Endangered and Threatened Wildlife and Plants; Final Revised Critical Habitat for Hine's Emerald Dragonfly (Somatochlora hineana)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2009-0017]

[MO 92210-0-0009-B4]

RIN 1018-AW47

Endangered and Threatened Wildlife and Plants; Final Revised Critical Habitat for Hine's Emerald Dragonfly

(Somatochlora hineana

)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the Hine's emerald dragonfly (

Somatochlora hineana

) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 26,531.8 acres (ac) (10,737 hectares (ha)) in 37 units fall within the boundaries of our critical habitat designation. The critical habitat units are located in Cook, DuPage, and Will Counties in Illinois; Alpena, Mackinac, and Presque Isle Counties in Michigan; Crawford, Dent, Iron, Phelps, Reynolds, Ripley, Washington, and Wayne Counties in Missouri; and Door and Ozaukee Counties in Wisconsin.

DATES:

This rule becomes effective on May 24, 2010.

FOR FURTHER INFORMATION CONTACT:

For general information regarding this finding, contact the Field Supervisor, Chicago Ecological Services Field Office, 1250 S. Grove, Suite 103, Barrington, IL 60010 (telephone: 847-381-2253; facsimile: 847-381-2285). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this rule. We received no new information pertaining to the species' life history, ecology, or habitat following our 2007 final critical habitat designation. For information on the Hine's emerald dragonfly, please refer to our proposed critical habitat rule, which we published in the

Federal Register

on July 26, 2006 (71 FR 42442); the final listing determination, published on January 26, 1995 (60 FR 5267); or the Hine's Emerald Dragonfly (Somatochlora hineana, Williamson) Recovery Plan (Service 2001).

Previous Federal Actions

For information about previous Federal actions for the Hine's emerald dragonfly, see our proposed critical habitat rule for the species (71 FR 42442). On March 20, 2007, we published a notice that included revisions to the proposed critical habitat, announced the availability of the draft economic analysis (DEA), and reopened the public comment period (72 FR 13061). Because we needed to meet our settlement agreement's deadline of submitting a final rule to the

Federal Register

by May 7, 2007, we reopened the comment period for only 14 days. Subsequently, we negotiated a new settlement agreement with the plaintiffs (The Center for Biodiversity

et al.

) to submit a final rule to the

Federal Register

by August 23, 2007. Therefore, on May 18, 2007, we published an additional

Federal Register

document that reopened the comment period on the proposal, revisions to the proposal, and the draft economic analysis for an additional 45 days (72 FR 28016). That comment period ended on July 2, 2007. On September 5, 2007, we published a final rule in the

Federal Register

(72 FR 51102) designating 13,221 ac (5,350 ha) as critical habitat for the Hine's emerald dragonfly in Illinois, Michigan, Missouri, and Wisconsin.

On March 10, 2008, six parties (Northwoods Wilderness Recovery, The Michigan Nature Association, Door County Environmental Council, The Habitat Education Center, Natural Resources Defense Council, and The Center for Biological Diversity) filed a complaint against the Department of the Interior and the Service (

Northwoods Wilderness Recovery et al.

v.

Dirk Kempthorne

1:08-CV-01407) challenging the exclusion of U.S. Forest Service lands from the 2007 final designation of critical habitat for the dragonfly. On February 12, 2009, the U.S. District Court for the Northern District of Illinois approved a settlement agreement in which the Service agreed to a remand, without voiding the critical habitat designation, in order to reconsider the Federal exclusions from the designation of critical habitat for the Hine's emerald dragonfly. Per that settlement, on April 22, 2009, we published a notice (74 FR 18341) reopening the comment period on the July 26, 2006, proposed critical habitat (71 FR 42442). Upon publication of that notice, the July 26, 2006, proposed critical habitat designation of the U.S. Forest Service lands in Michigan and Missouri was reinstated as proposed. Furthermore, until the effective date of this revised final critical habitat determination (see DATES), the existing designation of critical habitat for the Hine's emerald dragonfly remains in place and effective.

Summary of Comments and Recommendations Received

We requested written comments from the public on our proposed designation of critical habitat for the Hine's emerald dragonfly (71 FR 42442) and our draft economic analysis (72 FR 13061; 72 FR 28026). We contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule. We also issued press releases and published legal notices in the

Daily American Republic, Kansas City Star

,

Ozaukee News-Graphic, St. Ignace News, Door County Advocate

,

Alpena News, Ozaukee Press

, and

Joliet Herald News

newspapers. We held one public hearing, on August 15, 2006, in Romeoville, Illinois.

During the comment period that opened on July 26, 2006, and closed on September 25, 2006 and the comment period that opened April 22, 2009 and closed on June 22, 2009, we received 40 comments directly addressing our proposed critical habitat designation: 6 from peer reviewers, 4 from Federal agencies, and 30 from organizations or individuals. During the comment periods from March 20, 2007, through April 3, 2007, and May 18, 2007 through July 2, 2007, we received 16 comments directly addressing the proposed critical habitat designation and the draft economic analysis. Of these latter comments, 2 were from Federal agencies and 14 were from organizations or individuals.

In total, 23 commenters supported the designation of critical habitat for the Hine's emerald dragonfly and 10 opposed the designation. Ten commenters, including three peer reviewers, supported exclusion of one or more particular units as identified in the proposed rule, and 7 commenters opposed exclusion of one or more particular units. Eighteen letters were either neutral or expressed both support of and opposition to certain portions of the proposal. Responses to comments are grouped by those received from peer reviewers, States, and the public, in the following sections. We grouped public comments into 10 general issues specifically relating to the proposed critical habitat designation and draft economic analysis. We have incorporated comments into this final rule as appropriate. We did not receive any requests for additional public hearings.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), and current Department of the Interior guidance, we solicited expert opinions from seven knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, or conservation biology principles. We received responses from six of the peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding Hine's emerald dragonfly critical habitat. We have addressed peer reviewer comments in the following summary and have incorporated them into this final rule as appropriate.

The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final critical habitat rule. Three of the six peer reviewers specifically stated that they support our proposed designation of critical habitat, while one expressed concern that designation may be premature because the population status of the Hine's emerald dragonfly in Missouri and Michigan is not well understood. Information provided by peer reviewers included suggestions for conducting research on dispersal and habitat use that would better inform future Hine's emerald dragonfly conservation efforts, as well as comments on how to improve critical habitat rules. Peer reviewers also made suggestions and provided language to clarify biological information or make the final rule easier to understand. Several of the peer reviewers provided editorial comments that we have addressed in the body of this rule.

Peer Reviewer Comments

(1)

Comment

: One peer reviewer (as well as three other commenters) suggested that we should designate foraging areas (farmlands, pastures, old fields, ponds, and/or surface waters) as critical habitat.

Our response

: Although adult Hine's emerald dragonflies have been observed foraging near or in these types of habitats, the importance of such habitats in meeting the daily dietary needs of the dragonfly is still unknown. Foraging and dispersal areas are present in many of the designated critical habitat units, as they contain open areas that serve as corridors that are used by the dragonfly. In most of the units, foraging and dispersal areas are not limiting factors for the species.

(2)

Comment

: One peer reviewer suggested that we use caution when accepting identifications of early instar (defined as the developmental stage on an insect between molts of its exoskeleton) larvae.

Our response

: We agree that identifications of Hine's emerald dragonfly based on early instar larvae should be made with caution. Early instar larvae have been used in Missouri to document the presence of the species at new localities or to identify new Hine's emerald dragonfly breeding habitat. Identifications of early instar larvae were made by the two leading experts on

Somatochlora

species larvae: Dr. Tim Cashatt and Mr. Tim Vogt. These two experts wrote the definitive key to final instar larvae for the genus (Cashatt and Vogt 2001, pp. 94-97). These experts have also positively identified early instar larvae of Hine's emerald dragonfly by examining greater numbers of larval specimens than any other recognized dragonfly larvae expert. Cashatt and Vogt (2001, pp. 94-97) confirmed early instar larvae identification by rearing some individuals to a final stage; this allowed preliminary determinations of the species to be confirmed. Identification of early instar larvae by these two recognized experts constitutes the best scientific data available.

(3)

Comment

: One peer reviewer commented that when the species' recovery plan was developed, the network of sites in Missouri was not known and, had the sites been known, this may have led to different recovery criteria, which may have influenced the identification of critical habitat from a scientific perspective.

Our response

: Different recovery criteria may have been developed for Hine's emerald dragonfly had more sites been known in Missouri at the time the recovery plan was drafted. However, such changes to the species' recovery criteria would not have influenced our decision regarding designation of critical habitat in Missouri. We based the exclusion of Missouri sites on: (1) Current implementation of State management plans for the species; and (2) Missouri Department of Conservation (MDC) implementation of successful conservation efforts on some private lands. The existing successful partnerships among State agencies and private property owners could be negatively affected by a critical habitat designation, and this could jeopardize future cooperative conservation efforts. We used all available data and information—including both the recovery plan and additional information gained since its development—to determine which areas are essential to the conservation of the Hine's emerald dragonfly. We will work with the Hine's Emerald Dragonfly Recovery Team in reevaluating recovery criteria when the overall status of the species is reexamined in a 5-year review.

(4)

Comment

: One peer reviewer commented that he is reluctant to assume that Hine's emerald dragonflies do not forage and roost in the forest canopy.

Our response

: Hine's emerald dragonflies will use trees for roosting. Researchers have also observed Hine's emerald dragonflies foraging along the forest edge. Given that members of the genus

Somatochlora

commonly forage at treetop level along roads and utility rights of way, and dragonflies often perch in vegetation to avoid predation during their sensitive teneral stage (soft-bodied stage immediately after molt), it is possible that Hine's emerald dragonflies may utilize forest canopies to a greater extent than previously observed. There is no available information, however, to define the degree to which Hine's emerald dragonflies may use these habitats for foraging and roosting. We based our criteria to include up to 328 feet (ft) (100 meters (m)) of closed canopy forest around breeding habitat on observations made by one of the leading species experts (T. Vogt, Missouri Department of Natural Resources, in litt. March 2007); this is the best information we have available to date.

(5)

Comment

: One peer reviewer commented that in Missouri the small populations in identified sites may be elements of larger metapopulations. These individual elements, because they are so small, are probably extirpated fairly frequently even in the absence of human disturbance. For this reason, it would seem prudent to conserve suitable, but currently unoccupied sites, since dispersal to such unoccupied sites must be important to the maintenance of the metapopulation. This does not necessarily mean that such sites should be designated as critical habitat for the species.

Our response

: While the Hine's Emerald Dragonfly (

Somatochlora hineana

Williamson) Recovery Plan recognizes that the patchy nature of habitat in Illinois and Wisconsin suggests a metapopulation structure in those two States, only three sites were known in Missouri at the time the Recovery Plan was written (Service 2001). We do not have adequate information to determine if the small populations of Hine's emerald dragonflies in Missouri are part of one

or more metapopulations. Such a hypothesis is best tested by conducting various genetic analyses. Genetic analyses of populations in Missouri were initiated in the summer of 2007; however, they are not yet complete. Until these genetic analyses are completed, it is difficult to assess the status of the Missouri populations of Hine's emerald dragonfly in relation to the overall distribution of the species. DNA analyses initiated by the Illinois Museum are ongoing, and final observations are forthcoming and to be published in a peer-reviewed journal.

(6)

Comment

: One peer reviewer stated that the rationales for exclusions are not easy to understand.

Our response

: In this rule, we have attempted to further clarify the rationale for our exclusions and why these exclusions are important to the overall conservation of the Hine's emerald dragonfly (see “Exclusions Under Section 4(b)(2) of the Act” section).

(7)

Comment

: One peer reviewer commented that exclusion of the Missouri units based solely on the fact that the habitat is surrounded by contiguous forest does not seem justified. Without knowing anything about the dispersal ability of the species, that fact alone seems insufficient to conclude that such populations may not be important in the long-term survival of the species in Missouri.

Our response

: We have described our reasons for excluding Missouri units from the critical habitat designation under the Exclusions section of this rule. We excluded those areas on the basis of existing conservation plans and partnerships, and not based on the fact that most sites are surrounded by contiguous, closed canopy forest.

(8)

Comment

: One peer reviewer suggested that we should include unoccupied habitat in areas that may serve as dispersal corridors or establish connectivity between sites in the critical habitat designation.

Our response

: We attempted to include areas that will serve as dispersal corridors that are contiguous with occupied habitat within our critical habitat units. However, little is known about what factors are essential to enable the species to disperse. We designated areas that were occupied at the time of listing and not now occupied in order to allow for connectivity between units. We also included habitat out to the average dispersal distance of the species in order to maintain this dispersal capability. Not all unoccupied sites may be suitable for dispersal corridors, however. We do not have enough scientific information to assess the importance of dispersal corridors to the conservation of the species. There are multiple reasons why Hine's emerald dragonflies may be absent from sites, even those that have all the necessary habitat requirements. Another peer reviewer noted that reasons such as interspecific interactions (for example, with other dragonflies) could preclude Hine's emerald dragonflies in sites that have all the necessary habitat requirements. For example, in Missouri, the distribution of the Hine's emerald dragonfly may be dictated in part by the presence of large dragonfly predators that have been observed preying on individuals of the same genus (

Somatochlora

) as the Hine's emerald dragonfly.

(9)

Comment

: One peer reviewer stated that designation of critical habitat for the Hine's emerald dragonfly is premature because of the lack of knowledge on the status and population structure of the Hine's emerald dragonfly.

Our response

: The Service was under a court order to complete the original designation of critical habitat and submit a final rule to the

Federal Register

by August 23, 2007. We were also under a court order to complete this revised critical habitat determination by April 15, 2010. Consequently, we proceeded with the critical habitat process for this species based on the best scientific data that were available at the time, as required by the Act.

