Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Hine's Emerald Dragonfly, 51102-51152 [07-4194]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 171 (Wednesday, September 5, 2007)]
[Rules and Regulations]
[Pages 51102-51152]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-4194]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Hine's Emerald Dragonfly; Final Rule

Federal Register / Vol. 72, No. 171 / Wednesday, September 5, 2007 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Hine's Emerald Dragonfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Hine's emerald dragonfly 
(Somatochlora hineana) under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 13,221 acres (ac) (5,350 
hectares (ha)) in 22 units fall within the boundaries of our critical 
habitat designation. The critical habitat units are located in Cook, 
DuPage, and Will Counties in Illinois; Alpena, Mackinac, and Presque 
Isle Counties in Michigan; and Door and Ozaukee Counties in Wisconsin.

DATES: This rule becomes effective on October 5, 2007.

FOR FURTHER INFORMATION CONTACT: John Rogner, Chicago Ecological 
Services Field Office, 1250 S. Grove, Suite 103, Barrington, IL 60010 
(telephone: 847-381-2253, extension 11; facsimile: 847-381-2285).

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For information on 
the Hine's emerald dragonfly, please refer to our proposed critical 
habitat rule, which we published in the Federal Register on July 26, 
2006 (71 FR 42442); the final listing determination, published on 
January 26, 1995 (60 FR 5267); or the Hine's Emerald Dragonfly 
(Somatochlora hineana Williamson) Recovery Plan (Service 2001).

Previous Federal Actions

    For information about previous Federal actions for the Hine's 
emerald dragonfly, see our proposed critical habitat rule for the 
species (71 FR 42442). On March 20, 2007, we published a notice that 
included revisions to the proposed critical habitat, announced the 
availability of the draft economic analysis (DEA), and reopened the 
public comment period (72 FR 13061). Because we needed to meet our 
settlement agreement's deadline of submitting a final rule to the 
Federal Register by May 7, 2007, the comment period was reopened for 
only 14 days. Subsequently, we negotiated a new settlement agreement 
with the plaintiffs (The Center for Biodiversity et al.) to submit a 
final rule to the Federal Register by August 23, 2007. Therefore, on 
May 18, 2007, we published an additional notice that reopened the 
comment period on the proposal, revisions to the proposal, and the 
draft economic analysis for an additional 45 days (72 FR 28026). That 
comment period ended on July 2, 2007.

Summary of Comments and Recommendations

    We requested written comments from the public on our proposed 
designation of critical habitat for the Hine's emerald dragonfly (71 FR 
42442) and our draft economic analysis (72 FR 13061; 72 FR 28026). We 
contacted appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed rule. We also issued press releases and published legal 
notices in the Daily American Republic, Kansas City Star, Ozaukee News-
Graphic, St. Ignace News, Door County Advocate, Alpena News, Ozaukee 
Press, and Joliet Herald News newspapers. We held one public hearing, 
on August 15, 2006, in Romeoville, Illinois.
    During the comment period that opened on July 26, 2006, and closed 
on September 25, 2006, we received 35 comments directly addressing our 
proposed critical habitat designation: 6 from peer reviewers, 4 from 
Federal agencies, and 25 from organizations or individuals. During the 
comment periods from March 20, 2007 through April 3, 2007, and May 18, 
2007 through July 2, 2007, we received 16 comments directly addressing 
the proposed critical habitat designation and the draft economic 
analysis. Of these latter comments, 2 were from Federal agencies and 14 
were from organizations or individuals.
    In total, 23 commenters supported the designation of critical 
habitat for the Hine's emerald dragonfly and 10 opposed the 
designation. Ten commenters, including three peer reviewers, supported 
exclusion of one or more particular units as identified in the proposed 
rule, and 5 commenters opposed exclusion of one or more particular 
units. Eighteen letters were either neutral or expressed both support 
of and opposition to certain portions of the proposal. Responses to 
comments are grouped by those received from peer reviewers, States, and 
the public, in the following sections. We grouped public comments into 
10 general issues specifically relating to the proposed critical 
habitat designation and draft economic analysis. We have incorporated 
comments into this final rule as appropriate. We did not receive any 
requests for additional public hearings.

Peer Review

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

Peer Reviewer Comments

    (1) Comment: One peer reviewer (as well as three other commenters) 
suggested that we should designate foraging areas (farmlands, pastures, 
old fields, ponds, and/or surface waters) as critical habitat.
    Our response: Although adult Hine's emerald dragonflies have been 
observed foraging near or in these types of

