[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Rules and Regulations]
[Pages 26014-26038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10051]



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Vol. 79

Tuesday,

No. 87

May 6, 2014

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; Revision of Critical 
Habitat for Salt Creek Tiger Beetle; Final Rule

  Federal Register / Vol. 79 , No. 87 / Tuesday, May 6, 2014 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0068; 4500030114]
RIN 1018-AY56


Endangered and Threatened Wildlife and Plants; Revision of 
Critical Habitat for Salt Creek Tiger Beetle

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the 
critical habitat designation for the Salt Creek tiger beetle (Cicindela 
nevadica lincolniana) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 1,110 acres (ac) (449 hectares 
(ha)) in Lancaster and Saunders Counties, Nebraska, fall within the 
boundaries of our revised critical habitat designation. Publication of 
this final rule fulfills our obligations under a settlement agreement. 
The effect of this regulation is to conserve the Salt Creek tiger 
beetle and its habitat under the Act.

DATES: This rule is effective on June 5, 2014.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the Nebraska Ecological Services 
Field Office. Comments and materials we received, as well as supporting 
documentation we used in preparing this rule, are available for public 
inspection at http://www.regulations.gov. All of the comments, 
materials, and documentation that we considered in this rulemaking are 
available by appointment, during normal business hours at: U.S. Fish 
and Wildlife Service, Nebraska Ecological Services Field Office, 203 
West Second Street, Federal Building, Grand Island, NE 68801; telephone 
308-382-6468; facsimile 308-384-8835.
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0068, at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the Nebraska Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any 
additional tools or supporting information that we developed for this 
critical habitat designation will also be available at the Fish and 
Wildlife Service Web site and Field Office set out above, and may also 
be included in the preamble and at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eliza Hines, Acting Field Supervisor, 
U.S. Fish and Wildlife Service, Nebraska Ecological Services Field 
Office, 203 West Second Street, Federal Building, Grand Island, NE 
68801; telephone 308-382-6468; facsimile 308-384-8835. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This document is a final rule to 
designate revised critical habitat for the endangered Salt Creek tiger 
beetle. This final rule fulfills the terms of a settlement agreement 
reached on June 7, 2011 (see Previous Federal Actions). Under the 
Endangered Species Act (Act), any species that is determined to be 
endangered or threatened requires critical habitat to be designated, to 
the maximum extent prudent and determinable. Designations and revisions 
of critical habitat can only be completed by issuing a rule.
    The basis for our action. We listed the Salt Creek tiger beetle as 
an endangered species on October 6, 2005 (70 FR 58335), and we 
designated critical habitat for the subspecies on April 6, 2010 (75 FR 
17466). On June 4, 2013, we published in the Federal Register a 
proposed revision to the critical habitat designation for the Salt 
Creek tiger beetle (78 FR 33282). Section 4(b)(2) of the Act states 
that the Secretary shall designate and make revisions to 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 she 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless she 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species. No areas have been excluded from the 
critical habitat designation.
    This final rule will designate critical habitat for the endangered 
Salt Creek tiger beetle. The critical habitat areas we are designating 
in this rule constitute our current best assessment of the areas that 
meet the definition of critical habitat for the Salt Creek tiger 
beetle. In total, we are designating 1,110 ac (449 ha) as critical 
habitat for the Salt Creek tiger beetle in Lancaster and Saunders 
Counties in Nebraska. This critical habitat designation includes saline 
wetlands and streams associated with Little Salt Creek and encompasses 
all three habitat areas occupied by the subspecies at the time of 
listing. It also includes saline wetlands and streams associated with 
Rock Creek and Oak Creek that are currently unoccupied, but supported 
the subspecies less than 20 years ago. Our designation also includes 
segments of Haines Branch Creek because this area has the potential to 
provide suitable habitat for the Salt Creek tiger beetle and its 
inclusion will reduce the risk of the subspecies' extinction by 
providing redundancy in available habitat throughout multiple creeks. 
Due to the presence of suitable habitat, we believe that the Salt Creek 
tiger beetle occurred in Haines Branch Creek historically; however, 
they have not been documented in this location due to minimal survey 
effort relative to the annual surveys done at Little Salt, Rock, and 
Oak Creeks.
    Peer review and public comment. We sought comments from appropriate 
and independent specialists to ensure that our designation is based on 
scientifically sound data and analyses. We obtained opinions from four 
knowledgeable individuals with scientific expertise to review our 
technical assumptions and analysis, and whether or not we had used the 
best available information. These peer reviewers supported the 
redundancy of habitat proposed for designation, but were concerned 
about the viability of existing Salt Creek tiger beetle populations, 
small size of units proposed for designation, and potential for the 
subspecies' recovery. Peer reviewers also provided additional 
information, clarifications, and suggestions to improve this final 
rule. Information we received from peer review is incorporated in this 
final revised designation. We also considered all comments and 
information we received from the public during both comment periods.
    We prepared an economic analysis of the designation of critical 
habitat. In order to consider economic impacts, we prepared an analysis 
of the economic impacts of the critical habitat designation for the 
Salt Creek tiger beetle and related factors. We announced the 
availability of the draft

[[Page 26015]]

economic analysis (DEA) in the Federal Register on March 13, 2014 (79 
FR 14206), allowing the public to provide comments on our analysis. We 
have incorporated the comments and have completed the final economic 
analysis concurrently with this final determination.

Previous Federal Actions

    The final rule to list the Salt Creek tiger beetle as endangered 
was published on October 6, 2005 (70 FR 58335). At that time, we stated 
that critical habitat was prudent and determinable; however, we did not 
designate critical habitat because we were in the process of 
identifying the physical and biological features essential to the 
conservation of the subspecies. We published a proposed rule to 
designate critical habitat on December 12, 2007 (72 FR 70716). On June 
3, 2008, we published a notice in the Federal Register to reopen the 
comment period and announce a public hearing (73 FR 31665). On April 
28, 2009, we published a revised proposed rule to designate critical 
habitat (74 FR 19167). A final rule designating approximately 1,933 ac 
(782 ha) of critical habitat was published on April 6, 2010 (75 FR 
17466). The Center for Native Ecosystems, the Center for Biological 
Diversity, and the Xerces Society (plaintiffs) filed a complaint on 
February 23, 2011, regarding designation of critical habitat for the 
subspecies. The plaintiffs asserted that we failed to designate 
sufficient critical habitat to conserve and recover the subspecies. A 
settlement agreement between the plaintiffs and the Service was reached 
on June 7, 2011, and we agreed to reevaluate our designation of 
critical habitat. Accordingly, we published a proposed rule to revise 
the critical habitat designation for the Salt Creek tiger beetle on 
June 4, 2013 (78 FR 33282). On March 13, 2014, we published a document 
in the Federal Register (79 FR 14206) reopening the public comment 
period on the proposed rule to revise critical habitat for the Salt 
Creek tiger beetle and making available the draft economic analysis and 
draft environmental assessment for the action. This rule finalizes our 
revisions to the critical habitat designation for the Salt Creek tiger 
beetle.

Background

    It is our intent to discuss below only those topics directly 
relevant to revisions to the critical habitat designation for the Salt 
Creek tiger beetle. For more detailed information regarding the 
subspecies and the listing of the subspecies, refer to the final rule 
to list the subspecies as endangered published on October 6, 2005 (70 
FR 58335).

Taxonomy and Subspecies Description

    The Salt Creek tiger beetle (Cicindela nevadica lincolniana) is a 
subspecies in the class Insecta, order Coleoptera, and family Carabidae 
(Integrated Taxonomic Information System 2012, p. 1). At least 85 
species of tiger beetles and more than 200 subspecies exist in the 
United States; 26 species and 6 subspecies are known from Nebraska 
(Carter 1989, p. 8). Tiger beetles are fast-moving, predaceous insects 
(Carter 1989, p. 9). The Salt Creek tiger beetle's average length is 
0.4 inches (in) (10 millimeters (mm)), and its color is dark brown 
shading to green (Carter 1989, pp. 12 and 17).

Distribution, Abundance, and Trends

    The Salt Creek tiger beetle is endemic to saline wetlands 
associated with the Salt Creek watershed and some of its tributaries in 
Lancaster and southern Saunders Counties in eastern Nebraska (Allgeier 
2005, p. 18). Historical estimates of the extent of these saline 
wetlands vary. Fowler (2012, p. 41) estimates that approximately 65,000 
ac (26,000 ha) of saline wetlands occurred historically within the Salt 
Creek watershed. LaGrange et al. (2003, p. 3) estimated that more than 
20,000 ac (8,100 ha) occurred historically. Farrar and Gersib (1991, p. 
20) cite a report from 1862 that estimated there were 16,000 ac (6,480 
ha) of saline wetlands in four basins near the present-day town of 
Lincoln. It is not clear which four basins they are describing, but 
these basins were likely only a portion of the entire eastern Nebraska 
saline wetland complex. Historically, the Salt Creek tiger beetle was 
probably widely distributed throughout the eastern saline wetlands of 
Nebraska, especially at the type locality of Capitol Beach (Allgeier 
2005, p. 41) along Oak Creek. However, in the past 150 years, 
approximately 90 percent of these wetlands have been degraded or lost 
due to urbanization, agriculture, and drainage (LaGrange et al. 2003, 
p. 1; Allgeier 2005, p. 41).
    The most complete recent inventory, conducted in 1992 and 1993, 
identified 3,244 ac (1,314 ha) of ``Category 1'' wetlands remaining in 
Lancaster and Saunders Counties (Gilbert and Stutheit 1994, p. 10). The 
authors define Category 1 wetlands as high-value saline wetlands or 
saline wetlands with the potential to be restored to high value 
(Gilbert and Stutheit 1994, p. 6). High-value wetlands were defined as 
meeting one or more of the following criteria: (1) The presence of Salt 
Creek tiger beetles; (2) the presence of one or more rare or restricted 
halophytes (salt-tolerant plants); (3) historical significance as 
identified by the Nebraska State Historical Society; (4) the presence 
of plants characteristic of saline wetlands and not highly degraded, or 
the potential for saline wetland characteristics after enhancement or 
restoration; and (5) high potential for restoration of the historical 
salt source. Other categories of wetlands described in the inventory, 
including Categories 2, 3, and 4, were thought to provide limited or no 
saline wetland functions. At that time, it was thought that these 
wetland types had little or no potential for reestablishing the salt 
source and hydrology needed to restore and maintain saline conditions 
(Gilbert and Stutheit 1994, p. 7). Since 1994, however, techniques 
involving removal of excess sediment and restoration of saline water 
through installation of wells has made restoration of Categories 1, 2, 
and 3 feasible. Removal of sediment has exposed saline seeps and 
restored Salt Creek tiger beetle habitat along Little Salt Creek to the 
extent that the subspecies now uses some of the restored areas (Harms 
2013, pers. comm.). Category 2, 3, and 4 wetlands can also protect 
Category 1 saline wetlands from negative impacts associated with 
sediment transport and freshwater dilution of salinity. Without 
adjacent Category 2, 3, and 4 wetlands, Category 1 saline wetlands can 
degrade and cease providing saline wetland functions (USFWS 2005, p. 
11; LaGrange 2005, pers. comm.; Stutheit 2005, pers. comm.). The 
Service completed a detailed assessment of wetlands prior to listing 
the Salt Creek tiger beetle in 2005, and concluded that, following 
years of degradation in the Salt Creek watershed, approximately 35 ac 
(14 ha) of barren salt flats and saline stream edges contain the entire 
habitat currently occupied by the Salt Creek tiger beetle, which is not 
sufficient to sustain the subspecies.
    Visual surveys of Salt Creek tiger beetles, using consistent 
methods, timing, and intensity, have been conducted by University of 
Nebraska at Lincoln since 1991 (Spomer 2012a, pers. comm.). Over the 
past 22 years, the total number of Salt Creek tiger beetle adults 
counted during visual surveys has ranged from 115 (in 1993) to 777 (in 
2002) individuals (Figure 1). The most recent count was 365 adults in 
2013. A 2-year mark-recapture study indicated that visual surveys may 
underestimate the subspecies' population by approximately 40-50 
percent, and

[[Page 26016]]

recommended that a 2X correction factor be applied (Allgeier et al. 
2003, p. 6; Allgeier et al. 2004, p. 3; Allgeier 2005, p. 40). However, 
these mark-recapture efforts were conducted on a small population that 
may have experienced immigration or emigration during the sampling 
period; therefore, all assumptions may not have been met (Spomer 2012b, 
pers. comm.) and use of these results to make a population estimate may 
not be appropriate. Additionally, mark-recapture requires handling 
beetles and may interfere with egg-laying (Allgeier 2004, p. 3). 
Therefore, visual studies are preferred since they are more economical 
and less intrusive (Allgeier et al. 2003, p. 6; Allgeier et al. 2004, 
p. 3; Allgeier 2005, p. 53); however, visual studies do not provide the 
same precision as do mark-recapture studies.
    Insects typically show greater population variability than many 
other animal species (Thomas 1990, p. 326), and their annual population 
numbers are generally cyclic. A very small population size indicates a 
vulnerability to extinction (Thomas 1990, pp. 325-326; Shaffer 1981, p. 
131; Lande 1993, pp. 911-912; Primack 1998, p. 179) because when 
numbers decline, the population can become locally extirpated. The 
long-term data show a fluctuating, but very small population size for 
Salt Creek tiger beetles.
[GRAPHIC] [TIFF OMITTED] TR06MY14.011

    In addition to the number of individuals, the number of populations 
is critical when considering distribution, abundance, and trends. Salt 
Creek tiger beetles have been located at 14 sites since surveys began 
in 1991 (Brosius 2010, p. 12). We consider these 14 sites to represent 
6 different populations based upon documented dispersal distances and 
presence of discrete suitable habitat for the subspecies (70 FR 58336, 
October 6, 2005). Three of these populations have been extirpated since 
surveys began in 1991: The Capitol Beach population along Oak Creek, 
the Upper Little Salt Creek-South population on Little Salt Creek, and 
the Jack Sinn Wildlife Management Area (WMA) population on Rock Creek. 
For these populations, surveys showed that the number of individuals 
declined and then completely disappeared, leaving us to conclude that 
the population had become locally extirpated. The three remaining 
populations, Upper Little Salt Creek-North, Arbor Lake, and Little Salt 
Creek-Roper, all occur in the Little Salt Creek watershed, along a 
stream reach of approximately 7 miles (mi) (11 kilometers (km)) (Fowler 
2012, p. 41).

