Federal Register, Volume 78 Issue 107 (Tuesday, June 4, 2013) 2013 Federal Register, 78 FR 33282-33300; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Proposed Rules]
[Pages 33282-33300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13098]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2013-0068]
RIN 1018-AY56

Endangered and Threatened Wildlife and Plants; Revision of
Critical Habitat for Salt Creek Tiger Beetle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to revise
critical habitat for the Salt Creek tiger beetle (Cicindela nevadica
lincolniana) under the Endangered Species Act. If we finalize this rule
as proposed, it would extend the Act's protections to lands designated
as revised critical habitat for this subspecies. This designation
fulfills our obligations under a settlement agreement. The effect of
this regulation is to conserve the habitat of Salt Creek tiger beetles
in eastern Nebraska under the Endangered Species Act.

DATES: We will accept comments received or postmarked on or before
August 5, 2013. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES section, below) must be received by
11:59 p.m. Eastern Time of the closing date. We must receive requests
for public hearings, in writing, at the address shown in ADDRESSES by
July 19, 2013.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R6-ES-
2013-0068, which is the docket number for this rulemaking. You may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R6-ES-2013-0068; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/nebraskaes,
or http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068, and at
the Nebraska Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information
that we may develop for this critical habitat designation will also be
available at the Fish and Wildlife Service Web site and Field Office
set out above, and may also be included in the preamble and/or at
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Michael D. George, Field Supervisor,
U.S. Fish and Wildlife Service, Nebraska Ecological Services Field
Office, 203 W 2nd St., Grand Island, NE 68801; telephone 308-382-6468.
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why We Need To Publish a Rule

This is a proposed rule to revise the designation of critical
habitat for the endangered Salt Creek tiger beetle. This revision will
fulfill the terms of a settlement agreement reached on June 7, 2011
(see Previous Federal Actions). Under the Endangered Species Act of
1973, as amended (Act; 16 U.S.C. 1531 et seq.), any species that is
determined to be threatened or endangered requires critical habitat to
be designated, to the maximum extent prudent and determinable.
Designations and revisions of critical habitat can only be completed by
issuing a rule.

This Rule Will Propose Revised Critical Habitat for the Endangered Salt
Creek Tiger Beetle

In total, we are proposing 1,110 acres (ac) (449 hectares (ha)) for
designation as critical habitat for the Salt Creek tiger beetle in
Lancaster and Saunders Counties in Nebraska. This proposed revised
critical habitat includes saline wetlands and streams associated with
Little Salt Creek and encompasses all three habitat areas occupied by
the subspecies at the time of listing. It also includes saline wetlands
and streams associated with Rock Creek and Oak Creek (Capitol Beach)
that are currently unoccupied, but supported the subspecies less than
20 years ago. Our designation also includes segments of Haines Branch
Creek because this area has the potential to provide suitable habitat
for the Salt Creek tiger beetle and its inclusion will reduce the risk
of species extinction by providing redundancy in available habitat
throughout multiple creeks. Due to the presence of suitable habitat, we
believe that the Salt Creek tiger beetle occurred in this area
historically; however, they have not been documented in this location
due to minimal survey effort relative to the annual surveys done at
Little Salt, Rock, and Oak Creeks.

The Basis for Our Action

Under the Act, any species that is determined to be a threatened or

[[Page 33283]]

endangered species shall, to the maximum extent prudent and
determinable, have habitat designated that is considered to be critical
habitat. 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.

We Will Seek Peer Review

We are seeking comments from independent specialists to ensure that
our proposed revision of critical habitat is based on scientifically
sound data and analyses. We will invite these peer reviewers to comment
on our specific assumptions and conclusions in this proposed rule.
Because we will consider all comments and information received during
the comment period, our final determinations may differ from this
proposal (see subsequent section on Peer Review).

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned government agencies, the
scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation such that the designation of critical habitat may not be
prudent.
(2) Specific information on:
(a) The amount and distribution of Salt Creek tiger beetle habitat;
(b) What areas that were occupied at the time of listing (or are
currently occupied) and that contain features essential to the
conservation of the species should be included in the designation and
why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change;
(d) What areas not occupied at the time of listing are essential
for the conservation of the species and why; and
(e) The amount of habitat needed to be occupied by Salt Creek tiger
beetles in order to recover the species.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Information on the projected and reasonably likely impacts of
climate change on the Salt Creek tiger beetle and proposed critical
habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, any impacts on small entities or families,
and the benefits of including or excluding areas that exhibit these
impacts.
(6) Whether any specific areas we are proposing for revised
critical habitat designation should be considered for exclusion under
section 4(b)(2) of the Act, and whether the benefits of potentially
excluding any specific area outweigh the benefits of including that
area under section 4(b)(2) of the Act.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you submit
your comment by hard copy, you may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so. All comments submitted via
http://www.regulations.gov will be posted in their entirety.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Nebraska Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Previous Federal Actions

The final rule to list the Salt Creek tiger beetle as endangered
was published on October 6, 2005 (70 FR 58335). At that time, we stated
that critical habitat was prudent and determinable; however, we did not
designate critical habitat because we were in the process of
identifying the physical and biological features essential to
conservation of the species. We published a proposed rule to designate
critical habitat on December 12, 2007 (72 FR 70716). On June 3, 2008,
we published a notice in the Federal Register to reopen the comment
period and announce a public hearing (73 FR 31665). On April 28, 2009,
we published a revised proposed rule to designate critical habitat (74
FR 19167). A final rule designating approximately 1,933 ac (782 ha) of
critical habitat was published on April 6, 2010 (75 FR 17466). The
Center for Native Ecosystems, the Center for Biological Diversity, and
the Xerces Society (plaintiffs) filed a complaint on February 23, 2011,
regarding designation of critical habitat for the species. The
plaintiffs asserted that we failed to designate sufficient critical
habitat to conserve and recover the species. A settlement agreement
between the plaintiffs and the U.S. Fish and Wildlife Service (Service)
was reached on June 7, 2011, and we agreed to reevaluate our
designation of critical habitat. This proposed rule addresses our
proposed revisions to the critical habitat designation for the Salt
Creek tiger beetle.

Background

It is our intent to discuss below only those topics directly
relevant to the proposed revisions to the critical habitat designation
for the Salt Creek tiger beetle. For more detailed information
regarding the species, refer to the final rule to list the species as
endangered published on October 6, 2005 (70 FR 58335).

Taxonomy and Species Description

The Salt Creek tiger beetle (Cicindela nevadica lincolniana) is a
subspecies in the class Insecta, order Coleoptera, and family Carabidae
(Integrated Taxonomic Information System 2012, p. 1). At least 85
species of tiger beetles and more than 200 subspecies exist in the
United States; 26 species and 6 subspecies are

[[Page 33284]]

known from Nebraska (Carter 1989, p. 8). Tiger beetles are fast-moving,
predaceous insects (Carter 1989, p. 9). The Salt Creek tiger beetle's
average length is 0.4 inches (in) (10 millimeters (mm)), and its color
is dark brown shading to green (Carter 1989, pp. 12 and 17).

