Proposed Rule2024-27316
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rusty Patched Bumble Bee
Primary source
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Published
November 26, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the rusty patched bumble bee (Bombus affinis), a bumble bee historically known to occur broadly across the eastern United States and portions of Canada, under the Endangered Species Act of 1973, as amended (Act). In total, we are proposing the designation of approximately 1,635,746 acres (661,963 hectares) of occupied critical habitat in 14 units across 33 counties in 6 States. We also announce the availability of an economic analysis of the proposed designation of critical habitat for the rusty patched bumble bee.
Full Text
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[Federal Register Volume 89, Number 228 (Tuesday, November 26, 2024)]
[Proposed Rules]
[Pages 93245-93272]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27316]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2024-0132; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH72
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Rusty Patched Bumble Bee
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the rusty patched bumble bee (Bombus
affinis), a bumble bee historically known to occur broadly across the
eastern United States and portions of Canada, under the Endangered
Species Act of 1973, as amended (Act). In total, we are proposing the
designation of approximately 1,635,746 acres (661,963 hectares) of
occupied critical habitat in 14 units across 33 counties in 6 States.
We also announce the availability of an economic analysis of the
proposed designation of critical habitat for the rusty patched bumble
bee.
DATES: We will accept comments received or postmarked on or before
January 27, 2025. We must receive requests for a public hearing, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
January 10, 2025.
ADDRESSES: Written comments: You may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R3-ES-
2024-0132, which is the docket number for this rulemaking. Then, click
on the Search button. On the resulting page, in the panel on the left
side of the screen, under the Document Type heading, check the Proposed
Rule box to locate this document. You may submit a comment by clicking
on ``Comment.'' Comments submitted electronically using the Federal
eRulemaking Portal must be received by 11:59 p.m. eastern time on the
closing date.
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R3-ES-2024-0132, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at <a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a> or at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2024-
0132. If we finalize the critical habitat designation, we will make the
coordinates or plot points or both from which the maps are generated
available at<a href="https://www.regulations.gov">https://www.regulations.gov</a>at Docket No. FWS-R3-ES-2024-
0132 and on the Service's website at<a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a>.
[[Page 93246]]
FOR FURTHER INFORMATION CONTACT: Betsy Galbraith, Acting Field
Supervisor, U.S. Fish and Wildlife Service, Minnesota-Wisconsin
Ecological Services Field Office, 3815 American Blvd. East,
Bloomington, MN 55425-1665; telephone 952-858-0793. Individuals in the
United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
Please see Docket No. FWS-R3-ES-2024-0132 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et
seq.), when we determine that any species warrants listing as an
endangered or threatened species, we are required to designate critical
habitat, to the maximum extent prudent and determinable. Designations
of critical habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to designate critical habitat
for the endangered rusty patched bumble bee.
The basis for our action. Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary), to the maximum extent prudent
and determinable, to designate critical habitat concurrent with
listing. Section 3(5)(A) of the Act defines critical habitat as (i) the
specific areas within the geographical area occupied by the species, at
the time it is listed, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Section 4(b)(2) of the Act states that the Secretary must make the
designation on the basis of the best scientific data available and
after taking into consideration the economic impact, the impact on
national security, and any other relevant impacts of specifying any
particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and be as accurate
and as effective as possible. Therefore, we request comments or
information from other governmental agencies, Native American Tribes,
the scientific community, industry, or any other interested parties
concerning this proposed rule. We particularly seek comments
concerning:
(1) Specific information on:
(a) The amount and distribution of rusty patched bumble bee
habitat;
(b) Any additional areas occurring within the range of the species
that should be included in the designation because they (i) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection, or (ii)
are unoccupied at the time of listing and are essential for the
conservation of the species; and
(c) Special management considerations or protection that may be
needed in the critical habitat areas we are proposing, including
managing for the potential effects of climate change.
(2) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(3) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(4) Information on the extent to which the description of probable
economic impacts in the economic analysis is a reasonable estimate of
the likely economic impacts and any additional information regarding
probable economic impacts that we should consider.
(5) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any areas,
please provide information supporting a benefit of exclusion.
(6) Information on areas owned by the Department of Defense that
overlap with the proposed designation.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a designation. Section 4(b)(2) of the
Act directs that the Secretary shall designate critical habitat on the
basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final designation may differ from this proposal because we will
consider all comments we receive during the comment period as well as
any information that may become available after this proposal. Our
final designation may not include all areas proposed, may include some
additional areas that meet the definition of critical habitat, or may
exclude some areas if we find the benefits of exclusion outweigh the
benefits of inclusion and exclusion will not result in the extinction
of the species. In our final rule, we will clearly explain our
rationale and the basis for our final decision, including why we made
changes, if any, that differ from this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION
[[Page 93247]]
CONTACT. We will schedule a public hearing on this proposal, if
requested, and announce the date, time, and place of the hearing, as
well as how to obtain reasonable accommodations, in the Federal
Register and local newspapers at least 15 days before the hearing. We
may hold the public hearing in person or virtually via webinar. We will
announce any public hearing on our website, in addition to the Federal
Register. The use of virtual public hearings is consistent with our
regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
Please refer to the proposed listing rule for the rusty patched
bumble bee (81 FR 65324, September 22, 2016) for a detailed description
of previous Federal actions concerning this species. On January 11,
2017, we published in the Federal Register (82 FR 3186) a final rule
listing the rusty patched bumble bee as an endangered species. The rule
became effective on March 21, 2017 (see 82 FR 10285, February 10,
2017). On September 1, 2020, we published a determination in the
Federal Register (85 FR 54281) that designating critical habitat for
the rusty patched bumble bee was not prudent.
On March 24, 2021, the Natural Resources Defense Council, Center
for Biological Diversity, and Friends of Minnesota Scientific and
Natural Areas filed a complaint challenging the Service's critical
habitat prudency determination for the rusty patched bumble bee. On
August 11, 2023, a court order vacated and remanded the Service's
prudency determination. On February 8, 2024, the Service and plaintiffs
reached a stipulated settlement agreement whereby the Service agreed to
submit to the Federal Register either a proposed critical habitat rule
or a determination that designation of critical habitat for the species
is not prudent no later than November 20, 2024. This document addresses
the court's opinion in compliance with the February 8, 2024, stipulated
settlement agreement.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the rusty patched bumble bee. The SSA team was composed of Service
biologists, in consultation with other species experts. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we solicited
independent scientific review of the information contained in the rusty
patched bumble bee SSA report. The SSA report underwent review by 15
scientists with expertise in bumble bee biology, habitat management,
and stressors (factors negatively affecting the species). Results of
this structured peer review process can be found in the docket for this
proposed rule on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. We incorporated the
results of these reviews, as appropriate, into the SSA report (Service
2016, entire). Additionally, we will solicit peer review for this
proposed critical habitat designation during this public comment
period. These comments will be available along with other public
comments in the docket for this proposed rule on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the listed species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as
[[Page 93248]]
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific data available. Further,
our Policy on Information Standards Under the Endangered Species Act
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the
Information Quality Act (section 515 of the Treasury and General
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554;
H.R. 5658)), and our associated Information Quality Guidelines provide
criteria, establish procedures, and provide guidance to ensure that our
decisions are based on the best scientific data available. They require
our biologists, to the extent consistent with the Act and with the use
of the best scientific data available, to use primary and original
sources of information as the basis for recommendations to designate
critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information compiled in the SSA report and information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best scientific data
available at the time of designation will not control the direction and
substance of future revised recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Species Needs
Overwintering
Little is known about the overwintering habitats of rusty patched
bumble bee queens, but based primarily on observations of other
species, we assume that rusty patched bumble bee queens overwinter in
upland closed-canopy forest interior. Forest interiors are large blocks
of unfragmented forest with continuous canopy that shows no detectable
edge influences (Harper et al. 2005, p. 771). Most overwintering Bombus
queens reported in the literature in North America were underground,
and most were in shaded areas near trees and in banks without dense
vegetation (Liczner and Colla 2019, p. 787). The only documented
overwintering rusty patched bumble bee queen, discovered in a hemlock
grove within a larger maple oak-forest (about 0.3 mile (mi) (0.5
kilometer (km)) into the forest) in Wisconsin in 2016, was found on a
level area near the bottom of a north-facing slope under a few
centimeters of leaf litter and loose soil (B. Herrick, University of
Wisconsin-Madison Landscape Arboretum, 2016 and 2024, pers. comm.).