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habitats, the importance of such habitats in meeting the daily dietary 
needs of the dragonfly is still unknown. Dispersal areas are present in 
many of the designated critical habitat units, as they contain open 
areas that serve as corridors that are used by the dragonfly. In most 
of the units, dispersal areas are not limiting.
    (2) Comment: One peer reviewer suggested that we use caution when 
accepting identifications of early instar (defined as the developmental 
stage on an insect between molts of its exoskeleton) larvae.
    Our response: We agree that identifications of Hine's emerald 
dragonfly based on early instar larvae should be made with caution. 
Early instar larvae have been used in Missouri to document the presence 
of the species at new localities or to identify new Hine's emerald 
dragonfly breeding habitat. Identifications of early instar larvae were 
made by the two leading experts on Somatochlora species larvae: Dr. Tim 
Cashatt and Mr. Tim Vogt. These two experts wrote the definitive key to 
final instar larvae for the genus (Cashatt and Vogt 2001, pp. 94-97). 
These experts have also positively identified early instar larvae of 
Hine's emerald dragonfly by examining more larval specimens than any 
other recognized dragonfly larvae expert. Cashatt and Vogt (2001, pp. 
94-97) confirmed early instar larvae identification by rearing some 
individuals to a final stage; this allowed preliminary determinations 
of the species to be confirmed. Identification of early instar larvae 
by these two recognized experts constitutes the best scientific data 
available.
    (3) Comment: One peer reviewer commented that when the species' 
recovery plan was developed, the network of sites in Missouri was not 
known and, had the sites been known, this may have led to different 
recovery criteria, which may have influenced the identification of 
critical habitat from a scientific perspective.
    Our response: Different recovery criteria may have been developed 
for Hine's emerald dragonfly had more sites been known in Missouri at 
the time the recovery plan was drafted. However, such changes to the 
species' recovery criteria would not have influenced our decision 
regarding designation of critical habitat in Missouri. We based the 
exclusion of Missouri sites on: (1) Current implementation of State and 
Federal management plans for the species; and (2) Missouri Department 
of Conservation's (MDC) implementation of successful conservation 
efforts on some private lands. The existing successful partnerships 
among State agencies and private property owners could be negatively 
affected by a critical habitat designation, and this could jeopardize 
future cooperative conservation efforts. We used all available data and 
information--including both the recovery plan and additional 
information gained since its development--to determine which areas are 
essential to the conservation of the Hine's emerald dragonfly. We will 
work with the Hine's Emerald Dragonfly Recovery Team in reevaluating 
recovery criteria when the overall status of the species is reexamined 
in a 5-year review.
    (4) Comment: One peer reviewer commented that he is reluctant to 
assume that Hine's emerald dragonflies do not forage and roost in the 
forest canopy.
    Our response: Hine's emerald dragonflies will use trees for 
roosting. Researchers have also observed Hine's emerald dragonflies 
foraging along the forest edge. Given that members of the genus 
Somatochlora commonly forage at treetop level along roads and utility 
rights of way, and dragonflies often perch in vegetation to avoid 
predation during their sensitive teneral stage (soft-bodied stage 
immediately after molt), it is possible that Hine's emerald dragonflies 
may utilize forest canopies to a greater extent than previously 
observed. There is no good information, however, to define the degree 
to which Hine's emerald dragonflies may use these habitats for foraging 
and roosting. We based our criteria to include up to 328 feet (ft) (100 
meters (m)) of closed canopy forest around breeding habitat on 
observations made by one of the leading species experts (T. Vogt, 
Missouri Department of Natural Resources, in litt. March 2007); this is 
the best information we have available to date.
    (5) Comment: One peer reviewer commented that in Missouri the small 
populations in identified sites may be elements of larger 
metapopulations. These individual elements, because they are so small, 
are probably extirpated fairly frequently even in the absence of human 
disturbance. For this reason, it would seem prudent to conserve 
suitable but currently unoccupied sites, since dispersal to such 
unoccupied sites must be important to the maintenance of the 
metapopulation. This does not necessarily mean that such sites should 
be designated as critical habitat for the species.
    Our response: While the Hine's emerald dragonfly (Somatochlora 
hineana Williamson) Recovery Plan recognizes that the patchy nature of 
habitat in Illinois and Wisconsin suggests metapopulation in those two 
States, only three sites were known in Missouri at the time the 
Recovery Plan was written (Service 2001). We do not have adequate 
information to determine if the small populations of Hine's emerald 
dragonflies in Missouri are part of one or more metapopulations. Such a 
hypothesis is best tested by conducting various genetic analyses; 
genetic analyses of populations in Missouri will be initiated in the 
summer of 2007. Until such genetic analyses are conducted, it is 
difficult to assess the status of the Missouri populations of Hine's 
emerald dragonfly in relation to the overall distribution of the 
species.
    (6) Comment: One peer reviewer stated that the rationales for 
exclusions are not easy to understand.
    Our response: In this rule, we have attempted to further clarify 
the rationale for our exclusions and why these exclusions are important 
to the overall conservation of the Hine's emerald dragonfly.
    (7) Comment: One peer reviewer commented that exclusion of the 
Missouri units based solely on the fact that the habitat is surrounded 
by contiguous forest does not seem justified. Without knowing anything 
about the dispersal ability of the species, that fact alone seems 
insufficient to conclude that such populations may not be important in 
the long-term survival of the species in Missouri.
    Our response: We have described our reasons for excluding Missouri 
units from the critical habitat designation under the Exclusions 
section of this rule. We excluded those areas on the basis of existing 
conservation plans and partnerships, and not based on the fact that 
most sites are surrounded by contiguous, closed canopy forest.
    (8) Comment: One peer reviewer suggested that we should include 
unoccupied habitat in areas that may serve as dispersal corridors or 
establish connectivity between sites in the critical habitat 
designation.
    Our response: We attempted to include areas that will serve as 
dispersal corridors that are contiguous with occupied habitat within 
our critical habitat units. However, little is known about what factors 
are essential to enable the species to disperse. We designated areas 
that were occupied at the time of listing and not now occupied in order 
to allow for connectivity between units. We also included habitat out 
to the average dispersal distance of the species in order to maintain 
this dispersal capability. Not all unoccupied sites may be suitable for 
dispersal

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corridors, however. We do not have enough scientific information to 
assess the importance of dispersal corridors to the conservation of the 
species. There are multiple reasons why Hine's emerald dragonflies may 
be absent from sites, even those that have all the necessary habitat 
requirements. Another peer reviewer noted that reasons such as 
interspecific interactions (e.g., with other dragonflies) could 
preclude Hine's emerald dragonflies in sites that have all the 
necessary habitat requirements. For example, in Missouri, the 
distribution of the Hine's emerald dragonfly may be dictated in part by 
the presence of large dragonfly predators that have been observed 
preying on individuals of the same genus (Somatochlora) as the Hine's 
emerald dragonfly.
    (9) Comment: One peer reviewer stated that designation of critical 
habitat for the Hine's emerald dragonfly is premature because of the 
lack of knowledge on the status and population structure of the Hine's 
emerald dragonfly.
    Our response: The Service is under a court order to complete the 
designation of critical habitat and submit a final rule to the Federal 
Register by August 23, 2007. Consequently, we must proceed with the 
critical habitat process for this species based on the best scientific 
data that is available, as required by the Act.
    (10) Comment: One peer reviewer asked if management plans exist for 
any of the areas in Wisconsin identified in the proposal.
    Our response: Lands owned by resource and conservation agencies in 
critical habitat units in Wisconsin do not have existing management 
plans that specifically address the Hine's emerald dragonfly. Those 
entities with conservation plans for their properties have included 
protective measures to conserve wetland habitat and thereby are helping 
to conserve the dragonfly. Those plans, however, do not specifically 
identify conservation measures for the Hine's emerald dragonfly.
    (11) Comment: One peer reviewer recommended that research be 
conducted on dispersal, particularly female dispersal, and that we 
consider radio tracking, as has been done with Aeshnids (darners).
    Our response: Research on dispersal is a task identified in the 
Hine's Emerald Dragonfly (Somatochlora hineana Williamson) Recovery 
Plan (Service 2001). The Hine's Emerald Dragonfly Recovery Team and 
species experts are assessing the feasibility of using a similar 
methodology as was used to radio track Aeshnids.