Distribution, Abundance, and Trends

The Salt Creek tiger beetle is endemic to saline wetlands
associated with the Salt Creek watershed and some of its tributaries in
Lancaster and southern Saunders Counties in eastern Nebraska (Allgeier
2005, p. 18). Historical estimates of the extent of these saline
wetlands vary. Fowler (2012, p. 41) estimates that approximately 65,000
ac (26,000 ha) of saline wetlands occurred historically within the Salt
Creek watershed. LaGrange et al. (2003, p. 3) estimated that more than
20,000 ac (8,100 ha) occurred historically. Farrar and Gersib (1991, p.
20) cite a report from 1862 that estimated 16,000 ac (6,480 ha) of
saline wetlands in four basins near the present-day town of Lincoln. It
is not clear which four basins they are describing, but these basins
were likely only a portion of the entire eastern Nebraska saline
wetland complex. Historically, the Salt Creek tiger beetle was probably
widely distributed throughout the eastern saline wetlands of Nebraska,
especially at the type locality of Capitol Beach (Allgeier 2005, p. 41)
along Oak Creek. However, in the past 150 years, approximately 90
percent of these wetlands have been degraded or lost due to
urbanization, agriculture, and drainage (LaGrange et al. 2003, p. 1;
Allgeier 2005, p. 41).
The most complete recent inventory, conducted in 1992 and 1993,
identified 3,244 ac (1,314 ha) of ``Category 1'' wetlands remaining in
Lancaster and Saunders Counties (Gilbert and Stutheit 1994, p. 10). The
authors define Category 1 wetlands as high-value saline wetlands or
saline wetlands with the potential to be restored to high value
(Gilbert and Stutheit 1994, p. 6). High-value wetlands were defined as
meeting one or more of the following criteria: (1) The presence of Salt
Creek tiger beetles; (2) the presence of one or more rare or restricted
halophytes (salt-tolerant plants); (3) historical significance as
identified by the Nebraska State Historical Society; (4) the presence
of plants characteristic of saline wetlands and not highly degraded, or
the potential for saline wetland characteristics after enhancement or
restoration; and (5) high potential for restoration of the historical
salt source. Other categories of wetlands described in the inventory,
including Categories 2, 3, and 4, were thought to provide limited or no
saline wetland functions. At that time, it was thought that these
wetland types had little or no potential for reestablishing the salt
source and hydrology needed to restore and maintain saline conditions
(Gilbert and Stutheit 1994, p. 7). Since 1994, however, techniques
involving removal of excess sediment and restoration of saline water
through installation of wells has made restoration of Categories 1, 2
and 3 feasible. Removal of sediment has exposed saline seeps and
restored Salt Creek tiger beetle habitat along Little Salt Creek to the
extent that the species now uses some of the restored areas (Harms
2013, pers. comm.). Category 2, 3, and 4 wetlands can also protect
Category 1 saline wetlands from negative impacts associated with
sediment transport and freshwater dilution of salinity. Without
adjacent Category 2-4 wetlands, Category 1 saline wetlands can degrade
and cease providing saline wetland functions (USFWS 2005, p. 11;
LaGrange 2005, pers comm.; Stutheit 2005, pers comm.). The Service
completed a detailed assessment of wetlands prior to listing the Salt
Creek tiger beetle in 2005 and concluded that, following years of
degradation in the Salt Creek watershed, approximately 35 ac (14 ha) of
barren salt flats and saline stream edges contain the entire habitat
currently occupied by the Salt Creek tiger beetle, which is not
sufficient to sustain the species.
Visual surveys of Salt Creek tiger beetles, using consistent
methods, timing, and intensity, have been conducted by University of
Nebraska at Lincoln since 1991 (Spomer 2012a, pers comm.). Over the
past 22 years, the total number of Salt Creek tiger beetle adults
counted during visual surveys has ranged from 115 (in 1993) to 777 (in
2002) individuals (Figure 1). The most recent count was 374 adults in
2012. A 2-year mark-recapture study indicated that visual surveys may
underestimate the species' population by approximately 40-50 percent,
and recommended that a 2X correction factor be applied (Allgeier et al.
2003, p. 6; Allgeier et al. 2004, p. 3; Allgeier 2005, p. 40). However,
these mark-recapture efforts were conducted on a small population that
may have experienced immigration or emigration during the sampling
period; therefore, all assumptions may not have been met (Spomer 2012b,
pers. comm.) and use of these results to make a population estimate may
not be appropriate. Additionally, mark-recapture requires handling
beetles and may interfere with egg-laying (Allgeier 2004, p. 3).
Therefore, visual studies are preferred since they are more economical
and less intrusive (Allgeier et al. 2003, p. 6; Allgeier et al. 2004,
p. 3; Allgeier 2005, p. 53); however, visual studies do not provide the
same precision as do mark-recapture studies.
Insects typically show greater population variability than many
other animal species (Thomas 1990, p. 326), and their annual population
numbers are generally cyclic. A very small population size indicates a
vulnerability to extinction (Thomas 1990, pp. 325-326; Shaffer 1981, p.
131; Lande 1993, pp. 911-912; Primack 1998, p. 179) because when
numbers decline, the population can become locally extirpated. The
long-term data shows a fluctuating, but very small population size for
Salt Creek tiger beetles.

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[GRAPHIC] [TIFF OMITTED] TN04JN13.013

In addition to the number of individuals, the number of populations
is critical when considering distribution, abundance, and trends. Salt
Creek tiger beetles have been located at 14 sites since surveys began
in 1991 (Brosius 2010, p. 12). We consider these 14 sites to represent
6 different populations based upon documented dispersal distances and
presence of discrete suitable habitat for the species (70 FR 58336,
October 6, 2005). Three of these populations have been extirpated since
surveys began in 1991: The Capitol Beach population along Oak Creek,
the Upper Little Salt Creek-South population on Little Salt Creek, and
the Jack Sinn Wildlife Management Area (WMA) population on Rock Creek.
For these populations, surveys showed that the number of individuals
declined and then completely disappeared, leaving us to conclude that
the population had become locally extirpated. The three remaining
populations, Upper Little Salt Creek-North, Arbor Lake, and Little Salt
Creek-Roper, all occur in the Little Salt Creek watershed, along a
stream reach of approximately 7 miles (mi) (11 kilometers (km)) (Fowler
2012, p. 41).

Habitat

The Salt Creek tiger beetle has very specific habitat requirements.
It occurs in remnant saline wetlands on exposed mudflats and along the
banks of streams and seeps that contain salt deposits (Carter 1989, p.
17; Spomer and Higley 1993, p. 394; LaGrange et al. 2003, p. 4). Soil
moisture and soil salinity are critically important in habitat
selection (Allgeier et al. 2004, p. 6) for foraging, where the female
lays eggs, and for larval habitat. The species uses soil moisture and
soil salinity to partition habitat between other collocated species of
tiger beetles (Allgeier 2005, p. 64). Moist, saline, open flats are
needed for thermoregulation, reproduction, and foraging.
Nebraska's eastern saline wetlands are maintained through
groundwater discharge from the Dakota Aquifer System occurring in the
flood plains of Salt Creek as it flows in a general pattern from
southwest to northeast of Lincoln, Nebraska, in Lancaster and southern
Saunders Counties (Harvey et al. 2007, p. 738). From the perspective of
the larger Nebraska Eastern Saline Wetlands ecosystem, little is known
about the connections between the surface water and the underlying
groundwater and dissolved salts, or about the extent of the flow
systems that feed the wetlands. From a local perspective, especially
when making decisions about land management actions, it can be
difficult to make informed management decisions about wetland
protection or the impact of future development (Harvey et al. 2007, p.
738). However, the eastern saline wetlands are dependent upon a
regional-scale groundwater flow system and may not be replenished
indefinitely (Harvey et al. 2007, p. 750). Subsurface geology,
geomorphic features (including manmade features), and topographic
characteristics all affect the hydrology of the wetlands, resulting in
variability between each wetland (Kelly 2011, pp. 97-99).

Life History

The Salt Creek tiger beetle typically has a 2-year life cycle of
egg, larval, and adult stages (Ratcliffe and Spomer 2002, unpaginated;
Allgeier 2005, pp. 3-4). Adult females lay eggs in moist, saline
mudflats along the banks of seeps and in saline wetland habitats when
soil moisture and saline levels are appropriate. Upon hatching, each
larva excavates a burrow where it lives for the next 2 years; the
burrow is enlarged by the larva as it grows. Larvae are sedentary
predators, catching prey that passes nearby. Larvae are more directly
affected by a limited food supply than adults because they are not as
mobile as adults and almost never leave their burrows. Following
pupation, adults emerge from the burrows in the late spring to early
summer of their second year and mate. Adults are typically active in
May, June, and July before dying (Allgeier 2005, p. 63).
Adult Salt Creek tiger beetles have a mean dispersal distance of
137 feet (ft) (42 meters (m)), a maximum dispersal of 1,506 ft (459 m),
and most are recovered within 82 ft (25 m) of the marking location,
based upon a study of 60 individuals (Allgeier 2005, p. 50) in which 24
individuals were relocated following capture and 36 were not. The

[[Page 33286]]

Salt Creek tiger beetle appears to have narrower habitat requirements
for egg-laying, foraging, and thermoregulation than other tiger beetles
found in Nebraska's eastern saline wetlands (Brosius 2010, p. 5).

Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical and biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species, but
that was not occupied at the time of listing, may be essential to the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range would be inadequate to ensure the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, experts'
opinions, or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning

[[Page 33287]]

efforts if new information available at the time of these planning
efforts calls for a different outcome.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the
designation of critical habitat is not prudent when one or both of the
following situations exist:
(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to
the species.
There is currently no imminent threat of take attributed to
collection or vandalism under Factor B for the Salt Creek tiger beetle,
and identification and mapping of critical habitat is not expected to
initiate any such threat. In the absence of finding that the
designation of critical habitat would increase threats to a species, if
there are any benefits to a critical habitat designation, then a
prudent finding is warranted. Here, the potential benefits of
designation include:
(1) Triggering consultation under section 7 of the Act, in new
areas for actions in which there may be a Federal nexus where it would
not otherwise occur because, for example, it is or has become
unoccupied or the occupancy is in question;
(2) Focusing conservation activities on the most essential features
and areas;
(3) Providing educational benefits to State or county governments
or private entities; and
(4) Preventing people from causing inadvertent harm to the species.
Therefore, because we have determined that the designation of critical
habitat will not likely increase the degree of threat to the species
and may provide some measure of benefit, we find that designation of
critical habitat is prudent for the Salt Creek tiger beetle.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the Salt
Creek tiger beetle is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(1) Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
(2) The biological needs of the species are not sufficiently well
known to permit identification of an area as critical habitat.

When critical habitat is not determinable, the Act allows the Service
an additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where it is located.
This and other information represent the best scientific data available
and led us to conclude that the designation of critical habitat is
determinable for the Salt Creek tiger beetle.

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 that are 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, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
We derive the specific physical or biological features essential
for the Salt Creek tiger beetle from studies of this species' habitat,
ecology, and life history as described below. Additional information
can be found in the final listing rule published in the Federal
Register on October 6, 2005 (70 FR 58335). We have determined that the
following physical or biological features are essential for the Salt
Creek tiger beetle.
Space for Individual and Population Growth and for Normal Behavior
Individual Spatial Needs--The Salt Creek tiger beetle requires
areas associated with saline seeps along stream banks and salt flats
with the appropriate soil moisture and salinity levels and that are
largely barren and nonvegetated. During the species' nearly 2-year
larval stage, its spatial requirements are small, but very specific in
terms of soil texture, moisture, and chemical composition (Allgeier et
al. 2004, pp. 5-6; Allgeier 2005, p. 64; Brosius 2010, p. 20; Harms
2012a, pers comm.). At this stage, the species is a sedentary predator
that positions itself at the top of its burrow to catch prey that
passes nearby. Tiger beetle larvae do not move more than an inch or so
from where eggs are originally deposited by the female (Brosius 2010,
p. 64).
The adult stage of the Salt Creek tiger beetle lasts a few weeks in
May, June, and July (Carter 1989, pp. 8 and 17). Adults have greater
spatial requirements in order to accommodate foraging needs and egg-
laying. We do not have information regarding historical dispersal
distances for the species. However, adults are strong fliers (Carter
1989, p. 9); therefore, it is likely they could disperse some distance
if sufficient suitable habitat was available. A recent study documented
adults dispersing up to 1,506 ft (459 m), with a mean dispersal
distance of 137 ft (42 m), and most individuals dispersed less than 82
ft (25 m) (Allgeier 2005, p. 50). Longer dispersal movements almost
certainly occur (Allgeier 2005, p. 51).
A female will lay up to 50 eggs during her brief adult season, each
in a separate burrow (Rabadinanth 2010, p. 14). We do not have species-
specific information regarding the typical distance between burrows in
the wild. However, tiger beetles using burrows in close proximity to
one another may succumb to intraspecific and interspecific competition
(Brosius 2010, p. 27). Efforts to breed the species in captivity
attempted to keep burrows in terrariums at least 1 in (25 mm) apart; at
this distance, incidences of burrow collapse due to proximity to
another burrow were documented (Allgeier 2005, pp. 121-122).
Population Spatial Needs--We do not have species-specific
information regarding a minimum viable population size for the Salt
Creek tiger beetle or the amount of habitat needed to sustain a viable
population. However, we have preliminarily determined that 500-1,000
adults is a reasonable estimate of a minimum viable population for the
species based on recovery plans for two other species of tiger beetles
in the same genus (Cicindela). These plans consider a minimum viable
population size to be at least 500-1,000 adults (Hill and Knisley 1993,
p. 23; Hill and Knisley 1994, p. 31). The authors base this estimate on
available literature and on

[[Page 33288]]

preliminary observations of population stability at several sites, but
acknowledge that there is little information available regarding the
amount of habitat necessary to support a population of this size.
The Salt Creek tiger beetle is historically known from six
populations (70 FR 58336, October 6, 2005); four from Little Salt
Creek, one from Rock Creek, and one from Oak Creek (i.e., Capitol
Beach). We consider this the minimum number of populations needed to
maintain species viability. Half of these populations are now
extirpated. Little Salt Creek contains saline wetland and stream
habitats currently occupied by the remaining populations of the
species. Rock and Oak Creeks also contain saline wetland and stream
habitats although the species has disappeared from those areas. One of
the populations at Little Salt Creek (Upper Little Salt Creek South
population) was extirpated leaving the remaining three populations. The
two additional populations on Rock and Oak Creeks existed prior to the
mid-1990s (70 FR 58336, October 6, 2005). Visual surveys of adults at
the three remaining populations on Little Salt Creek over the past 10
years have ranged from 153 to 745 individuals (Harms 2009, p. 3). The
Service determined that 38 ac (15 ha) of scattered barren salt flats
and saline stream edges remain in the Little Salt Creek watershed, with
approximately 35 ac (14 ha) currently occupied by the Salt Creek tiger
beetle (70 FR 58342, October 6, 2005; George and Harms 2013, pers.
comm.).
In the absence of specific data on how much space is required to
maintain viable populations of Salt Creek tiger beetles, we derived an
estimate of the amount of habitat needed to support six viable
populations as follows. The minimum population of Salt Creek tiger
beetles counted over the past 10 years was 153 adult beetles in 2005,
from 3 populations. We consider a minimum of 500 adult beetles
necessary to maintain a single viable population. The small population
of 153 beetles occupied approximately 35 ac (14 ha) of habitat. We
estimate that 3.3 times as much habitat would be required to support a
minimum of 500 beetles; therefore approximately 116 ac (47 ha) are
required to support a single viable population, and approximately 696
ac (282 ha) would be required to support 6 viable populations. This
estimate is very conservative from the standpoint that 500 individuals
was used as a minimum viable population size. If the upper number in
the range of 500-1,000 adults to support a single viable population is
used, similar calculations would conclude that approximately 1,368 ac
(554 ha) are required to support 6 viable populations of the species.
Therefore, based upon the best available information, it is reasonable
to assume that 696-1,368 ac (282-554 ha) are needed to maintain species
viability. Therefore, we designed our proposed revised critical habitat
units to provide sufficient habitat to ensure the species' recovery.
Summary--Based upon the best available information, we conclude
that recovery of the Salt Creek tiger beetle would require at least 6
populations, with each population containing at least 500-1,000 adults
of the species. We estimate that at least 696-1,368 ac (282-554 ha)
would be required to maintain these populations. Given the nature of
insect populations, which are cyclic and subject to local extirpations,
the species must be sufficiently abundant and in a geographic
configuration that allows them to repopulate areas following local
extirpations when suitable habitat conditions return. Salt Creek tiger
beetles require nonvegetated areas associated with stream banks, mid-
channel islands, and salt flats to meet life-history requirements as
core habitat, as well as adjacent habitat to facilitate dispersal and
protect core habitat. We identify these spatial characteristics as a
necessary physical feature for this species.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Food--The Salt Creek tiger beetle is a predatory insect. Larvae are
sedentary predators that capture small prey passing over or near their
burrows on the soil surface. Adults are very quick and agile, and use
this ability to actively hunt a wide variety of flying and terrestrial
invertebrates (Allgeier 2005, pp. 1-2, 5). Insect prey may be supported
by the limited open habitat in close proximity to the burrows or by the
adjacent vegetated habitat. Typical prey items include insects
belonging to the orders Coleoptera (beetles), Orthoptera (grasshoppers
and crickets), Hemiptera (true bugs), Hymenoptera (ants, bees, and
wasps), Odonata (dragonflies), Diptera (flies), and Lepidoptera (moths
and butterflies) (Allgeier 2005, p. 5). Ants appear to be the most
commonly observed prey of adult tiger beetles (Allgeier 2005, p. 5).
Larvae are more easily affected by a limited food supply than adults
because they almost never leave their burrows and must wait for prey
(Ratcliffe and Spomer 2002, unpaginated).
Surface Water--The Salt Creek tiger beetle prefers very moist soils
for egg-laying and during its larval stage, with mean soil moisture of
47.6 percent (Allgeier 2005, p. 72). This high moisture percentage
likely aids in the species' ability to tolerate heat (Allgeier 2005, p.
75) and keeps the soil malleable during burrow construction and
maintenance (Harms 2012b, pers comm.). Adults of the species spend
significantly more time on damp surfaces and in shallow water than
other tiger beetles (Ratcliffe and Spomer 2002, unpaginated; Brosius
2010, p. 70). This close association with seeps and adjacent shallow
pools may allow adults to forage at times when high temperatures limit
foraging by other saline-adapted tiger beetles. However, this
association may also explain some of the species' vulnerability to
extinction--beyond the loss of saline wetlands in general, the limited
seeps and pools in the remaining habitat may represent a further
limitation regarding habitat (Brosius 2010, p. 74). Channelization
along Salt Creek has increased its velocity, which in turn has resulted
in deep cuts in the lower reaches of its tributaries. This change has
caused these tributary streams to function like drainage ditches,
lowering adjacent water table levels and drying many of the wetlands
that once provided suitable habitat for the species (Farrar and Gersib
1991, p. 29; Murphy 1992, p. 12). Additionally, saline seeps located
along Little Salt Creek have become over-covered following bank
sloughing that was facilitated by channel entrenchment. Seeps are
currently the only locations that provide suitable larval habitat.
Groundwater--Nebraska's eastern saline wetlands are fed by
groundwater discharge from the Dakota Aquifer, which is part of the
Great Plains Aquifer (Harvey et al. 2007, p. 741). Urban expansion
associated with the City of Lincoln is placing increasing demands on
the aquifer (Gosselin et al. 2001, p. 99). The official soil series
description for the ``Salmo'' soil series notes that the water table is
near the surface in the spring and at depths of 2-4 ft (0.6-1.2 m) in
the fall (USDA 2009). Harvey et al. (2007, p. 740) monitored
groundwater levels and groundwater salinity at Rock Creek and Little
Salt Creek from 2000 through 2002. They found that groundwater did not
reach the soil surface and was present in the upper few yards (meters)
of the soil column only during the spring when groundwater levels were
at their highest due to winter snowmelt and spring rainstorms. They
also noted that the depth of groundwater was related to the proximity
of the stream, such that

