Vol. 76 Thursday, No. 184 September 22, 2011

Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Casey’s June and Designation of Critical Habitat; Final Rule

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DEPARTMENT OF THE INTERIOR family () (Smith and Evans in the proposed rule) (Hawks pers. 2005). Despite past references to comm., 2010; see below discussion). Fish and Wildlife Service potentially new species or subspecies of Hawks (pers. comm. 2010, 2011a and Dinacoma (Blaisdell 1930, pp. 173–174; b) located two occupied Casey’s June 50 CFR Part 17 La Rue pers. comm., 2006), Casey’s June beetle sites outside of proposed critical habitat, in natural remnants of the Palm [Docket No. FWS–R8–ES–2009–0019; MO beetle, Dinacoma caseyi Blaisdell, and 92210–0–0009] D. marginata (Casey) Casey remain the Canyon Wash channel surrounded by only described taxonomic entities in the golf course landscaping just east of the RIN 1018–AV91 (Evans and Smith 2009, p. 44). easternmost section of wash proposed as critical habitat, in the vicinity of Golf Endangered and Threatened Wildlife For additional information on the , biology, and ecology of Club Drive. These wash habitat and Plants; Determination of remnants total 17 acres (ac) (7 hectares Endangered Status for Casey’s June Casey’s June beetle, and the history of this rulemaking, refer to the August 8, (ha)), and are downstream from the Beetle and Designation of Critical confluence of Palm Canyon Wash and Habitat 2006, 90-day finding (71 FR 44960), the July 5, 2007, 12-month finding (72 FR Tahquiz Creek, where additional AGENCY: Fish and Wildlife Service, 36635), the July 9, 2009, proposed streamflow occurs following a storm Interior. listing and critical habitat rule (74 FR event. Although it is possible these ACTION: Final rule. 32857), and the March 31, 2010, habitat remnants could contribute to document making available the draft species recovery, their ability to support SUMMARY: We, the U.S. Fish and economic analysis (DEA) (75 FR 16046) occupancy long-term is questionable Wildlife Service (Service), determine published in the Federal Register. because these areas are subject to endangered status for Casey’s June These documents are available on the scouring flood events, which would beetle (Dinacoma caseyi) under the Internet at http://www.fws.gov/Carlsbad. remove available habitat and displace Endangered Species Act of 1973, as and most likely extirpate any amended (Act). We are also designating New Species Information individuals occupying the sites. In approximately 587 acres (237 hectares) In our proposed listing and critical addition, the frequency of scouring of land as critical habitat for the species habitat rule (74 FR 32857; July 9, 2009), flood events likely to extirpate resident in Riverside County, California. we requested comments on any new individuals is expected to increase with climate change (see E. Other Natural or DATES: This rule becomes effective on species information. One peer reviewer Manmade Factors Affecting the October 24, 2011. suggested we clarify the fact that female Continued Existence of the Species ADDRESSES: The final rule, final Casey’s June are known to be section below). Therefore, at this time, economic analysis, and map of critical flightless, because our wording in one we have determined that these wash habitat are available on the Internet at sentence was not clear in that regard. habitat remnants do not meet the http://www.regulations.gov and http:// Information submitted by peer definition of critical habitat. However, www.fws.gov/carlsbad/. Comments and reviewers and an expert in scarab we will continue to gather information materials received, as well as supporting beetles (Hawks, University of California, regarding the potential for this wash documentation used in preparing this Riverside, pers. comm. 2010) also habitat area to contribute to species final rule, will be available for public disagreed with the appropriateness of recovery. inspection, by appointment, during primary constituent element (PCE) 2. Hawks’ comprehensive survey (pers. normal business hours, at the U.S. Fish We have made the appropriate changes comm. 2010) included potential Casey’s and Wildlife Service, Carlsbad Fish and to this final listing and critical habitat June beetle habitat remnants identified Wildlife Office, 6010 Hidden Valley rule. throughout the City of Palm Springs, Road, Suite 101, Carlsbad, CA 92011; New Species Occupancy and Habitat including many vacant lots within the telephone 760–431–9440; facsimile Information developed areas of the cities of Palm 760–431–5901. Springs and Cathedral City Hawks (pers. FOR FURTHER INFORMATION CONTACT: Jim Multiple commenters and one peer comm. 2010) documented numerous Bartel, Field Supervisor, U.S. Fish and reviewer further suggested that the female emergence holes and observed Wildlife Service, Carlsbad Fish and species may occupy areas outside many female beetles during his surveys, Wildlife Office, 6010 Hidden Valley proposed critical habitat. To determine confirming occupancy of Coachella fine Road, Suite 101, Carlsbad, CA 92011 if areas outside of the proposed critical sand series (CpA), and Myoma fine (telephone 760–431–9440; facsimile habitat designation harbor the Casey’s sands (MaB) soil types. Hawks (pers. 760–431–5901). If you use a June beetle, we funded a survey of likely comm. 2010) stated he never found telecommunications device for the deaf habitat within the species’ known emergence holes in the Carsitas cobbly (TDD), call the Federal Information historical range and beyond. While the sand series (ChC) soil type. However, he Relay Service (FIRS) at 800–877–8339. survey focused on areas north of Palm believes ChC soil may be occupied if it SUPPLEMENTARY INFORMATION: Springs (i.e., immediately south of the is an inclusion surrounded by Carsitas Chino Cone) and south to Palm Desert, gravelly sand series (CdC) soil, and if it Background we have yet to receive a final report is not part of the landscape defining the It is our intent to discuss in this final from the surveyor (i.e., David Hawks). edge of the floodplain, such as along rule only those topics directly relevant Nonetheless, preliminary survey South Palm Canyon Drive to the west. to the listing and designation of critical information received to date primarily Based on this information from Hawks habitat for Casey’s June beetle under the supports our determination of the (pers. comm. 2010) we determined that Act (16 U.S.C. 1531 et seq.). The genus species’ current range and population ChC soils not 100 percent surrounded Dinacoma and approximately 90 other distribution, and modification of PCEs by CdC and Riverwash (RA) soils do not genera constitute the New World to include disturbed soils and meet the definition of critical habitat members of the subfamily predominantly, but not exclusively, (see Summary of Changes From the (i.e., May beetles, June native vegetation (i.e., not the two 2009 Proposed Critical Habitat Rule, beetles, and chafers) of the scarab beetle specific ‘‘intact’’ vegetation types listed Physical or Biological Features, and

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Criteria Used To Identify Critical Canyons Preserve. Although Cornet remnant of the Palm Canyon Wash Habitat sections below). (2010, p. 14) did not trap any male channel discussed above). As a result of Hawks’ (pers. comm. 2010) positive Casey’s June beetles or observe any this new information, we have made survey results generally supported our females, Hawks’ (pers. comm. 2011a) appropriate changes to this final rule. estimation of Casey’s June beetle observations do not support Cornett’s population distribution within proposed New Information on Casey’s June Beetle conclusion that uplands contiguous Diet and Movement critical habitat, with the exception of with the wash south of Acanto Drive are newly discovered occupied wash not occupied. Traps on the eastern edge We found one new study on the diet habitat remnants described above that of Cornett’s ‘‘Area 3’’ (Cornett 2010, p. of another endangered June beetle, and represent a slight northeastern 10), where he sampled in April, were some new information on June beetle distribution extension, and the lack of within approximately 660 ft (200 m) of movement distances. Hill and O’Malley occupancy in some southern areas that locations where Hawks reported Casey’s (2009, p. 1) found that the frass pellets were determined not to meet the June beetle occupancy in May. Cornett (pelletized fecal matter) of larvae of the definition of critical habitat and did not survey for females or emergence Mount Hermon June beetle (Polyphylla therefore were not designated (see holes in 2010. Conversely, the results of barbata) contained a variety of plant Summary of Changes From the 2009 Hawks’ (pers. comm. 2011b) and species and fungi material Proposed Critical Habitat Rule, Physical Cornett’s (2010, pp. 10 and 14) surveys demonstrating that they are not or Biological Features, and Criteria Used in western areas adjacent to South Palm specialist host plant feeders but are To Identify Critical Habitat sections Canyon Drive were all negative. microhabitat specialists. Hawks’ (pers. below). In a subsequent communication, Furthermore, Hawks (pers. comm. comm. 2010) observations at Smoke Hawks (pers. comm. 2011a) described 2011b) reported unsuitable habitat Tree Ranch indicate Casey’s June beetle his survey results from the southern conditions for this western area, similar may be similar when he stated that, ‘‘We population distribution area: ‘‘Adults of to those described by Hovore (1997a, p. did not observe females at Smoke Tree both sexes of [Casey’s June beetle] as 3) and evident on current aerial [Ranch], but many hundreds of well as emergence holes were observed imagery. Therefore, we believe habitat emergence holes associated with native in the wash and in [adjacent] floodplain in this southwestern portion associated vegetation [and nonnative vegetation areas west of the wash between Bogert with South Palm Canyon Drive is not such as] irrigated tamarisk, fan palms, Trail and Acanto Drive. Adults of both occupied and not likely occupiable. oleander, and olive. We still are not sure what plants of any sort mean to [Casey’s sexes as well as emergence holes were However, as noted in the preceding June beetle] grubs. * * * ’’ These results observed in the wash and in floodplain paragraph, Hawks’ (pers. comm. 2011a support our hypothesis that Casey’s areas west of the wash from Acanto and and b) new information does indicate June beetles do not require particular south for a few hundred meters. South occupancy in the southernmost mapped species of host plants for feeding. of this area, [Casey’s June beetle] contiguous CdC and RA soil areas. emergence holes were observed in late However, native plant species likely are June 2010 (after the adult emergence New habitat information resulted in important habitat components in other period) in both the wash and the changes to our habitat area estimates. ways not fully understood at this time, floodplain habitat adjacent to the wash Hawks’ (pers. comm. 2010) discovery of because native plant species are an as far south as the fence and almost to 17 ac (7 ha) of occupied Casey’s June integral component of the ecosystem in the small dam and this is as far south beetle habitat outside of proposed which Casey’s June beetle evolved. We as we surveyed. Emergence holes were critical habitat in Palm Canyon Wash incorporated this information into the less common towards the southern increased our estimates of extant and Primary Constituent Elements for extent of this area, and, especially in the historic occupied habitat. However, Casey’s June Beetle section below. wash, they were not apparent in the based on the currently available The observation of a male Casey’s close vicinity of the dam (within about information, we have determined that June beetle at a street light in a suburban [328 feet (ft) (100 meters (m))]). The this newly discovered occupied habitat neighborhood approximately 750 ft (230 wash [close to the dam] is narrow and does not meet the definition of critical m) from the nearest suitable habitat much more disturbed (apparently by habitat (see above discussion). Multiple (Hovore 2003, p. 6; Google Earth turbulent water flow), gravelly, and tribal commenters further suggested the historical imagery 1996 and 2002) rocky in this area, and is perhaps species may no longer occupy areas indicates that movement of males unsuitable as [Casey’s June beetle] within the southern portion of the among occupied areas occurs over at habitat.’’ This new information confirms proposed critical habitat unit, and that least that distance, and it is likely that occupancy of the southernmost wash these habitat areas were no longer potential movement is much farther. and upland designated critical habitat suitable for Casey’s June beetle The maximum male dispersal distance areas where beetles had not previously occupancy (see Comments 5 and 8 recorded for male Mount Hermon June been reported (as described in Barrows below in the Summary of Comments beetles, a related species that also has 1998, p. 1), and increases the highest and Recommendations section). Survey flightless females, is 923 ft (281 m) elevation for a Casey’s June beetle information from 2010 supports this (Arnold, Entomological Consulting observation (southernmost wash area) to hypothesis for areas in the southwestern Services, Ltd., pers. comm. 2011). approximately 580 ft (177 m). portion of the proposed critical habitat Arnold (pers. comm. 2011) noted this New survey information shed light on unit associated with South Palm Canyon datum was from a mark-release- the occupancy and suitability status of Drive (see above discussion). The recapture study limited to his study site, lands proposed for critical habitat determination that the southwestern and therefore it is ‘‘entirely possible’’ designation at the southern extreme of portion of the proposed critical habitat adult male June beetles are capable of the population distribution. Light trap unit associated with South Palm Canyon making longer distance movements. surveys of southern portions of the Drive is no longer occupied or contains This information supports the species’ population distribution were suitable habitat decreased the total area conclusion articulated in our Criteria conducted by Jim Cornett (2010, pp. 10– estimate of remaining suitable habitat Used To Identify Critical Habitat section 11) in upland habitat, from South Palm (despite the addition of the two newly below that all lands meeting the Canyon Drive south into Indian discovered occupied sites in a natural definition of critical habitat are likely

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occupied at the population level and fall June beetle is adapted to specialized Development within the distribution of a single habitat and soil types found in the Palm We analyzed suburban development population. Please see Summary of Canyon Wash area of Palm Springs, within southern Palm Springs from Comments and Recommendations California. We do not know the exact 2003 to 2007 to determine the habitat section below for further discussion of historical population footprint of impacts of completed and pending comments and information received. Casey’s June beetle due to the generality projects as cited in the petition to list Previous Federal Actions and paucity of location descriptions Casey’s June beetle (Wright et al. 2004, from early collection records (see In our July 5, 2007, 12-month finding pp. 8–9) and referenced in the July 5, discussion in the 90-day finding (71 FR (72 FR 36635), we determined that 2007, 12-month finding (72 FR 36635). 44962; August 8, 2006)). However, listing Casey’s June beetle as an We were unable to identify all projects endangered species was warranted but museum specimen records indicate the cited in the petition, as the petitioners precluded. Because of the lack of historical range can be described as the did not provide specific geographic funding for the large number of eastern foothills of the San Jacinto descriptions, and the extent of area of candidate species we were unable to Mountains from the City of Palm proposed development projects cited propose and finalize the listing for Springs south to the community of did not exactly match calculations in Casey’s June beetle at that time. In Indian Wells. This historical range, our most recent analysis. However, Fiscal Year 2007, we had more than 120 while far greater than the current known based on site visits and digital aerial species with a listing priority number population distribution, is nonetheless photographs, we identified at least (LPN) of 2, based on our September 21, relatively restricted compared to most seven projects that removed or impacted 1983, guidance for assigning an LPN for species. occupied and likely occupied habitat each candidate species (48 FR 43098). within the distribution described above We used soils data correlated with in the 5 years between 2003 and 2007. Although funding to work on a occupancy data to estimate the proposed listing determination was not Habitat disturbance activities such as historical suitable habitat distribution of development can result in direct available at the time of the 12-month Casey’s June beetle. Our review of the finding, we subsequently received mortality of larvae and adults. soil and occupancy data showed that The Monte Sereno project north of funding for development of proposed over 97 percent of habitat likely to have and final listing with critical habitat Bogart Trail adjacent to Palm Canyon been included in Casey’s June beetle rules. On July 9, 2009 (74 FR 32857), we Wash (tribal reservation lands) impacted historical population distributions has published in the Federal Register a approximately 39 ac (16 ha) of occupied been converted to development or proposal to list Casey’s June beetle as habitat in 2005. Expected mitigation rendered unsuitable by the impacts of endangered and to designate critical measures described by Dudek and habitat. In this final rule, we determine adjacent development. Of the Associates (2001, p. 24) for impacts to endangered status for Casey’s June approximately 605 ac (245 ha) of Casey’s June beetle habitat were an in- beetle and designate critical habitat. remaining extant suitable habitat, lieu payment of $600 per ac ($240 per approximately 70 percent remains ha) (total of $21,960) to the City of Palm Summary of Factors Affecting the relatively unprotected by existing Springs or a habitat conservation entity Species regulations (see D. The Inadequacy of designated by the City for loss of Section 4 of the Act and its Existing Regulatory Mechanisms section approximately 37 ac (15 ha) of ‘‘creosote implementing regulations (50 CFR part below). Approximately 50 percent of the bush scrub habitat’’ (no specified use of 424) set forth the procedures for adding unprotected habitat areas are tribal these funds), and re-creation of 9 ac (4 species to Federal Lists of Endangered reservation lands and 30 percent are in ha) of lost ‘‘desert wash scrub habitat’’ and Threatened Wildlife and Plants. A private ownership. The remaining (no specified cost). To our knowledge, species may be determined to be approximately 20 percent is owned by no appropriate habitat has yet been endangered or threatened due to one or local entities (City of Palm Springs and conserved or restored for Casey’s June more of the five factors described in County Flood Control) for roads, flood beetle to offset the Monte Sereno project section 4(a)(1) of the Act: (A) The control, and water facilities. Casey’s impacts. present or threatened destruction, June beetle habitat on tribal reservation In 2006, the City of Palm Springs modification, or curtailment of its land consists of approximately 11 ac (4 issued a mitigated negative declaration habitat or range; (B) overutilization for ha) in tribal trust, and 152 ac (62 ha) in for Smoke Tree Ranch Cottages (City of commercial, recreational, scientific, or fee-title and allotted lands. The majority Palm Springs 2006, p. 2) (‘‘Casitas’’ educational purposes; (C) disease or of tribal reservation lands are at risk of development cited in the 90-day finding predation; (D) the inadequacy of development, as are any undeveloped (71 FR 44960; August 8, 2006)), finding existing regulatory mechanisms; or (E) portions of the relatively unprotected ‘‘no significant impact’’ to Casey’s June other natural or manmade factors lands owned by local governments and beetle. However, at least 7 ac (3 ha) of occupied habitat were developed affecting its continued existence. Listing private landowners. actions may be warranted based on any (Cornett 2004, pp. 18–27). The Smoke of the above threat factors, singly, or in The population of the City of Palm Tree Commons shopping center combination. Each of these factors is Springs increased from 42,805 to 47,251 impacted approximately 18 ac (7 ha) of discussed below. between 2000 and 2008, an increase of habitat for Casey’s June beetle. The 10 percent (CDF 2008, Table 1, Table E– project’s environmental impact report A. The Present or Threatened 1). The City is predicted to grow by 25 (EIR) stated that the City of Palm Destruction, Modification, or percent between 2000 and 2020 (SCAG Springs was responsible for enforcing Curtailment of the Species’ Habitat or 2004, Table 2004GF). The current and monitoring Casey’s June beetle Range growth rate has increased development mitigation measures prior to issuing a Casey’s June beetle is part of a genus pressure on properties zoned for grading permit to the developer, of beetles that has naturally restricted residential and commercial use, uses including recording a conservation ranges (LaRue, University of California, which would encroach upon Casey’s easement and developing a management Riverside, pers. comm. 2006). Casey’s June beetle habitat. plan for Casey’s June beetle on

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conserved habitat (Pacific Municipal approximate 25 percent reduction in adjacent to the Eagle Canyon project Consultants 2005, p. 9). A conservation contiguous occupied habitat from 770 ac area (Osborne 2008a, p. 3, Cornett 2010 easement was established; however, a (312 ha) in 1991 to 576 ac (233 ha) in p. 10 and 14; Hawks pers. comm. 2011b) management plan was not drafted prior 2006. Based on new biological surveys where occupancy was previously to issuance of the grading permit, and and information provided to us since documented (Hovore 1995, pp. 4–5) monitoring and management activities 2006, we now know an area larger than were negative. for Casey’s June beetle are not assured 770 ac (312 ha) was occupied by Casey’s Extant habitat estimations include (Ewing, City of Palm Springs, pers. June beetle in 1991. With this new wash habitat where Casey’s June beetle comm. 2007). information and 2008 digital aerial may not be able to maintain occupancy The other four identified projects that photographs, we determined that there following severe flood events (Hovore removed or impacted occupied and was approximately 1,018 ac (412 ha) of 2003, p.11; Cornett 2004, p. 14). Of the likely occupied habitat are: (1) The 2-ac occupied habitat in 1991. Therefore, our total 794 ac (321 ha) of estimated (1-ha) Desert Water Agency wells and new analysis showed that Casey’s June remaining habitat in 2008, only 523 ac pipeline project in the Smoke Tree beetle has experienced an (212 ha) was upland habitat. Upland Ranch development; (2) the 34-ac (14- approximately 22 percent reduction in habitat refers to any upland terrace area ha) Alta project north of Acanto Drive occupied habitat from 1,018 ac (412 ha) that is outside of the wash and does not and west of Palm Canyon Wash on tribal in 1991 to 794 ac (314 ha) in 2008. Our occur on Riverwash (RA) soils. reservation lands; (3) the 24-ac (10-ha) updated calculations accounted for According to data from the Coachella Estancias subdivision north of Acanto these additional acres and revealed that Valley General Plan (Riverside County Drive; and (4) the 3-ac (1-ha) Palm habitat was lost at a rate of 1.6 percent 2005), all remaining upland habitat on Canyon project at South Palm Canyon per year from 1991 to 1996, at a rate of tribal land north of Acanto Drive is Drive and Murray Canyon Drive. 0.6 percent per year from 1996 to 2003, projected to be developed at a density These seven projects resulted in the at a rate of 3.8 percent per year from of two homes per ac (0.5 per ha) by the loss of, or impacts to, approximately 126 2003 to 2005, and at a rate of 0.7 percent year 2020, even though some parcels ac (51 ha) of occupied and likely per year from 2005 to 2008 (dates based designated as parks and recreation in occupied Casey’s June beetle habitat on available photographs). Although the 2020 General Plan (code GP2020 = from 2003 to 2008. An additional 5 ac habitat loss since 2005 has slowed ‘‘1145’’) have already been developed (2 ha) of Casey’s June beetle habitat has (likely due to the economic downturn), with three homes per ac (7.5 per ha). been impacted by small projects (for after our 2008 analysis was completed Undeveloped habitat on tribal example, single home lots and pipeline (post-12 month finding; 72 FR 36635, reservation land south of Acanto Drive development). Hovore (2003, p. 4) July 5, 2007) we discovered has the same initial land use hypothesized that the destruction and approximately 5 ac (2 ha) of habitat designation as adjacent land north of isolation of occupied habitat caused by where two adjacent development pads Acanto Drive (LU93 = ‘‘3100’’) the Monte Sereno and Alta projects in were cleared on the Agua Caliente Band (Riverside County 2005, pp. 94–120) in 2003 ‘‘* * * overall may reduce the of Cahuilla Indian’s reservation south of the East Bogart Trail area, except that it known range and extant population of Acanto Drive, removing the PCEs from is outside the city limit of Palm Springs [Casey’s June beetle] by about one the majority of the parcel (per available (code GP2020 = ‘‘58’’). Code GP2020 = third.’’ Streit (2009, pp. 12–13) noted satellite imagery). The loss of this ‘‘58’’ signifies tribal land or open space that although Hovore was always in the General Plan; lands with this graded area is of particular concern conscientious and reported any Casey’s code have been developed at a density because it comprises approximately June beetle observation, not all as high as 3 homes per ac (more than 7 one-fourth of a formerly contiguous biologists do so, and in at least one case homes per ha). Land use projections occupied upland habitat area adjacent to a biologist apparently omitted Casey’s (Riverside County 2005) indicate that an area of the wash. June beetle observations from their more than 48 percent of the environmental impact report for a Since publication in the Federal approximately 523 ac (212 ha) of upland proposed golf course project in the early Register of the July 5, 2007, 12-month Casey’s June beetle habitat that we 1990s. Streit (2009, pp. 12–13) did not finding (72 FR 36635), the City of Palm estimated to be extant in 2008 could be identify the exact location he Springs completed the California impacted by development. referenced, although his description that Environmental Quality Act (CEQA) Further indicating that development it is found in ‘‘the vicinity of the mouth environmental review process for the in Casey’s June beetle habitat is likely, of Palm Canyon, adjacent to Palm 80- to 100-ac (32 to 40 ha) Eagle Canyon the Director of Planning Services for the Springs, Riverside County, California,’’ residential development project planned City of Palm Springs stated in a and approximate construction dates of on tribal reservation lands (Davis, Agua communication to economists writing golf course projects based on digital Caliente Band of Cahuilla Indians, pers. the DEA (Ewing pers. comm. 2009) that aerial photography indicate the comm. 2007; Park, Agua Caliente Band ‘‘* * * much of the [proposed critical referenced project is the current Indian of Cahuilla Indians, pers. comm. 2007). habitat] is within the urban boundaries Canyons Golf Resort, located between The project is in the area containing of the city and along a major Smoke Tree Ranch and the Monte CdC soils west of South Palm Canyon thoroughfare (and former state Sereno project north of Bogart Trail and Drive near Bogart Trail and Acanto highway). These lands are of significant adjacent to Palm Canyon Wash (tribal Drive (tentative tract number 30047) economic value to the community and reservation lands). (City of Palm Springs 2008, p. 14). We have already been the subject of We conducted an analysis for the 12- believe this area is not likely to be entitlement applications, processing, month finding (72 FR 36635) that used occupied by Casey’s June beetle or and approval.’’ available digital aerial photographs occupiable in the future based on Development is the greatest threat to taken at various intervals from 1991 to historical and recent disturbances habitat in upland CdC soils that are 2005 (Anderson and Love 2007, pp. 1– (Hovore 1997a, p. 3; Google Earth believed to support Casey’s June beetle; 2) and 2006 field surveys (Anderson imagery 2011) (see New Species however, development threats are not 2006, pp. 1–36), which determined that Information section above), and because limited to upland terrace habitat. For Casey’s June beetle experienced an recent surveys conducted within and example, entire sections of Palm Canyon

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Wash east of occupied habitat near Gene rest at the top of the burrows (Cornett Hovore (2003, p. 3) indicated that Autry Trail have been converted to golf 2004, p. 15). Any activities that cause population movement would be ‘‘slow course landscaping (Anderson and Love direct adult mortality, compact or and indirect,’’ and suggested the 2007, p. 3). LaRue (pers. comm. 2006) disturb soils when adult beetles are population structure for Casey’s June emphasized the magnitude of active, or affect soils to a depth where beetle in any given area could be development threats to Dinacoma spp. immature stages or resting adults are described as ‘‘clusters of individuals population survival: ‘‘Most Dinacoma found may affect the species’ around areas of repeated female [spp.] have experienced range reduction persistence in those areas or dispersal to emergence.’’ This would, in Hovore’s because of unprecedented habitat adjacent areas. Waste dumping at (2003, p. 4) assessment, make the destruction and modification for habitat edges, as discovered through species ‘‘susceptible to extirpation recreational, residential and urban review of digital aerial photography of resulting from land use changes that development resulting in serious proposed critical habitat areas and would remove or alter surface features’’ distributional fragmentation throughout described in the Summary of Comments that isolate colonies into non- [their] former already naturally limited and Recommendations section (see contiguous habitat fragments. Although ranges. Consequently, several Comment 12) below, or frequent use for fragmentation of habitat occupied by populations [of the genus Dinacoma] horseback riding by local riding clubs females within a population still allows have been extirpated, especially those (as described by Hawks pers. comm. mixing of genes by males visiting that once existed in Los Angeles County 2011b) can also cause direct mortality of multiple habitat fragments (habitat is (for example, Glendale, Eaton Canyon).’’ adult females and may have detrimental not fragmented with regard to male Therefore, habitat modification for effects on habitat. Therefore, land movement), it would preclude recreational, residential, and urban disturbance activities likely pose a recolonization of an area if all flightless development reduces an already limited threat to the species’ survival; however, females were eliminated from that range for Casey’s June beetle and poses the magnitude of impacts is unknown. fragment. Fragmentation of suitable a substantial threat to this species’’ Habitat Fragmentation habitat into smaller patches increases survival, both now and in the the risk of colony loss and decreases the foreseeable future. Casey’s June beetle habitat in Palm probability of the species’ survival. Springs has been increasingly Soil Disturbance fragmented by development in recent Current Conservation Measures In addition to the threat of habitat years (see above discussion regarding Indian Canyons Master Plan loss, soil disturbance activities may development). Continued fragmentation degrade habitat quality and can cause of already limited, remnant habitat We reviewed the Indian Canyons direct Casey’s June beetle mortality (also compromises the ability of various Master Plan (Master Plan; ACBCI 2007) see E. Other Natural or Manmade species to disperse and establish new, or and the zoning designations in it to Factors Affecting the Continued augment declining, populations determine what type of protective Existence of the Species below). (Collinge 2000, pp. 2211–2226; measures it provides Casey’s June beetle Analysis of 2008 aerial photography in Freemark 2002, pp. 58–83; Driscoll and and its habitat. Upon review of the Palm Canyon Wash indicates numerous Weir 2005, pp. 182–194) and can isolate Master Plan we noted that the planning land-disturbance activities affecting segments of a population (Picket and area encompasses all Casey’s June beetle occupied wash habitat managed by the White 1986, pp. 189–192). Elimination habitat south of Acanto Drive (including Riverside County Flood Control and of dispersal areas and isolation of some trust, fee, and allotted lands). The Water Conservation District (Riverside population segments increase chances majority of this habitat falls within County FCWCD). In the vicinity of the of extirpation by stochastic events allotted lands owned by tribal members State Route 111 bridge and Araby Drive, (Hanski et al. 1995, pp. 21–28; Collinge (ACBCI 2007, p. 17). According to there are road maintenance and flood 2000, pp. 2211–2226). This process, as acquisition priorities articulated in the control activities, as well as unregulated it applies to Casey’s June beetle, is Master Plan, some parcels identified as off-road vehicle (ORV) disturbance evident in the development history of Casey’s June beetle habitat (south of the (based on examination of Google Earth the City of Palm Springs and the east-west aligned portion of South Palm imagery, both current and historical). distribution of Casey’s June beetle Canyon Drive) represent the highest Cornett (2004, p. 12) noted similar ORV populations (Cornett 2004, pp. 11, 14). priority for acquisition because they impacts during Casey’s June beetle Casey’s June beetle is especially contain valuable cultural, natural, and surveys on a nearby site adjacent to impacted by smaller-scale habitat scenic resources, and have the highest Whitewater Wash and the Palm Springs fragmentation because females are potential for future development plans Airport. ORV use impacts desert soils flightless and unable to move between that are incompatible with resource and associated biota by increasing fragmented patches (Hovore 1995, p. 7). protection goals (ACBCI 2007 pp. 27 erosion (Snyder et al. 1976, pp. 29–30; Although male beetles can move and 29). Allotted lands identified as Rowlands 1980, p. 169), reducing both between habitat patches, thereby Casey’s June beetle habitat within Palm plant and vertebrate diversity (Bury et maintaining genetic mixing on a Canyon Wash between Acanto Drive al. 1977, Table 4, Figure 6; Rowlands population scale, fragmented patches and the east-west aligned portion of 1980, pp. 63–74; Lathrop 1983, pp. 153– that no longer support any female South Palm Canyon Drive fall within 166; Cornett 2004, p. 15), and changing Casey’s June beetles may be attractive to the Master Plan Low Density Residential soil density through compaction, which male beetles and act as population (2 single family dwellings per acre (0.4 may also influence soil water retention sinks. The risk of local extinction is ha)) land use category (ACBCI 2007 pp. capacity (Adams et al. 1982, pp. 167– widely noted to increase as the fraction 35 and 37). In summary, the Master Plan 175; Lathrop and Rowlands 1983, pp. of occupied habitat patches, occupied provides some protection of some 144–145; Webb 1983, pp. 51–79). patch area, and density of occupied Casey’s June beetle habitat on tribal Indirect evidence suggests that land patches decrease (Forman and Godron, land, but does not assure protection. disturbance impacts the species’ 1986, pp. 87–91; Hanski 1991, pp. 17– The Agua Caliente Band of Cahuilla burrows and larvae that occur in the soil 38; Hanski et al. 1995, pp. 21–28; Hokit Indians prepared and submitted a draft and the flightless females when they and Branch 2003, pp. 1060–1068). habitat conservation plan (HCP) to the