General Comments

Issue 1: Biological Justification and Methodology Used
    (1A) Comment: Several individuals commented that the proposal did 
not address groundwater recharge areas.
    Our response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, in determining what areas are critical 
habitat, we shall consider those physical and biological features that 
are essential to the conservation of the species. Some groundwater 
recharge areas may be included within a critical habitat unit if they 
co-occur with the biological and physical features essential to the 
conservation of Hine's emerald dragonfly. Any Federal actions that may 
affect critical habitat, irrespective of its location inside or outside 
of a critical habitat unit, are subject to section 7 consultation. This 
would include Federal actions that affect groundwater recharge to any 
of the critical habitat units.
    (1B) Comment: One individual expressed that we did not show that 
the best available scientific data support the inclusion of the rail 
line in Illinois Units 1 and 2.
    Our response: The rail line in Illinois Units 1 and 2 does not 
contain the primary constituent elements and, therefore, does not meet 
the definition of critical habitat. Therefore, we have not designated 
it as critical habitat. As stated in the proposal and this final rule, 
critical habitat does not include human-made structures existing on the 
effective date of a final rule and not containing one or more of the 
primary constituent elements. However, work performed on the rail line 
would be subject to the provisions of section 7 if that work could have 
adverse effects on designated critical habitat or the dragonfly.
    (1C) Comment: One individual stated that it is not clear whether 
Wisconsin Unit 11 (containing Kellner's Fen) is sufficiently inclusive, 
and that this unit should also include the surrounding transitional 
habitat that may also contain primary constituent elements.
    Our response: In designating critical habitat at Kellner's Fen, we 
used the same criteria we used for all the other units. We designated 
areas containing the primary constituent elements for the dragonfly, 
including wetland (fen) areas, shrubby areas, and 100 m into adjacent 
forest habitat. The map in the Federal Register is generalized, and 
does not show the habitat variations that actually exist within the 
unit.
    (1D) Comment: One comment disputes the accuracy of the report's 
statement that adult dragonflies are active mid-June to mid-August.
    Our response: According to the Recovery Plan (Service 2001), larvae 
begin to emerge as adult, possibly as early as late May in Illinois and 
late June in Wisconsin and continue to emerge through the summer (Vogt 
and Cashatt 1994; Mierzwa et al. 1997). The adults's know flight season 
lasts up to early October in Illinois (Voght and Cashatt 1994) and to 
late August in Wisconsin (Voght and Cashatt 1994). Fully adult Hine's 
emerald dragonflies can live at least 14 days and may live 4 to 6 
weeks.
Issue 2: Procedural and Legal Compliance
    (2A) Comment: Some commenters suggested that excluding Forest 
Service land was inappropriate as the Forest Service did not consult 
with the Service under section 7 of the Act. Two commenters mentioned a 
specific example, the Sprinkler Project on the Hiawatha National 
Forest, where they believed consultation was not completed. Further, 
the commenters suggested that designating critical habitat would ensure 
future consultation between the Service and Forest Service.
    Our response: The Service has a cooperative relationship with the 
Hiawatha and Mark Twain National Forests, both of which are actively 
involved in endangered species management and recovery. Through this 
cooperative relationship, the Forest Service consistently consults on 
projects that may affect listed species, including the Hine's emerald 
dragonfly. The Forest Service recently completed section 7 consultation 
on Mark Twain's and Hiawatha's Land and Resource Management Plans. 
Several other informal and formal consultations have also been 
completed, including consultation on the Sprinkler Project in 2006. 
Section 7 consultation and conservation of Hine's emerald dragonfly 
will continue even with exclusion of Forest Service lands from critical 
habitat designation.
    (2B) Comment: One individual commented that the proposed rule 
states that the conservation role of Hine's emerald dragonfly critical 
habitat units is to support ``viable core area populations,'' but that 
the proposed rule did not provide sufficient information to allow 
commenters to determine whether the proposed units actually contain 
areas that support such Hine's emerald dragonfly populations.
    Our response: ``Viable'' means capable of living, developing, or 
reproducing under favorable conditions.