(10)

Comment

: One peer reviewer asked if management plans exist for any of the areas in Wisconsin identified in the proposal.

Our response

: Lands owned by resource and conservation agencies in proposed critical habitat units in Wisconsin do not have existing management plans that specifically address the Hine's emerald dragonfly. Those entities with conservation plans for their properties include protective measures to conserve wetland habitat, and thereby help to conserve the dragonfly. Those plans, however, do not identify conservation measures for the Hine's emerald dragonfly.

(11)

Comment

: One peer reviewer recommended that research be conducted on dispersal, particularly female dispersal, and that we consider radio-tracking individual dragonflies, as has been done with Aeshnids (darners).

Our response

: Research on dispersal is a task identified in the Hine's Emerald Dragonfly (

Somatochlora hineana

Williamson) Recovery Plan (Service 2001, p. 48). The Hine's Emerald Dragonfly Recovery Team and species experts are assessing the feasibility of using a similar methodology as was used to radio track Aeshnids.

General Comments Received During the 2006, 2007, and 2009 Comment Periods

Issue 1: Biological Justification and Methodology Used.

(1A)

Comment

: Several individuals commented that the July 26, 2006 proposal (71 FR 42442) and the April 22, 2009 proposal (74 FR 18341) did not address groundwater recharge areas.

Our response

: In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining what areas are critical habitat, we shall consider those physical and biological features that are essential to the conservation of the species. Some groundwater recharge areas may be included within a critical habitat unit if they co-occur with the biological and physical features essential to the conservation of Hine's emerald dragonfly. Any Federal actions that may affect critical habitat, irrespective of the action's location inside or outside of a critical habitat unit, are subject to section 7 consultation, under the Act. This would include Federal actions that affect groundwater recharge to any of the critical habitat units.

(1B)

Comment

: One individual expressed that we did not show that the best available scientific data support the inclusion of the rail line in Illinois Units 1 and 2.

Our response

: The rail line in Illinois Units 1 and 2 does not contain the primary constituent elements and, therefore, does not meet the definition of critical habitat. Therefore, we have not designated it as critical habitat. As stated in the proposal and in this final rule, critical habitat does not include human-made structures existing on the effective date of a final rule and not containing one or more of the primary constituent elements. However, work performed on the rail line would be subject to the provisions of section 7 of the Act if that work could have adverse effects on designated critical habitat or the dragonfly.

(1C)

Comment

: One individual stated that it is not clear whether Wisconsin Unit 11 (containing Kellner's Fen) is sufficiently inclusive, and that this unit should also include the surrounding transitional habitat that may also contain primary constituent elements.

Our response

: In designating critical habitat at Kellner's Fen, we used the same criteria we used for all the other units. We designated areas containing the primary constituent elements for the dragonfly, including wetland (fen) areas, shrubby areas, and 100 m into adjacent forest habitat. The map in the

Federal

Register

is generalized, and does not show the habitat variations that actually exist within the unit.

(1D)

Comment

: One comment disputes the accuracy of the report's statement that adult dragonflies are active mid-June to mid-August.

Our response

: According to the Recovery Plan (Service 2001), larvae begin to emerge as adult, possibly as early as late May in Illinois and late June in Wisconsin and continue to emerge through the summer (Vogt and Cashatt 1994; Mierzwa

et al.

1997). The adults' known flight season lasts up to early October in Illinois (Vogt and Cashatt 1994) and to late August in Wisconsin (Vogt and Cashatt 1994). Fully mature adult Hine's emerald dragonflies can live at least 14 days and may live 4 to 6 weeks.

Issue 2: Procedural and Legal Compliance

(2A)

Comment

: Some commenters suggested that excluding Forest Service land was inappropriate as the Forest Service did not consult with the Service under section 7 of the Act. Two commenters mentioned a specific example, the Sprinkler Project on the Hiawatha National Forest, where they believed consultation was not completed. Further, the commenters suggested that designating critical habitat would ensure future consultation between the Service and Forest Service.

Our response

: Because we are now designating critical habitat on Forest Service land in Michigan and Missouri, all requirements under section 7(a)(2) are applicable. The Forest Service consistently consults on projects that may affect listed species, including the Hine's emerald dragonfly. The Forest Service completed section 7 consultation on Mark Twain's and Hiawatha's Land and Resource Management Plans. Several other informal and formal consultations have also been completed, including consultation on the Sprinkler Project in 2006.

(2B)

Comment

: One individual commented that the proposed rule states that the conservation role of Hine's emerald dragonfly critical habitat units is to support “viable core area populations,” but that the proposed rule did not provide sufficient information to allow commenters to determine whether the proposed units actually contain areas that support such Hine's emerald dragonfly populations.

Our response

: “Viable” means capable of living, developing, or reproducing under favorable conditions. We have used the best scientific and commercial information available to determine what conditions are favorable to Hine's emerald dragonfly, and the proposal provided information on the physical and biological features essential to the conservation of the species. We identified areas that are known to contain these features, provided descriptions of the features in each unit, and are designating only those units that contain the features that are essential to the conservation of the species.

(2C)

Comment

: One commenter questioned the legality of the critical habitat designation in regards to takings.

Our response

: The designation of critical habitat does not mean that private lands will be taken by the Federal government or that other legal uses will be restricted. We evaluated this rule in accordance with Executive Order (E.O.) 12630, and we believe that the critical habitat designation for the Hine's emerald dragonfly will not have significant takings implications. We do not anticipate that property values, rights, or ownership will be materially affected by the critical habitat designation.

Issue 3: Exclusions

(3A)

Comment

: Several commenters suggested that Michigan Units 1, 2, and 3 should not be excluded, because these units contain areas not covered by Federal or State management plans.

Our response

: The entire acreage encompassed by Michigan Units 1 and 2, including some small areas of non-Federal land, were excluded from the previous Hine's emerald dragonfly critical habitat designation published on September 5, 2007. Michigan Unit 3 was not excluded under the previous designation. As of this rule, all of Michigan units 1, 2, and 3 are designated as critical habitat.

(3B)

Comment

: The Forest Plans for the Mark Twain and Hiawatha National Forests do not justify excluding these areas from critical habitat. Although the Forest Plan may address conservation of the Hine's emerald dragonfly, they would not provide for consultation with the Service on future Forest Service actions that may destroy or adversely modify the dragonfly's habitat. Furthermore, while the Service recognizes logging as a threat to the species, the Forest Service has recently proposed timber cutting to protect the species. Neither the Forest Service nor the Service has produced evidence that this logging proposed under the Hiawatha Forest Plan is likely to benefit the dragonfly.

Our response

: Because we are now designating critical habitat on Forest Service land in Michigan and Missouri, all requirements under section 7(a)(2) of the Act are applicable. Section 7(a)(2) of the Act applies to any project funded or authorized by a Federal entity, including logging operations on National Forest land.

(3C)

Comment

: One commenter stated that excluding habitat on lands owned by the State of Missouri would lead to no net conservation benefit to the Hine's emerald dragonfly. Designating critical habitat would not harm our good working relationship with the MDC.

Our response

: MDC owns and manages all fens on Missouri State lands with Hine's emerald dragonflies. The MDC currently implements various habitat management and conservation actions to sustain and enhance the species at these fens. Furthermore, MDC has recently updated its Conservation Area Plans and the Husman Fen Natural Area Plan to incorporate additional conservation measures for the Hine's emerald dragonfly that will ensure the long-term management and maintenance of fens. The benefits to the species resulting from conservation measures being implemented by MDC would exceed any benefit to the species gained from the designation of critical habitat. Additionally, in their comments on the proposal, MDC requested they be excluded from the critical habitat designation because they anticipate some negative effects of designation. Because of their implementation of management plans for the Hine's emerald dragonfly, we are able to accommodate this request. To provide additional conservation benefits to the species on state-owned and private land, MDC completed a comprehensive Hine's Emerald Dragonfly Recovery Plan for Missouri (Missouri Department of Conservation 2007f) (MDC Recovery Plan). The MDC Recovery Plan outlines numerous recovery objectives, conservation actions, and management recommendations necessary to maintain Hine's emerald dragonfly habitat. These guidelines will help facilitate the recovery of the species in Missouri.

(3D)

Comment

: One commenter expressed that the perception of public hostility does not justify excluding private property. That commenter believed that the lack of support from the general public was due to the Service's failure to properly educate private landowners on the minor impact of designating critical habitat on their property. The commenter stated that the exclusion of all private property in Missouri from critical habitat designation without a unit-by-unit consideration of conservation benefits and landowner amenability is arbitrary.

Our response

: We have multiple examples where researchers have been denied access to private land to survey potentially new Hine's emerald dragonfly sites. In other cases, landowners who have documented Hine's emerald dragonflies on their property have been reluctant or apprehensive about taking advantage of multiple landowner incentive programs available to them due to false perceptions of critical habitat.

Service representatives, Hine's emerald dragonfly researchers, and personnel of the MDC's Private Land Services Division expended considerable effort in providing private landowners with information on the Hine's emerald dragonfly and outlining various landowner incentive programs. Despite the combined outreach efforts of multiple individuals, there is documented opposition by private landowners within the dragonfly's range in Missouri that is difficult to overcome. The designation of critical habitat on private property in Missouri would only exacerbate negative attitudes towards federally listed species. See 3I and 3K responses that talk more about management guidelines in a State recovery plan.

We considered the conservation benefits of designating critical habitat for each unit under private ownership, as well as the benefits of excluding the area from critical habitat. The Service weighed the benefits of each, and concluded, using the discretion afforded to the agency under the Act, that actions for the conservation of the species would be best realized if the lands were excluded. More discussion on this topic is covered under the “Exclusions Under Section 4(b)(2) of the Act” section.

(3E)

Comment

: One commenter expressed that Illinois Unit 2 should be excluded from the critical habitat designation, under section 4(b)(2) of the Act, because the substantial benefits of exclusion outweigh any potential benefits of designation and the exclusion will not result in the extinction of the species.

Our response

: While the Service recognizes the cooperation of the landowners in Illinois Unit 2, formal conservation agreements or management plans have not been prepared for this unit and, therefore, the future management and protection of this unit are unknown. The landowners of this unit are in the very initial stages of developing a Habitat Conservation Plan for the species. This Habitat Conservation Plan, however, is not complete enough at this time to allow us to evaluate the conservation benefits to the species.

(3F)

Comment

: One commenter stated that Commonwealth Edison's right-of-way in Illinois Units 1-5 and 7 should be excluded because designation of these areas would put Commonwealth Edison's normal operations at severe risk. Another commenter expressed that in Illinois Units 1 and 2, the generating station, rail line, and land adjacent to those structures should be excluded.

Our response

: To the greatest extent possible, we avoided including developed areas containing buildings, rail lines, electrical substations, and other urban infrastructure within critical habitat units. Where we have not been able to map out these structures we have excluded them by text. As stated in this rule, critical habitat does not include human-made structures existing on the effective date of a final rule not containing one or more of the primary constituent elements (see definition of “primary constituent elements” in subsequent section). Therefore, human-made structures including utility poles, power lines, rail lines, and the generating station are not included in the critical habitat designation. However, areas around the human-made structures that consist of habitat containing the primary constituent elements of Hine's emerald dragonfly habitat are included in the designation.

Although Commonwealth Edison has been a valued partner in the conservation of Hine's emerald dragonfly, and is one of the parties involved in the preparation of a Habitat Conservation Plan for the species, no management plans for their right of way currently exist.

(3G)

Comment

: Three commenters expressed that the life of a forest plan is likely shorter than the time it will take to recover the Hine's emerald dragonfly. They added that there is no guarantee that the forest plans would be in place or implemented in the future. Therefore, they question the exclusion of Forest Service land in Michigan and Missouri.

Our response

: The intended cycle of National Forest plans is 10-15 years. The Mark Twain and Hiawatha National Forest Land and Resource Management Plans were approved in 2005 and 2006, respectively. As identified in the Hine's Emerald Dragonfly (

Somatochlora hineana

Williamson) Recovery Plan, anticipated recovery of the Hine's emerald dragonfly could occur as early as 2019 (Service 2001, p. iv). While we concur that it is likely that current management plans for the Mark Twain and Hiawatha National Forests will expire before the Hine's emerald dragonfly can be recovered, we believe that the track record of cooperation between us and the two national forests outlines the Forest Service's commitment to the conservation of federally listed species under sections 7(a)(1) and 7(a)(2) of the Act. Once the current plans have expired, we are confident that both the Mark Twain and Hiawatha National Forests will complete consultation on the new plans. These consultations will further ensure that actions outlined in future land and resource management plans will not jeopardize the continued existence of any federally listed species, including the Hine's emerald dragonfly. We believe that standards and guidelines established for the Hine's emerald dragonfly will continue to contribute to the conservation of the species until it is recovered and removed from the list of federally protected species. Despite the benefits realized from implementation of the various actions outlined in Forest Service LRMPs for these two national forests, we are designating critical habitat on Forest Service land because we believe the benefits of designating those areas outweighs the benefits of excluding those areas from designation.

(3H)

Comment

: One commenter expressed that we should exclude Illinois Units 1, 2, and 3 because of long-term stakeholder commitment and the Habitat Conservation Plan that is being written.

Our response

: Though we are pleased with the progress made to date on the Habitat Conservation Plan, it is still far from complete, and too early to judge its ultimate outcome. At this early stage, the developing Habitat Conservation Plan is not complete enough for us to evaluate whether habitat for the Hine's emerald dragonfly would be appropriately managed. Generally we do not consider excluding an area from critical habitat based on a draft Habitat Conservation Plan until the conservation measures have been determined, an environmental analysis has been completed and released for public review, and we have determined that issuing the associated incidental take permit would not result in a jeopardy or adverse modification finding for the species or its critical habitat. Therefore, we are not excluding Illinois Units 1, 2, and 3 at this time.

