[Federal Register Volume 88, Number 50 (Wednesday, March 15, 2023)]
[Rules and Regulations]
[Pages 15921-15938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05012]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2021-0029; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF69
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Bog Buck Moth
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered status under the Endangered Species Act of 1973 (Act), as
amended, for the bog buck moth (Hemileuca maia menyanthevora) (=H.
iroquois), a moth that occurs in Oswego County, New York, and Ontario,
Canada. This rule adds the bog buck moth to the List of Endangered and
Threatened Wildlife and applies the protections of the Act to this
species. We have determined that designation of critical habitat for
the bog buck moth is not prudent at this time.
DATES: This rule is effective April 14, 2023.
ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov at Docket No. FWS-
R5-ES-2021-0029.
FOR FURTHER INFORMATION CONTACT: Ian Drew, Acting Field Supervisor,
U.S. Fish and Wildlife Service, New York Field Office, 3817 Luker Road,
Cortland, NY 13045; telephone 607-753-9334. 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.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
bog buck moth meets the definition of an endangered species; therefore,
we are listing it as such. We have determined that designating critical
habitat is not prudent at this time. Listing a species as an endangered
or threatened species 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. This final rule adds the bog buck moth
(Hemileuca maia menyanthevora) (=H. iroquois) to the List of Endangered
and Threatened Wildlife.
The basis for our action. Under the Act, we may determine that a
species is an endangered species or a threatened species because of any
of five factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We have determined that the bog buck
moth is endangered due to a combination of factors. Bog buck moth
populations undergo boom and bust cycles and are highly vulnerable to
threats during the bust phase (Factor E). All populations are isolated
from one another (Factor E). All extant populations are experiencing
some degree of habitat alteration from invasive plant species and
habitat succession (Factor A). Flooding may drown various life stages
of the bog buck moth or reduce suitable habitat either by directly
making it unavailable (under water) or reducing survival and growth of
bog buckbean, an important food source for the bog buck moth larvae
(Factor A). Flooding has increased at one New York population over the
past several years due to increased winter and spring precipitation
from climate change and high Great Lakes water levels (Factor E). Water
level management has altered or has the potential to alter several bog
buck moth sites (Factor A). Additionally, the sedentary nature of the
bog buck moth means that colonization of neighboring fens does not
occur naturally, further limiting the species' ability to respond to
stochastic changes (Factor E).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. We have determined that
designating critical habitat for the bog buck moth is not prudent
because the moth co-occurs with another species that is highly
collected and designating critical habitat for the moth would increase
the risk of collection for the other species. In addition, the methods
used to collect the co-occurring species can be expected to cause harm
to the bog buck moth from disturbance and trampling of individuals
(eggs, larvae, pupae) and to vegetation necessary as a host plant and
for sheltering of all life stages. This disturbance can also be
expected to damage vegetation necessary for any potential
reintroductions of moths at the currently unoccupied site.
Previous Federal Actions
Please refer to the October 14, 2021, proposed listing rule (86 FR
57104) for a detailed description of previous Federal actions
concerning the bog buck moth.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the bog buck moth. The SSA team, composed of Service biologists and a
New York State Department of Environmental Conservation (NYSDEC)
biologist, conducted the SSA 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.
[[Page 15922]]
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought the expert opinions of six
appropriate specialists regarding the SSA report. We received four
responses. The peer reviews can be found at https://regulations.gov. In
preparing the proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which was the foundation
for the proposed rule and this final rule.
Summary of Changes From the Proposed Rule
We reviewed the public comments we received during the comment
period on the proposed rule (86 FR 57104; October 14, 2021) and
relevant information that became available since the proposed rule
published. Based on that review, we do not make any substantive changes
to the proposed rule in this final rule; we make only minor
clarifications and elaborate on our rationale for concluding that the
designation of critical habitat is not prudent at this time for the bog
buck moth.
I. Final Listing Determination
Background
The bog buck moth is a large diurnal moth native to fens
(groundwater-fed wetlands) in Oswego County, New York (NY), and
Ontario, Canada. A thorough review of the taxonomy, life history, and
ecology of the bog buck moth is presented in the SSA report (Service
2021, pp. 6-25), which is available at https://www.regulations.gov at
Docket No. FWS-R5-ES-2021-0029.
Taxonomy
The bog buck moth is a silk moth (family = Saturniidae) in the buck
moth genus (Hemileuca). The bog buck moth was first identified as a
variant of the maia species group within Hemileuca in 1977 by John
Cryan and Robert Dirig from four sites (two populations) along the
southeast shore of Lake Ontario in Oswego County, NY, but was not
formally named at that time (Legge et al. 1996, p. 86; Pryor 1998, p.
126; Cryan and Dirig 2020, p. 3). Four additional sites (two
populations) were discovered in 1977 in eastern Ontario (Committee on
the Status of Endangered Wildlife in Canada [COSEWIC] 2009, p. 7).
Multiple common names have been used since then (e.g., bogbean
buckmoth, Cryan's buckmoth, fen buck moth).
For many years, the bog buck moth's taxonomic status has been
confusing and uncertain. The bog buck moth was classified as part of
the Hemileuca maia complex, which is a broadly distributed group of
closely related taxa including H. maia, H. lucina, H. nevadensis, among
others (Tuskes et al. 1996, p. 111). Tuskes et al. (1996, pp. 120-121)
further refined the description of populations of buck moths in the
Great Lakes region, including the bog buck moth, as the H. maia complex
of Great Lakes Region populations. Kruse (1998, p. 109) included H.
maia and H. nevadensis as part of the Great Lakes complex; however,
using genomewide single nucleotide polymorphisms (SNPs), Dupuis et al.
(2018, p. 6) and Dupuis et al. (2020, p. 3) show that H. nevadensis is
restricted to the west. The Annotated Taxonomic Checklist of the
Lepidoptera of North America (Pohl et al. 2016, p. 735) included the
Great Lakes populations of buck moths as part of H. maia (based on
Tuskes et al. 1996), pending species-level taxonomic classification.
Recently, Dupuis et al. (2018, pp. 5-7) and Dupuis et al. (2020,
pp. 2-3) used SNPs and found unambiguous results supporting the
conclusion that both Ontario and Oswego County, NY, populations are
part of the bog buck moth lineage that is divergent from Hemileuca
lucina, H. peigleri, H. slosseri, and all other H. maia. They also
found clear differentiation between the group formed by the Ontario and
Oswego County, NY, populations and the group formed by the Wisconsin
and Michigan populations (Dupuis et al. 2020, p. 3).
In 2020, Pavulaan (2020, entire) was first to formally describe the
bog buck moth as Hemileuca maia menyanthevora and stated that it may
actually represent a full species. Pavulaan (2020, pp. 8-14) considered
host plant use and morphology for the designation and included the
Oswego County (NY), Marquette and Ozaukee County (Wisconsin), and
Ontario fens as part of the range. All specimens that Pavulaan used for
describing morphology were from one location in Oswego County, NY, and
he relied on host plant use discussed in Kruse (1998, entire) for
inclusion of the two Wisconsin sites (Pavulaan pers. comm., 2020).
Subsequently, Cryan and Dirig (2020, pp. 26-31) named the bog buck moth
as H. iroquois and included only the Oswego County, NY, and Ontario
populations in the designation. After reviewing the genetic information
presented in Dupuis et al. 2020 (entire), we concluded that the
Wisconsin sites are genetically distinct from the New York and Ontario
sites. Official scientific naming follows the rule of publication
priority under the International Code of Zoological Nomenclature;
therefore, the official name of the bog buck moth is H. maia
menyanthevora with the junior synonym of H. iroquois. We conclude that
the bog buck moth is a valid taxon for consideration for listing under
the Act (16 U.S.C. 1531 et seq.).
Based upon the strong evidence provided by Dupuis et al. (2018,
entire; 2020, entire), we consider the current range of Hemileuca maia
menyanthevora as Oswego County, NY, and Ontario, Canada. The historical
range also included Jefferson County, NY (see below). We find this
genetic evidence documented by Dupuis et al. markedly more persuasive
than the host plant information that Pavulaan (2020, entire; pers.
comm., 2020) relied upon when he included the Wisconsin sites in his
designation without specimens from those sites. The Oswego County, NY,
and Ontario range is consistent with the range described when the
Service originally considered the bog buck moth (Hemileuca sp.) as a
Category 2 candidate in 1991 (56 FR 58804, November 21, 1991). It is
also consistent with the range described by NatureServe (2020, pp. 1-
4), COSEWIC (2009, pp. 5, 7), and Cryan and Dirig (2020, entire).
Physical Description, Life History, and Range
Bog buck moth adults have black bodies and black/gray translucent
wings with wide, white wing bands and an eyespot (COSEWIC 2009, p. 5;
NatureServe 2015, p. 4). Bog buck moths have forewing lengths of 22 to
36 millimeters (mm) (0.9 to 1.4 inches (in)) (Tuskes et al. 1996, p.
121; Pavulaan 2020, p. 9). Males and females are generally similar in
appearance with a few morphological differences. Similar to all
saturniids, males have highly branched, feather-like antennae with
receptors that respond to female pheromones (Tuskes et al. 1996, p.
14), and females have simple antennae. Males also have a red-tipped
abdomen while females do not; males are also slightly smaller than
females (COSEWIC 2009, p. 5). In addition, both male and female adults
are larger than other Hemileuca maia and have similar highly
translucent wings as H. lucina. White wing bands are much larger than
other H. maia (Cryan and Dirig 2020, p. 26; Pavulaan 2020, p. 9).