[[Page 33289]]

groundwater was at a lower depth near a stream than far away from it.
They also noted that the area was under slight drought conditions
during the study period. The increased depth to groundwater in this
region is likely due to a combination of factors including drought,
channelization along Salt Creek, and water depletions for urban and
agricultural uses. If groundwater levels continue to decline, saline
features of the wetlands could gradually change to freshwater, or
wetlands could dry. Either of these scenarios could result in
extirpation of the Salt Creek tiger beetle from affected wetlands and
could ultimately lead to extinction of the species.
Saline Soils--Soils in the eastern saline wetlands of Nebraska
typically contain chloride or sulfate salts and have a pH from 7-8.5
(Allgeier 2005, p. 17). Salt Creek tiger beetles prefer soils that are
slightly saline, with an optimal electroconductivity of 2,504
milliSiemens per meter (mS/m) (Allgeier 2005, p. 75). However,
salinities as low as 1,656 mS/m have been measured at survey sites
(Rabadinanth 2010, p. 19). Soil salinity may serve as a means of
partitioning habitat between the 12 species of tiger beetles in the
genus Cicindela that use the saline wetlands of Nebraska (Allgeier et
al. 2004, pp. 5-6; Allgeier 2005, p. 65; Brosius 2010, p. 13).
The ``Salmo'' soil series is found at all known occurrences for the
species (Allgeier 2005, p. 42). This soil type is formed on saline
flood plains, and its characteristics typically include: (1) A texture
of silt loam or silty-clay loam, (2) 0-2 percent slope, (3) somewhat
poorly drained or poorly drained soils, and (4) 0-3 feet to the water
table (Gersib and Steinauer 1991, p. 41; Gilbert and Stutheit 1994, p.
4; USDA 2009, pp. 1-3). The ``Saltillo'' soil series is found in
adjacent Saunders County and has soil characteristics very similar to
the ``Salmo'' soil series (USDA 2006, pp. 1-4). Consequently we believe
that this soil type may also be able to provide suitable salinity
levels and capacity to hold sufficient soil moisture for the species.
Light--Salt Creek tiger beetles have only been observed laying eggs
at night (Allgeier et al. 2004, p. 5). Light pollution from urban areas
likely disrupts nocturnal behavior by attracting beetles towards the
light and out of their normal habitats (Allgeier et al. 2003, p. 8). In
both field and laboratory studies, attraction to light from different
types of lamps varied, in decreasing order, from blacklight, mercury
vapor, fluorescent, incandescent, and sodium vapor, with blacklight
being the most favored by the species (Allgeier 2005, pp. 89-95). The
disruption in behavior caused by lights could affect egg-laying
activity of females, if it attracts females into unsuitable habitat.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires abundant available insect
prey (supported by both the immediate core habitat and adjacent
habitat), moist saline soils, and minimal light pollution. We identify
these characteristics as necessary physical or biological features for
the species.
Cover or Shelter
Burrows--Salt Creek tiger beetle larvae are closely associated with
their burrows, which provide cover and shelter for approximately 2
years. Larvae are sedentary predators and position themselves at the
top of their burrows. When prey passes nearby, a larva lunges out of
its burrow, clutches the prey in its mandibles, and pulls the prey down
into the burrow to feed. Once a larva obtains enough food, it plugs its
burrow and digs a pupation chamber, emerging as an adult in early
summer of its second year (Ratcliffe and Spomer 2002, unpaginated;
Allgeier 2005, p. 2). The species is a visual predator, requiring open
habitat to locate prey (Ratcliffe and Spomer 2002, unpaginated).
Consequently, a clear line of sight is important. Habitat that becomes
covered with vegetation no longer provides suitable larval habitat
(Allgeier 2005, p. 78). Burrow habitat can also be impacted from
disturbances such as trampling (Spomer and Higley 1993, p. 397), which
causes soil compaction and damages the fragile crust of salt that is
evident on the soil surface. After the adult emerges from the pupa, it
remains in the burrow chamber while its outer skeleton hardens
(Ratcliffe and Spomer 2002, unpaginated). For the remainder of its
brief adult stage, burrows are no longer used.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires a suitable burrow in moist,
saline, sparsely vegetated soils for its larval stage. We identify this
characteristic as a necessary physical feature for the species.
Sites for Breeding, Reproduction, or Development of Offspring
Annual visual surveys have been conducted since 1991, when six
populations were known. Each of the three populations of Salt Creek
tiger beetle currently known is associated with Category 1 wetlands
along Little Salt Creek including moist saline soils and seeps which
can be located at saline wetlands and streams. Three additional
populations occurred in the mid-1990s on Little Salt Creek, Oak Creek,
and Rock Creek, but these have been extirpated since 1998. No records
of the species are known for other tributaries of Salt Creek. However,
the species may have been abundant historically, based on numerous
museum specimens collected from Capitol Beach (Carter 1989, p. 17;
Allgeier et al. 2003, p. 1). The Capitol Beach population was severely
impacted following construction of the Interstate-80 corridor and other
urban development (Farrar and Gersib 1991, pp. 24-25), and finally
disappeared in 1998. Little or no suitable habitat remains along Oak
Creek because it has been channelized and has become somewhat
entrenched. However, numerous saline seeps and a large salt flat are
located southwest of Oak Creek in its former floodplain. Little Salt
Creek and Rock Creek still contain numerous saline wetlands and are the
focus of efforts to protect remaining saline wetlands (Farrar and
Gersib 1991, p. 40). Saline seeps are known to occur at the Haines
Branch Creek. Few regular surveys for the Salt Creek tiger beetle have
been done in these areas; however, suitable habitat occurs there, and
more habitat could be potentially restored to aid in the recovery of
the Salt Creek tiger beetle (USFWS 2005, p. 18). Given the presence of
suitable habitat for a species with very narrow habitat preferences
with historical records nearby, we can infer that the species was
likely present there in the past.
The Salt Creek tiger beetle has very specific habitat requirements
for foraging, egg-laying, and larval development. Requirements
regarding water, soil salinity, and exposed habitat are described in
the previous sections.
Summary--Based upon the best available information, we conclude
that the Salt Creek tiger beetle requires a core habitat of moist
saline soils with minimal vegetative cover for foraging, egg-laying,
and larval development. Adjacent, more vegetative habitat is used for
shade to cool adults (Harms 2013, pers comm.), protecting core habitat,
and supporting a diverse source of prey for adults and larval Salt
Creek tiger beetles. Approximately 90 percent of all remaining wetlands
suitable for Salt Creek tiger beetles occur in the Little Salt Creek,
Rock Creek watersheds, but saline seeps and wetlands also occur at Oak
and Haines Branch Creeks. We identify barren salt flats and saline
seeps along streams and

