[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Rules and Regulations]
[Pages 21394-21453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8808]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2009-0017]
[MO 92210-0-0009-B4]
RIN 1018-AW47


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Hine's emerald dragonfly 
(Somatochlora hineana) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 26,531.8 acres (ac) (10,737 
hectares (ha)) in 37 units fall within the boundaries of our critical 
habitat designation. The critical habitat units are located in Cook, 
DuPage, and Will Counties in Illinois; Alpena, Mackinac, and Presque 
Isle Counties in Michigan; Crawford, Dent, Iron, Phelps, Reynolds, 
Ripley, Washington, and Wayne Counties in Missouri; and Door and 
Ozaukee Counties in Wisconsin.

DATES: This rule becomes effective on May 24, 2010.

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

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. We received no new 
information pertaining to the species' life history, ecology, or 
habitat following our 2007 final critical habitat designation. For 
information on the Hine's emerald dragonfly, please refer to our 
proposed critical habitat rule, which we published in the Federal 
Register on July 26, 2006 (71 FR 42442); the final listing 
determination, published on January 26, 1995 (60 FR 5267); or the 
Hine's Emerald Dragonfly (Somatochlora hineana, Williamson) Recovery 
Plan (Service 2001).

Previous Federal Actions

    For information about previous Federal actions for the Hine's 
emerald dragonfly, see our proposed critical habitat rule for the 
species (71 FR 42442). On March 20, 2007, we published a notice that 
included revisions to the proposed critical habitat, announced the 
availability of the draft economic analysis (DEA), and reopened the 
public comment period (72 FR 13061). Because we needed to meet our 
settlement agreement's deadline of submitting a final rule to the 
Federal Register by May 7, 2007, we reopened the comment period for 
only 14 days. Subsequently, we negotiated a new settlement agreement 
with the plaintiffs (The Center for Biodiversity et al.) to submit a 
final rule to the Federal Register by August 23, 2007. Therefore, on 
May 18, 2007, we published an additional Federal Register document that 
reopened the comment period on the proposal, revisions to the proposal, 
and the draft economic analysis for an additional 45 days (72 FR 
28016). That comment period ended on July 2, 2007. On September 5, 
2007, we published a final rule in the Federal Register (72 FR 51102) 
designating 13,221 ac (5,350 ha) as critical habitat for the Hine's 
emerald dragonfly in Illinois, Michigan, Missouri, and Wisconsin.
    On March 10, 2008, six parties (Northwoods Wilderness Recovery, The 
Michigan Nature Association, Door County Environmental Council, The 
Habitat Education Center, Natural Resources Defense Council, and The 
Center for Biological Diversity) filed a complaint against the 
Department of the Interior and the Service (Northwoods Wilderness 
Recovery et al. v. Dirk Kempthorne 1:08-CV-01407) challenging the 
exclusion of U.S. Forest Service lands from the 2007 final designation 
of critical habitat for the dragonfly. On February 12, 2009, the U.S. 
District Court for the Northern District of Illinois approved a 
settlement agreement in which the Service agreed to a remand, without 
voiding the critical habitat designation, in order to reconsider the 
Federal exclusions from the designation of critical habitat for the 
Hine's emerald dragonfly. Per that settlement, on April 22, 2009, we 
published a notice (74 FR 18341) reopening the comment period on the 
July 26, 2006, proposed critical habitat (71 FR 42442). Upon 
publication of that notice, the July 26, 2006, proposed critical 
habitat designation of the U.S. Forest Service lands in Michigan and 
Missouri was reinstated as proposed. Furthermore, until the effective 
date of this revised final critical habitat determination (see DATES), 
the existing designation of critical habitat for the Hine's emerald 
dragonfly remains in place and effective.

Summary of Comments and Recommendations Received

    We requested written comments from the public on our proposed 
designation of critical habitat for the Hine's emerald dragonfly (71 FR 
42442) and our draft economic analysis (72 FR 13061; 72 FR 28026). We 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. We also issued press releases and published legal 
notices in the Daily American Republic, Kansas City Star, Ozaukee News-
Graphic, St. Ignace News, Door County Advocate, Alpena News, Ozaukee 
Press, and Joliet Herald News newspapers. We held one public hearing, 
on August 15, 2006, in Romeoville, Illinois.
    During the comment period that opened on July 26, 2006, and closed 
on September 25, 2006 and the comment period that opened April 22, 2009 
and closed on June 22, 2009, we received 40 comments directly 
addressing our proposed critical habitat designation: 6 from peer 
reviewers, 4 from Federal agencies, and 30 from organizations or 
individuals. During the comment periods from March 20, 2007, through 
April 3, 2007, and May 18, 2007 through July 2, 2007, we received 16 
comments directly addressing the proposed critical habitat designation 
and the draft economic analysis. Of these latter comments, 2 were from 
Federal agencies and 14 were from organizations or individuals.
    In total, 23 commenters supported the designation of critical 
habitat for the Hine's emerald dragonfly and 10 opposed the 
designation. Ten commenters, including three peer reviewers, supported 
exclusion of one or more particular units as identified in the proposed 
rule, and 7 commenters opposed exclusion of one or more particular 
units. Eighteen letters were either neutral or expressed both support 
of and opposition to certain portions of the proposal. Responses to 
comments are grouped by those received from peer reviewers, States, and 
the public, in the following sections. We grouped public comments into 
10 general issues specifically relating to the proposed critical 
habitat designation and draft economic analysis. We have incorporated 
comments into this final rule as appropriate. We did not receive any 
requests for additional public hearings.

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Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), and current Department of the Interior guidance, we solicited 
expert opinions from seven knowledgeable individuals with scientific 
expertise that included familiarity with the species, the geographic 
region in which the species occurs, or conservation biology principles. 
We received responses from six of the peer reviewers. We reviewed all 
comments we received from the peer reviewers for substantive issues and 
new information regarding Hine's emerald dragonfly critical habitat. We 
have addressed peer reviewer comments in the following summary and have 
incorporated them into this final rule as appropriate.
    The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve this final critical habitat rule. Three of the 
six peer reviewers specifically stated that they support our proposed 
designation of critical habitat, while one expressed concern that 
designation may be premature because the population status of the 
Hine's emerald dragonfly in Missouri and Michigan is not well 
understood. Information provided by peer reviewers included suggestions 
for conducting research on dispersal and habitat use that would better 
inform future Hine's emerald dragonfly conservation efforts, as well as 
comments on how to improve critical habitat rules. Peer reviewers also 
made suggestions and provided language to clarify biological 
information or make the final rule easier to understand. Several of the 
peer reviewers provided editorial comments that we have addressed in 
the body of this rule.

Peer Reviewer Comments

    (1) Comment: One peer reviewer (as well as three other commenters) 
suggested that we should designate foraging areas (farmlands, pastures, 
old fields, ponds, and/or surface waters) as critical habitat.
    Our response: Although adult Hine's emerald dragonflies have been 
observed foraging near or in these types of habitats, the importance of 
such habitats in meeting the daily dietary needs of the dragonfly is 
still unknown. Foraging and dispersal areas are present in many of the 
designated critical habitat units, as they contain open areas that 
serve as corridors that are used by the dragonfly. In most of the 
units, foraging and dispersal areas are not limiting factors for the 
species.
    (2) Comment: One peer reviewer suggested that we use caution when 
accepting identifications of early instar (defined as the developmental 
stage on an insect between molts of its exoskeleton) larvae.
    Our response: We agree that identifications of Hine's emerald 
dragonfly based on early instar larvae should be made with caution. 
Early instar larvae have been used in Missouri to document the presence 
of the species at new localities or to identify new Hine's emerald 
dragonfly breeding habitat. Identifications of early instar larvae were 
made by the two leading experts on Somatochlora species larvae: Dr. Tim 
Cashatt and Mr. Tim Vogt. These two experts wrote the definitive key to 
final instar larvae for the genus (Cashatt and Vogt 2001, pp. 94-97). 
These experts have also positively identified early instar larvae of 
Hine's emerald dragonfly by examining greater numbers of larval 
specimens than any other recognized dragonfly larvae expert. Cashatt 
and Vogt (2001, pp. 94-97) confirmed early instar larvae identification 
by rearing some individuals to a final stage; this allowed preliminary 
determinations of the species to be confirmed. Identification of early 
instar larvae by these two recognized experts constitutes the best 
scientific data available.
    (3) Comment: One peer reviewer commented that when the species' 
recovery plan was developed, the network of sites in Missouri was not 
known and, had the sites been known, this may have led to different 
recovery criteria, which may have influenced the identification of 
critical habitat from a scientific perspective.
    Our response: Different recovery criteria may have been developed 
for Hine's emerald dragonfly had more sites been known in Missouri at 
the time the recovery plan was drafted. However, such changes to the 
species' recovery criteria would not have influenced our decision 
regarding designation of critical habitat in Missouri. We based the 
exclusion of Missouri sites on: (1) Current implementation of State 
management plans for the species; and (2) Missouri Department of 
Conservation (MDC) implementation of successful conservation efforts on 
some private lands. The existing successful partnerships among State 
agencies and private property owners could be negatively affected by a 
critical habitat designation, and this could jeopardize future 
cooperative conservation efforts. We used all available data and 
information--including both the recovery plan and additional 
information gained since its development--to determine which areas are 
essential to the conservation of the Hine's emerald dragonfly. We will 
work with the Hine's Emerald Dragonfly Recovery Team in reevaluating 
recovery criteria when the overall status of the species is reexamined 
in a 5-year review.
    (4) Comment: One peer reviewer commented that he is reluctant to 
assume that Hine's emerald dragonflies do not forage and roost in the 
forest canopy.
    Our response: Hine's emerald dragonflies will use trees for 
roosting. Researchers have also observed Hine's emerald dragonflies 
foraging along the forest edge. Given that members of the genus 
Somatochlora commonly forage at treetop level along roads and utility 
rights of way, and dragonflies often perch in vegetation to avoid 
predation during their sensitive teneral stage (soft-bodied stage 
immediately after molt), it is possible that Hine's emerald dragonflies 
may utilize forest canopies to a greater extent than previously 
observed. There is no available information, however, to define the 
degree to which Hine's emerald dragonflies may use these habitats for 
foraging and roosting. We based our criteria to include up to 328 feet 
(ft) (100 meters (m)) of closed canopy forest around breeding habitat 
on observations made by one of the leading species experts (T. Vogt, 
Missouri Department of Natural Resources, in litt. March 2007); this is 
the best information we have available to date.
    (5) Comment: One peer reviewer commented that in Missouri the small 
populations in identified sites may be elements of larger 
metapopulations. These individual elements, because they are so small, 
are probably extirpated fairly frequently even in the absence of human 
disturbance. For this reason, it would seem prudent to conserve 
suitable, but currently unoccupied sites, since dispersal to such 
unoccupied sites must be important to the maintenance of the 
metapopulation. This does not necessarily mean that such sites should 
be designated as critical habitat for the species.
    Our response: While the Hine's Emerald Dragonfly (Somatochlora 
hineana Williamson) Recovery Plan recognizes that the patchy nature of 
habitat in Illinois and Wisconsin suggests a metapopulation structure 
in those two States, only three sites were known in Missouri at the 
time the Recovery Plan was written (Service 2001). We do not have 
adequate information to determine if the small populations of Hine's 
emerald dragonflies in Missouri are part of one

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or more metapopulations. Such a hypothesis is best tested by conducting 
various genetic analyses. Genetic analyses of populations in Missouri 
were initiated in the summer of 2007; however, they are not yet 
complete. Until these genetic analyses are completed, it is difficult 
to assess the status of the Missouri populations of Hine's emerald 
dragonfly in relation to the overall distribution of the species. DNA 
analyses initiated by the Illinois Museum are ongoing, and final 
observations are forthcoming and to be published in a peer-reviewed 
journal.
    (6) Comment: One peer reviewer stated that the rationales for 
exclusions are not easy to understand.
    Our response: In this rule, we have attempted to further clarify 
the rationale for our exclusions and why these exclusions are important 
to the overall conservation of the Hine's emerald dragonfly (see 
``Exclusions Under Section 4(b)(2) of the Act'' section).
    (7) Comment: One peer reviewer commented that exclusion of the 
Missouri units based solely on the fact that the habitat is surrounded 
by contiguous forest does not seem justified. Without knowing anything 
about the dispersal ability of the species, that fact alone seems 
insufficient to conclude that such populations may not be important in 
the long-term survival of the species in Missouri.
    Our response: We have described our reasons for excluding Missouri 
units from the critical habitat designation under the Exclusions 
section of this rule. We excluded those areas on the basis of existing 
conservation plans and partnerships, and not based on the fact that 
most sites are surrounded by contiguous, closed canopy forest.
    (8) Comment: One peer reviewer suggested that we should include 
unoccupied habitat in areas that may serve as dispersal corridors or 
establish connectivity between sites in the critical habitat 
designation.
    Our response: We attempted to include areas that will serve as 
dispersal corridors that are contiguous with occupied habitat within 
our critical habitat units. However, little is known about what factors 
are essential to enable the species to disperse. We designated areas 
that were occupied at the time of listing and not now occupied in order 
to allow for connectivity between units. We also included habitat out 
to the average dispersal distance of the species in order to maintain 
this dispersal capability. Not all unoccupied sites may be suitable for 
dispersal corridors, however. We do not have enough scientific 
information to assess the importance of dispersal corridors to the 
conservation of the species. There are multiple reasons why Hine's 
emerald dragonflies may be absent from sites, even those that have all 
the necessary habitat requirements. Another peer reviewer noted that 
reasons such as interspecific interactions (for example, with other 
dragonflies) could preclude Hine's emerald dragonflies in sites that 
have all the necessary habitat requirements. For example, in Missouri, 
the distribution of the Hine's emerald dragonfly may be dictated in 
part by the presence of large dragonfly predators that have been 
observed preying on individuals of the same genus (Somatochlora) as the 
Hine's emerald dragonfly.
    (9) Comment: One peer reviewer stated that designation of critical 
habitat for the Hine's emerald dragonfly is premature because of the 
lack of knowledge on the status and population structure of the Hine's 
emerald dragonfly.
    Our response: The Service was under a court order to complete the 
original designation of critical habitat and submit a final rule to the 
Federal Register by August 23, 2007. We were also under a court order 
to complete this revised critical habitat determination by April 15, 
2010. Consequently, we proceeded with the critical habitat process for 
this species based on the best scientific data that were available at 
the time, as required by the Act.
    (10) Comment: One peer reviewer asked if management plans exist for 
any of the areas in Wisconsin identified in the proposal.
    Our response: Lands owned by resource and conservation agencies in 
proposed critical habitat units in Wisconsin do not have existing 
management plans that specifically address the Hine's emerald 
dragonfly. Those entities with conservation plans for their properties 
include protective measures to conserve wetland habitat, and thereby 
help to conserve the dragonfly. Those plans, however, do not identify 
conservation measures for the Hine's emerald dragonfly.
    (11) Comment: One peer reviewer recommended that research be 
conducted on dispersal, particularly female dispersal, and that we 
consider radio-tracking individual dragonflies, as has been done with 
Aeshnids (darners).
    Our response: Research on dispersal is a task identified in the 
Hine's Emerald Dragonfly (Somatochlora hineana Williamson) Recovery 
Plan (Service 2001, p. 48). The Hine's Emerald Dragonfly Recovery Team 
and species experts are assessing the feasibility of using a similar 
methodology as was used to radio track Aeshnids.

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

    Issue 1: Biological Justification and Methodology Used.
    (1A) Comment: Several individuals commented that the July 26, 2006 
proposal (71 FR 42442) and the April 22, 2009 proposal (74 FR 18341) 
did not address groundwater recharge areas.
    Our response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, in determining what areas are critical 
habitat, we shall consider those physical and biological features that 
are essential to the conservation of the species. Some groundwater 
recharge areas may be included within a critical habitat unit if they 
co-occur with the biological and physical features essential to the 
conservation of Hine's emerald dragonfly. Any Federal actions that may 
affect critical habitat, irrespective of the action's location inside 
or outside of a critical habitat unit, are subject to section 7 
consultation, under the Act. This would include Federal actions that 
affect groundwater recharge to any of the critical habitat units.
    (1B) Comment: One individual expressed that we did not show that 
the best available scientific data support the inclusion of the rail 
line in Illinois Units 1 and 2.
    Our response: The rail line in Illinois Units 1 and 2 does not 
contain the primary constituent elements and, therefore, does not meet 
the definition of critical habitat. Therefore, we have not designated 
it as critical habitat. As stated in the proposal and in this final 
rule, critical habitat does not include human-made structures existing 
on the effective date of a final rule and not containing one or more of 
the primary constituent elements. However, work performed on the rail 
line would be subject to the provisions of section 7 of the Act if that 
work could have adverse effects on designated critical habitat or the 
dragonfly.
    (1C) Comment: One individual stated that it is not clear whether 
Wisconsin Unit 11 (containing Kellner's Fen) is sufficiently inclusive, 
and that this unit should also include the surrounding transitional 
habitat that may also contain primary constituent elements.
    Our response: In designating critical habitat at Kellner's Fen, we 
used the same criteria we used for all the other units. We designated 
areas containing the primary constituent elements for the dragonfly, 
including wetland (fen) areas, shrubby areas, and 100 m into adjacent 
forest habitat. The map in the Federal

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Register is generalized, and does not show the habitat variations that 
actually exist within the unit.
    (1D) Comment: One comment disputes the accuracy of the report's 
statement that adult dragonflies are active mid-June to mid-August.
    Our response: According to the Recovery Plan (Service 2001), larvae 
begin to emerge as adult, possibly as early as late May in Illinois and 
late June in Wisconsin and continue to emerge through the summer (Vogt 
and Cashatt 1994; Mierzwa et al. 1997). The adults' known flight season 
lasts up to early October in Illinois (Vogt and Cashatt 1994) and to 
late August in Wisconsin (Vogt and Cashatt 1994). Fully mature adult 
Hine's emerald dragonflies can live at least 14 days and may live 4 to 
6 weeks.
Issue 2: Procedural and Legal Compliance
    (2A) Comment: Some commenters suggested that excluding Forest 
Service land was inappropriate as the Forest Service did not consult 
with the Service under section 7 of the Act. Two commenters mentioned a 
specific example, the Sprinkler Project on the Hiawatha National 
Forest, where they believed consultation was not completed. Further, 
the commenters suggested that designating critical habitat would ensure 
future consultation between the Service and Forest Service.
    Our response: Because we are now designating critical habitat on 
Forest Service land in Michigan and Missouri, all requirements under 
section 7(a)(2) are applicable. The Forest Service consistently 
consults on projects that may affect listed species, including the 
Hine's emerald dragonfly. The Forest Service completed section 7 
consultation on Mark Twain's and Hiawatha's Land and Resource 
Management Plans. Several other informal and formal consultations have 
also been completed, including consultation on the Sprinkler Project in 
2006.
    (2B) Comment: One individual commented that the proposed rule 
states that the conservation role of Hine's emerald dragonfly critical 
habitat units is to support ``viable core area populations,'' but that 
the proposed rule did not provide sufficient information to allow 
commenters to determine whether the proposed units actually contain 
areas that support such Hine's emerald dragonfly populations.
    Our response: ``Viable'' means capable of living, developing, or 
reproducing under favorable conditions. We have used the best 
scientific and commercial information available to determine what 
conditions are favorable to Hine's emerald dragonfly, and the proposal 
provided information on the physical and biological features essential 
to the conservation of the species. We identified areas that are known 
to contain these features, provided descriptions of the features in 
each unit, and are designating only those units that contain the 
features that are essential to the conservation of the species.
    (2C) Comment: One commenter questioned the legality of the critical 
habitat designation in regards to takings.
    Our response: The designation of critical habitat does not mean 
that private lands will be taken by the Federal government or that 
other legal uses will be restricted. We evaluated this rule in 
accordance with Executive Order (E.O.) 12630, and we believe that the 
critical habitat designation for the Hine's emerald dragonfly will not 
have significant takings implications. We do not anticipate that 
property values, rights, or ownership will be materially affected by 
the critical habitat designation.
Issue 3: Exclusions
    (3A) Comment: Several commenters suggested that Michigan Units 1, 
2, and 3 should not be excluded, because these units contain areas not 
covered by Federal or State management plans.
    Our response: The entire acreage encompassed by Michigan Units 1 
and 2, including some small areas of non-Federal land, were excluded 
from the previous Hine's emerald dragonfly critical habitat designation 
published on September 5, 2007. Michigan Unit 3 was not excluded under 
the previous designation. As of this rule, all of Michigan units 1, 2, 
and 3 are designated as critical habitat.
    (3B) Comment: The Forest Plans for the Mark Twain and Hiawatha 
National Forests do not justify excluding these areas from critical 
habitat. Although the Forest Plan may address conservation of the 
Hine's emerald dragonfly, they would not provide for consultation with 
the Service on future Forest Service actions that may destroy or 
adversely modify the dragonfly's habitat. Furthermore, while the 
Service recognizes logging as a threat to the species, the Forest 
Service has recently proposed timber cutting to protect the species. 
Neither the Forest Service nor the Service has produced evidence that 
this logging proposed under the Hiawatha Forest Plan is likely to 
benefit the dragonfly.
    Our response: Because we are now designating critical habitat on 
Forest Service land in Michigan and Missouri, all requirements under 
section 7(a)(2) of the Act are applicable. Section 7(a)(2) of the Act 
applies to any project funded or authorized by a Federal entity, 
including logging operations on National Forest land.
    (3C) Comment: One commenter stated that excluding habitat on lands 
owned by the State of Missouri would lead to no net conservation 
benefit to the Hine's emerald dragonfly. Designating critical habitat 
would not harm our good working relationship with the MDC.
    Our response: MDC owns and manages all fens on Missouri State lands 
with Hine's emerald dragonflies. The MDC currently implements various 
habitat management and conservation actions to sustain and enhance the 
species at these fens. Furthermore, MDC has recently updated its 
Conservation Area Plans and the Husman Fen Natural Area Plan to 
incorporate additional conservation measures for the Hine's emerald 
dragonfly that will ensure the long-term management and maintenance of 
fens. The benefits to the species resulting from conservation measures 
being implemented by MDC would exceed any benefit to the species gained 
from the designation of critical habitat. Additionally, in their 
comments on the proposal, MDC requested they be excluded from the 
critical habitat designation because they anticipate some negative 
effects of designation. Because of their implementation of management 
plans for the Hine's emerald dragonfly, we are able to accommodate this 
request. To provide additional conservation benefits to the species on 
state-owned and private land, MDC completed a comprehensive Hine's 
Emerald Dragonfly Recovery Plan for Missouri (Missouri Department of 
Conservation 2007f) (MDC Recovery Plan). The MDC Recovery Plan outlines 
numerous recovery objectives, conservation actions, and management 
recommendations necessary to maintain Hine's emerald dragonfly habitat. 
These guidelines will help facilitate the recovery of the species in 
Missouri.
    (3D) Comment: One commenter expressed that the perception of public 
hostility does not justify excluding private property. That commenter 
believed that the lack of support from the general public was due to 
the Service's failure to properly educate private landowners on the 
minor impact of designating critical habitat on their property. The 
commenter stated that the exclusion of all private property in Missouri 
from critical habitat designation without a unit-by-unit consideration 
of conservation benefits and landowner amenability is arbitrary.