Habitat

    The Salt Creek tiger beetle has very specific habitat requirements. 
It occurs in remnant saline wetlands on exposed mudflats and along the 
banks of streams and seeps that contain salt deposits (Carter 1989, p. 
17; Spomer and Higley 1993, p. 394; LaGrange et al. 2003, p. 4). Soil 
moisture and soil salinity are critically important in habitat 
selection (Allgeier et al. 2004, p. 6) for foraging, where the female 
lays eggs, and for larval habitat. The subspecies uses soil moisture 
and soil salinity to partition habitat between other collocated species 
of tiger beetles (Allgeier 2005, p. 64). Moist, saline, open flats are 
needed for thermoregulation, reproduction, and foraging.
    Nebraska's eastern saline wetlands are maintained through 
groundwater discharge that originates in Pennsylvanian and/or Permian 
formations as it passes through a salt source likely located in north-
central Kansas. This system occurs in the flood plains of Salt Creek 
and flows in a general pattern from southwest to northeast of Lincoln, 
Nebraska, in Lancaster and southern Saunders Counties (Harvey et al. 
2007, p. 738). From the perspective of the larger Nebraska Eastern 
Saline Wetlands ecosystem, little is known about the connections 
between the surface water and the underlying groundwater and dissolved 
salts, or about the extent of the flow systems that feed the wetlands. 
From a local perspective, especially when making decisions about land 
management actions, it can be difficult to make informed management 
decisions about wetland protection or the impact of future development 
(Harvey et al. 2007, p. 738). However, the eastern saline wetlands are 
dependent upon a regional-scale groundwater flow system and may not be 
replenished indefinitely (Harvey et

[[Page 26017]]

al. 2007, p. 750). Subsurface geology, geomorphic features (including 
manmade features), and topographic characteristics all affect the 
hydrology of the wetlands, resulting in variability between each 
wetland (Kelly 2011, pp. 97-99).

Life History

    The Salt Creek tiger beetle typically has a 2-year life cycle of 
egg, larval, and adult stages (Ratcliffe and Spomer 2002, unpaginated; 
Allgeier 2005, pp. 3-4). Adult females lay eggs in moist, saline 
mudflats along the banks of seeps and in saline wetland habitats when 
soil moisture and saline levels are appropriate. Upon hatching, each 
larva excavates a burrow where it lives for the next 2 years; the 
burrow is enlarged by the larva as it grows. Larvae are sedentary 
predators, catching prey that passes nearby. Larvae are more directly 
affected by a limited food supply than adults because they are not as 
mobile as adults and almost never leave their burrows. Following 
pupation, adults emerge from the burrows in the late spring to early 
summer of their second year and mate. Adults are typically active in 
May, June, and July before dying (Allgeier 2005, p. 63).
    Adult Salt Creek tiger beetles have a mean dispersal distance of 
137 feet (ft) (42 meters (m)) and a maximum dispersal of 1,506 ft (459 
m), and most are recovered within 82 ft (25 m) of the marking location, 
based upon a study of 60 individuals (Allgeier 2005, p. 50) in which 24 
individuals were relocated following capture and 36 were not. The Salt 
Creek tiger beetle appears to have narrower habitat requirements for 
egg-laying, foraging, and thermoregulation than other tiger beetles 
found in Nebraska's eastern saline wetlands (Brosius 2010, p. 5).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Salt Creek tiger beetle during 
two comment periods. The first comment period associated with the 
publication of the proposed rule (78 FR 33282) opened on June 4, 2013, 
and closed on August 5, 2013. We also requested comments on the 
proposed critical habitat designation, associated draft economic 
analysis, and draft environmental assessment during a comment period 
that opened on March 13, 2014, and closed on March 28, 2014 (79 FR 
14206). We did not receive any requests for a public hearing. We also 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule, draft economic analysis, and draft environmental 
assessment during these comment periods.
    During the first comment period, we received eight comment letters 
addressing the proposed critical habitat designation. During the second 
comment period, we received nine comment letters addressing the 
proposed critical habitat designation, draft economic analysis, and 
draft environmental assessment. All substantive information provided 
during both comment periods has either been incorporated directly into 
this final determination or is addressed below. Comments received were 
grouped into 32 general issues relating to the proposed critical 
habitat designation for the Salt Creek tiger beetle, and are addressed 
in the following summary and incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four appropriate and 
independent individuals with scientific expertise that included 
familiarity with the subspecies, the geographic region in which the 
subspecies occurs, and conservation biology principles. We received 
responses from all four peer reviewers. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Salt Creek tiger beetle. The peer reviewers supported the addition 
of the Haines Branch and Oak Creek Units to the critical habitat 
designation to increase habitat redundancy, but expressed concern about 
whether these alone were sufficient to recover the Salt Creek tiger 
beetle. Concerns were raised as to whether populations of 500 
individuals or fewer can remain viable over the long term. A peer 
reviewer also pointed out that the proposed rule does not protect and 
ensure the availability of saline groundwater.
Peer Reviewer Comments
    (1) Comment: Multiple peer reviewers supported our proposal to 
designate critical habitat at the Haines Branch and Oak Creek Units for 
the benefit of habitat redundancy, thereby reducing the risk of 
subspecies' extinction.
    Our Response: We determined that the addition of the Haines Branch 
and Oak Creek Units are essential to the conservation of the subspecies 
because they provide necessary habitat redundancy in the event of a 
negative environmental impact associated with Little Salt Creek, the 
only stream system that currently supports the Salt Creek tiger beetle.
    (2) Comment: A peer reviewer pointed out that the four areas 
currently proposed probably represent the minimum amount of habitat 
needed for the subspecies to increase in abundance and distribution, 
but stated that these may not be enough to recover the subspecies.
    Our Response: Our proposed designation of critical habitat, based 
on the best scientific and commercial data available, sought to 
identify the habitat needed to support the survival and recovery of the 
Salt Creek tiger beetle. Our final designation is over 31 times larger 
than the amount of habitat that is currently available for the Salt 
Creek tiger beetle and includes three additional currently unoccupied 
areas (Rock Creek, Oak Creek, and Haines Branch Units). For our 
analysis, we determined that six populations were the minimum number of 
populations needed to maintain the subspecies' viability and that each 
viable population needed at least 116 ac to meet life requisites. Thus, 
a total of 696 ac (116 ac x 6 populations) are needed to maintain the 
subspecies' viability. Our final critical habitat acreage (1,110 ac) is 
59 percent larger than this amount (696 ac), to ensure that we have 
delineated sufficient habitat for the subspecies to survive and 
recover. Populations will continue to be monitored on an annual basis 
to track status and trends over time.
    (3) Comment: The peer reviewer stated concern about the reduction 
in the number of acres proposed from 1,933 to 1,110, pointing out that 
although redundancy was good, this reduction might negatively impact 
the net gain of adding additional units.
    Our Response: In this final revised designation, we have targeted 
areas that are better able to support the subspecies. This designation 
includes saline seeps where the subspecies has actually been found 
along Rock, Little Salt, Oak, and Haines Branch Creeks. Additionally, a 
137-foot (42 meter [m]) dispersal distance was extended outward on 
either side of these creeks to provide the Salt Creek tiger beetle with 
access to a vegetative mosaic around the salt flats located in the 
floodplain. The use of the 137 foot (42 m) dispersal distance outward 
from the creeks is the primary reason why the critical habitat acreage 
is less that our previous designation

[[Page 26018]]

(1,933 acres) (782 hectares [ha]), which included large blocks of 
adjacent Category I saline wetlands. These large blocks of Category I 
saline wetlands cannot support the Salt Creek tiger beetle without 
habitat restoration. In addition, this revised designation better 
provides for conservation by including additional unoccupied habitat so 
that we can establish additional populations needed to improve the 
subspecies' redundancy and resiliency, two important factors in 
reducing extinction risk.
    (4) Comment: A peer reviewer stated that there is uncertainty with 
regard to whether populations of 500 or fewer can remain viable over 
the long term although a small population of tiger beetles can remain 
provided suitable habitat is available.
    Our Response: Little is known about the minimal viable population 
size or the amount of habitat needed to sustain a viable population of 
Salt Creek tiger beetles. However, we have preliminarily determined 
that 500-1,000 adults is a reasonable estimate of a minimum viable 
population for the subspecies based on recovery plans for two other 
species of tiger beetles in the same genus (Cicindela) and surveys 
conducted for the Salt Creek tiger beetle since 1991. These plans 
consider a minimum viable population size to be at least 500-1,000 
adults (Hill and Knisley 1993, p. 23; Hill and Knisley 1994, p. 31). 
The authors base this estimate on available literature and on 
preliminary observations of population stability at several sites, but 
acknowledge that there is little information available regarding the 
amount of habitat necessary to support a population of this size. We do 
know that Salt Creek tiger beetles can persist in relatively small 
areas provided that suitable habitat is available. Populations will 
continue to be monitored on an annual basis to track status and trends 
of the subspecies over time.
    (5) Comment: A peer reviewer pointed out that the proposed rule 
still does not protect and ensure the availability of saline 
groundwater and guarantee the survival of the Salt Creek tiger beetle 
for all time.
    Our Response: We acknowledge the importance of groundwater in 
creating and maintaining saline wetlands including saline seeps and 
barren salt flats. However, there is a high level of uncertainty with 
regard to the location of groundwater relative to the surface, flow 
pattern, interaction with surface water, and influence on saline 
wetlands and streams. Our designation of critical habitat is based on 
the presence and location of the primary constituent elements (PCEs), 
which are habitat features that are critical to the survival and 
recovery of the Salt Creek tiger beetle. While we did not include 
groundwater itself as a PCE, groundwater contributes, in part, to the 
formation of the more specific habitat elements used by the Salt Creek 
tiger beetle, such as saline barrens and seeps found within saline 
wetland habitat. These more specific aspects of the species habitat are 
what we considered as the PCEs on which our critical habitat 
designation is based. Section 7 consultation under the Act (16 U.S.C. 
1531 et seq.) does, however, provide a level of protection to 
groundwater by triggering consultation should it be determined that a 
federal action may affect groundwater to the extent that such impacts 
would result in the destruction or adverse modification of these PCEs. 
Additionally, there are other important recovery actions, including 
land acquisition and restoration projects, that are underway to help 
protect the saline wetlands. We believe that these actions and the 
designation of critical habitat collectively will act to protect the 
saline groundwater system for the benefit of the Salt Creek tiger 
beetle.
    (6) Comment: Peer reviewers recommended further study on vegetative 
characteristics and wetland community classification, hydrologic 
research on Haines Branch and Oak Creek Units, and development of a 
plan to address light pollution.
    Our Response: We are supportive of further research that would aid 
in the recovery of the Salt Creek tiger beetle and the saline wetland 
ecosystem. Our section 6 program continues to provide funding to the 
Nebraska Game and Parks Commission (Commission) for research on 
federally listed endangered and threatened species. This source of 
funding is available to fund these kinds of important projects through 
a competitive grant process. As far as how this information pertains to 
the critical habitat designation, the Act requires us to make 
determinations based on the best scientific and commercial data 
available. It does not require additional studies, or that we wait 
until we have all the information that we would like to have. This rule 
is based on the best available information that we had at the time we 
made the decision.
Comments From the State
    Comments we received from the Commission, Nebraska Department of 
Roads (NDOR), Nebraska Military Department (NMD), and Nebraska 
Department of Environmental Quality (NDEQ) regarding the proposal to 
designate critical habitat for the Salt Creek tiger beetle are 
addressed below.
    (7) Comment: The Commission does not consider the proposed 
designation of 1,110 ac of critical habitat for the Salt Creek tiger 
beetle to be adequate for the conservation of the subspecies, and it is 
insufficient to maintain populations. The Commission stated that the 
approach used by the Service to prepare the proposed rule minimizes the 
amount of area designated as critical habitat rather than designating 
what is needed to conserve and sustain the subspecies. The Commission 
suggested that an adequate critical habitat designation would include 
all Category I saline wetlands and a 1,500 foot (457 m) zone to ensure 
the interconnection of ground and surface water flows and facilitate 
dispersal capabilities of the Salt Creek tiger beetle.
    Our Response: Our designation of critical habitat identifies the 
habitat needed to support the survival and recovery of the Salt Creek 
tiger beetle. In this final revised designation, we have targeted areas 
that are better able to support the subspecies. This designation 
includes saline seeps where the subspecies has actually been found 
along Rock, Little Salt, Oak, and Haines Branch Creeks. Additionally, a 
137-foot (42 meter [m]) dispersal distance was extended outward on 
either side of these creeks to provide the Salt Creek tiger beetle with 
access to a vegetative mosaic around the salt flats located in the 
floodplain. A designation as large as the one the Commission suggests 
would include a substantial amount of habitat that is currently 
unsuitable for the species without restoration. Our final designation 
is more than 31 times larger than the amount of habitat that is 
currently available for the Salt Creek tiger beetle and includes three 
additional unoccupied areas (Rock Creek, Oak Creek, and Haines Branch 
Units). For our analysis, we determined that six populations were the 
minimum number of populations needed to maintain the subspecies' 
viability and that each viable population needed at least 116 ac to 
meet life requisites. Thus, a total of 696 ac (116 ac x 6 populations) 
is needed to maintain the subspecies' viability. Our final critical 
habitat acreage (1,110 ac) is 59 percent larger than this amount (696 
ac), to ensure that we have delineated sufficient habitat for the 
subspecies to survive and recover. Populations will continue to be 
monitored on an annual basis to track status and trends over time.
    (8) Comment: The Commission stated that an unsubstantiated process 
that has no scientific basis was used by the Service to calculate the 
area needed for