(3I)

Comment

: One commenter concluded that there is no reasonable basis for excluding privately owned sites in Missouri and designating Illinois Units 1 and 2. Excluding units in Missouri suggests that similarly situated parties are being treated differently.

Our response

: Threats identified for the Hine's emerald dragonfly on private

land in Missouri are addressed through close coordination among personnel with the MDC's Private Land Services Division or Regional Natural History biologists and private landowners. Additionally, MDC personnel work closely and proactively with the National Resources Conservation Service (NRCS) and the Service's Partners for Fish and Wildlife Program to initiate management and maintenance actions on privately owned fens occupied by the Hine's emerald dragonfly that benefit the species and alleviate potential threats.

One site on private property in Missouri is owned and managed by The Nature Conservancy through the implementation of a site-specific plan (The Nature Conservancy 2006, pp. 1-4) that maintains fen habitat. One site under private ownership is a designated State Natural Area that is managed by the MDC through a site-specific plan (Missouri Natural Areas Committee 2007). This plan ensures that the integrity of the fen is maintained (Missouri Natural Areas Committee 2007, pp. 3-29). Hine's emerald dragonfly sites on Missouri State-owned and private land will be further maintained by implementing management guidelines outlined in a State recovery plan that was recently completed (Missouri Department of Conservation 2007f). However, at this time there are no conservation plans in place for Illinois Units 1 and 2 that would guide the implementation of similar measures. In addition, Illinois Unit 1 is a publicly owned site.

(3J)

Comment

: One commenter was concerned with the exclusion of large areas of lands in Michigan and Missouri based solely on the existence of management plans. The commenter suggested that given the uncertainties surrounding funding and implementation, the Service should consider designating these areas. Another commenter opposed exclusion of Michigan Units because the Hine's emerald dragonfly is mobile, and designation of all possible habitat areas is necessary to support increased numbers of the species. Furthermore, the commenter suggested that, by excluding critical habitat areas, we spent more time and money on the designation process.

Our response

: While available funding will likely impact the amount of Hine's emerald dragonfly conservation work that occurs in any one year, we are confident that the Forest Service will continue to place a high emphasis and priority on its obligation to contribute to the conservation of the species. In addition, State land management agencies in Missouri are committed to the implementation of recovery actions outlined in their management plans and the recently completed Missouri Hine's Emerald Dragonfly Recovery Plan (Missouri Department of Conservation 2007f). Because we are now designating critical habitat on Forest Service land in Michigan and Missouri, all requirements under section 7(a)(2) are applicable.

In evaluating which areas to exclude, we requested and reviewed management plans and other relevant information. This analysis was conducted for all of the Hine's emerald dragonfly habitat areas we identified as meeting the definition of critical habitat. For excluded units, more time was spent on reviewing pertinent information, addressing public comments, and incorporating public input than for designated critical habitat units. This, however, was not due to the exclusion process, but rather to the amount of pertinent information available for these units (management plans for private and State-owned lands in Missouri) and the large number of public comments associated with exclusion. The evaluation and incorporation of relevant information and public comment was a necessary part of our critical habitat designation.

(3K)

Comment

: One commenter requested that the Service provide an independent rationale why areas adjacent to Forest Service land that are on private property should be excluded.

Our response

: In Missouri, we are excluding sites on private land adjacent to Forest Service land because the management and maintenance of these areas are covered through close cooperation between private land owners and the Missouri Department of Conservation in the implementation of recommendations outlined in the Missouri Hine's Emerald Dragonfly Recovery Plan (Missouri Department of Conservation 2007f).

Issue 4: Economic Issues

(4A)

Comment

: The proposed critical habitat rule states that “to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost” (71 FR 42443). Two commenters contend that there is no evidence that social or economic costs apply to the Hine's emerald dragonfly critical habitat designation and that some private landowners have recognized that critical habitat designation poses no social or economic threat. Furthermore, the economic and social benefits of critical habitat designation are ignored.

Our response

: The economic analysis evaluates the potential economic costs associated with critical habitat designation, and also discusses the benefits of critical habitat designation. Based on our economic analysis, estimated future costs associated with conservation efforts for the dragonfly in areas designated as critical habitat range from $11.0 million to $25.7 million, over the next 20 years, applying a 7-percent discount rate.

The published economics literature has documented that social welfare benefits can result from the conservation and recovery of endangered and threatened species. In its guidance for implementing Executive Order 12866, the Federal Office of Management and Budget (OMB) acknowledges that it may not be feasible to monetize, or even quantify, the benefits of environmental regulations due to either an absence of defensible, relevant studies or a lack of resources on the implementing agency's part to conduct new research. Rather than rely on economic measures, the Service believes that the direct benefits of the proposed rule are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking. Critical habitat designation may also generate ancillary benefits. Critical habitat aids in the conservation of species specifically by protecting the primary constituent elements on which the species depends. To this end, critical habitat designation can result in maintenance of particular environmental conditions that may generate other social benefits aside from the preservation of the species. That is, management actions undertaken to conserve a species or habitat may have coincident, positive social welfare implications, such as the preservation of open space in a region. While they are not the primary purpose of critical habitat, these ancillary benefits may result in gains in employment, output, or income that may offset the direct, negative impacts to a region's economy resulting from actions to conserve a species or its habitat. It is often difficult to evaluate the ancillary benefits of critical habitat. To the extent that the ancillary benefits of the rulemaking may be captured by the market through an identifiable shift in resource allocation, they are factored into the overall economic impact assessment. For example, if habitat preserves are created to protect a species, the value of existing residential property adjacent to those preserves may increase, resulting in a measurable positive impact. Ancillary benefits that affect markets are not

anticipated in this case and therefore are not quantified.

(4B)

Comment

: One commenter suggested that the proposal was premature and legally deficient because it lacked an economic analysis.

Our response

: Under the Act, and clarified in our implementing regulations at 50 CFR 424.19, we are required to, “after proposing designation of [a critical habitat] area, consider the probable economic and other impacts of the designation upon proposed or ongoing activities.” The purpose of the draft economic analysis is to determine and evaluate the potential economic effects of the proposed designation. In order to develop an economic analysis of the effects of designation critical habitat, we need to have identified an initial proposed critical habitat designation. Following publication of the critical habitat proposal for the Hine's emerald dragonfly, we developed a draft economic analysis of the proposed designation that was made available for public review and comment on March 20, 2007, for 14 days, and reopened for public review and comment on May 18, 2007, for 45 days. On the basis of information we received during the public comment periods, we may, during the development of our final critical habitat determination, find that areas we proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We have not, however, excluded any areas from the final designation based on economic reasons.

(4C)

Comment

: One commenter expressed that Midwest Generation's rail line and immediately adjoining areas in Illinois Units 1 and 2 should be excluded from critical habitat based on economic impacts, and they provided an independent economic analysis of alternative coal delivery systems.

Our response

: On March 20, 2007, we completed an economic analysis that addressed these issues. As stated above and in the proposed rule “critical habitat does not include human-made structures existing on the effective date of a final rule not containing one or more of the primary constituent elements.” The rail line is not part of Illinois Units 1 and 2 because it was excluded by text from the proposal rule and from this final rule. Areas around the rail line that are not human-made but contain at least one primary constituent element are included. We determined that the relatively minor economic costs as described in the draft economic analysis do not justify excluding those areas from critical habitat.

(4D)

Comment

: One commenter expressed concerns about the effects of critical habitat designation on the future of the State snowmobile trail system in Door County, Wisconsin, and on improvements to, and installation of, new trails. Concerns include loss of the State trail corridor, which could bankrupt snowmobile clubs in the area, and loss of associated tourist revenue in Door County.

Our response

: While the designation of critical habitat for the Hine's emerald dragonfly does not directly affect private landowners without a Federal nexus, it does alert them to the presence of an endangered species on their land and the need to ensure that their activities are consistent with the conservation of the species. Snowmobiling activity on upland areas in the winter will not affect the dragonfly, as adults are not flying in winter and the larval stage overwinters in crayfish burrows in wetlands. Construction and maintenance of snowmobile trails in upland locations at any time of year are not anticipated to affect the dragonfly. If construction and maintenance activities are planned in or near wetland areas occupied by the dragonfly, measures should be taken to preclude adversely affecting the wetlands or their hydrology. As we anticipate that snowmobiling activities will not be adversely affected by designation of critical habitat, we do not anticipate impacts to tourist revenues associated with snowmobiling in Door County.

(4E)

Comment

: One commenter stated that it was unclear from information in the economic analysis whether a determination had been made regarding exclusion of additional areas from the designation of critical habitat for all or some of the units in Illinois based on economic impact.

Our response

: The purpose of the economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Hine's emerald dragonfly. The economic analysis did not make a determination about any exclusions. The economic analysis is conducted to inform the Secretary's decision about exclusions. The final determination is made in this rule (see “Exclusions Under Section 4(b)(2) of the Act” section). Based on the information in the draft economic analysis and the comments received during the public comment period, we are not excluding any areas based on economic impacts.

(4F)

Comment

: One commenter asserts that there is little (if any) economic activity in Alpena, Mackinac, or Presque Isle Counties in Michigan. The commenter asserts that declining human populations in these counties is evidence of minimal economic activity.

Our response

: The methodology used to obtain land values is discussed in Section 2.1 of the economic analysis, and the land values for each potential critical habitat units are presented in Exhibit 2-3. These values reflect the level of actual economic activity in these counties. The land in the three Michigan counties that coincides with the study area is valued at $1,430 per ac in Alpena County; $4,380 per ac in Presque Isle County; and $1,510 per ac in Mackinac County. The land value estimates for economic impacts in these counties (for units MI 3, MI 4, MI 5, and MI 6) were obtained from local zoning and tax assessor officials in these counties. The price of land in the present constitutes the expected value of current and potential future values of that land. Each of the proposed critical habitat units are near waterfront access and roads, which may make them valuable now or in the future.

(4G)

Comment

: Two comments state that the economic analysis fails to define an appropriate baseline, specifically: (1) The analysis of future conservation measures as co-extensive is unjustified; and (2) the inclusion of past costs associated with the proposed critical habitat as consequences of the critical habitat designation is erroneous.

Our response

: (1) The economic analysis includes co-extensive costs because courts and the public have asked to see us display all of the costs of critical habitat, whether or not these costs are co-extensive with other causes. (2) The economic analysis explains why past costs are included in the introduction of Chapter 1. The retrospective analysis of past costs is included to provide context for future costs, and in some cases to help predict them. The Service is not suggesting that these costs are a result of the critical habitat designation. Reporting of past costs is also reviewed in Section 1.4 of the economic analysis, where their inclusion is justified on the basis that past costs may have contributed to the efficacy of the Act in that area.

(4H)

Comment

: Two comments state that the economic analysis does not include benefits in the analysis. The un-quantified benefits they list are: Protection of ecosystem services;

increased recreational and wildlife opportunities; reduced flood risks; concurrent conservation of other species; enhanced groundwater recharge; mosquito reduction; existence value of the dragonfly; protection of other species; wetland protection; decreased use of pesticides, chemicals, and herbicides; and potentially higher property values. One of the comments provides testimony of landowners who want to preserve the dragonfly on their property as evidence of existence value. This comment then proceeds to list several non-use valuation techniques. Another comment argues that the benefits should be expressed in monetary terms rather than in biological terms.

Our response

: Potential benefits from critical habitat designation are discussed in Section 1.4 of the economic analysis, which recognizes the valuation methodologies discussed by the commenter. The section then describes the policy of the Service whereby benefits are expressed in biological terms. This section also discusses how ancillary benefits are not expected in the case of the Hine's Emerald Dragonfly. The OMB has acknowledged that it may not be feasible to monetize or quantify benefits because there may be a lack of credible, relevant studies, or because the agency faces resource constraints that would make benefit estimation infeasible (U.S. OMB, “Circular A-4,” September 17, 2003, available at

http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf

.).

(4I)

Comment

: One comment states that the economic analysis does not explain how the results of the analysis will be used in the critical habitat designation process.

Our response

: In the introduction to Chapter 1, the Framework for Analysis states that the economic analysis will be used to weigh the benefits of excluding particular proposed critical habitat areas against the benefits of including them.

(4J)

Comment

: One comment states that the economic analysis does not consider the effects of other land use regulations that may affect how land can be developed or used, and that value losses attributed to critical habitat designation may be improperly attributed.

Our response

: Land use regulations and how they affect land values are discussed in Section 2.1 of the economic analysis, in the context of Exhibit 2-3. First, the analysis explains that present land values will reflect the opportunities for development of that land. In this way, the present value of land incorporates all current and expected future regulatory constraints upon land use.

As an illustration, consider three identical parcels, one which housing can be built on with certainty, one which may or may not be subject to regulatory constraints that prohibit the construction of housing, and one where housing construction is absolutely prohibited. The price of the parcel where housing can be built (with certainty) will incorporate the option value for that housing and will sell for the highest price. The parcel where housing may or may not be built due to uncertainties about future regulation will sell for less than the parcel on which housing can be built with certainty, but will sell for more than the parcel where no housing can be built. The market price for land is net of the expected effect of current or future regulations. As described in Section 2.1 of the economic analysis, the GIS process for determining land values took into account zoning regulations and ownership types before determining land values from tax parcel records and interviews with zoning and planning officials. Impacts in this analysis are predicted using the best publicly available data for reasonably foreseeable land uses.

(4K)

Comment

: One commenter argues that the assumption that the value of land is immediately lost is erroneous because there is imperfect information in markets.

