[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Proposed Rules]
[Pages 79857-79880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22358]



[[Page 79857]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2024-0080; FXES111105BBFLY-245-FF05E00000]
RIN 1018-BH52


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Bethany Beach Firefly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Bethany Beach firefly (Photuris bethaniensis), a firefly 
species from Delaware, Maryland, and Virginia, as a threatened species 
under the Endangered Species Act of 1973, as amended (Act). This 
determination also serves as our 12-month finding on a petition to list 
the Bethany Beach firefly. After a review of the best available 
scientific and commercial information, we find that listing the species 
is warranted. We also propose protective regulations issued under 
section 4(d) of the Act to provide for the conservation of the Bethany 
Beach firefly. If we finalize this rule as proposed, it would add this 
species to the List of Endangered and Threatened Wildlife and extend 
the Act's protections to the species.

DATES: We will accept comments received or postmarked on or before 
December 2, 2024. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 15, 2024.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal:
    https://www.regulations.gov. In the Search box, enter FWS-R5-ES-
2024-0080, which is the docket number for this rulemaking. Then, click 
on the Search button. On the resulting page, in the panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R5-ES-2024-0080, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2024-0080.

FOR FURTHER INFORMATION CONTACT: Genevieve LaRouche, Field Office 
Supervisor, U.S. Fish and Wildlife Service, Chesapeake Bay Ecological 
Services Field Office, 177 Admiral Cochrane Drive, Annapolis, MD 21401; 
telephone 202-341-5882. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States. Please see Docket No. FWS-R5-ES-2024-
0080 on https://www.regulations.gov for a document that summarizes this 
proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), a species warrants listing if it meets the definition of an 
endangered species (in danger of extinction throughout all or a 
significant portion of its range) or a threatened species (likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range). If we determine that a 
species warrants listing, we must list the species promptly and 
designate the species' critical habitat to the maximum extent prudent 
and determinable. We have determined that the Bethany Beach firefly 
meets the Act's definition of a threatened species; therefore, we are 
proposing to list it as such. Listing a species as an endangered or 
threatened species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to list the Bethany beach 
firefly as a threatened species with protective regulations issued 
under section 4(d) of the Act (a ``4(d) rule'') to provide for the 
conservation of the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    We have determined that the Bethany Beach firefly meets the Act's 
definition of a threatened species due to habitat loss or degradation 
from the following activities or conditions: under Factor A, urban 
development and changes in land cover, light pollution, recreational 
activities, pesticides, invasive plants, and shoreline erosion control 
(including constructed dunes and sand fencing); and under Factor E, 
effects of small population size, climate change which includes more 
frequent and increased storm intensities and high tide flooding, rising 
sea levels causing periodic and/or total inundation, saltwater 
intrusion, and increased temperatures and drought).
    Section 4(a)(3) of the Act requires that the Secretary of the 
Interior (Secretary), to the maximum extent prudent and determinable, 
concurrently with listing designate critical habitat for the species. 
Section 3(5)(A) of the Act defines critical habitat as (i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed, 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 the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.
    We have determined that critical habitat is not determinable at 
this time for the Bethany Beach firefly. The Act allows the Service an 
additional year to publish a critical habitat designation that is not 
determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

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Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may be affecting the continued existence of the 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors;
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species; and
    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Information to assist with applying or issuing protective 
regulations under section 4(d) of the Act that may be necessary and 
advisable to provide for the conservation of the Bethany Beach firefly. 
In particular, we seek information concerning:
    (a) The extent to which we should include any of the Act's section 
9 prohibitions in the 4(d) rule; or
    (b) Whether we should consider any additional or different 
exceptions from the prohibitions in the 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), we may conclude that the species is endangered 
instead of threatened, or we may conclude that the species does not 
warrant listing as either an endangered species or a threatened 
species. In addition, we may change the parameters of the prohibitions 
or the exceptions to those prohibitions in the protective regulations 
issued under section 4(d) of the Act if we conclude it is appropriate 
in light of comments and new information received. For example, we may 
expand the prohibitions if we conclude that the protective regulation 
as a whole, including those additional prohibitions, is necessary and 
advisable to provide for the conservation of the species. Conversely, 
we may establish additional or different exceptions to the prohibitions 
in the final 4(d) rule if we conclude that the activities would 
facilitate or are compatible with the conservation and recovery of the 
species. In our final rule, we will clearly explain our rationale and 
the basis for our final decision, including why we made changes, if 
any, that differ from this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On May 15, 2019, we received a petition from the Center for 
Biological Diversity (CBD) and Xerces Society for Invertebrate 
Conservation to list the Bethany Beach firefly as an endangered or a 
threatened species under the Act. In response to the petition, we 
published a 90-day finding on December 19, 2019 (84 FR 69713), in which 
we announced our finding that the petition contained substantial 
information indicating that listing may be warranted for the Bethany 
Beach firefly.

Peer Review

    An SSA team prepared an SSA report for the Bethany Beach firefly. 
The SSA team was composed of Service biologists, in consultation with 
other species experts. The SSA report represents a compilation of the 
best scientific and commercial data available concerning the status of 
the species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing and recovery actions under the Act (https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf), we solicited independent scientific review of the information 
contained in the Bethany Beach firefly SSA report. We sent the SSA 
report to five independent peer reviewers and received three responses. 
Results of this structured peer review process can be

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found at https://www.regulations.gov. In preparing this proposed rule, 
we incorporated the results of these reviews, as appropriate, into the 
SSA report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the contents of the SSA report. The peer 
reviewers generally concurred with our methods and conclusions, and 
they provided additional information, clarifications, and suggestions 
to improve the SSA report.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
Bethany Beach firefly (Photuris bethaniensis) is presented in the SSA 
report (version 1.0; Service 2024, pp. 4-16). There are at least 15 
current known ``populations'' of the Bethany Beach firefly. Each 
population exists on a complex of swales (low-lying freshwater marsh 
areas near coastal dunes) containing at least one occupied swale. The 
current known range occurs along the Atlantic Coast in Delaware, 
Maryland, and Virginia (see figure 1, below). This species was only 
known from Delaware sites until discovery of Maryland populations in 
2020, and Virginia populations in 2021. Additional populations may 
exist due to limited survey efforts. It is possible that the species 
occurs in additional swales or complexes, or on additional properties 
(e.g., publicly owned land), where there is similar habitat and plant 
communities (Edinger et al. 2014, p. 13 (New York); Breden et al. 2001, 
p. 109 (New Jersey); Shafale 2012, p. 185 (North Carolina); Nelson 
1986, p. 26 (South Carolina)). Comparable interdunal swale habitats 
exist as far north as New York and as far south as South Carolina. 
Development of the Atlantic Coast has decreased the availability of 
swale habitat and the number of populations within the known current 
range (Delaware, Maryland, and Virginia).
[GRAPHIC] [TIFF OMITTED] TP01OC24.000


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Figure 1. The seven properties across Delaware, Maryland, and Virginia 
where the Bethany Beach firefly occurs. The percentages after the 
property name refer to the percent of the rangewide occupied swales 
that are present on that property. Delaware populations were discovered 
in 1998, and Maryland and Virginia populations were discovered in 2020 
and 2021, respectively.

    Bethany Beach firefly is a nocturnal firefly characterized by two 
bright green flashes given off by males to attract females for mating, 
while females flash or emit a low glow in response. Like other beetles, 
fireflies complete metamorphosis with four distinct life stages: egg, 
larva, pupa, and adult. The longest stage is the larval stage (Fallon 
et al. 2022, p. 5, Lloyd 2018, pp. 5-7; Faust 2017, p. 39). Adult 
Bethany Beach fireflies are active from mid-late June through early-mid 
August and emerge well after sunset.
    Bethany Beach fireflies occupy freshwater swales that form as 
groundwater and rain collect in shallow depressions between or behind 
coastal sand dunes. These communities are dynamic systems and are 
susceptible to saltwater intrusion and shifting sand formations. Water 
levels within the swales vary from standing water to saturated soil, 
and they can become flooded or dry out completely. Suitable swale 
habitat is dependent on an intermediate stage of succession (woody and 
herbaceous open swales) that is naturally driven by periodic dune 
overwash from storm surge.
    Overall, this species requires adequate temporally stable swale 
habitat that typically has woody shrubs along the perimeter and that 
retains shallow freshwater seasonally. Moisture is needed for all of 
the life stages to prevent desiccation, provide food sources, and 
provide ample organic matter for overwintering and sheltering habitat 
for larvae. Sufficient population size and connectivity are needed to 
maintain genetic diversity and to support reproduction and recruitment 
within a population.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the Act's definition of an ``endangered species'' or 
a ``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis, which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the U.S. Fish 
and Wildlife Service and National Marine Fisheries Service (hereafter, 
the Services) can make reasonably reliable predictions about the 
threats to the species and the species' responses to those threats. We 
need not identify the foreseeable future in terms of a specific period 
of time. We will describe the foreseeable future on a case-by-case 
basis, using the best available data and taking into account 
considerations such as the species' life-history characteristics, 
threat projection timeframes, and environmental variability. In other 
words, the foreseeable future is the period of time over which we can 
make reasonably reliable predictions. ``Reliable'' does not mean 
``certain''; it means sufficient to provide a reasonable degree of 
confidence in the prediction, in light of the conservation purposes of 
the Act.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess the Bethany Beach firefly's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer

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and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the 
species to withstand environmental and demographic stochasticity (for 
example, wet or dry, warm or cold years); redundancy is the ability of 
the species to withstand catastrophic events (for example, droughts, 
large pollution events); and representation is the ability of the 
species to adapt to both near-term and long-term changes in its 
physical and biological environment (for example, climate conditions, 
pathogens). In general, species viability will increase with increases 
in resiliency, redundancy, and representation (Smith et al. 2018, p. 
306). Using these principles, we identified the species' ecological 
requirements for survival and reproduction at the individual, 
population, and species levels, and described the beneficial and risk 
factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time, which we then used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R5-
ES-2024-0080 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Species Needs

    The SSA report contains a detailed discussion of the Bethany Beach 
firefly's individual and population requirements (Service 2024, pp. 14-
16); we provide a summary here. Based upon the best available 
scientific and commercial information, and acknowledging existing 
ecological uncertainties, the resource and demographic needs for 
breeding, feeding, sheltering, and dispersal of the Bethany Beach 
firefly are characterized as:
    (1) Sufficient quality and availability of interdunal swale habitat 
with moist soil, herbaceous vegetation, woody vegetation surrounding 
the swales, and decaying wood to support all life stages of Bethany 
Beach fireflies and their food sources.
    (2) Sufficient quantities of snails, worms, and other soft-bodied 
invertebrates, and plant material such as berries, as food sources for 
Bethany Beach firefly larvae.
    (3) Sufficient quantities of Bethany beach firefly individual adult 
males and females to be able to flash to find and select mates, 
copulate, oviposit, and disperse.
    (4) Sufficient connectivity of habitat (swales within 1,000 feet 
(304.8 meters) of other occupied swales) to allow Bethany beach firefly 
populations to repopulate each other after catastrophes such as major 
coastal storms. Based on observations of flight patterns of this 
species, we assume that swales within 305 m (1,000 feet) of each other 
are close enough that individuals could travel this distance and 
reproduction and gene flow could occur between them (Service 2024).
    (5) Sufficient stable (open) swales filled with ample organic 
matter, which provides overwintering and sheltering habitat for Bethany 
Beach firefly larvae.
    Bethany Beach firefly abundance depends on the availability and 
condition of these resources in freshwater interdunal swales in 
proximity to the Atlantic shoreline.