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Service, which has undergone public Coachella Valley MSHCP does not threatened destruction, modification, review in accordance with the National provide specific measures for the and curtailment of Casey’s June beetle Environmental Policy Act (72 FR 58112; protection or conservation of the species habitat are significant. These threats are October 12, 2007). The Tribe informed and its habitat, nor does the incidental currently ongoing and will continue us in an October 28, 2008, letter that take permit authorize take of the into the foreseeable future. they removed Casey’s June beetle from species. We are working with individual B. Overutilization for Commercial, the list of species addressed in the draft permittees within the species’ range to Recreational, Scientific, or Educational Tribal HCP; however, they indicated address the species’ needs in their they will ‘‘continue to informally planned projects. We are engaged in Purposes coordinate with the Service regarding discussions with the City of Palm We are not aware of any information this species where it occurs on the Springs, Riverside County FCWCD, and regarding overutilization of Casey’s June Reservation.’’ The Tribe stated they are the California Department of beetles for commercial, recreational, deferring to the Service to allow ‘‘the Transportation (Caltrans) to avoid, scientific, or educational purposes and Service to take the lead in addressing minimize, and offset impacts to the do not consider collection for these how to effectively conserve and protect species appropriately. However, actions activities to be a threat to the species at this species’’ (ACBCI 2008, p. 1). taking place after the effective date of this time. Although the Tribe has suspended their this final rule would require any take C. Disease or Predation pursuit of a section 10(a) permit (ACBCI associated with their activities be 2010a, p. 1), they are continuing to exempted from the prohibitions of We are not aware of any information implement the draft HCP and will section 9 of the Act through section 7 regarding threats of disease or predation continue to protect and manage natural consultation (where appropriate) or to Casey’s June beetle and do not resources within the Tribe’s jurisdiction permitted under an amendment to the consider disease or predation to be a (ACBCI, 2010a, p. 1; ACBCI 2010b, p. Coachella Valley MSHCP or a separate threat to the species at this time. ES–1). We will continue to work HCP focused on the Casey’s June beetle. D. The Inadequacy of Existing cooperatively with the Tribe on efforts No such amendment or permit is Regulatory Mechanisms to conserve Casey’s June beetle. currently in place. Our analysis indicates that although Existing regulatory mechanisms that some tribal environmental policies do Summary of Factor A could provide some protection for exist (ACBCI 2000; ACBCI 2007) that Within the historical distribution of Casey’s June beetle include: (1) Federal provide some conservation benefit for Casey’s June beetle, we estimate that laws and regulations; (2) State laws and the species and its habitat, they do not over 97 percent of habitat likely to have regulations; and (3) local land use adequately protect Casey’s June beetle been occupied by Casey’s June beetle processes and ordinances (for example, and its habitat. Therefore, we do not has been converted to development or tribal environmental policies). However, believe that existing tribal regulatory rendered unsuitable due to impacts of these regulatory mechanisms are not documents ensure conservation of adjacent development. Loss of occupied preventing continued habitat Casey’s June beetle. The Service will habitat has continued since the early modification and fragmentation. There continue to work with the Tribe to 1990s. Twenty-eight percent (287 ac are no regulatory mechanisms that obtain any other information that (116 ha)) of the 1,018 ac (412 ha) of specifically or indirectly address the illustrates how tribal actions or policies contiguous suitable habitat for Casey’s management or conservation of habitat would help conserve Casey’s June beetle June beetle identified as extant (based for Casey’s June beetle. However, there habitat and protect the species. on 1991 aerial photographs) has been are regulatory mechanisms that could Currently, we do not have information lost to development. From 2003 to 2005, provide incidental benefit to Casey’s documenting how occupied or the loss of occupied Casey’s June beetle June beetle. The following section potentially occupied habitat for Casey’s habitat occurred at a rate of 3.8 percent discusses these mechanisms. per year. Although habitat loss since June beetle is protected from Federal Laws development and other impacts on all 2005 has slowed (likely due to the tribal reservation lands. economic downturn), development and All Federal agencies are required to habitat impact trends are continuing adhere to the National Environmental Coachella Valley Multiple Species (see above discussion of Eagle Canyon Policy Act (NEPA; 42 U.S.C. 4321 et Habitat Conservation Plan (Coachella project approved by the City of Palm seq.) of 1970 for projects they fund, Valley MSHCP) Springs), and we anticipate additional authorize, or carry out. The Council on Some non-Federal lands within the upland habitat for the beetle may be Environmental Quality’s regulations for purported historical range of Casey’s impacted or lost in the foreseeable implementing NEPA (40 CFR parts June beetle are proposed for future. Based on recent information and 1500–1518) state that, in their management under the Coachella Valley calculations, we estimate the amount of environmental impact statements, Multiple Species Habitat Conservation undeveloped habitat currently occupied agencies shall include a discussion on Plan (Coachella Valley MSHCP). The by the species is approximately 605 ac the environmental impacts of the Service issued a single incidental take (245 ha) (including all non-contiguous various project alternatives (including permit (Service file: TE–104604–0 habitat containing any soil types used the proposed action), any adverse (Service 2008)) under section 10(a)(1)(B) by the species). Based on current environmental effects which cannot be of the Act to 19 permittees under the projected development and habitat avoided, and any irreversible or Coachella Valley MSHCP for a period of impacts, the loss of historically irretrievable commitments of resources 75 years on October 1, 2008. Although occupied locations, the limited involved (40 CFR part 1502). NEPA Casey’s June beetle was initially distribution of Casey’s June beetle, itself is a disclosure law that provides considered for coverage under the existing and future habitat an opportunity for the public to submit Coachella Valley MSHCP, the fragmentation, habitat disturbance, and comments on the particular project and 10(a)(1)(B) permit did not include land use changes associated with propose other conservation measures Casey’s June beetle as a covered species. urbanization, we find that the threats that may directly benefit listed species; Because it is not a covered species, the associated with the present and however, it does not require subsequent

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minimization or mitigation measures by to ‘‘reduce the number or restrict the Species’ Habitat or Range section the Federal agency involved. Any such range of an endangered, rare or above). measures are typically voluntary in threatened species’ (CEQA Guideline In a letter to the Carlsbad Fish and nature and are not required by the 15065). As a candidate species for Wildlife Office’s Field Supervisor dated statute. Activities are subject to NEPA Federal listing, Casey’s June beetle is October 10, 2006, the Tribe stated they regardless of ownership if there is a considered rare under CEQA Guideline had ‘‘* * * enacted a Tribal Federal nexus, such as under section 15380. The lead agency can either Environmental Policy Act to, among 404 of the Clean Water Act (33 U.S.C. require mitigation for unavoidable other things, ensure protection of 1251 et seq.) and tribal lands held in significant effects or decide that natural resources and the environment. trust by the Bureau of Indian Affairs. overriding considerations make See Tribal Ordinance No. 28 at I.B., The Clean Water Act (CWA) is the mitigation infeasible (CEQA Guideline (2000).’’ The referenced Tribal primary mechanism in the United States 21002). Although such overrides are Environmental Policy Act (Tribal Act) for surface water quality protection. It rare, the possibility remains that (ACBCI 2000) states that the Agua establishes the basic structure for projects that cause significant Caliente Band of Cahuilla Indians regulating discharges of pollutants into environmental damage, such as taking (Tribe) is the lead for preparing waters of the United States. It employs of endangered species or destruction of environmental review documents, and a variety of regulatory and non- their habitat, will be approved. that tribal policy is to protect the natural regulatory tools to reduce direct water Therefore, protection of listed species environment, including ‘‘all living quality impacts, finance water treatment through CEQA is dependent upon the things.’’ According to the Tribal Act facilities, and manage polluted run-off. discretion of the agency involved. (ACBCI 2000, p. 4), the Tribe will The CWA made it unlawful to discharge Furthermore, because the availability of consult with any Federal, State, and any pollutant from a point source into occupied and suitable Casey’s June local agencies that have special navigable water unless a permit was beetle habitat is extremely limited, expertise with respect to environmental obtained. The EPA’s National Pollutant regulatory protections such as CEQA impacts. In a second letter dated April Discharges Eliminations System permit that do not prohibit mortality or habitat 29, 2010, the Tribe further stated they program controls discharges. The EPA loss, nor require acquisition of available have chosen not to delegate land use determines water quality standards for habitat to mitigate such losses, would authority to a local agent (such as the each State, and the CWA requires States not be sufficient to reduce threats or City of Palm Springs) in the area of the to either adopt this level or determine prevent the species’ extinction. reservation south of Acanto Drive. another with documentation (EPA 2000, The California Endangered Species Instead, the Tribe stated they directly p. 31682). Under section 404, the U.S. Act (CESA) provides protections for regulate land use in this area through Army Corps of Engineers (Corps) many species of plants, , and the Indian Canyons Master Plan and regulates the discharge of fill material some invertebrate species. However, tribal zoning designation. into waters of the United States, which species, such as Casey’s June Several projects implemented on include navigable and isolated waters, beetle, are not afforded protection under tribal reservation lands since the headwaters, and adjacent wetlands (33 CESA. Therefore, this existing enactment of the Tribal Act have U.S.C. 1344). In general, the term regulatory mechanism does not provide impacted Casey’s June beetle habitat. ‘‘wetland’’ refers to areas meeting the for the protection of Casey’s June beetle Casey’s June beetle occupancy of the Corps’ criteria of hydric soils, hydrology or its habitat. Bogert Trail site in the vicinity of South (either sufficient annual flooding or Palm Canyon Drive on tribal land (Duff Existing Tribal Regulatory Mechanisms water on the soil surface), and 1990, pp. 2–3, 4; Hovore 1997b, p. 4; hydrophytic vegetation (plants Based on occurrence of soil types and Barrows and Fisher 2000, p. 1; Hovore specifically adapted for growing in species collection records, historically 2003, p. 4; Cornett 2004, p. 3) has been wetlands). Any action with the potential (pre-European settlement), Casey’s June greatly reduced, if not eliminated, by to impact waters of the United States beetle potentially occupied 5,834 ac development since our receipt of the must be reviewed under the CWA. (2,361 ha) (18 percent) of tribal land. petition to list the Casey’s June beetle in These reviews require consideration of Lands within the Agua Caliente Band of 2004 (see A. The Present or Threatened impacts to water quality and Cahuilla Indians’’ reservation Destruction, Modification, or recommendations for mitigation of encompass 274 ac (111 ha), or Curtailment of the Species’ Habitat or significant impacts. Most wash habitat approximately 45 percent of the Range above). The Alta and Monte suitable for Casey’s June beetle could estimated extant Casey’s June beetle Sereno development projects eliminated meet the definition of waters of the habitat. All post-1996 development of most of the species’ upland habitat United States; thus some impacts to this occupied habitat, with the exception of estimated to have been occupied in sensitive taxon and its habitat within the Smoke Tree Commons and Cottages 2003 outside of Smoke Tree Ranch. the wash could potentially fall under projects, has occurred on Agua Caliente Hovore (2003, p. 4) estimated that Corps’ jurisdiction and be averted. Band of Cahuilla Indians’’ reservation grading for the Alta project near South However, the CWA has not proven land. The remaining undeveloped Palm Canyon Drive and Bogert Trail in sufficient to alleviate threats to Casey’s suitable upland habitat on the Agua May 2003 reduced the known extant June beetle and its habitat to date. Caliente Band of Cahuilla Indians’’ Casey’s June beetle population size by reservation land is relatively flat and ‘‘about one-third.’’ State Laws adjacent to, or surrounded by, recent No Federal, State, or local agencies The California Environmental Quality development (Anderson and Love 2007, that have special expertise with respect Act (CEQA) requires disclosure of pp. 1–3), and some of these lands are to environmental impacts to Casey’s potential environmental impacts approved for development by the City of June beetle were consulted and no resulting from public or private projects Palm Springs and will likely be review documents were prepared by the carried out or authorized by all non- developed (see the discussion of the Tribe prior to the recent development of Federal agencies in California. The Eagle Canyon project under A. The the Alta and Monte Sereno projects in CEQA guidelines require a finding of Present or Threatened Destruction, occupied Casey’s June beetle habitat. significance if a project has the potential Modification, or Curtailment of the Therefore, our conclusion is that the

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Tribal Act does not effectively protect occur more frequently today than they 2050, to as much as a 50 percent the species’’ habitat. The Chief Planning did prior to development. Scouring increase in precipitation as early as and Development Officer for the Tribe events may temporarily eliminate 2030 for California (Giorgi et al. 1994, (Davis, pers. comm. 2007) affirmed that Casey’s June beetles within Palm pp. 375–399; Field et al. 1999, pp. 5– the Tribal Act does not apply to all Canyon Wash (Hovore 2003, p. 9; 10), and increasing intensity of flood tribal reservation lands; for example, the Cornett 2004, p. 14). After scouring or and drought events (Giorgi et al. 1994, currently planned Alturas development long-term inundation events, pp. 375–399; Dessens 1995, pp. 1241– project (see A. The Present or depopulated wash habitats would be 1244). Downscaled average climate Threatened Destruction, Modification, slowly repopulated by females from model predictions for Casey’s June or Curtailment of the Species’ Habitat or neighboring occupied, higher elevation beetle habitat calculated using Climate Range above) is not covered, because it habitat. However, if scouring events Wizard (Maurer et al. 2007; medium A1 is ‘‘fee land.’’ Although State increase in frequency, there may be scenario for 2050) predict an increase in environmental review documents insufficient time for females to emigrate temperature of 5 °F (2.8 °C) and a 5 (CEQA Environmental Impact Reports) from higher elevation refugia between percent increase in annual precipitation. were prepared by private consultants scouring flow events. We do not know Increased temperatures, combined with and reviewed by the City of Palm how far or how fast females can concentration of total annual Springs for the Eagle Creek development emigrate from upland refugia; however, precipitation into more extreme storm project, the Tribe did not participate in we expect that travel across land would events with associated high wind the review or comment with regard to be relatively slow and occur over short speeds should cause soil drying, as a Casey’s June beetle (Davis, pers. comm. distances compared to males that can result of increased evaporation and 2007). Summary of Factor D fly. Should these recolonization events runoff, regardless of an increase in total Existing regulatory mechanisms are fail, Casey’s June beetles may become annual precipitation (Field et al. 1999; not adequate to protect Casey’s June extirpated from Palm Canyon Wash, pp. 9 and 20). Therefore, per Field et al. beetle or its habitat. Occupied habitat which comprises a significant portion of (1999, pp. 9 and 20) and the above continues to be lost to development the known occupied habitat area. We Climate Wizard predictions, drought projects, such as those in the Bogert believe the increased frequency of frequency, soil dryness, and the Trail area, which were constructed scouring events due to indirect effects of frequency of flash flood scouring events without any Casey’s June beetle development adjacent to the Wash poses over saturated winter soils are expected mitigation. Because existing regulatory at least a moderate threat to Casey’s June to increase in the future. Alternating mechanisms do not provide adequate beetle, both now and in the foreseeable drought and flash flood events may protection for this species or its habitat future. exacerbate threats already facing the throughout its range, we believe this species as a result of its small Climate Change presents a significant threat to the population size and threats to its survival of Casey’s June beetle, both Casey’s June beetle is sensitive to habitat. now and in the foreseeable future. changes in climate factors, such as The Application of the NatureServe increased windspeed and temperatures Climate Change Vulnerability Index E. Other Natural or Manmade Factors (that dry alluvial soils and disperse (NatureServe 2010) ranked Casey’s June Affecting the Continued Existence of the female pheromones), and increased beetle as extremely vulnerable Species catastrophic flood events (Noss et al. (abundance and range extent within The Casey’s June beetle population 2001, p. 42; LaRue pers. comm. 2006). geographical area assessed extremely may be impacted by other natural or As discussed above, increased intensity likely to substantially decrease or anthropogenically influenced factors, and frequency of flooding and scouring disappear by 2050) based primarily on such as changing environmental events from habitat modification in climate model predictions, dependence conditions resulting from climate Palm Canyon Wash is of particular on a moisture regime, vulnerability to change, increased intensity and concern for Casey’s June beetle. disturbance regime change, restricted frequency of scouring events in wash However, this increased flooding and mobility, historical reduction of habitat, and indirect effects associated scouring may also result from changes occupied habitat, and its narrow with adjacent development. However, in climatic conditions. The global endemic status (Anderson 2010, p. 1). there are no species-specific, scientific, frequency of heavy precipitation events Therefore, the best available science published models describing or has increased since 1960, consistent indicates ongoing changing predicting the magnitude of these with warming and observed increases of environmental conditions resulting from threats, and this should be the subject atmospheric water vapor, and it is ‘‘very climate change effects pose a significant of future research. likely’’ (90 percent confidence) that threat to Casey’s June beetle, both now heavy precipitation will generally and in the foreseeable future. Stream Channelization become even more frequent over most Past and ongoing development land areas (IPCC 2007, pp. 2 and 8–9). Artificial Light adjacent to Palm Canyon Wash, A review of literature and historic Insect surveys using light traps have channelization of the wash to protect climate data specific to the area of recorded male Casey’s June beetles development, and development of Casey’s June beetle (Anderson 2007, pp. traveling up to 328 ft (100 m) to associated flood-control levees are all 1–6) indicated temperature, artificial light sources (Osborne, likely to increase Casey’s June beetle precipitation, peak stream flow (NWIS Osborne Biological Consulting, pers. mortality during flood events. Urban 2008), and other weather patterns since comm. 2008a). Such artificial light development adjacent to natural creek 1950, are consistent with global patterns sources as black lights or mercury vapor beds or washes concentrates stream flow described and predicted by the IPCC lights may draw males in a line-of-sight by constraining channel width, thereby (2007 p. 2, pp. 8–9, and 15). General radius from existing habitat (Hovore increasing the speed of water flowing Circulation Models predict a 1 to 3 2003, p. 3). As males fly in search of past a given location (Poff et al. 1997, °Fahrenheit (°F) (0.5 to 1.7 °Celsius (°C)) female pheromone plumes (Domek et al. p. 772). Therefore, scouring events that rise in temperature and at least a 25 1990, pp. 271–276), they may become cause species mortality are likely to percent increase in precipitation by distracted by light sources that attract

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them to sites that are out of suitable increase the degree of threat due to slow female dispersal rate make it habitat for this species where they are chance events, such as floods or particularly susceptible to extinction preyed upon, or to local swimming drought, that are beyond the natural from random events such as flood pools, that are also an unnatural source variability of the ecosystem (Lande scouring or isolation through habitat of light even if it is only reflected, where 1993, p. 912). The risk of local fragmentation. they end up in pool skimmers and often extinction is widely noted to increase as As described in detail above, drown. Swimming pools are one the fraction of occupied habitat patches, projections for human population common source for male Casey’s June occupied patch area, and density of growth extend out to 2030 in Palm beetle specimens (Barrows 1998, p. 1; occupied patches decrease (Forman and Springs (SCAG 2004). Such projections Barrows and Fisher 2000, p. 1; Cornett Godron, 1986, pp. 87–91; Hanski 1991, frame our analysis as they help us 2004, p. 5) and may serve as a genetic pp. 17–38; Hanski et al. 1995, pp. 21– understand what factors can reasonably sink for this species. If large numbers of 28; Hokit and Branch 2003, pp. 1060– be anticipated to meaningfully affect the male Casey’s June beetles are lost as a 1068). species’’ future conservation status. We result of these indirect effects of updated our original analysis by Summary of Factor E development, there could be reduced Anderson and Love (2007, pp. 1–2) to genetic diversity in males available for Casey’s June beetle is negatively determine rates of habitat loss in mating. Male beetles located at habitat affected by increased intensity and southern Palm Springs from 1991 to patch edges closer to light sources frequency of catastrophic flood events; 2008. During that time, Casey’s June would be more susceptible to environmental effects resulting from beetle experienced an approximate 22 distraction than those located at the changing climatic patterns; loss of percent reduction in contiguous, center of patches. The loss of large individuals due to foot, vehicle, horse undeveloped habitat from 1,001 ac (405 numbers of these male Casey’s June traffic and other soil disturbing ha) in 1991 to 794 ac (321 ha) in 2008. beetles would diminish the overall activities; and loss of individuals due to Habitat loss was greatest in the 2003 to genetic diversity of the population. We attraction to light sources. We conclude 2005 time period, and impacts have believe that loss of male beetles due to from available information that climate continued to occur. Habitat has been unnatural light sources attracting beetles change is likely to reduce Casey’s June lost at a rate of 1.6 percent per year from into development adjacent to upland beetle population densities by 1991 to 1996, 0.6 percent per year from habitat poses at least a moderate threat increasing scouring events and 1996 to 2003, 3.8 percent per year from to Casey’s June beetle, both now and in decreasing water retention in the soil. 2003 to 2005, and 0.7 percent per year the foreseeable future. Additional development within or from 2005 to 2008. These habitat loss adjacent to Casey’s June beetle habitat estimates do not include the area west Soil Disturbing Activities will likely increase traffic into habitat of South Palm Canyon Drive that we Foot, vehicle, and horse traffic and areas and include external lighting and determined is not likely suitable habitat other soil disturbing activities from swimming pools, all of which may (see New Species Information section adjacent developed areas are likely to result in additional losses and will above and Summary of Changes From cause direct mortality of adults because continue to adversely affect the existing the 2009 Proposed Critical Habitat Rule adult female Casey’s June beetles are population. Therefore, we find that section below). flightless. It is also likely that vehicle other natural or manmade factors in In summary, the most significant traffic could compress or compact soils total pose a significant threat to the threat to Casey’s June beetle, as to a depth deep enough to kill Casey’s continued existence of Casey’s June described in the Factor A discussion, is June beetle larvae. Discing, grading, soil beetle, both now and in the foreseeable loss of its habitat. This species faces removal, and soil filling all have the future. immediate and continuing threats from potential to harm individuals below the development of habitat and habitat Determination soil surface. These activities are a fragmentation and degradation. common occurrence, as evidenced by Section 3 of the Act, defines the term Additionally, a variety of other threat eyewitness accounts (Anderson 2006, ‘‘endangered species’’ to mean any factors (which fall under Factor E) pp. 17, 20, 22; Hawks pers. comm. species which is in danger of extinction continue to negatively affect the species 2011b) and aerial imagery from multiple throughout all or a significant portion of (including changes in environmental years. its range. The term ‘‘threatened species’’ conditions resulting from climate is defined as any species which is likely change impacts, attraction to artificial Small Population Size and Restricted to become an endangered species within light sources, swimming pools, and Range the foreseeable future throughout all or other sources of direct mortality). As stated above, Casey’s June beetle is a significant portion of its range. Furthermore, as described in the Factor part of a genus of beetles that have We carefully assessed the best D discussion, existing regulatory naturally restricted ranges, and it is available scientific and commercial mechanisms provide insufficient adapted to specialized habitat and soil information regarding the past, present, protection of Casey’s June beetle habitat, types within the eastern foothills of the and future threats to Casey’s June beetle. the loss of which is the most significant San Jacinto Mountains from the City of We also consulted with recognized threat to the species. The threats Palm Springs south to the community of Casey’s June beetle experts on the described above for Casey’s June beetle Indian Wells. Casey’s June beetle species’ status and trends. Although occur uniformly across its entire range, occupies only a portion of this area, and quantification of population numbers resulting in a negative impact on the the majority of the occupied area is has not been possible, given the cryptic species’ distribution, abundance, and threatened by development, habitat nature of this species and limited survivability. As discussed in the July 9, fragmentation, or other anthropogenic or historical survey data, this species’ 2009, proposed rule (74 FR 32859), what natural factors. In addition to having a highly restricted geographic range we believe is a single remaining Casey’s restricted range and small population relative to its historical distribution (as June beetle population (fragmented into size, the species also has limited evidenced by documented loss of several areas) may already have reached dispersal capabilities (Hovore 2003, p. occupied habitat; see above discussion), the point where it is not naturally 3). These conditions most likely ongoing habitat impacts and losses, and sustainable.

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Therefore, based on the best available described in the preceding paragraph amendment or permit is currently in scientific and commercial information include, but are not limited to, place. that has identified the species as having management and any other landscape- Critical Habitat Designation for Casey’s an extremely restricted range and altering activities on Federal lands June Beetle uniformly facing ongoing and projected administered by agencies such as the threats, we find that Casey’s June beetle Department of Defense, U.S. Fish and Critical Habitat Background is in danger of extinction throughout all Wildlife Service, Bureau of Land It is our intent to discuss below only of its range. The threats that Casey’s Management, and U.S. Forest Service; those topics directly relevant to the June beetle face are currently occurring, issuance of section 404 Clean Water Act designation of critical habitat for Casey’s and we see evidence that the threats permits by the U.S. Army Corps of June beetle in this section of the final have already negatively impacted the Engineers; leases on Tribal Trust lands rule. species, and that the species is that require Bureau of Indian Affairs Critical habitat is defined in section 3 endangered now. The threats to its approval; construction and management of the Act as: continued existence are not of gas pipeline and power line rights-of- (1) The specific areas within the commencing in the foreseeable future, way by the Federal Energy Regulatory geographical area occupied by a species, which would result in a status Commission; and construction and at the time it is listed in accordance determination of threatened. maintenance of roads or highways by with the Act, on which are found those Consequently, we are listing Casey’s the Federal Highway Administration. physical or biological features June beetle as an endangered species We are engaged in discussions with (a) Essential to the conservation of the under the Act. Caltrans (designated non-Federal species and Available Conservation Measures representative for the Federal Highway (b) Which may require special Administration) to avoid, minimize, and Conservation measures provided to management considerations or offset impacts to Casey’s June beetle as protection; and species listed as endangered or part of projects funded by that agency. threatened under the Act include (2) Specific areas outside the The Act and its implementing recognition, recovery actions, geographical area occupied by a species regulations set forth a series of general requirements for Federal protection, and at the time it is listed, upon a prohibitions and exceptions that apply prohibitions against certain practices. determination that such areas are to all endangered wildlife. The Recognition through listing results in essential for the conservation of the public awareness and conservation by prohibitions, codified at 50 CFR 17.21 species. Federal, State, and local agencies; for endangered wildlife, in part, make it Conservation, as defined under private organizations; and individuals. illegal for any person subject to the section 3 of the Act, means to use and The Act encourages cooperation with jurisdiction of the United States to take the use of all methods and procedures the States and requires that recovery (includes harass, harm, pursue, hunt, that are necessary to bring any actions be carried out for all listed shoot, wound, kill, trap, capture, or endangered or threatened species to the species. The protection measures collect; or to attempt any of these), point at which the measures provided required of Federal agencies and the import, export, ship in interstate under the Act are no longer necessary. prohibitions against certain activities commerce in the course of commercial Such methods and procedures include, are discussed, in part, below. activity, or sell or offer for sale in but are not limited to, all activities Section 7(a) of the Act requires interstate or foreign commerce any associated with scientific resources Federal agencies to evaluate their listed species. It is also illegal to management, such as research, census, actions with respect to any species that possess, sell, deliver, carry, transport, or law enforcement, habitat acquisition is proposed or listed as endangered or ship any such wildlife that has been and maintenance, propagation, live threatened and with respect to its taken illegally. Certain exceptions apply trapping, and transplantation, and, in critical habitat, if any is designated. to agents of the Service and State the extraordinary case where population Regulations implementing this conservation agencies. pressures within a given ecosystem interagency cooperation provision of the We may issue permits to carry out cannot otherwise be relieved, may Act are codified at 50 CFR part 402. otherwise prohibited activities include regulated taking. Section 7(a)(4) of the Act requires involving endangered or threatened Critical habitat receives protection Federal agencies to confer with the wildlife species under certain under section 7 of the Act through the Service on any action that is likely to circumstances. Regulations governing requirement that Federal agencies jeopardize the continued existence of a permits are codified at 50 CFR 17.22 for insure, in consultation with the Service, species proposed for listing or result in endangered species, and at 17.32 for that any action they authorize, fund, or destruction or adverse modification of threatened species. With regard to carry out is not likely to result in the proposed critical habitat. If a species is endangered wildlife a permit must be destruction or adverse modification of subsequently listed, section 7(a)(2) of issued for the following purposes: For critical habitat. The designation of the Act requires Federal agencies to scientific purposes, to enhance the critical habitat does not affect land ensure that activities they authorize, propagation or survival of the species, ownership or establish a refuge, fund, or carry out are not likely to and for incidental take in connection wilderness, reserve, preserve, or other jeopardize the continued existence of with otherwise lawful activities. We are conservation area. Such designation the species or destroy or adversely engaged in discussions with the City of does not allow the government or public modify its critical habitat. If a Federal Palm Springs, Riverside County to access private lands. Such action may affect a listed species or its FCWCD, and Caltrans to avoid, designation does not require critical habitat, the responsible Federal minimize, and offset impacts to the implementation of restoration, recovery, agency must enter into consultation species resulting from activities or enhancement measures by non- with the Service. undertaken by those entities under an Federal landowners. Where a landowner Federal agency actions within the amendment to the Coachella Valley seeks or requests Federal agency species’ habitat that may require MSHCP or a separate HCP focused on funding or authorization for an action conference or consultation or both as the Casey’s June beetle, but no such that may affect a listed species or

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critical habitat, the consultation the Federal Register on July 1, 1994 (59 that we may later determine are requirements of section 7(a)(2) of the FR 34271)), the Information Quality Act necessary for the recovery of the Act would apply, but even in the event (section 515 of the Treasury and General species. For these reasons, a critical of a destruction or adverse modification Government Appropriations Act for habitat designation does not signal that finding, the obligation of the Federal Fiscal Year 2001 (Pub. L. 106–554; H.R. habitat outside the designated area is action agency and the landowner is not 5658)), and our associated Information unimportant or may not be required for to restore or recover the species, but to Quality Guidelines provide criteria, recovery of the species. Areas that are implement reasonable and prudent establish procedures, and provide important to the conservation of the alternatives to avoid destruction or guidance to ensure that our decisions species, both inside and outside the adverse modification of critical habitat. are based on the best scientific data critical habitat designation, will For inclusion in a critical habitat available. They require our biologists, to continue to be subject to: (1) designation, habitat within the the extent consistent with the Act and Conservation actions implemented geographical area occupied by the with the use of the best scientific data under section 7(a)(1) of the Act, (2) species at the time it is listed must available, to use primary and original regulatory protections afforded by the contain the physical or biological sources of information as the basis for requirement in section 7(a)(2) of the Act features that are essential to the recommendations to designate critical for Federal agencies to insure their conservation of a species and which habitat. actions are not likely to jeopardize the may require special management When we are determining which areas continued existence of any endangered considerations or protection. Critical should be designated as critical habitat, or threatened species, and (3) the habitat designations identify, to the our primary source of information is prohibitions of section 9 of the Act if extent known using the best scientific generally the information developed actions occurring in these areas may and commercial data available, those during the listing process for the affect the species. Federally funded or physical or biological features that are species. Additional information sources permitted projects affecting listed essential to the conservation of the may include any potential recovery species outside their designated critical species (such as space, food, cover, and planning for the species, articles in habitat areas may still result in jeopardy protected habitat), focusing in on the peer-reviewed journals, conservation findings in some cases. These principal biological or physical plans developed by States and counties protections and conservation tools will constituent elements (primary for this or similar species, scientific continue to contribute to recovery of constituent elements) within the status surveys and studies, biological this species. Similarly, critical habitat defined area that are essential to the assessments, or other unpublished designations made on the basis of the conservation of the species (such as materials and expert opinion or best available information at the time of roost sites, nesting grounds, seasonal personal knowledge. designation will not control the wetlands, water quality, tide, soil type). Habitat is dynamic, and species may direction and substance of future Primary constituent elements are the move from one area to another over recovery plans, habitat conservation elements of physical or biological time. Climate change will be a particular plans (HCPs), or other species features that are essential to the challenge for biodiversity because the conservation planning efforts if new conservation of the species. interaction of additional stressors information available at the time of Under the Act, we can designate associated with climate change and these planning efforts calls for a critical habitat in areas outside the current stressors may push species different outcome. geographical area occupied by the beyond their ability to survive (Lovejoy species at the time it is listed, upon a 2005, pp. 325–326). The synergistic Physical or Biological Features determination that such areas are implications of climate change and In accordance with section 3(5)(A)(i) essential for the conservation of the habitat fragmentation are the most and 4(b)(1)(A) of the Act and regulations species. According to regulations at threatening facet of climate change for at 50 CFR 424.12, in determining which 50 CFR 424.12, we designate critical biodiversity (Hannah et al. 2005, p. 4). areas within the geographical area habitat in areas outside the geographical Current climate change predictions for occupied by the species at the time of area presently occupied by a species terrestrial areas in the Northern listing to designate as critical habitat, only when a designation limited to its Hemisphere indicate warmer air we consider the physical or biological present range would be inadequate to temperatures, more intense features essential to the conservation of ensure the conservation of the species. precipitation events, and increased the species and which may require When the best available scientific data summer continental drying (Field et al. special management considerations or do not demonstrate that the 1999, pp. 1–3; Hayhoe et al. 2004, p. protection. These include, but are not conservation needs of the species 12422; Cayan et al. 2005, p. 6; limited to: require such additional areas, we will Intergovernmental Panel on Climate (1) Space for individual and not designate critical habitat in areas Change (IPCC) 2007, p. 1181). Climate population growth and for normal outside the geographical area occupied change may lead to increased frequency behavior; by the species. An area currently and duration of severe storms and (2) Food, water, air, light, minerals, or occupied by the species but that was not droughts (McLaughlin et al. 2002, p. other nutritional or physiological occupied at the time of listing may, 6074; Cook et al. 2004, p. 1015; requirements; however, be essential to the Golladay et al. 2004, p. 504). See (3) Cover or shelter; conservation of the species and may be discussion regarding climate change and (4) Sites for breeding, reproduction, included in the critical habitat impacts on Casey’s June beetle and its and rearing (or development) of designation. habitat under E. Other Natural or offspring; and Section 4 of the Act requires that we Manmade Factors Affecting the (5) Habitats that are protected from designate critical habitat on the basis of Continued Existence of the Species disturbance or are representative of the the best scientific and commercial data above. historical, geographical, and ecological available. Further, our Policy on We recognize that critical habitat distributions of a species. Information Standards Under the designated at a particular point in time We derive the specific physical or Endangered Species Act, (published in may not include all of the habitat areas biological features required for Casey’s