[[Page 26019]]

critical habitat. The Commission further stated that the supposition by 
the Service that 153 Salt Creek tiger beetles occurring on 35 acres is 
a viable population and that amount of habitat can be used for 
calculating critical habitat requirements is indefensible.
    Our Response: We do not assume that 153 Salt Creek tiger beetles on 
35 acres is a viable population, and we discuss the process used to 
determine the acreage needed in the Population Spatial Needs section of 
this rule. As we noted previously, little is known about the minimal 
population size or the amount of habitat needed to sustain a viable 
population of Salt Creek tiger beetles. However, general estimates of a 
minimum viable wildlife population typically range from 500-1,000 
individuals (Shaffer 1981, p. 133; Thomas 1990, p. 325). We used the 
estimate of 153 adult beetles (the minimum population of Salt Creek 
tiger beetles counted over the past 10 years) as a starting point, and 
assumed that at least 3.3 times that number would be needed to achieve 
a single viable population, with at least six populations needed to 
maintain the subspecies' viability. We further estimated that if those 
153 beetles occupied approximately 35 acres of habitat, it was 
reasonable to assume that 3.3 times as many beetles would require 
approximately 3.3 times as much habitat (116 acres) to support a single 
viable population, and 696 acres would support six populations. If the 
higher estimate (1,000 adult beetles) is used, similar calculations 
would conclude that approximately 232 ac would be needed to support a 
single viable population, and 1,392 ac would be needed to support six 
populations. Therefore, approximately 696-1,392 ac would sustain the 
viability of Salt Creek tiger beetles. Consequently, we believe that 
the designation of 1,110 ac of critical habitat is a reasonable 
estimate of the amount of habitat essential for the subspecies. We 
acknowledge the assumptions and uncertainties associated with our 
estimates; however, in the absence of better information we conclude 
that this is a reasonable approach.
    (9) Comment: The Commission questioned the assumption used by the 
Service that just because the area is occupied it can also sustain a 
population over the long term. The Commission pointed out that three of 
six known populations have disappeared already and that numbers of 
individuals are on a general decline within those three populations as 
an indication that the population is not sustaining itself. Further, 
the existing populations still face the same threats of habitat loss 
and degradation.
    Our Response: Our designation of critical habitat for the Salt 
Creek tiger beetle is based on the best scientific and commercial data 
available. We acknowledge that there is uncertainty about whether the 
existing populations can be maintained. However, the areas included in 
our final designation constitute the best remaining Salt Creek tiger 
beetle habitat in existence. We are aware of no areas that would be 
better or more capable of supporting Salt Creek tiger beetles. We agree 
with the Commission that the 35 acres that are currently occupied by 
the Salt Creek tiger beetle are insufficient to sustain and recover the 
subspecies. For this reason, we are designating an additional 249 acres 
of critical habitat on Little Salt Creek. Populations will continue to 
be monitored on an annual basis to track status and trends of the 
subspecies, and future adjustments in the amount of habitat protected 
may be necessary.
    (10) Comment: The Commission stated that the occupied habitat 
currently proposed by the Service for designation is at high risk and 
marginal, and will not sustain the Salt Creek tiger beetle over the 
long term. The Commission stated that the habitat proposed for 
designation occurs on steep slopes along stream banks and can be easily 
eroded and overcovered following bank sloughing that buries larval 
burrows. Prey is likely not as abundant in these locations given the 
sloping bank and potential inability of larvae to capture prey in 
sufficient qualities.
    Our Response: The habitat included in our final designation 
constitutes the best available remaining habitat for the subspecies. As 
described in our rule to list the subspecies, habitat for the Salt 
Creek tiger beetle has been lost and severely degraded by commercial, 
residential, and infrastructure developments leading to intrusion of 
excess freshwater and dilution of salinity and channelization and bank 
armoring projects resulting in entrenchment of saline streams and loss 
of saline wetlands through hydrologic modification. This large-scale 
habitat loss and degradation led to our decision to list the 
subspecies. Although the remaining habitat is degraded, it constitutes 
the best Salt Creek tiger beetle habitat remaining. We agree with the 
Commission that 35 acres that are currently occupied by the Salt Creek 
tiger beetle are insufficient to sustain and recover the subspecies. 
For this reason, we are designating an additional 249 acres of critical 
habitat on Little Salt Creek. We recognize that habitat used by the 
Salt Creek tiger beetle along Little Salt Creek beetle is at high risk 
due to over-covering by bank sloughing and bank erosion, which scours 
away developing larvae. We hope that the listing and critical habitat 
designation will facilitate better conservation and recovery of the 
subspecies and its habitat.
    (11) Comment: The Commission expressed concern that the small areas 
of habitat proposed for designation by the Service would result in a 
loss of population resilience due to amplified effects of limiting 
factors including drought, prey reduction, interspecific competition, 
parasitism, and predation risk on a small population of Salt Creek 
tiger beetles.
    Our Response: In this final designation, we have targeted areas 
that are better able to support the subspecies. We have determined that 
the 35 acres that are currently occupied by the Salt Creek tiger beetle 
are insufficient to sustain the subspecies. For this reason, we are 
designating an additional 249 acres of critical habitat on Little Salt 
Creek, which should lead to population expansion and increased 
resiliency. In addition, this designation better provides for 
conservation by including additional unoccupied habitat so that we can 
establish additional populations needed to improve the subspecies' 
redundancy and resiliency, two important factors in reducing extinction 
risk. This subspecies' vulnerability to threats is part of the reason 
that the subspecies is listed as endangered.
    (12) Comment: The Commission pointed out that the language 
``limited to its range'' as stated in the proposed rule is not in the 
definition of critical habitat and introduces criteria not specified in 
the definition that would result in reducing the acreage proposed for 
critical habitat. The Commission indicated that the inclusion of this 
provision ignores a primary habitat component that is required to 
protect critical habitat for the Salt Creek tiger beetle, namely areas 
that are adjacent to Salt Creek tiger beetle habitat that are 
hydrologically connected and upon which occupied habitat is dependent 
for maintaining populations of the subspecies, even if it is not 
present at these areas. The Commission recommends that hydrologically 
connected areas that are adjacent to the areas under the current 
proposal be included because they meet the definition of critical 
habitat and they are essential for the conservation of the subspecies 
under the Act even though the Salt Creek tiger beetle may not be found 
in these areas.

[[Page 26020]]

    Our Response: In our designation of critical habitat for the Salt 
Creek tiger beetle, we used a two-pronged approach to designate areas 
that are essential for the survival and recovery of the subspecies. 
Under the first prong, areas within the geographical area occupied by 
the (sub)species at the time it was listed are included in a critical 
habitat designation if they contain the physical and biological 
features (1) which are essential to the conservation of the 
(sub)species and (2) which may require special management 
considerations or protection. Under the second prong of the Act's 
definition of critical habitat, we can designate critical habitat in 
areas outside the geographical area occupied by the (sub)species at the 
time it is listed, upon a determination that such areas are essential 
for the conservation of the (sub)species. We designate critical habitat 
in areas outside the geographical area occupied by the species only 
when a designation limited to its range would be inadequate to ensure 
the conservation of the species. We concluded that the designation of 
the Little Salt Creek Unit alone would be inadequate to ensure the 
conservation of the Salt Creek tiger beetle. As such, our designation 
also included the Oak, Rock, and Haines Branch Creek Units.
    In order to include surrounding vegetative areas that provide 
essential resources and support functions to the subspecies, we 
delineated areas on segments of the four creeks that extended 137 ft 
(the average known dispersal distance for the subspecies) on either 
side of the stream course. We used 137 ft because it is the average 
distance that the Salt Creek tiger beetle can move to meet life-history 
requisites which can be satisfied within the stream segment and 
adjacent saline barrens and seeps in the floodplain area. We concluded 
that this distance would provide the subspecies with sufficient prey 
resources. Additionally, we have included sufficient occupied and 
unoccupied habitat to contribute to the recovery the Salt Creek tiger 
beetle. We have included 826 acres of unoccupied areas because we 
determined that they are essential for the conservation of the 
subspecies. We believe that this amount is a reasonable amount of area 
to provide habitat for an additional 1,500 beetles in the future.
    Our designation of critical habitat for the Salt Creek tiger beetle 
must be based on the best scientific and commercial data available. 
There are other important recovery actions, including land acquisition 
and restoration projects, underway in the saline wetlands. We believe 
that these actions combined with our designation of critical habitat 
will act in concert to protect the saline groundwater system for the 
benefit of the Salt Creek tiger beetle.
    (13) Comment: The Commission stated that the use of the 137-foot 
buffer around Salt Creek tiger beetle habitat by the Service was 
inadequate based on research conducted on documented movement patterns 
showing that the subspecies can move up to 0.25-mile. They also pointed 
out that a 137-foot buffer is unrelated to protection of the saline 
system, which maintains subspecies' habitat through the complex 
interaction of ground and surface water.
    Our Response: We chose to use a mean dispersal distance of 137 feet 
because it is an average distance, a scientifically accepted way of 
accounting for outliers in the data, and based on the best scientific 
and commercial data available. The use of a 137-foot dispersal distance 
was based on a study done by Allgeier (2005, pp. 50-52) where 60 marked 
Salt Creek tiger beetles were released at five locations. Of those, 24 
were recaptured with a mean dispersal distance of 137 feet (42 m) and a 
standard error of 21.58. Most individually-marked beetles were 
recaptured within 25 m of the location from where they were first 
captured and marked. Only three of the 24 beetles recovered were found 
at farther distances; one was recaptured 1,506 feet (459 m) away and 
two were recaptured 1,312 feet (400 m) away from where they were first 
captured and marked. Our use of a 137-foot buffer on either side of the 
streams designated as critical habitat is not intended to address 
protection of the complex interactions between surface and groundwater, 
which are important for maintaining saline wetland habitat for the Salt 
Creek tiger beetle. We used 137 ft because it is the average distance 
that the Salt Creek tiger beetle can move to meet lifehistory 
requisites, which can be satisfied within the stream segment and 
adjacent saline barrens and seeps in the floodplain area while 
minimizing the inclusion of unsuitable habitat areas. We also concluded 
that this distance would provide the subspecies with sufficient prey 
resources.
    (14) Comment: The Commission recommends that all Category 1 saline 
wetlands be designated as critical habitat and that a 1,500-foot buffer 
encompass these sites to protect the saline wetland/surface and 
groundwater interaction and to address movement capabilities of the 
Salt Creek tiger beetle to ensure dispersal among saline habitats.
    Our Response: We appreciate the recommendation and the Commission's 
commitment toward the recovery of the Salt Creek tiger beetle and the 
saline wetland ecosystem on which it depends. However, our designation 
of critical habitat focuses on the PCEs essential to the conservation 
of the Salt Creek tiger beetle. These PCEs are primarily located along 
Rock, Little Salt, Oak Creek, and Haines Branch Creeks, but in many 
cases are in locations lacking in adjacent saline wetlands. For this 
reason, we do not designate all the Category I saline wetlands because 
they lack the necessary PCEs. Thus, our designation represents the 
habitat needed to support the conservation of the Salt Creek tiger 
beetle and is based on the best scientific and commercial data 
available.
    (15) Comment: The NDOR inquired if the proposed critical habitat 
designation includes the road and highway rights-of-way or the toe 
slopes that would fall within the right-of-way boundary.
    Our Response: This revised critical habitat designation is for 
areas that have the primary constituent elements (PCEs) required by the 
Salt Creek tiger beetle and that require special management 
considerations and protection. As such, critical habitat does not 
include roads, road shoulders, road toe slopes, and other paved areas, 
but could include lands within a highway right-of-way beyond the 
aforementioned structures if those lands contain the primary 
constituent elements. Additionally, a federal action involving roads, 
road shoulders, road toe slopes, and other paved areas will not trigger 
section 7 consultation with respect to critical habitat unless the 
specific action would affect the physical or biological features in the 
adjacent critical habitat.
    (16) Comment: The NDOR commented that the acreage and ownership 
percentages are reversed in the table between City of Lincoln and NDOR 
for the Oak Creek Unit.
    Our Response: The table was modified to reflect the correct acreage 
and ownership.
    (17) Comment: The NMD commented about potential restrictions at 
their Lincoln Airbase due to the proposed designation of critical 
habitat for the Salt Creek tiger beetle. These concerns included 
potential restrictions on type of aircraft (rotary or fixed winged), 
landing and departure areas, and flight path due to the proposed 
critical habitat designation.
    Our Response: The NMD's Lincoln Airbase is not located within the 
boundaries of the critical habitat designation. As such, we do not 
anticipate recommending any potential restrictions on aircraft type, 
landing and departure areas, and/or flight path given

[[Page 26021]]