Threats

    A thorough review of the threats affecting the Bethany Beach 
firefly is presented in chapter 4 of the SSA report (version 1.0, 
Service 2024, pp. 17-35). The main threats affecting the Bethany Beach 
firefly are related to urban development and changes in land cover, 
light pollution, recreational activities, pesticides, invasive plants, 
shoreline erosion control (including constructed dunes and sand 
fencing), effects of small population size, climate change which 
includes more frequent and increased storm intensities and high tide 
flooding, rising sea levels causing periodic and/or total inundation, 
saltwater intrusion, and increased temperatures and drought. Habitat 
loss, degradation, and fragmentation due to urbanization and 
development has caused populations to be isolated with presumably no 
genetic transfer among them, leaving these small populations at 
increased risk of impacts from random stochastic and unforeseen 
catastrophic events. The compounding effects of climate change include 
increased temperatures and drought, which could dry out swales, and 
increased storm frequency and intensity, which could degrade swale 
habitat due to excessive overwash and storm surges. Rising sea levels 
also pose a risk to first degrade and then remove habitat due to 
saltwater intrusion from swales being inundated periodically with the 
addition of storm surge, and then total inundation at some height above 
current sea levels.
Habitat Loss, Fragmentation, and Degradation
    Development--Because the Bethany Beach firefly is believed to be a 
habitat specialist restricted to interdunal freshwater swales and 
likely has limited dispersal (Lewis et al. 2020, p. 159), destruction 
and degradation of swales result in the loss of or decline in 
populations and decreases connectivity between populations. Sandy ocean 
beaches are some of the most popular tourist and recreational areas, 
and constitute some of the most valuable real estate, in the United 
States (Hapke et al. 2011, p. 2). These Atlantic coastal areas are the 
sites of high-density residential and commercial development, despite 
the frequent natural hazards that can occur, including flooding, storm 
impacts, and coastal erosion. Extensive areas along the Atlantic Coast 
(Bethany Beach and Dewey Beach, Delaware; Ocean City, Maryland; and 
Virginia Beach, Virginia) likely contained additional swale habitat 
prior to development that primarily occurred between 1950 and 1970 
after the completion of the Chesapeake Bay bridges (Delaware Department 
of Natural Resources and Environmental Control 2004, p. 27). There is 
evidence that the populations of Bethany Beach firefly in Delaware are 
much reduced from their historical levels. The two sites where the 
Bethany Beach firefly was originally observed and described by 
McDermott (1953, p. 35) near Bethany Beach, Delaware, have been lost to 
development (Lloyd 2018, p. 93). Surveys conducted from 1998 to 2000 in 
Delaware (Hecksher and Bartlett 2004, pp. 349-352) found the species in 
swales in three State parks but also in a swale located on privately 
owned land in the Tower Shores Beach Community (Tower Shores) (Hecksher 
and Bartlett 2004, pp. 349-352). The swale in Tower Shores was one of 
the largest-known global populations, consisting of an estimated 100 or 
more adults in the 1990s. The property was recently developed in 2019, 
and the population that was previously there is now

[[Page 79862]]

believed to be extirpated. In that area, an elevated roadway has 
altered hydrology and creates shade, while a cul-de-sac has been built 
over the entire swale, and lighting from the houses has degraded the 
surrounding area; no fireflies have been observed in surveys since 
construction was finished.
    State laws in Delaware, Maryland, and Virginia do not prevent 
destruction of the swales via development. Non-tidal wetlands under 400 
acres (161.87 hectares) in size are not regulated in Delaware (see the 
Delaware Wetlands Act, in title 7 of the Delaware Code at chapter 66, 
section 6603(h); and the Wetlands Regulations, in title 7 of the 
Delaware Administrative Code at 7502). Since many of the swales where 
the firefly occurs are smaller than 400 acres, the Delaware Wetlands 
Act does not regulate development of the swales. Non-tidal wetland laws 
are stronger in Maryland and Virginia, but some suitable firefly 
habitat that occurred historically was likely lost due to development 
(Ocean City, Maryland; Virginia Beach, Virginia) prior to these laws 
being established. The Maryland Non-Tidal Wetlands Act (1989) limits 
development in and around tidal wetlands (see title 5 of the Maryland 
Code, ``Environment,'' at section 5-907). Similarly, in Virginia, 
developers must obtain a water protection permit before disturbing any 
wetland, tidal or non-tidal, or stream by clearing, filling, 
excavating, draining, or ditching (see article 2.2 of the Virginia Code 
at section 62.1-44.15:20). Although non-tidal wetland laws are stronger 
in Maryland and Virginia, there is still loss of habitat when permits 
are issued for development. However, the significant habitat loss that 
occurred prior to these regulations being enacted has likely limited 
the Bethany Beach firefly's distribution in these States.
    Bethany Beach fireflies are made more vulnerable by their 
populations' relative isolation from one another. Based on observations 
from surveys conducted for the species since 2019, we find that 
fireflies can disperse from occupied swales to other interdunal swales 
and upland areas located within 1,000 feet (Davis, J. 2023c). The known 
extant populations in the Delaware State Parks have connectivity within 
each park but not among the parks due to development of the shoreline 
between State parks. The Delaware State Parks are also separated from 
Assateague Island National Seashore due to development and open water. 
While Assateague Island National Seashore, Chincoteague National 
Wildlife Refuge, and the National Aeronautics and Space 
Administration's (NASA's) Wallops Island Flight Facility are in 
proximity to one another in Maryland and Virginia, and are not 
separated by developed areas, dispersal of individuals among these 
properties is not known to occur due to the distances of occupied 
swales from each other. False Cape State Park is to the south near the 
North Carolina/Virginia border and is not close to any other known 
populations of Bethany Beach fireflies. Without additional suitable 
habitat occurring within the dispersal distance of the species, it is 
unlikely that the Bethany Beach firefly could relocate if its habitat 
is destroyed (Lewis et al. 2020, p. 159).
    Even in the parts of their range that are protected from 
development, Bethany Beach fireflies also face indirect impacts, such 
as habitat degradation. With the exception of NASA's Wallops Island 
Flight Facility, which does not allow public access to the shoreline, 
the sites in which the species is currently present occur primarily on 
public lands that receive high numbers of visitors for recreational use 
of the beaches and that border developed areas. As a result, the 
habitat in these areas is not pristine: the public lands themselves 
have significant infrastructure (such as parking lots, roads, trails, 
bathrooms, and visitor centers), and these parks are also adjacent to 
residential development at varying densities, with the highest 
densities occurring adjacent to the Delaware State Parks. Both in-park 
and adjacent development or infrastructure could destroy or degrade 
swales, alter swale hydrology, degrade water quality, and decrease 
connectivity among or between swales. Maintenance operations conducted 
in the past at the three Delaware State Parks may have impacted, 
drained, or filled in interdunal swales, notably some with populations 
of the Bethany Beach firefly or other firefly species of conservation 
concern. Several swales in which the species is present show evidence 
of filling, ditching, mowing, dumping, and heavy equipment use (Davis 
2023d, pers. comm.).
    However, impacts from development are not equally distributed among 
all public lands where occupied swales occur. Development is less of a 
threat where the species occurs in Maryland and Virginia because the 
density of development surrounding the properties is low. Assateague 
Island National Seashore is separated from the mainland of Maryland by 
Chincoteague Bay; therefore, it is not adjacent to any development 
occurring outside of the park. There is very little infrastructure 
(e.g., lights, roads, and buildings) throughout Assateague, although 
there are roads and lights from a drive-in campground adjacent to one 
swale complex. There is also little infrastructure near the occupied 
swales at Chincoteague National Wildlife Refuge and False Cape State 
Park in Virginia, and only a two-lane road and some buildings occur 
adjacent to the three occupied swale complexes at NASA's Wallops Island 
Flight Facility. This is in contrast to Delaware, which has more 
infrastructure in the parks, a major highway visible from almost all of 
the swales running adjacent to two of the parks (Delaware Seashore 
State Park and Fenwick Island State Park), and a higher density of 
residential development surrounding the parks. However, four 
populations at Assateague Island National Seashore and all the 
populations at NASA's Wallops Island Flight Facility remain vulnerable 
due to altered hydrology from roads, which is evident due to the 
presence of the nonnative plant species Phragmites australis (often 
called Phragmites, or common reed) in those swales (for more 
information, see Invasive Plant Species, below).
    Currently, the greatest threat of development is at Delaware 
Seashore State Park, where a lease granted for a desalinization project 
could entail directional drilling adjacent to an occupied swale and two 
proposed offshore wind projects (Maryland Wind and Skipjack Wind) with 
possible landfall locations (named ``3Rs'' and ``Tower Road'') for the 
cable route occurring near interdunal swales. It is anticipated that 
the two wind projects will be constructed within the next 10 years. It 
is unknown whether directional drilling has occurred at the 
desalinization plant at this time. For the Maryland Wind biological 
opinion, the project description includes avoiding land disturbance, 
including horizontal directional drilling, within 100 feet of any 
swale; a time-of-year restriction for the use of any light sources 
between June 1 and September 1 for any work at the 3Rs parking lot or 
Tower Road parking lot proposed landfall sites; and avoiding 
installation of permanent light fixtures at the Tower Road site. With 
these measures, there would be no anticipated impacts to the Bethany 
Beach firefly. The Service has not gone through section 7 consultation 
yet on Skipjack Wind.
    Development can disrupt the groundwater regimes that sustain 
interdunal swales both directly and indirectly. Development directly 
affects the hydrology of swales by increasing impervious surfaces and 
compacting soils in adjacent areas, thereby reducing groundwater 
recharge and eventually