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June beetle from studies of the species’ flightless or subterranean beetle species microhabitat specialists. Hawk’s (2010, habitat, ecology, and life history as that lived in disturbed, fragmented p. 2) observations at Smoke Tree Ranch described in the Critical Habitat section habitats were at greater risk of indicate Casey’s June beetle may be of the proposed rule published in the extirpation compared to those in intact, similar, ‘‘We did not observe females at Federal Register on July 9, 2009 (74 FR less-disturbed habitats. See the Food, Smoke Tree [Ranch], but many 32857). Water, Air, Light, Minerals, or Other hundreds of emergence holes associated Nutritional or Physiological with native vegetation, irrigated Space for Individual and Population Requirements section for more specific tamarisk, fan palms, oleander, and olive. Growth and for Normal Behavior information on soil characteristics and We still are not sure what plants of any Casey’s June beetle is associated with nutritional requirements. sort mean to [Casey’s June beetle] grubs native Sonoran (Coloradan) desert In addition to anthropogenic * * *.’’ Therefore, the hypothesis that vegetation located on desert alluvial disturbance, Casey’s June beetle habitat Casey’s June beetles feed on organic fans and bajadas (compound alluvial undergoes natural disturbance. Palm matter and detritus below ground is fans) at the base of the Santa Rosa Canyon Wash experiences intense supported by the best available Mountains in the Coachella Valley, flooding and scouring about once every scientific information. Riverside County, California. Sonoran 10 years (Cornett 2004, p.14), with The Palm Springs area has slightly desert habitat is characterized as turbulence that can excavate and higher precipitation than surrounding scattered assemblages of broad-leaved unearth sand where the species may areas in the eastern Coachella Valley, microphyll shrubs with an open canopy occur (Wright, independent biological due to its proximity to the base of the (Mayer and Laudenslayer 1988, p. 114). consultant, pers. comm. 2003; NWIS San Jacinto and Santa Rosa Mountains The open canopy provides space for 2008). These events are likely to (LaRue pers. comm. 2006). This male beetles to fly in search of females extirpate Casey’s June beetles from precipitation keeps the underlying soil and fulfill normal life-history activities. locations within the wash; however, damp, which is an important Disturbed and altered habitats harboring these areas may subsequently be component for Casey’s June beetle life nonnative species that are dominated by recolonized by beetles from surrounding history because they, like many other native vegetation also support the upland areas or local refugia. It is subterranean scarab beetles, prefer the species (see Summary of Changes From hypothesized that the wash serves as a interface between surface soil and damp the 2009 Proposed Critical Habitat Rule sink area (an area where the rate of subsoil (Hovore 1995, p. 6; LaRue pers. section below). This habitat also immigration exceeds emigration and the comm. 2008). The depth of the damp provides the micro-habitat space population segment is dependent on soil is generally between 4 inches (in) inhabited by Casey’s June beetle. immigration to maintain a nonnegative (10 centimeters (cm)) to 8 in (20 cm) Individual shrubs provide refugia for growth rate) for Casey’s June beetle (Hovore 1995, p. 5) and averages 72 to the underground stage of the beetle’s life (Cornett 2004, p.14), but wash habitat 78 °F (22 to 26 °C) (USDA 1980, p. 11). history, protecting emergence holes may also serve as a source area when This depth coincides with the depth at from anthropogenic disturbance and population densities are high between which larvae are usually found (2 in (5 enhancing survival of individuals. flooding events. If correct, these cm) to 8 in (20 cm)) (LaRue pers. comm. Habitats utilized by Casey’s June concepts indicate the need to conserve 2004). Individual scrub plant beetles experience varying levels and both upland and wash habitat to achieve architecture has developed for types of anthropogenic disturbance. In conservation of the species. maximum capture of precipitation, general, the species uses soil surfaces to channeling water along stems to the Food, Water, Air, Light, Minerals, or burrow and deposit eggs. After beetles central root system. Moisture in the soil Other Nutritional or Physiological emerge, emergence holes are easily layer prevents desiccation of larvae and Requirements detectable beneath shrub canopies eggs and maintains a constant where they are protected from human Vegetation, soil, and climate temperature (LaRue pers. comm. 2008). activity. Many emergence holes do contribute to the nutritional and Additionally, areas with higher soil occur in the open, but are apparently physiological requirements of Casey’s moisture are associated with a higher destroyed or disturbed by ‘‘equestrians, June beetle. It is hypothesized that density of vegetation and vehicles, and other human activities’’ beetle larvae feed on organic matter and microorganisms, such as fungi and (Hovore 2003, p. 3). Therefore, the detritus below ground (Hovore 2003, p. bacteria believed to provide a more habitat where subterranean larvae, and 2; LaRue pers. comm. 2004). diverse food source for beetle larvae females waiting on the surface for Observations of adult Casey’s June (LaRue pers. comm. 2008). mates, are protected from human beetles feeding underground have not The Sonoran desert plant community impacts is clustered around trees and yet occurred (Hovore 1995, p. 2); endemic to the Palm Canyon Wash and shrubs where there is intact crustal soil however, accumulation of leaves around adjacent terraces also serves to maintain (Hovore 2003, p. 3). These individual shrubs contribute to surface litter and habitat consistency. The Carsitas series shrubs are refugia for the underground subsurface detritus. Additionally, soils have a water table located from 2 and reproductive stages of the beetle’s annual plants and grasses growing in to 6 ft (0.6 to 1.9 m) deep. Shrubs are life history, which protect them from association with these desert scrubs also important in water and nutrient cycling anthropogenic disturbance. The contribute to surface litter and likely in desert ecosystems (Sala et al. 1989, emergence holes in undisturbed soil do provide an additional food source such pp. 501–505; McAuliffe 1994, pp. 111– not reflect the entire distribution of the as radiculum (plant rootlets) (Simpson 148). Desert shrubs have deeper root emergence holes (the primary indicator 1968, p. 500; LaRue, pers. comm. 2004). systems that bring water from lower of occupancy) because disturbance Hill and O’Maly (2009, p. 1) found that levels up to higher levels, cycle easily destroys evidence of the hole, but the frass pellets of larvae of another nutrients through the soil, and mediate instead represent the remaining intact endangered June beetle (Mount Hermon diurnal temperature variations. Midday holes observable following a June Beetle) contained a variety of plant temperatures are lower near the center disturbance (Hovore 2003, p. 3; Hawks species and fungi material of desert scrub patches than in areas pers. comm. 2011b). Driscoll and Weir demonstrating that they are not outside the canopy (Weins 1985, pp. (2005, pp. 182–194) reported that specialist host plant feeders but are 174–176). The combination of moisture

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cycling, diurnal temperature variation, ‘‘source’’). Both the upland terraces and of females to disperse over land (which and seasonal climate variation Palm Canyon Wash contain soil types is uncertain but much reduced (Rosenburg 1974, pp. 66–74) may and vegetation conducive to burrowing compared to flight-capable males) is provide beetle larvae with a gradient of and support the nutritional and restricted geographically to a relatively micro-environments to inhabit in the physiological processes essential for the small area. Females appear to emerge subsoil through the year, thereby species. from burrows and remain on the surface allowing them to maintain optimal body nearby and then either re-enter these Sites for Breeding, Reproduction, and temperature and humidity levels. burrows or dig new burrows to lay eggs. Rearing (or Development) of Offspring Therefore, the precipitation within the If an isolated portion of the population That Are Protected From Disturbance Palm Canyon area, and its influence on were extirpated it would be difficult if the local plant community, may be a Casey’s June beetle breeding and not impossible for females to recolonize unique factor required for Casey’s June dispersal mechanisms require specific that area depending on the nature and beetle. habitat important to species’’ extent of isolating factors (de Vries et al. Soils associated with known reproduction. During breeding, adults of 1996, pp. 332–342; Driscoll and Weir occurrences of Casey’s June beetles are the species are most active at dusk. 2005, pp. 192–193) because flightless described by Hovore (2003, p. 2) as Females emit pheromones to attract females disperse only by crawling and almost entirely of the Carsitas Series males to burrows for the purposes of likely by water flow in wash areas (CdC), typically gravelly sand, single mating. Breeding success depends on (although it is unclear what the survival grain, slightly effervescent, moderately males’’ ability to detect pheromones and rate would be under water-flow alkaline (pH 8.4), loose, non-sticky and ability to maneuver to remain in contact dispersal). Because male Casey’s June non-plastic, and deposited on 0 to 9 with the pheromone plume (Domek et beetles cannot repopulate an area by percent slopes. These soils show light al. 1990, pp. 271–276). The southern themselves, and females are flightless, braiding and some organic deposition Palm Springs area is surrounded by habitat fragmentation and isolation are on alluvial terraces and where they mountains and ridges that protect the significant threats to gene flow in this occur within washes, although they area from the high winds that are species. Therefore, connectivity of generally do not receive scouring frequent in the Coachella Valley (Wright suitable habitats that provides for surface flows (Hovore 2003, p. 2). pers. comm. 2004), thus providing dispersal over multiple generations is Additionally, Casey’s June beetle is conditions that are conducive to essential to the conservation of the associated with RA and ChC soils successful male flight, and pheromone species. (Anderson 2007, p.1), usually occurring detection and tracking. Therefore, Minimally disturbed suitable habitat in these soils when they are contiguous successful reproduction depends on is also essential to Casey’s June beetle. with CdC soil. The CdC type soils may shelter provided by the surrounding As stated above, the adults of this also contain small inclusions of fine or mountains and ridges. species burrow in alluvial soils to lay coarse soils, such as MaB and CpA Hawks (pers. comm. 2011a and b) eggs and the larval stages are known to (USDA 1980, pp. 11–12, 16, and 23). noted that RA soil in the Palm Canyon live out this life stage in alluvial soil as Riverwash (RA) soil is also an Wash above approximately 580 ft (177 well. Surfaces such as highly important component of Casey’s June m) in elevation (just below the dam) manipulated nonnative ornamental beetle habitat because organic matter becomes too disturbed, likely by natural landscaping do not serve the same and vegetation is uprooted, scouring, to support Casey’s June beetle. function as native or minimally redistributed, and buried in the wash These data indicate suitable habitat disturbed habitat. Although Casey’s during flood events. Debris deposited by associated with the wash is likely June beetles are documented to occur in these hydrological processes and limited to soils contiguous with the abundance within the residential periodic flooding are essential to wash up to 580 ft (177 m) in elevation community of Smoke Tree Ranch maintain alluvial soils in Palm Canyon (this includes some CdC soils (Cornett 2004, Table 1; Hawks pers. Wash and may serve as new or re- contiguous with the wash at 580 ft (177 comm. 2010), it is likely that breeding conditioned habitat. m) that extend up to approximately 620 and female movement is largely ft (189 m) in elevation). These data also Cover or Shelter restricted to the relatively undisturbed indicate relatively small patches of CdC natural areas within the Smoke Tree The upland terraces and Palm Canyon soil that are only contiguous with more Ranch property, and species abundance Wash are the majority of remaining disturbed portions of the wash above is primarily the result of: (1) Minimal areas known to be inhabited by Casey’s 580 ft (177 m) in elevation in Palm past disturbance within a regulated and June beetle. The upland terraces offer Canyon are not likely to support Casey’s gated community; (2) a relatively large, the only known shelter from flooding June beetle occupancy because they contiguous, occupied, minimally and scouring events and ORV impacts, appear isolated with regard to female disturbed, upland habitat area as vehicles tend to remain within the immigration and are especially dominated by native plants; and (3) wash. Because the Palm Canyon Wash vulnerable to flood scouring. Hawks supplemental soil moisture from experiences periodic flooding and (pers. comm. 2011a) also noted that he landscape watering. scouring that is likely to impact the had never observed emergence holes in species, upland terraces are essential to ChC soil and expressed doubt that ChC Primary Constituent Elements for the conservation of Casey’s June beetle soil not distributed as an inclusion in Casey’s June Beetle for long-term maintenance of the CdC soil provided habitat for Casey’s Under the Act and its implementing population. Systematic surveys in wash June beetle. regulations, we are required to identify areas contiguous with upland habitat Dispersal of Casey’s June beetle is also the physical or biological features indicate this area is also important to limited by the flightlessness of females. essential to the conservation of Casey’s the long-term survival of the species This adaptation significantly hinders June beetle within the geographical area (per above discussion, when population this species’ ability to disperse or occupied at the time of listing, focusing segment numbers have increased to the recolonize an area. Because female on the features’ primary constituent point where the emigration rate exceeds Casey’s June beetles are flightless, the elements. We consider primary immigration and the habitat is a species’ breeding system and the ability constituent elements to be the specific

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elements of physical or biological patches should be provided to address population based on currently available features that provide for a species’ life- the protection necessary for this species data. Because of the limitations of history processes and are essential to at this time. Preserving habitat and surveys to detect insect occupancy, the the conservation of the species. corridors linking habitat patches have population level is the appropriate scale Based on our current knowledge of been shown, in general, to be vital for at which to determine occupancy of the physical or biological features and the conservation of many species, and it areas designated as critical habitat. We habitat characteristics required to stands to reason this is true for a species assume all known occupied areas are sustain the species’ life-history such as Casey’s June beetle that has within the same population distribution processes, we determine that the flightless females. based on the potential for male primary constituent elements (PCEs) movement among sites that contain the Criteria Used To Identify Critical specific to Casey’s June beetle are: physical or biological features (see New Habitat (1) Soils of the Carsitas (CdC) gravelly Species Information section above). We sand and Riverwash (RA) series, or As required by section 4(b)(1)(A) of determined all existing CdC and RA inclusions of Carsitas cobbly sand (ChC) the Act, we use the best scientific and soils, and inclusions (all relatively series soils, or inclusions of Myoma fine commercial data available to designate small) of ChC, MaB, or CpA soils within sands (MaB) or Coachella fine sands critical habitat. We reviewed available CdC soils, that are contiguous with soils (CpA) within CdC soils, at or below 620 information pertaining to the habitat containing Casey’s June beetle ft (189 m) in elevation, associated with requirements of this species. In observation locations are occupied. We washes and alluvial fans deposited on 0 accordance with the Act and its made this determination because larval to 9 percent slopes to provide space for implementing regulation at 50 CFR and adult male and female occupancy of population growth and reproduction, 424.12(e), we considered whether CdC and RA soils, and the likelihood of moisture, and food sources; and designating additional areas—outside adult female and male movement within (2) Predominantly native desert those currently occupied as well as all these PCE soils defines occupancy vegetation, to provide shelter from those occupied at the time of listing— appropriately for this species with traffic-related mortality and food for the is necessary to ensure the conservation regard to the definition of critical species. of the species. habitat. Therefore, we have determined We designated critical habitat in areas Special Management Considerations or all areas we are designating as critical we determined are within the species’’ Protection habitat are currently occupied. present range and contain the physical We used the following factors to When designating critical habitat, we or biological features essential to the delineate critical habitat: All areas (1) assess whether the specific areas within conservation of the species. When comprised of contiguous CdC or RA the geographical area occupied by the determining the possible distribution of soils containing recent occurrence species at the time of listing contain the areas that meet the definition of critical locations (1995 to present), or within features that are essential to the habitat for Casey’s June beetle, we the flight range of adult male Casey’s conservation of the species and which considered all possibly suitable habitat June beetles from these recent locations; may require special management patches remaining within the species’’ or (2) comprised of ChC, MaB, and CpA considerations or protection. Special historical range, from the northeastern soils contiguous with these CdC or RA management of the physical or San Jacinto Mountain foothills, south to soils; and (3) that were not denuded, biological features is required in these the City of Palm Desert. For Casey’s June graded or landscaped; and (4) that are areas to reduce threats to habitat. Major beetle, we limited critical habitat to the below 620 ft (189 m) in elevation; and threats to Casey’s June beetle habitat known present population distribution (5) that were not otherwise determined include: (1) Habitat disturbance; (2) of the species (occupied habitat), to be unsuitable due to development- habitat loss and fragmentation because the only potentially suitable associated degradation (e.g., isolation, associated with development (such as habitat patches outside that area occur soil compaction). The designated grading, building roads and other primarily in small, fragmented, disjunct critical habitat is designed to encompass infrastructure, and constructing parcels, and many are highly disturbed. the estimated Casey’s June beetle commercial and residential structures); In this designation we have included population distribution and the soils and (3) recreational activities (for both upland and wash habitats as well and native vegetation needed for its example, ORV use and equestrian as connecting habitats which we long-term conservation. Changes to the activities) as described in the Factor A determined are essential to the PCEs from those described in the and Factor E discussions in the conservation of the species. Additional proposed rule (see Summary of Changes Summary of Factors Affecting the potential habitat outside the species’’ from the 2009 Proposed Critical Habitat Species section above. known present range (unoccupied areas) Rule, below) did not affect our criteria, Anderson and Love (2007) examined is relatively remote in relation to the because areas containing the revised the rate of habitat loss since 1996, and likely flight movement distances of male PCEs were already included in proposed additional analyses identified beetles or terrain through which female critical habitat. continuing habitat loss over the last 2 beetles are likely to travel from We delineated the critical habitat years. Because Casey’s June beetle is occupied areas. Based on the best boundaries using the following steps: now restricted to a relatively small area scientific information currently (1) We mapped observations of compared to its known historical range, available, including recent negative Casey’s June beetles from Bruyea (2006), and habitat loss and fragmentation are surveys (see New Species Information Cornett (2004), Hovore (1997), Hovore threats to the long-term viability of section above), it is unlikely that these (1995), Powell (2003), and Simonsen- Casey’s June beetle, special management disjunct habitat patches would be Marchant (2000, 2001). These records considerations or protection of the PCEs capable of supporting reintroduced were initially mapped over digital aerial are needed to address development or populations or remain viable due to photographs of the Palm Canyon area in urban expansion impacts. Urban their isolated, fragmented, and the City of Palm Springs, California, expansion should be avoided within or sometimes disturbed nature. acquired in June 2005 with a ground adjacent to Casey’s June beetle habitat We consider all known occurrences of resolution of 3.28 ft (1 m). We believe and linkage corridors between habitat Casey’s June beetle to constitute a single these surveys are the best available data

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on Casey’s June beetle current Bogert Trail in the southern portion of therefore, do not meet the definition of distribution and provide a logical the species’ distribution were no longer critical habitat (see Critical Habitat starting point for the delineation of occupied, and were too isolated by Background section above for the critical habitat. development and disturbed to support definition of critical habitat). We (2) We incorporated digital soil data occupancy in the future (see New determined the easternmost proposed produced by the USDA Natural Species Information section above). critical habitat polygon located on State Resources Conservation Service for all Therefore, these areas were removed. Route 111 between Broadmoor Drive soils in the Palm Canyon area (USDA (6) Based on Hawks’ (pers. comm. and Golf Club Drive did not contain 2000). These data delineated CdC, RA, 2011a) observation that no burrow holes areas mapped as Carsitas (CdC) gravelly ChC, MaB, and CpA soils. We included have ever been observed in ChC soil (see sand soil series (PCE 1). Based on new areas where CdC soils were within the New Species Information section above), information submitted by a commenter likely flight range of adult male Casey’s we removed all patches of ChC soil not and examination of digital aerial June beetles from recent occurrence completely surrounded by CdC and RA photography, we also determined a locations (1995–present). This mapping soils. portion of land in the vicinity of Araby delineated the soils that are suitable for, When determining critical habitat Drive was composed of elevated fill dirt and occupied by, the beetle. boundaries within this final rule, we and, therefore, did not contain the (3) After mapping the soils, we made every effort to avoid including physical or biological features essential examined the elevations of all Casey’s developed areas, such as lands covered to the conservation of the species (see June beetle observations. We by buildings, pavement, and other Summary of Comments and determined the highest elevation of an structures, because such lands lack Recommendations section, Comment occurrence was 580 ft (177 m), and we physical or biological features for 12, below). The edge of the elevated fill extended the boundary elevation 40 ft Casey’s June beetle. The scale of the dirt correlated with the parcel map (12 m) to account for gradients between maps we prepared under the parameters boundary. Based on recent survey and soil types and to include CdC soils for publication within the Code of habitat information (see New Species contiguous with portions of the wash Federal Regulations may not reflect the Information and A. The Present or that are known to be occupied. As a exclusion of such developed lands. Any Threatened Destruction, Modification, result, we are limiting designation of such lands inadvertently left inside or Curtailment of the Species’ Habitat or critical habitat to areas below the 620- critical habitat boundaries shown on the Range sections above) we determined ft (189-m) contour. maps of this designated critical habitat that formerly occupied CdC and (4) We utilized digital aerial are excluded by text in this final rule. associated soils adjacent to and west of photographs acquired in April 2008 Therefore, a Federal action involving South Palm Canyon Drive are no longer with a ground resolution of 6 in (15 cm) these lands would not trigger section 7 likely to be occupied or to support to closely examine remaining areas to consultation with respect to critical occupancy in the future, and are ensure they captured the physical or habitat and the requirement of no therefore not essential for the biological features necessary to support adverse modification unless the specific conservation of the species. Therefore, Casey’s June beetle life-history action may affect the physical or these areas do not meet the definition of functions. Specifically, we removed biological features in the adjacent areas that did not have appropriate soils critical habitat. We further determined critical habitat. that the southernmost non-contiguous (such as golf course greens) or that We are designating as critical habitat contained large denuded or graded areas patches of CdC soil in Palm Canyon and lands that we consider to be occupied two areas of ChC soil (in Palm Canyon to eliminate areas that likely do not and at the time of listing and contain could not support Casey’s June beetles. and near Araby Drive) not completely sufficient physical or biological features surrounded by CdC and RA soil do not (5) We reviewed new scientific to support life-history processes information regarding the species’ meet the definition of critical habitat. essential to the conservation of Casey’s See New Species Information and southern population distribution limits June beetle. and determined some areas were not Criteria Used To Identify Critical likely to support occupancy now or in Summary of Changes From the 2009 Habitat sections above for further the foreseeable future and therefore did Proposed Critical Habitat Rule discussion. Removal of these lands that not meet the definition of critical Based on comments received during were determined not to meet the habitat. Based on Hawk’s (pers. comm. the public comment periods (see definition of critical habitat resulted in 2011a) observation that wash habitat Comments 2 and 4 in the Summary of a total reduction of 179 ac (73 ha) from soil suitability and occupancy ended at Comments and Recommendations the areas proposed for critical habitat approximately 580 ft (177 m) in section below), and new survey designation in 2009. elevation, and did not extend south of information, we added explanations in (2) Per peer reviewer Comment 2 in the small dam in Palm Canyon, we the New Species Information and the Summary of Comments and determined that non-contiguous patches Criteria Used To Identify Critical Recommendations section below (see of CdC soils at the southern extreme of Habitat sections above to better also Comment 10), satellite image the area proposed as critical habitat are characterize our knowledge of the assessment, and field survey not likely within the current population species’ present range and the potential information provided by David Hawks distribution of the species, and are not for occupied habitat outside the known (pers. comm. 2010), we modified PCE 2 likely to support occupancy in the present range. to include other Sonoran vegetation future (see New Species Information and The most significant changes from the types and disturbed habitat. In the Sites for Breeding, Reproduction, and 2009 proposed critical habitat rule to proposed rule it specified ‘‘Intact, native Rearing (or Development) of Offspring this final rule include: Sonoran (Coloradan) desert scrub that are Protected from Disturbance (1) We determined two areas included vegetation and native desert wash sections above). We further determined in the proposed critical habitat vegetation that provide shelter and food that the western isolated fragments of designation do not contain the physical for the species.’’ In this rule, we specify formerly occupied habitat associated or biological features essential to the PCE2 as, ‘‘Predominantly native desert with South Palm Canyon Drive and conservation of the species and, vegetation, to provide shelter from

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traffic-related mortality and food for the plans with Agua Caliente Band of not designate critical habitat in these species.’’ This change to PCE 2 did not Cahuilla Indians and other tribes, thus areas does not reduce the consultation change areas identified as meeting the positively affecting other listed species. requirement for Federal agencies definition of critical habitat. The altered Therefore, the Secretary is exercising his participating in, funding, permitting, or PCE more accurately characterized discretion to exclude a total of carrying out activities in these areas. lands we had already determined met approximately 11 ac (4 ha) of non-fee, Final Critical Habitat Designation the definition of critical habitat. non-allotted tribal lands owned or (3) In the 2009 proposed rule, we managed by the Agua Caliente Band of We are designating one unit as critical stated we were not considering or Cahuilla Indians in this final critical habitat for Casey’s June beetle. The proposing for exclusion under section habitat designation. For a complete critical habitat area described below 4(b)(2) of the Act tribal lands owned or discussion of the benefits of inclusion constitutes our best assessment at this managed by the Agua Caliente Band of and exclusion, see Application of time of areas that meet the definition of Cahuilla Indians. Following review of Section 4(b)(2) of the Act, below. critical habitat. tribal comments and an evaluation of Of the approximately 777 ac (314 ha) The approximate area of designated our partnership with the Tribe, we of land proposed for critical habitat critical habitat for Casey’s June beetle is determined that the benefits of designation in 2009, approximately 587 shown in Table 1 and totals 587 ac (237 exclusion outweigh the benefits of ac (237 ha) are included in this final ha), including 152 ac (62 ha) of tribal inclusion for tribal trust reservation critical habitat designation. Our allotment and fee land, 141 ac (57 ha) lands (i.e., non-fee, non-allotted lands), decision to not designate all of the of local government land, and and that exclusion of these lands will proposed critical habitat does not imply approximately 301 ac (122 ha) of private not result in extinction of the species. that these non-designated areas are and quasi-public (flood control and We believe that excluding Agua Caliente unimportant to Casey’s June beetle. water conservation district) land. Area Band of Cahuilla Indians tribal trust Projects with a Federal nexus that occur estimates reflect all land within the reservation lands from this final critical in these areas, or other areas potentially critical habitat unit boundaries. Area habitat will preserve our partnership occupied by Casey’s June beetle, which values were computer-generated using with the Tribes and foster future may affect the beetle must still undergo GIS software, rounded to nearest whole development of habitat management section 7 consultation. Our decision to number, and then summed.

TABLE 1—DESIGNATED CRITICAL HABITAT FOR CASEY’S JUNE BEETLE

Tribal Federal and Local allotment and Private Total Location state lands government fee lands ac (ha) ac (ha) ac (ha) ac (ha) ac (ha)

Palm Springs ...... 0 (0) 141 (57) 152 (62) 301 (122) 587 (237)

Total Area Final Critical Habitat ...... 0 (0) 141 (57) 152 (62) 301 (122) 587 (237) Note: Area sizes may not sum due to rounding.