Late instar larvae are dark with reddish orange branched urticating
(stinging) spines dorsally, and a reddish-brown head capsule and
prolegs (COSEWIC 2009, p. 6). Initially egg rings are light green
(Cryan and Dirig 2020, p. 26) and fade to light brown or tan (Sime
2020, pers. comm.). Mature larvae are
[[Page 15923]]
usually predominantly black with small white dots and lack yellow
markings compared to other Hemileuca maia (COSEWIC 2009, p. 6;
NatureServe 2015, p. 4; Cryan and Dirig 2020, p. 26).
The bog buck moth is restricted to open, calcareous, low shrub fens
containing large amounts of Menyanthes trifoliata (COSEWIC 2009, p. 10)
(referred to herein as bog buckbean, but also known as bogbean or
buckbean). Fens are classified along a gradient that ranges from rich
fens to poor fens based on their water chemistry and plant community
structure. Rich fens receive more mineral-rich groundwater than poor
fens, which results in higher conductivity, pH, and calcium and
magnesium ion concentrations (Vitt and Chee 1990, p. 97). The sites in
New York are considered medium fens (New York Natural Heritage Program
[NYNHP] 2020a, p. 3). Medium fens are fed by waters that are moderately
mineralized, with pH values generally ranging from 4.5 to 6.5 (Olivero
2001, p. 15). Medium fens often occur as a narrow transition zone
between a stream or lake and either a swamp or an upland community
(Olivero 2001, p. 15). The dominant species in medium fens are usually
woolly-fruit sedge (Carex lasiocarpa) and sweetgale (Myrica gale), with
a variety of characteristic shrubs and herbs generally less than 5
meters (m) (16.4 feet (ft)) in height (NYNHP 2020b, pp. 5-11). Bog
rosemary (Andromeda glaucophylla), leatherleaf (Chamaedaphne
calyculata), cranberry (Vaccinium macrocarpon), spatulate-leaved sundew
(Drosera intermedia), three-way sedge (Dulichium arundinaceum var.
arundinaceum), and green arrow arum (Peltandra virginica) are
characteristic only of medium fens, compared to any of the other
calcareous fens found in New York (Olivero 2001, p. 14).
In Ontario, the bog buck moth is found in calcareous fens with bog
buckbean. The fens are either low shrub dominated by sweetgale, bog
birch (Betula pumila), bog willow (Salix pedicellaris) and other
willows, but with patches of open fen dominated by sedges and water
horsetail (Equisetum fluviatile), or primarily open fens dominated by
sedges such as woolly-fruit sedge, smooth sawgrass (Cladium
mariscoides), and American common reed (Phragmites australis ssp.
americanus) surrounded by conifer swamp (COSEWIC 2009, p. 10).
The life cycle of a bog buck moth is similar to other Hemileuca
species and generally completed within 1 year (Tuskes et al. 1996, p.
103). Nonfeeding adults emerge in the fall. Males and females differ in
flight patterns, with males flying large, circular paths and females
making short, low, direct frequent flights (Pryor 1998, p. 133). Adult
males fly for longer periods as well, covering the open area of the fen
for approximately 10 minutes compared to females flying short distances
lasting a matter of seconds (Pryor 1998, p. 133). After mating, female
buck moths lay one large cluster of eggs on sturdy stems of a variety
of plant species. The eggs overwinter until the following spring when
they hatch into larvae. While early instar larvae rely primarily on the
host plant bog buckbean (Stanton 2000, p. 2), eggs are never laid on
these plants as they die back each year rendering them unavailable for
overwintering. Pupation occurs by mid-July, and the pupal stage lasts
about 2 months. While not documented in bog buck moth, in other
Hemileuca species (including H. maia maia), individual pupae may remain
dormant until the following fall or possibly the fall after that (Cryan
and Dirig 1977, p. 10; Tuskes et al. 1996, pp. 103, 114).
All populations are located within the beds of former glacial Lake
Iroquois (Cryan and Dirig 2020, p. 27) and Champlain Sea (COSEWIC 2009,
p. 9). The present distribution may be relict populations as a result
of a postglacial expansion by Hemileuca from western North America, and
subsequent isolation in fens and bogs as forests gradually reclaimed
postglacial wetland habitats (Pryor 1998, p. 138). Glacial retreat left
suitable habitat in disjointed patches (Gradish and Tonge 2011, p. 6).
Based on genetic findings, bog buck moth populations may have been more
historically widespread along the wetlands around Lake Ontario (Dupuis
et al. 2020, p. 4).
While we do not have a full understanding of the historical
distribution of the bog buck moth, there are records from three
populations in New York and two in Ontario, Canada. Currently, there
are four populations known. In Canada, the White Lake population
comprises two sites or subpopulations (White Lake North and White Lake
South). The Richmond Fen population comprises two sites or
subpopulations (Richmond Fen North and Richmond Fen South). In the
United States, the Lakeside population occurs along the eastern shore
of Lake Ontario in Oswego County, NY, and comprises five sites or
subpopulations (referred to as Lakeside 1 to Lakeside 5). To the
southwest, the Oswego Inland Site population occurs in Oswego County,
NY, and is a single site with two fen openings with metapopulation
dynamics operating at a smaller scale. The fifth historically known
population located in Jefferson County, NY, was identified based on
specimens collected in the 1950s, but the site is no longer suitable
for the bog buck moth. There are no other known populations of bog buck
moth in New York State (Service 2021, pp. 27, 63-64). The bog buck moth
is sedentary (nonmigratory) and therefore present within suitable
habitat year-round with small movements of 0.5 kilometers (km) (0.3
miles (mi)) within suitable habitat described as ``common''
(NatureServe 2015, p. 5). While bog buck moth populations were
previously described as individuals separated by areas of unsuitable
habitat greater than 2 km (1.24 mi) or areas of suitable habitat
greater than 10 km (6.2 mi) with some infrequent dispersal events at
slightly longer distances between unsuitable patches (NatureServe 2015,
p. 5), movements are now described as ``should be capable of flying
several to many kilometers, but seldom leaves habitat'' NatureServe
(2020, p. 5). In New York, some movement likely occurs between sites
that are close together. Isolation of populations is likely increased
by the short-lived adult stage (not much time for adults to fly far)
(COSEWIC 2009, p. 15). Adult females that do make short flights are
laden with hundreds of eggs.
Bog buck moth dispersal events have not been historically observed.
However, adult bog buck moths have the potential to disperse with
strong winds or powered flight if surrounding vegetation does not
impede them (Pryor 1998, p. 138). More recently, three males were
captured in unsuitable habitat located between the Lakeside 1 and
Lakeside 2 sites in New York (Stanton 2004, p. 7), supporting the
theory that some movement outside of suitable habitat can occur but
well within the 2-km (1.24-mi) distance discussed above. We conclude
that most movements are likely to be limited to the highly localized
fen habitat but that infrequent male dispersal events of a few
kilometers are possible. In addition, although we would expect most
wind events to primarily disperse males due to their longer localized
flights, even less frequent, but possibly longer, wind dispersal events
of either sex may occur.
It is unlikely that other bog buck moth populations exist besides
the ones mentioned above. Fairly extensive but unsuccessful searches
for bog buck moths have been conducted at other potentially suitable
wetland habitats in Ontario, and no new sites have been found (COSEWIC
2009, pp. 9-10). Given the degree of interest by naturalists in these
natural areas and the diurnal habits of this large distinctive species,
the probability of undiscovered Ontario
[[Page 15924]]
bog buck moth populations is low (COSEWIC 2009, p. 10).
The story is similar in New York State. Researchers sought out
additional populations during years of exploring the bed of former
glacial Lake Iroquois and its tributaries and outlets, and while they
found some fens with bog buckbean, they found no additional sites with
bog buck moths (Cryan and Dirig 2020, pp. 4-5). In addition,
researchers have visited fens in New York for many years and likely
would have observed the highly conspicuous larvae on bog buckbean or
adult male moths, which are readily visible due to their lengthy,
localized flight pattern, had they been present.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The regulations that are in effect and therefore applicable to this
final rule are 50 CFR part 424, as amended by (a) revisions that we
issued jointly with the National Marine Fisheries Service in 2019
regarding both the listing, delisting, and reclassification of
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019); and
(b) revisions that we issued in 2019 eliminating for species listed as
threatened species are September 26, 2019, the Service's general
protective regulations that had automatically applied to threatened
species the prohibitions that section 9 of the Act applies to
endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all the
threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess bog buck moth viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry,
[[Page 15925]]
warm or cold years), redundancy is the ability of the species to
withstand catastrophic events (for example, drought, large pollution
events), and representation is the ability of the species to adapt to
both near-term and long-term changes in its physical and biological
environment (for example, climate conditions, pathogens). In general,
species viability will increase with increases in resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels, and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
levels, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket FWS-R5-ES-
2021-0029 on https://www.regulations.gov.
Summary of Biological Status and Threats
For this final rule, we reviewed the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Individual, Subpopulation, and Species Needs
The primary requirements for individual bog buck moths include
suitable conditions that support fen ecosystems; perennial plants with
bare sections of sturdy, small stems above substrate near bog buckbean
to provide shelter for eggs; the presence of bog buckbean and other
plants to provide shelter and food for larvae; and appropriate flying
weather of warm fall days with periods of no rain and low winds during
the adult life stage.
Bog buck moths require medium fens (Olivero 2001, p. 15) with a
variety of shrubs and herbs, including the bog buckbean, that are
generally less than 5 m (16.4 ft) in height (NYNHP 2020b, pp. 5-11).
Bog buck moths also depend on shifting mosaics of early successional
fen habitat created by regular disturbance (such as periodic flooding)
(Cryan and Dirig 2020, p. 28). Without disturbances, as with other
early successional habitats, vegetation succession will occur; however,
in fens with intact hydrology, this succession occurs very slowly.
