[Federal Register Volume 72, Number 171 (Wednesday, September 5, 2007)]
[Rules and Regulations]
[Pages 51102-51152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4194]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Hine's Emerald Dragonfly; Final Rule

Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Hine's Emerald Dragonfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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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 13,221 acres (ac) (5,350 
hectares (ha)) in 22 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; and Door and Ozaukee Counties in Wisconsin.

DATES: This rule becomes effective on October 5, 2007.

FOR FURTHER INFORMATION CONTACT: John Rogner, Chicago Ecological 
Services Field Office, 1250 S. Grove, Suite 103, Barrington, IL 60010 
(telephone: 847-381-2253, extension 11; facsimile: 847-381-2285).

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. 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, the comment period was reopened 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 notice that reopened the 
comment period on the proposal, revisions to the proposal, and the 
draft economic analysis for an additional 45 days (72 FR 28026). That 
comment period ended on July 2, 2007.

Summary of Comments and Recommendations

    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, we received 35 comments directly addressing our 
proposed critical habitat designation: 6 from peer reviewers, 4 from 
Federal agencies, and 25 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 5 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, and/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, and 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 proposed 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

[[Page 51103]]

habitats, the importance of such habitats in meeting the daily dietary 
needs of the dragonfly is still unknown. 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, dispersal areas are not limiting.
    (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 more 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 and 
Federal management plans for the species; and (2) Missouri Department 
of Conservation's (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 good 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 metapopulation 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 will be initiated in the 
summer of 2007. Until such genetic analyses are conducted, 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.
    (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.
    (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

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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 (e.g., 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 is under a court order to complete the 
designation of critical habitat and submit a final rule to the Federal 
Register by August 23, 2007. Consequently, we must proceed with the 
critical habitat process for this species based on the best scientific 
data that is available, 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 
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 have included 
protective measures to conserve wetland habitat and thereby are helping 
to conserve the dragonfly. Those plans, however, do not specifically 
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, 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). 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

Issue 1: Biological Justification and Methodology Used
    (1A) Comment: Several individuals commented that the proposal 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 its location inside or outside 
of a critical habitat unit, are subject to section 7 consultation. 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 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 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's know flight season 
lasts up to early October in Illinois (Voght and Cashatt 1994) and to 
late August in Wisconsin (Voght and Cashatt 1994). Fully 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: The Service has a cooperative relationship with the 
Hiawatha and Mark Twain National Forests, both of which are actively 
involved in endangered species management and recovery. Through this 
cooperative relationship, the Forest Service consistently consults on 
projects that may affect listed species, including the Hine's emerald 
dragonfly. The Forest Service recently 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. 
Section 7 consultation and conservation of Hine's emerald dragonfly 
will continue even with exclusion of Forest Service lands from critical 
habitat designation.
    (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.

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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, are excluded 
from the final Hine's emerald dragonfly critical habitat designation. 
The non-Federal lands within these units are small in size relative to 
the unit's overall size. The larger landscapes in these two critical 
habitat units are managed by the Hiawatha National Forest. The Hiawatha 
National Forest's Land and Resource Management Plan provides for the 
management and protection of Hine's emerald dragonfly habitat that will 
facilitate the recovery of the species. Although those non-Federal 
lands may provide suitable habitat and primary constituent elements for 
colonizing dragonflies from adjacent National Forest land, their 
contribution to the overall recovery and conservation of the species is 
considered minute compared to the surrounding lands managed by the 
Hiawatha National Forest.
    We have determined that adequate management and protection of 
Hine's emerald dragonfly habitat in Michigan Unit 3 is not provided by 
current State, Federal, or private management plans. Therefore, this 
unit was not excluded from the final critical habitat designation.
    (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: The commenter is correct that a separate section 7 
consultation addressing critical habitat would not be required in any 
excluded areas. However, as these excluded areas are currently 
occupied, activities that could impact Hine's emerald dragonfly 
(including its habitat) would still require a species-specific 
consultation. Based on the Forest Plans, the Forest Service not only 
has solidified its dedication to protect the Hine's emerald dragonfly 
and its habitat, but also has committed to help recover the species. 
The Forest Service commitment and ongoing partnership with us provide 
greater benefit to the species and its habitat than would critical 
habitat designation. Consequently, we disagree with the commenter that 
important breeding and foraging habitat for Hine's emerald dragonflies 
on the two national forests will not be protected without critical 
habitat designation.
    If not conducted in a way that is sensitive to Hine's emerald 
dragonflies, logging could be detrimental to the species' habitat. At 
the same time, Hine's emerald dragonflies need open areas for foraging. 
Some areas on the Hiawatha National Forest adjacent to breeding habitat 
have closed canopies that could benefit from various forest management 
practices. Additionally, there are sites for Hine's emerald dragonflies 
on the Hiawatha and Mark Twain National Forests that would benefit from 
adding more direct dispersal corridors between breeding sites. Timber 
removal may be appropriate for such situations. National Forest land 
provides important Hine's emerald dragonfly breeding sites, and the 
maintenance, management, and protection of these areas will be achieved 
by implementing the Land and Resource Management Plans on the two 
forests.
    (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 CH 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.
    (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.
    We, Hine's emerald dragonfly researchers, and personnel of the 
MDC's Private Land Services Division have extended considerable effort 
in providing private landowners with information on the Hine's emerald

[[Page 51106]]

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.
    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. We weighed the benefits of 
each, and concluded, using the discretion afforded to us under the Act, 
that actions for the conservation of the species would be best realized 
if the lands were excluded. Based on past experience and a strong 
working relationship between the MDC personnel and private landowners, 
we believe that private landowners are much more amenable to a 
partnership that emphasizes a cooperative working relationship rather 
than a fear of regulatory control.
    (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). 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. If plans change such that it 
affects our balancing, we will reconsider whether to designate critical 
habitat in these areas.
    (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. It is 
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. When the Habitat Conservation Plan is completed, 
we will be able to evaluate its conservation benefits to the species 
and, if appropriate, revise the critical habitat designation to exclude 
this unit.
    (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

[[Page 51107]]

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). 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 their 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. Because of this commitment, 
land management agencies in Missouri and Michigan are already actively 
implementing conservation actions for the Hine's emerald dragonfly and 
fen habitat. The designation of critical habitat would not influence 
them to act more proactively.
    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 (Forest Service Land and Resource Management 
Plans, other management plans, etc.) 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.
Issue 4: Economic Issues
    (4A) Comment: The proposed critical habitat rule states that ``[t]o 
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.
    Response: The draft economic analysis evaluates the potential 
economic costs associated with critical habitat designation, and also 
discuses 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 $16.8 million to $47.9 million (undiscounted) over the next 20 
years. The present value of these impacts, applying a 3 percent 
discount rate, is $13.4 million to $35.6 million ($0.9 million to $2.4 
million annualized); or $10.7 million to $26.0 million, applying a 7 
percent discount rate ($1.0 million to $2.5 million annualized).
    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, 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: Pursuant to 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 received during the public 
comment periods, we may, during the development of our final critical 
habitat determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the

[[Page 51108]]

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 issued 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. The Service's Green Bay Ecological 
Services Field Office can be contacted for guidance on ways to preclude 
harm to the dragonfly's habitat (by calling 920-866-1717). 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. 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 comment asserts that there is little (if any) 
economic activity in Alpena, Mackinac, or Presque Isle Counties in 
Michigan. The comment asserts that declining 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, 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 
Federal Office of Management and Budget (OMB) has acknowledged that it 
may not be

[[Page 51109]]

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 (Freeman 2003).
    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 comment 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

[[Page 51110]]

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 welfare changes 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 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 
cost 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

[[Page 51111]]

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 co-extensive 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 eight 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 the future 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 underway when the proposed rule considering 
designation was published. Since the Illinois Toll-way 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 IEc 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 $9.7 million to $10.5 million (discounted at 3 
percent), and 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 market 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 total (an additional two minutes and one 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 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 ten percent of travel 
time on a commuter train during peak commuting time will cause a one 
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

[[Page 51112]]

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 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
    (5A) Comment: Two commenters suggested 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, 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 two mi of 
a known locality.
    Our response: We did not designate unoccupied habitat listed by the 
commenters because there are no current or historic 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 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 where the PCEs are found unless we reached areas that 
did not contain the PCEs before that 100 meters, such as a closed 
canopy forest, roadway, or another natural or human-made break in 
habitat. This 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
    (6A) 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 designated period of time 
in which to consult (90 days), and beyond that, another set period of 
time for the Service to prepare a biological opinion (45 days). 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.

[[Page 51113]]

    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. 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
    (8A) 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
    (9A) 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, pursuant to 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). We are attempting to acquire funding to complete 
genetic analysis in order to better understand the population structure 
of the species. 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

[[Page 51114]]

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 or 
Federal lands that had management plans identifying necessary 
management and protection efforts for Hine's emerald dragonfly or the 
PCEs. 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 avers 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 U.S. 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 Michigan Units 1 and 2 (Hiawatha National Forest 
lands), and all Missouri Units (1-26), 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.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) 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 (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures that are necessary to 
bring any endangered or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. Such 
methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species must first have features that 
are essential to the conservation of the species. Critical habitat 
designations identify, to the extent known using the best scientific

[[Page 51115]]

data available, habitat areas that provide essential life cycle needs 
of the species (areas on which are found the primary constituent 
elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical area occupied by the species at the time of 
listing. An area currently occupied by the species but that was not 
occupied at the time of listing will likely, but not always, be 
essential to the conservation of the species and, therefore, is 
typically included in the critical habitat designation.
    Our Policy on Information Standards Under the Act, published in the 
Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the 
Treasury and General Government Appropriations Act for Fiscal Year 2001 
(P.L. 106-554; H.R. 5658) and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions represent the best scientific 
data available. They require Service 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 
determining which areas are critical habitat, we primarily use the 
listing package for the species. Additional information sources 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. All information is 
used in accordance with the provisions of Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the 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 
(HCP), or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the species, and within areas 
occupied by the species at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The specific PCEs required for the Hine's emerald dragonfly are 
derived from the biological needs of this species as described in the 
proposed critical habitat designation published in the Federal Register 
on July 26, 2006 (71 FR 42442).

Primary Constituents for the Hine's Emerald Dragonfly

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to Hine's emerald 
dragonfly conservation. All areas designated as Hine's emerald 
dragonfly critical habitat are occupied, within the species' historic 
geographic range, and contain sufficient PCEs to support at least one 
life history function.
    This designation is designed for the conservation of those areas 
containing PCEs necessary to support the life history functions that 
were the basis for the designation. Because not all life history 
functions require all the PCEs, not all critical habitat will contain 
all the PCEs.
    Units occupied at the time of listing are designated based on 
sufficient PCEs being present to support one or more of the species' 
life history functions. All units designated for this species contain 
all PCEs and support multiple life processes.
    Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the Hine's emerald dragonfly's PCEs 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, 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).
    Each of the areas designated in this rule that were occupied at the 
time of listing has been determined to contain sufficient PCEs to 
provide for one or

[[Page 51116]]

more of the life history functions of the Hine's emerald dragonfly. In 
some cases, the PCEs exist as a result of ongoing Federal actions. As a 
result, ongoing Federal actions at the time of designation will be 
included in the baseline in any consultation conducted subsequent to 
this designation.

Criteria Used To Identify Critical Habitat

    We are designating critical habitat in areas we have 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. All lands 
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 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, unless they 
affect the species and/or PCEs in critical habitat.
    Units were identified based on sufficient PCEs being present to 
support Hine's emerald dragonfly life processes. All units contain all 
PCEs and support multiple life processes.
    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.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the features 
essential to the conservation of the species and whether they may 
require special management considerations or protections. At the time 
of listing, the Hine's emerald dragonfly was known to occur in Illinois 
and Wisconsin. As discussed in more detail in the proposed critical 
habitat designation (July 16, 2006; 71 FR 42442) and in the unit 
descriptions below, we find that the areas we are designating may 
require special management considerations or protections due to threats 
to the species or its habitat. Such management considerations and 
protections include: management of invasive species and all terrain 
vehicle use and protection of habitat from threats of commercial and 
residential development, alteration of water regimes, contamination, 
and recreational activities.

Critical Habitat Designation

    We are designating 22 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 determined to be 
occupied at the time of listing, that contain the PCEs essential for 
the conservation of the species, and 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.
    Table 1 shows the units that were occupied at the time of listing 
and those that are currently occupied but were not identified at the 
time of listing. Table 2 identifies the areas that meet the definition 
of critical habitat but were excluded from final critical habitat based 
on their species-specific management plans or partnerships.