We present a brief unit description, CdC and RA soils), MaB, and CpA soil addressed in the draft Tribal HCP; and reasons why the unit meets the series at or below 620 ft (189 m) in however, they indicated they will definition of critical habitat for Casey’s elevation, associated with washes and ‘‘continue to informally coordinate with June beetle, below. alluvial fans deposited on 0 to 9 percent the Service regarding this species where slopes (PCE 1), and predominantly it occurs on the Reservation.’’ The Tribe Palm Springs Unit native desert vegetation (PCE 2). stated they are deferring to the Service The unit consists of 587 ac (237 ha) Habitat in the unit is threatened by to allow ‘‘the Service to take the lead in and is located in Riverside County, development, soil disturbance, addressing how to effectively conserve California, and extends from the fragmentation, effects of stream and protect this species’’ (ACBCI 2008, confluence of Andreas Canyon Wash channelization, and effects of climate p. 1). We continue to work with the with Palm Canyon Wash northward change. Specifically, urban expansion, Agua Caliente Band of Cahuilla Indians along the toe of slope northeastward in-fill development, and recreational to encourage management of Casey’s (downstream) along Palm Canyon Wash, activities continue to result in the loss June beetle habitat. We determined that crossing East Palm Canyon Drive to and degradation of habitat. Therefore, at this time it is appropriate to exclude south and east of Gene Autry Trail. The the features essential to the conservation 11 ac (4 ha) tribal trust reservation lands unit includes Palm Canyon Wash and of the species in this unit require special (i.e., non-fee and non-allotted lands) contiguous suitable soils from the management considerations or from the critical habitat unit (see Tribal entrance of Indian Canyons north to protection to minimize impacts Reservation Lands under Exclusions Calle Arriba, and one area south of and resulting from these threats (see Special section below). adjacent to East Palm Canyon Drive (SR Management Considerations or Effects of Critical Habitat Designation 111) west of Gene Autry Trail. Protection section above). The entire critical habitat unit is Approximately 25 percent of this unit Section 7 Consultation considered occupied by Casey’s June (152 ac (62 ha)) is on Agua Caliente Section 7(a)(2) of the Act requires beetle and contains the physical or Band of Cahuilla Indians reservation Federal agencies, including the Service, biological features essential to the land. As described above (see Factor D), to ensure that any action they fund, conservation of the species, including the Tribe informed us in an October 28, authorize, or carry out is not likely to alluvial soils of the CdC, RA, ChC (if 2008, letter that they removed Casey’s jeopardize the continued existence of mapped as completely surrounded by June beetle from the list of species any endangered species or threatened

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species or result in the destruction or When we issue a biological opinion beetle. As discussed above, the role of adverse modification of designated concluding that a project is likely to critical habitat is to support life-history critical habitat of such species. In jeopardize the continued existence of a needs of the species and provide for the addition, section 7(a)(4) of the Act listed species or destroy or adversely conservation of the species. Generally, requires Federal agencies to confer with modify critical habitat, we provide the conservation role of Casey’s June the Service on any agency action which reasonable and prudent alternatives to beetle’s critical habitat unit is to support is likely to jeopardize the continued the project, if any are identifiable, that a viable, self-sustaining population of existence of any species proposed to be would avoid the likelihood of jeopardy the species. listed under the Act or result in the and/or destruction or adverse Section 4(b)(8) of the Act requires us destruction or adverse modification of modification of critical habitat. We to briefly evaluate and describe, in any proposed critical habitat. define ‘‘Reasonable and prudent proposed or final regulation that Decisions by the Fifth and Ninth alternatives’’ (at 50 CFR 402.02) as designates critical habitat, activities Circuit Courts of Appeals have alternative actions identified during involving a Federal action that may invalidated our regulatory definition of consultation that: destroy or adversely modify such ‘‘destruction or adverse modification’’ (1) Can be implemented in a manner habitat, or that may be affected by such (50 CFR 402.02) (see Gifford Pinchot consistent with the intended purpose of designation. Task Force v. U.S. Fish and Wildlife the action, Examples of activities that, when Service, 378 F. 3d 1059 (9th Cir. 2004) (2) Can be implemented consistent authorized, funded, or carried out by a and Sierra Club v. U.S. Fish and with the scope of the Federal agency’s Federal agency, may affect critical Wildlife Service et al., 245 F.3d 434, legal authority and jurisdiction, habitat and, therefore should result in 442F (5th Cir. 2001)), and we do not rely (3) Are economically and consultation for Casey’s June beetle on this regulatory definition when technologically feasible, and analyzing whether an action is likely to (4) Would, in the Director’s opinion, include, but are not limited to, actions destroy or adversely modify critical avoid the likelihood of jeopardizing the that would cause disturbance, loss, or habitat. Under the statutory provisions continued existence of the listed species fragmentation of critical habitat. Such of the Act, we determine destruction or and/or avoid the likelihood of activities could include, but are not adverse modification on the basis of destroying or adversely modifying limited to, development, grading, whether, with implementation of the critical habitat. building roads and other infrastructure, proposed Federal action, the affected Reasonable and prudent alternatives constructing commercial and residential critical habitat would remain functional can vary from slight project structures, and recreational activities (or retain those physical or biological modifications to extensive redesign or (for example, ORV use and equestrian features that relate to the ability of the relocation of the project. Costs activities). These activities could area to periodically support the species) associated with implementing a permanently destroy critical habitat, to serve its intended conservation role reasonable and prudent alternative are compact soil, or alter soil moisture for the species. similarly variable. levels. Compacted or dry soils do not Federal activities that may affect Regulations at 50 CFR 402.16 require allow the species to burrow into, move, Casey’s June beetle or its critical habitat Federal agencies to reinitiate and feed in the soil as needed during the require section 7 consultation under the consultation on previously reviewed time they are underground. Please see Act. Examples of actions that are subject actions in instances where we have Summary of Factors Affecting the to the section 7 consultation process are listed a new species or subsequently Species section above for a more actions on State, Tribal, local, or private designated critical habitat that may be detailed discussion of the impacts of lands that require a Federal permit affected and the Federal agency has these actions to the listed species. (such as a permit from the U.S. Army retained discretionary involvement or Exemptions Corps of Engineers under section 404 of control over the action (or the agency’s the Clean Water Act (33 U.S.C. 1251 et discretionary involvement or control is Application of Section 4(a)(3) of the Act seq.) or a permit from the Service under authorized by law). Consequently, The Sikes Act Improvement Act of section 10 of the Act) or that involve Federal agencies may sometimes need to 1997 (Sikes Act) (16 U.S.C. 670a) some other Federal action (such as request reinitiation of consultation with required each military installation that funding from the Federal Highway us on actions for which formal includes land and water suitable for the Administration, Federal Aviation consultation has been completed, if conservation and management of Administration, or the Federal those actions with discretionary natural resources to complete an Emergency Management Agency). involvement or control may affect integrated natural resources Federal actions not affecting listed subsequently listed species or management plan (INRMP) by species or critical habitat, and actions designated critical habitat. November 17, 2001. An INRMP on State, Tribal, local, or private lands Application of the ‘‘Adverse integrates implementation of the that are not federally funded or Modification’’ Standard military mission of the installation with authorized, do not require section 7 stewardship of the natural resources consultation. The key factor related to the adverse modification determination is whether, found on the base. Each INRMP As a result of section 7 consultation, includes: we document compliance with the with implementation of the proposed requirements of section 7(a)(2) through Federal action, the affected critical (1) An assessment of the ecological our issuance of: habitat would continue to serve its needs on the installation, including the (1) A concurrence letter for Federal intended conservation role for the need to provide for the conservation of actions that may affect, but are not species. Activities that may destroy or listed species; likely to adversely affect, listed species adversely modify critical habitat are (2) A statement of goals and priorities; or critical habitat; or those that alter the physical or (3) A detailed description of (2) A biological opinion for Federal biological features to an extent that management actions to be implemented actions that are likely to adversely affect appreciably reduces the conservation to provide for these ecological needs; listed species or critical habitat. value of critical habitat for Casey’s June and

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(4) A monitoring and adaptive government relationship of the United governments essential to achieving a management plan. States with tribal entities. In considering mutual goal of successfully managing Among other things, each INRMP whether to exclude a particular area ecosystems upon which endangered and must, to the extent appropriate and from the designation, we must identify threatened species depend. When applicable, provide for fish and wildlife the benefits of including the area in the conducting our analysis under section management; fish and wildlife habitat designation, identify the benefits of 4(b)(2) of the Act, we consider our enhancement or modification; wetland excluding the area from the designation, existing and future partnerships with protection, enhancement, and and determine whether the benefits of tribes and existing conservation actions restoration where necessary to support exclusion outweigh the benefits of that tribes have implemented or are fish and wildlife; and enforcement of inclusion. If based on this analysis, we currently implementing. We also take applicable natural resource laws. make this determination, then we can into consideration conservation actions The National Defense Authorization exclude the area only if such exclusion that are planned as a result of ongoing Act for Fiscal Year 2004 (Pub. L. 108– would not result in the extinction of the government-to-government 136) amended the Act to limit areas species. consultations with tribes. When considering the benefits of eligible for designation as critical Agua Caliente Band of Cahuilla Indians habitat. Specifically, section 4(a)(3)(B)(i) inclusion for an area, we consider the of the Act (16 U.S.C. 1533(a)(3)(B)(i)) additional regulatory benefits that area A Federal Indian reservation is an now provides: ‘‘The Secretary shall not would receive from the protection from area of land reserved for a tribe or tribes designate as critical habitat any lands or adverse modification or destruction as a under treaty or other agreement with the other geographical areas owned or result of actions with a Federal nexus; United States, Executive Order, or controlled by the Department of the educational benefits of mapping Federal statute or administrative action Defense, or designated for its use, that essential habitat for recovery of the as permanent tribal homelands, and are subject to an integrated natural listed species; and any benefits that may where the Federal government holds resources management plan prepared result from a designation due to State or title to the land in trust on behalf of a under section 101 of the Sikes Act (16 Federal laws that may apply to critical tribe. The Agua Caliente Indian U.S.C. 670a), if the Secretary determines habitat. Reservation consists of a checkerboard in writing that such plan provides a When considering the benefits of of parcels found primarily in the City of benefit to the species for which critical exclusion, we consider, among other Palm Springs, and the Cities of habitat is proposed for designation.’’ things, whether exclusion of a specific Cathedral City and Rancho Mirage, and There are no Department of Defense area is likely to result in conservation; unincorporated Riverside County, lands within the designation. Therefore, the continuation, strengthening, or California. Lands within the Agua we are not exempting lands from this encouragement of partnerships; or Caliente Indian Reservation boundary critical habitat designation for Casey’s implementation of a management plan include Tribal trust land, allotted trust June beetle pursuant to section that provides equal to or more land, Tribe-owned fee land, privately 4(a)(3)(B)(i) of the Act. conservation than a critical habitat owned (Tribal members and non- designation would provide. Indians) fee land, and public land. Exclusions Individual sections of Agua Caliente Tribal Reservation Lands Application of Section 4(b)(2) of the Act Indian Reservation land are interspersed In accordance with the Secretarial with public land owned or under the Section 4(b)(2) of the Act states that Order 3206, ‘‘American Indian Tribal control of various Federal and State the Secretary shall designate and make Rights, Federal-Tribal Trust agencies, and privately owned land revisions to critical habitat on the basis Responsibilities, and the Endangered under the jurisdiction of the County of the best available scientific data after Species Act’’ (June 5, 1997); the and/or one of the three municipalities taking into consideration the economic President’s Memorandum of April 29, (ACBCI 2010b p. 1–1). Tribal trust impact, national security impact, and 1994, ‘‘Government-to-Government reservation lands are those lands that any other relevant impact of specifying Relations with Native American Tribal are under the sovereign control of the any particular area as critical habitat. Governments’’ (59 FR 22951); Tribe. Through our ongoing The Secretary may exclude an area from President’s Memorandum of November coordination with the Tribe, we have critical habitat if he determines that the 5, 2009, ‘‘Tribal Consultation’’ (74 FR established a partnership that has benefits of such exclusion outweigh the 57881); Executive Order 13175; and the benefitted natural resource management benefits of specifying such area as part relevant provision of the Departmental on tribal lands. For our 4(b)(2) balancing of the critical habitat, unless he Manual of the Department of the Interior analysis we considered our partnership determines, based on the best scientific (512 DM 2), we believe that fish, with the Tribe and, therefore, analyzed data available, that the failure to wildlife, and other natural resources on the benefits of including and excluding designate such area as critical habitat tribal lands are more appropriately those lands under the sovereign control will result in the extinction of the managed under tribal authorities, of the Tribe (tribal trust reservation species. In making that determination, policies, and programs than through lands) that met the definition of critical the statute on its face, as well as the Federal regulation wherever possible habitat. Because Tribe-owned fee, legislative history is clear that the and practicable. In most cases, private fee, or allotted lands are Secretary has broad discretion regarding designation of tribal lands as critical potentially subject to other jurisdictions which factor(s) to use and how much habitat provides very little additional and not under the sovereign control of weight to give to any factor. conservation benefit to endangered or the Tribe, we did not include these Under section 4(b)(2) of the Act, we threatened species. Conversely, such lands in our exclusion analysis. may exclude an area from designated designation is often viewed by tribes as Based on the detailed analysis critical habitat based on economic an unwarranted and unwanted intrusion presented below, the Secretary is impacts, impacts on national security, into tribal self-governance, and may exercising his discretion under section or any other relevant impacts. In negatively impact a positive 4(b)(2) of the Act to exclude addition, we look at any tribal issues, government-to-government relationship approximately 11 ac (4 ha) of Agua and consider the government-to- between the Service and tribal Caliente Band of Cahuilla Indians tribal

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trust reservation lands (i.e., non-fee, affects Casey’s June beetle will with funds from the 1988 California non-allotted land held in trust by the jeopardize the continued existence of Wildlife, Coastal, and Park Land Federal government for the Tribe) from the species. Therefore, in the case of Conservation Act (1988 Bond Act) this final critical habitat designation for Casey’s June beetle, we believe the (ACBCI 2007, p. 2). The 1988 Bond Act Casey’s June beetle. benefits of critical habitat designation requires Heritage Park to be managed to are very similar to the benefits of listing, preserve Indian heritage and native Benefits of Inclusion—Agua Caliente and in some respects would be palms and other plants. The 1988 Bond Band of Cahuilla Indians indistinguishable from the benefits of Act further stipulated that: ‘‘[a]fter that The principle benefit of including an listing. acquisition, the state shall convey title area in a critical habitat designation is Public education is often cited as to all those lands to the United States in the requirement for Federal agencies to another possible benefit of including trust for the [Tribe] as part of the [Agua ensure actions they fund, authorize, or lands in critical habitat as it may help Caliente Indian Reservation] on the carry out are not likely to result in the focus conservation efforts on areas of conditions that * * * the lands be open destruction or adverse modification of high value for certain species. to the public, subject to reasonable any designated critical habitat, the Partnership efforts with the Agua restrictions * * * and the lands be used regulatory standard of section 7(a)(2) of Caliente Band of Cahuilla Indians to for protection of wildlife habitat and the Act under which consultation is conserve Casey’s June beetle and other other resources.’’ Any potential impacts completed. Federal agencies must also federally listed species addressed in to Casey’s June beetle from future consult with us on actions that may their draft tribal HCP have resulted in proposed activities on the tribal trust affect a listed species and refrain from heightened awareness about the species. reservation lands will be addressed undertaking actions that are likely to However, we believe there is little, if through the Indian Canyons Master Plan jeopardize the continued existence of any, educational benefit attributable to or through a section 7 consultation such species. The analysis of effects of critical habitat beyond those achieved using the jeopardy standard, and such a proposed project on critical habitat is from listing of Casey’s June beetle under activities would also be subject to the separate and different from that of the the Act, and the Tribe’s efforts to take prohibitions in section 9 of the Act. effects of a proposed project on the develop a HCP. The Service is As a result we believe the regulatory species itself. The jeopardy analysis conducting ongoing coordination with benefits of critical habitat designation evaluates the action’s impact to survival Agua Caliente Band of Cahuilla Indians on tribal trust reservation land would and recovery of the species, while the and other southern California tribes. largely be redundant with the combined destruction or adverse modification Service coordination includes attending benefits of listing and existing tribal analysis evaluates the action’s effects to meetings with tribal representatives to regulations. the designated habitat’s contribution to discuss ongoing projects, management The designation of Casey’s June beetle conservation. Therefore, the difference plans, and other issues as they arise. We critical habitat may strengthen or in outcomes of these two analyses believe our continuing coordination reinforce some Federal laws, such as represents the regulatory benefit of with the Agua Caliente Band of Cahuilla NEPA or Clean Water Act. These laws critical habitat. This will, in many Indians will further promote awareness analyze the potential for projects to instances, lead to different results and of the species and its conservation significantly affect the environment. different regulatory requirements. Thus, needs, and will facilitate development Critical habitat may signal the presence critical habitat designations may of additional management plans of sensitive habitat that could otherwise provide greater benefits to the recovery (beyond those already in existence), as be missed in the review process for of a species than would listing alone. well as address Casey’s June beetle these other environmental law; However, for some species, and in some conservation on tribal lands. however, the listing process, HCP locations, the outcome of these analyses We believe existing tribal regulations, planning efforts, and consultations will be similar, because effects to habitat the Indian Canyons Master Plan, and (which included conferencing on effects will often also result in effects to the current management of Heritage Park to Casey’s June beetle) that have already species. All lands considered for will ensure any land use actions, occurred will provide this benefit. exclusion are currently considered including those funded, authorized, or Therefore, in this case we view this occupied by Casey’s June beetle and carried out by Federal agencies, are not benefit as redundant with the benefit will be subject to the consultation likely to result in the destruction or the species will receive from listing requirements of the Act in the future. adverse modification of all lands under the Act. Although a jeopardy and adverse considered for exclusion. For example, In summary, we do not believe that modification analysis must satisfy two in a letter dated April 29, 2010 (ACBCI designating critical habitat within Agua different standards, because any 2010c, p. 3), the Tribe stated that, rather Caliente Band of Cahuilla Indians tribal modifications to proposed actions than delegating land use authority to a trust reservation lands will provide resulting from a section 7 consultation local agent such as the City of Palm additional benefits for Casey’s June to minimize or avoid impacts to Casey’s Springs in the Planning Area (i.e., in beetle. Projects on these lands with a June beetle will be habitat-based, it is Casey’s June beetle habitat south of Federal nexus (e.g., funded, approved, not possible to differentiate any Acanto Drive), the Tribe will directly or carried out by Federal agencies, such measures implemented solely to regulate land use in this area through its as the Bureau of Indian Affairs, Indian minimize impacts to the critical habitat Indian Canyons Master Plan and tribal Health Services, or U.S. Army Corps of from those implemented to minimize zoning. The Tribe indicated they would Engineers) will require section 7 impacts to the beetle. Additionally, this use their existing regulatory structure consultation with the Service species’ highly restricted geographic and active role in regulating land use (regardless of critical habitat range relative to its historical and development in this area to protect designation) because the habitat is distribution (as evidenced by Casey’s June beetle and its habitat occupied (see New Species Information documented loss of occupied habitat), (ACBCI 2010c, p. 3). Furthermore, all section above) by Casey’s June beetle. ongoing habitat impacts and losses, and lands being excluded are included in Furthermore, a high level of protection slow female dispersal rate, increase the Heritage Park (ACBCI 2007, p. 5), an is already provided to tribal trust likelihood an action that adversely area within Indian Canyons acquired reservation lands that meet the

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definition of critical habitat by existing and believe reservation lands should be removed Casey’s June beetle from the conservation, regulations, and excluded. The Agua Caliente Band of list of species addressed in the draft management. The ongoing coordination Cahuilla Indians cited Executive Order Tribal HCP, they indicated they will between the Service and the Tribe has 13175, Secretarial Order 3206, and the ‘‘continue to informally coordinate with already raised the level of awareness President’s Memorandum on Tribal the Service regarding this species where about the species, and we believe our Consultation (74 FR 57881; November 9, it occurs on the Reservation.’’ The Tribe ongoing coordination with the Tribe 2009) in their comments to the Service stated they are deferring to the Service will facilitate development of species- and their interpretation of these Federal to allow ‘‘the Service to take the lead in specific management actions for these enactments as meaning ‘‘no Federal addressing how to effectively conserve lands to address the conservation of agency, and especially not any agency of and protect this species’’ (ACBCI 2008, Casey’s June beetle. the Department of the Interior, such as p. 1). Although the Tribe has suspended the Service, will inflict regulatory, their pursuit of a section 10(a) permit Benefits of Exclusion—Agua Caliente economic, or governmental burdens on (ACBCI 2010a, p. 1), they are continuing Band of Cahuilla Indians tribes and their members when adequate to implement the draft HCP and will Under Secretarial Order 3206, alternatives exist, such as avoidance, continue to protect and manage natural American Indian Tribal Rights, Federal- cooperation on a government-to- resources within the Tribe’s jurisdiction Tribal Trust Responsibilities and the government basis, or reliance on tribal (ACBCI, 2010a, p. 1; ACBCI 2010b, p. Endangered Species Act, we recognize measures’’ (ACBCI 2010c, p. 4). In their ES–1). We will continue to work that we must carry out our comments to the Service on the cooperatively with the Tribe on efforts responsibilities under the Act in a proposed rule, the Tribe indicated they to conserve Casey’s June beetle. manner that harmonizes the Federal would use their existing regulatory Therefore, excluding these lands from trust responsibility to tribes and tribal structure and active role in regulating critical habitat provides the significant sovereignty while striving to ensure that land use and development in this area benefit of maintaining and tribes do not bear a disproportionate to protect Casey’s June beetle and its strengthening our existing conservation burden for the conservation of listed habitat (ACBCI 2010c, p. 3). These partnerships and the potential of species, so as to avoid or minimize the communications clearly indicate that fostering new tribal partnerships. potential for conflict and confrontation. designation of tribal trust reservation Weighing Benefits of Exclusion Against In accordance with the Presidential lands as critical habitat for Casey’s June Benefits of Inclusion—Agua Caliente memorandums of April 29, 1994, and beetle would impact future conservation Band of Cahuilla Indians November 9, 2009, we believe that, to partnership opportunities with the the maximum extent possible, tribes are Tribe. Therefore, a critical habitat We reviewed and evaluated the the appropriate governmental entities to designation could potentially damage benefits of inclusion and the benefits of manage their lands and tribal trust our relationship with the Agua Caliente exclusion of Agua Caliente Band of resources, and that we are responsible Band of Cahuilla Indians. Cahuilla Indians tribal trust reservation for strengthening government-to- We believe significant benefits would lands as critical habitat for Casey’s June government relationships with tribes. be realized by forgoing designation of beetle. We believe past, present, and Federal regulation through critical critical habitat on tribal trust reservation future coordination with the Agua habitat designation will adversely affect (i.e., non-fee, non-allotted) lands Caliente Band of Cahuilla Indians has the tribal working relationships we now managed by the Agua Caliente Band of provided and will continue to provide have and which we are strengthening Cahuilla Indians. These benefits sufficient education regarding Casey’s throughout the United States. include: June beetle habitat conservation needs Maintaining positive working (1) Continuing and strengthening of on tribal trust lands, such that there relationships with tribes is key to our effective relationship with the Tribe would be no additional educational implementing natural resource to promote conservation of Casey’s June benefit from designation of critical programs of mutual interest, including beetle and its habitat; habitat. Further, because any potential habitat conservation planning efforts. In (2) Allowing continued meaningful impacts to Casey’s June beetle from light of the above-mentioned orders and collaboration and cooperation in future projects will be addressed for a variety of other reasons described working toward recovering this species, through the Indian Canyons Master Plan in their comment letters and including conservation actions that or through a section 7 consultation with communications, critical habitat might not otherwise occur; and us under the jeopardy standard, we designation is typically viewed by tribes (3) Encouraging other tribes to believe critical habitat designation on as an unwarranted and unwanted complete management plans in the tribal trust reservation land would intrusion into tribal self-governance. In future on other reservations for other largely be redundant with the combined comments submitted during the public federally listed and sensitive species benefits of listing and existing tribal comment periods on this proposed rule, and engage in meaningful collaboration regulations and management. Therefore, and in comments submitted on other and cooperation. the benefits of designating critical proposed critical habitat rules (such as Because the Tribe is the entity that habitat on tribal trust reservation lands the 2009 proposed revised critical enforces protective regulations on tribal are not significant. habitat designation for arroyo toad trust reservation land, and we have a On the other hand, the benefits of (Anaxyrus californicus) (74 FR 52611; working relationship with them, we excluding Agua Caliente Band of October 13, 2009)), several tribes stated believe exclusion of these lands will Cahuilla Indians tribal trust reservation that designation of critical habitat yield a significant partnership benefit. lands from critical habitat are would negatively impact government-to- There has been a substantial amount of significant. Exclusion of these lands government relations. government-to-government consultation from critical habitat will help preserve In the case of the Casey’s June beetle between the Tribe and Service on and strengthen the conservation proposed critical habitat, the Agua developing the draft Tribal HCP and this partnership we have developed with the Caliente Band of Cahuilla Indians rulemaking process for Casey’s June Tribe, reinforce those we are building submitted comments indicating they are beetle. Although the Tribe informed us with other tribes, and foster future opposed to critical habitat designation in an October 28, 2008, letter that they partnerships and development of

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management plans; whereas inclusion Exclusions Based on Economic Impacts agencies, private businesses, and will negatively impact our relationships Under section 4(b)(2) of the Act, we individuals. The FEA measures lost with the Tribe and other southern consider the economic impacts of economic efficiency associated with California tribes. We are committed to specifying any particular area as critical residential and commercial working with the Agua Caliente Band of habitat. In order to consider economic development and public projects and Cahuilla Indians to further the impacts, we prepared a draft economic activities, such as economic impacts on conservation of Casey’s June beetle and analysis (DEA) of the critical habitat water management and transportation other endangered and threatened designation and related factors projects, Federal lands, small entities, species. The Tribe will continue to use (Industrial Economics, Incorporated and the energy industry. Decision- their existing regulatory structure and (IEc) 2010A, pp. 1–75). The DEA, dated makers can use this information to active role in regulating land use and February 22, 2010, was made available assess whether the effects of the development in this area to protect for public review from March 31, 2010, designation might unduly burden a particular group or economic sector. Casey’s June beetle and its habitat through April 30, 2010 (75 FR 16046). Finally, the FEA looks and considers (ACBCI 2010c, p. 3). The Tribe Following the close of the comment those costs that may occur in the 20 continues to provide for some indirect period, a final analysis (dated June 1, years following listing and the conservation of Casey’s June beetle by 2010) of the potential economic effects designation of critical habitat, which implementing provisions of the draft of the designation was developed taking was determined to be the appropriate HCP. Therefore, in consideration of the into consideration the public comments period for analysis because limited relevant impact to our partnership and and any new information (IEc 2010b, planning information was available for our government-to-government pp. 1–84). Substantive comments and most activities to forecast activity levels relationship with the Agua Caliente information received on the DEA are Band of Cahuilla Indians, and the for projects beyond a 20-year timeframe. summarized in the Summary of The FEA quantifies economic impacts of ongoing conservation management Comments and Recommendations Casey’s June beetle conservation efforts practices of the Tribe and our current section below. associated with the following categories and future conservation partnerships The intent of the final economic of activity: (1) Residential and with other tribes, we determined the analysis (FEA) is to quantify the commercial development, and (2) flood significant benefits of exclusion economic impacts of all potential damage reduction. Baseline impacts conservation efforts for Casey’s June outweigh the benefits of inclusion in the include the potential economic impacts critical habitat designation. beetle; some of these costs will likely be of all actions relating to the In summary, we find that excluding incurred regardless of whether we conservation of the Casey’s June beetle, Agua Caliente Band of Cahuilla Indians designate critical habitat (baseline). The including costs associated with sections tribal trust reservation lands from this economic impact of the final critical 7, 9, and 10 of the Act. Baseline impacts final critical habitat will preserve our habitat designation is analyzed by also include the economic impacts of partnership and may foster future comparing scenarios both ‘‘with critical protective measures taken as a result of habitat management and species habitat’’ and ‘‘without critical habitat.’’ other Federal, State, and local laws that conservation plans with the Tribe and The ‘‘without critical habitat’’ scenario aid habitat conservation in the area with other tribes now and in the future. represents the baseline for the analysis, evaluated in the DEA. In other words, These partnership benefits are considering protections already in place baseline impacts include those impacts significant and outweigh the for the species (e.g., under the Federal associated with the listing of the species insignificant additional regulatory and listing and other Federal, State, and and not associated with critical habitat. local regulations). The baseline, educational benefits of including these Incremental impacts are those potential therefore, represents the costs incurred lands in final critical habitat for Casey’s future economic impacts of regardless of whether critical habitat is June beetle. conservation actions relating to the designated. The ‘‘with critical habitat’’ designation of critical habitat; these Exclusion Will Not Result in Extinction scenario describes the incremental impacts would not be expected to occur of the Species—Tribal Lands impacts associated specifically with the without the designation of critical designation of critical habitat for the habitat. We determined that the exclusion of species. The incremental conservation Baseline economic impacts are those 11 ac (4 ha) of tribal trust reservation efforts and associated impacts are those impacts that result from listing and lands from the designation of Casey’s not expected to occur absent the other conservation efforts for Casey’s June beetle critical habitat will not designation of critical habitat for the June beetle. Conservation efforts related result in extinction of the species. The species. In other words, the incremental to development activities constitute the jeopardy standard of section 7 of the Act costs are those attributable solely to the majority of total baseline costs to areas and routine implementation of designation of critical habitat above and proposed for critical habitat conservation measures through the beyond the baseline costs; these are the (approximately 86 percent). Impacts to section 7 process due to Casey’s June costs we consider in the final flood control activities compose the beetle occupancy and protection designation of critical habitat. The remaining approximately 12 percent of provided by the Indian Canyons Master analysis looks at baseline impacts impacts. Total future baseline impacts Plan provide assurances that this expected to occur due to listing and are estimated to be $19,242,100 in species will not go extinct as a result of forecasts both baseline and incremental present value terms using a 7 percent excluding these lands from the critical impacts likely to occur with the discount rate over the next 20 years habitat designation. Therefore, based on designation of critical habitat. (2010 to 2029) in the areas proposed as the above discussion the Secretary is The FEA also addresses how potential critical habitat. exercising his discretion to exclude economic impacts are likely to be Approximately 100 percent of approximately 11 ac (4 ha) of tribal trust distributed, including an assessment of incremental impacts attributed to the reservation lands managed by the Agua any local or regional impacts of habitat critical habitat designation are expected Caliente Band of Cahuilla Indians from conservation and the potential effects of to be related to development activities. this final critical habitat designation. conservation activities on government The FEA estimates total potential

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incremental economic impacts in areas owned or managed by the Department of designation. All comments are proposed as critical habitat over the Defense, and, therefore, we anticipate addressed in the following summary next 20 years (2010 to 2029) to be no impact on national security. and incorporated into the final rule as $6,173,340 in present value terms using Consequently, the Secretary is not appropriate. a 7 percent discount rate, equivalent to exercising his discretion to exclude any Peer Review $582, 320 in annualized economic areas from this final designation based impact over the analysis timeframe. on impacts on national security. In accordance with our peer review This value is based on an assumption of policy published on July 1, 1994 (59 FR Summary of Comments and total avoidance of designated acres and 34270), we solicited expert opinions Recommendations thus represents the upper-bound from six knowledgeable individuals potential cost for each project. As such, We requested written comments from with scientific expertise that included it likely overstates the expected absolute the public and contacted appropriate familiarity with the species, the cost of future actions to protect critical Federal, State, and local agencies; tribes; geographic region in which the species habitat. scientific organizations; and other occurs, and conservation biology The FEA considers both economic interested parties and invited them to principles pertinent to the species. We efficiency and distributional effects. In comment on the proposed rule to list received responses from five peer the case of habitat conservation, Casey’s June beetle as endangered and reviewers who provided additional efficiency effects generally reflect the designate critical habitat during two information, clarifications, and ‘‘opportunity costs’’ associated with the comment periods. The first comment suggestions. commitment of resources to comply period associated with the publication We reviewed all comments received with habitat protection measures (such of the proposed rule (74 FR 32857) from the peer reviewers for substantive as lost economic opportunities opened on July 9, 2009, and closed on issues and new information regarding associated with restrictions on land September 8, 2009. We also requested the listing and designation of critical use). The FEA also addresses how comments on the proposed critical habitat for Casey’s June beetle. The peer potential economic impacts are likely to habitat designation and associated draft reviewers generally concurred with our be distributed, including an assessment economic analysis during a comment methods and conclusions and provided of any local or regional impacts of period that opened March 31, 2010, and additional information, clarifications, habitat conservation and the potential closed on April 30, 2010 (75 FR 16046). and suggestions to improve the final effects of conservation activities on We did not receive any requests for a critical habitat rule. Peer reviewer government agencies, private public hearing, with the exception of comments are addressed in the businesses, and individuals. The FEA one that specified it be conducted only following summary and incorporated estimates lost economic efficiency in the event their property was not into the final rule as appropriate. excluded from critical habitat (see associated with residential and Peer Reviewer Comments commercial development and public response to Comment 18 below). During projects and activities, such as the comment periods, we requested all Comment 1: All five peer reviewers economic impacts on water interested parties submit comments or expressed general and specific support management and transportation information related to the proposed of our proposal to list Casey’s June projects, Federal lands, small entities, revisions to critical habitat, including beetle and designate critical habitat. and the energy industry. Decision- (but not limited to) the following: Unit Support of the proposed rule includes makers can use this information to boundaries; species occurrence the following: assess whether the effects of the critical information and distribution; land use (a) The first peer reviewer stated that habitat designation might unduly designations that may affect critical the peer reviewer’s collection data burden a particular group or economic habitat; potential economic effects of the support our estimated population sector. proposed designation; benefits distribution. The first peer reviewer Our economic analysis did not associated with critical habitat further concluded: (1) The cooler, more identify any disproportionate costs that designation; areas proposed for moist, and wind-protected environment are likely to result from the designation. designation and associated rationale for found in the southwestern corner of Consequently, the Secretary has the non-inclusion or considered Palm Springs is a required component determined not to exercise his exclusion of these areas; and methods of suitable habitat; (2) Casey’s June discretion to exclude any areas from this used to designate critical habitat. beetle daily and seasonal activity is designation of critical habitat for Casey’s During the first comment period, we dependent on specific temperature and June beetle based on economic impacts. received 11 comments addressing the wind conditions; and (3) a single night A copy of the FEA with supporting proposed listing and critical habitat ‘‘or more’’ (unspecified) of negative documents may be obtained by designation: 5 from peer reviewers, 5 survey results are not sufficient to contacting the Carlsbad Fish and from public organizations or demonstrate absence. Wildlife Office (see ADDRESSES) or by individuals, and one from a Native (b) The second peer reviewer stated downloading from the Internet at http:// American tribe. During the second ‘‘Given the natural history of the beetle www.regulations.gov. comment period, we received 14 and the accelerated fragmentation, comments addressing the proposed modification, and loss of habitat, this Exclusions Based on National Security listing and critical habitat designation species is in imminent danger of Impacts and the DEA. Of these latter comments, extirpation in part of its currently Under section 4(b)(2) of the Act, we 3 were from Native American tribes and known range, and possibly extinction.’’ consider whether there are lands owned tribal members, and 11 were from The peer reviewer agreed that Factor A or managed by the Department of public organizations or individuals. threats likely negatively affect all life Defense (DOD) where a national security We reviewed all comments we stages of Casey’s June beetle throughout impact might exist. In preparing this received from the peer reviewers and the year, and generally agreed with our final rule, we have determined that the the public for substantive issues and analyses for threat Factors B, C, and D. lands within the designation of critical new information regarding Casey’s June This reviewer further stated that even habitat for Casey’s June beetle are not beetle listing and critical habitat the slightest disturbance to relatively