that the distance between NMD property boundaries and the large salt 
flat within the Oak Creek Unit exceeds 0.65 mile, a distance exceeding 
the flight capacity of the Salt Creek tiger beetle. We are unaware of 
any research on the Salt Creek tiger beetle or any other tiger beetle 
that would support such modifications.
    (18) Comment: The NMD commented that the proposed critical habitat 
designation may result in restrictions to routine maintenance and 
repair of the Lincoln Airbase in terms of requiring modifications to 
lighting, mowing, water runoff or drainage, fence repair, road repair, 
and replacement.
    Our Response: The NMD's Lincoln Airbase is not located within the 
boundaries of the critical habitat designation. As such, we do not 
anticipate recommending any potential restrictions on the routine 
maintenance and repair activities that occur at the Lincoln Airbase 
given that the distance between NMD property boundaries and the large 
salt flat within the Oak Creek Unit exceeds 0.65 mile, a distance 
exceeding the flight capacity of the Salt Creek tiger beetle. 
Additionally, the presence of Oak Creek creates a protective boundary 
around the Oak Creek Unit, thereby preventing runoff and other drainage 
from entering the Oak Creek Unit.
    (19) Comment: The NMD expressed concern that the Salt Creek tiger 
beetle would migrate on to the Lincoln Airbase from the Oak Creek Unit.
    Our Response: The Salt Creek tiger beetle has very narrow habitat 
preferences and would not migrate on to the Lincoln Airbase where such 
habitat is unavailable.
    (20) Comment: The NMD espressed concern about the potential for a 
future increase in the critical habitat designation within the Oak 
Creek Unit.
    Our Response: Our critical habitat designation is based on a 
targeted identification of primary constituent elements which comprise 
suitable habitat for the Salt Creek tiger beetle. Our analysis showed 
that none of the primary constituent elements are present on the 
Lincoln Airbase and are not likely to exist there in the future. As 
such, we would not expand our critical habitat designation to that area 
in the future.
    (21) Comment: The NDEQ pointed out that the designation of critical 
habitat for the Salt Creek tiger beetle might prohibit new and expanded 
discharges from wastewater treatment facilities, municipal separate 
storm sewer system, and water treatment plants that are located 
upstream from the critical habitat units on Rock, Little Salt, Oak, and 
Haines Branch Creeks. The NDEQ suggested further dialogue with the 
Service on how to implement their responsibilities under the Clean 
Water Act without requiring additional unneeded infrastructure and 
expeditures by those entities holding permits for these discharges.
    Our Response: The Service has engaged in and will continue to 
maintain a dialogue with NDEQ about these various forms of discharges. 
We note that prohibitions against new and expanded discharges by NDEQ 
to protect the Salt Creek tiger beetle may not be necessary depending 
on their volume and timing.
Public Comments
    (22) Comment: The proposed revised designation of only 1,110 ac of 
critical habitat for the Salt Creek tiger beetle is inadequate to 
ensure the survival and recovery of the subspecies. The Service should 
err on the side of the subspecies and include any potential saline 
wetland habitat in the proposed critical habitat.
    Our Response: We believe that our designation of critical habitat 
is the amount of habitat needed to support the survival and recovery of 
the Salt Creek tiger beetle and is based on the best scientific and 
commercial data available. We have determined that the 35 acres 
currently occupied by the Salt Creek tiger beetle is insufficient to 
sustain the subspecies. We are designating an additional 249 acres of 
critical habitat on Little Salt Creek, plus three additional unoccupied 
units, which should lead to population expansion and resiliency. In 
this final revised designation, we have targeted areas that are better 
able to support the subspecies. This designation includes saline seeps 
where the subspecies has actually been found along Rock, Little Salt, 
Oak, and Haines Branch Creeks. Additionally, a 137-foot (42 meter [m]) 
dispersal distance was extended outward on either side of these creeks 
to provide the Salt Creek tiger beetle with access to a vegetative 
mosaic around the salt flats located in the floodplain. The use of the 
137 foot (42 m) dispersal distance outward from the creeks is the 
primary reason why the critical habitat acreage is less that our 
previous designation (1,933 acres) (782 hectares (ha)), which included 
large blocks of adjacent Category I saline wetlands. These large blocks 
of Category I saline wetlands would need to be restored to provide 
habitat for the Salt Creek tiger beetle.
    (23) Comment: A commenter stated that the method used by the 
Service of determining critical habitat acreage based on an ``acres 
needed'' mathematical model is not biologically defensible, risks 
extinction of the subspecies, and is arbitrary and capricious. 
Determining that amount of habitat available at the time of a survey 
that is sufficient to sustain the population assumes that the 
population is evenly distributed and all the primary constituent 
elements are available within those 35 acres to support a population 
over the long term. There is no information that demonstrates that 
these assumptions were met or considered.
    Our Response: Our designation of critical habitat, based on the 
best scientific and commercial data available, identifies habitat 
needed to support the survival and recovery of the Salt Creek tiger 
beetle. As is described in this final rule, our determination is based 
on an evaluation of habitat needs and mapping of primary constituent 
elements in occupied and unoccupied areas. We determined that the 35 
occupied acres are insufficient to support the conservation of the Salt 
Creek tiger beetle. The purpose of the mathematical calculation is to 
inform our decision on the amount of critical habitat that is needed to 
ensure the conservation and recovery of the Salt Creek tiger beetle. 
These calculations help confirm that the 1,110 designated acres fall 
within the range of acres determined to be needed for recovery of the 
subspecies. (Also see our response to comment 8).
    (24) Comment: A commenter pointed out the high degree of variation 
between the use of mark/recapture counts and visual counts to determine 
Salt Creek tiger beetle population size and lack of confidence that 
should be placed on visual counts; the commenter recommended use of 
mark/recapture counts on a regular basis in conjunction with visual 
counts of the Salt Creek tiger beetle. The commenter pointed out that 
the acreage of critical habitat needed should be based on the habitat 
needs and presence of PCEs and not on the amount of land occupied that 
was measured in one survey year.
    Our Response: We acknowledge the commenter's concerns about the 
limitations of mark/recapture studies and recognize the implication 
that the type of survey has in our designation of critical habitat. 
However, a review of the data shows that mark/recapture studies were 
conducted on a small population that may have experienced immigration 
and emigration and, thus, may not have met the assumptions inherent to 
the use of mark/recapture methods. We determined that visual surveys 
provided the best available scientific information

[[Page 26022]]

because they were based on consistent survey methods done under similar 
intensity, and were done at the same time on an annual basis since 1991 
by the University of Nebraska at Lincoln.
    (25) Comment: Commenters stated that there is no scientific support 
for the assertion that 500 individuals in a population is viable given 
that the designation of 500 individuals is based on survey data from 
1991 through 2011, when the number of individuals and populations were 
in decline. Thus, use of 500 individuals is based on an estimate taken 
not at the time of stability, but during a time of decline. While 
current scientific estimates are not available for what population size 
may be required by the Salt Creek tiger beetle, the commenter 
recommended that the Service should alternatively designate critical 
habitat that supports the recovery of larger population sizes to err on 
the side of the subspecies.
    Our Response: See our response to Comment (8), above.
    (26) Comment: A commenter pointed out that the Salt Creek tiger 
beetle is facing extinction in the near future and suggested that 
instead of three populations left that only two are left (and one is 
nonviable--Upper Little Salt Creek) and that these two populations 
appear to be a single population given synchrony in annual population 
numbers between Little Salt Creek at Arbor Lake and Lower Little Salt 
Creek.
    Our Response: We have modified the text in this rule to show that 
the Upper Little Salt Creek population may not be viable. We are 
designating additional acres adjacent to the currently occupied area on 
Upper Little Salt Creek in the hopes of expanding the population to 
viable levels. However, we believe that the Little Salt Creek-Arbor 
Lake and Lower Little Salt Creek populations are discrete. Little, if 
any, population emmigration and immigration likely occurs between these 
two populations because of the lack of habitat between them and because 
the distance between them far exceeds the dispersal capability of the 
Salt Creek tiger beetle. However, these populations are likely 
influenced by similar abiotic events, which have similar effect on 
population numbers over time. Populations will continue to be monitored 
on an annual basis to track status and trends over time.
    (27) Comment: A commenter recommended the use of water as a PCE for 
the designation of critical habitat for the Salt Creek tiger beetle 
given the requirements of adults to have it available during mating and 
ovipositing.
    Our Response: We agree that water is an important aspect of Salt 
Creek tiger beetle recovery in terms of providing moist soils for 
thermoregulation and suitable sites for larval habitat. As such, we 
identified surface water and groundwater as physical features for the 
Salt Creek tiger beetle in our proposed rule and this final rule for 
the designation of critical habitat. While we did not include 
groundwater itself as a PCE, groundwater contributes, in part, to the 
formation of the more specific habitat elements used by the Salt Creek 
tiger beetle, such as saline barrens and seeps found within saline 
wetland habitat. These more specific aspects of the species habitat are 
what we considered as the PCEs on which our critical habitat 
designation is based. Also see our response to Comment 5.
    (28) Comment: One commenter stated that the proposed rule did not 
consider the importance of peripheral populations in achieving 
population stability in addition to the source populations as it did in 
the Service's advanced concept paper from 2005. The commenter 
recommended the inclusion of peripheral populations in our proposed 
revised designation.
    Our Response: We recognize that the presence of additional 
populations is important to the conservation of the Salt Creek tiger 
beetle. For this reason, we included the Haines Branch and Oak Creek 
Units as additions to the Rock and Little Salt Creek Units as part of 
this designation. We are hopeful that the subspecies can be 
reestablished in these areas in the future through reintroductions.
    (29) Comment: A commenter inquired as to the basis for how the Oak 
Creek Unit was determined to be critical habitat for the Salt Creek 
tiger beetle.
    Our Response: Our analysis of critical habitat was based on the 
availability of PCEs for the Salt Creek tiger beetle. A large salt flat 
located at the Oak Creek Unit was determined to have suitable habitat 
based on the presence of salt flats and saline seeps within the 
adjacent right of way along Interstate 80. The presence of exposed 
salts indicates that water is evaporating from the surface, supporting 
our assertion that the site has appropriate hydrology to support the 
Salt Creek tiger beetle. Additionally, a Salt Creek tiger beetle survey 
done in 1992 identified suitable habitat at the Oak Creek Unit. 
Although this survey is dated, there has been no activity in the area 
that would result in the modification of saline soils or hydrology such 
that suitable habitat would no longer be present at the Oak Creek Unit.
    (30) Comment: Two commenters expressed concern that the proposed 
designation of critical habitat for the Salt Creek tiger beetle could 
affect current and future operations at the Lincoln Airport. The 
commenters suggested that any changes to airport operations, such as 
modifications to flight patterns, changes to aircraft operating 
parameters, or restrictions on maintenance and construction, could 
result in administrative and implementation costs to the airport that 
are not addressed in the economic analysis.
    Our Response: We do not anticipate any restrictions or 
modifications to airport operations or other activities occurring on 
Lincoln Airport lands. The lands we are designating are not used for 
aircraft operations but are considered a noise buffer for the airport. 
The types of activities known to occur within the area of the critical 
habitat designation include agriculture, grazing, and other forms of 
routine land management.
    Activities occurring within the area of the critical habitat 
designation at the airport are unlikely to require a permit from a 
Federal agency. The Federal Aviation Administration (FAA) may initiate 
section 7 consultation prior to issuing future grant funding for the 
operation or maintenance of the airport. However, we do not anticipate 
requesting any restrictions or modifications to airport operations or 
the use of alternative flight paths because the airport itself is 
nearly 0.25-mile away from the critical habitat area, thus, far 
exceeding the dispersal distance of the subspecies. Further, we have no 
information to indicate that flight activities would have an effect on 
the Salt Creek tiger beetle or its critical habitat.
    (31) Comment: Two commenters suggested that the proposed 
designation of critical habitat for the Salt Creek tiger beetle could 
affect the ability of the Lincoln Airport to secure grants from the 
FAA's Airport Improvement Program. In particular, the commenters 
expressed concern that the designation of critical habitat could lead 
to violations of grant assurances for safe airport operation if the 
designation leads to the implementation of conservation measures, such 
as restrictions on mowing; this could increase the presence of wildlife 
on the airfield or the likelihood of wildlife/aircraft strikes. The 
commenters also expressed concern that the designation of critical 
habitat could lead to violations of grant assurances for financial 
self-sufficiency if the designation leads to restrictions on 
agricultural or grazing activity on airport lands. Violations of grant 
assurances could jeopardize the

[[Page 26023]]

airport's ability to secure future Federal funding.
    Our Response: The types of activities known to occur within the 
portion of the Lincoln Airport that is included within the critical 
habitat designation include agriculture, grazing, and routine land 
management activities. As described above, critical habitat is unlikely 
to result in changes to these activities.
    (32) Comment: One comment suggested that we failed to fulfill our 
responsibility to communicate and coordinate with stakeholders by not 
communicating with the Lincoln Airport Authority as part of the 
economic analysis.
    Our Response: The contractor conducting the economic analysis 
attempted to contact the Lincoln Airport Authority via email on 
December 10, 2013, and in subsequent phone calls. Because the 
contractor was unable to reach the Lincoln Airport Authority, the 
economic analysis references information provided by the Lincoln/
Lancaster County Planning Department.

Summary of Changes From Proposed Rule

    We have made changes to this final rule based on the information we 
received in comments regarding the origins of the salinity in Salt 
Creek tiger beetle habitat, viability of the Upper Little Salt Creek 
population, and landowner and acreage information. The following is a 
summary of our changes:
     Text in the Habitat and ``Surface Water'' sections now 
states that the source of salinity in Salt Creek tiger beetle habitat 
originates from the Pennsylvanian and/or Permian formations, and that 
the actual salt source is in north-central Kansas.
     Acreage and ownership percentages and land ownership 
descriptions were verified and corrected for the Oak Creek Unit in 
Table 2.
     Text was modified to clarify that the Upper Little Salt 
Creek population may not be viable in the Final Critical Habitat 
designation section of this Rule, Little Salt Creek Unit description.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
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 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 obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its 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

[[Page 26024]]

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, other 
unpublished materials, or experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. 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 at the time of these planning 
efforts calls for a different outcome.

Physical or 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, in determining which areas within the 
geographical area occupied by the (sub)species at the time of listing 
to designate as critical habitat, we consider the physical or 
biological features essential to the conservation of the (sub)species 
and which may require special management considerations or protection. 
These 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, or 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 specific physical or biological features essential 
for the Salt Creek tiger beetle from studies of this subspecies' 
habitat, ecology, and life history as described in the Critical Habitat 
section of the proposed rule to designate critical habitat published in 
the Federal Register on June 4, 2013 (78 FR 33282), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on October 6, 2005 
(70 FR 58335). We have determined that the Salt Creek tiger beetle 
requires the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    Individual Spatial Needs--The Salt Creek tiger beetle requires 
areas associated with saline seeps along stream banks and salt flats 
with the appropriate soil moisture and salinity levels and that are 
largely barren and nonvegetated. During the subspecies' nearly 2-year 
larval stage, its spatial requirements are small, but very specific in 
terms of soil texture, moisture, and chemical composition (Allgeier et 
al. 2004, pp. 5-6; Allgeier 2005, p. 64; Brosius 2010, p. 20; Harms 
2012a, pers. comm.). At this stage, the subspecies is a sedentary 
predator that positions itself at the top of its burrow to catch prey 
that passes nearby. Tiger beetle larvae do not move more than an inch 
or so from where eggs are originally deposited by the female (Brosius 
2010, p. 64).
    The adult stage of the Salt Creek tiger beetle lasts a few weeks in 
May, June, and July (Carter 1989, pp. 8 and 17). Adults have greater 
spatial requirements in order to accommodate foraging needs and egg-
laying. We do not have information regarding historic dispersal 
distances for the subspecies. However, adults are strong fliers (Carter 
1989, p. 9); therefore, it is likely they could disperse some distance 
if suitable habitat was available. A recent study documented adults 
dispersing up to 1,506 feet (ft) (459 meters(m)), with a mean dispersal 
distance of 137 ft (42 m), and most individuals dispersed less than 82 
ft (25 m) (Allgeier 2005, p. 50). Longer dispersal movements almost 
certainly occur (Allgeier 2005, p. 51).
    A female will lay up to 50 eggs during her brief adult season, each 
in a separate burrow (Rabadinanth 2010, p. 14). We do not have 
subspecies-specific information regarding the typical distance between 
burrows in the wild. However, tiger beetles using burrows in close 
proximity to one another may succumb to intraspecific and interspecific 
competition (Brosius 2010, p. 27). Efforts to breed the subspecies in 
captivity attempted to keep burrows in terrariums at least 1 inch (25 
milimeter) apart; at this distance, incidences of burrow collapse due 
to proximity to another burrow were documented (Allgeier 2005, pp. 121-
122).
    Population Spatial Needs--We do not have subspecies-specific 
information regarding a minimum viable population size for the Salt 
Creek tiger beetle or the amount of habitat needed to sustain a viable 
population. However, we have preliminarily determined that 500-1,000 
adults is a reasonable estimate of a minimum viable population for the 
subspecies based on recovery plans for two other species of tiger 
beetles in the same genus (Cicindela). These plans consider a minimum 
viable population size to be at least 500-1,000 adults (Hill and 
Knisley 1993, p. 23; Hill and Knisley 1994, p. 31). The authors base 
this estimate on available literature and on preliminary observations 
of population stability at several sites, but acknowledge that there is 
little information available regarding the amount of habitat necessary 
to support a population of this size.
    The Salt Creek tiger beetle is historically known from six 
populations (70 FR 58336, October 6, 2005); four from Little Salt 
Creek, one from Rock Creek, and one from Oak Creek (i.e., Capitol 
Beach). Half of these populations are now extirpated. Our recovery goal 
for the subspecies is to re-establish six populations, each with a size 
of 500 individuals or more. Little Salt Creek contains saline wetland 
and stream habitats currently occupied by the remaining populations of 
the subspecies. Rock and Oak Creeks also contain saline wetland and 
stream habitats although the subspecies has disappeared from those 
areas. One of the populations at Little Salt Creek (Upper Little Salt 
Creek South population) was extirpated, leaving the remaining three 
populations. The two additional populations on Rock and Oak Creeks 
existed prior to the mid-1990s (70 FR 58336, October 6, 2005). Visual 
surveys of adults at the three remaining populations on Little Salt 
Creek over the past 10 years have ranged from 153 to

