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PART 80—REGULATION OF FUELS ADDRESSES: The complete file for this populations of C. nevadica in the AND FUEL ADDITIVES final rule is available for inspection, by central Great Plains. appointment, during normal business I Life History 1. The authority citation for part 80 hours at the U.S. Fish and Wildlife continues to read as follows: Service, Nebraska Ecological Services Allgeier et al. (2004) and Spomer et Authority: 42 U.S.C. 7414, 7545, and Field Office, 203 West Second Street, al. (2004a) indicated that the Salt Creek 7601(a). Federal Building, Second Floor, Grand tiger beetle has a 2-year life cycle, not I 2. Section 80.855 is amended by Island, NE 68801. uncommon for tiger beetles. Spomer and Higley (2001) and Spomer et al. (2004a) removing and reserving paragraph (b)(2) FOR FURTHER INFORMATION CONTACT: Mr. described the life cycle of the Salt Creek and revising paragraphs (b)(1)(i) and Steve Anschutz, Field Supervisor, at the tiger beetle in detail through egg, larval, (b)(1)(ii) to read as follows: above address (telephone (308) 382– and adult stages. Adults are first 6468, extension 12; facsimile (308) 384– § 80.855 What is the compliance baseline observed as early as the end of May or 8835)). for refineries or importers with insufficient as late as mid-June, peak in late June or data? SUPPLEMENTARY INFORMATION: early July, and disappear by mid-to late * * * * * Background July. By August, almost all adults have (b)(1) * * * died in the field (Spomer et al. 2004a). (i) For conventional gasoline, prior to Please see the proposed rule to list the Females lay their eggs along sloping January 1, 2006, 94.64 mg/mile; starting Salt Creek tiger beetle as endangered banks of creeks in areas where the salt January 1, 2006, 97.38 mg/mile. (February 1, 2005; 70 FR 5101) for layer is exposed in the soil horizon, in (ii) For reformulated gasoline, prior to detailed information on the subspecies’ barren salt flats of saline wetlands, or January 1, 2006, 25.31 percent reduction taxonomy, natural history, distribution, along saline stream edges that are found from statutory baseline; starting January and population status. We include a in close association with water, near a 1, 2006, 26.78 percent reduction from brief synopsis of that information here, seep or stream. During the night, female statutory baseline. along with new information that has Salt Creek tiger beetles lay about 50 eggs (2) [Reserved] been obtained since publication of the in burrows (Farrar 2003, Allgeier et al. proposed rule. * * * * * 2004). After the egg hatches and the The Salt Creek tiger beetle (Cicindela young larva emerges from the burrow, [FR Doc. 05–20109 Filed 10–5–05; 8:45 am] nevadica lincolniana) is an active, the larva digs a burrow and uses its BILLING CODE 6560–50–P ground-dwelling, predatory insect that head to scoop out soil. Larval burrows captures small arthropods in a ‘‘tiger- can occur throughout a saline like’’ manner by grasping prey with its streambank and on barren salt flats of DEPARTMENT OF THE INTERIOR mandibles (mouthparts). Salt Creek tiger saline wetlands. Based on field beetle larvae live in permanent burrows observations, numerous saline seeps Fish and Wildlife Service in the ground. They are voracious cause variation in soil moisture and predators, fastening themselves by salinity in the streambanks that allow 50 CFR Part 17 means of abdominal hooks to the tops burrows to occur away from the water’s RIN 1018–AJ13 of their burrows and rapidly extending edge (W. Allgeier, pers. comm. 2005). outward to seize passing prey. Adult The small larva waits at the top of its Endangered and Threatened Wildlife Salt Creek tiger beetle are metallic burrow and ambushes prey that passes and Plants; Determination of brown to dark olive-green above, with a near the burrow entrance. The larva will Endangered Status for the Salt Creek metallic dark green underside, and plug its burrow and retreat inside Tiger Beetle (Cicindela nevadica measure 1.3 centimeters (cm) (0.5 inch during periods of high water, very hot lincolniana) (in.)) in total length. weather, or very dry conditions. As the Taxonomy larva grows, it molts to a larger instar (a AGENCY: Fish and Wildlife Service, life stage between molts), enlarging and Interior. The Salt Creek tiger beetle is a lengthening its burrow. For the most ACTION: Final rule. member of the family Cicindelidae, part, a Salt Creek tiger beetle larva will genus Cicindela. Eighty-five species and remain active until cold weather, at SUMMARY: We, the U.S. Fish and more than 200 subspecies of tiger which time it plugs its burrow and Wildlife Service (Service), determine beetles in the genus Cicindela are hibernates. The Salt Creek tiger beetle endangered status for the Salt Creek known from the United States (Boyd et has three instars. It probably tiger beetle (Cicindela nevadica al. 1982, Freitag 1999). Originally, the overwinters as a third instar, pupates in lincolniana), pursuant to the Salt Creek tiger beetle was described by May, and emerges as an adult. Before Endangered Species Act (Act) of 1973, Casey (1916) as a separate species, C. pupation, the larva seals its burrow as amended (Act). This species is lincolniana. Willis (1967) identified C. entrance and digs a side chamber about endemic to the saline wetlands of n. lincolniana as a subspecies of C. 5 to 8 cm (2 to 3 in.) below the soil eastern Nebraska (NE) and associated nevadica, which evolved from C. n. surface. After the adult emerges from streams in the northern third of knausii. This is the currently accepted the pupa, it remains in the chamber Lancaster County and southern margin taxonomic classification. The evolution until its cuticle hardens. of Saunders County. Only three small of C. n. lincolniana was a result of its populations of this subspecies remain, isolation some time after the Kansan Habitat and the known adult population size in glaciation (435,000 to 300,000 years Tiger beetle species occur in many 2005 was only 153 individuals. This before the present), but possibly during different habitats, including riparian final rule extends Federal protection the Yarmouth glaciation (300,000 to habitats, beaches, dunes, woodlands, and recovery provisions of the Act to 265,000 years before the present). Busby grasslands, and other open areas the Salt Creek tiger beetle. (2003) recently examined populations of (Pearson 1988; Knisley and Hill 1992). DATES: This final rule is effective C. nevadica and confirmed that C. n. Individual tiger beetle species are November 7, 2005. lincolniana is distinctive from other generally highly habitat-specific because

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of oviposition (i.e., the act of laying search for prey (Spomer et al. 2004a). It thereby making conclusions about eggs) and larval sensitivity to soil is during this time that adults often population size uncertain. This study moisture, composition, and temperature appear on sand or gravel bars, or on less has not been continued in subsequent (Pearson 1988, Pearson and Cassola saline soils along the stream. Salt Creek years due to limited resources. Results 1992). A common component of tiger tiger beetles require these open barren obtained from this study in 2002 are beetle habitat appears to be open sunny areas to construct larval burrows, discussed in the proposed rule (70 FR areas for hunting and thermoregulation thermoregulate, and forage, and for use 5101). (an adaptive behavior to use sunlight or as dispersal corridors (Spomer and Surveys conducted over a 15-year shade to regulate body temperature) Higley 1993; L. Higley, UNL, pers. period establish that the Salt Creek tiger (Knisley et al. 1990, Knisley and Hill comm. 2002; S. Spomer, UNL, pers. beetle is an extremely rare insect, 1992). comm. 2002). The Salt Creek tiger beetle numbering only in the hundreds and The Salt Creek tiger beetle occurs in is adapted to brief periods of high-water confined to an extremely small range. saline wetlands—on exposed saline inundation and highly saline conditions Visual surveys conducted from 1991 to mudflats and along mud banks of (Spomer and Higley 1993). 2005 show substantial annual streams and seeps that contain salt fluctuations of total adult tiger beetles deposits (Carter 1989, Spomer and Distribution and Status Overview with 229, 150, 115, 473, 637, 631, 550, Higley 1993, LaGrange 1997). These The Salt Creek tiger beetle currently 308, 271, 309, 519, 777, 745, 558, and saline habitats occur within the has one of the most restricted ranges of 153 found each year, respectively, floodplain of Salt Creek and its any insect in the United States (Spomer although not all sites were surveyed in tributaries in northern Lancaster and and Higley 1993, Spomer et al. 2004a); all years (Spomer and Higley 1993; southern Saunders Counties. The it only occurs along limited segments of Spomer et al. 1997, 1999, 2001, 2002, habitats, especially the saline wetlands, Little Salt Creek and adjacent remnant 2004a, 2004b; Allgeier et al. 2003, S. receive their salinity from groundwater salt marshes in Lancaster County, Spomer, UNL, pers. comm. 2005). The passing through an underground rock Nebraska. To assess the historical and 2005 surveys found only 153 Salt Creek formation containing salts deposited by current distributions and populations of tiger beetles. This ranks as the third an ancient sea that once covered Salt Creek tiger beetle, we have lowest count since 1991 and the lowest Nebraska (LaGrange 1997). Saline analyzed private and public insect in the past 12 years. Over the last two wetlands of eastern Nebraska are collections, NGPC’s Heritage database years, the total number of Salt Creek characterized by saline soils and records, and surveys conducted over the tiger beetles observed through visual halophytes (plants adapted to saline past 15 years, as well as sought the surveys has declined by about 80 conditions). They usually contain a professional opinions of UNL percent (from 745 individuals in 2003 to central area that is devoid of vegetation entomologists who have studied or are 153 individuals in 2005). and, when dry, exhibit salt-encrusted studying the Salt Creek tiger beetle. We determined that some of the 13 mudflats (barren salt flats) (LaGrange Please see the proposed rule (70 FR ‘‘sites’’ could be combined into 1997). These saline wetlands are used 5101; February 1, 2005) for additional ‘‘populations’’ of Salt Creek tiger beetles by Salt Creek tiger beetles and details about the historical records we when the following criteria were met— numerous other saline-adapted insects. consulted, and the historical (1) close proximity of sites to each other The Salt Creek tiger beetle has very distribution of the subspecies. (i.e., nearby, contiguous, or narrow habitat requirements for neighboring); (2) distances less than 805 Recent Distribution and Abundance breeding; they occur in saline wetlands, meters (m) (2,640 feet (ft)) between sites; on exposed saline mud flats and gravel Pearson and Cassola (1992) found that and (3) the presence of both suitable bars, or along mud banks of streams and tiger beetle population size can be saline wetland (i.e., barren salt flats) and seeps that contain salt deposits and are accurately estimated through visual stream (saline edges) habitats that form sparsely vegetated (Carter 1989; Spomer counting due to the relative ease of a saline wetland/stream complex. The and Higley 1993; LaGrange 1997; observing and counting individuals, and distance in criteria 2 above (805 m Nebraska Game and Parks Commission because of their specialized habitat (2,640 ft)) is based on the 2002 mark/ (NGPC) 1999; Spomer et al. 2004a). requirements. Visual counts have recapture study by Allgeier et al. (2003), Larvae have been found only on the limitations (Horn 1976), but if they are which established that Salt Creek tiger moist salt-encrusted banks of Little Salt conducted in a similar manner every beetles can move among nearby suitable Creek in northern Lancaster County year, they can provide relative habitats, as well as the distance at (Spomer et al. 2004a). The density of population estimates and a good which Salt Creek tiger beetles may be larval burrows decreases as vegetative estimate of the health and stability of attracted to artificial sources of light. cover increases (S. Spomer, University the populations surveyed (Allgeier et al. On the basis of the above criteria, our of Nebraska—Lincoln (UNL), pers. 2003). Intensive visual surveys evaluation of the 13 survey sites comm. 2002). Spomer et al. (2004a) conducted from 1991 through 2005 resulted in the delineation of 6 different indicated that adults show little found Salt Creek tiger beetles at a total populations of Salt Creek tiger beetles, flexibility in their selection of breeding of 13 sites; although beetles were not half of which have been extirpated since habitat. found, nor were surveys conducted, at annual surveys began in 1991 (a The earliest emerging adults all 13 sites in all 15 years (Spomer et al. population is considered extirpated sometimes move from creek banks to the 2002, 2004a, 2004b; S. Spomer, UNL, after 2 consecutive years of negative salt flats, presumably for early prey. pers. comm. 2005). Please see the survey results). The six Salt Creek tiger However, a week or two into emergence, proposed rule (70 FR 5101) for a beetle populations, including the three this behavior stops and adults are found description of the visual survey that have been extirpated, are described almost exclusively in wetter areas, like techniques used. In addition to visual below in order of abundance based on creek edges or seeps along the creek count surveys, in 2002, researchers visual surveys conducted from 1991 to (Spomer et al. 2004a). During peak undertook a mark/recapture study of the 2005—(1) Little Salt Creek—Arbor Lake; emergence, adults often wander from Little Salt Creek—Arbor Lake (2) Little Salt Creek—Roper; (3) Upper their emergence sites, presumably population. The small sample size Little Salt Creek—North; (4) Upper looking for new areas to colonize or hampered the mark/recapture study, Little Salt Creek—South; (5) Jack Sinn