[[Page 79863]]

lowering the water table (Wright et al. 2006, p. 22). Indirectly, 
development results in depletion of groundwater by increasing the 
number of groundwater users in the area. A decrease in groundwater 
recharge will lower the water table and could result in swales becoming 
drier over time which could affect the ability of larvae and their prey 
to survive in the soil. Alteration of hydrology can also lead to an 
increase in invasive plants and woody vegetation, a change in 
herbaceous vegetation, and succession in the wetland, resulting in loss 
of wetland habitat over time. Development adjacent to the properties in 
which the Bethany Beach firefly occurs is greatest in Delaware 
(Delaware Seashore State Park and Fenwick Island State Park).
    Stressors on groundwater supply are projected to increase in the 
future throughout the range of the Bethany Beach firefly. Within the 
U.S. Geological Survey's hydrologic unit code (HUC) 4 (HUC 4 focuses on 
watersheds in a subregion), in the Delaware-Mid Atlantic Coastal basin 
(which includes coastal areas of Delaware, Maryland, and Virginia), 
where a majority of the swale complexes are found, freshwater yield 
(from surface or ground water) is predicted to decrease by 10 percent 
while the demand is expected to increase 80 to 100 percent between 2046 
and 2070 (when compared to a baseline from 1985-2010) (Brown et al. 
2019, p. 225). Much of this is driven by climate change, and its effect 
on water use in multiple sectors, like agriculture (increased 
evapotranspiration) and energy use (increased temperatures) (Brown et 
al. 2019, p. 226). Demands higher than yields can result in reduced 
groundwater storage, which can reduce the quantity and quality of 
available swale habitat and decrease the resiliency of the Bethany 
Beach firefly.
    Light Pollution--Firefly species, including the Bethany Beach 
firefly, rely on bioluminescent light to find mates and to ward off 
predators. Each species has a unique flash color, length, and 
frequency. Both male flash patterns and female response patterns are 
species-specific to prevent hybridization (Lloyd 1966, p. 65; Stanger-
Hall and Lloyd 2015, in Owens et al. 2022, p. 2). Courtship dialogues 
are thought to be essential for mate success in nocturnal fireflies, as 
the males of most species are presumed not to use visual (color) or 
chemical (pheromone) cues and thus have no other method of locating 
receptive females (Demary et al. 2005, in Owens et al. 2022, p. 2).
    Artificial light changes the night-time ambient brightness, which 
can change the intensity and timing of firefly flashes (Owens and Lewis 
2018, p. 13). Bethany Beach fireflies are phototactic, which means they 
are attracted to light of any kind, including artificial light (Lloyd 
2018, p. 94). Artificial light at night can reduce reproduction by 
affecting mating signals, which prevents mates from finding each other 
or prevents males from receiving the correct light cues to begin their 
nocturnal flashing display or both (Lewis et al. 2020, pp. 160-161).
    Light pollution is more of an issue in the Delaware State Parks, 
which are adjacent to development and infrastructure. Light pollution 
occurs at all three Delaware State Parks in more than 50 percent (26 of 
52) of the occupied swales. There is little light pollution where the 
species occurs in Maryland and Virginia.
    Recreation and Grazing--Because the species' occurrence is almost 
entirely on State or Federal parkland where visitation is high due to 
recreational use of the beach, there is the potential for foot traffic 
in the dunes, which could result in beachgoers trampling adults and 
larva. However, trampling by humans may be limited because the swales 
are wet, occupied by mosquitoes, and often surrounded by woody 
vegetation or invasive vegetation such as Phragmites. Trampling of 
adult females and larvae, destruction of microhabitat that supports 
fireflies, and increased light pollution have been identified as risks 
associated with increased numbers of visitors in parks in other parts 
of the country (Faust 2010, pp. 213, 215; Lewis et al. 2020, pp. 163-
164).
    In Delaware, there is a dune crossing located 350 feet (106.68 
meters) from a swale in which the Bethany Beach firefly is present 
(Davis 2023d, pers. comm.). At Assateague Island National Seashore in 
Maryland, there are six dune crossings located near a campground that 
are adjacent to swale habitat where the species is present. However, 
all the other swale habitat where the species is present is in areas of 
the island that do not have camping. Thus, even if trampling occurred 
to some extent, the number of locations where it occurs is limited. 
There are also ponies on the island that freely graze throughout the 
park and walk through the swales, which could damage the soil and 
vegetation more than would be expected from visitors walking through 
the swales (Huslander 2023, pers. comm.). Grazing could also result in 
crushing individual eggs and larvae in the soil. However, ponies likely 
do not impact the species at the population level since ponies are not 
constantly grazing in swales, and this is not the only habitat ponies 
visit. In other words, impacts to swales by ponies are believed to be 
limited or temporary or both. There is little potential for impacts 
from recreation at NASA's Wallops Island Flight Facility in Virginia, 
and while Chincoteague National Wildlife Refuge does have visitation by 
people, trails for visitors are not in the area where the Bethany Beach 
firefly occurs (Holcomb 2023, pers. comm.).
    Pesticide Use--Pesticides are substances that are used to control 
pests; pesticides include herbicides, which are used to control 
vegetation, and insecticides, which are used to control insects. Both 
herbicides and insecticides have the highest use in agriculture. While 
some agricultural pesticides have shown negative affects to fireflies 
in laboratory studies (Wang et al. 2022, entire; Pearsons et al. 2021, 
entire), the exposure of Bethany Beach fireflies to agricultural use of 
pesticides is minimal at most. Bethany Beach fireflies occur on barrier 
islands or within 500 meters (1,640 feet) of the coastline. These areas 
do not have agriculture nearby. On barrier islands, there is extensive 
separation from mainland agricultural areas. There may be some garden 
and home use of pesticides in beach communities on the barrier islands, 
but the overall use in these areas would be relatively small and the 
sites occupied by Bethany Beach firefly are primarily on undeveloped 
public land. Thus, we do not view agricultural pesticide use as a 
threat to Bethany Beach firefly.
    The main source of Bethany Beach firefly exposure to pesticides is 
through spraying to control mosquitoes in some areas and some limited 
herbicide use. Although only a few studies have investigated direct 
effects of herbicides and insecticides on fireflies, broad-spectrum 
insecticides are known to adversely affect numerous nontarget insects 
and other taxa (reviewed by Sanchez-Bayo 2011, pp. 74-76; Pisa et al. 
2015, pp. 82-83).
    Herbicides--The Bethany Beach firefly faces a moderate threat from 
herbicides. There is some control of Phragmites in interdunal swales at 
Assateague National Seashore, and exposure to herbicides could occur 
from control of invasive vegetation in and near swales. We expect 
exposure would be low because the only park that reported control of 
invasives in interdunal swales was Assateague Island National Seashore. 
Imazapyr and glyphosate are active ingredients commonly used to control 
the invasive vegetation using high-pressure or low-pressure foliar 
spray application,

[[Page 79864]]

primarily during the fall months, although imazapyr can be used at any 
time during the growing season. There is no literature that suggests 
that there are direct impacts to Bethany Beach firefly from the use of 
glyphosate and imazapyr, but indirect impacts could cause a reduction 
in Bethany Beach firefly prey. Some surfactants used in the application 
of glyphosate and imazapyr to increase efficacy of these two herbicides 
are more toxic to fish and aquatic invertebrates than glyphosate and 
imazapyr themselves (Brodman et al. 2010, pp. 80-81; Sinnott 2015, pp. 
33-34; Breckels and Kilgour 2018, p. 4; Sinnott 2015, entire). The 
surfactant polyethoxylated tallowamine (POEA), which is used in 
glyphosate-based herbicides, has been found to cause the direct 
mortality of amphibians (Brodman et al. 2010, pp. 70, 80-81). A study 
of the aquatic surfactant, nonylphenol-polyethylene (NPE), was also 
found to be moderately toxic to amphibians at concentrations under 1.2 
milligrams per liter (mg/L); however, more research is needed (Brodman 
et al. 2010, pp. 70, 80-81). Based on these results, there could be the 
potential for indirect effects to the Bethany Beach firefly from the 
use of surfactants with glyphosate or imazapyr through impacts to food 
sources. However, at this time, there is little exposure overall from 
herbicide use across the Bethany Beach firefly's range.
    Insecticides for Mosquito Control--The Bethany Beach firefly's 
exposure to organophosphate adulticides for mosquito control varies 
across its range. Mosquito spraying is not conducted on Assateague 
Island National Seashore in Maryland or at the Virginia park properties 
where the species occurs (see table 3, below). However, there is some 
spraying in areas at NASA's Wallops Island Flight Facility and at the 
Delaware State Parks. At Wallops Island, the Bethany Beach firefly's 
exposure to these insecticides is likely low because spraying is only 
applied on the grass and local brush and not in waterways or storm 
drain/outfall areas (Levine 2023, pers. comm.).
    Delaware uses two mosquito control chemicals. Within the Delaware 
State Parks, the current agreement with Delaware Division of Fish and 
Wildlife (DFW) is that there is no spraying of adulticides between June 
15 and August 15, when adult Bethany Beach fireflies are most active. 
During this time, DFW uses Bti, which targets mosquito larvae. Bti 
(short for Bacillus thuringiensis subsp. israelensis) is a naturally 
occurring bacterium found in soils and targets only the larvae of the 
mosquito, blackfly, and fungus gnat (https://www.epa.gov/mosquitocontrol/bti-mosquito-control##4). Bti is considered very safe 
because it targets only specific insects.
    Outside the June 15 to August 15 timeframe, Delaware has used 
Trumpet EC<SUP>TM</SUP>, a common chemical for mosquito control with an 
active ingredient called naled. Trumpet EC<SUP>TM</SUP> is derived from 
phosphoric acid and is highly toxic to fish resources and a wide range 
of aquatic non-target organisms including mayflies, caddisflies, 
crustaceans, fresh and saltwater chironomids, and other marine 
invertebrates. Organophosphates are also highly toxic to terrestrial 
insects and aquatic beetles that are naturally occurring predators of 
mosquito larvae (Laskowski et al. 1999, p. 742; Pinkney et al. 2000, p. 
678).
    While we do not have data on the effects of Trumpet EC<SUP>TM</SUP> 
specifically on fireflies, Bethany Beach fireflies still occur in 
swales that have been sprayed by this chemical. Table 1 below describes 
the swales that have been sprayed over time, mostly in Delaware 
Seashore State Park, likely because they are near some park facilities. 
Swales 700, 701, 702, 703 have been sprayed in 11 of the 12 events 
described in table 1, starting in 2013 and continuing into 2023. All 
four swales continue to have Bethany Beach firefly presence with the 
most recent years of observation being 2021, 2023, 2020 and 2022, 
respectively. While more information would be helpful, the best 
available information does not show harmful effects of the Delaware 
spray regime to Bethany Beach firefly populations.

 Table 1--Occupied Bethany Beach firefly swales sprayed with adulticide
        Trumpet EC\TM\ outside the adult flight season since 2013
                       [Davis 2023i, pers. comm.]
------------------------------------------------------------------------
                                   Rate (ounces per
     Date adulticide applied             acre)           Swale(s) 1 2
------------------------------------------------------------------------
June 23, 2013...................  1.0 oz./ac........  700, 701, 702, 703
September 9, 2016...............  0.8 oz./ac........  \1\ 59
September 14, 2016..............  0.8 oz./ac........  700, 701, 702, 703
June 3, 2017....................  1.0 oz./ac........  15, 16, 17, 24,
                                                       26, 30, 231, 400,
                                                       402, 700, 701,
                                                       702, 703
August 9, 2017..................  0.8 oz./ac........  15, 16, 17, 24,
                                                       26, 30, 231, 400,
                                                       402, 700, 701,
                                                       702, 703
July 31, 2018...................  0.8 oz./ac........  700, 701, 702, 703
September 20, 2018..............  0.8 oz./ac........  700, 701, 702, 703
September 10, 2019..............  0.8 oz./ac........  700, 701, 702, 703
August 26, 2020.................  1.0 oz./ac........  24, 26, 30, 231,
                                                       700, 701, 702,
                                                       703
September 15, 2020..............  1.0 oz./ac........  15, 16, 17, 24,
                                                       26, 30, 231, 400,
                                                       402, 700, 701,
                                                       702, 703
September 12, 2022..............  0.8 oz./ac........  700, 701, 702, 703
September 12, 2023..............  1.0 oz./ac........  30, 700, 701, 702,
                                                       703
October 6, 2023.................  1.0 oz./ac........  15, 16, 17, 24,
                                                       26, 30, 231, 700,
                                                       701, 702, 703
------------------------------------------------------------------------
\1\ Swale 59 is Cape Henlopen.
\2\ All other swales are in the Delaware Seashore State Park.