[[Page 33290]]

within suitable wetlands as a necessary physical feature for the
species.
Primary Constituent Elements for Salt Creek Tiger Beetle
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Salt Creek tiger beetle in areas occupied at the
time of listing, focusing on the features' primary constituent
elements. We consider primary constituent elements to be those specific
elements of the physical or biological features that provide for a
species' life-history processes and are essential to 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 specific to the Salt Creek tiger beetle are:
Saline barrens and seeps found within saline wetland
habitat in Little Salt, Rock, Oak and Haines Branch Creeks. For our
evaluation, we determined that two habitat types within suitable
wetlands are required by the Salt Creek tiger beetle:
Exposed mudflats associated with saline wetlands or the
exposed banks and islands of streams and seeps that contain adequate
soil moisture and soil salinity are essential core habitats. These
habitats support egg-laying and foraging requirements. The ``Salmo''
soil series is the only soil type that currently supports occupied
habitat; however, ``Saltillo'' is the other soil series that has
adequate soil moisture and salinity and can also provide suitable
habitat.
Vegetated wetlands adjacent to core habitats that provide
shade for species thermoregulation, support a source of prey for adults
and larval forms of Salt Creek tiger beetles, and protect core
habitats.
With this proposed designation of critical habitat, we intend to
identify the physical or biological features essential to the
conservation of the species, through the identification of the
features' primary constituent elements sufficient to support the life-
history processes of 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 features which are essential to the conservation of
the species and which may require special management considerations or
protection. A detailed discussion of threats to the Salt Creek tiger
beetle and its habitat can be found in the October 6, 2005, final rule
to list the species (70 FR 58335).
The primary threats impacting the physical and biological features
essential to the conservation of the Salt Creek tiger beetle are
described in detail in the final rule to list the species published on
October 6, 2005 (70 FR 58335). These threats may require special
management considerations or protection within the proposed critical
habitat and include, but are not limited to, urban development (e.g.,
commercial and residential development, road construction, associated
light pollution, and stream channelization) and agricultural
development (e.g., over-grazing and cultivation). These threats are
exacerbated by having only three populations on one stream (Little Salt
Creek) with extremely low numbers and a highly restricted range making
this species particularly susceptible to extinction in the foreseeable
future.
The features essential to the conservation of the Salt Creek tiger
beetle (exposed, moist, saline areas associated with stream banks, mid-
channel islands, and mudflats) may require special management
considerations or protection to reduce threats. For example, a loss of
moist, open habitat necessary for larval foraging, thermoregulation,
and other life-history activities resulted in the extinction of another
endemic tiger beetle--the Sacramento Valley tiger beetle (Cicindela
hirticollis abrupta) (Knisley and Fenster 2005, p. 457). This was the
first tiger beetle known to be extirpated. Actions that could
ameliorate threats include, but are not limited to:
(1) Increased protection of existing habitat through actions such
as land acquisition and limiting access;
(2) Restoration of potential habitat within saline wetlands and
streams through exposure of saline seeps, removal of sediment layers to
expose saline soils and seeps, and use of wells to pump saline water
over saline soils by Federal, State, and local interested parties;
(3) Establishment of multiple populations in the Rock, Oak, and
Haines Branch Creeks through captive rearing and translocation of
laboratory-reared larvae originating from wild populations;
(4) Protection of habitat adjacent to existing and new populations
to provide dispersal corridors, support prey populations, and protect
wetland functions; and
(5) Avoidance of activities such as groundwater depletions, new
channelization projects, increased surface water runoff, and
residential or road development that could alter soil moisture levels,
salinity, open habitat, or low light levels required by the species.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
Salt Creek tiger beetle. In accordance with the Act and its
implementing regulation at 50 CFR 424.12(e), we consider whether
designating additional areas--outside those currently occupied as well
as those occupied at the time of listing--are necessary to ensure the
conservation of the species. We are proposing to designate critical
habitat within the geographical area occupied by the species at the
time of listing in 2005 (Little Salt Creek) under the first prong of
the Act's definition of critical habitat. We also are proposing to
designate specific areas outside the geographical area occupied by the
species at the time of listing that were documented to be occupied as
recently as the mid-1990s or are presumed to have been occupied in the
past given the availability of suitable saline habitat, but which are
presently unoccupied (Rock, Oak, and Haines Branch Creeks), under the
second prong of the Act's definition of critical habitat because such
areas are essential for the conservation of the species as they will
spread the risk of species extinction over multiple stream systems.
Important sources of supporting data include the final rule for listing
the species (70 FR 58335, October 6, 2005), the recovery outline (USFWS
2009), available literature, and information provided by the University
of Nebraska at Lincoln and the Nebraska Game and Parks Commission
(citations noted herein).
We are proposing to include all currently occupied habitat in our
designation of critical habitat because any further loss of occupied
habitat would increase the Salt Creek tiger beetle's susceptibility to
extinction. As previously noted, the species currently occupies
approximately 35 ac (14 ha) of saline wetland and streams in three
small populations along approximately 7 mi (11 km) of Little Salt
Creek. The three existing populations are referred to as Upper Little
Salt Creek-North, Little Salt Creek-Arbor Lake, and Little Salt Creek-
Roper.
We are also proposing to include unoccupied saline wetlands,
specifically saline salt flats along Little

[[Page 33291]]