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Wildlife Management Area (WMA); and Little Salt Creek—Arbor Lake saline stream edges of Little Salt Creek. (6) Capitol Beach. Population Although former saline wetlands (i.e., The last 3 populations on the above The Little Salt Creek—Arbor Lake barren salt flats) exist adjacent to this list are considered to be extirpated. The area is a large, relatively intact saline population, these wetlands are degraded Upper Little Salt Creek—South wetland complex that contains the (drained because of the incisement of Little Salt Creek) and no longer provide population was located approximately 5 largest population of Salt Creek tiger suitable habitat for the Salt Creek tiger km (3 mi) upstream from the Little Salt beetles. The Little Salt Creek—Arbor beetle. This population encompasses Creek—Arbor Lake population. Lake population is located four sites along Little Salt Creek that Degraded and nonfunctioning saline approximately 1.6 km (1 mi) north of were surveyed at various times during wetlands exist adjacent to Little Salt the Interstate 80 and North 27th Street the period 1991 to 2005. Over the course Creek, and although once devoid of Interchange on the northern city limits of the 15-year survey period, 2 of the vegetation, saline stream edge habitats of Lincoln, NE. It exists along the saline survey sites that comprise this stream edge of Little Salt Creek and on are now vegetated at this site. The population were surveyed at least 10 the barren salt flats of an adjacent saline Upper Little Salt Creek—South times. From 1991 to 1996, the number population is considered extirpated wetland. This population was of adult beetles found in the Upper because no Salt Creek tiger beetles have monitored from 1991 to 2005, and the Little Salt Creek—North population been found there since 1995. The Jack adult population averaged 315 averaged 32 individuals per year Sinn WMA population was made up of individuals per year over that 15-year (Spomer and Higley 1993; Spomer et al. one survey site located on Rock Creek period (Spomer and Higley 1993; 1997). Since then, the number of adult in southern Saunders and northern Spomer et al. 1997, 1999, 2001, 2002, beetles surveyed in the population has Lancaster Counties, approximately 20 2004a, 2004b; Allgeier et al. 2003; S. averaged about 6 individuals per year; km (10 mi) northeast of the Little Salt Spomer, UNL, pers. comm. 2005). The the total number found in 2005 was 16 Creek—Arbor Lake population. Salt 2005 survey results were the third adult individuals (Spomer and Higley Creek tiger beetles from sites comprising lowest count since 1991 and the lowest 1993; Spomer et al. 1997, 1999, 2001, the Jack Sinn WMA population have not in the past 12 years. Over the last two 2002, 2004a, 2004b; Allgeier et al. 2003; been found since 1998 (Spomer et al. years, visual surveys of Salt Creek tiger S. Spomer, UNL, pers. comm. 2005). 1999, 2001, 2002, 2004a, 2004b; Allgeier beetles in the Little Salt Creek—Arbor Higley and Spomer (pers. comm. 2002) et al. 2003, S. Spomer, UNL, pers. Lake population declined by about 80 presumed that this population was comm. 2005). This population is percent. threatened with extirpation in the near considered extirpated because no Salt Little Salt Creek—Roper Population future because of the low and Creek tiger beetles have been found decreasing number of adults found there since 1998. Capitol Beach was The Little Salt Creek—Roper during surveys. once one of the largest saline wetland population is the second largest Conclusion of Salt Creek Tiger Beetle tracts in eastern Nebraska, with a size of remaining population of Salt Creek tiger Population Review approximately 150 ha (400 ac) beetles, based on visual surveys (Cunningham 1985). Museum records conducted from 1994 to 2005. This The Salt Creek tiger beetle, highly between 1900 and 1972 indicate large population is located immediately south specialized in habitat use, has probably numbers of Salt Creek tiger beetles at of the Interstate 80 and North 27th always had a localized distribution. this site historically. In 1984, Street Interchange, approximately 1.6 Visual surveys and mark-recapture researchers conducted visual searches km (1 mi) downstream of the Little Salt results indicate that the number of Salt for the Salt Creek tiger beetle at Capitol Creek—Arbor Lake population. Similar Creek tiger beetles is extremely small, Beach and other sites that appeared to to the Little Salt Creek—Arbor Lake even when compared to other federally provide suitable habitat (Spomer and population, this population is listed tiger beetle taxa. Population Higley 2001). They found a low number associated with a saline wetland and numbers are even smaller than the stream complex located along Little Salt of adults at Capitol Beach and noted federally listed threatened Northeastern Creek. Visual surveys were conducted that the habitat had been degraded beach tiger beetle (Cicindela dorsalis from 1994 to 2005, and the population (Spomer and Higley 1993). Today, all dorsalis) and Puritan tiger beetle (C. counts were 54, 161, 151, 144, 45, 55, that remains of suitable habitat at puritana). From 1989 to 1992, the 80, 85, 258, 162, 154, and 22 number of Northeastern beach tiger Capitol Beach is a 10– to 20–m (40– to respectively (Spomer et al. 1997, 1999, beetles found during annual surveys at 50-ft) wide ditch that parallels Interstate 2001, 2002, 2004a, 2004b; Allgeier et al. 65 sites in Maryland and Virginia 80 for approximately 0.8 km (0.5 mi), 2003, S. Spomer, UNL, pers. comm. ranged from 9,846 to more than 17,480 located southwest of the Interstate 80 2005). The 2005 survey results were the beetles (USFWS 1994). Surveys of and Airport Interchange. No individuals lowest count since monitoring began. Puritan tiger beetles in Maryland in have been found at Capitol Beach since Over the last two years, visual surveys 1989, 1991, 1992, and 1993 found an 1998 (Spomer et al. 2002, 2004a, 2004b; of Salt Creek tiger beetles in the Little average of 6,389 beetles at 15 sites Allgeier et al. 2003; S. Spomer, UNL, Salt Creek—Roper population declined annually (USFWS 1993). Both the pers. comm. 2005), leading us to by about 86 percent. Northeastern beach tiger beetle and conclude that this population is now Puritan tiger beetle are well-studied Upper Little Salt Creek—North extirpated. Please see the proposed rule insects and were listed as threatened Population (70 FR 5101) for additional information under the Act in 1989 (55 FR 32088). on these 3 populations. The Upper Little Salt Creek—North Museum collections and surveys We briefly describe the remaining 3 population is the third and last extant conducted from 1991 through 2005 extant populations, with emphasis on (i.e., existing) population of Salt Creek show that the number of known new information. Please see the tiger beetles. This population is located populations has declined from 6 to 3 in proposed rule (70 FR 5101) for approximately 7.2 km (4.5 mi) upstream the last 9 years. Salt Creek tiger beetles additional details on these 6 from the Little Salt Creek—Arbor Lake were last found in the Upper Little Salt populations. population, and exists only on the Creek—South population in 1995, and

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no individuals have been found in review policy (59 FR 34270; July 1, Issue 3: Several commenters feared either the Jack Sinn WMA or the Capitol 1994). the potential effects that listing the Salt Beach populations since 1998. Based on During the public comment period, Creek tiger beetle could have on their our analysis of the best available we received written comments (i.e., use of private lands. scientific information, including private letters, facsimiles, and electronic Our Response: On non-Federal and public insect collections, NGPC’s messages) from 64 individuals, property, if Salt Creek tiger beetles are Heritage database records, surveys businesses, schools, organizations, and not present and activities on the conducted over the past 15 years, and State and local government entities; and property do not result in take, the Act’s professional opinions of UNL 1 request for an extension of the section 9 prohibitions on take would not entomologists who have studied or are comment period. In all, 56 commenters come into play. If Salt Creek tiger studying the Salt Creek tiger beetle, we supported the protection of the Salt beetles are present on non-Federal conclude that the number of Salt Creek Creek tiger beetle through a Federal property, but activities on the property tiger beetle populations is declining and listing, while 8 commenters opposed the would not result in take, section 9 that the three remaining populations are listing. Of the 56 commenters prohibitions also would not come into immediately threatened with extinction. supporting the listing, 3 letters were play. If Salt Creek tiger beetles are This is discussed further below in the signed by 32 organizations and present on non-Federal properties and Summary of Factors Affecting the individuals. We treated these as 3 activities on the property are likely to Species section of this rule. individual comments of support. Issues result in take, an incidental take permit and concerns raised by the commenters, may be available under section Previous Federal Action and our responses to each are 10(a)(1)(B). As noted elsewhere in this For more information on previous summarized below: rule, critical habitat has not been Issue 1: Some commenters believed Federal actions concerning the Salt designated for this species. Once that, due to the few remaining Creek tiger beetle prior to 2002, please designated, additional regulations will populations of Salt Creek tiger beetles refer to the proposed rule to list the regulate adverse modification of and the extensive habitat loss, subspecies as endangered (70 FR 5101; occupied and unoccupied critical immediate protection under the Act is February 1, 2005). On October 7, 2002, habitat. The Service will provide necessary. In addition, a number of as part of an agreement regarding other technical assistance to landowner(s) and commenters expressed the need for the species, the U.S. Department of the operator(s) to help them avoid, Service to also designate critical habitat. minimize, or mitigate any adverse Interior reached an out-of-court Our Response: We determined that impacts to the Salt Creek tiger beetle settlement with several conservation emergency listing was not necessary for and its habitat. organizations and agreed to make a final this subspecies. However, we believe Proposed activities authorized, determination for listing the Salt Creek listing is warranted. Additionally, we funded, or carried out by a Federal tiger beetle by no later than September have pursued numerous steps to protect agency are subject to the consultation 30, 2005. In the May 4, 2004, Candidate the beetle prior to listing. These actions requirements prescribed in section 7 of Notice of Review published in the are discussed below. Regarding the the Act. Circumstances under which a Federal Register (69 FR 24876), the Salt designation of critical habitat for the proposed Federal action or Federal Creek tiger beetle remained as a priority Salt Creek tiger beetle, we believe nexus may affect the Salt Creek tiger 3 candidate for Federal listing. On critical habitat is both prudent and beetle will be handled through February 1, 2005, we published a determinable. However, because of the consultation with the involved Federal proposed rule in the Federal Register critically imperiled status of Salt Creek agency and applicant(s), as necessary, (70 FR 5101) to list the Salt Creek tiger tiger beetle, limited financial and on a case-by-case basis, in accordance beetle as endangered. This final rule personnel resources available to work with section 7 of the Act. complies with the court order. We have on this taxon, and the Service’s belief Issue 4: Concerns were raised that updated the proposed rule to reflect that listing confers greater protection on listing the Salt Creek tiger beetle under new information concerning changes in a species than does critical habitat, we the Act would have adverse economic distribution, status, and threats to the have assigned a higher priority to and social effects on the City of Lincoln subspecies since publication of the promptly publishing the final rule for and Lancaster County by limiting proposed rule. Salt Creek tiger beetle than to proposing residential, commercial, and industrial Summary of Comments and and designating critical habitat, as developments and agricultural use of Recommendations allowed pursuant to section 4(b)(6)(C)(i). lands. These commenters requested that Funds have been budgeted for the Service consider and analyze the In the proposed rule published on identification of critical habitat and possible socioeconomic impacts of the February 1, 2005, we requested work on a proposed designation is listing action. interested parties to submit factual underway. We plan to publish a Our Response: Under section reports or information that might proposed rule to designate critical 4(b)(1)(A) of the Act, we must base a contribute to the development of a final habitat for Salt Creek tiger beetle in the listing decision solely on the basis of the rule. A 60-day comment period closed near future. best scientific and commercial data on April 4, 2005. We contacted Issue 2: One commenter provided a available. The legislative history of this appropriate Federal agencies, State photograph of a tiger beetle along the provision clearly states the intent of agencies, county and city governments, Missouri River at Ponca State Park in Congress to ‘‘ensure’’ that listing scientists, and other interested parties to Dixon County, Nebraska, and asserted decisions are ‘‘based solely on biological request information and comments. A that ‘‘Salt Creek tiger beetles’’ were criteria and to prevent non-biological newspaper notice was printed in the common in the area. criteria from effecting such decisions’’ Lincoln Journal Star on February 20, Our Response: A tiger beetle expert at (H. Rept. 97–835). The Conference 2005. There were no requests for a the University of Nebraska-Lincoln Report on the 1982 amendments to the public hearing during the comment identified the tiger beetle in the ESA notes that economic considerations period. Finally, we requested peer photograph as Cicindela formosa, which have no relevance to determinations review in compliance with our peer is not the Salt Creek tiger beetle. regarding the status of species.