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We have used the best scientific and commercial information available 
to determine what conditions are favorable to Hine's emerald dragonfly, 
and the proposal provided information on the physical and biological 
features essential to the conservation of the species. We identified 
areas that are known to contain these features, provided descriptions 
of the features in each unit, and are designating only those units that 
contain the features that are essential to the conservation of the 
species.
    (2C) Comment: One commenter questioned the legality of the critical 
habitat designation in regards to takings.
    Our response: The designation of critical habitat does not mean 
that private lands will be taken by the Federal government or that 
other legal uses will be restricted. We evaluated this rule in 
accordance with Executive Order (E.O.) 12630, and we believe that the 
critical habitat designation for the Hine's emerald dragonfly will not 
have significant takings implications. We do not anticipate that 
property values, rights, or ownership will be materially affected by 
the critical habitat designation.
Issue 3: Exclusions
    (3A) Comment: Several commenters suggested that Michigan Units 1, 
2, and 3 should not be excluded, because these units contain areas not 
covered by Federal or State management plans.
    Our response: The entire acreage encompassed by Michigan Units 1 
and 2, including some small areas of non-Federal land, are excluded 
from the final Hine's emerald dragonfly critical habitat designation. 
The non-Federal lands within these units are small in size relative to 
the unit's overall size. The larger landscapes in these two critical 
habitat units are managed by the Hiawatha National Forest. The Hiawatha 
National Forest's Land and Resource Management Plan provides for the 
management and protection of Hine's emerald dragonfly habitat that will 
facilitate the recovery of the species. Although those non-Federal 
lands may provide suitable habitat and primary constituent elements for 
colonizing dragonflies from adjacent National Forest land, their 
contribution to the overall recovery and conservation of the species is 
considered minute compared to the surrounding lands managed by the 
Hiawatha National Forest.
    We have determined that adequate management and protection of 
Hine's emerald dragonfly habitat in Michigan Unit 3 is not provided by 
current State, Federal, or private management plans. Therefore, this 
unit was not excluded from the final critical habitat designation.
    (3B) Comment: The Forest Plans for the Mark Twain and Hiawatha 
National Forests do not justify excluding these areas from critical 
habitat. Although the Forest Plan may address conservation of the 
Hine's emerald dragonfly, they would not provide for consultation with 
the Service on future Forest Service actions that may destroy or 
adversely modify the dragonfly's habitat. Furthermore, while the 
Service recognizes logging as a threat to the species, the Forest 
Service has recently proposed timber cutting to protect the species. 
Neither the Forest Service nor the Service has produced evidence that 
this logging proposed under the Hiawatha Forest Plan is likely to 
benefit the dragonfly.
    Our response: The commenter is correct that a separate section 7 
consultation addressing critical habitat would not be required in any 
excluded areas. However, as these excluded areas are currently 
occupied, activities that could impact Hine's emerald dragonfly 
(including its habitat) would still require a species-specific 
consultation. Based on the Forest Plans, the Forest Service not only 
has solidified its dedication to protect the Hine's emerald dragonfly 
and its habitat, but also has committed to help recover the species. 
The Forest Service commitment and ongoing partnership with us provide 
greater benefit to the species and its habitat than would critical 
habitat designation. Consequently, we disagree with the commenter that 
important breeding and foraging habitat for Hine's emerald dragonflies 
on the two national forests will not be protected without critical 
habitat designation.
    If not conducted in a way that is sensitive to Hine's emerald 
dragonflies, logging could be detrimental to the species' habitat. At 
the same time, Hine's emerald dragonflies need open areas for foraging. 
Some areas on the Hiawatha National Forest adjacent to breeding habitat 
have closed canopies that could benefit from various forest management 
practices. Additionally, there are sites for Hine's emerald dragonflies 
on the Hiawatha and Mark Twain National Forests that would benefit from 
adding more direct dispersal corridors between breeding sites. Timber 
removal may be appropriate for such situations. National Forest land 
provides important Hine's emerald dragonfly breeding sites, and the 
maintenance, management, and protection of these areas will be achieved 
by implementing the Land and Resource Management Plans on the two 
forests.
    (3C) Comment: One commenter stated that excluding habitat on lands 
owned by the State of Missouri would lead to no net conservation 
benefit to the Hine's emerald dragonfly. Designating CH would not harm 
our good working relationship with the MDC.
    Our response: MDC owns and manages all fens on Missouri State lands 
with Hine's emerald dragonflies. The MDC currently implements various 
habitat management and conservation actions to sustain and enhance the 
species at these fens. Furthermore, MDC has recently updated its 
Conservation Area Plans and the Husman Fen Natural Area Plan to 
incorporate additional conservation measures for the Hine's emerald 
dragonfly that will ensure the long-term management and maintenance of 
fens. The benefits to the species resulting from conservation measures 
being implemented by MDC would exceed any benefit to the species gained 
from the designation of critical habitat. Additionally, in their 
comments on the proposal, MDC requested they be excluded from the 
critical habitat designation because they anticipate some negative 
effects of designation. Because of their implementation of management 
plans for the Hine's emerald dragonfly, we are able to accommodate this 
request.
    (3D) Comment: One commenter expressed that the perception of public 
hostility does not justify excluding private property. That commenter 
believed that the lack of support from the general public was due to 
the Service's failure to properly educate private landowners on the 
minor impact of designating critical habitat on their property. The 
commenter stated that the exclusion of all private property in Missouri 
from critical habitat designation without a unit-by-unit consideration 
of conservation benefits and landowner amenability is arbitrary.
    Our response: We have multiple examples where researchers have been 
denied access to private land to survey potentially new Hine's emerald 
dragonfly sites. In other cases, landowners who have documented Hine's 
emerald dragonflies on their property have been reluctant or 
apprehensive about taking advantage of multiple landowner incentive 
programs available to them due to false perceptions of critical 
habitat.
    We, Hine's emerald dragonfly researchers, and personnel of the 
MDC's Private Land Services Division have extended considerable effort 
in providing private landowners with information on the Hine's emerald