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small upland habitat areas is likely to persistence requires the highest level of these threats should be the subject of have a significant and lasting effect on protection possible under the law. The future research (see below). the patchily distributed sedentary reviewer further noted our methods to Comment 2: Four peer reviewers females and larvae. The second peer determine what lands meet the supplied information or opinions reviewer also expressed the opinion that definition of critical habitat seem robust regarding species’’ biology, and some the central portion of Palm Canyon enough to capture lands where suggested associated edits or revisions Wash is unlikely to support probability of long-term persistence of to proposed critical habitat. reproduction and larval development, the species is highest. (a) The first peer reviewer agreed that and at best is used by males for Our Response: We appreciate the peer additional studies are needed to movement. The peer reviewer believed reviewers’’ critical review. Because all determine the effects of flooding on it is prudent and biologically sound to peer reviewers generally agreed on the Casey’s June beetle within its critical treat all of the known occurrences of validity of our methods and habitat. The reviewer also believes one Casey’s June beetle as a single determinations, we believe the proposed of the greatest threats posed by population, and that the basic soil and listing and critical habitat designation is developed areas adjacent to critical vegetation types associated with Casey’s well-supported. With regard to the habitat is artificial lighting in habitat June beetle are appropriate PCEs. specific recommendation to include corridors during Casey’s June beetle Finally, the peer reviewer indicated that Agua Caliente Band of Cahuilla Indians flight season because potentially large all Casey’s June beetle habitat proposed reservation lands in critical habitat, we numbers of males are drawn away from as critical habitat currently under the received some new information females and die before they can mate. jurisdiction of the Agua Caliente Band indicating some areas proposed as The peer reviewer stated that artificial of Cahuilla Indians met the definition of critical habitat on the reservation do not light sources could lead to unnatural concentrations of Casey’s June beetle critical habitat. meet the definition of critical habitat. occupancy that makes them more (c) The third peer reviewer believed We further considered the possible vulnerable to catastrophic events. The our case for listing was compelling. The benefits of including and excluding reviewer also stated that based on the reviewer expressed concern that Casey’s Agua Caliente Band of Cahuilla known larval habits of other members of June beetle listing appears overdue Indians’’ tribal trust reservation lands the tribe , Casey’s June because the species is found in such a that met the definition of critical beetle larvae most likely feed on roots. small area with rapidly shrinking habitat. Because benefits provided by The peer reviewer noted all surveys for available habitat, also noting that this critical habitat designation in this species is arguably the most habitat- Casey’s June beetle have occurred in instance are very similar to the benefits restricted scarab beetle in the United undeveloped upland habitats, and their of listing, and in some respects would States. The reviewer agreed that the observation of a small number of beetles be indistinguishable from benefits continued survival of the species cannot along State Route 111 one night 30 years provided by listing and existing depend on occupancy at a single ago leads the peer reviewer to think regulations (to minimize the benefits of locality (such as Smoke Tree Ranch) there might still be small pockets of inclusion), we find that excluding Agua because of the possibility of stochastic occupancy that persist within some of Caliente Band of Cahuilla Indians tribal events eliminating local occupancy. the more developed areas of Palm trust reservation lands from this final This reviewer argued that because the Springs west and south of State Route critical habitat will preserve our continued survival of Casey’s June 111. They believe that knowing if and beetle depends on persistence in partnership with the Tribe and foster where these pockets exist would help multiple locations, remaining available future development of habitat biologists understand Casey’s June habitat meets the definition of critical management plans with Agua Caliente beetle tolerance of landscaping and habitat. Band of Cahuilla Indians and other other land disturbance. The peer (d) The fourth peer reviewer agreed tribes. Furthermore, we determined that reviewer suggested future surveys the present distribution of Casey’s June exclusion of tribal trust reservation should include storefronts, pools, and beetle is well-known based on lands would not result in the extinction other established light sources within numerous formal and informal surveys of the species. Therefore, we are the urban landscape. The peer reviewer conducted during the past several years excluding 11 ac (4 ha) of tribal trust also suggested changing the wording of by qualified biologists. The reviewer reservation (i.e., non-fee, non-allotment) PCE 2 (74 FR 32874; July 9, 2009) further stated that because of its present lands from this final critical habitat because Casey’s June beetle continues to restricted distribution and imminent designation (see also Comment 7 occupy a few highly disturbed, weedy, threats to remaining habitat, Casey’s below). and even previously graded or disked June beetle is one of the most imperiled We agree with the third peer fields along State Route 111. They species of , and probably the reviewer’s statement that continued asserted that desert scrub or wash most endangered scarab beetle. survival of the species cannot depend vegetation is not a requirement for (e) The fifth peer reviewer stated the on occupancy at a single locality (such Casey’s June beetle presence and current distribution of Casey’s June as Smoke Tree Ranch) because of the survival. Finally, the peer reviewer beetle was well-documented in the possibility of stochastic events expressed the opinion that given the proposed rule, as was its soil type eliminating local occupancy. We believe extent of the known population, association and land use trends within the species may be threatened by conservation of anything less than the species’’ range. The reviewer noted natural or anthropogenically influenced proposed critical habitat would likely that given Casey’s June beetle’s factors, such as climate change, result in eventual extinction of the extremely limited area of occurrence increased intensity and frequency of species. and ongoing habitat loss, it clearly ranks scouring events in wash habitat, and (b) The second peer reviewer as Critically Endangered under the small population size. However, we emphasized the most important single current International Union for the note that no species-specific, scientific, factor for continued species’’ survival is Conservation of Nature and Natural published models describing or that female beetles are flightless. Resources (IUCN) criteria; therefore, predicting the magnitude of these Introduction of females would be the Casey’s June beetle’s long-term threats have yet been conducted, and only way to reestablish the species in

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isolated suitable areas where occupancy on individual mortality and movement; Sonoran vegetation types and disturbed has been eliminated; therefore, locations (4) delineation and protection of habitat (as long as they were not isolated where breeding females are currently breeding areas; and (5) larval diet. As by development and unlikely to return found must be protected. The peer discussed in the proposed rule, one to their natural state). In the proposed reviewer also stated persistence of the expert particularly familiar with the rule we specified PCE 2 to include species at Smoke Tree Ranch (despite biology and taxonomy of the genus ‘‘Intact, native Sonoran (Coloradan) the annual death of many males due to Dinacoma stated Casey’s June beetle desert scrub vegetation and native lighting) indicates the number of males ‘‘* * * exhibits no specific host desert wash vegetation * * *.’’ In this that survive has been sufficient to preferences and larvae likely consume final rule we use the more inclusive support continued reproduction; any available organic resources— language of ‘‘predominantly native however, such a chronic drain on the including stratified detritus— desert vegetation.’’ number of males could eventually have encountered within the alluvial habitat’’ Regarding the fourth peer reviewer’s long-term effects on species’’ survival. (LaRue pers. comm. 2006). Furthermore, recommendation to include additional (c) The third peer reviewer stated that Hill and O‘Maly (2009, p. 1) recently areas as critical habitat, we carefully potential Casey’s June beetle habitat is found that the frass pellets of larvae of considered all patches of apparently best characterized as any open space another endangered June beetle (Mount suitable habitat within the species’ still existing within its former known Hermon June Beetle, Polyphylla historical (versus current) range for distributional boundaries. They further barbata) contained a variety of plant proposal as critical habitat, even areas of clarified that they believe the species’ species and fungi material, suitable habitat where reintroduction of known distribution is defined by female demonstrating that they are not beetles would be necessary for them to flightlessness and factors of soil type specialist feeders but are microhabitat be utilized (see Criteria Used To Identify which are historical biogeographic specialists. Therefore, while they will be Critical Habitat section). We factors that may never be fully helpful in prioritizing research emphasized the importance of upland understood. objectives, we do not believe any of the sites least likely to be subject to periodic (d) The fourth peer reviewer stated peer reviewers’ comments on research flooding and explained their value as that because Casey’s June beetle has priorities require revisions to text in the refugia (see Background section of experienced the loss of 97 percent of its New Species Information section above. proposed rule). However, the amount of original habitat, they recommend We agree with the first peer reviewer remaining undeveloped land within the including additional isolated patches of that more surveys should occur to species’ historical range that meets the suitable habitat outside the current validate our current knowledge of definition of critical habitat is extremely known range in critical habitat where habitat occupancy. Most surveys that limited. All areas designated as critical reintroduction could potentially have occurred in the past have had habitat are within likely flight distance maintain population size in the variable methodologies and durations, of occupied habitat for male Casey’s ‘‘medium term.’’ They suggested and focused almost exclusively on June beetles (considered occupied at the including habitat patches located on attracting males in flight from an population level); as a result several upland sites above floodplain areas unknown distance to light traps. We relatively small non-contiguous habitat vulnerable to periodic washout in will develop recommendations areas without occupancy records were critical habitat. regarding where and how surveys also designated as critical habitat. No Our Response: Regarding the first peer should be done, and will likely require unoccupied habitat patches outside the reviewer’s concern about artificial 10(a)(1)(A) recovery permit holders to likely flight range of adult males were lighting, we understand that artificial follow a survey protocol that maximizes clearly large enough or otherwise lighting likely has some negative impact the likelihood of male and female suitable to support an independent on Casey’s June beetle and therefore, Casey’s June beetle detection at population based on our current should be addressed though occupied sites. We will also continue to knowledge of the species; therefore, we management actions to avoid take in facilitate and fund surveys outside of did not determine that any of these occupied habitat (see E. Other Natural designated critical habitat (Service 2009, areas met the definition of critical or Manmade Factors Affecting the p. 3) and encourage biologists and the habitat. Continued Existence of the Species public to examine urban light sources Comment 3: One peer reviewer section above). Artificial lighting and report any observations of male emphasized they felt it is important for attracts only males in flight, often Casey’s June beetles to us for analysis. the Service to work closely with the resulting in their death, but not We considered the first peer Agua Caliente Band of Cahuilla Indians necessarily impacting the abundance of reviewer’s recommendation to change to develop a management and public female and immature individuals. proposed PCE 2 to not include desert education plan for the species and for Artificial lighting has no effect on the scrub or wash vegetation to allow for habitat on tribal reservation lands. The distribution of flightless females, and incorporation of disturbed, weedy, and reviewer also stated development and this life stage determines the spatial previously graded or disked fields. In implementation of an overall concentration of all other life stages. We order to confirm the validity of this management plan that simultaneously agree that unnatural light sources recommendation, we reviewed satellite provides guidance for the restoration attracting beetles into development imagery of the sites where occupancy and enhancement of existing critical adjacent to upland habitat poses at least was recently documented that best fit habitat and educates citizens about the a moderate threat to Casey’s June beetle. the description of ‘‘disturbed, weedy, importance of conserving Casey’s June We agree with the all the peer and previously graded or disked fields’’ beetle is crucial to the species’ survival. reviewers that the following issues and noted the presence or absence of The peer reviewer asserted that a public should be research priorities for this desert scrub or wash vegetation. We also education program must be developed species’ recovery: (1) The impact of obtained field survey information along with habitat management guides male mortality on population regarding habitat conditions (Hawks and plans. abundance and fitness; (2) species’ pers. comm. 2010). We determined the Our Response: We agree that occupancy patterns within Palm Canyon peer reviewer had raised a valid point management and conservation planning Wash; (3) the effects of periodic flooding and edited PCE 2 to include other and public outreach are important

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aspects of endangered species recovery eats or how long it remains in the soil, sources of information as the basis for planning. As stated above, we believe and the species’ distribution may be our recommendations. We acknowledge our continuing coordination with the significantly greater than estimated in the Tribe’s concern that little Agua Caliente Band of Cahuilla Indians the proposed rule. They argued information is known about Casey’s should provide sufficient future specifically that soils named in the PCEs June beetle life habits. While lifespan education, facilitate development of are widely distributed throughout the and diet information will help inform additional management plans (beyond Coachella Valley where more Casey’s species recovery actions, we believe the those already in existence on the June beetles might be found and are not status of the species is clear without this reservation), and help promote Casey’s appropriate to use as PCEs. They further knowledge. Species’ decline and habitat June beetle conservation on tribal stated there has been no systematic loss, as well as the imminence of threats reservation lands. In the Spotlight effort to locate Casey’s June beetle to species’ habitat and survival for Species Action Plan (Service 2009, p. 2), elsewhere in the Coachella Valley or Casey’s June beetle have been clearly we state that in order to reduce or desert areas further south, and that they demonstrated (see Summary of Factors eliminate threats to Casey’s June beetle know of a Casey’s June beetle captured Affecting the Species section and we will need to determine current ‘‘well outside’’ the proposed critical Comment 1 above). Furthermore, the occupancy (presence or absence) within habitat and another report of what may need for listing is determined ‘‘solely on portions of the population distribution be a Casey’s June beetle from a site near the basis of the best scientific and (which was done in 2010, see New the City of Yuma, Arizona. The Tribe commercial data available,’’ even Species Occupancy and Habitat concluded the Service needs to conduct though biological information is Information above), conserve occupied or fund new surveys to determine the typically incomplete for rare species in habitat, and gain scientific information species’ range before listing is justified. need of protection. Therefore, we required to inform recovery criteria. The Tribe claimed no recent surveys believe our determination that Casey’s Actions recommended in the Spotlight have detected the species south of June beetle is in danger of extinction Species Action Plan (Service 2009, p. 3) Bogert Trail or west of South Palm throughout all of its range is supported include developing agreements with Canyon Drive, and indicated they by the best available scientific and landowners to conserve habitat. We will believe unoccupied land should, commercial information. therefore, not be designated as critical continue to work with all stakeholders, We respectfully disagree with the habitat. The Tribe further indicated they including the Agua Caliente Band of Tribe’s comment that Casey’s June believe the data on which the proposed Cahuilla Indians, to conserve habitat, beetle has a wider distribution than conduct public outreach, and recover rule was based should have been subject to peer review prior to publication of estimated. As required by section Casey’s June beetle. 4(b)(1)(A) of the Act, the Secretary shall Comment 4: One peer reviewer had the draft rule. Finally, the Tribe stated that in determine whether any species is an specific text edit recommendations. endangered or a threatened species They suggested changing the word drawing the conclusion that existing tribal regulatory structure is not solely on the basis of the best scientific ‘‘considered’’ under the Life History and adequate to protect Casey’s June beetle, and commercial data available to him Habitat section on page 32858 of the the Service did not consider the Tribe’s after conducting a review of the status proposed rule to ‘‘known to be,’’ active role in regulating land use and of the species. Two researchers have because it is a fact that the females are development. They cited the Indian undertaken recent and relatively flightless, and the word ‘‘family’’ on Canyons Master Plan and tribal widespread assessments of Casey’s June page 32859, line 1 under Factor A, to development zoning that apply to beetle occupancy and habitat ‘‘genus’’ (74 FR 32857; July 9, 2009). reservation lands south of Acanto Drive. distribution (Hovore 1997a, p. 1–3; Our Response: We agree with the Our Response: A species may be 1997b, p. 1–3; 1997c, p. 2–17; Cornett suggested text and taxonomic determined to be endangered or 2004, p. 8). Both studies generally agree corrections and made edits to the New threatened due to one or more of the with our conclusions regarding the Species Information above and the five factors described in section 4(a)(1) limited distribution of Casey’s June Factor A discussion in the Summary of of the Act (see Summary of Factors beetle habitat, and both concluded the Factors Affecting the Species section, Affecting the Species section above). As distribution was more restricted than we above. required by section 4(b)(1)(A) of the Act described in our proposed rule (Hovore Comments From States the Secretary shall determine whether 1997b, p. 1–3; 1997c, p. 2–17; Cornett any species is an endangered or a 2004, p. 13). A species expert has Section 4(i) of the Act states, ‘‘the threatened species solely on the basis of examined specimens and populations of Secretary shall submit to the State the best scientific and commercial data Dinacoma species found in locations as agency a written justification for his available to him after conducting a proximal as Joshua Tree National Park failure to adopt regulations consistent review of the status of the species. and the City of Hemet and described with the agency’s comments or Further, our Policy on Information them as different species (LaRue pers. petition.’’ We did not receive any Standards Under the Endangered comm. 2006). We are also aware of a comments from the State regarding the Species Act (published in the Federal collection (one individual) by Cornett listing of Casey’s June beetle or the Register on July 1, 1994 (59 FR 34271)), (Anderson, Service, pers. comm. 2009) designation of its critical habitat. the Information Quality Act (section 515 that resembled Casey’s June beetle from Public Comments of the Treasury and General a site near the City of Yuma, Arizona. Government Appropriations Act for We have communicated with the Comments From Tribes Fiscal Year 2001 (Pub. L. 106–554; H.R. collector, and they confirmed it Comment 5: The Agua Caliente Band 5658)), and our associated Information resembles Casey’s June beetle. However, of Cahuilla Indians (Tribe) asserted Quality Guidelines provide criteria, they have not determined the taxonomic there is not enough information known establish procedures, and provide identity of this specimen, nor have they regarding the biology of the species or guidance to ensure our decisions are had taxonomic experts examine it its distribution to justify listing. They based on the best scientific data (Anderson, pers. comm. 2009; Cornett, argued it is not known what the species available. We used primary and original James Cornett Biological Consultants,

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pers. comm. 2009a, 2009b). We do not best available scientific and commercial the data we use and the biological believe this specimen will be identified data. implications of those data with species as a Casey’s June beetle because it was The Tribe’s comment that no recent experts who collect it in a scientific collected far from known collection surveys have detected the species south context as needed prior to publication of locations, and in an area of Bogert Trail or west of South Palm the proposed rule. We believe we topographically different from areas Canyon Drive is not supported by followed the best scientific practices in known to support Casey’s June beetle available occupancy data. Most recently, writing the proposed and final rules. (see Food, Water, Air, Light, Minerals, or David Hawks (pers. comm. 2010; 2011a; Finally, regarding the Tribe’s Other Nutritional or Physiological 2011b) detected numerous adult male assertion that existing tribal regulatory Requirements and Sites for Breeding, and female Casey’s June beetles in Palm structure is adequate to protect Casey’s Reproduction, and Rearing (or Canyon Wash south of Bogert Trail and June beetle, we subsequently considered Development) of Offspring that are south of Acanto Drive (south of Acanto the Tribe’s active role in regulating land Protected from Disturbance sections Drive these observations were made use and development via the Indian above for further discussion). Most incidentally without the aid of light Canyons Master Plan and tribal recently, David Hawks conducted a traps), indicating this area is a current development zoning (as articulated by survey in 2010 funded by the Service population density center (see New the Master Plan) that apply to specifically focused on surveying Species Information section above for reservation lands south of Acanto Drive. suitable soils north (just south of the more information). In 2004, Cornett We did not determine these documents Chino Cone in the City of Palm Springs) (2004, p. 8) detected Casey’s June beetle were adequate to address the threats and south (past Palm Desert as far as La south of Bogert Trail, north of Acanto placing the species in danger of Quinta) of the current known species Drive, and midway between South Palm extinction and, therefore, meeting the distribution. Hawks did collect Casey’s Canyon Drive and Palm Canyon Wash. definition of an endangered species (see June beetles outside the current known In 2001, Simonsen-Marchant (2001, p. A. The Present or Threatened range (see New Species Information 6) detected Casey’s June beetles south of Destruction, Modification, or section above for more information), but Bogert Trail and north of Acanto Drive Curtailment of the Species’ Habitat or only within a patch of remnant wash in upland habitat adjacent to Palm Range section above). channel just outside of proposed critical Canyon Wash; this area remains Comment 6: The Tribe asserted that habitat and still within the City of Palm undeveloped. It is true no Casey’s June critical habitat should include only the Springs (Hawks pers. comm. 2010). beetles have been recently detected west minimum amount of habitat needed to of South Palm Canyon Drive, and the avoid short-term jeopardy to the species. Regarding the Tribe’s assertion that sparse remaining suitable soils are The Tribe further stated that designation we used widely distributed soil types to heavily degraded. Furthermore, two of critical habitat on their reservation is inappropriately define critical habitat, separate surveys in 2010 (Hawks, pers. not needed because they are required to we do not agree. To clarify, Casey’s June comm. 2011; Cornett 2010, pp. 10 and conduct section 7 consultations for beetle critical habitat is first defined by 14) in areas adjacent to and west of many activities that might potentially other environmental factors (such as soil South Palm Canyon Drive were negative pose a threat to the species. moisture and wind conditions) unique (see New Species Information section Our Response: As required by section to the base of the San Jacinto and Santa above). Therefore, based on the best 4(b)(1)(A) of the Act, we use the best Rosa mountains (see Food, Water, Air, available data we believe the majority of scientific and commercial data available Light, Minerals, or Other Nutritional or lands proposed for designation south of to designate critical habitat (see Critical Physiological Requirements section and Bogert Trail are occupied and meet the Habitat Background and Criteria Used our response to Comment 1 above). We definition of critical habitat. However, To Identify Critical Habitat above). identify critical habitat by first defining lands adjacent to and west of South Critical habitat is defined as the specific the area of occupancy or potential Palm Canyon Drive approximately west areas within the geographical area occupancy (which is by default limited of Via Fortuna, and the southernmost occupied by a species, at the time it is to those areas where the unique non-contiguous patches of CdC soil listed, on which are found those environmental factors mentioned above within Palm Canyon, are not occupied physical or biological features essential are found), then second by ‘‘focusing in nor appear to be occupiable and to the conservation of the species and on the principal biological or physical therefore do not meet the definition of which may require special management constituent elements (primary critical habitat because they would not considerations or protection, and constituent elements) within the contribute to the conservation of the specific areas outside the geographical defined area’’ (see Critical Habitat species (see Summary of Changes From area occupied by a species at the time Background section above). PCEs are the 2009 Proposed Critical Habitat Rule, it is listed that are essential for the only one component of the definition of above). conservation of the species. critical habitat (see Critical Habitat With regard to the Tribe’s question of ‘‘Conservation’’ means all methods and Background section above). Therefore, our peer review practices, the purpose procedures necessary to bring any based on the best scientific information of a proposed rule is to allow peer and endangered or threatened species to the available regarding species’ taxonomy public review of data and conclusions point at which the measures provided and distribution, it is likely the species drawn from the data, so that we can under the Act are no longer necessary was not historically distributed beyond make appropriate adjustments prior to (the recovery standard, see Critical the eastern San Jacinto Mountain publication of the final rule. It is our Habitat Background section above). foothills outside of the City of Palm policy that peer review be conducted Therefore, critical habitat is not defined Springs. We will continue to during the public comment period as the minimum amount of habitat recommend and facilitate surveys to (Policy for Peer Review in Endangered needed to avoid short-term jeopardy to refine our knowledge of the species’ Species Act Activities, July 1, 1994, 59 the species. Whether or not section 7 distribution, but we believe our current FR 34270); we can not allow outside consultation is required is not a factor biological conclusions and the need to review of pre-decisional internal draft in determining those areas that meet the list Casey’s June beetle as endangered proposed rules. Nevertheless, we do definition of critical habitat. However, under the Act are well supported by the commonly, and did in this case, discuss when we analyze the benefits of

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including versus excluding an area as We find that existing regulations and Our Response: The commenters gave critical habitat, we do consider, among listing provide habitat protection of several reasons for why they believed other relevant factors, whether the tribal trust reservation lands and are their lands should not be designated as regulatory benefit of designation may be largely redundant with protections that critical habitat. We address their reasons largely redundant with listing. would be provided by critical habitat in this response in the order presented. Comment 7: The Tribe stated that if designation (minimizing the benefits of We could not find the quoted language the Casey’s June beetle is listed, the inclusion), and we find that excluding regarding soil type in our proposed rule Service should at least find the benefits Agua Caliente Band of Cahuilla Indians to which objection was made. of excluding ‘‘the lands of the Agua tribal trust reservation lands from this Nonetheless, we understand the Caliente Indian Reservation’’ outweigh final critical habitat will help preserve comment did not agree with the soil the benefits of including them in critical our partnership with the Tribe and type associations articulated in the habitat. The Tribe cited multiple foster future development of habitat PCEs. We believe language in the text of regulatory and tribal sovereignty management plans with Agua Caliente this rule clearly reflects the strong documents including Secretarial Order Band of Cahuilla Indians and other relationship of soil type (PCE 1) to 3206 (June 5, 1997), Executive Order tribes (maximizing the benefits of habitat suitability (see Primary 13175 (65 FR 67249; November 9, 2000), exclusion). Furthermore, we determined Constituent Elements for Casey’s June and two other critical habitat rules that exclusion of tribal trust reservation Beetle, and Comment 1 above). where tribal land was excluded based lands would not result in the extinction Historical occupancy data (Hovore 1997, on partnerships in support of their of the species. Therefore, we are p. 4; Hovore 2003, p. 4), 2004 survey request for exclusion. The Tribe stated excluding 11 ac (4 ha) of tribal trust data (Cornett 2004, p. 8), 2010 survey the ‘‘relevant thrust’’ of the cited reservation (i.e., non-fee, non-allotment) data (Hawks pers. comm. 2010, 2011a Federal enactments is that no agency of lands from this final critical habitat and b), and soil maps indicate some the Department of the Interior will designation. See Tribal Reservation properties south of Acanto Drive fall inflict regulatory, economic, or Lands under Exclusions, above, for within currently occupied Casey’s June governmental burdens on tribes and further discussion. beetle habitat. Furthermore, their members when adequate Comment 8: Two members of the documented occupancy of a particular alternatives exist. Tribe who own allotted land in site is not required for land to meet the Our Response: We considered the proposed critical habitat south of definition of critical habitat; however, if Tribes’ request that reservation lands be Acanto Drive, north and adjacent to the particular site is within the excluded from critical habitat based on South Palm Canyon Drive commented geographical area occupied by the partnership benefits and the existence of that: (1) The reasoning that the soil type species at the time of listing, it must adequate alternatives to the regulatory, ‘‘lends itself to potential habitat’’ is not support physical or biological features economic, and governmental burdens of sufficient scientific evidence their land essential to the conservation of the designating Casey’s June beetle critical meets the definition of critical habitat species (see Critical Habitat habitat. The Act specifies that the and sounds speculative; (2) their Background, above). Secretary may exclude an area from properties are not occupied because We understand the first two critical habitat if he determines that the surveys of one commenter’s parcel were commenters’ concern that a relatively benefits of such exclusion outweigh the negative, and the second commenter’s large amount of proposed critical habitat benefits of specifying such area as part parcel is adjacent to the surveyed falls within the Tribe’s reservation. It is of the critical habitat, unless he parcel; (3) the proposed designation not our intent to designate critical determines, based on the best scientific would affect tribal reservation land in a habitat in a disproportionate manner. data available, that the failure to disproportionate manner since over 60 Rather, the distribution of lands that designate such area as critical habitat percent of the land identified is on the meet the definition critical habitat on will result in the extinction of the reservation; and (4) their land is too far tribal land is a result of past biological species. In making that determination, from the wash to meet the definition of and social factors we cannot change. the legislative history is clear that the critical habitat. The commenters However, based on new scientific Secretary has broad discretion regarding submitted a tract map and two letters information we determined these which factor(s) to use and how much from a consultant in support of their commenters’ lands did not meet the weight to give to any factor (see statements. definition of critical habitat, and Exclusions section above). Another apparent tribal allottee therefore they are not included in this We considered the possible benefits of expressed similar concerns. The critical habitat designation for that including and excluding Agua Caliente commenter made the following reason (see New Species Information Band of Cahuilla Indians’ tribal trust statements with regard to their property: and Criteria Used To Identify Critical reservation lands that met the definition (1) Surveys by James Cornett were Habitat sections above). We further of critical habitat. For our exclusion negative; (2) in order to occupy on-site excluded all tribal trust reservation land analysis we considered our partnership habitat, Casey’s June beetles would have from critical habitat, thus reducing the with the Tribe and, therefore, analyzed to travel a distance greater than 1 mi amount of reservation designated as the benefits of including and excluding (2 km) over several concrete dams and critical habitat (see Tribal Reservation those lands under the sovereign control a concrete dike; (3) 75 percent is rock Lands under Exclusions above). of the Tribe (tribal trust reservation or hillside, and 10 to 15 percent of the Therefore, we believe these lands) that met the definition of critical remainder is imported material behind commenters’ concerns have been habitat. Because Tribe-owned fee, a 100-year flood wall; and (4) Riverside addressed to the extent appropriate. private fee, or allotted lands are County FCWCD periodically removes The third commenter stated their potentially subject to other jurisdictions several feet of material from behind the property is not occupied and is situated and not under the sovereign control of flood wall to maintain the wash depth. such that Casey’s June beetle the Tribe, we did not include these They concluded that for the above immigration is precluded. In order to lands in our exclusion analysis (see reasons their property should not be assess the validity of these comments Agua Caliente Band of Cahuilla Indians designated as Casey’s June beetle critical we would need to know the exact under Tribal Reservation Lands, above). habitat. location of the commenter’s property

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and details of any surveys conducted. beetles are crepuscular, meaning they maintenance yard and the tennis court, We were not able to determine the are active at dusk, not in the early and consistent species observations in a precise location of the commenter’s morning (Hovore 2003, p. 3). Although dry wash characterized as Sonoran property based on the information it is commonly called a ‘‘June’’ beetle, creosote bush scrub and desert wash provided. Furthermore, the commenter peak abundance for this species vegetation, portions of which were did not provide survey documentation, typically occurs in April and May, not disturbed); and (4) preliminary results nor a date surveys were conducted. during the summer months of June and from spring 2010 surveys conducted by Therefore, we were not able to assess July (Cornett 2004, pp. 4, 18–26). The James Cornett confirm an association the validity of the commenter’s timing of the first two commenters’ with ‘‘non-native tamarisk’’ (submitted statements with regard to occupancy. observations indicates the beetles they an email communication from James The third commenter generally observed were a species of common Cornett). They concluded the species’ described their property as not June beetle in the genus Phyllophagia biological and physical requirements are containing the PCEs. All areas proposed (see Cornett 2004, p. 4–5). Additionally, so poorly understood that proposed as Casey’s June beetle critical habitat none of the commenters provided any PCE 2 is not valid, and data contradict were defined as the specific areas substantiating information to support the assumption habitat disturbance within the geographical area occupied the comment they had observed Casey’s threatens the species’ continued by the species on which are found the June beetles, such as identifying survival; therefore, the proposed critical physical or biological features essential characteristics of specimens, or habitat designation is arbitrary and to the conservation of the species (see experience on which their ability to capricious. They further commented Critical Habitat Background, above). identify Casey’s June beetle was based. this ‘‘fundamental legal flaw’’ renders Without knowing exactly where the Casey’s June beetle surveys were the proposed listing determination in property is located, we are not able to conducted in 2010, during the flight violation of the Act’s best available make a determination on the season in potential habitat in the areas scientific evidence standard and is, characteristics of the site. However, we described by the third commenter therefore, also arbitrary and capricious. based our designation partly on the soil (vicinity of Tahquiz Creek in western The third commenter stated listing type and landscape-level characteristics foothills of the City of Palm Springs); was not warranted because it is not clear we determined are important for the however, no Casey’s June beetles were what actions would be required to beetle and consider all areas occupied detected (Hawks pers. comm. 2010). recover the species, and because Casey’s by the species and to contain the PCEs. Therefore, we believe it is unlikely that June beetle appears to be less Any developed lands that do not beetles observed by the commenters susceptible to human interaction than is contain the PCEs inadvertently left were Casey’s June beetles. currently recognized. They specifically inside critical habitat boundaries shown Comment 10: Four commenters stated the species has been collected in on the maps of this designated critical argued there is not enough information higher numbers where habitat has habitat are excluded by text in this final known regarding the biology of the greater exposure to human impacts. rule (see Criteria Used To Identify species or its distribution to justify Our Response: The comment Critical Habitat section above). listing. They argued it is not known regarding the species’’ known range and what the species eats or how long it a need for surveys is the same as the Comments Related to Biological remains in the soil, and the species’ Tribe’s above (Comment 5), and the Information That Informed Our Listing distribution may be significantly greater commenter’s statement that Casey’s June or Critical Habitat Determinations than estimated in the proposed listing beetle listing and critical habitat Comment 9: Three commenters stated and critical habitat rule. They designation are not supported by the that Casey’s June beetle is more widely collectively stated or implied there has best available scientific data is similar to distributed than the proposed rule been no systematic effort to locate the Tribe’s comment as well. We believe described, based on observations of Casey’s June beetle elsewhere in the our current biological conclusions and Casey’s June beetles at their homes. The Coachella Valley or desert areas farther the need to list Casey’s June beetle as first commenter from the City of Palm south, and such an effort is needed endangered under the Act are well Desert said they observed many Casey’s before listing would be warranted. The supported by the best available June beetles during the early morning at first two commenters specifically stated scientific and commercial data. Please their home during a 3-week period in they know of a Casey’s June beetle see our response to Comment 5 above June, dropping off the first week of July. captured ‘‘well outside’’ the proposed for further discussion. The second commenter said they critical habitat, and another report of Regarding the second commenter’s observed Casey’s June beetle at their what may be a Casey’s June beetle from specific statements numbered above: home in La Quinta several times during a site near the City of Yuma, Arizona. (1) Some past surveys may have been the late spring and early summer The second commenter made several biased by trap placement proximal to months of 2009. The third commenter statements questioning the scientific electricity sources; however, some light said they had observed Casey’s June credibility of the proposed listing and traps are battery-powered, and past beetle ‘‘a few miles north of the reported critical habitat rule. The commenter trapping efforts represent the best [proposed critical habitat] boundary’’ argued: (1) Survey methodology requires available scientific data. (2) We agree it and at 393 West Mesquite Ave in the further development and may be is possible all individuals in currently City of Palm Springs. They stated they skewed because light traps require occupied habitat areas do not belong to hope this information helps protect the access to electricity; (2) the Service’s a single population. Nevertheless, we species because they believe it is assumption that all areas occupied by believe we adequately acknowledged important no species become extinct. Casey’s June beetle comprise a single this uncertainty in the proposed rule by Our Response: There are other species population is not based on scientific stating, ‘‘We consider all known of June beetles in the Palm Desert and data; (3) proposed PCE 2 (intact, native occurrences of Casey’s June beetle to La Quinta areas that are related and Sonoran desert scrub vegetation and constitute a single population based on similar in appearance to Casey’s June native desert wash vegetation) is not currently available data. However, beetle (Cornett 2004, pp. 4–5). As stated valid (citing James Cornett’s detection of additional studies are needed to confirm in the proposed rule, Casey’s June the species in the Smoke Tree Ranch this assumption.’’ Our consideration is