Salt Creek that are interspersed among these three populations. These
barren salt flats are essential to the conservation of the species
because they provide larval habitat, protect existing populations,
provide dispersal corridors between populations, support prey
populations, and provide potential habitat for new populations.
Lastly, we are proposing to include unoccupied barren salt flats
and saline streams along Rock, Oak, and Haines Branch Creeks that were
either occupied by the species until 1998 (i.e., Rock and Oak Creeks)
or have suitable habitat for the Salt Creek tiger beetle, but were
surveyed infrequently (Haines Branch). We have determined that these
areas (Little Salt, Rock, Oak, and Haines Branch Creeks) are essential
to the conservation of the species because they provide necessary
redundancy in the event of an environmental catastrophe associated with
Little Salt Creek--the only watershed that currently supports the
species. All of these areas are tributaries to Salt Creek.
We recommend that at least one viable population of Salt Creek
tiger beetles be established in each of the three unoccupied units of
critical habitat, recognizing the uncertainty as to which areas will
successfully support reintroduced populations. Although so little
appropriate habitat remains in one of these units (Haines Branch) that
it is below the number of acres that we estimated would be necessary to
support a population of 500 adults, this area may be able to support a
smaller population, which collectively would reduce the risk of
extinction.
These populations, in addition to the 3 existing populations at
Little Salt Creek, would result in 6 populations, with at least 500
adults in each population, but with 3 populations in Little Salt Creek.
This is the number of populations documented in the mid-1990s, and the
minimum number needed for species recovery; however, at that time, none
of these populations were large enough to maintain species viability,
and three of the populations were later extirpated. As the populations
expand to viable numbers, we anticipate that they will be within the
maximum documented dispersal range of the species and may eventually
constitute one metapopulation that has spatially separated populations
with some interaction between those populations.
We delineated the critical habitat unit boundaries for the Salt
Creek tiger beetle using the following steps:
(1) We used Geographic Information System (GIS) coverages initially
generated by Gilbert and Stutheit (1994, entire) to categorize saline
wetlands in the Salt Creek watershed of Lancaster and Saunders
Counties, Nebraska.
(2) We delineated critical habitat within the areas of Little Salt,
Rock, Oak, and Haines Branch Creeks that (a) are documented to support
the species currently or to have supported it in the recent past (until
1998), or (b) that provide potential suitable habitat for the species
that could sustain a viable population.
(3) We delineated all of the barren salt flats in the four creeks
with adjacent suitable saline wetlands.
(4) In order to include surrounding vegetative areas that provide
essential resources and support functions to the species, we delineated
areas on segments of the four creeks that extended 137 feet (the
average known dispersal distance for the species) on either side of the
stream course. We used 137 feet because it is the average distance that
the Salt Creek tiger beetle can move to meet life history requisites
which can be satisfied within the stream segment and adjacent saline
barrens and seeps in the floodplain area. We concluded that this
distance would provide the species with sufficient prey resources.
Some other areas within the likely historical range of the Salt
Creek tiger beetle were considered in this revised designation, but
ultimately were not included. We do not propose to designate suitable
saline wetlands along Middle Creek as critical habitat because the
habitat there has been eliminated due to commercial and residential
developments, road construction, and stream channelization, and is
probably not restorable. Similarly, we do not propose to designate
areas on tributaries to Salt Creek near the Cities of Roca and Hickman,
Nebraska, because agricultural development has somewhat limited the
ability of these areas to be restored for the benefit of the Salt Creek
tiger beetle. We also do not propose to designate areas of Salt Creek
downstream of Lincoln, Nebraska, because channel entrenchment has
resulted in the loss of saline seep and saline wetland habitats there.
We also did not include remaining areas of suitable saline wetlands in
Upper Salt Creek because they are of insufficient size to support a
viable population of Salt Creek tiger beetles.
This proposed revision to the critical habitat designation for Salt
Creek tiger beetle would decrease the current designation of 1,933
acres by 823 acres, but it would increase the number of unoccupied
units from one to three. This change would extend critical habitat to
two additional stream corridors not previously included in critical
habitat that could support populations of the species in the future,
thereby reducing the risk of extinction. We have also revised the
primary constituent elements on which this proposed revision was based
to make them clearer and easier for the public to understand. However,
these revised proposed primary constituent elements are based on the
same biological concepts about the needs of the Salt Creek tiger beetle
that were used in the current critical habitat designation.
Since the time of our previous critical habitat designation, we
have begun the process of recovery planning, and have preliminarily
determined that at least 6 populations of 500-1,000 beetles within
suitable habitat across multiple stream corridors would be necessary to
recover the species. Therefore, we have proposed to designate an amount
of critical habitat that would allow for that recovery to occur. We
considered other possible critical habitat configurations for this
proposal, including larger and smaller designations and different
numbers of units. However, we concluded that this proposed designation
of 1,110 acres in four units was the most biologically appropriate as
it is based on habitat features that are used by Salt Creek tiger
beetles, consistent with the statutory definition of critical habitat,
and would best provide for the recovery of the species.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
the physical and biological features necessary for the Salt Creek tiger
beetle. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these developed lands would not trigger section 7 consultation with
respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We are proposing designation of critical habitat lands that: (a)
were determined to be occupied at the time of listing and contain
sufficient elements of physical or biological

[[Page 33292]]

features to support life-history processes essential for the
conservation of the species and (b) are outside of the geographical
area occupied at the time of listing that we have determined are
essential for conservation of the Salt Creek tiger beetle.
Four units are proposed for designation based on sufficient
elements of physical or biological features being present to support
Salt Creek tiger beetle life-history processes. Designating units of
critical habitat on Little Salt, Rock, Oak, and Haines Branch Creeks
provides redundancy in the event that adverse effects on one of these
watersheds impact Salt Creek tiger beetles or their habitat.
The critical habitat designation is defined by the map, as modified
by any accompanying regulatory text, presented at the end of this
document in the rule portion. We include more detailed information on
the boundaries of the critical habitat designation in the preamble of
this document. We will make the coordinates or plot points or both on
which the map is based available to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068, on our Internet
site at http://www.fws.gov/nebraskaes/, and at the Nebraska Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

We are proposing four units as critical habitat for the Salt Creek
tiger beetle. The critical habitat units we describe below constitute
our current best assessment of areas that meet the definition of
critical habitat for the species. The four units we propose as critical
habitat are: (1) Little Salt Creek--under the first prong of the Act's
definition of critical habitat and (2) Rock Creek, Oak Creek, and
Haines Branch--under the second prong of the Act's definition of
critical habitat. Table 1 shows the occupancy status of these units.

Table 1--Occupancy of Salt Creek Tiger Beetle by Proposed Critical
Habitat Units
------------------------------------------------------------------------
Occupied at
Unit time of Currently
listing? occupied?
------------------------------------------------------------------------
Little Salt Creek Unit........................ Yes Yes.
Rock Creek Unit............................... No No.
Oak Creek Unit................................ No No.
Haines Branch Unit............................ No No.
------------------------------------------------------------------------

The approximate area and ownership of each proposed critical
habitat unit is shown in Table 2.

Table 2--Proposed Critical Habitat Units for Salt Creek Tiger Beetle
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Percent of
Critical habitat unit Land ownership by Estimated quantity of critical critical habitat
type habitat unit
----------------------------------------------------------------------------------------------------------------
Little Salt Creek Unit............. City of Lincoln...... 40 ac (16 ha)................... 14.1
Lower Platte South 19 ac (8 ha).................... 6.7
Natural Resources
District.
Nebraska Game & Parks 41 ac (17 ha)................... 14.4
Commission.
The Nature 29 ac (12 ha)................... 10.2
Conservancy.
Pheasants Forever.... 11 ac (4 ha).................... 3.9
Private*............. 144 ac (58 ha).................. 50.7
Subtotal....................... ..................... 284 ac (115 ha)................. ..................

Rock Creek Unit.................... Nebraska Game & Parks 152 ac (62 ha).................. 28.9
Commission.
Private*............. 374 ac (152 ha)................. 71.1
----------------------------------
Subtotal....................... ..................... 526 ac (213 ha)................. ..................

Oak Creek Unit..................... Nebraska Department 178 ac (72 ha).................. 85.6
Roads.
City of Lincoln...... 30 ac (12 ha)................... 10.67
----------------------------------

Subtotal....................... ..................... 208 ac (84 ha).................. ..................

Haines Branch Unit................. Private.............. 92 ac (37 ha)................... 100
Total.............................. City of Lincoln...... 70 ac (28 ha)................... 6.3
Lower Platte South 19 ac (8 ha).................... 1.7
Natural Resources
District.
Nebraska Game & Parks 193 ac (78 ha).................. 17.4
Commission.
Nebraska Department 178 ac (72 ha).................. 16.0
Roads.
The Nature 29 ac (12 ha)................... 2.6
Conservancy.
Pheasants Forever.... 11 ac (4 ha).................... 1.0
Private*............. 610 ac (247 ha)................. 55.0
----------------------------------
Total...................... ..................... 1,110 ac (449 ha)............... ..................
----------------------------------------------------------------------------------------------------------------
* Several private tracts are protected by easements.

We present a brief description of each unit and reasons why it
meets the definition of critical habitat for Salt Creek tiger beetle
below.