Our response

: Section 2.1 of the economic analysis provides an explanation of how real estate markets work, and how current prices are the market's best prediction of future land values. It is correct that all consumers are not perfectly informed about products in a marketplace. In the real estate market, a lack of knowledge can result in a higher or lower property value. In the case of a newly regulated market, this would mean that buyers would still be willing to pay too much for the property.

The goal of the analysis in Section 2.1 is to predict the market equilibrium outcome. Limited information among buyers may cause them to pay too much for the property in the short run, but once the market is informed, everyone will pay the true (lower) market equilibrium value. There are many studies that have empirically shown that, though there may be imperfect information among some potential buyers, real estate markets respond quickly to changes in land use regulation (Kiel 2005; Guttery

et al.

2000). The assumptions used in this analysis are based on the best available information.

(4L)

Comment

: One comment states that the economic analysis improperly inflates the lost value of development because including all land values as lost development values assumes that these lands are certain to be developed, and there is no certainty that the land will be developed.

Our response

: Section 2.1 of the economic analysis addresses this in its discussion of how real estate prices adjust to expectations about future property uses. This analysis does not assume that all lands are certain to be developed. The present price per parcel of land incorporates the expected value of potential current and future uses of that land, regardless of when, or if, the land is ever developed. If current and potential uses are taken away, or if the quality of the land declines, the price of the land parcel will decrease (Quigley and Rosenthal 2005; Kiel and McClain 1995). Even the perception that the quality of the land may change can affect real estate values (Kiel and McClain 1996). Land that can be developed will command a higher price because it could be developed (even if it is never developed), and it is that expected value that the analysis considers.

(4M)

Comment

: One comment states that the economic analysis fails to establish a proper baseline because it does not consider potential regulatory changes or changes in market demand. The comment does not specify what specific changes are likely other than potential changes due to global warming or peaked oil production. A similar comment suggests that the assumption that a dolomite mine in Illinois Unit 2 will close because of critical habitat designation does not consider the impact of unknown future events.

Our response

: Section 2.1 of the economic analysis reviews the data sources and analytic procedures used to assess the potential value losses over the next 20 years. These data are the best data that are publicly available and as such provide the basis for the prediction of impacts for reasonably foreseeable land uses under expected future conditions. While costs attributable to critical habitat may result from other factors, we cannot speculate about future events. We must use the best information available to us at the time of the analysis.

(4N)

Comment

: One comment states that the economic analysis estimates of lost property values are incorrect because the analysis does not consider changes to the value of properties outside the study area. The comment argues that if some parcels of land are removed from the market, then other

parcels of land will increase in value by the amount of the decrease in land value lost, so that the net economic effect will be zero change.

Our response

:The potential for land use restrictions to affect neighboring properties is a valid concern. If there are no substitute parcels available in the vicinity of the parcel to be regulated (no other land that could be sold), then the price for land in that location will be driven up, and there will be a net gain for surrounding landowners, which could offset (fully or partially) the loss of value for the critical habitat units. However, if substitute parcels of land are plentiful in the vicinity of the critical habitat, then the consumer will have many options to choose from, and will not have to pay a higher price for substitute parcels, hence there will be no increase in surrounding land values (Quigley and Swoboda 2006).

Section 2.1 of the economic analysis discusses the possibility that the amount of land available for development in the vicinity of the study area could be very limited. However, the area of land under consideration for designation as well as the value of that land indicates that there will not be a significant impact on the local real estate market. That is, the amount of land that could be removed from development is not believed to be enough to increase surrounding land values. Results from sampling multiple listing services in Michigan and Wisconsin indicate that limiting residential development on vacant parcels will not have a substantial impact on the local land markets. That is, prices of surrounding parcels are unlikely to change and it is unlikely that there will be effects on the community's well-being, because there are many substitute parcels for the critical habitat units.

Sampling of Alpena County, Michigan found 146 parcels; the 50 sampled parcels had an average size of 24.5 ac, and an average asking price of approximately $68,000. Sampling of Mackinac County, Michigan found 229 parcels; the 50 sampled parcels had an average size of 5.8 acres, and an average asking price of approximately $90,000. Sampling of Presque Isle County, Michigan found 255 parcels; the 50 sampled parcels had an average size of 23 ac, and an average asking price of approximately $81,000. Sampling of the Door County (Wisconsin) Realtors Multiple Listing Service found approximately 550 vacant parcels of various sizes; the 50 sampled properties had an average size of 4.15 ac and an average asking price of approximately $66,000. This information is now included in Section 2.1.

(4O)

Comment

: One comment states that the limitation on resource extraction values in Illinois Unit 2 would not have had an effect because the losses in value would be offset by increases in values to competitors. The comment says that the analysis does not consider whether other companies will profit if Material Services Corporation cannot mine the parcel in critical habitat. The comment also argues that the DEA does not consider the fact that there may be lower cost companies that would profit more if the limitation were passed.

Our response

: The magnitude of the dolomite deposits in Illinois Unit 2 relative to the rest of the Illinois dolomite market is discussed in Section 2.2.1 of the DEA. The annual revenue from the dolomite mine in Illinois Unit 2 is estimated to be $500,000. As noted in the report, the annual extraction of dolomite in Illinois has an approximate value of $470 million. Approximate dolomite revenues for Will County specifically (the county containing the mine in Illinois Unit 2) are $94 million. While losses of $500,000 per year to the mining company will be substantial, the expected revenues from this single mine are not significant relative to the entire market. That is, not allowing the dolomite in Illinois Unit 2 to be mined will not cause prices faced by competing companies to change; competitors will make no offsetting welfare gains (Just

et al.

2004).

The commenter suggests that other companies may be able to compensate for decreased mining activity in Illinois Unit 2 by increasing operations at other facilities, and that there will be no net loss to society. The commenter is correct that any shortfall due to the mine being unable to operate will likely be made up by from other places (especially since the magnitude of the mine is small relative to the overall market). There will still be, however, the lost resource value for the company that is not allowed to mine this specific property.

The comment also contends that another mine may have lower costs, and that increased operations at that mine may be more efficient. At this time, there are no publicly available data concerning different costs structures for dolomite mining companies.

(4P)

Comment

: One comment states that the DEA does not consider alternative uses for the land in Illinois Unit 2 if the mine is not allowed to operate. The comment suggests that there might be wildlife viewing values for the property, or that the limitation on the mine would make nearby house values increase.

Our response

: The commenter makes a valid point: Alternate land uses are not considered in this estimation for this proposed unit. In section 2.2.1 of the DEA, the analysis reports the mitigation costs of conservation that would be required to offset mining activities as well as the value lost if mining is not allowed. If mining is not allowed, there may be other uses for the property, but the values of the uses will be negligible compared to the lost mining resource value. It is unlikely that there could be significant economic benefits from preserving this parcel from mining. Visual inspection of Exhibit 1 in Appendix F shows that Illinois Unit 2 is located in an industrial corridor. In fact, the area proposed for the mine is surrounded by previously mined areas and industrial or transportation facilities. These location specifics make it unlikely that residential property values would be increased if the mine does not operate; there are no houses nearby and the effect of the industrial corridor that the mine is a part of will have a value-dampening effect. There is not likely to be any increase in wildlife viewing values from a critical habitat designation, as the designation does not make any private land available to the public for wildlife viewing, nor does it increase the ability of the public to view wildlife on public lands where such viewing would be available even absent the designation.

(4Q)

Comment

: One comment states that the economic analysis fails to include other alternatives to deep water wells as potential means to offset decreases in the water table. This comment argues that water conservation measures and storm water conservation regulations should be included as alternative water management strategies in the analysis.

Our response

: Section 3.1 of the DEA describes the threat of water depletion and Section 3.1.1 discusses residential consumption and the methodology that was taken to calculate estimated costs for deep aquifer well drilling. The section contends that one potential remedy for depletion of groundwater levels (and subsequent habitat impacts) is to drill municipal wells into the deep aquifer to meet current and future water demands, as discussed by the Service. Other adaptive behaviors may be feasible, but there are no publicly available data available to model them.

(4R)

Comment

: One comment states that the estimation of costs to drill deep aquifer wells assumes that these wells would not be drilled for population

increases if critical habitat designation did not occur; and thus their inclusion inflates the cost estimates.

Our response

: The argument that deep aquifer wells may be drilled regardless of the habitat designation is valid. The analysis does assume that new wells will be drilled in response to population growth. However, the analysis states that the presence of critical habitat could prompt new wells to be drilled into the deep aquifer instead of the upper aquifer. The estimated impact due to critical habitat designation is the projected difference between the cost of deep and upper aquifer wells for future population growth. Section 3.1.1 of the DEA discusses residential consumption of water and how population growth estimates are used to predict the number of new wells that will be needed. It is not known whether any new wells will be drilled, and if drilled, whether they will be drilled into the upper or lower aquifer (though upper aquifer wells are less expensive). It is for this reason that both a low (no deep aquifer well costs) estimate is included with a high estimate (which assumes all deep aquifer costs are in response to the dragonfly). The range of costs between the low (zero) and high estimates spans the potential costs for water use mitigation that may occur in these proposed critical habitat units. The use of a range of estimates addresses the concerns about the uncertainty of whether deep aquifer wells would be drilled or not in response to population increases.

(4S)

Comment

: One comment states that the inclusion of invasive species control costs as coextensive is inappropriate, since other species may have been affected.

Our response

: The economic analysis discusses invasive species control measures and costs in Section 6.3. Invasive species control was listed as a threat to the species and a potential adverse affect to critical habitat in the proposed rule. Invasive species control has been ongoing in most critical habitat units and will continue regardless of the presence of Hine's emerald dragonfly or the designation of critical habitat.

(4T)

Comment

: One comment addresses the estimation of impacts from the Interstate 355 extension in Chapter 2 of the DEA. This comment states that “total costs for I-355-related development activities range from a low of $11.8 million to a high of $18 million. This number includes opportunity costs to vehicles that have to slow down due to the presence of the dragonfly, since the Illinois Department of Transportation (IDOT) chose to build the road through dragonfly habitat....” The comment also states that the costs that are discussed will occur before the designation takes place. The comment then states that the DEA does not consider the possibility that IDOT could have decided to not build this road due to the presence of the dragonfly.

Our response

: In Section 2.3.2 of the DEA, past costs are estimated to be $1.8 million (undiscounted), as shown in Exhibit 2-7. Future costs are estimated to be $2.3 million (undiscounted) as shown in Exhibit 2-8. The economic analysis does not address speed limits on roads through dragonfly habitat in this section. The costs for the interstate extension do not involve any traffic slowing costs, since the interstate extension is being built 8 feet higher than it otherwise would be built to avoid dragonfly collisions (hence avoiding the need for a limited-speed zone); see Section 2.3.2. The costs to build the roadway higher are included in the analysis. Opportunity costs from lost time due to speed limits to avoid take of dragonflies are estimated for other units — IL 7, WI 4, and WI 5. The costs for the I-355 extension are in unit IL 4.

The comment that these costs will be realized before designation is partially correct. Exhibit 2-7 displays the costs of mitigation and conservation through 2006. The costs in Exhibit 2-8 include costs incurred from 2007 through 2026. These costs include costs incurred in the current year, since this is an ongoing project, and costs may be incurred during the proposal period. Most of the dragonfly-specific costs are attributed to a 20 year period (2007-2026).

The economic analysis does not provide economic estimates for a scenario in which the overpass is not built. The overpass construction was substantially under way when the proposed rule considering designation was published. Since the Illinois Tollway Authority had made several conservation and mitigation efforts for the dragonfly, these impacts were included in the analysis.

(4U)

Comment

: One comment states that the economic analysis fails to include all the relevant information concerning travel time lost due to speed limitations on passenger trains in the analysis. Specifically, the comment states that the analysis does not include time lost for riders of METRA commuter trains, nor does it consider the value of passenger time lost (as well as additional fuel costs) for deceleration in preparation for, and acceleration after, the limited speed zone.

Our response

: The commenter raises some valid concerns. The economic estimates (Section 5.1) were based upon the best publicly available data at the time. Newly available ridership information for METRA (which was initially omitted) and actual ridership information for AMTRAK (which had been overestimated by a factor of five by the AMTRAK source contacted initially), and adding in the time value lost and additional fuel costs due for acceleration and deceleration, increases the vehicle slowing costs for Illinois unit 7 from $12.6 million to $13.7 million (undiscounted). This corresponds to an increase in costs from $7.1 million to $7.8 million (discounted at 7 percent). These cost increases are insufficient to change the rank orderings of units by level of impact for the high-end estimates (see Exhibit ES-6).

(4V)

Comment

: One comment states that the value of increased train carbon emissions from the deceleration and acceleration are also not quantified for these actions.

Our response

: The commenter is correct; the economic analysis does not quantify increased emission levels due to deceleration and acceleration. The marginal quantities of emissions are not likely to be substantial. In addition, there is no emission trading markets for mobile source diesel fuel emissions. In the absence of such a market, cost estimates for additional carbon pollution would be speculative.

(4W)

Comment

: One comment states that the economic analysis does not include the costs in increased traffic congestion from train riders switching to commuting by car that a speed limitation on AMTRAK and METRA commuter rail trains passing through Illinois Unit 7 would generate.

Our response

: The commenter is correct. This comment is concerned with the estimation of values in Exhibit 5-3, Section 5.1 of the DEA. New calculations based on information obtained during the comment period quantified the increased delay for causing the AMTRAK and METRA to decelerate from 79 miles per hour (mph) to 15 mph, travel 15 miles per hour for one quarter mile, then accelerate back to a speed of 79 mph.

The estimated time delays are minimal and thus unlikely to be sufficient to cause many travelers to switch to automobile travel. The additional time taken for deceleration would be 36 seconds. The additional time taken for traveling 15 mph for one quarter mile (mi) would be 45 seconds. The increase in travel time for acceleration would be 40 seconds. The additional 2 minutes and 1 second of travel time is highly unlikely to cause train travelers to switch to travel by automobile, especially since the road

that runs parallel to the track that would have the speed limits will be subject to the same speed limit as well. Travel times on the parallel roadway will increase by at least 3.25 minutes. These estimates, and their derivation, are discussed in Section 5.1.