The bog buck moth is univoltine (single adult flight period). The
flight period lasts 4 weeks, generally from mid-September to October
(Pryor 1998, p. 134; Stanton 2000, p. 15; Schmidt 2020, pers. comm.).
Adults are diurnal (fly during the day), avoiding cooler fall night
temperatures (Tuskes et al. 1996, p. 12; Pryor 1998, p. 133). Bog buck
moths fly when temperatures are generally above 68 degrees Fahrenheit
([deg]F) (20 degrees Celsius ([deg]C)) and when winds are less than 24
kilometers per hour (kmph) (15 miles per hour (mph)) (Stanton 1998, pp.
19-20, 29).
Female bog buck moths mate once and deposit eggs (Pryor 1998, p.
129; Stanton 1998, p. 8) around bare sections of rigid, vertical plant
stems (Stanton 2000, p. 11). Unlike other Hemileuca species (Tuskes et
al. 1996, p. 103), bog buck moths do not lay eggs on their primary
larval host plants (Legge et al. 1996, p. 88; Stanton 2000, pp. 2, 11).
Eggs overwinter and hatch into larvae in the spring.
Bog buck moth larvae require bog buckbean and other host plant
species. During the early instars, bog buckbean is the primary food
source for the larvae; however, later instars will feed on a larger
variety of host plants. Overall, bog buckbean is essential, but other
foodplants may be important, particularly in later larval stages.
Please refer to the SSA report for a list of documented larval host
plants and oviposition plants (Service 2021, pp. 13-14).
Healthy or highly resilient populations are those that are able to
respond to and recover from stochastic events (e.g., flooding, storms)
and normal year-to-year environmental variation (e.g., temperature,
rainfall). Simply said, healthy populations are those able to sustain
themselves through good and bad years. For the SSA, we defined
viability as the ability of the species to sustain populations in the
wild over time. The bog buck moth needs multiple healthy populations
(resiliency). The more populations, and the wider the distribution of
those populations (redundancy), the less likely that the species as a
whole will be negatively impacted if an area of the species' range is
negatively affected by a catastrophic event, and the more likely that
natural gene flow and ecological processes will be maintained (Wolf et
al. 2015, pp. 205-206). Species that are well distributed across their
historical range are less susceptible to the risk of extinction as a
result of a catastrophic event than species confined to smaller areas
of their historical range.
Furthermore, diverse and widespread populations of bog buck moth
may contribute to the adaptive diversity (representation) of the
species if redundant populations are adapting to different conditions.
In considering what may be important to capture in terms of
representation for the bog buck moth, we identified two primary means
of defining bog buck moth diversity: genetic differences and potential
adaptation to variation in climatic conditions across latitudinal
gradients.
Gene flow is influenced by the degree of connectivity and landscape
permeability (Lankau et al. 2011, p. 320). Gene flow may be somewhat
limited among bog buck moth populations due to their rare and patchy
distributions and sedentary (nonmigratory) behavior. The Oswego Inland
Site population is genetically distinct from the nearest of the
Lakeside populations (which is about 30 km (18.6 mi) away), although
there is or was likely some limited migration between them (Buckner et
al. 2014, pp. 510-512). In addition, while an unambiguously close
relationship was found between the bog buck moth specimens from
[[Page 15926]]
Ontario and the populations in Oswego County, NY, both of these
populations formed distinct sister clusters (Dupuis et al. 2020, pp. 2-
3). Maintaining populations in both Canada and New York is important to
conserve this genetic diversity.
The bog buck moth has a fairly narrow distribution; however, Lake
Ontario influences local climatic conditions, and, at more northern
latitudes, the Canadian populations experience colder winters. In
Ottawa, Canada, average monthly temperatures range from 5.4 to 21.6
[deg]F (-14.8 to -5.8 [deg]C) in January to 60 to 79.7 [deg]F (15.5 to
26.5 [deg]C) in July, and average yearly snowfall is 88 in (2.23 m). In
Oswego, NY (directly on Lake Ontario), temperatures range from 18 to 30
[deg]F (-7.8 to -1.1 [deg]C) in January to 63 to 79 [deg]F (17.2 to
26.1 [deg]C) in July, and average yearly snowfall is 141 in (3.58 m).
Adult males have been documented to fly 3 to 5 days earlier at the
Oswego Inland Site compared to Lakeside 2, potentially due to the
climate-tempering effects of Lake Ontario on the Lakeside 2 site
(Stanton 1998, p. 26). Maintaining populations across historical
latitudinal and climatic gradients increases the likelihood that the
species will retain the potential for adaptation over time. Local
adaptation to temperature, precipitation, host plants, and community
interactions has been identified for butterflies and is anticipated for
the bog buck moth (Aardema et al. 2011, pp. 295-297).
Risk Factors for the Bog Buck Moth
The primary factors currently influencing bog buck moth population
health are inherent factors (e.g., narrow habitat niche) and several
external factors resulting in loss or alteration of habitat or directly
influencing demographic rates. As discussed above, bog buck moths are
found in medium fens. Medium fens are listed as imperiled or vulnerable
in New York (NYNHP 2020b, p. 2). Threats to medium fens include
hydrological change, habitat alteration in the adjacent landscape,
development, and recreational overuse (NYNHP 2020b, p. 3). Fens are
especially sensitive to relatively small changes in hydrology (van
Diggelen et al. 2006, p. 159). Additionally, several medium fens where
bog buck moths occur in New York are negatively impacted by invasive
species, such as purple loosestrife (Lythrum salicaria), common reed
(Phragmites australis), and buckthorn (Rhamnus spp.) (NYNHP 2020b, p.
3). In Canada, the most significant threat to the bog buck moth is
habitat degradation either due to alteration of the water regime within
the species' habitat or the invasion of habitat by nonnative plant
species (COSEWIC 2009, p. 18; Environment Canada 2015, p. 7). Several
sources of habitat alteration identified at bog buck moth sites are
discussed below. We do not fully understand the cause of declines at
bog buck moth sites, and so it is likely that additional factors (e.g.,
predation, disease, pesticides) are important. For a comprehensive
discussion of the primary factors as well as these other likely
stressors, please refer to chapter 3 of the SSA report (Service 2021,
pp. 26-50).
Change in Water Levels
Water level changes can directly kill individuals (e.g., flooding
of pupae) or result in changes in habitat suitability and availability.
Flooding can result in reductions in suitable oviposition sites, larval
food sources and shelter, or pupation sites. Below, we discuss water
management as it pertains to the Canadian and U.S. populations.
Water Level Management--Canadian Populations
Both White Lake subpopulations are influenced by manipulation of
the White Lake outlet dam in the town of White Lake (Schmidt 2020,
pers. comm.), and large fluctuations may cause mortality (COSEWIC 2009,
p. 18). Alteration of the water regime can be mitigated or avoided
through appropriate water management policies, actions, and land
stewardship techniques; however, there were no clear prescriptive
actions provided (Environment Canada 2015, p. 7). The Strategy for the
Bogbean Buckmoth in Ontario (Ontario Recovery Strategy) includes
recovery actions to understand the specific hydrology of Richmond Fen
wetlands and the White Lake wetlands and to work with stakeholders to
mitigate impacts from land use change, particularly water level
manipulation at White Lake (Gradish and Tonge 2011, pp. 12-13). We have
no information to indicate these actions have been initiated to date,
and Ontario's 5-year review of the bog buck moth (OMNRF 2017, pp. 11-
17) does not mention anything about these specific actions. However,
through regulation, Ontario formally designated ``habitat'' for the bog
buck moth in 2014 (Environment Canada 2015, p. 9). Environment Canada
then adopted the description of bog buck moth ``habitat'' as ``critical
habitat'' in the Federal recovery strategy (Environment Canada 2015, p.
10). The designation includes a list of activities that alter the fen's
water regime as those likely to destroy critical habitat for the buck
moth (Environment Canada 2015, p. 17). We will discuss more information
about Ontario and Canadian laws and regulations in Conservation
Measures, below.
Water Level Management--U.S. Populations
Water level management resulted in the extirpation of a Jefferson
County, NY, population in the 1970s (Bonanno and White 2011, p. 9) by
flooding the fen habitat and creating a freshwater marsh. The site is
currently being maintained by the New York State Office of Parks,
Recreation and Historic Preservation as a marsh for flood control,
septic system management, and New York State-listed endangered black
tern (Chlidonias niger) habitat (Bonanno 2020, pers. comm.). However,
it is no longer suitable habitat for the bog buck moth. The Lakeside
population is currently influenced by water levels associated with
management of Lake Ontario through regulation of the Moses-Saunders
hydroelectric dam and precipitation events. The St. Lawrence River is
located at the northeast end of Lake Ontario and is the natural outlet
for the Great Lakes. Approximately 160 km (100 mi) downstream from Lake
Ontario are the structures used to control the flow from Lake Ontario,
most of which is used by the Moses-Saunders powerhouses (IJC 2014, p.
4). The International Joint Commission (IJC) and its International Lake
Ontario-St. Lawrence River Board (Board) oversee management of these
flows.
The Lake Ontario water level changes in response to the difference
between the supply it receives and its outflow. The supply is
uncontrolled, and the use of the Moses-Saunders Power Dam to change
outflow provides some control over Lake Ontario water levels, but there
are limits to the amount of water that can be released (IJC 2014, p.
5). Most of the episodic changes in Great Lakes water levels over the
past century are attributable to corresponding changes in annual
precipitation (Gronewold and Stow 2014, p. 1084). Prior to the
construction of the dams on the St. Lawrence River, recorded lake
levels of Lake Ontario from 1860 to 1960 show a pattern of variation
with highs and lows captured within each decade or so (Wilcox et al.