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Economic considerations will be taken tiger beetles I have seen. The population where Salt Creek tiger beetles are found. into full account when designating levels, local extinction, and robust data Pesticides also are used for purposes critical habitat, as required by the Act. on surviving remnant colonies are other than controlling pests in field Issue 5: A few commenters noted that scientifically sound and reliable. There crops. A primary example is mosquito the Salt Creek tiger beetle is is little doubt in my mind reading this control, particularly due to the presence insignificant to mankind and that document that the Salt Creek tiger beetle of West Nile Virus in Nebraska. Buffer insects should not be protected under will most likely go extinct in a relatively strips and other water control structures the Act. short time if no action is taken.’’ provide some level of protection from Our Response: The Act recognizes the Issue 7: Several commenters dispute this factor. Farmers who do not utilize importance of all species to properly the Service’s claim that cattle grazing is pesticides, or who use ground functioning ecosystems and requires us a threat to the Salt Creek tiger beetle and applicators and buffer strips, or other to protect species in danger of its habitat. considerations for the Salt Creek tiger extinction and the ecosystems on which Our Response: Landowners who beetle, are not likely to ‘‘take’’ tiger they depend. Section 3(8) of the Act employ sound grazing management beetles, and so are not likely to be defines ‘‘the term ‘fish or wildlife’ (as) practices, including watering sources, impacted by the listing. * * * any member of the animal generally do not adversely impact Salt Issue 10: One commenter referred to kingdom, including without limitation Creek tiger beetles. However, a water study that the Nebraska any mammal, fish, bird (including any uncontrolled congregation of cattle in Department of Environmental Quality migratory, nonmigratory, or endangered areas where Salt Creek tiger beetle (NDEQ) conducted in Little Salt Creek bird for which protection is also larvae exist can result in the trampling from 1977 to 1994. The commenter afforded by treaty or other international of both larvae and their burrows. In stated that ‘‘the study confirmed that no agreement), amphibian, reptile, mollusk, addition, areas that are overgrazed are pesticides of concern were found that crustacean, arthropod or other susceptible to both rain and wind would [a]ffect the Salt Creek tiger beetle invertebrate, and includes any part, erosion, which can result in sediment according to John Bender of NDEQ.’’ product, egg, or offspring thereof, or the covering Salt Creek tiger beetle burrows. Our Response: The NDEQ study dead body or parts thereof.’’ Based on Further, erosion of sediment into Salt consisted of one sediment sample and the best available scientific information, Creek tiger beetle habitat from one water sample, taken at one location we have determined that the Salt Creek overgrazed areas can change the and analyzed for a limited number of tiger beetle is in danger of extinction topographic elevation of the habitat and insecticides. More information and warrants protection as an render it unsuitable. regarding the Service’s concerns with endangered species. Issue 8: One commenter objected to insecticides (including, but not limited, Issue 6: One commenter referenced the use of the term ‘‘applied annually’’ to those associated with agriculture) is ‘‘Tiger Beetles: The Evolution, Ecology, in the pesticides portion of Factor E in provided in response to Issue 8 above and Diversity of Cicindelas’’ (Pearson the Summary of Factors Affecting the and in the pesticides portion of Factor and Vogler 2001) and concluded that: Species section below. E in the Summary of Factors Affecting (1) There is nothing unique about the Our Response: We have modified the the Species section below. Salt Creek tiger beetle, including its sentence and eliminated the word Issue 11: One commenter stated that biology; (2) there are many other species ‘‘annually.’’ there are beetles in Africa that feed of tiger beetles; and (3) other tiger beetle Issue 9: Several commenters upon corn stocks. This commenter species have gone extinct without any expressed their view that agriculture is implied that the Salt Creek tiger beetle human-related causes. more environmentally friendly today also could become a pest if allowed to Our Response: (1) As noted above, than it traditionally was in the past. increase its numbers. Busby (2003) examined populations of Some stated that they rarely use Our Response: While some species of Cicindela nevadica in the central Great pesticides, especially insecticides. They beetles are known to be agricultural Plains and confirmed that C. n. also mentioned the use of crop rotation pests, no evidence exists to indicate that lincolniana is distinctive from other between soybeans, grain sorghum, and tiger beetles and specifically, Salt Creek populations of C. nevadica in the corn to help manage pest problems on tiger beetles, are agricultural pests. As central Great Plains. (2) We do not a yearly basis. Additionally, they mentioned above in the Background dispute this claim. As noted above, 85 referred to the current existence of section, the Salt Creek tiger beetle is a species and more than 200 subspecies of buffer strips along Little Salt Creek that predatory insect that captures small tiger beetles in the genus Cicindela are serve to ‘‘handle’’ any contamination arthropods. They are not known to eat known from the United States (Boyd et problems. Another commenter stated corn stocks or other vegetation. al. 1982; Freitag 1999). (3) The Service that agriculture and croplands in the Issue 12: One commenter indicated does not dispute the assertion that other watershed have little effect on Salt that the Salt Creek tiger beetle is in species of tiger beetles have gone extinct Creek tiger beetle survival since danger of extinction because of the without human related causes. ‘‘insecticide use is very limited and natural changes to the habitat in Little However, the Act requires the Service to controlled and water conservation Salt Creek as opposed to human- take action to conserve endangered and structures continue to be installed.’’ induced changes. threatened species, and the ecosystems Our Response: We are pleased to hear Our Response: The human-induced on which they depend, regardless of the about instances where farmers minimize impacts that have caused the loss and cause. The Salt Creek tiger beetle faces the use of pesticides. However, this does degradation of the Salt Creek tiger an imminent risk of extinction. not fully address our concern with beetle’s habitat in the Salt Creek Coincidentally, Dr. David L. Pearson, pesticides, especially insecticides, and watershed are documented under Factor co-author of ‘‘Tiger Beetles,’’ was asked their potential impacts to Salt Creek A in the Summary of Factors Affecting to provide a peer review of the proposed tiger beetles. As long as there are the Species section below. rule. In his review, he stated, ‘‘The registered pesticides licensed for use on Issue 13: It was suggested that: (1) Our present proposal for the Salt Creek tiger field crops (including soybeans, grain references cited should be listed in the beetle is by far the most detailed study sorghum, and corn), there will be a proposed rule; and (2) that a number of of potentially threatened or endangered potential for pesticide use in areas the references cited in the proposed rule

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had not been peer reviewed and should plan sets objectives and priorities, such regulations, and policies have not been have been prior to being used in the as habitat restoration or enhancement, sufficient to prevent past and ongoing proposed rule. development of reintroduction losses of Salt Creek tiger beetle habitat. Our Response: (1) As noted in the protocols, and identification of potential Federal listing under the Act will proposed rule, a complete list of release sites. It also assigns provide additional protections. This references cited is available upon responsibilities to achieve those issue is discussed under Factor D in the request. Accordingly, we provided the objectives, and estimates the associated Summary of Factors Affecting the commenter with a compact disk that costs of completion. Due to the Species section below. contained the list of references cited as countless variables involved, estimating Also of significance to this issue, the well as copies of all documents on the the probability of recovery may not be Nebraska Game and Parks Commission list. (2) The Act requires us to make possible. That said, the ultimate recently commented on the proposed listing determinations on the basis of purpose of the recovery plan is to rule, ‘‘* * * for the agencies to the best scientific and commercial data identify the necessary steps needed to ultimately be successful in preventing available. Peer review is a consideration conserve and recover the Salt Creek the extinction of this highly endangered in determining what constitutes the best tiger beetle. species, the Commission believes that it data available, but not the sole Issue 16: One commenter requested is necessary to utilize the regulatory consideration. However, the Service is an additional 120-day comment period oversight and funding resources that can committed to ensuring reliance upon based on scientific uncertainty and be made available by (Federal) listing accurate, reliable, and unbiased economic impact of the proposed listing the Salt Creek tiger beetle as a federal information. To the greatest extent action. endangered species.’’ practicable and appropriate, information Our Response: For the following Issue 18: The City of Lincoln that we rely upon is internally reviewed reasons we denied an extension of the requested that the Service proceed with for quality, including objectivity, utility comment period: (1) economic impacts a final decision on whether to list the and integrity. Additionally, in can not be considered in a final listing Salt Creek tiger beetle to eliminate the accordance with our July 1, 1994, determination; (2) the Service does not existing uncertainty, and to allow the Interagency Cooperative Policy for Peer believe there is any scientific City to move forward with planning Review in Endangered Species Act uncertainty regarding the status of this decisions and development proposals. Activities (59 FR 34270), we solicited subspecies, nor did the commenter Our Response: We understand the peer reviews from seven experts in the provide any substantive information to City’s desire for a decision on this field of entomology who have extensive illuminate this claim; and (3) the time matter. In this action, the Service has experience with tiger beetles, to help constraints of an out-of-court settlement finalized the proposal to list the Salt ensure that our listing decision was agreement required a final Creek tiger beetle as endangered under based on scientifically sound data, determination regarding the proposed the Act. assumptions, and analyses. Five of these listing action by September 30, 2005. Issue 19: The City of Lincoln experts provided peer reviews. The Issue 17: A few commenters said that identified numerous conservation results of the peer review are discussed the State and local governments were measures and actions it has taken to below in the Peer Review section of this doing an adequate job of protecting the protect and preserve the saline wetlands rule. Salt Creek tiger beetle under their of eastern Nebraska and the Salt Creek Issue 14: It was suggested that existing authorities and that Federal tiger beetle. The City expressed historical data are lacking and that protection under the Act was conditional support for listing the Salt recent counts are suspect. unnecessary. Creek tiger beetle, provided that there Our Response: We have no reason to Our Response: We acknowledge that would be adequate Federal funding to believe that the information we have the City of Lincoln, Lancaster County establish science-based habitat needs to used to make our determination is and the State of Nebraska have been guide future growth of the City and suspect. The commenter did not provide undertaking actions beneficial to the Lancaster County while protecting the specific examples supporting Salt Creek tiger beetle. Existing tiger beetle. shortcomings in historic records or regulatory mechanisms that provide Our Response: We appreciate the current sampling methods. Peer reviews protection for the Salt Creek tiger beetle efforts of the City of Lincoln and of this rule support our conclusion that include: federally-implemented Lancaster County to work with us and based on best scientific and commercial regulatory mechanisms such as the other government entities, data available, the Salt Creek tiger beetle National Environmental Policy Act organizations, and landowners to faces imminent extinction unless (NEPA) and section 404 of the Clean protect the Salt Creek tiger beetle and its preventive conservation measures are Water Act (CWA); State-implemented habitat. To date, the Service has employed to reverse the current trend. regulatory mechanisms such as the provided funds under authority of Issue 15: A few commenters stated Nebraska State Water Quality Standards section 6 of the Act to the City and that the Salt Creek tiger beetle should (as required by section 401 of the CWA) County, to help with the purchase of not be listed until a recovery plan or and the Nebraska Nongame and high-priority habitats for the Salt Creek action plan is developed and approved. Endangered Species Conservation Act tiger beetle. In addition, section 6 funds In addition, there needs to be an (NESCA); and local conservation have been made available to the ‘‘estimated probability’’ that the Salt planning efforts such as the 2002 City of University of Nebraska-Lincoln for Creek tiger beetle will be saved by the Lincoln and Lancaster County research studies. We also have provided recovery/action plan. Comprehensive Plan (Comprehensive technical assistance to the City/County Our Response: Listing the Salt Creek Plan), the Little Salt Creek Valley Planning Department by providing tiger beetle will initiate recovery Planning Cooperative Agreement co- comments and recommendations for planning. During the Federal recovery sponsored by The Nature Conservancy authorized or funded projects and planning process, a recovery team (TNC), NGPC, and the Saline Wetland activities that may impact the Salt Creek develops a recovery plan that Conservation Partnership (SWCP) (a tiger beetle and its habitat. We look establishes a framework for the local conservation plan). However, forward to continued work with the conservation of the species. A recovery Federal, State, and local laws, City/County and their partners in the

