critical
Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered status for Casey's June beetle (Dinacoma caseyi) under the
Endangered Species Act of 1973, as amended (Act). We are also
designating approximately 587 acres (237 hectares) of land as critical
habitat for the species in Riverside County, California.
DATES: This rule becomes effective on October 24, 2011.
ADDRESSES: The final rule, final economic analysis, and map of critical
habitat are available on the Internet at http://www.regulations.gov and
http://www.fws.gov/carlsbad/. Comments and materials received, as well
as supporting documentation used in preparing this final rule, will be
available for public inspection, by appointment, during normal business
hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA
92011; telephone 760-431-9440; facsimile 760-431-5901.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011 (telephone 760-431-
9440; facsimile 760-431-5901). If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss in this final rule only those topics
directly relevant to the listing and designation of critical habitat
for Casey's June beetle under the Act (16 U.S.C. 1531 et seq.). The
genus Dinacoma and approximately 90 other genera constitute the New
World members of the subfamily Melolonthinae (i.e., May beetles, June
beetles, and chafers) of the scarab beetle family (Scarabaeidae) (Smith
and Evans 2005). Despite past references to potentially new species or
subspecies of Dinacoma (Blaisdell 1930, pp. 173-174; La Rue pers.
comm., 2006), Casey's June beetle, Dinacoma caseyi Blaisdell, and D.
marginata (Casey) Casey remain the only described taxonomic entities in
the genus (Evans and Smith 2009, p. 44). For additional information on
the taxonomy, biology, and ecology of Casey's June beetle, and the
history of this rulemaking, refer to the August 8, 2006, 90-day finding
(71 FR 44960), the July 5, 2007, 12-month finding (72 FR 36635), the
July 9, 2009, proposed listing and critical habitat rule (74 FR 32857),
and the March 31, 2010, document making available the draft economic
analysis (DEA) (75 FR 16046) published in the Federal Register. These
documents are available on the Internet at http://www.fws.gov/Carlsbad.
New Species Information
In our proposed listing and critical habitat rule (74 FR 32857;
July 9, 2009), we requested comments on any new species information.
One peer reviewer suggested we clarify the fact that female Casey's
June beetles are known to be flightless, because our wording in one
sentence was not clear in that regard. Information submitted by peer
reviewers and an expert in scarab beetles (Hawks, University of
California, Riverside, pers. comm. 2010) also disagreed with the
appropriateness of primary constituent element (PCE) 2. We have made
the appropriate changes to this final listing and critical habitat
rule.
New Species Occupancy and Habitat Information
Multiple commenters and one peer reviewer further suggested that
the species may occupy areas outside proposed critical habitat. To
determine if areas outside of the proposed critical habitat designation
harbor the Casey's June beetle, we funded a survey of likely habitat
within the species' known historical range and beyond. While the survey
focused on areas north of Palm Springs (i.e., immediately south of the
Chino Cone) and south to Palm Desert, we have yet to receive a final
report from the surveyor (i.e., David Hawks). Nonetheless, preliminary
survey information received to date primarily supports our
determination of the species' current range and population
distribution, and modification of PCEs to include disturbed soils and
predominantly, but not exclusively, native vegetation (i.e., not the
two specific ``intact'' vegetation types listed in the proposed rule)
(Hawks pers. comm., 2010; see below discussion).
Hawks (pers. comm. 2010, 2011a and b) located two occupied Casey's
June beetle sites outside of proposed critical habitat, in natural
remnants of the Palm Canyon Wash channel surrounded by golf course
landscaping just east of the easternmost section of wash proposed as
critical habitat, in the vicinity of Golf Club Drive. These wash
habitat remnants total 17 acres (ac) (7 hectares (ha)), and are
downstream from the confluence of Palm Canyon Wash and Tahquiz Creek,
where additional streamflow occurs following a storm event. Although it
is possible these habitat remnants could contribute to species
recovery, their ability to support occupancy long-term is questionable
because these areas are subject to scouring flood events, which would
remove available habitat and displace and most likely extirpate any
individuals occupying the sites. In addition, the frequency of scouring
flood events likely to extirpate resident individuals is expected to
increase with climate change (see E. Other Natural or Manmade Factors
Affecting the Continued Existence of the Species section below).
Therefore, at this time, we have determined that these wash habitat
remnants do not meet the definition of critical habitat. However, we
will continue to gather information regarding the potential for this
wash habitat area to contribute to species recovery.
Hawks' comprehensive survey (pers. comm. 2010) included potential
Casey's June beetle habitat remnants identified throughout the City of
Palm Springs, including many vacant lots within the developed areas of
the cities of Palm Springs and Cathedral City Hawks (pers. comm. 2010)
documented numerous female emergence holes and observed many female
beetles during his surveys, confirming occupancy of Coachella fine sand
series (CpA), and Myoma fine sands (MaB) soil types. Hawks (pers. comm.
2010) stated he never found emergence holes in the Carsitas cobbly sand
series (ChC) soil type. However, he believes ChC soil may be occupied
if it is an inclusion surrounded by Carsitas gravelly sand series (CdC)
soil, and if it is not part of the landscape defining the edge of the
floodplain, such as along South Palm Canyon Drive to the west. Based on
this information from Hawks (pers. comm. 2010) we determined that ChC
soils not 100 percent surrounded by CdC and Riverwash (RA) soils do not
meet the definition of critical habitat (see Summary of Changes From
the 2009 Proposed Critical Habitat Rule, Physical or Biological
Features, and
[[Page 58955]]
Criteria Used To Identify Critical Habitat sections below).
Hawks' (pers. comm. 2010) positive survey results generally
supported our estimation of Casey's June beetle population distribution
within proposed critical habitat, with the exception of newly
discovered occupied wash habitat remnants described above that
represent a slight northeastern distribution extension, and the lack of
occupancy in some southern areas that were determined not to meet the
definition of critical habitat and therefore were not designated (see
Summary of Changes From the 2009 Proposed Critical Habitat Rule,
Physical or Biological Features, and Criteria Used To Identify Critical
Habitat sections below). In a subsequent communication, Hawks (pers.
comm. 2011a) described his survey results from the southern population
distribution area: ``Adults of both sexes of [Casey's June beetle] as
well as emergence holes were observed in the wash and in [adjacent]
floodplain areas west of the wash between Bogert Trail and Acanto
Drive. Adults of both sexes as well as emergence holes were observed in
the wash and in floodplain areas west of the wash from Acanto and south
for a few hundred meters. South of this area, [Casey's June beetle]
emergence holes were observed in late June 2010 (after the adult
emergence period) in both the wash and the floodplain habitat adjacent
to the wash as far south as the fence and almost to the small dam and
this is as far south as we surveyed. Emergence holes were less common
towards the southern extent of this area, and, especially in the wash,
they were not apparent in the close vicinity of the dam (within about
[328 feet (ft) (100 meters (m))]). The wash [close to the dam] is
narrow and much more disturbed (apparently by turbulent water flow),
gravelly, and rocky in this area, and is perhaps unsuitable as [Casey's
June beetle] habitat.'' This new information confirms occupancy of the
southernmost wash and upland designated critical habitat areas where
beetles had not previously been reported (as described in Barrows 1998,
p. 1), and increases the highest elevation for a Casey's June beetle
observation (southernmost wash area) to approximately 580 ft (177 m).
New survey information shed light on the occupancy and suitability
status of lands proposed for critical habitat designation at the
southern extreme of the population distribution. Light trap surveys of
southern portions of the species' population distribution were
conducted by Jim Cornett (2010, pp. 10-11) in upland habitat, from
South Palm Canyon Drive south into Indian Canyons Preserve. Although
Cornet (2010, p. 14) did not trap any male Casey's June beetles or
observe any females, Hawks' (pers. comm. 2011a) observations do not
support Cornett's conclusion that uplands contiguous with the wash
south of Acanto Drive are not occupied. Traps on the eastern edge of
Cornett's ``Area 3'' (Cornett 2010, p. 10), where he sampled in April,
were within approximately 660 ft (200 m) of locations where Hawks
reported Casey's June beetle occupancy in May. Cornett did not survey
for females or emergence holes in 2010. Conversely, the results of
Hawks' (pers. comm. 2011b) and Cornett's (2010, pp. 10 and 14) surveys
in western areas adjacent to South Palm Canyon Drive were all negative.
Furthermore, Hawks (pers. comm. 2011b) reported unsuitable habitat
conditions for this western area, similar to those described by Hovore
(1997a, p. 3) and evident on current aerial imagery. Therefore, we
believe habitat in this southwestern portion associated with South Palm
Canyon Drive is not occupied and not likely occupiable. However, as
noted in the preceding paragraph, Hawks' (pers. comm. 2011a and b) new
information does indicate occupancy in the southernmost mapped
contiguous CdC and RA soil areas.
New habitat information resulted in changes to our habitat area
estimates. Hawks' (pers. comm. 2010) discovery of 17 ac (7 ha) of
occupied Casey's June beetle habitat outside of proposed critical
habitat in Palm Canyon Wash increased our estimates of extant and
historic occupied habitat. However, based on the currently available
information, we have determined that this newly discovered occupied
habitat does not meet the definition of critical habitat (see above
discussion). Multiple tribal commenters further suggested the species
may no longer occupy areas within the southern portion of the proposed
critical habitat unit, and that these habitat areas were no longer
suitable for Casey's June beetle occupancy (see Comments 5 and 8 below
in the Summary of Comments and Recommendations section). Survey
information from 2010 supports this hypothesis for areas in the
southwestern portion of the proposed critical habitat unit associated
with South Palm Canyon Drive (see above discussion). The determination
that the southwestern portion of the proposed critical habitat unit
associated with South Palm Canyon Drive is no longer occupied or
contains suitable habitat decreased the total area estimate of
remaining suitable habitat (despite the addition of the two newly
discovered occupied sites in a natural remnant of the Palm Canyon Wash
channel discussed above). As a result of this new information, we have
made appropriate changes to this final rule.
New Information on Casey's June Beetle Diet and Movement
We found one new study on the diet of another endangered June
beetle, and some new information on June beetle movement distances.
Hill and O'Malley (2009, p. 1) found that the frass pellets (pelletized
fecal matter) of larvae of the Mount Hermon June beetle (Polyphylla
barbata) contained a variety of plant species and fungi material
demonstrating that they are not specialist host plant feeders but are
microhabitat specialists. Hawks' (pers. comm. 2010) observations at
Smoke Tree Ranch indicate Casey's June beetle may be similar when he
stated that, ``We did not observe females at Smoke Tree [Ranch], but
many hundreds of emergence holes associated with native vegetation [and
nonnative vegetation such as] irrigated tamarisk, fan palms, oleander,
and olive. We still are not sure what plants of any sort mean to
[Casey's June beetle] grubs. * * * '' These results support our
hypothesis that Casey's June beetles do not require particular species
of host plants for feeding. However, native plant species likely are
important habitat components in other ways not fully understood at this
time, because native plant species are an integral component of the
ecosystem in which Casey's June beetle evolved. We incorporated this
information into the Primary Constituent Elements for Casey's June
Beetle section below.
The observation of a male Casey's June beetle at a street light in
a suburban neighborhood approximately 750 ft (230 m) from the nearest
suitable habitat (Hovore 2003, p. 6; Google Earth historical imagery
1996 and 2002) indicates that movement of males among occupied areas
occurs over at least that distance, and it is likely that potential
movement is much farther. The maximum male dispersal distance recorded
for male Mount Hermon June beetles, a related species that also has
flightless females, is 923 ft (281 m) (Arnold, Entomological Consulting
Services, Ltd., pers. comm. 2011). Arnold (pers. comm. 2011) noted this
datum was from a mark-release-recapture study limited to his study
site, and therefore it is ``entirely possible'' adult male June beetles
are capable of making longer distance movements. This information
supports the conclusion articulated in our Criteria Used To Identify
Critical Habitat section below that all lands meeting the definition of
critical habitat are likely
[[Page 58956]]
occupied at the population level and fall within the distribution of a
single population. Please see Summary of Comments and Recommendations
section below for further discussion of comments and information
received.
Previous Federal Actions
In our July 5, 2007, 12-month finding (72 FR 36635), we determined
that listing Casey's June beetle as an endangered species was warranted
but precluded. Because of the lack of funding for the large number of
candidate species we were unable to propose and finalize the listing
for Casey's June beetle at that time. In Fiscal Year 2007, we had more
than 120 species with a listing priority number (LPN) of 2, based on
our September 21, 1983, guidance for assigning an LPN for each
candidate species (48 FR 43098). Although funding to work on a proposed
listing determination was not available at the time of the 12-month
finding, we subsequently received funding for development of proposed
and final listing with critical habitat rules. On July 9, 2009 (74 FR
32857), we published in the Federal Register a proposal to list Casey's
June beetle as endangered and to designate critical habitat. In this
final rule, we determine endangered status for Casey's June beetle and
designate critical habitat.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for adding species to Federal Lists of
Endangered and Threatened Wildlife and Plants. A species may be
determined to be endangered or threatened due to one or more of the
five factors described in section 4(a)(1) of the Act: (A) The present
or threatened destruction, modification, or curtailment of its habitat
or range; (B) overutilization for commercial, recreational, scientific,
or educational purposes; (C) disease or predation; (D) the inadequacy
of existing regulatory mechanisms; or (E) other natural or manmade
factors affecting its continued existence. Listing actions may be
warranted based on any of the above threat factors, singly, or in
combination. Each of these factors is discussed below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Species' Habitat or Range
Casey's June beetle is part of a genus of beetles that has
naturally restricted ranges (LaRue, University of California,
Riverside, pers. comm. 2006). Casey's June beetle is adapted to
specialized habitat and soil types found in the Palm Canyon Wash area
of Palm Springs, California. We do not know the exact historical
population footprint of Casey's June beetle due to the generality and
paucity of location descriptions from early collection records (see
discussion in the 90-day finding (71 FR 44962; August 8, 2006)).
However, museum specimen records indicate the historical range can be
described as the eastern foothills of the San Jacinto Mountains from
the City of Palm Springs south to the community of Indian Wells. This
historical range, while far greater than the current known population
distribution, is nonetheless relatively restricted compared to most
species.
We used soils data correlated with occupancy data to estimate the
historical suitable habitat distribution of Casey's June beetle. Our
review of the soil and occupancy data showed that over 97 percent of
habitat likely to have been included in Casey's June beetle historical
population distributions has been converted to development or rendered
unsuitable by the impacts of adjacent development. Of the approximately
605 ac (245 ha) of remaining extant suitable habitat, approximately 70
percent remains relatively unprotected by existing regulations (see D.
The Inadequacy of Existing Regulatory Mechanisms section below).
Approximately 50 percent of the unprotected habitat areas are tribal
reservation lands and 30 percent are in private ownership. The
remaining approximately 20 percent is owned by local entities (City of
Palm Springs and County Flood Control) for roads, flood control, and
water facilities. Casey's June beetle habitat on tribal reservation
land consists of approximately 11 ac (4 ha) in tribal trust, and 152 ac
(62 ha) in fee-title and allotted lands. The majority of tribal
reservation lands are at risk of development, as are any undeveloped
portions of the relatively unprotected lands owned by local governments
and private landowners.
The population of the City of Palm Springs increased from 42,805 to
47,251 between 2000 and 2008, an increase of 10 percent (CDF 2008,
Table 1, Table E-1). The City is predicted to grow by 25 percent
between 2000 and 2020 (SCAG 2004, Table 2004GF). The current growth
rate has increased development pressure on properties zoned for
residential and commercial use, uses which would encroach upon Casey's
June beetle habitat.
Development
We analyzed suburban development within southern Palm Springs from
2003 to 2007 to determine the habitat impacts of completed and pending
projects as cited in the petition to list Casey's June beetle (Wright
et al. 2004, pp. 8-9) and referenced in the July 5, 2007, 12-month
finding (72 FR 36635). We were unable to identify all projects cited in
the petition, as the petitioners did not provide specific geographic
descriptions, and the extent of area of proposed development projects
cited did not exactly match calculations in our most recent analysis.
However, based on site visits and digital aerial photographs, we
identified at least seven projects that removed or impacted occupied
and likely occupied habitat within the distribution described above in
the 5 years between 2003 and 2007. Habitat disturbance activities such
as development can result in direct mortality of larvae and adults.
The Monte Sereno project north of Bogart Trail adjacent to Palm
Canyon Wash (tribal reservation lands) impacted approximately 39 ac (16
ha) of occupied habitat in 2005. Expected mitigation measures described
by Dudek and Associates (2001, p. 24) for impacts to Casey's June
beetle habitat were an in-lieu payment of $600 per ac ($240 per ha)
(total of $21,960) to the City of Palm Springs or a habitat
conservation entity designated by the City for loss of approximately 37
ac (15 ha) of ``creosote bush scrub habitat'' (no specified use of
these funds), and re-creation of 9 ac (4 ha) of lost ``desert wash
scrub habitat'' (no specified cost). To our knowledge, no appropriate
habitat has yet been conserved or restored for Casey's June beetle to
offset the Monte Sereno project impacts.
In 2006, the City of Palm Springs issued a mitigated negative
declaration for Smoke Tree Ranch Cottages (City of Palm Springs 2006,
p. 2) (``Casitas'' development cited in the 90-day finding (71 FR
44960; August 8, 2006)), finding ``no significant impact'' to Casey's
June beetle. However, at least 7 ac (3 ha) of occupied habitat were
developed (Cornett 2004, pp. 18-27). The Smoke Tree Commons shopping
center impacted approximately 18 ac (7 ha) of habitat for Casey's June
beetle. The project's environmental impact report (EIR) stated that the
City of Palm Springs was responsible for enforcing and monitoring
Casey's June beetle mitigation measures prior to issuing a grading
permit to the developer, including recording a conservation easement
and developing a management plan for Casey's June beetle on
[[Page 58957]]
conserved habitat (Pacific Municipal Consultants 2005, p. 9). A
conservation easement was established; however, a management plan was
not drafted prior to issuance of the grading permit, and monitoring and
management activities for Casey's June beetle are not assured (Ewing,
City of Palm Springs, pers. comm. 2007).
The other four identified projects that removed or impacted
occupied and likely occupied habitat are: (1) The 2-ac (1-ha) Desert
Water Agency wells and pipeline project in the Smoke Tree Ranch
development; (2) the 34-ac (14-ha) Alta project north of Acanto Drive
and west of Palm Canyon Wash on tribal reservation lands; (3) the 24-ac
(10-ha) Estancias subdivision north of Acanto Drive; and (4) the 3-ac
(1-ha) Palm Canyon project at South Palm Canyon Drive and Murray Canyon
Drive.
These seven projects resulted in the loss of, or impacts to,
approximately 126 ac (51 ha) of occupied and likely occupied Casey's
June beetle habitat from 2003 to 2008. An additional 5 ac (2 ha) of
Casey's June beetle habitat has been impacted by small projects (for
example, single home lots and pipeline development). Hovore (2003, p.
4) hypothesized that the destruction and isolation of occupied habitat
caused by the Monte Sereno and Alta projects in 2003 ``* * * overall
may reduce the known range and extant population of [Casey's June
beetle] by about one third.'' Streit (2009, pp. 12-13) noted that
although Hovore was always conscientious and reported any Casey's June
beetle observation, not all biologists do so, and in at least one case
a biologist apparently omitted Casey's June beetle observations from
their environmental impact report for a proposed golf course project in
the early 1990s. Streit (2009, pp. 12-13) did not identify the exact
location he referenced, although his description that it is found in
``the vicinity of the mouth of Palm Canyon, adjacent to Palm Springs,
Riverside County, California,'' and approximate construction dates of
golf course projects based on digital aerial photography indicate the
referenced project is the current Indian Canyons Golf Resort, located
between Smoke Tree Ranch and the Monte Sereno project north of Bogart
Trail and adjacent to Palm Canyon Wash (tribal reservation lands).
We conducted an analysis for the 12-month finding (72 FR 36635)
that used available digital aerial photographs taken at various
intervals from 1991 to 2005 (Anderson and Love 2007, pp. 1-2) and 2006
field surveys (Anderson 2006, pp. 1-36), which determined that Casey's
June beetle experienced an approximate 25 percent reduction in
contiguous occupied habitat from 770 ac (312 ha) in 1991 to 576 ac (233
ha) in 2006. Based on new biological surveys and information provided
to us since 2006, we now know an area larger than 770 ac (312 ha) was
occupied by Casey's June beetle in 1991. With this new information and
2008 digital aerial photographs, we determined that there was
approximately 1,018 ac (412 ha) of occupied habitat in 1991. Therefore,
our new analysis showed that Casey's June beetle has experienced an
approximately 22 percent reduction in occupied habitat from 1,018 ac
(412 ha) in 1991 to 794 ac (314 ha) in 2008. Our updated calculations
accounted for these additional acres and revealed that habitat was lost
at a rate of 1.6 percent per year from 1991 to 1996, at a rate of 0.6
percent per year from 1996 to 2003, at a rate of 3.8 percent per year
from 2003 to 2005, and at a rate of 0.7 percent per year from 2005 to
2008 (dates based on available photographs). Although habitat loss
since 2005 has slowed (likely due to the economic downturn), after our
2008 analysis was completed (post-12 month finding; 72 FR 36635, July
5, 2007) we discovered approximately 5 ac (2 ha) of habitat where two
adjacent development pads were cleared on the Agua Caliente Band of
Cahuilla Indian's reservation south of Acanto Drive, removing the PCEs
from the majority of the parcel (per available satellite imagery). The
loss of this graded area is of particular concern because it comprises
approximately one-fourth of a formerly contiguous occupied upland
habitat area adjacent to an area of the wash.
Since publication in the Federal Register of the July 5, 2007, 12-
month finding (72 FR 36635), the City of Palm Springs completed the
California Environmental Quality Act (CEQA) environmental review
process for the 80- to 100-ac (32 to 40 ha) Eagle Canyon residential
development project planned on tribal reservation lands (Davis, Agua
Caliente Band of Cahuilla Indians, pers. comm. 2007; Park, Agua
Caliente Band of Cahuilla Indians, pers. comm. 2007). The project is in
the area containing CdC soils west of South Palm Canyon Drive near
Bogart Trail and Acanto Drive (tentative tract number 30047) (City of
Palm Springs 2008, p. 14). We believe this area is not likely to be
occupied by Casey's June beetle or occupiable in the future based on
historical and recent disturbances (Hovore 1997a, p. 3; Google Earth
imagery 2011) (see New Species Information section above), and because
recent surveys conducted within and adjacent to the Eagle Canyon
project area (Osborne 2008a, p. 3, Cornett 2010 p. 10 and 14; Hawks
pers. comm. 2011b) where occupancy was previously documented (Hovore
1995, pp. 4-5) were negative.
Extant habitat estimations include wash habitat where Casey's June
beetle may not be able to maintain occupancy following severe flood
events (Hovore 2003, p.11; Cornett 2004, p. 14). Of the total 794 ac
(321 ha) of estimated remaining habitat in 2008, only 523 ac (212 ha)
was upland habitat. Upland habitat refers to any upland terrace area
that is outside of the wash and does not occur on Riverwash (RA) soils.
According to data from the Coachella Valley General Plan (Riverside
County 2005), all remaining upland habitat on tribal land north of
Acanto Drive is projected to be developed at a density of two homes per
ac (0.5 per ha) by the year 2020, even though some parcels designated
as parks and recreation in the 2020 General Plan (code GP2020 =
``1145'') have already been developed with three homes per ac (7.5 per
ha). Undeveloped habitat on tribal reservation land south of Acanto
Drive has the same initial land use designation as adjacent land north
of Acanto Drive (LU93 = ``3100'') (Riverside County 2005, pp. 94-120)
in the East Bogart Trail area, except that it is outside the city limit
of Palm Springs (code GP2020 = ``58''). Code GP2020 = ``58'' signifies
tribal land or open space in the General Plan; lands with this code
have been developed at a density as high as 3 homes per ac (more than 7
homes per ha). Land use projections (Riverside County 2005) indicate
that more than 48 percent of the approximately 523 ac (212 ha) of
upland Casey's June beetle habitat that we estimated to be extant in
2008 could be impacted by development.
Further indicating that development in Casey's June beetle habitat
is likely, the Director of Planning Services for the City of Palm
Springs stated in a communication to economists writing the DEA (Ewing
pers. comm. 2009) that ``* * * much of the [proposed critical habitat]
is within the urban boundaries of the city and along a major
thoroughfare (and former state highway). These lands are of significant
economic value to the community and have already been the subject of
entitlement applications, processing, and approval.''
Development is the greatest threat to habitat in upland CdC soils
that are believed to support Casey's June beetle; however, development
threats are not limited to upland terrace habitat. For example, entire
sections of Palm Canyon
[[Page 58958]]
Wash east of occupied habitat near Gene Autry Trail have been converted
to golf course landscaping (Anderson and Love 2007, p. 3). LaRue (pers.
comm. 2006) emphasized the magnitude of development threats to Dinacoma
spp. population survival: ``Most Dinacoma [spp.] have experienced range
reduction because of unprecedented habitat destruction and modification
for recreational, residential and urban development resulting in
serious distributional fragmentation throughout [their] former already
naturally limited ranges. Consequently, several populations [of the
genus Dinacoma] have been extirpated, especially those that once
existed in Los Angeles County (for example, Glendale, Eaton Canyon).''
Therefore, habitat modification for recreational, residential, and
urban development reduces an already limited range for Casey's June
beetle and poses a substantial threat to this species'' survival, both
now and in the foreseeable future.
Soil Disturbance
In addition to the threat of habitat loss, soil disturbance
activities may degrade habitat quality and can cause direct Casey's
June beetle mortality (also see E. Other Natural or Manmade Factors
Affecting the Continued Existence of the Species below). Analysis of
2008 aerial photography in Palm Canyon Wash indicates numerous land-
disturbance activities affecting occupied wash habitat managed by the
Riverside County Flood Control and Water Conservation District
(Riverside County FCWCD). In the vicinity of the State Route 111 bridge
and Araby Drive, there are road maintenance and flood control
activities, as well as unregulated off-road vehicle (ORV) disturbance
(based on examination of Google Earth imagery, both current and
historical). Cornett (2004, p. 12) noted similar ORV impacts during
Casey's June beetle surveys on a nearby site adjacent to Whitewater
Wash and the Palm Springs Airport. ORV use impacts desert soils and
associated biota by increasing erosion (Snyder et al. 1976, pp. 29-30;
Rowlands 1980, p. 169), reducing both plant and vertebrate diversity
(Bury et al. 1977, Table 4, Figure 6; Rowlands 1980, pp. 63-74; Lathrop
1983, pp. 153-166; Cornett 2004, p. 15), and changing soil density
through compaction, which may also influence soil water retention
capacity (Adams et al. 1982, pp. 167-175; Lathrop and Rowlands 1983,
pp. 144-145; Webb 1983, pp. 51-79). Indirect evidence suggests that
land disturbance impacts the species' burrows and larvae that occur in
the soil and the flightless females when they rest at the top of the
burrows (Cornett 2004, p. 15). Any activities that cause direct adult
mortality, compact or disturb soils when adult beetles are active, or
affect soils to a depth where immature stages or resting adults are
found may affect the species' persistence in those areas or dispersal
to adjacent areas. Waste dumping at habitat edges, as discovered
through review of digital aerial photography of proposed critical
habitat areas and described in the Summary of Comments and
Recommendations section (see Comment 12) below, or frequent use for
horseback riding by local riding clubs (as described by Hawks pers.
comm. 2011b) can also cause direct mortality of adult females and may
have detrimental effects on habitat. Therefore, land disturbance
activities likely pose a threat to the species' survival; however, the
magnitude of impacts is unknown.
Habitat Fragmentation
Casey's June beetle habitat in Palm Springs has been increasingly
fragmented by development in recent years (see above discussion
regarding development). Continued fragmentation of already limited,
remnant habitat compromises the ability of various species to disperse
and establish new, or augment declining, populations (Collinge 2000,
pp. 2211-2226; Freemark 2002, pp. 58-83; Driscoll and Weir 2005, pp.
182-194) and can isolate segments of a population (Picket and White
1986, pp. 189-192). Elimination of dispersal areas and isolation of
population segments increase chances of extirpation by stochastic
events (Hanski et al. 1995, pp. 21-28; Collinge 2000, pp. 2211-2226).
This process, as it applies to Casey's June beetle, is evident in the
development history of the City of Palm Springs and the distribution of
Casey's June beetle populations (Cornett 2004, pp. 11, 14). Casey's
June beetle is especially impacted by smaller-scale habitat
fragmentation because females are flightless and unable to move between
fragmented patches (Hovore 1995, p. 7). Although male beetles can move
between habitat patches, thereby maintaining genetic mixing on a
population scale, fragmented patches that no longer support any female
Casey's June beetles may be attractive to male beetles and act as
population sinks. The risk of local extinction is widely noted to
increase as the fraction of occupied habitat patches, occupied patch
area, and density of occupied patches decrease (Forman and Godron,
1986, pp. 87-91; Hanski 1991, pp. 17-38; Hanski et al. 1995, pp. 21-28;
Hokit and Branch 2003, pp. 1060-1068).