The economic literature on mode-split indicates that an increase in travel time on a commuter train is unlikely to cause much of a shift to car use. Mode-split studies measure how sensitive travelers are to changes in the cost of traveling. An increase of 10 percent of travel time on a commuter train during peak commuting time will cause a 1-percent increase in demand for commuting by automobile (Lago and McEnroe 1981). The additional delay in unit IL 7 may cause a small increase in travel by car. However, the literature indicates that commuters who travel by rail are not very sensitive to small increases in travel times. The estimated change in demand cited above is illustrative of general behavior; there are no publicly available models or data for modeling this specific situation.

(4X)

Comment

: One comment questions the accuracy of projected cost estimates in Exhibit 4-8 relative to the information provided. The comment is specifically concerned with the dates of anticipated costs from 2011-2014 and from 2007-2026.

Our response

: The costs that the comment is concerned with are listed in Exhibit 4-8, Section 4.3 of the DEA. These estimates were obtained from documents provided by Midwest Generation concerning costs they have incurred and expect to incur for work done on the railroad line in Illinois Units 1 and 2. The calculations used to spread costs over the periods 2011-2014 and 2007-2026 were not presented in the draft economic analysis. These calculations are now included in Exhibit 4-8.

Future (long-term) rehabilitation costs from 2011 to 2014 are listed in a document submitted by Midwest Generation during the public comment period. The document is entitled “List of Midwest Generation's Environmental Activities Associated with the Rail Line and HED Commitments.” The end of the first paragraph of that document concludes: “Long term maintenance items should be implemented in the four to seven year range....” Four years from the first final rule is 2011 and seven years from the proposed rule is 2014. Accordingly, the long-term rehabilitation costs are spread over those years. These are the costs estimated to take place from 2011 to 2014.

(4Y)

Comment

: One comment states that railroad maintenance and culvert maintenance should not be considered threats. The comment states, “The Service contends that this process is maintenance that the railroad would have to do regardless of the dragonfly, but recognizes that undercutting, combined with the construction of approximately 4 new French drains, and regular culvert maintenance may be potential options for mitigating the hydraulic pumping problem.”

Our response

: Specific types of railroad maintenance, combined with undercutting, are listed in Section 5.2 of the DEA as mitigation measures that respond to the specific threat of the hydraulic pumping of sediments. As discussed in Chapter 4 of the DEA, maintenance activities may also pose threats to critical habitat. A clarifying sentence has been added to the referenced paragraph in the DEA: “While regular maintenance may help mitigate the hydraulic pumping problem, maintenance activities may still pose a threat to critical habitat. An additional clarifying footnote was added following this sentence: “There are types and methods of railroad maintenance that may be employed without threatening the dragonfly or its habitat; Section 4.3 addresses the additional costs of performing such dragonfly sensitive maintenance.”

(4Z)

Comment

: One comment states there is no concession stand in unit WI 5.

Our response

: This apparent error occurs in Section 2.2.3. There is an interpretive center/gift store located in WI 5. This store is referred to as a “concession” in local zoning documents. This confusion has been clarified in the text.

Issue 5: Site-Specific Issues

(5)

Comment

: We received four comments on the July 26, 2006, proposal (71 FR 42442) and the April 22, 2009, proposal (74 FR 18341), suggesting that we designate multiple areas of unoccupied habitat in Michigan, including the Stonington Peninsula, Garden Peninsula, Munuscong Bay, Drummond Island, Pointe Aux Chenes River, Wilderness State Park, Lennagene Rossman Stratton Memorial, Peter Memorial, Mystery Valley and others. Additionally, the commenters suggested we designate multiple areas in Michigan where the Hine's emerald dragonfly has been observed on site or within 2 miles of a known locality.

Our response

: We did not designate unoccupied habitat listed by the commenters because there are no current or historical records documenting the presence of the species at these sites. In 2006, the Hiawatha National Forest conducted surveys on the Stonington Peninsula and did not document the presence of Hine's emerald dragonflies from this locality.

With regard to sites where the Hine's emerald dragonfly has been observed or where it was observed within a 2-mi (3.3-km) radius, we used the methodology outlined under the section of this rule on “Criteria Used to Identify Critical Habitat.” In drawing the outer boundary of a unit, we extended the unit boundary from the dragonfly larval habitat up to 100 meters (328 feet) where the primary constituent elements are found unless we reached areas that did not contain the primary constituent elements before that 100 meters (328 feet), such as a closed canopy forest, roadway, or another natural or human-made break in habitat. This boundary extension is to provide foraging areas for the species. A small number of dragonfly observations do not fall within a critical habitat unit. For instance, a one-time observation of a single foraging Hine's emerald dragonfly would not provide enough information to adequately determine the location of the core breeding habitat. We believe that there could be undiscovered Hine's emerald dragonfly breeding sites in Michigan, but using the best scientific data currently available, we have identified the six breeding areas in Michigan of which we are aware.

Issue 6: Effects of Critical Habitat Designation

(6)

Comment

: One private landowner was concerned that the designation of critical habitat may affect current or planned activities. Specifically, the commenter was concerned about delays or disruptions to future plans to expand or enhance an existing rail line, which would require Federal permits.

Our response

: Critical habitat designation does not preclude development. Section 7(a)(2) of the Act requires Federal agencies to consult with the Service to ensure that actions they fund, authorize, permit, or otherwise carry out will not jeopardize the continued existence of any listed species or adversely modify designated critical habitat. If the Federal action agency determines that a project may adversely affect a listed species or designated critical habitat, formal consultation is required. There is a 90-day period of time in which to consult, and beyond that, another 45-day period of time for the Service to prepare a biological opinion. The analysis of whether the proposed action would

likely jeopardize the continued existence of the species or adversely modify designated critical habitat is contained in the biological opinion. If a jeopardy or adverse modification determination is made, the biological opinion must identify any reasonable and prudent alternatives that could allow the project to move forward.

Issue 7: Philosophy on Utility of Critical Habitat

(7A)

Comment

: Two commenters expressed that they disagree with the statement in the proposal that critical habitat designations are driven by litigation and courts rather than biology. They argue that while many critical habitat designations are the result of litigation, it is only to the extent that the Service fails to meet its statutory obligation to designate critical habitat concurrently with listing and that it is a burden imposed by an unambiguous statutory mandate, not by litigation.

Our response

: The section in the proposed rule that contained these statements (“The Role of Critical Habitat in Actual Practice of Administering and Implementing the Act”) has been removed from this final rule.

(7B)

Comment

: Two commenters suggested that critical habitat designation is strongly associated with species recovery and that the Service must consider the role of critical habitat in the recovery of the species.

Our response

: We agree that we must consider the role of critical habitat in the recovery of species. The Ninth Circuit Court's decision in

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service

, 378 F.3d 1059 (9th Cir 2004) (hereinafter

Gifford Pinchot

) requires consideration of the recovery of species when designating critical habitat. Thus, under this court ruling, and our implementation of Section 7 of the Act, critical habitat designations may provide greater benefits to the recovery of a species. Also, we have found that critical habitat designations serve to educate landowners, State and local governments, and the public regarding the potential conservation value of the areas designated.

(7C)

Comment

: One commenter expressed that the Hawaii example in the proposal does not prove that excluding areas from critical habitat provides superior conservation benefits to designating critical habitat.

Our response

: Each exclusion from critical habitat designation is considered on its own merits, after balancing the benefits of designation against the benefits of exclusion, and also considering whether the exclusion will result in the extinction of the species.

Issue 8: Unoccupied Habitat

(8)

Comment

: Two commenters suggested that the Service consider designating areas that would contribute to the species' recovery through reintroduction, introduction, and augmentation efforts, as recommended in the species' recovery plan.

Our response

: Although introductions and reintroductions were identified as being potentially important in the 2001 recovery plan, the Service acknowledged that additional surveys needed to be completed (Service 2001, p. 59). Since the recovery plan was written, additional Hine's emerald dragonfly breeding sites were identified in Illinois, Michigan, Missouri, and Wisconsin. Other unidentified sites may also exist in these States. Therefore, at this time we believe that introduction into unoccupied potential habitat, or reintroduction of dragonflies into additional historically occupied but currently unoccupied habitat, may not be necessary to recover the species. As additional research is conducted on the population structure and status of the species, the Service will consider the necessity of introduction and reintroduction of the Hine's emerald dragonfly.

Issue 9: Mapping

(9)

Comment

: Some commenters stated that the maps and descriptions of critical habitat units lacked sufficient detail to determine what essential features are included, what the surrounding land uses are, whether specific properties are included, and whether certain structures are included. Furthermore, they state that the maps should be provided in geological information system and aerial photography formats.

Our response

: The scale of the maps prepared under the parameters for publication within the

Code of Federal Regulations

may not be detailed enough to allow landowners to determine whether their property is within the designation. Therefore, when the final rule is published, we will provide more detailed maps on our web site to better inform the public. We also provided contact information for anyone seeking assistance with the proposed critical habitat. Therefore, we believe we made every effort to provide avenues for interested parties to obtain information concerning our proposal and supporting information.

Issue 10: General Comments and Other Relevant Issues

(10A)

Comment

: One commenter stated that critical habitat designation is a “waste of taxpayers' time and money.”

Our response

: The designation of critical habitat for federally listed species is a requirement under section 4(a)(3)(A) of the Act.

(10B)

Comment

: One commenter expressed that the presence of habitat should have stopped the Interstate 355 (I-355) construction project. The commenter added that projects like the I-355 expansion project show that designation of critical habitat is justified.

Our response

: If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, compliance with the requirements of section 7(a)(2) will be documented through the Service's issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) a biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

The I-355 project required a permit from the Army Corp of Engineers, which established a Federal nexus, and was addressed under a formal consultation, under section 7(a)(2) of the Act. As part of that formal consultation, conservation measures were agreed to that require the project proponent to fund actions to conserve the Hine's emerald dragonfly and its habitat. The Service concluded that the I-355 project would not jeopardize the continued existence of the Hine's emerald dragonfly.

(10C)

Comment

: One commenter stated that the designation of critical habitat should recognize the importance of protecting genetic diversity through habitat conservation. Specifically, the Hine's emerald dragonfly population in Illinois may contain greater genetic diversity than the other populations. Thus, the importance of protecting habitats in this State is heightened.

Our response

: Genetic analysis is identified as a task in the Hine's Emerald Dragonfly (

Somatochlora hineana

Williamson) Recovery Plan (Service 2001, p.54). Genetic analyses have been initiated to better understand the population structure of the species, but the analyses have not been completed. The designation of critical habitat was based on the best available information. All currently occupied

areas in Illinois are included in the critical habitat designation for this and other reasons.

(10D)

Comment

: Two commenters stated that the Service must address Executive Order 13211 and prepare a Statement of Energy Effects, if applicable. Also, the Service must offer an opportunity to comment on any Statement of Energy Effects before making a final determination on the designation.

Our response

: Executive Order 13211 was addressed in the Economic Analysis that was announced in the Notice of Availability published on March 20, 2007, and is addressed again in this final rule.

(10E)

Comment

: One commenter is concerned that the proposal infers that Midwest Generation's train traffic is contributing to mortality of Hine's emerald dragonflies and that rail line operations are increasing sediment deposition.

Our response

: Vehicular impacts to Hine's emerald dragonflies, including collisions resulting in mortality, have been documented in areas within the species' range. However, since Midwest Generation limits the speed of its trains to 4 to 6 mph in Illinois Units 1 and 2, we have determined that train traffic in these units is not resulting in direct mortality of Hine's emerald dragonflies.

We believe that sediment being released from the rail line ballast in Illinois Units 1 and 2 may be impacting Hine's emerald dragonfly larval habitat. This potential threat is currently being assessed and will be addressed in the Habitat Conservation Plan under development for these units.

(10F)

Comment

: One commenter expressed that human-made structures should be a part of critical habitat.

Our response

: We only include areas that contain at least one of the physical and biological features essential to the conservation of the species. Human-made structures are not essential features of the species' habitat.

Comments from States

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his/her failure to adopt regulation consistent with the agency's comments or petition. Comments were received from the Illinois Department of Natural Resources (ILDNR), MDC, Michigan Department of Natural Resources (MIDNR) and Michigan Department of Environmental Quality (MIDEQ). Comments supporting the proposed rule were received from the ILDNR and MDC. Additional comments received from States regarding the proposal to designate critical habitat for the Hine's emerald dragonfly are addressed below.

(1)

State Comment

: The Michigan Department of Natural Resources commented that Michigan Units 3, 4, and 5 are partially owned by their agency. As these areas are owned by the State they are afforded protection under land management policies.

Our response

: In general, we considered excluding State lands from the final critical habitat designation. Mud Lake-Snake Island Fens, a portion of Michigan Unit 3, is owned by MDNR and is a designated natural area. Much of Michigan Unit 4 is part of Thompson's Harbor State Park. A portion of Michigan Unit 5, approximately 65 acres, is State forest land and managed under Forest Certification Work Instructions. State ownership and the various designations bestowed upon these lands may afford some nonspecific protection for Hine's emerald dragonfly and its habitat. However, we only excluded State that had management plans identifying necessary management and protection efforts for Hine's emerald dragonfly or the primary constituent elements. Therefore, Michigan Units 3, 4, and 5 are included in the final critical habitat designation.