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future, to allow for future growth of the relationship within Cicindela nevadica and alteration for commercial, City/County while protecting the Salt and between other species of tiger residential, transportation, and Creek tiger beetle and saline wetlands of beetles. However, his comments agricultural development since the late eastern Nebraska. Although we cannot indicated that the lack of this 1800s, and are the most restricted and guarantee Federal funding will be information does not diminish the imperiled natural habitat type in the provided in the future, we will make information presented in the proposed State (Gersib and Steinauer 1991). every effort to secure it. rule and the need to list the Salt Creek In order to understand the complexity and immediacy of threats to the Salt Peer Review tiger beetle. The expert further stated that molecular phylogenetic studies of Creek tiger beetle, it is necessary to In accordance with our July 1, 1994, the Salt Creek tiger beetle could prove understand when and how the Interagency Cooperative Policy for Peer that this tiger beetle is a separate destruction and degradation of the Review in Endangered Species Act species, thus strengthening the beetle’s saline wetland and associated Activities (59 FR 34270), we solicited argument for protection. All of the stream habitats took place. This is peer reviews from experts in the field of experts’ information has been discussed at length in the proposed rule entomology who have extensive incorporated into this final rule where (70 FR 5101), and we refer the reader to experience with tiger beetles. The appropriate. that proposal for additional details purpose of such a review is to ensure We also received comments from beyond what is summarized here. The that listing decisions are based on entomologists across the United States saline wetlands and associated streams scientifically sound data, assumptions, who have conducted research on tiger of eastern Nebraska began to be ditched, and analyses, including input from beetles, including the federally drained, and filled beginning in the appropriate experts. We received threatened Northeastern beach tiger 1800s, (Murphy 1992; Russ et al. 2003). comments from five expert reviewers; beetle and Puritan tiger beetle. These From the 1930s to the 1950s, saline four of the five experts have provided reviewers also supported the listing of wetlands continued to be destroyed for the Service with peer reviews on the Salt Creek tiger beetle under the Act, the development of Lincoln (Farrar and previous listing actions involving tiger based on the information in the Gersib 1991), and in the 1960s, the beetles. Three research professors (from proposed rule. construction of Interstate 80 resulted in Denison University, Granville, Ohio; In summary, no information was additional filling, dredging, diking, Arizona State University, Tempe, received from scientific experts to draining, and diversion in the heart of Arizona; and Randolph-Macon College, indicate that the Salt Creek tiger beetle the remaining Salt Creek tiger beetle Ashland, Virginia) provided is more widespread or less threatened habitat (Farrar and Gersib 1991). independent peer review. These experts than we had previously determined in Commercial and residential have had direct experience with rare the proposed rule. All peer reviewers developments, along with road and federally listed tiger beetles support the endangered listing. construction, have resulted in the loss throughout the United States and the or degradation of the vast majority of world. In addition, two Salt Creek tiger Summary of Factors Affecting the barren salt flat and saline stream edge beetle experts—a research technologist Species habitat for the Salt Creek tiger beetle. in entomology (with an M.S. degree) in Section 4 of the Act (16 U.S.C. 1533) The three remaining Salt Creek tiger the Entomology Department of the and regulations (50 CFR part 424) beetle populations are being surrounded University of Nebraska-Lincoln, and a promulgated to implement the listing by commercial and residential UNL entomology graduate student (who provisions of the Act set forth development (Ratcliffe and Spomer subsequently received an M.S. for his procedures for determining a species or 2002). Although the construction of work on the Salt Creek tiger beetle)— subspecies to be endangered or buildings, homes, roads, schools, and reviewed the rule, particularly in regard threatened due to one or more of the parking lots is not occurring directly on to our interpretation of data on the five factors described in section 4(a)(1) salt flats and saline stream edges, these status, trends, habitat requirements, and of the Act. These factors and their projects are occurring adjacent to these other biological requisites of the Salt application to the Salt Creek tiger beetle habitats. Such projects have resulted in Creek tiger beetle. The UNL research are as follows: the creation of impervious surfaces (e.g., technologist has more direct field access roads, parking lots) that do not research experience on the Salt Creek A. Present or Threatened Destruction, allow precipitation to seep into the tiger beetle than anyone, and the Modification, or Curtailment of Habitat ground. Instead, these surfaces create graduate student has conducted or Range frequent, high-volume freshwater runoff important research on the life history, flows that enter the saline wetlands and Background habitat requirement, and captive rearing associated streams, diluting their potential of the beetle. Both have As discussed in the proposed rule (70 salinity and altering hydrology. In published peer-reviewed scientific FR 5101; February 1, 2005), the greatest addition, runoff originating from other articles on the Salt Creek tiger beetle. threat to the Salt Creek tiger beetle is nearby, but not necessarily adjacent, Their review of the rule has helped habitat destruction (Ratcliffe and residential and commercial ensure the scientific soundness of our Spomer 2002). Like many insects, the developments and associated roads interpretations and analyses. Salt Creek tiger beetle’s close flows through constructed drainages, All five experts strongly supported association with specific habitats—salt storm sewers, and tributaries, and listing of the Salt Creek tiger beetle as barrens and stream edges—leaves it contributes to an increase of freshwater endangered, based on the best available particularly vulnerable to habitat inflow into saline wetlands and their scientific information. Two experts destruction and alteration through associated streams. provided corrections on minor factual direct and indirect means (Pyle et al. Reduced salinity concentrations and issues, interpretation of the data, and 1981). The saline wetlands of eastern increased sedimentation on barren salt citations. One reviewer identified that Nebraska, associated saline streams, and flats and along saline stream edges have the proposed rule lacked information freshwater wetlands used by the Salt allowed the invasion of vegetation such regarding a molecular phylogeny study Creek tiger beetle as dispersal habitat as Typha angustifolia (cattail) and that could be used to indicate the have undergone extensive degradation Phalaris arundinacea (reed canary

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grass) into habitats used by the Salt (70 FR 5101). In 1993 and 1994, a team completed by LaGrange (2003), we then Creek tiger beetle. These plants, of biologists from various Federal and conducted a spatial analysis to ordinarily unable to tolerate high State agencies completed an intensive determine the amount of habitat salinity, are aggressive invaders that assessment, inventory, and currently available for the Salt Creek convert sunny, barren salt flats into categorization of the saline wetlands of tiger beetle that is not highly degraded. habitat that is dominated by an eastern Nebraska. This assessment The analysis separated coded barren salt herbaceous overstory. Additionally, identified 98 sites that could be flats into Category 1 subclasses sedimentation from runoff at categorized as Category 1 saline identified by LaGrange (2003). Our construction sites allow for fine silts to wetlands comprising approximately analysis revealed that only deposit on flats allowing for increased 1,346 ha (3,327 ac) (Gilbert and Stutheit approximately 6 ha (15 ac) out of the vegetation encroachment. The resulting 1994). Category 1 saline wetlands total 49 ha (122 ac) of coded salt barrens vegetated habitat is unsuitable for use provide saline wetland functions of high are not highly degraded. It is these by the Salt Creek tiger beetle. The value or have the potential to provide remaining 6 ha (15 ac) of not highly overstory shades out open, sunny areas high value following restoration or degraded barren salt flats and saline required by the Salt Creek tiger beetle to enhancement (Gilbert and Stutheit stream edges that provide habitat for the thermoregulate, forage, and oviposit (M. 1994). LaGrange (2003) further Salt Creek tiger beetle. Fritz, NGPC, pers. comm. 2001). examined the Gilbert and Stutheit As the quality of saline habitat Increased vegetative encroachment is (1994) analysis, and divided Category 1 continues to decline through reduction the primary factor attributed to the saline wetlands into three sub-classes: in size, encroachment of herbaceous extirpation of several populations of (1) not highly degraded and still species, and modification to hydrology, other Cicindela species (Knisley and functioning—totaling 85 ha (210 ac) (6 so too does the likelihood that the Salt Hill 1992). percent); (2) degraded, but still Creek tiger beetle can survive and avoid Reduced salinity concentrations have functioning as a saline wetland, and extinction. Most of the habitat resulted in other direct impacts. Based capable of restoration to full function— delineated in our analysis is composed on field and laboratory studies using totaling 1,249 ha (3,087 ac) (93 percent); of extremely small habitat complexes Cicindela circumpicta and C. togata, and (3) degraded and not functioning as (i.e., less than 0.04 ha (0.09 ac)) that are two tiger beetle species that are co- a saline wetland, but restorable to full unlikely to provide all of the necessary inhabitants with the Salt Creek tiger function—totaling 12 ha (30 ac) (1 life history requirements that the Salt beetle on salt flats, Hoback et al. (2000) percent). Creek tiger beetle needs to survive. found that salt is required for Although it is important to discuss Further, these small habitats are in ovipositing. Allgeier et al. (2004) the overall loss of saline wetlands, the clusters resembling mosaics, separated concluded that a species-specific impact of that loss on the Salt Creek by herbaceous overstory. This spatial preference for salt and soil moisture tiger beetle can only be fully assessed by dispersion precludes the use of these regimes is important to habitat considering the loss of barren salt flat small areas by the Salt Creek tiger partitioning and reduction in and saline stream edge habitats that beetle. In addition, the loss of saline and competition between the Salt Creek tiger occur within the confines of Category 1 freshwater wetlands further reduces the beetle and other tiger beetles. Hoback et saline wetlands. We expanded on the connectivity between populations. The al. (2000) also discovered that changes analyses completed by LaGrange (2003) loss of travel corridors eliminates in salinity and hydrology may alter the and Gilbert and Stutheit (1994) to genetic interchange and the ability to abundance of prey and cause the loss of complete such an assessment. Using a repopulate after catastrophic events suitable larval habitat for saline Geographic Information System (GIS), (Murphy et al. 1990; Fahrig and wetland-dependent species of tiger we did a habitat assessment of the Merriam 1994; Ruggerio et al. 1994; beetles, including the Salt Creek tiger remaining barren salt flat and saline Noss et al. 2002). Spomer et al. (2004) beetle. Once the hydrologic regimes of stream edge habitats present within the reported that no Salt Creek tiger beetles these saline wetlands and associated remaining Category 1 saline wetlands. were found in these small habitats in streams used by the Salt Creek tiger Using National Hydrography Dataset the 13 years that surveys were beetle are altered by salinity changes information (available online at http:// conducted. Carter (1989), NGPC (1999), (oftern leading to vegetation nhd.usgs.gov) and all known locations Ratcliffe and Spomer (2002), Spomer encroachment), stream incisement of Salt Creek tiger beetles, we delineated and Higley (1993 and 2001), Spomer et (which lowers the water table), or other saline stream edge habitat (J. Runge, al. (1997), and Allgeier et al. (2003) all impacts such as bank stabilization, USFWS, pers. comm. 2003). Next, we concluded that the declining number of restoration and recovery of the habitats delineated barren salt flat habitat populations of Salt Creek tiger beetles is can be difficult (Langendoen et al. 2000) through the use of a feature-extraction due to the loss of suitable saline and expensive (see, for example, http:// process that would select areas wetland and stream habitat. www.environmentaltrust.org/work/ containing similar spectral signatures of Urban Development and Road awards.htm). known barren salt flats. Finally, we Construction evaluated our GIS analysis qualitatively Past and Present Habitat Quality and by ground-truthing select polygons Commercial and residential urban Quantity within the barren salt flat GIS layer. development and road construction are A number of studies have attempted Results from our assessment indicate the greatest threats to the saline to quantify the amount and rate of that the total remaining areas of barren wetlands of eastern Nebraska and the habitat loss for the saline wetlands of salt flat and saline stream edge habitat plant and animal species that depend eastern Nebraska. All of these studies that exist within the saline wetlands of upon these habitats (Gilbert and Stutheit confirm the extensive loss of saline the Little Salt Creek and Rock Creek 1994; Ratcliffe and Spomer 2002). Urban wetlands, but vary in terms of their watersheds plus the remnant Salt Basin expansion of the City of Lincoln estimates for the total acres lost due to (i.e., Capitol Beach) are approximately (Lincoln) and Lancaster County, fueled differences in data and methods of 15, 33, and 1 ha (38, 81, and 3 ac), by growth in the human population of analysis. These various studies are respectively, for an overall total of 49 ha both the City and County, has discussed at length in the proposed rule (122 ac). In consideration of the analysis contributed to the decline of the saline