Other species of the Bombus genus typically form a chamber in loose,
soft soil, a few centimeters deep in bare earth, in moss, under tree
litter, or in bare patches within short grass, and they may avoid areas
with dense vegetation (Alford 1969, p. 156; Liczner and Colla 2019, p.
792). Overwintering habitat preferences may be species-specific and
dependent on factors such as slope orientation and
[[Page 93249]]
timing of emergence. Most queens in England were found in well-drained
soil that was shaded from direct sunlight in banks or under trees and
was free from living ground vegetation (Alford 1969, pp. 150-152). For
underground sites, soil type is often described as sandy and well-
drained (Alford 1969, p. 169), which suggests that maintaining a
consistently low moisture level is important (Sladen 1912, pp. 94-101).
Because soil temperature influences diapause duration and emergence
(Alford 1969, pp. 161-168; Beekman et al. 1998, p. 207), it has been
hypothesized that the apparent preference for north-facing slopes and
shaded areas is to prevent the overwintering queens from emerging too
early on relatively warm days in the winter or early spring (Alford
1969, pp. 149-169), and more generally, it could suggest selection of
sites that buffer hibernating bees from both temperature and moisture
fluctuations (Williams et al. 2019, pp. 1-3).
Nesting
Rusty patched bumble bee nests are typically 1 to 4 feet
underground in abandoned rodent nests, other mammal burrows, or other
underground cavities with ample cover, and occasionally at the soil
surface or in aboveground structures (Plath 1922 pp. 190-191,
Macfarlane 1974, p. 5; Macfarlane 1994, pp. 5-6). Among the 43 rusty
patched bumble bee nests studied in Ontario, 95 percent were
underground (Macfarlane 1974, p. 5). Most recent rusty patched bumble
bee nest observations were associated with rodent burrows (Boone et al.
2022, p. 381; Smith et al. in review), as were recently discovered
nests of a closely related species, the western bumble bee (B.
occidentalis) (Everett et al. in process, entire), which is in the same
subgenus as rusty patched bumble bee. Three western bumble bee nests
excavated in 2022 and 2023 in central Oregon were located in abandoned
rodent burrows with soils classified as loamy sand, with an average of
84 percent sand particles (Everett et al. in process, entire). The
transition zone between forest and grassland, as well as field
boundaries, meadow margins, and forest edges, can be particularly
valuable bumble bee nesting habitat due to the presence of abandoned
rodent nests and undisturbed habitat with diverse floral resources
(Hines and Hendrix 2005, p. 1483). Forest edge is the interface between
forested and non-forested habitats that extends approximately 30 meters
into the forest (Harper et al. 2005, pp. 771, 774).
Foraging
Bumble bees are generalist foragers that collect nectar and pollen
from a wide diversity of plants (Xerces 2013, pp. 27-28). The rusty
patched bumble bee is one of the first bumble bee species to emerge
early in the spring and last to go into hibernation in the fall. To
meet its nutritional needs, the species requires a constant and diverse
supply of flowers that bloom throughout the colony's flight period from
spring through the fall (MacFarlane et al. 1994, p. 5). The nectar from
flowers provides carbohydrates and the pollen provides protein, fatty
acids, and micronutrients for the species (Di Pasquale et al. 2013, p.
4; Lau et al. 2022, pp. 6-8). The number of new queens that a colony
can produce is directly related to the amount of pollen that is
available (Burns 2004, p. 150).
Based on other Bombus species, which typically exhibit foraging
distances of less than 0.6 mi (1 km) from their nesting sites (Knight
et al. 2005, p. 1816; Wolf and Moritz 2008, p. 422; Dramstad 1996, pp.
163-182; Osborne et al. 1999, pp. 524-526; Rao and Strange 2012, pp.
909-911), the rusty patched bumble bee may need floral resources in
close proximity to its nest, although studies have not confirmed this
to date. The rusty patched bumble bee may also be dependent on forest
spring ephemeral flowers because of the species' early emergence in the
spring and its association with forests and near forested habitats
(Colla and Dumesh 2010, pp. 45-46, 48).
Readily available access to high-quality foraging habitats near
nests allows other bumble bee species' workers to maintain short
foraging distances (Crowther et al. 2019, p. 994). Detection
probabilities of all bumble bee species, including rusty patched bumble
bees, studied in Wisconsin by Nunes et al. (2024, p. 221), increased
with floral abundance. Furthermore, colonies with low floral abundance
around their nests may produce few workers, and males may fail to
produce any new queens (Pelletier and McNeil 2003, pp. 691-692; Burns
2004, pp. 149, 155-156; Samuelson et al. 2018, pp. 57; Timberlake et
al. 2021, p. 1013). Workers of other bumble bee species can forage 0.6
mi (1 km) or more from nests but may predominantly forage within a few
hundred meters (Dramstad 1996, pp. 170-175; Osborne et al. 1999, pp.
524-526, 529; Wolf and Moritz 2008, p. 422; Rao and Strange 2012, p.
911). A paucity of spring floral resources contributed to high pathogen
loads in one bumble bee species studied in Pennsylvania and may
exacerbate the threat posed by disease transmission from honeybee
apiaries (McNeil et al. 2020, p. 3).
The availability of floral resources is dependent on the proper
soil and precipitation conditions to sustain them. Extended periods of
drought, for instance, may lessen the availability and diversity of
flowering plants in a given area because plant phenology is primarily
driven by temperature, precipitation, and the timing of snowmelt in the
spring (Inouye and Wielgolaski 2003, p. 207; Wielgolaski and Inouye
2003, pp. 179-181; Pyke et al. 2016, p. 12).
Dispersal Habitat
Based on studies of a closely related species, the buff-tailed
bumblebee (Bombus terrestris) (Kraus et al. 2009, p. 249; Lepais et al.
2010, pp. 826-827; Jha and Kremen 2013, p. 2492), the maximum dispersal
distance of rusty patched bumble bee males and new queens is estimated
to be up to 10 km to find mates in the autumn.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the rusty patched bumble bee from studies of the
species' habitat, ecology, and life history as described above.
Additional information can be found in the SSA report (Service 2016,
entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-
R3-ES-2015-0112-0245). We have determined that the following physical
or biological features are essential to the conservation of the rusty
patched bumble bee:
(1) For overwintering, upland forest interior habitat containing
leaf litter and without dense understory vegetation.
(2) For nesting, upland forest edge interface between forested and
non-forested natural habitats that extends approximately 30 meters into
the forest.
(3) For nesting, abandoned rodent burrows, other mammal burrows,
existing cavities with ample cover, or similar existing cavities at the
soil surface or below to 4 feet underground.
(4) For nesting and overwintering, well-drained, loose soils
sheltered from the elements.
(5) For foraging, diverse, abundant, native floral resources for
the entire active flight season.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain
[[Page 93250]]
features which are essential to the conservation of the species and
which may require special management considerations or protection. The
features essential to the conservation of this species may require
special management considerations or protection to reduce stressors
that are anticipated to degrade the physical or biological features,
including, but not limited to, ground disturbance or compaction
activities (e.g., road and rail construction), habitat management
(e.g., prescribed burns, herbicide use), forestry activities (e.g.,
timber harvest), actions that cause an increase in the extent or
duration of surface flooding or soil saturation (e.g., water
impoundments, alteration or interruption of existing drainage patterns,
surface runoff alterations), actions that increase competition for
floral resources (e.g., use of managed bees), and pesticide
applications (e.g., rodenticides that may reduce rodents and therefore
potential nesting areas). Sources of these stressors include, but are
not limited to, agricultural, municipal, and residential land uses. The
physical or biological features for the rusty patched bumble bee may
require special management considerations or protection to address
these threats.
Management activities that could ameliorate these threats include,
but are not limited to: management techniques to enhance floral
resources or reduce invasive plants or both, such as planting or
seeding to increase the abundance and diversity of native wildflowers,
removing and controlling invasive plants, using prescribed fire, and
mowing; reduced or ceased use of rodenticides; use of best management
practices for managed bees to reduce or eliminate competition for
resources; and use of forestry best management practices to enhance
early spring foraging resources (e.g., spring ephemerals, native
flowering trees) and to reduce ground disturbance in forested areas
during the overwintering season.