    As discussed in section 5.2 of the SSA report, more severe storm 
events and sea level rise could increase the amount of time there is 
standing water, which could increase mosquito populations and 
necessitate more frequent use of adulticides (Davis 2023d, pers. 
comm.).
    One additional insecticide used in the species' habitat is 
GYPCHEK[supreg], used at False Cape State Park to control gypsy moths 
on an as-needed basis. It was used as recently as spring 2023. 
GYPCHEK[supreg] is an insecticide prepared from gypsy moth larvae that 
have been killed by the nuclear polyhedrosis virus. The active 
ingredient in GYPCHEK[supreg] is the virus, which is embedded in a 
protein particle called the polyhedron. GYPCHEK[supreg] specifically 
targets the gypsy moth and has no effect on other insects (Lewis et al. 
1979, p. 1).
    Invasive Plant Species--Invasive plant species, particularly common 
reed, are present in some of the interdunal swales where the Bethany

[[Page 79865]]

Beach firefly occurs. The common reed is an aggressive and competitive 
plant that grows rapidly and displaces naturally diverse vegetation 
communities with dense mono-cultural stands (Wilcox et al. 2003 p. 665; 
Gilbert 2014, p. 78). Expansion of common reed populations can be 
rapid: a single clone can cover an eighth of a hectare (0.31 acre) in 2 
years (Hocking et al. 1983, in Asaeda and Karunarathe 2000, p. 302) and 
the slow decomposition of common reed detritus can significantly reduce 
the availability of nutrients, light, and space, making the survival or 
establishment of other species unlikely (Meyerson et al. 2000, p. 93). 
A number of studies have shown that once established, the common reed 
will increase marsh elevation to a greater extent than other marsh 
species through higher accumulation of organic and mineral matter. This 
is largely a result of its high biomass production and high rates of 
litter accumulation (Windham and Lathrop 1999, p. 931; Meyerson et al. 
2000, p. 89; Rooth et al. 2003, p. 480).
    There are several ways that Phragmites, the common reed, may reduce 
habitat quality for Bethany Beach fireflies. By elevating the marsh 
surface, hydrological flow within a marsh is modified. Establishment of 
monocultures of the common reed in interdunal swales would likely 
decrease available soil substrate and moisture for larva. In addition, 
the reduction in plant biodiversity in areas overtaken by the common 
reed can reduce prey species on which firefly larvae feed.
    Phragmites occurs in many swales in Delaware. Botanical surveys 
conducted between 2015 to 2017 in Delaware's interdunal swales indicate 
that at least 34 swales had some level of common reed invasion. Other 
invasive species such as Japanese black pine (Pinus thunbergii) and 
Bermuda grass (Cynodon dactylon) are also growing in some of the 
swales, and DFW discovered silver grass (Miscanthus sp.) dumped in a 
swale (Davis 2023e, pers. comm.). There has been limited control of 
invasive plants using herbicides at an occupied swale in Cape Henlopen 
State Park for the purposes of protecting a rare plant, but control of 
invasives in other interdunal swales in Delaware State Parks does not 
occur unless initiated by DFW, which is rare (Davis 2023j, pers. 
comm.).
    Phragmites are also present in Virginia and Maryland. At Assateague 
Island National Seashore, common reed occurs in the occupied swales 
adjacent to the campground, and herbicide is used to control its spread 
at the park (Huslander 2023, pers. comm.). In Virginia, there are 
thousands of acres of common reed on NASA's Wallops Island Flight 
Facility, which, unless there is a direct fire threat during launch 
operations, are not managed (Miller 2023, pers. comm.). At Chincoteague 
National Wildlife Refuge, it is unknown whether the common reed occurs 
near the swales (Holcomb 2023, pers. comm.). The only park in which the 
common reed is not present in the interdunal swale habitat is False 
Cape State Park (Swain 2023, pers. comm.).
Other Habitat Stressors
    Woody Plant Encroachment--Interdunal swales with Bethany Beach 
fireflies are typically shallow depressions (swales) with herbaceous 
vegetation in the depression and woody species such as southern wax 
myrtle (Morella cerifera), highbush blueberry (Vaccinium corymbosum), 
and groundseltree (Baccharis halimifolia) found along the perimeter of 
the depression. When these low, shrub-like woody species are succeeded 
by tree species, such as Pinus, Acer, and Liquidambar, swales can 
become woody thickets that have altered hydrology, which can reduce 
habitat for Bethany Beach firefly larvae (Davis 2023f, pers. comm.). 
Woody plants become established when the depression wetlands or swales 
are dry for consecutive years. Thus, periods of drought trend towards 
shrub and tree communities (Service 2024, p. 12).
    The Bethany Beach firefly requires temporally stable swales. Swales 
will eventually succeed to maritime forest if succession is not offset 
by periodic saltwater intrusion. Under natural conditions, disturbance 
to prevent succession is driven by periodic dune overwash from storm 
surge. Construction of shoreline erosion control structures, such as 
rock revetments, jetties, artificial dunes, and placement of sand 
fencing, can reduce the amount of overwash from storm surge (see also 
Shoreline Erosion Control (shoreline erosion control, constructed 
dunes, sand fencing), below). In places where shoreline erosion control 
measures have been put in place, more woody succession has been 
observed. Thus, succession of woody species is occurring in some of the 
interdunal swales in Delaware, resulting in a loss of wetland function, 
plant species diversity, and wildlife diversity. Interdunal swales 
there are impacted by establishment of tree species such as loblolly 
pine (Pinus taeda), pond pine (Pinus serotina), red maple (Acer 
rubrum), sweet gum (Liquidambar styraciflua), and Japanese black pine 
(Pinus thunbergii).
    By contrast, at Assateague Island National Seashore, where there 
has been limited shoreline erosion control, there is little tree 
encroachment (Huslander 2023, pers. comm.). There is some succession 
occurring at False Cape State Park (Swain 2023, pers. comm.). It is 
unknown if there is tree encroachment occurring at the other two 
Virginia properties, but there likely is some due to a lack of major 
storms occurring over the last several years.
    Shoreline Erosion Control (sand fencing and constructed dunes)--
There are several methods of shoreline erosion control used within the 
range of Bethany Beach firefly. The most common methods are the 
construction of artificial dunes and the use of sand fencing. 
Artificial dunes are engineered structures built to imitate the form of 
natural dunes and sand fencing is fencing placed on the beach to assist 
in building a new foredune or fill gaps in dune ridges. The Delaware 
Department of Transportation maintains the Route 1 highway after storm 
events and has replenished the dunes south of an occupied swale at 
Delaware Seashore State Park. There are dune crossings with sand 
fencing near seven swales in this park where Bethany Beach firefly has 
not been detected (Davis 2023g, pers. comm.). At Assateague National 
Seashore, there are constructed dunes and some sand fencing near the 
campground and in front of the swales where the species occurs. 
Constructed dunes and sand fencing are detrimental to Bethany Beach 
firefly because they hinder the natural disturbance needed to keep the 
swales open with herbaceous vegetation with sufficient soil moisture to 
support larvae and its prey sources. There are no constructed dunes 
adjacent to occupied or unoccupied swales occurring south of the 
campground in the area where vehicles may drive on the beach (i.e., 
over the sand). There is a low likelihood that construction would occur 
in the future due to the lack of infrastructure and camping areas in 
the southern part of Assateague Island National Seashore (Huslander 
2023, pers. comm.). There are no constructed dunes or sand fencing at 
Chincoteague or False Cape State Park (Holcomb 2023, pers. comm; Swain 
2023, pers. comm.). There is a constructed dune on NASA's Wallops 
Island Flight Facility that runs the length of the beach fill template. 
The core of the constructed sand dune is armor stone, which is 
periodically re-covered with sand during Wallops Island beach 
renourishment events (on average, every 3 to 7 years) (Miller 2023, 
pers. comm.).

[[Page 79866]]

