[Federal Register: October 1, 2002 (Volume 67, Number 190)]
[Rules and Regulations]
[Page 61531-61537]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc02-20]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AF30
Endangered and Threatened Wildlife and Plants; Amended Special
Regulations for the Preble's Meadow Jumping Mouse
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: On May 22, 2001, the U.S. Fish and Wildlife Service adopted
special regulations governing take of the threatened Preble's meadow
jumping mouse (Zapus hudsonius preblei), which provide exemption from
take provisions under section 9 of the Endangered Species Act for
certain activities related to rodent control, ongoing agricultural
activities, landscape maintenance, and perfected water rights. On
August 30, 2001, the Service published a proposal to amend those
regulations to provide additional exemptions. This action amends the
regulations to exempt certain noxious weed control and ditch
maintenance activities from the section 9 take prohibitions.
DATES: This amendment will be effective from October 1, 2002 through
May 22, 2004.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service's Colorado Field Office, Ecological Services,
Suite 361, Lakewood, Colorado 80215.
FOR FURTHER INFORMATION CONTACT: In Colorado, contact LeRoy W. Carlson
at the above address or telephone (303) 275-2370. In Wyoming, contact
Mike Long, Field Supervisor, Cheyenne, Wyoming, at telephone (307) 772-
2374.
SUPPLEMENTARY INFORMATION:
Background
The final rule listing the Preble's meadow jumping mouse (Zapus
hudsonius preblei) (Preble's) as a threatened species under the
Endangered Species Act (Act) of 1973, as amended, (16 U.S.C. 1531 et
seq.) was published in the Federal Register on May 13, 1998 (63 FR
26517). Section 9 of the Act prohibits take of endangered wildlife. The
Act defines take to mean harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect or to attempt to engage in any such
conduct. However, the Act also provides for the authorization of take
and exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth
in section 10 of the Act. For federally funded or permitted activities,
take of listed species may be allowed through the consultation process
of section 7 of the Act. We, the Fish and Wildlife Service, have issued
regulations (50 CFR 17.31) that generally apply to threatened wildlife
the prohibitions that section 9 of the Act establishes with respect to
endangered wildlife. Our regulations for threatened wildlife also
provide that a ``special rule'' under section 4(d) of the Act can be
tailored for a particular threatened species. In that case, the general
regulations for some section 9 prohibitions do not apply to that
species, and the special rule contains the prohibitions, and
exemptions, necessary and advisable to conserve that species.
On December 3, 1998, we proposed a section 4(d) rule (63 FR 66777)
to define conditions under which certain activities that could result
in incidental take of Preble's would be exempt from the section 9 take
prohibitions. We held two public meetings, attended by 129 people. We
also received 614 comment letters. On May 22, 2001, we published a
final rule (66 FR 28125) adopting certain portions of this proposal.
Some comments received on the proposed rule suggested additional
exemptions to promote conservation of the Preble's. On August 30, 2001,
we published a proposed rule (66 FR 45829 ) to amend the section 4(d)
rule to add special provisions providing exemptions from section 9
prohibitions for certain noxious weed control and ditch maintenance
activities. We are now adopting the amendment providing these
additional exemptions.
Summary of Comments and Recommendations
In the August 30, 2001, proposed amendment and associated
notifications, we asked all interested parties to submit comments on
the proposed amendment. We received nine comment letters in response to
the proposed amendment to the 4(d) rule. The State of Wyoming sent
comments from two of their State agencies under one cover letter. One
Colorado and one Wyoming county submitted comments, as did a Colorado
municipality. Two letters came from water and irrigation-related
organizations or companies, one letter came from a real estate interest
in the development community, and two letters came from ranching/
agriculture-related groups.
Most of the comment letters acknowledged the need for the proposed
exemptions. Many stated that the exemptions are necessary to allow
citizens and companies to comply with State laws in both Colorado and
Wyoming, and to improve landowner and ditch owner cooperation in
conservation of the mouse and its habitat. The comments also generally
recognized that the exemptions are necessary for the long-term
maintenance of the ditches and the adjacent mouse habitat that is
dependent upon those ditches.