2008, p. 302). The historical range of monthly average water levels was
more than 1.8 m (6 ft) between low and high levels, and the IJC
recommended regulating within a narrow 1.2-m (4-ft) target from April
to November (IJC 2014, p. 8). This has resulted in compressing the
range of Lake Ontario water levels to 0.7 m (2.3 ft) from 1.5 m (5 ft)
(Wilcox et al. 2008,
[[Page 15927]]
p. 302). The IJC (2014, p. 43) found that regulation of Lake Ontario
has restricted the natural fluctuation of its water levels, both in
terms of reducing its extremes and year-to-year variability.
The existing shoreline vegetation of the Great Lakes depends on
regular fluctuation in water levels (Keddy and Reznicek 1986, p. 35).
Fluctuating water levels increase the area of shoreline vegetation and
the diversity of vegetation types and plant species (Keddy and Reznicek
1986, p. 35). High lake levels periodically eliminate dense-canopy
emergent plants, and low lake levels allow less competitive understory
species to grow (Keddy and Reznicek 1986, entire; Wilcox et al. 2008,
p. 301).
Stabilization of Lake Ontario water levels after the construction
of the Moses-Saunders Power Dam may have subsequently increased cattail
(Typha spp.) dominance (Rippke et al. 2010, p. 814). Specifically, lack
of low lake levels shifted the competitive advantage to the taller
cattails, resulting in loss of large expanses of sedge/grass meadows
(Wilcox et al. 2008, p. 316). The IJC (2014, p. 43) found that the
compressed lake level range has allowed trees and shrubs to grow closer
to the water, and cattails and other emergent plants that tolerate
persistent flooding to expand their range up the shoreline, reducing
the sedge meadow plants that occurred in between. Increased cattails
have been documented at Lakeside bog buck moth subpopulations including
Lakeside 3 and Lakeside 4 (Bonanno 2020, pers. comm.; Sime 2019, p.
38). These changes in vegetation from Carex spp., sweet-gale, herbs,
and shrubs to cattail marsh result in overall habitat loss through
permanent reductions in the amount of suitable oviposition sites,
larval food sources, and pupal habitat.
In addition to the changes in vegetation discussed above, water
levels can directly impact survival of bog buck moth in various life
stages. The Lakeside population includes sites that have been described
as physically ``protected wetlands'' located behind sandbars and
connected to Lake Ontario by intermittent or indirect surface water
openings or ground water (Vaccaro et al. 2009, p. 1038). Water levels
in these sites are greatly influenced by precipitation and highly
variable depending on their unique connection to Lake Ontario (Vaccaro
et al. 2009, p. 1045). Barrier beaches along Lake Ontario restrict flow
out of the wetlands, causing water levels to rise sharply in response
to local precipitation events in the ``protected wetlands'' (Vaccaro et
al. 2009, p. 1045). These sharp rises can result in flooding events.
Although flood events may be related to water level management, they
are more strongly connected to precipitation events (Gronewold and Stow
2014, p. 1084) and are further discussed below under Climate Change.
In addition to the larger scale water level management of Lake
Ontario, more localized water level management may influence bog buck
moth sites. Water levels may be influenced by impoundments (human or
beaver) or roads that restrict flow into or out of the fens.
Restriction of flow into fens results in drying of sites and increases
in shrubs. Taller shrubs shade out bog buckbean, reducing optimal
larval host plants.
One example of localized water level influences is the impact of a
road at the Lakeside 1 and Lakeside 2 sites. Historically connected,
these two sites became separated due in part to the construction of a
road in the mid-1950s and impoundment in an adjacent management area
(Bonanno 2006, p. 8). Fen habitat contracted from 6 to 2 ha (15 to 5
ac) at the Lakeside 1 site and 32.4 to 24.7 ha (80 to 61 ac) at the
Lakeside 2 site from 1998 to 2001 (Olivero 2001, p. 10). This was
corroborated with personal observations by Bonanno (2014, p. 6), who
found that vegetation in the Lakeside 1 site was succeeding to a black
spruce-tamarack bog forest with deep sphagnum, taller shrubs, and
scarce bog buckbean. At the Lakeside 2 site, succession is documented
to the point where significant habitat restoration is required (Bonanno
2014, p. 5; 2015, p. 7; 2016, p. 8).
Water levels on Lake Ontario have no direct effect on the Oswego
Inland Site population, and we are unaware of any smaller scale water
level management at this site; however, temperature, precipitation, and
evaporation potential will impact hydrology (Stanton 2004, p. 11) (see
Climate Change, below).
Change in Vegetation
Both invasive species and succession can reduce the number of
suitable oviposition plants and/or larval host plants that are
available for the bog buck moth. Invasive species and later
successional plants directly compete for space and nutrients or shade
out bog buckbean. Changes in the quality or quantity of bog buckbean
are a potential cause of documented declines in bog buck moths in New
York (Stanton 2004, p. 11).
We evaluated the relative threats posed by invasive understory
species and determined that Typha spp., common reed, and glossy
buckthorn (Frangula alnus) are currently the primary species that could
affect population-level dynamics of the bog buck moth. Common reed is
abundant across the northern hemisphere, including most of the United
States and the southern portions of Canada (Galatowitsch et al. 1999,
pp. 739-741). Native fen plants like Myrica gale are reduced with the
presence of common reed (Richburg et al. 2001, p. 253).
Glossy buckthorn is a shrub of Eurasian origin that is aggressive
in bogs and fens. Drier portions or less frequently inundated sections
of wetlands with available hummock surfaces are more readily invaded
(Berg et al. 2016, p. 1370). Glossy buckthorn displaces or shades out
native fen plant species (Fiedler and Landis 2012, pp. 41, 44, 51). Bog
buckbean typically does not grow well in shade (Hewett 1964, p. 730),
although it can be found in shaded areas of some fens (Helquist 2020,
pers. comm.). Glossy buckthorn transpiration in mid-summer has been
shown to lower the water table (Godwin 1943, p. 81), resulting in
faster decomposition rates and reduction of hummocks in sites (Fiedler
and Landis 2012, pp. 41, 44, 51). Sites with glossy buckthorn also have
lower soil pH, although it is unclear whether buckthorn invaded these
areas more frequently or created this change (Fiedler and Landis 2012,
p. 51).
As stated above, in Canada, the primary threat to bog buck moth
populations includes habitat degradation from cattails, common reed,
and glossy buckthorn (COSEWIC 2009, p. 18; Gradish and Tonge 2011, pp.
6-7; Environment Canada 2015, p. 7). These plants occur in or adjacent
to all Ontario sites and pose an ongoing and future threat of habitat
reduction. While invasive plant species have been found within or near
all four sites where the bog buck moth is known to occur in Ontario,
the risk posed by these species can be assessed regularly through
targeted monitoring, and, to the extent feasible, invasive plant
control can be employed as appropriate and necessary to help mitigate
this threat (Environment Canada 2015, p. 7). Invasive vegetation
control would likely require long-term management.
These species are also documented at the New York sites. For
example, glossy buckthorn makes up a substantial portion of the shrubby
component at Lakeside 5 and is present at the Oswego Inland Site
(Bonanno 2006, p. 7; 2013, p. 2). Cattail had been expanding at the
Oswego Inland Site, and Bonanno (2013, p. 2) noted the only obvious
change in potential drivers of vegetation was the large expansion of a
subdivision along the lakeshore. Narrow-leaved cattail (Typha
angustifolia) encroachment at the Oswego Inland Site
[[Page 15928]]
has been managed sporadically prior to 2016, and annually from 2016 to
2020 (Helquist 2020, pers. comm.). Other invasive species management
projects have also been undertaken at the Oswego Inland Site and
Lakeside 5; however, invasive plants remain at these sites. In
addition, several clones of both the introduced and the native
Phragmites spp. occur near bog buck moth habitat at Lakeside 3 (Bonanno
2004, p. 9).
There may be multiple sources of vegetation succession, including
natural succession from early successional to late successional plant
species, as well as human-induced or accelerated succession from
sources such as increased nutrient input (enrichment) and altered
wetland hydrology (discussed above under Change in Water Levels). Here,
we provide some additional details about nutrient input.
Fens are characterized by a very low supply of nitrogen and
phosphorous (Bedford and Godwin 2003, p. 614), and many fens in New
York are degraded by altered hydrology or by nitrate moving in ground
water, by phosphate adsorbed to sediment in runoff, or by altered water
chemistry caused by development within fen watersheds (Drexler and
Bedford 2002, p. 278; Bedford and Godwin 2003, p. 617). Nutrient
loading of a fen in New York (not a bog buck moth site) resulted in
reductions in species richness of both vascular plants and bryophytes
and increases in monotypic stands of bluejoint grass (Calamagrostis
canadensis), lake sedge (Carex lacustris), hairy willow herb (Epilobium
hirsutum), and broadleaf cattail (Typha latifolia), especially in an
area adjacent to a farm field (Drexler and Bedford 2002, pp. 276-278).
Dense cover reduces fen biodiversity through direct space competition,
or by reducing seedling growth from decreased available light and
increased litter layer (Jensen and Meyer 2001, pp. 173-179).
Increased nutrient inputs have been documented at both the Lakeside
and Oswego Inland Site populations (Service 2021, p. 36). The Lakeside
3 and 4 sites are adjacent to a recreational vehicle (RV) campground
that may contribute to nutrient enrichment encouraging growth of the
invasive common reed. The Lakeside 2 site is subject to surface water
inputs from the adjacent pond, the Lakeside 1 site is surrounded by
seasonal camps and an RV campground, and the Lakeside 5 site is abutted
by a very large RV campground. The Oswego Inland Site has seen recent
residential development along the lake shoreline.