[[Page 21398]]

    Our response: We have multiple examples where researchers have been 
denied access to private land to survey potentially new Hine's emerald 
dragonfly sites. In other cases, landowners who have documented Hine's 
emerald dragonflies on their property have been reluctant or 
apprehensive about taking advantage of multiple landowner incentive 
programs available to them due to false perceptions of critical 
habitat.
    Service representatives, Hine's emerald dragonfly researchers, and 
personnel of the MDC's Private Land Services Division expended 
considerable effort in providing private landowners with information on 
the Hine's emerald dragonfly and outlining various landowner incentive 
programs. Despite the combined outreach efforts of multiple 
individuals, there is documented opposition by private landowners 
within the dragonfly's range in Missouri that is difficult to overcome. 
The designation of critical habitat on private property in Missouri 
would only exacerbate negative attitudes towards federally listed 
species. See 3I and 3K responses that talk more about management 
guidelines in a State recovery plan.
    We considered the conservation benefits of designating critical 
habitat for each unit under private ownership, as well as the benefits 
of excluding the area from critical habitat. The Service weighed the 
benefits of each, and concluded, using the discretion afforded to the 
agency under the Act, that actions for the conservation of the species 
would be best realized if the lands were excluded. More discussion on 
this topic is covered under the ``Exclusions Under Section 4(b)(2) of 
the Act'' section.
    (3E) Comment: One commenter expressed that Illinois Unit 2 should 
be excluded from the critical habitat designation, under section 
4(b)(2) of the Act, because the substantial benefits of exclusion 
outweigh any potential benefits of designation and the exclusion will 
not result in the extinction of the species.
    Our response: While the Service recognizes the cooperation of the 
landowners in Illinois Unit 2, formal conservation agreements or 
management plans have not been prepared for this unit and, therefore, 
the future management and protection of this unit are unknown. The 
landowners of this unit are in the very initial stages of developing a 
Habitat Conservation Plan for the species. This Habitat Conservation 
Plan, however, is not complete enough at this time to allow us to 
evaluate the conservation benefits to the species.
    (3F) Comment: One commenter stated that Commonwealth Edison's 
right-of-way in Illinois Units 1-5 and 7 should be excluded because 
designation of these areas would put Commonwealth Edison's normal 
operations at severe risk. Another commenter expressed that in Illinois 
Units 1 and 2, the generating station, rail line, and land adjacent to 
those structures should be excluded.
    Our response: To the greatest extent possible, we avoided including 
developed areas containing buildings, rail lines, electrical 
substations, and other urban infrastructure within critical habitat 
units. Where we have not been able to map out these structures we have 
excluded them by text. As stated in this rule, critical habitat does 
not include human-made structures existing on the effective date of a 
final rule not containing one or more of the primary constituent 
elements (see definition of ``primary constituent elements'' in 
subsequent section). Therefore, human-made structures including utility 
poles, power lines, rail lines, and the generating station are not 
included in the critical habitat designation. However, areas around the 
human-made structures that consist of habitat containing the primary 
constituent elements of Hine's emerald dragonfly habitat are included 
in the designation.
    Although Commonwealth Edison has been a valued partner in the 
conservation of Hine's emerald dragonfly, and is one of the parties 
involved in the preparation of a Habitat Conservation Plan for the 
species, no management plans for their right of way currently exist.
    (3G) Comment: Three commenters expressed that the life of a forest 
plan is likely shorter than the time it will take to recover the Hine's 
emerald dragonfly. They added that there is no guarantee that the 
forest plans would be in place or implemented in the future. Therefore, 
they question the exclusion of Forest Service land in Michigan and 
Missouri.
    Our response: The intended cycle of National Forest plans is 10-15 
years. The Mark Twain and Hiawatha National Forest Land and Resource 
Management Plans were approved in 2005 and 2006, respectively. As 
identified in the Hine's Emerald Dragonfly (Somatochlora hineana 
Williamson) Recovery Plan, anticipated recovery of the Hine's emerald 
dragonfly could occur as early as 2019 (Service 2001, p. iv). While we 
concur that it is likely that current management plans for the Mark 
Twain and Hiawatha National Forests will expire before the Hine's 
emerald dragonfly can be recovered, we believe that the track record of 
cooperation between us and the two national forests outlines the Forest 
Service's commitment to the conservation of federally listed species 
under sections 7(a)(1) and 7(a)(2) of the Act. Once the current plans 
have expired, we are confident that both the Mark Twain and Hiawatha 
National Forests will complete consultation on the new plans. These 
consultations will further ensure that actions outlined in future land 
and resource management plans will not jeopardize the continued 
existence of any federally listed species, including the Hine's emerald 
dragonfly. We believe that standards and guidelines established for the 
Hine's emerald dragonfly will continue to contribute to the 
conservation of the species until it is recovered and removed from the 
list of federally protected species. Despite the benefits realized from 
implementation of the various actions outlined in Forest Service LRMPs 
for these two national forests, we are designating critical habitat on 
Forest Service land because we believe the benefits of designating 
those areas outweighs the benefits of excluding those areas from 
designation.
    (3H) Comment: One commenter expressed that we should exclude 
Illinois Units 1, 2, and 3 because of long-term stakeholder commitment 
and the Habitat Conservation Plan that is being written.
    Our response: Though we are pleased with the progress made to date 
on the Habitat Conservation Plan, it is still far from complete, and 
too early to judge its ultimate outcome. At this early stage, the 
developing Habitat Conservation Plan is not complete enough for us to 
evaluate whether habitat for the Hine's emerald dragonfly would be 
appropriately managed. Generally we do not consider excluding an area 
from critical habitat based on a draft Habitat Conservation Plan until 
the conservation measures have been determined, an environmental 
analysis has been completed and released for public review, and we have 
determined that issuing the associated incidental take permit would not 
result in a jeopardy or adverse modification finding for the species or 
its critical habitat. Therefore, we are not excluding Illinois Units 1, 
2, and 3 at this time.
    (3I) Comment: One commenter concluded that there is no reasonable 
basis for excluding privately owned sites in Missouri and designating 
Illinois Units 1 and 2. Excluding units in Missouri suggests that 
similarly situated parties are being treated differently.
    Our response: Threats identified for the Hine's emerald dragonfly 
on private

[[Page 21399]]

land in Missouri are addressed through close coordination among 
personnel with the MDC's Private Land Services Division or Regional 
Natural History biologists and private landowners. Additionally, MDC 
personnel work closely and proactively with the National Resources 
Conservation Service (NRCS) and the Service's Partners for Fish and 
Wildlife Program to initiate management and maintenance actions on 
privately owned fens occupied by the Hine's emerald dragonfly that 
benefit the species and alleviate potential threats.
    One site on private property in Missouri is owned and managed by 
The Nature Conservancy through the implementation of a site-specific 
plan (The Nature Conservancy 2006, pp. 1-4) that maintains fen habitat. 
One site under private ownership is a designated State Natural Area 
that is managed by the MDC through a site-specific plan (Missouri 
Natural Areas Committee 2007). This plan ensures that the integrity of 
the fen is maintained (Missouri Natural Areas Committee 2007, pp. 3-
29). Hine's emerald dragonfly sites on Missouri State-owned and private 
land will be further maintained by implementing management guidelines 
outlined in a State recovery plan that was recently completed (Missouri 
Department of Conservation 2007f). However, at this time there are no 
conservation plans in place for Illinois Units 1 and 2 that would guide 
the implementation of similar measures. In addition, Illinois Unit 1 is 
a publicly owned site.
    (3J) Comment: One commenter was concerned with the exclusion of 
large areas of lands in Michigan and Missouri based solely on the 
existence of management plans. The commenter suggested that given the 
uncertainties surrounding funding and implementation, the Service 
should consider designating these areas. Another commenter opposed 
exclusion of Michigan Units because the Hine's emerald dragonfly is 
mobile, and designation of all possible habitat areas is necessary to 
support increased numbers of the species. Furthermore, the commenter 
suggested that, by excluding critical habitat areas, we spent more time 
and money on the designation process.
    Our response: While available funding will likely impact the amount 
of Hine's emerald dragonfly conservation work that occurs in any one 
year, we are confident that the Forest Service will continue to place a 
high emphasis and priority on its obligation to contribute to the 
conservation of the species. In addition, State land management 
agencies in Missouri are committed to the implementation of recovery 
actions outlined in their management plans and the recently completed 
Missouri Hine's Emerald Dragonfly Recovery Plan (Missouri Department of 
Conservation 2007f). Because we are now designating critical habitat on 
Forest Service land in Michigan and Missouri, all requirements under 
section 7(a)(2) are applicable.
    In evaluating which areas to exclude, we requested and reviewed 
management plans and other relevant information. This analysis was 
conducted for all of the Hine's emerald dragonfly habitat areas we 
identified as meeting the definition of critical habitat. For excluded 
units, more time was spent on reviewing pertinent information, 
addressing public comments, and incorporating public input than for 
designated critical habitat units. This, however, was not due to the 
exclusion process, but rather to the amount of pertinent information 
available for these units (management plans for private and State-owned 
lands in Missouri) and the large number of public comments associated 
with exclusion. The evaluation and incorporation of relevant 
information and public comment was a necessary part of our critical 
habitat designation.
    (3K) Comment: One commenter requested that the Service provide an 
independent rationale why areas adjacent to Forest Service land that 
are on private property should be excluded.
    Our response: In Missouri, we are excluding sites on private land 
adjacent to Forest Service land because the management and maintenance 
of these areas are covered through close cooperation between private 
land owners and the Missouri Department of Conservation in the 
implementation of recommendations outlined in the Missouri Hine's 
Emerald Dragonfly Recovery Plan (Missouri Department of Conservation 
2007f).
Issue 4: Economic Issues
    (4A) Comment: The proposed critical habitat rule states that ``to 
the extent that designation of critical habitat provides protection, 
that protection can come at significant social and economic cost'' (71 
FR 42443). Two commenters contend that there is no evidence that social 
or economic costs apply to the Hine's emerald dragonfly critical 
habitat designation and that some private landowners have recognized 
that critical habitat designation poses no social or economic threat. 
Furthermore, the economic and social benefits of critical habitat 
designation are ignored.
    Our response: The economic analysis evaluates the potential 
economic costs associated with critical habitat designation, and also 
discusses the benefits of critical habitat designation. Based on our 
economic analysis, estimated future costs associated with conservation 
efforts for the dragonfly in areas designated as critical habitat range 
from $11.0 million to $25.7 million, over the next 20 years, applying a 
7-percent discount rate.
    The published economics literature has documented that social 
welfare benefits can result from the conservation and recovery of 
endangered and threatened species. In its guidance for implementing 
Executive Order 12866, the Federal Office of Management and Budget 
(OMB) acknowledges that it may not be feasible to monetize, or even 
quantify, the benefits of environmental regulations due to either an 
absence of defensible, relevant studies or a lack of resources on the 
implementing agency's part to conduct new research. Rather than rely on 
economic measures, the Service believes that the direct benefits of the 
proposed rule are best expressed in biological terms that can be 
weighed against the expected cost impacts of the rulemaking. Critical 
habitat designation may also generate ancillary benefits. Critical 
habitat aids in the conservation of species specifically by protecting 
the primary constituent elements on which the species depends. To this 
end, critical habitat designation can result in maintenance of 
particular environmental conditions that may generate other social 
benefits aside from the preservation of the species. That is, 
management actions undertaken to conserve a species or habitat may have 
coincident, positive social welfare implications, such as the 
preservation of open space in a region. While they are not the primary 
purpose of critical habitat, these ancillary benefits may result in 
gains in employment, output, or income that may offset the direct, 
negative impacts to a region's economy resulting from actions to 
conserve a species or its habitat. It is often difficult to evaluate 
the ancillary benefits of critical habitat. To the extent that the 
ancillary benefits of the rulemaking may be captured by the market 
through an identifiable shift in resource allocation, they are factored 
into the overall economic impact assessment. For example, if habitat 
preserves are created to protect a species, the value of existing 
residential property adjacent to those preserves may increase, 
resulting in a measurable positive impact. Ancillary benefits that 
affect markets are not

[[Page 21400]]

anticipated in this case and therefore are not quantified.
    (4B) Comment: One commenter suggested that the proposal was 
premature and legally deficient because it lacked an economic analysis.
    Our response: Under the Act, and clarified in our implementing 
regulations at 50 CFR 424.19, we are required to, ``after proposing 
designation of [a critical habitat] area, consider the probable 
economic and other impacts of the designation upon proposed or ongoing 
activities.'' The purpose of the draft economic analysis is to 
determine and evaluate the potential economic effects of the proposed 
designation. In order to develop an economic analysis of the effects of 
designation critical habitat, we need to have identified an initial 
proposed critical habitat designation. Following publication of the 
critical habitat proposal for the Hine's emerald dragonfly, we 
developed a draft economic analysis of the proposed designation that 
was made available for public review and comment on March 20, 2007, for 
14 days, and reopened for public review and comment on May 18, 2007, 
for 45 days. On the basis of information we received during the public 
comment periods, we may, during the development of our final critical 
habitat determination, find that areas we proposed are not essential, 
are appropriate for exclusion under section 4(b)(2) of the Act, or are 
not appropriate for exclusion. An area may be excluded from critical 
habitat if it is determined that the benefits of such exclusion 
outweigh the benefits of including a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species. We have not, however, 
excluded any areas from the final designation based on economic 
reasons.
    (4C) Comment: One commenter expressed that Midwest Generation's 
rail line and immediately adjoining areas in Illinois Units 1 and 2 
should be excluded from critical habitat based on economic impacts, and 
they provided an independent economic analysis of alternative coal 
delivery systems.
    Our response: On March 20, 2007, we completed an economic analysis 
that addressed these issues. As stated above and in the proposed rule 
``critical habitat does not include human-made structures existing on 
the effective date of a final rule not containing one or more of the 
primary constituent elements.'' The rail line is not part of Illinois 
Units 1 and 2 because it was excluded by text from the proposal rule 
and from this final rule. Areas around the rail line that are not 
human-made but contain at least one primary constituent element are 
included. We determined that the relatively minor economic costs as 
described in the draft economic analysis do not justify excluding those 
areas from critical habitat.
    (4D) Comment: One commenter expressed concerns about the effects of 
critical habitat designation on the future of the State snowmobile 
trail system in Door County, Wisconsin, and on improvements to, and 
installation of, new trails. Concerns include loss of the State trail 
corridor, which could bankrupt snowmobile clubs in the area, and loss 
of associated tourist revenue in Door County.
    Our response: While the designation of critical habitat for the 
Hine's emerald dragonfly does not directly affect private landowners 
without a Federal nexus, it does alert them to the presence of an 
endangered species on their land and the need to ensure that their 
activities are consistent with the conservation of the species. 
Snowmobiling activity on upland areas in the winter will not affect the 
dragonfly, as adults are not flying in winter and the larval stage 
overwinters in crayfish burrows in wetlands. Construction and 
maintenance of snowmobile trails in upland locations at any time of 
year are not anticipated to affect the dragonfly. If construction and 
maintenance activities are planned in or near wetland areas occupied by 
the dragonfly, measures should be taken to preclude adversely affecting 
the wetlands or their hydrology. As we anticipate that snowmobiling 
activities will not be adversely affected by designation of critical 
habitat, we do not anticipate impacts to tourist revenues associated 
with snowmobiling in Door County.
    (4E) Comment: One commenter stated that it was unclear from 
information in the economic analysis whether a determination had been 
made regarding exclusion of additional areas from the designation of 
critical habitat for all or some of the units in Illinois based on 
economic impact.
    Our response: The purpose of the economic analysis is to identify 
and analyze the potential economic impacts associated with the proposed 
critical habitat designation for the Hine's emerald dragonfly. The 
economic analysis did not make a determination about any exclusions. 
The economic analysis is conducted to inform the Secretary's decision 
about exclusions. The final determination is made in this rule (see 
``Exclusions Under Section 4(b)(2) of the Act'' section). Based on the 
information in the draft economic analysis and the comments received 
during the public comment period, we are not excluding any areas based 
on economic impacts.
    (4F) Comment: One commenter asserts that there is little (if any) 
economic activity in Alpena, Mackinac, or Presque Isle Counties in 
Michigan. The commenter asserts that declining human populations in 
these counties is evidence of minimal economic activity.
    Our response: The methodology used to obtain land values is 
discussed in Section 2.1 of the economic analysis, and the land values 
for each potential critical habitat units are presented in Exhibit 2-3. 
These values reflect the level of actual economic activity in these 
counties. The land in the three Michigan counties that coincides with 
the study area is valued at $1,430 per ac in Alpena County; $4,380 per 
ac in Presque Isle County; and $1,510 per ac in Mackinac County. The 
land value estimates for economic impacts in these counties (for units 
MI 3, MI 4, MI 5, and MI 6) were obtained from local zoning and tax 
assessor officials in these counties. The price of land in the present 
constitutes the expected value of current and potential future values 
of that land. Each of the proposed critical habitat units are near 
waterfront access and roads, which may make them valuable now or in the 
future.
    (4G) Comment: Two comments state that the economic analysis fails 
to define an appropriate baseline, specifically: (1) The analysis of 
future conservation measures as co-extensive is unjustified; and (2) 
the inclusion of past costs associated with the proposed critical 
habitat as consequences of the critical habitat designation is 
erroneous.
    Our response: (1) The economic analysis includes co-extensive costs 
because courts and the public have asked to see us display all of the 
costs of critical habitat, whether or not these costs are co-extensive 
with other causes. (2) The economic analysis explains why past costs 
are included in the introduction of Chapter 1. The retrospective 
analysis of past costs is included to provide context for future costs, 
and in some cases to help predict them. The Service is not suggesting 
that these costs are a result of the critical habitat designation. 
Reporting of past costs is also reviewed in Section 1.4 of the economic 
analysis, where their inclusion is justified on the basis that past 
costs may have contributed to the efficacy of the Act in that area.
    (4H) Comment: Two comments state that the economic analysis does 
not include benefits in the analysis. The un-quantified benefits they 
list are: Protection of ecosystem services;