These management activities would protect the physical or
biological features for the species by maintaining and increasing
nectar and pollen resources, maintaining or increasing the availability
of suitable nesting habitat and potential nesting sites (e.g., rodent
burrows), and maintaining or increasing the availability of suitable
overwintering habitat for the species.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. In general, habitat is not
limiting for the rusty patched bumble bees. However, there are no areas
outside the areas identified as proposed critical habitat that would
facilitate the recovery of the species. We are not currently proposing
to designate any areas outside the geographical area occupied by the
species because we have not identified any unoccupied areas that meet
the Act's definition of critical habitat. There are no unoccupied areas
that are essential for the conservation of the rusty patched bumble
bee. We identified no unoccupied areas that are free from potential
interactions with managed bees or large-scale agricultural lands. There
are many unoccupied areas that may contain suitable habitat for the
rusty patched bumble bee; however, we did not identify any specific
unoccupied areas that are essential for the conservation of the
species. Areas that contain unoccupied suitable habitat can be
considered in our recovery efforts with or without a critical habitat
designation.
Sources of data for the rusty patched bumble bee and its habitat
needs include research published in peer-reviewed articles on the
species and related species, agency reports, communication with species
experts, the 2021 rusty patched bumble bee recovery plan (Service 2021,
entire), data submitted from 10(a)(1)(A) scientific recovery permit
holders and public participation websites (e.g., <a href="https://www.inaturalist.org/">https://www.inaturalist.org/</a>), and the Service's published ``High Potential
Zones'' and potential dispersal area data for rusty patched bumble bee
(available from ArcGIS online at <a href="https://www.arcgis.com/home/item.html?id=15b68d967aab4737981d172e8e25f78f">https://www.arcgis.com/home/item.html?id=15b68d967aab4737981d172e8e25f78f</a>, accessed June 9, 2024).
After identifying areas that contain the physical or biological
features essential to the conservation of the species, we then
identified overlapping areas that likely have multiple colonies
interacting with each other. A minimum of 50 verified rusty patched
bumble bee observations since 2007 within estimated foraging and
dispersal distances of one another likely represents multiple,
interacting colonies existing over time, rather than single
observations of a single individual (most observations are of female
workers; however, some are males or queens). Clustered, interacting
colonies foster gene flow among them, thereby helping to facilitate
genetic health. Maintaining gene flow among colonies is especially
important in species like the rusty patched bumble bee because of
genetic characteristics that can produce inviable or sterile males
(that is, single locus complementary sex determination), which may lead
to rapid extirpation, especially as colonies become small and isolated
(Zayed and Packer 2005, p. 10744; Zayed 2009, entire).
We used the High Potential Zone (HPZ) model developed at the time
of listing to determine areas with the highest potential for the
species to be present and for which observation points were within
likely foraging or dispersal distances from each other. This model uses
ArcGIS software that considers the likelihood of rusty patched bumble
bee movement based on the National Land Cover Database (NLCD, <a href="https://www.usgs.gov/centers/eros/science/national-land-cover-database">https://www.usgs.gov/centers/eros/science/national-land-cover-database</a>). This
model assesses the likelihood of rusty patched bumble bee distribution
from the locations of known records based on the manner in which
various land cover types may affect bumble bee movement and behavior.
Land cover types are grouped as having strong, moderate, weak, or no
limits on the species' movement based on the best available information
for this species or similar bumble bee species. This methodology was
based on a similar model created to examine movement of the yellow-
faced bumble bee (Bombus vosnesenskii) (Jha and Kremen 2013, entire).
The polygons generated from the HPZ model suggest areas with the
highest potential for the species to be present, based on typical
bumble bee foraging distances, estimated dispersal distances, and the
ability of bumble bees to move through various land cover types, but
the model does not attempt to identify or quantify suitable habitat for
the species (for more details, see <a href="https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee">https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee</a>).
After identifying areas that likely have multiple interacting
colonies and are within a contiguous HPZ, we then identified areas that
are genetically distinct. Analyses of rangewide genetic data collected
from extant records show that rusty patched bumble bees in the
Appalachian region of West Virginia and Virginia represent a
genetically distinct population cluster with substantial
differentiation from the rest of the extant range (Mola et al. 2024, p.
8).
[[Page 93251]]
Finally, we included areas free from the impacts of pesticides and
managed bees. Prior to its listing as endangered in 2017, the species
experienced a widespread and steep decline. The exact cause of the
decline is unknown, but evidence suggests a synergistic interaction
between an introduced pathogen and exposure to pesticides
(specifically, insecticides and fungicides; Service 2016, p. 53).
Pathogens can be introduced to rusty patched bumble bees through
managed bees. Generally, the term ``managed bees'' is defined as hives
or colonies of bees that are used commercially to provide pollination
services for a wide variety of crops over the growing season, with some
hives or colonies moved within and among States multiple times
throughout any one growing season. We, therefore, include only areas
that are at least 0.6 mi (1 km) away from large-scale and intensive
agricultural areas that rely on pesticides, or use a variety of managed
bees for pollination, or both. This distance is used to buffer areas
from the potential impacts of managed bees and pesticides that may be
used in large-scale agriculture.
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
(1) Areas within a contiguous high potential zone (HPZ) with 50 or
more positive observations since 2007.
(2) Areas that include any known genetically distinct populations.
(3) Areas that are at least 0.6 mi (1 km) away from large-scale
agriculture that use pesticides, managed bees, or both.
This proposed critical habitat overlaps a great deal of developed
areas, such as lands covered by buildings, pavement, and other
structures. These structures are not designated as critical habitat
themselves because such structures lack the physical or biological
features necessary for the rusty patched bumble bee. However, the
physical or biological features for rusty patched bumble are
interspersed throughout the developed lands at such a scale that they
cannot be mapped. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such structures. Any such structures left
inside critical habitat boundaries shown on the maps of this proposed
rule have been excluded by text in the proposed rule and are not
proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
such structures would not trigger section 7 consultation with respect
to critical habitat and the requirement of no adverse modification
unless the specific action would affect the physical or biological
features in the surrounding critical habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation.
Proposed Critical Habitat Designation
We are proposing 14 units as critical habitat for the rusty patched
bumble bee. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the rusty patched bumble bee. The 14 areas we propose as
critical habitat are: (1) Minneapolis-St. Paul Metropolitan; (2)
Northfield; (3) Rochester; (4) Winona; (5) Denzer; (6) Bunker Hill; (7)
Madison; (8) Milwaukee; (9) Rockford; (10) McHenry; (11) Elgin; (12)
Lost Nation; (13) Iowa City; and (14) Black Creek Mountain. Table 1
shows the proposed critical habitat units and the approximate area of
each unit; all units are considered occupied.
Table 1--Proposed Critical Habitat Units for the Rusty Patched Bumble Bee
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Size of unit in
Critical habitat unit Land ownership by type acres (hectares) State(s)
----------------------------------------------------------------------------------------------------------------
1. Minneapolis-St. Paul Metropolitan.. Private................. 499,204 (202,021) Minnesota.
Federal................. 5,741 (2,323)
State/local/school...... 59,769 (24,188)
Tribal.................. 3,091 (1,251)
----------------------
Total.................. 567,805 (229,782)
----------------------------------------------------------------------------------------------------------------
2. Northfield......................... Private................. 12,056 (4,879) Minnesota.
Federal................. 0
State/local/school...... 501 (203)
Tribal.................. 0
----------------------
Total.................. 12,557 (5,082)
----------------------------------------------------------------------------------------------------------------
3. Rochester.......................... Private................. 41,819 (16,924) Minnesota.
Federal................. 0
State/local/school...... 1,271 (515)
Tribal.................. 0
----------------------
Total.................. 43,091 (17,438)
----------------------------------------------------------------------------------------------------------------
4. Winona............................. Private................. 29,340 (11,873) Minnesota.
Federal................. 0
State/local/school...... 483 (195)
Tribal.................. 0
----------------------
Total.................. 29,823 (12,069)
----------------------------------------------------------------------------------------------------------------
[[Page 93252]]
5. Denzer............................. Private................. 26,471 (10,712) Wisconsin.
Federal................. 0
State/local/school...... 538 (218)
Tribal.................. 0
----------------------
Total.................. 27,009 (10,930)
----------------------------------------------------------------------------------------------------------------
6. Bunker Hill........................ Private................. 13,559 (5,487) Wisconsin.
Federal................. 0
State/local/school...... 5,126 (2,075)
Tribal.................. 0
----------------------
Total.................. 18,686 (7,562)
----------------------------------------------------------------------------------------------------------------
7. Madison............................ Private................. 195,952 (79,299) Wisconsin.
Federal................. 515 (208)
State/local/school...... 14,283 (5,780)
Tribal.................. 4 (2)
----------------------
Total.................. 210,753 (85,289)
----------------------------------------------------------------------------------------------------------------