[[Page 51117]]



   Table 1.--Units That Were Occupied by the Hine's Emerald Dragonfly at the Time of Listing or Are Currently
                                                    Occupied
----------------------------------------------------------------------------------------------------------------
                                                                 Occupied at        Occupied
                             Unit                              time of listing     currently      Acres/hectares
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1..............................................               X   ...............         419/170
Illinois Unit 2..............................................               X   ...............         439/178
Illinois Unit 3..............................................               X   ...............         337/136
Illinois Unit 4..............................................               X   ...............         607/246
Illinois Unit 5..............................................               X   ...............         326/132
Illinois Unit 6..............................................               X   ...............         387/157
Illinois Unit 7..............................................               X   ...............         480/194
Michigan Unit 3..............................................  ...............               X            50/20
Michigan Unit 4..............................................  ...............               X          959/388
Michigan Unit 5..............................................  ...............               X           156/63
Michigan Unit 6..............................................  ...............               X           220/89
Wisconsin Unit 1.............................................  ...............               X           157/64
Wisconsin Unit 2.............................................               X   ...............         814/329
Wisconsin Unit 3.............................................               X   ...............           66/27
Wisconsin Unit 4.............................................  ...............               X          407/165
Wisconsin Unit 5.............................................               X   ...............     3,093/1,252
Wisconsin Unit 6.............................................               X   ...............          230/93
Wisconsin Unit 7.............................................               X   ...............         352/142
Wisconsin Unit 8.............................................  ...............               X            70/28
Wisconsin Unit 9.............................................  ...............               X        1,193/483
Wisconsin Unit 10............................................  ...............               X        2,312/936
Wisconsin Unit 11............................................  ...............               X           147/59
----------------------------------------------------------------------------------------------------------------


Table 2.--Areas Determined To Meet the Definition of Critical Habitat for the Hine's Emerald Dragonfly That Were
                                 Excluded From the Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                              Definitional
              Geographic area                 areas (acres/        Area excluded from final           Reason*
                                                hectares)        designation (acres/hectares)
----------------------------------------------------------------------------------------------------------------
Michigan Unit 1............................     9,452/3,825  All................................               1
Michigan Unit 2............................     3,511/1,421  All................................               1
Missouri Unit 1............................           90/36  All................................               1
Missouri Unit 2............................           34/14  All................................               1
Missouri Unit 3............................            18/7  All................................            2, 3
Missouri Unit 4............................            14/6  All................................               1
Missouri Unit 5............................           50/20  All................................               1
Missouri Unit 6............................            22/9  All................................            2, 3
Missouri Unit 7............................           33/13  All................................               1
Missouri Units 8, 9, 10....................         333/135  All................................         1, 2, 3
Missouri Unit 11...........................          113/46  All................................         1, 2, 3
Missouri Unit 12...........................           50/20  All................................            2, 3
Missouri Unit 13...........................           30/12  All................................            2, 3
Missouri Unit 14...........................            14/5  All................................            2, 3
Missouri Unit 15...........................            11/4  All................................            2, 3
Missouri Unit 16...........................             4/2  All................................               1
Missouri Units 17 and 18...................          224/91  All................................         1, 2, 3
Missouri Units 19 and 20...................          115/47  All................................            2, 3
Missouri Unit 21...........................             6/2  All................................               1
Missouri Unit 22...........................           32/13  All................................               1
Missouri Units 23 and 24...................           75/31  All................................               1
Missouri Unit 25...........................           33/13  All................................               1
Missouri Unit 26...........................             5/2  All................................               1
                                            --------------------------------------------------------------------
    Total..................................    14,269/5,774  14,269/5,774.......................  ..............
----------------------------------------------------------------------------------------------------------------
* 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.

    Table 3 provides the approximate area encompassed within each 
critical habitat unit determined to meet the definition of critical 
habitat for the Hine's emerald dragonfly.

[[Page 51118]]



                  Table 3.--Critical Habitat Units Designated for the Hine's Emerald Dragonfly
----------------------------------------------------------------------------------------------------------------
                                                                                     Local and
                                                                    State land     private land    Total (acres/
                              Unit                                    (acres/         (acres/        hectares)
                                                                     hectares)       hectares)
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1.................................................  ..............         419/170         419/170
Illinois Unit 2.................................................  ..............         439/178         439/178
Illinois Unit 3.................................................  ..............         337/136         337/136
Illinois Unit 4.................................................  ..............         607/246         607/246
Illinois Unit 5.................................................  ..............         326/132         326/132
Illinois Unit 6.................................................  ..............         387/157         387/157
Illinois Unit 7.................................................          130/53         350/142         480/194
Michigan Unit 3.................................................            23/9           27/11           50/20
Michigan Unit 4.................................................         875/354           84/34         959/388
Michigan Unit 5.................................................           65/26           91/37          156/63
Michigan Unit 6.................................................  ..............          220/89          220/89
Wisconsin Unit 1................................................           42/17          115/47          157/64
Wisconsin Unit 2................................................           32/13         782/316         814/329
Wisconsin Unit 3................................................  ..............           66/27           66/27
Wisconsin Unit 4................................................  ..............         407/165         407/165
Wisconsin Unit 5................................................         816/330        2277/922     3,093/1,252
Wisconsin Unit 6................................................          200/81           30/12          230/93
Wisconsin Unit 7................................................  ..............         352/142         352/142
Wisconsin Unit 8................................................  ..............           70/28           70/28
Wisconsin Unit 9................................................         684/277         509/206       1,193/483
Wisconsin Unit 10...............................................        1512/612         800/324       2,312/936
Wisconsin Unit 11...............................................  ..............          147/59          147/59
                                                                 -----------------------------------------------
    Total.......................................................     4,379/1,772     8,842/3,578    13,221/5,350
----------------------------------------------------------------------------------------------------------------

    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. All PCEs for the Hine's emerald dragonfly are present in 
this unit. 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. It is too early to judge its 
ultimate outcome.

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. All PCEs for the Hine's emerald 
dragonfly are present in this unit. 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. It 
is too early to judge its ultimate outcome.

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. All PCEs for the Hine's 
emerald dragonfly are present in this unit. 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

[[Page 51119]]

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. It is too early to judge its ultimate outcome.

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. All PCEs 
for the Hine's emerald dragonfly are present in this unit. 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.

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. All PCEs for the Hine's emerald dragonfly 
are present in this unit. 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.

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. All PCEs for the Hine's emerald dragonfly are present in 
this unit. There have been repeated adult observations as well as 
observations of teneral adults and male territorial patrols suggesting 
that breeding is occurring within a 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.

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. All PCEs for the Hine's 
emerald dragonfly are present in this unit. 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 an 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. It is too early to judge its ultimate 
outcome.

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. 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 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. Threats to the 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

[[Page 51120]]

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 female 
oviposition and adults observed in more than 1 year. The unit contains 
a fen with seeps and crayfish burrows present. The fen has stunted, 
sparse white cedar and marl flats dominated by spike rush (Eleocharis). 
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 habitats that are 
used by breeding and foraging Hine's emerald dragonfly. Threats to this 
unit 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. 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 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. In the area of this unit, trash dumping, home 
development, and outdoor recreational vehicles were observed impacting 
similar habitat. 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.

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. All PCEs for 
the Hine's emerald dragonfly are present in this unit. 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 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. All 
PCEs for the Hine's emerald dragonfly are present in this unit. 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 
between units. All PCEs for the Hine's emerald dragonfly are present in 
all of the units. Adult numbers recorded from these units vary. 
Generally fewer than 8 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 contain one larval area. Units 3 through 7 all include adult 
habitat, which varies from unit to unit but generally includes boreal 
rich fen, northern wet-mesic forest (including white cedar wetlands), 
upland forest, shrub-scrub wetlands,

[[Page 51121]]

emergent aquatic marsh, and northern sedge meadow. Known threats to the 
PCEs that may require special management include loss of habitat due to 
residential and commercial development, ecological succession, invasive 
plants, utility and road construction and maintenance, alteration of 
the hydrology of wetlands (e.g., via quarrying or beaver impoundments), 
contamination of the surface and ground water (e.g., via pesticide use 
at nearby apple/cherry orchards (Unit 7)), agricultural practices, and 
logging. The majority of the land in the unit is conservation land in 
public and private ownership; the remainder of the land is privately 
owned. Forest areas with 100 percent canopy that occur greater than 328 
ft (100 m) from the open forest edge of the unit but that are too small 
for us to map out are not considered critical habitat. Unit 4 is 
essential to the conservation of the species because it provides 
habitat essential to accommodate populations of the species to meet the 
conservation principles of redundancy and resiliency throughout the 
species range.

Wisconsin Unit 8--Door County, Wisconsin

    Wisconsin Unit 8 consists of 70 ac (28 ha) in Door County, 
Wisconsin and includes Arbter Lake. This unit was not known to be 
occupied at the time of listing but is currently occupied. All PCEs for 
the Hine's emerald dragonfly are present in this unit. Numerous male 
and female adults as well as ovipositing have been observed in this 
unit; crayfish burrows and rivulets are present. The unit consists of 
larval and adult habitat with a mix of upland and lowland forest, and 
calcareous bog and fen communities. Known threats to the PCEs include 
encroachment of larval habitat by invasive plants and alteration of 
local groundwater hydrology (e.g., via quarrying activities), 
contamination of surface and groundwater, and logging. Land in this 
unit is owned by The Nature Conservancy and other private landowners. 
This unit is essential to the conservation of the species because it 
provides habitat essential to accommodate populations of the species to 
meet the conservation principles of redundancy and resiliency 
throughout the species range.

Wisconsin Unit 9--Door County, Wisconsin

    Wisconsin Unit 9 consists of 1,193 ac (483 ha) in Door County, 
Wisconsin associated with Keyes Creek. This unit was not known to be 
occupied at the time of listing but is currently occupied. All PCEs for 
the Hine's emerald dragonfly are present in this unit. Numerous male 
and female adults have been seen in this unit; ovipositing females have 
been observed. Crayfish burrows are present. The unit consists of 
larval and adult habitat with a mix of upland and lowland forest, 
scrub-shrub wetlands, and emergent marsh. Known threats to the PCEs are 
loss and/or degradation of habitat due to development, groundwater 
depletion or alteration, surface and groundwater contamination, 
alteration of the hydrology of the wetlands (e.g., via stream 
impoundment, road construction and maintenance, and logging). The 
majority of the land in this unit is a State Wildlife Area owned by the 
Wisconsin Department of Natural Resources with the remainder of the 
land privately owned. Forest areas with 100 percent canopy that occur 
greater than 328 ft (100 m) from the open forest edge of the unit are 
not considered critical habitat. This unit is essential to the 
conservation of the species because it provides habitat essential to 
accommodate populations of the species to meet the conservation 
principles of redundancy and resiliency throughout the species range.

Wisconsin Unit 10--Ozaukee County, Wisconsin

    Wisconsin Unit 10 consists of 2,312 ac (936 ha) in Ozaukee County, 
Wisconsin, and includes much of Cedarburg Bog. This unit was not known 
to be occupied at the time of listing but is currently occupied. All 
PCEs for the Hine's emerald dragonfly are present in this unit. 
Numerous male and female adults have been seen in this unit including 
teneral adults; ovipositing females have been observed, as well as 
larvae. Crayfish burrows are present. The unit consists of larval and 
adult habitat with a mix of shrub-carr, ``patterned'' bog composed of 
forested ridges and sedge mats, wet meadow, and lowland forest. The 
majority of area in the unit is State land and the remainder of the 
land is privately owned. This unit is essential to the conservation of 
the species because it provides habitat essential to accommodate 
populations of the species to meet the conservation principles of 
redundancy and resiliency throughout the species range.

Wisconsin Unit 11--Door County, Wisconsin

    Wisconsin Unit 11 consists of approximately 147 acres (59 hectares) 
in Door County, Wisconsin. This unit was not known to be occupied at 
the time of listing but is currently occupied. All PCEs for the Hine's 
emerald dragonfly are present in this unit. Adults have been observed 
in this unit over multiple years. Male patrolling behavior has been 
observed, and crayfish burrows are present. The unit consists of larval 
and adult habitat, including a floating sedge mat and lowland and 
upland conifer and deciduous forest. 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. All land in the unit is 
privately owned. The northern portion of the unit is owned by the Door 
County Land Trust.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under current 
national policy and the statutory provisions of the Act, we determine 
destruction or adverse modification is determined on the basis of 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the PCEs to be functionally established) to serve 
its intended conservation role for the species.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
the Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. This is a procedural 
requirement only, as any conservation recommendations in a conference 
report or opinion are strictly advisory. However, once a species 
proposed for listing becomes listed, or proposed critical habitat is 
designated as final, the full prohibitions of section 7(a)(2) apply to 
any discretionary Federal action.
    The primary utility of the conference procedures is to allow a 
Federal agency to maximize its opportunity to

[[Page 51122]]

adequately consider species proposed for listing and proposed critical 
habitat and to avoid potential delays in implementing their proposed 
action because of the section 7(a)(2) compliance process, if we list 
those species or designate critical habitat. We may conduct conferences 
either informally or formally. We typically use informal conferences as 
a means of providing advisory conservation recommendations to assist 
the agency in eliminating conflicts that the proposed action may cause. 
We typically use formal conferences when we or the Federal agency 
believes the proposed action is likely to jeopardize the continued 
existence of the species proposed for listing or adversely modify 
proposed critical habitat.
    We generally provide the results of an informal conference in a 
conference report, while we provide the results of a formal conference 
in a conference opinion. We typically prepare conference opinions on 
proposed species or critical habitat in accordance with procedures 
contained at 50 CFR 402.14, as if the proposed species were already 
listed or the proposed critical habitat was already designated. We may 
adopt the conference opinion as the biological opinion when the species 
is listed or the critical habitat is designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)).
    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 the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action;
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction;
    <bullet> Are economically and technologically feasible; and
    <bullet> Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, some 
Federal agencies may request reinitiation of consultation with us on 
actions for which formal consultation has been completed, if those 
actions may affect subsequently listed species or designated critical 
habitat.
    Federal activities that may affect the Hine's emerald dragonfly or 
its designated critical habitat will require section 7 consultation 
under the Act. Activities on State, tribal, local or private lands 
requiring a Federal permit (such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 
et seq.) or a permit from us under section 10(a)(1)(B) of the Act) or 
involving some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are also subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, tribal, local, or private lands 
that are not federally-funded, authorized, or permitted, do not require 
section 7 consultations.