Several of the comment letters expressed general concerns or
questions about the validity of the Preble's listing and its scientific
foundation, questions about uncertainty in distinguishing Preble's from
similar species and the need for genetic testing, and requests that the
listing be withdrawn or that the Service delist the Preble's. These
issues are not germane to the proposed amendment and, therefore, are
not discussed here.
Written comments received during the comment period that are
specific to the proposed amendment are addressed in the following
summary. Comments of a similar nature are grouped under a number of
general issues.
Issues and Discussion
Issue 1--Two letters expressed confusion regarding the timeframe
that the proposed amendment would be in place, believing that it
extended or continued beyond the 36-month timeframe of the existing
4(d) rule.
Response--The amendment should run concurrently with the existing
4(d) rule that became effective on May 22, 2001 (66 FR 45829).
Therefore, this rule should expire on May 22, 2004, at the same time as
the existing 4(d) rule.
Issue 2--One commentor felt that the definition of noxious weeds is
unclear and seems to apply only to plants designated on the State lists
of noxious weeds as defined by Colorado and Wyoming. This letter
suggests that the term ``noxious'' should be replaced with the term
``undesirable'' wherever it occurs in the rule.
Response--State statutes in both Colorado and Wyoming require
noxious
[[Page 61532]]
weeds to be controlled. The term ``noxious'' is legally defined in
statutory requirements to mean plant species that are nonindigenous and
have negative impacts on crops, livestock, native plant communities, or
the management of natural or agricultural systems. The term
``undesirable'' is not a legally defined term relating to these
statutory requirements and is not consistent with our purpose to limit
the exemption to control actions for ``noxious'' weeds as defined by
the States of Colorado and Wyoming. This amendment exempting noxious
weed control should alleviate possible conflicts due to the Preble's
listing with statutory requirements regarding weed control activities
in the States of Colorado and Wyoming and is consistent with the
conservation of the Preble's.
Issue 3--The requirement for noxious weed control to be done
pursuant to a weed management plan implemented in ``consultation with
the weed control officer designated by the applicable county or
municipal government'' will be administratively burdensome. The
commentor suggests that ``consultation'' with local governments use a
``programmatic approach.''
Response--We discovered that our proposed rule language regarding
noxious weed control did not properly consider regulations within the
State of Wyoming. The Colorado Noxious Weed Act requires county and
municipal governments to develop a recommended integrated management
plan for noxious weed control and also requires that individual
landowners either implement the county or local government plan or
develop their own integrated management plans for their property. The
Wyoming Weed and Pest Control Act requires weed management plans to be
completed by the individual weed and pest districts and requires
individual landowners to control noxious weeds identified by the State
list and the local jurisdiction.
To more accurately reflect these State's regulations, we have
changed the language of Sec. 17.40 (l)(2)(vi) to read as follows:
(vi) Noxious weed control. Preble's meadow jumping mice may be
taken incidental to noxious weed control that is conducted in
accordance with:
(A) Federal Law, including Environmental Protection Agency label
restrictions;
(B) Applicable State laws for noxious weed control;
(C) Applicable county bulletins;
(D) Herbicide application guidelines as prescribed by herbicide
manufacturers; and
(E) Any future revisions to the authorities listed in paragraphs
(1)(2)(vi)(A)-(D) of this section that apply to the herbicides
proposed for use within the species' range.
The language in the proposed rule requiring a weed management plan
and consultation with the weed control officer has been deleted. We
intend to exempt those noxious weed control activities that are
conducted in accordance with State law. We are willing to work with
county and local municipality weed management personnel or other weed
management professionals familiar with local areas to develop a
suitable programmatic approach with reasonable and easy-to-follow
guidelines.
In the event of future revisions to EPA label restrictions and
herbicide application guidelines, users shall follow these revisions to
assure protection of the Preble's meadow jumping mouse.
Issue 4--One commentor suggested that the standards for ``best
available methods of integrated management'' be prescribed in the local
weed management plan, and the required contents of such a plan should
be understood and agreed to by the local governments prior to including
this provision in the final rule.
Response--As addressed in the Response to Issue 3, the proposed
language in section (vi) (B) referring to ``best available methods of
integrated management'' language has been deleted from the rule. With
this rule language, local governments and municipalities retain control
over noxious weed management. We should exempt those noxious weed
control activities that are conducted in accordance with State law.