8. Milwaukee.......................... Private................. 232,722 (94,179) Wisconsin.
Federal................. 131 (53)
State/local/school...... 20,130 (8,146)
Tribal.................. 10 (4)
----------------------
Total.................. 252,992 (102,382)
----------------------------------------------------------------------------------------------------------------
9. Rockford........................... Private................. 136,826 (55,371) Illinois.
Federal................. 0
State/local/school...... 13,283 (5,375)
Tribal.................. 0
----------------------
Total.................. 150,108 (60,747)
----------------------------------------------------------------------------------------------------------------
10. McHenry........................... Private................. 59,158 (23,940) Illinois and Wisconsin.
Federal................. 2 (1)
State/local/school...... 9,135 (3,697)
Tribal.................. 0
----------------------
Total.................. 68,295 (27,638)
----------------------------------------------------------------------------------------------------------------
11. Elgin............................. Private................. 56,318 (22,791) Illinois.
Federal................. 0
State/local/school...... 18,762 (7,593)
Tribal.................. 0
----------------------
Total.................. 75,080 (30,384)
----------------------------------------------------------------------------------------------------------------
12. Lost Nation....................... Private................. 14,416 (5,834) Illinois.
Federal................. 0
State/local/school...... 627 (254)
Tribal.................. 0
----------------------
Total.................. 15,043 (6,088)
----------------------------------------------------------------------------------------------------------------
13. Iowa City......................... Private................. 30,397 (12,301) Iowa.
Federal................. 11,362 (4,598)
State/local/school...... 4,144 (1,677)
Tribal.................. 0
----------------------
Total.................. 45,902 (18,576)
----------------------------------------------------------------------------------------------------------------
14. Black Creek Mountain.............. Private................. 11,200 (4,532) Virginia and West
Federal................. 105,558 (42,718) Virginia.
State/local/school...... 1,845 (747)
Tribal.................. 0
----------------------
Total.................. 118,603 (47,997)
----------------------------------------------------------------------------------------------------------------
[[Page 93253]]
Totals............................ Private................. 1,359,437 (550,145)
Federal................. 123,307 (49,901)
State/local/school...... 149,897 (60,661)
Tribal.................. 3,105 (1,257)
-------------------------------------------------------------------------
Total.................. 1,635,746 (661,963)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the rusty patched bumble
bee, below.
Unit 1: Minneapolis-St. Paul Metropolitan
Unit 1 consists of 567,805 ac (229,782 ha) in the Minneapolis-St.
Paul metropolitan area of Minnesota in Ramsey, Scott, Dakota, Pierce,
Washington, Carver, Hennepin, and St. Croix Counties. The unit is
occupied and contains all of the essential physical or biological
features. This unit consists of private lands (499,204 ac (202,021
ha)), local government-owned lands (40,596 ac (16,429 ha)), Minnesota
State lands (11,983 ac (4,849 ha)), university or school lands (7,190
ac (2,910 ha)), Tribal lands (3,091 ac (1,251 ha)), and Federal lands
(5,741 ac (2,323 ha)). The Federal lands include the National Park
Service's Mississippi National River and Recreational Area and Lower
St. Croix National Scenic Riverway, and the Service's Minnesota Valley
National Wildlife Refuge. Approximately 212 ac (86 ha) of privately
owned lands are managed by the U.S. Department of Agriculture's Natural
Resources Conservation Service (USDA-NRCS) Wetlands Reserve Program.
Tribal lands include Shakopee Mdewakanton Sioux Community and Shakopee
Mdewakanton Sioux Community Off-Reservation Land Trust.
Special management considerations or protection may be required
within Unit 1 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 2: Northfield
Unit 2 consists of 12,557 ac (5,082 ha) in the Northfield,
Minnesota, metropolitan area in Dakota and Rice Counties. The unit is
occupied and contains all of the essential physical or biological
features. This unit consists of private lands (12,056 ac (4,879 ha)),
local government-owned lands (489 ac (198 ha)), and Minnesota State
lands (12 ac (5 ha)). There are no Federal or Tribal lands identified
in this unit.
Special management considerations or protection may be required
within Unit 2 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 3: Rochester
Unit 3 consists of 43,091 ac (17,438 ha) in the Rochester,
Minnesota, metropolitan area in Olmsted County. The unit is occupied
and contains all of the essential physical or biological features. This
unit consists of private lands (41,819 ac (16,924 ha)), local
government-owned lands (939 ac (380 ha)), and Minnesota State lands
(332 ac (134 ha)). There are no Federal or Tribal lands identified in
this unit.
Special management considerations or protection may be required
within Unit 3 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 4: Winona
Unit 4 consists of 29,823 ac (12,069 ha) in the Winona, Minnesota,
area in Winona County. The unit is occupied and contains all of the
essential physical or biological features. This unit consists of
private lands (29,340 ac (11,873 ha)), local government-owned lands
(423 ac (171 ha)), and Minnesota State lands (60 ac (24 ha)). There are
no Federal or Tribal lands identified in this unit.
Special management considerations or protection may be required
within Unit 4 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides
[[Page 93254]]
that may reduce rodents and therefore potential nesting areas for the
rusty patched bumble bee). Sources of these stressors include, but are
not limited to, agricultural, municipal, and residential land uses.
Unit 5: Denzer
Unit 5 consists of 27,009 ac (10,930 ha) in Sauk County near
Denzer, Wisconsin. The unit is occupied and contains all of the
essential physical or biological features. This unit consists of
private lands (26,471 ac (10,712 ha)), including 2,345 ac (949 ha)
owned by nongovernmental organizations (NGOs), and Wisconsin State
lands (538 ac (218 ha)). There are no Federal or Tribal lands
identified in this unit.
Special management considerations or protection may be required
within Unit 5 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 6: Bunker Hill
Unit 6 consists of 18,686 ac (7,562 ha) in Iowa County near Bunker
Hill, Wisconsin. The unit is occupied and contains all of the essential
physical or biological features. This unit consists of private lands
(13,559 ac (5,487 ha)) and Wisconsin State lands (5,126 ac (2,075 ha)).
There are no Federal or Tribal lands identified in this unit.
Special management considerations or protection may be required
within Unit 6 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 7: Madison
Unit 7 consists of 210,753 ac (85,289 ha) in Dane and Iowa Counties
near Madison, Wisconsin. The unit is occupied and contains all of the
essential physical or biological features. This unit consists of
private lands (195,952 ac (79,299 ha)), local government-owned lands
(8,679 ac (3,512 ha)), university or school lands (1,086 ac (440 ha)),
Wisconsin State lands (4,518 ac (1,828 ha)), Tribal lands (4 ac (2
ha)), and Federal lands (515 ac (208 ha)). The Federal lands include
the U.S. Forest Service's Forest Products Experimental Laboratory,
National Park Service's Ice Age National Scenic Trail, and the
Service's Dane County Waterfowl Production Area. Approximately 304 ac
(123 ha) of private lands in this unit are managed by the USDA-NRCS
Wetlands Reserve Program, and approximately 53 ac (21 ha) are managed
by the USDA-NRCS Emergency Waters Protection Program. The Tribal lands
are managed by the Ho-Chunk Nation.
Special management considerations or protection may be required
within Unit 7 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 8: Milwaukee
Unit 8 consists of 252,992 acres (102,382 hectares) in the
Milwaukee, Wisconsin, metropolitan area in Milwaukee, Ozaukee, Racine,
Washington, and Waukesha Counties. The unit is occupied and contains
all of the essential physical or biological features. This unit
consists of private lands (232,722 ac (94,179 ha)), local government-
owned lands (17,995 ac (7,282 ha)), Wisconsin State lands (2,121 ac
(858 ha)), university or school lands (14 ac (6 ha)), Tribal lands (10
ac (4 ha)), and Federal lands (131 ac (53 ha)). The Federal lands in
this unit are owned by the Bureau of Land Management (5 ac (2 ha)) and
the Department of Defense (126 ac (51 ha)). Approximately 66 ac (27 ha)
of private lands in this unit are managed by the USDA-NRCS Wetlands
Reserve Program. Tribal lands are in the Forest County Potawatomi Off-
Reservation Land Trust.
Special management considerations or protection may be required
within Unit 8 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 9: Rockford
Unit 9 consists of 150,108 ac (60,747 ha) in Boone, Ogle, and
Winnebago Counties near Rockford, Illinois. The unit is occupied and
contains all of the essential physical or biological features. This
unit consists of private lands (136,826 ac (55,371 ha)), local
government-owned lands (7,898 ac (3,196 ha)), university or school
lands (2,395 ac (969 ha)), and Illinois State lands (2,990 ac (1,210
ha)). There are no Federal or Tribal lands identified in this unit.