    In summary, habitat loss, fragmentation, and degradation has 
occurred in the past, is occurring presently, and will continue to 
occur in the future. While the known species occurrences are entirely 
on public lands, there are likely impacts to the species and its 
habitat due to light pollution, mosquito spraying (only in Delaware), 
recreation, invasive plants, adjacent residential development (only in 
Delaware), and the potential for the development of additional 
infrastructure in the Delaware Parks. Therefore, the magnitude of the 
threat on the species' viability is moderate to high.
    Small Population Size--Surveys conducted for the Bethany beach 
firefly involve watching for double flashes for a set period of time to 
confirm presence (see section 5.1 of the SSA report (Service 2024, pp. 
36-37)). While surveys can quantify the number of double flashes 
observed, which can be compared among different sites, quantifying the 
actual abundance of individuals is not possible. Based on survey 
efforts that have occurred, only a few double flashes are observed at 
most sites, likely indicating small population sizes in these wetlands. 
Several swales in Delaware have a higher number of observations of 
double flashing than others, but none have been found to be as abundant 
as the Tower Shores wetland was in 1998, when hundreds of double 
flashes were observed. Small population sizes and lack of connectivity 
in certain areas can result in an Allee effect, which occurs when there 
is a population size or density correlation with some characteristics 
of individual fitness (Drake and Kramer 2011, p. 2). A strong Allee 
effect, or density dependence on fitness, means that individuals may be 
less likely to survive when overall population density is low, and may 
result in a critical population size below which the population cannot 
exist. Species with small or sparse populations, such as the Bethany 
Beach firefly, are susceptible to the Allee effect. For instance, where 
a population is not dense, there may be few males or females available, 
or there may not be individuals with high fitness, both of which can 
exacerbate the Allee effect by reducing instances of successful mating 
and reducing survival of young when mating does occur (Gascoigne et al. 
2009, p. 356).
    Similarly, the isolation of populations can reduce gene flow, which 
in turn can reduce the fitness of an entire population. Even a common, 
widespread firefly species, the common eastern firefly (Photinus 
pyralis), was shown to have little gene flow among populations despite 
the adults being able flyers (Lower et al. 2018, p. 7). Genetic studies 
are needed to determine whether there is enough gene flow among Bethany 
Beach firefly populations to sustain those populations and to better 
assess the threat of the Allee effect. While abundance has not been 
quantified for the species, observations of just a few individuals in 
most swales likely indicates small population sizes throughout the 
species' range. The magnitude of the impacts of small population size 
on the species' viability is high.
Climate Change
    Climate change refers to changes in temperature, precipitation, 
storm intensity, and sea level rise that are due to rising levels of 
greenhouse gases in the atmosphere. Individually and collectively, 
these changes are anticipated to increase environmental stochasticity 
and reduce habitat quality for the Bethany Beach firefly. Below, we 
analyze how rising temperatures, increased precipitation, increased 
storm intensity, and rising seas will affect the firefly.
    Temperatures--Since 1901, temperatures in the Northeast have risen 
steadily. The amount of the increase depends on location and ranges 
from less than 0.6 degrees Celsius ([deg]C) (1 degree Fahrenheit 
([deg]F); West Virginia) to about 1.7 [deg]C (3 [deg]F; New England). 
Temperatures are expected to continue to rise (Dupigny-Giroux et al. 
2018, p. 672). As a consequence of warming temperatures, precipitation 
patterns are expected to become more extreme and less predictable. 
While total precipitation is expected to increase in the winter and 
spring, with little change in the summer, hotter and more intense 
droughts are also forecast. Increases in temperature and droughts could 
reduce soil moisture and hydrology of the interdunal swales during the 
summer months, which could result in egg and larval mortality and 
habitat degradation. Firefly eggs can dry out or become moldy if the 
humidity and temperatures are not suitable (Faust 2017, p. 40). High 
maximum temperatures in winter and spring during larval development 
have been shown to result in lower adult abundance the following summer 
(Evans et al. 2019, p. 6). An increase in temperature could also alter 
firefly phenology by advancing or de-synchronizing the dates of male 
and female emergence or display time or both. For instance, one firefly 
species, the Smokies synchronous firefly (Photinus carolinus), now has 
its peak mating time 10 days earlier than it did 20 years ago, and 
females now emerge and display flashes earlier than males (Faust and 
Weston 2009, pp. 1509-1510). Finally, increasing temperatures could 
change the ecology of the swales, for instance, by creating conditions 
conducive to the spread of invasive species (Angel et al. 2018, p. 
875).
    Increased Precipitation--Rainfall intensity, and consequently risk 
of flooding, has been increasing over the range of the Bethany Beach 
firefly and is expected to continue (Dupigny-Giroux et al. 2018, p. 
672). The frequency and annual amount of heavy precipitation in the 
northeastern United States has increased over the past 100 years and 
has become significantly wetter from 1957-2010 (Kunkel et al. 2013, as 
cited in Collee et al. 2015, p. 133). The number of extreme 
precipitation events is expected to rise as much as 6 to 40 percent 
across the globe, and a 10 to 15 percent increase in the amount of 
precipitation is expected along the U.S. East Coast by the later 21st 
century (Allan et al. 2008 and Lombardo et al. 2015, as cited in Collee 
et al. 2015, pp. 133-135). Increased rainfall and floods increase the 
potential for soil erosion and habitat loss, and droughts can increase 
the spread of invasive species (Angel et al. 2018, p. 875). Drought can 
also reduce the hydroperiod, or length of time that standing water 
exists on the landscape which could remove the soil moisture needed for 
eggs and larva to survive.
    Increased Storm Intensity--With increasing temperatures, a warming 
ocean will produce more intense storms and stronger winds, resulting in 
higher storm surge and more extensive flooding in the future. More 
frequent and severe storm events could result in more frequent 
saltwater intrusion, flooded swales, and overwash of salt water into 
the swales, which could result in larval mortality, mortality of prey 
resources, and a change in vegetation and hydrology in the swales. At 
current sea levels, coastal storms can cause surges between 0.61 and 
1.2 meters (2 and 4 feet) along the Delaware Bay and Atlantic Coast; 
these heights are comparable to expected sea level rise by 2100 
(Delaware Coastal Program 2012, pp. 4-5; see also Sea Level Rise, 
below). Saltwater intrusion and overwash increases salinity in swales 
until freshwater flushes out the system, which can take anywhere from 
weeks to months (Anderson 2002, pp. 415-417; see Sea Level Rise, 
below). The Delaware, Maryland, and Virginia Atlantic coastline is 
positioned latitudinally such that it experiences coastal flooding from 
extratropical (e.g.,

[[Page 79867]]

nor'easters) and tropical storm systems, together numbering about 30 to 
35 coastal storms per year (Leathers et al. 2011, p. 10).
    Sea Level Rise--A recently updated sea level rise report (Sweet et 
al. 2022, entire) generated global mean sea level (GMSL) projections 
and scenarios and adjusted these GMSL scenarios to specific regional 
conditions for the entire U.S. coastline. Local scenarios are provided 
for two locations within the known range of the Bethany Beach firefly, 
which estimate between 1.4 and 1.7 feet of sea level rise by 2050, and 
4 to 7 ft of rise by 2100 (National Oceanic and Atmospheric 
Administration (NOAA) 2023, entire).
    The impact of sea level rise on the species would be loss and 
degradation of suitable habitat from more frequent inundation and 
saltwater intrusion, as well as the potential for conversion to open 
water without marsh migration. Marsh migration landward cannot occur 
where there are physical barriers to migration such as roads and 
buildings. and where other features of the landscape, such as suitable 
elevation, slope, substrate, and other natural landscape features 
required for marsh habitat to establish and thrive, are not present. 
Construction of artificial dunes may increase in areas where there is 
residential development and/or infrastructure and may result in changes 
in vegetation and impact habitat suitability for the Bethany Beach 
firefly. Constructed dunes are detrimental to the Bethany Beach firefly 
because they hinder the natural disturbance needed to keep the swales 
open (i.e., to maintain swales with herbaceous vegetation surrounded by 
some shrub-scrub habitat).
    Even where habitat is not destroyed, storm events can temporarily 
inundate swales. At Assateague Island National Seashore, some swales 
are inundated for an average of 5 days after a storm event (Huslander 
2023, pers. comm.). Although the Bethany Beach firefly has persisted 
through these events, and evidently has some ability to endure elevated 
water levels and elevated salinity levels on a temporary basis, it is 
unclear whether the species can withstand more frequent or more 
prolonged inundation.
    Along with sea level rise, high tide flooding is projected to 
increase in frequency through the end of the century (Sweet et al. 
2018, pp. vii-viii). High tide flooding is minor or ``nuisance'' 
flooding, caused by both tidal and non-tidal (e.g., storm surges) 
factors, and these events have been increasing in frequency and depth 
over the last several decades. By 2050, days with minor flooding events 
are expected to increase from approximately 2.5 days per year to 
between 45 and 130 days per year along the Northeast Atlantic coast 
(Sweet et al. 2018, pp. vii-viii). Such minor flooding events are 
expected to increase the amount of time that the swales are inundated 
with salt water. While the Bethany Beach firefly can tolerate some 
saltwater inundation, long periods of inundation will likely impact 
larval survival.
    In addition to more frequent, severe storm events and sea level 
rise, elevation loss due to subsidence is a threat to coastal areas and 
many wetland habitat types and their distribution (Sweet et al. 2017, 
p. 1; Dupigny-Giroux et al. 2018, p. 17). Subsidence is a gradual 
settling or sinking of land. Recent considerations of the combined 
effect of sea level rise and subsidence indicates that subsidence 
increases the threat to coastal communities from sea level rise and may 
even triple estimates of potential flooding over the next several 
decades which could degrade or result in habitat loss for the species 
(Ohenhe et al. 2024, p. 1).
    In summary, the impacts of climate change will alter or destroy 
habitat and have the potential to change reproductive success and 
behavior throughout the range of the Bethany Beach firefly by 2100.

Conservation Efforts and Regulatory Mechanisms

    The species is listed as an endangered species at the State level 
by the Delaware Division of Fish and Wildlife. Delaware Endangered 
Species code prohibits the possession or sale of an endangered species. 
There are no population or habitat protection sections in the Delaware 
Endangered Species code but there is review of projects that are 
proposed on State lands for these species. The species currently has no 
protection in Maryland or Virginia. Some woody vegetation and 
phragmites control have occurred in interdunal swales in two locations 
and there have been successful efforts to reduce lighting near occupied 
swales in Delaware. These efforts are likely benefitting individuals 
and populations occurring in those locations. Conservation efforts have 
been focused on conducting surveys to better understand distribution 
and threats to help inform future conservation efforts for the species.

Synergistic and Cumulative Effects

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Current Condition

    The current condition of the Bethany Beach firefly is described in 
terms of population resiliency, redundancy, and representation across 
the species' range. The analysis of these conservation principles to 
understand the species' current viability is described in more detail 
in chapter 5 of the SSA report (Service 2024, pp. 36-51).
Potential Habitat and Populations
    We assume that there is little to no dispersal of adult fireflies 
occurring between swales greater than 1,000 feet (305 meters) apart. 
This is based on observations from surveys conducted since 2019. All 
swales within 1,000 feet (305 meters) of a known occupied swale were 
grouped into ``complexes,'' and these complexes were used as the 
analytical units to describe a population. Because swales have not been 
mapped for Virginia, and we only have detection locations, we buffered 
detection locations instead of the swales; therefore, complexes in 
Virginia are defined by survey locations that occur within 1,000 feet 
(305 meters) of each other. Since surveys occurred by swale in Maryland 
and Delaware, and by detections in Virginia, we consider the entire 
complex occupied if any swale within that complex has documented 
detections. We consider complexes to be occupied if there have been 
detections of the species since 2019.
    Rangewide, we identified 143 swales in 31 complexes (see table 2, 
below), representing both actual and potential Bethany Beach firefly 
habitat. Identified complexes each contain between 1 and 19 swales. 
Fifteen complexes are known to be currently occupied, and these contain 
36 total occupied swales (see table 2, below). Two properties, Delaware 
Seashore State Park and Assateague Island National Seashore, each have 
4 occupied complexes containing a total of 21 occupied swales, 
accounting for more than half of the

[[Page 79868]]

occupied complexes and swales rangewide. NASA's Wallops Island Flight 
Facility in Virginia has three occupied complexes. The greatest number 
of occupied swales within a given complex is five, which occurs in one 
complex at Chincoteague; three additional complexes across the range 
each have four known occupied swales. Six of the occupied complexes (40 
percent) are known to have just one occupied swale each (see table 2, 
below).
    Ten complexes have had surveys but no detections of Bethany Beach 
firefly, although survey effort varies among these complexes (see table 
2, below). However, one complex on Tower Shores land north of Bethany 
Beach (DE_PRIV_12) had detections of Bethany Beach firefly in 1998, but 
the species has not been detected since. Habitat in this complex has 
been degraded by development and an elevated roadway, making occupancy 
unlikely.
    Forty-eight identified swales have not been surveyed (see table 2, 
below). Seven complexes (totaling 10 swales) have not had any surveys 
in any of their swales.
    No complexes cross property boundaries; thus, we assume that there 
is no dispersal of individuals among Assateague Island National 
Seashore, Chincoteague National Wildlife Refuge, and NASA's Wallops 
Island Flight Facility, despite these properties' proximity to one 
another. This is based on our assumption that the species cannot 
disperse more than 1,000 feet (305 meters) based on observations from 
the surveys conducted from 2019 through 2024 (Davis, J. 2023c.).