The Colorado Noxious Weed Act requires that Integrated Pest
Management techniques be used to the extent that they are the least
environmentally damaging, practical, and economically reasonable means
of control. Integrated Pest Management is defined as the planning and
implementation of a coordinated management program using a variety of
mechanical, biological, and chemical methods to control noxious weeds.
Article 3 of the Wyoming Weed and Pest Control Act calls for a
``Special Management Program,'' which strongly emphasizes the use of
integrated management and provides for financial incentives when
individuals sign up under this program. In addition, the Wyoming
Department of Agriculture, Wyoming Weed and Pest Council, and the
University of Wyoming conduct two training sessions annually that
emphasize integrated weed management techniques and the latest
information in environmentally friendly methods of control.
Issue 5--Comments included concerns regarding the amount of area in
which noxious weeds can be controlled and what limitations the Service
deems ``appropriate.'' One commentor suggested that no limitations
should be considered because that would contradict State laws and
Federal policy and that incomplete control would not be effective.
Response--The rule includes no limitations concerning the ``amount
of area'' in which noxious weeds can be controlled. The only area
limitations in the rule relate to ditch maintenance activities. The
language in the amendment exempts noxious weed control activities that
are conducted pursuant to State law and in accordance with EPA
herbicide labeling. We encourage efforts to reduce the adverse effects
of weed control on native plant communities and limit unnecessary
eradication of entire plant communities and suggest that methods to
reduce impacts to nontarget species should be employed whenever
possible, such as the use of selective herbicides that target broad-
leaved plants and do not damage native grasses.
Issue 6--One comment letter requested unrestricted ditch
maintenance be allowed when the ditch is located outside ``naturally
occurring potential Preble's habitat,'' which the commentor defined as
``the 100-year flood plains associated with rivers and creeks, between
7,600 feet and 4,500 feet in elevation.''
Response--This amendment provides certain exemptions from take as
defined by the Act. If a ditch does not have habitat and/or mice, then
no exemption is needed.
Trapping data show that many ditches have suitable habitat for
Preble's and, in several areas, that Preble's exist on ditches that
occur outside the 100-year floodplain. We intend to limit exemption of
ditch maintenance to those activities that have minimal take of
Preble's and are consistent with the protection and enhancement of
Preble's habitat. As stated in the May 22, 2001, 4(d) rule, we believe
it is imprudent to provide unrestricted exemption from take along
ditches because in some areas: (a) Many ditches are suspected or known
to be occupied by Preble's; (b) the stability of the local Preble's
population is uncertain; (c) the degree of importance of ditch habitat
to Preble's populations is not completely known; and, (d) some occupied
ditches may serve as important population refugia and travel corridors
connecting populations.
Under appropriate circumstances, permits can be obtained to carry
out ditch maintenance activities even when
[[Page 61533]]
more than minimal take is likely to occur. These activities may be
addressed through future Habitat Conservation Plans or section 7
consultations.
Issue 7--One comment letter suggested that exemption will not be
sufficient and ditches will be unable to convey water. This letter
requested that the exemption be changed to an ``entire range-wide
exemption.''
Response--As discussed above, we do not believe it would be prudent
to grant a range-wide or unrestricted exemption for ditch maintenance
activities. It is our intent to limit exemption of ditch maintenance to
those activities that have minimal take of Preble's and are consistent
with the protection and enhancement of Preble's habitat.
Issue 8--How does the exemption apply to ditch maintenance
activities that are subject to other Federal approvals?
Response--This exemption does not affect other Federal approvals
required for ditch maintenance. Under section 7 of the Act, a Federal
agency that undertakes, permits, or funds activities that are likely to
adversely affect a listed species, whether or not take is involved,
shall formally consult with the Service regarding the proposed action.
Exemption from take prohibitions in section 9 of the Act does not alter
responsibility of Federal agencies under section 7. This said, the
number of section 7 consultations is expected to be low based on past
numbers and, because of exempted actions, the amended rule should
further expedite the section 7 process because subsequent consultations
will consist of verifying whether the effects of the proposed action
are consistent with the effects analysis conducted in establishing this
regulation and documenting the determination. For actions that are
consistent with this regulation, consultation will be streamlined by
linking to the biological opinion prepared in conjunction with this
rulemaking. For any actions not consistent with this regulation,
preparation of a separate biological opinion will be necessary.