[[Page 26025]]

745 individuals (Harms 2009, p. 3). The Service determined that 38 ac 
(15 ha) of scattered barren salt flats and saline stream edges remain 
in the Little Salt Creek watershed, with approximately 35 ac (14 ha) 
currently occupied by the Salt Creek tiger beetle (70 FR 58342, October 
6, 2005; George and Harms 2013, pers. comm.).
    In the absence of specific data on how much space is required to 
maintain viable populations of Salt Creek tiger beetles, we derived an 
estimate of the amount of habitat needed to support six viable 
populations as follows. The minimum population of Salt Creek tiger 
beetles counted over the past 10 years was 153 adult beetles in 2005, 
from three populations. We consider a minimum of 500 adult beetles 
necessary to maintain a single viable population. The small population 
of 153 beetles occupied approximately 35 ac (14 ha) of habitat. We 
estimate that 3.3 times as much habitat would be required to support a 
minimum of 500 beetles; therefore approximately 116 ac (47 ha) are 
required to support a single viable population, and approximately 696 
ac (282 ha) would be required to support 6 viable populations. This 
estimate is very conservative from the standpoint that 500 individuals 
was used as a minimum viable population size. If the upper number in 
the range of 500-1,000 adults to support a single viable population is 
used, similar calculations would conclude that approximately 1,368 ac 
(554 ha) are required to support six viable populations of the 
subspecies. Therefore, based upon the best available information, it is 
reasonable to assume that 696-1,368 ac (282-554 ha) are needed to 
maintain the subspecies' viability. Therefore, we designed our revised 
critical habitat units to provide sufficient habitat to ensure the 
subspecies' recovery.
    Summary--Based upon the best available information, we conclude 
that recovery of the Salt Creek tiger beetle would require at least six 
populations, with each population containing at least 500-1,000 adults 
of the subspecies. We estimate that at least 696-1,368 ac (282-554 ha) 
would be required to maintain these populations. Given the nature of 
insect populations, which are cyclic and subject to local extirpations, 
the subspecies must be sufficiently abundant and in a geographic 
configuration that allows them to repopulate areas following local 
extirpations when suitable habitat conditions return. Salt Creek tiger 
beetles require nonvegetated areas associated with stream banks, mid-
channel islands, and salt flats to meet life-history requirements as 
core habitat, as well as adjacent habitat to facilitate dispersal and 
protect core habitat. We identify these spatial characteristics as a 
necessary physical feature for this subspecies.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Food--The Salt Creek tiger beetle is a predatory insect. Larvae are 
sedentary predators that capture small prey passing over or near their 
burrows on the soil surface. Adults are very quick and agile, and use 
this ability to actively hunt a wide variety of flying and terrestrial 
invertebrates (Allgeier 2005, pp. 1-2, 5). Insect prey may be supported 
by the limited open habitat in close proximity to the burrows or by the 
adjacent vegetated habitat. Typical prey items include insects 
belonging to the orders Coleoptera (beetles), Orthoptera (grasshoppers 
and crickets), Hemiptera (true bugs), Hymenoptera (ants, bees, and 
wasps), Odonata (dragonflies), Diptera (flies), and Lepidoptera (moths 
and butterflies) (Allgeier 2005, p. 5). Ants appear to be the most 
commonly observed prey of adult tiger beetles (Allgeier 2005, p. 5). 
Larvae are more easily affected by a limited food supply than adults 
because they almost never leave their burrows and must wait for prey 
(Ratcliffe and Spomer 2002, unpaginated).
    Surface Water--The Salt Creek tiger beetle prefers very moist soils 
for egg-laying and during its larval stage, with mean soil moisture of 
47.6 percent (Allgeier 2005, p. 72). This high moisture percentage 
likely aids in the subspecies' ability to tolerate heat (Allgeier 2005, 
p. 75) and keeps the soil malleable during burrow construction and 
maintenance (Harms 2012b, pers comm.). Adults of the subspecies spend 
significantly more time on damp surfaces and in shallow water than 
other tiger beetles (Ratcliffe and Spomer 2002, unpaginated; Brosius 
2010, p. 70). This close association with seeps and adjacent shallow 
pools may allow adults to forage at times when high temperatures limit 
foraging by other saline-adapted tiger beetles. However, this 
association may also explain some of the subspecies' vulnerability to 
extinction--beyond the loss of saline wetlands in general, the limited 
seeps and pools in the remaining habitat may represent a further 
limitation regarding habitat (Brosius 2010, p. 74). Channelization 
along Salt Creek has increased its velocity, which in turn has resulted 
in deep cuts in the lower reaches of its tributaries. This change has 
caused these tributary streams to function like drainage ditches, 
lowering adjacent water table levels and drying many of the saline 
wetlands that once provided suitable habitat for the subspecies (Farrar 
and Gersib 1991, p. 29; Murphy 1992, p. 12). Additionally, saline seeps 
located along Little Salt Creek have become over-covered following bank 
sloughing that was facilitated by channel entrenchment. Seeps are 
currently the only locations that provide suitable larval habitat.
    Groundwater--Nebraska's eastern saline wetlands are fed by 
groundwater aquifer discharge originating from Pennsylvanian and/or 
Permian formations with the actual salt source located in north-central 
Kansas. Urban expansion associated with the City of Lincoln is placing 
increasing demands on the aquifer (Gosselin et al. 2001, p. 99). The 
official soil series description for the ``Salmo'' soil series notes 
that the water table is near the surface in the spring and at depths of 
2-4 ft (0.6-1.2 m) in the fall (USDA 2009). Harvey et al. (2007, p. 
740) monitored groundwater levels and groundwater salinity at Rock 
Creek and Little Salt Creek from 2000 through 2002. They found that 
groundwater did not reach the soil surface and was present in the upper 
few yards (meters) of the soil column only during the spring when 
groundwater levels were at their highest due to winter snowmelt and 
spring rainstorms. They also noted that the depth of groundwater was 
related to the proximity of the stream, such that groundwater was at a 
lower depth near a stream than far away from it. They also noted that 
the area was under slight drought conditions during the study period. 
The increased depth to groundwater in this region is likely due to a 
combination of factors including drought, channelization along Salt 
Creek, and water depletions for urban and agricultural uses. If 
groundwater levels continue to decline, saline features of the wetlands 
could gradually change to freshwater, or wetlands could dry. Either of 
these scenarios could result in extirpation of the Salt Creek tiger 
beetle from affected wetlands and could ultimately lead to extinction 
of the subspecies.
    Saline Soils--Soils in the eastern saline wetlands of Nebraska 
typically contain chloride or sulfate salts and have a pH from 7-8.5 
(Allgeier 2005, p. 17). Salt Creek tiger beetles prefer soils that are 
slightly saline, with an optimal electroconductivity of 2,504 
milliSiemens per meter (mS/m) (Allgeier 2005, p. 75). However, 
salinities as low as 1,656 mS/m have been measured at survey sites 
(Rabadinanth 2010, p. 19). Soil salinity may serve as a means of 
partitioning

[[Page 26026]]

habitat between the 12 species of tiger beetles in the genus Cicindela 
that use the saline wetlands of Nebraska (Allgeier et al. 2004, pp. 5-
6; Allgeier 2005, p. 65; Brosius 2010, p. 13).
    The ``Salmo'' soil series is found at all known occurrences for the 
subspecies (Allgeier 2005, p. 42). This soil type is formed on saline 
flood plains, and its characteristics typically include: (1) A texture 
of silt loam or silty-clay loam, (2) 0-2 percent slope, (3) somewhat 
poorly drained or poorly drained soils, and (4) 0-3 feet to the water 
table (Gersib and Steinauer 1991, p. 41; Gilbert and Stutheit 1994, p. 
4; USDA 2009, pp. 1-3). The ``Saltillo'' soil series is found in 
adjacent Saunders County and has soil characteristics very similar to 
the ``Salmo'' soil series (USDA 2006, pp. 1-4). Consequently we believe 
that this soil type may also be able to provide suitable salinity 
levels and capacity to hold sufficient soil moisture for the 
subspecies.
    Light--Salt Creek tiger beetles have only been observed laying eggs 
at night (Allgeier et al. 2004, p. 5). Light pollution from urban areas 
likely disrupts nocturnal behavior by attracting beetles towards the 
light and out of their normal habitats (Allgeier et al. 2003, p. 8). In 
both field and laboratory studies, attraction to light from different 
types of lamps varied, in decreasing order, from blacklight, mercury 
vapor, fluorescent, incandescent, and sodium vapor, with blacklight 
being the most favored by the subspecies (Allgeier 2005, pp. 89-95). 
The disruption in behavior caused by lights could affect egg-laying 
activity of females, if it attracts females into unsuitable habitat.
    Summary--Based upon the best available information, we conclude 
that the Salt Creek tiger beetle requires abundant available insect 
prey (supported by both the immediate core habitat and adjacent 
habitat), moist saline soils, and minimal light pollution. We identify 
these characteristics as necessary physical or biological features for 
the subspecies.
Cover or Shelter
    Burrows--Salt Creek tiger beetle larvae are closely associated with 
their burrows, which provide cover and shelter for approximately 2 
years. Larvae are sedentary predators and position themselves at the 
top of their burrows. When prey passes nearby, a larva lunges out of 
its burrow, clutches the prey in its mandibles, and pulls the prey down 
into the burrow to feed. Once a larva obtains enough food, it plugs its 
burrow and digs a pupation chamber, emerging as an adult in early 
summer of its second year (Ratcliffe and Spomer 2002, unpaginated; 
Allgeier 2005, p. 2). The subspecies is a visual predator, requiring 
open habitat to locate prey (Ratcliffe and Spomer 2002, unpaginated). 
Consequently, a clear line of sight is important. Habitat that becomes 
covered with vegetation no longer provides suitable larval habitat 
(Allgeier 2005, p. 78). Burrow habitat can also be impacted from 
disturbances such as trampling (Spomer and Higley 1993, p. 397), which 
causes soil compaction and damages the fragile crust of salt that is 
evident on the soil surface. After the adult emerges from the pupa, it 
remains in the burrow chamber while its outer skeleton hardens 
(Ratcliffe and Spomer 2002, unpaginated). For the remainder of its 
brief adult stage, burrows are no longer used.
    Summary--Based upon the best available information, we conclude 
that the Salt Creek tiger beetle requires a suitable burrow in moist, 
saline, sparsely vegetated soils for its larval stage. We identify this 
characteristic as a necessary physical feature for the subspecies.
Sites for Breeding, Reproduction, or Development of Offspring
    Annual visual surveys have been conducted since 1991, when six 
populations were known. Each of the three populations of Salt Creek 
tiger beetle currently known is associated with Category 1 wetlands 
along Little Salt Creek including moist saline soils and seeps which 
can be located at saline wetlands and streams. Three additional 
populations occurred in the mid-1990s on Little Salt Creek, Oak Creek, 
and Rock Creek, but these have been extirpated since 1998. No records 
of the subspecies are known for other tributaries of Salt Creek. 
However, the subspecies may have been abundant historically, based on 
numerous museum specimens collected from the Oak Creek area (locally 
referred to as Capitol Beach (Carter 1989, p. 17; Allgeier et al. 2003, 
p. 1)). The Oak Creek (Capitol Beach) population was severely impacted 
following construction of the Interstate-80 corridor and other urban 
development (Farrar and Gersib 1991, pp. 24-25), and finally 
disappeared in 1998. Little or no suitable habitat remains along Oak 
Creek because it has been channelized and has become somewhat 
entrenched. However, numerous saline seeps and a large salt flat are 
located southwest of Oak Creek in its former floodplain. Little Salt 
Creek and Rock Creek still contain numerous saline wetlands and are the 
focus of efforts to protect remaining saline wetlands (Farrar and 
Gersib 1991, p. 40). Saline seeps are known to occur at the Haines 
Branch Creek. Few regular surveys for the Salt Creek tiger beetle have 
been done in these areas; however, suitable habitat occurs there, and 
more habitat could be potentially restored to aid in the recovery of 
the Salt Creek tiger beetle (USFWS 2005, p. 18). Given the presence of 
suitable habitat for a subspecies with very narrow habitat preferences 
with historical records nearby, we can infer that the subspecies was 
likely present there in the past.
    The Salt Creek tiger beetle has very specific habitat requirements 
for foraging, egg-laying, and larval development. Requirements 
regarding water, soil salinity, and exposed habitat are described in 
the previous sections.
    Summary--Based upon the best available information, we conclude 
that the Salt Creek tiger beetle requires a core habitat of moist 
saline soils with minimal vegetative cover for foraging, egg-laying, 
and larval development. Adjacent, more vegetative habitat is used for 
shade to cool adults (Harms 2013, pers. comm.), protecting core 
habitat, and supporting a diverse source of prey for adults and larval 
Salt Creek tiger beetles. Approximately 90 percent of all remaining 
wetlands suitable for Salt Creek tiger beetles occur in the Little Salt 
Creek and Rock Creek watersheds, but saline seeps and wetlands also 
occur at Oak and Haines Branch Creeks. We identify barren salt flats 
and saline seeps along streams and within suitable wetlands as a 
necessary physical feature for the subspecies.