Hovore (2003, p. 3) indicated that population movement would be
``slow and indirect,'' and suggested the population structure for
Casey's June beetle in any given area could be described as ``clusters
of individuals around areas of repeated female emergence.'' This would,
in Hovore's (2003, p. 4) assessment, make the species ``susceptible to
extirpation resulting from land use changes that would remove or alter
surface features'' that isolate colonies into non-contiguous habitat
fragments. Although fragmentation of habitat occupied by females within
a population still allows mixing of genes by males visiting multiple
habitat fragments (habitat is not fragmented with regard to male
movement), it would preclude recolonization of an area if all
flightless females were eliminated from that fragment. Fragmentation of
suitable habitat into smaller patches increases the risk of colony loss
and decreases the probability of the species' survival.
Current Conservation Measures
Indian Canyons Master Plan
We reviewed the Indian Canyons Master Plan (Master Plan; ACBCI
2007) and the zoning designations in it to determine what type of
protective measures it provides Casey's June beetle and its habitat.
Upon review of the Master Plan we noted that the planning area
encompasses all Casey's June beetle habitat south of Acanto Drive
(including some trust, fee, and allotted lands). The majority of this
habitat falls within allotted lands owned by tribal members (ACBCI
2007, p. 17). According to acquisition priorities articulated in the
Master Plan, some parcels identified as Casey's June beetle habitat
(south of the east-west aligned portion of South Palm Canyon Drive)
represent the highest priority for acquisition because they contain
valuable cultural, natural, and scenic resources, and have the highest
potential for future development plans that are incompatible with
resource protection goals (ACBCI 2007 pp. 27 and 29). Allotted lands
identified as Casey's June beetle habitat within Palm Canyon Wash
between Acanto Drive and the east-west aligned portion of South Palm
Canyon Drive fall within the Master Plan Low Density Residential (2
single family dwellings per acre (0.4 ha)) land use category (ACBCI
2007 pp. 35 and 37). In summary, the Master Plan provides some
protection of some Casey's June beetle habitat on tribal land, but does
not assure protection.
The Agua Caliente Band of Cahuilla Indians prepared and submitted a
draft habitat conservation plan (HCP) to the
[[Page 58959]]
Service, which has undergone public review in accordance with the
National Environmental Policy Act (72 FR 58112; October 12, 2007). The
Tribe informed us in an October 28, 2008, letter that they removed
Casey's June beetle from the list of species addressed in the draft
Tribal HCP; however, they indicated they will ``continue to informally
coordinate with the Service regarding this species where it occurs on
the Reservation.'' The Tribe stated they are deferring to the Service
to allow ``the Service to take the lead in addressing how to
effectively conserve and protect this species'' (ACBCI 2008, p. 1).
Although the Tribe has suspended their pursuit of a section 10(a)
permit (ACBCI 2010a, p. 1), they are continuing to implement the draft
HCP and will continue to protect and manage natural resources within
the Tribe's jurisdiction (ACBCI, 2010a, p. 1; ACBCI 2010b, p. ES-1). We
will continue to work cooperatively with the Tribe on efforts to
conserve Casey's June beetle.
Our analysis indicates that although some tribal environmental
policies do exist (ACBCI 2000; ACBCI 2007) that provide some
conservation benefit for the species and its habitat, they do not
adequately protect Casey's June beetle and its habitat. Therefore, we
do not believe that existing tribal regulatory documents ensure
conservation of Casey's June beetle. The Service will continue to work
with the Tribe to obtain any other information that illustrates how
tribal actions or policies would help conserve Casey's June beetle
habitat and protect the species. Currently, we do not have information
documenting how occupied or potentially occupied habitat for Casey's
June beetle is protected from development and other impacts on all
tribal reservation lands.
Coachella Valley Multiple Species Habitat Conservation Plan (Coachella
Valley MSHCP)
Some non-Federal lands within the purported historical range of
Casey's June beetle are proposed for management under the Coachella
Valley Multiple Species Habitat Conservation Plan (Coachella Valley
MSHCP). The Service issued a single incidental take permit (Service
file: TE-104604-0 (Service 2008)) under section 10(a)(1)(B) of the Act
to 19 permittees under the Coachella Valley MSHCP for a period of 75
years on October 1, 2008. Although Casey's June beetle was initially
considered for coverage under the Coachella Valley MSHCP, the
10(a)(1)(B) permit did not include Casey's June beetle as a covered
species. Because it is not a covered species, the Coachella Valley
MSHCP does not provide specific measures for the protection or
conservation of the species and its habitat, nor does the incidental
take permit authorize take of the species. We are working with
individual permittees within the species' range to address the species'
needs in their planned projects. We are engaged in discussions with the
City of Palm Springs, Riverside County FCWCD, and the California
Department of Transportation (Caltrans) to avoid, minimize, and offset
impacts to the species appropriately. However, actions taking place
after the effective date of this final rule would require any take
associated with their activities be exempted from the prohibitions of
section 9 of the Act through section 7 consultation (where appropriate)
or permitted under an amendment to the Coachella Valley MSHCP or a
separate HCP focused on the Casey's June beetle. No such amendment or
permit is currently in place.
Summary of Factor A
Within the historical distribution of Casey's June beetle, we
estimate that over 97 percent of habitat likely to have been occupied
by Casey's June beetle has been converted to development or rendered
unsuitable due to impacts of adjacent development. Loss of occupied
habitat has continued since the early 1990s. Twenty-eight percent (287
ac (116 ha)) of the 1,018 ac (412 ha) of contiguous suitable habitat
for Casey's June beetle identified as extant (based on 1991 aerial
photographs) has been lost to development. From 2003 to 2005, the loss
of occupied Casey's June beetle habitat occurred at a rate of 3.8
percent per year. Although habitat loss since 2005 has slowed (likely
due to the economic downturn), development and habitat impact trends
are continuing (see above discussion of Eagle Canyon project approved
by the City of Palm Springs), and we anticipate additional upland
habitat for the beetle may be impacted or lost in the foreseeable
future. Based on recent information and calculations, we estimate the
amount of undeveloped habitat currently occupied by the species is
approximately 605 ac (245 ha) (including all non-contiguous habitat
containing any soil types used by the species). Based on current
projected development and habitat impacts, the loss of historically
occupied locations, the limited distribution of Casey's June beetle,
existing and future habitat fragmentation, habitat disturbance, and
land use changes associated with urbanization, we find that the threats
associated with the present and threatened destruction, modification,
and curtailment of Casey's June beetle habitat are significant. These
threats are currently ongoing and will continue into the foreseeable
future.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
We are not aware of any information regarding overutilization of
Casey's June beetles for commercial, recreational, scientific, or
educational purposes and do not consider collection for these
activities to be a threat to the species at this time.
C. Disease or Predation
We are not aware of any information regarding threats of disease or
predation to Casey's June beetle and do not consider disease or
predation to be a threat to the species at this time.
D. The Inadequacy of Existing Regulatory Mechanisms
Existing regulatory mechanisms that could provide some protection
for Casey's June beetle include: (1) Federal laws and regulations; (2)
State laws and regulations; and (3) local land use processes and
ordinances (for example, tribal environmental policies). However, these
regulatory mechanisms are not preventing continued habitat modification
and fragmentation. There are no regulatory mechanisms that specifically
or indirectly address the management or conservation of habitat for
Casey's June beetle. However, there are regulatory mechanisms that
could provide incidental benefit to Casey's June beetle. The following
section discusses these mechanisms.
Federal Laws
All Federal agencies are required to adhere to the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) of 1970 for
projects they fund, authorize, or carry out. The Council on
Environmental Quality's regulations for implementing NEPA (40 CFR parts
1500-1518) state that, in their environmental impact statements,
agencies shall include a discussion on the environmental impacts of the
various project alternatives (including the proposed action), any
adverse environmental effects which cannot be avoided, and any
irreversible or irretrievable commitments of resources involved (40 CFR
part 1502). NEPA itself is a disclosure law that provides an
opportunity for the public to submit comments on the particular project
and propose other conservation measures that may directly benefit
listed species; however, it does not require subsequent
[[Page 58960]]
minimization or mitigation measures by the Federal agency involved. Any
such measures are typically voluntary in nature and are not required by
the statute. Activities are subject to NEPA regardless of ownership if
there is a Federal nexus, such as under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) and tribal lands held in trust by the
Bureau of Indian Affairs.
The Clean Water Act (CWA) is the primary mechanism in the United
States for surface water quality protection. It establishes the basic
structure for regulating discharges of pollutants into waters of the
United States. It employs a variety of regulatory and non-regulatory
tools to reduce direct water quality impacts, finance water treatment
facilities, and manage polluted run-off. The CWA made it unlawful to
discharge any pollutant from a point source into navigable water unless
a permit was obtained. The EPA's National Pollutant Discharges
Eliminations System permit program controls discharges. The EPA
determines water quality standards for each State, and the CWA requires
States to either adopt this level or determine another with
documentation (EPA 2000, p. 31682). Under section 404, the U.S. Army
Corps of Engineers (Corps) regulates the discharge of fill material
into waters of the United States, which include navigable and isolated
waters, headwaters, and adjacent wetlands (33 U.S.C. 1344). In general,
the term ``wetland'' refers to areas meeting the Corps' criteria of
hydric soils, hydrology (either sufficient annual flooding or water on
the soil surface), and hydrophytic vegetation (plants specifically
adapted for growing in wetlands). Any action with the potential to
impact waters of the United States must be reviewed under the CWA.
These reviews require consideration of impacts to water quality and
recommendations for mitigation of significant impacts. Most wash
habitat suitable for Casey's June beetle could meet the definition of
waters of the United States; thus some impacts to this sensitive taxon
and its habitat within the wash could potentially fall under Corps'
jurisdiction and be averted. However, the CWA has not proven sufficient
to alleviate threats to Casey's June beetle and its habitat to date.
State Laws
The California Environmental Quality Act (CEQA) requires disclosure
of potential environmental impacts resulting from public or private
projects carried out or authorized by all non-Federal agencies in
California. The CEQA guidelines require a finding of significance if a
project has the potential to ``reduce the number or restrict the range
of an endangered, rare or threatened species' (CEQA Guideline 15065).
As a candidate species for Federal listing, Casey's June beetle is
considered rare under CEQA Guideline 15380. The lead agency can either
require mitigation for unavoidable significant effects or decide that
overriding considerations make mitigation infeasible (CEQA Guideline
21002). Although such overrides are rare, the possibility remains that
projects that cause significant environmental damage, such as taking of
endangered species or destruction of their habitat, will be approved.
Therefore, protection of listed species through CEQA is dependent upon
the discretion of the agency involved. Furthermore, because the
availability of occupied and suitable Casey's June beetle habitat is
extremely limited, regulatory protections such as CEQA that do not
prohibit mortality or habitat loss, nor require acquisition of
available habitat to mitigate such losses, would not be sufficient to
reduce threats or prevent the species' extinction.
The California Endangered Species Act (CESA) provides protections
for many species of plants, animals, and some invertebrate species.
However, insect species, such as Casey's June beetle, are not afforded
protection under CESA. Therefore, this existing regulatory mechanism
does not provide for the protection of Casey's June beetle or its
habitat.
Existing Tribal Regulatory Mechanisms
Based on occurrence of soil types and species collection records,
historically (pre-European settlement), Casey's June beetle potentially
occupied 5,834 ac (2,361 ha) (18 percent) of tribal land. Lands within
the Agua Caliente Band of Cahuilla Indians'' reservation encompass 274
ac (111 ha), or approximately 45 percent of the estimated extant
Casey's June beetle habitat. All post-1996 development of occupied
habitat, with the exception of the Smoke Tree Commons and Cottages
projects, has occurred on Agua Caliente Band of Cahuilla Indians''
reservation land. The remaining undeveloped suitable upland habitat on
the Agua Caliente Band of Cahuilla Indians'' reservation land is
relatively flat and adjacent to, or surrounded by, recent development
(Anderson and Love 2007, pp. 1-3), and some of these lands are approved
for development by the City of Palm Springs and will likely be
developed (see the discussion of the Eagle Canyon project under A. The
Present or Threatened Destruction, Modification, or Curtailment of the
Species' Habitat or Range section above).
In a letter to the Carlsbad Fish and Wildlife Office's Field
Supervisor dated October 10, 2006, the Tribe stated they had ``* * *
enacted a Tribal Environmental Policy Act to, among other things,
ensure protection of natural resources and the environment. See Tribal
Ordinance No. 28 at I.B., (2000).'' The referenced Tribal Environmental
Policy Act (Tribal Act) (ACBCI 2000) states that the Agua Caliente Band
of Cahuilla Indians (Tribe) is the lead for preparing environmental
review documents, and that tribal policy is to protect the natural
environment, including ``all living things.'' According to the Tribal
Act (ACBCI 2000, p. 4), the Tribe will consult with any Federal, State,
and local agencies that have special expertise with respect to
environmental impacts. In a second letter dated April 29, 2010, the
Tribe further stated they have chosen not to delegate land use
authority to a local agent (such as the City of Palm Springs) in the
area of the reservation south of Acanto Drive. Instead, the Tribe
stated they directly regulate land use in this area through the Indian
Canyons Master Plan and tribal zoning designation.
Several projects implemented on tribal reservation lands since the
enactment of the Tribal Act have impacted Casey's June beetle habitat.
Casey's June beetle occupancy of the Bogert Trail site in the vicinity
of South Palm Canyon Drive on tribal land (Duff 1990, pp. 2-3, 4;
Hovore 1997b, p. 4; Barrows and Fisher 2000, p. 1; Hovore 2003, p. 4;
Cornett 2004, p. 3) has been greatly reduced, if not eliminated, by
development since our receipt of the petition to list the Casey's June
beetle in 2004 (see A. The Present or Threatened Destruction,
Modification, or Curtailment of the Species' Habitat or Range above).
The Alta and Monte Sereno development projects eliminated most of the
species' upland habitat estimated to have been occupied in 2003 outside
of Smoke Tree Ranch. Hovore (2003, p. 4) estimated that grading for the
Alta project near South Palm Canyon Drive and Bogert Trail in May 2003
reduced the known extant Casey's June beetle population size by ``about
one-third.''
No Federal, State, or local agencies that have special expertise
with respect to environmental impacts to Casey's June beetle were
consulted and no review documents were prepared by the Tribe prior to
the recent development of the Alta and Monte Sereno projects in
occupied Casey's June beetle habitat. Therefore, our conclusion is that
the
[[Page 58961]]
Tribal Act does not effectively protect the species'' habitat. The
Chief Planning and Development Officer for the Tribe (Davis, pers.
comm. 2007) affirmed that the Tribal Act does not apply to all tribal
reservation lands; for example, the currently planned Alturas
development project (see A. The Present or Threatened Destruction,
Modification, or Curtailment of the Species' Habitat or Range above) is
not covered, because it is ``fee land.'' Although State environmental
review documents (CEQA Environmental Impact Reports) were prepared by
private consultants and reviewed by the City of Palm Springs for the
Eagle Creek development project, the Tribe did not participate in the
review or comment with regard to Casey's June beetle (Davis, pers.
comm. 2007). Summary of Factor D
Existing regulatory mechanisms are not adequate to protect Casey's
June beetle or its habitat. Occupied habitat continues to be lost to
development projects, such as those in the Bogert Trail area, which
were constructed without any Casey's June beetle mitigation. Because
existing regulatory mechanisms do not provide adequate protection for
this species or its habitat throughout its range, we believe this
presents a significant threat to the survival of Casey's June beetle,
both now and in the foreseeable future.
E. Other Natural or Manmade Factors Affecting the Continued Existence
of the Species
The Casey's June beetle population may be impacted by other natural
or anthropogenically influenced factors, such as changing environmental
conditions resulting from climate change, increased intensity and
frequency of scouring events in wash habitat, and indirect effects
associated with adjacent development. However, there are no species-
specific, scientific, published models describing or predicting the
magnitude of these threats, and this should be the subject of future
research.
Stream Channelization
Past and ongoing development adjacent to Palm Canyon Wash,
channelization of the wash to protect development, and development of
associated flood-control levees are all likely to increase Casey's June
beetle mortality during flood events. Urban development adjacent to
natural creek beds or washes concentrates stream flow by constraining
channel width, thereby increasing the speed of water flowing past a
given location (Poff et al. 1997, p. 772). Therefore, scouring events
that cause species mortality are likely to occur more frequently today
than they did prior to development. Scouring events may temporarily
eliminate Casey's June beetles within Palm Canyon Wash (Hovore 2003, p.
9; Cornett 2004, p. 14). After scouring or long-term inundation events,
depopulated wash habitats would be slowly repopulated by females from
neighboring occupied, higher elevation habitat. However, if scouring
events increase in frequency, there may be insufficient time for
females to emigrate from higher elevation refugia between scouring flow
events. We do not know how far or how fast females can emigrate from
upland refugia; however, we expect that travel across land would be
relatively slow and occur over short distances compared to males that
can fly. Should these recolonization events fail, Casey's June beetles
may become extirpated from Palm Canyon Wash, which comprises a
significant portion of the known occupied habitat area. We believe the
increased frequency of scouring events due to indirect effects of
development adjacent to the Wash poses at least a moderate threat to
Casey's June beetle, both now and in the foreseeable future.
Climate Change
Casey's June beetle is sensitive to changes in climate factors,
such as increased windspeed and temperatures (that dry alluvial soils
and disperse female pheromones), and increased catastrophic flood
events (Noss et al. 2001, p. 42; LaRue pers. comm. 2006). As discussed
above, increased intensity and frequency of flooding and scouring
events from habitat modification in Palm Canyon Wash is of particular
concern for Casey's June beetle. However, this increased flooding and
scouring may also result from changes in climatic conditions. The
global frequency of heavy precipitation events has increased since
1960, consistent with warming and observed increases of atmospheric
water vapor, and it is ``very likely'' (90 percent confidence) that
heavy precipitation will generally become even more frequent over most
land areas (IPCC 2007, pp. 2 and 8-9). A review of literature and
historic climate data specific to the area of Casey's June beetle
(Anderson 2007, pp. 1-6) indicated temperature, precipitation, peak
stream flow (NWIS 2008), and other weather patterns since 1950, are
consistent with global patterns described and predicted by the IPCC
(2007 p. 2, pp. 8-9, and 15). General Circulation Models predict a 1 to
3 [deg]Fahrenheit ([deg]F) (0.5 to 1.7 [deg]Celsius ([deg]C)) rise in
temperature and at least a 25 percent increase in precipitation by
2050, to as much as a 50 percent increase in precipitation as early as
2030 for California (Giorgi et al. 1994, pp. 375-399; Field et al.
1999, pp. 5-10), and increasing intensity of flood and drought events
(Giorgi et al. 1994, pp. 375-399; Dessens 1995, pp. 1241-1244).
Downscaled average climate model predictions for Casey's June beetle
habitat calculated using Climate Wizard (Maurer et al. 2007; medium A1
scenario for 2050) predict an increase in temperature of 5 [deg]F (2.8
[deg]C) and a 5 percent increase in annual precipitation. Increased
temperatures, combined with concentration of total annual precipitation
into more extreme storm events with associated high wind speeds should
cause soil drying, as a result of increased evaporation and runoff,
regardless of an increase in total annual precipitation (Field et al.
1999; pp. 9 and 20). Therefore, per Field et al. (1999, pp. 9 and 20)
and the above Climate Wizard predictions, drought frequency, soil
dryness, and the frequency of flash flood scouring events over
saturated winter soils are expected to increase in the future.
Alternating drought and flash flood events may exacerbate threats
already facing the species as a result of its small population size and
threats to its habitat.
The Application of the NatureServe Climate Change Vulnerability
Index (NatureServe 2010) ranked Casey's June beetle as extremely
vulnerable (abundance and range extent within geographical area
assessed extremely likely to substantially decrease or disappear by
2050) based primarily on climate model predictions, dependence on a
moisture regime, vulnerability to disturbance regime change, restricted
mobility, historical reduction of occupied habitat, and its narrow
endemic status (Anderson 2010, p. 1). Therefore, the best available
science indicates ongoing changing environmental conditions resulting
from climate change effects pose a significant threat to Casey's June
beetle, both now and in the foreseeable future.
Artificial Light
Insect surveys using light traps have recorded male Casey's June
beetles traveling up to 328 ft (100 m) to artificial light sources
(Osborne, Osborne Biological Consulting, pers. comm. 2008a). Such
artificial light sources as black lights or mercury vapor lights may
draw males in a line-of-sight radius from existing habitat (Hovore
2003, p. 3). As males fly in search of female pheromone plumes (Domek
et al. 1990, pp. 271-276), they may become distracted by light sources
that attract
[[Page 58962]]
them to sites that are out of suitable habitat for this species where
they are preyed upon, or to local swimming pools, that are also an
unnatural source of light even if it is only reflected, where they end
up in pool skimmers and often drown. Swimming pools are one common
source for male Casey's June beetle specimens (Barrows 1998, p. 1;
Barrows and Fisher 2000, p. 1; Cornett 2004, p. 5) and may serve as a
genetic sink for this species. If large numbers of male Casey's June
beetles are lost as a result of these indirect effects of development,
there could be reduced genetic diversity in males available for mating.
Male beetles located at habitat patch edges closer to light sources
would be more susceptible to distraction than those located at the
center of patches. The loss of large numbers of these male Casey's June
beetles would diminish the overall genetic diversity of the population.
We believe that loss of male beetles due to unnatural light sources
attracting beetles into development adjacent to upland habitat poses at
least a moderate threat to Casey's June beetle, both now and in the
foreseeable future.
Soil Disturbing Activities
Foot, vehicle, and horse traffic and other soil disturbing
activities from adjacent developed areas are likely to cause direct
mortality of adults because adult female Casey's June beetles are
flightless. It is also likely that vehicle traffic could compress or
compact soils to a depth deep enough to kill Casey's June beetle
larvae. Discing, grading, soil removal, and soil filling all have the
potential to harm individuals below the soil surface. These activities
are a common occurrence, as evidenced by eyewitness accounts (Anderson
2006, pp. 17, 20, 22; Hawks pers. comm. 2011b) and aerial imagery from
multiple years.
Small Population Size and Restricted Range
As stated above, Casey's June beetle is part of a genus of beetles
that have naturally restricted ranges, and it is adapted to specialized
habitat and soil types within the eastern foothills of the San Jacinto
Mountains from the City of Palm Springs south to the community of
Indian Wells. Casey's June beetle occupies only a portion of this area,
and the majority of the occupied area is threatened by development,
habitat fragmentation, or other anthropogenic or natural factors. In
addition to having a restricted range and small population size, the
species also has limited dispersal capabilities (Hovore 2003, p. 3).
These conditions most likely increase the degree of threat due to
chance events, such as floods or drought, that are beyond the natural
variability of the ecosystem (Lande 1993, p. 912). The risk of local
extinction is widely noted to increase as the fraction of occupied
habitat patches, occupied patch area, and density of occupied patches
decrease (Forman and Godron, 1986, pp. 87-91; Hanski 1991, pp. 17-38;
Hanski et al. 1995, pp. 21-28; Hokit and Branch 2003, pp. 1060-1068).
Summary of Factor E
Casey's June beetle is negatively affected by increased intensity
and frequency of catastrophic flood events; environmental effects
resulting from changing climatic patterns; loss of individuals due to
foot, vehicle, horse traffic and other soil disturbing activities; and
loss of individuals due to attraction to light sources. We conclude
from available information that climate change is likely to reduce
Casey's June beetle population densities by increasing scouring events
and decreasing water retention in the soil. Additional development
within or adjacent to Casey's June beetle habitat will likely increase
traffic into habitat areas and include external lighting and swimming
pools, all of which may result in additional losses and will continue
to adversely affect the existing population. Therefore, we find that
other natural or manmade factors in total pose a significant threat to
the continued existence of Casey's June beetle, both now and in the
foreseeable future.
Determination
Section 3 of the Act, defines the term ``endangered species'' to
mean any species which is in danger of extinction throughout all or a
significant portion of its range. The term ``threatened species'' is
defined as any species which is likely to become an endangered species
within the foreseeable future throughout all or a significant portion
of its range.
We carefully assessed the best available scientific and commercial
information regarding the past, present, and future threats to Casey's
June beetle. We also consulted with recognized Casey's June beetle
experts on the species' status and trends. Although quantification of
population numbers has not been possible, given the cryptic nature of
this species and limited historical survey data, this species' highly
restricted geographic range relative to its historical distribution (as
evidenced by documented loss of occupied habitat; see above
discussion), ongoing habitat impacts and losses, and slow female
dispersal rate make it particularly susceptible to extinction from
random events such as flood scouring or isolation through habitat
fragmentation.
As described in detail above, projections for human population
growth extend out to 2030 in Palm Springs (SCAG 2004). Such projections
frame our analysis as they help us understand what factors can
reasonably be anticipated to meaningfully affect the species'' future
conservation status. We updated our original analysis by Anderson and
Love (2007, pp. 1-2) to determine rates of habitat loss in southern
Palm Springs from 1991 to 2008. During that time, Casey's June beetle
experienced an approximate 22 percent reduction in contiguous,
undeveloped habitat from 1,001 ac (405 ha) in 1991 to 794 ac (321 ha)
in 2008. Habitat loss was greatest in the 2003 to 2005 time period, and
impacts have continued to occur. Habitat has been lost at a rate of 1.6
percent per year from 1991 to 1996, 0.6 percent per year from 1996 to
2003, 3.8 percent per year from 2003 to 2005, and 0.7 percent per year
from 2005 to 2008. These habitat loss estimates do not include the area
west of South Palm Canyon Drive that we determined is not likely
suitable habitat (see New Species Information section above and Summary
of Changes From the 2009 Proposed Critical Habitat Rule section below).
In summary, the most significant threat to Casey's June beetle, as
described in the Factor A discussion, is loss of its habitat. This
species faces immediate and continuing threats from development of
habitat and habitat fragmentation and degradation. Additionally, a
variety of other threat factors (which fall under Factor E) continue to
negatively affect the species (including changes in environmental
conditions resulting from climate change impacts, attraction to
artificial light sources, swimming pools, and other sources of direct
mortality). Furthermore, as described in the Factor D discussion,
existing regulatory mechanisms provide insufficient protection of
Casey's June beetle habitat, the loss of which is the most significant
threat to the species. The threats described above for Casey's June
beetle occur uniformly across its entire range, resulting in a negative
impact on the species' distribution, abundance, and survivability. As
discussed in the July 9, 2009, proposed rule (74 FR 32859), what we
believe is a single remaining Casey's June beetle population
(fragmented into several areas) may already have reached the point
where it is not naturally sustainable.
[[Page 58963]]
Therefore, based on the best available scientific and commercial
information that has identified the species as having an extremely
restricted range and uniformly facing ongoing and projected threats, we
find that Casey's June beetle is in danger of extinction throughout all
of its range. The threats that Casey's June beetle face are currently
occurring, and we see evidence that the threats have already negatively
impacted the species, and that the species is endangered now. The
threats to its continued existence are not commencing in the
foreseeable future, which would result in a status determination of
threatened. Consequently, we are listing Casey's June beetle as an
endangered species under the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection measures required of Federal agencies and the
prohibitions against certain activities are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
subsequently listed, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include, but are not limited to, management and any other
landscape-altering activities on Federal lands administered by agencies
such as the Department of Defense, U.S. Fish and Wildlife Service,
Bureau of Land Management, and U.S. Forest Service; issuance of section
404 Clean Water Act permits by the U.S. Army Corps of Engineers; leases
on Tribal Trust lands that require Bureau of Indian Affairs approval;
construction and management of gas pipeline and power line rights-of-
way by the Federal Energy Regulatory Commission; and construction and
maintenance of roads or highways by the Federal Highway Administration.
We are engaged in discussions with Caltrans (designated non-Federal
representative for the Federal Highway Administration) to avoid,
minimize, and offset impacts to Casey's June beetle as part of projects
funded by that agency.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions, codified at 50 CFR 17.21 for endangered
wildlife, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to
attempt any of these), import, export, ship in interstate commerce in
the course of commercial activity, or sell or offer for sale in
interstate or foreign commerce any listed species. It is also illegal
to possess, sell, deliver, carry, transport, or ship any such wildlife
that has been taken illegally. Certain exceptions apply to agents of
the Service and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered or threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened species. With
regard to endangered wildlife a permit must be issued for the following
purposes: For scientific purposes, to enhance the propagation or
survival of the species, and for incidental take in connection with
otherwise lawful activities. We are engaged in discussions with the
City of Palm Springs, Riverside County FCWCD, and Caltrans to avoid,
minimize, and offset impacts to the species resulting from activities
undertaken by those entities under an amendment to the Coachella Valley
MSHCP or a separate HCP focused on the Casey's June beetle, but no such
amendment or permit is currently in place.
Critical Habitat Designation for Casey's June Beetle
Critical Habitat Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for Casey's June beetle
in this section of the final rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
any endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management, such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot otherwise be
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies insure, 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 seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or
[[Page 58964]]
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.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it is listed must
contain the physical or biological features that are essential to the
conservation of a species and which may require special management
considerations or protection. 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), focusing in on the principal biological or physical
constituent elements (primary constituent elements) within the defined
area that are essential to the conservation of the species (such as
roost sites, nesting grounds, seasonal wetlands, water quality, tide,
soil type). Primary constituent elements are the elements of physical
or biological features that are essential to the conservation of the
species.
Under the Act, 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. According to regulations at 50 CFR 424.12, we designate
critical habitat in areas outside the geographical area presently
occupied by a species only when a designation limited to its present
range would be inadequate to ensure the conservation of the species.