Issue 9--Does the exemption apply to both sides of the ditch or
just one?
Response--The exemption applies to both sides of the ditch. Ditch
maintenance activities under the exemption should allow for the loss of
\1/4\-mile of riparian shrub habitat on both banks of a ditch within
any 1 linear mile of ditch within any calendar year.
However, if only one bank of a ditch is to be maintained, the \1/
4\-mile loss limit still applies.
Issue 10--The final rule should consider both physical and legal
access under the requirement to ``avoid shrubs if possible.''
Response--The amendment states that impacts to shrub vegetation
shall be avoided ``to the maximum extent practicable.'' The intention
of this statement is to refer to both physically practicable and
legally practicable, i.e., through legal access to the ditch.
Issue 11--The \1/4\-mile limitation on ditch maintenance activities
will result in changes to normal procedures and increased maintenance
costs. Additionally, one letter expressed concern that the two
additional exemptions would not benefit landowners and the economy. The
commentor argued that any benefits to the landowner or economy would
only be because the owners would not have to consult on every ditch-
cleaning project. This commentor also stated that limits on maintenance
activities of \1/4\-mile per mile of ditch are inconvenient for owners
because it would take 4 years to be able to clear the entire ditch.
Response--This rule does not place any additional restrictions on
land use activities and does not place any additional prohibitions on
take of Preble's. Rather, this rule removes some take prohibitions that
might otherwise restrict certain activities. Currently, on ditches that
are occupied by Preble's, take is prohibited by section 9 of the Act
without the appropriate permits. This take prohibition is removed by
this amendment within the limitations given in the amendment.
Therefore, this exemption is expected to decrease any current financial
burden caused by the existing prohibitions. Normal ditch maintenance
activities should be allowed without the time, money, and effort
required to obtain incidental take permits, while still allowing for
the conservation of the species. Under certain circumstances when more
than minimal take is likely to occur, permits can be obtained through
Habitat Conservation Plans or section 7 consultations to carry out
additional maintenance activities not covered by the rule or
amendments.
Issue 12--The November to April timeframe for ditch maintenance
activities is difficult in Wyoming where it may snow from September
through May.
Response--This seasonal limitation for ditch maintenance activities
is designed to occur while the mouse is in hibernation, in order to
reduce adverse impacts and be consistent with the conservation of the
Preble's. However, as stated in the amended rule in ``Timing of Work'',
under ``Best Management Practices'', this restriction is to be observed
to the ``maximum extent practicable.'' Otherwise, if this restriction
is impracticable, exempted maintenance activities shall be conducted
during daylight hours and only carried out during the Preble's active
season, May through October.
Issue 13--The proposed rule has too many ``subjective'' standards
and does not provide ``adequate notice'' or understandable definitions
regarding which activities are covered and which are not (e.g.,
``normal and customary,'' ``maximum extent practicable,''
``functionally intact and viable'').
Response--The goal of this amendment is to allow agriculture and
water use to continue while being consistent with conservation of the
species. We did not want to define the exemptions too narrowly because
there is a wide variation of how these activities might be applied on
the ground. The Service recognizes the need to maintain some amount of
flexibility in interpretation.
Issue 14--One comment letter stated that the scale of agricultural
operations in Wyoming makes the rule ``unworkable.'' The commentor
believes that these exemptions may be reasonable for smaller, more
intensively managed plots in Colorado, but will only result in
``frustrations and resentment'' in Wyoming. The commentor states that
we are placing an unfair and disproportionate burden on agriculture in
Wyoming when the real threats lie within the Front Range of Colorado.
Response--This rule does not place any additional restrictions on
land use or any additional prohibitions on take. Current prohibitions
on take through section 9 of the Act require a Federal permit for
activities that are deemed to adversely affect the Preble's to the
point where take may occur. Our goal in exempting noxious weed control
and ditch maintenance activities through this amendment is to remove
some of these take prohibitions and provide relief from current
regulatory restrictions on agricultural entities and water users,
regardless of location.
Issue 15--Some respondents believed that any exemption should
include maintenance of (1) water supply wells and water measurement
devices, (2) dams and other infrastructure, and (3) associated roads.