(2)

State Comment

: The Michigan Department of Environmental Quality (MDEQ) emphasized that the State of Michigan has assumed the Federal Clean Water Act section 404 program that provides wetland fill permits. The MDEQ claims that a State, not a Federal, permit is issued; thus, section 7 consultation is not required. However, when reviewing a permit application that could affect a federally listed species or critical habitat, the MDEQ coordinates with the US Environmental Protection Agency (USEPA) and the Service. The MDEQ may incorporate appropriate measures into a permit, thereby avoiding or minimizing impacts to listed species and addressing Federal concerns. The MDEQ cannot issue a permit over the objection of the USEPA Regional Administrator.

Our response

: We appreciate MDEQ's dedication to and cooperation in conserving federally listed species. We agree that the approach outlined above is the process we currently use in reviewing section 404 permit applications under the State-assumed program in Michigan.

Summary of Changes from Proposed Rule

The area contained in Wisconsin Unit 1 has been amended. The map and the description of the area for Wisconsin Unit 1 were accurate in the proposed rule; however, the acreage for the unit was incorrect. The error was due to using information from an earlier, larger draft of the map for this unit. Therefore, the acreage has been corrected from 503 ac (204 ha) in the proposed rule to 157 ac (64 ha) in the final rule.

As discussed in the July 26, 2006, proposal (71 FR 42442), additional sites in Wisconsin were evaluated to determine if they contain the features that are essential for the conservation of the Hine's emerald dragonfly. Based on our evaluation of research results from 2006 fieldwork, we have determined that Kellner's Fen in Door County, Wisconsin, contains the features that are essential to the conservation of Hine's emerald dragonfly. Adult Hine's emerald dragonflies have been observed in this area and breeding habitat exists in this unit, although breeding has not yet been confirmed. We announced the proposed addition of this unit in the

Federal Register

on March 20, 2007, and are adding this unit to the critical habitat designation. The additional critical habitat unit, Wisconsin Unit 11, is described in the unit descriptions below.

We are excluding Missouri Units 2b, 3, 6, 9, 10, 11b, 12-20, and 22, from the final designation of critical habitat because we believe that the benefits of excluding these specific areas from the designation outweigh the benefits of including the specific areas. We believe that the exclusion of these areas from the final designation of critical habitat will not result in the extinction of the Hine's emerald dragonfly. These exclusions are discussed in more detail in the Exclusions section below.

We are designating an additional unit on the Mark Twain National Forest that was not known to be occupied by the Hine's emerald dragonfly at the time of the September 5, 2007, final rule, but has since been discovered to be occupied. We included this unit in our April 22, 2009, notice reopening the comment period on the proposed designation. Based on our evaluation of research results from recent fieldwork, we have determined that this newly discovered site on the Mark Twain National Forest in Washington County, Missouri, is essential to the conservation of Hine's emerald dragonfly.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) essential to the conservation of the species and

(b) which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.

Critical habitat receives protection under section 7(a)(2) of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing activities that are likely to result in the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the Federal action agency's and the applicant's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas supporting the essential physical or biological features that provide essential life cycle needs of the species; that is, areas on which are found the primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species. Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to the species' present range would be inadequate to ensure the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Areas that support occurrences, but are outside the critical habitat designation, will continue to be subject to conservation actions we and other Federal agencies implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Climate Change

Climate change will be a particular challenge for biodiversity because the interaction of additional stressors associated with climate change and current stressors may push species beyond their ability to survive (Lovejoy 2005, pp325-326). The synergistic implications of climate change and habitat fragmentation are the most threatening facet of climate change for biodiversity (Hannah

et al.

2005, p4). In addition, local extinction and range shifts are also being documented for some species including dragonflies. In a study of all 37 species of resident odonates (dragonflies and damselflies) in the United Kingdom, all but two species increased in range size and all but three species shifted northwards at their range margin in the last 40 years (Hickling

et al

. 2005, p. 504). While there is uncertainty about the exact nature and severity of climate change related impacts anticipated within the Hine's emerald dragonfly's range, several scientific studies project that there will be increased duration and intensity of heat waves in summer; higher levels of humidity and evaporation; changing patterns of precipitation with fewer rain events of greater intensity; increased frequency and more-intense dry spells; and more flooding from heavy rains (Easterling and Karl 2000, pp. 168-169, 172, 176; Hall and Stuntz 2007, pp. 5-7; IPCC 2007, pp. 30, 46). These climatic changes may impact the Hine's emerald dragonfly's habitat in a variety of direct and indirect ways including: Changes in hydrology, loss of suitable habitat; loss of inter-specific relationships with crayfish; and increased threats from invasive species.

Physical and Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied at the time of listing to

propose as revised critical habitat, we consider those physical and biological features that are essential to the conservation of the species and which may require special management considerations or protection. We consider the essential physical and biological features to be the PCEs laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species. The PCEs include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, and rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

We derive the PCEs required for the Hine's emerald dragonfly from its biological needs. The areas included in our critical habitat designation for the species contain the essential features to fulfill the species life-history requirements. The PCEs and the resulting physical and biological features essential to the conservation of the Hine's emerald dragonfly are derived from studies of this species' habitat, ecology, and life history as described in the proposed critical habitat designation published in the

Federal Register

on July 26, 2006 (71 FR 42442).

Primary Constituent Elements for the Hine's Emerald Dragonfly

Under the Act and its implementing regulations, when considering the designation of critical habitat, we must focus on the PCEs within the geographical area occupied by the Hine's emerald dragonfly at the time of listing that are essential to the conservation of the species and may require special management considerations or protection. The essential physical and biological features are those PCEs laid out in an appropriate quantity and spatial arrangement determined to be essential to the conservation of the species. All areas designated as critical habitat for the Hine's emerald dragonfly are currently occupied, are within the geographical area occupied by the species at the time of listing, and contain sufficient PCEs to support at least one life- history function.

Based on our current knowledge of the life history, biology, and ecology of the Hine's emerald dragonfly, and the requirements of the habitat to sustain the life-history traits of the species, we determined that the PCEs specific to the Hine's emerald dragonfly are:

(1) For egg deposition and larval growth and development:

(a) Organic soils (histosols, or with organic surface horizon) overlying calcareous substrate (predominantly dolomite and limestone bedrock);

(b) Calcareous water from intermittent seeps and springs and associated shallow, small, slow flowing streamlet channels, rivulets, and/or sheet flow within fens;

(c) Emergent herbaceous and woody vegetation for emergence facilitation and refugia;

(d) Occupied burrows maintained by crayfish for refugia; and

(e) Prey base of aquatic macroinvertebrates, including mayflies, aquatic isopods, caddisflies, midge larvae, and aquatic worms.

(2) For adult foraging; reproduction; dispersal; and refugia necessary for roosting, resting, refuge for adult females to escape from male harassment, and predator avoidance (especially during the vulnerable teneral stage):

(a) Natural plant communities near the breeding/larval habitat which may include fen, marsh, sedge meadow, dolomite prairie, and the fringe (up to 328 ft (100m)) of bordering shrubby and forested areas with open corridors for movement and dispersal; and

(b) Prey base of small flying insect species (e.g., dipterans).

This critical habitat designation is designed for the conservation of those areas containing the physical and biological features necessary to support the species' life-history traits. Each of the areas designated in this rule contain sufficient PCEs to provide for one or more of the life history functions of the Hine's emerald dragonfly.

Special Management Considerations or Protections

When designating critical habitat within the geographical area occupied by the species at the time of listing, we assess whether the physical and biological features essential to the conservation of the species may require special management considerations or protection. In all units, special management considerations or protection of the essential features may be required to provide for the growth, reproduction, and maintenance of the habitat on which the Hine's emerald dragonfly depends.

The lands proposed as critical habitat represent our best assessment of the habitat that meets the definition of critical habitat for the Hine's emerald dragonfly at this time. The essential physical or biological features within the areas proposed as critical habitat may require some level of management to address current and future threats to the Hine's emerald dragonfly, including the direct and indirect effects of habitat loss and degradation from urban development; the introduction of nonnative invasive plant species; and recreational activities.

Nonnative invasive plant species and unauthorized recreational activities (for example, all-terrain vehicles or horseback riding) may alter the vegetation composition or physical structure identified in the PCEs to an extent that the area does not support breeding habitat or refuge for Hine's emerald dragonflies. Additionally, invasive species and unauthorized recreational activities may alter hydrology and alter conditions so that the habitat is unsuitable for crayfish burrows that provide essential wintering refugia for Hine's emerald dragonflies.

In summary, we find that the areas we are designating as critical habitat contain the features essential to the conservation of the Hine's emerald dragonfly, and that these features may require special management considerations or protection. Special management considerations or protection may be required to eliminate, or reduce to negligible level, the threats affecting each unit and to preserve and maintain the essential features that the critical habitat units provide to the Hine's emerald dragonfly. Additional discussions of threats facing individual sites are provided in the individual unit descriptions.

The designation of critical habitat does not imply that lands outside of critical habitat may not play an important role in the conservation of the Hine's emerald dragonfly. In the future, and with changed circumstances, these lands may become essential to the conservation of the Hine's emerald dragonfly. Activities with a Federal nexus that may affect areas outside of critical habitat, such as development, agricultural activities, and road construction, are still subject to review under section 7 of the Act if they may affect the Hine's emerald dragonfly, because Federal agencies must consider both effects to the dragonfly and effects to critical habitat independently. The take prohibitions of section 9 of the Act, applicable to the Hine's emerald dragonfly under 50 CFR 17.71, also continue to apply both inside and outside of designated critical habitat.

Criteria Used To Identify Critical Habitat

We are designating critical habitat in areas we determined were occupied at the time of listing, and that contain sufficient PCEs to support life history functions essential to the conservation of the Hine's emerald dragonfly. Lands are designated based on sufficient PCEs being present to support the life processes of the species. Land designated as critical habitat for this species contain all PCEs and support multiple life processes. We are also designating areas that were not occupied at the time of listing, but which were subsequently identified as being occupied, and which we have determined to be essential to the conservation of the Hine's emerald dragonfly.

To identify features that are essential to the conservation of the Hine's emerald dragonfly and areas essential to the conservation of the species, we considered the natural history of the species and the science behind the conservation of the species as presented in literature summarized in the Hine's Emerald Dragonfly (

Somatochlora hineana

Williamson) Recovery Plan (Service 2001).

We began our analysis of areas with features that are essential to the conservation of the Hine's emerald dragonfly by identifying currently occupied breeding habitat. We developed a list of what constitutes occupied breeding habitat with the following criteria: (a) Adults and larvae documented; (b) Larvae, exuviae (skin that remains after molt), teneral (newly emerged) adults, ovipositing females, and/or patrolling males documented; or (c) Multiple adults sighted and breeding conditions present. We determined occupied breeding habitat through a literature review of data in reports submitted during section 7 consultations and as a requirement from section 10(a)(1)(B) incidental take permits or section 10(a)(1)(A) recovery permits; published peer-reviewed articles; academic theses; and agency reports. We then determined which areas were occupied at the time of listing.

After identifying the core occupied breeding habitat, our second step was to identify contiguous habitat containing one or more of the PCEs within 2.5 mi (4.1 kilometers (km)) of the outer boundary of the core area (Mierzwa

et al.

1995, pp.17-19; Cashatt and Vogt 1996, pp. 23-24). This distance, the average adult dispersal distance measured in one study, was selected as an initial filter for determining the outer limit of unit boundaries in order to ensure that the dragonflies would have adequate foraging and roosting habitat, corridors among patches of habitat, and the ability to disperse among subpopulations. However, based on factors discussed below, unit boundaries were significantly reduced in most cases based on the contiguous extent of PCEs and the presence of natural or human-made barriers. When assessing wetland complexes in Wisconsin and Michigan we determined that features that fulfill all of the Hine's emerald dragonfly's life history requirements are often within 1 mi (1.6 km) of the core breeding habitat; therefore, the outer boundary of those units is within 1 mi (1.6 km) of the core breeding habitat.

Areas not documented to be occupied at the time of listing but that are currently occupied are considered essential to the conservation of the species due to the limited numbers and small sizes of some extant Hine's emerald dragonfly populations. Recovery criteria established in the recovery plan for the species (Service 2001, pp. 31-32) call for a minimum of three populations, each containing at least three subpopulations, in each of two recovery units. Within each subpopulation there should be at least two breeding areas, each fed by separate seeps and springs. Management and protection of all known occupied areas are necessary to meet these goals.

When determining critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures and features that lack the PCEs for the species. The scale of the maps we have prepared under the parameters for publication within the

Code of Federal Regulations

may not reflect the exclusion of all such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final rule are excluded from this rule by text and are not designated as critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation under the Act, unless they affect the species or PCEs in critical habitat.

Units were identified based on sufficient PCEs being present to support Hine's emerald dragonfly life processes. Designated units contain all PCEs and support multiple life processes. Areas lacking documented evidence of breeding based on current knowledge were not considered for critical habitat inclusion because such areas are not deemed essential to the conservation of the species.

A brief discussion of each area designated as critical habitat is provided in the unit descriptions below. Additional detailed documentation concerning the essential nature of these areas is contained in our supporting record for this rulemaking.

Critical Habitat Designation

We are designating 37 units as critical habitat for the Hine's emerald dragonfly. The critical habitat areas described below constitute our best assessment at this time of areas that meet the definition of critical habitat for the Hine's emerald dragonfly. These areas constitute our best assessment of areas determined to be within the geographical area occupied at the time of listing that contain the physical and biological features essential to the conservation of the Hine's emerald dragonfly that may require special management, and those additional areas not occupied at the time of listing but that have been determined to be essential to the conservation of the Hine's emerald dragonfly. Management and protection of all the areas is necessary to achieve the conservation biology principles of representation, resiliency, and redundancy (Shaffer and Stein 2000) as represented in the recovery criteria established in the recovery plan for the species. Recovery criteria established in the recovery plan for the species (Service 2001, pp. 31-32) call for a minimum of three populations, each containing at least three subpopulations, in each of two recovery units. Within each subpopulation there should be at least two breeding areas, each fed by separate seeps and springs. Management and protection of all known occupied areas are necessary to meet these goals.