When the best available scientific data do not demonstrate that the
conservation needs of the species require such additional areas, we
will not designate critical habitat in areas outside the geographical
area occupied by the species. An area currently occupied by the species
but that was not occupied at the time of listing may, however, be
essential to the conservation of the species and may be included in the
critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act, (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include any potential recovery
planning for the species, articles in peer-reviewed journals,
conservation plans developed by States and counties for this or similar
species, scientific status surveys and studies, biological assessments,
or other unpublished materials and expert opinion or personal
knowledge.
Habitat is dynamic, and species may move from one area to another
over time. Climate change will be a particular challenge for
biodiversity because the interaction of additional stressors associated
with climate change and current stressors may push species beyond their
ability to survive (Lovejoy 2005, pp. 325-326). The synergistic
implications of climate change and habitat fragmentation are the most
threatening facet of climate change for biodiversity (Hannah et al.
2005, p. 4). Current climate change predictions for terrestrial areas
in the Northern Hemisphere indicate warmer air temperatures, more
intense precipitation events, and increased summer continental drying
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al.
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p.
1181). Climate change may lead to increased frequency and duration of
severe storms and droughts (McLaughlin et al. 2002, p. 6074; Cook et
al. 2004, p. 1015; Golladay et al. 2004, p. 504). See discussion
regarding climate change and impacts on Casey's June beetle and its
habitat under E. Other Natural or Manmade Factors Affecting the
Continued Existence of the Species above.
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 required 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) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. 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 species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the 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, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features required for
Casey's
[[Page 58965]]
June beetle from studies of the species' habitat, ecology, and life
history as described in the Critical Habitat section of the proposed
rule published in the Federal Register on July 9, 2009 (74 FR 32857).
Space for Individual and Population Growth and for Normal Behavior
Casey's June beetle is associated with native Sonoran (Coloradan)
desert vegetation located on desert alluvial fans and bajadas (compound
alluvial fans) at the base of the Santa Rosa Mountains in the Coachella
Valley, Riverside County, California. Sonoran desert habitat is
characterized as scattered assemblages of broad-leaved microphyll
shrubs with an open canopy (Mayer and Laudenslayer 1988, p. 114). The
open canopy provides space for male beetles to fly in search of females
and fulfill normal life-history activities. Disturbed and altered
habitats harboring nonnative species that are dominated by native
vegetation also support the species (see Summary of Changes From the
2009 Proposed Critical Habitat Rule section below). This habitat also
provides the micro-habitat space inhabited by Casey's June beetle.
Individual shrubs provide refugia for the underground stage of the
beetle's life history, protecting emergence holes from anthropogenic
disturbance and enhancing survival of individuals.
Habitats utilized by Casey's June beetles experience varying levels
and types of anthropogenic disturbance. In general, the species uses
soil surfaces to burrow and deposit eggs. After beetles emerge,
emergence holes are easily detectable beneath shrub canopies where they
are protected from human activity. Many emergence holes do occur in the
open, but are apparently destroyed or disturbed by ``equestrians,
vehicles, and other human activities'' (Hovore 2003, p. 3). Therefore,
the habitat where subterranean larvae, and females waiting on the
surface for mates, are protected from human impacts is clustered around
trees and shrubs where there is intact crustal soil (Hovore 2003, p.
3). These individual shrubs are refugia for the underground and
reproductive stages of the beetle's life history, which protect them
from anthropogenic disturbance. The emergence holes in undisturbed soil
do not reflect the entire distribution of the emergence holes (the
primary indicator of occupancy) because disturbance easily destroys
evidence of the hole, but instead represent the remaining intact holes
observable following a disturbance (Hovore 2003, p. 3; Hawks pers.
comm. 2011b). Driscoll and Weir (2005, pp. 182-194) reported that
flightless or subterranean beetle species that lived in disturbed,
fragmented habitats were at greater risk of extirpation compared to
those in intact, less-disturbed habitats. See the Food, Water, Air,
Light, Minerals, or Other Nutritional or Physiological Requirements
section for more specific information on soil characteristics and
nutritional requirements.
In addition to anthropogenic disturbance, Casey's June beetle
habitat undergoes natural disturbance. Palm Canyon Wash experiences
intense flooding and scouring about once every 10 years (Cornett 2004,
p.14), with turbulence that can excavate and unearth sand where the
species may occur (Wright, independent biological consultant, pers.
comm. 2003; NWIS 2008). These events are likely to extirpate Casey's
June beetles from locations within the wash; however, these areas may
subsequently be recolonized by beetles from surrounding upland areas or
local refugia. It is hypothesized that the wash serves as a sink area
(an area where the rate of immigration exceeds emigration and the
population segment is dependent on immigration to maintain a
nonnegative growth rate) for Casey's June beetle (Cornett 2004, p.14),
but wash habitat may also serve as a source area when population
densities are high between flooding events. If correct, these concepts
indicate the need to conserve both upland and wash habitat to achieve
conservation of the species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Vegetation, soil, and climate contribute to the nutritional and
physiological requirements of Casey's June beetle. It is hypothesized
that beetle larvae feed on organic matter and detritus below ground
(Hovore 2003, p. 2; LaRue pers. comm. 2004). Observations of adult
Casey's June beetles feeding underground have not yet occurred (Hovore
1995, p. 2); however, accumulation of leaves around shrubs contribute
to surface litter and subsurface detritus. Additionally, annual plants
and grasses growing in association with these desert scrubs also
contribute to surface litter and likely provide an additional food
source such as radiculum (plant rootlets) (Simpson 1968, p. 500; LaRue,
pers. comm. 2004). Hill and O'Maly (2009, p. 1) found that the frass
pellets of larvae of another endangered June beetle (Mount Hermon June
Beetle) contained a variety of plant species and fungi material
demonstrating that they are not specialist host plant feeders but are
microhabitat specialists. Hawk's (2010, p. 2) observations at Smoke
Tree Ranch indicate Casey's June beetle may be similar, ``We did not
observe females at Smoke Tree [Ranch], but many hundreds of emergence
holes associated with native vegetation, irrigated tamarisk, fan palms,
oleander, and olive. We still are not sure what plants of any sort mean
to [Casey's June beetle] grubs * * *.'' Therefore, the hypothesis that
Casey's June beetles feed on organic matter and detritus below ground
is supported by the best available scientific information.
The Palm Springs area has slightly higher precipitation than
surrounding areas in the eastern Coachella Valley, due to its proximity
to the base of the San Jacinto and Santa Rosa Mountains (LaRue pers.
comm. 2006). This precipitation keeps the underlying soil damp, which
is an important component for Casey's June beetle life history because
they, like many other subterranean scarab beetles, prefer the interface
between surface soil and damp subsoil (Hovore 1995, p. 6; LaRue pers.
comm. 2008). The depth of the damp soil is generally between 4 inches
(in) (10 centimeters (cm)) to 8 in (20 cm) (Hovore 1995, p. 5) and
averages 72 to 78 [deg]F (22 to 26 [deg]C) (USDA 1980, p. 11). This
depth coincides with the depth at which larvae are usually found (2 in
(5 cm) to 8 in (20 cm)) (LaRue pers. comm. 2004). Individual scrub
plant architecture has developed for maximum capture of precipitation,
channeling water along stems to the central root system. Moisture in
the soil layer prevents desiccation of larvae and eggs and maintains a
constant temperature (LaRue pers. comm. 2008). Additionally, areas with
higher soil moisture are associated with a higher density of vegetation
and microorganisms, such as fungi and bacteria believed to provide a
more diverse food source for beetle larvae (LaRue pers. comm. 2008).
The Sonoran desert plant community endemic to the Palm Canyon Wash
and adjacent terraces also serves to maintain habitat consistency. The
Carsitas series soils have a water table located from 2 to 6 ft (0.6 to
1.9 m) deep. Shrubs are important in water and nutrient cycling in
desert ecosystems (Sala et al. 1989, pp. 501-505; McAuliffe 1994, pp.
111-148). Desert shrubs have deeper root systems that bring water from
lower levels up to higher levels, cycle nutrients through the soil, and
mediate diurnal temperature variations. Midday temperatures are lower
near the center of desert scrub patches than in areas outside the
canopy (Weins 1985, pp. 174-176). The combination of moisture
[[Page 58966]]
cycling, diurnal temperature variation, and seasonal climate variation
(Rosenburg 1974, pp. 66-74) may provide beetle larvae with a gradient
of micro-environments to inhabit in the subsoil through the year,
thereby allowing them to maintain optimal body temperature and humidity
levels. Therefore, the precipitation within the Palm Canyon area, and
its influence on the local plant community, may be a unique factor
required for Casey's June beetle.
Soils associated with known occurrences of Casey's June beetles are
described by Hovore (2003, p. 2) as almost entirely of the Carsitas
Series (CdC), typically gravelly sand, single grain, slightly
effervescent, moderately alkaline (pH 8.4), loose, non-sticky and non-
plastic, and deposited on 0 to 9 percent slopes. These soils show light
braiding and some organic deposition on alluvial terraces and where
they occur within washes, although they generally do not receive
scouring surface flows (Hovore 2003, p. 2). Additionally, Casey's June
beetle is associated with RA and ChC soils (Anderson 2007, p.1),
usually occurring in these soils when they are contiguous with CdC
soil. The CdC type soils may also contain small inclusions of fine or
coarse soils, such as MaB and CpA (USDA 1980, pp. 11-12, 16, and 23).
Riverwash (RA) soil is also an important component of Casey's June
beetle habitat because organic matter and vegetation is uprooted,
redistributed, and buried in the wash during flood events. Debris
deposited by these hydrological processes and periodic flooding are
essential to maintain alluvial soils in Palm Canyon Wash and may serve
as new or re-conditioned habitat.
Cover or Shelter
The upland terraces and Palm Canyon Wash are the majority of
remaining areas known to be inhabited by Casey's June beetle. The
upland terraces offer the only known shelter from flooding and scouring
events and ORV impacts, as vehicles tend to remain within the wash.
Because the Palm Canyon Wash experiences periodic flooding and scouring
that is likely to impact the species, upland terraces are essential to
the conservation of Casey's June beetle for long-term maintenance of
the population. Systematic surveys in wash areas contiguous with upland
habitat indicate this area is also important to the long-term survival
of the species (per above discussion, when population segment numbers
have increased to the point where the emigration rate exceeds
immigration and the habitat is a ``source''). Both the upland terraces
and Palm Canyon Wash contain soil types and vegetation conducive to
burrowing and support the nutritional and physiological processes
essential for the species.
Sites for Breeding, Reproduction, and Rearing (or Development) of
Offspring That Are Protected From Disturbance
Casey's June beetle breeding and dispersal mechanisms require
specific habitat important to species'' reproduction. During breeding,
adults of the species are most active at dusk. Females emit pheromones
to attract males to burrows for the purposes of mating. Breeding
success depends on males'' ability to detect pheromones and ability to
maneuver to remain in contact with the pheromone plume (Domek et al.
1990, pp. 271-276). The southern Palm Springs area is surrounded by
mountains and ridges that protect the area from the high winds that are
frequent in the Coachella Valley (Wright pers. comm. 2004), thus
providing conditions that are conducive to successful male flight, and
pheromone detection and tracking. Therefore, successful reproduction
depends on shelter provided by the surrounding mountains and ridges.
Hawks (pers. comm. 2011a and b) noted that RA soil in the Palm
Canyon Wash above approximately 580 ft (177 m) in elevation (just below
the dam) becomes too disturbed, likely by natural scouring, to support
Casey's June beetle. These data indicate suitable habitat associated
with the wash is likely limited to soils contiguous with the wash up to
580 ft (177 m) in elevation (this includes some CdC soils contiguous
with the wash at 580 ft (177 m) that extend up to approximately 620 ft
(189 m) in elevation). These data also indicate relatively small
patches of CdC soil that are only contiguous with more disturbed
portions of the wash above 580 ft (177 m) in elevation in Palm Canyon
are not likely to support Casey's June beetle occupancy because they
appear isolated with regard to female immigration and are especially
vulnerable to flood scouring. Hawks (pers. comm. 2011a) also noted that
he had never observed emergence holes in ChC soil and expressed doubt
that ChC soil not distributed as an inclusion in CdC soil provided
habitat for Casey's June beetle.
Dispersal of Casey's June beetle is also limited by the
flightlessness of females. This adaptation significantly hinders this
species' ability to disperse or recolonize an area. Because female
Casey's June beetles are flightless, the species' breeding system and
the ability of females to disperse over land (which is uncertain but
much reduced compared to flight-capable males) is restricted
geographically to a relatively small area. Females appear to emerge
from burrows and remain on the surface nearby and then either re-enter
these burrows or dig new burrows to lay eggs. If an isolated portion of
the population were extirpated it would be difficult if not impossible
for females to recolonize that area depending on the nature and extent
of isolating factors (de Vries et al. 1996, pp. 332-342; Driscoll and
Weir 2005, pp. 192-193) because flightless females disperse only by
crawling and likely by water flow in wash areas (although it is unclear
what the survival rate would be under water-flow dispersal). Because
male Casey's June beetles cannot repopulate an area by themselves, and
females are flightless, habitat fragmentation and isolation are
significant threats to gene flow in this species. Therefore,
connectivity of suitable habitats that provides for dispersal over
multiple generations is essential to the conservation of the species.
Minimally disturbed suitable habitat is also essential to Casey's
June beetle. As stated above, the adults of this species burrow in
alluvial soils to lay eggs and the larval stages are known to live out
this life stage in alluvial soil as well. Surfaces such as highly
manipulated nonnative ornamental landscaping do not serve the same
function as native or minimally disturbed habitat. Although Casey's
June beetles are documented to occur in abundance within the
residential community of Smoke Tree Ranch (Cornett 2004, Table 1; Hawks
pers. comm. 2010), it is likely that breeding and female movement is
largely restricted to the relatively undisturbed natural areas within
the Smoke Tree Ranch property, and species abundance is primarily the
result of: (1) Minimal past disturbance within a regulated and gated
community; (2) a relatively large, contiguous, occupied, minimally
disturbed, upland habitat area dominated by native plants; and (3)
supplemental soil moisture from landscape watering.
Primary Constituent Elements for Casey's June Beetle
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Casey's June beetle within the geographical area
occupied at the time of listing, focusing on the features' primary
constituent elements. We consider primary constituent elements to be
the specific
[[Page 58967]]
elements of physical or biological features that provide for a species'
life-history processes and are essential to the conservation of the
species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements (PCEs) specific to Casey's June beetle are:
(1) Soils of the Carsitas (CdC) gravelly sand and Riverwash (RA)
series, or inclusions of Carsitas cobbly sand (ChC) series soils, or
inclusions of Myoma fine sands (MaB) or Coachella fine sands (CpA)
within CdC soils, at or below 620 ft (189 m) in elevation, associated
with washes and alluvial fans deposited on 0 to 9 percent slopes to
provide space for population growth and reproduction, moisture, and
food sources; and
(2) Predominantly native desert vegetation, to provide shelter from
traffic-related mortality and food for the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the features that are essential to the conservation
of the species and which may require special management considerations
or protection. Special management of the physical or biological
features is required in these areas to reduce threats to habitat. Major
threats to Casey's June beetle habitat include: (1) Habitat
disturbance; (2) habitat loss and fragmentation associated with
development (such as grading, building roads and other infrastructure,
and constructing commercial and residential structures); and (3)
recreational activities (for example, ORV use and equestrian
activities) as described in the Factor A and Factor E discussions in
the Summary of Factors Affecting the Species section above.
Anderson and Love (2007) examined the rate of habitat loss since
1996, and additional analyses identified continuing habitat loss over
the last 2 years. Because Casey's June beetle is now restricted to a
relatively small area compared to its known historical range, and
habitat loss and fragmentation are threats to the long-term viability
of Casey's June beetle, special management considerations or protection
of the PCEs are needed to address development or urban expansion
impacts. Urban expansion should be avoided within or adjacent to
Casey's June beetle habitat and linkage corridors between habitat
patches should be provided to address the protection necessary for this
species at this time. Preserving habitat and corridors linking habitat
patches have been shown, in general, to be vital for the conservation
of many species, and it stands to reason this is true for a species
such as Casey's June beetle that has flightless females.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available to designate critical habitat.
We reviewed available information pertaining to the habitat
requirements of this species. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we considered whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--is necessary to ensure the
conservation of the species.
We designated critical habitat in areas we determined are within
the species'' present range and contain the physical or biological
features essential to the conservation of the species. When determining
the possible distribution of areas that meet the definition of critical
habitat for Casey's June beetle, we considered all possibly suitable
habitat patches remaining within the species'' historical range, from
the northeastern San Jacinto Mountain foothills, south to the City of
Palm Desert. For Casey's June beetle, we limited critical habitat to
the known present population distribution of the species (occupied
habitat), because the only potentially suitable habitat patches outside
that area occur primarily in small, fragmented, disjunct parcels, and
many are highly disturbed. In this designation we have included both
upland and wash habitats as well as connecting habitats which we
determined are essential to the conservation of the species. Additional
potential habitat outside the species'' known present range (unoccupied
areas) is relatively remote in relation to the likely flight movement
distances of male beetles or terrain through which female beetles are
likely to travel from occupied areas. Based on the best scientific
information currently available, including recent negative surveys (see
New Species Information section above), it is unlikely that these
disjunct habitat patches would be capable of supporting reintroduced
populations or remain viable due to their isolated, fragmented, and
sometimes disturbed nature.
We consider all known occurrences of Casey's June beetle to
constitute a single population based on currently available data.
Because of the limitations of surveys to detect insect occupancy, the
population level is the appropriate scale at which to determine
occupancy of areas designated as critical habitat. We assume all known
occupied areas are within the same population distribution based on the
potential for male movement among sites that contain the physical or
biological features (see New Species Information section above). We
determined all existing CdC and RA soils, and inclusions (all
relatively small) of ChC, MaB, or CpA soils within CdC soils, that are
contiguous with soils containing Casey's June beetle observation
locations are occupied. We made this determination because larval and
adult male and female occupancy of CdC and RA soils, and the likelihood
of adult female and male movement within all these PCE soils defines
occupancy appropriately for this species with regard to the definition
of critical habitat. Therefore, we have determined all areas we are
designating as critical habitat are currently occupied.
We used the following factors to delineate critical habitat: All
areas (1) comprised of contiguous CdC or RA soils containing recent
occurrence locations (1995 to present), or within the flight range of
adult male Casey's June beetles from these recent locations; or (2)
comprised of ChC, MaB, and CpA soils contiguous with these CdC or RA
soils; and (3) that were not denuded, graded or landscaped; and (4)
that are below 620 ft (189 m) in elevation; and (5) that were not
otherwise determined to be unsuitable due to development-associated
degradation (e.g., isolation, soil compaction). The designated critical
habitat is designed to encompass the estimated Casey's June beetle
population distribution and the soils and native vegetation needed for
its long-term conservation. Changes to the PCEs from those described in
the proposed rule (see Summary of Changes from the 2009 Proposed
Critical Habitat Rule, below) did not affect our criteria, because
areas containing the revised PCEs were already included in proposed
critical habitat.
We delineated the critical habitat boundaries using the following
steps:
(1) We mapped observations of Casey's June beetles from Bruyea
(2006), Cornett (2004), Hovore (1997), Hovore (1995), Powell (2003),
and Simonsen-Marchant (2000, 2001). These records were initially mapped
over digital aerial photographs of the Palm Canyon area in the City of
Palm Springs, California, acquired in June 2005 with a ground
resolution of 3.28 ft (1 m). We believe these surveys are the best
available data
[[Page 58968]]
on Casey's June beetle current distribution and provide a logical
starting point for the delineation of critical habitat.
(2) We incorporated digital soil data produced by the USDA Natural
Resources Conservation Service for all soils in the Palm Canyon area
(USDA 2000). These data delineated CdC, RA, ChC, MaB, and CpA soils. We
included areas where CdC soils were within the likely flight range of
adult male Casey's June beetles from recent occurrence locations (1995-
present). This mapping delineated the soils that are suitable for, and
occupied by, the beetle.
(3) After mapping the soils, we examined the elevations of all
Casey's June beetle observations. We determined the highest elevation
of an occurrence was 580 ft (177 m), and we extended the boundary
elevation 40 ft (12 m) to account for gradients between soil types and
to include CdC soils contiguous with portions of the wash that are
known to be occupied. As a result, we are limiting designation of
critical habitat to areas below the 620-ft (189-m) contour.
(4) We utilized digital aerial photographs acquired in April 2008
with a ground resolution of 6 in (15 cm) to closely examine remaining
areas to ensure they captured the physical or biological features
necessary to support Casey's June beetle life-history functions.
Specifically, we removed areas that did not have appropriate soils
(such as golf course greens) or that contained large denuded or graded
areas to eliminate areas that likely do not and could not support
Casey's June beetles.
(5) We reviewed new scientific information regarding the species'
southern population distribution limits and determined some areas were
not likely to support occupancy now or in the foreseeable future and
therefore did not meet the definition of critical habitat. Based on
Hawk's (pers. comm. 2011a) observation that wash habitat soil
suitability and occupancy ended at approximately 580 ft (177 m) in
elevation, and did not extend south of the small dam in Palm Canyon, we
determined that non-contiguous patches of CdC soils at the southern
extreme of the area proposed as critical habitat are not likely within
the current population distribution of the species, and are not likely
to support occupancy in the future (see New Species Information and
Sites for Breeding, Reproduction, and Rearing (or Development) of
Offspring that are Protected from Disturbance sections above). We
further determined that the western isolated fragments of formerly
occupied habitat associated with South Palm Canyon Drive and Bogert
Trail in the southern portion of the species' distribution were no
longer occupied, and were too isolated by development and disturbed to
support occupancy in the future (see New Species Information section
above). Therefore, these areas were removed.
(6) Based on Hawks' (pers. comm. 2011a) observation that no burrow
holes have ever been observed in ChC soil (see New Species Information
section above), we removed all patches of ChC soil not completely
surrounded by CdC and RA soils.
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 Casey's June
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 designated
critical habitat are excluded by text in this final rule. Therefore, a
Federal action involving these lands would not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action may affect the physical
or biological features in the adjacent critical habitat.
We are designating as critical habitat lands that we consider to be
occupied at the time of listing and contain sufficient physical or
biological features to support life-history processes essential to the
conservation of Casey's June beetle.
Summary of Changes From the 2009 Proposed Critical Habitat Rule
Based on comments received during the public comment periods (see
Comments 2 and 4 in the Summary of Comments and Recommendations section
below), and new survey information, we added explanations in the New
Species Information and Criteria Used To Identify Critical Habitat
sections above to better characterize our knowledge of the species'
present range and the potential for occupied habitat outside the known
present range.
The most significant changes from the 2009 proposed critical
habitat rule to this final rule include:
(1) We determined two areas included in the proposed critical
habitat designation do not contain the physical or biological features
essential to the conservation of the species and, therefore, do not
meet the definition of critical habitat (see Critical Habitat
Background section above for the definition of critical habitat). We
determined the easternmost proposed critical habitat polygon located on
State Route 111 between Broadmoor Drive and Golf Club Drive did not
contain areas mapped as Carsitas (CdC) gravelly sand soil series (PCE
1). Based on new information submitted by a commenter and examination
of digital aerial photography, we also determined a portion of land in
the vicinity of Araby Drive was composed of elevated fill dirt and,
therefore, did not contain the physical or biological features
essential to the conservation of the species (see Summary of Comments
and Recommendations section, Comment 12, below). The edge of the
elevated fill dirt correlated with the parcel map boundary. Based on
recent survey and habitat information (see New Species Information and
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Species' Habitat or Range sections above) we determined that
formerly occupied CdC and associated soils adjacent to and west of
South Palm Canyon Drive are no longer likely to be occupied or to
support occupancy in the future, and are therefore not essential for
the conservation of the species. Therefore, these areas do not meet the
definition of critical habitat. We further determined that the
southernmost non-contiguous patches of CdC soil in Palm Canyon and two
areas of ChC soil (in Palm Canyon and near Araby Drive) not completely
surrounded by CdC and RA soil do not meet the definition of critical
habitat. See New Species Information and Criteria Used To Identify
Critical Habitat sections above for further discussion. Removal of
these lands that were determined not to meet the definition of critical
habitat resulted in a total reduction of 179 ac (73 ha) from the areas
proposed for critical habitat designation in 2009.
(2) Per peer reviewer Comment 2 in the Summary of Comments and
Recommendations section below (see also Comment 10), satellite image
assessment, and field survey information provided by David Hawks (pers.
comm. 2010), we modified PCE 2 to include other Sonoran vegetation
types and disturbed habitat. In the proposed rule it specified
``Intact, native Sonoran (Coloradan) desert scrub vegetation and native
desert wash vegetation that provide shelter and food for the species.''
In this rule, we specify PCE2 as, ``Predominantly native desert
vegetation, to provide shelter from
[[Page 58969]]
traffic-related mortality and food for the species.'' This change to
PCE 2 did not change areas identified as meeting the definition of
critical habitat. The altered PCE more accurately characterized lands
we had already determined met the definition of critical habitat.
(3) In the 2009 proposed rule, we stated we were not considering or
proposing for exclusion under section 4(b)(2) of the Act tribal lands
owned or managed by the Agua Caliente Band of Cahuilla Indians.
Following review of tribal comments and an evaluation of our
partnership with the Tribe, we determined that the benefits of
exclusion outweigh the benefits of inclusion for tribal trust
reservation lands (i.e., non-fee, non-allotted lands), and that
exclusion of these lands will not result in extinction of the species.
We believe that excluding Agua Caliente Band of Cahuilla Indians tribal
trust reservation lands from this final critical habitat will preserve
our partnership with the Tribes and foster future development of
habitat management plans with Agua Caliente Band of Cahuilla Indians
and other tribes, thus positively affecting other listed species.
Therefore, the Secretary is exercising his discretion to exclude a
total of approximately 11 ac (4 ha) of non-fee, non-allotted tribal
lands owned or managed by the Agua Caliente Band of Cahuilla Indians in
this final critical habitat designation. For a complete discussion of
the benefits of inclusion and exclusion, see Application of Section
4(b)(2) of the Act, below.
Of the approximately 777 ac (314 ha) of land proposed for critical
habitat designation in 2009, approximately 587 ac (237 ha) are included
in this final critical habitat designation. Our decision to not
designate all of the proposed critical habitat does not imply that
these non-designated areas are unimportant to Casey's June beetle.
Projects with a Federal nexus that occur in these areas, or other areas
potentially occupied by Casey's June beetle, which may affect the
beetle must still undergo section 7 consultation. Our decision to not
designate critical habitat in these areas does not reduce the
consultation requirement for Federal agencies participating in,
funding, permitting, or carrying out activities in these areas.
Final Critical Habitat Designation
We are designating one unit as critical habitat for Casey's June
beetle. The critical habitat area described below constitutes our best
assessment at this time of areas that meet the definition of critical
habitat.
The approximate area of designated critical habitat for Casey's
June beetle is shown in Table 1 and totals 587 ac (237 ha), including
152 ac (62 ha) of tribal allotment and fee land, 141 ac (57 ha) of
local government land, and approximately 301 ac (122 ha) of private and
quasi-public (flood control and water conservation district) land. Area
estimates reflect all land within the critical habitat unit boundaries.
Area values were computer-generated using GIS software, rounded to
nearest whole number, and then summed.
Table 1--Designated Critical Habitat for Casey's June Beetle
----------------------------------------------------------------------------------------------------------------
Tribal
Federal and Local allotment
Location state lands government and fee Private ac Total ac
ac (ha) ac (ha) lands ac (ha) (ha)
(ha)
----------------------------------------------------------------------------------------------------------------
Palm Springs.............................. 0 (0) 141 (57) 152 (62) 301 (122) 587 (237)
---------------------------------------------------------------------
Total Area Final Critical Habitat..... 0 (0) 141 (57) 152 (62) 301 (122) 587 (237)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present a brief unit description, and reasons why the unit meets
the definition of critical habitat for Casey's June beetle, below.
Palm Springs Unit
The unit consists of 587 ac (237 ha) and is located in Riverside
County, California, and extends from the confluence of Andreas Canyon
Wash with Palm Canyon Wash northward along the toe of slope
northeastward (downstream) along Palm Canyon Wash, crossing East Palm
Canyon Drive to south and east of Gene Autry Trail. The unit includes
Palm Canyon Wash and contiguous suitable soils from the entrance of
Indian Canyons north to Calle Arriba, and one area south of and
adjacent to East Palm Canyon Drive (SR 111) west of Gene Autry Trail.
The entire critical habitat unit is considered occupied by Casey's
June beetle and contains the physical or biological features essential
to the conservation of the species, including alluvial soils of the
CdC, RA, ChC (if mapped as completely surrounded by CdC and RA soils),
MaB, and CpA soil series at or below 620 ft (189 m) in elevation,
associated with washes and alluvial fans deposited on 0 to 9 percent
slopes (PCE 1), and predominantly native desert vegetation (PCE 2).
Habitat in the unit is threatened by development, soil disturbance,
fragmentation, effects of stream channelization, and effects of climate
change. Specifically, urban expansion, in-fill development, and
recreational activities continue to result in the loss and degradation
of habitat. Therefore, the features essential to the conservation of
the species in this unit require special management considerations or
protection to minimize impacts resulting from these threats (see
Special Management Considerations or Protection section above).