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wetlands of eastern Nebraska and Little Salt Creek from vehicles and erosion that can cover larval burrows as associated streams, and the potential roadway surfaces. Highway runoff well as change soil salinity and extinction of endemic taxa that use contains a variety of chemical encourage vegetative encroachment. these areas, such as the Salt Creek tiger constituents, many of which can be Such areas may no longer be suitable for beetle. This growth and expansion was harmful to the environment when ovipositing, larval, or foraging habitat. discussed in detailed in the proposed washed from roads by rain and When an area of larval habitat becomes rule (70 FR 5101), and that rule should snowmelt into adjacent surface waters, degraded and then disappears, so does be consulted for more specifics. The groundwater, and ecosystems (Bricker the species that it supports (Dunn 1998). accelerated population growth rate of 1999). Contaminated runoff can impact The data now support this assertion. the region has become particularly the Salt Creek tiger beetle through toxic After one such site adjacent to a evident in the last year, as illustrated by effects to the beetle, its prey base, and cultivated field was plowed in the fall/ urban and infrastructure developments its habitat. For the expansion of winter of 2002/2003, the habitat became (discussed below) that threaten the Interstate 80, the Federal Highway increasingly vegetated, and observed continued existence of the Salt Creek Administration (FHWA) and Nebraska counts declined from 45 in the summer tiger beetle and its limited remaining Department of Roads have identified of 2002 to zero in 2005 (Spomer et al. habitat. measures that reduce concentrations of 2002, 2004a, 2004b; Allgeier et al. 2003; All three extant populations of Salt hazardous and toxic contaminants in S. Spomer, UNL, pers. comm. 2005; Creek tiger beetles may be threatened highway runoff, and a contingency plan Robert Harms, USFWS, pers. comm. with extirpation as a result of expansion for accidental spills that would threaten 2005). Such cultivation may also result of urban development and road two populations of Salt Creek tiger in the introduction of pesticides into construction in Lincoln and Lancaster beetles (FHWA 2003). However, other adjacent saline wetlands unless a County. A review of 1989 and 2002 planned non-Federal road and street vegetative buffer is in place. Historic aerial photographs revealed that over 50 projects that will be constructed after and anticipated impacts related to percent of the area surrounding the the Interstate 80 expansion do not flooding are discussed later in Factor E Little Salt Creek—Roper population (a currently address impacts to Salt Creek of the Summary of Factors Affecting the 1,300-ha (3,200-ac) area bounded by tiger beetle populations from road Species section of this rule. Interstate 80 to the North, Salt Creek to runoff. the South, North 27th Street to the West, Stream Channelization, Bank and Highway 77 to the East) has been Agriculture Stabilization, and Incisement developed within the last 5 years. The Agricultural practices in the area also 2005 population survey results for this may threaten the limited Salt Creek tiger In Nebraska, many river and stream population were the lowest since beetle habitat, especially for the Upper systems, including Salt Creek and its monitoring began in 1991, with Little Salt Creek—North and Little Salt tributaries, have undergone extensive significant declines observed in each of Creek—Arbor Lake populations. channelization for flood control to the last three years. We reviewed the Livestock over-grazing can destroy or protect both agricultural and urban Comprehensive Plan and found that an substantially degrade habitats for adult developments. Channelization of Salt additional 30 to 40 percent of the area and larval forms of the Salt Creek tiger Creek from Lincoln to Ashland, surrounding the Little Salt Creek— beetle through trampling, which can Nebraska, was done a section at a time Roper population has been planned for destroy Salt Creek tiger beetle larvae from 1917 to 1942 by the Army Corps residential and commercial burrows and the larvae that inhabit of Engineers (COE) (Farrar and Gersib development over the next 25 years. them (Spomer and Higley 2001). Cattle 1991; Murphy 1992). In the 1950s, the However, given the current rate of grazing also can compact soil and COE and USDA further modified the growth and development surrounding modify soil hydrology, gradually drying area when they developed and this population, this additional area will out a site and making it unsuitable for implemented a flood control plan that likely be developed more quickly. In adults and larvae (which prefer moist, involved the construction of levees, some cases, the local municipal muddy sites with encrusted salt on soil reservoirs, and additional development permits for the expansion surfaces). Further, erosion of sediment channelization of Salt Creek (Murphy have already been acquired (including into Salt Creek tiger beetle habitat from 1992). Farrar and Gersib (1991) found some floodplain permits from Lincoln) overgrazed areas can change the that the greatest alteration of saline (R. Harms, pers. obs. 2002 and 2003). topographic elevation of the habitat and wetlands in the Little Salt Creek and Development is currently underway render it unsuitable. The Upper Little Rock Creek drainages resulted from the in areas adjacent to the remaining Salt Creek—North population occurs channelization of Salt Creek. segments of habitat for all three Salt along a segment of Little Salt Creek that Channelization of Salt Creek encouraged Creek tiger beetle populations. These flows through a pasture, and one of tributary streams (Little Salt Creek, Oak developments have already changed the these population survey sites may have Creek, Rock Creek, and Middle Creek) to drainage patterns in some areas, been negatively impacted by cattle head-cut, carving deeper into their beds resulting in the introduction of excess grazing (Spomer and Higley 2001; to adjust to the change in stream bed freshwater, sediment, and contaminated Spomer et al. 2004a). After cattle grazing gradients. Straightening stream channels urban runoff to saline habitats occupied was halted at this site in 2004, the leads to a state of instability, often by the Salt Creek tiger beetle. There also habitat improved and observed causing stream entrenchment and are planned highway projects which population numbers increased (Spomer corresponding changes in morphology could adversely impact the species due et al. 1997, 1999, 2001, 2002, 2004a, and stability (Rosgen 1996). The to increases in freshwater runoff, 2004b; Allgeier et al. 2003; S. Spomer, lowering of tributary streambeds in the vegetative encroachment, risks of toxic UNL, pers. comm. 2005). Salt Creek drainage resulted in the spills, and alteration of drainage Cultivation also poses a threat to the degradation and loss of saline wetlands patterns. largest remaining population of Salt by draining and lowering the water table Increased vehicle traffic due to road Creek tiger beetles, the Little Salt and diluting salt concentrations with improvements can increase the amount Creek—Arbor Lake population. fresh water, which led to vegetative of contaminated runoff flowing into Cultivation can increase sediment encroachment (Wingfield et al. 1992).

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In 1992, the largest population of Salt B. Overutilization for Commercial, is susceptible to diseases that could Creek tiger beetles, the Little Salt Recreational, Scientific, or Educational threaten its survival. However, the Salt Creek—Arbor Lake population, was Purposes Creek tiger beetle is affected by several significantly impacted by a stream Tiger beetles (genus Cicindela) are predacious and parasitic species that are channelization and bank stabilization one of the most sought-after genera of commonly observed in its habitat. project along Little Salt Creek (Spomer beetles by amateur collectors because of Spiders (Salticidae and Lycosidae), and Higley 1993; Farrar 2003). In an their unique metallic colors and predatory bugs (Reduviidae), beetles attempt to control erosion and bank patterns as well as their fascinating (Histeridae and Cantharidae), birds, sloughing and to prepare for the habits (NGPC 1999; 66 FR 50340). shrews (Soricidae), raccoons (Procyon widening of North 27th Street, a portion Interest in the genus Cicindela is lotor), lizards (Lacertilia sp.), toads of Little Salt Creek was straightened, reflected in a journal entitled (Bufonidae), robber flies (Asilidae), ants and its banks were armored with rock ‘‘Cicindela,’’ which has been published (Formicidae), wasps (Chalcididae and riprap. These actions destroyed about quarterly since 1969 and is exclusively Tiphiidae), bee flies (Bombylidae), and one-half of the remaining prime habitat devoted to the genus. Even limited dragonflies (Anisoptera sp.) all prey on for the Salt Creek tiger beetle along collection pressure on small the Salt Creek tiger beetle (Lavigne Little Salt Creek (Spomer and Higley populations of taxa such as the Salt 1972; Nagano 1982; Pearson 1988). A 1993; Farrar 2003). Based on surveys Creek tiger beetle can have adverse robber fly was observed preying on an conducted in 1991 and 1992, the Little impacts on a species’ viability because adult Salt Creek tiger beetle it had Salt Creek—Arbor Lake population of the loss of genetic variability it causes caught in flight and pulled to the exhibited a corresponding 55 percent (Spomer and Higley 1993). At present, ground (Spomer and Higley 2001). Ants decline (from 171 to 94) after the project we do not know if the collection of can overwhelm, kill, and devour larvae adult Salt Creek tiger beetles is a factor was completed (Spomer and Higley confined to their burrows (Spomer and contributing to its decline. 1993). In this circumstance, stabilization Higley 2001). Larger species of tiger Regarding potential scientific of about half of the bank resulted in the beetles (Cicindela circumpicta) have overutilization, the Service and NGPC been known to prey on smaller-sized loss of over half of the population of are funding studies on the Salt Creek Salt Creek tiger beetles. It is unclear tiger beetles (C. togata), especially those tiger beetle to improve our species that occupy similar habitats why the population at the site was able understanding of its biology and habitat (Hoback et al. 2001). Both C. togata and to recover following such an event, but requirements with the ultimate goal of C. circumpicta are found in the same it is possible that favorable weather supporting captive rearing and habitats as the Salt Creek tiger beetle conditions, suitable habitat within the transplantation. We believe this tiger beetle’s travel distance, or other research will ultimately contribute to and both may prey upon it (Spomer and unknown factors could have contributed the conservation of the subspecies. Higley 2001; Spomer et al. 2004a). to their survival. Transplanting larvae of other species of Parasitic wasps can sting the larvae, resulting in paralysis, and then lay eggs The lower portion of Little Salt Creek, rare tiger beetles has been conducted elsewhere by removing larvae from one which hatch and feed on the larvae where the two largest remaining (Spomer and Higley 2001). Bee flies populations of Salt Creek tiger beetles site and introducing them to another unoccupied site. For example, hover over larval burrows and flip eggs exist, has become deeply incised by into the entrances (S. Spomer, pers. human activities, resulting in the successful larvae translocations of the federally listed Northeastern beach tiger comm. 2002). After the eggs hatch, the creation of vertical stream banks beetle have been conducted at sites bee fly maggots attach themselves to the measuring approximately 6 to 9 m (20 where populations were previously Salt Creek tiger beetle larvae and feed to 30 ft) in height (J. Cochnar and R. extirpated (Knisley et al. 2005). A on them. Harms, USFWS, pers. obs. 2002). Bank preliminary recovery plan draft for the Predators and parasites play sloughing is covering saline stream subspecies (Spomer et al. 2004) suggests edges and reducing the amount of important roles in the natural dynamics that Salt Creek tiger beetles will need to of populations and ecosystems. suitable habitat for the two populations. be introduced into suitable, unoccupied The Little Salt Creek—Arbor Lake and Predators and parasitoids of the Salt habitats through the rearing and Creek tiger beetle evolved in Little Salt Creek—Roper populations of translocation of captive larvae. Captive- conjunction with the beetle and do not the Salt Creek tiger beetle may have rearing of Salt Creek tiger beetle larvae normally pose a severe threat to the been able to survive because they exist for introduction into suitable saline survival of the population. However, in areas where there is still a habitats is underway through Service- predation and parasitism of adults and functioning saline wetland and saline and NGPC-funded studies at UNL larvae may account for significant stream complex. However, if these two (Allgeier et al. 2003). A small number of mortality of the Salt Creek tiger beetle areas evolve into stable, vegetated, adult Salt Creek tiger beetles were because of the small size of the incised stream systems and the wetland captured and removed from their remaining populations, limited habitats continue to receive freshwater habitat, and subsequently placed in a distribution, reduced habitat, and close runoff from surrounding urban laboratory setting. The removal of a proximity of the two largest populations development, the existing suitable small number of adults will slightly (L. Higley, pers. comm. 2002). Hoback et habitats for the Salt Creek tiger beetle reduce a population in the short term, al. (2001) indicated that reduced saline will likely be altered and no longer but if successful, such a program will preserve and enhance the genetic habitats, coupled with a limited prey support these two populations. This source, may result in greater predation could almost certainly result in the variability of the subspecies, as well as facilitate its recovery. by Cicindela circumpicta and C. togata extinction of the Salt Creek tiger beetle, on the Salt Creek tiger beetle. At this given that the remaining third C. Disease or Predation time, it is unknown whether predation population is so small. No information is available to and parasitism on the Salt Creek tiger determine if the Salt Creek tiger beetle beetle are a threat to its survival.