These units, which generally correspond to the geographic area of the units delineated in the 2007 designation, with the addition of units on Forest Service lands, replace the current critical habitat designation for the Hine's emerald dragonfly in 50 CFR 17.96(a).

Table 1 identifies the approximate area of each designated critical habitat unit by land ownership. Table 2 identifies areas that meet the definition of critical habitat but were excluded from final critical habitat based on their species-specific management plans or partnerships, and the determination the benefits to the species of exclusion from critical habitat outweighs the benefits of designating critical habitat in those units.

TABLE 1. Critical Habitat units designated for the Hine's emerald dragonfly.

Unit

Federal land

(acres/hectares)

State land

(acres/hectares)

Local and private land

(acres/hectares)

Total

(acres/hectares)

designated

Illinois Unit 1, Will County

419/170

419/170

Illinois Unit 2, Will County

439/178

439/178

Illinois Unit 3, Will County

337/136

337/136

Illinois Unit 4, Will and Cook Counties

607/246

607/246

Illinois Unit 5, DuPage County

326/132

326/132

Illinois Unit 6, Cook County

387/157

387/157

Illinois Unit 7, Will County

130/53

350/142

480/194

Michigan Unit 1, Mackinac County

9,452/3,825

9,452/3,825

Michigan Unit 2, Mackinac County

3,476/1,421

35/14

3,511/1,421

Michigan Unit 3, Mackinac County

23/9

27/11

50/20

Michigan Unit 4, Presque Isle County

875/354

84/34

959/388

Michigan Unit 5, Alpena County

65/26

91/37

156/63

Michigan Unit 6, Alpena County

220/89

220/89

Missouri Unit 1, Crawford County

90/36

90/36

Missouri Unit 2a, Dent County

15/6

15/6

Missouri Unit 4, Dent County

14/6

14/6

Missouri Unit 5, Iron County

50/20

50/20

Missouri Unit 7, Phelps County

33/13

33/13

Missouri Unit 8, Reynolds County

4/2

4/2

Missouri Unit 11a, Reynolds County

22/9

22/9

Missouri Unit 21, Ripley County

6/2

6/2

Missouri Units 23 and 24 Washington County

75/31

75/31

Missouri Unit 25, Washington County

33/13

33/13

Missouri Unit 26, Wayne County

5/2

5/2

Missouri Unit 27, Crawford County

0.8/0.3

0.8/0.3

Wisconsin Unit 1, Door County

42/17

115/47

157/64

Wisconsin Unit 2, Door County

32/13

782/316

814/329

Wisconsin Unit 3, Door County

66/27

66/27

Wisconsin Unit 4, Door County

407/165

407/165

Wisconsin Unit 5, Door County

816/330

2277/922

3,093/1,252

Wisconsin Unit 6, Door County

200/81

30/12

230/93

Wisconsin Unit 7, Door County

352/142

352/142

Wisconsin Unit 8, Door County

70/28

70/28

Wisconsin Unit 9, Door County

684/277

509/206

1,193/483

Wisconsin Unit 10, Ozaukee County

1512/612

800/324

2,312/936

Wisconsin Unit 11, Door County

147/59

147/59

Total

13,275.8/5,372.5

4,379/1,772

8,877/3,578

26,531.8/10,737.1

Table 2. Areas determined to meet the definition of critical habitat for the Hine's emerald dragonfly that are excluded from the critical habitat designation.

Geographic Area

Definitional areas (acres/hectares)

Area excluded from final

designation

(acres/hectares)

Reason*

Missouri Unit 2b, Dent County

19/8

All

2, 3

Missouri Unit 3, Dent County

18/7

All

2, 3

Missouri Unit 6, Morgan County

22/9

All

2, 3

Missouri Units 9 and 10, Reynolds County

329/133

All

2, 3

Missouri Unit 11b, Reynolds County

91/37

All

2, 3

Missouri Unit 12, Reynolds County

50/20

All

2, 3

Missouri Unit 13, Reynolds County

30/12

All

2, 3

Missouri Unit 14, Reynolds County

14/5

All

2, 3

Missouri Unit 15, Reynolds County

11/4

All

2, 3

Missouri Unit 16, Reynolds County

4/2

All

1

Missouri Units 17 and 18, Ripley County

224/91

All

1, 2, 3

Missouri Units 19 and 20, Ripley County

115/47

All

2, 3

Missouri Unit 22, Shannon County

32/13

All

1

Total

959/388

959/388

*1= species specific management plan in place; 2= potential loss of partnership with private land owner; 3= existing strong working relationship between MDC and private land owners.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Hine's emerald dragonfly, below.

Illinois Unit 1 —Will County, Illinois

Illinois Unit 1 consists of 419 ac (170 ha) in Will County, Illinois. This unit was occupied at the time of listing and includes the area where the Hine's emerald dragonfly was first collected in Illinois as well as one of the most recently discovered locations in the State. Adults and larvae are found within this unit. The unit consists of larval and adult habitat with a mosaic of upland and wetland communities, including fen, marsh, sedge meadow, and dolomite prairie. The wetlands are fed by groundwater that discharges into the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; illegal all-terrain vehicles; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The majority of the unit is a dedicated Illinois Nature Preserve that is managed and leased by the Forest Preserve District of Will County. Although a current management plan is in place, it does not specifically address the Hine's emerald dragonfly or its PCEs. This unit also consists of a utility easement that contains electrical transmission and distribution lines and a railroad line used to transport coal to a power plant. In addition, a remaining small portion of this unit is located between a sewage treatment facility and the Des Plaines River. This unit is planned to be incorporated in a HCP that is being pursued by a large partnership, which includes the landowners of this unit. Though we are pleased with the progress made to date on the HCP, it is still far from complete and too early to judge its ultimate outcome. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 2 —Will County, Illinois

Illinois Unit 2 consists of 439 ac (178 ha) in Will County, Illinois. This unit was occupied at the time of listing and has repeated adult and larval observations. The unit consists of larval and adult habitat with a mosaic of plant communities including fen, marsh, sedge meadow, and dolomite prairie. The wetlands are fed by groundwater that discharges into the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the

PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The unit is privately owned and includes a utility easement that contains electrical transmission and distribution lines and a railroad line used to transport coal to a power plant. This unit is planned to be incorporated in a HCP that is being pursued by a large partnership, which includes the landowners of this unit. Though we are pleased with the progress made to date on the HCP, it is still far from complete and too early to judge its ultimate outcome. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 3 —Will County, Illinois

Illinois Unit 3 consists of 337 ac (136 ha) in Will County, Illinois. This unit was occupied at the time of listing and includes one of the first occurrences of Hine's emerald dragonfly known after the discovery of the species in Illinois. The unit consists of larval and adult habitat with a mosaic of upland and wetland communities including fen, sedge meadow, marsh, and dolomite prairie. The wetlands are fed by groundwater that discharges into the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The majority of the unit is a dedicated Illinois Nature Preserve that is owned and managed by the Forest Preserve District of Will County. Although a current management plan is in place, it does not specifically address the Hine's emerald dragonfly. This unit also consists of a utility easement that contains electrical transmission and distribution lines. This unit is planned to be incorporated in a HCP that is being pursued by a large partnership, which includes the landowners of this unit. Though we are pleased with the progress made to date on the HCP, it is still far from complete and too early to judge its ultimate outcome. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 4 —Will and Cook Counties, Illinois

Illinois Unit 4 consists of 607 ac (246 ha) in Will and Cook Counties in Illinois. This unit was occupied at the time of listing and includes one of the first occurrences of Hine's emerald dragonfly that was verified after the discovery of the species in Illinois. Repeated observations of both adult and larval Hine's emerald dragonfly have been made in this unit. The unit consists of larval and adult habitat with a mosaic of upland and wetland communities including fen, sedge meadow, and dolomite prairie. The wetlands are fed by groundwater that discharges into the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The unit is owned and managed by the Forest Preserve District of Will County and the Forest Preserve District of Cook County. Construction of the Interstate 355 extension began in 2005 and the corridor for this project intersects this unit at an elevation up to 67 ft (20 m) above the ground to minimize potential impacts to Hine's emerald dragonflies. This unit also consists of a utility easement that contains electrical transmission lines. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 5—DuPage County, Illinois

Illinois Unit 5 consists of 326 ac (132 ha) in DuPage County, Illinois. This unit was occupied at the time of listing and has repeated adult observations. The unit consists of larval and adult habitat with a mosaic of upland and wetland plant communities including fen, marsh, sedge meadow, and dolomite prairie. The wetlands are fed by groundwater that discharges into the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The majority of the unit is owned and managed by the Forest Preserve District of DuPage County. This unit also consists of a railroad line and a utility easement with electrical transmission lines. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 6— Cook County, Illinois

Illinois Unit 6 consists of 387 ac (157 ha) in Cook County, Illinois. This unit was occupied at the time Hine's emerald dragonfly was listed. There have been repeated adult observations as well as observations of teneral (newly emerged) adults and male territorial patrols suggesting that breeding is occurring within close proximity. The unit consists of larval and adult habitat with a mosaic of upland and wetland plant communities including fen, marsh, and sedge meadow. The wetlands are fed by groundwater that discharges into the unit from seeps that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. The area within this unit is owned and managed by the Forest Preserve District of Cook County. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Illinois Unit 7 —Will County, Illinois

Illinois Unit 7 consists of 480 ac (194 ha) in Will County, Illinois. This unit was occupied at the time of listing and includes one of the first occurrences of Hine's emerald dragonfly known after the discovery of the species in Illinois. Adults and larvae have been found within this unit. The unit consists of larval and adult habitat with a mosaic of upland and wetland communities including fen, marsh, sedge meadow, and dolomite prairie. The wetlands are fed by groundwater that discharges into

the unit from seeps and upwelling that have formed small flowing streamlet channels that contain crayfish burrows. Known threats to the PCEs in this unit that may require special management include ecological succession and encroachment of invasive species; utility and road construction and maintenance; management and land use conflicts; and groundwater depletion, alteration, and contamination. A portion of the unit is a dedicated Illinois Nature Preserve that is managed and owned by the ILDNR. This unit also consists of a railroad line and a utility easement that contains electrical distribution lines. This unit is planned to be incorporated in a HCP that is being pursued by a large partnership, which includes the landowners of this unit. Though we are pleased with the progress made to date on the HCP, it is still far from complete and too early to judge its ultimate outcome. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Michigan Unit 1—Mackinac County, Michigan

Michigan Unit 1 contains 9,452 ac (3,825 ha) in Mackinac County in the Upper Peninsula of Michigan. This area was not known to be occupied at the time of listing. The unit contains at least four breeding areas for Hine's emerald dragonfly, with female oviposition or male territorial patrols observed at all breeding sites. Adults have also been observed foraging at multiple locations within this unit. The unit contains a mixture of fen, forested wetland, forested dune and swale, and upland communities that are important for Hine's emerald dragonfly breeding and foraging. The habitat is mainly spring-fed rich cedar swamp or northern fen. The breeding areas are open with little woody vegetation or are sparsely vegetated with northern white cedar

(Thuja occidentalis)

. Small shallow pools and seeps are common. Crayfish burrows are found in breeding areas. Corridors between the breeding areas make it likely that adult dragonflies could travel or forage between the breeding sites. The majority of this unit is owned by the Hiawatha National Forest. Known threats to the PCEs in this unit that may require special management include nonnative species invasion, woody encroachment, off-road vehicle use, logging, and utility and road right-of-way maintenance. Small portions of the unit are owned by the State of Michigan and private individuals. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Michigan Unit 2—Mackinac County, Michigan

Michigan Unit 2 consists of 3,511 ac (1,421 ha) in Mackinac County in the Upper Peninsula of Michigan. This area was not known to be occupied at the time of listing. The unit contains at least four breeding areas for Hine's emerald dragonfly, with female oviposition or male territorial patrols observed at all breeding sites. The unit contains a mixture of fen, forested wetland, forested dune and swale, and upland communities that are important for Hine's emerald dragonfly breeding and foraging. The breeding habitat varies in the unit. Most breeding areas are northern fen communities with sparse, woody vegetation (northern white cedar) that are probably spring-fed with seeps and marl pools present. One site is a spring-fed marl fen with sedge-dominated seeps and marl pools. Crayfish burrows are found in breeding areas. Corridors between the breeding areas, including a large forested dune and swale complex, make it likely that adult dragonflies could travel or forage between the breeding sites. The majority of this unit is owned by the Hiawatha National Forest and is designated as a Wilderness Area. Known threats to the PCEs in this unit that may require special management include nonnative species invasion, woody encroachment, and off-road vehicle use. About 1 percent of the unit is owned by private individuals. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Michigan Unit 3—Mackinac County, Michigan

Michigan Unit 3 consists of 50 ac (20 ha) in Mackinac County on Bois Blanc Island in Michigan. This area was not known to be occupied at the time of listing, but is currently occupied. The unit contains one breeding area for Hine's Emerald dragonfly with male territorial patrols and more than 10 adults observed in 1 year. The unit contains a small fen that is directly adjacent to the Lake Huron shoreline and forested dune and swale habitat that extends inland. The unit contains seeps and small fens, some areas with marl. Known threats to the PCEs in this unit include maintenance of utility and road right of way, and development of private lots and septic systems. Road work and culvert maintenance could change the hydrology of the unit. Approximately half of the unit is owned by the State of Michigan; the remaining portion of the area is owned by The Nature Conservancy or is subdivided private land. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species range.