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dragonfly and outlining various landowner incentive programs. Despite 
the combined outreach efforts of multiple individuals, there is 
documented opposition by private landowners within the dragonfly's 
range in Missouri that is difficult to overcome. The designation of 
critical habitat on private property in Missouri would only exacerbate 
negative attitudes towards federally listed species.
    We considered the conservation benefits of designating critical 
habitat for each unit under private ownership, as well as the benefits 
of excluding the area from critical habitat. We weighed the benefits of 
each, and concluded, using the discretion afforded to us under the Act, 
that actions for the conservation of the species would be best realized 
if the lands were excluded. Based on past experience and a strong 
working relationship between the MDC personnel and private landowners, 
we believe that private landowners are much more amenable to a 
partnership that emphasizes a cooperative working relationship rather 
than a fear of regulatory control.
    (3E) Comment: One commenter expressed that Illinois Unit 2 should 
be excluded from the critical habitat designation, under section 
4(b)(2) of the Act, because the substantial benefits of exclusion 
outweigh any potential benefits of designation and the exclusion will 
not result in the extinction of the species.
    Our response: While the Service recognizes the cooperation of the 
landowners in Illinois Unit 2, formal conservation agreements or 
management plans have not been prepared for this unit and, therefore, 
the future management and protection of this unit are unknown. The 
landowners of this unit are in the very initial stages of developing a 
Habitat Conservation Plan for the species. This Habitat Conservation 
Plan, however, is not complete enough at this time to allow us to 
evaluate the conservation benefits to the species.
    (3F) Comment: One commenter stated that Commonwealth Edison's 
right-of-way in Illinois Units 1-5 and 7 should be excluded because 
designation of these areas would put Commonwealth Edison's normal 
operations at severe risk. Another commenter expressed that in Illinois 
Units 1 and 2, the generating station, rail line, and land adjacent to 
those structures should be excluded.
    Our response: To the greatest extent possible, we avoided including 
developed areas containing buildings, rail lines, electrical 
substations, and other urban infrastructure within critical habitat 
units. Where we have not been able to map out these structures we have 
excluded them by text. As stated in this rule, critical habitat does 
not include human-made structures existing on the effective date of a 
final rule not containing one or more of the primary constituent 
elements (see definition of ``primary constituent elements'' in 
subsequent section). Therefore, human-made structures including utility 
poles, power lines, rail lines, and the generating station are not 
included in the critical habitat designation. However, areas around the 
human-made structures that consist of habitat containing the primary 
constituent elements of Hine's emerald dragonfly habitat are included 
in the designation.
    Although Commonwealth Edison has been a valued partner in the 
conservation of Hine's emerald dragonfly, and is one of the parties 
involved in the preparation of a Habitat Conservation Plan for the 
species, no management plans for their right of way currently exist.
    (3G) Comment: Three commenters expressed that the life of a forest 
plan is likely shorter than the time it will take to recover the Hine's 
emerald dragonfly. They added that there is no guarantee that the 
forest plans would be in place or implemented in the future. Therefore, 
they question the exclusion of Forest Service land in Michigan and 
Missouri.
    Our response: The intended cycle of National Forest plans is 10-15 
years. The Mark Twain and Hiawatha National Forest Land and Resource 
Management Plans were approved in 2005 and 2006, respectively. As 
identified in the Hine's Emerald Dragonfly (Somatochlora hineana 
Williamson) Recovery Plan, anticipated recovery of the Hine's emerald 
dragonfly could occur as early as 2019 (Service 2001). While we concur 
that it is likely that current management plans for the Mark Twain and 
Hiawatha National Forests will expire before the Hine's emerald 
dragonfly can be recovered, we believe that the track record of 
cooperation between us and the two national forests outlines the Forest 
Service's commitment to the conservation of federally listed species 
under sections 7(a)(1) and 7(a)(2) of the Act. Once the current plans 
have expired, we are confident that both the Mark Twain and Hiawatha 
National Forests will complete consultation on the new plans. These 
consultations will further ensure that actions outlined in future land 
and resource management plans will not jeopardize the continued 
existence of any federally listed species, including the Hine's emerald 
dragonfly. We believe that standards and guidelines established for the 
Hine's emerald dragonfly will continue to contribute to the 
conservation of the species until it is recovered and removed from the 
list of federally protected species. If plans change such that it 
affects our balancing, we will reconsider whether to designate critical 
habitat in these areas.
    (3H) Comment: One commenter expressed that we should exclude 
Illinois Units 1, 2, and 3 because of long-term stakeholder commitment 
and the Habitat Conservation Plan that is being written.
    Our response: Though we are pleased with the progress made to date 
on the Habitat Conservation Plan, it is still far from complete. It is 
too early to judge its ultimate outcome. At this early stage, the 
developing Habitat Conservation Plan is not complete enough for us to 
evaluate whether habitat for the Hine's emerald dragonfly would be 
appropriately managed. Generally we do not consider excluding an area 
from critical habitat based on a draft Habitat Conservation Plan until 
the conservation measures have been determined, an environmental 
analysis has been completed and released for public review, and we have 
determined that issuing the associated incidental take permit would not 
result in a jeopardy or adverse modification finding for the species or 
its critical habitat. Therefore, we are not excluding Illinois Units 1, 
2, and 3 at this time. When the Habitat Conservation Plan is completed, 
we will be able to evaluate its conservation benefits to the species 
and, if appropriate, revise the critical habitat designation to exclude 
this unit.
    (3I) Comment: One commenter concluded that there is no reasonable 
basis for excluding privately owned sites in Missouri and designating 
Illinois Units 1 and 2. Excluding units in Missouri suggests that 
similarly situated parties are being treated differently.
    Our response: Threats identified for the Hine's emerald dragonfly 
on private land in Missouri are addressed through close coordination 
among personnel with the MDC's Private Land Services Division or 
Regional Natural History biologists and private landowners. 
Additionally, MDC personnel work closely and proactively with the 
National Resources Conservation Service (NRCS) and the Service's 
Partners for Fish and Wildlife Program to initiate management and 
maintenance actions on privately owned fens occupied by the Hine's 
emerald dragonfly that benefit the species and alleviate potential 
threats.
    One site on private property in Missouri is owned and managed by 
The

[[Page 51107]]