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D. Inadequacy of Existing Regulatory 1 saline wetlands as mitigation the high bank of the stream in Mechanisms measures for permitted activities have anticipation that, once the streambank provided minimal habitat benefits to the erodes far enough landward, the riprap Overview Salt Creek tiger beetle to date. will fall in on its own and stabilize the Federal, State, and local laws, A Supreme Court ruling in 2001 bank. In such cases, the COE cannot regulations, and policies have not been limited Federal authority under the exercise regulatory jurisdiction over sufficient to prevent past and ongoing CWA to regulate certain isolated windrowed riprap until there is a losses of Salt Creek tiger beetle habitat. wetlands (Solid Waste Agency of discharge below the ordinary high water Existing regulatory mechanisms that Northern Cook County vs. U.S. Army mark, and even then, only if that provide minimal, but not adequate, Corps of Engineers, 531 U.S. 159) discharge threatens the navigability of a protection for the Salt Creek tiger beetle (SWANCC). The proposed listing rule stream or is prohibited for use as a fill include: federally-implemented (70 FR 5101) discusses the SWANCC material (COE Regulatory Guidance regulatory mechanisms such as the ruling in depth, as well as the Letter MRO 96–11, June 17, 1997). Both NEPA and section 404 of the CWA; consequences thereof for COE and regulated and unregulated bank State-implemented regulatory Environmental Protection Agency (EPA) stabilization activities have occurred on mechanisms such as the Nebraska State jurisdiction over wetlands. We refer the Little Salt Creek and have adversely Water Quality Standards (as required by reader to that rule for additional details. affected Salt Creek tiger beetle habitat. section 401 of the CWA) and NESCA; In Nebraska, the COE does not regulate and local conservation planning efforts any wetland that is determined to be State Implemented Regulatory such as the Comprehensive Plan, the isolated unless it can be proven that Mechanisms Little Salt Creek Valley Planning there is some kind of commercial use Under section 401 of the CWA, the Cooperative Agreement co-sponsored by (e.g., a public boat ramp on the wetland) NDEQ issues a Water Quality TNC, NGPC, and SWCP (a local aside from migratory bird use or a Certification whenever a Department of conservation plan). surface connection (COE 2001). the Army permit is authorized by the Stream channelization and certain COE; this Certification is also necessary Federally Implemented Regulatory bank stabilization projects are regulated to meet Nebraska State Water Quality Mechanisms by the COE under section 404 of the Standards. The NE Water Quality While NEPA and CWA are important CWA, but this regulatory mechanism Standards recognize all wetlands in the environmental protection statutes, has proven ineffective in preventing State as ‘‘waters of the State,’’ including neither provides specific protection to impacts to stream habitats used by the isolated wetlands that are no longer non-listed species. The NEPA is a Salt Creek tiger beetle. As described under Federal jurisdiction as a result of procedural statute that requires full above in Factor A, about half of the SWANCC vs. U.S. Army Corps of consideration and disclosure of the remaining habitat for the largest Engineers. However, the State does not environmental impacts of a project. It population of the Salt Creek tiger beetle have a permit program for authorizing does not require protection of a was lost along Little Salt Creek after the activities in wetlands, and NDEQ can particular species or its habitat, nor does completion of a COE-permitted stream only take action (i.e., an enforcement it require the selection of a particular bank stabilization and channelization action) after an impact to a non-Federal course of action. project in 1992 (Spomer and Higley isolated wetland occurs. After-the-fact Under section 404 of the CWA, the 1993; Farrar 2003). enforcement actions under the Water COE does not regulate wetland drainage Many of the saline wetlands that Quality Standards are unlikely to offset activities that do not result in a provide habitat for the Salt Creek tiger adverse impacts that have already discharge of dredged or fill material into beetle are associated with the floodplain occurred to the Salt Creek tiger beetle in waters of the United States nor sediment of adjacent streams. Stream isolated saline wetlands, given their inputs originating from upland sources. channelization and bank stabilization highly specific habitat requirements and The effects of these activities could have projects conducted for flood control low population numbers. Finally, the substantial adverse impacts on saline have caused channel incision and have Water Quality Standards are not aligned wetlands and associated streams used necessitated additional bank with quantitative biological criteria, and by larval and adult forms of the Salt stabilization projects further thus projects may still have negative Creek tiger beetle. Additionally, the downstream or in feeder tributaries. impacts on saline wetlands of eastern COE Regulatory Program in Nebraska Since the Salt Creek tiger beetle was NE and associated streams that provide has limited regulatory authority over the listed as endangered by the State of habitats needed to meet life types of road and urban development Nebraska in 2000, the COE has requirements of both larval and adult projects that have already destroyed or considered the beetle in its evaluation of Salt Creek tiger beetles. further degraded over 90 percent of the permits (M. Rabbe, COE, pers. comm. On March 17, 2000, the Salt Creek historical saline wetlands of eastern 2001). However, the COE evaluation has tiger beetle was listed as endangered Nebraska (Murphy 1992), which have resulted in only limited benefits to the under the NESCA by NGPC. The led to a corresponding loss of Salt Creek Salt Creek tiger beetle because NESCA: (1) Prohibits the ‘‘take’’ of State tiger beetle habitat, including barren salt construction activities in upland areas listed species (‘‘take’’ is defined as a flats, saline stream edges, and seeps. surrounding aquatic habitats are not means to harass, harm, pursue, hunt, The proposed rule (70 FR 5101; within the COE’s jurisdiction. Many shoot, wound, kill, trap, capture, collect, February 1, 2005) provided two projects qualify for a general permit (i.e., or attempt to engage in such conduct); examples of permitted activities and Nationwide Permit 13 (bank (2) authorizes State agencies to carry out prescribed mitigation authorized by the stabilization)) that does not need to be programs for the conservation of State COE under section 404 of the CWA, and individually reviewed by the COE. listed endangered and threatened the reader is referred to that rule for a Further, some landowners attempt to species; (3) requires State agencies to detailed description of the examples. avoid obtaining a Department of the take such actions necessary to ensure Our conclusion line is that, aside from Army permit and the associated Federal that actions authorized, funded, or the Arbor Lake area acquisition, the oversight, for example, by creating carried out by the State do not preservation and restoration of Category windrow piles of concrete riprap along jeopardize the continued existence of

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such State listed endangered or protect saline wetlands using existing tiger beetles are located within a 1.2-km threatened species or result in the Federal, State, and local laws. Another (0.7-mi) radius of the Interstate 80 and destruction or modification of habitat strategy is to use existing grant programs North 27th Street, and, therefore are in for such species; and (4) requires all to acquire saline wetlands either an area of ongoing residential and State agencies to consult with NGPC to through simple fee title or conservation commercial development. Based on the ensure that jeopardy is avoided. easements. To date, the SWCP has best available scientific information, we However, NESCA does not authorize acquired five parcels of land containing believe that further degradation or loss NGPC to review Federal actions or to saline wetlands. Due to the high value of suitable habitats and the resulting consult with Federal agencies for of land, and shortage of Federal, State, increased distance between areas of projects or activities that may affect and local government agency funds, suitable habitat will further reduce the State listed species such as the Salt protection of Salt Creek tiger beetle likelihood that Salt Creek tiger beetles Creek tiger beetle. In addition, although habitat through acquisition is expected will be able to move and recolonize NESCA allows NGPC to identify critical to be limited. other sites and establish additional habitat for State-listed species, populations. If so, as existing occupied regulations that would allow such E. Other Natural or Manmade Factors habitats become smaller and smaller, designations to be implemented were Affecting Its Continued Existence existing populations of Salt Creek tiger never developed. Overview beetles may be extirpated. Local Conservation Planning Local extinctions caused by habitat Floods and Droughts In a joint effort to plan long-term deterioration and stochastic weather The extirpation of a local population development projects for Lincoln and events are not uncommon for species of Salt Creek tiger beetles has already Lancaster County, city and county and subspecies, such as the Salt Creek occurred due to a natural flood event. officials approved a Comprehensive tiger beetle, whose life histories are Although tiger beetle larvae are able to Plan. The approved Comprehensive characterized by short generation time, withstand submersion for prolonged Plan proposes that development not small body size, high rates of population periods (possibly up to 2 weeks) occur along the portions of Little Salt increase, and high habitat specificity (Hoback et al. 1998; L. Higley, pers. Creek north of Lincoln’s city limits. As (Murphy et al. 1990; Ruggerio et al. comm. 2001), flooding results in soil part of the Comprehensive Plan, Lincoln 1994). The remaining populations of the erosion of larval burrow sites and has placed a 150-m (500-ft) wide buffer Salt Creek tiger beetle are highly washes larvae downstream. Flooding around Little Salt Creek and its adjacent susceptible to extinction as a result of also results in the deposition of saline wetlands until a determination naturally-occurring, stochastic, sediments from adjacent agricultural can be made through research on environmental, or demographic events lands into larval and adult habitats. In whether the buffer is needed to protect because they occur at only three known the mid-1980s, floodwaters carried large the Salt Creek tiger beetle. The buffer locations, in small numbers, and in loads of sediment from adjacent does not apply for development projects relatively close proximity to each other. cropfields and deposited then into the within the City limits, including areas Such events could include: (1) Heavy saline wetlands associated with Rock around the Little Salt Creek—Arbor rain storms and severe flooding that Creek in northern Lancaster and Lake and Little Salt Creek—Roper drown and scour larvae away, dilute southern Saunders Counties (Spomer et populations. The Comprehensive Plan is salinity, and result in sediment al. 2004a; M. Fritz, pers. comm. 2003). a helpful guide for the growth and deposition; (2) accidental spillage of This flood covered barren salt flats used development of Lincoln and Lancaster hazardous materials due to nearby, up- by Salt Creek tiger beetles in the Jack County but it provides no legal slope traffic accidents; or (3) runoff Sinn WMA population. The mid-1980s assurances and is not an enforceable containing a recently applied flood resulted in the loss of Salt Creek regulatory mechanism. insecticide flowing into habitats tiger beetle larvae because of the depth In 2000, TNC and NGPC organized the occupied by the Salt Creek tiger beetle of sediment deposited. The larvae were Little Salt Creek Valley Planning along Little Salt Creek. Murphy et al. unable to remove the 8 to 10 cm (3 to Cooperative agreement. The purpose of (1990) and Gilpin (1987) recognized a 4 in.) of sediment deposited onto their this cooperative agreement was to direct association between increased burrows because they extract excess soil organize stakeholders, mainly private extinction rates of a species and reduced material out and away from their landowners, in the Little Salt Creek habitat areas, distances between burrow, not inward (Spomer et al. watershed into a coalition to preserve populations, and small population size. 2004a). The mid-1980s flood also and protect eastern Nebraska saline The negative effects of habitat changed the vegetation of the area. After wetlands and associated watershed fragmentation and loss on the total the flood, a thick herbaceous overstory streams in the northern third of number of individuals within a composed of reed canarygrass and Lancaster County. After 18 months of population include the Allee effect (the cattail infested the area, making it unsuccessful negotiations, this positive relationship between unsuitable for the Salt Creek tiger beetle. conservation effort was dissolved. population density and the In 1993, back-to-back 50-year rain In 2003, Lincoln, Lancaster County, reproduction and survival of events inundated the entire area, the Lower Platte South Natural individuals) (Allee 1931, Keitt et al. including the saline wetlands and Resources District, TNC, and NGPC 2001), the loss of genetic diversity (Lacy habitat of the Jack Sinn WMA formed the SWCP. The SWCP (2003) 1987), and increased mortality from population (USDA 1996). Surveys of the developed a plan that focuses on the catastrophic events (Murphy et al. Jack Sinn WMA population have found conservation of saline wetlands in 1990). only two individuals since 1993, and no Lancaster and Saunders Counties. Available information, including 2005 individuals since 1998. As previously Although not specifically focused on the Salt Creek tiger beetle population mentioned, the Jack Sinn WMA protection and management of the Salt surveys and a review of U.S. Geological population is considered to be Creek tiger beetle, the SWCP’s efforts Survey topographic maps showing the extirpated. will benefit the species. One of the location of populations, indicates that Extirpation of either the Little Salt strategies of the SWCP’s plan is to 89 percent of the remaining Salt Creek Creek—Arbor Lake population or Little