Response--In regard to (1) above, an exemption applying to
activities covered in Sec. 17.40 (l)(2)(v) of the final rule relates
to existing uses of water associated with the exercise of perfected
water rights, so maintenance of water supply wells and water
measurement
[[Page 61534]]
devices is covered. In regard to (2), this exemption covers only
maintenance and replacement of dams or infrastructure directly related
to, and used in, the operation of ditches. Any person contemplating dam
or infrastructure work not covered by either of these two exemptions
should consult with us when the maintenance procedure has the potential
to take Preble's. Finally, pertaining to (3), this amendment includes a
limited exemption for maintenance of roads used to access existing
ditches and related infrastructure provided that these activities do
not exceed the maximum allowable loss of riparian shrub habitat in any
calendar year.
Provisions of the Rule Amendment
Term
The special regulations contained in this amendment are applicable
until May 22, 2004, which is the end of the effective period for the
May 22, 2001, final 4(d) rule. We expect that, by that date,
comprehensive Habitat Conservation Plans for the Preble's should be
developed, and a recovery plan and other conservation efforts for the
Preble's should be completed.
Additional Exemptions
The activities discussed below, which may result in incidental take
of Preble's, are exempted from the section 9 take prohibitions.
``Incidental take'' refers to a taking that is otherwise prohibited, if
such taking is incidental to, and not the purpose of, the carrying out
of an otherwise lawful activity. Take not exempted by this amendment
and not otherwise authorized under the Act may be referred to the
appropriate authorities for civil enforcement or criminal prosecution.
a. Noxious weed control activities--Comments on the proposed 4(d)
rule of December 3, 1998, included a request to consider a rangewide
exemption for control of noxious weeds. The comments stressed that laws
in both Colorado and Wyoming require control of noxious weeds and that
such control is compatible with Preble's conservation. We are amending
the final 4(d) rule by including a rangewide exemption for noxious weed
control to conform to existing State laws and Federal regulations
regarding herbicide labeling. We believe that this exemption should
facilitate conservation of the Preble's, because noxious weeds are
displacing desirable natural vegetation on which the Preble's depends
for survival.
b. Ongoing ditch maintenance activities--In the December 3, 1998,
proposed 4(d) rule, we stated that we considered adopting an
unrestricted exemption for periodic maintenance of existing water
supply ditches, but chose not to do so because ditches support occupied
and potential Preble's habitat. We received a large number of comments
on this decision, many supporting an unrestricted exemption and arguing
that current maintenance practices have resulted in viable habitat for
the Preble's.
In response to these comments, we have elected to adopt a limited
exemption for customary ditch maintenance activities that are designed
to result in only minimal take of Preble's and are consistent with the
protection and enhancement of Preble's habitat. This exemption builds
upon the guidance provided in a January 31, 2001, ``To Whom It May
Concern Letter'' (Letter), which we originally issued on March 11,
1999, and reissued on February 1, 2000, and January 31, 2001, and which
was our initial response to these comments. While the Letter
specifically describes activities throughout the range of the Preble's
that we believe would not constitute take under section 9 of the Act,
this amendment to the 4(d) rule specifies certain activities that may
result in take and grants exemption from such take.
Our intent is to allow normal and customary maintenance activities
that should result only in temporary or limited disturbance of Preble's
habitat, and that should result in only minimal take of Preble's. We
intend for this exemption to apply only to manmade ditches and not to
alteration of habitat along naturally occurring streams and
watercourses.
We believe that a limited exemption is necessary and advisable, not
only to provide relief to those who shall maintain active ditches, but
to assure that currently existing Preble's habitat along ditches
remains functionally intact and viable. Should limited ditch
maintenance not be allowed to continue, we face the possibility that
these ditches would no longer be capable of conveying water and any
habitat dependent on this water would degrade over time and eventually
be lost. Maintenance of these ditches, as defined by this amended rule,
is necessary and advisable to maintain future conservation options for
the Preble's.
Therefore, we are exempting from the section 9 take prohibitions,
limited maintenance activities on water conveyance ditches throughout
the range of the Preble's. We believe that providing unrestricted
exemption from take for all ditch maintenance activities would be
imprudent because--(a) Some areas contain many ditches known or thought
to be occupied by Preble's, (b) the stability of many local Preble's
populations is uncertain, (c) the importance of ditch habitat to
Preble's populations in many areas is not completely known, and (d)
some occupied ditches may serve as important population refugia and
travel corridors connecting populations.