                             Table 2--Known complexes of Swales That Provide Potential Habitat to the Bethany Beach Firefly
  [Information is provided by property, listed north to south, with the total swales with Bethany Beach firefly (BBFF) presence, number of swales that
  were surveyed but had no detections, number of swales not surveyed, total swales per complex, and overall complex status. Complexes with ``current''
     status are those with detections since 2019 and are considered to be extant; ``not detected'' indicates that surveys since 2019 did not produce
                                                                      detections.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                        Total swales
             State                   Property            Complex         # of swales   # of swales no    # of swales       in each           Status
                                                                        BBFF present     detections     not surveyed       complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
DE............................  Cape Henlopen....  DE_CAHE_01          ..............               4               3               7  Not detected.
                                .................  DE_CAHE_02          ..............               1  ..............               1  Not detected.
                                .................  DE_CAHE_03                       1               4  ..............               5  Current.
                                .................  DE_CAHE_04          ..............  ..............               1               1  Not surveyed.
                                .................  DE_CAHE_05          ..............  ..............               1               1  Not surveyed.
                                DE Seashore SP...  DE_SESP_06                       4  ..............  ..............               4  Current.
                                .................  DE_SESP_07          ..............               3               5               8  Not detected.
                                .................  DE_SESP_08                       4              10               5              19  Current.
                                .................  DE_SESP_09                       3               2  ..............               5  Current.
                                .................  DE_SESP_10                       2               1               2               5  Current.
                                .................  DE_SESP_11          ..............               4  ..............               4  Not detected.
                                Private Land.....  DE_PRIV_12          ..............               1  ..............               1  Not detected.
                                .................  DE_PRIV_13          ..............  ..............               2               2  Not surveyed.
                                .................  DE_PRIV_14          ..............               1               1               2  Not detected.
                                .................  DE_PRIV_15          ..............  ..............               1               1  Not surveyed.
                                Fenwick Island SP  DE_FENSP_16                      3               9               2              14  Current.
                                .................  DE_FENSP_17         ..............               1  ..............               1  Not detected.
MD............................  Assateague Island  MD_ASIS_01                       2               1               3               6  Current.
                                .................  MD_ASIS_02                       1               1               6               8  Current.
                                .................  MD_ASIS_03                       4               0               2               6  Current.
                                .................  MD_ASIS_04                       1               3               9              13  Current.
                                .................  MD_ASIS_05          ..............  ..............               1               1  Not surveyed.
                                .................  MD_ASIS_06          ..............  ..............               2               2  Not surveyed.
                                .................  MD_ASIS_07          ..............  ..............               2               2  Not surveyed.
VA............................  Chincoteague NWR.  VA_CHIN_01          ..............               1  ..............               1  Not detected.
                                .................  VA_CHIN_04                       5               2  ..............               7  Current.
                                NASA's Wallops     VA_WALL_02                       1               2  ..............               3  Current.
                                 Island Flight
                                 Facility.
                                .................  VA_WALL_03                       1               2  ..............               3  Current.
                                .................  VA_WALL_05                       1               3  ..............               4  Current.
                                False Cape SP....  VA_FCSP_06                       3               2  ..............               5  Current.
                                .................  VA_FCSP_07          ..............               1  ..............               1  Not detected.
                               -------------------------------------------------------------------------------------------------------------------------

[[Page 79869]]

 
    Total.....................  .................  31                              36              59              48             143  .................
--------------------------------------------------------------------------------------------------------------------------------------------------------

Resiliency
    Currently, data are not available regarding the population 
structure or demographics of the Bethany Beach firefly which is 
typically used to estimate resiliency. Based on survey efforts that 
have occurred since 2019, only a few double flashes are observed at 
most sites, likely indicating small population sizes and low resiliency 
across the range. More than half of the occupied complexes (n = 8) and 
more than half of the occupied swales (n = 21) occur on two properties, 
Delaware Seashore State Park and Assateague Island National Seashore 
(see table 2, above) which suggests higher resiliency compared to the 
other properties with respect to occupied habitat and connectivity 
among swales (complexes).
    Cape Henlopen, Delaware Seashore, and Fenwick Island State Parks 
have some of the most numerous current stressors, including extensive 
invasive species in swales, light pollution in more than a third to 
more than half of swales, and mosquito spraying occurring or likely to 
occur (see table 2, below) which has likely resulted in decreased 
resiliency over time.

[[Page 79870]]

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[[Page 79871]]



Species Redundancy and Representation

    The Bethany Beach firefly exists as at least 15 current known 
``populations,'' or complexes of swales containing at least one 
occupied swale. Given the recent discovery of the species and limited 
survey efforts, it is possible that other populations exist, as 
potentially suitable swales and complexes with similar plant 
communities extend north into New York and New Jersey and south into 
North and South Carolina. (Edinger et al. 2014, p. 13 (New York); 
Breden et al. 2001, p. 109 (New Jersey); Shafale 2012, p. 185 (North 
Carolina); Nelson 1986, p. 26 (South Carolina). Even so, the species is 
assumed to have low representation due to a narrow geographic range 
(approximately 260 kilometers (162 miles) of coastline) because of its 
specialized habitat requirements and no evidence of unique genetic 
distinctions ecological differences among different populations of 
Bethany Beach firefly across the range.
    Although the species' historical populations were likely limited by 
the availability of swale habitat along the Atlantic coast, the 
development of this habitat over the past century has a decreased the 
number of populations within the species' range which has reduced 
representation and redundancy.
    The redundancy of the species is believed overall to be low. Swales 
in the range of the Bethany Beach firefly are limited, localized 
habitats, so there are not many available populations nearby to 
repopulate areas that become extirpated; the species' exclusive use of 
interdunal swale habitat prevents the expansion of the species into new 
areas. Because of the species' poor flying abilities (based on 
observations from surveys), we assume that there is no regular 
dispersal among complexes.
    Due to the species' small geographic range, catastrophic events 
(hurricanes, droughts, etc.) have the potential to affect all 
populations at once. For instance, a strong hurricane or other storm 
could affect swales across the species' entire range. Although this 
species has evolved with hurricanes and likely has the adaptive 
capacity to withstand typical impacts from storms, such as repeated 
flooding by saltwater, it is unknown where the tolerance ends, and if 
prolonged flooding or too frequent overwash would lead to population 
decline or extirpation. The species does not have much ability to shift 
its range in the event of a catastrophic impact to existing habitat, 
due to the limited availability of swale habitat and the distance 
between complexes. Localized threats, such as light pollution, habitat 
loss, and insecticides (mosquito spraying), could reduce or extirpate 
populations in particular complexes.

Future Condition

    A thorough review of the Bethany Beach firefly's projected future 
condition is presented in chapter 6 of the SSA report (Service 2024, 
pp. 52-62).
    The most significant threats to the Bethany Beach firefly in the 
future are the compounding effects of climate change, specifically 
increased frequency and intensity of coastal storms and sea level rise, 
as explained above under Increased Storm Intensity and Sea Level Rise.
    In the SSA report, we focus our future condition analysis on how 
the effects of sea level rise due to climate change will impact the 
resiliency, redundancy, and representation of the species into the 
future. We evaluated the future condition of the Bethany Beach firefly 
in 30-year intervals at years 2040, 2070, and 2100, under both an 
intermediate and a high climate scenario. These scenarios use localized 
projections of sea level rise aligned with emissions-based model 
projections of global mean sea level rise and bound the upper and lower 
end of the likely scenarios. We did not include ``intermediate low'' or 
``low'' projections, nor the 2000 extrapolation scenario, due to their 
high probability of being exceeded; the current NOAA projections also 
leave out an ``extreme'' scenario due to the low likelihood of it being 
realized (Sweet et al. 2017, pp. 11-13; Sweet et al. 2022, pp. 11-12).
    Under an intermediate climate scenario, 9 of the 15 (60 percent) 
occupied complexes see some level of impacts by 2040, and all but one 
are impacted by 2070 (Table 4). At least one complex is projected to be 
extirpated by 2070, and at least seven become extirpated by 2100. Only 
one complex remains without any impacts by those timesteps.
    Under a high climate scenario, 9 of the 15 occupied complexes see 
some level of impacts by 2040, and all but one are impacted by 2070 
(Table 4). At least one complex is projected to be extirpated by 2040, 
with at least five projected to be extirpated by 2070. All but two are 
projected to be extirpated by 2100. All complexes have some level of 
impacts by 2100.

[[Page 79872]]

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[[Page 79873]]


Future Resiliency
    The Bethany Beach firefly's resiliency, which is already limited, 
is expected to continue to decline into the future. As discussed above, 
sea level rise is expected to degrade large portions of the species' 
known occupied habitat by 2040, and to destroy significant portions by 
2070. Even if the firefly is able to withstand habitat degradation, it 
likely will not be able to withstand habitat destruction. As noted 
above, its habitat needs are specialized and due to dense urbanization 
of the coastal areas in its range and the narrow width of the barrier 
islands in which it occurs, it seems unlikely that the species will be 
able to colonize new habitats inland. Meanwhile, other stressors, such 
as mosquito spraying, are not expected to cease.

Future Redundancy and Representation

    Redundancy is expected to decrease in the future, as extirpations 
are projected for the Bethany Beach firefly under both scenarios by 
2070. Regarding representation, while there are no known subspecies or 
phenotypes of the Bethany Beach firefly, the loss of any single 
population is likely to decrease the genetic variation of the species. 
Given the distance between complexes, the species has limited ability 
to repopulate areas where populations have been extirpated. In 
addition, given its specific habitat needs, the species is unlikely to 
have the adaptive capacity to shift its range to avoid the impacts of 
sea level rise. While it may be able to persist despite some impacts 
from more frequent flooding, eventually inundation will become too 
frequent or too persistent for the species to tolerate.
    In summary, under either an intermediate or high climate scenario, 
overall redundancy and representation are expected to decline in the 
future, and suitable habitat will be nearly eliminated by 2100. Given 
the species' specific habitat needs, the reduction in suitable habitat 
is expected to result in a reduction in resiliency.

Determination of Bethany Beach Firefly's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we found that the Bethany Beach firefly meets the Act's 
definition of a threatened species throughout all of its range. We 
found that impacts from sea level rise, increased frequency and 
intensity of coastal storms, and increased frequency of high tide 
flooding are the most substantial threats to the viability of the 
Bethany Beach firefly. Rising sea levels and high tide flooding caused 
by climate change will first degrade and then remove habitat due to 
increased periodic inundation and then result in total inundation at 
some height above current sea levels with and without storm surges. In 
the foreseeable future, we anticipate that saltwater intrusion will 
continue to move inland as climate-change-induced sea level rise 
continues, causing the loss of Bethany Beach firefly habitat and having 
the greatest influence on Bethany Beach viability. Small population 
size in addition to urban development and changes in land cover, light 
pollution, recreational activities, pesticides, invasive plants, 
shoreline erosion control (including constructed dunes and sand 
fencing), and increased temperatures and drought are also threats to 
the species; we considered these for their cumulative effects.
    Bethany Beach firefly is currently known to exist in 15 complexes 
(populations), containing 36 total occupied swales, in Delaware, 
Maryland, and Virginia. Rangewide, we identified 143 swales within 31 
complexes that contain suitable habitat; however, the best available 
information does not allow us to determine if all of these areas with 
suitable habitat are occupied.
    Currently, data are not available regarding the population 
structure or demographics of the Bethany Beach firefly which is 
typically used to estimate resiliency. Based on survey efforts that 
have occurred since 2019, only a few double flashes are observed at 
most sites, likely indicating small population sizes and low resiliency 
across the range. More than half of the occupied complexes (n = 8) and 
more than half of the occupied swales (n = 21) occur on two properties, 
Delaware Seashore State Park and Assateague Island National Seashore 
(see table 2, above) which suggests higher resiliency compared to the 
other properties with respect to occupied habitat and connectivity 
among swales (complexes).
    Cape Henlopen, Delaware Seashore, and Fenwick Island State Parks 
have some of the most numerous current stressors, including extensive 
invasive species in swales, light pollution in more than a third to 
more than half of swales, and mosquito spraying occurring or likely to 
occur (see table 3, above) which has likely resulted in decreased 
resiliency over time.
    At current sea levels, coastal storms can cause surges between 0.61 
to 1.2 meters (2 to 4 feet) along the Delaware Bay and Atlantic Coast, 
heights comparable to expected sea level rise by 2100 (Delaware Coastal 
Program 2012, pp. 4-5). Saltwater intrusion and overwash increase 
salinity in swales until freshwater flushes out the system, which can 
take anywhere from weeks to months (Anderson 2002, pp. 415-417). The 
Delaware, Maryland, and Virginia Atlantic coastline is positioned 
latitudinally such that it experiences coastal flooding from 
extratropical (e.g., nor'easters) and tropical storm systems, together 
numbering about 30 to 35 coastal storms per year (Leathers et al. 2011, 
p. 10). It is likely that some of these storm events result in 
temporary inundation of the swales. At Assateague Island National 
Seashore, some swales are inundated for an average of 5 days after a 
storm event (Huslander 2023, pers. comm.). To date, the species has 
persisted in varying degrees through these events, so there is likely 
some ability for the species to endure degraded habitat conditions on a 
temporary basis.
    While redundancy and representation for this species are likely 
reduced from historical levels due to past development, there is 
occupied habitat located along 260 kilometers (162 miles) of coastline 
in three States and on seven properties. Given the current resiliency, 
redundancy, and representation of the Bethany Beach firefly across its 
range, we conclude that the species is not currently in danger of 
extinction throughout its range.
    We next considered whether the species is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range. In