Nature Conservancy through the implementation of a site-specific plan 
(The Nature Conservancy 2006, pp. 1-4) that maintains fen habitat. One 
site under private ownership is a designated State Natural Area that is 
managed by the MDC through a site-specific plan (Missouri Natural Areas 
Committee 2007). This plan ensures that the integrity of the fen is 
maintained (Missouri Natural Areas Committee 2007). However, at this 
time there are no conservation plans in place for Illinois Units 1 and 
2 that would guide the implementation of similar measures. In addition, 
Illinois Unit 1 is a publicly owned site.
    (3J) Comment: One commenter was concerned with the exclusion of 
large areas of lands in Michigan and Missouri based solely on the 
existence of management plans. The commenter suggested that given the 
uncertainties surrounding funding and implementation, the Service 
should consider designating these areas. Another commenter opposed 
exclusion of Michigan Units because the Hine's emerald dragonfly is 
mobile, and designation of all possible habitat areas is necessary to 
support increased numbers of the species. Furthermore, the commenter 
suggested that, by excluding critical habitat areas, we spent more time 
and money on the designation process.
    Our response: While available funding will likely impact the amount 
of Hine's emerald dragonfly conservation work that occurs in any one 
year, we are confident that the Forest Service will continue to place a 
high emphasis and priority on their obligation to contribute to the 
conservation of the species. In addition, State land management 
agencies in Missouri are committed to the implementation of recovery 
actions outlined in their management plans. Because of this commitment, 
land management agencies in Missouri and Michigan are already actively 
implementing conservation actions for the Hine's emerald dragonfly and 
fen habitat. The designation of critical habitat would not influence 
them to act more proactively.
    In evaluating which areas to exclude, we requested and reviewed 
management plans and other relevant information. This analysis was 
conducted for all of the Hine's emerald dragonfly habitat areas we 
identified as meeting the definition of critical habitat. For excluded 
units, more time was spent on reviewing pertinent information, 
addressing public comments, and incorporating public input than for 
designated critical habitat units. This, however, was not due to the 
exclusion process, but rather to the amount of pertinent information 
available for these units (Forest Service Land and Resource Management 
Plans, other management plans, etc.) and the large number of public 
comments associated with exclusion. The evaluation and incorporation of 
relevant information and public comment was a necessary part of our 
critical habitat designation.
Issue 4: Economic Issues
    (4A) Comment: The proposed critical habitat rule states that ``[t]o 
the extent that designation of critical habitat provides protection, 
that protection can come at significant social and economic cost'' (71 
FR 42443). Two commenters contend that there is no evidence that 
``social or economic'' costs apply to the Hine's emerald dragonfly 
critical habitat designation and that some private landowners have 
recognized that critical habitat designation poses no social or 
economic threat. Furthermore, the economic and social benefits of 
critical habitat designation are ignored.
    Response: The draft economic analysis evaluates the potential 
economic costs associated with critical habitat designation, and also 
discuses the benefits of critical habitat designation. Based on our 
economic analysis, estimated future costs associated with conservation 
efforts for the dragonfly in areas designated as critical habitat range 
from $16.8 million to $47.9 million (undiscounted) over the next 20 
years. The present value of these impacts, applying a 3 percent 
discount rate, is $13.4 million to $35.6 million ($0.9 million to $2.4 
million annualized); or $10.7 million to $26.0 million, applying a 7 
percent discount rate ($1.0 million to $2.5 million annualized).
    The published economics literature has documented that social 
welfare benefits can result from the conservation and recovery of 
endangered and threatened species. In its guidance for implementing 
Executive Order 12866, OMB acknowledges that it may not be feasible to 
monetize, or even quantify, the benefits of environmental regulations 
due to either an absence of defensible, relevant studies or a lack of 
resources on the implementing agency's part to conduct new research. 
Rather than rely on economic measures, the Service believes that the 
direct benefits of the proposed rule are best expressed in biological 
terms that can be weighed against the expected cost impacts of the 
rulemaking. Critical habitat designation may also generate ancillary 
benefits. Critical habitat aids in the conservation of species 
specifically by protecting the primary constituent elements on which 
the species depends. To this end, critical habitat designation can 
result in maintenance of particular environmental conditions that may 
generate other social benefits aside from the preservation of the 
species. That is, management actions undertaken to conserve a species 
or habitat may have coincident, positive social welfare implications, 
such as the preservation of open space in a region. While they are not 
the primary purpose of critical habitat, these ancillary benefits may 
result in gains in employment, output, or income that may offset the 
direct, negative impacts to a region's economy resulting from actions 
to conserve a species or its habitat. It is often difficult to evaluate 
the ancillary benefits of critical habitat. To the extent that the 
ancillary benefits of the rulemaking may be captured by the market 
through an identifiable shift in resource allocation, they are factored 
into the overall economic impact assessment. For example, if habitat 
preserves are created to protect a species, the value of existing 
residential property adjacent to those preserves may increase, 
resulting in a measurable positive impact. Ancillary benefits that 
affect markets are not anticipated in this case and therefore are not 
quantified.''
    (4B) Comment: One commenter suggested that the proposal was 
premature and legally deficient because it lacked an economic analysis.
    Our response: Pursuant to the Act, and clarified in our 
implementing regulations at 50 CFR 424.19, we are required to, ``after 
proposing designation of [a critical habitat] area, consider the 
probable economic and other impacts of the designation upon proposed or 
ongoing activities.'' The purpose of the draft economic analysis is to 
determine and evaluate the potential economic effects of the proposed 
designation. In order to develop an economic analysis of the effects of 
designation critical habitat, we need to have identified an initial 
proposed critical habitat designation. Following publication of the 
critical habitat proposal for the Hine's emerald dragonfly, we 
developed a draft economic analysis of the proposed designation that 
was made available for public review and comment on March 20, 2007, for 
14 days, and reopened for public review and comment on May 18, 2007, 
for 45 days. On the basis of information received during the public 
comment periods, we may, during the development of our final critical 
habitat determination, find that areas proposed are not essential, are 
appropriate for exclusion under section 4(b)(2) of the

[[Page 51108]]