Approximately 25 percent of this unit (152 ac (62 ha)) is on Agua
Caliente Band of Cahuilla Indians reservation land. As described above
(see Factor D), the Tribe informed us in an October 28, 2008, letter
that they removed Casey's June beetle from the list of species
addressed in the draft Tribal HCP; however, they indicated they will
``continue to informally coordinate with the Service regarding this
species where it occurs on the Reservation.'' The Tribe stated they are
deferring to the Service to allow ``the Service to take the lead in
addressing how to effectively conserve and protect this species''
(ACBCI 2008, p. 1). We continue to work with the Agua Caliente Band of
Cahuilla Indians to encourage management of Casey's June beetle
habitat. We determined that at this time it is appropriate to exclude
11 ac (4 ha) tribal trust reservation lands (i.e., non-fee and non-
allotted lands) from the critical habitat unit (see Tribal Reservation
Lands under Exclusions section below).
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
[[Page 58970]]
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 Fifth and Ninth 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, 442F (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would remain functional (or retain those physical or
biological features that relate to the ability of the area to
periodically support the species) to serve its intended conservation
role for the species.
Federal activities that may affect Casey's June beetle or its
critical habitat require section 7 consultation under the Act. 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 are likely to
adversely affect listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we 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 action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. 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 Casey's June 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. Generally, the conservation role of Casey's June beetle's
critical habitat unit is to support a viable, self-sustaining
population 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.
Examples of activities that, when authorized, funded, or carried
out by a Federal agency, may affect critical habitat and, therefore
should result in consultation for Casey's June beetle include, but are
not limited to, actions that would cause disturbance, loss, or
fragmentation of critical habitat. Such activities could include, but
are not limited to, development, grading, building roads and other
infrastructure, constructing commercial and residential structures, and
recreational activities (for example, ORV use and equestrian
activities). These activities could permanently destroy critical
habitat, compact soil, or alter soil moisture levels. Compacted or dry
soils do not allow the species to burrow into, move, and feed in the
soil as needed during the time they are underground. Please see Summary
of Factors Affecting the Species section above for a more detailed
discussion of the impacts of these actions to the listed species.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
[[Page 58971]]
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands within the designation.
Therefore, we are not exempting lands from this critical habitat
designation for Casey's June beetle pursuant to section 4(a)(3)(B)(i)
of the Act.
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 he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history is clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In addition, we look
at any tribal issues, and consider the government-to-government
relationship of the United States with tribal entities. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we make this determination, then
we can exclude the area only if such exclusion would not result in the
extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus; the educational benefits of mapping
essential habitat for recovery of the listed species; and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan that provides
equal to or more conservation than a critical habitat designation would
provide.
Tribal Reservation Lands
In accordance with the Secretarial Order 3206, ``American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act'' (June 5, 1997); the President's Memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); President's Memorandum of
November 5, 2009, ``Tribal Consultation'' (74 FR 57881); Executive
Order 13175; and the relevant provision of the Departmental Manual of
the Department of the Interior (512 DM 2), we believe that fish,
wildlife, and other natural resources on tribal lands are more
appropriately managed under tribal authorities, policies, and programs
than through Federal regulation wherever possible and practicable. In
most cases, designation of tribal lands as critical habitat provides
very little additional conservation benefit to endangered or threatened
species. Conversely, such designation is often viewed by tribes as an
unwarranted and unwanted intrusion into tribal self-governance, and may
negatively impact a positive government-to-government relationship
between the Service and tribal governments essential to achieving a
mutual goal of successfully managing ecosystems upon which endangered
and threatened species depend. When conducting our analysis under
section 4(b)(2) of the Act, we consider our existing and future
partnerships with tribes and existing conservation actions that tribes
have implemented or are currently implementing. We also take into
consideration conservation actions that are planned as a result of
ongoing government-to-government consultations with tribes.
Agua Caliente Band of Cahuilla Indians
A Federal Indian reservation is an area of land reserved for a
tribe or tribes under treaty or other agreement with the United States,
Executive Order, or Federal statute or administrative action as
permanent tribal homelands, and where the Federal government holds
title to the land in trust on behalf of a tribe. The Agua Caliente
Indian Reservation consists of a checkerboard of parcels found
primarily in the City of Palm Springs, and the Cities of Cathedral City
and Rancho Mirage, and unincorporated Riverside County, California.
Lands within the Agua Caliente Indian Reservation boundary include
Tribal trust land, allotted trust land, Tribe-owned fee land, privately
owned (Tribal members and non-Indians) fee land, and public land.
Individual sections of Agua Caliente Indian Reservation land are
interspersed with public land owned or under the control of various
Federal and State agencies, and privately owned land under the
jurisdiction of the County and/or one of the three municipalities
(ACBCI 2010b p. 1-1). Tribal trust reservation lands are those lands
that are under the sovereign control of the Tribe. Through our ongoing
coordination with the Tribe, we have established a partnership that has
benefitted natural resource management on tribal lands. For our 4(b)(2)
balancing analysis we considered our partnership with the Tribe and,
therefore, analyzed the benefits of including and excluding those lands
under the sovereign control of the Tribe (tribal trust reservation
lands) that met the definition of critical habitat. Because Tribe-owned
fee, private fee, or allotted lands are potentially subject to other
jurisdictions and not under the sovereign control of the Tribe, we did
not include these lands in our exclusion analysis.
Based on the detailed analysis presented below, the Secretary is
exercising his discretion under section 4(b)(2) of the Act to exclude
approximately 11 ac (4 ha) of Agua Caliente Band of Cahuilla Indians
tribal
[[Page 58972]]
trust reservation lands (i.e., non-fee, non-allotted land held in trust
by the Federal government for the Tribe) from this final critical
habitat designation for Casey's June beetle.
Benefits of Inclusion--Agua Caliente Band of Cahuilla Indians
The principle benefit of including an area in a critical habitat
designation is the requirement for Federal agencies to ensure actions
they fund, authorize, or carry out are not likely to result in the
destruction or adverse modification of any designated critical habitat,
the regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must also consult with us
on actions that may affect a listed species and refrain from
undertaking actions that are likely to jeopardize the continued
existence of such species. The analysis of effects of a proposed
project on critical habitat is separate and different from that of the
effects of a proposed project on the species itself. The jeopardy
analysis evaluates the action's impact to survival and recovery of the
species, while the destruction or adverse modification analysis
evaluates the action's effects to the designated habitat's contribution
to conservation. Therefore, the difference in outcomes of these two
analyses represents the regulatory benefit of critical habitat. This
will, in many instances, lead to different results and different
regulatory requirements. Thus, critical habitat designations may
provide greater benefits to the recovery of a species than would
listing alone. However, for some species, and in some locations, the
outcome of these analyses will be similar, because effects to habitat
will often also result in effects to the species. All lands considered
for exclusion are currently considered occupied by Casey's June beetle
and will be subject to the consultation requirements of the Act in the
future. Although a jeopardy and adverse modification analysis must
satisfy two different standards, because any modifications to proposed
actions resulting from a section 7 consultation to minimize or avoid
impacts to Casey's June beetle will be habitat-based, it is not
possible to differentiate any measures implemented solely to minimize
impacts to the critical habitat from those implemented to minimize
impacts to the beetle. Additionally, this species' highly restricted
geographic range relative to its historical distribution (as evidenced
by documented loss of occupied habitat), ongoing habitat impacts and
losses, and slow female dispersal rate, increase the likelihood an
action that adversely affects Casey's June beetle will jeopardize the
continued existence of the species. Therefore, in the case of Casey's
June beetle, we believe the benefits of critical habitat designation
are very similar to the benefits of listing, and in some respects would
be indistinguishable from the benefits of listing.
Public education is often cited as another possible benefit of
including lands in critical habitat as it may help focus conservation
efforts on areas of high value for certain species. Partnership efforts
with the Agua Caliente Band of Cahuilla Indians to conserve Casey's
June beetle and other federally listed species addressed in their draft
tribal HCP have resulted in heightened awareness about the species.
However, we believe there is little, if any, educational benefit
attributable to critical habitat beyond those achieved from listing of
Casey's June beetle under the Act, and the Tribe's efforts to develop a
HCP. The Service is conducting ongoing coordination with Agua Caliente
Band of Cahuilla Indians and other southern California tribes. Service
coordination includes attending meetings with tribal representatives to
discuss ongoing projects, management plans, and other issues as they
arise. We believe our continuing coordination with the Agua Caliente
Band of Cahuilla Indians will further promote awareness of the species
and its conservation needs, and will facilitate development of
additional management plans (beyond those already in existence), as
well as address Casey's June beetle conservation on tribal lands.
We believe existing tribal regulations, the Indian Canyons Master
Plan, and current management of Heritage Park will ensure any land use
actions, including those funded, authorized, or carried out by Federal
agencies, are not likely to result in the destruction or adverse
modification of all lands considered for exclusion. For example, in a
letter dated April 29, 2010 (ACBCI 2010c, p. 3), the Tribe stated that,
rather than delegating land use authority to a local agent such as the
City of Palm Springs in the Planning Area (i.e., in Casey's June beetle
habitat south of Acanto Drive), the Tribe will directly regulate land
use in this area through its Indian Canyons Master Plan and tribal
zoning. The Tribe indicated they would use their existing regulatory
structure and active role in regulating land use and development in
this area to protect Casey's June beetle and its habitat (ACBCI 2010c,
p. 3). Furthermore, all lands being excluded are included in Heritage
Park (ACBCI 2007, p. 5), an area within Indian Canyons acquired with
funds from the 1988 California Wildlife, Coastal, and Park Land
Conservation Act (1988 Bond Act) (ACBCI 2007, p. 2). The 1988 Bond Act
requires Heritage Park to be managed to preserve Indian heritage and
native palms and other plants. The 1988 Bond Act further stipulated
that: ``[a]fter that acquisition, the state shall convey title to all
those lands to the United States in trust for the [Tribe] as part of
the [Agua Caliente Indian Reservation] on the conditions that * * * the
lands be open to the public, subject to reasonable restrictions * * *
and the lands be used for protection of wildlife habitat and other
resources.'' Any potential impacts to Casey's June beetle from future
proposed activities on the tribal trust reservation lands will be
addressed through the Indian Canyons Master Plan or through a section 7
consultation using the jeopardy standard, and such activities would
also be subject to the take prohibitions in section 9 of the Act. As a
result we believe the regulatory benefits of critical habitat
designation on tribal trust reservation land would largely be redundant
with the combined benefits of listing and existing tribal regulations.
The designation of Casey's June beetle critical habitat may
strengthen or reinforce some Federal laws, such as NEPA or Clean Water
Act. These laws analyze the potential for projects to significantly
affect the environment. Critical habitat may signal the presence of
sensitive habitat that could otherwise be missed in the review process
for these other environmental law; however, the listing process, HCP
planning efforts, and consultations (which included conferencing on
effects to Casey's June beetle) that have already occurred will provide
this benefit. Therefore, in this case we view this benefit as redundant
with the benefit the species will receive from listing under the Act.
In summary, we do not believe that designating critical habitat
within Agua Caliente Band of Cahuilla Indians tribal trust reservation
lands will provide additional benefits for Casey's June beetle.
Projects on these lands with a Federal nexus (e.g., funded, approved,
or carried out by Federal agencies, such as the Bureau of Indian
Affairs, Indian Health Services, or U.S. Army Corps of Engineers) will
require section 7 consultation with the Service (regardless of critical
habitat designation) because the habitat is occupied (see New Species
Information section above) by Casey's June beetle. Furthermore, a high
level of protection is already provided to tribal trust reservation
lands that meet the
[[Page 58973]]
definition of critical habitat by existing conservation, regulations,
and management. The ongoing coordination between the Service and the
Tribe has already raised the level of awareness about the species, and
we believe our ongoing coordination with the Tribe will facilitate
development of species-specific management actions for these lands to
address the conservation of Casey's June beetle.
Benefits of Exclusion--Agua Caliente Band of Cahuilla Indians
Under Secretarial Order 3206, American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities and the Endangered Species Act,
we recognize that we must carry out our responsibilities under the Act
in a manner that harmonizes the Federal trust responsibility to tribes
and tribal sovereignty while striving to ensure that tribes do not bear
a disproportionate burden for the conservation of listed species, so as
to avoid or minimize the potential for conflict and confrontation. In
accordance with the Presidential memorandums of April 29, 1994, and
November 9, 2009, we believe that, to the maximum extent possible,
tribes are the appropriate governmental entities to manage their lands
and tribal trust resources, and that we are responsible for
strengthening government-to-government relationships with tribes.
Federal regulation through critical habitat designation will adversely
affect the tribal working relationships we now have and which we are
strengthening throughout the United States. Maintaining positive
working relationships with tribes is key to implementing natural
resource programs of mutual interest, including habitat conservation
planning efforts. In light of the above-mentioned orders and for a
variety of other reasons described in their comment letters and
communications, critical habitat designation is typically viewed by
tribes as an unwarranted and unwanted intrusion into tribal self-
governance. In comments submitted during the public comment periods on
this proposed rule, and in comments submitted on other proposed
critical habitat rules (such as the 2009 proposed revised critical
habitat designation for arroyo toad (Anaxyrus californicus) (74 FR
52611; October 13, 2009)), several tribes stated that designation of
critical habitat would negatively impact government-to-government
relations.
In the case of the Casey's June beetle proposed critical habitat,
the Agua Caliente Band of Cahuilla Indians submitted comments
indicating they are opposed to critical habitat designation and believe
reservation lands should be excluded. The Agua Caliente Band of
Cahuilla Indians cited Executive Order 13175, Secretarial Order 3206,
and the President's Memorandum on Tribal Consultation (74 FR 57881;
November 9, 2009) in their comments to the Service and their
interpretation of these Federal enactments as meaning ``no Federal
agency, and especially not any agency of the Department of the
Interior, such as the Service, will inflict regulatory, economic, or
governmental burdens on tribes and their members when adequate
alternatives exist, such as avoidance, cooperation on a government-to-
government basis, or reliance on tribal measures'' (ACBCI 2010c, p. 4).
In their comments to the Service on the proposed rule, the Tribe
indicated they would use their existing regulatory structure and active
role in regulating land use and development in this area to protect
Casey's June beetle and its habitat (ACBCI 2010c, p. 3). These
communications clearly indicate that designation of tribal trust
reservation lands as critical habitat for Casey's June beetle would
impact future conservation partnership opportunities with the Tribe.
Therefore, a critical habitat designation could potentially damage our
relationship with the Agua Caliente Band of Cahuilla Indians.
We believe significant benefits would be realized by forgoing
designation of critical habitat on tribal trust reservation (i.e., non-
fee, non-allotted) lands managed by the Agua Caliente Band of Cahuilla
Indians. These benefits include:
(1) Continuing and strengthening of our effective relationship with
the Tribe to promote conservation of Casey's June beetle and its
habitat;
(2) Allowing continued meaningful collaboration and cooperation in
working toward recovering this species, including conservation actions
that might not otherwise occur; and
(3) Encouraging other tribes to complete management plans in the
future on other reservations for other federally listed and sensitive
species and engage in meaningful collaboration and cooperation.
Because the Tribe is the entity that enforces protective
regulations on tribal trust reservation land, and we have a working
relationship with them, we believe exclusion of these lands will yield
a significant partnership benefit. There has been a substantial amount
of government-to-government consultation between the Tribe and Service
on developing the draft Tribal HCP and this rulemaking process for
Casey's June beetle. Although the Tribe informed us in an October 28,
2008, letter that they removed Casey's June beetle from the list of
species addressed in the draft Tribal HCP, they indicated they will
``continue to informally coordinate with the Service regarding this
species where it occurs on the Reservation.'' The Tribe stated they are
deferring to the Service to allow ``the Service to take the lead in
addressing how to effectively conserve and protect this species''
(ACBCI 2008, p. 1). Although the Tribe has suspended their pursuit of a
section 10(a) permit (ACBCI 2010a, p. 1), they are continuing to
implement the draft HCP and will continue to protect and manage natural
resources within the Tribe's jurisdiction (ACBCI, 2010a, p. 1; ACBCI
2010b, p. ES-1). We will continue to work cooperatively with the Tribe
on efforts to conserve Casey's June beetle. Therefore, excluding these
lands from critical habitat provides the significant benefit of
maintaining and strengthening our existing conservation partnerships
and the potential of fostering new tribal partnerships.
Weighing Benefits of Exclusion Against Benefits of Inclusion--Agua
Caliente Band of Cahuilla Indians
We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of Agua Caliente Band of Cahuilla Indians tribal
trust reservation lands as critical habitat for Casey's June beetle. We
believe past, present, and future coordination with the Agua Caliente
Band of Cahuilla Indians has provided and will continue to provide
sufficient education regarding Casey's June beetle habitat conservation
needs on tribal trust lands, such that there would be no additional
educational benefit from designation of critical habitat. Further,
because any potential impacts to Casey's June beetle from future
projects will be addressed through the Indian Canyons Master Plan or
through a section 7 consultation with us under the jeopardy standard,
we believe critical habitat designation on tribal trust reservation
land would largely be redundant with the combined benefits of listing
and existing tribal regulations and management. Therefore, the benefits
of designating critical habitat on tribal trust reservation lands are
not significant.
On the other hand, the benefits of excluding Agua Caliente Band of
Cahuilla Indians tribal trust reservation lands from critical habitat
are significant. Exclusion of these lands from critical habitat will
help preserve and strengthen the conservation partnership we have
developed with the Tribe, reinforce those we are building with other
tribes, and foster future partnerships and development of
[[Page 58974]]
management plans; whereas inclusion will negatively impact our
relationships with the Tribe and other southern California tribes. We
are committed to working with the Agua Caliente Band of Cahuilla
Indians to further the conservation of Casey's June beetle and other
endangered and threatened species. The Tribe will continue to use their
existing regulatory structure and active role in regulating land use
and development in this area to protect Casey's June beetle and its
habitat (ACBCI 2010c, p. 3). The Tribe continues to provide for some
indirect conservation of Casey's June beetle by implementing provisions
of the draft HCP. Therefore, in consideration of the relevant impact to
our partnership and our government-to-government relationship with the
Agua Caliente Band of Cahuilla Indians, and the ongoing conservation
management practices of the Tribe and our current and future
conservation partnerships with other tribes, we determined the
significant benefits of exclusion outweigh the benefits of inclusion in
the critical habitat designation.
In summary, we find that excluding Agua Caliente Band of Cahuilla
Indians tribal trust reservation lands from this final critical habitat
will preserve our partnership and may foster future habitat management
and species conservation plans with the Tribe and with other tribes now
and in the future. These partnership benefits are significant and
outweigh the insignificant additional regulatory and educational
benefits of including these lands in final critical habitat for Casey's
June beetle.
Exclusion Will Not Result in Extinction of the Species--Tribal Lands
We determined that the exclusion of 11 ac (4 ha) of tribal trust
reservation lands from the designation of Casey's June beetle critical
habitat will not result in extinction of the species. The jeopardy
standard of section 7 of the Act and routine implementation of
conservation measures through the section 7 process due to Casey's June
beetle occupancy and protection provided by the Indian Canyons Master
Plan provide assurances that this species will not go extinct as a
result of excluding these lands from the critical habitat designation.
Therefore, based on the above discussion the Secretary is exercising
his discretion to exclude approximately 11 ac (4 ha) of tribal trust
reservation lands managed by the Agua Caliente Band of Cahuilla Indians
from this final critical habitat designation.
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 a draft economic analysis (DEA)
of the critical habitat designation and related factors (Industrial
Economics, Incorporated (IEc) 2010A, pp. 1-75). The DEA, dated February
22, 2010, was made available for public review from March 31, 2010,
through April 30, 2010 (75 FR 16046). Following the close of the
comment period, a final analysis (dated June 1, 2010) of the potential
economic effects of the designation was developed taking into
consideration the public comments and any new information (IEc 2010b,
pp. 1-84). Substantive comments and information received on the DEA are
summarized in the Summary of Comments and Recommendations section
below.
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for Casey's June
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 species (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 species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. 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 at
baseline impacts expected to occur due to listing and forecasts both
baseline and incremental impacts likely to occur with the designation
of critical habitat.
The FEA 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 FEA 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, Federal lands, 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 FEA looks and considers those costs
that may occur in the 20 years following listing and the designation of
critical habitat, which was determined to be the appropriate period for
analysis because limited planning information was available for most
activities to forecast activity levels for projects beyond a 20-year
timeframe. The FEA quantifies economic impacts of Casey's June beetle
conservation efforts associated with the following categories of
activity: (1) Residential and commercial development, and (2) flood
damage reduction. Baseline impacts include the potential economic
impacts of all actions relating to the conservation of the Casey's June
beetle, including costs associated with sections 7, 9, and 10 of the
Act. Baseline impacts also include the economic impacts of protective
measures taken as a result of other Federal, State, and local laws that
aid habitat conservation in the area evaluated in the DEA. In other
words, baseline impacts include those impacts associated with the
listing of the species and not associated with critical habitat.
Incremental impacts are those potential future economic impacts of
conservation actions relating to the designation of critical habitat;
these impacts would not be expected to occur without the designation of
critical habitat.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for Casey's June beetle.
Conservation efforts related to development activities constitute the
majority of total baseline costs to areas proposed for critical habitat
(approximately 86 percent). Impacts to flood control activities compose
the remaining approximately 12 percent of impacts. Total future
baseline impacts are estimated to be $19,242,100 in present value terms
using a 7 percent discount rate over the next 20 years (2010 to 2029)
in the areas proposed as critical habitat.
Approximately 100 percent of incremental impacts attributed to the
critical habitat designation are expected to be related to development
activities. The FEA estimates total potential
[[Page 58975]]
incremental economic impacts in areas proposed as critical habitat over
the next 20 years (2010 to 2029) to be $6,173,340 in present value
terms using a 7 percent discount rate, equivalent to $582, 320 in
annualized economic impact over the analysis timeframe. This value is
based on an assumption of total avoidance of designated acres and thus
represents the upper-bound potential cost for each project. As such, it
likely overstates the expected absolute cost of future actions to
protect critical habitat.
The FEA considers both economic efficiency and distributional
effects. In the case of habitat conservation, efficiency effects
generally reflect the ``opportunity costs'' associated with the
commitment of resources to comply with habitat protection measures
(such as lost economic opportunities associated with restrictions on
land use). The FEA 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 FEA estimates lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the critical habitat designation might unduly burden a
particular group or economic sector.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary has determined not to exercise his discretion to exclude any
areas from this designation of critical habitat for Casey's June beetle
based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Carlsbad Fish and Wildlife Office (see ADDRESSES) or by
downloading from the Internet at http:[sol][sol]www.regulations.gov.
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 (DOD) where a
national security impact might exist. In preparing this final rule, we
have determined that the lands within the designation of critical
habitat for Casey's June beetle are not owned or managed by the
Department of Defense, and, therefore, we anticipate no impact on
national security. Consequently, the Secretary is not exercising his
discretion to exclude any areas from this final designation based on
impacts on national security.
Summary of Comments and Recommendations
We requested written comments from the public and contacted
appropriate Federal, State, and local agencies; tribes; scientific
organizations; and other interested parties and invited them to comment
on the proposed rule to list Casey's June beetle as endangered and
designate critical habitat during two comment periods. The first
comment period associated with the publication of the proposed rule (74
FR 32857) opened on July 9, 2009, and closed on September 8, 2009. We
also requested comments on the proposed critical habitat designation
and associated draft economic analysis during a comment period that
opened March 31, 2010, and closed on April 30, 2010 (75 FR 16046). We
did not receive any requests for a public hearing, with the exception
of one that specified it be conducted only in the event their property
was not excluded from critical habitat (see response to Comment 18
below). During the comment periods, we requested all interested parties
submit comments or information related to the proposed revisions to
critical habitat, including (but not limited to) the following: Unit
boundaries; species occurrence information and distribution; land use
designations that may affect critical habitat; potential economic
effects of the proposed designation; benefits associated with critical
habitat designation; areas proposed for designation and associated
rationale for the non-inclusion or considered exclusion of these areas;
and methods used to designate critical habitat.
During the first comment period, we received 11 comments addressing
the proposed listing and critical habitat designation: 5 from peer
reviewers, 5 from public organizations or individuals, and one from a
Native American tribe. During the second comment period, we received 14
comments addressing the proposed listing and critical habitat
designation and the DEA. Of these latter comments, 3 were from Native
American tribes and tribal members, and 11 were from public
organizations or individuals.
We reviewed all comments we received from the peer reviewers and
the public for substantive issues and new information regarding Casey's
June beetle listing and critical habitat designation. All comments 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 six knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles pertinent to the species. We received
responses from five peer reviewers who provided additional information,
clarifications, and suggestions.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding the listing and
designation of critical habitat for Casey's June beetle. The peer
reviewers generally concurred with our methods and conclusions and
provided additional information, clarifications, and suggestions to
improve the final critical habitat rule. Peer reviewer comments are
addressed in the following summary and incorporated into the final rule
as appropriate.
Peer Reviewer Comments
Comment 1: All five peer reviewers expressed general and specific
support of our proposal to list Casey's June beetle and designate
critical habitat. Support of the proposed rule includes the following:
(a) The first peer reviewer stated that the peer reviewer's
collection data support our estimated population distribution. The
first peer reviewer further concluded: (1) The cooler, more moist, and
wind-protected environment found in the southwestern corner of Palm
Springs is a required component of suitable habitat; (2) Casey's June
beetle daily and seasonal activity is dependent on specific temperature
and wind conditions; and (3) a single night ``or more'' (unspecified)
of negative survey results are not sufficient to demonstrate absence.
(b) The second peer reviewer stated ``Given the natural history of
the beetle and the accelerated fragmentation, modification, and loss of
habitat, this species is in imminent danger of extirpation in part of
its currently known range, and possibly extinction.'' The peer reviewer
agreed that Factor A threats likely negatively affect all life stages
of Casey's June beetle throughout the year, and generally agreed with
our analyses for threat Factors B, C, and D. This reviewer further
stated that even the slightest disturbance to relatively
[[Page 58976]]
small upland habitat areas is likely to have a significant and lasting
effect on the patchily distributed sedentary females and larvae. The
second peer reviewer also expressed the opinion that the central
portion of Palm Canyon Wash is unlikely to support reproduction and
larval development, and at best is used by males for movement. The peer
reviewer believed it is prudent and biologically sound to treat all of
the known occurrences of Casey's June beetle as a single population,
and that the basic soil and vegetation types associated with Casey's
June beetle are appropriate PCEs. Finally, the peer reviewer indicated
that all Casey's June beetle habitat proposed as critical habitat
currently under the jurisdiction of the Agua Caliente Band of Cahuilla
Indians met the definition of critical habitat.
(c) The third peer reviewer believed our case for listing was
compelling. The reviewer expressed concern that Casey's June beetle
listing appears overdue because the species is found in such a small
area with rapidly shrinking available habitat, also noting that this
species is arguably the most habitat-restricted scarab beetle in the
United States. The reviewer agreed that the continued survival of the
species cannot depend on occupancy at a single locality (such as Smoke
Tree Ranch) because of the possibility of stochastic events eliminating
local occupancy. This reviewer argued that because the continued
survival of Casey's June beetle depends on persistence in multiple
locations, remaining available habitat meets the definition of critical
habitat.
(d) The fourth peer reviewer agreed the present distribution of
Casey's June beetle is well-known based on numerous formal and informal
surveys conducted during the past several years by qualified
biologists. The reviewer further stated that because of its present
restricted distribution and imminent threats to remaining habitat,
Casey's June beetle is one of the most imperiled species of insects,
and probably the most endangered scarab beetle.
(e) The fifth peer reviewer stated the current distribution of
Casey's June beetle was well-documented in the proposed rule, as was
its soil type association and land use trends within the species''
range. The reviewer noted that given Casey's June beetle's extremely
limited area of occurrence and ongoing habitat loss, it clearly ranks
as Critically Endangered under the current International Union for the
Conservation of Nature and Natural Resources (IUCN) criteria;
therefore, Casey's June beetle's long-term persistence requires the
highest level of protection possible under the law. The reviewer
further noted our methods to determine what lands meet the definition
of critical habitat seem robust enough to capture lands where
probability of long-term persistence of the species is highest.
Our Response: We appreciate the peer reviewers'' critical review.
Because all peer reviewers generally agreed on the validity of our
methods and determinations, we believe the proposed listing and
critical habitat designation is well-supported. With regard to the
specific recommendation to include Agua Caliente Band of Cahuilla
Indians reservation lands in critical habitat, we received some new
information indicating some areas proposed as critical habitat on the
reservation do not meet the definition of critical habitat. We further
considered the possible benefits of including and excluding Agua
Caliente Band of Cahuilla Indians'' tribal trust reservation lands that
met the definition of critical habitat. Because benefits provided by
critical habitat designation in this instance are very similar to the
benefits of listing, and in some respects would be indistinguishable
from benefits provided by listing and existing regulations (to minimize
the benefits of inclusion), we find that excluding Agua Caliente Band
of Cahuilla Indians tribal trust reservation lands from this final
critical habitat will preserve our partnership with the Tribe and
foster future development of habitat management plans with Agua
Caliente Band of Cahuilla Indians and other tribes. Furthermore, we
determined that exclusion of tribal trust reservation lands would not
result in the extinction of the species. Therefore, we are excluding 11
ac (4 ha) of tribal trust reservation (i.e., non-fee, non-allotment)
lands from this final critical habitat designation (see also Comment 7
below).