Application of the ``Adverse Modification'' Standard

    For the reasons described in the Director's December 9, 2004, 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would continue to serve its 
intended conservation role for the species, or would retain its current 
ability for the primary constituent elements to be functionally 
established. Activities that may destroy or adversely modify critical 
habitat are those that alter the PCEs to an extent that appreciably 
reduces the conservation value of critical habitat for the Hine's 
emerald dragonfly. Generally, the conservation role of Hine's emerald 
dragonfly critical habitat units is to support viable core area 
populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore result in 
consultation for the Hine's emerald dragonfly include, but are not 
limited to:
    (1) Actions that would significantly increase succession and 
encroachment of invasive species. Such activities could include, but 
are not limited to, release of nutrients and road salt (NaCl; unless 
not using road salt would result in an increased degree of threat to 
human safety and alternative de-icing methods are not feasible) into 
the surface water or connected groundwater at a point source or by 
dispersed release (non-point source), and introduction of invasive 
species through human activities in the habitat. These activities can 
result in conditions that are favorable to invasive species and would 
provide an ecological advantage over native vegetation, fill rivulets 
and seepage areas occupied by Hine's emerald dragonfly larvae, reduce 
detritus that provides cover for larvae, and reduce flora and fauna 
necessary for the species to complete its life cycle. Actions that 
would increase succession and encroachment of invasive species could 
negatively impact the Hine's emerald dragonfly and the species' 
habitat.
    (2) Actions that would significantly increase sediment deposition 
within the rivulets and seepage areas occupied by Hine's emerald 
dragonfly larvae. Such activities could include, but are not limited 
to, excessive sedimentation from livestock grazing, road construction, 
channel alteration, timber harvest, all terrain vehicle use, equestrian 
use, feral pig introductions, maintenance of rail lines, and other 
watershed and

[[Page 51123]]

floodplain disturbances. These activities could eliminate or reduce the 
habitat necessary for the growth and reproduction of Hine's emerald 
dragonflies and their prey base by increasing sediment deposition to 
levels that would adversely affect the organisms' ability to complete 
their life cycles. Actions that would significantly increase sediment 
deposition within rivulets and seepage areas could negatively impact 
the Hine's emerald dragonfly and the species' habitat.
    (3) Actions that would significantly alter water quantity and 
quality. Such activities could include, but are not limited to, 
groundwater extraction; alteration of surface and subsurface areas 
within groundwater recharge areas; and release of chemicals, biological 
pollutants, or heated effluents into the surface water or groundwater 
recharge area at a point source or by dispersed release (non-point 
source). These activities could alter water conditions such that the 
conditions are beyond the tolerances of the Hine's emerald dragonfly 
and its prey base, and result in direct or cumulative adverse affects 
to these individuals and their life cycles. Actions that would 
significantly alter water quantity and quality could negatively impact 
the Hine's emerald dragonfly and the species' habitat.
    (4) Actions that would significantly alter stream, streamlet, and 
fen channel morphology or geometry. Such activities could include but 
are not limited to, all terrain vehicle use, equestrian use, feral pig 
introductions, channelization, impoundment, road and bridge 
construction, mining, and loss of emergent vegetation. These activities 
may lead to changes in water flow velocity, temperature, and quantity 
that could negatively impact the Hine's emerald dragonfly and their 
prey base and/or habitats. Actions that would significantly alter 
channel morphology or geometry could negatively impact the Hine's 
emerald dragonfly and the species' habitat.
    (5) Actions that would fragment habitat and impact adult foraging 
or dispersal. Such activities could include, but are not limited to, 
road construction, destruction or fill of wetlands, and high-speed 
railroad and vehicular traffic. These activities may adversely affect 
dispersal, resulting in reduced fitness and genetic exchange within 
populations and potentially mortality of individuals. Actions that 
would fragment habitat and impact adult foraging or dispersal could 
negatively impact the Hine's emerald dragonfly and the species' 
habitat.

Application of Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion, and the 
Congressional record is clear that, in making a determination under the 
section, the Secretary has broad discretion as to which factors to use 
and how much weight will be given to any factor.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of designation. If we consider an 
exclusion, then we must determine whether excluding the area would 
result in the extinction of the species.
    In the following sections, we address a number of general issues 
that are relevant to the exclusions we are considering. In addition, we 
are conducting an economic analysis of the impacts of the proposed 
critical habitat designation and related factors, which will be 
available for public review and comment when it is complete. Based on 
public comment on that document, the proposed designation itself, and 
the information in the final economic analysis, the Secretary may 
exclude from critical habitat additional areas beyond those identified 
in this assessment under the provisions of section 4(b)(2) of the Act. 
This is also addressed in our implementing regulations at 50 CFR 
424.19.

Benefits of Designating Critical Habitat

Regulatory Benefits

    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on actions that may affect 
critical habitat and must avoid destroying or adversely modifying 
critical habitat. Prior to our designation of critical habitat, Federal 
agencies consult with us on actions that may affect a listed species 
and must refrain from undertaking actions that are likely to jeopardize 
the continued existence of the species. Thus, the analysis of effects 
to critical habitat is a separate and different analysis from that of 
the effects to the species. Therefore, the difference in outcomes of 
these two analyses represents the regulatory benefit of critical 
habitat. For some species, and in some locations, the outcome of these 
analyses will be similar, because effects on habitat will often result 
in effects on the species. However, the regulatory standard is 
different: the jeopardy analysis looks at the action's impact on 
survival and recovery of the species, while the adverse modification 
analysis looks at the action's effects on the designated habitat's 
contribution to the species' conservation. This will, in many 
instances, lead to different results and different regulatory 
requirements.
    Once an agency determines that consultation under section 7 of the 
Act is necessary, the process may conclude informally when we concur in 
writing that the proposed Federal action is not likely to adversely 
affect critical habitat. However, if we determine through informal 
consultation that adverse impacts are likely to occur, then we would 
initiate formal consultation, which would conclude when we issue a 
biological opinion on whether the proposed Federal action is likely to 
result in destruction or adverse modification of critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. We suggest 
reasonable and prudent alternatives to the proposed Federal action only 
when our biological opinion results in an adverse modification 
conclusion.
    We believe that in many instances the regulatory benefit of 
critical habitat is low when compared to voluntary conservation efforts 
or management plans. The conservation achieved through implementing 
HCPs or other habitat management plans is typically greater than what 
we achieve through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat. Management 
plans may commit resources to implement long-term management and 
protection to

[[Page 51124]]

particular habitat for at least one and possibly additional listed or 
sensitive species. Section 7 consultations commit Federal agencies to 
preventing adverse modification of critical habitat caused by the 
particular project only, and not to providing conservation or long-term 
benefits to areas not affected by the proposed project. Thus, any HCP 
or management plan that considers enhancement or recovery as the 
management standard will often provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the ninth circuit in the Gifford Pinchot 
decision.
    In providing the framework for the consultation process, the 
previous section applies to all the following discussions of benefits 
of inclusion or exclusion of critical habitat.
    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection. In identifying those lands, the Service must consider the 
recovery needs of the species, such that the habitat that is 
identified, if managed, could provide for the survival and recovery of 
the species. Furthermore, once critical habitat has been designated, 
Federal agencies must consult with the Service under section 7(a)(2) of 
the Act to ensure that their actions will not adversely modify 
designated critical habitat or jeopardize the continued existence of 
the species. As noted in the Ninth Circuit's Gifford Pinchot decision, 
the Court ruled that the jeopardy and adverse modification standards 
are distinct, and that adverse modification evaluations require 
consideration of impacts to the recovery of species. Thus, through the 
section 7(a)(2) consultation process, critical habitat designations 
provide recovery benefits to species by ensuring that Federal actions 
will not destroy or adversely modify designated critical habitat.
    The identification of those lands that are necessary for the 
conservation of the species can, if managed, provide for the recovery 
of a species and is beneficial. The process of proposing and finalizing 
a critical habitat rule provides the Service with the opportunity to 
determine lands essential for conservation as well as identify the 
primary constituent elements or features essential for conservation on 
those lands. The designation process includes peer review and public 
comment on the identified features and lands. This process is valuable 
to land owners and managers in developing conservation management plans 
for identified lands, as well as any other occupied habitat or suitable 
habitat that may not have been included in the Service's determination 
of essential habitat.
    However, the designation of critical habitat does not require that 
any management or recovery actions take place on the lands included in 
the designation. Even in cases where consultation has been initiated 
under section 7(a)(2) of the Act, the end result of consultation is to 
avoid jeopardy to the species and adverse modification of its critical 
habitat, but not specifically to manage remaining lands or institute 
recovery actions on remaining lands. Conversely, management plans 
institute proactive actions over the lands they encompass intentionally 
to remove or reduce known threats to a species or its habitat and, 
therefore, implement recovery actions. We believe that the conservation 
of a species and its habitat that could be achieved through the 
designation of critical habitat, in some cases, is less than the 
conservation that could be achieved through the implementation of a 
management plan that includes species-specific provisions and considers 
enhancement or recovery of listed species as the management standard 
over the same lands. Consequently, implementation of any HCP or 
management plan that considers enhancement or recovery as the 
management standard will often provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without cooperation of non-Federal landowners. More than 60 percent of 
the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were found almost exclusively on Federal lands (90 to 100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners are 
essential to our understanding the status of species on non-Federal 
lands, and necessary for us to implement recovery actions such as 
reintroducing listed species and restoring and protecting habitat.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. We promote these private-sector efforts 
through the Department of the Interior's Cooperative Conservation 
philosophy. Conservation agreements with non-Federal landowners (HCPs, 
safe harbor agreements, other conservation agreements, easements, and 
State and local regulations) enhance species conservation by extending 
species protections beyond those available through section 7 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on the view 
that we can achieve greater species conservation on non-Federal land 
through such partnerships than we can through regulatory methods (61 FR 
63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of attracting endangered species to their property. 
Mounting evidence suggests that some regulatory actions by the Federal 
Government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability. This perception 
results in anti-conservation incentives, because maintaining habitats 
that harbor endangered species represents a risk to future economic 
opportunities (Main et al. 1999; Brook et al. 2003).
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that landowners 
will support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this outcome is greatly 
amplified in situations where active management

[[Page 51125]]

measures (such as reintroduction, fire management, control of invasive 
species) are necessary for species conservation (Bean 2002). We believe 
that the judicious use of excluding specific areas of non-federally 
owned lands from critical habitat designations can contribute to 
species recovery and provide a superior level of conservation than 
critical habitat alone.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7(a)(2) of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. Thus 
the benefits of excluding areas that are covered by partnerships or 
voluntary conservation efforts can often be high.

Educational Benefits

    A benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the Hine's emerald dragonfly. In general, critical habitat 
designation always has educational benefits; however, in some cases, 
they may be redundant with other educational effects. For example, HCPs 
have significant public input and may largely duplicate the educational 
benefits of a critical habitat designation. A second benefit of 
including lands in critical habitat is that the designation of critical 
habitat would inform State agencies and local governments about areas 
that could be conserved under State laws or local ordinances.

Benefits of Excluding Lands With Approved Management Plans

    The benefits of excluding lands within approved long-term 
management plans from critical habitat designation include relieving 
landowners, communities, and counties of any additional regulatory 
burden that might be imposed by critical habitat. Many conservation 
plans provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine conservation efforts and partnerships 
in many areas. Designation of critical habitat within the boundaries of 
management plans that provide conservation measures for a species could 
be viewed as a disincentive to entities currently developing these 
plans or contemplating them in the future, because one of the 
incentives for undertaking conservation is greater ease of permitting 
where listed species will be affected. Addition of a new regulatory 
requirement would remove a significant incentive for undertaking the 
time and expense of management planning.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered, continued ability it 
gives us to seek new partnerships with future plan participants, 
including States, counties, local jurisdictions, conservation 
organizations, and private landowners, which together can implement 
conservation actions that we would be unable to accomplish otherwise. 
Designating lands within approved management plan areas as critical 
habitat would likely have a negative effect on our ability to establish 
new partnerships to develop these plans, particularly plans that 
address landscape-level conservation of species and habitats. By 
preemptively excluding these lands, we preserve our current 
partnerships and encourage additional conservation actions in the 
future.

Exclusions Under Section 4(b)(2) of the Act

    We are excluding Michigan Units 1 and 2 (Hiawatha National Forest 
lands), and all Missouri units (1-26) from the final designation of 
critical habitat for the Hine's emerald dragonfly because we believe 
that the benefits of excluding these specific areas from the 
designation outweigh the inclusion of the specific areas. The 
conservation actions planned and implemented for the Hine's emerald 
dragonfly on Mark Twain National Forest, Hiawatha National Forest, 
Missouri state owned lands, and through MDC's coordination with private 
landowners in Missouri provide greater conservation benefit to the 
species than would designating these areas as critical habitat. We 
believe that the exclusion of these areas from the final designation of 
critical habitat will not result in the extinction of the Hine's 
emerald dragonfly. We reviewed relevant information concerning other 
critical habitat units to determine whether any other units, or 
portions thereof, should be excluded from the final designation. No 
other units were excluded from the final designation.

Federal Land Management Plans--Exclusions Under Section 4(b)(2) of the 
Act

Hiawatha National Forest, Michigan

    Michigan units 1 and 2 are on Hiawatha National Forest lands. The 
Hiawatha National Forest contains 895,313 ac (362,320 ha) of land in 
the eastern portion of the Upper Peninsula of Michigan; it is broken 
into an east and west unit and contains a diversity of upland and 
wetland community types. In 2006, the Hiawatha National Forest revised 
its Land and Resource Management Plan (Hiawatha Forest Plan) (United 
States Department of Agriculture (USDA) 2006). The Hiawatha Forest Plan 
guides the National Forest's activities over the next 15 years. We 
completed a section 7 consultation for the Hiawatha Forest Plan that 
addresses federally listed resources, including the Hine's emerald 
dragonfly. We determined in our biological opinion resulting from that 
section 7 consultation that the implementation of the Plan would not 
jeopardize the continued existence of the Hine's emerald dragonfly.
    The Hiawatha Forest Plan contains management direction that serves 
to protect and conserve Hine's emerald dragonfly breeding and foraging 
habitats. Several standards, guidelines, and objectives in the Hiawatha 
Forest Plan are pertinent to the Hine's emerald dragonfly (Table 4). 
Standards as listed in the Hiawatha Forest Plan are required courses of 
action. An amendment to the Forest Plan is required to change a 
standard and this would trigger consultation with us under section 7 of 
the Act. Guidelines are also strongly adhered to, and may only be 
modified if site-specific conditions warrant a modification and a 
rationale for a deviation is given in a National Environmental Policy 
Act (NEPA) (42 U.S.C. 4321 et seq.) document. Again, section 7 
consultation would be conducted, and the Service would review a 
guideline deviation if one or more listed species were likely to be 
impacted by the specific project. Standards and guidelines are not 
voluntary actions, but rather strong commitments by the Hiawatha 
National Forest to a particular management direction.

