Questions and Answers
About the Final Special Rule and the
Proposed Special Rule Amendment
for the
Preble’s Meadow Jumping Mouse

When a wildlife species is listed as threatened, "take" prohibitions that apply to endangered species also apply to threatened species unless a special rule prepared pursuant to section 4(d) of the Endangered Species Act (ESA) is promulgated for the threatened species. A special rule developed for a threatened species contains the prohibitions for that species.

"Take" means to harass, harm, pursue, hunt, shoot, wound, trap, kill, or collect a listed species or attempt any of these actions.

"Unintentional or incidental take" is take that is incidental to, but not the purpose of, an otherwise legal activity.

The U. S. Fish and Wildlife Service listed the Preble’s meadow jumping mouse as a threatened species in May 1998.

The Endangered Species Act provides protection for all endangered and threatened species, regardless of their size, emotional appeal or popularity. Many scientists believe the Preble’s is an "indicator" species whose dwindling population is a symptom of an unhealthy ecosystem. The apparent decline of the species may be an indication that riparian vegetation has been severely affected by rapidly expanding development along the Front Range. This riparian habitat supports many other species of wildlife including deer, songbirds, and native fishes.

The Preble’s is 8 to 9 inches in length with a tail that accounts for 60 percent of its measurement. It has coarse fur with a dark back, paler sides tending toward yellowish brown and a white belly. Its hind feet are long and adapted for jumping small distances.

Portions of eastern Colorado and southeastern Wyoming. The range of the species corresponds largely to the rapidly developing Front Range Urban Corridor running from Colorado Springs, Colorado, to Cheyenne, Wyoming.

The decline of the species is indicative of the decline of riparian habitat throughout the Front Range.

There are many otherwise lawful activities (Federal, state and local government or private) that occur in Preble’s habitat that have the potential to result in unintentional or incidental take of the mouse and which are not likely to jeopardize the species. Unless exempted from the taking prohibitions of the Endangered Species Act, any person undertaking such activities could be required to obtain a special permit or obtain incidental take authorization issued pursuant to requirements in the Endangered Species Act.

The Fish and Wildlife Service recognized that the needs of the community could and should be balanced with the long-term conservation goals for the mouse. Under Section 4(d) of the Endangered Species Act, the Service prepared this special rule that defines the conditions under which unintentional take of the mouse would be exempted from Endangered Species Act prohibitions.

This special rule provides only those temporary exemptions that neither jeopardize the Preble’s nor detract from its future recovery.

This special rule temporarily (for a 36-month period) exempts the following activities from the general take prohibitions of the Endangered Species Act, provided they are conducted in accordance with the requirements specified in the special rule.

1. Rodent control within 10 feet or inside any structure. Since the Preble’s is not generally found in structures such as barns, houses, or other buildings, Preble’s mortality associated with rodent control near these structures will be minimal.

2. Ongoing agricultural activities provided there is no increase of impacts or further encroachment upon Preble’s habitat. This exemption provides for the continuation of ongoing agricultural practices.

Situations where Preble’s populations coexist with ongoing agriculture may provide valuable insight into habitat conditions and specific types of grazing and farming practices that are compatible with Preble’s.

The Fish and Wildlife Service believes this exemption will provide an incentive for agricultural interests to engage in voluntary conservation activities.

3. Maintenance and replacement of existing landscaping and related structures and improvements. Some landscaping activities, such as lawn mowing and gardening associated with residential or commercial development, golf courses, and parks may disrupt Preble’s habitat in certain areas. However, because minimal take is associated with these activities, they are not expected to adversely affect Preble’s conservation and recovery efforts.

4. Existing uses of water associated with the exercise of perfected water rights. Augmentation plans, replacement plans, and exchanges of water that have been recognized by decree or certificate of appropriation would be considered exempt. Take associated with new water development would not be exempted.