[[Page 21401]]

increased recreational and wildlife opportunities; reduced flood risks; 
concurrent conservation of other species; enhanced groundwater 
recharge; mosquito reduction; existence value of the dragonfly; 
protection of other species; wetland protection; decreased use of 
pesticides, chemicals, and herbicides; and potentially higher property 
values. One of the comments provides testimony of landowners who want 
to preserve the dragonfly on their property as evidence of existence 
value. This comment then proceeds to list several non-use valuation 
techniques. Another comment argues that the benefits should be 
expressed in monetary terms rather than in biological terms.
    Our response: Potential benefits from critical habitat designation 
are discussed in Section 1.4 of the economic analysis, which recognizes 
the valuation methodologies discussed by the commenter. The section 
then describes the policy of the Service whereby benefits are expressed 
in biological terms. This section also discusses how ancillary benefits 
are not expected in the case of the Hine's Emerald Dragonfly. The OMB 
has acknowledged that it may not be feasible to monetize or quantify 
benefits because there may be a lack of credible, relevant studies, or 
because the agency faces resource constraints that would make benefit 
estimation infeasible (U.S. OMB, ``Circular A-4,'' September 17, 2003, 
available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.).
    (4I) Comment: One comment states that the economic analysis does 
not explain how the results of the analysis will be used in the 
critical habitat designation process.
    Our response: In the introduction to Chapter 1, the Framework for 
Analysis states that the economic analysis will be used to weigh the 
benefits of excluding particular proposed critical habitat areas 
against the benefits of including them.
    (4J) Comment: One comment states that the economic analysis does 
not consider the effects of other land use regulations that may affect 
how land can be developed or used, and that value losses attributed to 
critical habitat designation may be improperly attributed.
    Our response: Land use regulations and how they affect land values 
are discussed in Section 2.1 of the economic analysis, in the context 
of Exhibit 2-3. First, the analysis explains that present land values 
will reflect the opportunities for development of that land. In this 
way, the present value of land incorporates all current and expected 
future regulatory constraints upon land use.
    As an illustration, consider three identical parcels, one which 
housing can be built on with certainty, one which may or may not be 
subject to regulatory constraints that prohibit the construction of 
housing, and one where housing construction is absolutely prohibited. 
The price of the parcel where housing can be built (with certainty) 
will incorporate the option value for that housing and will sell for 
the highest price. The parcel where housing may or may not be built due 
to uncertainties about future regulation will sell for less than the 
parcel on which housing can be built with certainty, but will sell for 
more than the parcel where no housing can be built. The market price 
for land is net of the expected effect of current or future 
regulations. As described in Section 2.1 of the economic analysis, the 
GIS process for determining land values took into account zoning 
regulations and ownership types before determining land values from tax 
parcel records and interviews with zoning and planning officials. 
Impacts in this analysis are predicted using the best publicly 
available data for reasonably foreseeable land uses.
    (4K) Comment: One commenter argues that the assumption that the 
value of land is immediately lost is erroneous because there is 
imperfect information in markets.
    Our response: Section 2.1 of the economic analysis provides an 
explanation of how real estate markets work, and how current prices are 
the market's best prediction of future land values. It is correct that 
all consumers are not perfectly informed about products in a 
marketplace. In the real estate market, a lack of knowledge can result 
in a higher or lower property value. In the case of a newly regulated 
market, this would mean that buyers would still be willing to pay too 
much for the property.
    The goal of the analysis in Section 2.1 is to predict the market 
equilibrium outcome. Limited information among buyers may cause them to 
pay too much for the property in the short run, but once the market is 
informed, everyone will pay the true (lower) market equilibrium value. 
There are many studies that have empirically shown that, though there 
may be imperfect information among some potential buyers, real estate 
markets respond quickly to changes in land use regulation (Kiel 2005; 
Guttery et al. 2000). The assumptions used in this analysis are based 
on the best available information.
    (4L) Comment: One comment states that the economic analysis 
improperly inflates the lost value of development because including all 
land values as lost development values assumes that these lands are 
certain to be developed, and there is no certainty that the land will 
be developed.
    Our response: Section 2.1 of the economic analysis addresses this 
in its discussion of how real estate prices adjust to expectations 
about future property uses. This analysis does not assume that all 
lands are certain to be developed. The present price per parcel of land 
incorporates the expected value of potential current and future uses of 
that land, regardless of when, or if, the land is ever developed. If 
current and potential uses are taken away, or if the quality of the 
land declines, the price of the land parcel will decrease (Quigley and 
Rosenthal 2005; Kiel and McClain 1995). Even the perception that the 
quality of the land may change can affect real estate values (Kiel and 
McClain 1996). Land that can be developed will command a higher price 
because it could be developed (even if it is never developed), and it 
is that expected value that the analysis considers.
    (4M) Comment: One comment states that the economic analysis fails 
to establish a proper baseline because it does not consider potential 
regulatory changes or changes in market demand. The comment does not 
specify what specific changes are likely other than potential changes 
due to global warming or peaked oil production. A similar comment 
suggests that the assumption that a dolomite mine in Illinois Unit 2 
will close because of critical habitat designation does not consider 
the impact of unknown future events.
    Our response: Section 2.1 of the economic analysis reviews the data 
sources and analytic procedures used to assess the potential value 
losses over the next 20 years. These data are the best data that are 
publicly available and as such provide the basis for the prediction of 
impacts for reasonably foreseeable land uses under expected future 
conditions. While costs attributable to critical habitat may result 
from other factors, we cannot speculate about future events. We must 
use the best information available to us at the time of the analysis.
    (4N) Comment: One comment states that the economic analysis 
estimates of lost property values are incorrect because the analysis 
does not consider changes to the value of properties outside the study 
area. The comment argues that if some parcels of land are removed from 
the market, then other

[[Page 21402]]

parcels of land will increase in value by the amount of the decrease in 
land value lost, so that the net economic effect will be zero change.
    Our response:The potential for land use restrictions to affect 
neighboring properties is a valid concern. If there are no substitute 
parcels available in the vicinity of the parcel to be regulated (no 
other land that could be sold), then the price for land in that 
location will be driven up, and there will be a net gain for 
surrounding landowners, which could offset (fully or partially) the 
loss of value for the critical habitat units. However, if substitute 
parcels of land are plentiful in the vicinity of the critical habitat, 
then the consumer will have many options to choose from, and will not 
have to pay a higher price for substitute parcels, hence there will be 
no increase in surrounding land values (Quigley and Swoboda 2006).
    Section 2.1 of the economic analysis discusses the possibility that 
the amount of land available for development in the vicinity of the 
study area could be very limited. However, the area of land under 
consideration for designation as well as the value of that land 
indicates that there will not be a significant impact on the local real 
estate market. That is, the amount of land that could be removed from 
development is not believed to be enough to increase surrounding land 
values. Results from sampling multiple listing services in Michigan and 
Wisconsin indicate that limiting residential development on vacant 
parcels will not have a substantial impact on the local land markets. 
That is, prices of surrounding parcels are unlikely to change and it is 
unlikely that there will be effects on the community's well-being, 
because there are many substitute parcels for the critical habitat 
units.
    Sampling of Alpena County, Michigan found 146 parcels; the 50 
sampled parcels had an average size of 24.5 ac, and an average asking 
price of approximately $68,000. Sampling of Mackinac County, Michigan 
found 229 parcels; the 50 sampled parcels had an average size of 5.8 
acres, and an average asking price of approximately $90,000. Sampling 
of Presque Isle County, Michigan found 255 parcels; the 50 sampled 
parcels had an average size of 23 ac, and an average asking price of 
approximately $81,000. Sampling of the Door County (Wisconsin) Realtors 
Multiple Listing Service found approximately 550 vacant parcels of 
various sizes; the 50 sampled properties had an average size of 4.15 ac 
and an average asking price of approximately $66,000. This information 
is now included in Section 2.1.
    (4O) Comment: One comment states that the limitation on resource 
extraction values in Illinois Unit 2 would not have had an effect 
because the losses in value would be offset by increases in values to 
competitors. The comment says that the analysis does not consider 
whether other companies will profit if Material Services Corporation 
cannot mine the parcel in critical habitat. The comment also argues 
that the DEA does not consider the fact that there may be lower cost 
companies that would profit more if the limitation were passed.
    Our response: The magnitude of the dolomite deposits in Illinois 
Unit 2 relative to the rest of the Illinois dolomite market is 
discussed in Section 2.2.1 of the DEA. The annual revenue from the 
dolomite mine in Illinois Unit 2 is estimated to be $500,000. As noted 
in the report, the annual extraction of dolomite in Illinois has an 
approximate value of $470 million. Approximate dolomite revenues for 
Will County specifically (the county containing the mine in Illinois 
Unit 2) are $94 million. While losses of $500,000 per year to the 
mining company will be substantial, the expected revenues from this 
single mine are not significant relative to the entire market. That is, 
not allowing the dolomite in Illinois Unit 2 to be mined will not cause 
prices faced by competing companies to change; competitors will make no 
offsetting welfare gains (Just et al. 2004).
    The commenter suggests that other companies may be able to 
compensate for decreased mining activity in Illinois Unit 2 by 
increasing operations at other facilities, and that there will be no 
net loss to society. The commenter is correct that any shortfall due to 
the mine being unable to operate will likely be made up by from other 
places (especially since the magnitude of the mine is small relative to 
the overall market). There will still be, however, the lost resource 
value for the company that is not allowed to mine this specific 
property.
    The comment also contends that another mine may have lower costs, 
and that increased operations at that mine may be more efficient. At 
this time, there are no publicly available data concerning different 
costs structures for dolomite mining companies.
    (4P) Comment: One comment states that the DEA does not consider 
alternative uses for the land in Illinois Unit 2 if the mine is not 
allowed to operate. The comment suggests that there might be wildlife 
viewing values for the property, or that the limitation on the mine 
would make nearby house values increase.
    Our response: The commenter makes a valid point: Alternate land 
uses are not considered in this estimation for this proposed unit. In 
section 2.2.1 of the DEA, the analysis reports the mitigation costs of 
conservation that would be required to offset mining activities as well 
as the value lost if mining is not allowed. If mining is not allowed, 
there may be other uses for the property, but the values of the uses 
will be negligible compared to the lost mining resource value. It is 
unlikely that there could be significant economic benefits from 
preserving this parcel from mining. Visual inspection of Exhibit 1 in 
Appendix F shows that Illinois Unit 2 is located in an industrial 
corridor. In fact, the area proposed for the mine is surrounded by 
previously mined areas and industrial or transportation facilities. 
These location specifics make it unlikely that residential property 
values would be increased if the mine does not operate; there are no 
houses nearby and the effect of the industrial corridor that the mine 
is a part of will have a value-dampening effect. There is not likely to 
be any increase in wildlife viewing values from a critical habitat 
designation, as the designation does not make any private land 
available to the public for wildlife viewing, nor does it increase the 
ability of the public to view wildlife on public lands where such 
viewing would be available even absent the designation.
    (4Q) Comment: One comment states that the economic analysis fails 
to include other alternatives to deep water wells as potential means to 
offset decreases in the water table. This comment argues that water 
conservation measures and storm water conservation regulations should 
be included as alternative water management strategies in the analysis.
    Our response: Section 3.1 of the DEA describes the threat of water 
depletion and Section 3.1.1 discusses residential consumption and the 
methodology that was taken to calculate estimated costs for deep 
aquifer well drilling. The section contends that one potential remedy 
for depletion of groundwater levels (and subsequent habitat impacts) is 
to drill municipal wells into the deep aquifer to meet current and 
future water demands, as discussed by the Service. Other adaptive 
behaviors may be feasible, but there are no publicly available data 
available to model them.
    (4R) Comment: One comment states that the estimation of costs to 
drill deep aquifer wells assumes that these wells would not be drilled 
for population

[[Page 21403]]

increases if critical habitat designation did not occur; and thus their 
inclusion inflates the cost estimates.
    Our response: The argument that deep aquifer wells may be drilled 
regardless of the habitat designation is valid. The analysis does 
assume that new wells will be drilled in response to population growth. 
However, the analysis states that the presence of critical habitat 
could prompt new wells to be drilled into the deep aquifer instead of 
the upper aquifer. The estimated impact due to critical habitat 
designation is the projected difference between the cost of deep and 
upper aquifer wells for future population growth. Section 3.1.1 of the 
DEA discusses residential consumption of water and how population 
growth estimates are used to predict the number of new wells that will 
be needed. It is not known whether any new wells will be drilled, and 
if drilled, whether they will be drilled into the upper or lower 
aquifer (though upper aquifer wells are less expensive). It is for this 
reason that both a low (no deep aquifer well costs) estimate is 
included with a high estimate (which assumes all deep aquifer costs are 
in response to the dragonfly). The range of costs between the low 
(zero) and high estimates spans the potential costs for water use 
mitigation that may occur in these proposed critical habitat units. The 
use of a range of estimates addresses the concerns about the 
uncertainty of whether deep aquifer wells would be drilled or not in 
response to population increases.
    (4S) Comment: One comment states that the inclusion of invasive 
species control costs as coextensive is inappropriate, since other 
species may have been affected.
    Our response: The economic analysis discusses invasive species 
control measures and costs in Section 6.3. Invasive species control was 
listed as a threat to the species and a potential adverse affect to 
critical habitat in the proposed rule. Invasive species control has 
been ongoing in most critical habitat units and will continue 
regardless of the presence of Hine's emerald dragonfly or the 
designation of critical habitat.
    (4T) Comment: One comment addresses the estimation of impacts from 
the Interstate 355 extension in Chapter 2 of the DEA. This comment 
states that ``total costs for I-355-related development activities 
range from a low of $11.8 million to a high of $18 million. This number 
includes opportunity costs to vehicles that have to slow down due to 
the presence of the dragonfly, since the Illinois Department of 
Transportation (IDOT) chose to build the road through dragonfly 
habitat....'' The comment also states that the costs that are discussed 
will occur before the designation takes place. The comment then states 
that the DEA does not consider the possibility that IDOT could have 
decided to not build this road due to the presence of the dragonfly.
    Our response: In Section 2.3.2 of the DEA, past costs are estimated 
to be $1.8 million (undiscounted), as shown in Exhibit 2-7. Future 
costs are estimated to be $2.3 million (undiscounted) as shown in 
Exhibit 2-8. The economic analysis does not address speed limits on 
roads through dragonfly habitat in this section. The costs for the 
interstate extension do not involve any traffic slowing costs, since 
the interstate extension is being built 8 feet higher than it otherwise 
would be built to avoid dragonfly collisions (hence avoiding the need 
for a limited-speed zone); see Section 2.3.2. The costs to build the 
roadway higher are included in the analysis. Opportunity costs from 
lost time due to speed limits to avoid take of dragonflies are 
estimated for other units -- IL 7, WI 4, and WI 5. The costs for the I-
355 extension are in unit IL 4.
    The comment that these costs will be realized before designation is 
partially correct. Exhibit 2-7 displays the costs of mitigation and 
conservation through 2006. The costs in Exhibit 2-8 include costs 
incurred from 2007 through 2026. These costs include costs incurred in 
the current year, since this is an ongoing project, and costs may be 
incurred during the proposal period. Most of the dragonfly-specific 
costs are attributed to a 20 year period (2007-2026).
    The economic analysis does not provide economic estimates for a 
scenario in which the overpass is not built. The overpass construction 
was substantially under way when the proposed rule considering 
designation was published. Since the Illinois Tollway Authority had 
made several conservation and mitigation efforts for the dragonfly, 
these impacts were included in the analysis.
    (4U) Comment: One comment states that the economic analysis fails 
to include all the relevant information concerning travel time lost due 
to speed limitations on passenger trains in the analysis. Specifically, 
the comment states that the analysis does not include time lost for 
riders of METRA commuter trains, nor does it consider the value of 
passenger time lost (as well as additional fuel costs) for deceleration 
in preparation for, and acceleration after, the limited speed zone.
    Our response: The commenter raises some valid concerns. The 
economic estimates (Section 5.1) were based upon the best publicly 
available data at the time. Newly available ridership information for 
METRA (which was initially omitted) and actual ridership information 
for AMTRAK (which had been overestimated by a factor of five by the 
AMTRAK source contacted initially), and adding in the time value lost 
and additional fuel costs due for acceleration and deceleration, 
increases the vehicle slowing costs for Illinois unit 7 from $12.6 
million to $13.7 million (undiscounted). This corresponds to an 
increase in costs from $7.1 million to $7.8 million (discounted at 7 
percent). These cost increases are insufficient to change the rank 
orderings of units by level of impact for the high-end estimates (see 
Exhibit ES-6).
    (4V) Comment: One comment states that the value of increased train 
carbon emissions from the deceleration and acceleration are also not 
quantified for these actions.
    Our response: The commenter is correct; the economic analysis does 
not quantify increased emission levels due to deceleration and 
acceleration. The marginal quantities of emissions are not likely to be 
substantial. In addition, there is no emission trading markets for 
mobile source diesel fuel emissions. In the absence of such a market, 
cost estimates for additional carbon pollution would be speculative.
    (4W) Comment: One comment states that the economic analysis does 
not include the costs in increased traffic congestion from train riders 
switching to commuting by car that a speed limitation on AMTRAK and 
METRA commuter rail trains passing through Illinois Unit 7 would 
generate.
    Our response: The commenter is correct. This comment is concerned 
with the estimation of values in Exhibit 5-3, Section 5.1 of the DEA. 
New calculations based on information obtained during the comment 
period quantified the increased delay for causing the AMTRAK and METRA 
to decelerate from 79 miles per hour (mph) to 15 mph, travel 15 miles 
per hour for one quarter mile, then accelerate back to a speed of 79 
mph.
    The estimated time delays are minimal and thus unlikely to be 
sufficient to cause many travelers to switch to automobile travel. The 
additional time taken for deceleration would be 36 seconds. The 
additional time taken for traveling 15 mph for one quarter mile (mi) 
would be 45 seconds. The increase in travel time for acceleration would 
be 40 seconds. The additional 2 minutes and 1 second of travel time is 
highly unlikely to cause train travelers to switch to travel by 
automobile, especially since the road

[[Page 21404]]

that runs parallel to the track that would have the speed limits will 
be subject to the same speed limit as well. Travel times on the 
parallel roadway will increase by at least 3.25 minutes. These 
estimates, and their derivation, are discussed in Section 5.1.
    The economic literature on mode-split indicates that an increase in 
travel time on a commuter train is unlikely to cause much of a shift to 
car use. Mode-split studies measure how sensitive travelers are to 
changes in the cost of traveling. An increase of 10 percent of travel 
time on a commuter train during peak commuting time will cause a 1-
percent increase in demand for commuting by automobile (Lago and 
McEnroe 1981). The additional delay in unit IL 7 may cause a small 
increase in travel by car. However, the literature indicates that 
commuters who travel by rail are not very sensitive to small increases 
in travel times. The estimated change in demand cited above is 
illustrative of general behavior; there are no publicly available 
models or data for modeling this specific situation.
    (4X) Comment: One comment questions the accuracy of projected cost 
estimates in Exhibit 4-8 relative to the information provided. The 
comment is specifically concerned with the dates of anticipated costs 
from 2011-2014 and from 2007-2026.
    Our response: The costs that the comment is concerned with are 
listed in Exhibit 4-8, Section 4.3 of the DEA. These estimates were 
obtained from documents provided by Midwest Generation concerning costs 
they have incurred and expect to incur for work done on the railroad 
line in Illinois Units 1 and 2. The calculations used to spread costs 
over the periods 2011-2014 and 2007-2026 were not presented in the 
draft economic analysis. These calculations are now included in Exhibit 
4-8.
    Future (long-term) rehabilitation costs from 2011 to 2014 are 
listed in a document submitted by Midwest Generation during the public 
comment period. The document is entitled ``List of Midwest Generation's 
Environmental Activities Associated with the Rail Line and HED 
Commitments.'' The end of the first paragraph of that document 
concludes: ``Long term maintenance items should be implemented in the 
four to seven year range....'' Four years from the first final rule is 
2011 and seven years from the proposed rule is 2014. Accordingly, the 
long-term rehabilitation costs are spread over those years. These are 
the costs estimated to take place from 2011 to 2014.
    (4Y) Comment: One comment states that railroad maintenance and 
culvert maintenance should not be considered threats. The comment 
states, ``The Service contends that this process is maintenance that 
the railroad would have to do regardless of the dragonfly, but 
recognizes that undercutting, combined with the construction of 
approximately 4 new French drains, and regular culvert maintenance may 
be potential options for mitigating the hydraulic pumping problem.''
    Our response: Specific types of railroad maintenance, combined with 
undercutting, are listed in Section 5.2 of the DEA as mitigation 
measures that respond to the specific threat of the hydraulic pumping 
of sediments. As discussed in Chapter 4 of the DEA, maintenance 
activities may also pose threats to critical habitat. A clarifying 
sentence has been added to the referenced paragraph in the DEA: ``While 
regular maintenance may help mitigate the hydraulic pumping problem, 
maintenance activities may still pose a threat to critical habitat. An 
additional clarifying footnote was added following this sentence: 
``There are types and methods of railroad maintenance that may be 
employed without threatening the dragonfly or its habitat; Section 4.3 
addresses the additional costs of performing such dragonfly sensitive 
maintenance.''
    (4Z) Comment: One comment states there is no concession stand in 
unit WI 5.
    Our response: This apparent error occurs in Section 2.2.3. There is 
an interpretive center/gift store located in WI 5. This store is 
referred to as a ``concession'' in local zoning documents. This 
confusion has been clarified in the text.
Issue 5: Site-Specific Issues
    (5) Comment: We received four comments on the July 26, 2006, 
proposal (71 FR 42442) and the April 22, 2009, proposal (74 FR 18341), 
suggesting that we designate multiple areas of unoccupied habitat in 
Michigan, including the Stonington Peninsula, Garden Peninsula, 
Munuscong Bay, Drummond Island, Pointe Aux Chenes River, Wilderness 
State Park, Lennagene Rossman Stratton Memorial, Peter Memorial, 
Mystery Valley and others. Additionally, the commenters suggested we 
designate multiple areas in Michigan where the Hine's emerald dragonfly 
has been observed on site or within 2 miles of a known locality.
    Our response: We did not designate unoccupied habitat listed by the 
commenters because there are no current or historical records 
documenting the presence of the species at these sites. In 2006, the 
Hiawatha National Forest conducted surveys on the Stonington Peninsula 
and did not document the presence of Hine's emerald dragonflies from 
this locality.
    With regard to sites where the Hine's emerald dragonfly has been 
observed or where it was observed within a 2-mi (3.3-km) radius, we 
used the methodology outlined under the section of this rule on 
``Criteria Used to Identify Critical Habitat.'' In drawing the outer 
boundary of a unit, we extended the unit boundary from the dragonfly 
larval habitat up to 100 meters (328 feet) where the primary 
constituent elements are found unless we reached areas that did not 
contain the primary constituent elements before that 100 meters (328 
feet), such as a closed canopy forest, roadway, or another natural or 
human-made break in habitat. This boundary extension is to provide 
foraging areas for the species. A small number of dragonfly 
observations do not fall within a critical habitat unit. For instance, 
a one-time observation of a single foraging Hine's emerald dragonfly 
would not provide enough information to adequately determine the 
location of the core breeding habitat. We believe that there could be 
undiscovered Hine's emerald dragonfly breeding sites in Michigan, but 
using the best scientific data currently available, we have identified 
the six breeding areas in Michigan of which we are aware.
Issue 6: Effects of Critical Habitat Designation
    (6) Comment: One private landowner was concerned that the 
designation of critical habitat may affect current or planned 
activities. Specifically, the commenter was concerned about delays or 
disruptions to future plans to expand or enhance an existing rail line, 
which would require Federal permits.
    Our response: Critical habitat designation does not preclude 
development. Section 7(a)(2) of the Act requires Federal agencies to 
consult with the Service to ensure that actions they fund, authorize, 
permit, or otherwise carry out will not jeopardize the continued 
existence of any listed species or adversely modify designated critical 
habitat. If the Federal action agency determines that a project may 
adversely affect a listed species or designated critical habitat, 
formal consultation is required. There is a 90-day period of time in 
which to consult, and beyond that, another 45-day period of time for 
the Service to prepare a biological opinion. The analysis of whether 
the proposed action would