[[Page 51126]]



 Table 4.--Summary of Standards and Guidelines in the Hiawatha National
     Forest 2006 Forest Plan (USDA 2006) That Protect Hine's Emerald
                       Dragonfly and Their Habitat
------------------------------------------------------------------------
                                         Conservation for Hine's emerald
 2006 Forest plan management direction              dragonfly
------------------------------------------------------------------------
Protect all known Hine's emerald         Protect breeding areas.
 dragonfly breeding areas (standard).
Implement signed recovery plans for      Protect, restore, or enhance
 threatened and endangered species        breeding areas; locate new
 (standard).                              sites; identify foraging
                                          habitat; encourage
                                          coordination.
Cross-country OHV travel prohibited      Protect breeding and foraging
 except in designated OHV area            areas.
 (standard).
Wetland roads, or trail crossings, will  Protect breeding and foraging
 preserve drainage (standard).            areas.
Motorized trails should be located away  Protect breeding and foraging
 from Designated Wilderness and semi-     areas; some breeding areas are
 primitive management areas (guideline).  within Designated Wilderness
                                          Area.
Manage wilderness Areas to protect       Protect breeding and foraging
 biological and physical factors and      areas.
 Wilderness values while accommodating
 recreational use (guideline).
Vegetation management activities should  Protect, enhance or create new
 be designed to minimize adverse          breeding and foraging areas.
 impacts on recreation use and wildlife
 populations (guideline).
Excavated soil material (including       Protect breeding areas.
 spoils, drilling mud, etc.) should be
 deposited in upland locations
 (guideline).
Clear-cutting should not occur next to   Protect breeding and foraging
 woodland ponds (guideline).              areas.
Road obliteration will include removing  Protect, enhance, or restore
 bridges, culverts and fill from          breeding and foraging areas.
 streams, floodplains and wetlands to
 re-establish natural drainage and
 restore wetlands (guideline).
Deference should be afforded to          Protect breeding and foraging
 implementing conservation measures for   areas.
 federal threatened and endangered
 species when and where they conflict
 with conservation measures for
 unlisted species (guideline).
Non-native invasive plants within        Protect, enhance, or restore
 element occurrences of threatened and    breeding and foraging areas.
 endangered and Regional Forester
 Sensitive Species should be eliminated
 or controlled (guideline).
For all threatened and endangered        Protect breeding and foraging
 species, special closure orders may be   areas.
 used to protect known breeding areas,
 nests, and denning sites (guideline).
Spread of existing non-native invasive   Protect, enhance or restore
 species is controlled using              breeding and foraging areas.
 permissible mechanical, biological,
 and chemical controls (guideline).
Habitat in Wilderness Areas may be       Enhance and restore existing
 manipulated to correct conditions        habitat, create additional
 resulting from human influence or to     habitat; some breeding areas
 protect threatened and endangered        are located in a designated
 species (guideline).                     Wilderness Area.
In Candidate Research Natural Areas      Protect breeding and foraging
 (CRNA), motorized use should be          areas; one breeding area is
 prohibited except for emergency or       located within a CRNA.
 administrative situations (guideline).
Common variety mineral pits will not be  Protect breeding and foraging
 developed (guideline).                   areas.
------------------------------------------------------------------------

    Although multiple standards and guidelines within the Hiawatha 
Forest Plan relate to the Hine's emerald dragonfly, two key standards 
provide strong assurances that Hine's emerald dragonflies will be 
protected and managed on the Hiawatha National Forest. The standards 
are: (1) All Hine's emerald dragonfly breeding sites will be protected; 
and (2) signed recovery plans for federally threatened and endangered 
species will be implemented (USDA 2006, p. 26). These two standards 
provide greater benefit to the Hine's emerald dragonfly than critical 
habitat designation. While critical habitat designation triggers the 
prohibition of destruction or adverse modification of that habitat, it 
does not require specific actions to restore or improve habitat. The 
Hiawatha Forest Plan not only will prevent destruction of important 
Hine's emerald dragonfly habitat, but also would require additional 
conservation actions to help recover the species.
    In addition, several activities show the Hiawatha National Forest's 
commitment to the Hine's emerald dragonfly and other listed species 
conservation. Over the last five years the Hiawatha National Forest has 
completed several dragonfly surveys that have led to the identification 
of at least two new Hine's emerald dragonfly breeding areas. In 2005, 
the Hiawatha National Forest hosted a Hine's emerald dragonfly workshop 
that provided critical education and outreach to Federal, State, and 
private field staff. They are also actively managing or protecting 
lands in an effort to help in the recovery of several other federally 
listed species including the piping plover and Kirtland's warbler.
    We believe that the standards and guidelines outlined in the 
Hiawatha Forest Plan and the Forest's commitment to protect and recover 
federally listed species through section 7(a)(1) and 7(a)(2), 
adequately address identified threats to the Hine's emerald dragonfly 
and its habitat. The conservation measures as outlined above provide 
greater benefit to the Hine's emerald dragonfly than would designating 
critical habitat on the Hiawatha National Forest. Thus the relative 
benefits of designation of these lands would be diminished and limited.
    (1) Benefits of Designation.
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
pursuant to section 7 of the Act to ensure actions they carry out 
authorize, or fund do not destroy or adversely modify designated 
critical habitat. Absent critical habitat designation, Federal agencies 
remain obligated under section 7 to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence. The Forest Service 
routinely consults with us for activities on the Hiawatha National 
Forest that may affect federally listed species to ensure that the 
continued existence of such species is not jeopardized.
    Designation of critical habitat may also provide educational 
benefits by informing land managers of areas essential to the 
conservation of the Hine's emerald dragonfly. In the case of Hiawatha 
National Forest, there is no

[[Page 51127]]

appreciable educational benefit because the Forest managers have 
already demonstrated their knowledge and understanding of essential 
habitat for the species through their active recovery efforts, 
consultation, and workshops. Furthermore, the benefits of including the 
Hiawatha National Forest in designated critical habitat are minimal 
because the Forest managers are currently implementing conservation 
actions for the Hine's emerald dragonfly that equal or exceed those 
that would be realized by designating critical habitat.
    (2) Benefits of Exclusion.
    The long standing cooperative working relationship between the 
Service and Hiawatha National Forest has lead to the identification and 
implementation of various recovery actions for listed species, 
including Hine's emerald dragonfly. With the 2006 Forest Plan revision, 
the Hiawatha National Forest reaffirmed and formalized their commitment 
to recovering endangered species by stating that they will implement 
the Recovery Plans for all listed species. The benefits of these 
recovery activities exceed the benefits of critical habitat 
designation. Exclusion would further enhance the cooperative working 
relationship with the Forest Service by focusing on activities that are 
designed to protect and recover Hine's emerald dragonfly.
    (3) Benefits of Exclusion Outweigh the Benefits of Designation.
    We believe that a critical habitat designation for the Hine's 
emerald dragonfly in areas being managed by the Hiawatha and Mark Twain 
Forest Plans would provide a relatively low level of additional 
regulatory conservation benefit to the species and its PCEs beyond what 
is already provided by existing section 7 consultation requirements due 
to the physical presence of the species. Any minimal conservation 
benefits that would be gained from consulting on critical habitat would 
be outweighed by the benefits of avoiding the additional costs (staff 
time and money) of designating and consulting on critical habitat. 
These costs, while not significant, are avoidable, create very little 
additional benefits to the species, and could be better used to 
effectuate conservation measures on the ground. As such, we find that 
the benefits of designating critical habitat for the Hine's emerald 
dragonfly on Hiawatha National Forest are small in comparison to the 
benefits of excluding these specific areas from the final designation. 
Further, exclusions will continue to enhance the partnership efforts 
with the Forest Service that are focused on conservation of the species 
on the Hiawatha National Forest.
    (4) Exclusions Will Not Result in Extinction of the Species.
    We believe that exclusion of Michigan units 1 and 2 in Hiawatha 
National Forest from critical habitat will not result in the extinction 
of the Hine's emerald dragonfly because current conservation efforts 
under the Land and Resource Management Plan for the Hiawatha National 
Forest adequately protect essential Hine's emerald dragonfly habitat 
and go beyond this to provide appropriate management to maintain and 
enhance the PCEs for the Hine's emerald dragonfly. If these units were 
designated as critical habitat, the designation would not have required 
the implementation of conservation efforts. As such, there is no reason 
to believe that this exclusion would result in extinction of the 
species. We therefore have excluded the Hiawatha and Mark Twain 
National Forests from the final designation of critical habitat for the 
Hine's emerald dragonfly under section 4(b)(2) of the Act.

Mark Twain National Forest, Missouri

    Missouri units 1, 2, 3, 5, 7, 8 (in part), 11 (in part), 21, 23, 
24, 25, and 26 are on U.S. Forest Service lands in Mark Twain National 
Forest. The Mark Twain National Forest contains approximately 1.5 
million ac (607,028 ha) of land in southern and central Missouri. In 
2005, Mark Twain National Forest revised its Land and Resource 
Management Plan (Mark Twain Forest Plan) (USDA 2005, Chapter 2, pp. 1-
14). That Forest Plan, through implementation of the standards and 
guidelines established for the Hine's emerald dragonfly, addresses 
threats to the species on Mark Twain National Forest lands in Missouri. 
We completed a section 7 consultation for the Mark Twain Forest Plan 
that addresses federally listed resources, including the Hine's emerald 
dragonfly. We determined in our biological opinion that the 
implementation of the Mark Twain Forest Plan would not jeopardize the 
continued existence of the Hine's emerald dragonfly.
    The 2005 Forest Plan contains specific direction for management of 
fen habitat and for fens with known or suspected populations of Hine's 
emerald dragonflies (Table 4). The Plan also contains standards and 
guidelines to protect soil productivity and water quality while 
implementing all management actions. An amendment to the Mark Twain 
Forest Plan is required to change a standard and this would trigger 
consultation with us under section 7 of the Act. Guidelines are also 
strongly adhered to and may only be modified if site-specific 
conditions warrant and rationale for a deviation is given in a NEPA 
document. Again section 7 would be conducted and the Service would 
review a guideline deviation if listed species were likely to be 
impacted by the specific project. Standards and guidelines are not 
voluntary actions, but rather strong commitments by the Mark Twain 
National Forest to a particular management direction. The specific 
standards and guidelines (USDA 2005, Chapter 2, p. 8) for the Hine's 
emerald dragonfly and its habitat are summarized in Table 5.

Table 5.--Summary of Standards and Guidelines in the Mark Twain National
     Forest 2005 Forest Plan (USDA 2005) That Protect Hine's Emerald
                       Dragonfly and Their Habitat
------------------------------------------------------------------------
                                         Conservation for Hine's emerald
 2005 Forest plan management direction              dragonfly
------------------------------------------------------------------------
Control nonnative, invasive and/or       Protect, enhance, or restore
 undesirable plant species in fen         breeding and foraging areas.
 habitats through the most effective
 means possible while protecting water
 quality (standard).
Prescribed burns on fens that harbor     Protect, restore, or enhance
 known or suspected populations of        breeding and foraging areas.
 Hine's emerald dragonfly must be
 scheduled to occur from November
 through April (standard).
Prohibit vehicle and heavy equipment     Protect, restore, or enhance
 use in fens, unless needed to improve    breeding and foraging areas.
 Hine's emerald dragonfly habitat
 (standard).
Control unauthorized vehicle access to   Protect the species and its
 fens (standard).                         breeding and foraging habitat.
Restore local hydrology by eliminating   Protect breeding and foraging
 old drainage ditches or other water      areas.
 diversionary structures when possible
 if such activities would not result in
 a loss of habitat (guideline).

[[Page 51128]]

 
Fens that harbor known populations of    Protect breeding and foraging
 Hine's emerald dragonfly should be       areas.
 prescribe burned to control invasion
 of woody species or as part of larger
 landscape restoration and enhancement
 projects (guideline).
------------------------------------------------------------------------

    The fen standards and guidelines prohibit mechanical disturbance, 
and establish buffer zones around fen edges. Certain management 
activities are prohibited or modified within the buffer zones. The fen 
standards and guidelines require new road design to maintain hydrologic 
functioning of fens and encourage relocation of roads or restoration of 
hydrology where existing roads interfere with natural water flow. The 
fen standards and guidelines encourage management of fire-dependent 
wetland communities with a fire regime similar to that with which the 
communities evolved (USDA 2005, Chapter 2, pp. 13-14).
    Implementing the Mark Twain Forest Plan's standards and guidelines 
will maintain the natural hydrology, restore natural fire regimes, and 
control undesirable plant species to maintain breeding and foraging 
habitat identified for the Hine's emerald dragonfly on the Mark Twain 
National Forest. Additionally, prohibiting mechanical disturbance in 
fens will protect the integrity of crayfish burrows and maintain 
important larval habitat.
    In addition to the 2005 Forest Plan, the Mark Twain National Forest 
completed a ``Threats Assessment of Fens Containing Hine's Emerald 
Dragonfly'' in September 2005. This assessment describes threats to 
individual fens and provides recommendations to eliminate or minimize 
those threats. Primary recommendations are to increase the use of 
prescribed fire at many fens, and construct fences to exclude all-
terrain vehicles (ATVs) and feral hogs from a few of the locations. 
Potential disturbance due to equestrian use will be minimized through 
coordination with the appropriate U.S. Forest Service District Office; 
signs and fencing will be used, if necessary, to alleviate this threat. 
Effective removal and exclusion measures will minimize threats from 
feral hogs and beavers. In 2005, beavers were effectively removed from 
Missouri Unit 5 where floodwater associated with a beaver dam 
threatened the integrity of the adjacent fen.
    We believe that the standards and guidelines outlined in the Mark 
Twain Forest Plan, guidelines identified in the U.S. Forest Service's 
2005 Threats Assessment, and the agency's commitment to manage and 
maintain important fen habitat through section 7(a)(1) and 7(a)(2) 
consultation, adequately address identified threats to the Hine's 
emerald dragonfly and its habitat. The conservation measures as 
outlined above provide greater benefit to the Hine's emerald dragonfly 
than would designating critical habitat on the Mark Twain National 
Forest. Thus the relative benefits of designation of these lands are 
diminished and limited.
    (1) Benefits of Designation.
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical habitat. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 to consult with us on actions that may affect a 
federally listed species to ensure such actions do not jeopardize the 
species' continued existence. The Forest Service routinely consults 
with us on activities on the Mark Twain National Forest that may affect 
federally listed species to ensure that the continued existence of such 
species is not jeopardized.
    Designation of critical habitat may also provide educational 
benefits by informing land managers of areas essential to the 
conservation of the Hine's emerald dragonfly. In the case of Missouri, 
there is no appreciable educational benefit because the Mark Twain 
National Forest has already demonstrated its knowledge and 
understanding of essential habitat for the species through active 
recovery efforts and consultation. The Missouri public, particularly 
landowners with Hine's emerald dragonfly habitat on their lands, is 
also well informed about the Hine's emerald dragonfly.
    Furthermore, the benefits of including the Mark Twain National 
Forest in designated critical habitat would be minimal because the 
Forest is currently implementing conservation actions for the Hine's 
emerald dragonfly and its habitat that are beyond those that would be 
realized if critical habitat were designated.
    (2) Benefits of Exclusion.
    The longstanding cooperative working relationship between the 
Service and the Mark Twain National Forest has lead to the 
identification and implementation of various recovery actions for 
listed species, including the Hine's emerald dragonfly. Mark Twain 
National Forest is actively implementing actions to conserve the Hine's 
emerald dragonfly on their lands, reinforcing their commitment to 
actions outlined in the Forest Plan. The benefits of these recovery 
activities exceed the benefits of critical habitat designation. 
Exclusion would further enhance the cooperative working relationship 
with the Forest Service by focusing on activities that are designed to 
protect and recover the Hine's emerald dragonfly.
    (3) Benefits of Exclusion Outweigh the Benefits of Designation.
    We find that the benefits of designating critical habitat for the 
Hine's emerald dragonfly in Mark Twain National Forest in Missouri are 
small in comparison to the benefits of exclusion. Exclusion will 
enhance the partnership efforts with the Forest Service focused on 
conservation of the species in the State, and will ensure conservation 
benefits for the species beyond those that could be required under a 
critical habitat designation.
    (4) Exclusions Will Not Result in Extinction of the Species.
    We believe that exclusion of Missouri units 1, 2, 3, 5, 7, 8 (in 
part), 11 (in part), 21, 23, 24, 25, and 26 in Mark Twain National 
Forest from critical habitat will not result in the extinction of the 
Hine's emerald dragonfly because current conservation efforts under the 
Land and Resource Management Plan for the Mark Twain National Forest 
adequately protect essential Hine's emerald dragonfly habitat and go 
beyond this to provide appropriate management to maintain and enhance 
the PCEs for the Hine's emerald dragonfly. If these units were 
designated as critical habitat, the designation would not have required 
the implementation of conservation efforts. As such, there is no reason 
to believe that this exclusion would result in extinction of the 
species.