We agree with the third peer reviewer's statement that continued
survival of the species cannot depend on occupancy at a single locality
(such as Smoke Tree Ranch) because of the possibility of stochastic
events eliminating local occupancy. We believe the species may be
threatened by natural or anthropogenically influenced factors, such as
climate change, increased intensity and frequency of scouring events in
wash habitat, and small population size. However, we note that no
species-specific, scientific, published models describing or predicting
the magnitude of these threats have yet been conducted, and these
threats should be the subject of future research (see below).
Comment 2: Four peer reviewers supplied information or opinions
regarding species'' biology, and some suggested associated edits or
revisions to proposed critical habitat.
(a) The first peer reviewer agreed that additional studies are
needed to determine the effects of flooding on Casey's June beetle
within its critical habitat. The reviewer also believes one of the
greatest threats posed by developed areas adjacent to critical habitat
is artificial lighting in habitat corridors during Casey's June beetle
flight season because potentially large numbers of males are drawn away
from females and die before they can mate. The peer reviewer stated
that artificial light sources could lead to unnatural concentrations of
Casey's June beetle occupancy that makes them more vulnerable to
catastrophic events. The reviewer also stated that based on the known
larval habits of other members of the tribe Melolonthini, Casey's June
beetle larvae most likely feed on roots. The peer reviewer noted all
surveys for Casey's June beetle have occurred in undeveloped upland
habitats, and their observation of a small number of beetles along
State Route 111 one night 30 years ago leads the peer reviewer to think
there might still be small pockets of occupancy that persist within
some of the more developed areas of Palm Springs west and south of
State Route 111. They believe that knowing if and where these pockets
exist would help biologists understand Casey's June beetle tolerance of
landscaping and other land disturbance. The peer reviewer suggested
future surveys should include storefronts, pools, and other established
light sources within the urban landscape. The peer reviewer also
suggested changing the wording of PCE 2 (74 FR 32874; July 9, 2009)
because Casey's June beetle continues to occupy a few highly disturbed,
weedy, and even previously graded or disked fields along State Route
111. They asserted that desert scrub or wash vegetation is not a
requirement for Casey's June beetle presence and survival. Finally, the
peer reviewer expressed the opinion that given the extent of the known
population, conservation of anything less than proposed critical
habitat would likely result in eventual extinction of the species.
(b) The second peer reviewer emphasized the most important single
factor for continued species'' survival is that female beetles are
flightless. Introduction of females would be the only way to
reestablish the species in
[[Page 58977]]
isolated suitable areas where occupancy has been eliminated; therefore,
locations where breeding females are currently found must be protected.
The peer reviewer also stated persistence of the species at Smoke Tree
Ranch (despite the annual death of many males due to lighting)
indicates the number of males that survive has been sufficient to
support continued reproduction; however, such a chronic drain on the
number of males could eventually have long-term effects on species''
survival.
(c) The third peer reviewer stated that potential Casey's June
beetle habitat is best characterized as any open space still existing
within its former known distributional boundaries. They further
clarified that they believe the species' known distribution is defined
by female flightlessness and factors of soil type which are historical
biogeographic factors that may never be fully understood.
(d) The fourth peer reviewer stated that because Casey's June
beetle has experienced the loss of 97 percent of its original habitat,
they recommend including additional isolated patches of suitable
habitat outside the current known range in critical habitat where
reintroduction could potentially maintain population size in the
``medium term.'' They suggested including habitat patches located on
upland sites above floodplain areas vulnerable to periodic washout in
critical habitat.
Our Response: Regarding the first peer reviewer's concern about
artificial lighting, we understand that artificial lighting likely has
some negative impact on Casey's June beetle and therefore, should be
addressed though management actions to avoid take in occupied habitat
(see E. Other Natural or Manmade Factors Affecting the Continued
Existence of the Species section above). Artificial lighting attracts
only males in flight, often resulting in their death, but not
necessarily impacting the abundance of female and immature individuals.
Artificial lighting has no effect on the distribution of flightless
females, and this life stage determines the spatial concentration of
all other life stages. We agree that unnatural light sources attracting
beetles into development adjacent to upland habitat poses at least a
moderate threat to Casey's June beetle.
We agree with the all the peer reviewers that the following issues
should be research priorities for this species' recovery: (1) The
impact of male mortality on population abundance and fitness; (2)
species' occupancy patterns within Palm Canyon Wash; (3) the effects of
periodic flooding on individual mortality and movement; (4) delineation
and protection of breeding areas; and (5) larval diet. As discussed in
the proposed rule, one expert particularly familiar with the biology
and taxonomy of the genus Dinacoma stated Casey's June beetle ``* * *
exhibits no specific host preferences and larvae likely consume any
available organic resources--including stratified detritus--encountered
within the alluvial habitat'' (LaRue pers. comm. 2006). Furthermore,
Hill and O`Maly (2009, p. 1) recently found that the frass pellets of
larvae of another endangered June beetle (Mount Hermon June Beetle,
Polyphylla barbata) contained a variety of plant species and fungi
material, demonstrating that they are not specialist feeders but are
microhabitat specialists. Therefore, while they will be helpful in
prioritizing research objectives, we do not believe any of the peer
reviewers' comments on research priorities require revisions to text in
the New Species Information section above.
We agree with the first peer reviewer that more surveys should
occur to validate our current knowledge of habitat occupancy. Most
surveys that have occurred in the past have had variable methodologies
and durations, and focused almost exclusively on attracting males in
flight from an unknown distance to light traps. We will develop
recommendations regarding where and how surveys should be done, and
will likely require 10(a)(1)(A) recovery permit holders to follow a
survey protocol that maximizes the likelihood of male and female
Casey's June beetle detection at occupied sites. We will also continue
to facilitate and fund surveys outside of designated critical habitat
(Service 2009, p. 3) and encourage biologists and the public to examine
urban light sources and report any observations of male Casey's June
beetles to us for analysis.
We considered the first peer reviewer's recommendation to change
proposed PCE 2 to not include desert scrub or wash vegetation to allow
for incorporation of disturbed, weedy, and previously graded or disked
fields. In order to confirm the validity of this recommendation, we
reviewed satellite imagery of the sites where occupancy was recently
documented that best fit the description of ``disturbed, weedy, and
previously graded or disked fields'' and noted the presence or absence
of desert scrub or wash vegetation. We also obtained field survey
information regarding habitat conditions (Hawks pers. comm. 2010). We
determined the peer reviewer had raised a valid point and edited PCE 2
to include other Sonoran vegetation types and disturbed habitat (as
long as they were not isolated by development and unlikely to return to
their natural state). In the proposed rule we specified PCE 2 to
include ``Intact, native Sonoran (Coloradan) desert scrub vegetation
and native desert wash vegetation * * *.'' In this final rule we use
the more inclusive language of ``predominantly native desert
vegetation.''
Regarding the fourth peer reviewer's recommendation to include
additional areas as critical habitat, we carefully considered all
patches of apparently suitable habitat within the species' historical
(versus current) range for proposal as critical habitat, even areas of
suitable habitat where reintroduction of beetles would be necessary for
them to be utilized (see Criteria Used To Identify Critical Habitat
section). We emphasized the importance of upland sites least likely to
be subject to periodic flooding and explained their value as refugia
(see Background section of proposed rule). However, the amount of
remaining undeveloped land within the species' historical range that
meets the definition of critical habitat is extremely limited. All
areas designated as critical habitat are within likely flight distance
of occupied habitat for male Casey's June beetles (considered occupied
at the population level); as a result several relatively small non-
contiguous habitat areas without occupancy records were also designated
as critical habitat. No unoccupied habitat patches outside the likely
flight range of adult males were clearly large enough or otherwise
suitable to support an independent population based on our current
knowledge of the species; therefore, we did not determine that any of
these areas met the definition of critical habitat.
Comment 3: One peer reviewer emphasized they felt it is important
for the Service to work closely with the Agua Caliente Band of Cahuilla
Indians to develop a management and public education plan for the
species and for habitat on tribal reservation lands. The reviewer also
stated development and implementation of an overall management plan
that simultaneously provides guidance for the restoration and
enhancement of existing critical habitat and educates citizens about
the importance of conserving Casey's June beetle is crucial to the
species' survival. The peer reviewer asserted that a public education
program must be developed along with habitat management guides and
plans.
Our Response: We agree that management and conservation planning
and public outreach are important
[[Page 58978]]
aspects of endangered species recovery planning. As stated above, we
believe our continuing coordination with the Agua Caliente Band of
Cahuilla Indians should provide sufficient future education, facilitate
development of additional management plans (beyond those already in
existence on the reservation), and help promote Casey's June beetle
conservation on tribal reservation lands. In the Spotlight Species
Action Plan (Service 2009, p. 2), we state that in order to reduce or
eliminate threats to Casey's June beetle we will need to determine
current occupancy (presence or absence) within portions of the
population distribution (which was done in 2010, see New Species
Occupancy and Habitat Information above), conserve occupied habitat,
and gain scientific information required to inform recovery criteria.
Actions recommended in the Spotlight Species Action Plan (Service 2009,
p. 3) include developing agreements with landowners to conserve
habitat. We will continue to work with all stakeholders, including the
Agua Caliente Band of Cahuilla Indians, to conserve habitat, conduct
public outreach, and recover Casey's June beetle.
Comment 4: One peer reviewer had specific text edit
recommendations. They suggested changing the word ``considered'' under
the Life History and Habitat section on page 32858 of the proposed rule
to ``known to be,'' because it is a fact that the females are
flightless, and the word ``family'' on page 32859, line 1 under Factor
A, to ``genus'' (74 FR 32857; July 9, 2009).
Our Response: We agree with the suggested text and taxonomic
corrections and made edits to the New Species Information above and the
Factor A discussion in the Summary of Factors Affecting the Species
section, above.
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' We did
not receive any comments from the State regarding the listing of
Casey's June beetle or the designation of its critical habitat.
Public Comments
Comments From Tribes
Comment 5: The Agua Caliente Band of Cahuilla Indians (Tribe)
asserted there is not enough information known regarding the biology of
the species or its distribution to justify listing. They argued it is
not known what the species eats or how long it remains in the soil, and
the species' distribution may be significantly greater than estimated
in the proposed rule. They argued specifically that soils named in the
PCEs are widely distributed throughout the Coachella Valley where more
Casey's June beetles might be found and are not appropriate to use as
PCEs. They further stated there has been no systematic effort to locate
Casey's June beetle elsewhere in the Coachella Valley or desert areas
further south, and that they know of a Casey's June beetle captured
``well outside'' the proposed critical habitat and another report of
what may be a Casey's June beetle from a site near the City of Yuma,
Arizona. The Tribe concluded the Service needs to conduct or fund new
surveys to determine the species' range before listing is justified.
The Tribe claimed no recent surveys have detected the species south
of Bogert Trail or west of South Palm Canyon Drive, and indicated they
believe unoccupied land should, therefore, not be designated as
critical habitat. The Tribe further indicated they believe the data on
which the proposed rule was based should have been subject to peer
review prior to publication of the draft rule.
Finally, the Tribe stated that in drawing the conclusion that
existing tribal regulatory structure is not adequate to protect Casey's
June beetle, the Service did not consider the Tribe's active role in
regulating land use and development. They cited the Indian Canyons
Master Plan and tribal development zoning that apply to reservation
lands south of Acanto Drive.
Our Response: A species may be determined to be endangered or
threatened due to one or more of the five factors described in section
4(a)(1) of the Act (see Summary of Factors Affecting the Species
section above). As required by section 4(b)(1)(A) of the Act the
Secretary shall determine whether any species is an endangered or a
threatened species solely on the basis of the best scientific and
commercial data available to him after conducting a review of the
status of the species. 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 our decisions are based on the best scientific data
available. We used primary and original sources of information as the
basis for our recommendations. We acknowledge the Tribe's concern that
little information is known about Casey's June beetle life habits.
While lifespan and diet information will help inform species recovery
actions, we believe the status of the species is clear without this
knowledge. Species' decline and habitat loss, as well as the imminence
of threats to species' habitat and survival for Casey's June beetle
have been clearly demonstrated (see Summary of Factors Affecting the
Species section and Comment 1 above). Furthermore, the need for listing
is determined ``solely on the basis of the best scientific and
commercial data available,'' even though biological information is
typically incomplete for rare species in need of protection. Therefore,
we believe our determination that Casey's June beetle is in danger of
extinction throughout all of its range is supported by the best
available scientific and commercial information.
We respectfully disagree with the Tribe's comment that Casey's June
beetle has a wider distribution than estimated. As required by section
4(b)(1)(A) of the Act, the Secretary shall determine whether any
species is an endangered or a threatened species solely on the basis of
the best scientific and commercial data available to him after
conducting a review of the status of the species. Two researchers have
undertaken recent and relatively widespread assessments of Casey's June
beetle occupancy and habitat distribution (Hovore 1997a, p. 1-3; 1997b,
p. 1-3; 1997c, p. 2-17; Cornett 2004, p. 8). Both studies generally
agree with our conclusions regarding the limited distribution of
Casey's June beetle habitat, and both concluded the distribution was
more restricted than we described in our proposed rule (Hovore 1997b,
p. 1-3; 1997c, p. 2-17; Cornett 2004, p. 13). A species expert has
examined specimens and populations of Dinacoma species found in
locations as proximal as Joshua Tree National Park and the City of
Hemet and described them as different species (LaRue pers. comm. 2006).
We are also aware of a collection (one individual) by Cornett
(Anderson, Service, pers. comm. 2009) that resembled Casey's June
beetle from a site near the City of Yuma, Arizona. We have communicated
with the collector, and they confirmed it resembles Casey's June
beetle. However, they have not determined the taxonomic identity of
this specimen, nor have they had taxonomic experts examine it
(Anderson, pers. comm. 2009; Cornett, James Cornett Biological
Consultants,
[[Page 58979]]
pers. comm. 2009a, 2009b). We do not believe this specimen will be
identified as a Casey's June beetle because it was collected far from
known collection locations, and in an area topographically different
from areas known to support Casey's June beetle (see Food, Water, Air,
Light, Minerals, or Other Nutritional or Physiological Requirements and
Sites for Breeding, Reproduction, and Rearing (or Development) of
Offspring that are Protected from Disturbance sections above for
further discussion). Most recently, David Hawks conducted a survey in
2010 funded by the Service specifically focused on surveying suitable
soils north (just south of the Chino Cone in the City of Palm Springs)
and south (past Palm Desert as far as La Quinta) of the current known
species distribution. Hawks did collect Casey's June beetles outside
the current known range (see New Species Information section above for
more information), but only within a patch of remnant wash channel just
outside of proposed critical habitat and still within the City of Palm
Springs (Hawks pers. comm. 2010).
Regarding the Tribe's assertion that we used widely distributed
soil types to inappropriately define critical habitat, we do not agree.
To clarify, Casey's June beetle critical habitat is first defined by
other environmental factors (such as soil moisture and wind conditions)
unique to the base of the San Jacinto and Santa Rosa mountains (see
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements section and our response to Comment 1
above). We identify critical habitat by first defining the area of
occupancy or potential occupancy (which is by default limited to those
areas where the unique environmental factors mentioned above are
found), then second by ``focusing in on the principal biological or
physical constituent elements (primary constituent elements) within the
defined area'' (see Critical Habitat Background section above). PCEs
are only one component of the definition of critical habitat (see
Critical Habitat Background section above). Therefore, based on the
best scientific information available regarding species' taxonomy and
distribution, it is likely the species was not historically distributed
beyond the eastern San Jacinto Mountain foothills outside of the City
of Palm Springs. We will continue to recommend and facilitate surveys
to refine our knowledge of the species' distribution, but we believe
our current biological conclusions and the need to list Casey's June
beetle as endangered under the Act are well supported by the best
available scientific and commercial data.
The Tribe's comment that no recent surveys have detected the
species south of Bogert Trail or west of South Palm Canyon Drive is not
supported by available occupancy data. Most recently, David Hawks
(pers. comm. 2010; 2011a; 2011b) detected numerous adult male and
female Casey's June beetles in Palm Canyon Wash south of Bogert Trail
and south of Acanto Drive (south of Acanto Drive these observations
were made incidentally without the aid of light traps), indicating this
area is a current population density center (see New Species
Information section above for more information). In 2004, Cornett
(2004, p. 8) detected Casey's June beetle south of Bogert Trail, north
of Acanto Drive, and midway between South Palm Canyon Drive and Palm
Canyon Wash. In 2001, Simonsen-Marchant (2001, p. 6) detected Casey's
June beetles south of Bogert Trail and north of Acanto Drive in upland
habitat adjacent to Palm Canyon Wash; this area remains undeveloped. It
is true no Casey's June beetles have been recently detected west of
South Palm Canyon Drive, and the sparse remaining suitable soils are
heavily degraded. Furthermore, two separate surveys in 2010 (Hawks,
pers. comm. 2011; Cornett 2010, pp. 10 and 14) in areas adjacent to and
west of South Palm Canyon Drive were negative (see New Species
Information section above). Therefore, based on the best available data
we believe the majority of lands proposed for designation south of
Bogert Trail are occupied and meet the definition of critical habitat.
However, lands adjacent to and west of South Palm Canyon Drive
approximately west of Via Fortuna, and the southernmost non-contiguous
patches of CdC soil within Palm Canyon, are not occupied nor appear to
be occupiable and therefore do not meet the definition of critical
habitat because they would not contribute to the conservation of the
species (see Summary of Changes From the 2009 Proposed Critical Habitat
Rule, above).
With regard to the Tribe's question of our peer review practices,
the purpose of a proposed rule is to allow peer and public review of
data and conclusions drawn from the data, so that we can make
appropriate adjustments prior to publication of the final rule. It is
our policy that peer review be conducted during the public comment
period (Policy for Peer Review in Endangered Species Act Activities,
July 1, 1994, 59 FR 34270); we can not allow outside review of pre-
decisional internal draft proposed rules. Nevertheless, we do commonly,
and did in this case, discuss the data we use and the biological
implications of those data with species experts who collect it in a
scientific context as needed prior to publication of the proposed rule.
We believe we followed the best scientific practices in writing the
proposed and final rules.
Finally, regarding the Tribe's assertion that existing tribal
regulatory structure is adequate to protect Casey's June beetle, we
subsequently considered the Tribe's active role in regulating land use
and development via the Indian Canyons Master Plan and tribal
development zoning (as articulated by the Master Plan) that apply to
reservation lands south of Acanto Drive. We did not determine these
documents were adequate to address the threats placing the species in
danger of extinction and, therefore, meeting the definition of an
endangered species (see A. The Present or Threatened Destruction,
Modification, or Curtailment of the Species' Habitat or Range section
above).
Comment 6: The Tribe asserted that critical habitat should include
only the minimum amount of habitat needed to avoid short-term jeopardy
to the species. The Tribe further stated that designation of critical
habitat on their reservation is not needed because they are required to
conduct section 7 consultations for many activities that might
potentially pose a threat to the species.
Our Response: As required by section 4(b)(1)(A) of the Act, we use
the best scientific and commercial data available to designate critical
habitat (see Critical Habitat Background and Criteria Used To Identify
Critical Habitat above). Critical habitat is defined as the specific
areas within the geographical area occupied by a species, at the time
it is listed, on which are found those physical or biological features
essential to the conservation of the species and which may require
special management considerations or protection, and specific areas
outside the geographical area occupied by a species at the time it is
listed that are essential for the conservation of the species.
``Conservation'' means all methods and procedures necessary to bring
any endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary (the recovery standard,
see Critical Habitat Background section above). Therefore, critical
habitat is not defined as the minimum amount of habitat needed to avoid
short-term jeopardy to the species. Whether or not section 7
consultation is required is not a factor in determining those areas
that meet the definition of critical habitat. However, when we analyze
the benefits of
[[Page 58980]]
including versus excluding an area as critical habitat, we do consider,
among other relevant factors, whether the regulatory benefit of
designation may be largely redundant with listing.
Comment 7: The Tribe stated that if the Casey's June beetle is
listed, the Service should at least find the benefits of excluding
``the lands of the Agua Caliente Indian Reservation'' outweigh the
benefits of including them in critical habitat. The Tribe cited
multiple regulatory and tribal sovereignty documents including
Secretarial Order 3206 (June 5, 1997), Executive Order 13175 (65 FR
67249; November 9, 2000), and two other critical habitat rules where
tribal land was excluded based on partnerships in support of their
request for exclusion. The Tribe stated the ``relevant thrust'' of the
cited Federal enactments is that no agency of the Department of the
Interior will inflict regulatory, economic, or governmental burdens on
tribes and their members when adequate alternatives exist.
Our Response: We considered the Tribes' request that reservation
lands be excluded from critical habitat based on partnership benefits
and the existence of adequate alternatives to the regulatory, economic,
and governmental burdens of designating Casey's June beetle critical
habitat. The Act specifies that the Secretary may exclude an area from
critical habitat if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part of the critical
habitat, unless he determines, based on the best scientific data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor (see Exclusions section above).
We considered the possible benefits of including and excluding Agua
Caliente Band of Cahuilla Indians' tribal trust reservation lands that
met the definition of critical habitat. For our exclusion analysis we
considered our partnership with the Tribe and, therefore, analyzed the
benefits of including and excluding those lands under the sovereign
control of the Tribe (tribal trust reservation lands) that met the
definition of critical habitat. Because Tribe-owned fee, private fee,
or allotted lands are potentially subject to other jurisdictions and
not under the sovereign control of the Tribe, we did not include these
lands in our exclusion analysis (see Agua Caliente Band of Cahuilla
Indians under Tribal Reservation Lands, above). We find that existing
regulations and listing provide habitat protection of tribal trust
reservation lands and are largely redundant with protections that would
be provided by critical habitat designation (minimizing the benefits of
inclusion), and we find that excluding Agua Caliente Band of Cahuilla
Indians tribal trust reservation lands from this final critical habitat
will help preserve our partnership with the Tribe and foster future
development of habitat management plans with Agua Caliente Band of
Cahuilla Indians and other tribes (maximizing the benefits of
exclusion). Furthermore, we determined that exclusion of tribal trust
reservation lands would not result in the extinction of the species.
Therefore, we are excluding 11 ac (4 ha) of tribal trust reservation
(i.e., non-fee, non-allotment) lands from this final critical habitat
designation. See Tribal Reservation Lands under Exclusions, above, for
further discussion.
Comment 8: Two members of the Tribe who own allotted land in
proposed critical habitat south of Acanto Drive, north and adjacent to
South Palm Canyon Drive commented that: (1) The reasoning that the soil
type ``lends itself to potential habitat'' is not sufficient scientific
evidence their land meets the definition of critical habitat and sounds
speculative; (2) their properties are not occupied because surveys of
one commenter's parcel were negative, and the second commenter's parcel
is adjacent to the surveyed parcel; (3) the proposed designation would
affect tribal reservation land in a disproportionate manner since over
60 percent of the land identified is on the reservation; and (4) their
land is too far from the wash to meet the definition of critical
habitat. The commenters submitted a tract map and two letters from a
consultant in support of their statements.
Another apparent tribal allottee expressed similar concerns. The
commenter made the following statements with regard to their property:
(1) Surveys by James Cornett were negative; (2) in order to occupy on-
site habitat, Casey's June beetles would have to travel a distance
greater than 1 mi (2 km) over several concrete dams and a concrete
dike; (3) 75 percent is rock or hillside, and 10 to 15 percent of the
remainder is imported material behind a 100-year flood wall; and (4)
Riverside County FCWCD periodically removes several feet of material
from behind the flood wall to maintain the wash depth. They concluded
that for the above reasons their property should not be designated as
Casey's June beetle critical habitat.
Our Response: The commenters gave several reasons for why they
believed their lands should not be designated as critical habitat. We
address their reasons in this response in the order presented. We could
not find the quoted language regarding soil type in our proposed rule
to which objection was made. Nonetheless, we understand the comment did
not agree with the soil type associations articulated in the PCEs. We
believe language in the text of this rule clearly reflects the strong
relationship of soil type (PCE 1) to habitat suitability (see Primary
Constituent Elements for Casey's June Beetle, and Comment 1 above).
Historical occupancy data (Hovore 1997, p. 4; Hovore 2003, p. 4), 2004
survey data (Cornett 2004, p. 8), 2010 survey data (Hawks pers. comm.
2010, 2011a and b), and soil maps indicate some properties south of
Acanto Drive fall within currently occupied Casey's June beetle
habitat. Furthermore, documented occupancy of a particular site is not
required for land to meet the definition of critical habitat; however,
if the particular site is within the geographical area occupied by the
species at the time of listing, it must support physical or biological
features essential to the conservation of the species (see Critical
Habitat Background, above).
We understand the first two commenters' concern that a relatively
large amount of proposed critical habitat falls within the Tribe's
reservation. It is not our intent to designate critical habitat in a
disproportionate manner. Rather, the distribution of lands that meet
the definition critical habitat on tribal land is a result of past
biological and social factors we cannot change. However, based on new
scientific information we determined these commenters' lands did not
meet the definition of critical habitat, and therefore they are not
included in this critical habitat designation for that reason (see New
Species Information and Criteria Used To Identify Critical Habitat
sections above). We further excluded all tribal trust reservation land
from critical habitat, thus reducing the amount of reservation
designated as critical habitat (see Tribal Reservation Lands under
Exclusions above). Therefore, we believe these commenters' concerns
have been addressed to the extent appropriate.
The third commenter stated their property is not occupied and is
situated such that Casey's June beetle immigration is precluded. In
order to assess the validity of these comments we would need to know
the exact location of the commenter's property
[[Page 58981]]
and details of any surveys conducted. We were not able to determine the
precise location of the commenter's property based on the information
provided. Furthermore, the commenter did not provide survey
documentation, nor a date surveys were conducted. Therefore, we were
not able to assess the validity of the commenter's statements with
regard to occupancy.
The third commenter generally described their property as not
containing the PCEs. All areas proposed as Casey's June beetle critical
habitat were defined as the specific areas within the geographical area
occupied by the species on which are found the physical or biological
features essential to the conservation of the species (see Critical
Habitat Background, above). Without knowing exactly where the property
is located, we are not able to make a determination on the
characteristics of the site. However, we based our designation partly
on the soil type and landscape-level characteristics we determined are
important for the beetle and consider all areas occupied by the species
and to contain the PCEs. Any developed lands that do not contain the
PCEs inadvertently left inside critical habitat boundaries shown on the
maps of this designated critical habitat are excluded by text in this
final rule (see Criteria Used To Identify Critical Habitat section
above).
Comments Related to Biological Information That Informed Our Listing or
Critical Habitat Determinations
Comment 9: Three commenters stated that Casey's June beetle is more
widely distributed than the proposed rule described, based on
observations of Casey's June beetles at their homes. The first
commenter from the City of Palm Desert said they observed many Casey's
June beetles during the early morning at their home during a 3-week
period in June, dropping off the first week of July. The second
commenter said they observed Casey's June beetle at their home in La
Quinta several times during the late spring and early summer months of
2009. The third commenter said they had observed Casey's June beetle
``a few miles north of the reported [proposed critical habitat]
boundary'' and at 393 West Mesquite Ave in the City of Palm Springs.
They stated they hope this information helps protect the species
because they believe it is important no species become extinct.
Our Response: There are other species of June beetles in the Palm
Desert and La Quinta areas that are related and similar in appearance
to Casey's June beetle (Cornett 2004, pp. 4-5). As stated in the
proposed rule, Casey's June beetles are crepuscular, meaning they are
active at dusk, not in the early morning (Hovore 2003, p. 3). Although
it is commonly called a ``June'' beetle, peak abundance for this
species typically occurs in April and May, not during the summer months
of June and July (Cornett 2004, pp. 4, 18-26). The timing of the first
two commenters' observations indicates the beetles they observed were a
species of common June beetle in the genus Phyllophagia (see Cornett
2004, p. 4-5). Additionally, none of the commenters provided any
substantiating information to support the comment they had observed
Casey's June beetles, such as identifying characteristics of specimens,
or experience on which their ability to identify Casey's June beetle
was based. Casey's June beetle surveys were conducted in 2010, during
the flight season in potential habitat in the areas described by the
third commenter (vicinity of Tahquiz Creek in western foothills of the
City of Palm Springs); however, no Casey's June beetles were detected
(Hawks pers. comm. 2010). Therefore, we believe it is unlikely that
beetles observed by the commenters were Casey's June beetles.
Comment 10: Four commenters argued there is not enough information
known regarding the biology of the species or its distribution to
justify listing. They argued it is not known what the species eats or
how long it remains in the soil, and the species' distribution may be
significantly greater than estimated in the proposed listing and
critical habitat rule. They collectively stated or implied there has
been no systematic effort to locate Casey's June beetle elsewhere in
the Coachella Valley or desert areas farther south, and such an effort
is needed before listing would be warranted. The first two commenters
specifically stated they know of a Casey's June beetle captured ``well
outside'' the proposed critical habitat, and another report of what may
be a Casey's June beetle from a site near the City of Yuma, Arizona.