Michigan Unit 4—Presque Isle County, Michigan

Michigan Unit 4 consists of 959 ac (388 ha) in Presque Isle County in the northern lower peninsula of Michigan. This area was not known to be occupied at the time of listing but is currently occupied. The unit contains one breeding area for Hine's Emerald dragonfly, with female oviposition and adults observed in more than one year. The unit contains a fen with seeps and crayfish burrows present. The fen has stunted, sparse white cedar and marl flats dominated by beaked spike rush (

Eleocharis rostellata

). The threats to Hine's emerald dragonflies in this unit are unknown. The majority of this unit is a State park owned by the MIDNR, the remainder of the unit is privately owned. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species' range.

Michigan Unit 5— Alpena County, Michigan

Michigan Unit 5 consists of 156 ac (63 ha) in Alpena County in the northern lower peninsula of Michigan. This area was not known to be occupied at the time of listing but is currently occupied. All PCEs for the Hine's emerald dragonfly are present in this unit. The unit contains one breeding area for Hine's Emerald dragonfly, with adults observed in more than one year and crayfish burrows present. The unit contains a mixture of northern fen and wet meadow habitat that are used by breeding and foraging Hine's emerald dragonfly. Known threats to the PCEs in this unit that may require special management include possible hydrological modification due to outdoor recreational vehicle use and a nearby roadway. The majority of the site is privately owned and the remaining acreage is owned by the State of Michigan. This unit is essential to the

conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species' range.

Michigan Unit 6—Alpena County, Michigan

Michigan Unit 6 consists of 220 ac (89 ha) in Alpena County in the northern lower peninsula of Michigan. This area was not known to be occupied at the time of listing but is currently occupied. The unit contains one breeding area for Hine's emerald dragonfly, with male territorial patrols and adults observed. The unit contains a marl fen with numerous seeps and rivulets important for breeding and foraging Hine's emerald dragonfly. Known threats to the PCEs in this unit that may require special management include possible hydrological modification due to outdoor recreational vehicle use and development. The unit is owned by a private group. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species' range.

Missouri Unit 1—Crawford County, Missouri

Missouri Unit 1 consists of 90 ac (36 ha) in Crawford County, Missouri, and is under U.S. Forest Service ownership. This fen is in close proximity to the village of Billard and is associated with James Creek, west of Billard. This area was not known to be occupied at the time of listing. The fen provides surface flow, and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and an adjacent open pasture provide foraging habitat that is surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this locality. Known threats to the PCEs in this unit that may require special management include feral hogs and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 2a—Dent County, Missouri

Missouri Unit 2a is comprised of 15 ac (6 ha) in Dent County, Missouri, and is under U.S. Forest Service and private ownership. It is located north of the village of Howes Mill and in proximity to County Road (CR) 438. This area was not known to be occupied at the time of listing. The fen provides surface flow, and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and an adjacent open old field provide foraging habitat and are surrounded by contiguous, closed-canopy forest. Adults have been documented from this unit. Known threats to the PCEs in this unit that may require special management include all-terrain vehicles, feral hogs, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors. This unit includes the Forest Service-owned portion of Missouri Unit 2 as it was described in the July 26, 2006, proposal (71 FR 42442).

Missouri Unit 4—Dent County, Missouri

Missouri Unit 4 is owned and managed by the U.S. Forest Service, and consists of 14 ac (6 ha) in Dent County, Missouri. This fen is associated with a tributary of Watery Fork Creek in Fortune Hollow and is located east of the juncture of Highway 72 and Route MM. This area was not known to be occupied at the time of listing. The fen provides surface flow, and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and adjacent old fields provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this locality. Known threats to the PCEs in this unit that may require special management include feral hogs and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 5—Iron County, Missouri

Missouri Unit 5 is comprised of 50 ac (20 ha) in Iron County, Missouri, and is under U.S. Forest Service ownership. This fen is adjacent to Neals Creek and Neals Creek Road, southeast of Bixby. This area was not known to be occupied at the time of listing. The fen consists of surface flow and is fed, in part, by a wooded slope north of Neals Creek Road. This small but high-quality fen provides larval habitat and adjacent cover for resting and predator avoidance. The fen, adjacent fields, and open road provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. Both adults and larvae have been documented from this unit. Known threats to the PCEs in this unit that may require special management include all-terrain vehicles, feral hogs, road construction and maintenance, beaver dams, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 7—Phelps County, Missouri

Missouri Unit 7 consists of 33 ac (13 ha) in Phelps County, Missouri, and is owned and managed by the U.S. Forest Service. This area was not known to be occupied at the time of listing. This fen is associated with Kaintuck Hollow and a tributary of Mill Creek, and is located south-southwest of the town of Newburg. This high-quality fen provides larval habitat and adjacent cover for resting and predator avoidance. The fen, adjacent fields, and open road provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. Despite repeated sampling for adults and larvae, only one exuviae (shed larval exterior) has been documented from this unit. Known threats to the PCEs in this unit that may require special management include all-terrain vehicles, feral hogs, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 8—Reynolds County, Missouri

Missouri Unit 8 includes Bee Fork West, a portion of the Bee Fork complex. The unit consists of 4 ac (2 ha) in Reynolds County, Missouri, and is owned and managed by the U.S. Forest Service. This locality is part of a series of three fens adjacent to Bee Fork Creek, extending from east-southeast of Bunker east to near the bridge on Route TT over Bee Fork Creek. This area was not known to be occupied at the time of listing. The fen provides surface flow and is fed, in part, by a small spring that originates from a wooded ravine just north of the county road bordering the northernmost fen in the complex. The unit, in conjunction with the rest of the complex (Units 9 and 10, which are excluded from this final designation), is one of the highest quality representative examples of an Ozark fen in the State. The fen provides larval habitat and adjacent cover for resting and predator

avoidance. The fen, adjacent fields, and open road provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. Both adults and larvae have been documented from this unit. The entire complex is an extremely important focal area for conservation actions that benefit Hine's emerald dragonfly. It is likely that the species uses Bee Fork Creek as a connective corridor between adjacent components of the complex. Known threats to the PCEs in this unit that may require special management include feral hogs, ecological succession, utility maintenance, application of herbicides, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 11a—Reynolds County, Missouri

Missouri Unit 11a is under U.S. Forest Service ownership and consists of 22 ac (9 ha in Reynolds County, Missouri. The unit is a series of small fen openings adjacent to a tributary of Bee Fork Creek, and is located east of the intersection of Route TT and Highway 72, extending north to the Bee Fork Church on County Road 854. This area was not known to be occupied at the time of listing. This unit contains a portion of one of the highest quality representative examples of an Ozark fen in the State. The fen provides surface flow and includes larval habitat and adjacent cover for resting and predator avoidance. The fen, adjacent fields, and open path provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. Adults have been documented from this unit. Known threats to the PCEs in this unit that may require special management include feral hogs, beaver dams, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors. This unit includes the Forest Service-owned portion of Missouri Unit 11 as it was described in the July 26, 2006 proposal (71 FR 42442).

Missouri Unit 21—Ripley County, Missouri

Missouri Unit 21 is a small fen and consists of 6 ac (2 ha) in Ripley County, Missouri. It is under U.S. Forest Service ownership and is located west of Doniphan. This area was not known to be occupied at the time of listing. The fen provides surface flow and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and adjacent open, maintained county road provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this locality. Known threats to the PCEs in this unit that may require special management include feral hogs, all-terrain vehicles, equestrian use, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Units 23 and 24—Washington County, Missouri

Missouri Units 23 and 24 comprise the Towns Branch and Welker Fen complex and consist of 75 ac (31 ha) near the town of Palmer in Washington County, Missouri. The complex consists of two fens that are under U.S. Forest Service ownership. This area was not known to be occupied at the time of listing. These fens provide surface flow and include larval habitat and adjacent cover for resting and predator avoidance. The fens and adjacent open, maintained county roads provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this complex. Known threats to the PCEs in this unit that may require special management include feral hogs, all-terrain vehicles, road construction and maintenance, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 25—Washington County, Missouri

Missouri Unit 25 consists of 33 ac (13 ha) and is located northwest of the town of Palmer in Washington County, Missouri. The fen is associated with Snapps Branch, a tributary of Hazel Creek, and is owned and managed by the U.S. Forest Service. This area was not known to be occupied at the time of listing. The fen provides surface flow, and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and adjacent old logging road with open canopy provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this locality. Known threats to the PCEs in this unit that may require special management include feral hogs, all-terrain vehicles, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 26—Wayne County, Missouri

Missouri Unit 26 is owned and managed by the U.S. Forest Service and consists of 5 ac (2 ha). This small fen is located near Williamsville and is associated with Brushy Creek in Wayne County, Missouri. This area was not known to be occupied at the time of listing. The fen provides surface flow and includes larval habitat and adjacent cover for resting and predator avoidance. The fen and adjacent logging road with open canopy provide habitat for foraging and are surrounded by contiguous, closed-canopy forest. To date, only larvae have been documented from this unit. Known threats to the PCEs in this unit that may require special management include feral hogs, all-terrain vehicles, and habitat fragmentation. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Missouri Unit 27—Crawford County, Missouri

Missouri Unit 27 is owned and managed by the U.S. Forest Service and is approximately 3.3 miles (5.2 kilometers) west and southwest of Brazil , Missouri, or about 0.3 mile (0.4 kilometer) southeast of Center Post Church in Crawford County, Missouri. The unit consists of less than 1 ac (0.8 ac (0.3 ha)). This unit was not known to be occupied at the time of listing. Adult Hine's emerald dragonflies have been observed at the site and successful breeding was confirmed (Vogt 2008, p. 10). Surface water consists primarily of seepage pools and small rivulets. Parts of the fen include an open field with scattered shrubs and eastern red cedar

(Juniperus virginiana)

that is likely used as a foraging area by adults. Known threats to the PCEs that may require special management or protections include invasive plant species, feral hogs, all-terrain vehicles, and equestrian use. This unit is essential to the conservation of the species because it provides for the redundancy and resilience of populations in this portion of the species' range, where habitat is under threat from multiple factors.

Wisconsin Unit 1—Door County, Wisconsin

Wisconsin Unit 1 consists of 157 acres (64 hectares) on Washington Island in Door County, Wisconsin. This unit was not known to be occupied at the time of listing but is currently occupied. Three adults were observed at this site in July 2000, as well as male territorial patrols and female ovipositioning behavior; crayfish burrows, seeps, and rivulet streams are present. The unit consists of larval and adult habitat including boreal rich fen, northern wet-mesic forest, emergent aquatic marsh on marl substrate, and upland forest. Known threats to the PCEs that may require special management or protections include loss of habitat due to residential development, invasive plants, alteration of the hydrology of the marsh (low Lake Michigan water levels can result in drying of the marsh), contamination of groundwater, and logging. A portion of one State Natural Area owned by the Wisconsin Department of Natural Resources occurs within the unit; the remainder of the unit is privately owned. This unit is essential to the conservation of the species because it provides habitat essential to accommodate populations of the species to meet the conservation principles of redundancy and resiliency throughout the species' range.

Wisconsin Unit 2—Door County, Wisconsin

Wisconsin Unit 2 consists of 814 acres (329 hectares) in Door County, Wisconsin. This unit was occupied at the time of listing. The first adult recorded in Wisconsin was from this unit in 1987. Exuviae and numerous male and female adults have been observed in this unit. The unit, which encompasses much of the Mink River Estuary, contains larval and adult habitat including wet-mesic and mesic upland forest (including white cedar wetlands), emergent aquatic marsh, and northern sedge meadows. Known threats to the PCEs that may require special management include loss of habitat due to residential development, invasive plants, alteration of wetland hydrology, contamination of the surface and ground water, and logging. The majority of the land in this unit is owned by The Nature Conservancy and other private landowners with a small portion of the unit owned by the State. Forest areas with 100-percent canopy that occur greater than 328 ft (100 m) from the open forest edge of the unit are not considered critical habitat.

Wisconsin Units 3, 4, 5, 6, and 7—Door County, Wisconsin

Wisconsin Units 3 through 7 are located in Door County, Wisconsin and comprise the following areas: Unit 3 consists of 66 ac (27 ha); Unit 4 consists of 407 ac (165 ha); Unit 5 consists of 3,093 ac (1,252 ha); Unit 6 consists of 230 ac (93 ha); and Unit 7 consists of 352 ac (142 ha). Units 3, 5, 6, and 7 were occupied at the time of listing. Unit 4 was not known to be occupied at the time of listing but is currently occupied. All of the units are within 2.5 mi (4 km) of at least one other unit, making exchange of dispersing adults likely among units. Adult numbers recorded from these units varies. Generally fewer than eight adults have been observed at Units 4, 6, and 7 during any one season. A study by Kirk and Vogt (1995, pp. 13-15) reported a total adult population in the thousands in Units 3 and 5. Male and female adults have been observed in all the units. Adult dragonfly swarms commonly occur in Unit 5. Swarms ranging in size from 16 to 275 dragonflies and composed predominantly of Hine's emerald dragonflies were recorded from a total of 20 sites in and near Units 5 and 6 during 2001 and 2002 (Zuehls 2003, pp. iii, 19, 21, and 43). In addition, the following behaviors and life stages of Hine's emerald dragonflies have been recorded from the various units: Unit 3—mating behavior, male patrolling behavior, crayfish burrows, exuviae, and female ovipositioning (egg-laying); Unit 4—larvae and exuviae; Unit 5— teneral adults, mating behavior, male patrolling, larvae, female ovipositioning (egg-laying), and crayfish burrows; and Unit 6—mating behavior, evidence of ovipositioning, and crayfish burrows.

Unit 5 contains two larval areas, while Units 3, 4, 5, 6, and 7 each contains one larval area. Units 3 through 7 all include adult habitat, which varies from unit to unit but ge

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