[[Page 51129]]

State Land Management--Exclusions Under Section 4(b)(2) of the Act

    We are excluding all State-owned land in Missouri under section 
4(b)(2) of the Act based on conservation measures addressed in species-
specific management plans for state-managed lands and Missouri's state-
wide Hine's emerald dragonfly recovery plan. Missouri is the only state 
within the range of the Hine's emerald dragonfly that has management 
plans that specifically address conservation of the Hine's emerald 
dragonfly on state lands.
    Missouri units 16, 17, 18, and 22 are under MDC ownership and Unit 
14 is privately owned but managed by MDC. Threats identified on land 
owned and managed by MDC are feral hogs, habitat fragmentation, road 
construction and maintenance, all terrain vehicles, beaver dams, and 
management conflicts.
    In regard to Hine's emerald dragonfly conservation, the MDC has:
    (1) Developed management plans for the five conservation areas 
where the Hine's emerald dragonfly has been documented (Missouri 
Natural Areas Committee 2007; Missouri Department of Conservation 
2007a, 1-4 pp.; 2007b, 1-3 pp.; 2007c, 1-4 pp.)
    (2) Formulated best management practices (Missouri Department of 
Conservation 2007d, 1-2 pp.) and department guidelines (Missouri 
Department of Conservation 2007e, 1-3 pp.); and
    (3) Developed a state-wide recovery plan for the Hine's emerald 
dragonfly (Missouri Department of Conservation 2007f, 1-33 pp.).
    These plans provide for long-term management and maintenance of fen 
habitat essential for larval development and adjacent habitat that 
provides for foraging and resting needs for the species. Areas of 
management concern include the fen proper, adjacent open areas for 
foraging, adjacent shrubs, and a 328 ft (100 m) forest edge buffer to 
provide habitat for resting and predator avoidance. Based on initial 
groundwater recharge delineation studies by Aley and Aley (2004, p. 
22), the 328 ft (100 m) buffer will also facilitate the maintenance of 
the hydrology associated with each unit. Actions outlined in area 
management plans and the state recovery plan for the Hine's emerald 
dragonfly address threats to habitat by preventing the encroachment of 
invasive woody plants (ecological succession), and by maintaining open 
conditions of the fen and surrounding areas with prescribed fire and 
stand improvement through various timber management practices.
    In addition to site-specific plans, there is also a state-wide 
recovery plan (Missouri Department of Conservation 2007f) outlines 
objectives for conserving the Hine's emerald dragonfly on state managed 
and privately owned property in Missouri (Table 6). The recovery plan 
includes a budget for Fiscal Years 2006 to 2012, showing MDC's 
commitment to acquire the funds necessary to implement these actions. 
The MDC coordinated closely with the Service in developing the site-
specific plans and the state-wide Hine's emerald dragonfly recovery 
plan and the recommended conservation measures within it. We believe 
that by implementing those recommended conservation actions in Missouri 
we can achieve recovery of the species in the state.

Table 6.--Summary of Objectives in MDC's Recommendations for Recovery of
  Hine's Emerald Dragonfly and Ozark Fen Communities in Missouri (FY08-
                                  FY12)
------------------------------------------------------------------------
                                         Conservation benefit for Hine's
      MDC recovery plan objective               emerald dragonfly
------------------------------------------------------------------------
Maintain the natural integrity of Ozark  Protect, restore, or enhance
 fen communities by decreasing exotic,    breeding and foraging areas.
 feral, domestic, and undesirable
 native animal and plant populations
 specifically when those populations
 threaten Ozark fens, associated
 natural communities, and habitats
 essential for the life requirements of
 the dragonfly.
Restore local hydrology and protect      Protect, enhance, or restore
 groundwater contribution areas by        breeding and foraging areas.
 eliminating past drainage improvements
 and ensuring developments do not
 adversely affect fen recharge areas.
Prohibit vehicle operation in fens       Protect breeding and foraging
 unless specifically authorized or        areas.
 prescribed for Ozark fen restoration
 actions and Hine's emerald dragonfly
 habitat improvement projects.
Ensure that recreational overuse does    Protect breeding and foraging
 not impact Ozark fen communities.        areas.
Develop public outreach materials and    Protect, enhance, or restore
 solutions to advance the conservation    breeding and foraging areas.
 of Hine's emerald dragonfly and Ozark
 fen communities.
Manage fire-dependent wetland            Protect, enhance, or restore
 communities with a fire regime similar   breeding and foraging areas.
 to that in which the natural
 communities evolved and developed.
Monitor fen water quality, identify      Protect, enhance, or restore
 potential pollutants, and develop        breeding and foraging areas.
 strategies to abate damages.
Increase connectivity within Ozark fen   Enhance breeding and foraging
 complexes.                               areas.
------------------------------------------------------------------------

    Numerous agencies and groups are working together to alleviate 
threats to the Hine's emerald dragonfly in Missouri. These cooperating 
partners include conservation area managers, the MDC's Private Land 
Services (PLS) Division and Natural History biologists, MDC's Recovery 
Coordinator for the species, the Service, the Missouri Hine's Emerald 
Dragonfly Workgroup, and the Federal Hine's Emerald Dragonfly Recovery 
Team (Recovery Team).
    We believe that management guidelines outlined in the conservation 
area plans and natural area plans, the BMPs, the state-wide recovery 
plan for the Hine's emerald dragonfly, and the close coordination among 
the various agencies mentioned above (plus other identified species 
experts as needed), adequately address identified threats to Hine's 
emerald dragonfly and its habitat on MDC lands. The conservation 
measures as outlined above provide greater benefit to the Hine's 
emerald dragonfly than would designating critical habitat on Missouri 
state-managed lands. Thus the relative benefits of designation of these 
lands are diminished and limited.
    (1) Benefits of Designation.
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical

[[Page 51130]]

habitat. Absent critical habitat designation, Federal agencies remain 
obligated under section 7 to consult with us on actions that may affect 
a federally listed species to ensure such actions do not jeopardize the 
species' continued existence.
    Designation of critical habitat may also provide educational 
benefits by informing land managers of areas essential to the 
conservation of the Hine's emerald dragonfly. In the case of Missouri, 
there is no appreciable educational benefit because the MDC has already 
demonstrated its knowledge and understanding of essential habitat for 
the species through active recovery efforts and consultation.
    Furthermore, the benefits of including State-managed lands in 
Missouri in designated critical habitat would be minimal because the 
land managers/landowners are currently implementing conservation 
actions for the Hine's emerald dragonfly and its habitat that are 
beyond those that could be required if critical habitat were 
designated.
    (2) Benefits of Exclusion.
    Excluding State-owned lands in Missouri from critical habitat 
designation will sustain and enhance the already robust working 
relationship between the Service and MDC. The State has a strong 
history of conserving the Hine's emerald dragonfly and other federally 
listed species. The MDC is committed to continued conservation for the 
Hine's emerald dragonfly through its state management plan for the 
species. The Service's willingness to work closely with MDC on 
innovative ways to manage federally listed species will continue to 
reinforce those conservation efforts.
    (3) Benefits of Exclusion Outweigh the Benefits of Designation.
    We find that the benefits of designating critical habitat for the 
Hine's emerald dragonfly on State lands in Missouri are small in 
comparison to the benefits of exclusion. Exclusion will enhance the 
partnership efforts with the MDC focused on conservation of the species 
in the State, and secure conservation benefits for the species beyond 
those that could be required under a critical habitat designation.
    (4) Exclusions Will Not Result in Extinction of the Species.
    We believe that excluding the Missouri units under MDC ownership 
(units 16, 17, 18, and 22) and Unit 14, that is privately owned but 
managed by MDC, from critical habitat would not result in the 
extinction of Hine's emerald dragonfly because current conservation 
efforts under the Conservation and Natural Area Plans and other Plans 
by the MDC adequately protect essential Hine's emerald dragonfly 
habitat and provide appropriate management to maintain and enhance the 
PCEs for the Hine's emerald dragonfly. In addition, conservation 
partnerships on non-Federal lands are important conservation tools for 
this species in Missouri that could be negatively affected by the 
designation of critical habitat. As such, there is no reason to believe 
that this exclusion would result in extinction of the species.

Private Land Management--Exclusions Under Section 4(b)(2) of the Act

    We are excluding all private land in Missouri under section 4(b)(2) 
of the Act based on the cooperative conservation partnership with 
private landowners in Missouri. Missouri units 2 (in part), 4, 6, 8 (in 
part), 9, 10, 11 (in part), 12, 13, 15, 19, and 20 are under private 
ownership.
    The Nature Conservancy manages Grasshopper Hollow (in Unit 11) in 
accordance with the Grasshopper Hollow Management Plan (The Nature 
Conservancy 2006, p. 1-4) to maintain fen habitat. The plan includes 
management goals that specifically address the Hine's emerald dragonfly 
and its habitat: (1) Sustain the high quality fen complex, with a full 
suite of fen biota; (2) Restore the fen system in suitable drained 
fields at the north end of Doe Run lands; and (3) Ensure the long term 
viability of healthy populations of the Hine's emerald dragonfly.
    Threats to the species identified on private land are feral hogs, 
habitat fragmentation, road construction and maintenance, ecological 
succession, all terrain vehicles, beaver dams, utility maintenance, 
application of herbicides, and change in ownership. All threats listed 
above for private property in Missouri are addressed in the Missouri 
Department of Conservation's state-wide recovery plan for the Hine's 
emerald dragonfly (Missouri Department of Conservation 2007f, 1-33pp) 
and through close coordination between personnel with the MDC's PLS 
Division or Regional Natural History biologists and private landowners. 
Additionally, MDC personnel work closely and proactively with the 
National Resources Conservation Service (NRCS) and the Service's 
Partners for Fish and Wildlife Program to initiate management and 
maintenance actions on fens occupied by Hine's emerald dragonflies that 
benefit the species and alleviate potential threats. The Missouri 
Department of Conservation (2007d, 1-2pp) has developed BMPs for the 
Hine's emerald dragonfly, which further displays the agencies 
dedication to conserving the species and its habitat on both State and 
private land. These BMPs and close coordination with MDC's Recovery 
Leader for Hine's emerald dragonflies have resulted in the 
implementation of various activities on private property to benefit the 
species or minimize potential threats. Current and ongoing conservation 
actions on private lands include the following: Developing private land 
partner property plans; providing landowners with technical support 
through ongoing site visits; providing grazing and forage harvesting 
recommendations to minimize potential fen damage; excluding heavy 
equipment from fen habitat; placing signs on fen habitat alerting land 
owners to the sensitivity of this natural community; providing public 
land owners with public outreach regarding the life history 
requirements of Hine's emerald dragonflies and the sensitivity of its 
unique habitat; providing recommendations on the control of beavers, 
which are harmful to delicate fen habitat; providing education on the 
need and correct use of prescribed fire; excluding livestock from fens 
and other wetland types; restoring fens and wetlands by restoring 
hydrology or controlling invasive species and woody brush invasion; 
applying appropriate nutrient and pest management on adjacent 
agricultural fields to reduce runoff; implementing practices that 
control erosion and prevent sediment delivery to wetlands; and when 
applicable, facilitating the transfer of property from private to 
public ownership. Although implementing Hine's emerald dragonfly BMPs 
on private land is voluntary, the best way we have found to ensure 
effective conservation on private lands is through such voluntary 
actions. Private landowners are generally more receptive to voluntary 
conservation actions on their lands than they are to regulated actions 
or perceived regulation. The MDC has successfully conducted 
conservation actions on many private land parcels and has dedicated 
numerous staff hours to these actions (Table 7).