[[Page 21405]]

likely jeopardize the continued existence of the species or adversely 
modify designated critical habitat is contained in the biological 
opinion. If a jeopardy or adverse modification determination is made, 
the biological opinion must identify any reasonable and prudent 
alternatives that could allow the project to move forward.
Issue 7: Philosophy on Utility of Critical Habitat
    (7A) Comment: Two commenters expressed that they disagree with the 
statement in the proposal that critical habitat designations are driven 
by litigation and courts rather than biology. They argue that while 
many critical habitat designations are the result of litigation, it is 
only to the extent that the Service fails to meet its statutory 
obligation to designate critical habitat concurrently with listing and 
that it is a burden imposed by an unambiguous statutory mandate, not by 
litigation.
    Our response: The section in the proposed rule that contained these 
statements (``The Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act'') has been removed from this 
final rule.
    (7B) Comment: Two commenters suggested that critical habitat 
designation is strongly associated with species recovery and that the 
Service must consider the role of critical habitat in the recovery of 
the species.
    Our response: We agree that we must consider the role of critical 
habitat in the recovery of species. The Ninth Circuit Court's decision 
in Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, 378 F.3d 1059 (9th Cir 2004) (hereinafter Gifford Pinchot) 
requires consideration of the recovery of species when designating 
critical habitat. Thus, under this court ruling, and our implementation 
of Section 7 of the Act, critical habitat designations may provide 
greater benefits to the recovery of a species. Also, we have found that 
critical habitat designations serve to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of the areas designated.
    (7C) Comment: One commenter expressed that the Hawaii example in 
the proposal does not prove that excluding areas from critical habitat 
provides superior conservation benefits to designating critical 
habitat.
    Our response: Each exclusion from critical habitat designation is 
considered on its own merits, after balancing the benefits of 
designation against the benefits of exclusion, and also considering 
whether the exclusion will result in the extinction of the species.
Issue 8: Unoccupied Habitat
    (8) Comment: Two commenters suggested that the Service consider 
designating areas that would contribute to the species' recovery 
through reintroduction, introduction, and augmentation efforts, as 
recommended in the species' recovery plan.
    Our response: Although introductions and reintroductions were 
identified as being potentially important in the 2001 recovery plan, 
the Service acknowledged that additional surveys needed to be completed 
(Service 2001, p. 59). Since the recovery plan was written, additional 
Hine's emerald dragonfly breeding sites were identified in Illinois, 
Michigan, Missouri, and Wisconsin. Other unidentified sites may also 
exist in these States. Therefore, at this time we believe that 
introduction into unoccupied potential habitat, or reintroduction of 
dragonflies into additional historically occupied but currently 
unoccupied habitat, may not be necessary to recover the species. As 
additional research is conducted on the population structure and status 
of the species, the Service will consider the necessity of introduction 
and reintroduction of the Hine's emerald dragonfly.
Issue 9: Mapping
    (9) Comment: Some commenters stated that the maps and descriptions 
of critical habitat units lacked sufficient detail to determine what 
essential features are included, what the surrounding land uses are, 
whether specific properties are included, and whether certain 
structures are included. Furthermore, they state that the maps should 
be provided in geological information system and aerial photography 
formats.
    Our response: The scale of the maps prepared under the parameters 
for publication within the Code of Federal Regulations may not be 
detailed enough to allow landowners to determine whether their property 
is within the designation. Therefore, when the final rule is published, 
we will provide more detailed maps on our web site to better inform the 
public. We also provided contact information for anyone seeking 
assistance with the proposed critical habitat. Therefore, we believe we 
made every effort to provide avenues for interested parties to obtain 
information concerning our proposal and supporting information.
Issue 10: General Comments and Other Relevant Issues
    (10A) Comment: One commenter stated that critical habitat 
designation is a ``waste of taxpayers' time and money.''
    Our response: The designation of critical habitat for federally 
listed species is a requirement under section 4(a)(3)(A) of the Act.
    (10B) Comment: One commenter expressed that the presence of habitat 
should have stopped the Interstate 355 (I-355) construction project. 
The commenter added that projects like the I-355 expansion project show 
that designation of critical habitat is justified.
    Our response: If a species is listed or critical habitat is 
designated, section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us. As 
a result of this consultation, compliance with the requirements of 
section 7(a)(2) will be documented through the Service's issuance of: 
(1) A concurrence letter for Federal actions that may affect, but are 
not likely to adversely affect, listed species or critical habitat; or 
(2) a biological opinion for Federal actions that may affect, and are 
likely to adversely affect, listed species or critical habitat.
    The I-355 project required a permit from the Army Corp of 
Engineers, which established a Federal nexus, and was addressed under a 
formal consultation, under section 7(a)(2) of the Act. As part of that 
formal consultation, conservation measures were agreed to that require 
the project proponent to fund actions to conserve the Hine's emerald 
dragonfly and its habitat. The Service concluded that the I-355 project 
would not jeopardize the continued existence of the Hine's emerald 
dragonfly.
    (10C) Comment: One commenter stated that the designation of 
critical habitat should recognize the importance of protecting genetic 
diversity through habitat conservation. Specifically, the Hine's 
emerald dragonfly population in Illinois may contain greater genetic 
diversity than the other populations. Thus, the importance of 
protecting habitats in this State is heightened.
    Our response: Genetic analysis is identified as a task in the 
Hine's Emerald Dragonfly (Somatochlora hineana Williamson) Recovery 
Plan (Service 2001, p.54). Genetic analyses have been initiated to 
better understand the population structure of the species, but the 
analyses have not been completed. The designation of critical habitat 
was based on the best available information. All currently occupied

[[Page 21406]]

areas in Illinois are included in the critical habitat designation for 
this and other reasons.
    (10D) Comment: Two commenters stated that the Service must address 
Executive Order 13211 and prepare a Statement of Energy Effects, if 
applicable. Also, the Service must offer an opportunity to comment on 
any Statement of Energy Effects before making a final determination on 
the designation.
    Our response: Executive Order 13211 was addressed in the Economic 
Analysis that was announced in the Notice of Availability published on 
March 20, 2007, and is addressed again in this final rule.
    (10E) Comment: One commenter is concerned that the proposal infers 
that Midwest Generation's train traffic is contributing to mortality of 
Hine's emerald dragonflies and that rail line operations are increasing 
sediment deposition.
    Our response: Vehicular impacts to Hine's emerald dragonflies, 
including collisions resulting in mortality, have been documented in 
areas within the species' range. However, since Midwest Generation 
limits the speed of its trains to 4 to 6 mph in Illinois Units 1 and 2, 
we have determined that train traffic in these units is not resulting 
in direct mortality of Hine's emerald dragonflies.
    We believe that sediment being released from the rail line ballast 
in Illinois Units 1 and 2 may be impacting Hine's emerald dragonfly 
larval habitat. This potential threat is currently being assessed and 
will be addressed in the Habitat Conservation Plan under development 
for these units.
    (10F) Comment: One commenter expressed that human-made structures 
should be a part of critical habitat.
    Our response: We only include areas that contain at least one of 
the physical and biological features essential to the conservation of 
the species. Human-made structures are not essential features of the 
species' habitat.

Comments from States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his/her failure to adopt 
regulation consistent with the agency's comments or petition. Comments 
were received from the Illinois Department of Natural Resources 
(ILDNR), MDC, Michigan Department of Natural Resources (MIDNR) and 
Michigan Department of Environmental Quality (MIDEQ). Comments 
supporting the proposed rule were received from the ILDNR and MDC. 
Additional comments received from States regarding the proposal to 
designate critical habitat for the Hine's emerald dragonfly are 
addressed below.
    (1) State Comment: The Michigan Department of Natural Resources 
commented that Michigan Units 3, 4, and 5 are partially owned by their 
agency. As these areas are owned by the State they are afforded 
protection under land management policies.
    Our response: In general, we considered excluding State lands from 
the final critical habitat designation. Mud Lake-Snake Island Fens, a 
portion of Michigan Unit 3, is owned by MDNR and is a designated 
natural area. Much of Michigan Unit 4 is part of Thompson's Harbor 
State Park. A portion of Michigan Unit 5, approximately 65 acres, is 
State forest land and managed under Forest Certification Work 
Instructions. State ownership and the various designations bestowed 
upon these lands may afford some nonspecific protection for Hine's 
emerald dragonfly and its habitat. However, we only excluded State that 
had management plans identifying necessary management and protection 
efforts for Hine's emerald dragonfly or the primary constituent 
elements. Therefore, Michigan Units 3, 4, and 5 are included in the 
final critical habitat designation.
    (2) State Comment: The Michigan Department of Environmental Quality 
(MDEQ) emphasized that the State of Michigan has assumed the Federal 
Clean Water Act section 404 program that provides wetland fill permits. 
The MDEQ claims that a State, not a Federal, permit is issued; thus, 
section 7 consultation is not required. However, when reviewing a 
permit application that could affect a federally listed species or 
critical habitat, the MDEQ coordinates with the US Environmental 
Protection Agency (USEPA) and the Service. The MDEQ may incorporate 
appropriate measures into a permit, thereby avoiding or minimizing 
impacts to listed species and addressing Federal concerns. The MDEQ 
cannot issue a permit over the objection of the USEPA Regional 
Administrator.
    Our response: We appreciate MDEQ's dedication to and cooperation in 
conserving federally listed species. We agree that the approach 
outlined above is the process we currently use in reviewing section 404 
permit applications under the State-assumed program in Michigan.

Summary of Changes from Proposed Rule

    The area contained in Wisconsin Unit 1 has been amended. The map 
and the description of the area for Wisconsin Unit 1 were accurate in 
the proposed rule; however, the acreage for the unit was incorrect. The 
error was due to using information from an earlier, larger draft of the 
map for this unit. Therefore, the acreage has been corrected from 503 
ac (204 ha) in the proposed rule to 157 ac (64 ha) in the final rule.
    As discussed in the July 26, 2006, proposal (71 FR 42442), 
additional sites in Wisconsin were evaluated to determine if they 
contain the features that are essential for the conservation of the 
Hine's emerald dragonfly. Based on our evaluation of research results 
from 2006 fieldwork, we have determined that Kellner's Fen in Door 
County, Wisconsin, contains the features that are essential to the 
conservation of Hine's emerald dragonfly. Adult Hine's emerald 
dragonflies have been observed in this area and breeding habitat exists 
in this unit, although breeding has not yet been confirmed. We 
announced the proposed addition of this unit in the Federal Register on 
March 20, 2007, and are adding this unit to the critical habitat 
designation. The additional critical habitat unit, Wisconsin Unit 11, 
is described in the unit descriptions below.
    We are excluding Missouri Units 2b, 3, 6, 9, 10, 11b, 12-20, and 
22, from the final designation of critical habitat because we believe 
that the benefits of excluding these specific areas from the 
designation outweigh the benefits of including the specific areas. We 
believe that the exclusion of these areas from the final designation of 
critical habitat will not result in the extinction of the Hine's 
emerald dragonfly. These exclusions are discussed in more detail in the 
Exclusions section below.
    We are designating an additional unit on the Mark Twain National 
Forest that was not known to be occupied by the Hine's emerald 
dragonfly at the time of the September 5, 2007, final rule, but has 
since been discovered to be occupied. We included this unit in our 
April 22, 2009, notice reopening the comment period on the proposed 
designation. Based on our evaluation of research results from recent 
fieldwork, we have determined that this newly discovered site on the 
Mark Twain National Forest in Washington County, Missouri, is essential 
to the conservation of Hine's emerald dragonfly.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features

[[Page 21407]]

    (a) essential to the conservation of the species and
    (b) which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management, such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot otherwise be 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing activities that are likely to result in the 
destruction or adverse modification of critical habitat. Section 
7(a)(2) requires consultation on Federal actions that may affect 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply, but even in the event of a destruction 
or adverse modification finding, the Federal action agency's and the 
applicant's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain physical and biological features that are essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas supporting the 
essential physical or biological features that provide essential life 
cycle needs of the species; that is, areas on which are found the 
primary constituent elements (PCEs) laid out in the appropriate 
quantity and spatial arrangement essential to the conservation of the 
species. Under the Act and regulations at 50 CFR 424.12, we can 
designate critical habitat in areas outside the geographical area 
occupied by the species at the time it is listed only when we determine 
that those areas are essential for the conservation of the species and 
that designation limited to the species' present range would be 
inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Areas that support occurrences, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions we and other Federal agencies implement under section 7(a)(1) 
of the Act. They are also subject to the regulatory protections 
afforded by the section 7(a)(2) jeopardy standard, as determined on the 
basis of the best available scientific information at the time of the 
agency action. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available to 
these planning efforts calls for a different outcome.
Climate Change
    Climate change will be a particular challenge for biodiversity 
because the interaction of additional stressors associated with climate 
change and current stressors may push species beyond their ability to 
survive (Lovejoy 2005, pp325-326). The synergistic implications of 
climate change and habitat fragmentation are the most threatening facet 
of climate change for biodiversity (Hannah et al. 2005, p4). In 
addition, local extinction and range shifts are also being documented 
for some species including dragonflies. In a study of all 37 species of 
resident odonates (dragonflies and damselflies) in the United Kingdom, 
all but two species increased in range size and all but three species 
shifted northwards at their range margin in the last 40 years (Hickling 
et al. 2005, p. 504). While there is uncertainty about the exact nature 
and severity of climate change related impacts anticipated within the 
Hine's emerald dragonfly's range, several scientific studies project 
that there will be increased duration and intensity of heat waves in 
summer; higher levels of humidity and evaporation; changing patterns of 
precipitation with fewer rain events of greater intensity; increased 
frequency and more-intense dry spells; and more flooding from heavy 
rains (Easterling and Karl 2000, pp. 168-169, 172, 176; Hall and Stuntz 
2007, pp. 5-7; IPCC 2007, pp. 30, 46). These climatic changes may 
impact the Hine's emerald dragonfly's habitat in a variety of direct 
and indirect ways including: Changes in hydrology, loss of suitable 
habitat; loss of inter-specific relationships with crayfish; and 
increased threats from invasive species.

Physical and Biological Features

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

[[Page 21408]]

propose as revised critical habitat, we consider those physical and 
biological features that are essential to the conservation of the 
species and which may require special management considerations or 
protection. We consider the essential physical and biological features 
to be the PCEs laid out in the appropriate quantity and spatial 
arrangement essential to the conservation of the species. The PCEs 
include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the PCEs required for the Hine's emerald dragonfly from 
its biological needs. The areas included in our critical habitat 
designation for the species contain the essential features to fulfill 
the species life-history requirements. The PCEs and the resulting 
physical and biological features essential to the conservation of the 
Hine's emerald dragonfly are derived from studies of this species' 
habitat, ecology, and life history as described in the proposed 
critical habitat designation published in the Federal Register on July 
26, 2006 (71 FR 42442).

Primary Constituent Elements for the Hine's Emerald Dragonfly

    Under the Act and its implementing regulations, when considering 
the designation of critical habitat, we must focus on the PCEs within 
the geographical area occupied by the Hine's emerald dragonfly at the 
time of listing that are essential to the conservation of the species 
and may require special management considerations or protection. The 
essential physical and biological features are those PCEs laid out in 
an appropriate quantity and spatial arrangement determined to be 
essential to the conservation of the species. All areas designated as 
critical habitat for the Hine's emerald dragonfly are currently 
occupied, are within the geographical area occupied by the species at 
the time of listing, and contain sufficient PCEs to support at least 
one life- history function.
    Based on our current knowledge of the life history, biology, and 
ecology of the Hine's emerald dragonfly, and the requirements of the 
habitat to sustain the life-history traits of the species, we 
determined that the PCEs specific to the Hine's emerald dragonfly are:
    (1) For egg deposition and larval growth and development:
    (a) Organic soils (histosols, or with organic surface horizon) 
overlying calcareous substrate (predominantly dolomite and limestone 
bedrock);
    (b) Calcareous water from intermittent seeps and springs and 
associated shallow, small, slow flowing streamlet channels, rivulets, 
and/or sheet flow within fens;
    (c) Emergent herbaceous and woody vegetation for emergence 
facilitation and refugia;
    (d) Occupied burrows maintained by crayfish for refugia; and
    (e) Prey base of aquatic macroinvertebrates, including mayflies, 
aquatic isopods, caddisflies, midge larvae, and aquatic worms.
    (2) For adult foraging; reproduction; dispersal; and refugia 
necessary for roosting, resting, refuge for adult females to escape 
from male harassment, and predator avoidance (especially during the 
vulnerable teneral stage):
    (a) Natural plant communities near the breeding/larval habitat 
which may include fen, marsh, sedge meadow, dolomite prairie, and the 
fringe (up to 328 ft (100m)) of bordering shrubby and forested areas 
with open corridors for movement and dispersal; and
    (b) Prey base of small flying insect species (e.g., dipterans).
    This critical habitat designation is designed for the conservation 
of those areas containing the physical and biological features 
necessary to support the species' life-history traits. Each of the 
areas designated in this rule contain sufficient PCEs to provide for 
one or more of the life history functions of the Hine's emerald 
dragonfly.

Special Management Considerations or Protections

    When designating critical habitat within the geographical area 
occupied by the species at the time of listing, we assess whether the 
physical and biological features essential to the conservation of the 
species may require special management considerations or protection. In 
all units, special management considerations or protection of the 
essential features may be required to provide for the growth, 
reproduction, and maintenance of the habitat on which the Hine's 
emerald dragonfly depends.
    The lands proposed as critical habitat represent our best 
assessment of the habitat that meets the definition of critical habitat 
for the Hine's emerald dragonfly at this time. The essential physical 
or biological features within the areas proposed as critical habitat 
may require some level of management to address current and future 
threats to the Hine's emerald dragonfly, including the direct and 
indirect effects of habitat loss and degradation from urban 
development; the introduction of nonnative invasive plant species; and 
recreational activities.
    Nonnative invasive plant species and unauthorized recreational 
activities (for example, all-terrain vehicles or horseback riding) may 
alter the vegetation composition or physical structure identified in 
the PCEs to an extent that the area does not support breeding habitat 
or refuge for Hine's emerald dragonflies. Additionally, invasive 
species and unauthorized recreational activities may alter hydrology 
and alter conditions so that the habitat is unsuitable for crayfish 
burrows that provide essential wintering refugia for Hine's emerald 
dragonflies.
    In summary, we find that the areas we are designating as critical 
habitat contain the features essential to the conservation of the 
Hine's emerald dragonfly, and that these features may require special 
management considerations or protection. Special management 
considerations or protection may be required to eliminate, or reduce to 
negligible level, the threats affecting each unit and to preserve and 
maintain the essential features that the critical habitat units provide 
to the Hine's emerald dragonfly. Additional discussions of threats 
facing individual sites are provided in the individual unit 
descriptions.
    The designation of critical habitat does not imply that lands 
outside of critical habitat may not play an important role in the 
conservation of the Hine's emerald dragonfly. In the future, and with 
changed circumstances, these lands may become essential to the 
conservation of the Hine's emerald dragonfly. Activities with a Federal 
nexus that may affect areas outside of critical habitat, such as 
development, agricultural activities, and road construction, are still 
subject to review under section 7 of the Act if they may affect the 
Hine's emerald dragonfly, because Federal agencies must consider both 
effects to the dragonfly and effects to critical habitat independently. 
The take prohibitions of section 9 of the Act, applicable to the Hine's 
emerald dragonfly under 50 CFR 17.71, also continue to apply both 
inside and outside of designated critical habitat.