[[Page 79874]]

considering the foreseeable future for the Bethany Beach firefly, we 
analyzed expected changes in sea level rise and the resulting impacts 
to resiliency, redundancy, and representation in 30-year intervals at 
years 2040, 2070, and 2100 under both an intermediate and a high 
climate scenario (Service 2024, pp. 52-61). We determined that this 
timeframe represents a period for which we can make reasonably reliable 
predictions about both the threats to the species and the species' 
response to those threats.
    For the majority of the 15 complexes currently occupied by the 
Bethany Beach firefly, resiliency is likely to decline in the future. 
By 2040, nine (60 percent) of the currently occupied complexes have 
some level of impact (degradation of habitat) to resiliency, regardless 
of scenario. All complexes at Assateague Island National Seashore and 
False Cape State Park avoid habitat impacts in 2040. By 2070, only one 
complex at False Cape State Park, will not be impacted. Under an 
intermediate scenario, one complex (7 percent) will be extirpated due 
to permanent inundation, while five (33 percent) will be extirpated 
under a high scenario. By 2100, the False Cape State Park complex would 
only avoid impact under an intermediate scenario. Seven (47 percent) of 
the complexes will be extirpated, with another four having a high level 
of impact, under the intermediate scenario, while a high scenario 
predicts the extirpation of all but two complexes (87 percent).
    Redundancy is expected to decrease in the future, as extirpations 
are projected for the Bethany Beach firefly under both scenarios by 
2070. Regarding representation, while there are no known ``types'' of 
Bethany Beach firefly, the loss of any single population is likely to 
decrease the genetic variation of the species. Given the distance 
between complexes, the species is unlikely to have the adaptive 
capacity to shift its range in space to avoid the impacts of sea level 
rise. While it may be able to persist in place given some impacts of 
high tide flooding, eventually the frequency of seawater inundation 
will become too frequent for the species to tolerate. However, it is 
unknown at what point the species will be unable to tolerate repeated 
flooding.
    In summary, the Bethany Beach firefly already has a limited range 
with low redundancy and representation levels, meaning its survival is 
completely dependent on the availability of its habitat. Additionally, 
the Bethany beach firefly has no ability to disperse outside of its 
current range and is unlikely to be able to adapt to a saltwater 
environment. Therefore, the projected loss of habitat in the 
foreseeable future would leave the species extremely vulnerable to 
stochastic or catastrophic events. Thus, after assessing the best 
available information, we conclude that the Bethany Beach firefly is 
not currently in danger of extinction but is likely to become in danger 
of extinction within the foreseeable future throughout all of its 
range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. The court in Center for Biological Diversity v. Everson, 
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (hereafter ``Final 
Policy''; 79 FR 37578, July 1, 2014) that provided if the Services 
determine that a species is threatened throughout all of its range, the 
Services will not analyze whether the species is endangered in a 
significant portion of its range.
    Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
the species is in danger of extinction in a significant portion of its 
range. In undertaking this analysis for Bethany Beah firefly, we choose 
to address the status question first. We evaluated the range of the 
Bethany Beach firefly to determine if the species is in danger of 
extinction in any portion of its range. The range of a species can 
theoretically be divided into portions in an infinite number of ways. 
We focused our analysis on portions of the species' range that may meet 
the Act's definition of an endangered species. For the Bethany Beach 
firefly, we considered whether the threats or their effects on the 
species are greater in any biologically meaningful portion of the 
species' range than in other portions such that the species is in 
danger of extinction in that portion. We examined the following 
threats: climate change; habitat loss, fragmentation, and degradation; 
and the cumulative effects of threats to the species. We found that 
impacts from sea level rise, increased frequency and intensity of 
coastal storms, and the related effects of increased frequency and 
depth of high tide flooding are the most substantial threats to the 
viability of the Bethany Beach firefly throughout its range in the 
future. As the sea level rises, many Bethany Beach firefly swale 
habitats will become inundated permanently with seawater. In addition 
to sea level rise, beaches will be affected by extreme high tides or 
flooding events, which are projected to increase in frequency (Sweet et 
al. 2018, pp. vii-viii). Habitat loss, degradation, and fragmentation 
due to past urbanization and development has caused populations to be 
isolated with presumably no genetic transfer among them, leaving these 
small populations at increased risk of impacts from random stochastic 
and unforeseen catastrophic events. We considered Delaware Seashore 
State Park and Assateague Island National Seashore as a portion because 
they have 58 percent of the occupied swales rangewide. Assateague 
Island has 22 percent of the occupied swales with few current stressors 
while Delaware Seashore State Park has 36 percent of the occupied 
swales and the most numerous stressors currently. However, current 
resiliency at Delaware Seashore State Park is higher than all of the 
other properties due to the number of occupied swales (33) and 
complexes (4). Habitat stressors that will have the most impact on the 
species, primarily sea level rise and high tide flooding will occur in 
the future with some habitat degradation occurring at intermediate and 
high climate scenarios in 2040 and habitat loss occurring across most 
of the species range by 2070. Based on the current condition of the 
species in Delaware Seashore State Park and Assateague Island National 
Seashore, we found no biologically meaningful portion of the Bethany 
Beach firefly's range where the biological condition of the species 
differs from its condition elsewhere in its range such that the status 
of the species in that portion differs from any other portion of the 
species' range.
    Therefore, no portion of the species' range provides a basis for 
determining

[[Page 79875]]

that the species is in danger of extinction in a significant portion of 
its range, and we determine that the species is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range. This does not conflict with the courts' holdings in Desert 
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 
1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell, 
248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this 
conclusion, we did not apply the aspects of the Final Policy, including 
the definition of ``significant'' that those court decisions held to be 
invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Bethany Beach firefly meets the Act's 
definition of a threatened species. Therefore, we propose to list the 
Bethany Beach as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, foreign 
governments, private organizations, and individuals. The Act encourages 
cooperation with the States and other countries and calls for recovery 
actions to be carried out for listed species. The protection required 
by Federal agencies, including the Service, and the prohibitions 
against certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Chesapeake Bay Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Delaware, Maryland, and 
Virginia would be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the Bethany Beach 
firefly. Information on our grant programs that are available to aid 
species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Although the Bethany Beach firefly is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled, ``Interagency Cooperation,'' and it 
mandates all Federal action agencies to use their existing authorities 
to further the conservation purposes of the Act and to ensure that 
their actions are not likely to jeopardize the continued existence of 
listed species or adversely modify critical habitat. Regulations 
implementing section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological

[[Page 79876]]

opinion and serve as compliance with section 7(a)(2) of the Act.
    Examples of discretionary actions for the Bethany Beach firefly 
that may be subject to conference and consultation procedures under 
section 7 are land management or other landscape-altering activities on 
Federal lands administered by the National Park Service and NASA, as 
well as actions on State, Tribal, local, or private lands that require 
a Federal permit (such as a permit from the U.S. Army Corps of 
Engineers under section 404 of the Clean Water Act or a permit from the 
Service under section 10 of the Act) or that involve some other Federal 
action (such as funding from the Federal Highway Administration, 
Federal Aviation Administration, or the Federal Emergency Management 
Agency). Federal actions not affecting listed species or critical 
habitat--and actions on State, Tribal, local, or private lands that are 
not federally funded, authorized, or carried out by a Federal agency--
do not require section 7 consultation. Federal agencies should 
coordinate with the Chesapeake Bay Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on 
section 7 consultation and conference requirements.

II. Protective Regulations Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. Conservation is defined in the Act to 
mean the use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to the Act are no longer necessary. 
Additionally, the second sentence of section 4(d) of the Act states 
that the Secretary may by regulation prohibit with respect to any 
threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
With these two sentences in section 4(d), Congress delegated broad 
authority to the Secretary to determine what protections would be 
necessary and advisable to provide for the conservation of threatened 
species, and even broader authority to put in place any of the section 
9 prohibitions for a given species.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this species' proposed protective regulations 
under section 4(d) of the Act are one of many tools that we would use 
to promote the conservation of the Bethany Beach firefly. The proposed 
protective regulations would apply only if and when we make final the 
listing of the Bethany Beach firefly as a threatened species. Nothing 
in 4(d) rules change in any way the recovery planning provisions of 
section 4(f) of the Act, the consultation requirements under section 7 
of the Act, or the ability of the Service to enter into partnerships 
for the management and protection of the Bethany Beach firefly. As 
mentioned previously in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. In addition, even 
before the listing of any species or the designation of its critical 
habitat is finalized, section 7(a)(4) of the Act requires Federal 
agencies to confer with the Service on any agency action which is 
likely to jeopardize the continued existence of any species proposed to 
be listed under the Act or result in the destruction or adverse 
modification of critical habitat proposed to be designated for such 
species. These requirements are the same for a threatened species 
regardless of what is included in its 4(d) rule.
    Section 7 consultation is required for Federal actions that ``may 
affect'' a listed species regardless of whether take caused by the 
activity is prohibited or excepted by a 4(d) rule (under general 
application of the ``blanket rule'' option (for more information, see 
89 FR 23919, April 5, 2024) or a species-specific 4(d) rule). A 4(d) 
rule does not change the process and criteria for informal or formal 
consultations and does not alter the analytical process used for 
biological opinions or concurrence letters. For example, as with an 
endangered species, if a Federal agency determines that an action is 
``not likely to adversely affect'' a threatened species, this will 
require the Service's written concurrence (50 CFR 402.13(c)). 
Similarly, if a Federal agency determinates that an action is ``likely 
to adversely affect'' a threatened species, the action will require 
formal consultation with the Service and the formulation of a 
biological opinion (50 CFR 402.14(a)). Because consultation obligations 
and processes are unaffected by 4(d) rules, we may consider developing 
tools to streamline future intra-Service and interagency consultations 
for actions that result in forms of take that are not prohibited by the 
4(d) rule (but that still require consultation). These tools may 
include consultation guidance, Information for Planning and 
Consultation effects determination keys, template language for 
biological opinions, or programmatic consultations.