Unit 1: Little Salt Creek Unit

This unit consists of 284 ac (115 ha) of barren salt flats and
three stream segments on Little Salt Creek in Lancaster County from
near its junction with Salt Creek to approximately 7 mi (11 km)
upstream. It includes the three existing populations of Salt Creek
tiger beetles (Upper Little Salt Creek-North, Arbor Lake, and Little
Salt Creek-Roper) present at the time of listing, and an additional
site with an extirpated population (Upper Little Salt Creek-South).
This Unit contains the physical or biological features essential to the
Salt Creek tiger beetle.
Approximately 50 percent of the unit is either owned by entities
that will protect or restore saline wetland habitat (see Table 2) or is
part of an easement that protects the saline wetland habitat in
perpetuity. This portion of the unit is largely protected from future
urban development (e.g., commercial and residential development, road
construction, and stream channelization) and future agricultural

[[Page 33293]]

development (e.g., overgrazing and cultivation) by the landowners' or
easement holders' participation in the Implementation Plan for the
Conservation of Nebraska's Eastern Saline Wetlands and their membership
in the Saline Wetlands Conservation Partnership (SWCP). At least two
tracts (owned by the city of Lincoln) have been restored (Arbor Lake
and Frank Shoemaker Marsh) (Malmstrom 2011 and 2012, entire) and other
areas are in the process of being restored or are managed to conserve
saline wetlands. However, without continued management, historical
impacts from development will continue to adversely affect much of the
habitat. The remaining 50 percent of the Little Salt Creek Unit that is
not currently being managed for protection and restoration of saline
wetland habitat remains vulnerable to both historical and ongoing
impacts from development. The lower reaches of Little Salt Creek are in
or near the City of Lincoln and, consequently, are most vulnerable to
impacts related to urban development; upper stream reaches are more
impacted by agricultural development.

Unit 2: Rock Creek Unit

The unit consists of 526 ac (213 ha) of barren salt flats and a
stream segment of Rock Creek from approximately 2 mi (3 km) above its
confluence with Salt Creek to approximately 12 mi (19 km) upstream.
Most of this stream reach is in Lancaster County, but the northernmost
portion is in southern Saunders County. This unit was not occupied at
the time of listing; however, one population was present there until
1998. This Unit contains the physical or biological features essential
to the Salt Creek tiger beetle. It is essential to the conservation of
the species because any population established on Rock Creek would
provide redundancy, in the event of a natural or manmade disaster on
Little Salt Creek.
Approximately 29 percent of the unit is either owned by an entity
that will protect or restore saline wetland habitat (see Table 2) or is
part of an easement that protects the saline wetland habitat in
perpetuity. This portion of the unit is largely protected from future
urban development (e.g., commercial and residential development, road
construction, and stream channelization), but not future agricultural
development (e.g., overgrazing and cultivation). Approximately 152 ac
(61 ha) of barren salt flats and the stream segment are part of the
Jack Sinn WMA (owned by Nebraska Game and Parks Commission) located in
southern Saunders and northern Lancaster Counties. This tract has
undergone several projects to restore saline wetlands. However, without
protection and restoration, historical impacts from development will
continue to adversely affect much of the habitat. The 71 percent of the
Rock Creek Unit that is not currently being managed for protection and
restoration of saline wetland habitat remains vulnerable to both
historical and ongoing impacts from development. This unit is further
removed from Lincoln; therefore, it faces fewer threats from urban
development (e.g., commercial and residential development, road
construction, and stream channelization) and more threats from
agricultural development (e.g., overgrazing and cultivation) than the
Little Salt Creek Unit.

Unit 3: Oak Creek Unit

The unit consists of 208 ac (84 ha) of barren salt flats and a
saline seep complex located within a historic floodplain of Oak Creek.
The unit is located along Interstate 80 in the northwest part of
Lincoln, near the Municipal airport in Lancaster County. This unit was
not occupied at the time of listing; however, one population (Capitol
Beach) was present until 1998. This Unit contains the physical or
biological features essential to the Salt Creek tiger beetle and is
essential to the conservation of the species because any population
established on Oak Creek or Capitol Beach would provide redundancy, in
the event of a natural or manmade disaster on Little Salt Creek.
Approximately 86 percent of the unit is owned by the City of
Lincoln and 14 percent the Nebraska Department of Roads (see Table 2).
This unit is largely protected from future urban development (e.g.,
commercial and residential development, road construction, and stream
channelization) and future agricultural development (e.g., overgrazing
and cultivation). Barren salt flats including the saline seep complex
along Interstate 80 are part of this Unit. This tract was once a part
of a large saline wetland complex and is the type locality for the Salt
Creek tiger beetle. However, a substantial amount of development has
resulted in the loss of the once large saline wetland known from the
area. This unit is near the City of Lincoln; however, it faces fewer
threats from urban development (e.g., commercial and residential
development, road construction, and stream channelization) than the
Little Salt Creek Unit given the limitations on development that can be
done along the Interstate and within the boundaries of the Lincoln
Municipal Airport.

Unit 4: Haines Branch Unit

The unit consists of 92 ac (37 ha) of barren salt flats and 2.8-
mile long Haines Branch stream segment. Haines Branch is located on the
west side of Lincoln, near Pioneers Park in Lancaster County. This unit
was not occupied at the time of listing, but suitable habitat in the
form of saline seeps and wetlands are available for the Salt Creek
tiger beetle. This Unit contains the physical or biological features
essential to the Salt Creek tiger beetle and is essential to the
conservation of the species because any population established on
Haines Branch Creek would provide redundancy, in the event of a natural
or human-caused disaster on Little Salt Creek.
The entire Unit is owned by private entities (see Table 2). This
Unit is not protected from future urban development (e.g., commercial
and residential development, road construction, and stream
channelization) and future agricultural development (e.g., overgrazing
and cultivation).

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service, 245 F. 3d 434, 442 (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

[[Page 33294]]

critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the Salt Creek tiger beetle.
As discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Salt Creek tiger beetle. These activities include,
but are not limited to:
(1) Actions that would alter soil moisture or salinity--Such
activities could include, but are not limited to, development within or
adjacent to proposed critical habitat such as installation of tile
drains in agricultural lands, construction of storm drains in urban
areas, road construction, or further development of residential or
commercial areas. These activities could decrease soil moisture levels
(in the case of tile drains) or increase soil moisture and decrease
salinity levels through increased runoff of fresh surface water (in the
case of storm drains, road construction, and residential or commercial
development). Any change to soil moisture or salinity levels could
degrade or destroy habitat by altering habitat characteristics beyond
the narrow range of soil moisture and salinity required by the species.
A secondary effect of increased freshwater inputs that lessen soil
salinity is the potential invasion of more freshwater-tolerant plants
such as cattails (Typha spp.) and reed canary grass (Phalaris
arundinacea) that eliminate the open habitat required by the species
(Harvey et al. 2007, p. 749).
(2) Actions that would increase the depth to the water table--Such
activities could include, but are not limited to, stream channelization
or bank armoring in Little Salt Creek, Rock Creek, Haines Branch, and
Oak Creek or adjacent portions of Salt Creek. These activities could
result in a lowering of the water table within proposed critical
habitat that would compromise groundwater discharge functions necessary
to maintain saline wetlands. A further loss of saline wetland habitat
could impact our ability to conserve the Salt Creek tiger beetle.
(3) Actions that would cause trampling of open saline areas
associated with stream banks, mid-channel islands, and mudflats--Such
activities could include, but are not limited to, overgrazing by
livestock within proposed critical habitat. Trampling could result in
the destruction of larvae and larval burrows, leading to population
declines.
(4) Actions that would increase nighttime levels of light--Such
activities could include, but are not limited to, new construction of
residential or commercial areas that includes nighttime lighting. Light
pollution likely disrupts nocturnal behavior by attracting beetles away
from their normal habitats (Allgeier et al. 2003, p. 8). Attraction to
light from different types of lamps varies, in decreasing order, from
blacklight, mercury vapor, fluorescent, incandescent, and sodium vapor,
with blacklight being the most favored (Allgeier et al. 2004, p. 10).
The disruption in behavior could affect nighttime egg-laying activity
of females, if it attracts females into unsuitable habitat.
(5) Actions that would result in modification to the right of way
located along Interstate 80 that could alter the hydrology supporting
saline seeps and salt flats at Oak Creek (Capitol Beach).

[[Page 33295]]

This could include earth disturbance and installation of drainage
structures.

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
(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 geographic areas owned
or controlled by the Department of Defense, or designated for its use,
that are subject to an integrated natural resources management plan
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the
Secretary determines in writing that such plan provides a benefit to
the species for which critical habitat is proposed for designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation. Therefore, we are not
proposing any exemptions based on section 4(a)(3)(B)(i).