[[Page 21409]]

Criteria Used To Identify Critical Habitat

    We are designating critical habitat in areas we determined were 
occupied at the time of listing, and that contain sufficient PCEs to 
support life history functions essential to the conservation of the 
Hine's emerald dragonfly. Lands are designated based on sufficient PCEs 
being present to support the life processes of the species. Land 
designated as critical habitat for this species contain all PCEs and 
support multiple life processes. We are also designating areas that 
were not occupied at the time of listing, but which were subsequently 
identified as being occupied, and which we have determined to be 
essential to the conservation of the Hine's emerald dragonfly.
    To identify features that are essential to the conservation of the 
Hine's emerald dragonfly and areas essential to the conservation of the 
species, we considered the natural history of the species and the 
science behind the conservation of the species as presented in 
literature summarized in the Hine's Emerald Dragonfly (Somatochlora 
hineana Williamson) Recovery Plan (Service 2001).
    We began our analysis of areas with features that are essential to 
the conservation of the Hine's emerald dragonfly by identifying 
currently occupied breeding habitat. We developed a list of what 
constitutes occupied breeding habitat with the following criteria: (a) 
Adults and larvae documented; (b) Larvae, exuviae (skin that remains 
after molt), teneral (newly emerged) adults, ovipositing females, and/
or patrolling males documented; or (c) Multiple adults sighted and 
breeding conditions present. We determined occupied breeding habitat 
through a literature review of data in reports submitted during section 
7 consultations and as a requirement from section 10(a)(1)(B) 
incidental take permits or section 10(a)(1)(A) recovery permits; 
published peer-reviewed articles; academic theses; and agency reports. 
We then determined which areas were occupied at the time of listing.
    After identifying the core occupied breeding habitat, our second 
step was to identify contiguous habitat containing one or more of the 
PCEs within 2.5 mi (4.1 kilometers (km)) of the outer boundary of the 
core area (Mierzwa et al. 1995, pp.17-19; Cashatt and Vogt 1996, pp. 
23-24). This distance, the average adult dispersal distance measured in 
one study, was selected as an initial filter for determining the outer 
limit of unit boundaries in order to ensure that the dragonflies would 
have adequate foraging and roosting habitat, corridors among patches of 
habitat, and the ability to disperse among subpopulations. However, 
based on factors discussed below, unit boundaries were significantly 
reduced in most cases based on the contiguous extent of PCEs and the 
presence of natural or human-made barriers. When assessing wetland 
complexes in Wisconsin and Michigan we determined that features that 
fulfill all of the Hine's emerald dragonfly's life history requirements 
are often within 1 mi (1.6 km) of the core breeding habitat; therefore, 
the outer boundary of those units is within 1 mi (1.6 km) of the core 
breeding habitat.
    Areas not documented to be occupied at the time of listing but that 
are currently occupied are considered essential to the conservation of 
the species due to the limited numbers and small sizes of some extant 
Hine's emerald dragonfly populations. Recovery criteria established in 
the recovery plan for the species (Service 2001, pp. 31-32) call for a 
minimum of three populations, each containing at least three 
subpopulations, in each of two recovery units. Within each 
subpopulation there should be at least two breeding areas, each fed by 
separate seeps and springs. Management and protection of all known 
occupied areas are necessary to meet these goals.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as buildings, paved areas, and 
other structures and features that lack the PCEs for the species. The 
scale of the maps we have prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
all such developed areas. Any such structures and the land under them 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule are excluded from this rule by text and are not 
designated as critical habitat. Therefore, Federal actions limited to 
these areas would not trigger section 7 consultation under the Act, 
unless they affect the species or PCEs in critical habitat.
    Units were identified based on sufficient PCEs being present to 
support Hine's emerald dragonfly life processes. Designated units 
contain all PCEs and support multiple life processes. Areas lacking 
documented evidence of breeding based on current knowledge were not 
considered for critical habitat inclusion because such areas are not 
deemed essential to the conservation of the species.
    A brief discussion of each area designated as critical habitat is 
provided in the unit descriptions below. Additional detailed 
documentation concerning the essential nature of these areas is 
contained in our supporting record for this rulemaking.

Critical Habitat Designation

    We are designating 37 units as critical habitat for the Hine's 
emerald dragonfly. The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat for the Hine's emerald dragonfly. These 
areas constitute our best assessment of areas determined to be within 
the geographical area occupied at the time of listing that contain the 
physical and biological features essential to the conservation of the 
Hine's emerald dragonfly that may require special management, and those 
additional areas not occupied at the time of listing but that have been 
determined to be essential to the conservation of the Hine's emerald 
dragonfly. Management and protection of all the areas is necessary to 
achieve the conservation biology principles of representation, 
resiliency, and redundancy (Shaffer and Stein 2000) as represented in 
the recovery criteria established in the recovery plan for the species. 
Recovery criteria established in the recovery plan for the species 
(Service 2001, pp. 31-32) call for a minimum of three populations, each 
containing at least three subpopulations, in each of two recovery 
units. Within each subpopulation there should be at least two breeding 
areas, each fed by separate seeps and springs. Management and 
protection of all known occupied areas are necessary to meet these 
goals.
    These units, which generally correspond to the geographic area of 
the units delineated in the 2007 designation, with the addition of 
units on Forest Service lands, replace the current critical habitat 
designation for the Hine's emerald dragonfly in 50 CFR 17.96(a).
    Table 1 identifies the approximate area of each designated critical 
habitat unit by land ownership. Table 2 identifies areas that meet the 
definition of critical habitat but were excluded from final critical 
habitat based on their species-specific management plans or 
partnerships, and the determination the benefits to the species of 
exclusion from critical habitat outweighs the benefits of designating 
critical habitat in those units.

[[Page 21410]]



                  TABLE 1. Critical Habitat units designated for the Hine's emerald dragonfly.
----------------------------------------------------------------------------------------------------------------
                                                                            Local and private    Total  (acres/
                Unit                     Federal land        State land       land  (acres/        hectares)
                                       (acres/hectares)   (acres/hectares)      hectares)          designated
----------------------------------------------------------------------------------------------------------------
Illinois Unit 1, Will County                                                          419/170            419/170
----------------------------------------------------------------------------------------------------------------
Illinois Unit 2, Will County                                                          439/178            439/178
----------------------------------------------------------------------------------------------------------------
Illinois Unit 3, Will County                                                          337/136            337/136
----------------------------------------------------------------------------------------------------------------
Illinois Unit 4, Will and Cook                                                        607/246            607/246
 Counties
----------------------------------------------------------------------------------------------------------------
Illinois Unit 5, DuPage County                                                        326/132            326/132
----------------------------------------------------------------------------------------------------------------
Illinois Unit 6, Cook County                                                          387/157            387/157
----------------------------------------------------------------------------------------------------------------
Illinois Unit 7, Will County                                        130/53            350/142            480/194
----------------------------------------------------------------------------------------------------------------
Michigan Unit 1, Mackinac County            9,452/3,825                                              9,452/3,825
----------------------------------------------------------------------------------------------------------------
Michigan Unit 2, Mackinac County            3,476/1,421                                 35/14        3,511/1,421
----------------------------------------------------------------------------------------------------------------
Michigan Unit 3, Mackinac County                                      23/9              27/11              50/20
----------------------------------------------------------------------------------------------------------------
Michigan Unit 4, Presque Isle County                               875/354              84/34            959/388
----------------------------------------------------------------------------------------------------------------
Michigan Unit 5, Alpena County                                       65/26              91/37             156/63
----------------------------------------------------------------------------------------------------------------
Michigan Unit 6, Alpena County                                                         220/89             220/89
----------------------------------------------------------------------------------------------------------------
Missouri Unit 1, Crawford County                  90/36                                                    90/36
----------------------------------------------------------------------------------------------------------------
Missouri Unit 2a, Dent County                      15/6                                                     15/6
----------------------------------------------------------------------------------------------------------------
Missouri Unit 4, Dent County                       14/6                                                     14/6
----------------------------------------------------------------------------------------------------------------
Missouri Unit 5, Iron County                      50/20                                                    50/20
----------------------------------------------------------------------------------------------------------------
Missouri Unit 7, Phelps County                    33/13                                                    33/13
----------------------------------------------------------------------------------------------------------------
Missouri Unit 8, Reynolds County                    4/2                                                      4/2
----------------------------------------------------------------------------------------------------------------
Missouri Unit 11a, Reynolds County                 22/9                                                     22/9
----------------------------------------------------------------------------------------------------------------
Missouri Unit 21, Ripley County                     6/2                                                      6/2
----------------------------------------------------------------------------------------------------------------
Missouri Units 23 and 24 Washington               75/31                                                    75/31
 County
----------------------------------------------------------------------------------------------------------------
Missouri Unit 25, Washington County               33/13                                                    33/13
----------------------------------------------------------------------------------------------------------------
Missouri Unit 26, Wayne County                      5/2                                                      5/2
----------------------------------------------------------------------------------------------------------------
Missouri Unit 27, Crawford County               0.8/0.3                                                  0.8/0.3
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 1, Door County                                        42/17             115/47             157/64
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 2, Door County                                        32/13            782/316            814/329
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 3, Door County                                                           66/27              66/27
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 4, Door County                                                         407/165            407/165
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 5, Door County                                      816/330           2277/922        3,093/1,252
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 6, Door County                                       200/81              30/12             230/93
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 7, Door County                                                         352/142            352/142
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 8, Door County                                                           70/28              70/28
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 9, Door County                                      684/277            509/206          1,193/483
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 10, Ozaukee County                                 1512/612            800/324          2,312/936
----------------------------------------------------------------------------------------------------------------
Wisconsin Unit 11, Door County                                                         147/59             147/59
----------------------------------------------------------------------------------------------------------------

[[Page 21411]]

 
Total                                  13,275.8/5,372.5        4,379/1,772        8,877/3,578  26,531.8/10,737.1
----------------------------------------------------------------------------------------------------------------


 Table 2. Areas determined to meet the definition of critical habitat for the Hine's emerald dragonfly that are
                                 excluded from the critical habitat designation.
----------------------------------------------------------------------------------------------------------------
                                                                  Area excluded
                                                Definitional        from final
               Geographic Area                 areas (acres/       designation                Reason*
                                                 hectares)       (acres/hectares)
----------------------------------------------------------------------------------------------------------------
Missouri Unit 2b, Dent County                             19/8                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 3, Dent County                              18/7                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 6, Morgan County                            22/9                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Units 9 and 10, Reynolds County               329/133                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 11b, Reynolds County                       91/37                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 12, Reynolds County                        50/20                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 13, Reynolds County                        30/12                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 14, Reynolds County                         14/5                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 15, Reynolds County                         11/4                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 16, Reynolds County                          4/2                All  1
----------------------------------------------------------------------------------------------------------------
Missouri Units 17 and 18, Ripley County                 224/91                All  1, 2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Units 19 and 20, Ripley County                 115/47                All  2, 3
----------------------------------------------------------------------------------------------------------------
Missouri Unit 22, Shannon County                         32/13                All  1
----------------------------------------------------------------------------------------------------------------
Total                                                  959/388            959/388  .............................
----------------------------------------------------------------------------------------------------------------
*1= species specific management plan in place; 2= potential loss of partnership with private land owner; 3=
  existing strong working relationship between MDC and private land owners.

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

Illinois Unit 1 --Will County, Illinois

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

Illinois Unit 2 --Will County, Illinois

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

[[Page 21412]]

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

Illinois Unit 3 --Will County, Illinois

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

Illinois Unit 4 --Will and Cook Counties, Illinois

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

Illinois Unit 5--DuPage County, Illinois

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

Illinois Unit 6-- Cook County, Illinois

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

Illinois Unit 7 --Will County, Illinois

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

[[Page 21413]]

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

Michigan Unit 1--Mackinac County, Michigan

    Michigan Unit 1 contains 9,452 ac (3,825 ha) in Mackinac County in 
the Upper Peninsula of Michigan. This area was not known to be occupied 
at the time of listing. The unit contains at least four breeding areas 
for Hine's emerald dragonfly, with female oviposition or male 
territorial patrols observed at all breeding sites. Adults have also 
been observed foraging at multiple locations within this unit. The unit 
contains a mixture of fen, forested wetland, forested dune and swale, 
and upland communities that are important for Hine's emerald dragonfly 
breeding and foraging. The habitat is mainly spring-fed rich cedar 
swamp or northern fen. The breeding areas are open with little woody 
vegetation or are sparsely vegetated with northern white cedar (Thuja 
occidentalis). Small shallow pools and seeps are common. Crayfish 
burrows are found in breeding areas. Corridors between the breeding 
areas make it likely that adult dragonflies could travel or forage 
between the breeding sites. The majority of this unit is owned by the 
Hiawatha National Forest. Known threats to the PCEs in this unit that 
may require special management include nonnative species invasion, 
woody encroachment, off-road vehicle use, logging, and utility and road 
right-of-way maintenance. Small portions of the unit are owned by the 
State of Michigan and private individuals. This unit is essential to 
the conservation of the species because it provides for the redundancy 
and resilience of populations in this portion of the species' range, 
where habitat is under threat from multiple factors.

Michigan Unit 2--Mackinac County, Michigan

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

Michigan Unit 3--Mackinac County, Michigan

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

Michigan Unit 4--Presque Isle County, Michigan

    Michigan Unit 4 consists of 959 ac (388 ha) in Presque Isle County 
in the northern lower peninsula of Michigan. This area was not known to 
be occupied at the time of listing but is currently occupied. The unit 
contains one breeding area for Hine's Emerald dragonfly, with female 
oviposition and adults observed in more than one year. The unit 
contains a fen with seeps and crayfish burrows present. The fen has 
stunted, sparse white cedar and marl flats dominated by beaked spike 
rush (Eleocharis rostellata). The threats to Hine's emerald dragonflies 
in this unit are unknown. The majority of this unit is a State park 
owned by the MIDNR, the remainder of the unit is privately owned. This 
unit is essential to the conservation of the species because it 
provides habitat essential to accommodate populations of the species to 
meet the conservation principles of redundancy and resiliency 
throughout the species' range.

Michigan Unit 5-- Alpena County, Michigan

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

[[Page 21414]]

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

Michigan Unit 6--Alpena County, Michigan

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

Missouri Unit 1--Crawford County, Missouri

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

Missouri Unit 2a--Dent County, Missouri

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

Missouri Unit 4--Dent County, Missouri

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

Missouri Unit 5--Iron County, Missouri

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

Missouri Unit 7--Phelps County, Missouri

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

Missouri Unit 8--Reynolds County, Missouri

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

[[Page 21415]]

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

Missouri Unit 11a--Reynolds County, Missouri

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

Missouri Unit 21--Ripley County, Missouri

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

Missouri Units 23 and 24--Washington County, Missouri

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

Missouri Unit 25--Washington County, Missouri

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

Missouri Unit 26--Wayne County, Missouri

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

Missouri Unit 27--Crawford County, Missouri

    Missouri Unit 27 is owned and managed by the U.S. Forest Service 
and is approximately 3.3 miles (5.2 kilometers) west and southwest of 
Brazil , Missouri, or about 0.3 mile (0.4 kilometer) southeast of 
Center Post Church in Crawford County, Missouri. The unit consists of 
less than 1 ac (0.8 ac (0.3 ha)). This unit was not known to be 
occupied at the time of listing. Adult Hine's emerald dragonflies have 
been observed at the site and successful breeding was confirmed (Vogt 
2008, p. 10). Surface water consists primarily of seepage pools and 
small rivulets. Parts of the fen include an open field with scattered 
shrubs and eastern red cedar (Juniperus virginiana) that is likely used 
as a foraging area by adults. Known threats to the PCEs that may 
require special management or protections include invasive plant 
species, feral hogs, all-terrain vehicles, and equestrian use. This 
unit is essential to the conservation of the species because it 
provides for the redundancy and resilience of populations in this 
portion of the species' range, where habitat is under threat from 
multiple factors.

[[Page 21416]]

Wisconsin Unit 1--Door County, Wisconsin

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

Wisconsin Unit 2--Door County, Wisconsin

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

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

    Wisconsin Units 3 through 7 are located in Door County, Wisconsin 
and comprise the following areas: Unit 3 consists of 66 ac (27 ha); 
Unit 4 consists of 407 ac (165 ha); Unit 5 consists of 3,093 ac (1,252 
ha); Unit 6 consists of 230 ac (93 ha); and Unit 7 consists of 352 ac 
(142 ha). Units 3, 5, 6, and 7 were occupied at the time of listing. 
Unit 4 was not known to be occupied at the time of listing but is 
currently occupied. All of the units are within 2.5 mi (4 km) of at 
least one other unit, making exchange of dispersing adults likely among 
units. Adult numbers recorded from these units varies. Generally fewer 
than eight adults have been observed at Units 4, 6, and 7 during any 
one season. A study by Kirk and Vogt (1995, pp. 13-15) reported a total 
adult population in the thousands in Units 3 and 5. Male and female 
adults have been observed in all the units. Adult dragonfly swarms 
commonly occur in Unit 5. Swarms ranging in size from 16 to 275 
dragonflies and composed predominantly of Hine's emerald dragonflies 
were recorded from a total of 20 sites in and near Units 5 and 6 during 
2001 and 2002 (Zuehls 2003, pp. iii, 19, 21, and 43). In addition, the 
following behaviors and life stages of Hine's emerald dragonflies have 
been recorded from the various units: Unit 3--mating behavior, male 
patrolling behavior, crayfish burrows, exuviae, and female 
ovipositioning (egg-laying); Unit 4--larvae and exuviae; Unit 5-- 
teneral adults, mating behavior, male patrolling, larvae, female 
ovipositioning (egg-laying), and crayfish burrows; and Unit 6--mating 
behavior, evidence of ovipositioning, and crayfish burrows.
    Unit 5 contains two larval areas, while Units 3, 4, 5, 6, and 7 
each contains one larval area. Units 3 through 7 all include adult 
habitat, which varies from unit to unit but generally includes boreal 
rich fen, northern wet-mesic forest (including white cedar wetlands), 
upland forest, shrub-scrub wetlands, emergent aquatic marsh, and 
northern sedge meadow. Known threats to the PCEs that may require 
special management include loss of habitat due to residential and 
commercial development, ecological succession, invasive plants, utility 
and road construction and maintenance, alteration of the hydrology of 
wetlands (for example, via quarrying or beaver impoundments), 
contamination of the surface and ground water (for example, via 
pesticide use at nearby apple/cherry orchards (Unit 7)), agricultural 
practices, and logging. The majority of the land in the unit is 
conservation land in public and private ownership; the remainder of the 
land is privately owned. Forest areas with 100 percent closed canopy 
that occur greater than 328 ft (100 m) from the open forest edge of the 
unit but that are too small for us to map out are not considered 
critical habitat. Unit 4 is essential to the conservation of the 
species because it provides habitat essential to accommodate 
populations of the species to meet the conservation principles of 
redundancy and resiliency throughout the species' range.

Wisconsin Unit--8 Door County, Wisconsin

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

Wisconsin Unit--9 Door County, Wisconsin

    Wisconsin Unit 9 consists of 1,193 ac (483 ha) in Door County, 
Wisconsin associated with Keyes Creek. This unit was not known to be 
occupied at the time of listing but is currently occupied. Numerous 
male and female adults have been seen in this unit; ovipositing females 
have been observed. Crayfish burrows are present. The unit consists of 
larval and adult habitat with a mix of upland and lowland forest, 
scrub-shrub wetlands, and emergent marsh. Known threats to the PCEs 
that may require special management or protections are loss and 
degradation of habitat due to development, groundwater depletion or 
alteration, surface and groundwater contamination, alteration of the 
hydrology of the wetlands (for example, via stream impoundment, road

[[Page 21417]]

construction and maintenance, and logging). The majority of the land in 
this unit is a State Wildlife Area owned by the Wisconsin Department of 
Natural Resources with the remainder of the land privately owned. 
Forest areas with 100 percent closed canopy that occur greater than 328 
ft (100 m) from the open forest edge of the unit are not considered 
critical habitat. This unit is essential to the conservation of the 
species because it provides habitat essential to accommodate 
populations of the species to meet the conservation principles of 
redundancy and resiliency throughout the species' range.

Wisconsin Unit--10 Ozaukee County, Wisconsin

    Wisconsin Unit 10 consists of 2,312 ac (936 ha) in Ozaukee County, 
Wisconsin, and includes much of Cedarburg Bog. This unit was not known 
to be occupied at the time of listing but is currently occupied. Known 
threats to the PCEs that may require special management or protections 
are loss and degradation of habitat due to development, groundwater 
depletion or alteration, surface and groundwater contamination, and 
alteration of the hydrology of the wetlands. Numerous male and female 
adults have been seen in this unit including teneral adults; 
ovipositing females have been observed, as well as larvae. Crayfish 
burrows are present. The unit consists of larval and adult habitat with 
a mix of shrub-carr, ``patterned'' bog composed of forested ridges and 
sedge mats, wet meadow, and lowland forest. The majority of area in the 
unit is State land and the remainder of the land is privately owned. 
This unit is essential to the conservation of the species because it 
provides habitat essential to accommodate populations of the species to 
meet the conservation principles of redundancy and resiliency 
throughout the species' range.

Wisconsin Unit 11--Door County, Wisconsin

    Wisconsin Unit 11 consists of approximately 147 acres (59 hectares) 
in Door County, Wisconsin. This unit was not known to be occupied at 
the time of listing but is currently occupied. Known threats to the 
PCEs that may require special management or protections are loss and 
degradation of habitat due to development, groundwater depletion or 
alteration, surface and groundwater contamination, and alteration of 
the hydrology of the wetlands. Adults have been observed in this unit 
over multiple years. Male patrolling behavior has been observed, and 
crayfish burrows are present. The unit consists of larval and adult 
habitat, including a floating sedge mat and lowland and upland conifer 
and deciduous forest. All land in the unit is privately owned. The 
northern portion of the unit is owned by the Door County Land Trust. 
This unit is essential to the conservation of the species because it 
provides for the redundancy and resilience of populations in this 
portion of the species' range, where habitat is under threat from 
multiple factors.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the Fifth and Ninth Circuit Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F. 3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species (Service 2004c, p. 3).
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
endangered or threatened and with respect to its critical habitat, if 
any is proposed or designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. Conference reports provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. We may issue a 
formal conference report if requested by a Federal agency. Formal 
conference reports on proposed critical habitat contain an opinion that 
is prepared according to 50 CFR 402.14, as if critical habitat were 
designated. We may adopt the formal conference report as the biological 
opinion when the critical habitat is designated, if no substantial new 
information or changes in the action alter the content of the opinion 
(see 50 CFR 402.10(d)). The conservation recommendations in a 
conference report or opinion are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or designated 
critical habitat; or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or designated critical 
habitat.
    An exception to the concurrence process referred to in (1) above 
occurs in consultations involving National Fire Plan projects. In 2004, 
the U.S. Forest Service and the BLM reached agreements with the Service 
to streamline a portion of the section 7 consultation process (BLM-ACA 
2004, pp. 1-8; FS-ACA 2004, pp. 1-8). The agreements allow the U.S. 
Forest Service and the BLM the opportunity to make ``not likely to 
adversely affect'' (NLAA) determinations for projects implementing the 
National Fire Plan. Such projects include prescribed fire, mechanical 
fuels treatments (thinning and removal of fuels to prescribed 
objectives), emergency stabilization, burned area rehabilitation, road 
maintenance and operation activities, ecosystem restoration, and 
culvert replacement actions. The U.S. Forest Service and the BLM must 
insure staff are properly trained, and both agencies must submit 
monitoring reports to the Service to determine if the procedures are 
being implemented properly and that effects on endangered species and 
their habitats are being properly evaluated. As a result, we do not 
believe the alternative consultation processes being implemented as a 
result of the National Fire Plan will differ significantly from those 
consultations being conducted by the Service.