[[Page 51131]]



    Table 7.--Summary of Private Land Initiatives and Average Annual
Expenditure for Hine's Emerald Dragonfly Conservation Measures Conducted
               by MDC Staff on Private Lands (Since 2005)
------------------------------------------------------------------------
                                            Average annual expenditure
           Conservation action               since 2005  (in MDC staff
                                                      hours)
------------------------------------------------------------------------
Landowner technical support in the form   250 hours.
 of in-field consultation,
 correspondence, and other
 communications. Includes operations
 that effect private land fens that are
 known Hine's emerald dragonfly sites or
 potential sites.
Farm plan development and fen             75 hours.
 restoration planning for private
 landowners. Includes the development of
 planning documents for private
 landowners that have Ozark fens.
Grazing system and forage harvesting      50 hours.
 recommendations to private landowners.
 Many Missouri fens are located in
 pastures or hay meadows. Maintaining
 stocking rates at suitable levels
 benefits Ozark fens and limits
 pressures associated with woody
 encroachment.
Technical support to landowners directly  25 hours.
 related to beaver control within Ozark
 fen communities.
Technical assistance to landowners        25 hours.
 regarding fencing options to exclude
 cattle or combat possible ATV
 incursions.
Coordination with utility companies       50 hours.
 applying herbicides or operating mowing
 equipment on rights-of-way that cross
 private lands--activities that have the
 potential to damage fen communities and
 Hine's emerald dragonfly habitats.
Fen restoration demonstration projects    50 hours plus herbicide and
 including woody encroachment clearing     application expenses of
 and herbicide application; often in       $2500.00.
 direct coordination with private land
 partners.
Demonstration exotics control including   25 hours.
 herbicide application and integrated
 pest management strategy development.
 Willow encroachment, reed canary grass
 control, and multi-flora rose control
 within fens on private lands. Several
 private land fens have characteristic
 infestations of undesirable species;
 MDC staff have applied herbicides to
 problem exotic invasive plant species
 to ensure fen habitats are suitable for
 Hine's emerald dragonfly.
Coordination with private landowners to   15 hours (There have only been
 ensure Hine's emerald dragonfly habitat   a few opportunities for this
 is not impacted by pasture renovation     action).
 activities; includes delineation of
 habitat areas with private land
 partners.
Signage placement on private land fens.   15 hours.
 Signage is placed on some fens when
 requested by private landowners or to
 engender support and understanding for
 fen restoration projects.
Installation of firelines, in             15 hours.
 cooperation with private landowners, on
 burn units that include fen communities.
Coordination with landowners interested   40 hours.
 in selling property with Ozark fens and
 wetland habitats that have the
 potential to support Hine's emerald
 dragonfly. Includes close
 communications with landowners;
 interagency coordination and technical
 assistance; coordination with
 surveyors, real estate lawyers, and
 biologists.
Presentation and outreach events          40 hours.
 directed to landowners with Hine's
 emerald dragonfly populations or Ozark
 fen natural communities.
Media contacts (radio, television,        80 hours.
 printed media) and coordination
 directly related to Hine's emerald
 dragonfly recovery.
Coordination with conservation agents,    40 hours.
 often regarding private land fens that
 may be threatened by ATV activities.
Patrols and enforcement operations......  50 hours.
------------------------------------------------------------------------

    Effective measures will continue to be incorporated to minimize 
threats from feral hogs and beavers by implementing MDC's state-wide 
recovery plan for the Hine's emerald dragonfly (Missouri Department of 
Conservation 2007f, 1-3pp) and by providing technical assistance and 
implementation assistance to private landowners through coordination 
with MDC's PLS Division or Regional Natural History biologists, the 
NRCS, and the Service's Partners for Fish and Wildlife Program. Utility 
maintenance (Units 8 and 14) and herbicide application to maintain 
power line rights-of-way (Unit 8) were identified as potential threats 
at two units. Implementing the actions outlined in Missouri Department 
of Conservation's state-wide recovery plan for the Hine's emerald 
dragonfly and ongoing coordination among the MDC's PLS Division, MDC's 
Hine's emerald dragonfly recovery coordinator, and the appropriate 
utility maintenance company and its contractors will continue to 
minimize potential threats (Missouri Department of Conservation 2007f, 
1-3pp). The potential change in ownership on private land in Missouri 
from cooperative landowners to ones who may not want to manage their 
land to benefit the species is a concern on some private lands. This 
issue will continue to be addressed by close coordination between new 
landowners and MDC's PLS Division or their Hine's emerald dragonfly 
recovery coordinator. The landowner's access to grants and technical 
assistance from multiple landowner incentive programs administered 
through the MDC, NRCS, and the Service's Partners for Fish and Wildlife 
Program will remain a main focus of outreach to potential new private 
property owners. Unit 14 is under private ownership but is a designated 
State Natural Area (Missouri Natural Areas Committee 2007). An updated 
plan developed for the area ensures that the integrity of the fen is 
maintained (Missouri Natural Areas Committee 2007).
    Personnel from MDC are currently working in cooperation with 
private landowners that have important fen habitat on their lands that 
support Hine's emerald dragonflies. This direct work with private 
landowners allows for effective maintenance and

[[Page 51132]]

enhancement of Hine's emerald dragonfly habitat in the state. MDC is 
also working toward establishing new landowner relationships and 
cooperative management programs that will provide important 
contributions to Hine's emerald dragonfly recovery. Because of the 
close coordination and excellent working partnership of all parties 
listed above, we believe that threats to Hine's emerald dragonfly and 
its habitat on private property in Missouri are minimized. The 
conservation measures as outlined above provide greater benefit to the 
Hine's emerald dragonfly than would designating critical habitat on 
private lands in Missouri. Thus the relative benefits of designation of 
these lands are diminished and limited.
    (1) Benefits of Designation.
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical habitat. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 to consult with us on actions that may affect a 
federally listed species to ensure such actions do not jeopardize the 
species' continued existence.
    Designation of critical habitat may also provide educational 
benefits by informing land managers of areas essential to the 
conservation of the Hine's emerald dragonfly. In the case of Missouri, 
private conservation groups have already demonstrated their knowledge 
and understanding of essential habitat for the species through active 
recovery efforts and consultation. The Missouri public, particularly 
landowners with Hine's emerald dragonfly habitat on their lands, is 
also well informed about the Hine's emerald dragonfly.
    Furthermore, the benefits of including several of the privately 
owned areas in Missouri in designated critical habitat would have been 
minimal because the land managers/landowners are currently implementing 
conservation actions for the Hine's emerald dragonfly and its habitat 
that are beyond those that could be required if critical habitat were 
designated.
    (2) Benefits of Exclusion.
    We view the continued cooperative conservation partnerships with 
private landowners to be essential for the conservation of the Hine's 
emerald dragonfly in Missouri. The designation of critical habitat on 
private lands in Missouri would harm ongoing and future partnerships 
that have been or may be developed on those lands. Many private 
landowners in Missouri view critical habitat negatively and believe 
that such designation would impact their ability to manage their land. 
This is despite many attempts at public outreach and education to the 
contrary. Based on past experiences in Missouri, designation of 
critical habitat would likely hamper the conservation actions that have 
been initiated for the Hine's emerald dragonfly on private land through 
various landowner incentive programs. The MDC has a longstanding 
history of working with private landowners in Missouri, especially 
regarding the conservation of federally listed species. Of the 26 units 
being excluded in the State, 12 (46 percent) are on private land. The 
MDC has worked closely with the NRCS to implement various landowner 
incentive programs that are available through the Farm Bill.
    To further facilitate the implementation of these and other 
landowner incentive programs on the ground, the MDC created the PLS 
Division and established 49 staff positions throughout the State. The 
PLS Division works with multiple landowners within the range of the 
Hine's emerald dragonfly in Missouri to undertake various conservation 
actions to maintain and/or enhance fen habitat. The MDC has also worked 
closely with the Service's Partners for Fish and Wildlife Program to 
implement various management actions on private lands. Close 
coordination between the two agencies for actions that could benefit 
the species on private land will continue. The designation of critical 
habitat for the Hine's emerald dragonfly on private land in Missouri 
would significantly hinder the ability to implement those landowner 
incentive programs with multiple landowners, which would negate 
conservation benefits already initiated for the species or those 
planned in the future.
    The Hine's emerald dragonfly, along with other federally listed 
species, is such a contentious issue in Missouri that the species is 
viewed negatively by many private landowners. Multiple private 
landowners have been contacted by MDC personnel to obtain permission to 
survey the species on their property. In some cases, access has been 
denied because of negative perceptions associated with the presence of 
federally listed species on private land and the perception that all 
fens currently occupied by the Hine's emerald dragonfly would be 
designated as critical habitat (Bob Gillespie, MDC, pers. comm. June 
2005).
    Although access to survey some private land has been denied, 
several landowners have conducted various management actions to benefit 
the Hine's emerald dragonfly, especially in Reynolds County where the 
largest amount of currently occupied habitat on privately owned land 
occurs. The designation of critical habitat on such sites would have 
dissolved developing partnerships and prevented the initiation of 
additional conservation actions. Additionally, it is likely that the 
designation of critical habitat on private land in Missouri would have 
ended the cooperation associated with conservation actions already 
underway (Missouri Department of Conservation, in litt. 2007).
    Based on potential habitat identified by examining the Service's 
National Wetland Inventory maps, there are other areas with suitable 
Hine's emerald dragonfly habitat where the species may be found. Many 
of these sites occur on private land. Pending further research on 
currently occupied sites, especially related to population dynamics and 
the role Missouri populations may play in achieving the recovery 
objectives outlined in the Service's Recovery Plan (U.S. Fish and 
Wildlife Service 2001, pp. 31-32), the likely discovery of additional 
sites could provide significant contributions towards the range-wide 
recovery of the species. Thus, continued or additional denial of access 
to private property could hamper the recovery of the species.
    (3) Benefits of Exclusion Outweigh the Benefits of Inclusion.
    We find that the benefits of designating critical habitat for the 
Hine's emerald dragonfly in Missouri are small in comparison to the 
benefits of exclusion. Exclusion will enhance the partnership efforts 
with private conservation groups and private landowners focused on 
conservation of the species in the State, and secure conservation 
benefits for the species beyond those that could be required under a 
critical habitat designation.
    The benefits of designating critical habitat on private lands in 
Missouri are minor compared to the much greater benefits derived from 
exclusion, including the maintenance of existing, established 
partnerships and encouragement of additional conservation partnerships 
in the future. It is our strong belief that benefits gained through 
extra outreach efforts associated with critical habitat and additional 
section 7 requirements (in the limited situations where there is a 
Federal nexus), are negated by the loss of current and future 
conservation partnerships, especially given that

[[Page 51133]]

access to private property and the possible discovery of additional 
sites in Missouri could help facilitate recovery of the species.
    (4) The Exclusions Will Not Result in Extinction of the Species.
    We believe that excluding the Missouri units in private ownership 
(units 2 (in part), 4, 6, 8 (in part), 9, 10, 11 (in part), 12, 13, 15, 
19, and 20) from critical habitat would not result in the extinction of 
Hine's emerald dragonfly because current conservation efforts under The 
Nature Conservancy's Management Plan for Grasshopper Hollow adequately 
protect essential Hine's emerald dragonfly habitat and provide 
appropriate management to maintain and enhance the PCEs for the Hine's 
emerald dragonfly. In addition, conservation partnerships on non-
Federal lands are important conservation tools for this species in 
Missouri that could be negatively affected by the designation of 
critical habitat in Missouri, where there is an established negative 
sentiment toward federal regulation for endangered species by some 
private landowners. As such, there is no reason to believe that this 
exclusion would result in extinction of the species.
    Our economic analysis indicates an overall low cost resulting from 
the designation. Therefore, we have found no areas for which the 
economic benefits of exclusion outweigh the benefits of designation, 
and so have not excluded any areas from this designation of critical 
habitat for the Hine's emerald dragonfly based on economic impacts. In 
addition, we anticipate no impact to national security, Tribal lands, 
or HCPs from this critical habitat designation, and have not excluded 
any lands based on those factors.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned. Following the 
publication of the proposed critical habitat designation, we conducted 
an economic analysis to estimate the potential economic effect of the 
designation. The draft analysis was made available for public review on 
March 20, 2007. We accepted comments on the draft analysis until April 
3, 2007.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of Hine's 
emerald dragonfly critical habitat. This information is intended to 
assist the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The draft economic analysis forecasts the costs associated with 
conservation activities for the Hine's emerald dragonfly would range 
from $16.8 million to $46.7 million in undiscounted dollars over the 
next 20 years. In discounted terms, potential economic costs are 
estimated to be $13.3 to $34.5 million (using a 3 percent discount 
rate) and $10.5 to $25.2 million (using a 7 percent discount rate). In 
annualized terms, potential costs are expected to range from $0.8 to 
$2.3 million annually (annualized at 3 percent) and $0.9 to $2.4 
million annually (annualized at 7 percent). The Service did not exclude 
any areas based on economics.
    A copy of the economic analysis with supporting documents is 
included in our administrative record and may be obtained by contacting 
the Field Supervisor, Chicago, Illinois Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT) or by downloading from the 
Internet at http://www.fws.gov/midwest/Endangered.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule because it may raise legal and policy issues. Based on 
our draft economic analysis, potential post-designation (2007-2026) 
costs are estimated to range from $16.8 to $46.6 million in 
undiscounted 2006 dollars. In discounted terms, potential economic 
costs are estimated to be $13.3 to $34.5 million (using a 3 percent 
discount rate) and $10.5 to $25.2 million (using a 7 percent discount 
rate). In annualized terms, potential costs are expected to range from 
$0.8 to $2.3 million annually (3 percent) and $0.9 to $2.4 million 
annually (at 7 percent). Therefore, we do not believe that the 
designation of critical habitat for the Hine's emerald dragonfly would 
result in an annual effect on the economy of $100 million or more or 
affect the economy in a material way. Due to the timeline for 
publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed the rule or accompanying draft 
economic analysis.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will need to consider alternative 
regulatory approaches. Because the determination of critical habitat is 
a statutory requirement under the ACT, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.