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based on the flight and movement required to recover the species, and the wash crossing and at another site near potential of male Casey’s June beetles, species appears to survive equally well the State Route 111 intersection with as well as the fact that all currently in habitats exposed to disturbance. Until Gene Autry Trail did not detect Casey’s occupied habitat areas were historically a species is recovered there is always June beetle; however, Powell (2003, p. contiguous. Furthermore, it is not some level of uncertainty regarding 4) had reported collecting 70 male unusual for species’’ population actions required to achieve recovery; Casey’s June beetles in the first 15 distributions to be ill-described prior to furthermore actions required for minutes and ‘‘many afterwards’’ one listing (see Euphydryas editha quino recovery are not typically analyzed or night at the wash crossing, while Bruyea (Quino checkerspot butterfly) final described until a species is listed and a (2006, pp. 10–11) reported traps revised critical habitat rule; 74 FR recovery outline or plan is developed. ‘‘consistently attracted [Casey’s June 28775, June 17, 2009). (3) We agree that Articulated recovery actions are not a beetle] during each of the four survey the proposed PCEs were overly prerequisite for listing. On the visits’’ at the State Route 111 restrictive; therefore, we edited PCE 2 to disturbance issue, the data do not intersection site. Second, the scale of include other Sonoran vegetation types support that the species has been occupancy described in critical habitat and disturbed habitat. In the proposed collected in higher abundance where rules is at the population distribution revised rule we specified ‘‘Intact, native human impacts are greatest. Some of the scale, not the individual, local scale Sonoran (Coloradan) desert scrub highest observed numbers and most sometimes determined by smaller-scale vegetation and native desert wash consistent collections of male Casey’s presence-absence surveys. Because vegetation * * *.’’ In this final revised June beetles have been in the gated population distributions could expand rule we use the more inclusive language community of Smoke Tree Ranch, and contract over time at the local scale in PCE 2, i.e., ‘‘predominantly native where the largest and most protected depending on habitat conditions and desert vegetation’’) (see Primary area of remaining occupied habitat is other factors, individual-or ‘‘colony-’’ Constituent Elements for Casey’s June found. Therefore, we do not believe the scale occupancy may not reflect the Beetle and response to peer reviewer best scientific and commercial data greater longer-term population Comment 2 above). (4) The email from available support the commenter’s distribution. We also note the first James Cornett describing his statement that listing is not warranted. commenter did not provide any further preliminary 2010 survey results Comment 11: Three commenters information regarding the referenced presents inconclusive and incomplete argued specific areas proposed for survey, and we do not have any data. Cornett listed beetle abundance critical habitat designation and information corresponding with the data from 3 nights of collection using an considered occupied are not occupied described survey. Therefore, with regard unspecified number of traps of and should not be included in the final to Casey’s June beetle occupancy status, unspecified design placed ‘‘near’’ critical habitat designation. The first we believe the designation of critical cheesebush (Hymenoclea salsola) and commenter stated surveys conducted in habitat would be appropriate for those tamarisk (Tamarix spp.). The first 2 2009 indicate habitat south of Bogart areas referred to by the commenters. nights he reported higher numbers of Trail and west of South Palm Canyon We did, however, determine the third male Casey’s June beetle attracted to Drive is not occupied, and stated this commenter’s property does not contain traps located near Tamarix spp.; area should not be designated as critical the primary soil type specified in PCE however, on the third night he collected habitat. The second commenter stated 1 (CdC) required to meet the definition almost twice as many individuals from the proposed critical habitat south of of critical habitat. Therefore, we traps located near Hymenoclea salsola. State Route 111 near Gene Autry Trail determined this property did not meet Cornett did not discuss any other as mapped appears to extend arbitrarily the definition of critical habitat (see also possible habitat correlations with trap beyond what was mapped as occupied Summary of Changes From the 2009 placement that could have affected his in the 2006 Bruyea report. The third Proposed Critical Habitat Rule, above) results. Furthermore, preliminary commenter stated multiple past surveys and did not include it in this final results from David Hawks’’ 2010 (pers. of their property (the easternmost critical habitat designation. comm.) surveys on Smoke Tree Ranch polygon of proposed critical habitat), Comment 12: One commenter indicate no correlation of female Casey’s and a survey conducted in April of asserted the maintained Palm Canyon June beetle emergence holes with any 2010, were all negative. The third Wash channel and levee system does particular species or type of plant, not commenter submitted a letter from not meet the definition of critical habitat even native plants (see New Species James Cornett documenting negative because the reoccurrence of scouring Information and Primary Constituent survey results. and sediment deposition within the Elements for Casey’s June Beetle Our Response: The commenters’’ channel and levee system likely sections above). Hawks’’ (pers. comm. statements that areas proposed as precludes any long-term development of 2010) study indicated soil type, critical habitat must be occupied to viable Casey’s June beetle PCEs. They moisture content, and other factors were meet the definition of critical habitat stated that published annual peak more likely determinants of habitat than appear to be based on the assumptions stream flow information from the U.S. associated plant species or types. that negative surveys are definitive, the Geological Survey shows Palm Canyon Therefore, based on information scale of occupancy described in a Wash has experienced at least 16 peak discussed in the response above, and critical habitat rule is the same as that flow events of over 1,000 cubic feet per reasons discussed in the response to determined in the smallest-scale second (cfs) (28 cubic meters per second Comment 5 above, we conclude there is presence-absence project-based survey, (cms)) since 1980, and these peak no valid basis for the second and occupancy is a requirement for streamflows have occurred at a commenter’s statement that this critical critical habitat designation. First, it is minimum of every 1 to 3 years. habitat designation or listing not uncommon for Casey’s June beetle Two other commenters gave reasons determination are arbitrary and surveys, for which we have not yet why they believed their property did capricious. developed a robust survey protocol, to not meet the definition of critical We considered the third commenter’s not detect occupancy where it in fact habitat. The second commenter stated statements that listing is not warranted exists. For example, Cornett’s (2004, p. their property is surrounded on three because it is not clear what actions are 8) surveys near Gene Autry Trail at the sides by existing homes and was ‘‘pretty

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well torn up’’ 2 years ago when they for the conservation of Casey’s June constructed on raised fill dirt (their were compelled to clean up a vegetation beetle. However, due to the mapping entire property) in this final critical dump created by their neighbors. The scale that we use to determine critical habitat designation (see Summary of third commenter objected to the habitat boundaries, we cannot guarantee Changes from the 2009 Proposed proposed designation of their property that every fraction of critical habitat Critical Habitat Rule, above). in the vicinity of Araby Drive (‘‘Araby contains the PCEs. Additionally, we Comment 13: One commenter argued Cove’’) as critical habitat. The reasoning made every attempt to avoid including that although their property (a patch of the third commenter articulated in developed areas such as lands habitat near the intersection of Gene support of their objection was: (1) Their underlying buildings, paved areas, and Autry Drive and State Route 111) is property is elevated with fill dirt (and other structures that lack PCEs for occupied, it should not be designated as therefore does not contain the PCEs); (2) Casey’s June beetle. The scale of the Casey’s June beetle critical habitat. They no experts have evaluated their property maps we prepared under the parameters stated the Casey’s June beetle to establish soil suitability; and (3) they for publication within the Code of population on their property is isolated have been at their property for 5 years Federal Regulations may not reflect the and not viable because: (1) The habitat at dusk and evening and never observed exclusion of such developed areas. Any is not contiguous with other occupied any beetle species. The commenter developed structures (such as a habitats and is 0.5 miles (1 km) distant suggested the Service could maintain developed levee) and the land under from the nearest occupied location; (2) the total area proposed as critical habitat them inadvertently left inside critical females are flightless; (3) male beetle by moving mapped proposed critical habitat boundaries shown on the maps movement appears to be limited to less habitat off their property to include of this critical habitat designation are than 7 ft (2 m) above the ground and to ‘‘non-buildable,’’ adjacent, undisturbed excluded by text in this rule and are not ‘‘short distances;’’ (4) the property is land. They stated that designating their designated as critical habitat. Federal bordered by a road and developed areas residential lot and not any other actions involving these lands would not where artificial lights would attract and neighboring properties with similar trigger section 7 consultation with disorient male beetles resulting in physical and biological features is respect to critical habitat and the mortality; (5) the property is disturbed illegal. The commenter submitted requirement of no adverse modification and has compacted soils; and (6) the several photographs in support of their unless the specific actions may affect ‘‘low’’ numbers of Casey’s June beetles written comments. the PCEs in adjacent critical habitat (see collected on this property relative to Our Response: We considered the first Critical Habitat Background section typical collections in other habitats commenter’s statement that the Palm above). Therefore, we believe indicate a relatively small population Canyon Wash channel and levee system designation of the Palm Canyon Wash size. They concluded their property does not meet the definition of critical channel and other lands as critical does not meet the definition of critical habitat. We also acknowledge that some habitat, as mapped in this final rule, is habitat. portions of Palm Canyon Wash are not warranted. The letter from James Cornett likely to support occupancy by females We considered the third commenter’s submitted by the commenter further and immature life stages. While it makes statements that they have never stated, ‘‘To successfully immigrate or sense that some level of scouring observed any beetle species on their emigrate from [this habitat] site, a beetle intensity would extirpate occupancy in property and that designating their would need to fly higher than the some places, at relatively small scales residential lot and not any other species ever does, or fly in a straight within the Palm Canyon Wash channel, neighboring properties with similar line and head directly down highway the correlation between flood intensity physical and biological features is 111 or Gene Autry Trail at the and mortality at a given life stage is illegal. We further considered their approximate level of rapidly moving unknown. Many collections of adult suggestion we could maintain the total motor vehicles (thereby risking males have been made within and area proposed as critical habitat by substantial harm). The limited adjacent to Palm Canyon Wash, even ‘‘moving’’ mapped critical habitat off distribution of the species strongly where there is no adjacent upland their property to include adjacent, suggests these latter scenarios rarely, if habitat (such as Powell 2003, p. 4). The undisturbed land. The Act specifies we ever, happen.’’ best available data also indicate that all use the best commercial and scientific Our Response: Beetle behaviors areas of Palm Canyon Wash will always data available to determine what lands described in the best available scientific contain both PCEs. We believe any meet the definition of critical habitat and commercial data do not support the conclusions regarding peak stream flow (see Critical Habitat Background, above). commenter’s statements. It is less than effects on Casey’s June beetle occupancy We do not base our designation on a 1 mi (less than 2 km) to the nearest in Palm Canyon Wash are premature, particular size area or property occupied habitat (Palm Canyon Wash) and use of the channel and levee system boundaries. For us to alter the mapped through undeveloped foothills below by adult males also justifies inclusion of final critical habitat designation to 600 ft (180 m) in elevation, and this area as designated critical habitat. remove their property as the commenter approximately 0.5 mi (1 km) through Lands which are ‘‘occupied’’ in some suggested, without sound scientific or residential development to the north or capacity but do not contain the PCEs commercial data to support our actions, the west. No available scientific (for example areas where only would be arbitrary and capricious in our information we reviewed indicates any movement of males in flight is possible) decision making. Therefore, we did not beetle species must fly in a straight line do not meet the definition of Casey’s alter mapped final critical habitat to down roads. In fact, Casey’s June beetles June beetle critical habitat; therefore, avoid the commenter’s property based could take an equally direct route of any levees or areas elevated by fill dirt on any of these statements. equal distance to occupied wash habitat inadvertently mapped as designated Regarding the third commenter’s through residential homes from any critical habitat would not be considered statement that their property did not number of points on the property other critical habitat. When determining the contain the PCEs, we examined digital than the road intersection indicated by critical habitat boundaries, we made aerial photography and did not include Cornett. While it is true the male every effort to map precisely only the buildings and structures and beetle’s attraction to lights is known to areas that contain the PCEs and provide surrounding areas that appeared to be cause some mortality (e.g., drowning in

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pools and attraction to light-based bug subsequent information provided in the 554; H.R. 5658)), and our associated traps), there is no data indicating all proposed listing rule. The commenter Information Quality Guidelines provide individuals attracted to lights in also stated they support the designation criteria, establish procedures, and residential areas die. If males are of critical habitat for this species. provide guidance to ensure our disoriented the lights may also cause Our Response: We appreciate the decisions are based on the best scientific them to move in a wandering, indirect commenter’s review of our proposed data available. We used primary and fashion through a development. No data rule. Please see Comment 1 and our original sources of information as the were provided to support the assertion response for further discussion of the basis for our recommendations. We only they never fly above 7 ft (2 m), nor were scientific validity of this final rule. designate areas outside the geographical any data presented that indicated how Comment 15: One commenter stated area occupied by a species when the far or in how much of a straight line they were concerned the proposed Secretary determines that a designation male Casey’s June beetles are likely to critical habitat is ‘‘limited * * * to the limited to a species’ present range fly. Therefore, as long as females on site present range of the species’’ and did would be inadequate to ensure the are not eradicated, there is potential for not include any unoccupied habitat that conservation of the species (50 CFR population survival and genetic may be necessary for recovery of the 424.12(e)). We carefully considered all exchange with individuals in other species. They stated critical habitat patches of apparently suitable habitat occupied habitats. must include areas required for species within the species’ historical (versus We considered the commenter’s recovery, not just survival. They argued current) range for proposal as critical statement that habitat on their property that past attempts by the Service to habitat, even where reintroduction is too degraded and isolated to support disregard the critical habitat recovery could potentially occur (see Criteria a viable Casey’s June beetle population. standard under the Act have repeatedly Used To Identify Critical Habitat We acknowledge habitat suitability may been found unlawful (see Gifford section). As defined in section 3(5)(A) of have been compromised; however Pinchot Task Force v. U.S. Fish & the Act, we believe we have designated disturbance, nonnative plant invasion, Wildlife Serv., 378 F.3d 1059, 1069–70 all specific areas that the best available and soil compaction are all habitat (9th Cir. 2004), citing Sierra Club v. U.S. scientific data indicate meet the features that may require management Fish & Wildlife Serv., 245 F.3d 434, definition of critical habitat. We do not to maintain PCEs. Furthermore, in a 441–42 (5th Cir. 2001) and N.M. Cattle believe there is sufficient scientific data habitat assessment conducted by Hovore Growers Ass’n v. U.S. Fish & Wildlife to indicate specific areas outside the (1997c, p. 4), he described this area as Serv., 248 F.3d 1283 & n.2 (10th Cir. geographical area occupied by the ‘‘of sufficient size to sustain viable 2001)). The commenter cited the Ninth species are essential for conservation of populations despite having [SR] 111 Circuit Court, ‘‘[i]f the [Service] follows the species. Section 3(5)(C) of the Act pass along [its] margin.’’ Inspection of its own regulation, then it is obligated states that except in those circumstances historical Google Earth imagery from to be indifferent to, if not to ignore, the determined by the Secretary, critical 1996 indicates the amount of recovery goal of critical habitat’’ and habitat shall not include the entire undeveloped land in this area has not such an interpretation ‘‘would geographical area which can be changed significantly since Hovore’s drastically narrow the scope of occupied by the endangered or assessment. Therefore even with some protection commanded by Congress threatened species. As we learn more undesirable habitat features, this under the Endangered Species Act’’ about the biology of this species and its property meets the definition of critical (Gifford Pinchot, 378 F.3d at 1070). The habitat requirements we may identify habitat. commenter concluded that the Service additional habitat areas necessary for We further considered James Cornett’s should consider designation of conservation of the species. Please see statement submitted by the commenter additional areas of unoccupied habitat Comment 2 and response above for that the limited distribution of the that may be necessary to provide further discussion of this issue. species strongly suggests flight of male sufficient habitat to support recovery of Casey’s June beetles more than 0.5 miles Casey’s June beetle. Comments Relating to Potential (1 km) or above 7 ft (2 m) rarely, if ever, Our Response: We considered the Exclusions From Critical Habitat occurs. An equally plausible commenter’s argument that our Designation explanation for the species’ limited proposed critical habitat designation Comment 16: One commenter distribution is direct mortality of may have been too limited in scope. As requested exclusion of Palm Canyon females during habitat disturbance and required by section 4(b)(1)(A) of the Act, Wash and two ‘‘isolated’’ proposed loss, coupled with adaptation of the we use the best scientific and critical habitat areas within the species to limiting habitat factors such commercial data available in approved Palm Springs Master Drainage as wind exposure and soil moisture determining the specific areas within Plan Line 41, Stage 3 project alignment content that we do not yet fully the geographical area occupied by the located east of Palm Canyon Wash and understand. Therefore, we do not agree species that contain the features south of Palm Canyon Drive based on the limited species’ distribution essential to the conservation of species economic hardship and public health suggests a limited movement capability which may require special management and safety. They stated inclusion of the of male Casey’s June beetles. considerations or protection, as well as maintained flood control system within Comment 14: One commenter stated when determining if any specific areas the final critical habitat designation they fully support listing Casey’s June outside the geographical area occupied would trigger a lengthy section 7 beetle as endangered for reasons by the species are essential for the consultation process and likely prevent identified in the original petition conservation of the species. Further, our timely construction and maintenance (threatened by loss and degradation of Policy on Information Standards Under essential to safeguard the physical and habitat, mortality due to artificial the Endangered Species Act (published economic well-being of the city of Palm lighting and vehicular traffic, in the Federal Register on July 1, 1994 Springs and its citizens. The commenter fragmentation of habitat, chance (59 FR 34271)), the Information Quality believes that potential direct and catastrophic events such as flooding, Act (section 515 of the Treasury and indirect impacts of critical habitat small population size, and inadequate General Government Appropriations designation include but are not limited regulatory protection) and the Act for Fiscal Year 2001 (Pub. L. 106– to: (1) Increased costs associated with

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species surveys and the section 7 the majority of flood control activity commenters’ request for exclusion of consultation process; (2) increased risk costs to the listing of the species as this area under section 4(b)(2) of the that the flood control system may fail to endangered (baseline impacts), not to Act. provide the full measure of its crucial designation of critical habitat Comment 18: One commenter argued public health and safety benefits due to (incremental impacts). We will work portions of Smoke Tree Ranch should be a lengthy section 7 consultation process with the responsible agencies to excluded from the final critical habitat and any requirements imposed through facilitate and expedite any consultations designation. The commenter stated they that process to minimize effects of the regarding projects that may affect public spent over 2 years negotiating a Casey’s action; (3) increased costs (such as health and safety. Therefore, we do not June beetle Candidate Conservation increased flood insurance rates) believe exclusion of Palm Canyon Wash Agreement (‘‘CCA’’) with the Service. imposed on the local community and areas within the approved Palm They argued that, although the CCA was through the National Flood Insurance Springs Master Drainage Plan Line 41, not finalized, they remain committed to Program as a result of not meeting Stage 3 project alignment from critical implementing the terms of the CCA and Federal Emergency Management Agency habitat designation is justified. have proceeded to implement it. They (FEMA) requirements; (4) potential Regarding the commenter’s further stated the Service, the Center for damages to the communities that may conclusion that recolonization is Biological Diversity, the Sierra Club, result if critical maintenance activities unlikely following eventual loss of and the commenter spent 2 years are delayed; and (5) ‘‘additional occupancy in some areas designated as evaluating Smoke Tree Ranch habitat, mitigation costs and potential conflicts critical habitat, we may determine that and areas identified as valuable habitat associated with flood control facilities.’’ artificial recolonization and have been placed under a conservation Specifically, they stated the Palm management will be required to achieve easement monitored by the Center for Springs Master Drainage Plan Line 41, species’ recovery. See also our response Natural Lands Management. The Stage 3 project alignment will provide to Comment 2 above regarding Casey’s commenter provided a copy of the 100-year flood protection to existing June beetle occupancy. conservation easement deed in support downstream development currently Comment 17: One commenter stated of their statement. The commenter located within a FEMA-mapped Special they believe the designation of critical argued they are the only landowner who Flood Hazard Area. habitat for Casey’s June beetle in Palm has, to date, entered into binding The commenter argued that exclusion Springs is not appropriate because it agreements to protect beetle habitat, and of the wash would not result in does not ‘‘conform’’ to the Coachella the portions of their land not covered by extinction of the species because the Valley Multiple Species Habitat a conservation easement should be species is frequently extirpated from the Conservation Plan (Coachella Valley considered for exclusion. The wash by scouring events. The MSHCP). commenter proposed to continue their commenter also stated exclusion of the A second commenter objected to conservation partnership with the two isolated areas proposed as critical designation of the same property as Service to finalize the CCA if the species habitat would not result in extinction of critical habitat for Casey’s June beetle is not listed or, should the species be the species because continued ‘‘or any other species.’’ They stated this listed, to explore additional habitat occupancy and reproduction on-site is property is planned for development as conservation within the easement, or not viable long-term. They argued that a senior continued care retirement provide for adaptive management. They occupancy in these two sites depends community for the gay and lesbian cited exclusion precedents they believe on flightless females for reproduction, community in the city of Palm Springs. supported their request that critical and claimed the sites are isolated from They further asserted it is the last habitat designation should be limited to Palm Canyon Wash by existing available ‘‘[tribal] fee site’’ in the city of areas covered by the conservation contiguous development and steep Palm Springs large enough for the easement, and the remainder of Smoke rocky hillsides. They further stated that planned development project, and is Tree Ranch property should be a past Casey’s June beetle survey ideally located for senior citizens excluded from critical habitat. indicated that species’ density in these because it is close to medical care, The commenter further argued the areas may be low (cited Bruyea 2006), grocery stores, and public Service’s proposal to designate most of and beetles occupying this area may be transportation. They stated they should Smoke Tree Ranch, including all homes a remnant colony of past conditions get special consideration because gays and property of residents, does not when dense urban development did not and lesbians have ‘‘been declared a reflect the best scientific data available separate it from Palm Canyon Wash. suspect and protected class of state and ignores the definition of the species’ The commenter concluded that citizens by the California State Court.’’ PCEs. The commenter suggested occupancy would eventually be lost and Our Response: We reexamined the designation of private homes and other recolonization from Palm Canyon Wash soil maps with regard to the property developed areas as critical habitat is would be unlikely. identified by these commenters, and unprecedented. They expressed concern Our Response: We considered the have determined the primary soil type that although the proposed rule text commenter’s statement that Palm specified in PCE 1 (CdC) required for purports to exclude ‘‘lands covered by Canyon Wash and areas within the critical habitat is not mapped on this developed areas, such as buildings, approved Palm Springs Master Drainage property. Therefore, we determined this pavement, and other structures’ from Plan Line 41, Stage 3 project alignment property does not meet the definition of the critical habitat, it includes areas should be excluded from critical habitat critical habitat (see also Summary of around homes and structures and only designation based on economic Changes From the 2009 Proposed applies to existing structures. They hardship and public health and safety. Critical Habitat Rule, and response to further concluded the ‘‘mere threat of Any emergency or critical infrastructure Comment 11 above) and did not Service regulation of improvement or projects undertaken to protect public designate it as critical habitat. While we modification of an existing home or health and safety can be appropriately appreciate the commenters’ concerns, structure undermines public support for and quickly addressed through because we determined that these lands the [Act] and distracts the scarce emergency consultations. Furthermore, do not meet the definition of critical resources of the Service from real and the DEA and subsequent FEA attributed habitat, we did not further consider the important conservation challenges.’’

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They stated even if the Service elects expressed concern that their legal rights submitted their requests more than not to exercise regulatory authority over might be violated in the future. The first 45 days after the proposed rule the activities of private homeowners at commenter expressed concern that they published, during the second comment Smoke Tree Ranch, the designation of were ‘‘denied’’ a requested public period. We believe we fulfilled our critical habitat will create a powerful hearing. The second commenter obligation under the Act to notify the legal weapon for the use of third parties. specifically requested an extension of public of our proposed rulemaking, and They stated Smoke Tree Ranch has also the 30-day comment period (initiated on provided sufficient time to prepare and recorded deed restrictions on all of the March 31, 2010, at 75 FR 16046) under submit comments (see above property that restrict development and 50 CFR 424.16(c)(2) because they were discussion). Therefore, we informed the retain native desert habitat as the not notified by the Service of the commenters of our policies and prominent property feature. The proposed rule. They stated they were notifications, and did not hold a public commenter submitted a ‘‘form’’ of deed not aware of the proposed rulemaking hearing as requested. restrictions (superseded) and an excerpt until the City of Palm Springs informed Regarding the commenter’s statement of current Smoke Tree Ranch covenants, them in a letter on April 19, 2010. They that designating the property as critical conditions, and restrictions in support also stated that if their property was not habitat would result in a ‘‘taking’’ of the of their statements. excluded from the final critical habitat property, we have determined that the Our Response: We considered the designation, they were requesting a designation of critical habitat for Casey’s commenter’s statements regarding public hearing under 50 CFR June beetle does not pose significant potential impacts resulting from the 424.16(c)(3). Finally, the second takings implications for lands within or critical habitat designation and their commenter argued that designation of affected by the designation (see request for exclusion of lands within critical habitat would constitute Takings—Executive Order 12630, under Smoke Tree Ranch not covered by the regulatory ‘‘taking’’ of their property. Required Determinations, below). conservation easement. We recognize Our Response: We considered the and appreciate the efforts made by commenters’ concerns regarding Comments Related to the Draft Smoke Tree Ranch, Inc., to assist in the notification of our proposed rulemaking Economic Analysis conservation of Casey’s June beetle, and and the associated request for comment Comments From Tribes look forward to continuing to work with period extension. Under 50 CFR these partners to assure that long-term 424.16(c)(2) the Secretary may extend or Comment 20: The Tribe and one tribal conservation and management is reopen the period for public comment member stated the Service’s assured for the species. However, after on a proposed rule upon a finding that methodological approach of separately considering the relevant impacts, the there is good cause to do so. Under 50 estimating incremental impacts of the Secretary is declining to exercise his CFR 424.16(c)(1)(iii), we gave notice of designation relative to existing baseline discretion to exclude these lands, in the proposed regulation to local protections has been invalidated in part because we determined there were authorities and private individuals court and violates the Act. no existing regulations or other known to be affected by the rule. In Our Response: The estimation of measures in place on these lands particular we notified the Tribe and the incremental impacts is consistent with redundant with protection provided by City of Palm Springs who have direction provided by the Office of critical habitat designation. jurisdiction over the commenters’ Management and Budget (OMB) to We do not agree that inclusion of properties. We did not know the Federal agencies for the estimation of private homes and other developed commenter would be affected by the the costs and benefits of Federal areas in areas mapped as designated rule because we do not know the regulations (see OMB, Circular A–4, critical habitat is unprecedented. We identity of most private property owners 2003). It is also consistent with several routinely include structures such as within a proposed critical habitat recent court decisions, including Cape single-family dwellings, and other designation prior to publication. Hatteras Access Preservation Alliance v. features that do not contain PCEs, in However, under 50 CFR 424.16(c)(1)(vi), U.S. Department of the Interior, 344 F. areas mapped as designated critical we published a public notice of the Supp. 2d 108 (D.D.C.) and Center for habitat because the scale of our mapping proposed rulemaking on July 20, 2009, Biological Diversity v. U.S. Bureau of does not allow us to remove such areas in the local Desert Sun newspaper, at Land Management, 422 F. Supp. 2d from our maps. The cost and time the beginning of the first comment 1115 (N.D. Cal. 2006). Those decisions required to remove all areas that do not period. Furthermore, as the second found that estimation of incremental contain the PCEs at the scale of a single- commenter stated, the City notified impacts stemming solely from the family dwelling would be prohibitive. them personally of our proposed designation of critical habitat is proper. In the case of Smoke Tree Ranch, there rulemaking and open comment period Comment 21: The Tribe and one other are occupied habitat patches distributed on April 19, 2010, in time to submit commenter stated the DEA’s assignment within the developed area, making it their comments. Therefore, we of costs to the baseline and incremental especially difficult to remove structures determined that lack of personal scenarios relies on the untested from mapped areas. Where inclusion of notification of the commenters upon assumption that there is a 25-percent developed lands lacking PCEs in publication of the proposed rule was not chance of a negative or false negative mapped critical habitat cannot be a good cause to extend the 30-day survey for the beetle at a given project avoided, these areas are excluded by comment period. site. They asserted this approach is text in this final rule and are not We considered the commenters’ inconsistent with real world experience designated as critical habitat. concerns and requests regarding the where project proponents, Federal opportunity for a public hearing. Under agencies, and the Service develop and Comments Related to Legal and 50 CFR 424.16(c)(3), the Secretary shall negotiate minimization and mitigation Procedural Issues promptly hold at least one public strategies. Comment 19: Two commenters hearing if any person so requests within Our Response: Where a Federal nexus expressed concern that they were not 45 days of publication of the proposed is present, project proponents typically personally notified of the proposed regulation (during the first 60-day engage biologists and survey to critical habitat designation, and comment period). The commenters determine whether listed species are