[[Page 21418]]

    If we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
 Can be implemented in a manner consistent with the intended 
purpose of the action,
 Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
 Are economically and technologically feasible, and
 Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying its critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the Hine's emerald dragonfly or 
its designated critical habitat will require section 7(a)(2) 
consultation under the Act. Activities on State, tribal, local, or 
private lands requiring a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit under section 10(a)(1)(B) of the 
Act from the Service) or involving some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency) will also 
be subject to the section 7(a)(2) consultation process. Federal actions 
not affecting listed species or critical habitat, and actions on State, 
tribal, local, or private lands that are not federally funded, 
authorized, or permitted, do not require section 7(a)(2) consultations.

Application of the Jeopardy and Adverse Modification Standard

Jeopardy Standard

    Currently, the Service applies an analytical framework for Hine's 
emerald dragonfly jeopardy analyses that relies heavily on the 
importance of known populations to the species' survival and recovery. 
The section 7(a)(2) of the Act analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Hine's emerald dragonfly in a qualitative fashion without 
making distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, the jeopardy analysis focuses on the 
range-wide status of Hine's emerald dragonfly, the factors responsible 
for that condition, and what is necessary for each species to survive 
and recover. An emphasis is also placed on characterizing the 
conditions of Hine's emerald dragonfly in the area affected by the 
proposed Federal action and the role of affected populations in the 
survival and recovery of the species. That context is then used to 
determine the significance of adverse and beneficial effects of the 
proposed Federal action and any cumulative effects for purposes of 
making the jeopardy determination.

Adverse Modification Standard

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

[[Page 21419]]

into the surface water or groundwater recharge area at a point source 
or by dispersed release (non-point source). These activities could 
alter water conditions such that the conditions are beyond the 
tolerances of the Hine's emerald dragonfly and its prey base, and 
result in direct or cumulative adverse effects to these individuals and 
their life cycles. Actions that would significantly alter water 
quantity and quality could negatively impact the Hine's emerald 
dragonfly and the species' habitat.
    (4) Actions that would significantly alter stream, streamlet, and 
fen channel morphology or geometry. Such activities could include but 
are not limited to, all-terrain vehicle use, equestrian use, feral pig 
introductions, channelization, impoundment, road and bridge 
construction, mining, and loss of emergent vegetation. These activities 
may lead to changes in water flow velocity, temperature, and quantity 
that could negatively impact the Hine's emerald dragonfly and their 
prey base and/or habitats. Actions that would significantly alter 
channel morphology or geometry could negatively impact the Hine's 
emerald dragonfly and the species' habitat.
    (5) Actions that would fragment habitat and impact adult foraging 
or dispersal. Such activities could include, but are not limited to, 
road construction, destruction or fill of wetlands, and high-speed 
railroad and vehicular traffic. These activities may adversely affect 
dispersal, resulting in reduced fitness and genetic exchange within 
populations and potential mortality of individuals. Actions that would 
fragment habitat and impact adult foraging or dispersal could 
negatively impact the Hine's emerald dragonfly and the species' 
habitat.

Exemptions and Exclusions

Application of Section 4(a)(3) of the Act

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 
670a), if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation. Therefore, there are 
no specific lands that meet the criteria for being exempted from the 
designation of critical habitat under section 4(a)(3) of the Act.

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

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

Economic Analysis

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

[[Page 21420]]

downloading from the Internet at http://www.fws.gov/midwest/Endangered.

Benefits of Designating Critical Habitat

Regulatory Benefits

    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on actions that may affect 
critical habitat and must avoid destroying or adversely modifying 
critical habitat. Prior to our designation of critical habitat, Federal 
agencies consult with us on actions that may affect a listed species 
and must refrain from undertaking actions that are likely to jeopardize 
the continued existence of the species. Thus, the analysis of effects 
to critical habitat is a separate and different analysis from that of 
the effects to the species. The difference in outcomes of these two 
analyses represents the regulatory benefit of critical habitat. For 
some species, and in some locations, the outcome of these analyses will 
be similar, because effects on habitat will often result in effects on 
the species. However, the regulatory standard is different: the 
jeopardy analysis looks at the action's impact on survival and recovery 
of the species, while the adverse modification analysis looks at the 
action's effects on the designated habitat's contribution to the 
species' conservation. This will, in many instances, lead to different 
results and different regulatory requirements.
    Once an agency determines that consultation under section 7 of the 
Act is necessary, the process may conclude informally when we concur in 
writing that the proposed Federal action is not likely to adversely 
affect critical habitat. However, if we determine through informal 
consultation that adverse impacts are likely to occur, then we would 
initiate formal consultation, which would conclude when we issue a 
biological opinion on whether the proposed Federal action is likely to 
result in destruction or adverse modification of critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to PCEs, but it would not contain any mandatory reasonable and prudent 
measures or terms and conditions. We suggest reasonable and prudent 
alternatives to the proposed Federal action only when our biological 
opinion results in an adverse modification conclusion.
    In providing the framework for the consultation process, the 
previous section applies to all the following discussions of benefits 
of inclusion or exclusion of critical habitat.
    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection. In identifying those lands, the Service must consider the 
recovery needs of the species, such that the habitat that is 
identified, if managed, could provide for the survival and recovery of 
the species. Furthermore, once critical habitat has been designated, 
Federal agencies must consult with the Service under section 7(a)(2) of 
the Act to ensure that their actions will not adversely modify 
designated critical habitat or jeopardize the continued existence of 
the species. As noted in the Ninth Circuit's Gifford Pinchot decision, 
the Court ruled that the jeopardy and adverse modification standards 
are distinct, and that adverse modification evaluations require 
consideration of impacts to the recovery of species. Thus, through the 
section 7(a)(2) consultation process, critical habitat designations 
provide recovery benefits to species by ensuring that Federal actions 
will not destroy or adversely modify designated critical habitat.
    The identification of lands that are necessary for the conservation 
of the species can assist in the recovery planning for a species, and 
therefore is beneficial. The process of proposing and finalizing a 
critical habitat rule provides the Service with the opportunity to 
determine lands essential for conservation as well as identify the 
physical and biological features essential for conservation on those 
lands. The designation process includes peer review and public comment 
on the identified features and lands. This process is valuable to land 
owners and managers in developing conservation management plans for 
identified lands, as well as any other occupied habitat or suitable 
habitat that may not have been included in the Service's determination 
of essential habitat.
    However, the designation of critical habitat does not require that 
any management or recovery actions take place on the lands included in 
the designation. Even in cases where consultation has been initiated 
under section 7(a)(2) of the Act, the end result of consultation is to 
avoid jeopardy to the species and adverse modification of its critical 
habitat, but not specifically to manage remaining lands or institute 
recovery actions on remaining lands. Conversely, management plans 
institute intentional, proactive actions over the lands they encompass 
to remove or reduce known threats to a species or its habitat and, 
therefore, implement recovery actions. We believe that the conservation 
of a species and its habitat that could be achieved through the 
designation of critical habitat, in some cases, is less than the 
conservation that could be achieved through the implementation of a 
management plan that includes species-specific provisions and considers 
enhancement or recovery of listed species as the management standard 
over the same lands. Consequently, implementation of any HCP or 
management plan that considers enhancement or recovery as the 
management standard will often provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision.

Educational Benefits

    A benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the Hine's emerald dragonfly. Because the critical habitat process 
includes multiple public comment periods, opportunities for public 
hearings, and announcements through local venues, including radio and 
other news sources, the designation of critical habitat provides 
numerous occasions for public education and involvement. Through these 
outreach opportunities, land owners, State agencies, and local 
governments can become more aware of the plight of listed species and 
conservation actions needed to aid in species recovery. Through the 
critical habitat process, State agencies and local governments may 
become aware of areas that could be conserved under State laws, local 
ordinances, or specific management plans.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without cooperation of non-Federal landowners. More than 60 percent of 
the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely

[[Page 21421]]

on private lands (Crouse et al. 2002, p. 720). Stein et al. (1995, p. 
400) found that only about 12 percent of listed species were found 
almost exclusively on Federal lands (90 to 100 percent of their known 
occurrences restricted to Federal lands) and that 50 percent of 
federally listed species are not known to occur on Federal lands at 
all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998, p. 1407; Crouse et al. 2002, p. 720; James 
2002, p. 271). Building partnerships and promoting voluntary 
cooperation of landowners are essential to our understanding the status 
of species on non-Federal lands, and necessary for us to implement 
recovery actions such as reintroducing listed species and restoring and 
protecting habitat.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. We promote these private-sector efforts 
through the Department of the Interior's Cooperative Conservation 
philosophy. Conservation agreements with non-Federal landowners (HCPs, 
safe harbor agreements, other conservation agreements, easements, and 
State and local regulations) enhance species conservation by extending 
species protections beyond those available through section 7 
consultations. We encouraged non-Federal landowners to enter into 
conservation agreements, based on the view that we can achieve greater 
species conservation on non-Federal land through such partnerships than 
we can through regulatory methods (61 FR 63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of attracting endangered species to their property. 
Evidence suggests that some regulatory actions by the Federal 
Government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996, pp.5-6; 
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp. 
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). Some 
landowners fear a decline in their property value due to real or 
perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by some landowners as a liability. This perception 
results in anti-conservation incentives, because maintaining habitats 
that harbor endangered species represents a risk to future economic 
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp. 
1644-1648). We attempt to ease these concerns through communication and 
outreach with landowners; however, we recognize that these efforts are 
not always successful.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. In cases where conservation actions are 
currently employed but anxiety regarding the potential impacts of 
critical habitat designation exists, we may find that excluding non-
Federal lands from critical habitat designation results in improved 
partnerships and conservation efforts.
Exclusions Under Section 4(b)(2) of the Act
    We are excluding Missouri units 2b, 3, 6, 9, 10, 11b, 12-20, and 22 
from the final designation of critical habitat for the Hine's emerald 
dragonfly because we believe that the benefits of excluding these 
specific areas from the designation outweigh the benefits of inclusion 
of the specific areas. The conservation actions outlined in a Missouri 
Hine's Emerald Dragonfly Recovery Plan (Missouri Department of 
Conservation 2007f) and currently being implemented for the Hine's 
emerald dragonfly on Missouri State-owned and on private lands through 
MDC's coordination with private landowners in Missouri provide greater 
conservation benefit to the species than would designating these areas 
as critical habitat. We believe that the exclusion of these areas from 
the final designation of critical habitat will not result in the 
extinction of the Hine's emerald dragonfly. We reviewed information 
concerning other units to determine whether any other units, or 
portions thereof, should be excluded from the final designation. No 
other units were excluded from the final designation.
State Land Management - Exclusions Under Section 4(b)(2) of the Act
    We are excluding all State-owned land in Missouri under section 
4(b)(2) of the Act based on conservation measures addressed in species-
specific management plans for State-managed lands and Missouri's State-
wide Hine's emerald dragonfly recovery plan (Missouri Department of 
Conservation 2007f). Missouri is the only state within the range of the 
Hine's emerald dragonfly that has management plans that specifically 
address conservation of the species on State lands.
    Missouri units 16, 17, 18, and 22 are under MDC ownership and Unit 
14 is privately owned but managed by MDC. Threats identified on land 
owned and managed by MDC are feral hogs, habitat fragmentation, road 
construction and maintenance, all-terrain vehicles, beaver dams, and 
management conflicts.
    In regard to Hine's emerald dragonfly conservation, the MDC has:
    (1) Developed management plans for the five conservation areas 
where the Hine's emerald dragonfly has been documented (Missouri 
Natural Areas Committee 2007; Missouri Department of Conservation 
2007a, pp.1-4; 2007b, pp. 1-3; 2007c, pp. 1-4)
    (2) Formulated best management practices (Missouri Department of 
Conservation 2007d, pp. 1-2) and department guidelines (Missouri 
Department of Conservation 2007e, pp. 1-3); and
    (3) Developed a Statewide recovery plan for the Hine's emerald 
dragonfly (Missouri Department of Conservation 2007f, pp. 1-33).
    These plans provide for long-term management and maintenance of fen 
habitat essential for larval development and adjacent habitat that 
provides for foraging and resting needs for the species. Areas of 
management concern include the fen proper, adjacent open areas for 
foraging, adjacent shrubs, and a 328-ft (100-m) forest edge buffer to 
provide habitat for resting and predator avoidance. Based on initial 
groundwater recharge delineation studies by Aley and Aley (2004, p. 
22), the 328-ft (100-m) buffer will also facilitate the maintenance of 
the hydrology associated with each unit. Actions outlined in area 
management plans and the state recovery plan for the Hine's emerald 
dragonfly address threats to habitat by preventing the encroachment of 
invasive woody plants (ecological succession), and by maintaining open 
conditions of the fen and surrounding areas with prescribed fire and 
stand improvement through various timber management practices.
    In addition to site-specific plans, there is also a Statewide 
recovery plan (Missouri Department of Conservation 2007f) that outlines 
objectives for conserving the Hine's emerald dragonfly on State managed 
and privately owned property in Missouri (Table 3). The recovery plan 
includes a budget for Fiscal Years 2006 to 2012, showing MDC's 
commitment to continue acquiring the funds necessary to implement these 
actions. The MDC coordinated closely with the Service in developing the 
site-specific plans and

[[Page 21422]]

the Statewide Hine's emerald dragonfly recovery plan and the 
recommended conservation measures within it. We believe that by 
implementing those recommended conservation actions in Missouri we can 
achieve recovery of the species in the State.

 Table 3. Summary of objectives in MDC's Recommendations for Recovery of
  Hine's Emerald Dragonfly and Ozark Fen Communities in Missouri (FY08-
                                 FY12).
------------------------------------------------------------------------
                                              Conservation benefit for
        MDC Recovery Plan Objective           Hine's emerald dragonfly
------------------------------------------------------------------------
Maintain the natural integrity of Ozark     Protect, restore, or enhance
 fen communities by decreasing exotic,       breeding and foraging areas
 feral, domestic, and undesirable native
 animal and plant populations specifically
 when those populations threaten Ozark
 fens, associated natural communities, and
 habitats essential for the life
 requirements of the dragonfly
------------------------------------------------------------------------
Restore local hydrology and protect         Protect, enhance, or restore
 groundwater contribution areas by           breeding and foraging areas
 eliminating past drainage improvements
 and ensuring developments do not
 adversely affect fen recharge areas
------------------------------------------------------------------------
Prohibit vehicle operation in fens unless   Protect breeding and
 specifically authorized or prescribed for   foraging areas
 Ozark fen restoration actions and Hine's
 emerald dragonfly habitat improvement
 projects
------------------------------------------------------------------------
Ensure that recreational overuse does not   Protect breeding and
 impact Ozark fen communities                foraging areas
------------------------------------------------------------------------
Develop public outreach materials and       Protect, enhance, or restore
 solutions to advance the conservation of    breeding and foraging areas
 Hine's emerald dragonfly and Ozark fen
 communities
------------------------------------------------------------------------
Manage fire-dependent wetland communities   Protect, enhance, or restore
 with a fire regime similar to that in       breeding and foraging areas
 which the natural communities evolved and
 developed
------------------------------------------------------------------------
Monitor fen water quality, identify         Protect, enhance, or restore
 potential pollutants, and develop           breeding and foraging areas
 strategies to abate damages
------------------------------------------------------------------------
Increase connectivity within Ozark fen      Enhance breeding and
 complexes                                   foraging areas
------------------------------------------------------------------------

    Numerous agencies and groups are working together to alleviate 
threats to the Hine's emerald dragonfly in Missouri. These cooperating 
partners include conservation area managers, the MDC's Private Land 
Services (PLS) Division and Natural History biologists, MDC's Recovery 
Coordinator for the species, the Service, the Missouri Hine's Emerald 
Dragonfly Workgroup, and the Federal Hine's Emerald Dragonfly Recovery 
Team (Recovery Team).
    We believe that management guidelines outlined in the conservation 
area plans and natural area plans, the BMPs, and the Statewide recovery 
plan for the Hine's emerald dragonfly, along with the close 
coordination among the various agencies mentioned above (plus other 
identified species experts as needed), adequately address identified 
threats to Hine's emerald dragonfly and its habitat on MDC lands. The 
conservation measures as outlined above provide greater benefit to the 
Hine's emerald dragonfly than would designating critical habitat on 
Missouri State-managed lands. Thus the relative benefits of designation 
of these lands are diminished and limited.
(1) Benefits of Designation
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical habitat. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 of the Act to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence. Designation of critical 
habitat may also provide educational benefits by informing land 
managers of areas essential to the conservation of the Hine's emerald 
dragonfly.
(2) Benefits of Exclusion
    Voluntarily, land managers are currently implementing conservation 
actions for the Hine's emerald dragonfly and its habitat on State-
managed lands in Missouri that are beyond those that could be required 
if critical habitat were designated. Excluding State-owned lands in 
Missouri from critical habitat designation will sustain and enhance the 
already robust working relationship between the Service and MDC. The 
State has a strong history of conserving the Hine's emerald dragonfly 
and other federally listed species. The MDC is committed to continued 
conservation for the Hine's emerald dragonfly through its State 
management plan for the species. The Service's willingness to work 
closely with MDC on innovative ways to manage federally listed species 
will continue to reinforce those conservation efforts, which contribute 
significantly toward achieving recovery of the species in the State.
    Furthermore, in the case of Missouri, there is no appreciable 
educational benefit because the MDC has already demonstrated its 
knowledge and understanding of essential habitat for the species 
through active recovery efforts and consultation.
(3) Benefits of Exclusion Outweigh the Benefits of Designation
    We find that the benefits of designating critical habitat for the 
Hine's emerald dragonfly on State lands in Missouri are outweighed by 
the benefits of exclusion. Exclusion will enhance the partnership 
efforts with the MDC focused on conservation of the species in the 
State, and secure conservation benefits for the species that will lead 
to recovery, as described above, beyond those that could be required 
under a critical habitat designation. The benefits of designating 
critical habitat on State-owned lands in Missouri are already largely 
being realized through the conservation efforts being implemented under 
the Statewide recovery plan. Therefore, those benefits

[[Page 21423]]

of designation are quite small when weighed against enhancing 
partnership efforts and securing conservation benefits for the species 
that would be achieved through excluding State-owned lands in Missouri 
from designation.
(4) Exclusions Will Not Result in Extinction of the Species
    We believe that excluding the Missouri units under MDC ownership 
(Units 16, 17, 18, and 22) and Unit 14, which is privately owned but 
managed by MDC, from critical habitat would not result in the 
extinction of Hine's emerald dragonfly because current conservation 
efforts under the Conservation and Natural Area Plans and other Plans 
by the MDC adequately protect essential Hine's emerald dragonfly 
habitat and provide appropriate management to maintain and enhance the 
PCEs for the Hine's emerald dragonfly. In addition, conservation 
partnerships on non-Federal lands are important conservation tools for 
this species in Missouri that could be negatively affected by the 
designation of critical habitat. As such, there is no reason to believe 
that this exclusion would result in extinction of the species.
Private Land Management - Exclusions Under Section 4(b)(2) of the Act
    We are excluding all private land in Missouri under section 4(b)(2) 
of the Act based on the cooperative conservation partnership with 
private landowners in Missouri. Missouri Units 2b, 3, 6, 9, 10, 11b, 
12, 13, 15, 19, and 20 are under private ownership. Missouri Unit 14 is 
also under private ownership but managed by the MDC.
    The Nature Conservancy manages Grasshopper Hollow (Unit 11b) in 
accordance with the Grasshopper Hollow Management Plan (The Nature 
Conservancy 2006, pp. 1-4) to maintain fen habitat. The plan includes 
management goals that specifically address the Hine's emerald dragonfly 
and its habitat: 1) Sustain the high quality fen complex, with a full 
suite of fen biota; 2) Restore the fen system in suitable drained 
fields at the north end of Doe Run lands; and 3) Ensure the long-term 
viability of healthy populations of the Hine's emerald dragonfly.
    Threats to the species identified on private land are feral hogs, 
habitat fragmentation, road construction and maintenance, ecological 
succession, all-terrain vehicles, beaver dams, utility maintenance, 
application of herbicides, and change in ownership. All threats listed 
above for private property in Missouri are addressed in the Missouri 
Department of Conservation's Statewide recovery plan for the Hine's 
emerald dragonfly (Missouri Department of Conservation 2007f, pp. 1-33) 
and through close coordination between personnel with the MDC's PLS 
Division or Regional Natural History biologists and private landowners. 
Additionally, MDC personnel work closely and proactively with the 
National Resources Conservation Service (NRCS) and the Service's 
Partners for Fish and Wildlife Program to initiate management and 
maintenance actions on species-occupied fens to benefit the species and 
alleviate potential threats and these actions are subject to section 7 
of the Act. The Missouri Department of Conservation (2007d, pp. 1-2) 
has developed BMPs for the Hine's emerald dragonfly, which further 
displays the agencies dedication to conserving the species and its 
habitat on both State and private land. These BMPs and close 
coordination with MDC's Recovery Leader for Hine's emerald dragonflies 
have resulted in the implementation of various activities on private 
property to benefit the species or minimize potential threats. Current 
and ongoing conservation actions on private lands include the 
following: Developing private land partner property plans; providing 
landowners with technical support through ongoing site visits; 
providing grazing and forage harvesting recommendations to minimize 
potential fen damage; excluding heavy equipment from fen habitat; 
placing signs on fen habitat alerting land owners to the sensitivity of 
this natural community; providing public land owners with public 
outreach regarding the life history requirements of Hine's emerald 
dragonflies and the sensitivity of the species' unique habitat; 
providing recommendations on the control of beavers, which are harmful 
to delicate fen habitat; providing education on the need for and 
correct use of prescribed fire; excluding livestock from fens and other 
wetland types; restoring fens and wetlands by restoring hydrology or 
controlling invasive species and woody brush invasion; applying 
appropriate nutrient and pest management on adjacent agricultural 
fields to reduce runoff; implementing practices that control erosion 
and prevent sediment delivery to wetlands; and when applicable, 
facilitating the transfer or property from private to public ownership. 
Although implementing Hine's emerald dragonfly BMPs on private land is 
voluntary, the best way we have found to ensure effective conservation 
on private lands is through such voluntary actions. Private landowners 
are generally more receptive to voluntary conservation actions on their 
lands than they are to regulated actions or perceived regulation. The 
MDC has successfully conducted conservation actions on many private 
land parcels and has dedicated numerous staff hours to these actions 
(Table 4).