Act, or are not appropriate for exclusion. An area may be excluded from 
critical habitat if it is determined that the benefits of such 
exclusion outweigh the benefits of including a particular area as 
critical habitat, unless the failure to designate such area as critical 
habitat will result in the extinction of the species. We have not, 
however, excluded any areas from the final designation based on 
economic reasons.
    (4C) Comment: One commenter expressed that Midwest Generation's 
rail line and immediately adjoining areas in Illinois Units 1 and 2 
should be excluded from critical habitat based on economic impacts, and 
they provided an independent economic analysis of alternative coal 
delivery systems.
    Our response: On March 20, 2007, we issued an economic analysis 
that addressed these issues. As stated above and in the proposed rule 
``critical habitat does not include human-made structures existing on 
the effective date of a final rule not containing one or more of the 
primary constituent elements.'' The rail line is not part of Illinois 
Units 1 and 2 because it was excluded by text from the proposal rule 
and from this final rule. Areas around the rail line that are not 
human-made but contain at least one primary constituent element are 
included. We determined that the relatively minor economic costs as 
described in the draft economic analysis do not justify excluding those 
areas from critical habitat.
    (4D) Comment: One commenter expressed concerns about the effects of 
critical habitat designation on the future of the State snowmobile 
trail system in Door County, Wisconsin, and on improvements to, and 
installation of, new trails. Concerns include loss of the State trail 
corridor, which could bankrupt snowmobile clubs in the area, and loss 
of associated tourist revenue in Door County.
    Our response: While the designation of critical habitat for the 
Hine's emerald dragonfly does not directly affect private landowners 
without a Federal nexus, it does alert them to the presence of an 
endangered species on their land and the need to ensure that their 
activities are consistent with the conservation of the species. 
Snowmobiling activity on upland areas in the winter will not affect the 
dragonfly, as adults are not flying in winter and the larval stage 
overwinters in crayfish burrows in wetlands. Construction and 
maintenance of snowmobile trails in upland locations at any time of 
year are not anticipated to affect the dragonfly. If construction and 
maintenance activities are planned in or near wetland areas occupied by 
the dragonfly, measures should be taken to preclude adversely affecting 
the wetlands or their hydrology. The Service's Green Bay Ecological 
Services Field Office can be contacted for guidance on ways to preclude 
harm to the dragonfly's habitat (by calling 920-866-1717). As we 
anticipate that snowmobiling activities will not be adversely affected 
by designation of critical habitat, we do not anticipate impacts to 
tourist revenues associated with snowmobiling in Door County.
    (4E) Comment: One commenter stated that it was unclear from 
information in the economic analysis whether a determination had been 
made regarding exclusion of additional areas from the designation of 
critical habitat for all or some of the units in Illinois based on 
economic impact.
    Our response: The purpose of the economic analysis is to identify 
and analyze the potential economic impacts associated with the proposed 
critical habitat designation for the Hine's emerald dragonfly. The 
economic analysis did not make a determination about any exclusions. 
The economic analysis is conducted to inform the Secretary's decision 
about exclusions. The final determination is made in this rule. Based 
on the information in the draft economic analysis and the comments 
received during the public comment period, we are not excluding any 
areas based on economic impacts.
    (4F) Comment: One comment asserts that there is little (if any) 
economic activity in Alpena, Mackinac, or Presque Isle Counties in 
Michigan. The comment asserts that declining populations in these 
counties is evidence of minimal economic activity.
    Our response: The methodology used to obtain land values is 
discussed in Section 2.1 of the economic analysis, and the land values 
for each potential critical habitat units are presented in Exhibit 2-3. 
These values reflect the level of actual economic activity in these 
counties. The land in the three Michigan counties that coincides with 
the study area is valued at $1,430 per ac in Alpena County; $4,380 per 
ac in Presque Isle County; and $1,510 per ac in Mackinac County. The 
land value estimates for economic impacts in these counties (for units 
MI 3, MI 4, MI 5, and MI 6) were obtained from local zoning and tax 
assessor officials in these counties. The price of land in the present 
constitutes the expected value of current and potential future values 
of that land. Each of the proposed critical habitat units are near 
waterfront access and roads, which may make them valuable now or in the 
future.
    (4G) Comment: Two comments state that the economic analysis fails 
to define an appropriate baseline, specifically: (1) The analysis of 
future conservation measures as co-extensive is unjustified; and (2) 
the inclusion of past costs associated with the proposed critical 
habitat as consequences of the critical habitat designation is 
erroneous.
    Our response: (1) The economic analysis includes co-extensive costs 
because courts and the public have asked to see us display all of the 
costs of critical habitat, whether or not these costs are co-extensive 
with other causes. (2) The economic analysis explains why past costs 
are included in the introduction of Chapter 1. The retrospective 
analysis of past costs is included to provide context for future costs, 
and in some cases to help predict them. The Service is not suggesting 
that these costs are a result of the critical habitat designation. 
Reporting of past costs is also reviewed in Section 1.4, where their 
inclusion is justified on the basis that past costs may have 
contributed to the efficacy of the Act in that area.
    (4H) Comment: Two comments state that the economic analysis does 
not include benefits in the analysis. The un-quantified benefits they 
list are: protection of ecosystem services; increased recreational and 
wildlife opportunities; reduced flood risks; concurrent conservation of 
other species; enhanced groundwater recharge; mosquito reduction; 
existence value of the dragonfly; protection of other species; wetland 
protection; decreased use of pesticides, chemicals, and herbicides; and 
potentially higher property values. One of the comments provides 
testimony of landowners who want to preserve the dragonfly on their 
property as evidence of existence value. This comment then proceeds to 
list several non-use valuation techniques. Another comment argues that 
the benefits should be expressed in monetary terms rather than in 
biological terms.
    Our response: Potential benefits from critical habitat designation 
are discussed in Section 1.4 of the economic analysis, which recognizes 
the valuation methodologies discussed by the commenter. The section 
then describes the policy of the Service whereby benefits are expressed 
in biological terms. This section also discusses how ancillary benefits 
are not expected in the case of the Hine's Emerald Dragonfly. The 
Federal Office of Management and Budget (OMB) has acknowledged that it 
may not be

[[Page 51109]]

feasible to monetize or quantify benefits because there may be a lack 
of credible, relevant studies, or because the agency faces resource 
constraints that would make benefit estimation infeasible (U.S. OMB, 
``Circular A-4,'' September 17, 2003, available at https://
www.whitehouse.gov/omb/circulars/a004/a-4.pdf.).
    (4I) Comment: One comment states that the economic analysis does 
not explain how the results of the analysis will be used in the 
critical habitat designation process.
    Our response: In the introduction to Chapter 1, the Framework for 
Analysis states that the economic analysis will be used to weigh the 
benefits of excluding particular proposed critical habitat areas 
against the benefits of including them.
    (4J) Comment: One comment states that the economic analysis does 
not consider the effects of other land use regulations that may affect 
how land can be developed or used, and that value losses attributed to 
critical habitat designation may be improperly attributed.
    Our response: Land use regulations and how they affect land values 
are discussed in Section 2.1 of the economic analysis, in the context 
of Exhibit 2-3. First, the analysis explains that present land values 
will reflect the opportunities for development of that land. In this 
way, the present value of land incorporates all current and expected 
future regulatory constraints upon land use (Freeman 2003).
    As an illustration, consider three identical parcels, one which 
housing can be built on with certainty, one which may or may not be 
subject to regulatory constraints that prohibit the construction of 
housing, and one where housing construction is absolutely prohibited. 
The price of the parcel where housing can be built (with certainty) 
will incorporate the option value for that housing and will sell for 
the highest price. The parcel where housing may or may not be built due 
to uncertainties about future regulation will sell for less than the 
parcel on which housing can be built with certainty, but will sell for 
more than the parcel where no housing can be built. The market price 
for land is net of the expected effect of current or future 
regulations. As described in Section 2.1 of the economic analysis, the 
GIS process for determining land values took into account zoning 
regulations and ownership types before determining land values from tax 
parcel records and interviews with zoning and planning officials. 
Impacts in this analysis are predicted using the best publicly 
available data for reasonably foreseeable land uses.
    (4K) Comment: One comment argues that the assumption that the value 
of land is immediately lost is erroneous because there is imperfect 
information in markets.
    Our response: Section 2.1 of the economic analysis provides an 
explanation of how real estate markets work, and how current prices are 
the market's best prediction of future land values. It is correct that 
all consumers are not perfectly informed about products in a 
marketplace. In the real estate market, a lack of knowledge can result 
in a higher or lower property value. In the case of a newly regulated 
market, this would mean that buyers would still be willing to pay too 
much for the property.
    The goal of the analysis in Section 2.1 is to predict the market 
equilibrium outcome. Limited information among buyers may cause them to 
pay too much for the property in the short run, but once the market is 
informed, everyone will pay the true (lower) market equilibrium value. 
There are many studies that have empirically shown that, though there 
may be imperfect information among some potential buyers, real estate 
markets respond quickly to changes in land use regulation (Kiel 2005; 
Guttery et al. 2000). The assumptions used in this analysis are based 
on the best available information.
    (4L) Comment: One comment states that the economic analysis 
improperly inflates the lost value of development because including all 
land values as lost development values assumes that these lands are 
certain to be developed, and there is no certainty that the land will 
be developed.
    Our response: Section 2.1 of the economic analysis addresses this 
in its discussion of how real estate prices adjust to expectations 
about future property uses. This analysis does not assume that all 
lands are certain to be developed. The present price per parcel of land 
incorporates the expected value of potential current and future uses of 
that land, regardless of when, or if, the land is ever developed. If 
current and potential uses are taken away, or if the quality of the 
land declines, the price of the land parcel will decrease (Quigley and 
Rosenthal 2005; Kiel and McClain 1995). Even the perception that the 
quality of the land may change can affect real estate values (Kiel and 
McClain 1996). Land that can be developed will command a higher price 
because it could be developed (even if it is never developed), and it 
is that expected value that the analysis considers.
    (4M) Comment: One comment states that the economic analysis fails 
to establish a proper baseline because it does not consider potential 
regulatory changes or changes in market demand. The comment does not 
specify what specific changes are likely other than potential changes 
due to global warming or peaked oil production. A similar comment 
suggests that the assumption that a dolomite mine in Illinois Unit 2 
will close because of critical habitat designation does not consider 
the impact of unknown future events.
    Our response: Section 2.1 of the economic analysis reviews the data 
sources and analytic procedures used to assess the potential value 
losses over the next 20 years. These data are the best data that are 
publicly available and as such provide the basis for the prediction of 
impacts for reasonably foreseeable land uses under expected future 
conditions. While costs attributable to critical habitat may result 
from other factors, we cannot speculate about future events. We must 
use the best information available to us at the time of the analysis.
    (4N) Comment: One comment states that the economic analysis 
estimates of lost property values are incorrect because the analysis 
does not consider changes to the value of properties outside the study 
area. The comment argues that if some parcels of land are removed from 
the market, then other parcels of land will increase in value by the 
amount of the decrease in land value lost, so that the net economic 
effect will be zero change.
    Our response: The potential for land use restrictions to affect 
neighboring properties is a valid concern. If there are no substitute 
parcels available in the vicinity of the parcel to be regulated (no 
other land that could be sold), then the price for land in that 
location will be driven up, and there will be a net gain for 
surrounding landowners, which could offset (fully or partially) the 
loss of value for the critical habitat units. However, if substitute 
parcels of land are plentiful in the vicinity of the critical habitat, 
then the consumer will have many options to choose from, and will not 
have to pay a higher price for substitute parcels, hence there will be 
no increase in surrounding land values (Quigley and Swoboda 2006).
    Section 2.1 of the economic analysis discusses the possibility that 
the amount of land available for development in the vicinity of the 
study area could be very limited. However, the area of land under 
consideration for designation as well as the value of that