Approximately 669 ac (271 ha) of private lands in this unit are managed
by the USDA-NRCS Wetlands Reserve Program.
Special management considerations or protection may be required
within Unit 9 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g.,
[[Page 93255]]
water impoundments, alteration or interruption of existing drainage
patterns, surface runoff alterations), and pesticide applications
(e.g., rodenticides that may reduce rodents and therefore potential
nesting areas for the rusty patched bumble bee). Sources of these
stressors include, but are not limited to, agricultural, municipal, and
residential land uses.
Unit 10: McHenry
Unit 10 consists of 68,295 ac (27,638 ha) near McHenry, Illinois,
in McHenry and Lake Counties, Illinois, and Kenosha County, Wisconsin.
The unit is occupied and contains all of the essential physical or
biological features. This unit consists of private lands (59,158 ac
(23,940 ha)), local government-owned lands (1,406 ac (569 ha)),
Illinois State lands (5,445 ac (2,204 ha)), university or school lands
(2,284 ac (924 ha)), and Federal lands (2 ac (1 ha)). The Federal lands
are owned by the Bureau of Land Management. Thirty-nine ac (16 ha) of a
conservation easement within the Hackmatack National Wildlife Refuge,
managed by the Service, falls within this unit. Approximately 412 ac
(167 ha) of private lands within this unit are managed by the USDA-NRCS
Wetlands Reserve Program. There are no Tribal lands identified in this
unit.
Special management considerations or protection may be required
within Unit 10 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 11: Elgin
Unit 11 consists of 75,080 ac (30,384 ha) in Cook, Kane, Lake, and
McHenry Counties near Elgin, Illinois. The unit is occupied and
contains all of the essential physical or biological features. This
unit consists of private lands (56,318 ac (22,791 ha)), local
government-owned lands (13,710 ac (5,548 ha)), university or school
lands (4,884 ac (1,977 ha)), and Illinois State lands (168 ac (68 ha)).
There are no Federal or Tribal lands identified in this unit.
Special management considerations or protection may be required
within Unit 11 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 12: Lost Nation
Unit 12 consists of 15,043 ac (6,088 ha) in Lee and Ogle Counties
near Lost Nation, Illinois. The unit is occupied and contains all of
the essential physical or biological features. This unit consists of
private lands (14,416 ac (5,834 ha)), including 2,189 ac (886 ha) owned
by NGOs, and Illinois State lands (627 ac (254 ha)). There are no
Federal or Tribal lands identified in this unit.
Special management considerations or protection may be required
within Unit 12 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 13: Iowa City
Unit 13 consists of 45,902 ac (18,576 ha) in Johnson County near
Iowa City, Iowa. The unit is occupied and contains all of the essential
physical or biological features. This unit consists of private lands
(30,397 ac (12,301 ha)), Iowa State lands (2,287 ac (926 ha)), local
government-owned lands (1,857 ac (751 ha)), and Federal lands (11,362
ac (4,598 ha)). The Federal lands include the U.S. Army Corps of
Engineers' Coralville Lake and Coralville Reservoir. A portion of the
U.S. Army Corps of Engineers' land is managed by the State of Illinois
(1,333 ac (539 ha)) and the University of Iowa (421 ac (170 ha)).
Special management considerations or protection may be required
within Unit 13 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty patched bumble bee).
Sources of these stressors include, but are not limited to,
agricultural, municipal, and residential land uses.
Unit 14: Black Creek Mountain
Unit 14 consists of 118,603 ac (47,997 ha) near Black Creek
Mountain in Highland and Bath Counties, Virginia, and Greenbrier and
Pocahontas Counties, West Virginia. The unit is occupied and contains
all of the essential physical or biological features. This unit
consists of private lands (11,200 ac (4,532 ha)), Virginia State lands
(1,845 ac (747 ha)), and Federal lands (105,558 ac (42,718 ha)). The
Federal lands include the Monongahela and George Washington-Jefferson
National Forests.
Special management considerations or protection may be required
within Unit 14 to alleviate impacts from stressors that are anticipated
to degrade the physical or biological features, including, but not
limited to, ground disturbance or compaction activities (e.g., road and
rail construction), habitat management (e.g., prescribed burns,
herbicide use), forestry activities (e.g., timber harvest), actions
that cause an increase in the extent or duration of surface flooding or
soil saturation (e.g., water impoundments, alteration or interruption
of existing drainage patterns, surface runoff alterations), and
pesticide applications (e.g., rodenticides that may reduce rodents and
therefore potential nesting areas for the rusty
[[Page 93256]]
patched bumble bee). Sources of these stressors include, but are not
limited to, forestry, recreational, municipal, and residential land
uses.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Destruction or adverse modification means a direct or indirect
alteration that appreciably diminishes the value of critical habitat as
a whole for the conservation of a listed species (50 CFR 402.02).
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during formal consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation. Reinitiation of consultation is
required and shall be requested by the Federal agency, where
discretionary Federal involvement or control over the action has been
retained or is authorized by law and: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (4) if a new species is listed or critical habitat
designated that may be affected by the identified action. As provided
in 50 CFR 402.16, the requirement to reinitiate consultations for new
species listings or critical habitat designation does not apply to
certain agency actions (e.g., land management plans issued by the
Bureau of Land Management in certain circumstances).
Destruction or Adverse Modification of Critical Habitat
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support the physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires that our Federal Register
documents ``shall, to the maximum extent practicable also include a
brief description and evaluation of those activities (whether public or
private) which, in the opinion of the Secretary, if undertaken may
adversely modify [critical] habitat, or may be affected by such
designation.'' Activities that may be affected by designation of
critical habitat for the rusty patched bumble bee include those that
may affect the essential physical or biological features of the rusty
patched bumble bee's critical habitat (see Physical or Biological
Features Essential to the Conservation of the Species, above).
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation.
An INRMP that does not include the rusty patched bumble was
completed by the 88th Readiness Division (RD) of the Army Reserve in
2017. As currently written, the 2017 INRMP does not provide a benefit
to the rusty batched bumble bee. The 88th RD is in the process of
updating its INRMP to incorporate the rusty patched bumble bee and its
habitat. After we receive the updated INRMP, we will assess its
conservation benefit to the rusty patched bumble bee under 50 CFR
424.12(h) before the final critical habitat designation. Based on the
considerations outlined in 50 CFR 424.12(h), and in accordance with
section 4(a)(3)(B)(i) of the Act, if we determine that conservation
efforts identified in the INRMP will provide a benefit to the rusty
patched bumble bee, we will exempt lands within this installation from
critical habitat designation under section 4(a)(3) of the Act;
approximately 47 ac (19 ha) of Unit 1 (Minneapolis-St. Paul
Metropolitan), 127 ac (51 ha) of Unit 8 (Milwaukee), and 15 ac (6 ha)
of Unit 9 (Rockford) of 88th RD land would be exempted from the final
designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude any area from critical habitat if the benefits of
exclusion outweigh those of inclusion, so long as exclusion will not
result in extinction of the species concerned.
[[Page 93257]]
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226,
February 11, 2016), both of which were developed jointly with the
National Marine Fisheries Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor's opinion entitled ``The
Secretary's Authority to Exclude Areas from a Critical Habitat
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary section
4(b)(2) exclusion analysis.
Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866
and E.O. 13563 and directs Federal agencies to assess the costs and
benefits of available regulatory alternatives in quantitative (to the
extent feasible) and qualitative terms. Consistent with the E.O.
regulatory analysis requirements, our effects analysis under the Act
may take into consideration impacts to both directly and indirectly
affected entities, where practicable and reasonable. If sufficient data
are available, we assess to the extent practicable the probable impacts
to both directly and indirectly affected entities. To determine whether
the designation of critical habitat may have an economic effect of $200
million or more in any given year (which would trigger section 3(f) of
E.O. 12866, as amended by E.O. 14094), we used a screening analysis to
assess whether a designation of critical habitat for the rusty patched
bumble bee is likely to exceed this threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the rusty patched bumble bee (Industrial
Economics, Inc. (IEc) 2024, entire). We began by conducting a screening
analysis of the proposed designation of critical habitat in order to
focus our analysis on the key factors that are likely to result in
incremental economic impacts. The purpose of the screening analysis is
to filter out particular geographical areas of critical habitat that
are already subject to such protections and are, therefore, unlikely to
incur incremental economic impacts. In particular, the screening
analysis considers baseline costs (i.e., absent critical habitat
designation) and includes any probable incremental economic impacts
where land and water use may already be subject to conservation plans,
land management plans, best management practices, or regulations that
protect the habitat area as a result of the Federal listing status of
the species. Ultimately, the screening analysis allows us to focus our
analysis on evaluating the specific areas or sectors that may incur
probable incremental economic impacts as a result of the designation.