The second commenter made several statements questioning the
scientific credibility of the proposed listing and critical habitat
rule. The commenter argued: (1) Survey methodology requires further
development and may be skewed because light traps require access to
electricity; (2) the Service's assumption that all areas occupied by
Casey's June beetle comprise a single population is not based on
scientific data; (3) proposed PCE 2 (intact, native Sonoran desert
scrub vegetation and native desert wash vegetation) is not valid
(citing James Cornett's detection of the species in the Smoke Tree
Ranch maintenance yard and the tennis court, and consistent species
observations in a dry wash characterized as Sonoran creosote bush scrub
and desert wash vegetation, portions of which were disturbed); and (4)
preliminary results from spring 2010 surveys conducted by James Cornett
confirm an association with ``non-native tamarisk'' (submitted an email
communication from James Cornett). They concluded the species'
biological and physical requirements are so poorly understood that
proposed PCE 2 is not valid, and data contradict the assumption habitat
disturbance threatens the species' continued survival; therefore, the
proposed critical habitat designation is arbitrary and capricious. They
further commented this ``fundamental legal flaw'' renders the proposed
listing determination in violation of the Act's best available
scientific evidence standard and is, therefore, also arbitrary and
capricious.
The third commenter stated listing was not warranted because it is
not clear what actions would be required to recover the species, and
because Casey's June beetle appears to be less susceptible to human
interaction than is currently recognized. They specifically stated the
species has been collected in higher numbers where habitat has greater
exposure to human impacts.
Our Response: The comment regarding the species'' known range and a
need for surveys is the same as the Tribe's above (Comment 5), and the
commenter's statement that Casey's June beetle listing and critical
habitat designation are not supported by the best available scientific
data is similar to the Tribe's comment as well. We believe our current
biological conclusions and the need to list Casey's June beetle as
endangered under the Act are well supported by the best available
scientific and commercial data. Please see our response to Comment 5
above for further discussion.
Regarding the second commenter's specific statements numbered
above: (1) Some past surveys may have been biased by trap placement
proximal to electricity sources; however, some light traps are battery-
powered, and past trapping efforts represent the best available
scientific data. (2) We agree it is possible all individuals in
currently occupied habitat areas do not belong to a single population.
Nevertheless, we believe we adequately acknowledged this uncertainty in
the proposed rule by stating, ``We consider all known occurrences of
Casey's June beetle to constitute a single population based on
currently available data. However, additional studies are needed to
confirm this assumption.'' Our consideration is
[[Page 58982]]
based on the flight and movement potential of male Casey's June
beetles, as well as the fact that all currently occupied habitat areas
were historically contiguous. Furthermore, it is not unusual for
species'' population distributions to be ill-described prior to listing
(see Euphydryas editha quino (Quino checkerspot butterfly) final
revised critical habitat rule; 74 FR 28775, June 17, 2009). (3) We
agree that the proposed PCEs were overly restrictive; therefore, we
edited PCE 2 to include other Sonoran vegetation types and disturbed
habitat. In the proposed revised rule we specified ``Intact, native
Sonoran (Coloradan) desert scrub vegetation and native desert wash
vegetation * * *.'' In this final revised rule we use the more
inclusive language in PCE 2, i.e., ``predominantly native desert
vegetation'') (see Primary Constituent Elements for Casey's June Beetle
and response to peer reviewer Comment 2 above). (4) The email from
James Cornett describing his preliminary 2010 survey results presents
inconclusive and incomplete data. Cornett listed beetle abundance data
from 3 nights of collection using an unspecified number of traps of
unspecified design placed ``near'' cheesebush (Hymenoclea salsola) and
tamarisk (Tamarix spp.). The first 2 nights he reported higher numbers
of male Casey's June beetle attracted to traps located near Tamarix
spp.; however, on the third night he collected almost twice as many
individuals from traps located near Hymenoclea salsola. Cornett did not
discuss any other possible habitat correlations with trap placement
that could have affected his results. Furthermore, preliminary results
from David Hawks'' 2010 (pers. comm.) surveys on Smoke Tree Ranch
indicate no correlation of female Casey's June beetle emergence holes
with any particular species or type of plant, not even native plants
(see New Species Information and Primary Constituent Elements for
Casey's June Beetle sections above). Hawks'' (pers. comm. 2010) study
indicated soil type, moisture content, and other factors were more
likely determinants of habitat than associated plant species or types.
Therefore, based on information discussed in the response above,
and reasons discussed in the response to Comment 5 above, we conclude
there is no valid basis for the second commenter's statement that this
critical habitat designation or listing determination are arbitrary and
capricious.
We considered the third commenter's statements that listing is not
warranted because it is not clear what actions are required to recover
the species, and the species appears to survive equally well in
habitats exposed to disturbance. Until a species is recovered there is
always some level of uncertainty regarding actions required to achieve
recovery; furthermore actions required for recovery are not typically
analyzed or described until a species is listed and a recovery outline
or plan is developed. Articulated recovery actions are not a
prerequisite for listing. On the disturbance issue, the data do not
support that the species has been collected in higher abundance where
human impacts are greatest. Some of the highest observed numbers and
most consistent collections of male Casey's June beetles have been in
the gated community of Smoke Tree Ranch, where the largest and most
protected area of remaining occupied habitat is found. Therefore, we do
not believe the best scientific and commercial data available support
the commenter's statement that listing is not warranted.
Comment 11: Three commenters argued specific areas proposed for
critical habitat designation and considered occupied are not occupied
and should not be included in the final critical habitat designation.
The first commenter stated surveys conducted in 2009 indicate habitat
south of Bogart Trail and west of South Palm Canyon Drive is not
occupied, and stated this area should not be designated as critical
habitat. The second commenter stated the proposed critical habitat
south of State Route 111 near Gene Autry Trail as mapped appears to
extend arbitrarily beyond what was mapped as occupied in the 2006
Bruyea report. The third commenter stated multiple past surveys of
their property (the easternmost polygon of proposed critical habitat),
and a survey conducted in April of 2010, were all negative. The third
commenter submitted a letter from James Cornett documenting negative
survey results.
Our Response: The commenters'' statements that areas proposed as
critical habitat must be occupied to meet the definition of critical
habitat appear to be based on the assumptions that negative surveys are
definitive, the scale of occupancy described in a critical habitat rule
is the same as that determined in the smallest-scale presence-absence
project-based survey, and occupancy is a requirement for critical
habitat designation. First, it is not uncommon for Casey's June beetle
surveys, for which we have not yet developed a robust survey protocol,
to not detect occupancy where it in fact exists. For example, Cornett's
(2004, p. 8) surveys near Gene Autry Trail at the wash crossing and at
another site near the State Route 111 intersection with Gene Autry
Trail did not detect Casey's June beetle; however, Powell (2003, p. 4)
had reported collecting 70 male Casey's June beetles in the first 15
minutes and ``many afterwards'' one night at the wash crossing, while
Bruyea (2006, pp. 10-11) reported traps ``consistently attracted
[Casey's June beetle] during each of the four survey visits'' at the
State Route 111 intersection site. Second, the scale of occupancy
described in critical habitat rules is at the population distribution
scale, not the individual, local scale sometimes determined by smaller-
scale presence-absence surveys. Because population distributions could
expand and contract over time at the local scale depending on habitat
conditions and other factors, individual-or ``colony-'' scale occupancy
may not reflect the greater longer-term population distribution. We
also note the first commenter did not provide any further information
regarding the referenced survey, and we do not have any information
corresponding with the described survey. Therefore, with regard to
Casey's June beetle occupancy status, we believe the designation of
critical habitat would be appropriate for those areas referred to by
the commenters.
We did, however, determine the third commenter's property does not
contain the primary soil type specified in PCE 1 (CdC) required to meet
the definition of critical habitat. Therefore, we determined this
property did not meet the definition of critical habitat (see also
Summary of Changes From the 2009 Proposed Critical Habitat Rule, above)
and did not include it in this final critical habitat designation.
Comment 12: One commenter asserted the maintained Palm Canyon Wash
channel and levee system does not meet the definition of critical
habitat because the reoccurrence of scouring and sediment deposition
within the channel and levee system likely precludes any long-term
development of viable Casey's June beetle PCEs. They stated that
published annual peak stream flow information from the U.S. Geological
Survey shows Palm Canyon Wash has experienced at least 16 peak flow
events of over 1,000 cubic feet per second (cfs) (28 cubic meters per
second (cms)) since 1980, and these peak streamflows have occurred at a
minimum of every 1 to 3 years.
Two other commenters gave reasons why they believed their property
did not meet the definition of critical habitat. The second commenter
stated their property is surrounded on three sides by existing homes
and was ``pretty
[[Page 58983]]
well torn up'' 2 years ago when they were compelled to clean up a
vegetation dump created by their neighbors. The third commenter
objected to the proposed designation of their property in the vicinity
of Araby Drive (``Araby Cove'') as critical habitat. The reasoning the
third commenter articulated in support of their objection was: (1)
Their property is elevated with fill dirt (and therefore does not
contain the PCEs); (2) no experts have evaluated their property to
establish soil suitability; and (3) they have been at their property
for 5 years at dusk and evening and never observed any beetle species.
The commenter suggested the Service could maintain the total area
proposed as critical habitat by moving mapped proposed critical habitat
off their property to include ``non-buildable,'' adjacent, undisturbed
land. They stated that designating their residential lot and not any
other neighboring properties with similar physical and biological
features is illegal. The commenter submitted several photographs in
support of their written comments.
Our Response: We considered the first commenter's statement that
the Palm Canyon Wash channel and levee system does not meet the
definition of critical habitat. We also acknowledge that some portions
of Palm Canyon Wash are not likely to support occupancy by females and
immature life stages. While it makes sense that some level of scouring
intensity would extirpate occupancy in some places, at relatively small
scales within the Palm Canyon Wash channel, the correlation between
flood intensity and mortality at a given life stage is unknown. Many
collections of adult males have been made within and adjacent to Palm
Canyon Wash, even where there is no adjacent upland habitat (such as
Powell 2003, p. 4). The best available data also indicate that all
areas of Palm Canyon Wash will always contain both PCEs. We believe any
conclusions regarding peak stream flow effects on Casey's June beetle
occupancy in Palm Canyon Wash are premature, and use of the channel and
levee system by adult males also justifies inclusion of this area as
designated critical habitat.
Lands which are ``occupied'' in some capacity but do not contain
the PCEs (for example areas where only movement of males in flight is
possible) do not meet the definition of Casey's June beetle critical
habitat; therefore, any levees or areas elevated by fill dirt
inadvertently mapped as designated critical habitat would not be
considered critical habitat. When determining the critical habitat
boundaries, we made every effort to map precisely only the areas that
contain the PCEs and provide for the conservation of Casey's June
beetle. However, due to the mapping scale that we use to determine
critical habitat boundaries, we cannot guarantee that every fraction of
critical habitat contains the PCEs. Additionally, we made every attempt
to avoid including developed areas such as lands underlying buildings,
paved areas, and other structures that lack PCEs for Casey's June
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 areas. Any developed structures (such as a
developed levee) and the land under them inadvertently left inside
critical habitat boundaries shown on the maps of this critical habitat
designation are excluded by text in this rule and are not designated as
critical habitat. Federal actions involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific actions may
affect the PCEs in adjacent critical habitat (see Critical Habitat
Background section above). Therefore, we believe designation of the
Palm Canyon Wash channel and other lands as critical habitat, as mapped
in this final rule, is warranted.
We considered the third commenter's statements that they have never
observed any beetle species on their property and that designating
their residential lot and not any other neighboring properties with
similar physical and biological features is illegal. We further
considered their suggestion we could maintain the total area proposed
as critical habitat by ``moving'' mapped critical habitat off their
property to include adjacent, undisturbed land. The Act specifies we
use the best commercial and scientific data available to determine what
lands meet the definition of critical habitat (see Critical Habitat
Background, above). We do not base our designation on a particular size
area or property boundaries. For us to alter the mapped final critical
habitat designation to remove their property as the commenter
suggested, without sound scientific or commercial data to support our
actions, would be arbitrary and capricious in our decision making.
Therefore, we did not alter mapped final critical habitat to avoid the
commenter's property based on any of these statements.
Regarding the third commenter's statement that their property did
not contain the PCEs, we examined digital aerial photography and did
not include buildings and structures and surrounding areas that
appeared to be constructed on raised fill dirt (their entire property)
in this final critical habitat designation (see Summary of Changes from
the 2009 Proposed Critical Habitat Rule, above).
Comment 13: One commenter argued that although their property (a
patch of habitat near the intersection of Gene Autry Drive and State
Route 111) is occupied, it should not be designated as Casey's June
beetle critical habitat. They stated the Casey's June beetle population
on their property is isolated and not viable because: (1) The habitat
is not contiguous with other occupied habitats and is 0.5 miles (1 km)
distant from the nearest occupied location; (2) females are flightless;
(3) male beetle movement appears to be limited to less than 7 ft (2 m)
above the ground and to ``short distances;'' (4) the property is
bordered by a road and developed areas where artificial lights would
attract and disorient male beetles resulting in mortality; (5) the
property is disturbed and has compacted soils; and (6) the ``low''
numbers of Casey's June beetles collected on this property relative to
typical collections in other habitats indicate a relatively small
population size. They concluded their property does not meet the
definition of critical habitat.
The letter from James Cornett submitted by the commenter further
stated, ``To successfully immigrate or emigrate from [this habitat]
site, a beetle would need to fly higher than the species ever does, or
fly in a straight line and head directly down highway 111 or Gene Autry
Trail at the approximate level of rapidly moving motor vehicles
(thereby risking substantial harm). The limited distribution of the
species strongly suggests these latter scenarios rarely, if ever,
happen.''
Our Response: Beetle behaviors described in the best available
scientific and commercial data do not support the commenter's
statements. It is less than 1 mi (less than 2 km) to the nearest
occupied habitat (Palm Canyon Wash) through undeveloped foothills below
600 ft (180 m) in elevation, and approximately 0.5 mi (1 km) through
residential development to the north or the west. No available
scientific information we reviewed indicates any beetle species must
fly in a straight line down roads. In fact, Casey's June beetles could
take an equally direct route of equal distance to occupied wash habitat
through residential homes from any number of points on the property
other than the road intersection indicated by Cornett. While it is true
the male beetle's attraction to lights is known to cause some mortality
(e.g., drowning in
[[Page 58984]]
pools and attraction to light-based bug traps), there is no data
indicating all individuals attracted to lights in residential areas
die. If males are disoriented the lights may also cause them to move in
a wandering, indirect fashion through a development. No data were
provided to support the assertion they never fly above 7 ft (2 m), nor
were any data presented that indicated how far or in how much of a
straight line male Casey's June beetles are likely to fly. Therefore,
as long as females on site are not eradicated, there is potential for
population survival and genetic exchange with individuals in other
occupied habitats.
We considered the commenter's statement that habitat on their
property is too degraded and isolated to support a viable Casey's June
beetle population. We acknowledge habitat suitability may have been
compromised; however disturbance, nonnative plant invasion, and soil
compaction are all habitat features that may require management to
maintain PCEs. Furthermore, in a habitat assessment conducted by Hovore
(1997c, p. 4), he described this area as ``of sufficient size to
sustain viable populations despite having [SR] 111 pass along [its]
margin.'' Inspection of historical Google Earth imagery from 1996
indicates the amount of undeveloped land in this area has not changed
significantly since Hovore's assessment. Therefore even with some
undesirable habitat features, this property meets the definition of
critical habitat.
We further considered James Cornett's statement submitted by the
commenter that the limited distribution of the species strongly
suggests flight of male Casey's June beetles more than 0.5 miles (1 km)
or above 7 ft (2 m) rarely, if ever, occurs. An equally plausible
explanation for the species' limited distribution is direct mortality
of females during habitat disturbance and loss, coupled with adaptation
of the species to limiting habitat factors such as wind exposure and
soil moisture content that we do not yet fully understand. Therefore,
we do not agree the limited species' distribution suggests a limited
movement capability of male Casey's June beetles.
Comment 14: One commenter stated they fully support listing Casey's
June beetle as endangered for reasons identified in the original
petition (threatened by loss and degradation of habitat, mortality due
to artificial lighting and vehicular traffic, fragmentation of habitat,
chance catastrophic events such as flooding, small population size, and
inadequate regulatory protection) and the subsequent information
provided in the proposed listing rule. The commenter also stated they
support the designation of critical habitat for this species.
Our Response: We appreciate the commenter's review of our proposed
rule. Please see Comment 1 and our response for further discussion of
the scientific validity of this final rule.
Comment 15: One commenter stated they were concerned the proposed
critical habitat is ``limited * * * to the present range of the
species'' and did not include any unoccupied habitat that may be
necessary for recovery of the species. They stated critical habitat
must include areas required for species recovery, not just survival.
They argued that past attempts by the Service to disregard the critical
habitat recovery standard under the Act have repeatedly been found
unlawful (see Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv.,
378 F.3d 1059, 1069-70 (9th Cir. 2004), citing Sierra Club v. U.S. Fish
& Wildlife Serv., 245 F.3d 434, 441-42 (5th Cir. 2001) and N.M. Cattle
Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1283 & n.2 (10th
Cir. 2001)). The commenter cited the Ninth Circuit Court, ``[i]f the
[Service] follows its own regulation, then it is obligated to be
indifferent to, if not to ignore, the recovery goal of critical
habitat'' and such an interpretation ``would drastically narrow the
scope of protection commanded by Congress under the Endangered Species
Act'' (Gifford Pinchot, 378 F.3d at 1070). The commenter concluded that
the Service should consider designation of additional areas of
unoccupied habitat that may be necessary to provide sufficient habitat
to support recovery of Casey's June beetle.
Our Response: We considered the commenter's argument that our
proposed critical habitat designation may have been too limited in
scope. As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining the specific
areas within the geographical area occupied by the species that contain
the features essential to the conservation of species which may require
special management considerations or protection, as well as when
determining if any specific areas outside the geographical area
occupied by the species are essential for the conservation of the
species. 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 our decisions are based on the best scientific data
available. We used primary and original sources of information as the
basis for our recommendations. We only designate areas outside the
geographical area occupied by a species when the Secretary determines
that a designation limited to a species' present range would be
inadequate to ensure the conservation of the species (50 CFR
424.12(e)). We carefully considered all patches of apparently suitable
habitat within the species' historical (versus current) range for
proposal as critical habitat, even where reintroduction could
potentially occur (see Criteria Used To Identify Critical Habitat
section). As defined in section 3(5)(A) of the Act, we believe we have
designated all specific areas that the best available scientific data
indicate meet the definition of critical habitat. We do not believe
there is sufficient scientific data to indicate specific areas outside
the geographical area occupied by the species are essential for
conservation of the species. Section 3(5)(C) of the Act states that
except in those circumstances determined by the Secretary, critical
habitat shall not include the entire geographical area which can be
occupied by the endangered or threatened species. As we learn more
about the biology of this species and its habitat requirements we may
identify additional habitat areas necessary for conservation of the
species. Please see Comment 2 and response above for further discussion
of this issue.
Comments Relating to Potential Exclusions From Critical Habitat
Designation
Comment 16: One commenter requested exclusion of Palm Canyon Wash
and two ``isolated'' proposed critical habitat areas within the
approved Palm Springs Master Drainage Plan Line 41, Stage 3 project
alignment located east of Palm Canyon Wash and south of Palm Canyon
Drive based on economic hardship and public health and safety. They
stated inclusion of the maintained flood control system within the
final critical habitat designation would trigger a lengthy section 7
consultation process and likely prevent timely construction and
maintenance essential to safeguard the physical and economic well-being
of the city of Palm Springs and its citizens. The commenter believes
that potential direct and indirect impacts of critical habitat
designation include but are not limited to: (1) Increased costs
associated with
[[Page 58985]]
species surveys and the section 7 consultation process; (2) increased
risk that the flood control system may fail to provide the full measure
of its crucial public health and safety benefits due to a lengthy
section 7 consultation process and any requirements imposed through
that process to minimize effects of the action; (3) increased costs
(such as increased flood insurance rates) imposed on the local
community through the National Flood Insurance Program as a result of
not meeting Federal Emergency Management Agency (FEMA) requirements;
(4) potential damages to the communities that may result if critical
maintenance activities are delayed; and (5) ``additional mitigation
costs and potential conflicts associated with flood control
facilities.'' Specifically, they stated the Palm Springs Master
Drainage Plan Line 41, Stage 3 project alignment will provide 100-year
flood protection to existing downstream development currently located
within a FEMA-mapped Special Flood Hazard Area.
The commenter argued that exclusion of the wash would not result in
extinction of the species because the species is frequently extirpated
from the wash by scouring events. The commenter also stated exclusion
of the two isolated areas proposed as critical habitat would not result
in extinction of the species because continued occupancy and
reproduction on-site is not viable long-term. They argued that
occupancy in these two sites depends on flightless females for
reproduction, and claimed the sites are isolated from Palm Canyon Wash
by existing contiguous development and steep rocky hillsides. They
further stated that a past Casey's June beetle survey indicated that
species' density in these areas may be low (cited Bruyea 2006), and
beetles occupying this area may be a remnant colony of past conditions
when dense urban development did not separate it from Palm Canyon Wash.
The commenter concluded that occupancy would eventually be lost and
recolonization from Palm Canyon Wash would be unlikely.
Our Response: We considered the commenter's statement that Palm
Canyon Wash and areas within the approved Palm Springs Master Drainage
Plan Line 41, Stage 3 project alignment should be excluded from
critical habitat designation based on economic hardship and public
health and safety. Any emergency or critical infrastructure projects
undertaken to protect public health and safety can be appropriately and
quickly addressed through emergency consultations. Furthermore, the DEA
and subsequent FEA attributed the majority of flood control activity
costs to the listing of the species as endangered (baseline impacts),
not to designation of critical habitat (incremental impacts). We will
work with the responsible agencies to facilitate and expedite any
consultations regarding projects that may affect public health and
safety. Therefore, we do not believe exclusion of Palm Canyon Wash and
areas within the approved Palm Springs Master Drainage Plan Line 41,
Stage 3 project alignment from critical habitat designation is
justified.
Regarding the commenter's conclusion that recolonization is
unlikely following eventual loss of occupancy in some areas designated
as critical habitat, we may determine that artificial recolonization
and management will be required to achieve species' recovery. See also
our response to Comment 2 above regarding Casey's June beetle
occupancy.
Comment 17: One commenter stated they believe the designation of
critical habitat for Casey's June beetle in Palm Springs is not
appropriate because it does not ``conform'' to the Coachella Valley
Multiple Species Habitat Conservation Plan (Coachella Valley MSHCP).
A second commenter objected to designation of the same property as
critical habitat for Casey's June beetle ``or any other species.'' They
stated this property is planned for development as a senior continued
care retirement community for the gay and lesbian community in the city
of Palm Springs. They further asserted it is the last available
``[tribal] fee site'' in the city of Palm Springs large enough for the
planned development project, and is ideally located for senior citizens
because it is close to medical care, grocery stores, and public
transportation. They stated they should get special consideration
because gays and lesbians have ``been declared a suspect and protected
class of state citizens by the California State Court.''
Our Response: We reexamined the soil maps with regard to the
property identified by these commenters, and have determined the
primary soil type specified in PCE 1 (CdC) required for critical
habitat is not mapped on this property. Therefore, we determined this
property does not meet the definition of critical habitat (see also
Summary of Changes From the 2009 Proposed Critical Habitat Rule, and
response to Comment 11 above) and did not designate it as critical
habitat. While we appreciate the commenters' concerns, because we
determined that these lands do not meet the definition of critical
habitat, we did not further consider the commenters' request for
exclusion of this area under section 4(b)(2) of the Act.
Comment 18: One commenter argued portions of Smoke Tree Ranch
should be excluded from the final critical habitat designation. The
commenter stated they spent over 2 years negotiating a Casey's June
beetle Candidate Conservation Agreement (``CCA'') with the Service.
They argued that, although the CCA was not finalized, they remain
committed to implementing the terms of the CCA and have proceeded to
implement it. They further stated the Service, the Center for
Biological Diversity, the Sierra Club, and the commenter spent 2 years
evaluating Smoke Tree Ranch habitat, and areas identified as valuable
habitat have been placed under a conservation easement monitored by the
Center for Natural Lands Management. The commenter provided a copy of
the conservation easement deed in support of their statement. The
commenter argued they are the only landowner who has, to date, entered
into binding agreements to protect beetle habitat, and the portions of
their land not covered by a conservation easement should be considered
for exclusion. The commenter proposed to continue their conservation
partnership with the Service to finalize the CCA if the species is not
listed or, should the species be listed, to explore additional habitat
conservation within the easement, or provide for adaptive management.
They cited exclusion precedents they believe supported their request
that critical habitat designation should be limited to areas covered by
the conservation easement, and the remainder of Smoke Tree Ranch
property should be excluded from critical habitat.
The commenter further argued the Service's proposal to designate
most of Smoke Tree Ranch, including all homes and property of
residents, does not reflect the best scientific data available and
ignores the definition of the species' PCEs. The commenter suggested
designation of private homes and other developed areas as critical
habitat is unprecedented. They expressed concern that although the
proposed rule text purports to exclude ``lands covered by developed
areas, such as buildings, pavement, and other structures' from the
critical habitat, it includes areas around homes and structures and
only applies to existing structures. They further concluded the ``mere
threat of Service regulation of improvement or modification of an
existing home or structure undermines public support for the [Act] and
distracts the scarce resources of the Service from real and important
conservation challenges.''
[[Page 58986]]
They stated even if the Service elects not to exercise regulatory
authority over the activities of private homeowners at Smoke Tree
Ranch, the designation of critical habitat will create a powerful legal
weapon for the use of third parties. They stated Smoke Tree Ranch has
also recorded deed restrictions on all of the property that restrict
development and retain native desert habitat as the prominent property
feature. The commenter submitted a ``form'' of deed restrictions
(superseded) and an excerpt of current Smoke Tree Ranch covenants,
conditions, and restrictions in support of their statements.
Our Response: We considered the commenter's statements regarding
potential impacts resulting from the critical habitat designation and
their request for exclusion of lands within Smoke Tree Ranch not
covered by the conservation easement. We recognize and appreciate the
efforts made by Smoke Tree Ranch, Inc., to assist in the conservation
of Casey's June beetle, and look forward to continuing to work with
these partners to assure that long-term conservation and management is
assured for the species. However, after considering the relevant
impacts, the Secretary is declining to exercise his discretion to
exclude these lands, in part because we determined there were no
existing regulations or other measures in place on these lands
redundant with protection provided by critical habitat designation.
We do not agree that inclusion of private homes and other developed
areas in areas mapped as designated critical habitat is unprecedented.
We routinely include structures such as single-family dwellings, and
other features that do not contain PCEs, in areas mapped as designated
critical habitat because the scale of our mapping does not allow us to
remove such areas from our maps. The cost and time required to remove
all areas that do not contain the PCEs at the scale of a single-family
dwelling would be prohibitive. In the case of Smoke Tree Ranch, there
are occupied habitat patches distributed within the developed area,
making it especially difficult to remove structures from mapped areas.
Where inclusion of developed lands lacking PCEs in mapped critical
habitat cannot be avoided, these areas are excluded by text in this
final rule and are not designated as critical habitat.
Comments Related to Legal and Procedural Issues
Comment 19: Two commenters expressed concern that they were not
personally notified of the proposed critical habitat designation, and
expressed concern that their legal rights might be violated in the
future. The first commenter expressed concern that they were ``denied''
a requested public hearing. The second commenter specifically requested
an extension of the 30-day comment period (initiated on March 31, 2010,
at 75 FR 16046) under 50 CFR 424.16(c)(2) because they were not
notified by the Service of the proposed rule. They stated they were not
aware of the proposed rulemaking until the City of Palm Springs
informed them in a letter on April 19, 2010. They also stated that if
their property was not excluded from the final critical habitat
designation, they were requesting a public hearing under 50 CFR
424.16(c)(3). Finally, the second commenter argued that designation of
critical habitat would constitute regulatory ``taking'' of their
property.
Our Response: We considered the commenters' concerns regarding
notification of our proposed rulemaking and the associated request for
comment period extension. Under 50 CFR 424.16(c)(2) the Secretary may
extend or reopen the period for public comment on a proposed rule upon
a finding that there is good cause to do so. Under 50 CFR
424.16(c)(1)(iii), we gave notice of the proposed regulation to local
authorities and private individuals known to be affected by the rule.
In particular we notified the Tribe and the City of Palm Springs who
have jurisdiction over the commenters' properties. We did not know the
commenter would be affected by the rule because we do not know the
identity of most private property owners within a proposed critical
habitat designation prior to publication. However, under 50 CFR
424.16(c)(1)(vi), we published a public notice of the proposed
rulemaking on July 20, 2009, in the local Desert Sun newspaper, at the
beginning of the first comment period. Furthermore, as the second
commenter stated, the City notified them personally of our proposed
rulemaking and open comment period on April 19, 2010, in time to submit
their comments. Therefore, we determined that lack of personal
notification of the commenters upon publication of the proposed rule
was not a good cause to extend the 30-day comment period.
We considered the commenters' concerns and requests regarding the
opportunity for a public hearing. Under 50 CFR 424.16(c)(3), the
Secretary shall promptly hold at least one public hearing if any person
so requests within 45 days of publication of the proposed regulation
(during the first 60-day comment period). The commenters submitted
their requests more than 45 days after the proposed rule published,
during the second comment period. We believe we fulfilled our
obligation under the Act to notify the public of our proposed
rulemaking, and provided sufficient time to prepare and submit comments
(see above discussion). Therefore, we informed the commenters of our
policies and notifications, and did not hold a public hearing as
requested.