Parasitoids
Parasitoids are small insects whose immature stages develop within
or attached to their host insects. Unlike parasites, which typically
feed upon hosts without killing them, parasitoids eventually kill their
hosts. Most saturniids are attacked during the larval stage, and late
instar larvae often suffer heavy losses (Tuskes et al. 1996, pp. 25-
27). For the bog buck moth, parasitism of egg masses has been
documented; while larval parasitoids have not been directly observed,
they are also believed to be the cause of mortality (COSEWIC 2009, p.
17).
Nearly all of the bog buck moth egg masses found at the Lakeside 1
site since 1996 were parasitized by the native wasp Anastatus furnissi
(Burks) (Stanton 2000, p. 4), and it is plausible that the wasp was the
primary mortality factor at other Lakeside subpopulations (Stanton
2000, p. 13). Wasp parasitism of egg masses has also been documented at
the Oswego Inland Site (Sime 2019, p. 15). The parasitism rates do not
appear to be density-dependent, as parasitism levels have been
consistent at the Lakeside and Oswego Inland Site populations at 25 to
30 percent of egg clusters affected per year since 2009, while bog buck
moth populations have undergone dramatic fluctuations in that time
period (Sime 2019, p. 15).
Larval parasitoids are common in Hemileuca species (Tuskes et al.
1996, p. 103). Parasitoids can include native and nonnative species,
such as the native ichneumonid wasp Hyposoter fugitivus (Say) and
tachinid fly Leschenaultia fulvipes (Bigot), and the introduced
tachinid fly Compsilura concinnata (Meigen) for the control of gypsy
moths (Lymantria dispar). Although C. concinnata is likely present at
the Canadian sites, no evidence of parasitism of bog buck moth has been
reported (Wood 2020, pers. comm., as cited in COSEWIC 2009, p. 14).
Parasitism is assumed to be occurring at the Canadian populations
(COSEWIC 2009, p. 17). Similarly, while not documented at the bog buck
moth sites in the United States, we find the New York populations are
likely to be susceptible to larval parasitism from the tachinid fly and
other parasitoids and observed boom/bust cycles may be related to such
parasitism. A 2016 report identified a crash of adult bog buck moths at
the Oswego Inland Site after abundant larvae of all sizes were observed
in May and June. The report suggested further investigation into larval
or pupal parasitoids as a possible cause (Bonanno 2016, p. 5).
If bog buck moths are not killed by predators (e.g., small mammals
and other invertebrates) or parasitoids, larval behavior may still be
affected by the presence of predators or parasitoids. Early instar
larvae tend to stay together and defend themselves, while late instar
larvae disperse, leading to increased subdivision of clusters (Cornell
et al. 1987, p. 387). At sites with higher predator or parasitoid
densities, bog buck moth larvae likely experience slower growth rates,
prolonged development, and reduced body mass (Stamp and Bowers 1990, p.
1037) because they would be forced to forage closer to the center of
plants where it is cooler and where older, lower quality leaves are
present.
Climate Change
While there are many possible effects to bog buck moths from
climate change into the future, here we focus on the effects to bog
buck moths from observed changes in precipitation and temperature to
date.
Lake Ontario water levels naturally fluctuate within and among
years; however, record high water levels have recently occurred,
resulting in impacts to bog buck moth sites. Between 1951 and 2017, the
total precipitation with the Great Lakes Basin increased by
approximately 14 percent with heavy precipitation events increasing by
35 percent (Great Lakes Integrated Sciences and Assessments Program
2019, entire). After 15 years of below-average water levels on Lake
Superior and Lake Michigan-Huron, water levels of the upper Great Lakes
started rising in 2013 and have been well above average for several
years (Board 2020, p. 7). With all of the Great Lakes water levels
above or near record-highs, the increase represented an unprecedented
volume of water in the Great Lakes system funneled into Lake Ontario
and out the St. Lawrence River (Board 2020, p. 7), resulting in the
Lakeside population fens being vulnerable to flooding for an extended
period of time. Flooding that negatively impacts bog buck moths can be
described as longer duration flooding, as long-term flooding of bog
buck moth fens submerges vegetation and makes the site unsuitable for
most life stages and may directly kill individuals. In contrast,
periodic flooding that is shorter in duration helps maintain habitat
suitability. Furthermore, bog buck moth eggs can tolerate short-term
submersion but are not viable after long-term flooding events (Service
2021, p. 34).
Two high-water events across the entire Great Lakes basin caused by
above-normal precipitation (January to
[[Page 15929]]
May 2017, and November 2018 through May 2019) compounded the already
high-water levels in the Great Lakes basin (Board 2020, pp. 6-9). These
events resulted in long-term submersion of bog buck moth eggs and
subsequent crashes in adult flights at Lakeside 5. In addition to
changes in water levels, climate change has also brought about changes
in temperature. The Ontario Ministry of the Environment (2011, p. 1)
reported the average temperature in Ontario has gone up by as much as
2.5 [deg]F (1.4 [deg]C) since 1948. Similarly, between 1951 and 2017,
the average annual temperature in the Great Lakes Region has increased
by 2.3 [deg]F (1.3 [deg]C) (GLISA 2019, entire). We have no detailed
studies to assess whether observed declines in bog buck moth counts of
the U.S. populations are related to these increased annual
temperatures. However, seasonal changes in temperature can influence
the form of precipitation and snowpack in winter and shifts in
phenology. For example, the timing of fall flights may be shifting to
later in September. Bog buck moth monitoring windows have been
September 12 to 26 at the Oswego Inland Site and September 18 to
October 1 at the Lakeside sites since surveys began, and in recent
years there has been little or no activity near the beginning of the
survey window (Bonanno 2019, pp. 1-2).
Throughout the Great Lakes Basin, average winter minimum and
maximum temperatures increased from 1960 to 2009 by 3.24 and 1.98
[deg]F (1.8 and 1.1 [deg]C), respectively (Suriano et al. 2019, pp. 6-
8). Increased winter temperatures are associated with decreases in
Great Lakes ice cover and increases in winter precipitation occurring
as rain. Increased temperatures may also reduce snowpack, impacting bog
buck moth food sources. During the first half of the 20th century, the
Great Lakes basin experienced an increase in snowfall; however,
snowfall has declined through the latter half of the 20th and early
21st centuries (Baijnath-Rodino et al. 2018, p. 3947). Similarly, snow
depth in the Great Lakes Basin reduced approximately 25 percent from
1960 to 2009 (Suriano et al. 2019, p. 4). Trends during this timeframe
are variable by subbasin, and there were no significant trends for the
Lake Ontario subbasin (Suriano et al. 2019, p. 5). At a finer scale (1
degree latitude by 1 degree longitude grids), there were also no
significant changes observed for snow depth or snowfall for the grid
along Lake Ontario that includes the bog buck moth sites, but there was
a significant increase of the number of ablation events (i.e., snow
mass loss from melt, sublimation, or evaporation) (Suriano et al. 2019,
pp. 6-7). These events are associated with rapid snow melt and often
lead to localized flooding.
Snowpack reductions lead to longer periods of frost, earlier
disappearance of standing water, deeper frost levels, and reduced bog
buckbean biomass (Benoy et al. 2007, pp. 505-508). Reduced bog buckbean
will negatively affect bog buck moth larval growth and survival.
Reduced snowpack can also impact bog buck moths directly; however,
limited research is available on the impacts to bog buck moth
associated with the presence, depth, and duration of winter snow. The
presence of a consistent seasonal snowpack can prevent freeze-thaw
cycles. While bog buck moths overwinter in the egg stage, which is less
vulnerable to freezing than other life stages, they may also
periodically overwinter in the pupal stage, which would be vulnerable
to these cycles. Their egg-clustering habit may decrease the amount of
egg surface exposed to ambient conditions and reduce the possibility of
desiccation (Stamp 1980, p. 369). However, eggs that are not covered by
snowpack are exposed to increased risk of predation.
Increased temperatures in winter and early spring may lead to
earlier egg hatch. As temperatures have increased, many insects have
been emerging earlier (temperature-induced emergence) (Patterson et al.
2020, p. 2), resulting in phenological mismatch with host plants. For
example, Karner blue butterfly (Lycaeides melissa samuelis) larvae have
been known to hatch earlier than the host plant, wild blue lupine
(Lupinus perennis), after unseasonably warm late-winter temperatures
(Patterson et al. 2020, p. 6). Similar to the Karner blue butterfly,
bog buck moth early instar larvae rely on specific host plants and are
at greater risk of impacts from phenological mismatch than species with
wide host plant usage. Earlier spring hatch followed by subsequent
spring freezes also increases the risk of mortality of early instar
larvae.
Overall, interacting changes in temperature and precipitation are
highly influential in terms of flooding or drying out bog buck moth
sites. There may be additional compounding effects from changes in
temperature associated with shifts in phenology or reduced snowpack,
but we lack sufficient information on those potential relationships.
Conservation Measures
New York Populations
The bog buck moth was listed as endangered by the State of New York
in 1999 and is protected by New York's Environmental Conservation Law
(Consolidated Laws of New York, chapter--Environmental Conservation,
article 11, title 5, section 11-0535) and the New York Code of Rules
and Regulations (NYCRR) in title 6, subchapter J, part 182. An
incidental take permit is required for any proposed project that may
result in a take of bog buck moths, including, but not limited to,
actions that may kill or harm individual animals or result in the
adverse modification, degradation, or destruction of habitat occupied
by the bog buck moth. Additionally, the bog buck moth is a Species of
Greatest Conservation Need in the NYSDEC's Comprehensive Wildlife
Conservation Strategy (NYSDEC 2005, appendix 5, pp. 14-17; NYSDEC 2015,
not numbered). NYSDEC has a draft recovery plan for the bog buck moth
(Bonanno and White 2011, entire) that has not been finalized.