Many existing water use activities appear to be compatible with maintenance of Preble’s populations. In some locations, Preble’s exists only because of human manipulation of water flows. The relationship of water use and maintenance of Preble’s habitat is complex and will be examined during the special rule time period.

Except for the exemptions outlined in the special rule, any other take of Preble’s without an appropriate permit will be illegal.

The special rule will remain in effect for 36 months, at which time the Service will review and evaluate all relevant information to determine if extension of this special rule may be warranted. It is expected that comprehensive habitat conservation plans for the Preble’s will be developed during this time period.

The Fish and Wildlife Service will evaluate the progress of the conservation planning effort and how effective the special rule has been in conserving Preble’s and then determine if the rule should be proposed for extension or allowed to terminate. Any proposal to extend the special rule will be published for public comment.

Yes, if it is a continuation of past practices and does not expand the current footprint of the cultivation or cutting. For the 36-month duration of this special rule, any unintentional take associated with existing ongoing agricultural practices such as grazing and haying will not be a violation of the Endangered Species Act. However, this special rule does not exempt modifications to existing agricultural activities that increase impacts to Preble’s or its habitat.

No - under provisions of this special rule, any incidental take of Preble’s associated with rodent control within 10 feet of a structure would not be considered a violation of the Endangered Species Act.

How does this special rule affect new development?

New development activity is not covered under this special rule and is subject to the provisions of the Endangered Species Act as they have been since the Preble’s was listed as a threatened species.

Why doesn’t the final version of the special rule have the same provisions as the proposal?

After reviewing the comments received concerning the proposal, the Fish and Wildlife Service decided to finalize only those portions of the proposal that appear to have broad public support and are beneficial to Preble’s conservation.

No, these special rule exemptions neither jeopardize the Preble’s existence nor detract from its future recovery.

By bringing in a wide spectrum of partners into the collaborative planning process, the Fish and Wildlife Service believes that overall conservation of the Preble’s meadow jumping mouse will be increased. The exemptions in the special rule will allow many everyday activities to continue while we to work with State and local governments to ensure that appropriate consideration is given to the needs of the mouse.

It is the Fish and Wildlife Service’s hope that by reducing the regulatory burdens, where appropriate, local governments and private landowners will be more willing to participate in voluntary conservation planning. Organizations, agencies, and private individuals are often reluctant to enhance or promote a declining species because of the fear of government oversight and imposed regulations. In contrast, voluntary, cooperative efforts promote trust, education, and acceptance of the value of imperiled species.

Under section 7 of the Endangered Species Act, all Federal agencies must consult with the Fish and Wildlife Service when any action the agency carries out, funds, or authorizes (such as through a permit) may affect a listed endangered or threatened species.

This special rule does not change the obligations of Federal agencies to consult with the Service if their actions could affect Preble’s or its habitat.

The State of Colorado, the Fish and Wildlife Service, and various local governmental entities in Colorado and Wyoming are working together to develop habitat conservation plans to conserve and protect the Preble‘s and its habitat. These habitat conservation plans (HCPs) will be an important component in the long-term conservation and recovery goals for the Preble’s.

This special rule is meant to be in effect while comprehensive conservation plans are being developed for Preble’s at the State or local level.

The exemptions provided by this rule are independent of any HCPs that may be developed. Similar activities may or may not be addressed in any individual HCPs at the discretion of the entity developing the plan.

If you have questions, please call the U. S. Fish and Wildlife Service’s Colorado Field Office at (303) 275-2370 or the Wyoming Field Office at (307) 722-2374.

In addition to the activities exempted in the final special rule, the Fish and Wildlife Service is proposing an amendment to the special rule to allow certain noxious weed control and ditch maintenance activities.

1. Noxious Weed Control. The proposed amendment includes a range-wide exemption for control of noxious weeds with appropriate limitations designed to prevent eradication of entire plant communities in the course of controlling weeds.