Primary Constituent Elements for the Salt Creek Tiger Beetle

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Salt Creek tiger beetle in areas occupied at the 
time of listing, focusing on the features' primary constituent 
elements. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a (sub)species' 
life-history processes and are essential to the conservation of the 
(sub)species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the 
(sub)species' life-history processes, we determine that the primary 
constituent elements specific to the Salt Creek tiger beetle are saline 
barrens and seeps found within saline wetland habitat in Little Salt, 
Rock, Oak and Haines Branch Creeks. For our evaluation, we determined 
that two

[[Page 26027]]

habitat types within suitable wetlands are required by the Salt Creek 
tiger beetle:
     Exposed mudflats associated with saline wetlands or the 
exposed banks and islands of streams and seeps that contain adequate 
soil moisture and soil salinity are essential core habitats. These 
habitats support egg-laying and foraging requirements. The ``Salmo'' 
soil series is the only soil type that currently supports occupied 
habitat; however, ``Saltillo'' is the other soil series that has 
adequate soil moisture and salinity and can also provide suitable 
habitat.
     Vegetated wetlands adjacent to core habitats that provide 
shade for subspecies thermoregulation, support a source of prey for 
adults and larval forms of Salt Creek tiger beetles, and protect core 
habitats.
    With this final designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the subspecies, through the identification of the 
features' primary constituent elements sufficient to support the life-
history processes of the subspecies.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection. A detailed discussion of threats to the Salt Creek tiger 
beetle and its habitat can be found in the October 6, 2005, final rule 
to list the subspecies (70 FR 58335).
    The primary threats impacting the physical and biological features 
essential to the conservation of the Salt Creek tiger beetle are 
described in detail in the final rule to list the subspecies published 
on October 6, 2005 (70 FR 58335). These threats may require special 
management considerations or protection within the critical habitat and 
include, but are not limited to, urban development (e.g., commercial 
and residential development, road construction, associated light 
pollution, and stream channelization) and agricultural development 
(e.g., over-grazing and cultivation). These threats are exacerbated by 
having only three populations on one stream (Little Salt Creek) with 
extremely low numbers and a highly restricted range making this 
subspecies particularly susceptible to extinction in the foreseeable 
future.
    The features essential to the conservation of the Salt Creek tiger 
beetle (exposed, moist, saline areas associated with stream banks, mid-
channel islands, and mudflats) may require special management 
considerations or protection to reduce threats. For example, a loss of 
moist, open habitat necessary for larval foraging, thermoregulation, 
and other life-history activities resulted in the extinction of another 
endemic tiger beetle--the Sacramento Valley tiger beetle (Cicindela 
hirticollis abrupta) (Knisley and Fenster 2005, p. 457). This was the 
first tiger beetle known to be extirpated. Actions that could 
ameliorate threats include, but are not limited to:
    (1) Increased protection of existing habitat through actions such 
as land acquisition and limiting access;
    (2) Restoration of potential habitat within saline wetlands and 
streams through exposure of saline seeps, removal of sediment layers to 
expose saline soils and seeps, and use of wells to pump saline water 
over saline soils by Federal, State, and local interested parties;
    (3) Establishment of multiple populations in the Rock, Oak, and 
Haines Branch Creeks through captive rearing and translocation of 
laboratory-reared larvae originating from wild populations;
    (4) Protection of habitat adjacent to existing and new populations 
to provide dispersal corridors, support prey populations, and protect 
wetland functions; and
    (5) Avoidance of activities such as groundwater depletions, new 
channelization projects, increased surface water runoff, and 
residential or road development that could alter soil moisture levels, 
salinity, open habitat, or low light levels required by the subspecies.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify occupied areas at the time of listing that 
contain the features essential to the conservation of the species. If, 
after identifying areas occupied at the time of listing, we determine 
that those areas are inadequate to ensure conservation of the species, 
in accordance with the Act and our implementing regulations at 50 CFR 
424.12(e) we then consider whether designating additional areas--
outside those occupied at the time of listing--are essential for the 
conservation of the species. We are designating critical habitat in 
areas within the geographical area occupied by the subspecies at the 
time of listing in 2005 (Little Salt Creek) under the first prong of 
the Act's definition of critical habitat. We also are designating 
specific areas outside the geographical area occupied by the subspecies 
at the time of listing that were documented to be occupied as recently 
as the mid-1990s, or are presumed to have been occupied in the past 
given the availability of suitable saline habitat, but which are 
presently unoccupied (Rock, Oak, and Haines Branch Creeks), under the 
second prong of the Act's definition of critical habitat. We have 
determined that such areas are essential for the conservation of the 
subspecies as they will spread the risk of subspecies extinction over 
multiple stream systems. Important sources of supporting data include 
the final rule for listing the subspecies (70 FR 58335, October 6, 
2005), the recovery outline (USFWS 2009), available literature, and 
information provided by the University of Nebraska at Lincoln and the 
Commission (citations noted herein).
    We are including all currently occupied habitat in our designation 
of critical habitat because any further loss of occupied habitat would 
increase the Salt Creek tiger beetle's susceptibility to extinction. As 
previously noted, the subspecies currently occupies approximately 35 ac 
(14 ha) of saline wetland and streams in three small populations along 
approximately 7 mi (11 km) of Little Salt Creek. The three existing 
populations are referred to as Upper Little Salt Creek-North, Little 
Salt Creek-Arbor Lake, and Little Salt Creek-Roper.
    We are also including unoccupied saline wetlands, specifically 
saline salt flats along Little Salt Creek that are interspersed among 
these three populations. These barren salt flats are essential to the 
conservation of the subspecies because they provide larval habitat, 
protect existing populations, provide dispersal corridors between 
populations, support prey populations, and provide potential habitat 
for new populations.
    Lastly, we are including unoccupied barren salt flats and saline 
streams along Rock, Oak, and Haines Branch Creeks that were either 
occupied by the subspecies until 1998 (i.e., Rock and Oak Creeks) or 
have suitable habitat for the Salt Creek tiger beetle, but were 
surveyed infrequently (Haines Branch). We have determined that these 
areas (Little Salt, Rock, Oak, and Haines Branch Creeks) are essential 
to the conservation of the subspecies because they provide necessary 
redundancy in

[[Page 26028]]

the event of an environmental catastrophe associated with Little Salt 
Creek--the only watershed that currently supports the subspecies. All 
of these areas are tributaries to Salt Creek.
    We recommend that at least one viable population of Salt Creek 
tiger beetles be established in each of the three unoccupied units of 
critical habitat, recognizing the uncertainty as to which areas will 
successfully support reintroduced populations. However, so little 
appropriate habitat remains in one of these units (Haines Branch) that 
it is below the number of acres that we estimated would be necessary to 
support a population of 500 adults. With habitat restoration, we 
believe that the Haines Branch Unit would be capable of supporting a 
viable population of Salt Creek tiger beetles.
    These populations, in addition to the three existing populations at 
Little Salt Creek, would result in six populations, with at least 500 
adults in each population, but with three populations in Little Salt 
Creek. This is the number of populations documented in the mid-1990s, 
and the minimum number needed for subspecies recovery; however, at that 
time, none of these populations were large enough to maintain the 
subspecies' viability, and three of the populations were later 
extirpated. As the populations expand to viable numbers, we anticipate 
that they will be within the maximum documented dispersal range of the 
subspecies and may eventually constitute one metapopulation that has 
spatially separated populations with some interaction between those 
populations.
    We delineated the critical habitat unit boundaries for the Salt 
Creek tiger beetle using the following steps:
    (1) We used Geographic Information System (GIS) coverages initially 
generated by Gilbert and Stutheit (1994, entire) to categorize saline 
wetlands in the Salt Creek watershed of Lancaster and Saunders 
Counties, Nebraska.
    (2) We delineated critical habitat within the areas of Little Salt, 
Rock, Oak, and Haines Branch Creeks that (a) are documented to support 
the subspecies currently or to have supported it in the recent past 
(until 1998), or (b) that provide potential suitable habitat for the 
subspecies that could sustain a viable population.
    (3) We delineated all of the barren salt flats in the four creeks 
with adjacent suitable saline wetlands.
    (4) In order to include surrounding vegetative areas that provide 
essential resources and support functions to the subspecies, we 
delineated areas on segments of the four creeks that extended 137 ft 
(the average known dispersal distance for the subspecies) on either 
side of the stream course. We used 137 ft because it is the average 
distance that the Salt Creek tiger beetle can move to meet life-history 
requisites, which can be satisfied within the stream segment and 
adjacent saline barrens and seeps in the floodplain area. We concluded 
that this distance would provide the subspecies with sufficient prey 
resources.
    Some other areas within the likely historical range of the Salt 
Creek tiger beetle were considered in this revised designation, but 
ultimately are not included. We do not designate suitable saline 
wetlands along Middle Creek as critical habitat because the habitat 
there has been eliminated due to commercial and residential 
developments, road construction, and stream channelization, and is 
probably not restorable. Similarly, we do not designate areas on 
tributaries to Salt Creek near the Cities of Roca and Hickman, 
Nebraska, because agricultural development has somewhat limited the 
ability of these areas to be restored for the benefit of the Salt Creek 
tiger beetle. We also do not designate areas of Salt Creek downstream 
of Lincoln, Nebraska, because channel entrenchment has resulted in the 
loss of saline seep and saline wetland habitats there. We also do not 
include some remaining areas of saline wetlands in Upper Salt Creek 
because they are outside of the average dispersal distance of 137 feet 
for the subspecies.
    This revision to the critical habitat designation for Salt Creek 
tiger beetle decreases the previous designation of 1,933 acres by 823 
acres, but it increases the number of unoccupied units from one to 
three. This change extends critical habitat to two additional stream 
corridors not previously included in critical habitat that could 
support populations of the subspecies in the future, thereby reducing 
the risk of extinction. We have also revised the PCEs on which this 
revision was based to make them clearer and easier for the public to 
understand. However, these revised PCEs are based on the same 
biological concepts about the needs of the Salt Creek tiger beetle that 
were used in the previous critical habitat designation.
    Since the time of our previous critical habitat designation, we 
have begun the process of recovery planning, and have preliminarily 
determined that at least six populations of 500-1,000 beetles within 
suitable habitat across multiple stream corridors would be necessary to 
recover the subspecies. Therefore, we are designating an amount of 
critical habitat to allow for that recovery to occur. We considered 
other possible critical habitat configurations for this designation, 
including larger and smaller designations and different numbers of 
units. In this final revised designation, we have targeted areas that 
are better able to support the subspecies. This designation includes 
saline seeps where the subspecies has actually been found along Rock, 
Little Salt, Oak, and Haines Branch Creeks. Additionally, a 137-foot 
(42 m) dispersal distance was extended outward on either side of these 
creeks to provide the Salt Creek tiger beetle with access to a 
vegetative mosaic around the salt flats located in the floodplain. The 
use of the 137 foot (42 m) dispersal distance outward from the creeks 
is the primary reason why the critical habitat acreage is less that our 
previous designation (1,933 acres) (782 ha), which included large 
blocks of adjacent Category I saline wetlands. These Category I saline 
wetlands would need to be restored to provide habitat for the Salt 
Creek tiger beetle. In addition, this revised designation better 
provides for conservation by including additional unoccupied habitat 
that is suitable for the species so that we can establish additional 
populations needed to improve the subspecies' redundancy and 
resiliency, two important factors in reducing extinction risk. We have 
conclude that this designation of 1,110 acres in four units is the most 
biologically appropriate as it is based on habitat features that are 
used by Salt Creek tiger beetles, is consistent with the statutory 
definition of critical habitat, and will best provide for the recovery 
of the subspecies.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack physical or biological features for the Salt Creek tiger 
beetle. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in the rule and are not designated as 
critical habitat. Therefore, a Federal action involving these lands 
will not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific action would affect the physical or biological features in the 
adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as

[[Page 26029]]

modified by any accompanying regulatory text, presented at the end of 
this document in the Regulation Promulgation section. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R6-ES-
2013-0068, on our Internet site http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT, 
above).
    We are designating as critical habitat lands that we have 
determined were occupied at the time of listing and contain sufficient 
physical or biological features to support life-history processes 
essential for the conservation of the subspecies, and lands outside of 
the geographical area occupied at the time of listing that we have 
determined are essential for the conservation of the Salt Creek tiger 
beetle.
    We are designating four units based on sufficient elements of 
physical or biological features being present to support the Salt Creek 
tiger beetle life processes. Some units contain all of the identified 
elements of physical or biological features and support multiple life 
processes. Some units contain only some elements of the physical or 
biological features necessary to support the Salt Creek tiger beetle's 
particular use of that habitat. Designating units of critical habitat 
on Little Salt, Rock, Oak, and Haines Branch creeks provides redundancy 
in the event that adverse effects on one of these watersheds impact 
Salt Creek tiger beetles or their habitat.

Final Critical Habitat Designation

    We are designating four units as critical habitat for the Salt 
Creek tiger beetle. The critical habitat areas described below 
constitute our best assessment at this time of areas that meet the 
definition of critical habitat. The four units are: (1) Little Salt 
Creek--under the first prong of the Act's definition of critical 
habitat and (2) Rock Creek, Oak Creek, and Haines Branch--under the 
second prong of the Act's definition of critical habitat. Table 1 shows 
the occupancy status of these units.