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Salt Creek—Roper population, or both, recommended for use in corn, soybean, nocturnal insects elsewhere (Pyle et al. is highly likely to occur if the Little Salt and sorghum production in Nebraska 1981). Adult tiger beetles of many Creek drainage experiences an event include carbofuran, methomyl, species are attracted to lights at night, similar to the 1993 flood in the Rock thiodicarb, trimethacarb, and carbaryl resulting in unnecessary and Creek drainage. Flooding, even after a (Wright et al. 1994; Hunt 2003). In a detrimental nocturnal dispersal normal rainfall, is likely to occur at a field experiment in England designed to (Pearson 1988). Larochelle (1977) higher frequency and volume due to the study the effects of pesticides on documented 122 species and subspecies increased storm water runoff from nontarget invertebrates, researchers of Cicindelidae found at night light developments and channelization of found that chlorpyrifos and fonofos sources. Tiger beetle species attracted to tributaries. (both organophosphate pesticides) light sources at night included C. togata, Drought also may have impacted prey affected the activity of ground beetles, C. fulgida, and C. circumpicta (Willis populations, leading to higher mortality and this effect seemed the result of 1970). The subspecies, C. n. knausii, the rates of the Salt Creek tiger beetle direct toxicity rather than a depleted closest relative to the Salt Creek tiger (Spomer and Higley 2001; Ratcliffe and prey base (Luff et al. 1990). beetle, also is attracted to artificial light Spomer 2002). Dry conditions result in Organophosphate and pyrethroid sources at night (Willis 1970). Pearson the loss of moist saline seep habitat pesticides are used on corn, soybean, (1988) reported that several specimens used as larval, ovipositing, and foraging and sorghum crops in Nebraska include of C. trifasciata have been collected at habitat by the Salt Creek tiger beetle. chlorpyrifos, malathion, methyl night lights on off-shore oil platforms in Drought also can change the abundance parathion, dimethoate, ethoprop, the Gulf of Mexico. and diversity of prey items used by fonofos, phorate, terbufos, tefluthrin, Allgeier et al. (2003) found that adult and larval Salt Creek tiger beetles tralomethrin, permethrin, esfenvalerate, female Salt Creek tiger beetles oviposit (Allgeier et al. Nebraska, 2002 was the cyfluthrin, zeta-cypermethrin, and at night and that outdoor light sources third driest year on record (115 years) lambda-cyhalothrin (Wright et al. 1994; may reduce reproduction. Fewer eggs (Nebraska’s Climate Assessment and Hunt 2003). may be deposited if artificial light Response Committee 2003), and June Salt Creek tiger beetles also may be sources draw females away from their 2002 was the driest month on record susceptible and exposed to pesticides breeding habitat (Allgeier et al. 2003). (UNL 2003). June is the month when the applied to control mosquitoes, Allgeier et al. (2003) found that Salt Salt Creek tiger beetle is most active. grasshoppers, and pests in residential Creek tiger beetles were attracted to Leon Higley (pers. comm. 2003), an yards and gardens. Nagano (1982) artificial light in the following order of expert on the Salt Creek tiger beetle, reported an entire population of tiger preference: (1) Black light; (2) mercury predicts that if the drought that beetles (Cicindela haemorrhagica and C. vapor; (3) incandescent; (4) fluorescent; Nebraska has experienced over the past pusilla) in Washington State being and (5) sodium vapor. They couple of years continues, the number eradicated by pesticides, while the recommended an 805-m (2,640-ft) or of individuals remaining in the Salt disappearance of the tiger beetle C. (0.8-km (0.5-mi)) buffer zone to protect Creek tiger beetle populations will marginata in New Hampshire was all existing Salt Creek tiger beetle decline due to the lack of prey available believed to be the result of insecticide populations from possible outdoor light to the beetle and its larvae. spraying to control salt marsh attractant sources. mosquitoes (Dunn 1978, as cited by Movement away from habitat to Pesticides Nagano 1982). Insecticides applied to lighted areas, such as areas surrounding Corn, soybean, and sorghum fields lawns and landscaping in residential major transportation routes (e.g., dominate the Little Salt Creek and commercial developments near Interstate 80) and associated developed watershed, and are potential sources of Little Salt Creek have the potential to areas, may increase energy expenditure, pesticide exposure to Salt Creek tiger enter the creek and impact the Salt reduce reproductive success, and beetles and their habitat. Insecticides Creek tiger beetle and its prey base. A ultimately impact the survival of the that enter occupied habitats of the Salt local government has proposed for the Salt Creek tiger beetles in the two largest Creek tiger beetle through runoff have last 2 years to apply pesticide for the beetle populations, the Little Salt the potential to directly impact the tiger control of mosquitoes along Little Salt Creek—Roper and Little Salt Creek— beetle or indirectly impact through Creek where the Little Salt Creek-Roper Arbor Lake populations (Allgeier et al. modification of prey availability. There population exists. To date, given the 2004). Distances between outdoor light have been no studies to evaluate concerns expressed by NGPC, pesticides sources (within commercial and pesticide exposure and adverse effects have not been applied. However, we residential developments) and the Little to Salt Creek tiger beetles. However, also note that some commenters on the Salt Creek—Roper and Little Salt research on ground beetles (Carabidae) proposed rule stated that they rarely use Creek—Arbor Lake populations are less suggests pesticide exposure may place pesticides, especially insecticides. than the 800-m (3,000-ft) buffer the Salt Creek tiger beetle at risk as a Additionally, they referred to the recommended by Allgeier et al. (2003). result of decreased survival and current existence of buffer strips along Electric insect light traps are possibly reproduction. This research was Little Salt Creek that may serve to limit a greater threat to the Salt Creek tiger discussed in detail in the proposed rule any contamination problems from beetle than lights illuminating urban (70 FR 5101; February 1, 2005), and is ground application of pesticides (but streets, houses, parking lots, etc. These summarized briefly here. In one study, this will not limit aerially-applied light traps use ultraviolet light to attract dietary and topical exposure of ground pesticides). flying insects toward an electrified beetles (Harpalus pennsylvanicus) to a metal grid where they are destroyed carbamate insecticide (bediocarb) and a Artificial Lights (Frick and Tallamy 1996). Another type chloro-nicotinyl insecticide Artificial lights along streets and of trap that uses black light, a form of (imidacloprid) resulted in lethal and highways, particularly mercury vapor ultraviolet light, has a sticky paper sublethal effects (Kunkel et al. 2001). lamps, may contribute to population backing where the insects are caught Bendiocarb and imidacloprid are used losses of the Salt Creek tiger beetle and die. Electric insect light traps have to control insects in corn (Extoxnet because such lights have been been used extensively since the mid- 1996). Other carbamate pesticides implicated in population losses of 1900s for research and surveillance in

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disease prevention, and control of tiger beetle species (e.g., Northeastern extinction throughout all of its range indoor and outdoor insects in homes as beach and Puritan tiger beetles). (section 3(6) of the Act) and, therefore, well as in agricultural and industrial As discussed in Factor A of the meets the Act’s definition of operations (Urban and Broce 1999). Summary of Factors Affecting the endangered. Species section of this rule, a number of Frick and Tallamy (1996) found 13,789 Critical Habitat insects that were electrocuted by urban and agricultural development electric insect light traps at 6 sample projects threaten the Salt Creek tiger Critical habitat is defined in section 3 sites. Of these, 6,670 insects (48 percent) beetle with extinction. Ongoing of the Act as—(i) The specific areas were nontarget and nonharmful aquatic residential and commercial within the geographical area occupied insects from nearby rivers and streams, developments may threaten all by a species, at the time it is listed in and 1,868 of these insects (14 percent) remaining populations of the Salt Creek accordance with the Act, on which are were predators and parasites of the tiger beetle with extirpation. These found those physical or biological targeted, harmful insects. Black-light or developments can cause changes to features (I) essential to the conservation ultraviolet based insect traps could hydrologic regimes, resulting in of the species, and (II) that may require become an ever increasing threat as freshwater inflows and sediment runoff, special management considerations or residential and commercial which in turn reduces salinity protection, and (ii) specific areas development continues to encroach concentrations and encourages outside the geographical area occupied upon the two largest populations of Salt vegetation invasion into previously by the species at the time it is listed in Creek tiger beetles. unvegetated saline habitats. Proposed accordance with the provisions of projects, such as road expansions, also section 4 of the Act, upon a Conclusion of Status Evaluation pose threats to the two largest remaining determination by the Secretary of the populations of the Salt Creek tiger Interior that such areas are essential for In making this final rule beetle. the conservation of the species. determination, we carefully assessed the Other immediate threats to the habitat ‘‘Conservation’’ means the use of all best scientific and commercial of the Salt Creek tiger beetle are methods and procedures needed to information available regarding past, sediment erosion from adjacent bring the species to the point at which present, and future threats to the Salt agricultural fields and urban listing under the Act is no longer Creek tiger beetle. The immediate development construction sites; necessary. threats to the Salt Creek tiger beetle are livestock grazing (trampling of larvae Section 4(a)(3) of the Act and associated with the extremely small, burrows); changes in saline stream implementing regulations (50 CFR fluctuating populations, the number of morphology; and drainage of saline 424.12) require that, to the maximum which has declined by 50 percent since wetlands due to the incisement of extent prudent and determinable, the surveys began in 1991, and habitat associated streams. Secretary of the Interior designate degradation, destruction, and As discussed under Factor D, existing critical habitat at the time the species is fragmentation. The Salt Creek tiger regulatory mechanisms have not proven determined to be endangered or beetle is currently restricted to three to be adequate to deter habitat loss and threatened. The Service believes critical populations on approximately 6 ha (15 population reductions of the Salt Creek habitat for the Salt Creek tiger beetle is ac) of not highly degraded barren salt tiger beetle, and this inadequacy serves both prudent and determinable. flats and saline stream edge habitats as a contributing factor to the However, because of the critically contained within the eastern Nebraska subspecies’ endangered status. imperiled status of Salt Creek tiger saline wetlands and associated saline The Salt Creek tiger beetle also is beetle, limited financial and personnel streams (i.e., Little Salt Creek). Eighty- vulnerable to chance environmental or resources available to work on this nine percent of all remaining Salt Creek demographic events (e.g., flood, taxon, and the Service’s belief that tiger beetles are located approximately drought, disease, and pesticides). As listing confers greater protection on a 1.6 km (1 mi) apart, making them discussed in Factor E, extirpation of the species than does critical habitat, we especially susceptible to extirpation Jack Sinn WMA population of Salt have assigned a higher priority to from a single catastrophic event. They Creek tiger beetles occurred after such promptly publishing the final listing also are located within a 1.2-km (0.7-mi) an event. The combination of the close rule for Salt Creek tiger beetle than to radius of the Interstate 80 and North proximity of the two largest proposing and designating critical 27th Street Interchange and the populations, and restricted, specialized, habitat, as allowed pursuant to section associated growth and development that and diminishing aquatic habitats, makes 4(b)(6)(C)(i). Funds have been budgeted is underway. Finally, the 2005 surveys the Salt Creek tiger beetle highly for identification of critical habitat, and found only 153 Salt Creek tiger beetles. susceptible to extinction across its work on a proposed designation is Although observed tiger beetle entire range from any one chance underway. We plan to publish a populations have fluctuated over the environmental event. proposed rule to designate critical period of visual surveys (1991–2005), The fate of the Salt Creek tiger beetle habitat for Salt Creek tiger beetle in the the 2005 results are the third lowest likely depends upon the establishment near future. count since 1991, and the lowest in the of additional populations in suitable past 12 years. Since 2002, the total habitats at other locations through a Available Conservation Measures number of Salt Creek tiger beetles captive rearing program so that random In anticipation of the Service’s listing observed through visual surveys has demographic events or environmental the Salt Creek tiger beetle under the Act, declined by about 80 percent (i.e., from catastrophes are less likely to cause the the NGPC notified us in a letter, dated 777 individuals in 2002 to 153 extinction of the beetle. As the number February 28, 2003, that it was planning individuals in 2005). Despite the annual of Salt Creek tiger beetle populations to develop a Regional Habitat variation in numbers counted, Salt has declined to just three, and these are Conservation Plan (HCP) pursuant to Creek tiger beetle populations are at or subject to numerous immediate, section 10(a)(1)(B) of the Act for the Salt below minimum viable population sizes ongoing, and future threats as described Creek tiger beetle. Letters of support to (i.e., 500 to 1,000 individuals) and above, we have determined that the Salt NGPC from the City of Lincoln, actual population sizes for other listed Creek tiger beetle is in danger of Lancaster County Board of