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present prior to determining whether critical habitat for the beetle, including their children, who are not members of consultation with the Service is the Eagle Canyon (Alturas) Project, the the Tribe and, therefore, cannot inherit required. Thus, the presence or absence Monte Sereno residential development, tribal property or receive financial of the beetle is a key factor in and an unnamed residential support from the Tribe. determining whether a consultation will development project also identified in Our Response: Based on information go forward absent critical habitat. The the City of Palm Springs’ Canyon South in the comment letter and our assumption about likely outcomes of Specific Plan. Data provided by the independent mapping effort, the future surveys is necessary to estimate Tribe did not identify any planned commenter’s parcel appears to be part of the possible impacts in our FEA. projects on tribal reservation lands the Tribe’s allotted trust lands south of Comment 22: The Tribe asserted that south of Acanto Drive. Acanto Drive. According to the Indian if 100 percent of critical habitat is We reviewed the Indian Canyons Canyons Master Plan, the parcel is essential, then the economic analysis Master Plan, which includes tribal targeted for residential development at a should assume 100 percent of the area zoning maps, and have revised the maximum density of 2 units per ac will be fully and equally conserved due economic analysis to incorporate this (0.4 ha). Potential impacts to this parcel to that critical habitat designation, not newer information. Specifically, that are discussed in conjunction with other only 25 percent. plan identifies allotted trust and tribal tribal lands located in this area in Our Response: This comment appears trust lands south of Acanto Drive zoned Chapter 3 of the FEA. to reflect a misunderstanding of the for low density residential development Comment 26: One apparent (based on DEA, confusing all costs associated with (2 dwelling units per ac (0.4 ha)) and land property information) tribal listing and critical habitat designation open space—rural development commenter asserted their parcel is with total costs of conserving areas (1 dwelling unit per ac (0.4 ha)). The currently approved for three residences designated as critical habitat. The DEA Tribe’s master plan outlines a vision for and the total value of the parcel is assumed 75 percent of all costs the type of development it would like to $3 million. They stated designating the associated with listing would occur due see, as opposed to demand, for property as critical habitat would render to occupancy regardless if critical development expressed by the market. it undevelopable, resulting in a ‘‘taking’’ habitat were designated (baseline), and The likelihood these lots will be of the property. where there was no occupancy detected converted to residential housing in the Our Response: Based on information (25 percent of the time), costs would be reasonably foreseeable future (e.g., the provided in the comment letter, this attributable solely to critical habitat. In next 10 to 20 years) is difficult to parcel appears to be part of the Tribe’s areas where the beetle has been predict. The City of Palm Springs is allotted trust lands located south of previously identified, we expect predominantly built-out, increasing the Acanto Drive. Depending on its exact positive surveys, and all costs are value of remaining, developable land. In location, the parcel lies in an area zoned attributed to the baseline. The analysis addition, parcels south of Acanto Drive for either two units per ac (0.4 ha) or assumes 100-percent conservation of the are adjacent to recently developed designated habitat; however, the parcels to the north and east, suggesting one unit per 40 ac (16 ha) consistent majority of the time, these areas would this area may be subject to development with the Indian Canyons Master Plan. have been conserved anyway as a result as the City of Palm Springs’’ population The commenter provides no detail on of the presence of the beetle at the site. grows. However, in its 2007 General the approval of the 25-ac (10-ha) Comment 23: The Tribe clarified it Plan, the City of Palm Springs reports property for three residences has chosen not to delegate land use higher than optimal housing vacancy (presumably by the tribal planning authority to a local agent (e.g., the City rates, which is likely to depress housing authorities) or whether development of of Palm Springs) in the area of its prices and the demand for raw land. the site is imminent. Land for the 56-ac reservation south of Acanto Drive. This Data on sales transactions for these or (23-ha) Eagle Canyon (Alturas) area is subject to the Tribe’s Indian similar, undeveloped parcels are scarce, development project located Canyons Master Plan and tribal zoning. and because the lands are not subject to approximately 1 mi (1.6 km) northwest The Tribe states it was not contacted for local real estate taxes, assessed values of the site will be developed at a land use information in this area and are not available. Furthermore, lacking significantly higher density of four units that the economic analysis should be information about the demand for and per ac (0.4 ha) and sold for revised to consider tribal land uses and timing of future development, it is not approximately $6.6 million in 2007 controls in this area. possible to estimate the present value of (based on information obtained from the Our Response: The Service’s these parcels based on current housing Riverside County Assessor). Thus, the consultants responsible for preparing prices. Therefore, the potential impact subject parcel, which is less than half the DEA attempted to contact the Tribe of critical habitat designation on these the size, will be developed at a to collect information about land uses parcels is discussed qualitatively in significantly lower density, is farther and the potential impact of the Chapter 3 of the FEA. from the City of Palm Springs, and is designation on reservation lands via Comment 24: One tribal commenter likely to have a present value that is less email and telephone multiple times stated the economic analysis should than the $3 million value provided in between August and October 2009; consider the unique circumstances the comment letter. Potential impacts to however, the Tribe did not respond. regarding the loss of value of tribal this parcel are discussed in conjunction Therefore, consultants relied on lands, which go beyond simple losses in with other tribal lands located in this economic and other data they obtained land value. Indian allotments represent area in Chapter 3 of the FEA. from the Tribe at the end of 2007 during economic and cultural patrimony for the Regarding the commenter’s statement the preparation of the economic analysis allottee. that designating the property as critical of the proposed designation of critical Our Response: Additional discussion habitat would result in a ‘‘taking’’ of the habitat for the Ovis canadensis nelsoni of these unique circumstances has been property, we have determined that the (Peninsular bighorn sheep). At that added to Chapter 3 of the FEA. designation of critical habitat for Casey’s time, the Tribe identified several Comment 25: One tribal member June beetle does not pose significant planned development projects north of commented they intend to sell their takings implications for lands within or Acanto Drive that overlap proposed 4-ac (1.6-ha) property to help support affected by the designation (see

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Takings—Executive Order 12630, analysis is limited to the areas lands (outside of those proposed) would below). designated as critical habitat. result in increased species’’ recovery Comment 27: The Tribe stated that in Furthermore, section 4(b)(1) of the Act costs. Data and models required to the course of its ongoing section specifically prohibits the consideration understand changes in recovery 10(a)(1)(B) habitat conservation plan of economic impacts in decisions probability are not readily available. (HCP) permit consultation process with concerning the listing of a species. Thus, such costs to the species of the Service, the Service indicated if Therefore, impacts associated with excluding areas cannot be quantified at Casey’s June beetle is not covered by the species listing to areas outside of this time. The DEA evaluated regulatory draft HCP, it will ‘‘exclude’’ 2,160 ac proposed critical habitat are not alternatives proposed by the Service, (874 ha) from HCP coverage. The Tribe included in an economic analysis. effectively the designation of all or some noted this ‘‘exclusion’’ area is greater combination of the proposed lands. Public Comments on the Economic than the area containing recent and Evaluation of costs or benefits of Analysis historic Casey’s June beetle observation designating lands outside the proposal records and expressed concern that it Comment 28: One commenter stated are beyond the scope of the economic includes areas never before identified as the discount rate applied should be analysis. Additionally, we do not potential habitat for this species. The reevaluated given current economic believe that our exclusion of 11 ac (4 ha) Tribe contended this HCP ‘‘exclusion’’ conditions. tribal trust reservation lands (see Tribal area is equivalent to expansion of Our Response: The U.S. Office of Reservation Lands under Exclusions) is critical habitat to almost four times the Management and Budget (OMB) likely to result in increased costs proposed area and requests the costs of requires Federal agencies to report associated with species conservation. this larger area be included in the results using discount rates of 3 and 7 Regarding possible failure to include economic analysis. percent (see OMB, Circular A–4, 2003). additional habitat required for recovery, Our Response: The Tribe notified us Furthermore, most of the costs the lands that we determined meet the in a letter dated October 6, 2010, that presented in the DEA are based on definition of critical habitat are what we they suspended their pursuit of a current land values derived from consider essential for conservation of section 10(a) permit for their draft HCP assessor’s data and adjusted to current the species. Therefore, we do not (ACBCI 2010a, p. 1). The Tribe is dollars using retrospective price believe conservation costs would accrue continuing to implement the draft HCP indexes. Thus, these values are not due to exclusion of lands from or non- and will continue to protect and manage influenced by the discount rate inclusion of lands in critical habitat natural resources within its jurisdiction assumption. designation. (ACBCI 2010b, p. ES–1). This final rule Comment 29: One commenter stated Comment 31: One commenter stated reflects the best available information the DEA did not clearly define how it the Service’s economic analysis we have at this time regarding the areas estimates potential costs associated with framework ignores indirect and that meet the definition of critical time delays, regulatory uncertainty, and cumulative effects of critical habitat habitat. It is possible that, as we learn stigma. designation. They asserted measurement more about the species, new areas may Our Response: Chapter 2 of the DEA of these types of impacts is required be identified as potential habitat for the and subsequent FEA defines these under the National Environmental species. Critical habitat designations do categories of cost for the purposes of the Policy Act (NEPA). not signal that habitat outside the analysis. Data are not readily available Our Response: Executive Order designation is unimportant or may not to quantify potential impacts from 12866, Regulatory Planning and Review, be required for recovery. Areas outside regulatory uncertainty and stigma; thus and OMB’s Circular A–4, which the critical habitat designation will they are only discussed qualitatively. provides direction to Federal agencies continue to be subject to conservation For residential and commercial on the implementation of Executive actions that may be implemented under development projects that may proceed Order 12866, represent the framework section 7(a)(1) and to the regulatory with modification, the value of potential used to estimate the costs and benefits protections afforded by the section time delays resulting from the need for of regulations promulgated by all 7(a)(2) jeopardy standard and the additional section 7 or CEQA review Federal agencies. They do not require section 9 take prohibition, as should be less than the value of the the estimation of indirect or cumulative determined on the basis of the best property; otherwise the project would impacts. Furthermore, section 4(b)(2) of available information at the time of the likely be cancelled. Given the the Act is silent on the definition of action. Similarly, critical habitat uncertainty regarding viable reasonable ‘‘economic impacts’’ to be considered designations made on the basis of the and prudent alternatives, the DEA (and prior to the designation of critical best available information at the time of FEA) estimated an upper-bound impact habitat. Thus, the Service relies on the designation will not control the equivalent to the total value of the well-established and universally direction and substance of future parcels. We discuss potential delay followed principals laid out in OMB’s recovery plans, habitat conservation costs to flood damage reduction projects Circular A–4. plans, or other species conservation qualitatively in Chapter 4 of the FEA Comment 32: One commenter pointed planning efforts if new information because the data required to quantify out the DEA noted, ‘‘the City of Palm available to these planning efforts calls impacts are unavailable. Springs has not mandated changes in a for a different outcome. Comment 30: One commenter stated project’s design as a result of critical Regarding Tribe’s request that these the DEA failed to acknowledge the habitat designation for other species.’’ areas be included in the economic impact to species or the costs to They asserted this statement is analysis, any additional costs related to conservation efforts that will accrue due inaccurate, and stated that nearly any areas outside the designation would to any exclusions or failure to include 15 years ago the City of Palm Springs result from the listing of the species, not additional habitat required for species worked with the Service to revise plans critical habitat designation. The focus of recovery. for the Mountain Falls, Palm Hills, and an economic analysis is the incremental Our Response: The commenter Shadowrock projects to support cost of critical habitat designation. implied exclusion of lands from critical restoration of the Peninsular bighorn Thus, the geographic scope of the habitat and failure to include additional sheep.

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Our Response: Language has been Our Response: Given the high degree Future modifications to existing added to the FEA to clarify that the City of uncertainty associated with the structures could require approval from of Palm Springs has not mandated potential outcome of specific future the City of Palm Springs’ planning or changes in a project’s design to address section 7 consultations or the CEQA building departments. Given the listed species conservation without review process, the DEA made the existing conservation easement in place input from the Service and the simplifying assumption that affected at Smoke Tree Ranch to protect Casey’s California Department of Fish and Game parcel value could be lost completely. June beetle, and the deed restrictions to facilitate these changes. With regards This assumption is intended to bound associated with individual homes, local to changes proposed by the wildlife potential impacts to developable authorities are unlikely to require agencies to protect the Peninsular parcels. However, as described in the additional protection measures for the bighorn sheep, proposed changes were report, the Service believes that if a beetle. Any additional protection due to the presence of the sheep, not project is likely to adversely modify measures would be due to the presence critical habitat. Fifteen years ago, no critical habitat it may be possible to of the listed beetle and therefore will critical habitat was designated for the maintain the viability of the project occur regardless of whether critical Peninsular bighorn sheep. through the development of reasonable habitat is designated. The FEA discusses Comment 33: One commenter argued and prudent alternatives, resulting in the data needed to quantify these the economic analysis should rely on impacts that are less than projected. baseline impacts; however, data the fair market value of affected parcels Comment 36: One landowner stated limitations prevent the quantification of rather than the assessed or adjusted they intend to build a home and a guest such impacts at this time. values. house on their approximately 2.7-ac Comment 39: One commenter stated Our Response: Fair market value is (1.1 ha) parcel located at 2540 Araby the DEA underestimates potential determined through observed sales Drive. They stated they believe economic losses at Smoke Tree Ranch transactions for parcels of land. Given designation of critical habitat would for two reasons. First, it omits the value the small size of the designation and the prevent their development plans from of undeveloped lots. Second, it ignores recent economic downturn, sales of raw being realized and lower the value of the potential decreases in property land within critical habitat in the last their land. value for developed parcels resulting year are rare. Therefore, as described in Our Response: Chapter 3 of the FEA from the stigma associated with the Chapter 3, the economic analysis relies was revised to include this development designation and the inability of these on assessed values, which are based on project. The effect of critical habitat on homeowners to make home the most recent sales transaction for the development plans depends on the improvements. parcel and adjusted for changes in the presence of a Federal nexus, and in the Our Response: The comment is not value of homes or commercial property absence of a nexus, actions taken by the explicit as to whether the referenced in the region since the date of that City of Palm Springs in response to the undeveloped lots are lots targeted as transaction using retrospective indices. designation. However, see Comment 11 homesites that simply have not been We believe the assessor’s values above for further discussion of this land; developed yet, or are parcels adjacent to represent the best available data. we ultimately did not include it in this homes that comprise part of the home’s Comment 34: One commenter asked final critical habitat designation. value but are likely to remain how the estimate of $12,703,000 of Comment 37: One commenter stated undeveloped to protect the viewshed baseline costs referenced in the they own two lots that they are holding and natural aesthetics of the community document announcing the availability of for possible development of a small (view lots). Chapter 3 of the FEA has the DEA was derived (75 FR 16046; home for personal use. They are been updated to include the value of March 31, 2010). A second commenter opposed to critical habitat designation if currently undeveloped lots that are not stated that in assessing the costs of it restricts their ability to develop the part of Smoke Tree Ranch’s designating critical habitat, the Service lots. If development is precluded, they conservation easement. This value must look only at the incremental cost stated they would like to sell the represents an upper-bound estimate of and should not consider costs property to a conservation organization. the potential impacts of restricting attributable to the listing alone. They Our Response: A discussion of the development because we are unable to commended the Service for clearly value of these lots has been added to distinguish between sites targeted for separating baseline costs from the Chapter 3 of the FEA. development and lots likely to remain incremental costs of the designation. Comment 38: One commenter stated undeveloped permanently to protect the Our Response: This estimate is the the designation of private homes and viewshed. Potential impacts are total of the present value impacts, other developed areas within Smoke attributed to the baseline scenario based assuming a 7 percent discount rate, Tree Ranch is unprecedented. They on the known presence of the beetle. presented in Exhibit ES–4 of the DEA. argued the designation of critical habitat It is possible the designation of This Exhibit has been updated in the would threaten the ‘‘specter of Federal critical habitat may stigmatize existing FEA based on new information. We regulatory control over home homes, reducing their value, if potential appreciate the second commenter’s maintenance, landscaping, and other buyers are concerned they will not be opinion and agree that our methods normal routine activities.’’ They able to modify or improve the existing were appropriate. expressed concern that despite the structures due to the designation. Comment 35: One commenter noted Service’s textual exclusion of developed However, given the potential for the DEA provides caveats to its cost areas, this exclusion does not apply to existing stigma associated with the estimates describing the possibility that the areas around the homes or future presence of the beetle and current deed impacts may be reduced if reasonable modifications to the existing structure. restrictions, it is difficult to measure the and prudent alternatives to specific Our Response: The activities potential incremental decrease in value. projects are possible. The commenter described above are unlikely to involve Therefore, this issue is discussed stated the report should instead simply a Federal agency; thus section 7 qualitatively in Chapter 3 of the FEA. acknowledge that designation results in consultation is not anticipated. City of Comment 40: One commenter stated the complete loss of value of the Palm Springs permitting is also unlikely that the Gay and Lesbian Association of affected parcels. to be required for the routine activities. Retiring Persons, Inc. (GLARP), a

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nonprofit organization, has been in the erosion repair, vegetation removal) CEQA. The CEQA review process may planning stages of developing senior within the Palm Canyon Wash channel be affected by the critical habitat housing in Palm Springs for the last 10 and levee system. designation in a manner similar to that years. After several unsuccessful Our Response: Chapter 4 of the FEA for section 7 consultation. attempts involving other parcels, the includes language indicating other Comment 45: Two commenters stated organization has identified the Rim maintenance activities may be affected the DEA did not evaluate the potential Rock property as their last remaining by the critical habitat designation, but increased flood insurance cost, and the option. The owner is prepared to sell to detailed information about these costs associated with increased flood GLARP; however, designation of critical activities is not available to calculate risks and damages, if critical habitat habitat may affect the development cost estimates. designation delayed flood damage potential of the parcel. Therefore, Comment 43: In relation to the flood reduction activities. They suggested GLARP objects to the designation of this control projects, one commenter these costs may be reflected as reduced property as Casey’s June beetle critical expressed concern the DEA did not property values. habitat, citing the hardship that will be provide Federal decision makers a Our Response: Chapter 4 of the FEA caused to the senior gays and lesbians, complete and accurate estimate of the presents the cost of sedimentation a protected class of California citizens. incremental costs associated with the removal as the low-end estimate of the Our Response: This additional proposed critical habitat designation. lost value that would result if the information regarding the potential use They argued the DEA did not evaluate Riverside County FCWCD is not able to of the Wessman property has been scenarios that could occur if flooding carry out maintenance activities. It is added to Chapter 3 of the FEA. This and scouring events within the likely the lost value is higher. This land is not included in this final critical maintained Palm Canyon Wash channel value may include increased flood habitat designation due to lack of PCEs. and levee system periodically eliminate insurance cost and increased flood risks See response to Comment 17 above for suitable habitat for the beetle and and damages, but data required to more information. preclude beetle occupancy and section quantify these costs are not readily Comment 41: One commenter stated 7 consultations are still required due to available. Similarly, the FEA states that their property, located at the southwest the critical habitat designation. if the Palm Springs Master Drainage corner of East Palm Canyon Drive and Our Response: While it is true that Plan (MDP) Line 41, Stage 3 Flood Matthew Drive (referred to in the DEA flooding and scouring events within the Control Project cannot move forward as the ‘‘Rainbow Vision’’ site), has maintained Palm Canyon Wash channel then increased risk to health and human approval from the City for development and levee system could periodically safety from floods and increase cost of of a mixed-use retirement community. eliminate beetle occupancy, we believe flood insurance may result. Again, data The original recipient of the approvals these events would not eliminate do not exist to quantify these costs. was Rainbow Vision Palm Springs LLC; suitable habitat nor preclude Comment 46: One commenter however, through a series of recolonization during the next active described possible mitigation measures transactions in 2008, the commenter beetle season following a given event. that may be required for Palm Canyon became the fee owner and acquired all We believe this area, regardless of Wash maintenance activities to avoid development rights related to the periodic flooding and scouring events is adverse modification. project. The commenter stated the value occupied because within the area: Our Response: Chapter 4 focuses of the property reported in the DEA is (1) There is consistently high specifically on sedimentation removal understated, because the property is population abundance; (2) there are within Palm Canyon Wash. The FEA fully entitled for development. consistent positive survey findings; and assumes that the Riverside County Our Response: The FEA has been (3) the location of the wash at the center FCWCD will be prevented from carrying updated to reflect current ownership of the species’ current range and known out sedimentation removal due to information, development approvals, population distribution. Therefore, the presence of the beetle and presents the and the confirmed presence of the beetle costs associated with projects within cost of sedimentation removal as the at the property. As described in Chapter Palm Canyon Wash are appropriately low-end estimate of the lost value of this 3, the DEA relied on assessor’s data to considered baseline costs associated activity. The FEA notes it is possible the estimate property values. The with listing, and not critical habitat Service will find complete avoidance of assessments are based on the market designation. sedimentation removal is not necessary value of the property at the date of its Comment 44: One commenter stated and may recommend reasonable and most recent acquisition and adjusted the DEA is based on the inaccurate prudent alternatives or other annually thereafter based on the assumption that all Palm Canyon Wash conservation measures to avoid adverse California Consumer Price Index. The maintenance activities would always modification. Measures requested by the commenter’s property is comprised of involve a Federal nexus under section Service may be similar to those outlined two parcels that were sold in 2008 and 404 of the Clean Water Act. The in the MDP Line 41, Stage 3 Flood 2009. Thus, the market data relied upon commenter also pointed out the Control Project, including replacement by the assessor is current and likely proposed critical habitat designation has of permanently impacted suitable reflects the entitled status of the the potential to increase the costs of habitat at a 2:1 ratio with offsite habitat property (project approval was granted State and local approvals (such as creation or enhancement, or a mitigation by the Palm Springs City Council on CEQA) associated with maintenance fee of $5,730 per ac (0.4 ha). The March 19, 2008). The landowner did not activities that are similar to potential Riverside County FCWCD suggested the provide an alternate estimate of the increased Federal regulatory costs. sedimentation removal project could market value of the property; therefore, Our Response: Chapter 4 of the FEA permanently impact 47 ac (19 ha) of we relied on the existing estimate clarifies that some Palm Canyon Wash habitat, resulting in the need for a 94- presented in the DEA. maintenance activities may not have a ac (38-ha) mitigation area or Comment 42: One commenter stated Federal nexus. Although unlikely, approximately $269,000 in mitigation the DEA should consider the cost of where no Federal nexus exists, the City fees. maintenance activities beyond of Palm Springs may request project Comment 47: One commenter took sedimentation removal (e.g., grading, modifications via its review under issue with the fact that the DEA

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assumed all costs associated with the estimates in the DEA of foregone critical habitat is to support the MDP Line 41, Stage 3 Flood Control economic value are grossly inaccurate. conservation of Casey’s June beetle. The Project, except for a portion of the Our Response: Regardless of whether data required to estimate and value in administrative costs of consultation other options are available to the Tribe, monetary terms incremental changes in related to adding adverse modification potentially removing the existing the probability of conservation resulting to the consultation, are considered development potential associated with from the designation are not available. baseline. designated parcels represents a real loss Depending on the project modifications Our Response: Because a Federal of resource value that should be ultimately implemented as a result of nexus is present and the project location quantified in the analysis. Furthermore, the regulation, other ancillary benefits has had positive surveys for the beetle the majority of the reservation lands that are not the stated objective of in the past, all costs, except for a portion proposed for designation (75 percent) critical habitat (such as increasing the of the administrative costs of are either allotted trust lands held in value of homes adjacent to preserved consultation related to adding adverse trust for the benefit of individual tribal habitat or preserving habitat for other modification to the consultation, are members (or their heirs), or fee-title non-listed species) may occur. We do considered baseline. The FEA notes that lands owned by individuals who may or not assume that these benefits have been the entire project may not fall under the may not be members of the Tribe. Thus, accounted for in development decisions jurisdiction of the U.S. Army Corps of these individuals may not have made by the market; rather, these Engineers, but similar impacts would alternative reservation lands available to benefits are discussed qualitatively. The likely be felt as the result of challenges them, or their substitution options may FEA (5.1.111) has been revised to to previously prepared CEQA be limited and already slated for include discussion of the new ancillary documents. Based on the best available development (see Chapter 3 of the FEA benefit categories referenced in the scientific information, including several and Comment 23 above). In these cases, comment. recent studies and multiple years of potential losses estimated in the DEA positive surveys, the Service considers are unlikely to be offset. Furthermore, Required Determinations all of Palm Canyon Wash to be entirely these parcels are often seen as an Regulatory Planning and Review— occupied (see New Species Information investment to be sold to a developer, Executive Order 12866 above), and will continue to view this rather than as a source of housing for area as occupied; thus costs are tribal members. To make members The Office of Management and Budget considered baseline (see our responses whole, the Tribe would need to provide (OMB) has determined that this rule is to Comments 22 and 46 above). alternative parcels of land of equal not significant and has not reviewed Comment 48: One commenter stated value. The development value of the this rule under Executive Order (E.O.) the potential slowing of development as designated parcel is still lost to society, 12866. OMB bases its determination a result of critical habitat designation even though the impact has been upon the following four criteria: and the corresponding reduction in redistributed from individuals to the (a) Whether the rule will have an infrastructure needs has an economic tribal entity. Finally, we assume the annual effect of $100 million or more on benefit of reducing greenhouse gas Tribe is a rational economic actor whose the economy or adversely affect an emission. They argued this benefit current development plans represent the economic sector, productivity, jobs, the should be assessed in the FEA. most efficient allocation of resources. environment, or other units of the Our Response: Whether the proposed Thus, if alternative sites are developed, government. designation will have a measurable these are likely to be second-best (b) Whether the rule will create impact on greenhouse gas emissions is options. These alternative parcels may inconsistencies with other Federal subject to considerable uncertainty. experience an increase in value; agencies’ actions. First, many of the development projects however, that increase is not likely to (c) Whether the rule will materially discussed are already sited in areas with completely compensate for the lost affect entitlements, grants, user fees, existing infrastructure; thus new roads value of the designated parcels. The loan programs, or the rights and and utilities may not be required. data required to estimate such net obligations of their recipients. Furthermore, certain projects may find effects are not readily available. (d) Whether the rule raises novel legal alternate locations, redistributing Comment 50: One commenter stated or policy issues. emissions geographically without the DEA failed to include consideration Regulatory Flexibility Act (5 U.S.C. 601 producing a net reduction. Finally, the of all benefits that would result from et seq.) Service has stated previously that the critical habitat designation, such as the underlying causes of climate change are preservation of open space; protecting Under the Regulatory Flexibility Act complex global issues that are beyond and improving water quality by (RFA) (5 U.S.C. 601 et seq.), as amended the scope of the Act (see 74 FR 56070; maintaining the alluvial fan in its by the Small Business Regulatory October 29, 2009). Thus, the potential natural state; preservation of natural Enforcement Fairness Act (SBREFA) of for such benefits is not discussed in the habitat for other species, including 1996 (5 U.S.C 801 et seq.), whenever an FEA. those displaced by global warming; agency must publish a notice of Comment 49: One commenter stated prevention of development in flood rulemaking for any proposed or final the designation of tribal reservation prone areas; and reduction of hazards rule, it must prepare and make available lands as critical habitat may encourage (e.g., wildfires, erosion) associated with for public comment a regulatory the Tribe to relocate these projects to development on the alluvial fan. They flexibility analysis that describes the other reservation lands where housing asserted the DEA assumed the market effects of the rule on small entities and commercial buildings can be accounts for these benefits and (small businesses, small organizations, constructed more efficiently. They suggested these benefits should be and small government jurisdictions). suggested that, alternatively, existing assessed and quantified where possible However, no regulatory flexibility housing in the area could be purchased or otherwise included in a detailed analysis is required if the head of an at a deep discount in the current qualitative analysis. agency certifies the rule will not have a economic climate. They asserted that in Our Response: As described in significant economic impact on a failing to look at these alternatives, Chapter 5 of the DEA, the purpose of substantial number of small entities.

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The SBREFA amended the RFA to consider whether their activities have These costs result from complete require Federal agencies to provide a any Federal involvement. avoidance of habitat under CEQA that certification statement of the factual Designation of critical habitat only could occur even in the absence of basis for certifying that the rule will not affects activities authorized, funded, or critical habitat designation. The final have a significant economic impact on carried out by Federal agencies. Some economic analysis did not specify if this a substantial number of small entities. kinds of activities are unlikely to have business qualifies as a small business; In this final rule, we are certifying that any Federal involvement and so will not however, as it is the only business that the critical habitat designation for be affected by critical habitat may be significantly affected, the Casey’s June beetle will not have a designation. In areas where the species number of small entities significantly significant economic impact on a is present, Federal agencies already are affected is not substantial. substantial number of small entities. required to consult with us under In summary, we considered whether The following discussion explains our section 7 of the Act on activities they the rule will result in a significant rationale. authorize, fund, or carry out that may economic impact on a substantial According to the Small Business affect Casey’s June beetle. Federal number of small entities. For the above Administration, small entities include agencies also must consult with us if reasons and based on currently available small organizations, such as their activities may affect critical information, we conclude that this rule independent nonprofit organizations; habitat. Designation of critical habitat, will not result in a significant economic small governmental jurisdictions, therefore, could result in an additional impact on a substantial number of small including school boards and city and economic impact on small entities due entities. Therefore, we are certifying that town governments that serve fewer than to the requirement to reinitiate the designation of critical habitat for 50,000 residents; and small businesses consultation for ongoing Federal Casey’s June beetle will not have a (13 CFR 121.201). Small businesses activities (see Application of the significant economic impact on a include manufacturing and mining ‘‘Adverse Modification’’ Standard substantial number of small entities, concerns with fewer than 500 section). and a regulatory flexibility analysis is In our final economic analysis of the employees, wholesale trade entities not required. critical habitat designation, we with fewer than 100 employees, retail evaluated the potential economic effects Energy Supply, Distribution, and Use— and service businesses with less than $5 on small business entities resulting from Executive Order 13211 million in annual sales, general and implementation of conservation actions On May 18, 2001, the President issued heavy construction businesses with less related to the designation of critical E.O. 13211 on regulations that than $27.5 million in annual business, habitat for Casey’s June beetle. The significantly affect energy supply, special trade contractors doing less than analysis identifies the estimated distribution, and use. Executive Order $11.5 million in annual business, and incremental impacts associated with the 13211 requires agencies to prepare agricultural businesses with annual proposed rulemaking, as described in Statements of Energy Effects when sales less than $750,000. To determine Appendix A of the analysis, and undertaking certain actions. The OMB’s if potential economic impacts to these evaluates the potential for economic guidance for implementing this small entities are significant, we impacts related to activity categories Executive Order outlines nine outcomes considered the types of activities that including residential and commercial that may constitute ‘‘a significant might trigger regulatory impacts under development, tribal activities, flood adverse effect’’ when compared to not this designation as well as types of control activities, and recreational taking the regulatory action under project modifications that may result. In activities. The analysis concludes that consideration. The final economic general, the term significant economic the incremental impacts resulting from analysis finds that none of these criteria impact is meant to apply to a typical this rulemaking that may be borne by are relevant to this analysis. Thus, based small business firm’s business small businesses will be associated only on information in the economic operations. with development. Incremental impacts analysis, energy-related impacts To determine if the rule could are either not expected for the other associated with Casey’s June beetle significantly affect a substantial number types of activities considered or, if conservation activities within the of small entities, we consider the expected, will not be borne by small critical habitat designation are not number of small entities affected within entities. expected. Therefore, this action is not a particular types of economic activities As discussed in Appendix A of the significant energy action, and no (e.g., development). We apply the final economic analysis, the largest Statement of Energy Effects is required. ‘‘substantial number’’ test individually impacts of the proposed rule on small to each industry to determine if businesses would potentially result Unfunded Mandates Reform Act (2 certification is appropriate. However, indirectly from CEQA compliance U.S.C. 1501 et seq.) the SBREFA does not explicitly define associated with the identified In accordance with the Unfunded ‘‘substantial number’’ or ‘‘significant development projects. In the 20-year Mandates Reform Act (2 U.S.C. 1501), economic impact.’’ Consequently, to time frame for the analysis, one we make the following findings: assess whether a ‘‘substantial number’’ developer (the analysis identifies two; (1) This rule will not produce a of small entities is affected by this however, we did not include the lands Federal mandate. In general, a Federal designation, this analysis considers the owned by one of these companies in mandate is a provision in legislation, relative number of small entities likely this final critical habitat designation) statute, or regulation that would impose to be impacted in an area. In some may experience significant impacts. The an enforceable duty upon State, local, or circumstances, especially with critical one-time costs resulting from tribal governments, or the private sector, habitat designations of limited extent, compliance with CEQA, including and includes both ‘‘Federal we may aggregate across all industries administrative time spent by the intergovernmental mandates’’ and and consider whether the total number businesses, compensation costs, and the ‘‘Federal private sector mandates.’’ of small entities affected is substantial. value of time delays, total These terms are defined in 2 U.S.C. In estimating the number of small approximately $400,000 (7 percent 658(5)–(7). ‘‘Federal intergovernmental entities potentially affected, we also discount rate present value impacts). mandate’’ includes a regulation that