                Table 1--Occupancy of Salt Creek Tiger Beetle by Designated Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
                   Unit                    Occupied at time of listing?            Currently occupied?
----------------------------------------------------------------------------------------------------------------
Little Salt Creek Unit...................  Yes.........................  Yes.
Rock Creek Unit..........................  No..........................  No.
Oak Creek Unit...........................  No..........................  No.
Haines Branch Unit.......................  No..........................  No.
----------------------------------------------------------------------------------------------------------------

    The approximate area and ownership of each critical habitat unit is 
shown in Table 2.

                     Table 2--Designated Critical Habitat Units for Salt Creek Tiger Beetle
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                                                      Percent of
                                                                                 Estimated quantity    critical
           Critical habitat unit                  Land ownership by type         of critical habitat    habitat
                                                                                                         unit
----------------------------------------------------------------------------------------------------------------
Little Salt Creek Unit....................  City of Lincoln, Lower Platte              40 ac (16 ha)          14
                                             South Natural Resources District,          19 ac (8 ha)           7
                                             Nebraska Game & Parks Commission,         41 ac (17 ha)          14
                                             The Nature Conservancy, Pheasants         29 ac (12 ha)          10
                                             Forever, Private *.                        11 ac (4 ha)           4
                                                                                      144 ac (58 ha)          51
                                                                               ----------------------
    Subtotal..............................  ..................................       284 ac (115 ha)
Rock Creek Unit...........................  Nebraska Game & Parks Commission,         152 ac (62 ha)          29
                                             Private *.                              374 ac (152 ha)          71
                                                                               ----------------------
    Subtotal..............................  ..................................       526 ac (213 ha)
Oak Creek Unit............................  Nebraska Department of Roads, City         30 ac (12 ha)          14
                                             of Lincoln.                              178 ac (72 ha)          86
                                                                               ----------------------
    Subtotal..............................  ..................................        208 ac (84 ha)
Haines Branch Unit........................  BNSF Railway, City of Lincoln/               7 ac (3 ha)           8
                                             State of Nebraska, Private.               45 ac (18 ha)          49
                                                                                       40 ac (16 ha)          43
                                                                               ----------------------
    Subtotal..............................  ..................................         92 ac (37 ha)
                                                                               ----------------------

[[Page 26030]]

 
        Total.............................  City of Lincoln, Lower Platte            263 ac (106 ha)          24
                                             South Natural Resources District,          19 ac (8 ha)         1.7
                                             Nebraska Game & Parks Commission,        193 ac (78 ha)        17.4
                                             Nebraska Department of Roads,             30 ac (12 ha)         2.7
                                             BNSF Railway, The Nature                     7 ac (3ac)         0.6
                                             Conservancy, Pheasants Forever,           29 ac (12 ha)         2.6
                                             Private *.                                 11 ac (4 ha)         1.0
                                                                                     558 ac (226 ha)        50.0
                                                                               ----------------------
            Total.........................  ..................................     1,110 ac (449 ha)
----------------------------------------------------------------------------------------------------------------
* Several private tracts are protected by easements.

    We present a brief description of each unit and reasons why it 
meets the definition of critical habitat for Salt Creek tiger beetle 
below.

Unit 1: Little Salt Creek Unit

    This unit consists of 284 ac (115 ha) of barren salt flats and 
three stream segments on Little Salt Creek in Lancaster County from 
near its junction with Salt Creek to approximately 7 mi (11 km) 
upstream. It includes the three existing populations of Salt Creek 
tiger beetles (Upper Little Salt Creek-North, Arbor Lake, and Little 
Salt Creek-Roper) present at the time of listing, and an additional 
site with an extirpated population (Upper Little Salt Creek-South). The 
Upper Little Salt Creek population is not considered viable given low 
populations numbers known from this area. This unit contains the 
physical or biological features essential to the Salt Creek tiger 
beetle.
    Approximately 50 percent of the unit is either owned by entities 
that will protect or restore saline wetland habitat (see Table 2) or is 
part of an easement that protects the saline wetland habitat in 
perpetuity. This portion of the unit is largely protected from future 
urban development (e.g., commercial and residential development, road 
construction, and stream channelization) and future agricultural 
development (e.g., overgrazing and cultivation) by the landowners' or 
easement holders' participation in the Implementation Plan for the 
Conservation of Nebraska's Eastern Saline Wetlands and their membership 
in the Saline Wetlands Conservation Partnership (SWCP). At least two 
tracts (owned by the City of Lincoln) have been restored (Arbor Lake 
and Frank Shoemaker Marsh) (Malmstrom 2011 and 2012, entire) and other 
areas are in the process of being restored or are managed to conserve 
saline wetlands. However, special management is needed, because without 
continued special management, historical impacts from development will 
continue to adversely affect much of the habitat. The remaining 50 
percent of the Little Salt Creek Unit that is not currently receiving 
special management through protection and restoration of saline wetland 
habitat remains vulnerable to both historical and ongoing impacts from 
development. The lower reaches of Little Salt Creek are in or near the 
City of Lincoln and, consequently, are most vulnerable to impacts 
related to urban development; upper stream reaches are more impacted by 
agricultural development.

Unit 2: Rock Creek Unit

    The unit consists of 526 ac (213 ha) of barren salt flats and a 
stream segment of Rock Creek from approximately 2 mi (3 km) above its 
confluence with Salt Creek to approximately 12 mi (19 km) upstream. 
Most of this stream reach is in Lancaster County, but the northernmost 
portion is in southern Saunders County. This unit was not occupied at 
the time of listing; however, one population was present there until 
1998. This unit contains the physical or biological features essential 
to the Salt Creek tiger beetle. It is essential to the conservation of 
the subspecies because any population established on Rock Creek would 
provide redundancy, in the event of a natural or manmade disaster on 
Little Salt Creek.
    Approximately 29 percent of the unit is either owned by an entity 
that will protect or restore saline wetland habitat (see Table 2) or is 
part of an easement that protects the saline wetland habitat in 
perpetuity. This portion of the unit is largely protected from future 
urban development (e.g., commercial and residential development, road 
construction, and stream channelization), but not future agricultural 
development (e.g., overgrazing and cultivation). Approximately 152 ac 
(61 ha) of barren salt flats and the stream segment are part of the 
Jack Sinn WMA (owned by Nebraska Game and Parks Commission) located in 
southern Saunders and northern Lancaster Counties. This tract has 
undergone several projects to restore saline wetlands. However, special 
management is needed, because without special management through 
habitat protection and restoration, historical impacts from development 
will continue to adversely affect much of the habitat. The 71 percent 
of the Rock Creek Unit that is not currently receiving special 
management through protection and restoration of saline wetland habitat 
remains vulnerable to both historical and ongoing impacts from 
development. This unit is further removed from Lincoln; therefore, it 
faces fewer threats from urban development (e.g., commercial and 
residential development, road construction, and stream channelization) 
and more threats from agricultural development (e.g., overgrazing and 
cultivation) than the Little Salt Creek Unit.

Unit 3: Oak Creek Unit

    The unit consists of 208 ac (84 ha) of barren salt flats and a 
saline seep complex located within a historic floodplain of Oak Creek. 
The unit is located along Interstate 80 in the northwest part of 
Lincoln, near the Municipal airport in Lancaster County. This unit was 
not occupied at the time of listing; however, one population was 
present until 1998. This unit contains the physical or biological 
features essential to the Salt Creek tiger beetle and is essential to 
the conservation of the subspecies because any population established 
on Oak Creek would provide redundancy, in the event of a natural or 
manmade disaster on Little Salt Creek.

[[Page 26031]]

    Approximately 86 percent of the unit is owned by the City of 
Lincoln and 14 percent by the Nebraska Department of Roads (see Table 
2). This unit is largely protected from future urban development (e.g., 
commercial and residential development, road construction, and stream 
channelization) and future agricultural development (e.g., overgrazing 
and cultivation). Barren salt flats including the saline seep complex 
along Interstate 80 are part of this unit. This tract was once a part 
of a large saline wetland complex and is the type locality for the Salt 
Creek tiger beetle. However, a substantial amount of development has 
resulted in the loss of the once large saline wetland known from the 
area and special management practices may be needed to restore 
hydrology and the saline flat and seep habitats once prevalent in the 
area. This unit is near the City of Lincoln; however, it faces fewer 
threats from urban development (e.g., commercial and residential 
development, road construction, and stream channelization) than the 
Little Salt Creek Unit given the limitations on development that can be 
done along the Interstate and within the boundaries of the Lincoln 
Municipal Airport.

Unit 4: Haines Branch Unit

    The unit consists of 92 ac (37 ha) of barren salt flats and a 2.8-
mile long Haines Branch stream segment. Haines Branch is located on the 
west side of Lincoln, near Pioneers Park in Lancaster County. This unit 
was not occupied at the time of listing, but suitable habitat in the 
form of saline seeps and wetlands are available for the Salt Creek 
tiger beetle. This unit contains the physical or biological features 
essential to the Salt Creek tiger beetle and is essential to the 
conservation of the subspecies because any population established on 
Haines Branch Creek would provide redundancy, in the event of a natural 
or human-caused disaster on Little Salt Creek.
    The entire unit is owned by private entities (see Table 2). This 
unit is not protected from future urban development (e.g., commercial 
and residential development, road construction, and stream 
channelization) or future agricultural development (e.g., overgrazing 
and cultivation). Special management is needed to restore the hydrology 
and saline flat and seep habitats for the subspecies.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory 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, 434 (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 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 continue to serve its intended conservation role for the 
species.
    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. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the ongoing action (or the agency's 
discretionary involvement or control is authorized by law). 
Consequently, Federal agencies sometimes may 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.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical

[[Page 26032]]

habitat would continue to serve its intended conservation role for the 
species. Activities that may destroy or adversely modify critical 
habitat are those that alter the physical or biological features to an 
extent that appreciably reduces the conservation value of critical 
habitat for the Salt Creek tiger beetle. As discussed above, the role 
of critical habitat is to support life-history needs of the species and 
provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Salt Creek tiger beetle. These activities include, 
but are not limited to:
    (1) Actions that would alter soil moisture or salinity. Such 
activities could include, but are not limited to, development within or 
adjacent to critical habitat such as installation of tile drains in 
agricultural lands, construction of storm drains in urban areas, road 
construction, or further development of residential or commercial 
areas. These activities could decrease soil moisture levels (in the 
case of tile drains) or increase soil moisture and decrease salinity 
levels through increased runoff of fresh surface water (in the case of 
storm drains, road construction, and residential or commercial 
development). Any change to soil moisture or salinity levels could 
degrade or destroy habitat by altering habitat characteristics beyond 
the narrow range of soil moisture and salinity required by the 
subspecies. A secondary effect of increased freshwater inputs that 
lessens soil salinity is the potential invasion of more freshwater-
tolerant plants such as cattails (Typha spp.) and reed canary grass 
(Phalaris arundinacea) that eliminate the open habitat required by the 
subspecies (Harvey et al. 2007, p. 749).
    (2) Actions that would increase the depth to the water table. Such 
activities could include, but are not limited to, stream channelization 
or bank armoring in Little Salt Creek, Rock Creek, Haines Branch, and 
Oak Creek or adjacent portions of Salt Creek. These activities could 
result in a lowering of the water table within critical habitat that 
would compromise groundwater discharge functions necessary to maintain 
saline wetlands. A further loss of saline wetland habitat could impact 
our ability to conserve the Salt Creek tiger beetle.
    (3) Actions that would cause trampling of open saline areas 
associated with stream banks, mid-channel islands, and mudflats. Such 
activities could include, but are not limited to, overgrazing by 
livestock within critical habitat. Trampling could result in the 
destruction of larvae and larval burrows, leading to population 
declines.
    (4) Actions that would increase nighttime levels of light. Such 
activities could include, but are not limited to, new construction of 
residential or commercial areas that includes nighttime lighting. Light 
pollution likely disrupts nocturnal behavior by attracting beetles away 
from their normal habitats (Allgeier et al. 2003, p. 8). Attraction to 
light from different types of lamps varies, in decreasing order, from 
blacklight, mercury vapor, fluorescent, incandescent, and sodium vapor, 
with blacklight being the most favored (Allgeier et al. 2004, p. 10). 
The disruption in behavior could affect nighttime egg-laying activity 
of females, if it attracts females into unsuitable habitat.
    (5) Actions that would result in modification to the right-of-way 
located along Interstate 80 that could alter the hydrology supporting 
saline seeps and salt flats at Oak Creek. This could include earth 
disturbance and installation of drainage structures.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic 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 final 
critical habitat designation.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to 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 she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise her discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared an incremental effects 
memorandum (IEM) and screening analysis which together with our 
narrative and interpretation of effects, was our draft economic 
analysis (DEA) of the proposed critical habitat designation (IEc 2014). 
The draft analysis, dated February 5, 2014, was made available for 
public review from March 13, 2014, through March 28, 2014 (79 FR 
14206). The DEA addressed potential economic impacts of critical 
habitat designation for the Salt Creek tiger beetle. Following the 
close of the comment period, we reviewed and evaluated all information 
submitted during the comment period that may pertain to our 
consideration of the probable economic impacts of this critical habitat 
designation. Information relevant to the probable economic impacts of 
critical habitat designation for the Salt Creek tiger beetle is 
summarized below and available in the screening analysis for the Salt 
Creek tiger beetle (IEc 2014), available at http://www.regulations.gov. 
We have not made any changes to the economic