The presence of the listed species in occupied areas of critical
habitat means that any destruction or adverse modification of those
areas is also likely to jeopardize the continued existence of the
species. Therefore, designating occupied areas as critical habitat
typically causes little if any incremental impacts above and beyond the
impacts of listing the species. As a result, we generally focus the
screening analysis on areas of unoccupied critical habitat (unoccupied
units or unoccupied areas within occupied units). Overall, the
screening analysis assesses whether designation of critical habitat is
likely to result in any additional management or conservation efforts
that may incur incremental economic impacts. This screening analysis
combined with the information contained in our IEM constitute what we
consider to be our economic analysis of the proposed critical habitat
designation for the rusty patched bumble bee and is summarized in the
narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the rusty patched bumble bee, first
we identified, in the IEM dated June 2024, probable incremental
economic impacts associated with the following categories of
activities: (1) bridge replacements; (2) spotted lanternfly
[[Page 93258]]
control; (3) spill response; (4) Federal grants; (5) navigation channel
improvements; (6) recreation construction; (7) forest management; (8)
insect pest monitoring; (9) prescribed burns; (10) tree removal and
harvest; (11) water supply facility maintenance; (12) road maintenance
and construction; (13) scientific monitoring and research; and (14)
habitat management. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat affects activities conducted,
funded, permitted, or authorized by Federal agencies only. In areas
where the rusty patched bumble bee is present, Federal agencies are
required to consult with the Service under section 7 of the Act on
activities they authorize, fund, or carry out that may affect the
species. If we finalize this proposed critical habitat designation,
Federal agencies would be required to consider the effects of their
actions on the designated habitat, and if the Federal action may affect
critical habitat, our consultations would include an evaluation of
measures to avoid the destruction or adverse modification of critical
habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the rusty
patched bumble bee's critical habitat. The following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the species itself. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the rusty patched
bumble bee consists of approximately 1,635,746 acres (661,963 hectares)
of occupied habitat in 14 units. Ownership of lands within the proposed
critical habitat units is approximately 83 percent private; 9 percent
State, local government, university, or school; 8 percent Federal; and
less than 1 percent in Tribal ownership. All proposed units are
occupied by the species. Consultation to determine if projects would
jeopardize the species would be required regardless of the critical
habitat designation. Additionally, the activities that may require
section 7 consultation are not different with or without critical
habitat. As a result, designating critical habitat is not expected to
result in additional consultations beyond those required due to the
presence of the species.
For future consultations in the proposed critical habitat area, we
anticipate that the same kinds of conservation recommendations made to
avoid jeopardy would also avoid adverse modification of critical
habitat. Conservation measures to protect rusty patched bumble bee
habitat would be the same with and without a critical habitat
designation. We do not expect a critical habitat designation to result
in recommendations for new, changed, or lengthened seasonal
restrictions for rusty patched bumble bees. Thus, the outcome of these
consultations is unlikely to be different with or without the
designation of critical habitat.
At the time of this proposal, 29 co-occurring species listed under
the Act occur within the rusty patched bumble bee's proposed critical
habitat. Conservation efforts for other listed species or existing
critical habitat designations are likely to provide conservation
benefits to the rusty patched bumble bee under the baseline (i.e., even
absent designation of new critical habitat for this species).
Additionally, there are multiple overlapping conservation requirements
for some of the listed species.
For these reasons, incremental effects of the critical habitat
designation on the costs of future section 7 consultations are likely
to be limited to the additional administrative effort to evaluate the
potential for adverse modification of rusty patched bumble bee critical
habitat (IEc 2024, p. 10). The breakdown of the anticipated annual cost
of section 7 consultations for the proposed designation is
approximately $11,000 for programmatic consultations, $90,000 for
formal consultations, $250,000 for informal consultations, and $31,000
for technical assistance. Therefore, the incremental costs of
designating critical habitat for the rusty patched bumble bee are
likely to be on the order of $390,000 (2024 dollars) in a given year
(IEc 2024, p. 15). In conclusion, the rule is unlikely have an economic
effect of $200 million or more in any given year and, therefore, is
unlikely meet the threshold in section 3(f)(1) of E.O. 12866, as
amended by E.O. 14094 (IEc 2024, p. 18).
We are soliciting data and comments from the public on the economic
analysis discussed above. During the development of a final
designation, we will consider the information presented in the economic
analysis and any additional information on economic impacts we receive
during the public comment period to determine whether any specific
areas should be excluded from the final critical habitat designation
under the authority of section 4(b)(2) of the Act, our implementing
regulations at 50 CFR 424.19, and the 2016 Policy. We may exclude an
area from critical habitat if we determine that the benefits of
excluding the area outweigh the benefits of including the area,
provided the exclusion will not result in the extinction of this
species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i) of the Act, then
national-security or homeland-security concerns are not a factor in the
process of determining what areas meet the definition of ``critical
habitat.'' However, we must still consider impacts on national
security, including homeland security, on those lands or areas not
covered by section 4(a)(3)(B)(i) because section 4(b)(2) of the Act
requires us to consider those impacts whenever we designate critical
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or
another Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information,
[[Page 93259]]
including a reasonably specific justification of an incremental impact
on national security that would result from the designation of that
specific area as critical habitat. That justification could include
demonstration of probable impacts, such as impacts to ongoing border-
security patrols and surveillance activities, or a delay in training or
facility construction, as a result of compliance with section 7(a)(2)
of the Act. If the agency requesting the exclusion does not provide us
with a reasonably specific justification, we will contact the agency to
recommend that it provide a specific justification or clarification of
its concerns relative to the probable incremental impact that could
result from the designation. If we conduct an exclusion analysis
because the agency provides a reasonably specific justification or
because we decide to exercise the discretion to conduct an exclusion
analysis, we will defer to the expert judgment of DoD, DHS, or another
Federal agency as to: (1) Whether activities on its lands or waters, or
its activities on other lands or waters, have national-security or
homeland-security implications; (2) the importance of those
implications; and (3) the degree to which the cited implications would
be adversely affected in the absence of an exclusion. In that
circumstance, in conducting a discretionary section 4(b)(2) exclusion
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.
We are aware of a number of small parcels of land that are owned or
leased by the DoD that overlap with this proposed designation. During
the development of this proposed rule, we have initiated coordination
efforts with the DoD agency that owns each parcel, and we will continue
to work with those DoD agencies that may be affected by this
designation as we develop any final rule. These parcels are generally
small and highly dispersed throughout the proposed critical habitat
designation.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are approved and permitted conservation
agreements or plans covering the species in the area--such as safe
harbor agreements (SHAs), candidate conservation agreements with
assurances (CCAAs), ``conservation benefit agreements'' or
``conservation agreements'' (``CBAs'') (CBAs are a new type of
agreement replacing SHAs and CCAAs in use after April 2024 (see 89 FR
26070, April 12, 2024)), or HCPs--or whether there are non-permitted
conservation agreements and partnerships that may be impaired by
designation of, or exclusion from, critical habitat. In addition, we
look at whether Tribal conservation plans or partnerships, Tribal
resources, or government-to-government relationships of the United
States with Tribal entities may be affected by the designation. We also
consider any State, local, social, or other impacts that might occur
because of the designation.
Tribal Lands
Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order (S.O.) that applies to both the Service
and the National Marine Fisheries Service (NMFS)--Secretary's Order
3206, ``American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act'' (June 5, 1997) (S.O.
3206)--is the most comprehensive of the various guidance documents
related to Tribal relationships and Act implementation, and it provides
the most detail directly relevant to the designation of critical
habitat. In addition to the general direction discussed above, the
appendix to S.O. 3206 explicitly recognizes the right of Tribes to
participate fully in any listing process that may affect Tribal rights
or Tribal trust resources; this includes the designation of critical
habitat. Section 3(B)(4) of the appendix requires the Service to
consult with affected Tribes when considering the designation of
critical habitat in an area that may impact Tribal trust resources,
Tribally-owned fee lands, or the exercise of Tribal rights. That
provision also instructs the Service to avoid including Tribal lands
within a critical habitat designation unless the area is essential to
conserve a listed species, and it requires the Service to ``evaluate
and document the extent to which the conservation needs of the listed
species can be achieved by limiting the designation to other lands.''