[[Page 51134]]

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based upon our draft economic 
analysis of the designation, we provide our analysis for determining 
whether the designation of critical habitat for the Hine's emerald 
dragonfly would result in a significant economic impact on a 
substantial number of small entities. This determination is subject to 
revision based on comments received as part of the final rulemaking. 
According to the Small Business Administration (SBA), small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the Hine's emerald dragonfly critical habitat 
designation would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (such as residential and commercial 
development). We considered each industry or category individually to 
determine if certification is appropriate. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
the designation of critical habitat. Designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies; non-Federal activities are not affected.
    Federal agencies must consult with us if their activities may 
affect designated critical habitat. Consultations to avoid the 
destruction or adverse modification of critical habitat would be 
incorporated into the existing consultation process.
    In our draft economic analysis, we evaluated the potential economic 
effects on small business entities resulting from conservation actions 
related to the listing of the Hine's emerald dragonfly and designation 
of its critical habitat. This analysis estimated prospective economic 
impacts due to the implementation of Hine's emerald dragonfly 
conservation efforts in six categories: development activities, water 
use, utility and infrastructure maintenance, road and railway use, 
species management and habitat protection activities, and recreation. 
The following is a summary of information contained in the draft 
economic analysis:
(a) Development Activities
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly development-related losses ranges from $13.0 
to $22.6 million (undiscounted) over 20 years, or $10.1 to 15.9 million 
assuming a 3 percent discount rate and $8.0 to $11.2 assuming a 7 
percent discount rate. The costs consist of the following: (1) Losses 
in residential land value in Wisconsin and Michigan due to potential 
limitations on residential development; (2) impacts to Material 
Services Corporation (MSC) quarrying operations in Illinois; and (3) 
dragonfly conservation efforts associated with the construction of the 
Interstate 355 Extension. Given the small average size and value of 
private land parcels in Wisconsin and Michigan, the non-institutional 
landowners (those for which land value losses were computed; 
institutionally owned properties do not have assessed property values) 
are most likely individuals, who are not considered small entities by 
the SBA. MSC has 800 employees in Illinois and Indiana, and was 
recently purchased by Hanson, PLC, which has more than 27,000 employees 
worldwide. The SBA Small Business Standard for Crushed and Broken 
Limestone Mining and Quarrying industry sector is 500 employees. 
Therefore, MSC is not considered a small entity. The conservation-
related costs associated with the construction of the Interstate 355 
Extension are borne by the Illinois Tollway Authority. The Illinois 
Tollway Authority does not meet the definition of a small entity. As a 
result of this information, we have determined that the designation of 
critical habitat for the Hine's emerald dragonfly is not anticipated to 
have a significant effect on a substantial number of small development 
businesses.
(b) Water Use
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly water use-related losses range from $46,000 to 
$7.0 million (undiscounted) over 20 years, or $33,000 to $5.4 million 
assuming a 3 percent discount rate and $21,000 to $4.0 million assuming 
a 7 percent discount rate. Public water systems may incur costs 
associated with drilling deep water aquifer wells. The USEPA Agency has 
defined small entity water systems as those that serve 10,000 or fewer 
people. None of the municipalities that could be required to construct 
deep aquifer wells as a result of conservation efforts for the Hine's 
emerald dragonfly has populations below 10,000. As a result of this 
information, we have determined that the designation of critical 
habitat for the Hine's emerald dragonfly is not anticipated to have a 
substantial effect on a substantial number of small municipalities.
(c) Utility and Infrastructure Maintenance
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly utility and infrastructure maintenance-related 
losses is estimated to be $1.5 million (undiscounted) over 20 years, or 
$1.3 million assuming a 3 percent discount rate and $1.1 million 
assuming a 7 percent discount rate. The costs are associated with 
necessary utility and infrastructure maintenance using dragonfly-
sensitive procedures. Within the designated critical habitat units, 
Commonwealth Edison is responsible for electrical line maintenance, 
county road authorities for road maintenance, and Midwest Generation 
for railroad track maintenance in Illinois Units 1 and 2. Neither 
company is considered a small entity. As a result of this information, 
we have determined that the designation of critical habitat for the

[[Page 51135]]

Hine's emerald dragonfly is not anticipated to have a significant 
effect on a substantial number of small entities.
(d) Road and Railway Use
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly road and railway use-related losses range from 
$1.7 to $15.0 million (undiscounted) over 20 years, or $1.5 to $11.7 
million assuming a 3 percent discount rate and $1.3 to $8.8 million 
assuming a 7 percent discount rate. The costs are associated with 
necessary railway upgrades for dragonfly conservation. Midwest 
Generation is responsible for railroad track improvements in Illinois. 
Neither Midwest Generation nor the individual travelers who would be 
affected by slower road speeds are considered small entities. As a 
result of this information, we have determined that the designation of 
critical habitat for the Hine's emerald dragonfly is not anticipated to 
have a significant effect on a substantial number of small entities.
(e) Species Management and Habitat Protection Activities
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly species management and habitat protection-
related losses is estimated at $886,000 (undiscounted) over 20 years, 
or $710,000 assuming a 3 percent discount rate and $563,000 assuming a 
7 percent discount rate. The costs primarily consist of species 
monitoring, maintenance of habitat, invasive species and feral hog 
control, and beaver dam mitigation. Species management and habitat 
protection costs will be borne by The Nature Conservancy (Wisconsin 
chapter), The Ridges Sanctuary, the Service, the U.S. Forest Service, 
the MIDNR, and the MDC. None of those entities meets the definition of 
a small entity. As a result of this information, we have determined 
that the designation of critical habitat for the Hine's emerald 
dragonfly is not anticipated to have a significant effect on a 
substantial number of small entities.
(f) Recreation
    According to the draft economic analysis, the forecast cost of 
Hine's emerald dragonfly recreation-related losses are estimated at 
$19,000. Recreational off-road vehicles and equestrian activities have 
the potential to alter Hine's emerald dragonfly habitat and extirpate 
populations. The costs are associated with mitigating the effects of 
those recreational activities. Those costs will be borne by the MIDNR, 
MDC, the U.S. Forest Service, and various county police departments. 
None of those entities meets the definition of a small entity. As a 
result of this information, we have determined that the designation of 
critical habitat for the Hine's emerald dragonfly is not anticipated to 
have a significant effect on a substantial number of small entities.
    Based on the previous, sector-by-sector analysis, we have 
determined that this critical habitat designation would not result in a 
significant economic impact on a substantial number of small entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This final rule is considered 
a significant regulatory action under E.O. 12866 due to potential novel 
legal and policy issues, but it is not expected to significantly affect 
energy supplies, distribution, or use. Appendix A of the draft economic 
analysis provides a discussion and analysis of this determination. The 
Midwest Generation facilities that rely on the transportation of coal 
through Illinois Units 1 and 2 generate 1,960 megawatts of electricity. 
The dragonfly conservation measures advocated by the Service, however, 
are not intended to alter the operation of these facilities. Rather, 
the recommended conservation activities focus on improving maintenance 
and railway upgrades. Thus, no energy-related impacts associated with 
Hine's emerald dragonfly conservation activities within critical 
habitat units are expected. As such, the designation of critical 
habitat is not expected to significantly affect energy supplies, 
distribution, or use and a Statement of Energy Effects is not required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments,'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and tribal governments under entitlement authority,'' 
if the provision would ``increase the stringency of conditions of 
assistance'' or ``place caps upon, or otherwise decrease, the Federal 
Government's responsibility to provide funding'' and the State, local, 
or tribal governments ``lack authority'' to adjust accordingly. At the 
time of enactment, these entitlement programs were: Medicaid; Aid to 
Families with Dependent Children work programs; Child Nutrition; Food 
Stamps; Social Services Block Grants; Vocational Rehabilitation State 
Grants; Foster Care, Adoption Assistance, and Independent Living; 
Family Support Welfare Services; and Child Support Enforcement. 
``Federal private sector mandate'' includes a regulation that ``would 
impose an enforceable duty upon the private sector, except (i) a 
condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.'' The designation of 
critical habitat does not impose a legally binding duty on non-Federal 
government entities or private parties. Under the ACT, the only 
regulatory effect is that Federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7. Non-Federal entities that receive Federal funding, 
assistance, permits, or otherwise require approval or authorization 
from a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat. However, the legally binding duty to 
avoid destruction or adverse modification of critical habitat rests 
squarely on the Federal agency.
    Furthermore, to the extent that non-Federal entities are indirectly 
impacted because they receive Federal assistance or participate in a 
voluntary Federal aid program, the Unfunded Mandates Reform Act would 
not apply; nor would critical habitat shift the costs of the large 
entitlement programs listed above on to State governments.
    (b) As discussed in the draft economic analysis of the designation 
of critical habitat for the Hine's emerald dragonfly, the impacts on 
nonprofits and small governments are expected to be

[[Page 51136]]

negligible. It is likely that small governments involved with 
development and infrastructure projects will be interested parties or 
involved with projects involving section 7 consultations for the Hine's 
emerald dragonfly within their jurisdictional areas. Any costs 
associated with this activity are likely to represent a small portion 
of a local government's budget. Consequently, we do not believe that 
the designation of critical habitat for the Hine's emerald dragonfly 
will significantly or uniquely affect these small governmental 
entities. As such, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Hine's emerald dragonfly in a 
Takings Implications Assessment (TIA). The TIA concludes that the 
designation of critical habitat for this species does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI and Department of Commerce policy, we 
requested information from, and coordinated development of, this final 
critical habitat designation with appropriate State resource agencies 
in Illinois, Michigan, and Wisconsin. The designation of critical 
habitat in areas currently occupied by the Hine's emerald dragonfly may 
impose nominal additional regulatory restrictions to those currently in 
place and, therefore, may have little incremental impact on State and 
local governments and their activities. The designation may have some 
benefit to these governments in that the areas that contain the 
features essential to the conservation of the species are more clearly 
defined, and the PCEs of the habitat necessary to the conservation of 
the species are specifically identified. While making this definition 
and identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are designating critical habitat in accordance with 
the provisions of the Endangered Species Act. This final rule uses 
standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in understanding the habitat 
needs of the Hine's emerald dragonfly.

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

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

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

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands occupied at the time of listing that contain 
the features essential for the conservation of the species and no 
tribal lands that are unoccupied areas that are essential for the 
conservation of the Hine's emerald dragonfly. Therefore, critical 
habitat for the Hine's emerald dragonfly has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Chicago Illinois 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT 
section).

Author(s)

    The primary author of this package is the Chicago, Illinois, 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


0
2. In Sec.  17.11(h), the List of Endangered and Threatened Wildlife, 
revise the entry for ``Dragonfly, Hine's emerald'' under ``INSECTS'' to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 51137]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Vertebrate population
------------------------------------------------------    Historic range       where endangered or           Status          When    Critical   Special
           Common name              Scientific name                                threatened                               listed    habitat    rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Insects
 
                                                                      * * * * * * *
Dragonfly, Hine's emerald.......  Somatochlora         U.S.A. (AL, IL, IN,  NA......................  E..................       573  17.95(i)         NA
                                   hineana.             MI, MO, OH, and
                                                        WI).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95(i), add an entry for ``Hine's emerald dragonfly 
(Somatochlora hineana),'' in the same alphabetical order in which this 
species appears in the table at 50 CFR 17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
    Hine's emerald dragonfly (Somatochlora hineana)
    (1) Critical habitat units are depicted for Cook, DuPage and Will 
Counties, Illinois; Alpena, Mackinac, and Presque Isle Counties, 
Michigan; and Door and Ozaukee Counties, Wisconsin, on the maps below.
    (2) The PCEs of critical habitat for the Hine's emerald dragonfly 
are:
    (i) For egg deposition and larval growth and development:
    (A) Organic soils (histosols, or with organic surface horizon) 
overlying calcareous substrate (predominantly dolomite and limestone 
bedrock);
    (B) Calcareous water from intermittent seeps and springs and 
associated shallow, small, slow flowing streamlet channels, rivulets, 
and/or sheet flow within fens;
    (C) Emergent herbaceous and woody vegetation for emergence 
facilitation and refugia;
    (D) Occupied burrows maintained by crayfish for refugia; and
    (E) Prey base of aquatic macroinvertebrates, including mayflies, 
aquatic isopods, caddisflies, midge larvae, and aquatic worms.
    (ii) For adult foraging, reproduction, dispersal, and refugia 
necessary for roosting, resting 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).
    (3) Critical habitat does not include human-made structures 
existing on the effective date of this rule and not containing one or 
more of the PCEs, such as buildings, lawns, old fields, hay meadows, 
fallow crop fields, manicured lawns, pastures, piers and docks, 
aqueducts, airports, and roads, and the land on which such structures 
are located. We define ``old field'' here as cleared areas that were 
formerly forested and may have been used as crop or pasture land that 
currently support a mixture of native and non-native herbs and low 
shrubs. ``Fallow field'' is defined as a formerly plowed field that has 
been left unseeded for a season or more and is presently uncultivated. 
In addition, critical habitat does not include open-water areas (i.e., 
areas beyond the zone of emergent vegetation) of lakes and ponds.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles, and critical habitat units 
were then mapped using Geographical Information Systems, Universal 
Transverse Mercator (UTM) coordinates. Critical habitat units are 
described using the public land survey system (township (T), range (R) 
and section (Sec.)).
    (5) Note: Index map of critical habitat units (Index map) follows:
BILLING CODE 4310-55-P

[[Page 51138]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.000


[[Page 51139]]