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, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing a new analysis of the
economic impacts of the proposed revised critical habitat designation
and related factors. Upon completion, copies of the draft economic
analysis will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Nebraska Fish and Wildlife
Office directly (see FOR FURTHER INFORMATION CONTACT section). During
the development of a final designation, we will consider economic
impacts, public comments, and other new information. Areas may be
excluded from the final critical habitat designation under section
4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense where a national
security impact might exist. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for the Salt Creek tiger beetle are not owned or managed by the
Department of Defense; therefore, we anticipate no impact on national
security. Consequently, the Secretary does not propose to exercise his
discretion to exclude any areas from the final designation based on
impacts on national security.
Exclusions Based on Other Relevant Factors
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation. In preparing this proposal, we have determined that there
are currently no completed HCPs for the Salt Creek tiger beetle, and
the proposed designation does not include any tribal lands or trust
resources.
There are no management plans for the Salt Creek tiger beetle.
However, there is an implementation plan for the conservation of
Nebraska's remaining eastern saline wetlands (LaGrange et al. 2003,
entire). Signatories to this plan include the Nebraska Game and Parks
Commission, the City of Lincoln, the County of Lancaster, the Lower
Platte South Natural Resources District, and The Nature Conservancy.
This plan may protect and restore Salt Creek tiger beetle habitat. The
goal of the plan is no net loss of saline wetlands and their associated
functions, with long-term improvements in wetland functions through
restoration of the hydrological system, prescribed wetland management,
and watershed protection (LaGrange et al. 2003, p. 6). This plan led to
formation of the SWCP, which has purchased nearly 1,200 ac (486 ha) of
eastern saline wetlands and associated uplands, and acquired

[[Page 33296]]

conservation easements on more than 2,000 ac (810 ha) of additional
lands (Malmstrom 2011 and 2012, entire). Overall, approximately 29
percent of proposed critical habitat is protected through these
acquisitions. We believe that activities implemented under the plan or
under the SWCP would be supported by designation of critical habitat
because the Salt Creek tiger beetle is described by the plan and the
SWCP as one of the values supported by these saline wetlands.
Therefore, no areas are proposed for exclusion from this designation
based on other relevant impacts.

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data and analyses. We have invited these peer reviewers to comment
during this public comment period.
We will consider all comments and information received during this
comment period on this proposed rule during our preparation of a final
determination. Accordingly, the final decision may differ from this
proposal.

Public Hearings

Section 4(b)(5) of the Act provides for one or more public hearings
on this proposal, if requested. Requests must be received within 45
days after the date of publication of this proposed rule in the Federal
Register. Such requests must be sent to the address shown in ADDRESSES.
We will schedule public hearings on this proposal, if any are
requested, and announce the dates, times, and places of those hearings,
as well as how to obtain reasonable accommodations, in the Federal
Register and local newspapers at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. The OIRA has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the 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 the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as 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 forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider 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.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the necessary analysis, whether or not this
analysis is strictly required by the RFA. While this regulation does
not directly regulate these entities, in our draft economic analysis we
will conduct a brief evaluation of the potential number of third
parties participating in consultations on an annual basis in order to
ensure a more complete

[[Page 33297]]

examination of the incremental effects of this proposed rule in the
context of the RFA.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies which are not by definition small business entities. And as
such, we certify that, if promulgated, this designation of critical
habitat would not have a significant economic impact on a substantial
number of small business entities. Therefore, an initial regulatory
flexibility analysis is not required. However, though not necessarily
required by the RFA, in our draft economic analysis for this proposal
we will consider and evaluate the potential effects to third parties
that may be involved with consultations with Federal action agencies
related to this action.

Energy Supply, Distribution, or Use---Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. We do not expect the designation of this proposed
critical habitat to significantly affect energy supplies, distribution,
or use as there is no energy supply or distribution infrastructure near
the proposed critical habitat. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandates'' include a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandates'' include a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because most of the lands within the proposed
critical habitat do not occur within the jurisdiction of small
governments. This rule will not produce a Federal mandate of $100
million or greater in any year. Therefore, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act. The
designation of critical habitat imposes no obligations on State or
local governments. Consequently, a Small Government Agency Plan is not
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.

Takings--Executive Order 12630

In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
rights''), this rule is not anticipated to have significant takings
implications. As discussed above, the designation of critical habitat
affects only Federal actions. 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. Due to current
public knowledge of the species protections and the prohibition against
take of the species both within and outside of the proposed areas, we
do not anticipate that property values will be affected by the critical
habitat designation. However, we have not yet completed the economic
analysis for this proposed rule. Once the economic analysis is
available, we will review and revise this preliminary assessment as
warranted, and prepare a Takings Implication Assessment.

Federalism--Executive Order 13132

In accordance with Executive Order 13132 (Federalism), this
proposed 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
proposed critical habitat designation with appropriate State resource
agencies in Nebraska. The designation of critical habitat in areas
currently occupied by the Salt Creek tiger beetle imposes no additional
restrictions to those currently in place and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments because the
areas that contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features necessary to the conservation of the species are more
clearly defined, and the elements of the features necessary to the
conservation of the species are specifically identified. This
information

[[Page 33298]]

does not alter where and what federally sponsored activities may occur.
However, it may assist 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 proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
the rule identifies the elements of physical or biological features
essential to the conservation of the species. The designated areas of
critical habitat are presented on a map, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, under the
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S.
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we are
required to complete NEPA analysis when designating critical habitat
under the Act within the boundaries of the Tenth Circuit. We prepared
an environmental assessment for our 2010 final rule designating
critical habitat for the Salt Creek tiger beetle, and made a finding of
no significant impacts. Although the State of Nebraska is not part of
the Tenth Circuit, and therefore, NEPA analysis is not required, we
will undertake a NEPA analysis in this case since we conducted one
previously for our 2010 final rule.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands that were occupied by the Salt Creek tiger beetle at the time of
listing that contain the features essential for conservation of the
species, and no tribal lands unoccupied by the Salt Creek tiger beetle
that are essential for the conservation of the species. Therefore, we
are not proposing to designate critical habitat for the Salt Creek
tiger beetle on tribal lands.

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

References Cited

A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov and upon request from the
Nebraska Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this package are the staff members of the
Nebraska Ecological Services Field Office and the Mountain-Prairie
Regional Office.

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless
otherwise noted.

0
2. In Sec. 17.95(i), revise the entry for ``Salt Creek Tiger Beetle
(Cicindela nevadica lincolniana),'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *

[[Page 33299]]

(i) Insects.
* * * * *
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana)
(1) Four critical habitat units are depicted for Lancaster and
Saunders Counties, Nebraska, on the map below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of Salt
Creek tiger beetle consist of the following components:
(i) Saline barrens and seeps found within saline wetland habitat in
Little Salt, Rock, Oak and Haines Branch Creeks. For our evaluation, we
determined that two habitat types within suitable wetlands are required
by the Salt Creek tiger beetle:
(ii) Exposed mudflats associated with saline wetlands or the
exposed banks and islands of streams and seeps that contain adequate
soil moisture and soil salinity are essential core habitats. These
habitats support egg-laying and foraging requirements. The ``Salmo''
soil series is the only soil type that currently supports occupied
habitat; however ``Saltillo'' is the other soil series that has
adequate soil moisture and salinity and can also provide suitable
habitat.
(iii) Vegetated wetlands adjacent to core habitats that provide
shade for species thermoregulation, support a source of prey for adults
and larval forms of Salt Creek tiger beetles, and protect core
habitats.
(iv) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(v) Critical habitat map units. The map in this entry, as modified
by any accompanying regulatory text, establishes the boundaries of the
critical habitat designation. The coordinates or plot points or both on
which the map is based are available to the public at the Service's
internet site, http://www.fws.gov/nebraskaes, at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0068, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(vi) Note: Map showing critical habitat units for the Salt Creek
tiger beetle follows:
[GRAPHIC] [TIFF OMITTED] TP04JN13.014

[[Page 33300]]

BILLING CODE 4310-55-P
* * * * *

Dated: May 20, 2013.
Rachel Jacobsen,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-13098 Filed 6-3-13; 8:45 am]
BILLING CODE 4310-55-C