The following ditch maintenance activities are exempted from the
take prohibitions of section 9 of the Act, if the Best Management
Practices described below are followed:
1. Normal and customary ditch maintenance activities that result in
the annual loss of no more than \1/4\-mile of riparian shrub habitat
within any 1 linear mile of ditch within any calendar year. Riparian
shrub habitat is defined as vegetation dominated by plants that
generally have more than one woody stem that measures less than 2
inches in diameter and are typically less than 10 feet in height at
maturity, put on new growth each season, and have a bushy appearance.
Examples of shrubs include, but are not limited to, willow, snowberry,
wild plum, and alder.
2. Included in No. 1 above is the burning of ditches that results
in the annual loss of no more than \1/4\-mile of riparian shrub habitat
within any 1 linear mile of ditch within any calendar year and is
conducted out-of-season (see ``Best Management Practices'').
The following Best Management Practices shall be implemented in
order for the exemptions to apply:
1. Persons engaged in ditch maintenance activities shall, to the
maximum extent practicable, avoid impacts to shrub vegetation. For
example, if it is possible to access the ditch for maintenance or
repair activities from an area containing no shrubs, then damage to
adjacent shrub vegetation shall be avoided.
2. Persons engaged in placing or sidecasting (a) silt and debris
removed during ditch cleaning, (b) vegetation or mulch from mowing/
cutting, or (c) other material from ditch maintenance shall, to the
maximum extent practicable, avoid shrub habitat, and at no time disturb
more than \1/4\-mile of riparian shrub habitat within any 1 linear mile
of ditch within any calendar year.
3. To the maximum extent practicable, all ditch maintenance should
be carried out during the Preble's hibernation season, November through
April. Any maintenance activities carried out during the Preble's
active season, May through October, should be conducted during daylight
hours only.
[[Page 61535]]
This exemption includes maintenance of roads used to access ditches
and related infrastructure. These maintenance activities are limited to
the historic footprint associated with the infrastructure and access
roads. Examples of activities that are covered by the exemption include
the following activities, each limited to the destruction of 1/4-mile
of riparian shrub habitat within 1 linear mile of ditch within any
calendar year:
1. Clearing trash, debris, vegetation, and silt by either physical,
mechanical, chemical, or burning procedures--Examples include mowing or
cutting grasses and weeds, removal of silt and debris from the ditch
below the high-water line, and control of shrubs that could result in
ditch leakage.
2. Reconstruction, reinforcement, repair, or replacement of
existing infrastructure with components of substantially similar
materials and design--Examples include replacement of a damaged
headgate, grading or filling areas susceptible to ditch failure,
patchwork on a concrete ditch liner, or replacement of failed culvert
with a new culvert of the same design and material.
The following maintenance activities are not exempted from the take
provisions of section 9 of the Act:
1. Replacement of existing infrastructure with components of
substantially different materials and design--such as replacing an
existing gravel access road with a permanently paved road.
2. Construction of new infrastructure or the movement of existing
infrastructure to new locations--Examples include redrilling a well in
a new location, building a new access road, change in the location of a
diversion structure or installation of new diversion works where none
previously existed.
We proposed the two additional exemptions contained in this rule in
the August 30, 2001, proposed amendment in response to comments
received during the public review of the December 3, 1998, 4(d) rule
proposal. Water rights owners argued that the lack of an exemption for
periodic maintenance of existing ditches conflicted with the exemption
for existing uses of perfected water rights, because ditch maintenance
is an intrinsic part of exercising a perfected water right. In
addition, respondents noted that ditch maintenance is required by State
law in both Wyoming and Colorado. Failure to adequately maintain water
conveyance structures can result in fines, penalties, and liability for
damage to property caused by ditch failures. Finally, respondents noted
that prohibition of ditch maintenance could subsequently result in
curtailment or cessation of water diversions. This situation in turn
could result in forfeiture or abandonment of water rights under State
law.
By exempting limited periodic maintenance activities on existing
water supply ditches, this amendment facilitates consistency among the
rangewide exemptions. Where appropriate, permits can be issued under
section 10 of the Act to allow incidental take of Preble's for
activities not exempted through this rule.