All known populations are in conservation ownership (i.e., State or
private lands managed for conservation) and are protected from direct
negative impacts to their habitat (e.g., wetland fill associated with
roads or development). Habitat management has been conducted at a few
of these sites, but invasive plants and/or vegetation succession have
reduced the amount of available habitat at most sites and remain an
ongoing threat. The State of New York provides protection for wetlands
greater than 12.4 acres in size or of unusual local importance (NYSDEC
1997, p. 5). Regulated activities within the wetland or adjacent buffer
require permits from the NYSDEC. In addition, in accordance with
section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.), the U.S.
Army Corps of Engineers has the authority to regulate discharge of
dredged or fill material into waters of the United States, including
wetlands of any size. In New York, placing fill into bogs and fens is
not authorized under the Nationwide Permit Program.
Canadian Populations
The bog buck moth was recommended for listing as endangered by
COSEWIC in 2009 (COSEWIC 2009, entire), listed as endangered under the
Ontario Endangered Species Act in 2010, and listed as endangered on
Schedule 1 of the Species at Risk Act (SARA) in 2012. These listings
provided the bog buck moth protection from
[[Page 15930]]
being killed, harmed, harassed, captured, or taken in Canada.
The Ontario Ministry of Natural Resources and Forestry (Ministry)
published a recovery strategy for the bog buck moth on December 7, 2011
(Gradish and Tonge 2011, entire). Major actions identified in the plan
include improving monitoring standards for the bog buck moth, assessing
the risk posed by invasive species, and evaluating the hydrology of the
species' habitat. In 2017, the Ministry published a 5-year review of
progress towards the protection and recovery of the bog buck moth
(Ministry 2017, pp. 11-17). Initial progress has been made towards
assessing the risk posed to the bog buck moth by invasive species and,
where appropriate, implementing invasive species control within and
adjacent to occupied fen ecosystems.
Bog buck moth habitat has generally been afforded protection from
authorized damage or destruction in Canada since the species was listed
in Ontario in 2010. Bog buck moth habitat is further protected through
Ontario habitat regulation and Federal critical habitat protection.
Section 41(1)(c) of SARA requires that recovery strategies include an
identification of the species' ``critical habitat,'' to the extent
possible, as well as examples of activities that are likely to result
in its destruction (Environment Canada 2015, p. 9). Environment Canada
(2015, p. 10) adopted the description of the bog buck moth ``habitat''
under section 24.1.1.1 of Ontario Regulation 242/08 as ``critical
habitat'' in the Federal recovery strategy. The area defined under
Ontario's habitat regulation contains the biophysical attributes
required by the bog buck moth to carry out its life processes. To meet
specific requirements of SARA, the biophysical attributes of critical
habitat were further detailed in the Federal strategy (Environment
Canada 2015, p. 11). However, under SARA, specific requirements and
processes are set out regarding the finalization of protection of
critical habitat and whether the prohibition against destruction of
critical habitat is extended to any non-Federal land. Protection of
critical habitat under SARA was to be assessed following publication of
the final bog buck moth Federal recovery strategy (Environment Canada
2015, p. 10). There is no indication that this assessment has occurred
to date.
Current Condition
Similar to other Hemileuca species, bog buck moth populations (and
subpopulations) experience boom and bust cycles. Table 1 and figure 1,
below, summarize male peak flight counts at four U.S. subpopulations.
Three of the subpopulations have crashed and not recovered.
Table 1--Bog Buck Moth Fall Flight Information for the Oswego Inland Site and Three Lakeside Subpopulations, NY,
22-Year Record
[Data are site mean of 5-minute counts on the peak date. Zero means a search was made, no moths seen. Empty
cells indicate no data were collected at that site that year. Cells with counts higher than 100 are highlighted.
Data from Bonanno (2018, p. 4; 2019, p. 4) and Bonanno and Rosenbaum (2020, p. 2).]
----------------------------------------------------------------------------------------------------------------
Lakeside
Date Oswego inland -----------------------------------------------
site Lakeside 5 Lakeside 3 Lakeside 2
----------------------------------------------------------------------------------------------------------------
1998............................................ 171.3 .............. .............. 242.4
1999............................................ 49.6 .............. 10.6 109.4
2000............................................ 7.1 .............. 14.8 26.8
2001............................................ 16.4 .............. 18.6 4.8
2002............................................ 37.1 .............. 3.3 2.2
2003............................................ 46 .............. 22.5 6.3
2004............................................ 153.2 64.6 21.2 20.2
2005............................................ 87.3 51.1 .............. 14.4
2006............................................ 81.9 126.8 .............. 26.3
2007............................................ 93.7 65.9 212.0 50.0
2008............................................ 63 23.0 5.8 14.2
2009............................................ 70 48.7 0.7 14.3
2010............................................ .............. .............. .............. 10.0
2011............................................ 20.2 141.1 0.1 9.4
2012............................................ 18.9 46.0 3.0 1.0
2013............................................ 21.4 1.0 0.3 0
2014............................................ 126.5 3.8 0 0
2015............................................ 98.7 6.7 .............. 0
2016............................................ 5.0 27.7 0 0
2017............................................ 0.7 53.3 .............. ..............
2018............................................ 0 30.7 \1\ >0 0
2019............................................ 0 44.4 0 ..............
2020............................................ 0 .............. .............. ..............
----------------------------------------------------------------------------------------------------------------
\1\ (2 total moths).
[[Page 15931]]
[GRAPHIC] [TIFF OMITTED] TR15MR23.002
In Canada, the status of many of the populations is unknown due to
a lack of surveys. Of the four sites found in Canada, only two were
recently surveyed. The subpopulation at Richmond Fen South was visited
in 2019, when an estimated minimum of 1,500 early instar larvae were
found in a small portion of core habitat. Another site visit to the
same location in early July 2020 documented the presence of hundreds of
mid-instar larvae. At White Lake North, more than 100 adult moths were
observed in mid-September 2020. Prior to 2020, larval surveys were
conducted, and larvae were last observed in 2016, with no surveys in
2017, and larvae were absent in 2018 and 2019. The status of the two
other subpopulations in Canada (Richmond Fen North and White Lake
South) is unknown because no surveys have been conducted at those
sites.
It is unlikely that there are other bog buck moth populations
besides the ones mentioned above. Fairly extensive but unsuccessful
searches for bog buck moths have been conducted at other potentially
suitable wetland habitat in Ontario, and no new sites have been found
(COSEWIC 2009, pp. 9-10). COSEWIC (2009, p. 10) found that, given the
degree of interest by naturalists in these natural areas and the
diurnal habits of this large distinctive species, the probability of
undiscovered Ontario buck moth populations is low.
The circumstances are similar in New York. Cryan and Dirig (2020,
pp. 4-5) described several years of exploring the bed of former glacial
Lake Iroquois and its tributaries and outlets, and while they found
some fens with bog buckbean, they found no additional sites with bog
buck moth. In addition, researchers had visited New York fens for many
years and likely would have observed the highly conspicuous larvae on
the bog buckbean or flying adult males had they been present. Bonanno
and White (2011, p. 10) describe multiple visitations to possible
habitat by NYNHP and researchers familiar with the bog buck moth
without locating any individuals.
We evaluated the bog buck moth's current condition by assessing
whether there were multiple, sufficiently resilient populations spread
across its geographical extent to maintain its ecological and genetic
diversity and withstand catastrophic events (see table 2, below).
Information to date suggests that bog buck moths are genetically
structured across their range, and we determined that the breadth of
adaptive diversity can be captured by two representative units,
Canadian and United States.
[[Page 15932]]
Table 2--Ecological Requirements for Species-Level Viability
------------------------------------------------------------------------
3Rs Requisites Metric
------------------------------------------------------------------------
Resiliency (able to withstand Healthy Populations with:
stochastic events). populations. Both sexes
present.
Sufficient
survival of all life
stages.
Sufficient
number of bog buck
moths to survive
bust portion of boom
and bust cycles.
Stable to
increasing trend
over last 10 years
(10 generations).
Multiple
occupied suitable
habitat patches
within
metapopulation.
Sufficient
habitat size.
Sufficient
habitat quality.
Intact
hydrology and
ecological
processes.
Representation (to maintain Maintain adaptive Healthy populations
evolutionary capacity). diversity. distributed across
areas of unique
adaptive diversity
(e.g., across
latitudinal
gradients) with
sufficient
connectivity for
periodic genetic
exchange.
Redundancy (to withstand Sufficient Sufficient
catastrophic events). distribution of distribution to
healthy guard against
populations. catastrophic events
significantly
compromising the
species' adaptive
diversity.
Sufficient number Adequate number of
of healthy healthy populations
populations. to buffer against
catastrophic losses
of adaptive
diversity.
------------------------------------------------------------------------
We lacked specific demographic rates for most locations for most
years; therefore, we used alternative metrics for assessing population
resiliency (number of bog buck moth adult males observed, presence of
bog buck moth at multiple subpopulations) and the condition of the
supporting habitat (habitat quality) (see table 3, below).
Table 3--Metrics for Scoring Bog Buck Moth Population Condition
----------------------------------------------------------------------------------------------------------------
Condition Sufficient number Connectivity Suitable habitat
----------------------------------------------------------------------------------------------------------------
Unknown.............................. Unknown................ Unknown................ Unknown.