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Commissioners, Lower Platte South will likely be affected by listing of the violation of section 9 of the Act. The Natural Resources District, Nebraska Salt Creek tiger beetle. The FAA has intent of this policy is to increase public Department of Roads, UNL, and TNC jurisdiction over the Lincoln Municipal awareness of the effect of listing on were included as part of the HCP Airport, an area formerly occupied by proposed and ongoing activities within proposal. The NGPC identified the need the Salt Creek tiger beetle that may still a species’ range, and to assist the public for the Regional HCP to provide long- provide suitable habitat near Capitol in identifying measures needed to term protection of the Salt Creek tiger Beach in northern Lincoln. The NRCS protect the species. For the Salt Creek beetle and its habitats in the eastern and FSA administer numerous programs tiger beetle, activities that we believe are Nebraska saline wetlands and associated under The Farm Security and Rural unlikely to result in a violation of streams and provide regulatory certainty Investment Act of 2004 (2004 Farm section 9, provided these activities are for the citizens of Lancaster and Bill). Although the majority of 2004 carried out in accordance with any Saunders Counties. Farm Bill programs should have existing regulations and permit Section 7(a) of the Act requires beneficial effects for the Salt Creek tiger requirements, include: Federal agencies to evaluate their beetle, certain conservation practices (1) Possession, delivery, or movement, actions with respect to any species that alter the hydrological regime of eastern including interstate transport and is proposed or listed as endangered or Nebraska saline wetlands and associated import into or export from the United threatened and with respect to its stream habitats, and require a States, of dead Salt Creek tiger beetles critical habitat, if designated. determination of potential effects on the that were collected prior to the date of Regulations implementing this Salt Creek tiger beetle. publication of the proposed rule in the interagency cooperation provision of the The Act sets forth a series of general Federal Register (February 1, 2005); Act are codified at 50 CFR part 402. prohibitions and exceptions that apply (2) Any action authorized, funded, or Section 7(a)(4) requires Federal agencies to all endangered wildlife species. The carried out by a Federal agency that may to confer informally with us on any prohibitions make it illegal for any affect the Salt Creek tiger beetle, when action that is likely to jeopardize the person subject to the jurisdiction of the the action is conducted in accordance continued existence of a proposed United States to take, import or export, with the consultation requirements for species or result in destruction or transport in interstate or foreign listed species pursuant to section 7 of adverse modification of proposed commerce in the course of commercial the Act; critical habitat. If a species is activity, or sell or offer for sale in (3) Any action carried out for subsequently listed, section 7(a)(2) of interstate or foreign commerce any scientific research or to enhance the the Act requires Federal agencies to endangered species. Under section 3(19) propagation or survival of the Salt Creek ensure that activities they authorize, of the Act, the term ‘‘take’’ includes tiger beetle that is conducted in fund, or carry out are not likely to harass, harm, pursue, hunt, shoot, accordance with the conditions of a jeopardize the continued existence of wound, kill, trap, capture, collect, or to section 10(a)(1)(A) permit; and such a species or to destroy or adversely attempt to engage in any such conduct. (4) Any incidental take of the Salt modify its critical habitat. If a Federal Pursuant to 50 CFR 17.3, the Service Creek tiger beetle resulting from an action may affect a listed species or its further defines ‘‘harass’’ as actions that otherwise lawful activity conducted in critical habitat, the responsible Federal create the likelihood of injury to listed accordance with the conditions of an agency must enter into formal species to such an extent as to incidental take permit issued under consultation with us. significantly disrupt normal behavior section 10(a)(1)(B) of the Act. Federal agency actions that may affect patterns which include, but are not Activities involving the Salt Creek the Salt Creek tiger beetle and may limited to, breeding, feeding, or tiger beetle (including all of its require consultation with the Service sheltering. In addition, under this metamorphic or life stages) that the include, but are not limited to, those regulation, the Service defines ‘‘harm’’ Service believes likely would be within the jurisdiction of the Service, to include significant habitat considered a violation of section 9 COE, EPA, FHWA, Department of modification or destruction that results include, but are not limited to: Housing and Urban Development in the death or injury to listed species (1) Harassing, harming, pursuing, (HUD), Federal Housing Administration by significantly impairing behavior hunting, shooting, wounding, killing, (FHA), Federal Aviation Administration patterns such as breeding, feeding, or trapping, capturing, or collecting, or (FAA), Natural Resources Conservation sheltering. It also is illegal to possess, attempting any of these activities, of the Service (NRCS), and Farm Service sell, deliver, carry, transport, or ship Salt Creek tiger beetle without a permit, Agency (FSA). any such wildlife that has been taken except in accordance with applicable Federal agencies expected to have illegally. Certain exceptions apply to Federal and State fish and wildlife regulatory involvement with the Salt agents of the Service and State conservation laws and regulations; Creek tiger beetle or its habitat include conservation agencies. Permits may be (2) Possessing, selling, delivering, the COE and EPA, due to their permit issued to carry out otherwise prohibited carrying, transporting, or shipping and enforcement authority under activities involving listed species. Such illegally taken Salt Creek tiger beetles or section 404 of the CWA. In addition, permits are available for scientific any body part thereof; EPA will be involved through purposes pursuant to section 10(a)(1)(A) (3) Interstate and foreign commerce provisions of section 402 of the CWA. of the Act, to enhance the propagation (commerce across State and The FHWA has authority and funding or survival of the Salt Creek tiger beetle, international boundaries) and import/ responsibilities for highway or for incidental take in connection with export (as discussed earlier in this construction projects that could have otherwise lawful activities pursuant to section) without appropriate permits; impacts on habitat both formerly and section 10(a)(1)(B) of the Act. (4) Use of pesticides/herbicides that presently occupied by the Salt Creek As published in the Federal Register results in take of the Salt Creek tiger tiger beetle. HUD and the FHA may on July 1, 1994, (59 FR 34271), it is the beetle; provide grants for urban development, Service’s policy to identify, to the (5) Release of biological control agents in particular the installation of utilities. maximum extent practical at the time a that take any life stage of this taxon; Planned locations of such utility species is listed, those activities that (6) Discharges or dumping of toxic installation and associated development would or would not constitute a chemicals, silts, or other pollutants into,

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or other alteration of the quality of, purposes, to enhance the propagation or References Cited waters supporting Salt Creek tiger survival of the species, and for beetles that results in take of the incidental take in connection with A complete list of references cited in subspecies; and otherwise lawful activities. You may this rule is available upon request from the Field Supervisor, U.S. Fish and (7) Activities (e.g., land leveling/ request copies of the regulations Wildlife Service, Nebraska Ecological clearing; grading; discing; soil regarding listed wildlife from, and Services Field Office (see ADDRESSES). compaction; soil removal; dredging; address questions about prohibitions excavation; deposition of dredged or fill and permits to, the U.S. Fish and Authors material; erosion and deposition of Wildlife Service, Ecological Services, sediment/soil; stream alteration or Endangered Species Permits, P.O. Box The primary authors of this final rule channelization; stream bank 25486, Denver Federal Center, Denver, are John Cochnar and Robert Harms, stabilization; alteration of stream or Colorado 80225–0486 (telephone (303) U.S. Fish and Wildlife Service, wetland hydrology and chemistry; 236–7400; facsimile (303) 236–0027). Nebraska Ecological Services Field Office (see ADDRESSES). grazing or trampling by livestock; National Environmental Policy Act minerals extraction or processing; List of Subjects in 50 CFR Part 17 residential, commercial, or industrial We have determined that an developments; utilities development; environmental assessment and Endangered and threatened species, off-road vehicle use; road construction; environmental impact statement, as Exports, Imports, Reporting and or water development and defined under the authority of NEPA, recordkeeping requirements, impoundment) that take eggs, larvae, need not be prepared in connection Transportation. with regulations adopted pursuant to sub-adult, or adult Salt Creek tiger section 4(a) of the Act, as amended. We Regulation Promulgation beetles, or modify Salt Creek tiger beetle published a notice outlining our reasons habitat in such a way that take Salt I for this determination in the Federal Accordingly, we amend part 17, Creek tiger beetles by adversely affecting Register on October 25, 1983 (48 FR subchapter B of chapter I, title 50 of the their essential behavioral patterns 49244). Code of Federal Regulations, as follows: including breeding, foraging, sheltering, or other life functions. Otherwise lawful Paperwork Reduction Act PART 17—[AMENDED] activities that incidentally take Salt This rule does not contain any new I 1. The authority citation for part 17 Creek tiger beetles, but have no Federal collections of information other than continues to read as follows: nexus, will require a permit under those already approved under the section 10(a)(1)(B) of the Act. Paperwork Reduction Act (44 U.S.C. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Questions regarding whether specific 3501 et seq.) and assigned Office of 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– activities will constitute a violation of Management and Budget clearance 625, 100 Stat. 3500; unless otherwise noted. section 9 should be directed to the Field number 1018–0094, which expires on I 2. In § 17.11(h), add an entry for Supervisor of the Nebraska Ecological September 30, 2007. An agency may not ‘‘Beetle, Salt Creek tiger,’’ in Services Field Office (see ADDRESSES). conduct or sponsor, and a person is not alphabetical order under INSECTS, to We may issue permits to carry out required to respond to, a collection of the List of Endangered and Threatened otherwise prohibited activities information unless it displays a Wildlife: involving endangered wildlife species currently valid control number. For under certain circumstances. additional information concerning § 17.11 Endangered and threatened Regulations governing permits are at 50 permit and associated requirements for wildlife. CFR 17.22. For endangered species, you endangered species, see 50 CFR 17.21 * * * * * may obtain permits for scientific and 17.22. (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* INSECTS

******* Beetle, Salt Creek Cicindela nevadica U.S.A. (NE) ...... Entire ...... E 754 NA NA tiger lincolniana.

*******

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Dated: September 29, 2005. program during each calendar quarter. for additional public comment or a Matt Hogan, According to the regulations at delayed effectiveness because of the Acting Director, U.S. Fish and Wildlife § 648.85(b)(6)(iv)(H), once 1,000 Regular need to take immediate action as soon Service. B DAS have been used during the as the data are available indicating that [FR Doc. 05–20049 Filed 10–5–05; 8:45 am] calendar quarter, the use of Regular B 1,000 Regular B DAS have been used. BILLING CODE 4310–55–P DAS shall be prohibited for the duration Information regarding Regulare B DAS of the current quarter. The Regular B use in this program only recently DAS Pilot Program expires, and the indicated an increased rate of DAS use DEPARTMENT OF COMMERCE current calendar quarter ends, on in this program. As a result, there has October 31, 2005. been insufficient time to provide prior National Oceanic and Atmospheric Based upon available information, the Administration Regional Administrator has determined notice and opportunity for public that 1,000 Regular B DAS will be used comment on this action. If 50 CFR Part 648 by October 6, 2005. Therefore, effective implementation of this action is October 6, 2005, the use of Regular B delayed, NMFS would be prevented [Docket No. 040804229–4300–02; I.D. from carrying out its function of 100305A] DAS under the Regular B DAS Pilot Program is prohibited through the end preventing the quarterly limit on Magnuson-Stevens Fishery of the current calendar quarter and the Regular B DAS use from being Conservation and Management Act expiration of the Regular B DAS Pilot exceeded, thereby increasing the harvest Provisions; Fisheries of the Program on October 31, 2005. A NE of stocks of concern under the Regular Northeastern United States; Northeast multispecies DAS vessel that has B DAS Pilot Program. Opportunity for Multispecies Fishery; Closure of the already declared its intent to fish in the public comment would allow the use of Regular B Days-at-Sea Pilot Program Georges Bank Cod Stock Area under the Regular B DAS and, therefore, the Regular B DAS Pilot Program through harvest of stocks of concern to continue AGENCY: National Marine Fisheries VMS, departed on a trip, and crossed during this quarter, resulting in the Service (NMFS), National Oceanic and the VMS demarcation line prior to the likelihood of exceeding the quarterly Atmospheric Administration (NOAA), effective date of this action (i.e. October DAS limit and the incidental catch Commerce. 6, 2005) must either complete its trip TACs for stocks of concern. Exceeding ACTION: Temporary rule; closure. under a Regular B DAS by crossing the the quarterly TAC for these species vessel monitoring system (VMS) increases the chance that such NMFS announces that 1,000 Regular demarcation line on its return to port, or additional mortality could further delay Days-at-Sea (DAS) have been used flip to fishing under a Category A DAS, under the Regular B DAS Pilot Program. before 0000 hours local time on October the rebuilding of these overfished Therefore, all Northeast (NE) 6, 2005. This is the final quarter of the stocks. Exceeding the mortality targets multispecies DAS vessels are prohibited Regular B DAS Program; therefore, NE for these species could potentially lead from using Regular B DAS under the multispecies vessels are no longer to further effort restrictions in the future Regular B DAS Pilot Program through authorized to fish under the B DAS Pilot and, therefore, further negative the end of the current calendar quarter Program unless otherwise notified by economic impacts to the fishing on October 31, 2005. The intended the Regional Administrator. industry. Thus, any delay caused by effect of this action is to prevent the further opportunity for public comment Classification quarterly DAS use limit of 1,000 Regular would be impracticable and contrary to B DAS for this program from being This action is required by 50 CFR part the public interest. For the above exceeded. 648 and is exempt from review under reasons, under 5 U.S.C. 553(b)(3), Executive Order 12866. DATES: Effective 0001 hr local time, proposed rulemaking is waived because Pursuant to 5 U.S.C. 553(b)(B), the it would be impracticable and contrary October 6, 2005, through October 31, Assistant Administrator finds good to the public interest. 2005. (See requirements under cause to waive prior notice and SUPPLEMENTARY INFORMATION for opportunity for public comment for this For the same reasons, the Assistant additional details). action because any delay of this action Administrator finds good cause, FOR FURTHER INFORMATION CONTACT: would be impracticable and contrary to pursuant to 5 U.S.C. 553(d)(3), to waive Mark Grant, Fishery Management the public interest. The regulations at the entire 30–day delayed effectiveness Specialist, phone (978) 281–9145, fax § 648.85(b)(6)(iv)(H) require the period for this action. The effect of this (978) 281–9135. Regional Administrator to prohibit the waiver is mitigated to some degree SUPPLEMENTARY INFORMATION: use of Regular B DAS under the Regular because the public is able to obtain Regulations governing the Regular B B DAS Pilot Program for the remainder information from the NMFS Northeast DAS Pilot Program are found at 50 CFR of the current quarter once 1,000 Regional Office website at http:// 648.85(b)(6). These regulations Regular B DAS have been used under www.nero.noaa.gov which provides authorize vessels issued a valid limited the Regular B DAS Pilot Program. catch information indicating the need access NE multispecies DAS permit and Accordingly, the action being taken by for this action. allocated Regular B DAS, including this temporary rule is non-discretionary. vessels also issued a limited access This action prohibits the use of Regular Authority: 16 U.S.C. 1801 et seq. monkfish Category C or D permit, to use B DAS for the remainder of the current Dated: October 3, 2005. a NE multispecies Regular B DAS quarter (i.e., through October 31, 2005) Alan D. Risenhoover, throughout the NE multispecies to prevent the quarterly DAS use limit Acting Director, Office of Sustainable regulated mesh areas outside of of 1,000 Regular B DAS for this program Fisheries, National Marine Fisheries Service. approved Special Access Programs from being exceeded. The possibility of [FR Doc. 05–20132 Filed 10–3–05; 3:18 pm] under the conditions of the Regular B this closure was contemplated by DAS Pilot Program. A total of 1,000 Framework 40-A and commented on by BILLING CODE 3510–22–S Regular B DAS may be used in this the public. It is not practicable to allow

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