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206, we consult with any Tribe whose Tribal trust resources,
Tribally-owned fee lands, or Tribal rights may be affected by including
any particular areas in the designation. We evaluate the extent to
which the conservation needs of the species can be achieved by limiting
the designation to other areas and give great weight to Tribal concerns
in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management considerations
or protection and unoccupied areas that are essential to the
conservation of a species), without regard to land ownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Secretaries' statutory authority under the Act or
other statutes.
The proposed critical habitat designation includes portions of the
following Tribal lands or resources, as noted above in table 1 and the
unit descriptions: Shakopee Mdewakanton Sioux Community and Shakopee
Mdewakanton Sioux Community Off-Reservation Land Trust (proposed Unit
1), Ho-Chunk Nation (proposed Unit 7), and Forest County Potawatomi
Off-Reservation Land Trust (proposed Unit 8).
Summary of Exclusions Considered Under Section 4(b)(2) of the Act
In preparing this proposal, we have determined that no HCPs or
other management plans for the rusty patched bumble bee currently
exist. We have determined that there are lands within the proposed
designation of critical habitat for rusty patched bumble bee owned or
managed by the DoD, and we have reached out the DoD to evaluate if
there is a need to exclude these lands from the designation based on
national security. In addition, the proposed critical habitat
designation includes Tribal lands or resources that we may consider for
exclusion, in keeping with S.O. 3206.
If through the public comment period we receive information that we
[[Page 93260]]
determine indicates that there are potential economic, national
security, or other relevant impacts from designating particular areas
as critical habitat, then as part of developing the final designation
of critical habitat, we will evaluate that information and may conduct
a discretionary exclusion analysis to determine whether to exclude
those areas under the authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19. If we receive a request for
exclusion of a particular area and after evaluation of supporting
information we do not exclude, we will fully describe our decision in
the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14904)
Executive Order 14094 amends and reaffirms the principles of E.O.
12866 and E.O. 13563 and states that regulatory analysis should
facilitate agency efforts to develop regulations that serve the public
interest, advance statutory objectives, and are consistent with E.O.
12866 and E.O. 13563, and the Presidential Memorandum of January 20,
2021 (Modernizing Regulatory Review). Regulatory analysis, as
practicable and appropriate, shall recognize distributive impacts and
equity, to the extent permitted by law. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
proposed rule in a manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; title II of Pub. L. 104-121, March 29, 1996), whenever an
agency is required to publish a notice of rulemaking for any proposed
or final rule, it must prepare and make available for public comment a
regulatory flexibility analysis that describes the effects of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of the agency certifies the rule will
not have a significant economic impact on a substantial number of small
entities. The SBREFA amended the RFA to require Federal agencies to
provide a certification statement of the factual basis for certifying
that the rule will not have a significant economic impact on a
substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects ``to the extent
permitted by law'' when undertaking actions identified as significant
energy actions (66 FR 28355, May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 (or any successor order, such as
E.O. 14094 (88 FR 21879, April 11, 2023)); and (ii) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy. In our economic analysis, we did not find that this proposed
critical habitat designation would significantly affect energy
supplies, distribution, or use.
[[Page 93261]]
Therefore, this action is not a significant energy action, and no
statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. Small governments will be affected
only to the extent that any programs having Federal funds, permits, or
other authorized activities must ensure that their actions will not
adversely affect the critical habitat. Therefore, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the rusty patched bumble bee in a takings implications
assessment. The Act does not authorize the Services to regulate private
actions on private lands or confiscate private property as a result of
critical habitat designation. Designation of critical habitat does not
affect land ownership, or establish any closures or restrictions on use
of or access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for the rusty patched bumble
bee, and it concludes that, if adopted, this designation of critical
habitat does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal Government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that this proposed rule would not unduly
burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the order. We have proposed designating
critical habitat in accordance with the provisions of the Act. To
assist the public in understanding the habitat needs of the species,
this proposed rule identifies the physical or biological features
essential to the conservation of the species. The proposed areas of
critical habitat are presented on maps, and the proposed
[[Page 93262]]
rule provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain information collection
requirements, and a submission to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) is not required. We may not conduct or sponsor and you are not
required to respond to a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951, May 4, 1994), E.O. 13175 (Consultation and
Coordination with Indian Tribal Governments), the President's
memorandum of November 30, 2022 (Uniform Standards for Tribal
Consultation; 87 FR 74479, December 5, 2022), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. During the development of this proposed rule, we approached
the Tribes whose lands overlapped with the range of the rusty patched
bumble bee in an effort to coordinate with them on the proposed
critical habitat designation. We received interest from the Prairie
Island Indian Community in working with us on rusty patched bumble bee
conservation (unrelated to this proposed designation). The proposed
critical habitat does not overlap with Prairie Island Indian Community
lands, but we will continue to coordinate with the Tribe in recovery
efforts for the species. We will continue to work with all interested
Tribal entities during the development of a final rule for the
designation of critical habitat for the rusty patched bumble bee.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Minnesota-Wisconsin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Minnesota-Wisconsin Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by revising the entry for ``Bee, bumble, rusty
patched'' under INSECTS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bee, bumble, rusty patched........ Bombus affinis....... Wherever found....... E 82 FR 3186, 1/11/
2017; 50 CFR
17.95(i).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (i) by adding an entry for ``Rusty
Patched Bumble Bee (Bombus affinis)'' before the entry for ``Casey's
June Beetle (Dinacoma caseyi)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(i) Insects.
Rusty Patched Bumble Bee (Bombus affinis)
(1) Critical habitat units are depicted for Boone, Cook, Kane,
Lake, Lee, McHenry, Ogle, and Winnebago Counties, Illinois; Johnson
County, Iowa; Carver, Dakota, Hennepin, Olmsted, Pierce, Ramsey, Rice,
Scott, St. Croix, Washington, and Winona Counties, Minnesota; Bath and
Highland Counties, Virginia; Greenbrier and Pocahontas Counties, West
Virginia; and Dane, Iowa, Kenosha, Milwaukee, Ozaukee, Racine, Sauk,
Washington,
[[Page 93263]]
and Waukesha Counties, Wisconsin, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the rusty patched bumble bee consist
of the following components:
(i) For overwintering, upland forest interior habitat containing
leaf litter and without dense understory vegetation.
(ii) For nesting, upland forest edge interface between forested and
non-forested natural habitats that extends approximately 30 meters into
the forest.
(iii) For nesting, abandoned rodent burrows, other mammal burrows,
existing cavities with ample cover, or similar existing cavities at the
soil surface or below to 4 feet underground.
(iv) For nesting and overwintering, well-drained, loose soils
sheltered from the elements.
(v) For foraging, diverse, abundant, native floral resources for
the entire active flight season.
(3) Critical habitat does not include human-made structures (such
as buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
[EFFECTIVE DATE OF FINAL RULE].
(4) Data layers defining map units were created using the data from
the Service's modeled High Potential Zones and potential dispersal
areas for rusty patched bumble bee. The projection used in mapping and
calculating distances and locations within the units was EPSG code
4269--North American Datum 1983 (NAD83), which is a geographic
coordinate system used for mapping locations in North America. The maps
in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at <a href="https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis">https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2024-0132, and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
BILLING CODE 4333-15-P
[[Page 93264]]
Figure 1 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP26NO24.003
(6) Unit 1: Minneapolis-St. Paul Metropolitan; Ramsey, Scott,
Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix Counties,
Minnesota.
(i) Unit 1 consists of 567,805 acres (ac) (229,782 hectares (ha))
in the Minneapolis-St. Paul metropolitan area of Minnesota in Ramsey,
Scott, Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix
Counties. Unit 1 is composed of primarily private lands (499,204 ac
(202,021 ha)), local government-owned lands (40,596 ac (16,429 ha)),
university or school lands (7,190 ac (2,910 ha)), Minnesota State lands
(11,983 ac (4,849 ha)), and Tribal lands (3,091 ac (1,251 ha)). Federal
lands (5,741 ac (2,323 ha)) in Unit 1 include National Park Service's
Mississippi National River and Recreational Area and Lower St. Croix
National Scenic Riverway, and the Service's Minnesota Valley National
Wildlife Refuge. Approximately 212 ac (86 ha) of privately owned lands
are managed by the U.S. Department of Agriculture's Natural Resources
Conservation Service (USDA-NRCS) Wetlands Reserve Program. Tribal lands
include Shakopee Mdewakanton Sioux Community and Shakopee Mdewakanton
Sioux Community Off-Reservation Land Trust.