Extirpated........................... Not applicable......... Not applicable......... Habitat is completely
unsuitable due to
alteration or loss.
Presumed Extirpated.................. No moths or any other Not applicable......... Habitat present and can
life stage were be suitable or
observed during unsuitable given
multiple subsequent ``sufficient N''
surveys. results.
Poor................................. Negative trend over No subpopulations or if Insufficient suitable
last 10 years. subpopulations are habitat for any of the
present each life stages:
subpopulation did not Insufficient
have at least one >0 bog buckbean (<4%
count within the last areal coverage).
5 years. Relatively
limited oviposition
sites.
Lack of
suitable pupation
sites.
Good................................. Neutral or positive Multiple subpopulations Sufficient suitable
trend over last 10 and >0 count for each habitat for all life
years. subpopulation within stages:
the last 5 years. Sufficient bog
buckbean (>4% areal
coverage).
Relatively
abundant oviposition
sites.
Suitable
pupation sites.
----------------------------------------------------------------------------------------------------------------
As discussed above, we are aware of five bog buck moth populations,
two in Canada and three in New York. We are unaware of any changes to
the distribution in Canada; however, we have information from only two
of the four subpopulations. In New York, the Jefferson County site was
converted to a marsh, having been impounded decades ago by beavers,
then maintained by management for park flooding control, septic
management, and black tern habitat (Bonanno 2020, pers. comm.). Of the
Lakeside subpopulations, only the Lakeside 5 site remains extant.
Lastly, the Oswego Inland Site population was recently presumed to be
extirpated.
Using our ranking methods mentioned above, we find that for all the
bog buck moth populations in the U.S. Representative Unit, one
population has been extirpated since the 1970s, one is now presumed
extirpated, and one is in poor condition (see table 4, below). The
Lakeside population has experienced multiple sources of habitat loss
and degradation, and remaining bog buck moths have faced high flood
years. While these may or may not be the true cause of declines and
site-level extirpations, they likely contributed to them. The cause of
decline and the bog buck moth's inability to rebound at the Oswego
Inland Site is unclear, as flooding has not been a concern at this site
and seemingly suitable habitat remains. Similar declines at sites with
apparently suitable habitat have been documented for another endangered
fen species, the Poweshiek skipperling (Oarisma poweshiek), suggesting
that other factors (e.g., contaminants, climate change, disease, and
low levels of genetic diversity) may be driving the current
distribution and losses (Pogue et al. 2019, pp. 383-386).
In the Canadian Representative Unit, both populations are in
unknown/likely good condition. This assessment has a high degree of
uncertainty given that it is based on current knowledge from half of
the associated Canadian Representative Unit subpopulations
[[Page 15933]]
(one out of the two subpopulations for each population). Most recently,
Richmond Fen South had hundreds of mid-instar larvae in early July
2020, with ample suitable habitat. Richmond Fen North has not had any
recent moth or larval surveys, but observations during a site visit in
2015 suggested that the habitat remains in good condition. At White
Lake North, more than 100 bog buck moth adults were observed in
September 2020. Prior to that, surveys were based on larvae, with
larvae last observed in 2016 and none seen in 2018 or 2019. There is no
information on White Lake South. Although both populations have been
described as unknown/likely good, invasive species such as cattails,
common reed, and glossy buckthorn have been identified in the habitat
and are likely to have a negative effect and reduce the resiliency of
these populations (COSEWIC 2009, p. 18; Gradish and Tonge 2011, pp. 6-
7; Environment Canada 2015, p. 7).
Overall, three subpopulations (White Lake North, Richmond Fen
South, and Lakeside 5) associated with three separate populations are
known to have remaining bog buck moths. While some genetic diversity
remains through the current existence of at least one subpopulation
within each of the representative units, there is no redundancy of
healthy populations in the U.S. Representative Unit, and there is
uncertainty about the status of the Canadian Representative Unit.
Table 4--Summary of Bog Buck Moth's Current Condition
----------------------------------------------------------------------------------------------------------------
3Rs Requisites Metric Current condition
----------------------------------------------------------------------------------------------------------------
Resiliency (able to withstand Healthy populations... Populations with: Poor.
stochastic events). Both sexes Of the five
present.. historically known
Sufficient populations:
survival of all life one is
stages.. extirpated;
Sufficient number one is
of bog buck moths to presumed extirpated;
survive bust portion of one is in
boom and bust cycles.. poor condition; and
Stable to two are in
increasing trend over last unknown/likely good
10 years (10 generations).. condition.
Multiple occupied
suitable habitat patches
within metapopulation..
Sufficient habitat
size..
Sufficient habitat
quality..
Intact hydrology
and ecological processes..
Representation (able to maintain Maintain adaptive Healthy populations Poor.
evolutionary capacity). diversity. distributed across areas There are two
of unique adaptive potentially healthy
diversity (e.g., across populations in the
latitudinal gradients) Canadian
with sufficient Representative Unit
connectivity for periodic and none in the U.S.
genetic exchange. Representative Unit.
Redundancy (able to withstand Sufficient Sufficient distribution to Poor.
catastrophic events). distribution of guard against catastrophic See above.
healthy populations. events significantly
compromising species
adaptive diversity.
Sufficient number of Adequate number of healthy Poor.
healthy populations. populations to buffer See above.
against catastrophic
losses of adaptive
diversity.
----------------------------------------------------------------------------------------------------------------
Future Condition
As part of the SSA, we developed two future condition scenarios to
capture the range of uncertainties regarding future threats and the
projected responses by the bog buck moth. Our scenarios assumed
increased winter and spring precipitation, increased annual
temperatures, and either continuation or increases in invasive plant
species and succession. Because we have determined that the current
condition of the bog buck moth is consistent with an endangered species
(see Determination of Bog Buck Moth's Status, below), we are not
presenting the results of the future scenarios in this rule; however,
under both scenarios, the future condition is projected to worsen.
Please refer to the SSA report (Service 2021, pp. 67-83) for the full
analysis of future scenarios.
Summary of Comments and Recommendations
In the proposed rule published on October 14, 2021 (86 FR 57104),
we requested that all interested parties submit written comments on the
proposal by December 13, 2021. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. A
newspaper notice inviting general public comment was published for
multiple days in the Syracuse Post Standard (New York). We did not
receive any requests for a public hearing. All substantive information
regarding the listing of bog buck moth that was provided during peer
reviews and the comment period has been incorporated directly into this
final rule, as appropriate.
Peer Reviewer Comments
As discussed under Peer Review, above, we received responses from 4
peer reviewers and 11 partners, including Federal and State partners,
Canadian partners, and scientists with expertise in fen ecology and bog
buck moth biology. We reviewed all comments we received from the peer
reviewers and partners for substantive issues and new information
regarding the information contained in the SSA report. The peer
reviewers and partners generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the final SSA report.
Public Comments
Comment: Multiple commenters did not agree with our determination
that a designation of critical habitat for the bog buck moth was not
prudent, providing various reasons why they believed that we should
designate critical habitat for the species. These reasons included the
utility of critical habitat in addressing the threats to the species of
limited range and local water regulation.
[[Page 15934]]
Commenters further suggested that critical habitat could be designated
with limited detail and at a sufficiently high scale to minimize harm
from precise identification of location.
Response: Based on these comments, we elaborate on our reasoning to
better explain the decision for a not-prudent determination for the
designation of critical habitat for the bog buck moth in this final
rule. The bog buck moth currently occurs in Canada and New York State.
However, critical habitat can only be designated in the United States
(50 CFR 424.12(g)). Thus, our critical habitat assessment only
considered the two New York populations. Since the publication of the
proposed rule (86 FR 57104; October 14, 2021), the collection threats
affecting the co-occurring species have not abated. The publication of
detailed maps of the bog buck moth occurrences would facilitate
unauthorized collection and trade of the co-occurring species. Because
the bog buck moth is found in wetlands, if we designated critical
habitat, we would not be able to avoid identifying the individual fens
where the species occurs. In other words, it is not possible for us to
meet the Act's requirements for designating critical habitat at a scale
that would not reveal the location of occupied wetlands. Moreover, any
increase in human activities, including collection, within the habitat
for the two remaining New York populations can be expected to cause
harm to the bog buck moth from disturbance and trampling of individuals
(eggs, larvae, pupae) and to vegetation necessary as a host plant and
for sheltering of all life stages.
Designation of critical habitat is just one of many tools available
for bog buck moth conservation. Other tools include the listing
decision itself, habitat management and restoration by the Service and
our partners (e.g., Federal agencies, nongovernmental organizations,
and the NYSDEC), research, and possibly captive management. As of the
effective date of this rule (see DATES, above), any Federal actions
that impact any of the subpopulations of the occupied Lakeside
population will undergo section 7 consultation regardless of critical
habitat designation. The Lakeside population is made up of sites
currently under State or nongovernmental organization protection and
management. The Oswego Inland Site population (presumed extirpated) is
protected by a nongovernmental organization, and we do not anticipate
frequent Federal actions in adjacent uplands that would result in a
nexus for consultation, even if the site were to be designated as
critical habitat. Moreover, we would anticipate that any activities
with Federal involvement (e.g., restoring habitat for future possible
reintroduction of the bog buck moth) would benefit the site rather than
result in adverse effects to the habitat. Lastly, State and Federal
wetlands protections are in place for all of the sites, and no section
404 Clean Water Act permits are authorized in bogs and fens in New York
(refer to Conservation Measures, above, for further analysis).
Accordingly, our reasoning for a not-prudent finding in our proposed
rule continues to be applicable to this final rule.