    (6) Illinois Units 1 through 7, Cook, DuPage, and Will Counties, 
Illinois.
    (i) Illinois Unit 1: Will County. Located in T36N, R10E, Sec. 22, 
Sec. 27, SE\1/4\ NE\1/4\ Sec. 28, NE\1/4\ SE\1/4\ Sec. 28, NW\1/4\ 
NW\1/4\ Sec. 34 of the Joliet 7.5' USGS topographic quadrangle. Land 
south of Illinois State Route 7, east of Illinois State Route 53, and 
west of the Des Plaines River.
    (ii) Illinois Unit 2: Will County. Located in T36N, R10E, Sec. 3, 
NW\1/4\ E\1/2\ Sec. 10, E\1/2\ Sec. 15 of the Romeoville and Joliet 
7.5' USGS topographic quadrangles. Land east of Illinois State Route 
53, and west of the Des Plaines River.
    (iii) Illinois Unit 3: Will County. Located in T37N, R10E, SW\1/4\ 
Sec. 26, NW\1/4\ SE\1/4\ Sec. 26, E\1/2\ Sec. 34, W\1/2\ NW\1/4\ Sec. 
35 of the Romeoville 7.5' USGS topographic quadrangle. Land west and 
north of the Des Plaines River and north of East Romeoville Road.
    (iv) Illinois Unit 4: Will and Cook Counties. Located in T37N, 
R10E, S\1/2\ NE\1/4\ Sec. 24, W\1/2\ SW\1/4\ Sec. 24, SE\1/4\ Sec. 24 
and T37N, R11E, SW\1/4\ SW\1/4\ Sec. 17, Sec. 19, NW\1/4\ Sec. 20 of 
the Romeoville 7.5' USGS topographic quadrangle. Land to the south of 
Bluff Road, west of Lemont Road, and north of the Des Plaines River.
    (v) Illinois Unit 5: DuPage County. Located in T37N, R11E, NW\1/4\ 
Sec. 15, NW\1/4\ SW\1/4\ Sec. 15, S\1/2\ NE\1/4\ Sec. 16, SW\1/4\ Sec. 
16, N\1/2\ SE\1/4\ Sec. 16, SE\1/4\ Sec. 17 of the Sag Bridge 7.5' USGS 
topographic quadrangle. Land to the north of the Des Plaines River.
    (vi) Illinois Unit 6: Cook County. Located in T37N, R12E, S\1/2\ 
Sec. 16, S\1/2\ NE\1/4\ Sec. 17, N\1/2\ SE\1/4\ Sec. 17, N\1/2\ Sec. 21 
of the Sag Bridge and Palos Park 7.5' USGS topographic quadrangles. 
Land to the north of the Calumet Sag Channel, south of 107th Street, 
and east of U.S. Route 45.
    (vii) Illinois Unit 7: Will County. Located in T36N, R10E, W\1/2\ 
Sec. 1, Sec. 2, N\1/2\ Sec. 11 of the Romeoville and Joliet 7.5'; USGS 
topographic quadrangles. Land east of the Illinois and Michigan Canal.
    (viii) Note: Map of Illinois critical habitat Units 1 through 7 
(Illinois Map 1) follows:

[[Page 51140]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.001

    (7) Michigan Unit 3, Mackinac County, Michigan.
    (i) Michigan Unit 3: Mackinac County. Located on the east end of 
Bois Blanc Island. Bois Blanc Island has not adopted an addressing 
system using the public land survey system. The unit is located in 
Government Lots 25 and 26 of the Cheboygan and McRae Bay 7.5'; USGS 
topographic quadrangles. The unit extends from approximately Walker's 
Point south to Rosie Point on the west side of Bob-Lo Drive. It extends 
from the road approximately 328 ft (100 m) to the west.
    (ii) Note: Map of Michigan critical habitat Unit 3 (Michigan Map 1) 
follows:

[[Page 51141]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.002

    (8) Michigan Unit 4, Presque Isle County, Michigan.
    (i) Michigan Unit 4: Presque Isle County. Located approximately 12 
miles southeast of the village of Rogers City. The unit contains all of 
T34N, R7E, SW\1/4\ SW\1/4\ Sec. 14, SW\1/4\ NW\1/4\ Sec. 15, NE\1/4\ 
SW\1/4\ Sec. 15, NW\1/4\ SE\1/4\ Sec. 15, NW\1/4\ SW\1/4\ Sec. 15, 
SE\1/4\ SE\1/4\ Sec. 15, NW\1/4\ NE\1/4\ Sec. 16, NE\1/4\ NW\1/4\ Sec. 
16, SE\1/4\ NE\1/4\ Sec. 16, and NW\1/4\ NW\1/4\ Sec. 23. It also 
contains portions of T34N, R7E, all \1/4\ sections in Secs. 15, all \1/
4\ sections in Sec. 16, SE\1/4\ and SW\1/4\ Sec. 9, SW\1/4\ Sec. 10, 
SW\1/4\ Sec. 14, NE\1/4\ Sec. 22, NW\1/4\ and NE\1/4\ Sec. 23 of the 
Thompson's Harbor 7.5' USGS topographic quadrangle. The northern 
boundary of the unit is Lake Huron and the southern boundary is north 
of M-23.
    (ii) Note: Map of Michigan critical habitat Unit 4 (Michigan Map 2) 
follows:

[[Page 51142]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.003

    (9) Michigan Unit 5, Alpena County, Michigan.
    (i) Michigan Unit 5: Alpena County. Located approximately 9 miles 
northeast of the village of Alpena. The unit contains all of T31N, R9E, 
SE\1/4\ SW\1/4\ Sec. 9. It also contains portions of T31N, R9E, NW\1/4\ 
SW\1/4\ Sec. 9, NE\1/4\ SW\1/4\ Sec. 9, SW\1/4\ SW\1/4\ Sec. 9, SW\1/4\ 
SE\1/4\ Sec. 9; and portions of T31N, R9E, NE\1/4\ NW\1/4\ Sec. 16, 
NW\1/4\ NE\1/4\ Sec. 16, NW\1/4\ NW\1/4\ Sec. 16 of the 7.5' USGS 
topographic quadrangle North Point 7.5' USGS topographic quadrangle. 
North Point Road is east of the area.
    (ii) Note: Map of Michigan critical habitat Unit 5 (Michigan Map 3) 
follows:

[[Page 51143]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.004

    (10) Michigan Unit 6, Alpena County, Michigan.
    (i) Michigan Unit 6: Alpena County. Located approximately 5 miles 
east of the village of Alpena. The unit contains all of T31N, R9E, 
SW\1/4\ SE\1/4\ Sec. 27. It also contains portions of T31N, R9E, NW\1/
4\ SE\1/4\ Sec. 27, NE\1/4\ SW\1/4\ Sec. 27, SE\1/4\ SW\1/4\ Sec. 27, 
SE\1/4\ SE\1/4\ Sec. 27; portions of T31N, R9E, NE\1/4\ NW\1/4\ Sec. 
34, NW\1/4\ NE\1/4\ Sec. 34, NE\1/4\ NE\1/4\ Sec. 34; and portions of 
T31N, R9E, NW\1/4\ NW\1/4\ Sec. 35, NE\1/4\ NW\1/4\, NW\1/4\ NE\1/4\ 
Sec. 35 of the North Point 7.5' USGS topographic quadrangle. Lake Huron 
is the east boundary of the unit.
    (ii) Note: Map of Michigan critical habitat Unit 6 (Michigan Map 4) 
follows:

[[Page 51144]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.005

    (11) Wisconsin Unit 1, Door County, Wisconsin.
    (i) Wisconsin Unit 1: Washington Island, Door County. Located in 
T33N, R30E, W\1/2\ and NE\1/4\ Sec. 4, SE\1/4\ Sec. 5 of Washington 
Island SE and Washington Island NE 7.5' USGS topographic quadrangles. 
Lands included are located adjacent to and west of Wickman Road, south 
of Town Line Road, East of Deer Lane and East Side Roads, north of Lake 
View Road and include Big Marsh and Little Marsh.
    (ii) Note: Map of Wisconsin critical habitat Unit 1 (Wisconsin Map 
1) follows:

[[Page 51145]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.006

    (12) Wisconsin Unit 2, Door County, Wisconsin.
    (i) Wisconsin Unit 2: Door County. Located in T32N, R28E, SE\1/4\ 
Sec. 11, NW\1/4\ Sec. 13, NE\1/4\ Sec. 14 of the Ellison Bay 7.5' USGS 
topographic quadrangle, and in T32N, R28E, W\1/2\ Sec. 13, E\1/2\ Sec. 
14, NE\1/4\ Sec. 23, portions of each \1/4\ of Sec. 24, N\1/2\ Sec. 25, 
and T32N, R29E, S\1/2\ Sec. 19, W\1/2\ Sec. 29, NE\1/4\ Sec. 30 of 
Sister Bay 7.5' USGS topographic quadrangle. Lands included are located 
east of the Village of Ellison Bay, south of Garrett Bay Road and Mink 
River Roads, North of County Road ZZ, west of Badger Road, County Road 
NP and Juice Mill Road, and includes the Mink River.
    (ii) Note: Map of Wisconsin critical habitat Unit 2 (Wisconsin Map 
2) follows:

[[Page 51146]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.007


[[Page 51147]]


    (13) Wisconsin Units 3 through 7, Door County, Wisconsin.
    (i) Wisconsin Unit 3: Door County. Located in T31N R28E, S\1/2\ 
S10, NE\1/4\ S15 of Sister Bay 7.5' USGS topographic quadrangle. Lands 
included are located south of County Road ZZ, north of North Bay (Lake 
Michigan), west of North Bay Road, east of Old Stage Road and about two 
miles east of the Village of Sister Bay and include a portion of Three-
Springs Creek.
    (ii) Wisconsin Unit 4: Door County. Located in T31N, R28E, SW\1/4\ 
and S\1/2\ Sec. 15, portions of each \1/4\ of Sec. 22, and N\1/2\ of 
Sec. 23 of the Sister Bay 7.5' USGS topographic quadrangle. Lands are 
located along the north and northwest sides of North Bay (Lake 
Michigan).
    (iii) Wisconsin Unit 5: Door County. Located in T31N, R28E, S\1/2\ 
Sec. 20, E\1/2\ Sec. 29, NW\1/4\ and S\1/2\ Sec. 28, N\1/2\ and SE\1/4\ 
Sec. 33, and W\1/2\ Sec. 34. It also is located in T30N, R28E, W\1/2\ 
Sec. 3, E\1/2\ and SW\1/4\ Sec. 4, SE\1/4\ Sec. 8, Sec. 9, N\1/2\ Sec. 
10, W\1/2\ and SE\1/4\ Sec.15, Sec. 16, and Sec. 17 of the Baileys 
Harbor East, and Sister Bay 7.5' USGS topographic quadrangles. Lands 
located south of German Road, east of State Highway 57, west of North 
Bay Drive, Sunset Drive and Moonlight Bay (Lake Michigan), north of 
Ridges Road and Point Drive and include Mud Lake and Reiboldt Creek.
    (iv) Wisconsin Unit 6: Door County. Located in T30N, R28E, portions 
of each \1/4\ of Sec. 5 of the Baileys Harbor East 7.5' USGS 
topographic quadrangle and Baileys Harbor West 7.5' USGS topographic 
quadrangle. Lands are located about 2\1/4\ miles north of the Town of 
Baileys Harbor, east of State Highway 57, south of Meadow Road and are 
associated with an unnamed stream.
    (v) Wisconsin Unit 7: Door County. Located in T30N, R27E, Sec. 11, 
SW\1/4\ Sec. 13, and N\1/2\ and SE \1/4\ Sec. 14 of the Baileys Harbor 
West 7.5' USGS topographic quadrangle. Lands are located north of 
County Road EE, east of County Road A and west of South Highland and 
High Plateau Roads, about two miles northeast of Town of Baileys Harbor 
and are associated with the headwaters of Piel Creek.
    (vi) Note: Map of Wisconsin critical habitat Units 3 through 7 
(Wisconsin Map 3) follows:

[[Page 51148]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.008

    (14) Wisconsin Unit 8, Door County, Wisconsin.
    (i) Wisconsin Unit 8: Door County. Located in T28N, R27E, S\1/2\ 
Sec. 16, N\1/2\ Sec. 21 of the Jacksonport 7.5' USGS topographic 
quadrangle. Lands are located east of Bechtel Road, South of Whitefish 
Bay Road, west of Glidden Drive and include Arbter Lake.
    (ii) Note: Map of Wisconsin critical habitat Unit 8 (Wisconsin Map 
4) follows:

[[Page 51149]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.009

    (15) Wisconsin Unit 9, Door County, Wisconsin.
    (i) Wisconsin Unit 9: Door County, Wisconsin. Located in T27N, 
R24E, SE\1/4\ Sec.16, E\1/2\ Sec. 20, portions of each \1/4\ of Secs. 
21, 28 and 33, NW\1/4\ and S\1/2\ Sec. 34. Also located in T26N, R24E, 
NW\1/4\ Sec. 3 of the Little Sturgeon 7.5' USGS topographic quadrangle. 
Lands are located west of Pickeral Road and Cedar Lane, north of State 
Highway 57, east of Hilly Ridge Road and County Road C, south of Fox 
Lane Road, about 1.5 miles southwest of Little Sturgeon Bay (Lake 
Michigan) and include portions of Keyes Creek and associated wetlands.
    (ii) Note: Map of Wisconsin critical habitat Unit 9 (Wisconsin Map 
5) follows:

[[Page 51150]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.010

    (16) Wisconsin Unit 10, Ozaukee County, Wisconsin.
    (i) Wisconsin Unit 10: Ozaukee County. Located in T11N, R21E, E\1/
2\ of Sec. 20, portions of each \1/4\ of Sec. 21, W\1/2\ Sec. 28, Sec. 
29, E\1/2\ Sec. 30, E\1/2\ and portions of NW\1/4\ and SW\1/4\ Sec. 31, 
Sec. 32, and W\1/2\ Sec. 33 of the Cedarburg, Five Corners, Newburg, 
and Port Washington West 7.5' USGS topographic quadrangles. Lands are 
located south of State Highway 33, east of County Road Y and Birchwood 
Road, north of Cedar Sauk Road about 2 miles west of Saukville, and 
includes the majority of Cedarburg Bog.
    (ii) Note: Map of Wisconsin critical habitat Unit 10 (Wisconsin Map 
6) follows:

[[Page 51151]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.011

    (17) Wisconsin Unit 11, Door County, Wisconsin.
    (i) Wisconsin Unit 11: Door County. Located in T27N, R26E, SE\1/4\ 
Sec. 11, Sec. 12, NW\1/4\ Sec. 13, and NE\1/4\ Sec. 14 of the Sturgeon 
Bay East 7.5' USGS topographic quadrangle. Lands are located south of 
County Road TT, east of Mathey Road, north of Buffalo Ridge Trail, west 
of Lake Forest Park Road (also County Road TT), about 1\1/2\ miles west 
of the City of Sturgeon Bay, and include portions of Kellner's Fen.
    (ii) Note: Map of Wisconsin critical habitat Unit 11 (Wisconsin Map 
7) follows:

[[Page 51152]]

[GRAPHIC] [TIFF OMITTED] TR05SE07.012

* * * * *

    Dated: August 20, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-4194 Filed 9-4-07; 8:45 am]
BILLING CODE 4310-55-C