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‘‘would impose an enforceable duty Act. The FEA concludes incremental for case-by-case section 7 consultations upon State, local, or tribal impacts may occur due to project to occur). governments,’’ with two exceptions. It modifications that may need to be made Where State and local governments excludes ‘‘a condition of federal for development and flood control require approval or authorization from a assistance.’’ It also excludes ‘‘a duty activities; however, these are not Federal agency for actions that may arising from participation in a voluntary expected to affect small governments. affect critical habitat, consultation Federal program,’’ unless the regulation Incremental impacts are expected to be under section 7(a)(2) would be required. ‘‘relates to a then-existing Federal borne by the Riverside County FCWCD, While non-Federal entities that receive program under which $500,000,000 or which is not considered a small Federal funding, assistance, or permits, more is provided annually to State, government based on the county’s or that otherwise require approval or local, and tribal governments under population. Consequently, we do not authorization from a Federal agency for entitlement authority,’’ if the provision believe that the critical habitat an action may be indirectly impacted by would ‘‘increase the stringency of designation will significantly or the designation of critical habitat, the conditions of assistance’’ or ‘‘place caps uniquely affect small government legally binding duty to avoid upon, or otherwise decrease, the Federal entities. As such, a Small Government destruction or adverse modification of Government’s responsibility to provide Agency Plan is not required. critical habitat rests squarely on the funding’’ and the State, local, or tribal Federal agency. Takings—Executive Order 12630 governments ‘‘lack authority’’ to adjust Civil Justice Reform—Executive Order accordingly. At the time of enactment, In accordance with E.O. 12630 12988 these entitlement programs were: (‘‘Government Actions and Interference In accordance with Executive Order Medicaid; Aid to Families with with Constitutionally Protected Private 12988 (Civil Justice Reform), the Office Dependent Children work programs; Property Rights’’), we have analyzed the of the Solicitor has determined that the Child Nutrition; Food Stamps; Social potential takings implications of rule does not unduly burden the judicial Services Block Grants; Vocational designating 587 ac (237 ha) of lands in system and that it meets the Rehabilitation State Grants; Foster Care, Riverside County, California, as critical requirements of sections 3(a) and 3(b)(2) Adoption Assistance, and Independent habitat for Casey’s June beetle in a of the Order. We have designated Living; Family Support Welfare takings implications assessment. Critical critical habitat in accordance with the Services; and Child Support habitat designation does not affect provisions of the Act. This final rule Enforcement. ‘‘Federal private sector landowner actions that do not require uses standard property descriptions and mandate’’ includes a regulation that Federal funding or permits, nor does it identifies the features essential to the ‘‘would impose an enforceable duty preclude development of habitat conservation of the species within the upon the private sector, except (i) a conservation programs or issuance of designated areas to assist the public in condition of Federal assistance; or (ii) a incidental take permits to permit actions understanding the habitat needs of duty arising from participation in a that do require Federal funding or Casey’s June beetle. voluntary Federal program.’’ permits to go forward. The takings The designation of critical habitat implications assessment concludes that Paperwork Reduction Act of 1995 (44 does not impose a legally binding duty this designation of critical habitat for U.S.C. 3501 et seq.) on non-Federal Government entities or Casey’s June beetle does not pose private parties. Under the Act, the only This rule does not contain any new regulatory effect is that Federal agencies significant takings implications for collections of information that require must ensure that their actions do not lands within or affected by the approval by OMB under the Paperwork destroy or adversely modify critical designation. Reduction Act of 1995 (44 U.S.C. 3501 habitat under section 7. While non- Federalism—Executive Order 13132 et seq.). The rule does not impose Federal entities that receive Federal recordkeeping or reporting requirements funding, assistance, or permits, or that In accordance with E.O. 13132 on State or local governments, otherwise require approval or (Federalism), this rule does not have individuals, businesses, or authorization from a Federal agency for significant Federalism effects. A organizations. An agency may not an action, may be indirectly impacted Federalism summary impact statement conduct or sponsor, and a person is not by the designation of critical habitat, the is not required. In keeping with required to respond to, a collection of legally binding duty to avoid Department of the Interior and information unless it displays a destruction or adverse modification of Department of Commerce policy, we currently valid OMB control number. requested information from, and critical habitat rests squarely on the National Environmental Policy Act Federal agency. Furthermore, to the coordinated development of, this (NEPA) (42 U.S.C. 4321 et seq.) extent that non-Federal entities are critical habitat designation with indirectly impacted because they appropriate State resource agencies in It is our position that, outside the receive Federal assistance or participate California. The designation may have jurisdiction of the Circuit Court of the in a voluntary Federal aid program, the some benefit to State and local United States for the Tenth Circuit, we Unfunded Mandates Reform Act does governments because the areas that do not need to prepare environmental not apply, nor does critical habitat shift contain the features essential to the analyses under the National the costs of the large entitlement conservation of the species are more Environmental Policy Act (NEPA; 42 programs listed above on to State clearly defined, and the primary U.S.C. 4321 et seq.) in connection with governments. constituent elements of the habitat designating critical habitat under the (2) We do not believe that this rule necessary to the conservation of Casey’s Act. We published a notice outlining will significantly or uniquely affect June beetle are specifically identified. our reasons for this determination in the small governments because it would not This information does not alter where Federal Register on October 25, 1983 produce a Federal mandate of $100 and what federally sponsored activities (48 FR 49244). This assertion was million or greater in any year; that is, it may occur. However, it may assist these upheld by the Circuit Court of the is not a ‘‘significant regulatory action’’ local governments in long-range United States for the Ninth Circuit under the Unfunded Mandates Reform planning (rather than having them wait (Douglas County v. Babbitt, 48 F.3d

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1495 (9th Cir. 1995), cert. denied 516 beetle from the list of species addressed http://www.regulations.gov and upon U.S. 1042 (1996)). in the draft Tribal HCP, they indicated request from the Field Supervisor, they will ‘‘continue to informally Carlsbad Fish and Wildlife Office (see Government-to-Government coordinate with the Service regarding FOR FURTHER INFORMATION CONTACT Relationship With Tribes this species where it occurs on the section). In accordance with the President’s Reservation.’’ The Tribe stated they are memorandum of April 29, 1994, deferring to the Service to allow ‘‘the Authors Government-to Government Relations Service to take the lead in addressing The primary authors of this notice are with Native American Tribal how to effectively conserve and protect staff members of the Carlsbad Fish and Governments (59 FR 22951), Executive this species’’ (ACBCI 2008, p. 1). Wildlife Office (see FOR FURTHER Order 13175 (Consultation and Although the Tribe has suspended their INFORMATION CONTACT section). Coordination With Indian Tribal pursuit of a section 10(a) permit (ACBCI Governments), and the Department of 2010a, p. 1), they are continuing to List of Subjects in 50 CFR Part 17 the Interior’s manual at 512 DM 2, we implement the draft HCP and will Endangered and threatened species, readily acknowledge our responsibility continue to protect and manage natural Exports, Imports, Reporting and to communicate meaningfully with resources within its jurisdiction (ACBCI, recordkeeping requirements, federally recognized tribes on a 2010a, p. 1; ACBCI 2010b, p. ES–1). We Transportation. government-to-government basis. In will continue to work cooperatively accordance with Secretarial Order 3206 with the Tribe on efforts to conserve Regulation Promulgation of June 5, 1997 (American Indian Tribal Casey’s June beetle. We believe the Accordingly, we amend part 17, Rights, Federal-Tribal Trust exclusion of tribal trust reservation subchapter B of chapter I, title 50 of the Responsibilities, and the Endangered lands from critical habitat will help Code of Federal Regulations, as set forth Species Act), we readily acknowledge preserve and strengthen the partnership below: our responsibilities to work directly we have developed with the Agua with tribes in developing programs for Caliente Band of Cahuilla Indians, PART 17—[AMENDED] healthy ecosystems, to acknowledge that reinforce those relations we are building tribal reservation lands are not subject with other tribes, and foster future ■ 1. The authority citation for part 17 to the same controls as Federal public partnerships and development of future continues to read as follows: lands, to remain sensitive to Indian management plans with both Agua Authority: 16 U.S.C. 1361–1407; 16 U.S.C. culture, and to make information Caliente Band of Cahuilla Indians and available to tribes. We identified tribal 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– other tribes throughout the United 625, 100 Stat. 3500; unless otherwise noted. reservation lands that meet the States. At this time the Secretary is definition of critical habitat for Casey’s exercising his discretion to exclude ■ 2. Amend § 17.11(h) by adding an June beetle. There has been a substantial tribal trust lands (i.e., non-fee, non- entry for ‘‘Beetle, Casey’s June’’, in amount of government-to-government allotted lands) from critical habitat (see alphabetical order under ‘‘INSECTS,’’ to consultation between the Tribe and Tribal Reservation Lands discussion read as follows: Service on developing the draft Tribal under Exclusions, above). HCP and this rulemaking process for § 17.11 Endangered and threatened Casey’s June beetle. Although the Tribe References Cited wildlife. informed us in an October 28, 2008, A complete list of all references cited * * * * * letter that they removed Casey’s June in this rulemaking is available on (h) * * *

Species Vertebrate population Historic where endangered or Status When Critical Special Common name Scientific name range threatened listed habitat rules

******* INSECTS

******* Beetle, Casey’s June ...... Dinacoma caseyi ...... U.S.A. Entire ...... E 793 17.95(i) NA (CA)

*******

■ 3. In § 17.95, amend paragraph (i) by Casey’s June Beetle (Dinacoma caseyi) sands (MaB) or Coachella fine sands adding an entry for ‘‘Casey’s June Beetle (CpA) within CdC soils, at or below 620 (1) The critical habitat unit is (Dinacoma caseyi),’’ in the same ft (189 m) in elevation, associated with depicted for Riverside County in alphabetical order that the species washes and alluvial fans deposited on California on the map below. appears in the table at § 17.11(h), to read 0 to 9 percent slopes to provide space as follows: (2) Within this area, the primary for population growth and reproduction, constituent elements of critical habitat moisture, and food sources; and § 17.95 Critical habitat—fish and wildlife. for Casey’s June beetle are the habitat (ii) Predominantly native desert * * * * * components that provide: vegetation, to provide shelter from (i) Soils of the Carsitas (CdC) gravelly traffic-related mortality and food for the (i) Insects. sand and Riverwash (RA) series, or species. inclusions of Carsitas cobbly sand (ChC) (3) Critical habitat does not include series soils, or inclusions of Myoma fine lands covered by manmade structures,

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such as buildings, aqueducts, airports, (4) Critical habitat map unit. Data zone 11, North American Datum (NAD) and roads, existing on the effective date layers defining the map unit were 1983 coordinates. ′ of this rule and not containing one or created on a base of USGS 7.5 (5) Note: Map of critical habitat for more of the primary constituent quadrangles, and the critical habitat unit Casey’s June beetle follows: was then mapped using Universal elements. BILLING CODE 4310–55–P Transverse Mercator (UTM) coordinates

BILLING CODE 4310–55–C

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(6) Palm Springs: Palm Canyon Wash, 3740158; 545884, 3740153; 545855, 3739309; 544860, 3739295; 544821, Riverside County, California. From 3740146; 545821, 3740135; 545781, 3739281; 544792, 3739270; 544775, USGS 1:24,000 quadrangles Palm 3740122; 545754, 3740111; 545748, 3739264; 544767, 3739261; 544754, Springs and Cathedral City, land 3740109; 545743, 3740106; 545742, 3739256; 544751, 3739253; 544748, bounded by the following Universal 3740106; 545717, 3740096; 545699, 3739249; 544726, 3739226; 544725, Transverse Mercator (UTM) North 3740088; 545681, 3740081; 545664, 3739226; 544722, 3739226; 544718, American Datum of 1983 (NAD83) 3740073; 545646, 3740064; 545629, 3739224; 544709, 3739219; 544709, coordinates (E, N): (E, N): 546545, 3740055; 545612, 3740046; 545595, 3739218; 544703, 3739211; 544701, 3740363; 546556, 3740362; 546566, 3740037; 545578, 3740028; 545550, 3739200; 544699, 3739186; 544697, 3740362; 546577, 3740362; 546587, 3740010; 545533, 3740000; 545516, 3739181; 544691, 3739169; 544669, 3740362; 546595, 3740361; 546603, 3739989; 545499, 3739977; 545483, 3739152; 544642, 3739130; 544576, 3740360; 546608, 3740360; 546614, 3739965; 545467, 3739953; 545450, 3739067; 544533, 3739029; 544487, 3740359; 546625, 3740360; 546637, 3739941; 545435, 3739929; 545431, 3739002; 544487, 3739002; 544485, 3740361; 546650, 3740363; 546657, 3739926; 545427, 3739923; 545425, 3739001; 544435, 3738976; 544434, 3740362; 546667, 3740364; 546668, 3739921; 545419, 3739916; 545404, 3738976; 544433, 3738975; 544405, 3740364; 546674, 3740364; 546680, 3739903; 545388, 3739889; 545373, 3738943; 544388, 3738897; 544388, 3740362; 546700, 3740357; 546722, 3739876; 545359, 3739862; 545344, 3738896; 544375, 3738851; 544345, 3740353; 546734, 3740350; 546746, 3739848; 545330, 3739833; 545330, 3738778; 544317, 3738731; 544302, 3740348; 546756, 3740350; 546764, 3739833; 545330, 3739833; 545330, 3738717; 544285, 3738701; 544273, 3740355; 546767, 3740358; 546768, 3739833; 545330, 3739833; 545329, 3738690; 544272, 3738689; 544249, 3740359; 546789, 3740351; 546791, 3739833; 545329, 3739833; 545329, 3738644; 544248, 3738643; 544246, 3740349; 546791, 3740343; 546795, 3739833; 545329, 3739832; 545329, 3738638; 544239, 3738620; 544230, 3740334; 546799, 3740329; 546805, 3739832; 545329, 3739832; 545329, 3738596; 544216, 3738578; 544186, 3740325; 546810, 3740322; 546821, 3739832; 545329, 3739832; 545329, 3738560; 544155, 3738551; 544154, 3740320; 546823, 3740320; 546833, 3739832; 545329, 3739832; 545328, 3738550; 544128, 3738526; 544127, 3740314; 546865, 3740301; 546941, 3739832; 545326, 3739830; 545306, 3738525; 544118, 3738499; 544109, 3740289; 546971, 3740284; 546980, 3739812; 545305, 3739811; 545305, 3738474; 544107, 3738468; 544087, 3740284; 547001, 3740284; 547022, 3739808; 545303, 3739801; 545297, 3738437; 544057, 3738388; 544010, 3740282; 547038, 3740280; 547058, 3739796; 545297, 3739796; 545285, 3738316; 543957, 3738246; 543954, 3740277; 547075, 3740275; 547086, 3739787; 545276, 3739771; 545272, 3738243; 543942, 3738229; 543906, 3740279; 547092, 3740281; 547093, 3739754; 545271, 3739750; 545269, 3738190; 543901, 3738185; 543900, 3740281; 547104, 3740290; 547115, 3739731; 545260, 3739722; 545250, 3738184; 543881, 3738154; 543860, 3740290; 547133, 3740287; 547158, 3739712; 545248, 3739704; 545243, 3738120; 543858, 3738117; 543844, 3740281; 547169, 3740278; 547170, 3739689; 545232, 3739657; 545229, 3738075; 543830, 3738015; 543819, 3740278; 547175, 3740272; 547183, 3739650; 545229, 3739649; 545223, 3737992; 543800, 3737955; 543799, 3740257; 547192, 3740251; 547199, 3739639; 545201, 3739601; 545201, 3737953; 543775, 3737922; 543774, 3740249; 547199, 3740249; 547241, 3739601; 545180, 3739575; 545179, 3737920; 543731, 3737863; 543688, 3740242; 547291, 3740233; 547343, 3739573; 545178, 3739572; 545171, 3737825; 543687, 3737825; 543685, 3740225; 547345, 3740225; 547360, 3739562; 545155, 3739540; 545149, 3737821; 543678, 3737810; 543671, 3740231; 547371, 3740237; 547382, 3739536; 545146, 3739535; 545142, 3737798; 543667, 3737791; 543667, 3740231; 547395, 3740224; 547408, 3739533; 545139, 3739528; 545138, 3737785; 543667, 3737752; 543667, 3740219; 547425, 3740213; 547442, 3739523; 545137, 3739517; 545137, 3737739; 543667, 3737739; 543659, 3740210; 547449, 3740209; 547464, 3739509; 545138, 3739501; 545145, 3737692; 543643, 3737662; 543597, 3740209; 547473, 3740207; 547482, 3739496; 545152, 3739491; 545152, 3737610; 543568, 3737578; 543549, 3740202; 547488, 3740193; 547488, 3739491; 545153, 3739490; 545155, 3737550; 543517, 3737511; 543469, 3740183; 547480, 3740159; 547474, 3739477; 545155, 3739477; 545151, 3737470; 543468, 3737469; 543451, 3740137; 547473, 3740133; 547468, 3739474; 545145, 3739470; 545135, 3737446; 543451, 3737446; 543451, 3740120; 547455, 3740117; 547446, 3739465; 545129, 3739462; 545126, 3737446; 543452, 3737443; 543457, 3740116; 547436, 3740123; 547418, 3739460; 545122, 3739454; 545121, 3737423; 543455, 3737425; 543452, 3740129; 547397, 3740136; 547380, 3739453; 545121, 3739453; 545120, 3737426; 543447, 3737427; 543440, 3740141; 547354, 3740148; 547344, 3739449; 545120, 3739444; 545120, 3737427; 543427, 3737426; 543412, 3740151; 547323, 3740159; 547285, 3739437; 545120, 3739430; 545117, 3737422; 543411, 3737423; 543411, 3740167; 547274, 3740168; 547267, 3739423; 545117, 3739423; 545116, 3737424; 543411, 3737424; 543411, 3740170; 547212, 3740182; 547147, 3739416; 545115, 3739409; 545114, 3737425; 543411, 3737426; 543411, 3740193; 547092, 3740199; 547017, 3739408; 545108, 3739398; 545106, 3737426; 543411, 3737427; 543410, 3740206; 546951, 3740207; 546942, 3739396; 545094, 3739353; 545055, 3737427; 543410, 3737428; 543410, 3740207; 546890, 3740206; 546840, 3739334; 545046, 3739330; 545045, 3737429; 543410, 3737429; 543410, 3740206; 546782, 3740206; 546740, 3739330; 545045, 3739334; 545023, 3737430; 543410, 3737430; 543410, 3740205; 546722, 3740205; 546721, 3739334; 545023, 3739331; 545023, 3737431; 543410, 3737432; 543410, 3740204; 546717, 3740204; 546693, 3739330; 545002, 3739330; 544997, 3737432; 543409, 3737433; 543409, 3740203; 546650, 3740201; 546584, 3739330; 544995, 3739331; 544990, 3737433; 543409, 3737434; 543409, 3740199; 546513, 3740197; 546387, 3739330; 544978, 3739327; 544965, 3737435; 543409, 3737435; 543409, 3740193; 546325, 3740191; 546220, 3739325; 544941, 3739321; 544929, 3737436; 543409, 3737436; 543409, 3740191; 546158, 3740190; 546119, 3739319; 544924, 3739318; 544921, 3737437; 543409, 3737438; 543408, 3740188; 546081, 3740185; 546024, 3739317; 544921, 3739320; 544915, 3737438; 543408, 3737439; 543408, 3740181; 546000, 3740177; 545991, 3739326; 544911, 3739332; 544909, 3737439; 543408, 3737440; 543408, 3740176; 545976, 3740173; 545955, 3739334; 544895, 3739331; 544878, 3737441; 543408, 3737441; 543408, 3740169; 545938, 3740168; 545908, 3739327; 544868, 3739321; 544864, 3737442; 543408, 3737442; 543408,

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3737443; 543408, 3737444; 543408, 3736164; 542720, 3736164; 542720, 3737924; 543619, 3737931; 543625, 3737444; 543408, 3737445; 543408, 3736164; 542720, 3736164; 542720, 3737936; 543634, 3737949; 543646, 3737445; 543408, 3737446; 543407, 3736165; 542720, 3736165; 542720, 3737960; 543657, 3737971; 543666, 3737447; 543407, 3737447; 543407, 3736165; 542720, 3736165; 542720, 3737979; 543672, 3737989; 543676, 3737448; 543397, 3737458; 543394, 3736165; 542720, 3736165; 542720, 3738002; 543677, 3738009; 543678, 3737467; 543390, 3737463; 543383, 3736165; 542720, 3736166; 542720, 3738011; 543678, 3738049; 543678, 3737459; 543380, 3737458; 543369, 3736166; 542720, 3736166; 542720, 3738056; 543678, 3738093; 543678, 3737450; 543342, 3737385; 543340, 3736166; 542720, 3736166; 542720, 3738157; 543677, 3738225; 543677, 3737378; 543338, 3737373; 543333, 3736200; 542720, 3736200; 542708, 3738425; 543677, 3738448; 543722, 3737365; 543333, 3737365; 543333, 3736200; 542528, 3736200; 542527, 3738487; 543773, 3738532; 543894, 3737365; 543330, 3737362; 543309, 3736200; 542521, 3736221; 542520, 3738634; 543901, 3738634; 543904, 3737335; 543301, 3737267; 543279, 3736225; 542519, 3736226; 542521, 3738634; 543904, 3738672; 543904, 3737068; 543272, 3737011; 543272, 3736246; 542521, 3736246; 542523, 3738674; 543904, 3738701; 543903, 3737009; 543251, 3736822; 543241, 3736250; 542523, 3736250; 542521, 3738701; 543902, 3738718; 543880, 3736729; 543227, 3736600; 543203, 3736276; 542519, 3736289; 542520, 3738718; 543838, 3738717; 543818, 3736387; 543200, 3736359; 543198, 3736345; 542520, 3736398; 542520, 3738717; 543675, 3738715; 543675, 3736326; 543198, 3736324; 543194, 3736452; 542520, 3736495; 542520, 3738722; 543675, 3738752; 543674, 3736290; 543190, 3736255; 543183, 3736519; 542520, 3736556; 542522, 3738772; 543672, 3738999; 543672, 3736201; 543190, 3736202; 543191, 3736552; 542539, 3736520; 542551, 3739066; 543669, 3739139; 543669, 3736202; 543212, 3736202; 543221, 3736502; 542564, 3736487; 542571, 3739148; 543668, 3739178; 543668, 3736202; 543257, 3736202; 543284, 3736481; 542585, 3736499; 542613, 3739208; 543666, 3739643; 543665, 3736202; 543274, 3736190; 543264, 3736567; 542720, 3736563; 542724, 3739807; 543665, 3739844; 543665, 3736177; 543262, 3736168; 543258, 3736563; 542726, 3736484; 542753, 3739922; 543670, 3739922; 543701, 3736159; 543254, 3736142; 543251, 3736484; 542760, 3736478; 542778, 3739922; 543710, 3739923; 543714, 3736128; 543248, 3736115; 543245, 3736473; 542796, 3736471; 542817, 3739923; 543716, 3739923; 543727, 3736105; 543243, 3736097; 543239, 3736468; 542830, 3736464; 542840, 3739935; 543733, 3739942; 543738, 3736090; 543223, 3736070; 543221, 3736455; 542854, 3736456; 542858, 3739947; 543736, 3739948; 543712, 3736069; 543220, 3736069; 543217, 3736461; 542859, 3736471; 542857, 3739948; 543711, 3739973; 543726, 3736072; 543213, 3736078; 543209, 3736477; 542853, 3736482; 542839, 3739973; 543730, 3739983; 543731, 3736085; 543204, 3736095; 543199, 3736545; 542829, 3736586; 542853, 3739986; 543734, 3739995; 543742, 3736108; 543195, 3736126; 543193, 3736572; 542869, 3736559; 542867, 3739995; 543769, 3739994; 544024, 3736134; 543186, 3736125; 543137, 3736545; 542907, 3736518; 542915, 3739989; 544059, 3739988; 544075, 3736125; 543126, 3736126; 543073, 3736504; 542923, 3736484; 542923, 3739987; 544170, 3739985; 544186, 3736129; 543050, 3736140; 543052, 3736604; 542879, 3736605; 542879, 3739985; 544185, 3739987; 544194, 3736162; 543043, 3736213; 543039, 3736647; 542879, 3736656; 542881, 3739985; 544278, 3739984; 544415, 3736233; 543043, 3736266; 543051, 3736805; 543095, 3736807; 543121, 3739983; 544469, 3739983; 544469, 3736290; 543051, 3736303; 543047, 3736807; 543121, 3736839; 543120, 3739929; 544469, 3739893; 544470, 3736305; 543035, 3736300; 543004, 3736951; 543119, 3737008; 543119, 3739837; 544470, 3739828; 544472, 3736278; 542996, 3736272; 542960, 3737008; 543119, 3737008; 543119, 3739646; 544473, 3739430; 544473, 3736231; 542952, 3736217; 542938, 3737008; 542903, 3737006; 542893, 3739324; 544473, 3739183; 544473, 3736200; 542928, 3736188; 542914, 3737009; 542876, 3737008; 542876, 3739148; 544759, 3739426; 544762, 3736182; 542905, 3736178; 542887, 3737108; 542876, 3737108; 542776, 3739429; 544763, 3739430; 544807, 3736166; 542865, 3736139; 542835, 3737108; 542776, 3737182; 542784, 3739471; 544816, 3739479; 544873, 3736084; 542831, 3736070; 542825, 3737185; 542796, 3737201; 542797, 3739533; 544882, 3739542; 544892, 3736060; 542816, 3736052; 542782, 3737207; 542875, 3737208; 543116, 3739550; 544892, 3739544; 544901, 3736031; 542740, 3735997; 542721, 3737210; 543116, 3737210; 543144, 3739559; 544911, 3739570; 544917, 3735985; 542720, 3736121; 542720, 3737219; 543159, 3737223; 543180, 3739576; 544924, 3739583; 544932, 3736145; 542720, 3736145; 542720, 3737239; 543185, 3737243; 543195, 3739591; 544953, 3739613; 544977, 3736145; 542720, 3736145; 542720, 3737251; 543203, 3737257; 543210, 3739637; 544994, 3739655; 545180, 3736148; 542720, 3736149; 542720, 3737263; 543221, 3737293; 543230, 3739837; 545213, 3739869; 545217, 3736156; 542720, 3736156; 542720, 3737318; 543248, 3737381; 543248, 3739872; 545241, 3739901; 545248, 3736157; 542720, 3736157; 542720, 3737382; 543249, 3737388; 543254, 3739907; 545260, 3739917; 545287, 3736159; 542720, 3736159; 542720, 3737405; 543257, 3737413; 543261, 3739941; 545296, 3739954; 545388, 3736159; 542720, 3736159; 542720, 3737426; 543277, 3737463; 543283, 3740038; 545533, 3740135; 545536, 3736160; 542720, 3736160; 542720, 3737475; 543287, 3737481; 543289, 3740136; 545536, 3740137; 545537, 3736160; 542720, 3736160; 542720, 3737484; 543306, 3737511; 543317, 3740148; 545535, 3740184; 545535, 3736160; 542720, 3736160; 542720, 3737526; 543339, 3737555; 543351, 3740207; 545539, 3740233; 545566, 3736160; 542720, 3736161; 542720, 3737575; 543370, 3737602; 543384, 3740232; 545590, 3740233; 545605, 3736161; 542720, 3736161; 542720, 3737619; 543404, 3737637; 543417, 3740233; 545616, 3740232; 545651, 3736161; 542720, 3736161; 542720, 3737649; 543433, 3737662; 543445, 3740233; 545681, 3740233; 545716, 3736161; 542720, 3736162; 542720, 3737672; 543465, 3737689; 543483, 3740233; 545727, 3740233; 545731, 3736162; 542720, 3736162; 542720, 3737709; 543504, 3737733; 543514, 3740233; 545740, 3740233; 545742, 3736162; 542720, 3736162; 542720, 3737743; 543526, 3737760; 543535, 3740233; 545757, 3740236; 545771, 3736162; 542720, 3736162; 542720, 3737773; 543538, 3737782; 543541, 3740240; 545782, 3740241; 545785, 3736163; 542720, 3736163; 542720, 3737820; 543534, 3737820; 543538, 3740241; 545785, 3740242; 545785, 3736163; 542720, 3736163; 542720, 3737828; 543541, 3737837; 543591, 3740242; 545794, 3740245; 545799, 3736163; 542720, 3736163; 542720, 3737900; 543601, 3737906; 543607, 3740246; 545809, 3740249; 545840, 3736164; 542720, 3736164; 542720, 3737914; 543614, 3737917; 543618, 3740256; 545849, 3740256; 545861,

VerDate Mar<15>2010 16:48 Sep 21, 2011 Jkt 223001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\22SER3.SGM 22SER3 jlentini on DSK4TPTVN1PROD with RULES3 58998 Federal Register / Vol. 76, No. 184 / Thursday, September 22, 2011 / Rules and Regulations

3740259; 545892, 3740266; 545912, 543076, 3737420; 542976, 3737420; 3739013; 546374, 3739026; 546356, 3740270; 545914, 3740271; 545925, 542975, 3737438; 542975, 3737485; 3739042; 546356, 3739042; 546341, 3740273; 545965, 3740281; 545990, 542975, 3737511; 542975, 3737511; 3739060; 546342, 3739090; 546335, 3740285; 546011, 3740288; 546052, 542875, 3737511; 542875, 3737511; 3739100; 546326, 3739112; 546325, 3740294; 546077, 3740299; 546094, 542875, 3737545; 542875, 3737584; 3739152; 546324, 3739225; 546335, 3740309; 546108, 3740317; 546117, 542875, 3737600; 542875, 3737600; 3739225; 546365, 3739227; 546365, 3740321; 546139, 3740332; 546156, 542875, 3737622; 542875, 3737623; 3739227; 546364, 3739240; 546362, 3740335; 546170, 3740337; 546170, thence returning to 542904, 3737623; 3739241; 546359, 3739242; 546347, 3740337; 546179, 3740338; 546186, continuing to land bounded by 546332, 3739246; 546347, 3739260; 546347, 3740337; 546188, 3740340; 546188, 3739429; 546332, 3739418; 546331, 3739437; 546347, 3739450; 546359, 3740340; 546195, 3740343; 546203, 3739399; 546328, 3739390; 546324, 3739447; 546392, 3739437; 546562, 3740344; 546210, 3740346; 546217, 3739383; 546313, 3739372; 546302, 3739387; 546651, 3739361; 546703, 3740347; 546225, 3740348; 546231, 3739363; 546286, 3739353; 546272, 3739346; 546707, 3739344; 546699, 3740347; 546240, 3740349; 546249, 3739349; 546263, 3739347; 546247, 3739300; 546685, 3739275; 546682, 3740352; 546256, 3740354; 546263, 3739346; 546210, 3739346; 546162, 3739269; 546658, 3739254; 546620, 3740355; 546270, 3740356; 546275, 3739346; 546161, 3739346; 546160, 3739239; 546606, 3739238; 546605, 3740359; 546281, 3740357; 546289, 3739346; 546155, 3739348; 546155, 3739238; 546557, 3739237; 546553, 3740359; 546295, 3740357; 546297, 3739349; 546154, 3739405; 546154, 3739228; 546551, 3739225; 546546, 3740355; 546304, 3740352; 546323, 3739424; 546157, 3739424; 546164, 3739218; 546536, 3739203; 546536, 3740353; 546328, 3740353; 546328, 3739425; 546173, 3739424; 546190, 3739203; 546508, 3739181; 546493, 3740353; 546332, 3740353; 546474, 3739420; 546205, 3739417; 546219, 3739161; 546489, 3739157; 546469, 3740353; 546476, 3740354; 546484, 3739417; 546231, 3739418; 546236, 3739132; 546447, 3739096; 546437, 3740353; 546492, 3740354; 546500, 3739419; 546244, 3739420; 546255, 3739083; 546415, 3739053; 546411, 3740359; 546505, 3740367; 546510, 3739419; 546263, 3739419; 546269, 3739042; thence returning to 546405, 3740372; 546515, 3740374; 546528, 3739421; 546274, 3739424; 546277, 3739025. 3740370; 546528, 3740368; 546534, 3739428; 546277, 3739433; 546277, * * * * * 3740366; thence returning to 546545, 3739440; 546277, 3739447; 546277, 3740363; continuing to land bounded by 3739450; 546278, 3739454; 546280, Dated: September 12, 2011. 542904, 3737623; 542904, 3737612; 3739457; 546319, 3739447; 546324, Rachel Jacobson, 542941, 3737612; 543061, 3737613; 3739444; 546329, 3739439; thence Acting Assistant Secretary for Fish and 543075, 3737613; 543075, 3737581; returning to 546332, 3739429; Wildlife and Parks. 543075, 3737544; 543075, 3737508; continuing to land bounded by 546405, [FR Doc. 2011–24047 Filed 9–21–11; 8:45 am] 543075, 3737469; 543076, 3737429; 3739025; 546401, 3739010; 546395, BILLING CODE 4310–55–P

VerDate Mar<15>2010 16:48 Sep 21, 2011 Jkt 223001 PO 00000 Frm 00046 Fmt 4701 Sfmt 9990 E:\FR\FM\22SER3.SGM 22SER3 jlentini on DSK4TPTVN1PROD with RULES3