     Table 4. Summary of private land initiatives and average annual
expenditure for Hine's emerald dragonfly conservation measures conducted
               by MDC staff on private lands (since 2005).
------------------------------------------------------------------------
                                                         Average annual
                                                       expenditure since
                 Conservation Action                      2005 (in MDC
                                                          staff hours)
------------------------------------------------------------------------
Landowner technical support in the form of in-field                  250
 consultation, correspondence, and other
 communications. Includes operations that affect
 private land fens that are known Hine's emerald
 dragonfly sites or potential sites.
------------------------------------------------------------------------
Farm plan development and fen restoration planning                    75
 for private landowners. Includes the development of
 planning documents for private landowners that have
 Ozark fens.
------------------------------------------------------------------------
Grazing system and forage harvesting recommendations                  50
 to private landowners. Many Missouri fens are
 located in pastures or hay meadows. Maintaining
 stocking rates at suitable levels benefits Ozark
 fens and limits pressures associated with woody
 encroachment.
------------------------------------------------------------------------
Technical support to landowners directly related to                   25
 beaver control within Ozark fen communities.
------------------------------------------------------------------------

[[Page 21424]]

 
Technical assistance to landowners regarding fencing                  25
 options to exclude cattle or combat possible ATV
 incursions.
------------------------------------------------------------------------
Coordination with utility companies applying                          50
 herbicides or operating mowing equipment on rights-
 of-way that cross private lands - activities that
 have the potential to damage fen communities and
 Hine's emerald dragonfly habitats.
------------------------------------------------------------------------
Fen restoration demonstration projects including                50, plus
 woody encroachment clearing and herbicide                 herbicide and
 application; often in direct coordination with              application
 private land partners.                                      expenses of
                                                                $2500.00
------------------------------------------------------------------------
Demonstration exotics control including herbicide                     25
 application and integrated pest management strategy
 development. Willow encroachment, reed canary grass
 control, and multi-flora rose control within fens on
 private lands. Several private land fens have
 characteristic infestations of undesirable species;
 MDC staff have applied herbicides to problem exotic
 invasive plant species to ensure fen habitats are
 suitable for Hine's emerald dragonfly.
------------------------------------------------------------------------
Coordination with private landowners to ensure Hine's     15 (There have
 emerald dragonfly habitat is not impacted by pasture    only been a few
 renovation activities; includes delineation of        opportunities for
 habitat areas with private land partners.                  this action)
------------------------------------------------------------------------
Signage placement on private land fens. Signage is                    15
 placed on some fens when requested by private
 landowners or to engender support and understanding
 for fen restoration projects.
------------------------------------------------------------------------
Installation of firelines, in cooperation with                        15
 private landowners, on burn units that include fen
 communities.
------------------------------------------------------------------------
Coordination with landowners interested in selling                    40
 property with Ozark fens and wetland habitats that
 have the potential to support Hine's emerald
 dragonfly. Includes close communications with
 landowners; interagency coordination and technical
 assistance; coordination with surveyors, real estate
 lawyers, and biologists.
------------------------------------------------------------------------
Presentation and outreach events directed to                          40
 landowners with Hine's emerald dragonfly populations
 or Ozark fen natural communities.
------------------------------------------------------------------------
Media contacts (radio, television, and printed media)                 80
 and coordination directly related to Hine's emerald
 dragonfly recovery.
------------------------------------------------------------------------
Coordination with conservation agents, often                          40
 regarding private land fens that may be threatened
 by ATV activities
------------------------------------------------------------------------
Patrols and enforcement operations.                                   50
------------------------------------------------------------------------

    Effective measures will continue to be incorporated to minimize 
threats from feral hogs and beavers by implementing MDC's Statewide 
recovery plan for the Hine's emerald dragonfly (Missouri Department of 
Conservation 2007f, pp. 1-3) and by providing technical assistance and 
implementation assistance to private landowners through coordination 
with MDC's PLS Division or Regional Natural History biologists, the 
NRCS, and the Service's Partners for Fish and Wildlife Program. Utility 
maintenance (Units 9 and 14) and herbicide application to maintain 
power line rights of way (Unit 9) were identified as potential threats 
at two units. Implementing the actions outlined in Missouri Department 
of Conservation's Statewide recovery plan for the Hine's emerald 
dragonfly and ongoing coordination among the MDC's PLS Division, MDC's 
Hine's emerald dragonfly recovery coordinator, and the appropriate 
utility maintenance company and its contractors will continue to 
minimize potential threats (Missouri Department of Conservation 2007f, 
pp. 1-3). The potential change in ownership on private land in Missouri 
from cooperative landowners to ones who may not want to manage their 
land to benefit the species is a concern on some private lands. This 
issue will continue to be addressed by close coordination between new 
landowners and MDC's PLS Division or their Hine's emerald dragonfly 
recovery coordinator. The landowner's access to grants and technical 
assistance from multiple landowner incentive programs administered 
through the MDC, NRCS, and the Service's Partners for Fish and Wildlife 
Program will remain a main focus of outreach to potential new private 
property owners. Unit 14 is under private ownership but is a designated 
State Natural Area (Missouri Natural Areas Committee 2007). An updated 
plan developed for the area ensures that the integrity of the fen is 
maintained (Missouri Natural Areas Committee 2007).
    Personnel from MDC are currently working in cooperation with 
private landowners that have important fen habitat on their lands that 
support Hine's emerald dragonflies. This direct work with private 
landowners allows for effective maintenance and enhancement of Hine's 
emerald dragonfly habitat in the state. MDC is also working toward 
establishing new landowner relationships and cooperative management 
programs that will provide important contributions to Hine's emerald 
dragonfly recovery. Because of the close coordination and excellent 
working partnership of all

[[Page 21425]]

parties listed above, we believe that threats to Hine's emerald 
dragonfly and its habitat on private property in Missouri are 
minimized.
(1) Benefits of Designation
    The primary effect of designating any particular area as critical 
habitat is the requirement for Federal agencies to consult with us 
under section 7 of the Act to ensure actions they carry out, authorize, 
or fund do not destroy or adversely modify designated critical habitat. 
Absent critical habitat designation, Federal agencies remain obligated 
under section 7 of the Act to consult with us on actions that may 
affect a federally listed species to ensure such actions do not 
jeopardize the species' continued existence. Designation of critical 
habitat may also provide educational benefits by informing land 
managers of areas essential to the conservation of the Hine's emerald 
dragonfly.
(2) Benefits of Exclusion
    We view the continued cooperative conservation partnerships with 
private landowners to be essential for the conservation of the Hine's 
emerald dragonfly in Missouri. The MDC has a longstanding history of 
working with private landowners in Missouri, especially regarding the 
conservation of federally listed species. Of the 16 units being 
excluded in the State, 12 (75 percent) are on private land. The MDC has 
worked closely with the NRCS to implement various landowner incentive 
programs that are available through the Farm Bill.
    To further facilitate the implementation of these and other 
landowner incentive programs on the ground, the MDC created the PLS 
Division and established 49 staff positions throughout the State. The 
PLS Division works with multiple landowners within the range of the 
Hine's emerald dragonfly in Missouri to undertake various conservation 
actions to maintain or enhance fen habitat. The MDC has also worked 
closely with the Service's Partners for Fish and Wildlife Program to 
implement various management actions on private lands. Close 
coordination between the two agencies for actions that could benefit 
the species on private land will continue. Excluding private land in 
Missouri from designation as critical habitat for the Hine's emerald 
dragonfly will facilitate the ability to implement those landowner 
incentive programs with multiple landowners, which would preserve the 
conservation benefits already initiated for the species or those 
planned in the future.
    The Hine's emerald dragonfly, along with other federally listed 
species, is such a contentious issue in Missouri that the species is 
viewed negatively by many private landowners. Multiple private 
landowners have been contacted by MDC personnel to obtain permission to 
survey the species on their property. In some cases, access has been 
denied because of negative perceptions associated with the presence of 
federally listed species on private land and the perception that all 
fens currently occupied by the Hine's emerald dragonfly would be 
designated as critical habitat (Gillespie 2005, pers. comm.).
    Although access to survey some private land has been denied, 
several landowners have conducted various management actions to benefit 
the Hine's emerald dragonfly, especially in Reynolds County where the 
largest amount of currently occupied habitat on privately owned land 
occurs. The designation of critical habitat on such sites would have 
dissolved developing partnerships and prevented the initiation of 
additional conservation actions. Additionally, it is likely that the 
designation of critical habitat on private land in Missouri would have 
ended the cooperation associated with conservation actions already 
underway (Missouri Department of Conservation, in litt. 2007).
    Based on potential habitat identified by examining the Service's 
National Wetland Inventory maps, there are other areas with suitable 
Hine's emerald dragonfly habitat where the species may be found. Many 
of these sites occur on private land. Pending further research on 
currently occupied sites, especially related to population dynamics and 
the role Missouri populations may play in achieving the recovery 
objectives outlined in the Service's Recovery Plan (U.S. Fish and 
Wildlife Service 2001, pp. 31-32), the likely discovery of additional 
sites could provide significant contributions towards the range-wide 
recovery of the species. Thus, access to private property may be 
important in achieving recovery of the species.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We find that the benefits of designating critical habitat for the 
Hine's emerald dragonfly on private lands in Missouri are small in 
comparison to the benefits of exclusion. The conservation measures 
being implemented by private landowners, as outlined above, and those 
being implemented from the Missouri Hine's Emerald Dragonfly recovery 
plan (Missouri Department of Conservation 2007f) provide greater 
benefit to the Hine's emerald dragonfly and its habitat than would 
designating critical habitat on private lands in Missouri. Furthermore, 
in the case of Missouri, private conservation groups have already 
demonstrated their knowledge and understanding of essential habitat for 
the species through active recovery efforts and consultation. The 
Missouri public, particularly landowners with Hine's emerald dragonfly 
habitat on their lands, is also well informed about the Hine's emerald 
dragonfly. Thus the relative benefits of designation of these lands are 
diminished and limited. Exclusion of private lands in Missouri will 
enhance the partnership efforts with private conservation groups and 
private landowners focused on conservation of the species in the State, 
and secure conservation benefits for the species beyond those that 
could be required under a critical habitat designation. It is our 
belief that benefits gained through extra outreach efforts associated 
with critical habitat and additional section 7 requirements under the 
Act (in the limited situations where there is a Federal nexus), are 
outweighed by the benefit of sustaining current and future conservation 
partnerships, especially given that access to private property and the 
possible discovery of additional sites in Missouri could help 
facilitate recovery of the species.
(4) The Exclusions Will Not Result in Extinction of the Species
    We believe that the excluding the Missouri units in private 
ownership (Units 2b, 3, 6, 9, 10, 11b, 12, 13, 14, 15, 19, and 20) from 
critical habitat would not result in the extinction of Hine's emerald 
dragonfly because current conservation efforts under The Nature 
Conservancy's Management Plan for Grasshopper Hollow and the Missouri 
Recovery Plan for Hine's emerald dragonfly (Missouri Department of 
Conservation 2007f) adequately protect essential Hine's emerald 
dragonfly habitat and provide appropriate management to maintain and 
enhance the PCEs for the Hine's emerald dragonfly. In addition, 
conservation partnerships on non-Federal lands are important 
conservation tools for this species in Missouri that could be 
negatively affected by the designation of critical habitat in Missouri, 
where there is an established negative sentiment toward Federal 
regulation for endangered species by some private landowners. As such, 
there is no reason to believe that this exclusion would result in 
extinction of the species.

[[Page 21426]]

    Our economic analysis indicates an overall low cost resulting from 
the designation. Therefore, we have found no areas for which the 
economic benefits of exclusion outweigh the benefits of designation, 
and so have not excluded any areas from this designation of critical 
habitat for the Hine's emerald dragonfly based on economic impacts. In 
addition, we anticipate no impact to national security, Tribal lands, 
or HCPs from this critical habitat designation, and have not excluded 
any lands based on those factors.

Required Determinations

Regulatory Planning and Review - Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. Based upon our final economic 
analysis of the designation, we provide our analysis for determining 
whether the designation of critical habitat for the Hine's emerald 
dragonfly would result in a significant economic impact on a 
substantial number of small entities. The SBREFA amended RFA to require 
Federal agencies to provide a certification statement of the factual 
basis for certifying that the rule will not have a significant economic 
impact on a substantial number of small entities. In this final rule, 
we are certifying that the critical habitat designation for Hine's 
emerald dragonfly will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the Hine's emerald dragonfly critical habitat 
designation would affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities (such as residential and commercial 
development). We apply the ``substantial number'' test individually to 
each industry or category to determine if certification is appropriate. 
However, the SBREFA does not explicitly define ``substantial number'' 
or ``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in an area. In some circumstances, 
especially with critical habitat designations of limited extent, we may 
aggregate across all industries and consider whether the total number 
of small entities affected is substantial. In estimating the numbers of 
small entities potentially affected, we also considered whether their 
activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. Some kinds of 
activities are unlikely to have any Federal involvement and so will not 
be affected by the designation of critical habitat. In areas where the 
species is present, Federal agencies already are required to consult 
with us under section 7 of the Act on activities they authorize, fund, 
or carry out that may affect the Hine's emerald dragonfly. Federal 
agencies must also consult with us if their activities may affect 
designated critical habitat. Designation of critical habitat, 
therefore, could result in an additional economic impact on small 
entities due to the requirement to reinitiate consultation for ongoing 
Federal activities (see Application of the ``Adverse Modification 
Standard'' section).
    In our final economic analysis of the critical habitat designation, 
we evaluated the potential economic effects on small business entities 
resulting from conservation actions related to the listing of the 
Hine's emerald dragonfly and designation of its critical habitat. This 
analysis estimated prospective economic impacts due to the 
implementation of Hine's emerald dragonfly conservation efforts in six 
categories: Development activities, water use, utility and 
infrastructure maintenance, road and railway use, species management 
and habitat protection activities, and recreation. The following is a 
summary of information contained in the final economic analysis:
(a) Development Activities
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly development-related losses ranges from $8.0 to 
$11.2 million assuming a 7-percent discount rate. The costs consist of 
the following: (1) Losses in residential land value in Wisconsin and 
Michigan due to potential limitations on residential development; (2) 
impacts to Material Services Corporation (MSC) quarrying operations in 
Illinois; and (3) dragonfly conservation efforts associated with the 
construction of the Interstate 355 Extension. Given the small average 
size and value of private land parcels in Wisconsin and Michigan, the 
noninstitutional landowners (those for which land value losses were 
computed; institutionally owned properties do not have assessed 
property values) are most likely individuals, who are not

[[Page 21427]]

considered small entities by the SBA. MSC has 800 employees in Illinois 
and Indiana, and was recently purchased by Hanson, PLC, which has more 
than 27,000 employees worldwide. The SBA Small Business Standard for 
Crushed and Broken Limestone Mining and Quarrying industry sector is 
500 employees. Therefore, MSC is not considered a small entity. The 
conservation-related costs associated with the construction of the 
Interstate 355 Extension are borne by the Illinois Tollway Authority. 
The Illinois Tollway Authority does not meet the definition of a small 
entity. As a result of this information, we have determined that the 
designation of critical habitat for the Hine's emerald dragonfly is not 
anticipated to have a significant effect on a substantial number of 
small development businesses.
(b) Water Use
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly water use-related losses range from $21,000 to 
$4.0 million assuming a 7-percent discount rate. Public water systems 
may incur costs associated with drilling deep water aquifer wells. The 
USEPA Agency has defined small entity water systems as those that serve 
10,000 or fewer people. None of the municipalities that could be 
required to construct deep aquifer wells as a result of conservation 
efforts for the Hine's emerald dragonfly has a population below 10,000. 
As a result of this information, we have determined that the 
designation of critical habitat for the Hine's emerald dragonfly is not 
anticipated to have a substantial effect on a substantial number of 
small municipalities.
(c) Utility and Infrastructure Maintenance
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly utility and infrastructure maintenance-related 
losses is estimated to be $1.1 million over 20 years, assuming a 7-
percent discount rate. The costs are associated with necessary utility 
and infrastructure maintenance using dragonfly-sensitive procedures. 
Within the designated critical habitat units, Commonwealth Edison is 
responsible for electrical line maintenance, county road authorities 
for road maintenance, and Midwest Generation for railroad track 
maintenance in Illinois Units 1 and 2. Neither company is considered a 
small entity. As a result of this information, we have determined that 
the designation of critical habitat for the Hine's emerald dragonfly is 
not anticipated to have a significant effect on a substantial number of 
small entities.
(d) Road and Railway Use
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly road and railway use-related losses range from 
$1.3 to $8.8 million assuming a 7-percent discount rate. The costs are 
associated with necessary railway upgrades for dragonfly conservation. 
Midwest Generation is responsible for railroad track improvements in 
Illinois. Neither Midwest Generation nor the individual travelers who 
would be affected by slower road speeds are considered small entities. 
As a result of this information, we have determined that the 
designation of critical habitat for the Hine's emerald dragonfly is not 
anticipated to have a significant effect on a substantial number of 
small entities.
(e) Species Management and Habitat Protection Activities
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly species management and habitat protection-
related losses is estimated at $563,000 over 20 years, assuming a 7-
percent discount rate. The costs primarily consist of species 
monitoring, maintenance of habitat, invasive species and feral hog 
control, and beaver dam mitigation. Species management and habitat 
protection costs will be borne by The Nature Conservancy (Wisconsin 
chapter), The Ridges Sanctuary, the Service, the U.S. Forest Service, 
the MIDNR, and the MDC. None of those entities meets the definition of 
a small entity. As a result of this information, we have determined 
that the designation of critical habitat for the Hine's emerald 
dragonfly is not anticipated to have a significant effect on a 
substantial number of small entities.
(f) Recreation
    According to the final economic analysis, the forecast cost of 
Hine's emerald dragonfly recreation-related losses are estimated at 
$19,000 (7-percent discount rate) over the next 20 years. Recreational 
off-road vehicles and equestrian activities have the potential to alter 
Hine's emerald dragonfly habitat and extirpate populations. The costs 
are associated with mitigating the effects of those recreational 
activities. Those costs will be borne by the MIDNR, MDC, the U.S. 
Forest Service, and various county police departments. None of those 
entities meets the definition of a small entity. As a result of this 
information, we have determined that the designation of critical 
habitat for the Hine's emerald dragonfly is not anticipated to have a 
significant effect on a substantial number of small entities.
    Based on the previous, sector-by-sector analysis, we have 
determined that this critical habitat designation would not result in a 
significant economic impact on a substantial number of small entities.

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

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose

[[Page 21428]]

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

Takings

    In accordance with E.O. 12630 (``Government Actions and 
Interference with constitutionally Protected Private Property Right''), 
we have analyzed the potential takings implications of designating 
critical habitat for the Hine's emerald dragonfly in a Takings 
Implications Assessment (TIA). Critical habitat designation does not 
affect landowner ations that do not require Federal funding or permits, 
nor does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. The TIA concludes that the 
designation of critical habitat for Hine's emerald dragonfly does not 
pose significant takings implications for lands within or affected by 
the designation.

Federalism--Executive Order 13132

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

Civil Justice Reform--Executive Order 12988

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

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

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by the NEPA (42 U.S.C. 4321 et seq.) 
in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 
S. Ct. 698 (1996)).