Regarding the commenter's statement that designating the property
as critical habitat would result in a ``taking'' of the property, we
have determined that the designation of critical habitat for Casey's
June beetle does not pose significant takings implications for lands
within or affected by the designation (see Takings--Executive Order
12630, under Required Determinations, below).
Comments Related to the Draft Economic Analysis
Comments From Tribes
Comment 20: The Tribe and one tribal member stated the Service's
methodological approach of separately estimating incremental impacts of
the designation relative to existing baseline protections has been
invalidated in court and violates the Act.
Our Response: The estimation of incremental impacts is consistent
with direction provided by the Office of Management and Budget (OMB) to
Federal agencies for the estimation of the costs and benefits of
Federal regulations (see OMB, Circular A-4, 2003). It is also
consistent with several recent court decisions, including Cape Hatteras
Access Preservation Alliance v. U.S. Department of the Interior, 344 F.
Supp. 2d 108 (D.D.C.) and Center for Biological Diversity v. U.S.
Bureau of Land Management, 422 F. Supp. 2d 1115 (N.D. Cal. 2006). Those
decisions found that estimation of incremental impacts stemming solely
from the designation of critical habitat is proper.
Comment 21: The Tribe and one other commenter stated the DEA's
assignment of costs to the baseline and incremental scenarios relies on
the untested assumption that there is a 25-percent chance of a negative
or false negative survey for the beetle at a given project site. They
asserted this approach is inconsistent with real world experience where
project proponents, Federal agencies, and the Service develop and
negotiate minimization and mitigation strategies.
Our Response: Where a Federal nexus is present, project proponents
typically engage biologists and survey to determine whether listed
species are
[[Page 58987]]
present prior to determining whether consultation with the Service is
required. Thus, the presence or absence of the beetle is a key factor
in determining whether a consultation will go forward absent critical
habitat. The assumption about likely outcomes of future surveys is
necessary to estimate the possible impacts in our FEA.
Comment 22: The Tribe asserted that if 100 percent of critical
habitat is essential, then the economic analysis should assume 100
percent of the area will be fully and equally conserved due to that
critical habitat designation, not only 25 percent.
Our Response: This comment appears to reflect a misunderstanding of
the DEA, confusing all costs associated with listing and critical
habitat designation with total costs of conserving areas designated as
critical habitat. The DEA assumed 75 percent of all costs associated
with listing would occur due to occupancy regardless if critical
habitat were designated (baseline), and where there was no occupancy
detected (25 percent of the time), costs would be attributable solely
to critical habitat. In areas where the beetle has been previously
identified, we expect positive surveys, and all costs are attributed to
the baseline. The analysis assumes 100-percent conservation of the
designated habitat; however, the majority of the time, these areas
would have been conserved anyway as a result of the presence of the
beetle at the site.
Comment 23: The Tribe clarified it has chosen not to delegate land
use authority to a local agent (e.g., the City of Palm Springs) in the
area of its reservation south of Acanto Drive. This area is subject to
the Tribe's Indian Canyons Master Plan and tribal zoning. The Tribe
states it was not contacted for land use information in this area and
that the economic analysis should be revised to consider tribal land
uses and controls in this area.
Our Response: The Service's consultants responsible for preparing
the DEA attempted to contact the Tribe to collect information about
land uses and the potential impact of the designation on reservation
lands via email and telephone multiple times between August and October
2009; however, the Tribe did not respond. Therefore, consultants relied
on economic and other data they obtained from the Tribe at the end of
2007 during the preparation of the economic analysis of the proposed
designation of critical habitat for the Ovis canadensis nelsoni
(Peninsular bighorn sheep). At that time, the Tribe identified several
planned development projects north of Acanto Drive that overlap
proposed critical habitat for the beetle, including the Eagle Canyon
(Alturas) Project, the Monte Sereno residential development, and an
unnamed residential development project also identified in the City of
Palm Springs' Canyon South Specific Plan. Data provided by the Tribe
did not identify any planned projects on tribal reservation lands south
of Acanto Drive.
We reviewed the Indian Canyons Master Plan, which includes tribal
zoning maps, and have revised the economic analysis to incorporate this
newer information. Specifically, that plan identifies allotted trust
and tribal trust lands south of Acanto Drive zoned for low density
residential development (2 dwelling units per ac (0.4 ha)) and open
space--rural development (1 dwelling unit per ac (0.4 ha)). The Tribe's
master plan outlines a vision for the type of development it would like
to see, as opposed to demand, for development expressed by the market.
The likelihood these lots will be converted to residential housing in
the reasonably foreseeable future (e.g., the next 10 to 20 years) is
difficult to predict. The City of Palm Springs is predominantly built-
out, increasing the value of remaining, developable land. In addition,
parcels south of Acanto Drive are adjacent to recently developed
parcels to the north and east, suggesting this area may be subject to
development as the City of Palm Springs'' population grows. However, in
its 2007 General Plan, the City of Palm Springs reports higher than
optimal housing vacancy rates, which is likely to depress housing
prices and the demand for raw land.
Data on sales transactions for these or similar, undeveloped
parcels are scarce, and because the lands are not subject to local real
estate taxes, assessed values are not available. Furthermore, lacking
information about the demand for and timing of future development, it
is not possible to estimate the present value of these parcels based on
current housing prices. Therefore, the potential impact of critical
habitat designation on these parcels is discussed qualitatively in
Chapter 3 of the FEA.
Comment 24: One tribal commenter stated the economic analysis
should consider the unique circumstances regarding the loss of value of
tribal lands, which go beyond simple losses in land value. Indian
allotments represent economic and cultural patrimony for the allottee.
Our Response: Additional discussion of these unique circumstances
has been added to Chapter 3 of the FEA.
Comment 25: One tribal member commented they intend to sell their
4-ac (1.6-ha) property to help support their children, who are not
members of the Tribe and, therefore, cannot inherit tribal property or
receive financial support from the Tribe.
Our Response: Based on information in the comment letter and our
independent mapping effort, the commenter's parcel appears to be part
of the Tribe's allotted trust lands south of Acanto Drive. According to
the Indian Canyons Master Plan, the parcel is targeted for residential
development at a maximum density of 2 units per ac (0.4 ha). Potential
impacts to this parcel are discussed in conjunction with other tribal
lands located in this area in Chapter 3 of the FEA.
Comment 26: One apparent (based on land property information)
tribal commenter asserted their parcel is currently approved for three
residences and the total value of the parcel is $3 million. They stated
designating the property as critical habitat would render it
undevelopable, resulting in a ``taking'' of the property.
Our Response: Based on information provided in the comment letter,
this parcel appears to be part of the Tribe's allotted trust lands
located south of Acanto Drive. Depending on its exact location, the
parcel lies in an area zoned for either two units per ac (0.4 ha) or
one unit per 40 ac (16 ha) consistent with the Indian Canyons Master
Plan. The commenter provides no detail on the approval of the 25-ac
(10-ha) property for three residences (presumably by the tribal
planning authorities) or whether development of the site is imminent.
Land for the 56-ac (23-ha) Eagle Canyon (Alturas) development project
located approximately 1 mi (1.6 km) northwest of the site will be
developed at a significantly higher density of four units per ac (0.4
ha) and sold for approximately $6.6 million in 2007 (based on
information obtained from the Riverside County Assessor). Thus, the
subject parcel, which is less than half the size, will be developed at
a significantly lower density, is farther from the City of Palm
Springs, and is likely to have a present value that is less than the $3
million value provided in the comment letter. Potential impacts to this
parcel are discussed in conjunction with other tribal lands located in
this area in Chapter 3 of the FEA.
Regarding the commenter's statement that designating the property
as critical habitat would result in a ``taking'' of the property, we
have determined that the designation of critical habitat for Casey's
June beetle does not pose significant takings implications for lands
within or affected by the designation (see
[[Page 58988]]
Takings--Executive Order 12630, below).
Comment 27: The Tribe stated that in the course of its ongoing
section 10(a)(1)(B) habitat conservation plan (HCP) permit consultation
process with the Service, the Service indicated if Casey's June beetle
is not covered by the draft HCP, it will ``exclude'' 2,160 ac (874 ha)
from HCP coverage. The Tribe noted this ``exclusion'' area is greater
than the area containing recent and historic Casey's June beetle
observation records and expressed concern that it includes areas never
before identified as potential habitat for this species. The Tribe
contended this HCP ``exclusion'' area is equivalent to expansion of
critical habitat to almost four times the proposed area and requests
the costs of this larger area be included in the economic analysis.
Our Response: The Tribe notified us in a letter dated October 6,
2010, that they suspended their pursuit of a section 10(a) permit for
their draft HCP (ACBCI 2010a, p. 1). The Tribe is continuing to
implement the draft HCP and will continue to protect and manage natural
resources within its jurisdiction (ACBCI 2010b, p. ES-1). This final
rule reflects the best available information we have at this time
regarding the areas that meet the definition of critical habitat. It is
possible that, as we learn more about the species, new areas may be
identified as potential habitat for the species. Critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not be required for recovery. Areas outside the
critical habitat designation will continue to be subject to
conservation actions that may be implemented under section 7(a)(1) and
to the regulatory protections afforded by the section 7(a)(2) jeopardy
standard and the section 9 take prohibition, as determined on the basis
of the best available information at the time of the action. 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, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Regarding Tribe's request that these areas be included in the
economic analysis, any additional costs related to any areas outside
the designation would result from the listing of the species, not
critical habitat designation. The focus of an economic analysis is the
incremental cost of critical habitat designation. Thus, the geographic
scope of the analysis is limited to the areas designated as critical
habitat. Furthermore, section 4(b)(1) of the Act specifically prohibits
the consideration of economic impacts in decisions concerning the
listing of a species. Therefore, impacts associated with species
listing to areas outside of proposed critical habitat are not included
in an economic analysis.
Public Comments on the Economic Analysis
Comment 28: One commenter stated the discount rate applied should
be reevaluated given current economic conditions.
Our Response: The U.S. Office of Management and Budget (OMB)
requires Federal agencies to report results using discount rates of 3
and 7 percent (see OMB, Circular A-4, 2003). Furthermore, most of the
costs presented in the DEA are based on current land values derived
from assessor's data and adjusted to current dollars using
retrospective price indexes. Thus, these values are not influenced by
the discount rate assumption.
Comment 29: One commenter stated the DEA did not clearly define how
it estimates potential costs associated with time delays, regulatory
uncertainty, and stigma.
Our Response: Chapter 2 of the DEA and subsequent FEA defines these
categories of cost for the purposes of the analysis. Data are not
readily available to quantify potential impacts from regulatory
uncertainty and stigma; thus they are only discussed qualitatively. For
residential and commercial development projects that may proceed with
modification, the value of potential time delays resulting from the
need for additional section 7 or CEQA review should be less than the
value of the property; otherwise the project would likely be cancelled.
Given the uncertainty regarding viable reasonable and prudent
alternatives, the DEA (and FEA) estimated an upper-bound impact
equivalent to the total value of the parcels. We discuss potential
delay costs to flood damage reduction projects qualitatively in Chapter
4 of the FEA because the data required to quantify impacts are
unavailable.
Comment 30: One commenter stated the DEA failed to acknowledge the
impact to species or the costs to conservation efforts that will accrue
due to any exclusions or failure to include additional habitat required
for species recovery.
Our Response: The commenter implied exclusion of lands from
critical habitat and failure to include additional lands (outside of
those proposed) would result in increased species'' recovery costs.
Data and models required to understand changes in recovery probability
are not readily available. Thus, such costs to the species of excluding
areas cannot be quantified at this time. The DEA evaluated regulatory
alternatives proposed by the Service, effectively the designation of
all or some combination of the proposed lands. Evaluation of costs or
benefits of designating lands outside the proposal are beyond the scope
of the economic analysis. Additionally, we do not believe that our
exclusion of 11 ac (4 ha) tribal trust reservation lands (see Tribal
Reservation Lands under Exclusions) is likely to result in increased
costs associated with species conservation.
Regarding possible failure to include additional habitat required
for recovery, the lands that we determined meet the definition of
critical habitat are what we consider essential for conservation of the
species. Therefore, we do not believe conservation costs would accrue
due to exclusion of lands from or non-inclusion of lands in critical
habitat designation.
Comment 31: One commenter stated the Service's economic analysis
framework ignores indirect and cumulative effects of critical habitat
designation. They asserted measurement of these types of impacts is
required under the National Environmental Policy Act (NEPA).
Our Response: Executive Order 12866, Regulatory Planning and
Review, and OMB's Circular A-4, which provides direction to Federal
agencies on the implementation of Executive Order 12866, represent the
framework used to estimate the costs and benefits of regulations
promulgated by all Federal agencies. They do not require the estimation
of indirect or cumulative impacts. Furthermore, section 4(b)(2) of the
Act is silent on the definition of ``economic impacts'' to be
considered prior to the designation of critical habitat. Thus, the
Service relies on the well-established and universally followed
principals laid out in OMB's Circular A-4.
Comment 32: One commenter pointed out the DEA noted, ``the City of
Palm Springs has not mandated changes in a project's design as a result
of critical habitat designation for other species.'' They asserted this
statement is inaccurate, and stated that nearly 15 years ago the City
of Palm Springs worked with the Service to revise plans for the
Mountain Falls, Palm Hills, and Shadowrock projects to support
restoration of the Peninsular bighorn sheep.
[[Page 58989]]
Our Response: Language has been added to the FEA to clarify that
the City of Palm Springs has not mandated changes in a project's design
to address listed species conservation without input from the Service
and the California Department of Fish and Game to facilitate these
changes. With regards to changes proposed by the wildlife agencies to
protect the Peninsular bighorn sheep, proposed changes were due to the
presence of the sheep, not critical habitat. Fifteen years ago, no
critical habitat was designated for the Peninsular bighorn sheep.
Comment 33: One commenter argued the economic analysis should rely
on the fair market value of affected parcels rather than the assessed
or adjusted values.
Our Response: Fair market value is determined through observed
sales transactions for parcels of land. Given the small size of the
designation and the recent economic downturn, sales of raw land within
critical habitat in the last year are rare. Therefore, as described in
Chapter 3, the economic analysis relies on assessed values, which are
based on the most recent sales transaction for the parcel and adjusted
for changes in the value of homes or commercial property in the region
since the date of that transaction using retrospective indices. We
believe the assessor's values represent the best available data.
Comment 34: One commenter asked how the estimate of $12,703,000 of
baseline costs referenced in the document announcing the availability
of the DEA was derived (75 FR 16046; March 31, 2010). A second
commenter stated that in assessing the costs of designating critical
habitat, the Service must look only at the incremental cost and should
not consider costs attributable to the listing alone. They commended
the Service for clearly separating baseline costs from the incremental
costs of the designation.
Our Response: This estimate is the total of the present value
impacts, assuming a 7 percent discount rate, presented in Exhibit ES-4
of the DEA. This Exhibit has been updated in the FEA based on new
information. We appreciate the second commenter's opinion and agree
that our methods were appropriate.
Comment 35: One commenter noted the DEA provides caveats to its
cost estimates describing the possibility that impacts may be reduced
if reasonable and prudent alternatives to specific projects are
possible. The commenter stated the report should instead simply
acknowledge that designation results in the complete loss of value of
the affected parcels.
Our Response: Given the high degree of uncertainty associated with
the potential outcome of specific future section 7 consultations or the
CEQA review process, the DEA made the simplifying assumption that
affected parcel value could be lost completely. This assumption is
intended to bound potential impacts to developable parcels. However, as
described in the report, the Service believes that if a project is
likely to adversely modify critical habitat it may be possible to
maintain the viability of the project through the development of
reasonable and prudent alternatives, resulting in impacts that are less
than projected.
Comment 36: One landowner stated they intend to build a home and a
guest house on their approximately 2.7-ac (1.1 ha) parcel located at
2540 Araby Drive. They stated they believe designation of critical
habitat would prevent their development plans from being realized and
lower the value of their land.
Our Response: Chapter 3 of the FEA was revised to include this
development project. The effect of critical habitat on development
plans depends on the presence of a Federal nexus, and in the absence of
a nexus, actions taken by the City of Palm Springs in response to the
designation. However, see Comment 11 above for further discussion of
this land; we ultimately did not include it in this final critical
habitat designation.
Comment 37: One commenter stated they own two lots that they are
holding for possible development of a small home for personal use. They
are opposed to critical habitat designation if it restricts their
ability to develop the lots. If development is precluded, they stated
they would like to sell the property to a conservation organization.
Our Response: A discussion of the value of these lots has been
added to Chapter 3 of the FEA.
Comment 38: One commenter stated the designation of private homes
and other developed areas within Smoke Tree Ranch is unprecedented.
They argued the designation of critical habitat would threaten the
``specter of Federal regulatory control over home maintenance,
landscaping, and other normal routine activities.'' They expressed
concern that despite the Service's textual exclusion of developed
areas, this exclusion does not apply to the areas around the homes or
future modifications to the existing structure.
Our Response: The activities described above are unlikely to
involve a Federal agency; thus section 7 consultation is not
anticipated. City of Palm Springs permitting is also unlikely to be
required for the routine activities. Future modifications to existing
structures could require approval from the City of Palm Springs'
planning or building departments. Given the existing conservation
easement in place at Smoke Tree Ranch to protect Casey's June beetle,
and the deed restrictions associated with individual homes, local
authorities are unlikely to require additional protection measures for
the beetle. Any additional protection measures would be due to the
presence of the listed beetle and therefore will occur regardless of
whether critical habitat is designated. The FEA discusses the data
needed to quantify these baseline impacts; however, data limitations
prevent the quantification of such impacts at this time.
Comment 39: One commenter stated the DEA underestimates potential
economic losses at Smoke Tree Ranch for two reasons. First, it omits
the value of undeveloped lots. Second, it ignores the potential
decreases in property value for developed parcels resulting from the
stigma associated with the designation and the inability of these
homeowners to make home improvements.
Our Response: The comment is not explicit as to whether the
referenced undeveloped lots are lots targeted as homesites that simply
have not been developed yet, or are parcels adjacent to homes that
comprise part of the home's value but are likely to remain undeveloped
to protect the viewshed and natural aesthetics of the community (view
lots). Chapter 3 of the FEA has been updated to include the value of
currently undeveloped lots that are not part of Smoke Tree Ranch's
conservation easement. This value represents an upper-bound estimate of
the potential impacts of restricting development because we are unable
to distinguish between sites targeted for development and lots likely
to remain undeveloped permanently to protect the viewshed. Potential
impacts are attributed to the baseline scenario based on the known
presence of the beetle.
It is possible the designation of critical habitat may stigmatize
existing homes, reducing their value, if potential buyers are concerned
they will not be able to modify or improve the existing structures due
to the designation. However, given the potential for existing stigma
associated with the presence of the beetle and current deed
restrictions, it is difficult to measure the potential incremental
decrease in value. Therefore, this issue is discussed qualitatively in
Chapter 3 of the FEA.
Comment 40: One commenter stated that the Gay and Lesbian
Association of Retiring Persons, Inc. (GLARP), a
[[Page 58990]]
nonprofit organization, has been in the planning stages of developing
senior housing in Palm Springs for the last 10 years. After several
unsuccessful attempts involving other parcels, the organization has
identified the Rim Rock property as their last remaining option. The
owner is prepared to sell to GLARP; however, designation of critical
habitat may affect the development potential of the parcel. Therefore,
GLARP objects to the designation of this property as Casey's June
beetle critical habitat, citing the hardship that will be caused to the
senior gays and lesbians, a protected class of California citizens.
Our Response: This additional information regarding the potential
use of the Wessman property has been added to Chapter 3 of the FEA.
This land is not included in this final critical habitat designation
due to lack of PCEs. See response to Comment 17 above for more
information.
Comment 41: One commenter stated their property, located at the
southwest corner of East Palm Canyon Drive and Matthew Drive (referred
to in the DEA as the ``Rainbow Vision'' site), has approval from the
City for development of a mixed-use retirement community. The original
recipient of the approvals was Rainbow Vision Palm Springs LLC;
however, through a series of transactions in 2008, the commenter became
the fee owner and acquired all development rights related to the
project. The commenter stated the value of the property reported in the
DEA is understated, because the property is fully entitled for
development.
Our Response: The FEA has been updated to reflect current ownership
information, development approvals, and the confirmed presence of the
beetle at the property. As described in Chapter 3, the DEA relied on
assessor's data to estimate property values. The assessments are based
on the market value of the property at the date of its most recent
acquisition and adjusted annually thereafter based on the California
Consumer Price Index. The commenter's property is comprised of two
parcels that were sold in 2008 and 2009. Thus, the market data relied
upon by the assessor is current and likely reflects the entitled status
of the property (project approval was granted by the Palm Springs City
Council on March 19, 2008). The landowner did not provide an alternate
estimate of the market value of the property; therefore, we relied on
the existing estimate presented in the DEA.
Comment 42: One commenter stated the DEA should consider the cost
of maintenance activities beyond sedimentation removal (e.g., grading,
erosion repair, vegetation removal) within the Palm Canyon Wash channel
and levee system.
Our Response: Chapter 4 of the FEA includes language indicating
other maintenance activities may be affected by the critical habitat
designation, but detailed information about these activities is not
available to calculate cost estimates.
Comment 43: In relation to the flood control projects, one
commenter expressed concern the DEA did not provide Federal decision
makers a complete and accurate estimate of the incremental costs
associated with the proposed critical habitat designation. They argued
the DEA did not evaluate scenarios that could occur if flooding and
scouring events within the maintained Palm Canyon Wash channel and
levee system periodically eliminate suitable habitat for the beetle and
preclude beetle occupancy and section 7 consultations are still
required due to the critical habitat designation.
Our Response: While it is true that flooding and scouring events
within the maintained Palm Canyon Wash channel and levee system could
periodically eliminate beetle occupancy, we believe these events would
not eliminate suitable habitat nor preclude recolonization during the
next active beetle season following a given event. We believe this
area, regardless of periodic flooding and scouring events is occupied
because within the area: (1) There is consistently high population
abundance; (2) there are consistent positive survey findings; and (3)
the location of the wash at the center of the species' current range
and known population distribution. Therefore, the costs associated with
projects within Palm Canyon Wash are appropriately considered baseline
costs associated with listing, and not critical habitat designation.
Comment 44: One commenter stated the DEA is based on the inaccurate
assumption that all Palm Canyon Wash maintenance activities would
always involve a Federal nexus under section 404 of the Clean Water
Act. The commenter also pointed out the proposed critical habitat
designation has the potential to increase the costs of State and local
approvals (such as CEQA) associated with maintenance activities that
are similar to potential increased Federal regulatory costs.
Our Response: Chapter 4 of the FEA clarifies that some Palm Canyon
Wash maintenance activities may not have a Federal nexus. Although
unlikely, where no Federal nexus exists, the City of Palm Springs may
request project modifications via its review under CEQA. The CEQA
review process may be affected by the critical habitat designation in a
manner similar to that for section 7 consultation.
Comment 45: Two commenters stated the DEA did not evaluate the
potential increased flood insurance cost, and the costs associated with
increased flood risks and damages, if critical habitat designation
delayed flood damage reduction activities. They suggested these costs
may be reflected as reduced property values.
Our Response: Chapter 4 of the FEA presents the cost of
sedimentation removal as the low-end estimate of the lost value that
would result if the Riverside County FCWCD is not able to carry out
maintenance activities. It is likely the lost value is higher. This
value may include increased flood insurance cost and increased flood
risks and damages, but data required to quantify these costs are not
readily available. Similarly, the FEA states that if the Palm Springs
Master Drainage Plan (MDP) Line 41, Stage 3 Flood Control Project
cannot move forward then increased risk to health and human safety from
floods and increase cost of flood insurance may result. Again, data do
not exist to quantify these costs.
Comment 46: One commenter described possible mitigation measures
that may be required for Palm Canyon Wash maintenance activities to
avoid adverse modification.
Our Response: Chapter 4 focuses specifically on sedimentation
removal within Palm Canyon Wash. The FEA assumes that the Riverside
County FCWCD will be prevented from carrying out sedimentation removal
due to presence of the beetle and presents the cost of sedimentation
removal as the low-end estimate of the lost value of this activity. The
FEA notes it is possible the Service will find complete avoidance of
sedimentation removal is not necessary and may recommend reasonable and
prudent alternatives or other conservation measures to avoid adverse
modification. Measures requested by the Service may be similar to those
outlined in the MDP Line 41, Stage 3 Flood Control Project, including
replacement of permanently impacted suitable habitat at a 2:1 ratio
with offsite habitat creation or enhancement, or a mitigation fee of
$5,730 per ac (0.4 ha). The Riverside County FCWCD suggested the
sedimentation removal project could permanently impact 47 ac (19 ha) of
habitat, resulting in the need for a 94-ac (38-ha) mitigation area or
approximately $269,000 in mitigation fees.
Comment 47: One commenter took issue with the fact that the DEA
[[Page 58991]]
assumed all costs associated with the MDP Line 41, Stage 3 Flood
Control Project, except for a portion of the administrative costs of
consultation related to adding adverse modification to the
consultation, are considered baseline.
Our Response: Because a Federal nexus is present and the project
location has had positive surveys for the beetle in the past, all
costs, except for a portion of the administrative costs of consultation
related to adding adverse modification to the consultation, are
considered baseline. The FEA notes that the entire project may not fall
under the jurisdiction of the U.S. Army Corps of Engineers, but similar
impacts would likely be felt as the result of challenges to previously
prepared CEQA documents. Based on the best available scientific
information, including several recent studies and multiple years of
positive surveys, the Service considers all of Palm Canyon Wash to be
entirely occupied (see New Species Information above), and will
continue to view this area as occupied; thus costs are considered
baseline (see our responses to Comments 22 and 46 above).
Comment 48: One commenter stated the potential slowing of
development as a result of critical habitat designation and the
corresponding reduction in infrastructure needs has an economic benefit
of reducing greenhouse gas emission. They argued this benefit should be
assessed in the FEA.
Our Response: Whether the proposed designation will have a
measurable impact on greenhouse gas emissions is subject to
considerable uncertainty. First, many of the development projects
discussed are already sited in areas with existing infrastructure; thus
new roads and utilities may not be required. Furthermore, certain
projects may find alternate locations, redistributing emissions
geographically without producing a net reduction. Finally, the Service
has stated previously that the underlying causes of climate change are
complex global issues that are beyond the scope of the Act (see 74 FR
56070; October 29, 2009). Thus, the potential for such benefits is not
discussed in the FEA.
Comment 49: One commenter stated the designation of tribal
reservation lands as critical habitat may encourage the Tribe to
relocate these projects to other reservation lands where housing and
commercial buildings can be constructed more efficiently. They
suggested that, alternatively, existing housing in the area could be
purchased at a deep discount in the current economic climate. They
asserted that in failing to look at these alternatives, estimates in
the DEA of foregone economic value are grossly inaccurate.
Our Response: Regardless of whether other options are available to
the Tribe, potentially removing the existing development potential
associated with designated parcels represents a real loss of resource
value that should be quantified in the analysis. Furthermore, the
majority of the reservation lands proposed for designation (75 percent)
are either allotted trust lands held in trust for the benefit of
individual tribal members (or their heirs), or fee-title lands owned by
individuals who may or may not be members of the Tribe. Thus, these
individuals may not have alternative reservation lands available to
them, or their substitution options may be limited and already slated
for development (see Chapter 3 of the FEA and Comment 23 above). In
these cases, potential losses estimated in the DEA are unlikely to be
offset. Furthermore, these parcels are often seen as an investment to
be sold to a developer, rather than as a source of housing for tribal
members. To make members whole, the Tribe would need to provide
alternative parcels of land of equal value. The development value of
the designated parcel is still lost to society, even though the impact
has been redistributed from individuals to the tribal entity. Finally,
we assume the Tribe is a rational economic actor whose current
development plans represent the most efficient allocation of resources.
Thus, if alternative sites are developed, these are likely to be
second-best options. These alternative parcels may experience an
increase in value; however, that increase is not likely to completely
compensate for the lost value of the designated parcels. The data
required to estimate such net effects are not readily available.
Comment 50: One commenter stated the DEA failed to include
consideration of all benefits that would result from critical habitat
designation, such as the preservation of open space; protecting and
improving water quality by maintaining the alluvial fan in its natural
state; preservation of natural habitat for other species, including
those displaced by global warming; prevention of development in flood
prone areas; and reduction of hazards (e.g., wildfires, erosion)
associated with development on the alluvial fan. They asserted the DEA
assumed the market accounts for these benefits and suggested these
benefits should be assessed and quantified where possible or otherwise
included in a detailed qualitative analysis.
Our Response: As described in Chapter 5 of the DEA, the purpose of
critical habitat is to support the conservation of Casey's June beetle.
The data required to estimate and value in monetary terms incremental
changes in the probability of conservation resulting from the
designation are not available. Depending on the project modifications
ultimately implemented as a result of the regulation, other ancillary
benefits that are not the stated objective of critical habitat (such as
increasing the value of homes adjacent to preserved habitat or
preserving habitat for other non-listed species) may occur. We do not
assume that these benefits have been accounted for in development
decisions made by the market; rather, these benefits are discussed
qualitatively. The FEA (5.1.111) has been revised to include discussion
of the new ancillary benefit categories referenced in the comment.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order (E.O.) 12866. OMB bases its determination upon the following four
criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (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 (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.