(ii) Map of Units 1, 2, and 3 follows:
[[Page 93265]]
Figure 2 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.004
(7) Unit 2: Northfield; Dakota and Rice Counties, Minnesota.
(i) Unit 2 consists of 12,557 ac (5,082 ha) in Dakota and Rice
Counties. This unit includes private lands (12,056 ac (4,879 ha)),
local government-owned lands (489 ac (198 ha)), and Minnesota State
lands (12 ac (5 ha)).
(ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
(8) Unit 3: Rochester; Olmsted County, Minnesota.
(i) Unit 3 consists of 43,091 ac (17,438 ha) in Olmsted County.
This unit includes private lands (41,819 ac (16,924 ha)), local
government-owned lands (939 ac (380 ha)), and Minnesota State lands
(332 ac (134 ha)).
(ii) Map of Unit 3 is provided at paragraph (6)(ii) of this entry.
(9) Unit 4: Winona; Winona County, Wisconsin.
(i) Unit 4 consists of 29,823 ac (12,069 ha) in Winona County. This
unit includes private lands (29,340 ac (11,873 ha)), local government-
owned lands (423 ac (171 ha)), and Minnesota State lands (60 ac (24
ha)).
(ii) Map of Unit 4 follows:
[[Page 93266]]
Figure 3 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.005
(10) Unit 5: Denzer; Sauk County, Wisconsin.
(i) Unit 5 consists of 27,009 ac (10,930 ha) in Sauk County. This
unit is composed of private lands (26,471 ac (10,712 ha)), including
2,345 ac (949 ha) owned by nongovernmental organizations, and Wisconsin
State lands (538 ac (218 ha)).
(ii) Map of Units 5, 6, and 7 follows:
[[Page 93267]]
Figure 4 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(10)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.006
(11) Unit 6: Bunker Hill; Iowa County, Wisconsin.
(i) Unit 6 consists of 18,686 ac (7,562 ha) in Iowa County. This
unit includes private lands (13,559 ac (5,487 ha)) and Wisconsin State
lands (5,126 ac (2,075 ha)).
(ii) Map of Unit 6 is provided at paragraph (10)(ii) of this entry.
(12) Unit 7: Madison; Dane and Iowa Counties, Wisconsin.
(i) Unit 7 consists of 210,753 ac (85,289 ha) in Dane and Iowa
Counties. This unit includes primarily private lands (195,952 ac
(79,299 ha)), local government-owned lands (8,679 ac (3,512 ha)),
university or school lands (1,086 ac (440 ha)), and Wisconsin State
lands (4,518 ac (1,828 ha)). This unit contains 4 ac (2 ha) of Ho-Chunk
Nation Tribal lands. Federal lands (515 ac (208 ha)) in Unit 7 include
the U.S. Forest Service's Forest Products Experimental Laboratory,
National Park Service's Ice Age National Scenic Trail, and the Dane
County Waterfowl Production Area owned by the U.S. Fish and Wildlife
Service. In this unit, approximately 304 ac (123 ha) of private lands
are managed by the USDA-NRCS Wetlands Reserve Program, and
approximately 53 ac (21 ha) of private lands are managed by the USDA-
NRCS Emergency Waters Protection Program.
[[Page 93268]]
(ii) Map of Unit 7 is provided at paragraph (10)(ii) of this entry.
(13) Unit 8: Milwaukee; Waukesha, Ozaukee, Washington, Milwaukee,
and Racine Counties, Wisconsin.
(i) Unit 8 consists of 252,992 acres (102,382 hectares) in
Waukesha, Ozaukee, Washington, Milwaukee, and Racine Counties. This
unit includes primarily private lands (232,722 ac (94,179 ha)), local
government-owned lands (17,995 ac (7,282 ha)), university or school
lands (14 ac (6 ha)), and Wisconsin State lands (2,121 ac (858 ha)).
Tribal lands include the Forest County Potawatomi Off-Reservation Land
Trust (10 ac (4 ha)). Federally owned lands include 5 ac (2 ha) owned
by the Bureau of Land Management and 126 ac (51 ha)) of Department of
Defense-owned lands. Approximately 66 ac (27 ha) of private lands in
this unit are managed by USDA-NRCS Wetlands Reserve Program.
(ii) Map of Unit 8 follows:
Figure 5 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(13)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.007
(14) Unit 9: Rockford; Winnebago, Boone, and Ogle Counties,
Illinois.
(i) Unit 9 consists of 150,108 ac (60,747 ha) in Boone, Ogle, and
Winnebago Counties. This unit includes primarily private lands (136,826
ac (55,371 ha)), local government-owned lands (7,898 ac (3,196 ha)),
university or school lands (2,395 ac (969 ha)), and Illinois State
lands (2,990 ac (1,210 ha)). Approximately 669 ac (271 ha) of private
lands in this unit are managed by the USDA-NRCS Wetlands Reserve
Program.
(ii) Map of Unit 9 and 12 follows:
[[Page 93269]]
Figure 6 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(14)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.008
(15) Unit 10: McHenry; McHenry and Lake Counties, Illinois, and
Kenosha County, Wisconsin.
(i) Unit 10 consists of 68,295 ac (27,638 ha) in McHenry and Lake
Counties, Illinois, and Kenosha County, Wisconsin. This unit includes
primarily private lands (59,158 ac (23,940 ha)), local government-owned
lands (1,406 ac (569 ha)), university or school lands (2,284 ac (924
ha)), and Illinois State lands (5,445 ac (2,204 ha)). The Bureau of
Land Management owns 2 ac (1 ha) of land in this unit. A conservation
easement within the Hackmatack National Wildlife Refuge, managed by the
Service, falls partially (39 ac (16 ha)) within this unit.
Approximately 412 ac (167 ha) of private lands within this unit are
managed by the USDA-NRCS Wetlands Reserve Program.
(ii) Map of Units 10 and 11 follows:
[[Page 93270]]
Figure 7 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(15)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.009
(16) Unit 11: Elgin; Lake, Cook, Kane, and McHenry Counties,
Illinois.
(i) Unit 11 consists of 75,080 ac (30,384 ha) in Cook, Kane, Lake,
and McHenry Counties. This unit includes primarily private lands
(56,318 ac (22,791 ha)), local government-owned lands (13,710 ac (5,548
ha)), university or school lands (4,884 ac (1,977 ha)), and Illinois
State lands (168 ac (68 ha)).
(ii) Map of Unit 11 is provided at paragraph (15)(ii) of this
entry.
(17) Unit 12: Lost Nation; Ogle and Lee Counties, Illinois.
(i) Unit 12 consists of 15,043 ac (6,088 ha) in Lee and Ogle
Counties. This unit is composed of private lands (14,416 ac (5,834
ha)), including 2,189 ac (886 ha) owned by nongovernmental
organizations, and State lands owned by Iowa Department of Natural
Resources (627 ac (254 ha)).
(ii) Map of Unit 12 is provided at paragraph (14)(ii) of this
entry.
(18) Unit 13: Iowa City; Johnson County, Iowa.
(i) Unit 13 consists of 45,902 ac (18,576 ha) in Johnson County.
This unit includes primarily private lands (30,397 ac (12,301 ha)),
local government-owned lands (1,857 ac (751 ha)), and Iowa State lands
(2,287 ac (926 ha)). Federal lands (11,362 ac (4,598 ha)) in this unit
include U.S. Army Corps of Engineers' Coralville Lake and the
Coralville Reservoir. A portion of the U.S. Army Corps of Engineers'
land in this unit is managed by the State of Illinois (1,333 ac (539
ha)) and the University of Iowa (421 ac (170 ha)).
(ii) Map of Unit 13 follows:
[[Page 93271]]
Figure 8 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(18)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.010
(19) Unit 14: Black Creek Mountain; Highland and Bath Counties,
Virginia, and Greenbrier and Pocahontas Counties, West Virginia.
(i) Unit 14 consists of 118,603 ac (47,997 ha) in Highland and Bath
Counties, Virginia, and Greenbrier and Pocahontas Counties, West
Virginia. This unit includes Federal lands (105,558 ac (42,718 ha)),
private lands (11,200 ac (4,532 ha)), and Virginia State lands (1,845
ac (747 ha)). Federal lands include the Monongahela and the George
Washington-Jefferson National Forests.
(ii) Map of Unit 14 follows:
[[Page 93272]]
Figure 9 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph
(19)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.011
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-27316 Filed 11-25-24; 8:45 am]
BILLING CODE 4333-15-C
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</html>Indexed from Federal Register on November 26, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.