[[Page 26033]]

screening analysis since the proposed rule, but comments we received 
that pertain to the economic screening analysis are discussed in the 
Summary of Comments and Recommendations section of this rule.
    The intent of the economic screening analysis is to quantify the 
economic impacts of all potential conservation efforts for the Salt 
Creek tiger beetle; some of these costs will likely be incurred 
regardless of whether we designate critical habitat (baseline). The 
economic impact of the final critical habitat designation is analyzed 
by comparing scenarios both ``with critical habitat'' and ``without 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, considering protections 
already in place for the subspecies (e.g., under the Federal listing 
and other Federal, State, and local regulations). The baseline, 
therefore, represents the costs incurred regardless of whether critical 
habitat is designated. The ``with critical habitat'' scenario describes 
the incremental impacts associated specifically with the designation of 
critical habitat for the subspecies. The incremental conservation 
efforts and associated impacts are those not expected to occur absent 
the designation of critical habitat for the subspecies. In other words, 
the incremental costs are those attributable solely to the designation 
of critical habitat above and beyond the baseline costs; these are the 
costs we consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
subspecies was listed, and forecasts both baseline and incremental 
impacts likely to occur with the designation of critical habitat.
    The economic screening analysis also addresses how potential 
economic impacts are likely to be distributed, including an assessment 
of any local or regional impacts of habitat conservation and the 
potential effects of conservation activities on government agencies, 
private businesses, and individuals. The economic screening analysis 
measures lost economic efficiency associated with residential and 
commercial development and public projects and activities, such as 
economic impacts on water management and transportation projects, small 
entities, and the energy industry. Decision-makers can use this 
information to assess whether the effects of the designation might 
unduly burden a particular group or economic sector. Finally, the 
economic screening analysis looks retrospectively at costs that have 
been incurred since 2005 (year of the subspecies' listing) (70 FR 
58335), and considers those costs that may occur annually in the years 
following the designation of critical habitat. The economic screening 
analysis quantifies economic impacts of Salt Creek tiger beetle 
conservation efforts associated with the following categories of 
activity: (1) Agriculture and livestock grazing; (2) restoration and 
conservation; (3) residential and commercial development; (4) water 
management and supply; (5) transportation activities, including bridge 
construction; and (6) utility activities. The economic screening 
analysis considered each industry or category individually. 
Additionally, the economic screening analysis considered whether each 
of these activities have any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. In 
areas where the Salt Creek tiger beetle is present, Federal agencies 
already are required to consult with the Service under section 7 of the 
Act on activities they fund, permit, or implement that may affect the 
subspecies. Once this critical habitat designation takes effect (see 
DATES, above), consultations to avoid the destruction or adverse 
modification of critical habitat will be incorporated into the existing 
consultation process.
    In occupied habitat (Little Salt Creek Unit), the economic 
screening analysis determined that the economic cost of implementing 
the critical habitat rule through section 7 of the Act will most likely 
be limited to additional administrative effort to consider adverse 
modification. This finding was based on the following factors:
     The presence of the subspecies already results in 
significant baseline protection under the Act.
     Project modifications requested by the Service to avoid 
jeopardy to the subspecies are also likely to avoid adverse 
modification of critical habitat. The designation of critical habitat 
is unlikely to generate recommendations for additional or different 
project modifications.
     Critical habitat is unlikely to increase the number of 
consultations occurring in occupied habitat as a result of the existing 
awareness by Federal agencies of the need to consult due to the listing 
of the subspecies.
     The designation also receives baseline protection from the 
presence of a State-listed endangered plant, saltwort (Salicornia 
rubra).
    In unoccupied habitat (Rock Creek, Oak Creek, and Haines Branch 
Units), the economic screening analysis found that the designation 
would generate the need for section 7 consultation on projects or 
activities that may affect critical habitat. The administrative costs 
of these consultations, and costs of any project modifications 
resulting from these consultations, reflect incremental costs of the 
critical habitat rule. In particular, we may request project 
modifications, including erosion control and biological monitoring for 
highway projects to avoid adverse modification in unoccupied critical 
habitat, and grazing restrictions for consultations related to 
potential conservation partnerships.
    Based on the historical consultation rate and forecasts of projects 
and activities identified by land managers, the economic screening 
analysis found that the number of future consultations is likely to be 
fewer than 12 in a single year, all of which are expected to be 
conducted informally. The additional administrative cost of addressing 
adverse modification during informal section 7 consultation is 
approximately $2,400 per consultation, and the full cost of a new 
informal consultation is approximately $7,100 per consultation. 
Incremental project modification costs may include $360,000 for highway 
projects in the Oak Creek Unit, and up to $110,000 if grazing 
exclosures are implemented through conservation partnerships in the 
Rock Creek Unit. Incremental costs are likely to be greatest in the Oak 
Creek Unit and are driven by project modifications for highway 
construction activities. Total forecast incremental costs of section 7 
consultations, including administrative and project modification costs, 
are likely to be less than $540,000 in a given year. Thus, in summary, 
the incremental costs resulting from the critical habitat designation 
are unlikely to reach $100 million in a given year based on the number 
of anticipated consultations and per-consultation administrative and 
project modification costs. Executive Order (E.O.) 12866, Regulatory 
Planning and Review, directs Agencies to assess the costs and benefits 
of regulatory actions and quantify those costs and benefits if that 
action may have an effect on the economy of $100 million or more in any 
one year. Costs associated with this designation are not expected to 
exceed this threshold, therefore a qualitative evaluation in accordance 
with E.O. 12866 was prepared for this action.
    The designation of critical habitat is unlikely to trigger 
additional requirements under State or local regulations. This 
conclusion is based on the likelihood that activities in wetland areas 
will require Federal permits and,

[[Page 26034]]

therefore, section 7 consultation. Additionally, the designation of 
critical habitat has the potential to convey other benefits to the 
public. Additional efforts to conserve the beetle are anticipated in 
unoccupied habitat. Project modifications may result in direct benefits 
to the subspecies (e.g., increased potential for recovery) as well as 
broader improvements to environmental quality in these areas. Due to 
existing data limitations, the economic screening analysis is unable to 
assess the likely magnitude of such benefits.
    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exerting her discretion to exclude any areas from this 
designation of critical habitat for the Salt Creek tiger beetle based 
on economic impacts.
    A copy of the IEM and screening analysis with supporting documents 
may be obtained by contacting the Nebraska Ecological Services Field 
Office (see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov, or at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
the Salt Creek tiger beetle are owned or managed by the Department of 
Defense or Department of Homeland Security, and, therefore, we 
anticipate no impact on national security. Consequently, the Secretary 
is not exerting her discretion to exclude any areas from this final 
designation based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we also consider any other 
relevant impacts resulting from the designation of critical habitat. We 
consider a number of factors, including whether the landowners have 
developed any HCPs or other management plans for the area, or whether 
there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this final rule, we have determined that there are 
currently no HCPs or other management plans for the Salt Creek tiger 
beetle, and the final designation does not include any tribal lands or 
trust resources. However, there is an implementation plan for the 
conservation of Nebraska's remaining eastern saline wetlands (LaGrange 
et al. 2003, entire). Signatories to this plan include the Nebraska 
Game and Parks Commission, the City of Lincoln, the County of 
Lancaster, the Lower Platte South Natural Resources District, and The 
Nature Conservancy. This plan may protect and restore Salt Creek tiger 
beetle habitat to the same extent into the future. The goal of the plan 
is no net loss of saline wetlands and their associated functions, with 
long-term improvements in wetland functions through restoration of the 
hydrological system, prescribed wetland management, and watershed 
protection (LaGrange et al. 2003, p. 6). This plan led to formation of 
the Saline Wetland Conservation Partnership (SWCP), which has purchased 
nearly 1,200 ac (486 ha) of eastern saline wetlands and associated 
uplands, and acquired conservation easements on more than 2,000 ac (810 
ha) of additional lands (Malmstrom 2011 and 2012, entire). Overall, 
approximately 29 percent of occupied and unoccupied critical habitat is 
protected through these acquisitions. We believe that activities 
implemented under the plan or under the SWCP will be supported by the 
designation of critical habitat. The benefits of exclusion of these 
areas would include the reduction in federal oversight that would 
otherwise be applied if an unoccupied critical habitat unit were 
designated as critical habitat. However, a critical habitat designation 
increases the opportunities for funding to do habitat restoration 
projects for the benefit of the Salt Creek tiger beetle and its saline 
wetland and stream habitats. Therefore, the benefits of including this 
area in critical habitat outweigh any benefits of excluding it. No 
areas are excluded from this designation based on other relevant 
impacts.
    We anticipate no impact on tribal lands, partnerships, or HCPs from 
this critical habitat designation. Accordingly, the Secretary is not 
exercising her discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must 
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 effects of the rule on small entities 
(i.e., 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. The SBREFA 
amended the 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.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining

[[Page 26035]]

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 on these small entities are 
significant, we consider the types of activities that might trigger 
regulatory impacts under this rule, as well as the 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.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the agency is not likely to destroy or adversely modify 
critical habitat. Therefore, under section 7 only Federal action 
agencies are directly subject to the specific regulatory requirement 
(avoiding destruction and adverse modification) imposed by critical 
habitat designation. Consequently, it is our position that only Federal 
action agencies will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that this final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule we reviewed and evaluated 
all information submitted during the comment period that may pertain to 
our consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this final critical habitat designation will not 
have a significant economic impact on a substantial number of small 
entities, and a regulatory flexibility analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) 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.
    The economic analysis finds that none of these criteria is relevant 
to this analysis. Thus, based on information in the economic analysis, 
energy-related impacts associated with Salt Creek tiger beetle 
conservation activities within critical habitat are not expected. As 
such, the designation of critical habitat is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is 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 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, 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 onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because most of the lands within the 
designated critical habitat do not occur within the jurisdiction of 
small governments. This rule will not produce a Federal mandate of $100 
million or greater in any year. Therefore, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act. The 
designation of critical habitat imposes no obligations on State or 
local governments. Consequently, we do not believe that the critical 
habitat designation would significantly or uniquely affect small 
government entities. As such, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
rights''), we have analyzed the potential takings implications of 
designating critical

[[Page 26036]]

habitat for the Salt Creek tiger beetle in a takings implications 
assessment. Based on the best available information, the takings 
implications assessment concludes that this designation of critical 
habitat for the Salt Creek tiger beetle does not pose significant 
takings implications.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this rule does not have 
significant Federalism effects. A federalism summary impact statement 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this critical habitat designation with, 
appropriate State resource agencies in Nebraska. We received comments 
from the Nebraska Game and Parks Commission and the Nebraska Department 
of Roads and have addressed them in the Summary of Comments and 
Recommendations section of the rule. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
subspecies are more clearly defined, and the physical and biological 
features of the habitat necessary to the conservation of the subspecies 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
these local governments in long-range planning (because these local 
governments no longer have to wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

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 that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
subspecies, the rule identifies the elements of physical or biological 
features essential to the conservation of the Salt Creek tiger beetle. 
The designated areas of critical habitat are presented on a map, and 
the rule provides several options for the interested public to obtain 
more detailed location information, if desired.

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 pursuant to the National Environmental Policy 
Act (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. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, under 
the Tenth Circuit ruling in Catron County Board of Commissioners v. 
U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
undertake a NEPA analysis for critical habitat designation and notify 
the public of the availability of the draft environmental assessment 
for a proposal when it is finished. In the case of the Salt Creek tiger 
beetle, we prepared an environmental assessment for our 2010 final rule 
designating critical habitat for the subspecies, and made a finding of 
no significant impacts. Although the State of Nebraska is not part of 
the Tenth Circuit, and, therefore, NEPA analysis is not required, we 
undertook a NEPA analysis in this case since we conducted one 
previously for our 2010 final rule.
    We performed the NEPA analysis, and a draft of the environmental 
assessment was made available for public comment on March 13, 2014 (79 
FR 14206). The final environmental assessment has been completed and is 
available for review with the publication of this final rule. Our 
environmental assessment showed that there would be beneficial impacts 
for the Salt Creek tiger beetle through habitat redundancy and focused 
conservation activities as well as increased awareness about critical 
habitat. Conservation actions that benefit the Salt Creek tiger beetle 
would also benefit many other species of fish, wildlife, and plants 
found along Rock, Little Salt, Oak, and Haines Branch creeks. As such, 
we concluded that the designation of critical habitat for the Salt 
Creek tiger beetle does not constitute a major Federal action 
significant affecting the quality of the human and natural environment. 
Accordingly, on May 1, 2014, we issued a finding of no significant 
impact for our final designation of critical habitat for the Salt Creek 
tiger beetle.
    You may obtain a copy of the final environmental assessment and 
finding of no significant impact online at http://www.regulations.gov, 
by mail from the Nebraska Ecological Services Field Office (see 
ADDRESSES), or by visiting our Web site at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), 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

[[Page 26037]]

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 by the 
Salt Creek tiger beetle at the time of listing that contain the 
physical or biological features essential to conservation of the 
subspecies, and no tribal lands unoccupied by the Salt Creek tiger 
beetle that are essential for the conservation of the subspecies.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Nebraska Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Nebraska 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

    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; 1531-1544; 4201-4245, unless 
otherwise noted.


0
2. In Sec.  17.95, amend paragraph (i) by revising the entry for ``Salt 
Creek Tiger Beetle (Cicindela nevadica lincolniana)'' to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Salt Creek Tiger Beetle (Cicindela nevadica lincolniana)
    (1) Critical habitat units are depicted for Lancaster and Saunders 
Counties, Nebraska, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Salt Creek tiger beetle consist of saline barrens and seeps found 
within saline wetland habitat in Little Salt, Rock, Oak and Haines 
Branch Creeks. For our evaluation, we determined that two habitat types 
within suitable wetlands are required by the Salt Creek tiger beetle:
    (i) Exposed mudflats associated with saline wetlands or the exposed 
banks and islands of streams and seeps that contain adequate soil 
moisture and soil salinity are essential core habitats. These habitats 
support egg-laying and foraging requirements. The ``Salmo'' soil series 
is the only soil type that currently supports occupied habitat; 
however, ``Saltillo'' is the other soil series that has adequate soil 
moisture and salinity and can also provide suitable habitat.
    (ii) Vegetated wetlands adjacent to core habitats that provide 
shade for subspecies thermoregulation, support a source of prey for 
adults and larval forms of Salt Creek tiger beetles, and protect core 
habitats.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
June 5, 2014.
    (4) Critical habitat map units. Data layers defining map units were 
created using National Wetlands Inventory polygons, habitat 
categorization classes, and an image object analysis. The maps in this 
entry, as modified by any accompanying regulatory text, establish the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which each map is based are available to the public 
at the Service's Internet site at http://www.fws.gov/mountain-prairie/species/invertebrates/saltcreektiger/, at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0068, and at the field office responsible for 
this designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Map showing critical habitat units for the Salt Creek tiger 
beetle follows:
BILLING CODE 4310-55-P

[[Page 26038]]

[GRAPHIC] [TIFF OMITTED] TR06MY14.012

* * * * *

    Dated: April 25, 2014.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2014-10051 Filed 5-5-14; 8:45 am]
BILLING CODE 4310-55-C