Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79857 

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. 

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-ofcontact 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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79858 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

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/peerreview-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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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 79859 

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). 


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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; ‘‘MOpinion,’’ 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’ lifehistory 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 


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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. Nontidal 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 nontidal, 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 nontidal 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 


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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 speciesspecific 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, broadspectrum 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 lowpressure foliar spray application, 


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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 glyphosatebased 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/btimosquito-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 

ECTM, a common chemical for mosquito 

control with an active ingredient called 

naled. Trumpet ECTM 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 ECTM 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 ECTM OUTSIDE THE ADULT FLIGHT SEASON

SINCE 2013 

[Davis 2023i, pers. comm.] 

Date adulticide 

applied 

Rate 

(ounces per 

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 

TABLE 1—OCCUPIED BETHANY BEACH

FIREFLY SWALES SPRAYED WITH

ADULTICIDE TRUMPET ECTM OUTSIDE THE ADULT FLIGHT SEASON

SINCE 2013—Continued 

[Davis 2023i, pers. comm.] 

Date adulticide 

applied 

Rate 

(ounces per 

acre) 

Swale(s) 1 2

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 

1Swale 59 is Cape Henlopen. 

2All 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®, used at 

False Cape State Park to control gypsy 

moths on an as-needed basis. It was 

used as recently as spring 2023. 

GYPCHEK® is an insecticide prepared 

from gypsy moth larvae that have been 

killed by the nuclear polyhedrosis virus. 

The active ingredient in GYPCHEK® is 

the virus, which is embedded in a 

protein particle called the polyhedron. 

GYPCHEK® 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 


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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 recovered with sand during Wallops 

Island beach renourishment events (on 

average, every 3 to 7 years) (Miller 2023, 

pers. comm.). 


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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 (°C) (1 

degree Fahrenheit (°F); West Virginia) to 

about 1.7 °C (3 °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 desynchronizing 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 (DupignyGiroux 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., 


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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 shrubscrub 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 


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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.] 

State Property Complex # of swales 

BBFF present 

# of swales no 

detections 

# of swales 

not surveyed 

Total swales in 

each complex Status 

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 Island Flight Facility.VA_WALL_

02 

1 2 ........................ 3 Current. 

..................................... 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. 


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TABLE 2—KNOWN COMPLEXES OF SWALES THAT PROVIDE POTENTIAL HABITAT TO THE BETHANY BEACH FIREFLY— 

Continued 

[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.] 

State Property Complex # of swales 

BBFF present 

# of swales no 

detections 

# of swales 

not surveyed 

Total swales in 

each complex Status 

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. 


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Table 3. Summary of surveyed and occupied complexes and swales by property, percent of the rangewi

each property, and current stressors for the Bethany Beach firefly. 

Number Complexes Number swales Percent of Current S

Range wide 

Total Total Occupied Obs. BBFF Percent BBFF Percent Current 

State Property Present Surveyed Occupied Present Surveyed Occupied Status Swales habitat Habitat Degradation Lig

loss? 

DE Cape Henlopen SP 1 3 33 1 10 10 Current 3 extensive Phragmites in mentio

no most swales of 10 

DE Delaware Seashore 4 6 67 13 33 39 Current 36 extensive Phragmites in ment

SP no manyswales 13 of 

Private Land N. of Likely wetland shaded by surrou

DE 0 2 0 0 2 0 0 yes hom

Bethany Beach extirpated structure hig

Fenwick Island SP 

extensive Phragmites in mentio

DE 1 2 50 3 13 23 Current 8 no someswales of 13 

MD Assateague Island 4 4 100 8 13 62 Current 22 Phragmites occurring in s

National Seashore no someswales cam

Phragmites in some 

VA Chincoteague NWR 1 2 50 5 8 63 Current 14 no swales ponies - 

trampling, poop 

VA NASA Wallops Flight 3 3 100 3 10 30 Current 8 extensive Phragmites some 

Facility no period

VA False Cape State Park 1 2 50 3 6 50 Current 8 no no Phragmites in swales 

habitat, no ponies 

i Totalr 15 24 36 95 
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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 emissionsbased 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. 


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Table 4. Impacts of sea level rise indicating degraded swales from high tide flooding and lost swales from in

habitat within only currently occupied complexes in the known range of the Bethany Beach firefly at each t

each scenario (Intermediate (Int) and High). Values in the 2040, 2070, and 2100 columns represent that percen

each complex that are degraded or lost to inundation for each scenario, as well as the percent of swales that will h

rising waters ( total impacts), representing the sum of the percents degraded and lost. 

2040 

I 

2070 

I 

I Int I High Int I High 

I I I I 

Property I Complex Status Total Swales 

Cp. Henlopen DE CAHE 03 Current 5 

DE SESP 06 Current 4 

DE Seashore I DE=SESP =08 Current 19 

SP DE_SESP_09 Current 5 

DE SESP 10 Current 5 

Fenwick Is. SP j DE FEN SP 16 Current 14 

MD ASIS 01 Current 6 

Assateague I MD=ASIS=02 Current 8 

Island MD_ASIS_03 Current 6 

MD ASIS 04 Current 13 

Chincoteague VA CHIN 04 Current 7 

Wallops VA_WALL_02 Current 3 

Island VA_WALL_03 Current 3 

VA WALL 05 Current 4 

False Cape SP VA FCSP 06 Current 5 
Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 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 climatechange-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 


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79874 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

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 


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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 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, selfsustaining, 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/endangeredspecies), 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/financialassistance. 

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 


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79876 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

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. 


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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 otherwiseprohibited 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. 


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79878 Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Proposed Rules 

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 § 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 


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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 speciesspecific 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 


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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 

■ 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. 

■ 2. In § 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: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and 

applicable rules 

*******

Insects 

*******

Firefly, Bethany Beach .. Photuris bethaniensis .. Wherever found ........... T [Federal Register citation when published as a 

final rule]; 50 CFR 17.47(j).4d

* * * * * * * 

■ 3. Further amend § 17.47, as proposed 

to be amended August 6, 2024, at 89 FR 

63888, by adding a paragraph (j) to read 

as follows: 

§ 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 §§ 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 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of a commercial activity, as 

set forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 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 § 17.32. 

(ii) Take, as set forth at § 17.21(c)(3) 

and (4) for endangered wildlife. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 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 § 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2024–0107; 

FXES1111090FEDR–245–FF09E21000] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Not-Warranted 

Finding for the Las Vegas Bearpoppy 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notification of finding. 


khammond on DSKJM1Z7X2PROD with PROPOSALS