Several respondents requested rangewide exemptions for maintenance
of other types of water-related infrastructure. The suggested
exemptions included: maintenance of (1) sewer lines; (2) wastewater
treatment and conveyance facilities; and (3) storm water collection,
conveyance, and treatment facilities.
We elected not to exempt these types of water-related
infrastructure. These systems typically incorporate extensive pipeline
systems that either cross Preble's habitat, or are installed along
stream corridors that provide Preble's habitat. Activities to maintain
this infrastructure can create large areas of surface disturbance
within or near Preble's habitat that could temporarily or permanently
prevent occupation of habitat or migration from one Preble's habitat
area to an adjacent Preble's habitat area.
Owners and operators of stormwater and wastewater systems should
contact us when their maintenance activities have the potential to
result in take of Preble's. We will work with wastewater and stormwater
system owners and operators to develop maintenance procedures that
minimize and mitigate take of Preble's when maintenance activities
occur within Preble's habitat.
Required Determinations
We prepared a Record of Compliance for the May 22, 2001, final rule
that exempted from the take prohibitions listed in section 9 of the
Act, the four activities of rodent control, ongoing agricultural
activities, landscaping, and ongoing use of existing water rights. A
Record of Compliance certifies that a rulemaking action complies with
the various statutory, Executive Order, and Department Manual
requirements applicable to rulemaking. Amendment of the May 22, 2001,
rule to include the two additional exemptions adopted herein, noxious
weed control and ongoing ditch maintenance, does not add any
significant elements to this Record of Compliance.
Without this amendment, noxious weed control or ongoing ditch
maintenance activities that may result in take of Preble's would not be
exempted from the take prohibitions. This rule allows certain affected
landowners to engage in certain noxious weed control and ditch
maintenance activities that may result in take of Preble's. Without
this rule, anyone engaging in those activities would need to seek an
authorization from us through an incidental take permit under section
10(a)(1)(b) or an incidental take statement under section 7(a)(2) of
the Act. This process takes time and can involve an economic cost. The
rule allows these landowners to avoid the costs associated with
abstaining from conducting these activities or with seeking an
incidental take permit from us. These economic benefits, while
important, do not rise to the level of ``significant'' under the
following required determinations.
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, the
Office of Management and Budget has determined that this rule is not a
significant regulatory action. This rule does not have an annual
economic impact of more than $100 million, or significantly affect any
economic sector, productivity, jobs, the environment, or other units of
government. This rule reduces the regulatory burden of the listing of
the Preble's meadow jumping mouse under the Act as a threatened species
by providing certain exemptions to the section 9 take prohibitions that
currently apply throughout the Preble's range. These exemptions reduce
the economic costs of the listing; therefore, the economic effect of
the rule benefits landowners and the economy. This effect does not rise
to the level of ``significant'' under Executive Order 12866.
This rule should not create inconsistencies with other Federal
agencies' actions. Other Federal agencies are mostly unaffected by this
rule.
This rule should not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Because this rule allows landowners to continue otherwise prohibited
activities without first obtaining individual authorization, the rule's
impacts on affected landowners is positive.
This rule should not raise novel legal or policy issues. We have
previously promulgated section 4(d) rules for other species, including
the special rule for the Preble's pertaining to rodent control,
[[Page 61536]]
ongoing agricultural activities, landscaping, and activities associated
with water rights. This rule simply adds exempted activities to that
rule.
Regulatory Flexibility Act
We have determined that this rule does not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial
regulatory flexibility analysis is not required, and a Small Entity
Compliance Guide is not required. This rule reduces the regulatory
burden of the listing of the Preble's as a threatened species. Without
the final special rule and this amendment, all of the take prohibitions
listed in section 9 of the Act would apply throughout the range of the
Preble's. This amended rule allows certain affected landowners to
engage in noxious weed control and ditch maintenance activities that
may result in take of Preble's. This rule enables these landowners to
avoid the costs associated with abstaining from conducting these
activities to avoid take of Preble's or seeking incidental take permits
from us.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule does not have
an annual effect on the economy of $100 million or more; does not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based enterprises to compete with foreign-based
enterprises. As described above, this rule reduces regulatory burdens
on affected entities, who are mostly agricultural producers.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.), this rule does not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. This rule does not have a significant or unique
effect on State, local, or tribal governments or the private sector. A
Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. By reducing the regulatory burden
placed on affected landowners resulting from the listing of the
Preble's as a threatened species, this rule reduces the likelihood of
potential takings. Affected landowners have more freedom to pursue
activities, i.e., noxious weed control and ditch maintenance, that may
result in take of Preble's without first obtaining individual
authorization.