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the 
Bethany Beach firefly's conservation needs. As discussed previously in 
Summary of Biological Status and Threats, we have concluded that the 
Bethany Beach firefly is likely to become in danger of extinction 
within the foreseeable future primarily due to climate change, which 
includes more frequent and increased storm intensities and high tide 
flooding, rising sea levels causing periodic and/or total inundation, 
saltwater intrusion, and increased temperatures and drought. Urban 
development and changes in land cover, light pollution, recreational 
activities, pesticides, invasive plants, shoreline erosion control 
(including constructed dunes and sand fencing), and increased 
temperatures and drought (compounded by the effects of small population 
size) are also threats to the species.

[[Page 79877]]

    Section 4(d) requires the Secretary to issue such regulations as 
she deems necessary and advisable to provide for the conservation of 
each threatened species and authorizes the Secretary to include among 
those protective regulations any of the prohibitions that section 
9(a)(1) of the Act prescribes for endangered species. We are not 
required to make a ``necessary and advisable'' determination when we 
apply or do not apply specific section 9 prohibitions to a threatened 
species (In re: Polar Bear Endangered Species Act Listing and 4(d) Rule 
Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011) (citing Sweet Home 
Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir. 
1993), rev'd on other grounds, 515 U.S. 687 (1995))). Nevertheless, 
even though we are not required to make such a determination, we have 
chosen to be as transparent as possible and explain below why we find 
that, if finalized, the protections, prohibitions, and exceptions in 
this proposed rule as a whole would satisfy the requirement in section 
4(d) of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the Bethany Beach firefly.
    The protective regulations we are proposing for the Bethany Beach 
firefly incorporate prohibitions from section 9(a)(1) to address the 
threats to the species. The prohibitions of section 9(a)(1) of the Act, 
and implementing regulations codified at 50 CFR 17.21, make it illegal 
for any person subject to the jurisdiction of the United States to 
commit, to attempt to commit, to solicit another to commit, or to cause 
to be committed any of the following acts with regard to any endangered 
wildlife: (1) import into, or export from, the United States; (2) take 
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct) 
within the United States, within the territorial sea of the United 
States, or on the high seas; (3) possess, sell, deliver, carry, 
transport, or ship, by any means whatsoever, any such wildlife that has 
been taken illegally; (4) deliver, receive, carry, transport, or ship 
in interstate or foreign commerce, by any means whatsoever and in the 
course of commercial activity; or (5) sell or offer for sale in 
interstate or foreign commerce. This protective regulation includes all 
of these prohibitions because the Bethany Beach firefly is at risk of 
extinction within the foreseeable future and putting these prohibitions 
in place will help to prevent further declines, preserve the species' 
remaining populations, slow its rate of decline, and decrease 
synergistic, negative effects from other ongoing or future threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the Bethany Beach firefly by prohibiting the following 
activities, unless they fall within specific exceptions or are 
otherwise authorized or permitted: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce in the course of commercial activity; or selling or offering 
for sale in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take would help preserve the species' remaining populations, slow their 
rate of decline, and decrease cumulative effects from other ongoing or 
future threats. Therefore, we propose to prohibit take of the Bethany 
Beach firefly, except for take resulting from those actions and 
activities specifically excepted by the 4(d) rule.
    Exceptions to the prohibition on take would include all of the 
general exceptions to the prohibition on take of endangered wildlife, 
as set forth in 50 CFR 17.21 and additional exceptions, as described 
below.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    In addition, to further the conservation of the species, any 
employee or agent of the Service, any other Federal land management 
agency, the National Marine Fisheries Service, a State conservation 
agency, or a federally recognized Tribe, who is designated by their 
agency or Tribe for such purposes, may, when acting in the course of 
their official duties, take threatened wildlife without a permit if 
such action is necessary to: (i) Aid a sick, injured, or orphaned 
specimen; (ii) dispose of a dead specimen; (iii) salvage a dead 
specimen that may be useful for scientific study; or (iv) remove 
specimens that constitute a demonstrable but nonimmediate threat to 
human safety, provided that the taking is done in a humane manner. Such 
taking may involve killing or injuring only if it has not been 
reasonably possible to eliminate such threat by live capturing and 
releasing the specimen unharmed, in an appropriate area.
    We recognize the special and unique relationship that we have with 
our State natural resource agency partners in contributing to 
conservation of listed species. State agencies often possess scientific 
data and valuable expertise on the status and distribution of 
endangered, threatened, and candidate species of wildlife and plants. 
State agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be able to conduct 
activities designed to conserve the Bethany Beach firefly that may 
result in otherwise prohibited take without additional authorization.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
Bethany Beach firefly, are not expected to rise to the level that would 
have a negative impact (i.e., would have only de minimis impacts) on 
the species' conservation. The proposed exceptions to these 
prohibitions include (1) take associated with conducting surveys; and 
(2) take associated with mechanical removal of invasive plants and 
woody vegetation. These proposed excepted activities are expected to 
have negligible impacts to the Bethany Beach firefly and its habitat.

[[Page 79878]]

Species-Specific Incidental Take Exceptions

    The first proposed exception is for take associated with research 
and conservation activities to benefit Bethany Beach firefly conducted 
by an organization or individual, working cooperatively with a State 
conservation agency that is operating a conservation program pursuant 
to an approved cooperative agreement with the Service as set forth in 
Sec.  17.31(b). The organization or individual must have obtained a 
permit from the State conservation agency, and the research activity is 
carried out in compliance with all terms and conditions of the State 
permit.
    Research and conservation activities can include but are not 
limited to: population monitoring (including surveys and handling 
species); tissue collection for genetic analysis (removal of a leg). 
Our local Ecological Services Field Offices will meet annually with the 
State, or more frequently as warranted, to determine whether permit 
conditions need to be revised or updated based on the projects 
permitted the previous year. The State will also provide reports 
associated with permits, if requested by the Ecological Services Field 
Office.
    The second proposed exception is for control of invasive plants and 
removal of native or invasive woody vegetation. These activities could 
be implemented in Bethany Beach firefly habitat at any time of the 
year, but they would have to be performed through mechanical removal 
using hand-operated machinery. When conducted appropriately, these 
activities are considered beneficial to the native ecosystem and are 
likely to improve habitat conditions for the species; therefore, 
mechanical removal of vegetation using hand-operated machinery is not 
expected to impair the species' conservation.
    As mentioned above, nothing in this proposed 4(d) rule would change 
in any way the recovery planning provisions of section 4(f) of the Act, 
the consultation requirements under section 7 of the Act, or our 
ability to enter into partnerships for the management and protection of 
the Bethany Beach firefly. However, interagency cooperation may be 
further streamlined through planned programmatic consultations for the 
species between us and other Federal agencies, where appropriate. We 
ask the public, particularly State agencies and other interested 
stakeholders that may be affected by the proposed 4(d) rule, to provide 
comments and suggestions regarding additional guidance and methods that 
we could provide or use, respectively, to streamline the implementation 
of this proposed 4(d) rule (see Information Requested, above).

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of designated 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 also does not allow the government or public to access 
private lands. Such designation does not require implementation of 
restoration, recovery, or enhancement measures by non-Federal 
landowners. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the listed species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General

[[Page 79879]]

Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information compiled in the SSA report and information developed during 
the listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to contribute to recovery of the species. Similarly, critical habitat 
designations made on the basis of the best scientific data available at 
the time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available at the time 
of those planning efforts calls for a different outcome.

Critical Habitat Determinability

    We determine that designating critical habitat for the Bethany 
Beach firefly is prudent. Our regulations at 50 CFR 424.12(a)(2) state 
that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the Bethany Beach firefly and habitat characteristics where 
this species is located. The species' habitat is well described and 
mapped in Maryland and Delaware. In Virginia, swale habitat is not 
mapped and not apparent when viewing National Wetland Inventory (NWI) 
layers or aerial imagery. Surveys in Virginia were conducted by 
roadsides and at vantage points where large expanses of wetlands could 
be seen. The purposes of the surveys were to document presence of the 
species. The species may be using different NWI habitat types that meet 
basic needs but are in a different arrangement. Field verification of 
habitat and additional surveys at these sites in Virginia will occur 
during the summer of 2024 and will inform a proposed critical habitat 
designation for the Bethany Beach firefly. Therefore, because we 
currently lack sufficient information on swale habitat in Virginia, we 
conclude that the designation of critical habitat for the Bethany beach 
firefly is not determinable at this time. The Act allows the Service an 
additional year to publish a critical habitat designation that is not 
determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule

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

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. August 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), the President's 
memorandum of November 30, 2022 (Uniform Standards for Tribal 
Consultation; 87 FR 74479, December 5, 2022), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly

[[Page 79880]]

with Tribes in developing programs for healthy ecosystems, to 
acknowledge that Tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to Tribes. We have determined that no Tribal 
lands fall within the boundaries of the current range of the Bethany 
Beach firefly, so no Tribal lands would be affected by the proposed 
listing of this species at this time.

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Chesapeake Bay Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by adding an entry for ``Firefly, Bethany Beach'' 
in alphabetical order under INSECTS to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
          Common name              Scientific name      Where listed         Status          applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Insects
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Firefly, Bethany Beach.........  Photuris            Wherever found....               T  [Federal Register
                                  bethaniensis.                                           citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.47(j).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Further amend Sec.  17.47, as proposed to be amended August 6, 2024, 
at 89 FR 63888, by adding a paragraph (j) to read as follows:


Sec.  17.47   Species-specific rules--insects.

* * * * *
    (j) Bethany Beach firefly (Photuris bethaniensis)--(1) 
Prohibitions. The following prohibitions that apply to endangered 
wildlife also apply to the Bethany Beach firefly. Except as provided 
under paragraph (j)(2) of this section and Sec. Sec.  17.4 and 17.5, it 
is unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, to solicit another to commit, 
or cause to be committed, any of the following acts in regard to this 
species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(3) and (4) for endangered 
wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Research and conservation activities to benefit Bethany Beach 
firefly conducted by an organization or individual, working 
cooperatively with a State conservation agency that is operating a 
conservation program pursuant to an approved cooperative agreement with 
the Service as set forth in Sec.  17.31(b), when conducted by an 
organization or individual that has obtained a permit from the State 
conservation agency, and the research activity is carried out in 
compliance with all terms and conditions of the State permit. Research 
activities permitted by the State may include but are not limited to 
population monitoring (including surveys and handling fireflies to 
confirm identification); tissue collection for genetic analysis 
(removal of a leg).
    (B) Control of invasive plants and removal of native or invasive 
woody vegetation. These activities can be implemented in Bethany Beach 
firefly habitat at any time of the year, but they must be performed 
through mechanical removal using hand-operated machinery.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-22358 Filed 9-30-24; 8:45 am]
BILLING CODE 4333-15-P