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994,

[[Page 21429]]

``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with Tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to Tribes. We determined that there are no 
tribal lands occupied at the time of listing that contain the features 
essential for the conservation of the species and no tribal lands that 
are unoccupied areas that are essential for the conservation of the 
Hine's emerald dragonfly. Therefore, critical habitat for the Hine's 
emerald dragonfly has not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.govand upon request 
from the Field Supervisor, Chicago, Illinois, Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this package are the staff members of the 
Chicago, Illinois, Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

0
2. Amend Sec. 17.95(i) by revising the entry for ``Hine's emerald 
dragonfly (Somatochlora hineana)'' to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Hine's Emerald Dragonfly (Somatochlora hineana)
    (1) Critical habitat units are depicted for Cook, DuPage, and Will 
Counties in Illinois; Alpena, Mackinac, and Presque Isle Counties in 
Michigan; Crawford, Dent, Iron, Phelps, Reynolds, Ripley, Washington, 
and Wayne Counties in Missouri; and Door and Ozaukee Counties in 
Wisconsin, on the maps below.
    (2) The primary constituent elements of critical habitat for the 
Hine's emerald dragonfly are:
    (i) For egg deposition and larval growth and development:
    (A) Organic soils (histosols, or with organic surface horizon) 
overlying calcareous substrate (predominantly dolomite and limestone 
bedrock);
    (B) Calcareous water from intermittent seeps and springs and 
associated shallow, small, slow-flowing streamlet channels, rivulets, 
and/or sheet flow within fens;
    (C) Emergent herbaceous and woody vegetation for emergence 
facilitation and refugia;
    (D) Occupied burrows maintained by crayfish for refugia; and
    (E) Prey base of aquatic macroinvertebrates, including mayflies, 
aquatic isopods, caddisflies, midge larvae, and aquatic worms.
    (ii) For adult foraging, reproduction, dispersal, and refugia 
necessary for roosting, for resting, for adult females to escape from 
male harassment, and for predator avoidance (especially during the 
vulnerable teneral stage):
    (A) Natural plant communities near the breeding/larval habitat 
which may include fen, marsh, sedge meadow, dolomite prairie, and the 
fringe (up to 328 ft (100 m)) of bordering shrubby and forested areas 
with open corridors for movement and dispersal; and
    (B) Prey base of small, flying insect species (e.g., dipterans).
    (3) Critical habitat does not include human-made structures 
existing on the effective date of this rule and not containing one or 
more of the primary constituent elements, such as buildings, lawns, old 
fields, hay meadows, fallow crop fields, manicured lawns, pastures, 
piers and docks, aqueducts, airports, and roads, and the land on which 
such structures are located. We define ``old field'' here as cleared 
areas that were formerly forested and may have been used as crop or 
pasture land that currently support a mixture of native and nonnative 
herbs and low shrubs. ``Fallow field'' is defined as a formerly plowed 
field that has been left unseeded for a season or more and is presently 
uncultivated. In addition, critical habitat does not include open-water 
areas (i.e., areas beyond the zone of emergent vegetation) of lakes and 
ponds.
    (4) Critical habitat map units. Data layers defining map units were 
created on a base of USGS 7.5' quadrangles, and critical habitat units 
were then mapped using Geographical Information Systems, Universal 
Transverse Mercator (UTM) coordinates. Critical habitat units are 
described using the public land survey system (township (T), range (R) 
and section (Sec.)).
    (5) Note: Index map of critical habitat units (Index map) follows:
BILLING CODE 4310-55-S

[[Page 21430]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.000

(6) Illinois Units 1 through 7, Cook, DuPage, and Will Counties, 
Illinois.
    (i) Illinois Unit 1: Will County. Located in T36N, R10E, Sec. 22, 
Sec. 27, SE1/4 NE1/4 Sec. 28, NE1/4 SE1/4 Sec. 28, NW1/4 NW1/4 Sec. 34 
of the Joliet 7.5' USGS topographic quadrangle. Land south of Illinois 
State Route 7, east of Illinois State Route 53, and west of the Des 
Plaines River.
    (ii) Illinois Unit 2: Will County. Located in T36N, R10E, Sec. 3, 
NW1/4 E1/2 Sec. 10, E1/2 Sec. 15 of the Romeoville and Joliet 7.5' USGS 
topographic quadrangles. Land east of Illinois State Route 53, and west 
of the Des Plaines River.
    (iii) Illinois Unit 3: Will County. Located in T37N, R10E, SW1/4 
Sec. 26, NW1/4 SE1/4 Sec. 26, E1/2 Sec. 34, W1/2 NW 1/4 Sec. 35 of the 
Romeoville 7.5' USGS topographic quadrangle. Land west and north of the 
Des Plaines River and north of East Romeoville Road.
    (iv) Illinois Unit 4: Will and Cook Counties. Located in T37N, 
R10E, S1/2 NE1/4 Sec. 24, W1/2 SW1/4 Sec. 24, SE1/4 Sec. 24 and T37N, 
R11E, SW1/4 SW1/4 Sec. 17, Sec. 19, NW1/4 Sec. 20 of the Romeoville 
7.5' USGS topographic quadrangle. Land to the south of Bluff Road, west 
of Lemont

[[Page 21431]]

Road, and north of the Des Plaines River.
    (v) Illinois Unit 5: DuPage County. Located in T37N, R11E, NW1/4 
Sec. 15, NW1/4 SW1/4 Sec. 15, S1/2 NE1/4 Sec. 16, SW1/4 Sec. 16, N1/2 
SE1/4 Sec. 16, SE1/4 Sec. 17 of the Sag Bridge 7.5' USGS topographic 
quadrangle. Land to the north of the Des Plaines River.
    (vi) Illinois Unit 6: Cook County. Located in T37N, R12E, S1/2 Sec. 
16, S1/2 NE1/4 Sec. 17, N1/2 SE1/4 Sec. 17, N1/2 Sec. 21 of the Sag 
Bridge and Palos Park 7.5' USGS topographic quadrangles. Land to the 
north of the Calumet Sag Channel, south of 107th Street, and east of 
U.S. Route 45.
    (vii) Illinois Unit 7: Will County. Located in T36N, R10E, W1/2 
Sec. 1, Sec. 2, N1/2 Sec. 11 of the Romeoville and Joliet 7.5' USGS 
topographic quadrangles. Land east of the Illinois and Michigan Canal.
    (viii) Note: Map of Illinois Units 1 through 7 (Illinois Map 1) 
follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.001


[[Page 21432]]


(7) Michigan Units 1 and 2, Mackinac County, Michigan.
    (i) Michigan Unit 1: Mackinac County. The unit is located 
approximately 2 miles north of the village of St. Ignace. The unit 
contains all of T41N, R4W, Secs. 3, 6, 8, 9, 10, 11, 14, 15, 16, 23; 
portions of T41N, R4W, Secs. 4, 7, 17, 18, 22, 24, 25, 26, 27; and 
T41N, R5W, Secs. 1 and 12 of the Moran and Evergreen Shores 7.5' USGS 
topographic quadrangles. The unit is west of I-75, east of Brevort 
Lake, and north of Castle Rock Road.
    (ii) Michigan Unit 2: Mackinac County. The unit is located 
approximately 2 miles north of the village of St. Ignace. The unit 
contains all of T41N, R3W, Sec. 6; portions of T41N, R4W, Secs. 1, 12, 
13, 24; portions of T41N, R3W, Secs. 4, 5, 7; and portions of T42N, 
R3W, Sec. 31 of the Evergreen Shores 7.5' USGS topographic quadrangle. 
The unit is west of Lake Huron and east of I-75.
(iii) Note: Map of Michigan Units 1 and 2 (Michigan Map 1) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.002


[[Page 21433]]


(8) Michigan Unit 3, Mackinac County, Michigan.
    (i) Michigan Unit 3: Mackinac County. Located on the east end of 
Bois Blanc Island. Bois Blanc Island has not adopted an addressing 
system using the public land survey system. The unit is located in 
Government Lots 25 and 26 of the Cheboygan and McRae Bay 7.5' USGS 
topographic quadrangles. The unit extends from approximately Walker's 
Point south to Rosie Point on the west side of Bob-Lo Drive. It extends 
from the road approximately 328 ft (100 m) to the west.
(ii) Note: Map of Michigan Unit 3 (Michigan Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.003

(9) Michigan Unit 4, Presque Isle County, Michigan.
    (i) Michigan Unit 4: Presque Isle County. Located approximately 12 
miles southeast of the village of Rogers City. The unit contains all of 
T34N, R7E, SW1/4 SW1/4 Sec. 14, SW1/4 NW1/4 Sec. 15, NE1/4 SW1/4 Sec. 
15, NW1/4 SE1/4 Sec. 15, NW1/4 SW1/4 Sec. 15, SE1/4 SE1/4 Sec. 15, NW1/
4 NE1/4 Sec. 16, NE1/4 NW1/4 Sec. 16, SE1/4 NE1/4 Sec. 16, and NW1/4 
NW1/4 Sec. 23. It also contains portions of T34N, R7E, all 1/4 sections 
in Secs. 15, all 1/4 sections in Sec. 16, SE1/4 and SW1/4 Sec. 9, SW1/4 
Sec. 10, SW1/4 Sec. 14, NE1/4 Sec. 22, NW1/4 and NE1/4 Sec. 23 of the 
Thompson's Harbor 7.5' USGS topographic quadrangle. The northern 
boundary of the unit is Lake Huron and the southern boundary is north 
of M-23.
(ii) Note: Map of Michigan Unit 4 (Michigan Map 3) follows:

[[Page 21434]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.004

BILLING CODE 4310-55-C
(10) Michigan Unit 5, Alpena County, Michigan.
    (i) Michigan Unit 5: Alpena County. Located approximately 9 miles 
northeast of the village of Alpena. The unit contains all of T31N, R9E, 
SE1/4 SW1/4 Sec 9. It also contains portions of T31N, R9E, NW1/4 SW1/4 
Sec. 9, NE1/4 SW1/4 Sec. 9, SW1/4 SW1/4 Sec. 9, SW1/4 SE1/4 Sec 9; and 
portions of T31N, R9E, NE1/4 NW1/4 Sec. 16, NW1/4 NE1/4 Sec. 16, NW1/4 
NW1/4 Sec. 16 of the 7.5' USGS topographic quadrangle North Point 7.5' 
USGS topographic quadrangle. North Point Road is east of the area.
(ii) Note: Map of Michigan Unit 5 (Michigan Map 4) follows:

[[Page 21435]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.005

(11) Michigan Unit 6, Alpena County, Michigan.
    (i) Michigan Unit 6: Alpena County. Located approximately 5 miles 
east of the village of Alpena. The unit contains all of T31N, R9E, SW1/
4 SE1/4 Sec. 27. It also contains portions of T31N, R9E, NW1/4 SE1/4 
Sec. 27, NE1/4 SW1/4 Sec. 27, SE1/4 SW1/4 Sec. 27, SE1/4 SE1/4 Sec. 27; 
portions of T31N, R9E, NE1/4 NW1/4 Sec. 34, NW1/4 NE1/4 Sec. 34, NE1/4 
NE1/4 Sec. 34; and portions of T31N, R9E, NW1/4 NW1/4 Sec. 35, NE1/4 
NW1/4, NW1/4 NE1/4 Sec. 35 of the North Point 7.5' USGS topographic 
quadrangle. Lake Huron is the east boundary of the unit.
(ii) Note: Map of Michigan Unit 6 (Michigan Map 5) follows:

[[Page 21436]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.006

(12) Missouri Unit 1, Crawford County, Missouri.
    (i) Missouri Unit 1: Crawford County. Located in T35N, R3W, Secs. 
22 and 23 of the Viburnum West 7.5' USGS topographic quadrangle. 
Missouri Unit 1 is associated with James Creek and is located 
approximately 1.5 miles west of Billard, Missouri.
(ii) Note: Map of Missouri Unit 1 (Missouri Map 1) follows:

[[Page 21437]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.007

(13) Missouri Units 2a and 4, Dent County, Missouri.
    (i) Missouri Unit 2a: Dent County. Located in T34N, R3W, Secs. 3 
and 4 of the Howes Mill Spring 7.5' USGS topographic quadrangle. 
Missouri Unit 2a is associated with an unnamed tributary to West Fork 
Huzzah Creek and is located approximately 2.5 air miles north of the 
village of Howes Mill, Missouri adjacent to county road 438.
    (ii) Missouri Unit 4: Dent County. Located in T34N, R4W, Secs. 15 
and 22 of the Howes Mill Spring 7.5' USGS topographic quadrangle. 
Missouri Unit 4 is associated with a tributary of Hutchins Creek in 
Fortune Hollow and is located approximately 1 mile east of the juncture 
of Highway 72 and Route MM.
(iii) Note: Map of Missouri Units 2a and 4 (Missouri Map 2) follows:

[[Page 21438]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.008

(14) Missouri Unit 5, Iron County, Missouri.
    (i) Missouri Unit 5: Iron County. Located in T34N, R1W, Sec. 17of 
the Viburnum East 7.5' USGS topographic quadrangle. Missouri Unit 5 is 
located adjacent to Neals Creek and Neals Creek Road, approximately 2.5 
miles southeast of Bixby.
(ii) Note: Map of Missouri Unit 5 (Missouri Map 3) follows:

[[Page 21439]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.009

(15) Missouri Unit 7, Phelps County, Missouri.
    (i) Missouri Unit 7: Phelps County. Located in T36N, R9W, Sec. 9 of 
the Kaintuck Hollow 7.5' USGS topographic quadrangle. Missouri Unit 7 
is associated with Kaintuck Hollow and a tributary of Mill Creek, and 
is located approximately 4 miles south southwest of the town of 
Newburg.
(ii) Note: Map of Missouri Unit 7 (Missouri Map 4) follows:

[[Page 21440]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.010

(16) Missouri Units 8and 11a, Reynolds County, Missouri.
    (i) Missouri Unit 8: Reynolds County. Located in T32N, R2W, Sec. 
22, southeast 1/4, southwest 1/4 of the Bunker 7.5' USGS topographic 
quadrangle. Missouri Unit 8 is adjacent to Bee Fork Creek and is 
located approximately 3 miles east of Bunker.
    (ii) Missouri Unit 11a: Reynolds County. Located in T32N, R1W, Sec. 
30 of the Corridon 7.5' USGS topographic quadrangle. Missouri Unit 11 
is located approximately 1 mile east of the intersection of Route TT 
and Highway 72, extending north to the Bee Fork Church on County Road 
854.
(iii) Note: Map of Missouri Units 8 and 11a (Missouri Map 5) follows:

[[Page 21441]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.011

(17) Missouri Unit 21, Ripley County, Missouri.
    (i) Missouri Unit 21: Ripley County. Located in T23N, R1W, Sec. 23 
of the Bardley 7.5' USGS topographic quadrangle. Missouri Unit 21 is 
associated with an unnamed tributary of Fourche Creek and is located 
approximately 12 miles west of Doniphan.
(ii) Note: Map of Missouri Unit 21 (Missouri Map 6) follows:

[[Page 21442]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.012


[[Page 21443]]


(18) Missouri Units 23 through 25, Washington County, Missouri.
    (i) Missouri Units 23 and 24: Washington County. Located in T36N, 
R1W, Sec. 13 of the Palmer 7.5' USGS topographic quadrangle. Missouri 
Units 23 and 24 comprise the Towns Branch and Welker Fen complex and 
are located near the town of Palmer.
    (ii) Missouri Unit 25: Washington County. Located in T36N, R1W, 
Secs. 2 and 11 of the Courtois 7.5' USGS topographic quadrangle. 
Missouri Unit 25 is associated with a tributary of Hazel Creek and is 
located approximately 1.5 miles northwest of the town of Palmer.
(iii) Note: Map of Missouri Units 23 through 25 (Missouri Map 7) 
follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.013


[[Page 21444]]


(19) Missouri Unit 26, Wayne County, Missouri
    (i) Missouri Unit 26: Wayne County. Located in T27N, R4E, Sec. 33 
of the Ellsinore 7.5' USGS topographic quadrangle. Missouri Unit 26 is 
located near Williamsville and is associated with Brushy Creek.
(ii) Note: Map of Missouri Unit 26 (Missouri Map 8) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.014


[[Page 21445]]


(20) Missouri Unit 27, Crawford County, Missouri.
    (i) Missouri Unit 27: Crawford County. Located on the Courtois 
quadrangle in Township 36 north, Range 2 west, section 14, northeast 1/
4, southwest 1/4, northwest 1/4.
(ii) Note: Map of Missouri Unit 27 (Missouri Map 9) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.015


[[Page 21446]]


(21) Wisconsin Unit 1, Door County, Wisconsin.
    (i) Wisconsin Unit 1: Washington Island, Door County. Located in 
T33N, R30E, W1/2 and NE1/4 Sec. 4, SE1/4 Sec. 5 of Washington Island SE 
and Washington Island NE 7.5' USGS topographic quadrangles. Lands 
included are located adjacent to and west of Wickman Road, south of 
Town Line Road, East of Deer Lane and East Side Roads, north of Lake 
View Road and include Big Marsh and Little Marsh.
(ii) Note: Map of Wisconsin Unit 1 (Wisconsin Map 1) follows:
BILLING CODE 4310-55-S
[GRAPHIC] [TIFF OMITTED] TR23AP10.016


[[Page 21447]]


(22) Wisconsin Unit 2, Door County, Wisconsin.
    (i) Wisconsin Unit 2: Door County. Located in T32N, R28E, SE 1/4 
Sec. 11, NW 1/4 Sec. 13, NE1/4 Sec. 14 of the Ellison Bay 7.5' USGS 
topographic quadrangle, and in T32N, R28E, W1/2 Sec. 13, E 1/2 Sec. 14, 
NE1/4 Sec. 23, portions of each 1/4 of Sec. 24, N1/2 Sec. 25, and T32N, 
R29E, S1/2 Sec. 19, W1/2 Sec. 29, NE1/4 Sec. 30 of Sister Bay 7.5' USGS 
topographic quadrangle. Lands included are located east of the Village 
of Ellison Bay, south of Garrett Bay Road and Mink River Roads, North 
of County Road ZZ, west of Badger Road, County Road NP and Juice Mill 
Road, and includes the Mink River.
(ii) Note: Map of Wisconsin Unit 2 (Wisconsin Map 2) follows:
[GRAPHIC] [TIFF OMITTED] TR23AP10.017


[[Page 21448]]


(23) Wisconsin Units 3 through 7, Door County, Wisconsin.
    (i) Wisconsin Unit 3: Door County. Located in T31N R28E, S 1/2 S10, 
NE 1/4 S15 of Sister Bay 7.5' USGS topographic quadrangle. Lands 
included are located south of County Road ZZ, north of North Bay (Lake 
Michigan), west of North Bay Road, east of Old Stage Road and about two 
miles east of the Village of Sister Bay and include a portion of Three-
Springs Creek.
    (ii) Wisconsin Unit 4: Door County. Located in T31N, R28E, SW1/4 
and S1/2 Sec. 15, portions of each 1/4 of Sec. 22, and N1/2 of Sec. 23 
of the Sister Bay 7.5' USGS topographic quadrangle. Lands are located 
along the north and northwest sides of North Bay (Lake Michigan).
    (iii) Wisconsin Unit 5: Door County. Located in T31N, R28E, S1/2 
Sec. 20, E1/2 Sec. 29, NW1/4 and S1/2 Sec. 28, N1/2 and SE1/4 Sec. 33, 
and W1/2 Sec. 34. It also is located in T30N, R28E, W1/2 Sec. 3, E1/2 
and SW1/4 Sec. 4, SE1/4 Sec. 8, Sec. 9, N1/2 Sec. 10, W1/2 and SE 1/4 
Sec.15, Sec. 16, and Sec. 17 of the Baileys Harbor East, and Sister Bay 
7.5' USGS topographic quadrangles. Lands located south of German Road, 
east of State Highway 57, west of North Bay Drive, Sunset Drive and 
Moonlight Bay (Lake Michigan), north of Ridges Road and Point Drive and 
include Mud Lake and Reiboldt Creek.
    (iv) Wisconsin Unit 6: Door County. Located in T30N, R28E, portions 
of each 1/4 of Sec. 5 of the Baileys Harbor East 7.5' USGS topographic 
quadrangle and Baileys Harbor West 7.5' USGS topographic quadrangle. 
Lands are located about 2 1/4 miles north of the Town of Baileys 
Harbor, east of State Highway 57, south of Meadow Road and are 
associated with an unnamed stream.
    (v) Wisconsin Unit 7: Door County. Located in T30N, R27E, Sec. 11, 
SW1/4 Sec. 13, and N1/2 and SE 1/4 Sec. 14 of the Baileys Harbor West 
7.5' USGS topographic quadrangle. Lands are located north of County 
Road EE, east of County Road A and west of South Highland and High 
Plateau Roads, about two miles northeast of Town of Baileys Harbor and 
are associated with the headwaters of Piel Creek.
(vi) Note: Map of Wisconsin Units 3 through 7 (Wisconsin Map 3) 
follows:

[[Page 21449]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.018

(24) Wisconsin Unit 8, Door County, Wisconsin.
    (i) Wisconsin Unit 8: Door County. Located in T28N, R27E, S1/2 Sec. 
16, N1/2 Sec. 21 of the Jacksonport 7.5' USGS topographic quadrangle. 
Lands are located east of Bechtel Road, South of Whitefish Bay Road, 
west of Glidden Drive and include Arbter Lake.
(ii) Note: Map of Wisconsin Unit 8 (Wisconsin Map 4) follows:

[[Page 21450]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.019

(25) Wisconsin Unit 9, Door County, Wisconsin.
    (i) Wisconsin Unit 9: Door County, Wisconsin. Located in T27N, 
R24E, SE1/4 Sec.16, E1/2 Sec. 20, portions of each 1/4 of Secs. 21, 28 
and 33, NW1/4 and S1/2 Sec. 34. Also located in T26N, R24E, NW1/4 Sec. 
3 of the Little Sturgeon 7.5' USGS topographic quadrangle. Lands are 
located west of Pickeral Road and Cedar Lane, north of State Highway 
57, east of Hilly Ridge Road and County Road C, south of Fox Lane Road, 
about 1.5 miles southwest of Little Sturgeon Bay (Lake Michigan) and 
include portions of Keyes Creek and associated wetlands.
(ii) Note: Map of Wisconsin Unit 9 (Wisconsin Map 5) follows:

[[Page 21451]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.020

(26) Wisconsin Unit 10, Ozaukee County, Wisconsin.
    (i) Wisconsin Unit 10: Ozaukee County. Located in T11N, R21E, E1/2 
of Sec. 20, portions of each 1/4 of Sec. 21, W1/2 Sec. 28, Sec. 29, E1/
2 Sec. 30, E1/2 and portions of NW1/4 and SW1/4 Sec. 31, Sec. 32, and 
W1/2 Sec. 33 of the Cedarburg, Five Corners, Newburg, and Port 
Washington West 7.5' USGS topographic quadrangles. Lands are located 
south of State Highway 33, east of County Road Y and Birchwood Road, 
north of Cedar Sauk Road about 2 miles west of Saukville, and includes 
the majority of Cedarburg Bog.
(ii) Note: Map of Wisconsin Unit 10 (Wisconsin Map 6) follows:

[[Page 21452]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.021

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

[[Page 21453]]

[GRAPHIC] [TIFF OMITTED] TR23AP10.022

* * * * *

    Dated: April 6, 2010
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-8808 Filed 4-22-10; 8:45 am]
BILLING CODE 4310-55-C