One commenter mentioned the limited distribution and concentration
of bog buck moth habitat and the potential effects of water level
regulation on Lake Ontario on the species. While we recognize the
restricted range of the species, limited range alone is not sufficient
for designating critical habitat where we have determined that such
designation is not prudent on other grounds. We agree that flooding of
sites can impact bog buck moths. However, periodic flooding is
important to reset vegetation succession at these sites. Past
management of Lake Ontario has prevented these periodic flushing
events. In recent years, the major drivers of water level in these
sites include heavy precipitation events causing flooding or alteration
of fens resulting in drying and vegetation succession. See Change in
Water Levels, above, for more information. As discussed above, any
Federal actions that may affect the Lakeside population will be subject
to consultation under section 7 of the Act due to the presence of the
species.
Determination of Bog Buck Moth's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we have determined that the bog buck moth is at risk of
extinction now throughout its range due to a combination of factors.
Bog buck moth populations undergo boom and bust cycles and are highly
vulnerable to stochastic events or threats during the bust phase
(Factor E). All populations are isolated from one another and cannot
repopulate extirpated sites (Factor E). We find that past and ongoing
stressors, including habitat alteration due to water level management
on Lakeside sites, vegetative succession and invasive plant species
(Factor A), and death of individuals due to flooding (Factor E), have
caused and are highly likely to continue to cause a decline in the
species' viability through reduction of resilience, redundancy, and
representation to such a degree that the species is particularly
vulnerable to extinction presently and is highly likely to become more
vulnerable to extinction. We do not fully understand the cause of
declines at bog buck moth sites, and so it is likely that additional
factors are important, such as inherent factors (e.g., narrow habitat
niche) (Factor E), parasitoids (Factor E), predation (Factor C),
disease (Factor C), and pesticides (Factor E).
Of the three historical U.S. populations, two have been extirpated
or are presumed extirpated. The Jefferson County population was
extirpated due to habitat conversion in the 1970s. The reason for the
extirpation of the Oswego Inland Site population is unclear, as the
habitat still appears suitable. For the remaining U.S. population, the
Lakeside population, the overall condition is poor with four of the
five sites (Lakeside 1-4) presumed extirpated. Lakeside 5 is the last
site with a confirmed moth population as of 2019. However, even this
site is considered to be in poor condition with severe habitat
degradation.
The Canadian populations comprise two potentially healthy
populations. However, there is high uncertainty about their status.
Unlike the New York populations, no standardized transect counts are
available to assess long-term trends. In addition, we have information
[[Page 15935]]
on just two of the four subpopulations associated with these
populations. While there are bog buck moths known at two of these
subpopulations and suitable habitat remains, invasive plant species are
present at these sites and active management is not underway.
All of the extant bog buck moth populations are currently facing a
multitude of threats including water level changes, succession, and
invasive species. Additionally, other factors, including parasitoids,
predation, disease, and pesticides, as well as the species' limited
dispersal range and small numbers, likely play a role in its decline.
As studies in the New York population have shown, attempts at managing
and controlling the spread of invasive plants or woody plants from
succession in fens have proven to be extremely labor intensive and have
limited effect. We find that the magnitude and imminence of threats
facing the bog buck moth place the species in danger of extinction now,
and therefore we find that threatened status is not appropriate. Thus,
after assessing the best available information, we determine that the
bog buck moth is in danger of extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the bog buck moth is in danger of
extinction throughout all of its range, and accordingly did not
undertake an analysis of any significant portion of its range. Because
the bog buck moth warrants listing as endangered throughout all of its
range, our determination does not conflict with the decision in Center
for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020)
(Everson), which vacated the provision of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (Final Policy) (79 FR 37578, July 1, 2014)
providing that if the Services determine that a species is threatened
throughout all of its range, the Services will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the bog buck moth meets the Act's definition
of an endangered species. Therefore, we are listing the bog buck moth
as an endangered species in accordance with sections 3(6) and 4(a)(1)
of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline, and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/program/endangered-species), or from our New York
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their ranges may occur primarily or solely on
non-Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of New York will be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the bog buck moth. Section 8(a) of the
Act (16 U.S.C. 1537(a)) authorizes the provision of limited financial
assistance for the development and management of programs that the
Secretary of the Interior determines to be necessary or useful for the
conservation of endangered or threatened species in foreign countries.
Sections 8(b) and 8(c) of the Act (16 U.S.C. 1537(b) and (c)) also
authorize the Secretary to encourage conservation programs for listed
species found outside the United States, and to provide assistance for
such programs, in the form of personnel and the training of personnel.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Please let us know if you are interested in participating in
recovery efforts for the bog buck moth. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery
[[Page 15936]]
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with us.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
Federal agency actions that may require conference or consultation
or both (as described above) include management and any other
landscape-altering activities on lands near bog buck moth
subpopulations.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of the listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive: Normal recreational
hunting, fishing, or boating activities that are carried out in
accordance with all existing hunting, fishing, and boating regulations
and that follow reasonable practices and standards.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the bog buck moth, including
import or export across State lines and international boundaries,
except for properly documented antique specimens of the taxon at least
100 years old, as defined by section 10(h)(1) of the Act;
(2) Unauthorized modification, removal, or destruction of the
wetland vegetation, soils, or hydrology in which the bog buck moth is
known to occur;
(3) Unauthorized discharge of chemicals or fill material into any
wetlands in which the bog buck moth is known to occur; and
(4) Unauthorized release of biological control agents that attack
any life stage of the bog buck moth, including parasitoids, herbicides,
pesticides, or other chemicals, in habitats in which the bog buck moth
is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the New York
Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
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
[cir] Essential to the conservation of the species, and
[cir] Which may require special management considerations or
protection; and
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 Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, and designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to
[[Page 15937]]
conclude that the proposed activity would likely 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.
Section 4 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.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. On August 27, 2019, we revised our regulations at 50 CFR part
424 to further clarify when designation of critical habitat may not be
prudent (84 FR 45020; August 27, 2019) (the 2019 Revisions). The 2019
Revisions (50 CFR 424.12(a)(1)) state that the Secretary may, but is
not required to, determine that a designation would not be prudent in
the following circumstances:
The species is threatened by taking or other human
activity and identification of critical habitat can be expected to
increase the degree of such threat to the species;
The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
Areas within the jurisdiction of the United States provide
no more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
No areas meet the definition of critical habitat; or
The Secretary otherwise determines that designation of
critical habitat would not be prudent based on the best scientific data
available.
In the proposed listing rule (86 FR 57104; October 14, 2021), we
preliminarily determined that designation of critical habitat for bog
buck moth would not be prudent (see 86 FR 57121). We invited public
comment and requested information on the threats of taking or other
human activity on bog buck moth and its habitat, and on the extent to
which critical habitat designation might increase those threats. During
the comment period, we received comments that identified the need to
provide additional rationale for the not-prudent determination. After
review and consideration of the comments we received, we restate our
determination that the designation of critical habitat for the bog buck
moth is not prudent, in accordance with 50 CFR 424.12(a)(1). Our
rationale for this determination is that within the New York
populations, the bog buck moth co-occurs with another federally listed
species that was listed, in part, due to collection pressure, which has
not abated and has been documented recently in New York. Additionally,
at the time the other species was listed, collection pressure resulted
in a determination that designating critical habitat was not prudent.
Designating critical habitat for the bog buck moth would undermine the
not-prudent determination that was previously made for the other co-
occurring listed species. Designation of critical habitat requires the
publication of a narrative description of specific critical habitat
areas and maps in the Federal Register and in the Code of Federal
Regulations. Any critical habitat maps developed for the species would
have to be sufficiently detailed to show the specific habitat where the
bog buck moth is found and the vicinity in which the fen is found. This
degree of specificity would be such that someone specifically looking
for the area would be able to find the particular fen using widely
available mapping software and imagery. We find that the publication of
maps and descriptions outlining the locations of bog buck moth would
provide heretofore unavailable precise location information for the co-
occurring species and likely lead to additional unauthorized collection
and, therefore, an increase in the illegal trade of the co-occurring
species. Moreover, we find that providing information that increases
the collection risk of the co-occurring species would result in
degradation of habitat for both the co-occurring species and the bog
buck moth. There have been past cases of illegal collection in New York
State of the co-occurring species that contributed to habitat
degradation (e.g., trampling of vegetation). If pursuit and collection
of the co-occurring species occurs in bog buck moth habitat, that
activity can be expected to cause harm to the bog buck moth from
disturbance and trampling of individuals (eggs, larvae, pupae) and to
vegetation necessary as a host plant and for sheltering of all life
stages.
Accordingly, we have determined that the designation of critical
habitat for the bog buck moth would provide a heretofore unavailable
link to the precise locations of a co-occurring listed species and
would result in increased collection risk to the co-occurring species;
therefore, the designation of critical habitat for the bog buck moth
would reasonably be expected to increase the degree of threats from
human activity to the co-occurring species and to the bog buck moth and
its habitat. Therefore, we find that the designation of critical
habitat is not prudent for the bog buck moth, in accordance with 50 CFR
424.12(a)(1)(i) and (v).
Required Determinations
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge 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.
[[Page 15938]]
There are no known Tribal lands with bog buck moth populations.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the New York Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the
Service's Species Assessment Team and the New York Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--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. Amend Sec. 17.11, in paragraph (h), by adding an entry for ``Moth,
bog buck'' to the List of Endangered and Threatened Wildlife in
alphabetical order under Insects to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Insects
* * * * * * *
Moth, bog buck.................. Hemileuca maia Wherever found.... E 88 FR [Insert Federal
menyanthevora Register page where
(=H. iroquois). the document begins],
March 15, 2023.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-05012 Filed 3-14-23; 8:45 am]
BILLING CODE 4333-15-P