[[Page 58992]]
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. In this final rule, we are certifying that
the critical habitat designation for Casey's June beetle will not have
a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
According to the Small Business Administration, 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 concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g.,
development). We apply the ``substantial number'' test individually to
each industry to determine if certification is appropriate. However,
the SBREFA does not explicitly define ``substantial number'' or
``significant economic impact.'' Consequently, to assess whether a
``substantial number'' of small entities is affected by this
designation, this analysis considers the relative number of small
entities likely to be impacted in an area. In some circumstances,
especially with critical habitat designations of limited extent, we may
aggregate across all industries and consider whether the total number
of small entities affected is substantial. In estimating the number of
small entities potentially affected, we also consider whether their
activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect Casey's June beetle. Federal agencies also must consult
with us if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities (see Application of the
``Adverse Modification'' Standard section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from implementation of conservation actions related to the
designation of critical habitat for Casey's June beetle. The analysis
identifies the estimated incremental impacts associated with the
proposed rulemaking, as described in Appendix A of the analysis, and
evaluates the potential for economic impacts related to activity
categories including residential and commercial development, tribal
activities, flood control activities, and recreational activities. The
analysis concludes that the incremental impacts resulting from this
rulemaking that may be borne by small businesses will be associated
only with development. Incremental impacts are either not expected for
the other types of activities considered or, if expected, will not be
borne by small entities.
As discussed in Appendix A of the final economic analysis, the
largest impacts of the proposed rule on small businesses would
potentially result indirectly from CEQA compliance associated with the
identified development projects. In the 20-year time frame for the
analysis, one developer (the analysis identifies two; however, we did
not include the lands owned by one of these companies in this final
critical habitat designation) may experience significant impacts. The
one-time costs resulting from compliance with CEQA, including
administrative time spent by the businesses, compensation costs, and
the value of time delays, total approximately $400,000 (7 percent
discount rate present value impacts). These costs result from complete
avoidance of habitat under CEQA that could occur even in the absence of
critical habitat designation. The final economic analysis did not
specify if this business qualifies as a small business; however, as it
is the only business that may be significantly affected, the number of
small entities significantly affected is not substantial.
In summary, we considered whether the rule will result in a
significant economic impact on a substantial number of small entities.
For the above reasons and based on currently available information, we
conclude that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for Casey's June
beetle 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, and Use--Executive Order 13211
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use.
Executive Order 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. The OMB's guidance for
implementing this Executive Order outlines nine outcomes that may
constitute ``a significant adverse effect'' when compared to not taking
the regulatory action under consideration. The final economic analysis
finds that none of these criteria are relevant to this analysis. Thus,
based on information in the economic analysis, energy-related impacts
associated with Casey's June beetle conservation activities within the
critical habitat designation are not expected. 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), 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
[[Page 58993]]
``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 does not apply, nor does
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The FEA concludes incremental impacts may occur due to project
modifications that may need to be made for development and flood
control activities; however, these are not expected to affect small
governments. Incremental impacts are expected to be borne by the
Riverside County FCWCD, which is not considered a small government
based on the county's population. Consequently, we do not believe that
the critical habitat designation will significantly or uniquely affect
small government entities. As such, a Small Government Agency Plan is
not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating 587 ac (237 ha) of lands in Riverside County, California,
as critical habitat for Casey's June beetle in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this designation of critical habitat for Casey's June
beetle does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A Federalism 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 California. The designation may
have some benefit to State and local governments because the areas that
contain the features essential to the conservation of the species are
more clearly defined, and the primary constituent elements of the
habitat necessary to the conservation of Casey's June beetle 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 (rather than having them 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 requirements of
sections 3(a) and 3(b)(2) of the Order. We have designated critical
habitat in accordance with the provisions of the Act. This final rule
uses standard property descriptions and identifies the features
essential to the conservation of the species within the designated
areas to assist the public in understanding the habitat needs of
Casey's June beetle.
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.). The rule does not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses under 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 assertion was upheld by the Circuit Court of
the United States for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d
[[Page 58994]]
1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175 (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 federally recognized
tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal reservation 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 identified tribal reservation
lands that meet the definition of critical habitat for Casey's June
beetle. There has been a substantial amount of government-to-government
consultation between the Tribe and Service on developing the draft
Tribal HCP and this rulemaking process for Casey's June beetle.
Although the Tribe informed us in an October 28, 2008, letter that they
removed Casey's June beetle from the list of species addressed in the
draft Tribal HCP, they indicated they will ``continue to informally
coordinate with the Service regarding this species where it occurs on
the Reservation.'' The Tribe stated they are deferring to the Service
to allow ``the Service to take the lead in addressing how to
effectively conserve and protect this species'' (ACBCI 2008, p. 1).
Although the Tribe has suspended their pursuit of a section 10(a)
permit (ACBCI 2010a, p. 1), they are continuing to implement the draft
HCP and will continue to protect and manage natural resources within
its jurisdiction (ACBCI, 2010a, p. 1; ACBCI 2010b, p. ES-1). We will
continue to work cooperatively with the Tribe on efforts to conserve
Casey's June beetle. We believe the exclusion of tribal trust
reservation lands from critical habitat will help preserve and
strengthen the partnership we have developed with the Agua Caliente
Band of Cahuilla Indians, reinforce those relations we are building
with other tribes, and foster future partnerships and development of
future management plans with both Agua Caliente Band of Cahuilla
Indians and other tribes throughout the United States. At this time the
Secretary is exercising his discretion to exclude tribal trust lands
(i.e., non-fee, non-allotted lands) from critical habitat (see Tribal
Reservation Lands discussion under Exclusions, above).
References Cited
A complete list of all references cited in this rulemaking is
available on http://www.regulations.gov and upon request from the Field
Supervisor, Carlsbad Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT section).
Authors
The primary authors of this notice are staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT
section).
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; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Beetle, Casey's
June'', in alphabetical order under ``INSECTS,'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Beetle, Casey's June................. Dinacoma caseyi......... U.S.A. (CA) Entire................. E 793 17.95(i) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (i) by adding an entry for ``Casey's
June Beetle (Dinacoma caseyi),'' in the same alphabetical order that
the species appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
Casey's June Beetle (Dinacoma caseyi)
(1) The critical habitat unit is depicted for Riverside County in
California on the map below.
(2) Within this area, the primary constituent elements of critical
habitat for Casey's June beetle are the habitat components that
provide:
(i) Soils of the Carsitas (CdC) gravelly sand and Riverwash (RA)
series, or inclusions of Carsitas cobbly sand (ChC) series soils, or
inclusions of Myoma fine sands (MaB) or Coachella fine sands (CpA)
within CdC soils, at or below 620 ft (189 m) in elevation, associated
with washes and alluvial fans deposited on 0 to 9 percent slopes to
provide space for population growth and reproduction, moisture, and
food sources; and
(ii) Predominantly native desert vegetation, to provide shelter
from traffic-related mortality and food for the species.
(3) Critical habitat does not include lands covered by manmade
structures,
[[Page 58995]]
such as buildings, aqueducts, airports, and roads, existing on the
effective date of this rule and not containing one or more of the
primary constituent elements.
(4) Critical habitat map unit. Data layers defining the map unit
were created on a base of USGS 7.5' quadrangles, and the critical
habitat unit was then mapped using Universal Transverse Mercator (UTM)
coordinates zone 11, North American Datum (NAD) 1983 coordinates.
(5) Note: Map of critical habitat for Casey's June beetle follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR22SE11.006
BILLING CODE 4310-55-C
[[Page 58996]]
(6) Palm Springs: Palm Canyon Wash, Riverside County, California.
From USGS 1:24,000 quadrangles Palm Springs and Cathedral City, land
bounded by the following Universal Transverse Mercator (UTM) North
American Datum of 1983 (NAD83) coordinates (E, N): (E, N): 546545,
3740363; 546556, 3740362; 546566, 3740362; 546577, 3740362; 546587,
3740362; 546595, 3740361; 546603, 3740360; 546608, 3740360; 546614,
3740359; 546625, 3740360; 546637, 3740361; 546650, 3740363; 546657,
3740362; 546667, 3740364; 546668, 3740364; 546674, 3740364; 546680,
3740362; 546700, 3740357; 546722, 3740353; 546734, 3740350; 546746,
3740348; 546756, 3740350; 546764, 3740355; 546767, 3740358; 546768,
3740359; 546789, 3740351; 546791, 3740349; 546791, 3740343; 546795,
3740334; 546799, 3740329; 546805, 3740325; 546810, 3740322; 546821,
3740320; 546823, 3740320; 546833, 3740314; 546865, 3740301; 546941,
3740289; 546971, 3740284; 546980, 3740284; 547001, 3740284; 547022,
3740282; 547038, 3740280; 547058, 3740277; 547075, 3740275; 547086,
3740279; 547092, 3740281; 547093, 3740281; 547104, 3740290; 547115,
3740290; 547133, 3740287; 547158, 3740281; 547169, 3740278; 547170,
3740278; 547175, 3740272; 547183, 3740257; 547192, 3740251; 547199,
3740249; 547199, 3740249; 547241, 3740242; 547291, 3740233; 547343,
3740225; 547345, 3740225; 547360, 3740231; 547371, 3740237; 547382,
3740231; 547395, 3740224; 547408, 3740219; 547425, 3740213; 547442,
3740210; 547449, 3740209; 547464, 3740209; 547473, 3740207; 547482,
3740202; 547488, 3740193; 547488, 3740183; 547480, 3740159; 547474,
3740137; 547473, 3740133; 547468, 3740120; 547455, 3740117; 547446,
3740116; 547436, 3740123; 547418, 3740129; 547397, 3740136; 547380,
3740141; 547354, 3740148; 547344, 3740151; 547323, 3740159; 547285,
3740167; 547274, 3740168; 547267, 3740170; 547212, 3740182; 547147,
3740193; 547092, 3740199; 547017, 3740206; 546951, 3740207; 546942,
3740207; 546890, 3740206; 546840, 3740206; 546782, 3740206; 546740,
3740205; 546722, 3740205; 546721, 3740204; 546717, 3740204; 546693,
3740203; 546650, 3740201; 546584, 3740199; 546513, 3740197; 546387,
3740193; 546325, 3740191; 546220, 3740191; 546158, 3740190; 546119,
3740188; 546081, 3740185; 546024, 3740181; 546000, 3740177; 545991,
3740176; 545976, 3740173; 545955, 3740169; 545938, 3740168; 545908,
3740158; 545884, 3740153; 545855, 3740146; 545821, 3740135; 545781,
3740122; 545754, 3740111; 545748, 3740109; 545743, 3740106; 545742,
3740106; 545717, 3740096; 545699, 3740088; 545681, 3740081; 545664,
3740073; 545646, 3740064; 545629, 3740055; 545612, 3740046; 545595,
3740037; 545578, 3740028; 545550, 3740010; 545533, 3740000; 545516,
3739989; 545499, 3739977; 545483, 3739965; 545467, 3739953; 545450,
3739941; 545435, 3739929; 545431, 3739926; 545427, 3739923; 545425,
3739921; 545419, 3739916; 545404, 3739903; 545388, 3739889; 545373,
3739876; 545359, 3739862; 545344, 3739848; 545330, 3739833; 545330,
3739833; 545330, 3739833; 545330, 3739833; 545330, 3739833; 545329,
3739833; 545329, 3739833; 545329, 3739833; 545329, 3739832; 545329,
3739832; 545329, 3739832; 545329, 3739832; 545329, 3739832; 545329,
3739832; 545329, 3739832; 545328, 3739832; 545326, 3739830; 545306,
3739812; 545305, 3739811; 545305, 3739808; 545303, 3739801; 545297,
3739796; 545297, 3739796; 545285, 3739787; 545276, 3739771; 545272,
3739754; 545271, 3739750; 545269, 3739731; 545260, 3739722; 545250,
3739712; 545248, 3739704; 545243, 3739689; 545232, 3739657; 545229,
3739650; 545229, 3739649; 545223, 3739639; 545201, 3739601; 545201,
3739601; 545180, 3739575; 545179, 3739573; 545178, 3739572; 545171,
3739562; 545155, 3739540; 545149, 3739536; 545146, 3739535; 545142,
3739533; 545139, 3739528; 545138, 3739523; 545137, 3739517; 545137,
3739509; 545138, 3739501; 545145, 3739496; 545152, 3739491; 545152,
3739491; 545153, 3739490; 545155, 3739477; 545155, 3739477; 545151,
3739474; 545145, 3739470; 545135, 3739465; 545129, 3739462; 545126,
3739460; 545122, 3739454; 545121, 3739453; 545121, 3739453; 545120,
3739449; 545120, 3739444; 545120, 3739437; 545120, 3739430; 545117,
3739423; 545117, 3739423; 545116, 3739416; 545115, 3739409; 545114,
3739408; 545108, 3739398; 545106, 3739396; 545094, 3739353; 545055,
3739334; 545046, 3739330; 545045, 3739330; 545045, 3739334; 545023,
3739334; 545023, 3739331; 545023, 3739330; 545002, 3739330; 544997,
3739330; 544995, 3739331; 544990, 3739330; 544978, 3739327; 544965,
3739325; 544941, 3739321; 544929, 3739319; 544924, 3739318; 544921,
3739317; 544921, 3739320; 544915, 3739326; 544911, 3739332; 544909,
3739334; 544895, 3739331; 544878, 3739327; 544868, 3739321; 544864,
3739309; 544860, 3739295; 544821, 3739281; 544792, 3739270; 544775,
3739264; 544767, 3739261; 544754, 3739256; 544751, 3739253; 544748,
3739249; 544726, 3739226; 544725, 3739226; 544722, 3739226; 544718,
3739224; 544709, 3739219; 544709, 3739218; 544703, 3739211; 544701,
3739200; 544699, 3739186; 544697, 3739181; 544691, 3739169; 544669,
3739152; 544642, 3739130; 544576, 3739067; 544533, 3739029; 544487,
3739002; 544487, 3739002; 544485, 3739001; 544435, 3738976; 544434,
3738976; 544433, 3738975; 544405, 3738943; 544388, 3738897; 544388,
3738896; 544375, 3738851; 544345, 3738778; 544317, 3738731; 544302,
3738717; 544285, 3738701; 544273, 3738690; 544272, 3738689; 544249,
3738644; 544248, 3738643; 544246, 3738638; 544239, 3738620; 544230,
3738596; 544216, 3738578; 544186, 3738560; 544155, 3738551; 544154,
3738550; 544128, 3738526; 544127, 3738525; 544118, 3738499; 544109,
3738474; 544107, 3738468; 544087, 3738437; 544057, 3738388; 544010,
3738316; 543957, 3738246; 543954, 3738243; 543942, 3738229; 543906,
3738190; 543901, 3738185; 543900, 3738184; 543881, 3738154; 543860,
3738120; 543858, 3738117; 543844, 3738075; 543830, 3738015; 543819,
3737992; 543800, 3737955; 543799, 3737953; 543775, 3737922; 543774,
3737920; 543731, 3737863; 543688, 3737825; 543687, 3737825; 543685,
3737821; 543678, 3737810; 543671, 3737798; 543667, 3737791; 543667,
3737785; 543667, 3737752; 543667, 3737739; 543667, 3737739; 543659,
3737692; 543643, 3737662; 543597, 3737610; 543568, 3737578; 543549,
3737550; 543517, 3737511; 543469, 3737470; 543468, 3737469; 543451,
3737446; 543451, 3737446; 543451, 3737446; 543452, 3737443; 543457,
3737423; 543455, 3737425; 543452, 3737426; 543447, 3737427; 543440,
3737427; 543427, 3737426; 543412, 3737422; 543411, 3737423; 543411,
3737424; 543411, 3737424; 543411, 3737425; 543411, 3737426; 543411,
3737426; 543411, 3737427; 543410, 3737427; 543410, 3737428; 543410,
3737429; 543410, 3737429; 543410, 3737430; 543410, 3737430; 543410,
3737431; 543410, 3737432; 543410, 3737432; 543409, 3737433; 543409,
3737433; 543409, 3737434; 543409, 3737435; 543409, 3737435; 543409,
3737436; 543409, 3737436; 543409, 3737437; 543409, 3737438; 543408,
3737438; 543408, 3737439; 543408, 3737439; 543408, 3737440; 543408,
3737441; 543408, 3737441; 543408, 3737442; 543408, 3737442; 543408,
[[Page 58997]]
3737443; 543408, 3737444; 543408, 3737444; 543408, 3737445; 543408,
3737445; 543408, 3737446; 543407, 3737447; 543407, 3737447; 543407,
3737448; 543397, 3737458; 543394, 3737467; 543390, 3737463; 543383,
3737459; 543380, 3737458; 543369, 3737450; 543342, 3737385; 543340,
3737378; 543338, 3737373; 543333, 3737365; 543333, 3737365; 543333,
3737365; 543330, 3737362; 543309, 3737335; 543301, 3737267; 543279,
3737068; 543272, 3737011; 543272, 3737009; 543251, 3736822; 543241,
3736729; 543227, 3736600; 543203, 3736387; 543200, 3736359; 543198,
3736326; 543198, 3736324; 543194, 3736290; 543190, 3736255; 543183,
3736201; 543190, 3736202; 543191, 3736202; 543212, 3736202; 543221,
3736202; 543257, 3736202; 543284, 3736202; 543274, 3736190; 543264,
3736177; 543262, 3736168; 543258, 3736159; 543254, 3736142; 543251,
3736128; 543248, 3736115; 543245, 3736105; 543243, 3736097; 543239,
3736090; 543223, 3736070; 543221, 3736069; 543220, 3736069; 543217,
3736072; 543213, 3736078; 543209, 3736085; 543204, 3736095; 543199,
3736108; 543195, 3736126; 543193, 3736134; 543186, 3736125; 543137,
3736125; 543126, 3736126; 543073, 3736129; 543050, 3736140; 543052,
3736162; 543043, 3736213; 543039, 3736233; 543043, 3736266; 543051,
3736290; 543051, 3736303; 543047, 3736305; 543035, 3736300; 543004,
3736278; 542996, 3736272; 542960, 3736231; 542952, 3736217; 542938,
3736200; 542928, 3736188; 542914, 3736182; 542905, 3736178; 542887,
3736166; 542865, 3736139; 542835, 3736084; 542831, 3736070; 542825,
3736060; 542816, 3736052; 542782, 3736031; 542740, 3735997; 542721,
3735985; 542720, 3736121; 542720, 3736145; 542720, 3736145; 542720,
3736145; 542720, 3736145; 542720, 3736148; 542720, 3736149; 542720,
3736156; 542720, 3736156; 542720, 3736157; 542720, 3736157; 542720,
3736159; 542720, 3736159; 542720, 3736159; 542720, 3736159; 542720,
3736160; 542720, 3736160; 542720, 3736160; 542720, 3736160; 542720,
3736160; 542720, 3736160; 542720, 3736160; 542720, 3736161; 542720,
3736161; 542720, 3736161; 542720, 3736161; 542720, 3736161; 542720,
3736161; 542720, 3736162; 542720, 3736162; 542720, 3736162; 542720,
3736162; 542720, 3736162; 542720, 3736162; 542720, 3736162; 542720,
3736163; 542720, 3736163; 542720, 3736163; 542720, 3736163; 542720,
3736163; 542720, 3736163; 542720, 3736164; 542720, 3736164; 542720,
3736164; 542720, 3736164; 542720, 3736164; 542720, 3736164; 542720,
3736165; 542720, 3736165; 542720, 3736165; 542720, 3736165; 542720,
3736165; 542720, 3736165; 542720, 3736165; 542720, 3736166; 542720,
3736166; 542720, 3736166; 542720, 3736166; 542720, 3736166; 542720,
3736200; 542720, 3736200; 542708, 3736200; 542528, 3736200; 542527,
3736200; 542521, 3736221; 542520, 3736225; 542519, 3736226; 542521,
3736246; 542521, 3736246; 542523, 3736250; 542523, 3736250; 542521,
3736276; 542519, 3736289; 542520, 3736345; 542520, 3736398; 542520,
3736452; 542520, 3736495; 542520, 3736519; 542520, 3736556; 542522,
3736552; 542539, 3736520; 542551, 3736502; 542564, 3736487; 542571,
3736481; 542585, 3736499; 542613, 3736567; 542720, 3736563; 542724,
3736563; 542726, 3736484; 542753, 3736484; 542760, 3736478; 542778,
3736473; 542796, 3736471; 542817, 3736468; 542830, 3736464; 542840,
3736455; 542854, 3736456; 542858, 3736461; 542859, 3736471; 542857,
3736477; 542853, 3736482; 542839, 3736545; 542829, 3736586; 542853,
3736572; 542869, 3736559; 542867, 3736545; 542907, 3736518; 542915,
3736504; 542923, 3736484; 542923, 3736604; 542879, 3736605; 542879,
3736647; 542879, 3736656; 542881, 3736805; 543095, 3736807; 543121,
3736807; 543121, 3736839; 543120, 3736951; 543119, 3737008; 543119,
3737008; 543119, 3737008; 543119, 3737008; 542903, 3737006; 542893,
3737009; 542876, 3737008; 542876, 3737108; 542876, 3737108; 542776,
3737108; 542776, 3737182; 542784, 3737185; 542796, 3737201; 542797,
3737207; 542875, 3737208; 543116, 3737210; 543116, 3737210; 543144,
3737219; 543159, 3737223; 543180, 3737239; 543185, 3737243; 543195,
3737251; 543203, 3737257; 543210, 3737263; 543221, 3737293; 543230,
3737318; 543248, 3737381; 543248, 3737382; 543249, 3737388; 543254,
3737405; 543257, 3737413; 543261, 3737426; 543277, 3737463; 543283,
3737475; 543287, 3737481; 543289, 3737484; 543306, 3737511; 543317,
3737526; 543339, 3737555; 543351, 3737575; 543370, 3737602; 543384,
3737619; 543404, 3737637; 543417, 3737649; 543433, 3737662; 543445,
3737672; 543465, 3737689; 543483, 3737709; 543504, 3737733; 543514,
3737743; 543526, 3737760; 543535, 3737773; 543538, 3737782; 543541,
3737820; 543534, 3737820; 543538, 3737828; 543541, 3737837; 543591,
3737900; 543601, 3737906; 543607, 3737914; 543614, 3737917; 543618,
3737924; 543619, 3737931; 543625, 3737936; 543634, 3737949; 543646,
3737960; 543657, 3737971; 543666, 3737979; 543672, 3737989; 543676,
3738002; 543677, 3738009; 543678, 3738011; 543678, 3738049; 543678,
3738056; 543678, 3738093; 543678, 3738157; 543677, 3738225; 543677,
3738425; 543677, 3738448; 543722, 3738487; 543773, 3738532; 543894,
3738634; 543901, 3738634; 543904, 3738634; 543904, 3738672; 543904,
3738674; 543904, 3738701; 543903, 3738701; 543902, 3738718; 543880,
3738718; 543838, 3738717; 543818, 3738717; 543675, 3738715; 543675,
3738722; 543675, 3738752; 543674, 3738772; 543672, 3738999; 543672,
3739066; 543669, 3739139; 543669, 3739148; 543668, 3739178; 543668,
3739208; 543666, 3739643; 543665, 3739807; 543665, 3739844; 543665,
3739922; 543670, 3739922; 543701, 3739922; 543710, 3739923; 543714,
3739923; 543716, 3739923; 543727, 3739935; 543733, 3739942; 543738,
3739947; 543736, 3739948; 543712, 3739948; 543711, 3739973; 543726,
3739973; 543730, 3739983; 543731, 3739986; 543734, 3739995; 543742,
3739995; 543769, 3739994; 544024, 3739989; 544059, 3739988; 544075,
3739987; 544170, 3739985; 544186, 3739985; 544185, 3739987; 544194,
3739985; 544278, 3739984; 544415, 3739983; 544469, 3739983; 544469,
3739929; 544469, 3739893; 544470, 3739837; 544470, 3739828; 544472,
3739646; 544473, 3739430; 544473, 3739324; 544473, 3739183; 544473,
3739148; 544759, 3739426; 544762, 3739429; 544763, 3739430; 544807,
3739471; 544816, 3739479; 544873, 3739533; 544882, 3739542; 544892,
3739550; 544892, 3739544; 544901, 3739559; 544911, 3739570; 544917,
3739576; 544924, 3739583; 544932, 3739591; 544953, 3739613; 544977,
3739637; 544994, 3739655; 545180, 3739837; 545213, 3739869; 545217,
3739872; 545241, 3739901; 545248, 3739907; 545260, 3739917; 545287,
3739941; 545296, 3739954; 545388, 3740038; 545533, 3740135; 545536,
3740136; 545536, 3740137; 545537, 3740148; 545535, 3740184; 545535,
3740207; 545539, 3740233; 545566, 3740232; 545590, 3740233; 545605,
3740233; 545616, 3740232; 545651, 3740233; 545681, 3740233; 545716,
3740233; 545727, 3740233; 545731, 3740233; 545740, 3740233; 545742,
3740233; 545757, 3740236; 545771, 3740240; 545782, 3740241; 545785,
3740241; 545785, 3740242; 545785, 3740242; 545794, 3740245; 545799,
3740246; 545809, 3740249; 545840, 3740256; 545849, 3740256; 545861,
[[Page 58998]]
3740259; 545892, 3740266; 545912, 3740270; 545914, 3740271; 545925,
3740273; 545965, 3740281; 545990, 3740285; 546011, 3740288; 546052,
3740294; 546077, 3740299; 546094, 3740309; 546108, 3740317; 546117,
3740321; 546139, 3740332; 546156, 3740335; 546170, 3740337; 546170,
3740337; 546179, 3740338; 546186, 3740337; 546188, 3740340; 546188,
3740340; 546195, 3740343; 546203, 3740344; 546210, 3740346; 546217,
3740347; 546225, 3740348; 546231, 3740347; 546240, 3740349; 546249,
3740352; 546256, 3740354; 546263, 3740355; 546270, 3740356; 546275,
3740359; 546281, 3740357; 546289, 3740359; 546295, 3740357; 546297,
3740355; 546304, 3740352; 546323, 3740353; 546328, 3740353; 546328,
3740353; 546332, 3740353; 546474, 3740353; 546476, 3740354; 546484,
3740353; 546492, 3740354; 546500, 3740359; 546505, 3740367; 546510,
3740372; 546515, 3740374; 546528, 3740370; 546528, 3740368; 546534,
3740366; thence returning to 546545, 3740363; continuing to land
bounded by 542904, 3737623; 542904, 3737612; 542941, 3737612; 543061,
3737613; 543075, 3737613; 543075, 3737581; 543075, 3737544; 543075,
3737508; 543075, 3737469; 543076, 3737429; 543076, 3737420; 542976,
3737420; 542975, 3737438; 542975, 3737485; 542975, 3737511; 542975,
3737511; 542875, 3737511; 542875, 3737511; 542875, 3737545; 542875,
3737584; 542875, 3737600; 542875, 3737600; 542875, 3737622; 542875,
3737623; thence returning to 542904, 3737623; continuing to land
bounded by 546332, 3739429; 546332, 3739418; 546331, 3739399; 546328,
3739390; 546324, 3739383; 546313, 3739372; 546302, 3739363; 546286,
3739353; 546272, 3739349; 546263, 3739347; 546247, 3739346; 546210,
3739346; 546162, 3739346; 546161, 3739346; 546160, 3739346; 546155,
3739348; 546155, 3739349; 546154, 3739405; 546154, 3739424; 546157,
3739424; 546164, 3739425; 546173, 3739424; 546190, 3739420; 546205,
3739417; 546219, 3739417; 546231, 3739418; 546236, 3739419; 546244,
3739420; 546255, 3739419; 546263, 3739419; 546269, 3739421; 546274,
3739424; 546277, 3739428; 546277, 3739433; 546277, 3739440; 546277,
3739447; 546277, 3739450; 546278, 3739454; 546280, 3739457; 546319,
3739447; 546324, 3739444; 546329, 3739439; thence returning to 546332,
3739429; continuing to land bounded by 546405, 3739025; 546401,
3739010; 546395, 3739013; 546374, 3739026; 546356, 3739042; 546356,
3739042; 546341, 3739060; 546342, 3739090; 546335, 3739100; 546326,
3739112; 546325, 3739152; 546324, 3739225; 546335, 3739225; 546365,
3739227; 546365, 3739227; 546364, 3739240; 546362, 3739241; 546359,
3739242; 546347, 3739246; 546347, 3739260; 546347, 3739437; 546347,
3739450; 546359, 3739447; 546392, 3739437; 546562, 3739387; 546651,
3739361; 546703, 3739346; 546707, 3739344; 546699, 3739300; 546685,
3739275; 546682, 3739269; 546658, 3739254; 546620, 3739239; 546606,
3739238; 546605, 3739238; 546557, 3739237; 546553, 3739228; 546551,
3739225; 546546, 3739218; 546536, 3739203; 546536, 3739203; 546508,
3739181; 546493, 3739161; 546489, 3739157; 546469, 3739132; 546447,
3739096; 546437, 3739083; 546415, 3739053; 546411, 3739042; thence
returning to 546405, 3739025.
* * * * *
Dated: September 12, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-24047 Filed 9-21-11; 8:45 am]
BILLING CODE 4310-55-P