Federalism
In accordance with Executive Order 13132, this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. Currently, the State of Colorado, the Service,
and various local governmental entities in Colorado and Wyoming are
working together to develop plans to conserve the Preble's and its
habitat. This collaborative approach is expected to result in the
development of Habitat Conservation Plans that should provide the
foundation upon which to build a lasting, effective, and efficient
conservation program for the Preble's. Because we anticipate beneficial
impacts of such collaborative conservation efforts, this rule is
applicable only until the end of the 36-month timeframe of the May 22,
2001, special rule.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Executive Order.
Paperwork Reduction Act
We have examined this amended rule under the Paperwork Reduction
Act of 1995 and found it to contain no requests for information. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
The National Environmental Policy Act analysis has been conducted.
An Environmental Assessment was prepared for the final special rule.
The additional exemptions covered in this amended rule were included in
this analysis.
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) and E.O. 13175, we have evaluated possible
effects on federally recognized Indian Tribes. We have determined that,
because no Indian trust resources occur within the range of the
Preble's, this rule has no effects on federally recognized Indian
Tribes.
Executive Order 13211
We have evaluated this amended rule in accordance with E.O. 13211
and have determined that this rule has no effects on energy supply,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, the Service amends 50 CFR part 17, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.40 by adding paragraphs (l)(2)(vi) and (vii) to
read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(1) * * *
(2) * * *
(vi) Noxious weed control. Preble's meadow jumping mice may be
taken incidental to noxious weed control that is conducted in
accordance with:
(A) Federal law, including Environmental Protection Agency label
restrictions;
(B) Applicable State laws for noxious weed control;
(C) Applicable county bulletins;
(D) Herbicide application guidelines as prescribed by herbicide
manufacturers; and
(E) Any future revisions to the authorities listed in paragraphs
(1)(2)(vi)(A) through (D) of this section that apply to the herbicides
proposed for use within the species' range.
(vii) Ditch maintenance activities. Preble's meadow jumping mice
may be taken incidental to normal and customary ditch maintenance
activities only if the activities:
(A) Result in the annual loss of no more than \1/4\ mile of
riparian shrub habitat per linear mile of ditch, including burning of
ditches that results in the annual loss of no more than \1/4\
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mile of riparian shrub habitat per linear mile of ditch.
(B) Are performed within the historic footprint of the surface
disturbance associated with ditches and related infrastructure, and
(C) Follow the Best Management Practices described in paragraphs
(l)(2)(vii)(C)(1) through (3) of this section.
(1) Persons engaged in ditch maintenance activities shall avoid, to
the maximum extent practicable, impacts to shrub vegetation. For
example, if accessing the ditch for maintenance or repair activities
from an area containing no shrubs is possible, then damage to adjacent
shrub vegetation shall be avoided.
(2) Persons engaged in placement or sidecasting of silt and debris
removed during ditch cleaning, vegetation or mulch from mowing or
cutting, and other material from ditch maintenance shall, to the
maximum extent practicable, avoid shrub habitat and at no time disturb
more than \1/4\-mile of riparian shrub habitat per linear mile of ditch
within any calendar year.
(3) To the maximum extent practicable, all ditch maintenance
activities should be carried out during the Preble's hibernation
season, November through April.
(D) All ditch maintenance activities carried out during the
Preble's active season, May through October, should be conducted during
daylight hours only.
(E) Ditch maintenance activities that would result in permanent or
long-term loss of potential habitat that would not be considered normal
or customary include replacement of existing infrastructure with
components of substantially different materials and design, such as
replacement of open ditches with pipeline or concrete-lined ditches,
replacement of an existing gravel access road with a permanently paved
road, or replacement of an earthen diversion structure with a rip-rap
and concrete structure, and construction of new infrastructure or the
movement of existing infrastructure to new locations, such as
realignment of a ditch, building a new access road, or installation of
new diversion works where none previously existed.
* * * * *
Dated: June 21, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-24633 Filed 9-30-02; 8:45 am]
BILLING CODE 4310-55-P