The Fish and Wildlife Service believes that control of noxious weeds as required by the States of Colorado and Wyoming can be beneficial to Preble’s conservation and recovery because noxious weeds are displacing desirable natural vegetation upon which Preble’s depends.

2. Ongoing Ditch Maintenance. The amendment proposes a limited exemption for customary ditch maintenance activities that result only in temporary disturbance or very limited long-term disturbance of Preble’s habitat. This proposed amendment is intended to apply only to man-made ditches and is not intended to address alteration of habitat along naturally-occurring streams and watercourses.

This limited exemption designed to provide relief to those who must maintain active ditches, and to assure that currently existing Preble’s habitat along ditches remains functionally intact and viable.

• Normal and customary ditch maintenance activities that result in the annual loss of no more than one-quarter mile of riparian shrub habitat per each linear mile of ditch within any calender year. Examples of shrubs include, but are not limited to, willow, snowberry, wild plum, and alder.

• Included in the exemption above is the burning of ditches when conducted during Preble’s hibernation - November through April.

Best Management Practices must be followed, including the following:

• Impacts to shrubs: Ditch maintenance activities shall avoid, to the maximum extent practicable, 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, adjacent shrub vegetation must be avoided.

• Disposition of Debris: Placement or sidecasting of silt and debris removed during ditch cleaning, vegetation or mulch from mowing/cutting, and other material from ditch maintenance shall to the maximum extent practicable avoid shrub habitat, and at no time shall disturb more than one-quarter mile of riparian shrub habitat per linear mile of ditch within any calendar year.

• Out-of-Season: To the maximum extent practicable, all ditch maintenance activities will be carried out during the Preble’s hibernation season, November through April.
• Timing: All maintenance activities carried out during the Preble’s active season, May through October, will be conducted during daylight hours only.

This exemption includes maintenance and replacement of roads used to access the infrastructure and is limited to only those areas where previous disturbance has occurred.

Examples of activities which are covered by the proposed exemption include the following activities limited to the destruction of one-quarter mile of riparian shrub habitat per linear mile of ditch within any calendar year:

• clearing of trash, debris, vegetation, and silt by either physical, mechanical, chemical or burning procedures. Examples include mowing or cutting of grasses and weeds, removal of silt and debris from the ditch, and control of shrubs that could result in ditch leakage.
• 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 in locations susceptible to ditch failure, patchwork on a concrete ditch liner, or replacement of failed culvert with a new culvert.

This proposed exemption does not extend to:

• 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.

• Construction of new infrastructure or the movement of existing infrastructure to new locations except when required in exercise of perfected water rights. Examples of actions not covered include redrilling a well in a new location, building a new access road, or installation of new diversion works where none previously existed.

Once the amendment is finalized, it would be in effect for the remaining portion of the 36-month duration of the final 4(d) rule with the expectation that during that time period comprehensive conservation plans for the Preble’s will be developed and implemented.

None, this amendment is being proposed to obtain public comment. Once published in the Federal Register, there will be a 30-day public comment period. Following receipt of comments, the Service will develop a final rule.

Take precautionary measures to avoid to unintentionally killing or harming a Preble’s or its habitat.

Before undertaking any weed control or ditch maintenance activities that could possibly kill or harm a Preble’s contact the Fish and Wildlife Service:

Colorado Field Office, 755 Parfet Street- Room 361, Lakewood, Colorado 80215, telephone (303) 275-2370

Wyoming Field Office, 4000 Morrie Avenue, Cheyenne, Wyoming 82001, telephone (307)722-2374.

Comments on the proposed amendment should be mailed to: U. S. Fish and Wildlife Service, Leroy Carlson, Field Supervisor, Ecological Services, 755 Parfet Street, Room 361, Lakewood, Colorado 80215. Comments should be received by [30 days following Federal Register publication].

The Service will address comments received and consider them in formulating the final amendment. For issuance of the 4(d) rule amendment, the Service will ensure National Environmental Policy Act compliance and Section 7 compliance under the Endangered Species Act.