[[Page 51110]]

land indicates that there will not be a significant impact on the local 
real estate market. That is, the amount of land that could be removed 
from development is not believed to be enough to increase surrounding 
land values. Results from sampling multiple listing services in 
Michigan and Wisconsin indicate that limiting residential development 
on vacant parcels will not have a substantial impact on the local land 
markets. That is, prices of surrounding parcels are unlikely to change 
and it is unlikely that there will be welfare changes because there are 
many substitute parcels for the critical habitat units.
    Sampling of Alpena County, Michigan found 146 parcels; the 50 
sampled parcels had an average size of 24.5 ac, and an average asking 
price of approximately $68,000. Sampling of Mackinac County, Michigan 
found 229 parcels; the 50 sampled parcels had an average size of 5.8 
acres, and an average asking price of approximately $90,000. Sampling 
of Presque Isle County, Michigan found 255 parcels; the 50 sampled 
parcels had an average size of 23 ac, and an average asking price of 
approximately $81,000. Sampling of the Door County (Wisconsin) Realtors 
Multiple Listing Service found approximately 550 vacant parcels of 
various sizes; the 50 sampled properties had an average size of 4.15 ac 
and an average asking price of approximately $66,000. This information 
is now included in Section 2.1.
    (4O) Comment: One comment states that the limitation on resource 
extraction values in Illinois Unit 2 would not have had an effect 
because the losses in value would be offset by increases in values to 
competitors. The comment says that the analysis does not consider 
whether other companies will profit if Material Services Corporation 
cannot mine the parcel in critical habitat. The comment also argues 
that the DEA does not consider the fact that there may be lower cost 
companies that would profit more if the limitation were passed.
    Our response: The magnitude of the dolomite deposits in Illinois 
Unit 2 relative to the rest of the Illinois dolomite market is 
discussed in Section 2.2.1 of the DEA. The annual revenue from the 
dolomite mine in Illinois Unit 2 is estimated to be $500,000. As noted 
in the report, the annual extraction of dolomite in Illinois has an 
approximate value of $470 million. Approximate dolomite revenues for 
Will County specifically (the county containing the mine in Illinois 
Unit 2) are $94 million. While losses of $500,000 per year to the 
mining company will be substantial, the expected revenues from this 
single mine are not significant relative to the entire market. That is, 
not allowing the dolomite in Illinois Unit 2 to be mined will not cause 
prices faced by competing companies to change; competitors will make no 
offsetting welfare gains (Just et al. 2004).
    The commenter suggests that other companies may be able to 
compensate for decreased mining activity in Illinois Unit 2 by 
increasing operations at other facilities, and that there will be no 
net loss to society. The commenter is correct that any shortfall due to 
the mine being unable to operate will likely be made up by other places 
(especially since the magnitude of the mine is small relative to the 
overall market). There will still be, however, the lost resource value 
for the company that is not allowed to mine this specific property.
    The comment also contends that another mine may have lower costs, 
and that increased operations at that mine may be more efficient. At 
this time, there are no publicly available data concerning different 
cost structures for dolomite mining companies.
    (4P) Comment: One comment states that the DEA does not consider 
alternative uses for the land in Illinois Unit 2 if the mine is not 
allowed to operate. The comment suggests that there might be wildlife 
viewing values for the property, or that the limitation on the mine 
would make nearby house values increase.
    Our response: The commenter makes a valid point; alternate land 
uses are not considered in this estimation for this proposed unit. In 
section 2.2.1 of the DEA, the analysis reports the mitigation costs of 
conservation that would be required to offset mining activities as well 
as the value lost if mining is not allowed. If mining is not allowed, 
there